Victorian Civil and Administrative Tribunal|2000-01-29|Before: Kellam J

Black Lula Evangeline & Cooke Brian v Liquor Licensing Victoria & Green Dragon Pty Ltd [2000] VCAT 459 (29 January 2000)

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

Application to review grant of packaged liquor licence - amenity - harm minimisation - Liquor Control Reform Act 1998 ss. 4, 4(a)(ii), (b), , , (1), (2), (3), (a), , (2), (2)(b), 46(4)(sub-s.), , (2), 170 - Planning & Environment Act 1987 s.57

RESPONDENT: Liquor Licensing Victoria (First Named Respondent)

2. The decision of the Director is affirmed save and except as follows:

(a) three months from the date of this order is allowed to complete the works;

(b) the licence shall include a condition as follows:-

"The Licensee shall provide for its directors and employees who are engaged in the service of liquor to undertake a `Responsible Serving of Alcohol' course by or approved by the Director within three months in respect of existing directors and employees and otherwise within two months of employment."

Mr John Larkins of Counsel for the Applicant for the Review instructed by Mahonys, Solicitors

No appearance by the First Named Respondent, Mr Brian Kearney, Director, Liquor Licensing Victoria.

Mr Lloyd Bryant of Counsel for the Second Named Respondent instructed by Eric B Hopkinson & Associates, Liquor Consultant

Mrs Lula Black and Mr Brian Cooke ("the applicants") have filed applications for review of a decision by the Director of Liquor Licensing Victoria ("the Director") to grant a packaged liquor licence to the secondnamed respondent to the review, Green Dragon Pty Ltd ("Green Dragon") the occupier and operator of the IGA Supermarket located at 114- 116 James Street, Templestowe, Victoria. Mrs Black is a director of a company which operates a licensed packaged liquor outlet nearby under the name of "Templestowe Cellars".

On 4 March 1999 Green Dragon lodged an application with Liquor Licensing Victoria for a packaged liquor licence to sell and dispose of liquor for off-premises consumption at the IGA supermarket, 114-6 James Street, Templestowe. The applicant displayed a notice in accordance with the Liquor Control Reform Act 1998 ("the Act") and objections were received from, among others, the applicants. The Director (by his delegate) wrote to Mrs Black on 16 April 1999 refusing to accept her objection pursuant to section 42(a) of the Act on the basis that:

"There is nothing in your objection to suggest that you are affected by this application s.42(a)."

By application dated 5 May 1999 Mrs Black applied to this Tribunal to have the Director's decision of 16 April 1999 to reject her objection reviewed. Prior to that application being heard, the Director by letter dated 13 May 1999, stated that there had been a "review of our procedures" and he granted Mrs Black leave to provide further and better reasons in support of her objection. After the provision by Mrs Black of further reasons the Director subsequently permitted her to attend the Panel hearing as an objector.

The Panel hearing was conducted on 21 July 1999. In accordance with s.170 of the Act, no evidence of what took place at the Panel hearing (apart from the production of the Panel members' recommendation and the reasons in support of that recommendation) is before us. On 3 August 1999 the Director conditionally granted the application for a packaged liquor licence. The applicants filed an application to review that decision in this Tribunal on 23 August 1999. An application for a stay of the decision of the Director made by the applicants was heard on 26 August 1999 and was refused.

The premises the subject of the application are located at 114-6 James Street, Templestowe. They are set back from James Street and comprise part of the IGA supermarket (which is an independent supermarket) in Templestowe Village. The weekly turnover of the supermarket is approximately $100,000. The notice of stocks held by the supermarket is approximately $300,000.

Templestowe Cellars is also situated in James Street, Templestowe. It is located approximately 100 metres directly south east of the IGA supermarket. However, the layout of Templestowe Village is such that one must travel approximately 200 metres in order to obtain access to Templestowe Cellars. In order to obtain access to Templestowe Cellars from the IGA supermarket, one must walk through the car park owned by the Body Corporate, proceed downhill in a northerly direction through the Council-owned car park, walk through the laneway which separates several buildings down to James Street and then walk up James Street hill in an easterly direction to obtain entry through the one entrance door. There is no rear door to Templestowe Cellars.

There is an area of approximately 160 square metres of the IGA supermarket now set aside for the purposes of liquor storage and sales should a licence be granted. Mr Robert Lie, a director of Green Dragon, gave evidence that it was intended that there be up to 1500 lines of liquor stock carried, being those lines available from Australian Liquor Marketers, the wholesaler with whom it is intended Green Dragon will deal.

