Upon Woolworths Pty Ltd undertaking through its counsel, that it will not, at any time in the future, seek a licence condition and/or authorisation to the effect that it will be entitled to receive payment for liquor supplied on the licensed premises at any checkout located in the Craigieburn supermarket other than a checkout which may be located within the licensed premises as per the plans lodged with Liquor Licensing Victoria at the time the application was lodged

Mr L Bryant instructed by Mallesons Stephen Jacques

1 The Joined Party (Woolworths Limited) is a large publicly listed company that operates many supermarkets in Victoria with 170 of those supermarkets licensed to sell packaged liquor. Those supermarkets operate under the name "Safeway".

2 The applicants have applied to this Tribunal to review the decision of the respondent made 28 June 2006 to grant the Joined Party a packaged liquor licence in respect of premises known as "Safeway Supermarket" situate in the Craigieburn Plaza at the cnr of Craigieburn Road and Hanson Street, Craigieburn, Victoria (the premises) (the decision).

3 The Joined Party applied to the respondent for a packaged liquor licence on 11 January 2006 in respect of the premises. By its application the Joined Party stated -

The primary purpose of the business to be carried on in the area set aside as licensed premises is the sale by retail of liquor in sealed containers, bottles or cans for consumption off the licensed premises.

4 Subsequent to receiving the application, the respondent, as it was bound to do pursuant to the provisions of the Liquor Control Reform Act 1998 on 12 January 2006, inter alia, advised the Hume City Council of the Joined Party's application to the respondent, and its standing to lodge an objection. A similar letter was sent to the Chief Commission of Police.

5 No objection was received in relation to the grant of the licence from either the Hume City Council or the Chief Commissioner of Police.

6 However, a number of other objections were received to the grant of the licence in respect of the premises. Amongst those objectors were the applicants to these applications.

7 As a result of receipt of a number of objectors, the objections were referred to a Liquor Licensing Panel as part of a contested application to be heard by the panel.

8 The Liquor Licensing Panel was on 20 April 2006 convened by Ms Glenys Fox. The applicants and the Joined Party were represented before the Panel.

9 On 12 June 2006, the Panel member found that the grant of a licence would not detract from or be detrimental to the amenity of the area. Accordingly, she recommended that the licence be granted. It was subsequent to this, on 22 June 2006 that the respondent made the decision.

10 The premises comprising the Safeway Supermarket, part of which it is intended to contain the licensed area, is situated in a shopping centre containing approximately 40-50 specialty retail shops of many types and descriptions including eating establishments, banks, estate agents, TAB, clothing shops, Salvation Army, newsagent, cash converters, video hire, butcher, fruit shop, pharmacy, liquor store and petrol stations. It should be noted that one of the applicants to these applications, Joe Cichello, is the proprietor of a pharmacy in the shopping centre. It also contains a large car park. Evidence has been given that while the car park can be very busy, it is usually possible to find a parking space without a lot of difficulty. However, the parking area around the Safeway premises is often "parked out" but invariably a vacant parking spot can be found within approximately 100m of the subject premises. On viewing the premises on a Monday afternoon, I noticed there was ample parking in all parts of the car park including the area around Safeway. Included in the shopping centre is an existing packaged liquor outlet operating under the brand name of "Celebrations" by a Mr De Marco. This outlet has been operating for a number of years. At the time of viewing, I noticed this outlet was offering numerous specials.

11 The only other packaged liquor outlets in Craigieburn are in Hamilton Street, and the Sports Club which are both a reasonable distance from the subject premises (approx 2 km in either direction). The licence to operate the Hamilton Street packaged liquor outlet was recently granted by the respondent, whose decision was affirmed by myself sitting as the Tribunal last month. It should be noted that the decision of the respondent in respect of the Hamilton Street premises was affirmed pursuant to s 51(5) of the Victorian Civil and Administrative Tribunal Act 1998, as a result of the applicants to that application not appearing on the day of the hearing.

12 Apart from the liquor outlets to which I have already referred, the only other liquor outlets in the area are in adjoining suburbs of Roxburgh Park and Kalkallo.

13 Craigieburn is approximately 30 km from the City of Melbourne and can be accessed via a freeway which in normal travel times will take approximately 25 minutes by motorcar. Evidence was given before me that Craigieburn is a fast growing area where the population has increased considerably over the last 10 years and I was told that the population of the area is now approximately over 22,000 people. In 1995 the population of the area was 12,919. There have been many new residential developments in the area and some very large and expensive homes have been constructed, particularly in the Mt Ridley area. In spite of the vast residential development in the area, the shopping facilities have remained almost stagnant with the Plaza Shopping Centre continuing to be the main shopping centre for the area. It would appear that the people living in Craigieburn are a mixed socio-economic group. Many of the families in the area have large mortgages and it was described by many of the witnesses as "a mortgage belt". Many of the residents are first home buyers and have young families.

14 I was informed during the hearing that the Craigieburn plaza shopping centre attracted young people particularly teenagers who would "hang out" and socialise in the centre. There was also some evidence that alcohol was being consumed in the car park. However, there was no evidence of any police or council prosecutions in relation to the consumption of alcohol in the car park or in the vicinity of the shopping centre generally. This is in spite of a Hume City Council law in the following terms :

Unless otherwise authorised by Council a person must not consume, or have in his or her possession in an unsealed container, any alcohol on a road or in a municipal or public place.

15 Councillor White of the Hume City Council, who was called as a witness by the applicants to oppose the grant of the licence was unaware of any prosecutions by the Council in relation to the shopping centre. In fact no evidence was produced of any prosecutions in relation to consuming alcohol in a public place in the area of Craigieburn.

