Hunt Club Commercial Pty Ltd v Casey CC [2013] VCAT 726

Mr Rob Milner, town planner of Ten Consulting Pty Ltd.
Mr Rhys Quick, economist of Urbis.
Mr Glenn Weston, social planner of Public Place Pty Ltd.

Hunt Club Commercial Pty Ltd v Casey CC [2013] VCAT 726 | Case summary | Zoe

[25]

In order to address these propositions the parties first sought legal ruling as to the scope of consideration in exercising discretion on the sale of packaged liquor. The findings of Deputy President Dwyer on this question attached as Appendix B to these reasons.
In summary, the ruling directs that the scope of relevant considerations under clause 52.27 of the Casey Planning Scheme is not restricted solely to impacts which manifest themselves into an amenity impact on the surrounding area. However, as a matter of general principle, a broad concern about the social harm caused by alcohol, the accessibility of alcohol in the community generally, or the potential for the abuse or misuse of alcohol, will rarely (if ever) be a relevant consideration in the exercise of discretion for a particular licensed premises under clause 52.27.
In making this ruling, I note that Deputy President Dwyer comments that whilst the exercise of discretion under clause 52.27 will vary from case to case they must be relevant in a town planning sense. With this, he goes on to comment that "at its heart, planning is about the use, development and protection of land. It has a spatial context that is primarily concerned with the fair, orderly, economic and sustainable use and development of land".[3]
My review of the merits of the provisions therefore accepts that social effects are relevant, but limited to decisions about the spatial use of land associated with the location of the sale of liquor and the amenity impacts of the premises from which the liquor is sold given the purpose statements of Clause 52.27.
My reasons therefore address whether, based on the propositions of Council:
1. Are there particular issues identified with the sale and consumption of liquor in the Cranbourne community that relate to the need for controls in the CEDP?
2. Can or should any particular issues be addressed through the proposed provisions sought by Council?
Before turning to these issues however, I firstly find there is a need to explore whether the proposed provision of the development plan can be seen to be implementing the planning scheme.

[32]

The CEDP applies to a relatively large, mostly residential area east of the Narre Warren / Cranbourne Road between the Berwick Cranbourne Road and Thompsons Road. The proposed control is to affect only the neighbourhood activity centre in the plan.
The CEDP is one of a number of development plans prepared under Schedule 1 of the Development Plan Overlay of the Casey Planning Scheme. This schedule is titled "Residential Areas" and has requirements that a development plan should show:
- The existing and proposed road network.
- The location of existing and proposed open space including open space links.
- The location of any existing or proposed community facilities including school sites.
The schedule does not make any specific direction about the location or size of the sale of packaged liquor outlets or the need for this to be addressed in a development plan. The only provision that provides scope for the inclusion is the general statement within the development plan overlay at Clause 43.04 - 3 that states a development plan should include the proposed use and development of each part of the land.
It is also worth noting that when the land was amended[6] to be Business 1 land, rather than residential, there was no direction to remove the overlay or amend the overlay to relate to commercial use of the land. The land therefore remains directed by Schedule 1 to the Development Plan Overlay. This schedule of the overlay applies to a number of areas across Casey[7], including areas in Berwick, Narre Warren, Hampton Park and Cranbourne South, as well as Cranbourne East. I find there is nothing in the schedule that explicitly directs a need to consider packaged liquor and that the broad application of this specific schedule of the overlay does not infer any site specific nature to the application of the overlay at Cranbourne East.
The only directions in the planning scheme that provide power to consider the issues identified by Council are the broad objectives of planning for Victoria and the directions of Clause 52.27. Neither of these suggest there is a need to specifically address packaged liquor sales in Cranbourne East in a manner that requires a different and more restrictive response than any other location across the municipality, or for that matter across the State.
Mr Montebello also relied on two Council documents that are not referred to in the planning scheme. These are the Casey Alcohol Accord and the Municipal Health and Well Being Plan 2009 - 13. I find both of these have limited relevance given neither are adopted policies contained within the planning scheme. The Casey Alcohol Accord only addresses service of alcohol, not the location of packaged liquor sales outlets. The Municipal Health and Well Being Plan 2009 - 13 simply acknowledges that people in Casey are typically under some financial stress and have a relatively greater level of disadvantage compared to other local government areas. As such it states that Council's plan is focused on improving social, economic and environmental factors that influence people's health and well being. Mr Montebello did not refer to any specific directions in either of these documents to indicate that land use provisions to restrict the sale of packaged liquor was an important element to achieving broader Council aspirations. Similarly, Ms Davies' verbal evidence was that these policies provided context to her opinion that the proposed provisions were warranted. I cannot find any land use planning nexus between these documents and the provisions proposed.
Mr Montebello stated that Council relied only on the broad objectives of the Act to provide a safe working, living and recreational environment and to address social and economic effects in making decisions. He submitted this was further borne out in the general objectives of the planning scheme articulated in Clause 10 of the scheme and more specifically in Clause 52.27 that requires consideration of the impacts of the sale of liquor. I find these are broad concepts that apply to all land across Victoria, not a specific structure plan or policy that identifies a need to implement specific controls over the size and location of packaged liquor outlets at Cranbourne East. As such there is no specific policy within the planning scheme to direct the need for the provisions proposed that gives weight to the need for the development plan to address the issues identified by Council.
The exclusion of a control on the use of land for the sale of packaged liquor in the development plan also does not limit the ability of Council as planning authority to pursue its strategic objectives as directed by the Development Plan Overlay or its schedule. Any specific local policy sought by Council to address the sale of packaged liquor on this land, or any other land, is a matter to be addressed through a strategic planning exercise and not before me.