There was unchallenged evidence before us that Templestowe Cellars is a specialist, medium-sized liquor store. It provides a large range of cask wines, beer, spirits and other packaged liquor at the front of the store. The rear section of the store is dedicated to a large and exclusive range of wines including some apparently difficult to obtain specialty wines, many of which it is submitted, are not available at other stores. Further, the evidence was that Templestowe Cellars provides an excellent and high quality service to its clients in the form of wine education, wine appreciation courses, wine tastings and wine evenings together with vineyard tours. We accept that this is so.

Mr Cooke (one of the Applicants) and Mr McDonald who are both loyal customers of Templestowe Cellars, gave evidence that it sells a range of wine which is not generally available elsewhere. It is argued that this "unique" level of service is part of the reason for the loss of amenity to community life that would be suffered if Templestowe Cellars is no longer able to provide such. We note Templestowe Cellars has a mailing list of some 1600 persons of whom approximately 1100 live outside the immediate area of its location.

The thrust of the Applicants' objections are that the grant of a packaged liquor licence to Green Dragon will cause a loss of amenity within the meaning of s.38 of the Act.

Section 38 of the Act sets out the grounds upon which a person may object to an application. Section 38(1) states:

(1) Any person may object to the grant, variation or relocation of a licence on the ground that the grant, variation or relocation would detract from or be detrimental to the amenity of the area in which the licensed premises or proposed licensed premises are situated."

"(3) None of the following is a valid reason for an objection under this section-

(a) that the business carried on under the licence would or would not be successful;

(b) that the business of another licensee or permittee (including the objector) may be adversely affected by the grant, variation or relocation;

Mr Larkins submits on behalf of the applicants for review 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. The objects of the Act as set out in s.4 are as follows:

The objects of this Act are -

(a) to contribute to minimising harm arising from the misuse and abuse of alcohol by -

(i) providing adequate controls over the supply and consumption of liquor; and

(ii) ensuring as far as practicable that the supply of liquor contributes to, and does not detract from, the amenity of community life; and

(b) to facilitate the development of a diversity of licensed facilities reflecting community expectations; and

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.)

Further, in developing this argument Mr Larkins relied upon the Parliamentary debates (Legislative Council) of 12 November 1998 where is 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 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."

Mr Larkins submits that harm minimisation is the principal purpose of the Act. He argued that the availability of liquor is a major contributor to an under-age drinking problem and that youth binge drinking is facilitated by the presence of more packaged liquor outlets which he contends make liquor more readily accessible.

Mr Larkins submits that the grounds of objection pursuant to s.38 must be read together with the broad underlying objective 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 the area in which the licensed premises are situated, would include detriment to the amenity of community life as defined in the objects section.

Mr Larkins contends that such an approach would ensure that the primary object of the Act (which is, he submits, harm minimisation) is borne in mind in determining whether or not a grant of a licence would be detrimental to the amenity of community life. Mr Larkins submits that the definition of "amenity" in a liquor context would embrace the concepts of the community wellbeing and of social interaction with liquor.

Mr Larkins argues that it is noteworthy that s.47 of the Act, which requires the Director to grant or refuse to grant a contested application after giving full consideration to the recommendation of the Panel under s.46(4) provides in subsection (2):

"(2) The Director may refuse to grant a contested application on any of the grounds set out in section 44(2) and section 44(3) applies accordingly."

Further, subsection 44(2)(b) is of particular relevance insofar as it states:

"(2) The Director may refuse to grant an uncontested application on any of the following grounds-

(i) that the granting of the application would detract from or be detrimental to the amenity of the area in which the premises to which the application relates are situated;

(ii) that the granting of the application would be conducive to or encourage the misuse or abuse of alcohol;"

Accordingly, the legislation provides a discretion, even in an uncontested case, for the Director to refuse to grant any application on the basis that it would be detrimental to the amenity of the area or that it would encourage the misuse or abuse of alcohol. This, it is argued, emphasises the importance of both harm minimisation and the amenity of the area, within the scope of the Act in determining whether or not to grant an application. Mr Larkins submits that the meaning of "amenity" should be given a wide and liberal interpretation when looked at in the context of liquor and he emphasized that "amenity" must be considered in the context of seeking to achieve harm minimisation because of the underlying importance of the primary object of the Act. He cited subsections 44(2) and (3) and the exception made pursuant to subsection 47(2) as the statutory basis for this proposition.

