A recent Appeal Ruling confirmed that the Western Cape Liquor Licensing Tribunal must take account of the potential disturbance that may be caused to nearby residents before issuing a license. Most importantly, the public interest must be considered holistically, not just in terms of the rights of the applicant to trade or the service that is provided.
In a virtual hearing of the Western Cape Liquor Licensing Appeal Tribunal held on 5 November 2020, retired Judge D H Van Zyl ruled that the Western Cape Liquor Licencing Tribunal must amend the liquor license it had issued to the Springbok Pub on Lower Main Road in Observatory.
The full license initially granted had included an area outside of the premises immediately adjacent to a residential area, even though the City of Cape Town sub-council, the SAPS, the Observatory Civic Association, and nearly residents had objected. The outside open area included a service bar, seating for 36 people, and seven braai areas, all located immediately on the other side of the boundary walls of several private residences in Nuttall Road Observatory. In awarding the initial licence, the Liquor Licensing Tribunal had been persuaded that this would not cause “prejudice or hindrance to any residents in the adjacent area” because the owner, David Harris, had undertaken to cover the area with a stretch tent, employ dedicated personal to ensure patrons would not cause a disturbance, and limit trading hours to 10:00pm.
The appellants, which included the Observatory Civic Association and Carolyn Neville on behalf of the local residents in Nuttall Road, Norwich Avenue and Trill Road, countered that these measures were inadequate to prevent noise and smoke disturbance, and presented evidence that the granting of the liquor license to include the outside area was not in the interests of the residents of Observatory, and would severely prejudice residents in the adjoining premises. Mrs Neville also presented photos illustrating the proximity of the Pub’s back yard to nearby houses, and also of braai smoke and chicken bones thrown over the wall.
Mrs Neville further argued that the outside amenities would necessarily create noise, nuisance and disturbance that could not be dealt with by the existing enforcement mechanisms of the Western Cape Liquor Authority, the SAPS, or the municipality, and that consequently the onus to police the activities of the of the Springbok Pub and report any transgressions would in reality be delegated to the residents. Judge Van Zyl agreed, and rejected suggestions by Mr Harris’s lawyer, Edward Booth, that the neighbours should police the patrons of the Pub.
The Chair of the Observatory Civic Association, Leslie London made the case that the Tribunal was required to find, on the balance of probabilities, that the granting of a license to Mr Harris was not in the public interest. His submission called into question the effectiveness of the proposed soundproofing in the form of a stretch tent and closing the door to the outside area. Judge Van Zyl agreed, finding these arrangements to be “quite unpersuasive”.
The argument by Mr Harris that he could conduct business in the outside area without causing prejudice or hindrance to any of the residents of the adjacent houses, and that in doing so he would be providing a public service, was dismissed as “disingenuous and singularly unimpressive”.
In considering his verdict, Judge Van Zyl drew on another case known as Bulk Deals Six CC and Another v Chairperson, Western Cape Liquor Board. This case, heard by Judge Cleaver in 2002, found that “factors relating to public interest should not be considered in isolation but holistically, with reference to the applicant, the premises in question and the potential prejudice which would be caused to residents of a particular residential area.” Such prejudice should be assessed with reference to the manner in which the proposed business was to be operated and not relate to “speculative or irrelevant considerations”.
Judge Van Zyl therefore ruled that “decision of the LLT to include the outside area of the Springbok Pub in granting its final liquor licence application was incorrect and should be reversed”, and ordered that the liquor licence must be amended to restrict its trading activities to the indoor area of the Pub.
The judgement is very important for other communities because it makes clear the obligation on the part of the Liquor Licensing Tribunal to give adequate consideration to the likely disturbance that granting a liquor license may cause to neighbours. In assessing the public interest, the Tribunal must also weigh impacts on the neighbours and the community adequately and should not accept at face value the arguments presented by an applicant without careful scrutiny of their evidence.
The Observatory Civic Association welcomes this appeal ruling, as it recognises that the interest of the residents of Observatory are not secondary to those of neighbouring businesses. Whilst the OCA supports local businesses and welcomes the services that they provide, they cannot conduct themselves in ways that disturb or harm local residents.
Retired Judge Van Zyl handed down his judgement in Case No: 2019/556 on 16 November 2020.
For further information, contact Observatory Civic Association
Edwin Angless