16 There was evidence given of young people consuming alcohol at night on the banks of a creek in the Craigieburn area. It was said by some of the witnesses that this was disturbing to the residents of the area.

17 It should be noted that there is another shopping centre proposed for the Craigieburn area in the vicinity of Hothlyn Drive, and apparently an application has been made for a packaged liquor licence for premises within that proposed area. However, no decision has as yet been made in relation to that application.

18 It is noted that even though the Chief Commissioner of Police pursuant to s 39 of the Liquor Control Reform Act 1998 (the Act) and the Local Council pursuant to s 40 of the Act may object to the grant of a liquor licence, no such objections were received in relation to the application by the Joined Party for a liquor licence and the parties were not represented at the hearing before me. However, Councillor White gave evidence that even though the Council did not object to the liquor licence; the Council now believes the said licence is not in the interests of the community. Councillor Jessup whose statement was tendered apparently has similar views to Councillor White, however he was unable to attend for cross-examination because of personal problems. Councillor White gave evidence that on 9 October 2006, the Council passed the following resolution, moved by Councillor Jessup and seconded by herself :

That the Council, consistent with its focus on community health and wellbeing as expressed in the Hume Community Health plan, supports the Craigieburn community in expressing concerns relating to the application by Australian Woolworths Stores (Safeway) for a Packaged Liquor Licence at Craigieburn Plaza, Craigieburn.

a. additional liquor sales in a relatively confined area of the shopping precinct where young people currently congregate;

b. the likelihood of increased alcohol consumption and frequency of antisocial related issues that are currently evidence in the shopping precinct, which reduce amenity both in the shopping precinct itself and in surrounding streets;

c. the known rapid population growth of the township, combined with a proportionately higher ration of younger people in Craigieburn compared to the Melbourne Statistical Division, which has the corollary that the aim of harm minimisation in the consumption of alcohol will not be achieved by this greater concentration of purchasing and consumption of alcohol in the shopping precinct;

d. lessening or reduction in alternative retail sales opportunities for the township, through removal of existing (limited) retail shelf space currently set aside for other consumer products, effectively 'doubling' up on existing liquor availability;

e. the future opportunities for superior locations for packaged licensed outlets in the new Craigieburn Town Centre, the development planning for which has recently been 'called in' by the Minister for Planning;

f. and finally (due to the reduction in amenity and likelihood of increased harm through alcohol consumption in this confined rea), the overwhelming and consistent view expressed by the community, including local business operators - as noted in the submissions to both the Liquor Licensing Panel and VCAT - that this licence should be refused in this place, at this time.

19 When giving evidence, Councillor White said that the Council did not object to the grant of a licence to the Joined Party because the matter was never referred to the councillors but was attended to by the Chief Executive Officer. She also said that many councillors were away in January which would have made it difficult for the Chief Executive Officer to consult with councillors. I find this statement difficult to accept, as the Council had 30 days from the date of the letter to it (12 January 2006) to object to the grant of the licence. She said that the first Council meeting was in the last week of January 2006. Thus, from the time of the first council meeting for 2006 to the time when the last day for objection arrived was approximately 2 weeks. In spite of this no objection was received. Further, there was no application on behalf of the council for leave to object out of time. I also note that the Council made no attempt to object or be head in relation to the licence recently granted to the Hamilton Street premises. I agree with the suggestion by Mr Bryant counsel for the Joined Party that by passing the resolution in October of this year, the council was merely getting on a "bandwagon" of objections that have been made in relation to the grant of this licence. It would seem extraordinary that a professional body such as the council would, if it was genuine in its objection to this matter, have not raised its objection within the period set aside for objecting or very soon thereafter.

20 The relevant legislation pertaining to this application is contained in the and is as follows :

(1) For the purposes of this Act, the amenity of an area is the quality that the area has of being pleasant and agreeable.

(2) Factors that may be taken into account in determining whether the grant, variation or relocation of a licence would detract from or be detrimental to the amenity of an area include -

(3) Nothing in sub-section (2) is intended to limit the definition of amenity.

(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

(iii) restricting the supply of certain other alcoholic products; and

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

(c) to contribute to the responsible development of the liquor and licensed hospitality industries.

(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.

(1A) In addition to the ground referred to in sub-section (1), any person may object to the grant, variation or relocation of a packaged liquor licence on the ground that the grant, variation or relocation would be conducive to or encourage the misuse or abuse of alcohol.

(a) be made to the Director in writing within 30 days after the day on which notice of the application for the grant, variation or relocation was first displayed under section 34(1); and

(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;

(c) that there is insufficient need or demand to justify the grant, variation or relocation.

(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;

21 At the commencement of the hearing, Mr Larkins on behalf of the applicants, raised issues as to the role of the respondent being present during the hearing. He stated :

In the present case ... the Joined Party will be professionally represented ... it is submitted that the Director should abide the decision of the tribunal.

22 Mr Larkins used as the basis for his submissions, remarks made by the President Morris J in Branbeau v Victorian Commission of Gambling Regulation 16 December 2005) [2005] VCAT 2606. At paragraph 42 his Honour stated :

It is clear from section 59 of the Victorian Civil and Administrative Tribunal Act that the Commission is a party to the review. In the present case the Commission appeared via counsel and made very helpful submissions. However, in future cases, the Commission may decide to let a responsible authority or an applicant be the contradictor (depending upon who is the applicant for review) and otherwise abide by the result. I think the appropriate course is best left to the Commission.