In his objection to the grant of a packaged liquor licence Mr Cooke sought to include within the meaning of amenity a personal element. He framed his application in terms of his right and entitlement to enjoy the particular services and facilities provided by Templestowe Cellars. He argues that his personal amenity would be adversely affected by the granting of the application because it would necessarily result in Templestowe Cellars suffering a reduction in sales of certain lines of packaged liquor which are its "bread and butter." It was submitted that this would necessarily impact negatively on the level of professionalism and service which Templestowe Cellars could afford to provide. Mr Cooke argued that this would be detrimental to his personal amenity of being able to enjoy the specialist and extensive facilities offered by Templestowe Cellars. Mr Cooke stated he believes that the amenity of the area and "my current enjoyment of it would be adversely affected if a grant of a packaged liquor licence were made to the subject premises."

Mr Cooke argued that his right to enjoy a specialist facility is firmly within the concept of "amenity" as referred to in the Act.

Accordingly, for our determination is the issue of whether the present application meets the objects of the Act in terms of harm minimisation and whether the grant of the application would detract from or be detrimental in terms of amenity.

The applicants called Dr Ann Roche, a director of the Queensland Alcohol and Drug Research and Education Centre, to give evidence on the concept of "harm minimisation" within the context of the Act. Dr Roche was involved in the review and reform of the liquor industry which preceded the introduction of the Act.

It was her evidence that the purpose of harm minimisation is to recognize that whilst there are some benefits offered by availability of liquor, there are competing consequences related to the safety and wellbeing of the members of the community. Dr Roche emphasized aspects of harm minimisation which related to the availability of packaged liquor outlets, the influence and effect which the availability of liquor has upon the price of liquor and consequently upon the consumption of liquor, particularly by young or under-aged drinkers. Dr Roche identified a current trend in Victoria of underaged binge drinking which recent research has established. Binge drinking in this context, she said, referred to circumstances whereby young people consume spirits in excessive amounts to ensure the maximum effects of liquor at the quickest rate and in a cost-effective manner. She placed particular emphasis on the problems associated with binge-style consumption of liquor by youth, youth suicide and the sense of despair and problematic adjustment to adulthood that many youths experience.

Dr Roche contrasted binge-style consumption of liquor with what she described as a more "Mediterranean-type" moderate and balanced method of consumption of liquor with meals. She believed that the granting of certain types of licenses such as those granted for street cafes can bring a certain type of amenity or "social capital" to an area, and with it a greater sense of social belonging and of "village" and "community" to a specific area.

Dr Roche gave evidence that the increased availability of liquor leads to further problems such as servers who are not adequately trained and sellers who are serving underage persons. She indicated that it is difficult to get compliance from operators where liquor forms only a small part of their business interests.

Dr Roche described the social capital or social benefits offered by Templestowe Cellars in terms of it being a family-run business (where there are no problems with inexperienced and untrained persons serving). In her view the stock is priced appropriately (in the sense that it is not heavily discounted), and it is a community facility and as such it encourages a sense of belonging. She suggested that Templestowe Cellars is embedded into the social fabric of the Templestowe Village. Dr Roche stressed the problems associated with packaged liquor licenses as distinct from licences for on-premises consumption. We note in this context that the responsibility of the seller and the reporting procedures provided under the Act for packaged liquor sales are more stringent than they were in the previous legislation.

Mr Larkins submits that the IGA supermarket is a smaller supermarket than the current larger style of supermarket seen to be developed by such companies as Australian Safeway Stores Pty Ltd and Coles Ltd, and that accordingly it would be consistent with the evidence given by Dr Roche that there would be less compliance with legislation by smaller operators and not in accordance with harm minimisation principles. Our viewing of the premises the subject of this application, and the evidence indicated that it is a medium-sized supermarket. It is nevertheless fully self-contained, well-stocked, well-priced and appeared to us to be easily able to meet the weekly shopping and grocery needs of a family, except for the supply of liquor.

In cross-examination Dr Roche agreed that the intention of the Act is to impose controls on the sale and use of liquor but not to constrain it or reduce the number of outlets and that it is the type of outlet that is being established which is important.

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 under-age drinking. In our view the particular circumstances, site and premises should be taken into account and dealt with in a specific context.

