Annamneni v Independent Liquor & Gaming Authority

NCAT Administrative and Equal Opportunity|2024-02-15

REASONS FOR DECISION

The Applicant operates a general store known as the "South Corowa General store" located at Hume Street, Corowa (the General Store).
The Applicant proposes to sell liquor in part of that general store. The general store comprises a total area of approximately 119m2 of which the Applicant seeks to use 21m2 for the sale of liquor.
On 19 May 2022, the Applicant made an application for a packaged liquor licence (Licence Application). The Application was refused. In the respondent's statement of reasons issued on 15 August 2023, the following reason was provided: We refuse the application under section 45 of the Liquor Act 2007 (the Act) Under section 31(1)(a) of the Act, a packaged liquor licence must not be granted for premises' that comprise a general store unless the Authority is satisfied that in the neighbourhood of the premises concerns, no other take-away liquor service is reasonably available to the public. The applicant has defined the neighbourhood of South Corowa which includes Corowa Golf Club where take-away liquor is available to be purchased from 11 am to 10pm, seven days a week. The application has therefore failed to satisfy the requirements of section 31(1)(a) of the Act.
Section 31 of the Act relevantly provides: (1) A packaged liquor licence must not be granted for premises that comprise a general store unless the Authority is satisfied that: (a) in the neighbourhood of the premises concerned, no other take-away liquor service is reasonably available to the public, and (b) the grant of the licence would not encourage drink-driving or other liquor-related harm. …. (3) In this section: general store means a convenience store, mixed business shop, corner shop or milk bar that has a retail floor area of not more than 240 square metres and that is used primarily for the retail sale of groceries or associated small items.
By application dated 12 September 2023, the Applicant sought review of the Respondent's decision to refuse the Applicant's Licence Application.

Statutory framework

The Respondent is empowered to grant or refuse a liquor licence to an applicant: s 45 of the Act. This is a decision able to be reviewed by this Tribunal: s 13A of the Gaming and Liquor Administration Act 2007 and regulation 7 of the Gaming and Liquor Administration Regulation 2016.
In determining an application for administrative review, the Tribunal may affirm or vary the decision of the Respondent, set aside that decision and make another decision in substitution for that decision, or remit the matter for reconsideration by the Respondent: see s 63(1) of the Administrative Decisions Review Act 1997.
The task of the Tribunal on review is to make the correct and preferable decision having regard to the material before it, any relevant factual material and any applicable law.