23 As a result of this submission, Mr Devlin for the respondent agreed that he would not take further part in the hearing unless requested to do so by the Tribunal. Subsequently, a written request was made by the respondent for the Tribunal to give an advisory opinion as to the Director's position in circumstances as they existed in this proceeding. That request has been answered by the Registrar of the Tribunal as follows :

I refer to your letter dated 4 December 2006 in which you seek an advisory opinion concerning the role that might be played by the Director of Liquor Licensing in the hearing of applications for review under the Liquor Control Reform Act 1998.

The tribunal may only give an advisory opinion when there is a provision in an enabling enactment to this effect. As there is no such provision in the Liquor Control Reform Act 1998, it is not possible for the tribunal to give an advisory opinion.

There are significant parallels between the position of the Director of Liquor Licensing under the Liquor Control Reform Act 1998 and the position of the Victorian Commission for Gambling Regulation under the Gambling Regulation Act 2003. Hence the comments made by Justice Morris in paragraph 43 (and footnote 20) of the decision in Branbeau Pty Ltd v Victorian Commission for Gambling Regulation [2005] VCAT 2006 are apposite.

The tribunal welcomes the participation of the Director in review matters under the Liquor Control Reform Act 1998. In some cases the Director may choose to play a full part in the proceeding; whereas in other cases the Director may choose to confine his or her participation to non-contentious matters. In the latter case, even if there are other parties who act as contradictors, it will often be useful to the tribunal to be able to receive factual information and counsel from the Director or the Director's representative as to the appropriate outcome.

However, I emphasise that whether or not the Director chooses to appear in a review proceeding will need to be determined by the Director.

24 There were 12 non-expert witnesses including the applicants called to give evidence in this proceeding, all of whom are members of the Craigieburn Community and opposed the granting of the packaged liquor licence to the Joined Party. A statement was also tendered in evidence from Councillor Jessup, who also opposed the granting of the licence, but he was unable to attend for personal reasons.

25 Evidence was also given by Professor Room and Mr Munro, who are experts in the liquor industry and the effect that the sale of liquor has on the community.

26 Mr Tanner, who is employed by the Joined Party and is its liquor licensing manager for both Victoria and Tasmania, was called on behalf of the Joined Party.

27 The basis of the applicant's views, supported by their non-expert witnesses, as to why the licence should not be granted to the Joined Party are correctly summarised by Mr Bryant in his submissions :

The objections identify a number of 'problem' issues alleging that the grant of the application will contribute to a misuse and abuse of alcohol and/or will adversely impact upon the amenity of the area. It is submitted that the main alleged 'problem' issues raised can be summarised as follows :

•

Increasing, and contributing to, alcohol abuse, alcohol related crime and antisocial behaviour;

•

The potential for sales of liquor to underage persons;

•

The potential for an increase in litter; and

•

Traffic congestion and parking difficulties will arise and/or be further exacerbated.

28 I also note that some of the witnesses were concerned that installing a liquor section in the current Safeway Supermarket would decrease the number of items available for sale from that supermarket to its customers.

29 It is apparent from the number of witnesses who gave evidence and the status of those people that there is a real concern in the Craigieburn community about problems with alcohol and in particular underage drinking.

30 Ms Beattie who is a member of State Parliament representing the Craigieburn area, and a Parliamentary Secretary for Planning, stated :

.... with the socio-economic group that makes up Craigieburn that 2 liquor outlets would provide more opportunity for those who should not be able to purchase alcohol to have it available to them ....

2 outlets would increase the opportunity for under age drinking and serving those who are already drunk.

31 From the evidence before me, while it would appear that some members of the Craigieburn community are in a socio-economic group to the point where life is difficult for them, it is noted from the Jesuit studies that on a scale of 1:20, the Craigieburn area is rated as 12. That is, approximately 60% on the socio-economic scale referred to in that study which put the community above average. Further, it seems clear that there are some expensive houses in the Craigieburn area, particularly around Mt Ridley.

32 Father Hansen, who is the Catholic Priest responsible for 4000 parishioner families in the area (although not all the 4000 are church going), gave evidence that he had received both the permission and support of his Parish council. Further, Father Hansen was the founding and Executive Director, of the Mary of the Cross Centre, the Drug and Alcohol Counselling Rehabilitation Service of the Archdiocese of Melbourne. Father Hansen stated :

There is already a problem with some illegal on-site consumption of liquor in the adjacent car park. The establishment of a second liquor outlet, side-by-side with the existing outlet, will create a de facto 'liquor precinct', which would be incompatible with other uses in the area, thereby detracting from the amenity of the area. ...

there is already a market saturation of liquor availability in this area ... I am regularly exposed to the relatively high levels of alcohol dependency, abuse and misuse in the local area, particularly by young people, to which an additional liquor outlet will contribute. ...

The Craigieburn area is notable for a number of linear parks with houses backing onto them. Residents fear for their safety in using these parks at night. They also report substantial numbers of young people, having acquired alcohol, congregate at the rear of their house blocks to consume alcohol. Alcohol related litter is often left in the parks, or in some cases, is thrown into the backyard or even pitched onto their house roofs. ....

It is my opinion that, if the licence to Safeway is allowed to stand, then a price-cutting competition between Safeway and the pre-existing liquor outlet is likely to ensue ...

33 The few examples of the evidence which I have set out above are, by and large, supported by most of the other lay witnesses that gave evidence during this hearing. With the Joined Party not having presented any evidence to the contrary, I am able to find that there is a real concern by members of the Craigieburn community about a further outlet in the Plaza Shopping Centre. Further, there would appear to be an alcohol problem within the community particularly amongst young people.