There may well be, in the future, applications for packaged liquor licences in circumstances where the object of harm minimisation stands out as being poorly served by reason of particular local, social, demographic and geographic circumstances. We do not think it appropriate in the course of this decision to confine the circumstances under which the object of harm minimisation may be achieved by the refusal of a grant of a packaged liquor licence by stating examples of when such a course would be appropriate. However, some of the issues which may well be relevant in the future in relation to issues of harm minimisation were canvassed in a decision (under the previous Act) by the Liquor Licensing Commission in Decision No.611A in the matter of Rosstown Holdings decided 7 July 1998. Another example under the previous legislation may be found in Malta Pty Ltd (a decision of Commissioner Ryan dated 10 May 1983).

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 the future. We consider that the submission that the granting of the licence presently under consideration would be contrary to the object of harm minimisation as specified in the Act is not substantiated in terms of geographic positioning of the supermarket or by any other site specific evidence or evidence other than that of a general nature.

We were encouraged by Mr Larkins to accept the proposition that the definition of "amenity" has a wide and flexible meaning within the Act and we were directed towards several planning cases in this regard. In addition Mr Larkins stressed that when considering the meaning of "amenity" within the Act, the underlying object of harm minimisation must be borne in mind to adequately and comprehensively understand the full context of the word. Furthermore, it is submitted that pursuant to s.4 of the Act, "amenity" includes the amenity of the community in the wider sense of the word. In this particular regard the object of harm minimisation under the Act takes on particular significance in relation to this application when bearing in mind the physical layout and ambience of Templestowe Village Shopping Centre.

Mr Larkins submitted that we should accept a wide and elastic concept of the meaning of "amenity" such as that found in Zerbes and Another v City of Doncaster and Templestowe and Ors (1984) (Victorian Planning Appeals Board - Mr S Morris, senior member, 12 Australian Planning Appeal Decisions), to be the correct approach. It is submitted by both Mr Larkins and Mr Bryant that assistance can be gained to determine the meaning of the words "amenity of the area" and "amenity of community life" by reference to authorities relating to the interpretation of expressions such as "amenity of the area" as contained in the Planning and Environment Act. Traditionally, the meaning of the word "amenity" in relation to liquor cases had been found to be more restrictive than that applied in planning cases. There are no authoritative decisions as to the meaning of "amenity" within the meaning of the present Act. Under the previous legislation, in a discussion of "amenity", the learned text, Bourkes Liquor Laws Victoria, fifth edition, Butterworths (at 1020.20) page 237.1 referring to a number of sections of the Act and cases states that the term "amenity" is not capable of precise evaluation. The learned author concludes:-

(amenity) "may not only be concerned with physical surroundings. Likewise, `amenity' may relate to the future as well as the present. Some aspects of amenity may be practical and tangible such as traffic generation, noise, nuisance, appearance and even the way of life of the neighbourhood. Other concepts may be more elusive such as the standard or class of the neighbourhood and the reasonable expectations of a neighbourhood. The concept does not admit of a tidy `objective or subjective' classification."

Sections 38 and 44 of the Act refer to "amenity of the area" whereas s.4 which provides the underlying considerations to take into account, refers to "the amenity of community life".

The applicants in their application for review of the Director's decision submit that the following factors should have been taken into account by him in relation to the issue of amenity.

(a) physical circumstances of the layout of the shopping centre;

(d) loss of amenity to the "residents of Templestowe" and the customers of the nearby Templestowe Cellars;

(e) the likelihood that the granting would be conducive to or encourage the misuse and abuse of alcohol;

(f) control over the supply and consumption of liquor from and in the vicinity of the premises and the likelihood of detraction from community life.

As we have said, the Act is not specific nor precise in relation to the definition of the words "amenity of the area" as used in s.38 nor "amenity of community life" as used in s.4(a)(ii) nor "community expectations" as used in s.4(b) of the Act. Section 16 of the Act does however refer to the Planning and Environment Act 1987 and requires that the use of the premises as licensed premises is not to contravene the planning scheme.

The Oxford English Dictionary, 2nd edition 1989 includes a number of definitions of amenity including:

"pleasant, quality of being pleasant or agreeable - of places, their situation, aspect and climate."

Mr Larkins agreed with the interpretation of the word "amenity" put forward by Mr Bryant except that he submits that it has a wider definition. The parties each submit that the concept of "the amenity of the area" would primarily include matters which affect the senses in the context of general observation. Each submits that amenity might also include matters which are threatening or intrusive to or in an area. An example cited was "a general sense of discomfort or disquiet based on a reasonable perception of the effect of the presence of, for example, a brothel or funeral parlour in a residential area."