[35]

The February 2013 version of the proposed provision introduces the requirements by stating that "the Cranbourne community (which includes the area affected by this development plan) has particular issues[8] which are associated with the sale and consumption of liquor". Mr Montebello submitted these issues include impacts upon public health, the social and economic wellbeing of the community and the amenity of the area.
I firstly need to be persuaded that Cranbourne has 'particular issues' associated with the sale and consumption of liquor that require the provisions Council has included in the CEDP.
The evidence of Ms Davies what that Cranbourne East is one of a number of areas in the City of Casey that experience social disadvantage above that of the Victorian average and generally a younger, more ethnically diverse population. In particular she noted that the population to the west and south west of the Development Plan area has a higher unemployment rate and general higher social disadvantage index score[9]. As such she stated the community is 'vulnerable'. The question is vulnerable to what?
Ms Petridies provided lay observational evidence that financial pressures in the general Cranbourne area are common and become more obvious when there are issues with addiction. That is, people who do not have a high level of discretionary spending utilise a higher proportion of this spending on their addiction, to a point that it impacts on their capacity to pay daily bills.
There was no evidence, however, that alcohol addiction is more prevalent in Cranbourne or Cranbourne East than in other parts of the municipality of Casey. There is statistical data to indicate that the municipality of Casey has a higher number of assaults, based on raw figures[10]. When assessed as a proportion of per 100,000 people, however, the level of assaults is similar, or lower than other municipalities such as Greater Dandenong, Cardinia and Frankston. Based on the ICLEI report[11] referred to me and relied on by Ms Davies, the level of assaults per 100,000 people in Casey is only slightly higher than the Melbourne metropolitan figure and has been generally in line with the Melbourne metropolitan average from 2004 to 2010. Further the report discusses issues associated with late night on premises licensed venues but makes little comment on packaged liquor sales, other than in context of broader issues. The report further notes that the Alcohol related injuries suffered by residents (that led to hospital admission) was lower in Casey than the rest of Victoria. The statistics do indicate that Cranbourne township has the highest number of injuries to the rest of Casey. There are no specific figures for Cranbourne East in this ICLEI report.
I can accept that within the City of Casey, the township of Cranbourne has a relatively higher level of alcohol related incidents in 2010 than the remainder of the municipality. This is a local comparison only and does not provide any trend analysis over time. Statistics were also provided that ambulance attendances in Casey have proportionally gone up, compared to metropolitan Melbourne, but this can be attributed to the low base that the municipality had as an emerging urban area, and therefore in effect is 'catching up' with broader metropolitan trends. On a broader level, the number of alcohol related incidents in Casey is lower than many other places in Victoria as identified in the ICLEI report Council referred me to, and consistent with statistics referred to by Mr Weston in his review of alcohol issues in the local area compared to other locations in Victoria. It is also consistent with the findings referred to me by Mr Montebello through evidence of Dr Livingston in the Kavanagh et al report that there is no clear relationship between areas of socio economic disadvantage and consumption of alcohol at harmful levels and that residents living in the most advantaged areas were more likely to report frequent alcohol consumption[12].
Mr Weston's evidence on behalf of the Hunt Club did not dispute the SEIFA analysis or the ICLEI report, however, his statistics did provide broader context and affirms that the municipality of Casey, as a whole, does not face 'particular' challenges. For example, his evidence noted that alcohol related hospital admissions were higher in municipalities that are generally accepted as being less disadvantaged, such as the municipalities of Bayside, Boroondara and Stonnington[13].
I conclude that within the City of Casey, Cranbourne township (not the catchment community specifically) has recent recording of a higher intensity of alcohol related incidents. I also accept that parts of Cranbourne have areas of relatively higher social disadvantage (which currently does not include Cranbourne East, but does include parts of the catchment community) where the impacts of any addiction can be more directly felt on household disposable income. Any 'particular issues' of alcohol related harm or addiction, are relative only between Cranbourne and the municipality of Casey.
Whether these locally based recordings of higher assaults that relate to alcohol use can or should lead to the changes in the CEDP I consider below.