34 Mr Munro when giving his expert evidence stated :

In my view it is likely, on the basis of the evidence that I have read and observed at the Panel Hearing, that the establishment of another packaged liquor outlet at the Craigieburn Plaza would lead to increased availability, including radical discounting of bulk purchases of alcohol in a community in which local residents state there is already a severe youth drinking problem (including underage drinking), with attendant adverse consequences.

35 Mr Munro seemed to be basing this view on the assumption that more outlets cause a greater use of alcohol.

36 Professor Room gave evidence that increased bunching and density of alcohol outlets are associated with increased rates of problems related to alcohol.

WOULD THE GRANTING OF A SECOND PACKAGED LIQUOR LICENCE AT THE CRAIGIEBURN PLAZA ADD TO THE INCREASED SALE OF ALCOHOL FROM THE PLAZA

37 Most of the applicant's witnesses assumed, as did their experts, that an increase from 1 to 2 outlets in the Plaza would increase the alcohol sales and thus increase the problems associated with alcohol. I find this proposition difficult to accept. Mr Tanner gave evidence that in his view having had experience for a number of years in his present occupation, there would be no increase or very little increase in sales of alcohol in the Plaza as a result of his employer opening up a packaged liquor outlet. He said that while he would expect his employer to take approximately 40% of the sales from Mr De Marco, he did not believe that there would be any increase in sales other than of a minimal nature. He said there may be some increase in sales to local Craigieburn residents purchasing from the Safeway Craigieburn plaza shop rather than its Roxborough Park shop where those people purchase at the moment. However, he did think that would be minimal. It was also suggested by some of the applicant's witnesses, that Safeway's customers while shopping for groceries may see alcohol in the shop and decide to purchase it. Bearing in mind that the De Marco shop is right next to the Safeway shop and that Mr Bryant, on behalf of his client, has offered an undertaking that anyone wishing to purchase alcohol from Safeway would not be able to use the normal cash registers for groceries, I find it highly unlikely that anyone would decide to purchase alcohol just because they were in the Safeway supermarket. Further, as Mr De Marco's shop offers specials in regard to liquor, it is difficult to accept that Safeway's customers would be attracted by its specials, unless those customers intended to buy liquor in any event.

38 I have considerable difficulty accepting the evidence of the two experts called on behalf of the applicants. They both based their opinion on literature that was not site specific to the subject premises. Further, specifically in relation to Mr Munro, I had some doubt about his forthrightness in answering questions. For example, he refused to concede that just two liquor stores could not be a "bunch". He appeared to be more of an advocate to restrict sale of liquor than an expert witness. Further, the literature relied on by Professor Room was largely inconclusive as it related to different types of licences.

39 I accept the submissions made by Mr Bryant in relation to Mr Munro and Professor Room. Mr Bryant stated :

The applicants for review called two witnesses who qualified as experts. Mr Geoffrey Munro provided an initial report (p 29, TB) and an addendum (p 380, TB) (collectively, Exhibit O). In his report, he referred to certain literature and recent reports containing recommendations about future strategies for reducing the harmful effect of alcohol consumption.

In paragraph 3, Munro seeks to draw a link between availability of liquor and the level of alcohol related harm. In bullet form he attempted to summarise references to a number of published books and journals. It is submitted his evidence was unsatisfactory and that given a more detailed analysis of matters such as gonorrheae rates in Los Angeles following riots in 1992 and the closure of 270 alcohol outlets, little reliance can be placed upon such material in considering this application. Carefully read, the texts and articles are not authority for propositions advanced. One licence in Craigieburn cannot, with any intellectual honesty, be a dramatic change in the number of outlets.

Mr Munro was referred to the statistical and graphical socio-economic material lodged and served on behalf of Woolworth. He was taken through the columns in the charts including chart 7.1 (see the first page after tab 7 in Exhibit 3). He was invited to demonstrate how, by reference to the charts, his hypothesis that availability is linked to harm. It is submitted that the graphs and charts referred to in Exhibit 3 at the hearing are a true and correct comparison between licence numbers, population and crime statistics and are materials that can be relied upon by the Tribunal.

Professor Robin Room was called by the applicants for review. His one page statement (p. 36, TB and Exhibit M) cited a number of materials referred to earlier in this submission. It is submitted his contribution was singularly unhelpful to the Tribunal. Concepts of bunching and the reference to the aftermath of the Los Angeles riots bear no relationship to an additional liquor store in Craigieburn.

It should be noted that chart 7.1, referred to by Mr Bryant, demonstrates that if the number of licences increase, there will not necessarily be an increase in the rate of crime.

40 I accept the evidence of Mr Tanner referred to in paragraph 37 hereof and accept the submissions of Mr Bryant.

41 Thus, I conclude that in the event that the Joined Party was licensed to sell packaged liquor at the Craigieburn plaza shopping centre, there would be virtually no increase in the sale of liquor from the centre and that any increase would be so minimal as to not be of concern.

42 It is important when dealing with applications such as this to look at site specific matters. Judge Bowman took that view in the case of Nardi v Director of Liquor Licensing (25 February 2005) when dealing with the specific problem of whether there would be increased consumption. At paragraph 22 and forward, his Honour stated :

Despite Mr Munro's quite impressive evidence, I am not satisfied that the necessary links between increased availability, increased level of consumption, and increased harm have been established so as to produce a virtually automatic result in every instance. For example, I am not convinced by the evidence that the introduction of a properly policed and controlled packaged liquor outlet leads automatically to an unacceptable increase in the level of underage drinking. As stated, Mr Munro would appear to have some reservations about the relationship between consumption and harm and has further stated that '... the optimal density of licensed premises is not yet known ...'.

