Avery v Director of Liquor Licensing Victoria [2001] VCAT 2455

Victorian Civil and Administrative Tribunal|2001-04-20|Before: Mr J

The Applicant made three statements. The first of these statements, dated 11 September 2000, deals primarily with the issue of the adequacy of the display notice. The Applicant said that the display notice was inadequate in that it was not conspicuously displayed, did not refer to the proposed hours of trading, and would have been affected by the closure of the Jackson Street entrance to the shopping centre for a time during the display period.

In his second statement, dated 25 September 2000, the Applicant said that he made regular visits to the Toorak Village Shopping Centre during May, June and July 2000, and that he noticed plants located on the public walkway in front of the window close to the entrance of the Safeway nursery shop, including two English box hedge style plants which were located on either side of the entrance to the shop. He said the two plants were approximately 5 feet in height and 10 inches in diameter. He said he was concerned that the plants may have obscured the public's view of the notice. He was also concerned that the notice was only displayed in one location.

In addition, the Applicant expressed his concern that the high visibility of the Safeway liquor store to children using the arcade to travel to and from school to Toorak Road and the heavy use of advertising in the windows of the store would have a potentially unfortunate impact on the welfare of young students at Glamorgan. He said that the grant of the application was contrary to the objects of the Act and constituted an intrusive and unnecessary imposition on the environment of a local shopping village.

The Applicant said that since the opening of the Safeway liquor store, the Phillip Murphy liquor store, which backs on to the Jackson Street carpark, had introduced more aggressive and intrusive advertising, where previously its windows had been simply decorated with wine labels. He said that the signage for the Safeway liquor store was particularly intrusive, with one large sign advertising "Liquor" directly facing the Glamorgan campus, on the Jackson Street side of the shopping centre building.

The Applicant conceded in cross-examination that he did not have to move any plants in order to read the notice, and that the notice was not obscured on the night that he first noticed it. He agreed that he had not raised the issue of obstruction in his first letter of objection dated 22 June 2000, but said he did not recall whether he was simply waiting to register that issue in his second letter.

Mrs Clements, the Principal of the Glamorgan Campus of Geelong Grammar School since 1 January 2001, said she had discussed the Safeway liquor store application with the former Principal of Glamorgan, the Glamorgan school council and some staff members. She said that the school has over 400 students aged up to 14 years, 62% male and 38% female. She said the Glamorgan Campus has a close relationship with the local community by virtue of the close physical proximity to Toorak Village and the culture of the parent group who regularly access its resources.

Mrs Clements described the school's recently updated drug and alcohol educational programs which focus on harm reduction through education. These programs commence in Grade 5 of primary school and aim to foster moderation and low risk drinking practices in the students at an appropriate age. She said that the presence near the school of advertising which glamorises and encourages liquor use is not consistent with the school's policy and program, nor with the government's policy on tobacco use. She said such advertising was likely to send mixed messages to the students, and that the increased availability of alcohol through the Safeway liquor store detracts from the message of moderation and low risk use which the school's programs attempt to project to the students.

Mrs Clements said that large numbers of her students walk past and around the Safeway liquor store when leaving school for the main part of the village, and that their first image upon entering the arcade from Jackson Street is of the bottle shop displaying large cut-price liquor advertisements. The students then traverse a narrow passageway of less than two metres in width in order to pass the liquor outlet into other sections of the complex. She said that many of her students frequent the café inside the arcade with their parents, and would be directly confronted with the advertising from the Safeway liquor store which was inconsistent with the message of moderation fostered by the school.

Mrs Clements said that "bombarding young people with messages to buy, buy, buy alcohol and providing them with increasing opportunities to do so at an ever more affordable prices seriously undermines the efforts and progress we have made within the school community to address problems with alcohol and young people". She said there ought not to be a liquor outlet "almost at the door step of the local village school".

Mrs Clements said she would prefer it if packaged liquor was not available at all in Toorak village, but certainly not directly opposite her school. She said that she did not have a concern about the possibility of direct sales of alcohol from the Safeway liquor store to her students, but was primarily concerned with the aggressive promotion of alcohol at the store and the potential impact on her students. She said that a school rule prohibiting the students from going past the Safeway liquor store could simply make the store, and liquor, more attractive to her students.

Dr Court, a Physician with expertise in adolescent health who is the Senior Medical Officer at the Geelong Grammar School, gave evidence concerning the problems of drug and alcohol abuse among children and young people. Dr Court said he has designed and currently administers programmes at several schools to assist students to abstain from drug use, which use educational and counselling strategies to help young people who have problems with the abuse of alcohol and drugs. Dr Court said the research on school aged children indicates that alcohol abuse may commence in the late primary school years. This clearly implies the ability to obtain alcohol, often from older siblings.