Submissions and evidence

The following issues are not in dispute: 1. the General Store is a "general store" within the meaning of s 31(3) of the Act; 2. the Corowa Golf Club (the Golf Club) is within the neighbourhood of the General Store; 3. the grant of the Licence Application would not encourage drink-driving or other liquor-related harm.
Rather, the questions before the Tribunal on this application are: 1. Whether the "neighbourhood" for the purposes of s 31(1) is "South Corowa" as contended by the Applicant or "Corowa", which is a larger area incorporating the township, as contended by the Respondent (the Question of Neighbourhood). 1. If it is the latter, the "neighbourhood" incorporates other take-away liquor services and the application would fall within the ambit of s 31(1) and must not be granted. 2. If it is the former, a further questions arises as described at (2) below 1. Whether the take-away liquor service at the Golf Club is "reasonably available to the public" for the purposes of s31(1) of the Act (the Question of Reasonable Availability): 1. If the answer is yes, the application would fall within the ambit of s 31(1) and must not be granted. 2. If the answer is no, the Respondent accepts that there are no other reasons warranting the refusal of the Licence Application.
It is not in dispute that the Question of Neighbourhood only arose by way of the Respondent's submissions on this application to the Tribunal. For the purposes of the rejection of the Licence Application, it is clear from the statement of reasons there was no issue that the neighbourhood was "South Corowa". This represents a change of position by the Respondent from that which was taken in the original refusal. There is no controversy that such a change is open to the Respondent.
In answer to the Question of Neighbourhood, the Applicant submits: 1. The "neighbourhood" for the purposes of s31(1) is "South Corowa" and relies upon the expert evidence of Mr Laycock, town planner. The Applicant further contends that: 1. The Respondent's expert relies upon the wrong test by stating that a "neighbourhood" must contain "all facilities and services to sustain" the identified area. 2. In doing so, the Respondent's argument is circular as if someone defines "neighbourhood" by reference to an abundance of amenities (including other liquor stores), the provision could never be enlivened and would serve no purpose. Such an approach would be especially problematic when applied to regional areas. 3. Points to alleged inconsistencies in the Respondent's approach in describing the correct "neighbourhood". Inherent in these submissions is that the Respondent's position is that each "neighbourhood" is mutually exclusive so that a particular area can only be part of one "neighbourhood". 4. Contends that the Respondent's reliance on interpretations of the meaning of "neighbourhood" from repealed liquor provisions ought to be given little weight. 5. Submits that it would be open to the Tribunal to consider other indicia of a neighbourhood including the existence of residential aggregations within a town and in this respect, both parties' experts agree that South Corowa is a distinct residential area. The Applicant draws the Tribunal's attention to the existence of the "South Corowa Public School". 6. Relies on the inhabitants of the area and their movements as well as to the "retail demand pull" to the extent that it shapes the pattern of movement of the residents.
In answer to the Question of Reasonable Availability, the Applicant submits: 1. The take-away service at the Golf Club is not reasonably available to the public when consideration is given to the location of the service and its convenience to those who might be able to use the facility: MJ Trading Services Pty Ltd v Independent Liquor & Gaming Authority [2018] NSWCATAD 260 at [52] (MJ Trading). 2. In this regard the Applicant relies on the following: 1. The Gold Club is located some 3km from the General Store and is at the southern extremity of the neighbourhood; 2. The Golf Club does not have any signage advertising the sale of take-away liquor and as such, residents may not be aware that it is available; 3. The terms and conditions of entry into the Golf Club and the requirements of the Registered Clubs Act 1976 (NSW) only permit entry to certain persons and reserve the right to deny entry in certain circumstances. In this regard, liquor can only be purchased by persons entering as an "Ordinary Member" of the Golf Club or a "Guest of a Member"; and 4. The fact that the Gold Club is constructed to allow for individuals in vehicles to visit it also contributes to it not being reasonably available. In this respect, it is relatively isolated, there is an extremely long drive-up from the street and there are no footpaths outside of the Golf Club property or leading to the Golf Club from the outside of the property. 1. In addition to the Applicant's oral submissions and cross-examination of the Respondent's expert, the Applicant relies upon the following documents: 1. The application for administrative review marked "A1"; 2. Written submissions in chief marked "A2"; 3. Town Planning report of Mr Laycock marked "A3" (Laycock Report); 4. Written submission in reply marked "A4"; 5. Bundle of materials filed in reply marked "A5" including: 1. Letter from Mr Laycock to Dick & Williams Solicitors dated 12 February 2024 (Supplementary Laycock Report); 2. Constitution of the Corowa Gold Club dated 11 December 2023; and 3. Excerpt from the Corowa Golf Club's website. 1. Colour and larger copies of appendices to Mr Laycock's report marked "A6"; and 2. Colour and larger copies of appendices to Mr Laycock's letter of 12 February 2024 marked "A7".
Conversely, in answer to the Question of Neighbourhood, the Respondent submits that the "neighbourhood" in these proceedings is coextensive with the town of Corowa and relies upon the expert evidence of Mr Salvestro, town planner. In further support, the Respondent: 1. Made submissions with respect to the interpretation of the meaning of "neighbourhood and in this respect contended that: 1. While "neighbourhood" is not defined in the Act, it appears to bear a different and narrower meaning than "local community" and "broader community" which are terms used in s 48 of the Act and 2. Considered the authorities which considered the meaning of "neighbourhood" in repealed versions of the Liquor Act (as well as the current version), namely Liquor Act 1912 (NSW); Liquor Act 1982 (NSW) as well as MJ Trading which considered the current Act. 3. Contended that Mr Laycock's opinion has not properly applied the jurisprudence in defining the "neighbourhood" in that Mr Laycock focuses on the commercial behaviours of assumed customers and the "retail gravity pull" which was an approach rejected by the Court of Appeal in Armstrong v Edgecock [1984] 2 NSWLR 536 (Armstrong v Edgecock). 4. Submitted that in contrast to Mr Laycock's opinion, the correct approach requires an identification of topographical and geographical features, community and transport facilities etc. When that is completed, the "South Corowa" area identified by Mr Laycock does not include all facilities and services to sustain that area and rather, the area must include the main Corowa township where that infrastructure and services are present such as supermarkets and shops, post office, banks, restaurants and bars etc. 5. In respect of the topographical and geographical features, community and transport facilities etc, the Respondent submitted that: 1. Corowa has a population of approximately 5600 people with "Corowa" being the name of the town, locality as well as the parish. It falls within the meaning of "a small country town" which has been recognised as an example of a "neighbourhood": Hunter v Reyneke (1986) 6 NSWLR 576 at 579 (Hunter v Reyneke); 2. The relevant residential aggregations, the geographical and topographical features, transport and community facilities, location of those facilities and the patterns of movement support that the neighbourhood is the town of Corowa.
In answer to the Question of Reasonable Availability, the Respondent submits that: 1. The fact that the Golf Club is at the southern extremity of the neighbourhood is irrelevant as its place on the street does not mean it is not reasonably available. The lack of easy pedestrian access to the service is unsurprising in a country town and simply suggests that the Golf Club is largely patronised by those traveling by car. 2. Signage and advertising is irrelevant as this goes to notoriety of the service not whether it is "reasonably available" and that a member of a small town would likely know whether the Gold Club is located and the services it provides. 3. While the Respondent accepted that restrictions on sales and the requirement of membership has the result that the take-away liquor service is not reasonably available to the public, the Tribunal should find that in this case, the service is reasonably available because: 1. The minimum membership fee is $20 per annum; and 2. The ordinary membership of the Golf Club in 2023 was 3431 of which 2558 were social members (i.e. non-golfing members presumably locals whose interest in the Gold Club was its facilities including the take-away liquor service). 1. Due to the membership numbers, the Tribunal should conclude that there is a "staggeringly high proportion of the total adult population of Corowa" that are members which supports that the membership requirement is no barrier at all to the public of Corowa.
In addition to the Respondent's oral submissions and cross-examination of the Applicant's expert, the Respondent relies upon the following documents: 1. Written submissions in response marked "R1"; 2. Section 58 Bundle marked "R2"; and 3. Further Bundle of Documents marked "R3" including the report of Mr Salvestro (Salvestro Report); and 4. Collection of documents including web pages from the NSW Public School Finder and maps marked "R4".
The parties also provided a Joint Bundle of Authorities.