Section 38 of the Act entitles a person to object to the granting of a licence if the grant would "detract from or be detrimental to the amenity of the area". We conclude that this is in the nature of an objective test and does not refer to the effect the granting of the licence would have on the individual objector unless it also affects the amenity of the area. This test is distinct from the test relating to objections under s.57 of the Planning and Environment Act 1987 which section entitles any person who may be affected by the granting of a permit to object. The grounds required to be established pursuant to s.38 of the Act are that it would detract from or be detrimental to the amenity of the area itself, and not of an individual, unless we were to find that the personal amenity of an individual objector was also included in the amenity of the area.

We were referred to several cases in respect of the meaning of the words "amenity of the area" and generally the meaning of the word "amenity".

Zerbes' case (referred to above) at page 201 was referred to by both parties as being a comprehensive exposition of the definition of the meaning of the word "amenity" in planning cases. It was submitted we should adopt this interpretation as being applicable to liquor cases. This case concerned the Local Planning Authority's refusal to permit a 13-storey high rise block of flats on land abutting a major arterial road and in a residential zone. The presiding member Mr Morris (as he then was) said at p.214:

"Amenity is an elusive but invaluable concept in town planning. The amenity of a neighbourhood is a complex of many attributes. It goes much further than mere "pleasantness" and "agreeableness". In town planning terms it embraces all the features, benefits and advantages inherent in the environment in question. (see Lobb v City of Waverley (1967) 14 L.G.R.A. 193 at 196.) In the present case the board believes the best way to analyse the effect of the proposed development on residential amenity is to consider the various possible threats to that amenity: namely overlooking, visual intrusion, interference to television reception, noise, overshadowing, wind turbulence and depreciation of property values."

Mr Morris decided (at page 215) in relation to the submission made before him that the residents of the neighbourhood, within reasonable limits, should be the principal arbiters of the amenity of that neighbourhood, but that it is the Board itself which must make the assessment of the existing amenity. He found that the task could not be delegated to a group of persons nor could the Board simply accept what the residents of the neighbourhood said without giving the matter independent consideration.

This of course does not mean that the individual's perceptions of the effect that a proposal would be likely to have on the amenity of a neighbourhood should not be taken into account in evaluating the effect that it might have on the amenity of an area. This is consistent with the approach adopted by Ormiston J (as he then was) in City of Camberwell v Cherry Nicholson (Supreme Court of Victoria, unreported, 2 December 1988) where he said at page 26:

"I add that nothing in Broad's case, to which I drew counsel's attention, nor in any other of the plethora of cases on amenity which were presented to me in the form of a folder, suggested any different conclusion."

Indeed in Broad v Brisbane City Council (1986) 2 Qld.R. 317 (upon which case heavy reliance was placed by the applicants before us) it is clear that Thomas J saw that the relevant individual's perceptions of amenity had to be evaluated in the course of ascertaining what the effect of a proposal was on the amenity of the neighbourhood (at p.319). Likewise, de Jersey J accepted that a resident's subjective perception of his locality could be taken into account (at p.326) and indicated the weight which these perceptions might be given by observing at p.325:-

"In my opinion, such a subjective view need not necessarily be disregarded. Very often, of course, the evidence of such a view would be accorded little if any weight. In forming his own view of the likely effect of a proposed development on the amenity of an area, a judge would I think ordinarily prefer views from residents which find justification in specific, concrete likely effects on the proposed development.

But as I have said, I would not exclude evidence of more subjectively based views as being necessarily irrelevant, although in the end a judge may well accord them little weight."

We find this consistent with the statements made by Mr Morris in Zerbes case.

The second applicant, Mr Cooke, gave evidence before us to the effect that he perceived his personal amenity was being served by Templestowe Cellars which provided wine tastings and offered an extensive range of wines together with a comprehensive choice of education courses. His objection, in effect, seeks to place a restriction on competition for the purpose of maintaining this specific amenity particular to wine connoisseurs. He expressed his concern that the granting of the application would detract from the broader village amenity of the Templestowe Shopping Centre. Mr Cooke gave evidence that his own personal amenity would not be met nor served should an application be granted to Green Dragon as it would mean that Templestowe Cellars would be unable to provide the comprehensive and specialist services and range of liquor and facilities which it currently provides. This would be as a consequence of its loss of revenue on "bread and butter" lines which he submits would prevent Templestowe Cellars providing such a comprehensive range of specialist fine wines.

Whilst we accept that an individual's perception of the amenity of an area is relevant and we would determine the weight to be given it according to the circumstances, we conclude that a person's preference or a choice is not within the definition of the meaning of the word "amenity". Furthermore, ss.38(2) and (3) of the Act exclude the considerations of the adequacy of supply and the commercial viability of other businesses or of the new licence holder as irrelevant considerations.