Dr Court said that Glamorgan has an active drug and alcohol education programme which starts in the middle primary school years. The programme assists students to consider the risks and benefits of moderate alcohol consumption in adult life, and the harmful effects of excess use at any age. He said this programme is consistent with the concept of harm minimisation. Dr Court said that children are vulnerable to the influence of advertising and glamorising of alcohol and that there is a risk that the promotion of packaged drinks which are clearly attractive to them will seem at odds which what they are learning at school. He said there seemed to be a particular disadvantage for Glamorgan students in being confronted with such promotion immediately upon leaving the school grounds. On this basis, Dr Court said he supported the objection against the grant of the relocation application.

In cross-examination, Dr Court said he believed that the presence of two liquor outlets in Toorak village, coupled with the aggressive advertising of liquor, and the fact that many students passed the Safeway liquor store on their way to Toorak Road, tended to promote the drinking of liquor, to the detriment of students of the school.

Dr Roche is Professor and Director of the National Centre for Education and Training on Addiction at Flinders University of South Australia. She provided a report dated February 2001 in which she addressed the health and social implications of the grant of the licence sought by the Applicant.

In her report, Dr Roche said that "harm minimisation" is a concept which has been central to the National Drug Strategic Plan ( 1993-1997) which guided the development and implementation of alcohol and drug policies across Australia through the 1990's. The concept was defined as an approach that aims to reduce the adverse health, social and economic consequences of alcohol and other drugs by minimising or limiting the harms and hazards of drug use for both the community and the individual without necessarily eliminating use. Dr Roche said that the approach includes preventing anticipated harm and reducing actual harm.

Dr Roche said that, in line with this approach, each policy or program is to be assessed in terms of its expected impact on society. A policy or program should be rejected if it is expected to increase aggregate harm to society.

Dr Roche said at page 6 of her report that the question to be asked in relation to the application in the instant case is "whether there is sufficient evidence to indicate that the additional liquor licence under scrutiny will either increase or decrease aggregate harm to the community, and to particularly vulnerable members of that community ie the young".

Dr Roche noted (at page 4) the recent trend in Australian jurisdictions towards deregulation, easing restrictions on hours and encouraging diversity in services and facilities selling alcohol. She said:

"For many, the sale and supply of alcohol is purely a matter of economic and market forces and the product is seen as one which should be dealt with like any other commercial commodity. For others, the safety and availability of alcohol has wider implications and involves issues of health, safety, and wellbeing of individuals and communities. The current challenge is to find an equitable and reasonable balance between these differing perspectives".

In relation to the current application, Dr Roche said there was, from a harm minimisation perspective, the "potentially hazardous combination" of :

The presence of youth of a vulnerable age;
- Ready availability of and access to alcohol products; and
- The probable daily confrontation with such alcohol products promoted with competitive discount pricing.

Dr Roche said that survey research carried out in 1998 indicated that people aged below 25 years had the riskiest drinking patterns, drank above guideline levels, and at a level posing a risk of short-term harm. In addition, research indicates that in 1996 growing numbers of teenagers under 18 years of age were drinking, and drinking at hazardous levels. A study published in December 2000 concluded that hazardous drinking levels, as well as the average number of drinks consumed by young teenage alcohol users, were as high or higher in 1996 than in any survey since 1984 (page 10).

In her report, Dr Roche said that recent research in the United States confirmed the ease with which underage people can buy alcohol, and that off-licence, winemarkets and supermarkets were the principal sources of alcohol supply for youth aged 14-17 years. In Australian studies, up to 21% of underage males and 12% of underage females purchased alcohol from bottle shops in 1996, which represented a marked increase over the same indicators in 1993. The most common source of youth-purchased alcohol, apart from family and friend was found in 1996 to be bottle shops and pubs.

Dr Roche said the concern about ease of availability was one of the factors contributing to the recent decision in 1998 of the Victorian government not to extend liquor licences to milk bars, convenience stores and mixed business in most cases (other than in special cases relating to small regional communities).
Dr Roche said that the most important harms likely to be incurred by young people as a result of alcohol use are injuries and violence. There is also a serious risk of overdose due to the smaller metabolism of the underage drinker.

Dr Roche said the loosening of controls on the availability of alcohol followed a period from 1970 to 1990 during which mean alcohol consumption in Australia dropped substantially. However, during that same period, the pattern of youth consumption of alcohol has been one of growth rather than decline.
Dr Roche said that recent research had demonstrated that the "availability theory" of alcohol consumption was an unhelpful epidemiological descriptor and that it had been overtaken in recent years by greater attention to the importance of patterns of consumption as a mediating factor for alcohol and harm.

Dr Roche said that today's alcohol policy tended to focus on a number of functional areas of constraint, including:
- Densities of alcohol outlets;
- Provision of alcohol to underage drinkers;
- Effects of alcohol pricing.

Dr Roche said that the research on density suggests that limits on outlet density can be an effective means of controlling alcohol problems, and an effective tool for the reduction of alcohol related harm. At page 24 of her report, she concluded:

"Further, in an Act where need has been removed as a ground of objection, it becomes all the more important that the relevance of harm minimisation to outlet density be articulated and applied in a manner which is relevant to whether a particular application for a packaged liquor licence be granted or refused, i.e., harm minimisation principles can and should have application on a site specific basis, particularly in an application such as the one before the Tribunal."