[38]

The evidence of Ms Davies was that there is already considerable existing supply of packaged liquor close to the subject site and caution should be exercised to prevent the supply of packaged liquor from reaching saturation level.
Her conclusion was that there is already considerable supply was based on a map of outlets within a 1.5 kilometre radius of the Cranbourne Town Centre[14]. She also noted that there are seven activity centres proposed for Cranbourne East and Cranbourne North within 5 km of the subject site, some of which it must be assumed will also have packaged liquor outlets. She also relied on evidence of Mr Henshall about the catchment for a large format liquor store being 2 - 3 km.
The rationale for the provisions proposed relies on a premise that:
1. More supply, in larger form outlets leads to more consumption and therefore harm, and
2. That there is a saturation level of packaged liquor outlets that is potentially reached that has a harmful impact on the community.
Much of the research into outlet density and harm has not focused on the impact of packaged liquor. Council therefore relied on evidence of Dr Livingston and in particular, his research with Claire Wilkinson on a correlation between a proximity to off premises outlets and experiences of amenity problems such as being kept awake at night, feeling unsafe in a public place or been annoyed by anti social behaviour of strangers[15].
Mr Montebello's primary submission was that the rationale of the provision in the development plan was to restrict larger format premises that may lead to a larger volume at a cheaper price being sold. I therefore firstly find any relevance of amenity impacts identified by Dr Livingston has limited relevance to the rationale for the provisions proposed.
Dr Livingston also acknowledged in cross examination that:
1. His research on density outlet of off premises licences did not distinguish between packaged liquor outlets that were stand alone premises, or those incorporated into an on premises location, such as a hotel. As such amenity impacts could not be directly correlated to whether it was the off premises or on premises component of some outlets that may create the impact.
2. The questions asked of respondents related to how often they had experienced amenity impacts. This data was then cross referenced against the location of the respondent to outlets with an off premises licence. The data therefore does not determine that the impacts experienced occurred locally, or were the result of patrons of the off premises outlet (either associated with or without an on premises license at the same location).
I also accept Mr Weston's evidence that a simple correlation between the two has a further limitation that it does not address population density in proximity to the outlet. By example he tabled figures that there are many more licenced premises in a densely populated area such as Richmond but this did not necessarily correlate to greater incidents of public harm per 100,000 people[16].

[39]

Mr Montebello submitted that part of Council's rationale relied on findings of Mr Henshall and Ms Davies that cumulative impact from packaged liquor should be assessed on a 2 - 3 km catchment radius, which is the area in which people would normally shop and then consume alcohol from a premises, rather than the 500m radius identified in Practice Note 61[17]. This rationale requires an acceptance that any store, but notably larger format stores, will lead to more consumption due to cheaper price and that the additional consumption then leads to more harm.
Council, through evidence of Mr Henshall sought to establish that the area of cumulative impact of a packaged liquor outlet in this area was 2 - 3km, based on the catchment of a large format store at the Cranbourne East Activity Centre. This catchment for a store was accepted by the Hunt Club and its evidence of Mr Quick, however, it was disputed whether this was the catchment to address cumulative impact.
Much of the land use cumulative impact concerns of places such as Swan Street Richmond have related to issues associated with on premises licences and excessive episodic drinking, in which immediate access to packaged liquor may further exacerbate these issues through 'pre loading' or 'side loading' by patrons of such venues[18]. The issue before me I find is quite distinct from those locations where the impacts of a cluster relate to immediate amenity impacts associated with patron behaviour in the immediate vicinity of a licensed venue cluster.
I also note that none of the analysis about outlet density and alcohol availability has included the sale of alcohol over by internet sales. From my question to Mr Weston he stated he was not aware of any studies that considered this factor. No other evidence or submission was made as to what impact such sales may have, or the impact of this on the desire by Council to moderate the availability and therefore consumption of alcohol in an area.
Practice Note No. 61, prepared as a result of Swancom and changes to Clause 52.27, base cumulative impact on a 500m radius. Indeed Dr Livingston's research on correlations between amenity impacts and packaged liquor outlets uses this radius as a measure.
The practice note does not direct that a different measure for cumulative impact should be made for assessing packaged liquor outlets, or that the intent of the cumulative impact analysis is to address overall availability of a product to households. The practice note was not amended when Amendment VC79[19] was introduced. Nor does the explanatory report to this amendment, indicate that any different measure of cumulative impact should be used for packaged liquor. If a different approach is meant to be undertaken to interpret Clause 52.27 in relation to cumulative impact and packaged liquor I find this is a matter that should be addressed by policy makers. I find there is nothing before me that persuades me from addressing cumulative impact in the context of Clause 52.27 other than as provided for in the decision guidelines of that clause and the practice note No. 61 produced by the Department of Planning and Community Development.
Further I note, that even if I were to accept the proposition of Mr Montebello that cumulative impact should be addressed on a 2 - 3km catchment, then it follows that the provisions should be imposed on the whole of the 2 - 3km catchment around the Cranbourne East neighbourhood activity centre. This includes sections of the Cranbourne Activity Centre to the south west where there are already packaged liquor outlets and potential for more, based on the land zoning. In this context, to apply a more restrictive provision in only part of the catchment I find would be unfair and unreasonable, putting aside all other issues.