Consideration

Section 31 is a mandatory provision. When this provision is engaged, the agency must refuse to grant the licence application unless the agency is satisfied that the criteria in s 31(1)(a) and (b) are met. Once it finds that a mandatory ground for refusal applies, the Tribunal has no residual discretion and is required to refuse to grant the application.
It is within that context that consideration need be given to questions before this Tribunal.

The legal principles

The legislation does not provide a definition for the meaning of "neighbourhood of the premises" nor the meaning of "reasonably available" or "public". However, it is clear from s 3 of the Act that the object of the Act, inter alia, is to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community: s3(1)(a). To secure that object, due regard must be had to the need to ensure that the sale supply and consumption of liquor contributes to and does not detract from the amenity of community life: s 3(2)(c). Section 31 should e interpretated with these principles in mind.
Apart from MJ Trading, there is an absence of authority which considers s 31 of the Act and provides guidance as to its meaning. As noted above, the Applicant contends that the interpretations of the meaning of "neighbourhood" from repealed liquor provisions ought to be given little weight. I agree with the Applicant's contention to the extent that it is submitted that these interpretations based on repealed legislation which is in different terms than s 31 of the Act must be approached cautiously. As described by the Court of Appeal in Armstrong v Edgecock when interpreting s29(1)(e) of the Liquor Act 1912 (NSW) as amended by the Liquor (Amending) Act 1981 (NSW): The first step in the construction of the new provision is to construe it according to its terms and not to approach it through the fog of authorities on its predecessor …
However, while I treat these principles with caution; in a situation where there is an absence of authority, a consideration of the learned reasoning of superior Courts where the provision that the reasoning is based upon is analogous is appropriate and helpful. Establishing that the provision that the reasoning is based upon is analogous being an important qualification to that application.
The decision of Cross v McHugh [1974] 1 NSWLR 500 (Cross v McHugh) is a decision of the Court of Appeal per Hardie, Reynolds and Glass JJA. Mr Cross had applied for a "spirit merchant's licence" in respect of premises in Taree. Mr Cross was refused based upon an objection taken pursuant to s29(e) of the repealed Liquor Act 1912 (NSW) as that section was prior to the 1981 amendment. At that time, s29(e) stated as far as relevant: And any one or more of the following objections may be taken to the granting of any such application … (e) that the reasonable requirements of the neighbourhood do not justify the granting of such application. [Emphasis added]
The Court of Appeal held that the concept of neighbourhood was flexible and will generally be a question of fact. In respect of the reasonable requirements of a neighbourhood, the Court stated: It cannot be doubted that, in determining the ultimate question of whether the reasonable requirements of a neighbourhood justify the grant of a license, the matter of convenience and inconvenience to persons who might be able to use the facility or be denied its use, is a relevant consideration.
There are two significant differences in the provision considered by the Court of Appeal as compared with s 31 of the Act. The first is that unlike s 31 the "neighbourhood" is not expressly limited to the "neighbourhood of the premises". The other is that the concept of the "requirements of the neighbourhood" does not appear in s 31 of the Act (which requires a consideration of availability). On one view it might be argued that because the concept of "requirements of the neighbourhood" does not appear in s 31 of the Act (which requires a consideration of availability), that the Court of Appeal's consideration is of no assistance to the interpretation of s 31. However, correctly characterised, the Court of Appeal was considering the concept of reasonableness of accessibility in the context of considering the neighbourhood's requirements. This concept is analogous to s 31 of the Act. Even if that was incorrect, the matter of convenience or inconvenience is an obviously relevant consideration to considering what is reasonably available. For those reasons, while this decision is not binding, I accept that a relevant consideration in considering what is reasonably available as provided in s 31 of the Act is the matter of convenience and inconvenience to persons who might be able to use premises.
I also accept that the question of a neighbourhood of the premises for the purposes of s 31 of the Act is flexible and is a question of fact. This flexibility means that what is the neighbourhood of a premise of a particular area may change over time.
The decision of Armstrong v Edgecock is a decision of the Court of Appeal per Hutley AP to which Glass and Priestley JJA agreed. It was a concerned an application for a spirit merchant's licence was made by a supermarket in the Tamworth Village Shopping Centre which was refused based on an objection taken pursuant to s29(e) of the repealed Liquor Act 1912 (NSW) as that section was after the 1981 amendment. At that time, s29(1)(e) stated as far as relevant: "(e) that the needs of the public in the neighbourhood of the premises can be met by facilities for the supply of liquor existing in, and outside, the neighbourhood."
As noted by the Court of Appeal, the only question that required a finding of that Court was whether, the line of judicial authority on 'neighbourhood' is affected and if so to what extent by the introduction of the words "of the premises" into the statutory test (at 539G). It was held that there was no judgment binding on that Cort as to the meaning of "neighbourhood" given the changes in the Liquor Act 1912 (NSW) (at 539G).