Dr Roche said that price remained one of the consistent measures and predictors of alcohol consumption in general terms. Dr Roche concluded at page 26:

"Decisions in regard to alcohol availability have been strongly influenced by free market forces for the past decade. But, increasingly a counter position prevails as reflected in the inclusion of a harm minimisation object in the Liquor Control Reform Act 1998. This position argues for consideration of a broader range of social and community factors (and not purely economic factors) to protect vulnerable members of the community (eg the young) and to preserve social integration and connectedness.

In the present case, the village of Toorak is already well served in relation to the availability of alcohol...There is however, abundant evidence as presented above that increasing the availability of alcohol, and particularly cheaply priced alcohol, will contribute to the escalation of alcohol related problems among young people. The location of the liquor outlet in question is positioned such that it compromises the harm minimisation work that the school and local community have engaged in with regard to alcohol. On balance, it is difficult to conclude that the provision of this additional liquor licence is in the best interests of the community, and particularly of the young members of the community; nor is it consistent with the harm minimisation principles incorporated in the Liquor Control Reform Act 1998".

Mr Linke, a Planner, provided a report dated February 2001 in which he outlined the planning history of the site of the Safeway liquor store. In the report, he concluded that the use of the premises for a bottle shop is contemplated by the relevant Planning Scheme. However, he said it would be a poor planning outcome if deliveries to and from the Safeway liquor store were to occur from the Jackson Street carpark. He noted that the carpark and the walkway within the shopping complex are already adversely affected by the supermarket's trolleys spilling into pedestrian areas and adjacent parking bays.

Finally, Mr Linke noted that the removal of the loading bay which served the specialty shops of the Tok H centre, including the subject site, has led to additional inefficiencies in the use of the Jackson Street carpark and a consequential loss of amenity for shopkeepers and shoppers.

At the hearing, Mr Linke said he had no expertise in relation to harm minimisation issues. He said there was a potential for conflict between pedestrians using the walkway in front of the liquor store and the use of six-wheeled trolleys to deliver supplies to the store. He agreed that the overflow of supermarket trolleys into the walkway was an enforcement issue.

Ms Reimunde was the duty manager at the Safeway supermarket in Toorak Village from 29 May 2000 until 28 June 2000. She had an office at the rear of shop 10, the current Safeway liquor store, which was then operating as a plant shop. She said the notice was displayed at eye level in the window of Shop 10 and was clearly visible to members of the public from the public thoroughfare passing through the shopping centre. She said she was directed by the Store manager, Eva Mayer, to check the notice each morning and afternoon during the display period, and she did so. She said she had received a number of inquiries from customers asking about the opening date of the Safeway liquor store. She said she had received no complaints about the Safeway liquor store since it opened in September 2000. She said that plants did not obscure the notice in the store window, but agreed that there were 2 ficus plants at the entrance to the store. She said that the plants did not obstruct the notice.

Ms Harris was an Assistant Store Manager at the supermarket from October 1998. She said all deliveries of goods to the Supermarket and the Safeway liquor store are made via the loading dock behind the supermarket which is accessed from Jackson Street. She said that liquor stock and all other stock is distributed to the supermarket and liquor store using six-wheeled trolleys. She said that the home delivery service provided by Safeway was conducted by a courier using a station-wagon, who parks in the Jackson Street carpark. She said that she had received no complaints about the operation of the liquor store since its opening, nor any complaints about the impact of the liquor store on parking in the Jackson Street carpark. She said that it was her job to check on the safety of the carpark in Jackson Street and the environs of the supermarket, and that she frequently found smashed alcohol bottles and cans along the bench seating in Jackson Street. She said that there was security in the shopping centre complex until midnight each night, and that she was told by security that some people drink in their cars after midnight. She said that the company who managed the trolley collection process for Safeway sometimes left trolleys jutting into the public walkway in the shopping centre, and her staff were monitoring this problem.

Mr Mordech is the Assistant Store Manager at Safeway. He said it was part of his duty to ensure that the notice was visible. He said there was usually only one plant at the front of the plant shop during the period of the display of the notice, but that the plant did not obscure the notice.

Ms Jones has been the Centre Manager of the Tok H Shopping Centre since 18 December 2000. She said that she had received no complaints about the Safeway liquor store since it opened. She said management had experienced problems with patrons of the Silvers nightclub smashing windows in the centre, and with bottles and cans outside the Jackson Street entrance to the Centre on weekend mornings. She said that these problems existed prior to the opening of the Safeway liquor store. She said that security patrols the Centre each day until midnight, that their office is stationed close to the elevator on the ground floor, and that they respond to noise in the carpark and call police when necessary if there are disturbances outside the Centre. She said that aside from the path through the Centre, there were at least four passages from the Jackson Street carpark to Toorak Road.