[44]

Mr Montebello made detailed reference to a study undertaken by Liang and Chikritzhs[20] in Western Australia. This study reviewed the number of assaults in an area and cross-referenced these to the volume of alcohol sold at packaged liquor outlets (with separate figured derived to separate stand alone stores and those associated with on premises licences). The study identified that where[21] a greater volume of alcohol was sold the rate of domestic violence was higher.
Mr Montebello went on to extrapolate these results with sales data[22] for large format liquor stores to identify that large format stores sell greater volumes. Hence, a larger store leads to greater volume sold and therefore greater consumption and more harm.
The Liang and Chikritzhs study however, comments that it is the backing of larger stores by large, national corporations that most likely leads to cost reduction and greater marketing opportunities. Their conclusions stated that "we speculate that is it's the economic availability of alcohol that is most influenced by liquor stores"; and that "interventions and policy need to be more pointedly focused on addressing the sales and marketing functions of off-sale outlets". They make no recommendations about creating land use planning policy or provisions to limit the size of stores.
The study also contradicts other work undertaken by Dr Livingston and others stating "there was no evidence of a significant associated between numbers of off site outlets and violence[23]".
Whilst there was not detailed statistical analysis of the matter, it is general public knowledge that Dan Murphys and Coles 1st Choice Liquor compete on price. However, they are not the only locations where low price alcohol can be purchased. Daily advertising in electronic and print media (as referred to by both parties) identifies both Coles and Dan Murphys market on price point. However, the same media also advertises online sales for other operators, competing on price, as do small format, supermarket based stores, such as Aldi.
This is consistent with comments in the Marsden Jacobs[24] report referred to me by Council that it is the increased buying power and efficiencies of large chains that can enable lower prices. These chains may include larger format stores, but it is the operator, or chain of operators that leads to the price competitiveness, not simply the size of any one store. This leads to a secondary concern identified by Mr Tweedie, that even if I were to accept the simple proposition that a larger store directly correlates to more availability and therefore consumption of alcohol, what is a larger store? Council's provision is to prefer stores to be less than 300sqm, but there was nothing put to me as to why this is the relevant test, or at what point a larger store becomes detrimental, simply by virtue of its size.
Dr Livingston commented in in his evidence that there is 'suggestive' evidence that big box liquor stores may contribute to more alcohol problems than smaller stores.
If they do, then based on the comments in the Marsden Jacobs report (and indeed the economic review provided by Council), this appears to be more related to the relationship to ownership of stores in national chains that provide buying power efficiencies and greater advertising opportunities.
However, this still does not account for national statistics that indicate overall consumption of liquor per person has not increased in any significant manner in the past 20 years[25]. As Dr Livingston noted, his future research seeks to investigate why the level of alcohol related harm has increased over this same period, when consumption per capita has not. His hypothesis is that selective segments are drinking more and others less. However, this is simply hypothesis at this time and I find does not provide a relevant basis to introduce the provisions sought that will only affect one small location and do not address the issue of ownership or management and therefore price.

