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Home > Liquor
Appeals Tribunal >
Liquor Appeals Cases >
Hyper Bowl Australia, Chermside |

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Appeals by D Long, M Phillips
and J & S Fardoulys against the decision of the chief executive to grant an
application for an Extended Hours Permit (on a Regular Basis) for premises known as Hyper
Bowl Australia at Westfield Chermside Shopping Centre |
| Appeal Nos: |
13, 20 & 25 of 2000/01 |
| Hearing: |
7 November 2001 |
| Tribunal: |
Ms A Lindon - Presiding Member
Mrs G Spender
Mrs J Harrington |
| Decision: |
16 November 2001 |
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Background to the Appeal
1. On 4 October 2000 Hyper Bowl Australia Pty Ltd lodged an application for an
On-Premises (Other Activity) licence and for an extended hours permit (on a regular
basis), and the applications were in respect of premises known as Hyper Bowl Australia
located at Shop 302, Westfield Chermside Shopping Centre, Gympie Road, Chermside. The
extended hours permit application sought trading hours of 9.00 am to 12 midnight, Sunday
to Thursday, and 9.00 am to 2.00 am Friday and Saturday.
2. The application was advertised in accordance with Section 118 of the
Liquor Act 1992 ("the Act"). One petition with 23 signatures and one objection
addressing both amenity and public need concerns were raised opposing the application.
3. The Brisbane City Council ("the Council") and the Assistant
Commissioner of Police, Metropolitan North Region were asked to comment on the application
pursuant to Section 117(1)(a) of the Act. The Chief Executive Office of the Brisbane City
Council had no objection to the application however the local councillor requested a six
month trial of the trading hours to 2.00 am as he had concerns regarding noise from the
premises and trading beyond 11.00 pm.
4. The Assistant Commissioner of Police, Metropolitan North Region did not
object to the application.
5. On 7 February 2001 the Chief Executive granted the application for an On
Premises (Other Activity) Licence Ten Pin Bowling. The approved trading hours were
9.00 am to 12 midnight, Sunday to Thursday with a six month trial period for extended
hours from 9.00 am to 2.00 am, Friday and Saturday which expired on 7 August 2001. Further
comment was sought from the Brisbane City Council and advice was received on 17 July 2001
that the Council and Councillor Hampson had no further concerns with extended trading to
2.00 am. On 7 August 2001 the Chief Executive determined to grant the extended hours
permit on a permanent basis.
6. In his statement of reasons for decision, provided to the Tribunal, the
Chief Executive stated the following:
- The application met all Division requirements in terms of the information
required to be supplied;
- The Assistant Commissioner of Police did not provide an objection to the
application;
- The Brisbane City Council was satisfied with the premises operation during the
trial period;
- The Department was satisfied that the amenity (in terms of Section 119 of the
Act) would not be unduly affected;
- The Department was satisfied that the applicant demonstrated the existence of
need pursuant to Section 116 of the Liquor Act 1992 for extended hours.
7. Notices of Appeal were lodged with the
Liquor Appeals Tribunal by Mrs D Long on 22 August 2001, Ms M Phillips on 27 August 2001
and Mr & Mrs J Fardoulys on 6 September 2001. |
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Issues
for Determination in this Appeal
8. The application is one to which Section 116 of the Act applies,
pursuant to Section 116(1)(c). On l July 2001 subsections (2), (3) and (4), of Section 116
were amended. Under the former Section 116(2) an applicant for an extended hours permit
(on a regular basis) was required to establish that the permit applied for "is
necessary to provide for the reasonable requirements of the public for liquor and related
services in the locality to which the application relates." Under the new Section
116(2) an applicant for an extended hours permit (on a regular basis) is required to
satisfy the Chief Executive "that it is in the public interest for the application to
be granted." The Chief Executive in making his determination to grant the application
on 7 February 2001 applied the public need test under the former Section 116(2) and was
satisfied in terms of that Section. At the end of the trial period on 7 August 2001, the
Chief Executive granted the application for the Extended Hours Permit to allow trading
until 2.00 am on Friday and Saturday.
9. The appellants lodged their appeals after 1 July 2001 and the question arises as
to whether the Tribunal, in rehearing the application, should apply the public need test
under the former Section 116(2) or the public interest test under the new Section 116(2).
As the issue as to the applicable law was not argued before the Tribunal, we have not
reached a concluded view on the issue and it is not necessary for us to do so because, in
the circumstances of this case, we have reached the view discussed below that we are
satisfied under both the public need and the public interest tests.