Mr Tanner is the Executive Officer of Woolworths in charge of all liquor licence applications by Safeway in Victoria. He was charged with the relocation application which led to the opening of the Safeway liquor store at Shop 10 in the Tok H Shopping Centre. He gave evidence concerning the benefits of the liquor store for the amenity of the Tok H Centre and the surrounding area. He referred to the convenience for Safeway patrons of being able to purchase their liquor at the same time as their groceries, and at times when the other retail liquor outlet in the Village was closed. He said that Safeway is committed to the principle of harm minimisation through the responsible serving of alcohol, and that Safeway had a thorough training program for all staff involved in selling or supervising alcohol sales. Such a program addressed the issue of liquor sales to minors and secondary sales via adults to minors. Mr Tanner said that Safeway has never been convicted of an offence under liquor legislation in Victoria.

Mr Tanner said that he affixed the notice on the window of Shop 10, at slightly below his eye level. He said that Safeway had a one-price policy across Victoria and that specials advertised were set at the corporate level and applied across the State. Mr Tanner said that trolleying of liquor from the storeroom to the retail section was quite common at Safeway. Eventually, he said, liquor will be able to be paid for at the same time as groceries. He said that there was no special promotion of mixer drinks at the Toorak store to attract younger customers. He said that there were drawbacks in attempting to place liquor in a section within the supermarket itself, as there were problems with pilfering. Mr Tanner said he believed the sale of liquor was a specialist area requiring specialist training. Mr Tanner acknowledged the large signage advertising the Liquor store on Toorak Road and on the Jackson Street side of the building and said that Safeway would accede to a condition requiring modification of the signage. He said that modification of any "specials" advertising would be difficult because of its statewide nature. He said he was prepared to accede to a condition requiring that there be no advertising material on the north panel of the shop which directly faced the entrance from Jackson Street.

Mr Tanner said that there was no other feasible location for the liquor outlet at the Toorak premises. He said that the application for relocation of the licence was made because the supermarket in Geelong was not profitable overall. He said Safeway had negotiated with the owners to remove liquor and put in more space to sublet in order to offset the supermarket's losses, but that the extra space was still available. He said that it was a purely commercial decision to relocate the licence.

Mr Tanner acknowledged the problem of under-age drinking which was the focus of Dr Roche's report, but said that there was no evidence concerning where the liquor being consumed by such persons was being obtained. He said that Safeway tries to minimise any harm by training its staff about sales to minors and secondary sales via adults to minors.

Mr Grogan, a Civil Engineer with expertise in traffic engineering, provided a Traffic Engineering Assessment in relation to the Safeway liquor store. In his report he said that the use of the site as a liquor store gave rise to the same parking credit associated with the use of the site as a garden shop. He said in relation to the impact on traffic activity that there was likely to be a low number of single-purpose trips to the store, whether it was used as a garden shop or as a liquor retail outlet. He said the resulting change in total traffic activity in the vicinity of the site is "insignificant" (page 3), especially when compared with traffic movements associated with other existing uses such as Silvers Nightclub and the Safeway supermarket. Mr Grogan said that all loading requirements of the liquor store are accommodated within the existing Safeway loading dock located off Jackson Street. He said that liquor delivered in this manner was stored in the storage area of the loading dock and trolleyed to the liquor store as required.

Mr Cook, a Planner, provided a report dated March 2001 in which he examined the planning considerations relevant to the application for location of a bottle shop inside the Tok H shopping centre. He records that the site had been previously operated as a garden shop by Safeway and prior to that time had been used as a bottle shop associated with the old Tok H hotel. Mr Cook said the amenity issues include issues such as carparking, traffic, noise, visual appearance and the character of an area. He said that the amenity issues must be considered within the context of the underlying character of the area, and that the proposed bottle shop is located in an established shopping centre which generates significant levels of vehicular and pedestrian activity. Mr Cook said that he did not believe there will be any adverse amenity impact on the nearby residential areas from the bottle shop operation. He said that there were no likely negative traffic or carparking consequences from the use of the shop as a liquor store and that parking and traffic congestion at peak times is characteristic of many similar sized local shopping centres and was unlikely to be affected by the liquor store's operation. He noted the loading arrangements as appropriate, and the potential convenience to shoppers of the location of the liquor store.

In relation to the impact of the liquor store on the Glamorgan campus, Mr Cook said the mere proximity of the store to the school should not prevent the grant of the application. In support of this conclusion, he noted:

The students are under 15 years of age, well below the minimum age for the purchase of alcohol;
- The students would mostly be in school uniform and be easily identifiable by the staff of the liquor store;
- There is already a bottle shop facility in Toorak Village- Philip Murphy;
- There was previously a bottle shop in the same location, which was run by the Tok H hotel;
- Safeway provides training for staff in relation to the responsible sale of alcohol;
- The shop has video camera surveillance;
- There have been no complaints by the school in relation to the bottle shop since it commenced operation in September 2000.

Mr Cook agreed that he did not have expertise in relation to the policy of harm minimisation and that his comments on amenity were made in the context of his planning expertise.

Mr Larkins submitted that although the evidence from the Respondent's witnesses was to the effect that they knew the notice was there, it was a different matter to establish that the notice was displayed in a way as to invite public attention. He invited the Tribunal to draw an adverse inference from the failure of the Respondent to call the person who gave the instructions for display of the notice, Ms Mayer. He submitted that the giving of notice is fundamental to the integrity of the entire decision-making process, and he referred us to a number of authorities in this regard, including that of Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242.