We consider that the meaning of the word "amenity" when used in the Act is a wide and flexible term but not as liberal as that used in the planning legislation. The word "amenity" clearly includes and takes into account the effect upon the senses such as the physical appearance of the premises, the convenience of accessing liquor, parking, traffic, the services provided and the beneficial aspects of liquor being available within a certain area. However, we do not accept that it goes so far as to say that one person's particular preference or specific choice to attend a particular premises and have available a larger range of specialist wines constitutes what would be defined as the "amenity of the area." Rather, it is the wider meaning of the word "amenity" which takes into account the village or community feel of the particular area and the particular characteristics offered by the proposed application and the effects they would have on the particular area in question which are relevant.

The meaning of "amenity of community life" is not as wide reaching as the interpretation submitted by Mr Cooke. Mr Cooke gave evidence about his own personal amenity or personal preference for attending specific premises because they offered particular services which he found to be both convenient, desirable and which met all his criteria and needs as a wine connoisseur. However, it is the exact nature of the facility available and the range of services and benefits that it offers to the public which are relevant when considered in the context of the general surrounding area and of the amenity of the community within that area.

Mr Larkins submits that if the supermarket operated by Green Dragon were to become licensed it would lead to a reduction in turnover in Templestowe Cellars by approximately 15-20% including a reduction in the number and quantity of "bread and butter" liquor lines sold by it. The argument put was that this would necessarily decrease the range of fine wines which Templestowe Cellars could make available to the public as its revenue would not allow it to keep such a wide range available in stock.

Regard should be had to s.38(3) of the Act which states that in determining whether to grant a licence the Director or the Panel must exclude an objection that the business of a licensee may be adversely affected by the granting of the licence or that there is insufficient need or demand to justify the grant. Although this submission was couched in terms of affecting the "amenity" of the area and the personal amenity of Mr Cooke, we do not accept that a reduction of the revenue generated by Templestowe Cellars is a relevant or permissible ground of objection under the Act. We find we are precluded from taking into account the financial and economic effects that the granting of a licence to the IGA supermarket would have upon Templestowe Cellars in terms of a reduction in its sales revenue from the reduced sale of "bread and butter" lines. The commercial offerings of competitors are excluded from consideration by s.38. Furthermore we are not satisfied that any such consequence (speculative as it may be) could in the circumstances of this case detract from the amenity of the area.

We turn now to other issues of more general amenity.

A report from Peter McNab of Peter McNab & Associates Pty Ltd, was tendered and was supplemented by the oral evidence of Mr McNab whereby he addressed issues of amenity he considered relevant for consideration when addressing the application.

Mr McNab gave evidence that the supermarket was the anchor tenant of Templestowe Village and that he has been involved in the preparation of the Templestowe Village Master Plan and Business Strategy Report prepared by Tract Consultants Pty Ltd in March 1996. Mr McNab states in his report:

"A key aim of the physical and business development changes was to improve the amenity of the centre by encouraging pedestrian movements to and from the different shops and other services in the centre. The strategy was not to create "one-stop shopping" at the supermarket because it was considered to be the retail anchor of the centre. On the contrary, the objective was to encourage a stronger mixture of more specialised businesses throughout the centre offering higher standards of presentation, service and marketing, with better pedestrian movement between these different businesses.

The amenity and vitality of Templestowe Village will be jeopardized if the packaged liquor facility is permitted to establish in the IGA supermarket. Because many customers are lazy, there will be more one-stop purchases of groceries and liquor supplies at the supermarket. The current customer movement patterns between the IGA supermarket and Templestowe Cellars to meet grocery as well as liquor needs will be significantly reduced. From my experience elsewhere, these movement patterns are very important to the amenity and character of a strip shopping centre".

"The proposed addition of a packaged liquor facility to the supermarket, with the expected flow-on effects of reducing pedestrian movement to, and scaling down business patronage of, other parts of Templestowe Village, may undermine the value of these assets. This will have a detrimental effect on the desired amenity of the shopping centre, and is spelled out in the Council's approved plans for Templestowe Village."

Mr McNab gave evidence that the supermarket comprises approximately 1800 square metres of floor space and that it is similar in size to the Safeway supermarket in middle Camberwell. He indicated that it ought to be trading at a revenue level of about two-thirds higher than it currently is. Our viewing of the premises indicated that it was slightly smaller in size than the middle Camberwell supermarket and is set in quite a different location. The IGA supermarket is set back from a minor road whereas the middle Camberwell premises are situated on Riversdale Road where the strip shopping is divided by the two sides of Riversdale Road in the heart of middle Camberwell.