The decision of the Court of Appeal included the following observations in obiter: 1. The first step in the construction of a new provision is to construe it according to its terms and one begins that task by identifying the physical area of the "neighbourhood of the premises": at 540C 2. The trading area of the business in the premises is irrelevant to the issue of what is the neighbourhood because the neighbourhood of the premises cannot increase or decrease by reason of trading practices: at 540D. It will remain constant regardless of the nature or scale of the trade: at 542G: 1. for example, the David Jones department store in the CBD of Sydney may have a large trading area but it would be "ridiculous to describe this as the neighbourhood of the store": at 540E; 2. that the trading area of a business if not the test of a neighbourhood is made clear by the need to consider facilities outside of the neighbourhood: at 540F 1. The trading practices are an important consideration but are important to a consideration of the satisfaction of the needs of those in the neighbourhood and not to the question of neighbourhood of the premises: at 540D. 2. It is inherent in the inquiry as to whether facilities outside the neighbourhood could satisfy the needs of its public that a neighbourhood is a relatively confined area and that the object of the amendment was to bring the court back to a more restricted interpretation of neighbourhood: at 540G, 541D. The neighbourhood will denote an area smaller than the trading area: at 542G. This is a change from the provision in its previous form which allowed a more expansive view of neighbourhood on the basis that that was the area from which the public came: at 541C. 3. In many cases, the search for the neighbourhood of the premises will require a finding of community which may be of assistance when analysing a "neighbourhood" in suburbs and towns (as opposed to the centre of the City of Sydney where there is no community) (at 541F). The finding of neighbourhood may depend on transport facilities, pattern of movement of those living reasonably close to the premises and even the existence of institutions which make a locality, such as primary schools, churches and clubs which knit people in their common activities: at 542A. It is relevant to consider topographical and geographical features, communal activities, and residential aggregations in determining the extent of the neighbourhood: at 542E-F. 4. With reference to Lucas v Mooney (1901) 9 CLR 231, what is a neighbourhood in one set of circumstances would not be in another set of circumstances with the intention being that the word "neighbourhood" was meant to be vague: 540G, 542G
The provision considered by the Court of Appeal includes that the neighbourhood to be considered is the "neighbourhood of the premises" which is the same wording adopted in s 31 of the Act. I accept that the observations made by the Court of Appeal as summarised at paragraphs 28(1), 28(2) (with the exception of the example at paragraph 28(2)(b) which is based on wording that does not appear in s 31 of the Act), 28(5) and 28(6) are equally applicable to s 31 of the Act.
With respect to the principle summarised at paragraph 28(3) (i.e. that the trading practices are an important to a consideration of the satisfaction of the needs of those in the neighbourhood) - such a concept has no direct application to s 31 of the Act as the provision is concerned with reasonable availability as opposed to the satisfaction of needs. By analogy however, I find that evidence as to trading practices is an important consideration is considering what is reasonably available to that neighbourhood. Where such trading practices are overly restrictive or subject to certain limiting factors, that may impact on what is "reasonably available" to the members of that neighbourhood.
With respect to paragraph 28(4) (i.e. "neighbourhood of the premises" refers to a reasonably confined area), I do not accept that the reasoning has application given that it is based upon the dichotomy between the concepts in the repealed s29(1)(e) of the Liquor Act 1912 (NSW) between facilities "in the neighbourhood" and facilities "outside of the neighbourhood" which does not exist in s 31 of the Act. I do not accept that "neighbourhood" necessarily refers to a reasonably confined area in s 31 of the Act. It will depend on the circumstances and the evidence before the Tribunal. Rather, s 31 provides a more restrictive test as to the concept availability in that it is not only whether such a service (or facility) is available but whether it is "reasonably" available. This concept of reasonableness not appearing in the repealed s29(1)(e) of the Liquor Act 1912 (NSW).
The decision of Morgan v Goodall (1985) 2 NSWLR 536 (Morgan v Goodall) is a decision of the Court of Appeal per Glass, Samuels and McHugh JJA. The decision concerned s 45(2) of the Liquor Act 1982 which contained the same wording, inter alia, as that contained in the repealed s29(1)(e) of the Liquor Act 1912 (NSW) considered by Armstrong v Edgecock. The primary issue in that case was whether in considering the needs of a "neighbourhood of the premises", whether the needs of the public in areas outside of the State could be considered. The Court of Appeal held that the ties of a community do not necessarily coincide with political boundaries and found that areas outside of the State may be considered in appropriate circumstances. The Court of Appeal cited and applied Armstrong v Edgecock but did not otherwise expand on the applicable principles.
In addition to the fact that the decision applied Armstrong v Edgecock, the Tribunal's attention was taken to the fact that it was concerned with Corowa, New South Wales being the town where the General Store is located. In that respect, the Tribunal's attention was drawn to the fact that the "neighbourhood of the premises" was held to be the "bulk of the Shire of Corowa and some nearby south of the border" and that Corowa was identified as a "small town".