10. Having satisfied itself that the requirements of both the former and the new
Section 116 have been met, the Tribunal must proceed to consider the matters specified in
Section 121(5) (d),(e),(f) and (g), which are objections to the grant of the application,
comments received from Police and the Local Government Authority and the impact on the
amenity of the community concerned if the licence were to be granted. |
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Reasonable requirements of the public
11. Hyper Bowl Australia is a 26 lane ten pin
bowling centre located on the top level in the Westfield Chermside Shopping Centre and is
part of the new dining and entertainment precinct at the Shopping Centre which includes
five restaurants, an Irish tavern and a cinema complex. The bowling centre incorporates a
restaurant, which seats around 70 indoors and 40 in the outdoor area. There is an area for
amusement machines and light entertainment in the form of background music, soloists and
small bands.
12. Located 10 kilometres from the CBD, Chermside has a diverse and high permanent
residential population and there is a strong demand for a range of retail facilities and
services in the location. Although Chermside itself has not increased in population from
1996 to 1998, Australian Bureau of Statistics figures for all of the surrounding areas in
the locality show an increase of from 1.9% to 7.2% for that period according to the public
need submission prepared by Liquor and Gaming Specialists Pty Ltd, and contained in the
Appeal Book. The submission also states that the primary market the applicant intends to
cater for is the Shopping Centre which attracts about 110,000 visitors from the northern
suburbs each week and this number was expected to increase when all 220 speciality shops
in the Centre were operational. The Shopping Centre is easily accessible and has in excess
of 3000 car parking spaces available. It is well serviced by taxis and around 200 buses
per day pass through the bus interchange located on this site.
13. There is only one other licensed bowling alley in the vicinity approximately 2.8
km to the south. In the Brisbane City area there are seven bowling alleys with On Premises
(Other Activity) Licences. The applicant sought extended trading hours from 9.00 am to
cater for early morning bowlers, champagne breakfasts, office and team functions and
meetings. The extended trading hours to 2.00 am on Friday and Saturday nights were sought
to cater for people wishing to bowl later at night, including patrons returning from the
city later, movie patrons, presentation nights, post competition celebrations and teams
based at the centre who will use the premises for functions.
14. Having taken into account the matters to which it must have regard in both the
former and the new Section 116 of the Act, the Tribunal is satisfied that the extended
trading hours permit (on a regular basis) is necessary to provide for the reasonable
requirements of the public in the locality concerned and that it is in the public interest
for the application to be granted. |
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Amenity
Issues
15. The nominee for the licence, Mr B Cutajar appeared before the
Tribunal. In his evidence he said most of his patrons leave the premises by 11.00 p.m. to
11.30 p.m. He said his premises are adjacent to the cinema complex which has 16 cinemas
with seating capacity of 3,500 seats and that most of the vehicles in the parking area
adjacent to his premises late at night are from the cinemas which finish around midnight.
He said liquor can be purchased from the cinemas and patrons can also go downstairs to
Gilhooleys Irish Bar. However, he said in comparison, his premises is very small and any
problems emanating from Hyper Bowl would be minor because of the small number of people
involved. He said he has not had any complaints from the public nor from the Police
regarding the trading hours. He said he strives to ensure his premises does not have
problems with underage drinking or other licensing breaches. He said that he has security
personnel on Friday and Saturday nights because there are more patrons on site. Also,
Westfield Shopping Centre management has its own security personnel who are only a phone
call away if needed.
16. Mr Cutajar said this location is an entertainment precinct and is meeting
peoples needs and that he requires the extended hours on Saturday and Sunday nights
to service his customers who wish to bowl later at night, otherwise he would not have made
the application. He does not accept the objectors concerns that his premises
contributes to increased traffic noise late at night in the objectors street. He
said at times there would be more staff cars than patrons cars leaving the parking
area during the extended hours.
17. Mr M Gillart, director of Hyper Bowl Australia Pty Ltd also appeared before the
Tribunal. He said that the premises normally closes between 1.00 am and 1.30 am on Friday
and Saturday to allow for teams to finish their games and occasionally for special events,
such as Halloween night held on a recent Saturday night where 98 people attended. He said
that normally after midnight there would only be 15 to 20 people left in the premises and
that groups, usually of four people, dispersed at different times as they completed their
games. He said that there are six staff members who could leave as early as 1.00 am
depending on patronage. He said that most patrons leave the premises by car and the
closest way out of the car park from Hyper Bowl is via the rear of their premises onto
Banfield Street exit which leads directly onto Gympie Road.