We found that the presentation of the Templestowe IGA supermarket is satisfactory and we take into account the fact that the business had been in liquidation prior to the current owners assuming ownership. We take cognisance of the fact that the trading figures have improved significantly since the present proprietors have assumed the ownership and control of the supermarket and note the evidence of several witnesses obtained called by the applicant that the supermarket has been improved significantly in recent times (ie Mr. Cooke, Mr. Hood, Mrs. Cooke & Mrs. Black.).

The approved strategy which was outlined in the Tract Consultants Pty Ltd 1996 report states:

"It is recommended over the period of 10 years that Council provide policy support to redevelopment and expansion of the supermarket. The supermarket is a feature retail store in the Centre and allowing expansion will strengthen its `anchor' role.

This strategy recommends as a first priority consolidation of the retail function within Templestowe Village to reinforce its Neighbourhood Centre and convenience shopping role."

"What was envisaged in the redevelopment and expansion was an extension in the range of grocery and other household product lines, and a redesign in the store's presentation to fit in with modern supermarket formats and to service the store's upmarket catchment area more effectively."

Mr McNab conceded under cross-examination that it was not intended for example that the supermarket should not sell bread merely because there were several hot bread shops located within the Templestowe Village shopping centre.

There is a degree of difficulty with the access from the IGA supermarket to Templestowe Cellars liquor facility. It involves pedestrian movement downhill on a slope through the Body Corporate owned car park, progression through the Council car park and down a narrow laneway and a right-hand turn into James Street. From James Street one must go up the hill prior to obtaining access through the one entry and exit point to the store. In our view the submission of Mr Larkins that shoppers who use the supermarket and who wish to purchase liquor should be required to attend Templestowe Cellars to do so is a physical restriction on amenity of some consequence.

Mr McNab stated further that the IGA supermarket serves only as a "top-up facility" for local customers rather than a regular weekly shopping destination and that there are better alternatives nearby at Macedon Square, The Pines, Bulleen Plaza and Doncaster Shopping Town. Whilst we acknowledge that there are larger and more attractive facilities located nearby, we are satisfied that the IGA supermarket is more than a "top-up facility" or convenience store and that it could easily cater for the average weekly grocery needs of a family. We find the presentation to be adequate. This view is supported by the report prepared by Mr Andrew Cook of Mitchell McCotter, a senior associate at Environmental Resources Management Australia Pty Ltd, and a qualified town planner. (Exhibit "2")

Mr Cook recognized that there are several BYO and licensed restaurants in the immediate area including Carluccis, Sammys, Eastern Court and Spectators. Mr Cook supported the proposed development of a packaged liquor outlet at the IGA supermarket and stated in his Report:

"In my opinion, the proposed bottle shop facility will provide convenience and choice for local shoppers wishing to purchase packaged liquor. It is common for bottle shop facilities to be located as part of a supermarket operation. To some extent this recognizes that certain alcohol purchases are now part of the weekly shopping trip.

In addition, the proposed bottle shop will provide competition for the existing licensed bottle shop within the shopping centre. This includes competition relating to price, shopper amenity and customer service. Competition of this nature will certainly be of great benefit to the consumer.

I have visited Templestowe Cellars and note that this facility has a strong emphasis on wine sales. This is a market niche which it has successfully established and continues to serve. It is an example of how similar facilities can be differentiated from each other to ensure they service an identified customer demand."

"The objectors have sought to argue that the proposed bottle shop will have a detrimental impact on the amenity of the area. What constitutes the amenity of the area is wide ranging and may incorporate issues such as visual appearance, car parking, traffic, noise impact etc."

Mr Cook submits that the impact on traffic congestion and car parking would be minimal as the liquor outlet is to be placed within the existing supermarket space rather than as a redevelopment or enlargement. Thus the existing carpark should be no more congested than it is already. The body corporate owns 93 car parks for which the supermarket contributes 70%. There are 51 Council-owned car parking spaces including those located on the roof top car park in Templestowe Village.

Mr Cook concludes that the amenity of the area will be enhanced and improved by the addition of a packaged liquor facility at the supermarket which offers customers a choice of facility and range and which offers competition to Templestowe Cellars, which is currently the only liquor facility within the Templestowe Village. Mr. Cook concludes in his report that to grant a packaged liquor licence to the supermarket will not detrimentally affect the amenity of the Templestowe Village shopping centre.