I do not, however, find these findings as to the "neighbourhood" are helpful or persuasive for the purposes of determining the question of "neighbourhood" in these proceedings. It is uncontroversial that such findings do not bind the parties or this Tribunal but, in any case, they were based upon whatever the "neighbourhood of the premises" was in 1985. There is no reason to assume that Corowa and/or the "neighbourhood" remains the same as noted above, the borders of a neighbourhood may change over time. The factual finding as to what constitutes the "neighbourhood of the premises" must be made based upon the current evidence before this Tribunal.
The decision of Hunter v Reyneke is a decision of the Court of Appeal per Glass, Mahoney and Priestley JJA. The decision concerned an application for a liquor licence in respect of a supermarket at Caringbah and was heard at a time when the Liquor Act 1982 was in force. Like Morgan v Goodall, it concerned an objection pursuant to s45(2) of the 1982 Act. The Court of Appeal, referred to Armstrong v Edgecock and Morgan v Goodall.
The Court of Appeal also considered the meaning of "the public". In this respect, the Appellant contended that the inclusion of persons from outside the neighbourhood was an error of law. In considering that issue, the Court of Appeal stated: One familiar situation in New South Wales is that of a small country town; another is that of a major commercial centre with a very small number of residents, such as the Sydney central business district; a third is an area with a substantial permanent population and also a substantial periodical population of visitors. Other types can be readily classified. Within the third of the ones I have mentioned there is scope for great variety. Visitors to some holiday resorts will stay there for weeks at a time, visitors to some resorts may be there for a day or for hours at a time only, and there may be any number of intermediate variations. In regard to some of the various kinds of "neighbourhood" the relevant territorial identification should be comparatively easy; in regard to others it may be quite difficult…. With the foregoing considerations in mind, when the meaning of "public" in s 45(2) comes to be decided it is clear that that meaning has to accommodate all the different kinds of "neighbourhood" some examples of which have been given …
In considering these factors, the Court of Appeal concluded that "public" in the subsection must mean those people present in the neighbourhood at any time rather than those with a permanent or regular connection to it by residence, work or otherwise. I accept that the meaning of "the public" in s 31 of the Act would likewise include non-permanent members of the neighbourhood for the reasons given by the Court of Appeal with respect to s45(2) of the 1982 Act. This is supported by the fact that the legislative has used the word "public" in s 31 of the Act (and its predecessor) as opposed to a term referrable to the neighbourhood itself (for example, "residents of the neighbourhood").
The decision of Smith v Hardy (2000) 50 NSWLR 478 is a decision of the Supreme Court of NSW per Whealy J. The first defendant had made application for the conditional removal of the off-licence held by him from premises in Leichardt to other premises in Leichardt. The plaintiff was the merchandise manager for liquor for Woolworths Ltd who objected to the removal application pursuant to s 45(2) of the Liquor Act 1982. In that context it became necessary to determine the neighbourhood of the existing premises as a matter of fact. The Court briefly considered whether a "neighbourhood" of a premise can overlap with a different "neighbourhood" of a different premise or whether such "neighbourhoods" must be co-extensive (i.e. if premises A and B were in the same neighbourhood of premise A, does that means that the neighbourhood of premise B is the same as neighbourhood A?). The Respondent in these proceedings relied upon this authority in support of his contention that an area can be part of multiple "neighbourhoods" (and specifically an area containing a multitude of services such as the business district of a town) such that the border of one neighbourhood does not define the border of another. In respect of the issue of co-extensivity, the Court held: In the usual run of cases, where a licence is sought to be removed from one premises to another and it is found that the proposed premises are in the neighbourhood of the existing premises, it will be the situation that the neighbourhood of each set of premises is identical. That this is so will be self evident from the very proximity of the two locations. In a rare case (and apparently the present removal fell into this category) a removal from A to B will occur in the unusual situation that B is located at or towards the boundary of the A neighbourhood. In such a situation, there may be legitimate doubt as to whether the neighbourhood of B (if that were a relevant matter) was precisely co-extensive with neighbourhood A.
Given the flexibility of the meaning of "neighbourhood", I agree with Whealy J that this legitimate doubt may arise. However, given my findings below, this issue need not be decided in this proceeding. Moreover, given the terms of s 31 of the Act and the need to only define the "neighbourhood of the premises", it may be the case that the issue would rarely arise, if it arises at all.
The decision of McRedmond v Tassell [2002] NSWSC 1163 is a decision of the Supreme Court of NSW per Hulme J. The proceeding related to the conditional removal of a hotelier's licence and in that context considered the meaning of "neighbourhood" pursuant to Liquor Act 1982 (NSW) as well as Armstrong v Edgecock and Morgan v Goodall and made the following observation: If, in the determination of a neighbourhood, it be relevant to consider community facilities and residential aggregations, it is surely also relevant to take into account their absence when considering whether an area said in a particular case to be the neighbourhood is properly chosen.