Mr Larkins further submitted that it was significant that the evidence concerning the adequacy of the display of the notice came not from members of the public but from employees of the Respondent who were familiar with the fact that the application was being made. Mr Larkins also submitted that the public notice was not displayed in accordance with the Respondent's guidelines issued in February 1999 which required display "in a matter that invites public attention to the application, i.e., on the main street frontage of the premises in a visible position and at eye level".

Mr Larkins submitted that the application ought to be refused on this ground alone.

Mr Bryant submitted that the weight of the evidence tended to the conclusion that the notice was displayed within the terms of s.34(2) of the Act. He submitted that the Applicant's first letter of objection dated 22 June 2000 makes no reference to any obstruction of the notice, and his complaint that there was only one notice related to his experience in relation to the previous application in 1998, governed by the repealed Act and by Practice Note 23 which had subsequently been replaced by guidelines. Mr Anderson admitted he was looking for a yellow sign. Mr Bryant submitted it was significant that none of the other witnesses who said they did not see the sign gave evidence of an obstruction during the display period.

We accept the uncontradicted evidence of the Respondent's witnesses concerning the manner in which the public notice was displayed for the relevant period. Although we find that there was at least one plant which may have been located within proximity of the notice being displayed, we are unable to find that this plant obstructed the notice so as to prevent it being seen. The Respondent was under no obligation to advertise the application, as no direction in this regard was made by the Director pursuant to s.35 of the Act. It follows that we find that the notice was displayed in accordance with s.34(2) of the Act for the relevant period. Accordingly, the decision of the Director that the notice was displayed in accordance with the requirements of s.34 of the Act is affirmed.

It may be convenient to summarise the principles concerning the use to be made of an objects clause in the construction or interpretation of other provisions of an enactment.

The Objects section is a modern day variant on the use of a preamble to indicate the intended purpose of legislation: see DC Pearce and RS Geddes, Statutory Interpretation in Australia, 2nd Ed 1988, para 4.34. As with a preamble, a reference to some matter in the objects clause may make evidence of that matter admissible in court: DFC of T(NSW) v WR Moran Pty Ltd [1939] HCA 27; (1939) 61 CLR 735. On this basis, expert evidence concerning the concept of "harm minimisation" and its relationship to governmental policy relating to the regulation of the liquor industry was led by the Applicant without objection.

An expression of intention such as that contained in an objects clause will not be definitive, but recourse may be had to such provisions in case of uncertainty or ambiguity when the operation of the Act, according to its other terms, has been ascertained and applied: see Re Credit Tribunal; Ex parte General Motors Acceptance Corp, Australia [1977] HCA 34; (1977) 14 ALR 257 at 260, per Barwick CJ.

The authorities suggest that the objects clause alone will not represent the object of the legislation and that parliamentary intention is to be gleaned from the whole of the Act: see Municipal Officers' Association of Australia v Lancaster (1981) 37 ALR 559 at 579.

It is not necessary for every term of every provision of an Act to either serve or be consistent with the objects of an Act: see Pearce and Ors v Vickers and Ors (19) 130 ALR 385.

While the objects clause may assist in the interpretation of any ambiguities in the legislation, they cannot prevail over words plainly expressed: see Searle Australia v Public Interest Advocacy Centre (1992) 36 FCR 111 at 115; Ryder v Booth [1985] VicRp 86; [1985] VR 869; Victorian Public Service Board v Wright [1986] HCA 16; (1986) 160 CLR 145.

Much of the case law in Australia concerning the effect of objects clauses relates to cases under the Freedom of Information Act 1982. There are lines of cases for and against the "leaning" approach to the interpretation and application of exemption provisions in that Act : see Reasonable Snell "The Torchlight Starts to Glow a Little Brighter: Interpretation of Freedom of Information Legislation Revisited" (1995) 2 AJAL 197. However, these cases do not assist us in analysing the relationship between s.4 and s.44 of the Act.

It may be that objects clauses can provide no more than very general guidance as to how the discretion provided by an Act is to be exercised: see Re Waterford and Attorney- General's Department (No 2) 9 ALD 482 at 486-7.

In this section we considered two further grounds relied upon by the Applicant:

That the grant of the application was inconsistent with the objects section of the Act; and

That the grant detracts from and/or is detrimental to the amenity of the area to which the licence was removed.

Section 38 of the Act sets out the grounds upon which a person may object to an application.