18. Mr Gillart said that Division posters regarding responsible service of alcohol
are posted on the walls of the premises, and all new staff are briefed on Liquor Licensing
requirements. He said a new food and beverage manager has only recently been appointed and
has appropriate skills in service of alcohol.
19. Mr Fardoulys, an appellant, relied on his letter of objection received by the
Liquor Appeals Tribunal on 12 October 2001. He said that Bouchard Street in which he and
the other objectors reside, is a cul-de-sac directly opposite the Shopping Centre. He
lives at 32 Bouchard Street which is at the closed end of the street. He said that people
departing the Shopping Centre drive into Bouchard Street thinking it is a through road,
then have to turn around and drive down the other side of the street to exit, causing
disturbance to the residents of Bouchard Street. When asked about the times of the traffic
disturbance he said it was during the day and early night time.
20. Appellant, Mrs Long who resides at 12 Bouchard Street said she objected to the
traffic that comes into Bouchard Street all hours of the day causing noise and squealing
of tyres. She said she cant get to sleep at night till the Shopping Centre closes
down. She thinks some drivers are looking for the access to the Shopping Centre when they
mistakenly drive into Bouchard Street. She said there are "No Through Road"
signs posted at the entrance to the street. She said the Council has put "no
parking" signs on her side of the street at the entrance to Bouchard Street covering
the parking area up to 14 Bouchard Street, but people park beyond the signs and some
drivers ignore the "no parking" signs and illegally park.
21. Mrs Long said, since the renovations of the Centre during 2000, in addition to
noise she has seen broken beer bottles near the footpath on Bouchard Street which had not
occurred previously. Mrs Long conceded the patrons of the bowling alley may not currently
be the cause of the disturbances, but said she is concerned about patrons from the bowling
alley partying on at Gilhooleys Irish Bar ( which opened in September 2000, and has late
trading hours), and then causing disturbances in her street as there is nothing to stop
them doing so.
22. Mrs Phillips, also an appellant, who lives at 14 Bouchard Street said people
park in Bouchard Street at 11.00 pm at night and create noise locking cars with remote
controls and chatting outside their cars and she believes they are bowling patrons. She
said that there was one occasion at night when she observed people, with liquor in their
hands, coming from the Shopping Centre and returning to their car on Bouchard Street, and
she overheard them discussing bowling. She said there has been a definite increase in
traffic from Banfield Street onto Gympie Road which causes more noise than previously
since the extended hours began.
23. Liquor Licensing Officer Mr D Tennison represented the Chief Executive in
support of the Chief Executives decision. Mr Tennison relied on material from the
Divisions file and contained in the Appeal Book. He also tendered a statement
regarding his search of the Divisions database in relation to the subject premises
and noted that no complaints have been received in respect of the premises regarding the
extended hours since 7 February 2001.
24. Mr Tennison said the Division had had regard to the fact that neither the
Council nor the police had objected, but that it had noted the objection of the local
Councillor and therefore the trial period had been imposed. At the end of the trial
period, the Division re-contacted the local Councillor who had no further concerns
regarding the application. He said the Division is mindful that this premises is in an
entertainment centre within a shopping centre and the type of people who will be using
this facility are engaging in a sport which requires some skill. Liquor is ancillary to
the main activity which is bowling and the skill required would discourage a bowler from
drinking too much alcohol. He said the Division had restricted amplified entertainment by
conditions imposed on the licence. He said after midnight when the cinema patrons depart
there is more than ample parking for patrons who might frequent the Hyper Bowl during the
extended hours and there are ample exits from which traffic can disperse onto Gympie Road
in order to travel towards or away from the City. |
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Conclusion
25. The Tribunal in determining this appeal must have regard
to the concerns of the objectors whilst balancing the needs of all persons in the
locality. The Tribunal has given full consideration to the objectors concerns. Although
their concerns are genuine, and there was evidence that one group of people overheard
talking about bowling returned to a car in Bouchard Street carrying liquor, the Tribunal
is not persuaded on the basis of the material placed before it, that there is sufficient
evidence that patrons of Hyper Bowl are the cause of disturbance to residents of Bouchard
Street during the extended trading hours.
26. Having taken into account all the matters to which it is required to have regard
pursuant to Section 121(5) of the Act, the Tribunal is satisfied that the extended trading
hours will not unduly impact upon the amenity of the locality. |
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Decision
of the Tribunal
27. The Tribunal orders that:
(a) the appeal be dismissed;
(b) the decision of the Chief Executive made on 7 August 2001 be confirmed. |
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