Such an observation being made with reference to Armstrong v Edgecock. I agree with this reasoning however, it does not take the principle further than what was stated to be the case by the Court of Appeal. It is inherent in the principal that it is correct to consider community facilities and residential aggregations that such consideration would include their existence or their absence.
The decision of this Tribunal in MJ Trading is a decision that considered s 31 of the Act. After considering the definition of "neighbourhood" in the Macquarie Online Dictionary and the object of the Act, it was held with reference to Armstrong v Edgecock and Morgan v Goodall that: In light of the meaning of the words within the context of the objects of the Liquor Act, I am satisfied that 'neighbourhood' should be defined as a district or locality by reference to its inhabitants. This follows the reasoning in Armstrong v Edgecock (1984) 2 NSWLR 536 at 541 that: 'the search for the neighbourhood of the premises will require a finding of the community in which the premises are to be found.' (see also Morgan v Goodall (1985) 2 NSWLR 655) … In light of these decisions, I find that in determining the neighbourhood of the premises, I should have regard to transport facilities, pattern of movement of those living close to the premises, and the existence of institutions which make a locality, such as schools, churches and clubs, as well as a consideration of topographical and geographical features. [The Respondent] has proposed the following geographical location as being the relevant neighbourhood, namely that part of Lidcombe bounded by Olympic Drive, East Street (which borders Rookwood cemetery), Keating and Child Streets and Victoria Street. An acceptance of this would require a finding, under the interpretation set out in Armstrong v Edgecock that this geographical location is capable of sustaining a community. The photographs provided by the respondent point out those premises such as schools and churches and clubs and childcare and aged-care centres as evidence that this proposed area is capable of sustaining a community.
To the extent that Leal SM decided that the "neighbourhood of the premises" should be defined as a district or locality by reference to its inhabitants and a finding of community in that proceeding based upon the evidence relied upon in that case, I agree. However, to the extent that such is a finding that a neighbourhood will always be defined by reference to its inhabitants and a finding of community, this is incorrect for the reasons below.
Firstly, the word "neighbourhood" is intentionally vague and flexible as oft observed in the authorities albeit in the context of the Act's predecessors. This flexibility allows the decision maker the ability to consider a variety of factors with varying weight to accommodate the individual circumstances. Those individual circumstances may require a consideration of a "neighbourhood" without a community as identified in Armstrong v Edgecock with reference to the City of Sydney. In this respect, Armstrong v Edgecock is misquoted in MJ Trading with the qualifying words removed and rather the Court of Appeal stated: … in many cases, the search for the neighbourhood of the premises will require a finding of community, in which the premises are to be found. This approach would not be of any assistance in the centre of the City of Sydney where there is no community, … but in the suburbs and towns of New South Wales may be of real assistance [Emphasis added]
In referring to "in many cases", it is self-evident that the Court of Appeal was identifying that such a test would not apply to all cases and even then, such a characterisation "may" be of real assistance leaving open the possibility that even in those circumstances, such a finding may not be helpful.
Nor do I accept that a finding of a community necessitates a finding, under the interpretation set out in Armstrong v Edgecock that the geographical location can sustain a community. Armstrong v Edgecock is authority for the proposition that the neighbourhood of the premises cannot increase or decrease by reason of trading practices. Such a principle acknowledges that a premises' customer base may come from within the neighbourhood of the premise or outside of it. Inherent in that principle is that people can travel outside of their neighbourhoods to use facilities and acquire goods and services (which was expressly acknowledged in the terms of s29(1)(e) of the Liquor Act 1912 (NSW) as amended by the Liquor (Amending) Act 1981 (NSW)). The example given by the Court of Appeal was the David Jones department store in the city in that people travel from outside of the city and sometimes great distances to acquire its goods and services. It is not correct that unless the community can sustain itself by way of facilities and services from within the purported "neighbourhood" that it is then and only then that it falls within the meaning. To find otherwise would mean that Queen's Square is part of all New South Welsh neighbourhoods assuming it is uncontroversial that access to the justice system and superior Courts is necessary to sustain a community. This cannot be correct.
In this respect, I also accept the Applicant's submission that if one defines "neighbourhood" by reference to an abundance of amenities, it will most likely capture the local market of country towns (including other packaged liquor stores) and the provision could never be enlivened and would be meaningless. This also supports that this interpretation is wrong.
This reasoning does not mean that the facilities, goods and services available in an area are irrelevant. As identified in Armstrong v Edgecock, transport facilities, pattern of movement of those living reasonably close to the premises and the existence of institutions which knit people in their common activities may be relevant as is topographical and geographical features, and residential aggregations. However, it raises the bar too high to describe the principal as one which requires proof that the "neighbourhood" as defined can sustain itself without recourse to facilities outside of its borders.