82.It was common ground that planning decisions were an appropriate starting point for the examination as to what is comprehended by the concept of amenity. Counsel referred us to a number of authorities, including: Broad v Brisbane City Council [1986] 2 Qld. R 317; Vacuum Oil Company Pty Ltd v. Ashfield Municipal Council (1956) 2 LGRA 8, 11; Humbly v Woolhara Municipal Council (1964) 10 LGRA 56, 65; Ex parte Tooth & Co. Ltd; Re Parramatta City Council (1954) 55 SR (NSW) 282; J. Oakley v. Clark & Son Ltd [1967] NZLR 353; Zerbes and Anor v. City of Doncaster and Templestowe and Ors. (1984)(Victorian Planning Appeals Board); City of Camberwell v. Cherry Nicholson (Supreme Court of Victoria, unreported, 2 December 1988)(Ormiston J.); Black and Cooke v. Director of Liquor Licensing & Anor (VCAT, 14 February 2001, Kellam J. and Member Angell).

83.Briefly, the conclusions reached by the authorities concerning what is included in the concept of amenity may be summarised as follows:

The quality which a neighbourhood has of being pleasant or agreeable;
It is not confined to the negative factor of freedom from physical discomfort through the effects of noise and smell;
It relates also to the preservation of such characteristics as make it pleasing in appearance to a passerby, as well as to a resident;
It includes the layout which makes for a comfortable and pleasant life;
It is a wide and flexible concept which may embrace the resident's subjective perception of his or her locality;
Knowing the use to which a particular site is or may be put may affect one's perception of amenity;
It embraces pleasantness and convenience;
It includes harmony and coherence of the environment, its enjoyment for any permitted use;
It does not include a person's preference or choice for a particular premises or product;
It includes the convenience of accessing sites with particular uses, such as liquor stores, and the beneficial effects of the availability of such a product;
The wider meaning of "amenity" takes into account the village or community "feel" of the particular area, the particular characteristics of the proposed application and the effects these would have on the particular area in question.

84.Mr Larkins submitted that the meaning of "amenity" in s.38 of the Act should be read widely in light of the objects of the Act as set out in s.4 of the Act. In support of this argument, Mr Larkins referred us to the statement of the then Minister in introducing the Liquor Control Reform Bill to Parliament where it was said:

"The objects of the Act are to be amended to identify harm minimisation as the prime purpose of the Act. As such, licensing decisions will be made in that context." (page 4 Second Reading Speech of Liquor Control Reform Bill, Hansard, 10 November 1998.)

85.Mr Larkins also relied upon the Parliamentary Debates (Legislative Council) of 12 November 1998, where it was stated:

"Secondly, the government has made a significant distinction between on-premises sales and packaged liquor. I draw the House's attention to a range of literature presented to the Review Panel which focused on under-age drinking and warned the government of the dangers associated with the associated with the availability of packaged liquor and under-age drinking.

That material is outlined in one of the appendices in the Storey Review and is one reason why the government has been tough on packaged liquor licences."

86.Mr Larkins submitted that harm minimisation is the principal purpose of the Act. He submitted that the availability of liquor is a major contributing factor to the documented under-age drinking problem and that youth binge-drinking is facilitated by the presence of more packaged liquor outlets which he says make liquor more readily accessible.

Mr Larkins submitted that the grounds of objection set out in s.38 must be read together with the broad underlying objectives of the Act as set out in s.4, so that an objection under s.38 that the grant of a liquor licence would be detrimental to the amenity of any area in which the licensed premises are located, would include detriment to the amenity of community life as defined in s.4.

In effect, Mr Larkins submitted that in light of the phrase "amenity of community life" in s.4, the definition of "amenity" in the context of liquor licensing would embrace the concept of community wellbeing and was not limited to the tangible or physical aspects of amenity.

Mr Larkins also referred to s.44(2) of the Act, which sets out the grounds upon which the Director may refuse to grant an uncontested or contested application. Unlike the comparable provisions of the Liquor Control Act 1987, s.76(2)(c) which required the Commission to determine whether the grant of an application is likely to have an adverse effect on the interest of the community in the relevant area, the provisions of s.44(2)(b) of the Act give the Director a discretion to refuse an application in any case where the grant would be detrimental to the amenity of the area in which the subject premises are located or where the grant would be conducive to or encourage the misuse or abuse of alcohol.

Mr Larkins submitted that the decision to grant the licence ought to be set aside on the basis of the evidence that the grant is inconsistent with the harm minimisation objective set out in s.4 of the Act. In the alternative, Mr Larkins submitted that the grant of the licence detracts from and/or is detrimental to the amenity of the area to which it was removed. In this regard, he submitted the evidence of Dr Roche concerning the impact on students of Glamorgan in being exposed to mixed messages concerning alcohol was relevant to the issue of amenity, which would include the impact on the environment of Toorak village and the potential detrimental effect on young students of the school community. Finally, Mr Larkins submitted that the grant would be conducive to or encourage the misuse or abuse of alcohol.

Mr Larkins submitted that site specific impact of the licence had been identified by witnesses for the Applicant, as had concerns about the impact of the grant of the licence upon Glamorgan's drug education program. Alternatively, he submitted that Dr Roche's evidence provided the basis for a finding that the grant would be conducive to or encourage misuse or abuse of alcohol.

Mr Bryant submitted that harm minimisation is only one of three limbs of the objects section, and that it replaces the object of the repealed Liquor Control Act 1987 which was to respond to community interest by reference to 4 sub-headings. However, he submitted, the Act retains continuing diversity and responsible development of the industry as part of its objects. In addition, the Act allows increased hours of trading (at least 18 more hours per week) for packaged liquor licence premises compared with the repealed Act.