It seems well established that the particular circumstances, site and premises should be taken into account and dealt with in a specific context

43 Thus looking at this specific site in the context of the shopping centre and in the context of the De Marco store being right next door to the Safeway supermarket, in my view, it is highly unlikely that there will be any increase in the sale of liquor as a result of the establishment of the store save for a minimal amount which I do not believe to be relevant.

DOES THE NATURE OF THE JOINED PARTY MAKE IT MORE LIKELY THAT IT WILL SELL TO UNDER AGE PERSONS

44 A number of the applicant's witnesses suggested that because the staff at Safeway will not be familiar with the local customers that they may by mistake sell to under age people. It was further suggested that there had been a number of approaches in the car park by people who were under age to persons who were over 18 to purchase on behalf of the under aged persons, so the staff of Safeway may be "hoodwinked". I note that the Joined Party has a very extensive training programme to which its liquor sales staff are subject as well as an extremely comprehensive and well put together manual which is distributed to its staff.

45 It was further put by some of the applicant's witnesses that because Mr De Marco and his staff have a clear view of the car park, they would be more readily able to detect older people being approached to purchase alcohol for young people, than would the staff of Safeway which do not have such a view. In reality, I believe it is unlikely that the staff of a busy liquor store, such as De Marcos, would spend time looking out the window to see what was going on in the car park. In any event, my observation of the Craigieburn plaza shopping centre was that there were many "nooks and crannies" in the centre well out of sight through the De Marco window, where somebody could be approached to buy liquor for an under age person in any event. Thus, I have formed the view that because the staff of De Marcos are able to observe some of the car park through their window, I do not believe such observance would assist a great deal in stopping under age people having access to alcohol.

46 It is clear from a number of cases that has been decided that I should not assume that the holder of a packaged liquor licence would sell to under age people. In Black v Liquor Licensing Victoria (2000) Liquor Laws - Victoria Digest Of Cases [200,003] at p 200,063 Kellam J and Angell M stated :

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.

This passage was cited with approval both in Avery v Director of Liquor Licensing Victoria by Davis DP and Urquhart SM (unreported) 20 April 2001 (VCAT) at paragraph 95; and Judge Bowman in Nardi v Director of Liquor Licensing (VCAT) (25 February 2005) paragraph 35.

47 Needles to say, faced with that authority, I agree with that proposition.

48 Mr Larkins submitted that I should take account of the harm minimisation principles in the Act, he stated :

... the Tribunal should exercise its discretion in light of its acceptance of the following propositions :

(a) that there is sufficient and relevant (ie not trivial) risk that :

(i) the Craigieburn community may be disadvantaged by the creation of a further packaged liquor outlet given the associated greater access to packaged liquor; and/or

(ii) the Craigieburn community may not be advantaged by the creation of a further packaged liquor outlet with the association of greater access to packaged liquor;

(b) it should be noted that any such findings of the Tribunal need not be couched in terms of certainty or proof on the balance of probabilities. An issue for the Tribunal, it is submitted, is what it does if it is in a state of uncertainty as to the outcome should a further liquor outlet be created in Craigieburn.

49 Mr Larkins stated that the legislature was very concerned about the question of "harm minimisation" when in 2002 it passed amendments to the Liquor Control Reform Act and s3A and 38(1A) were inserted. He referred to the Second Reading Speech of Mr Brumby, Minister for State and Regional Development -

The purpose of the bill is to amend the Liquor Control Reform Act 1998 ('the Act') to ensure that Victoria's liquor licensing framework promotes the responsible retailing of liquor and a diverse industry with a strong and vibrant small business presence.

...The community is entitled to have a genuine opportunity to scrutinise packaged liquor licence applications. While the Act currently permits a person to obtect to an application on the grounds of amenity, it does not define the concept. ....

The bill promotes the responsible sale of liquor. A key objective of the Act is to contribute to minimising harm arising from the abuse and misuse of alcohol. While the Director of Liquor Licensing can refuse an application on this ground, there is currently no provision under the Act for the public to object on such grounds. Clause 11 of the bill provides that a person or a municipal council may object to an application for the grant, variation or relocation of a licence on the grounds that it would be conducive to or encourage the misuse and abuse of alcohol.

The bill also ensure that the community is better informed of an application for the grant, variation or relocation of a packaged liquor licence, which enables it to exercise its rights under the act.

In conclusion, the bill provides for greater community involvement and scrutiny in liquor licence applications and minimise the potential for abuse and misuse of alcohol within the community. The new arrangements deliver significant benefits to small liquor retailers and ensure that Victorians continue to enjoy a competitive, but fair, liquor industry.

50 Having made the finding which I have that the sales of liquor at the Craigieburn plaza will not increase or only be increased minimally by the creation of a second packaged outlet at the Plaza, in my view, it necessarily follows that there will not be any increase in the likelihood of harm to the community should the second packaged liquor licence, at the plaza centre be granted. It is worthy of note that Mr Larkins submitted when looking at the harm minimisation question that I should take a conservative approach. His Honour Judge Bowman at paragraph 7 of the Nardi case stated :

The objects of the Act are set out in S.4. Basically they emphasise responsibility, and the providing of adequate controls so as to contribute to minimising harm arising from the misuse and abuse of alcohol.

Mr Larkins stated that as these were matters of public health, I should take the approach of "avoidance of risk in appropriate circumstances". Mr Larkins stated more specifically :

It would be sufficient in my submission for the Tribunal to be satisfied that the risk is 'not trivial' and such an approach would be justified.

