Victorian Civil and Administrative Tribunal|2009-10-19

Joshamie Nominees Pty v Director of Liquor Licensing (Occupational and Business Regulation) [2009] VCAT 2188 (19 October 2009)

Occupational and Business Regulation List, application for packaged liquor licence, amenity issues, harm minimisation, Liquor Control Reform Act 1998, section 44

Joshamie Nominees Pty v Director of Liquor Licensing (Occupational and Business Regulation) [2009] VCAT 2188

The decision of the respondent made 18 December 2008 is set aside and is replaced with a decision that a packaged liquor licence (subject to conditions) be granted to the applicant
The parties have liberty to apply in relation to the conditions referred to in this order.

Joshamie Nominees Pty Limited owns a three-shop complex at 113 Rosella Avenue, Werribee. One shop is a convenience store and another is a fish and chip shop. The middle shop in the block is empty and the company wishes to operate a packaged liquor outlet there to complement the adjacent convenience store. The complex abuts a reserve known as Cassowary Reserve.
The company's application was referred to and considered by a Liquor Licensing Panel; on 12 November 2008 the Panel recommended that the application should not be granted. I set out below the Panel recommendations which were confirmed by the Director of Liquor Licensing.

Clearly the Heathdale Estate (Rosella Avenue) is in need of assistance. Representatives from the Department of Human Services, the Wyndham City Council, Neighbourhood Watch, Community Renewal Program and many members of the community are committed to greatly improving the quality of life for all persons on the Estate.

Mr Aldred on behalf of the Applicant, provided in a most competent manner his submission based on decisions of Avery, Hansen, Stapleton, Nardi and Black. The Panel took the view that each application should be considered on their own merits and the overall circumstances that exist, but take into account those decisions before VCAT as previously mentioned.

The Panel noted that a previous business conducted (Pizza Shop) by the Applicant had been closed down.

The Panel agrees with the submission of Mr Ashley from the Wyndham Legal Service that it would not be in the interests of the community to have a packaged liquor licence in Rosella Avenue. The Panel has also come to the view that the grant of a licence could impact negatively on the success of the Community Renewal Program.

Taking into account all of the social issues as presented at the Hearing, the Panel has concluded that the grant of a licence would detract from or be detrimental to the amenity of the area. Further, the Panel has also concluded that the grant of a licence would be conducive to or encourage the misuse or abuse of alcohol.

The Director of Liquor Licensing in refusing the application echoed the views of the Panel. The basis of her objection was twofold - one was amenity (s.44(2)(b)(i) of the Liquor Control Reform Act ("the Act")) and the other related to the abuse or misuse of alcohol (s.44(2)(b)(ii)). She was also concerned about noise, the deterioration of the local environment and took into account the views of the community in relation to the need to rebuild the Heathdale Estate.
"Amenity" is defined as having the meaning given by section 3A of the Act. Section 3A provides -

(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 subsection (2) is intended to limit the definition of amenity.