Mr Bryant submitted that there is but one ground of objection available to a lay objector, and that is the objection based on detriment to amenity within the terms of s.38(1) of the Act. Mr Bryant submitted that s.38 limits the field in relation to possible grounds of objection compared with the previous Act, and illustrated this by reference to the statutory bar in s.38(3)(c) to "insufficient need or demand" as a ground of objection. He submitted that the legislation prevents harm minimisation being taken into account in deciding whether to grant, transfer or relocate a licence unless it relates to amenity.

94.Mr Bryant submitted that s.4 has been interpreted by this Tribunal as requiring site specific evidence before harm minimisation can be invoked to defeat a licence application.

95.Furthermore, Mr Bryant submitted that the objectives of providing controls over the supply and consumption and that of preventing detriment to amenity are mechanisms by which the Act is intended to minimise harm arising from the misuse and abuse of alcohol, and is predicated upon misuse or abuse of alcohol being established as a relevant issue. For this reason, he submitted, s.44 allows the Director to take into account in granting a licence whether the grant would be conducive to or encourage the misuse or abuse of alcohol. Mr Bryant said this was a matter of evidence. Mr Bryant relied in this regard on the decision of this Tribunal in Black and Cooke v. Director of Liquor Licensing Victoria, particularly at p. 13, where the Tribunal stated:

"Whilst we accept Dr Roche's evidence that there is indeed a problem in the community at large with underage drinking and youth binge drinking, we do not accept that the granting of a packaged liquor licence to the IGA supermarket in Templestowe Village would encourage or actively promote the consumption of liquor by underage persons. Indeed, the Applicant is entitled to the benefit of the assumption that it will comply with the law and the requirements of holding a packaged liquor licence.

We are not prepared to assume that there will be liquor sold to or by underage persons on the premises. If that occurs in the future, no doubt the Director will take appropriate action. In our opinion the logical extension of the argument that the increased availability of liquor leads to an increase in youth drinking problems would mean that no new licences would be granted in order to minimise the harm created by youth underage drinking. In our view the particular circumstances, site and premises should be taken into account and dealt with in a specific context."

"We consider that harm minimisation as an objective of the Act cannot be relied upon in a general sense only to defeat any application for a liquor licence. If this were so it may well be arguable that few licences of any description, other than for the consumption of alcohol in cafes and restaurants should ever be granted in future."

Mr Bryant referred to Parts 6 and 8 of the Act in support of his submission that the scheme of the Act is designed to ensure that the harm minimisation objective is given effect. He submitted that whilst it might be seen as desirable by some, including Dr Roche, that misuse and abuse be prevented pro-actively by licensing decisions refusing to grant applications, this is not the object or scheme of the Act. Rather, he submitted, the Act reflects recognition by the legislature that increased availability does not result in increased consumption. For this reason, he submitted, the Act is less restrictive in relation to the availability of liquor, and more restrictive in reducing the grounds of objection to a licence application. Mr Bryant submitted that the scheme of the Act is not to prevent harm by restricting the number of licences but rather to police the operation of licences so as to contribute to the object of harm minimisation.

Mr Bryant submitted that unless it can be positively established by an objector that an Applicant is not a suitable person to hold the licence sought, or that there will be a detrimental effect on the amenity of the area, or that the grant would be conducive to or encourage the misuse or abuse of alcohol, the licence sought should be granted.

Mr Bryant submitted that it is inappropriate to interpret the Act in such as way as to invite independent inquiry into the issue of harm minimisation as part of an application for a licence.

100.In relation to amenity, Mr Bryant referred to the evidence of Ms Clague, Mr Gilels, Mr Galbally, Mr Anderson, Mrs Clements and Mr Avery. He submitted that their evidence did not establish a detriment to amenity flowing from the grant of the licence. Mr Bryant pointed to the absence of any complaints in relation to amenity since the grant of the licence and the commencement of operation of the store in September 2000 other than a complaint by the Applicant concerning the placement of a bench in the walkway, which was promptly removed.

101.We agree with and adopt the conclusions of the Tribunal in Black and Cooke v. Liquor Licensing Victoria and Anor which are set out at paragraphs 95 and 96 of these reasons for decision.

102.On the evidence before us, we are not satisfied that the general object of harm minimisation will be frustrated by the grant of the application. In broad terms, we heard two kinds of site-specific evidence. Apart from expert evidence concerning traffic and loading, the first kind of evidence (from Ms Clague, Mr Gilels, Mr Galbally, Mr Anderson, the Applicant and Mrs Clements) concerned the narrow amenity issues such as the concerns about anti-social behaviour and littering in the vicinity of Jackson Street, Wallace Street and Ross Street, as well as about traffic and congestion in the Jackson Street carpark. We are not satisfied that this evidence establishes that any of this conduct relates to the Respondent's packaged liquor outlet. We also heard brief evidence from one witness, Mr Gilels, about one alleged instance observed by one of his commercial tenants where young people were seen drinking in cars before going to the nightclub. We are unable to draw from this alleged observation any inferences about the provenance of the liquor consumed by those young people.