51 In my view, while it is possible harm may be caused by the grant of a liquor licence and that may be taken into account when considering the grant of a licence, I do not believe that it was the intention of Parliament that matters which are fanciful should be considered. Put a different way, the risk must be more than trivial.

52 Having found that it is unlikely that there will be any increase in alcohol sold from the Craigieburn plaza centre as a result of a second packaged liquor licence in that centre, in my view, it necessarily follows that it is unlikely that there will be any increase of harm. The fact that the consumption of liquor is causing difficulties in the Craigieburn area at the moment, when the Joined Party is not operating, it does not follow that if the Joined Party does operate a liquor outlet, those difficulties or unfortunate consequences will in any way be exacerbated. Having made the findings which I have in this proceeding, it is difficult to point to any hard evidence which would suggest that the current difficulties would in any way be exacerbated by the grant of a second licence in the centre.

53 I accept what was said by the Full Court of Western Australia in Executive Director of Health v Lily (Ipp Owen Miller JJ) (unreported 12 September 000) at paragraph 28 where it is stated :

The potential for harm or ill health is to be taken into account irrespective of whether the prospect of harm or ill health is a possibility or a probability. (emphasis added)

54 However, in my view, what their Honours were referring to was something that was real, rather than fanciful or imaginary. In this case, where there is unlikely to be any increase in the sale of alcohol in the centre, in my view, it is difficult to say that the increased risk of harm by the granting of this licence can be anything but fanciful. However, as a matter of caution, in accordance with what was stated by the Court in Lily I take the risk into account when making my decision, but that cautious approach means I consider that risk or take it into account, it does not necessarily mean a refusal of the licence.

55 In relation to the question of harm minimisation, I agree with the submission of Mr Bryant when he states :

.... Whilst harm minimisation will be a paramount consideration at all times, it is not a concept which should be allowed to be relied upon in a general sense only to defeat any application for a liquor licence - if this were so, and as noted in Black and Nardi, it may well be arguable that few licences of any description, other than perhaps for the consumption of liquor in cafes and restaurants should ever be granted in the future.

That submission is clearly substantiated by the authorities cited by Mr Bryant. The fact that the applicants have in this particular proceeding called a much larger and greater cross-section of the Craigieburn community that was called in relation to the relevant premises in relation to the applications in Black, Avery and Nardi, in my view, is something that needs to be taken into account. However, clearly calling lots of witnesses who give similar evidence cannot establish a factual point which would otherwise be accepted with any further certainty or give that point any greater weight.

56 I also note that the Joined Party is a responsible server of alcohol in relation to packaged liquor. At the end of proceeding, this was not contested by Mr Larkins. Insofar as the Joined Party was the applicant for a liquor licence as in the Nardi case, I refer to and agree with what Judge Bowman has stated in paragraph 51(a)(ii) :

I accept that Woolworths has an unblemished record as a provider of packaged liquor. It has never been convicted of an offence under a liquor law even though it is a very substantial operator in the field. Obviously this unblemished record includes an absence of any conviction in relation to the service of minors.

57 This particular proceeding has a very similar fact situation to the decided cases of Avery and Nardi. Those cases were both accurately summarised by Mr Bryant and he drew conclusions in relation those cases with which I agree. He stated :

The conclusions of the Tribunal in Black were adopted by the Tribunal (Deputy President Sandra Davis (Judge Davis) and Senior Member Mary Urquhart) in Avery v Director of Liquor Licensing (20 April 201) (p.243 TB). The facts in that case were that the Safeway liquor outlet to which the case related was located in a shopping centre adjacent to a school and a number of school students passed by the outlet on their way to and from school or when shopping at the Safeway supermarket. An existing Phillip Murphy outlet was also located close to the site of the Safeway outlet and within sight of the school. The grounds on which the Director's decision to grant the application were reviewed including that the grant of the application would undermine the school's harm minimisation program and would lead to the abuse of misuse of alcohol.

After agreeing with the conclusions in Black, the Tribunal in Avery stated that :

•

There was no site specific evidence which could link littering and anti-social behaviour with the Safeway outlet (which was open at the time the application for review was heard);

•

It did not consider that the grant of the licence to the Safeway liquor store would encourage or actively promote the consumption of liquor by underage persons;

•

It was not prepared to assume that there would be sales of alcohol to or by underage persons on the premises; and

•

It did not accept that the grant of the application would undermine the alcohol education policy being conducted at the school.

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.

The conclusions of the Tribunal in Black were also recently adopted by his Honour Judge Bowman in Antonia & Rosalia Nardi v Director of Liquor Licensing (25 February 2005) where he stated :

(vi) I agree with the proposition submitted that, in accordance with the Act and the decision in Black's case, the particular circumstances, site and premises should be taken into account and dealt with in a specific context. There is nothing in the evidence and material before me which leads me to the conclusion that the granting of the licence would detract from or be detrimental to the amenity of the area in question or would be conducive to or encourage the misuse or abuse of alcohol. To my mind, the available material does not establish the necessary connecting links so as to result in a refusal of the application. It may well be that there is an area south of the Bellarine Highway which is an area of social disadvantage and which is the source of some problems for the police. It is another matter to say that the existence of a properly run packaged liquor outlet not far from such area would be detrimental to the amenity of the area or be conducive to or encourage the misuse or abuse of alcohol.

(viii) There may indeed be circumstances in which a cautious conservative approach to the granting of a licence should be adopted. However, this does not mean that applications should be virtually automatically rejected upon the creation of the slightest doubt or misgiving. As I have stated earlier, and as was stated in Black's case, the logical extension of an argument such as this would be that no new licenses would be granted, in order to minimise harm. The proper foundations should exist so as to justify a decision, fairly and properly made, to refuse an application for a licence. .