[70]

The question posed by the parties does not lend itself to a simple 'yes' or 'no' answer.
In Coles Group Property Development Ltd v Mornington Peninsula Shire Council[28], it was suggested that clause 52.27 did not authorise a scope of enquiry into all possible impacts of the sale of liquor on the community, including public health or crime impacts, " ...unless an impact manifests itself into an amenity impact on the surrounding area". That decision was broadly followed in Millwood v Frankston City Council[29]. With respect, I consider that the Coles Group and Millwood decisions slightly over-simplify the legal position. Whilst, as a matter of practical reality, the scope of enquiry under clause 52.27 will rarely (if ever) necessitate a consideration of matters that do not manifest themselves as an amenity impact, it cannot be said positively that other considerations will never be relevant.
What is a relevant consideration in the exercise of discretion under clause 52.27 will vary from case to case. It is impossible to codify the scope of relevant considerations, save to say that they must be relevant in a town planning sense, having regard to the particular permit application, the purpose of the clause, the decision guidelines in the clause, the matters in s 60 of the Planning and Environment Act 1987, and any other relevant matter.
Whilst one of the two stated purposes of clause 52.27 is "to ensure that the impact of the licensed premises on the amenity of the surrounding area is considered", the other purpose is "to ensure that licensed premises are situated in appropriate locations". By its express wording, this second purpose is not necessarily restricted to amenity considerations. Similarly, although four of the five decision guidelines in clause 52.27 refer to impacts on the amenity of the surrounding area, the fifth does not. It requires a consideration of the state and local policy framework. The decision guidelines in clause 52.27 also call up the general decision guidelines in clause 65. These at least potentially raise broader considerations.
Section 60 of the Planning and Environment Act 1987 also requires that, before considering an application, a responsible authority (and, on review, this Tribunal) must consider certain matters, and may consider others. At present, s 60(1) includes significant environmental effects as a mandatory consideration, whereas s 60(1A) requires that a responsible authority "if the circumstances appear to so require" may consider "any significant social and economic effects of the use or development for which the application is made".
Section 60 has recently been amended to make the consideration of significant social effects and economic effects mandatory, although the amending provision has not yet commenced operation[30]. It is suggested that this is intended to give equal weight to environmental, social and economic impacts, to better accord with the objectives of the planning framework in s 4 of the Planning and Environment Act 1987, and to better reflect clause 10 of the State Planning Policy Framework in all planning schemes.
The potential implications of this amendment to the Planning and Environment Act 1987 are as yet untested. For the purpose of answering the question of law before me, the combination of the existing discretionary consideration in s 60(1A) to consider significant social effects if the circumstances appear to so require, combined with the existing objectives of the planning framework in s 4 of the Act, and clause 10 of the State Planning Policy Framework, provide a sufficient basis for considering a significant social effect of a planning decision in appropriate circumstances.
Relevantly, s 4(2) of the Act includes objectives "to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels", and "to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land". Clause 10.02 of the SPPF "seeks to ensure that the objectives of planning in Victoria are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development".
It is for these reasons that it cannot be said that a significant social effect that does not manifest itself as an amenity consideration will never be relevant under clause 52.27. However, whether a significant social or economic effect is ultimately relevant to the exercise of discretion under clause 52.27, and the weight to be attached to it, is a matter for the member hearing the substantive merits of the review proceeding.
Although I have stated above that the reasoning in the Coles Group and Millwood decisions perhaps over-simplify the legal position, I am sympathetic to the underlying sentiment in those decisions, and I do not necessarily disagree with the ultimate merits decision reached in each case. Although the significant social effects of a planning decision may conceivably be a relevant consideration in a given case, as a matter of general principle, a broad concern about the social harm caused by alcohol, the accessibility of alcohol in the community generally, or the potential for the abuse or misuse of alcohol, will rarely (if ever) be a relevant consideration in the exercise of discretion for a particular licensed premises under clause 52.27. These matters are more commonly relevant to the complementary regulatory framework under the Liquor Control Reform Act 1998, albeit that there is some overlap between the liquor licensing and town planning frameworks.
Town planning is not a panacea for all perceived social ills, nor is planning decision-making a forum for addressing all issues of social or community concern. At its heart, planning is about the use, development and protection of land. It has a spatial context that is primarily concerned with the fair, orderly, economic and sustainable use and development of land_[31]_. Town planning does not involve itself in moral judgements nor, subject to this locational or spatial perspective, in the operation of a competitive market economy in which certain goods and services are lawfully made, sold or consumed. Whilst town planning seeks to secure a pleasant, efficient and safe working, living and recreational environment, it is not the role of town planning to address all issues of public health, nor to regulate the pricing or general availability of a product to manage the health and well being of a society.