The Question of Neighbourhood

In consideration of these principles, I make the following findings in respect to the Question of Neighbourhood.
For the reasons above, I reject the Respondent's submission that a "neighbourhood" for the purposes of s 31 of the Act must contain all facilities and services to sustain that area. As such, I reject that the area must include the main Corowa township where that infrastructure and services are present such as supermarkets and shops, post office, banks, restaurants and bars etc. I accept the evidence of the Respondent's expert as to people's patterns of movement which support that residents of South Corowa travel to the town centre but, for the reasons provided, I do not find that this means that South Corowa is not a neighbourhood.
For the reasons below, I accept that the "neighbourhood" of the General Store is South Corowa as identified by Mr Laycock (and initially accepted by the Respondent in considering the Licence Application). In accepting this view, however, I have not placed weight on Mr Laycock's consideration of "retail pull", rather I have considered the evidence as to residential aggregation and zoning of South Corowa and the surrounding areas, the geographical and topographical features, and the facilities available within South Corowa that support that it is a neighbourhood for the purposes of s 31 of the Act.
In this respect: 1. unlike the central area of Corowa which is zoned R1 (and contains the majority of the infrastructure such as hospital and commercial services), South Corowa is zoned in large part as R2 which encourages housing within a low-density residential environment and accommodates larger lot sizes with certain higher density dwellings prohibited in this zone. South Corowa is residential in character with large lots of 1000m2 or larger with it being a mix of residential homes as well as some land being used for primary production. 2. having considered the various aerial maps of Corowa, the difference in geographical features as between South Corowa which has large blocks of land along with services and facilities that require large amounts of space (such as the sewerage plant, the golf course and caravan park) as well as containing the majority of the woodlands area as compared with the central area of Corowa (which is more dense and contains the commercial centre) and the north west to South Corowa which is dominated by the airport and cemetery is plain. 3. topographical contours have two of the terrain high points outside of South Corowa which are around the hospital and Corowa high school precincts and in the north-western are beyond the airport creating a low point as between the north and south areas before rising again in the south along the river creating a distinctive topographical difference with most of the south being flat. 4. South Corowa contains institutions which knit people in their common activities and as well as certain services supporting the fact it is a "neighbourhood". These include: 1. multiple parks and playgrounds being Lawrence Street Playground,, Dorothy Ambrose Reserve and Lions Park); 2. sporting facilities and clubs being Corowa Horse Race Club, Corowa Golf Club and the Corowa Combat Sports Club; 3. the General Store which allows residents of South Corowa to obtain household goods without leaving South Corowa; 4. a restaurant being Marcos on Murray; 5. several motels and holiday accommodation being Greenacres Motel, Corowa Caravan Park, Murray Bank Holiday Units, Golfers Lodge Motel and Corowa Golf Club Motel; 6. a childcare centre; and 7. a primary school which is significantly named "Corowa South Public School". 1. With respect to Corowa South Public School, I accept the submission by the Applicant that its existence is evidence of a community of families (parents and students) that would live in large part within the enrolment/ catchment zone of the school which is wholly contained in South Corowa. As such, there is a community of people within South Corowa with a community interest in the Corowa South Public School. Its existence also supports that South Corowa is acknowledged by at least some as a distinct area. This supports that South Corowa is a neighbourhood.