On the basis of the decisions in Black, Avery and Nardi, and having regard to the manner in which the Tribunal is to assess the evidence before it, it is submitted that the grant of the application will not be conducive to or encourage the misuse of alcohol and would not be detrimental to the amenity of the area in which the Woolworths Premises are located. In each case, the question of the sufficiency of evidence and materials is to be assess to determine whether the Tribunal is satisfied that the granting of the licence would detract from or be detrimental to the amenity of the area or would be conducive to or encourage the misuse and abuse of alcohol. It is further submitted that a cautious conservative approach would lead to the same conclusion.

It is submitted that this matter must be considered and determined in accordance with these decided and leading cases. In this regard, and notwithstanding the statements and evidence of the witnesses for the applicants for review, it is submitted that there is no cogent evidence that the alleged 'problem' issues raised by the applicants for review would be caused by, or would result from, or would be exacerbated by, the operation of the Woolworths Premises; that is, there is no site specific evidence that the sale of liquor by Woolworths would be conducive to or encourage the misuse or abuse of alcohol or impact upon the amenity of the area. At its absolute highest, the evidence of the applicants for review merely suggest the possibility as a general proposition that the relevant alleged "problem" issues raised may be caused, or contributed to, by the granting of the application. Consistent with the reasoning in Black, Avery and Nardi, such general evidence is an insufficient basis for refusing a licence application. There is simply no clear connection between the alleged problem issues raised and any proposed operation of the Woolworths Premises. To put it another way, and to adopt the phrase of Professor Robin Room used in cross-examination, there is not a 'non trivial risk' that the harm minimisation objective would be compromised or adversely affected by the grant of the application.

58 Mr Larkins sought to distinguish the cases of Avery and Nardi from the present situation.

Additionally, on the fact of this case both Avery and Nardi can be distinguished. In Avery (which preceded the 2002 amendments) the factual situation is affected by the presence of an on-premises (nightclub) licence at the Toorak Village. Secondly, in both Avery and Nardi the evidence was not nearly as extensive or representative of a range of community views as is the case in the present application (eg see the discussion and references to the evidence of Mr Hose in the Nardi decision at page 6, paragraph 16 and page 9, paragraph 35).

Further, in Avery op cit (apart from issues raised in relation to school children), the evidence as to the potential for misuse and abuse of alcohol was limited to isolated incidents within the shopping centre proper (ie it did not include the evidence of witnesses such as Fenyvesi and Benny as to regular disturbances and misuse of alcohol in residential areas).

In Nardi op cit a substantial proportion of the evidence of community problems was general (ie at the Bronx) and was potential in nature, that is, based in part upon the proposition that in lower socio-economic areas greater density raised the potential for harm arising from the misuse and abuse of alcohol. This is not a major factor in the present case.

In the present proceeding, the evidence of currently endured harm is site specific both at the shopping centre and in the residential areas of Craigieburn and is the subject of sworn testimony by a wide variety of members of the relevant community as well as being related to packaged liquor.

59 In my view, the distinctions drawn by Mr Larkins, while they are of some interest to not go to the real point of the situation in this matter, that is, there is no evidence which I accept that the harm which liquor is presently causing the Craigieburn community will be made worse by the grant of a licence to the Joined Party. It does not follow that harm from alcohol at present will be increased by an extra outlet at the Plaza Centre. Therefore, in spite of the distinctions drawn by Mr Larkins, in my view, this situation is very similar to what the Tribunal considered in Avery and Nardi and I believe those decisions should be followed and I accept the submissions of Mr Bryant.

60 I add to what his Honour Judge Bowman said by stating that evidence was given in the hearing before me that the Joined Party operates 170 outlets throughout this State. Operating so many outlets throughout the State, will obviously create a greater chance for conviction or blemish. However, none has occurred.

61 I accept the evidence given by or on behalf of the applicants that at times there is some traffic congestion and parking difficulties around the Safeway store. However, I do believe that such difficulties were somewhat exaggerated. For example, Mr Shinners who has been a solicitor who practised in liquor licensing for many years, produced a number of photographs showing the lack of parking spaces and the traffic congestion. During cross-examination of Mr Shinners by Mr Bryant, it became clear that the photographs were not taken by Mr Shinners himself but were in fact taken by either Mr De Marco or his employees when Mr Shinners was not present. It is thus likely that times were picked to take the photographs of the greatest congestion or the greatest parking difficulties. I have already stated that on my view of the premises on a Monday afternoon (2 weeks before Christmas), there was no congestion and no parking difficulties in any area of the car park. While I accept Mr Larkins' submissions that a Monday afternoon may not be typical of the area, particularly if it becomes crowded on a Saturday or Friday afternoon, I nonetheless have every confidence that the parking area does not become full. Mr Cichello made it clear that parking spots could always be found in the car park even if they were a substantial distance (approximately 100m) from the Safeway store. Bearing in mind that Safeway provide trolleys for those that have purchased groceries and liquor from their store, I do not consider that 100m is too far away from the major part of the shopping centre, for customers to carry their goods.

62 In any event, having accepted that there will be no more liquor sold or minimally more liquor sold in the centre after the Joined Party has commenced its liquor operation than at present, it necessarily follows that it is unlikely that there will be any greater increase in traffic in the car park or any greater competition for car parking spaces.

