The Liquor Act 2007 (NSW) gives police, local councils and residents the right to make a noise complaint about how a licensed premises in New South Wales conducts its business or the behaviour of its patrons upon leaving. Understanding how the Department of Justice (Liquor & Gaming NSW) manages these complaints is important and may help resolve the issue more quickly. This article outlines the formal process for handling a noise complaint.
Receipt of Noise Complaint
When the Department of Justice receives a noise complaint, the Secretary has the right to either deal with the complaint or take no further action. If the Secretary does elect to deal with it, they can either convene a conference to hear submissions on the complaint or invite the licensee from the relevant licensed premises to make written submissions about the complaint. In this case, the Secretary can also invite other interested and appropriate parties to make submissions on the complaint. For example, if the complainants are neighbourhood residents, the Secretary may ask the police and local council for submissions about the complaint. If the Secretary chooses to handle the matter through the process of written submissions, they have the right to make a decision on it without ever convening a conference with members of the public and the licensee. Conversely, if the Secretary decides to hold a conference, both the complainants and licensee will receive notice of its time and place. At a conference, both parties have the right to speak.
Irrespective of whether the Secretary chooses to handle a complaint through a conference or written submissions, the process of coming to a decision is fair, independent and unbiased. The Department of Justice will at all times observe the principles of natural justice and due process. The tenets of natural justice mean that all parties to a dispute will receive a fair hearing and have the opportunity to present their case. Further, the decision maker will be unbiased and disinterested and take into account only probative evidence as opposed to an allegation. In this administrative law context, due process means that all parties will have the chance to be heard before the decision maker makes any decision.
When the decision maker is in the course of making their decision, they must by law take into account certain considerations. These factors include the order of occupancy between a licensed premises and the complainant. The order of occupancy refers to which party was in the neighbourhood first. The decision maker will also consider any changes that the licensee or complainant have made to their premises. These include structural changes. Finally, the Secretary must take into account any changes in the activities conducted on the licensed premises over a given period. However, in instances where the complainant is the police or the local council, the decision maker need not take these matters into consideration.
When the Secretary makes their decision about a complaint, they can take a number of actions. First, they can choose to take no further action concerning the complaint or issue a warning to the licensee. The Secretary could also place a condition on the liquor licence for those premises subject to the complaint. The kinds of conditions that the Secretary can impose on a license include:
- Noise abatement;
- Prohibition on selling or supplying liquor before 10 am or after 11 pm;
- Prohibition or restriction of any activities that encourage the misuse or abuse of liquor. For example, promotions or discounts that facilitate excessive consumption of liquor;
- Restricting the trading hours of, and public access to, the premises; and
- Require a licensee to participate in and comply with a liquor accord.
If the licence is already subject to a condition, the Secretary has the right to vary or revoke that condition. Further, in cases where the Secretary convened a conference between the parties, a licensee can voluntarily choose to put in place certain processes and policies to address the issue of concern to the complainants. If this occurs, the Secretary will adjourn the conference subject to the licensee implementing and sustaining these undertakings.
A noise complaint does not require a licensee to attend court. And while these complaints are dealt with as speedily as possible, the length of time needed to resolve the matter will depend on the complexity of the issues as well as the number of interested parties. Further, howsoever the Secretary decides to resolve a complaint, it is open to a party to request a review of their decision by the Independent Liquor & Gaming Authority.
LegalVision has assisted businesses with noise complaints. Contact us today with our business lawyers on 1300 544 755 or fill in the form below.
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