103.We also heard evidence of concerns which may be considered to fall within a slightly wider definition or construction of "amenity", that is, evidence concerning the impact of the Safeway liquor store on the student community at Glamorgan. This evidence came from the Applicant, Mrs Clements, Dr Court and Professor Roche. When reduced to its essence, the objection appeared to be to the signage in Jackson Street, but more particularly to the intrusive advertising faced by children from the school walking past the Safeway liquor store on their way to and from Toorak Road. It was suggested that the intrusive advertising in the windows of the store would lead to "mixed messages" for the young children at Glamorgan, and would be inconsistent with the message of the drug and alcohol education program being undertaken at the school.

104.With respect to Professor Roche and Dr Court, whilst we accept their evidence that there is a problem in the community at large with underage and youth binge drinking, we do not consider that the grant of the licence to Safeway liquor store would encourage or actively promote the consumption of liquor by underage persons. We are not prepared to assume that there would be sales of alcohol to or by underage persons on the premises. There was no evidence of any expectation or likelihood that students from the school would be likely to purchase alcohol from the liquor store. We do not accept that the grant of the application would undermine the alcohol education policy being conducted at Glamorgan. Arguably, learning to live with the presence and availability of alcohol merely reinforces the need to make sensible choices, which is the focus of the education strategy.

105.We consider that this case is very different from the factual circumstances in the case of Malta Pty Ltd ( 1 VLD 18), and we do not consider that the object of harm minimisation will be achieved by the refusal of the application. We note in this regard that there are several alternative routes from Jackson Street to Toorak Road that do not involve travel past the Safeway liquor store, and that there is another packaged liquor outlet a few doors away from the Safeway supermarket site, which has direct access to the Jackson Street carpark.

106.However, we are concerned about the large signage advertising liquor alone, which is outside the Jackson Street entrance to the Safeway supermarket and which directly faces the Glamorgan campus. Mr Tanner conceded that this signage was obtrusive and unusual in that Safeway signs usually contain a reference to liquor in the same sign advertising the supermarket, rather than in a separate sign. Mr Tanner said the company was willing to remove the liquor sign in Jackson Street. We consider this to be an appropriate course of action.

107.In relation to the final ground argued by Mr Larkins, Mr Bryant submitted that there is no evidence other than in a general sense that the sale of liquor by the Respondent would be conducive to or encourage the misuse or abuse of alcohol. Mr Bryant referred to the evidence of Mr Tanner concerning the Respondent's unblemished record in respect of compliance with its obligations under the Act, its active policy in relation to the issue of secondary sales, and the precautions taken at the point of sale. Mr Bryant submitted that the evidence of Dr Roche demonstrates that the Applicant relies for site specific evidence solely on the possible effect of the grant on the Glamorgan school. He submitted that there are at least 4 alternate routes for those pupils passing from the school gate to Toorak Road, and that many students in Victoria pass by licensed outlets on their way to and from school which may be unavoidable. He submitted that the school could introduce rules to forbid unaccompanied students from walking past the Safeway liquor store. He submitted that the presence of the liquor store must be a matter of balance between competing interests.

108.We are unable to find on the site-specific evidence before us that the sale of liquor by the Respondent would be conducive to or encourage the misuse or abuse of alcohol. The evidence before us in relation to the impact of the grant of the application, put at its highest, merely suggests the possibility as a general proposition that youth who abuse alcohol may purchase it from the Safeway liquor store, as they might from any other retail outlet. Consistent with the reasoning set out in Black and Cooke v. Liquor Licensing Victoria, such general evidence is an insufficient basis for refusing a licence application. It was not alleged that students from Glamorgan would purchase alcohol from the Safeway liquor store, and, as previously stated, we are not prepared to assume that the Safeway liquor store would sell alcohol to underage persons. In our view, there is no clear connection between the evidence concerning littering around Jackson street, urinating and vomiting by young persons, or even drinking in the carpark in Jackson Street and the operation of the Safeway liquor store by the Respondent. Indeed, in this regard, the presence of the nightclub in the Trak shopping centre, as well as the presence of the Philip Murphy retail liquor outlet, are confounding factors.

109.For the reasons outlined above, we affirm the decision of the Director that the notice of application was displayed in accordance with s.34 of the Act. We also consider that the decision to grant the application for relocation of the liquor licence was an appropriate one. However, we consider it appropriate to vary the decision granting the relocation of the licence by granting the application for relocation subject to the condition that the Respondent remove the sign in Jackson Street which refers to liquor only and that any reference to liquor in signage on Jackson Street be contained in a sign which refers to the Safeway supermarket, such references to be in letters of equal size.

Control Reform Act 1998

Information Act 1982

Avery v Director of Liquor Licensing Victoria [2001] VCAT 2455

At a glance

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Judgment (99 paragraphs)

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Legislation Cited (3)

Cases Cited (7)