63 I also note that the Joined Party has a dedicated loading bay at the back of its shop which will be used not only for the groceries which it sells at the moment but also for the unloading of liquor in the event that a licence is granted. This is to be contrasted with what apparently is the habit of Mr De Marco to allow trucks to park outside the front of his shop for the purpose of unloading liquor. A photograph of a brewery truck was tendered in evidence showing the large vehicle parked outside Mr De Marco's shop.

UNDER AGE DRINKING IN THE CAR PARK AND IN OTHER AREAS OF CRAIGIEBURN

64 Having found that there will be no increase or minimal increase in the sale of liquor from the Craigieburn Plaza shopping centre, it is difficult to see how there will be any increase in drinking in the car park or the surrounding areas. In any event, I have some difficulty accepting the extent of such under age drinking in the car park bearing in mind that Councillor White agreed that she had no knowledge of any prosecutions by the council for drinking in the car park, in spite of the fact that council had passed laws prohibiting the consumption of alcohol in public.

65 Father Hansen agreed that most of the alcohol consumed in the Craigieburn area by under age persons arose from a source not being the primary source for selling alcohol. That is, the packaged liquor licence outlet. He said the alcohol came into the hands of young people by a person buying for the younger people, from the younger people's parents or from friend of the younger people. In my view, while Father Hansen may be correct about his theory in relation to the source of alcohol falling into the hands of under age people, I have difficulty in understanding how limiting of packaged liquor licensed premises can affect or help that problem. While accepting the statistics that there has been an increase in under age drinking in this country, I find it difficult to accept that such problem can be solved by limiting the number of outlets. Even if one accepts in a general sense that increased outlets can cause increased consumption of alcohol, it is difficult to see why increased outlets would cause increased under age drinking. The applicant's experts have stated that since packaged liquor outlets have become more numerous in the State of Victoria, while drinking as a whole has decreased, under age drinking has increased. While this statistic may be correct, it does not link the under age drinking to the increased number of outlets. There may be numerous reasons for the increase in under age drinking, but it is difficult to see how increasing the number of outlets could aggravate this problem. However, bearing in mind the finding that I have made about the fact that there would be no increase or a minimal increase in the sale of liquor from the Craigieburn centre, I do not believe that I need to finally decide the general question of whether increased number of packaged liquor outlets increase under age drinking. It is sufficient to decide this proceeding on the basis that there will be not be an increase in harm from the operation of a second outlet in the centre because there will be at most a minimal increase in the amount of liquor sold from the Centre.

66 On the whole, it is very difficult to see how there will any detriment to the amenity of the area as it presently exists.

67 I accept the evidence from Mr Tanner that the range of products that are currently sold in the Joined Party's store will not decrease as a result of the area that will be set aside for liquor licensing.

68 Father Hansen expressed the view that liquor should not be sold in a supermarket. Bearing in mind the undertaking to which I have referred, that is, that the Joined Party will not allow liquor to be sold through cash registers used in its supermarket, in my view, there is little likelihood of someone deciding to buy liquor from the Joined Party, when they would not have been buying that liquor in any event.

69 It is traditional in the State of Victoria for liquor and food to be sold from the one premises. Indeed, it was not so very long ago that in order for a person to be able to obtain a packaged liquor licence (then known as a "retail bottled liquor licence"), a substantial grocery supply was required. In Bedelis v Liquor Control Commission (1974) VR 409, at 613 Stark J noted that :

It is obviously convenient and therefore, in the public interest, that packaged food and packaged liquor should be available to the public for purchase under the same roof ... In my judgment, the sale of food and drink are so allied as a matter of history and the sale of such commodities together is so convenient to the public and hence so reasonable that, in my opinion, conditions relating to the sale of groceries are plainly germane to the sale of bottled liquor and, accordingly, to the objects of the Act.

70 Bearing in mind that there has been a fast increase in the population of the Craigieburn area over the last decade, and a far less increase in the packaged liquor outlets in the same area, it is not surprising that there has been a lack of competition between suppliers of packaged liquor. Thus, the granting of this licence to Safeway will provide more competition to the consumers and a possible greater range of choice of brands.

71 Evidence was given before me that the Joined Party will provide trolleys for shoppers to take both their liquor purchases and grocery purchases to their car. While it was stated by witnesses called by the applicant (Ms Hubbard) that Mr De Marco does provide staff to carry alcohol to the car with a two wheeled trolley, this type of provision cannot be as convenient to the customer as a normal supermarket trolley.

72 Because of the reasons I have outlined above, I have come to the view that the amenity of the area will be enhanced by the grant of a licence to the Joined Party more so than the denial of a licence.

73 Having found that the extra liquor outlet in the Craigieburn Plaza shopping centre will not increase the amount of alcohol bought from that centre, other than minimally, in my view, it must necessarily follow that any harm emanating from the sale of packaged liquor within the centre will not be increased by the advent of a second outlet. In coming to this conclusion, I have taken into account that the Joined Party will operate its liquor outlet in a proper manner in accordance with the law and with trained staff. Further, I do not believe a second outlet in the centre will in any way detract from the amenity of the centre, on the contrary, I am of the view that it will add to the centre's amenity. Further, granting of the licence will not put the public at any further risk from alcohol or make them likely to suffer any further harm than would be suffered under the present arrangement prior to the licence being granted. I understand that a number of Craigieburn residents are concerned about the effect of liquor in their community. In my view, by and large these are very genuine people speaking for a substantial portion of that community. However, when making this decision, it is very important that a proper interpretation of the law is applied, and in doing that in this situation, in my view, the decision of the respondent should be affirmed, subject to the undertaking which the Joined Party has offered through its counsel to give and which I accept.