The Question of Reasonable Availability

As I have found that the "neighbourhood of the premises" is South Corowa, the question becomes whether the take-away liquor service at the Golf Club is "reasonably available to the public" for the purposes of s31(1) of the Act.
I accept the Applicant's submissions that the take-away service at the Golf Club is not reasonably available to the public when consideration is given to the location of the service and its convenience to those who might be able to use the facility: MJ Trading at [52]. In this respect: 1. The Gold Club is located some 3km from the General Store and is at the southern extremity of the neighbourhood; 2. The Golf Club does not have any signage advertising the sale of take-away liquor and as such, the public may not be aware that it is available. Contrary to the Respondent's submission that this is irrelevant, it is relevant when one considers that the "public" for the purposes of s 31 of the Act includes not only residents but visitors. This is particularly relevant in this case given the number of motels and holiday accommodation in South Corowa indicating that the area would have visitors with no notice of the take-away service at the Gold Club; 3. The terms and conditions of entry into the Golf Club and the requirements of the Registered Clubs Act 1976 (NSW) only permit entry to certain persons and reserve the right to deny entry in certain circumstances. In this regard, liquor can only be purchased by persons entering as an "Ordinary Member" of the Golf Club or a "Guest of a Member"; and 4. The fact that the Gold Club is constructed to allow for individuals in vehicles to visit it also contributes to it not being reasonably available. In this respect, it is relatively isolated, there is an extremely long drive-up from the street and there are no footpaths outside of the Golf Club property or leading to the Golf Club from the outside of the property.
With respect to the Respondent's submissions referring to membership numbers as evidence that the restrictions and rules do not create any real difficulty for the people of Corowa given that the number of members correspond to a large number of the population of Corowa, I reject that submission. That contention submission overlooks that the test is one that requires a consideration of: 1. the "public" and not the residents of the neighbourhood and/or its surround; and 2. what is reasonably available as opposed to what is available.
For those reasons, I find that the take-away liquor service at the Golf Club is not "reasonably available to the public" for the purposes of s31(1) of the Act

Have the matters in s 48(5) of the Liquor Act been satisfied?

Section 48(5) of the Act provides that the Authority must not grant a licence, authorisation or approval unless it is satisfied, having regard to the CIS and any other matter it is made aware of, that the overall social impact of granting the licence, authorisation or approval will not be detrimental to the well-being of the local or broader community.
Having regard to the evidence before me, and for the reasons given by the Respondent in its statement of reasons to the Licence Application, I am satisfied that the application meet's the Act's requirements for procedural fairness and trading period and that liquor would be sold and supplied in a separate liquor sale are at the premises. I am also satisfied that the Community Impact meets the relevant requirements.
I am satisfied, having regard to the materials that the overall social impact of granting the licence, authorisation or approval will not be detrimental to the well-being of the local or broader community.

Orders 1. The decision the subject of this review is set aside. 2. The Applicant is to be granted a packaged liquor licence on the conditions proposed by the Respondent (and agreed to by the Applicant).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 April 2024

Gaming and Liquor Administration Regulation 2016(NSW)

Liquor Act 1912(NSW)

Liquor Act 1982(NSW)

Liquor (Amending) Act 1981(NSW)

At a glance

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Judgment (10 paragraphs)

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Legislation Cited (9)

Cases Cited (8)