Hansen v Director of Liquor Licensing

Hansen v Director of Liquor Licensing - [2006] VCAT 2544 - VCAT 2006 case summary — Zoe

[9]

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 :

[59]

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 :

[110]

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.

[113]

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.

At a glance

Court

Decision date

Before

Source

Judgment (117 paragraphs)

Hansen v Director of Liquor Licensing (Occupational and Business Regulation) [2006] VCAT 2544 (19 December 2006)

Parties

Legislation Cited (1)