Mr Larkins submits that the encouragement of pedestrian movement within Templestowe Village Shopping Centre will be decreased by the introduction of a packaged liquor facility at the supermarket. Mr Cook pointed out that the geographic layout and the natural lie of the land was a disincentive to pedestrian movement anyway because of the difficulty with obtaining access to Templestowe Cellars after purchasing groceries. We adopt these sentiments. We find that pedestrian movement within Templestowe Village will continue in a limited way in any event as users of the supermarket will still need to obtain facilities available at, for example, the newsagents, the hot bread shop and other shops within the complex. We find that Templestowe Village is a shopping village which attempts to encourage pedestrian mobility by its very layout with separate shops set out around the carparking areas but that the natural lie of the land does not facilitate such pedestrian access and mobility. Consequently pedestrian movement will not be significant.

We find that the definition of "amenity" within the Act extends to such things as the physical layout and appearance of the area but we doubt whether such matters as availability of a range of products at different prices, convenience such as that offered by "one-stop shopping" and the right to enjoy a variety of choice are matters of amenity as they are commercial offerings by retailers who are at liberty to alter them according to commercial considerations.

We find that the concept of "amenity" does not extend to the concept of protectionism and that the amenity of the area does not mean that a competitor of an entirely different character is precluded from obtaining a packaged liquor licence on the basis of the amenity of the area merely because the trading figures of an existing business would be reduced. Whilst we recognise this is not the way that the argument is put, we consider the evidence as to the economic effect upon Templestowe Cellars to be an inadmissible ground of objection under s.38 of the Act. Also, the applicant for review did not prove that the decrease in services would occur and there is always the likelihood that increased competition might prompt the applicant to retain and improve these services.

We find there is an expectation in Victoria that groceries and liquor will be available under the one roof and rely on the long line of cases before the Liquor Licensing Commission which refer to the convenience of "one-stop shopping". Indeed it is an expectation of the 1990's that many supermarkets will be licensed. (Bedelis v Liquor Control Commission (1974) VR p.609.)

At the Panel hearing the Panel Chairman, Mr James Guest found on the evidence:

"I found no sufficient evidence to conclude that (assuming that a valid amenity ground had been raised at all) that the amenity either of the near or wider neighbourhood would be adversely affected on balance by the outcome of the two businesses competing as from time to time may seem best for them.

Accordingly, I recommend that the licence be granted as sought."

The Director (by his delegate Mr. T. Moss) when providing reasons for the decision stated:

"The desire of an individual member of the public to ensure ongoing provision of a preferred specific retail's services, could not be properly characterized as being directly relevant to maintaining the amenity of the area. Furthermore Mr Cooke's reference to Templestowe Cellars as adequately serving the area must be excluded from consideration. Section 38(3)(c) precludes insufficient need or demand to justify the grant from being a valid reason for an objection."

We adopt these sentiments. We find that the preference of an individual to shop at a specific venue and to avail himself of a particular specialized service cannot properly be characterized as "the amenity of the area" or the "amenity of community life" within the meaning of the Act. We find that there would be nothing detrimental to the amenity of the area nor to the amenity of community life by granting the application for a packaged liquor licence.

We conclude that granting the application by Green Dragon for a packaged liquor licence will increase the range and diversity of facilities available at the IGA supermarket and within the area and that in accordance with the object of harm minimisation, the directors of the family company will be trained to ensure as far as possible that alcohol is served and sold in a responsible manner. Indeed, we have imposed a condition on the licence to ensure that all directors and employees are trained in Responsible Service of Alcohol Courses.

We have considered all of the evidence in this Review, heard the evidence of the parties, conducted a view of the premises and have given consideration to the recommendation of the Panel member and to the decision of the Director of Liquor Licensing Victoria. It is our decision to dismiss the review and to affirm the decision of the Director in part in accordance with our Order dated 25 November, 1999.

Control Reform Act 1998

Environment Act 1987

Black Lula Evangeline & Cooke Brian v Liquor Licensing Victoria & Green Dragon Pty Ltd [2000] VCAT 459

At a glance

Court

Decision date

Before

Source

Judgment (129 paragraphs)

Black Lula Evangeline & Cooke Brian v Liquor Licensing Victoria & Green Dragon Pty Ltd [2000] VCAT 459 (29 January 2000)

Parties

Legislation Cited (2)