It follows, for example, that it is not the role of a planning decision-maker to consider the broader impacts on society of obesity, when making a decision about the development of land for a particular fast food outlet. The Tribunal has held that it is not its role to consider the potential health effects of electromagnetic radiation from a telecommunications facility that otherwise complies with relevant Australian safety standards, and a planning decision-maker should not pioneer its own separate standards. Similarly, therefore, it is not the role of a planning decision-maker to consider the broader impacts of the abuse or misuse of alcohol in a society, or to pioneer its own standards about the accessibility of alcohol generally in the community, when making a decision about the use or development of land for a liquor outlet. These are all relevant societal concerns, but they are not necessarily relevant planning considerations to a particular statutory planning decision at a local level.
Broader environmental, social and economic factors may be more relevant at a strategic planning level, in the application of planning controls that group compatible uses together in a spatial context (i.e. through zones and overlays), or in the setting of particular policies and provisions to achieve particular planning objectives - e.g. an adequate provision of community facilities or services in a particular area. Once this strategic planning direction has been set, certain uses and developments become permissible in certain areas, and some of these broader social and economic factors may become less relevant to planning decision-making at a local statutory planning level. Provided a use is not prohibited, the statutory planning decision is not so much concerned with the appropriateness of a use per se (which has already been determined strategically through the setting of the zones and overlays), but rather with the appropriateness of that use in a particular location.
This is particularly the case with licensed premises under clause 52.27. As I have indicated, apart from the purposes of the clause dealing with amenity, the only other stated purpose of clause 52.27 is "to ensure that licensed premises are situated in appropriate locations".
There is a potential analogy between licensed premises under clause 52.27, and gaming machines under clause 52.28. Both contain a purpose to ensure the use is situated in an appropriate location, albeit that clause 52.28 also expressly refers to social and economic impacts. It does so, however, by referring, for the purpose of the relevant town planning consideration, to a consideration of the social and economic impacts of the location of the gaming machines. Broader issues of gaming on community well-being are separately regulated under the Gambling Regulation Act 2003. The planning consideration, in relation to the social and economic impacts of the location of the gaming machines, has been held to authorise a consideration of the appropriateness of locating a gaming premises in a particular location having regard to its relative level of socio-economic disadvantage, and gaming machines are also prohibited in specified shopping centres. In colloquial terms, this has commonly been on the basis that gaming machines should be 'accessible but not convenient' - i.e. to ensure that gaming machines are not located too conveniently in places where the impacts of problem gambling may become a more material issue, but without limiting the lawful accessibility of gaming machines more generally. There remains a clear spatial planning context for the provision.
Insofar as licensed premises is concerned under clause 52.27, a significant social concern about the accessibility of alcohol in an area will be even harder to establish as a relevant town planning consideration than the accessibility of gaming premises, particularly for the sale of packaged liquor where the location of the 'point of sale' and the alleged social harm caused by the availability of alcohol are spatially disconnected. There would usually need to be evidence of very high probative value (rather than a mere assertion) demonstrating a particular and significant social effect that is relevant in a planning context, arising from the particular location of the proposed licensed premises in question. In suburban Melbourne, I find it difficult to conceive of a situation where the social harm caused by the availability of alcohol within a local community might ever be of such significance to warrant it being a relevant planning consideration in considering the location or size of a packaged liquor outlet in a dedicated retail/activity centre. However, given the regulatory framework I have outlined, and the 'never say never' opinion I have expressed about what may be relevant in a given case, this is ultimately a matter for the member hearing the merits of the case based on the evidence and submissions before her.
Even if relevant as a planning consideration, a concern raised about the significant social effects of alcohol is not an over-riding concern that would necessarily, of itself, dictate the outcome of a planning decision. As clause 10 of the state-wide planning schemes indicates, integrated planning decision-making is a balancing exercise with the aim of achieving net community benefit and sustainable development. To this end, a person alleging that there was a particular and significant negative social effect relevant to a decision about licensed premises under clause 52.27 would ordinarily need to provide evidence of that negative effect within the context of a balanced socio-economic assessment of all relevant positive and negative effects so that a balanced 'net community benefit' decision could be made.

At a glance

Court

Decision date

Source

Judgment (98 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (1)

Hunt Club Commercial Pty Ltd v Casey CC [2013] VCAT 726 (21 May 2013)