The community views were expressed before this Tribunal by a number of residents and by representatives from the local council as well as the local neighbourhood association. The fifteen residents whose written objections were before the Tribunal were generally concerned about under-age drinking, rubbish, safety, damage and noise. I understand that they are representative of the views expressed by a number of other objectors. Of those fifteen residents, only a handful live in what I would call the immediate vicinity. Opposed to their views, some 379 people signed a petition in support of the application. A number of the signatories to that petition appear also to come from outside the area, but contrary to the objectors, many do live in the immediate vicinity. The case of Black v Cooke [2000] VCAT 459 is authority for the proposition that the test for amenity is an objective one.
I was urged by the parties to conduct an inspection and I did. Confronted with the bleak and dismal picture painted before me by the objectors I was prepared for a site of urban desolation and thus was reasonably surprised by what I saw. In considering matters of amenity, one might wonder at the efficacy of the small strip shopping centres incorporated in these residential areas - they do not lend themselves to beautification and certainly the owner of this centre could do much to improve the surroundings of the property it owns. Next to the subject premises is Cassowary Reserve. It is a reserve, not a park. It provides a throughway from Rosella Ave to Cassowary Ave and Songlark Crescent. It is unlit, has a picnic table, four park benches, a basketball ring and some drought-distressed native trees. Other than a couple of empty "pocket rocket" cans and something entitled "Mother of an Energy Kick" the reserve was surprisingly free of litter. It is open, flat and not conducive to picnicking or loitering. It is overlooked to some degree by houses in Wattle Bird Court, Cassowary Avenue, Songlark Crescent and Fieldlark Court.
A short walking distance to the south of the premises is an open area entitled the Heathdale Glen Orden Wetlands. The wetlands (now distinctly parched notwithstanding recent rain) occupy a wide-open expanse overlooked by neighbouring houses. On the eastern and northern perimeters there are some schools and a retirement village. In those areas there is not the same natural oversight as is provided where the wetlands abut residential streets and houses. The general area has some play equipment, bicycle and walking tracks and is relatively free from litter.
The residents fear that a packaged liquor outlet will result in under-age drinking and alcohol-fuelled damage in the surrounding parks and that there will be a gathering of drinkers, all of which factors will constitute a detriment to the amenity of the area. With this fear in mind they urged me to inspect the nearby Vincent Crescent shopping complex where another liquor outlet operates. This is a larger centre encompassing a pizza shop, a hairdressing salon and a fish and chip shop, it borders a reserve and is in close proximity to the Galvin Park Secondary College. The liquor outlet operates under the "Cellarbrations" banner. The nearby reserve (which has swings and play equipment and is unlit) is neat and clean and the area is open and like Cassowary Reserve, not particularly a site for gathering.
On the sunny Saturday afternoon and Friday evening when I inspected the areas, they were quiet and relatively few young people entered the Cellarbrations outlet although it was quite busy. The nearby Sims licensed supermarket (Shaws and Tarneet Roads) was extremely busy on the afternoon I was there. Were need and demand matters for consideration, one would wonder why the area needed another liquor outlet but those are not matters for consideration by this Tribunal. The Liquor Control Reform Act 1998 provides that insufficient need or demand is not a basis for objection.
At the hearing the Tribunal heard from a number of witnesses other than the residents. Both the applicant and the respondents brought along their experts and their reports were tendered and their evidence was the subject of cross-examination.
Documents before the Tribunal indicate that the Heathdale area, as a disadvantaged community, is designated a Neighbourhood Renewal site by the Department of Human Services (DHS). The council, in partnership with DHS has, over the past four years, sought to bring about change under the auspices of the renewal program. The program will continue until 2011 and its aim is to "reduce inequality, build more cohesive communities and make government services more responsive to the needs of communities." The Tribunal understands that the 2006 census supported findings that household income in the Heathdale area was markedly lower than other households in Wyndham, a greater percentage of residents lived in rented premises than those in the rest of Wyndham and the unemployment rate for Heathdale residents was almost double that of other Wyndham residents. All of this is uncontested.
For its part, the Council is concerned that the grant of a liquor licence for the subject premises will have an adverse effect on the positive community development work undertaken to date and that there will be increased alcohol consumption within the nearby public spaces thus giving rise to associated littering, loitering, vandalism, nuisance and concern for public safety.
The Heathdale Neighbourhood Association bases its objection in part on the effect of the granting of the Vincent Crescent licence on the amenity of that area, and in part on the presence of young people loitering and drinking, littering with rubbish and broken glass and engaging in anti-social behaviour in the local public areas. The objectors told the Tribunal that it was easy for under-age drinkers in the area to purchase liquor but I note that the Chief Commissioner was not an objector to this application and neither the local police nor the licensing police contested the application.
One of the residents informed the Tribunal that were a licence to be granted, DHS would withdraw its funding for the renewal plan. There was no evidence before the Tribunal of this being a correct statement of fact, but one would hope it was not an accurate reflection of the departmental view.
The expert evidence before the Tribunal was given by Ms Maxine Cooper for the applicant, and Mr Michael Livingston for the various respondents. Ms Cooper is a social researcher well experienced in planning and environmental matters and Mr Livingston is a researcher into (inter alia) alcohol availability, alcohol consumption and alcohol-related harm.
Mr Livingston addressed a number of issues in his comprehensive report and in relation to amenity stated that:

...there is a clear link between proximity to packaged liquor and amenity problems, with, for example, 47.6% of people living less than 500 metres from a liquor store reporting that they'd been kept awake at night by noise due to other people's drinking, compared with just 25% of people living more than 5km from a liquor store. Similar gradients are found for respondents experiencing property damage or feeling unsafe in public places.

Mr Livingston cited a study in New South Wales which found that the closer people live to alcohol outlets, the more likely they were to experience problems with property damage and drunkenness in the neighbourhood. The limitation on this research is that it referred to all liquor outlets. Mr Livingston told the Tribunal that despite Wyndham having a lower rate of alcohol-related hospitalisations than the state average, there was a significantly higher rate of harm of young people in the 15-24 age group being admitted to hospital for such matters. Of course it is only fair to note that most liquor outlets are in areas that attract custom and attendance for other reasons, not just for liquor. In this case the convenience store and the fish and chip outlet already exist and attract customers whilst in other cases, surrounding shops, shopping centre, supermarkets and the like are a magnet.
He provided the Tribunal with a copy of his paper entitled "A longitudinal analysis of alcohol outlet density and assault"; this paper was the result of a 9-year study measuring alcohol outlet density and alcohol-related violence from 186 postcodes in metropolitan Melbourne. The conclusion of the study was that changes in the number of alcohol outlets in a community were linked to changes in the amount of violence experienced by the community. This relationship varied across the clusters of suburbs examined (there were 5 clusters based on their socio-demographic profile) with packaged liquor outlets consistently associated with violence in suburban areas and general (hotel) and on-premises (nightclubs, restaurants and bars) licences associated with violence in inner city and inner suburban areas. Mr Livingston set out the limitations of the study, pointing out that the shortcoming of the study was the lack of longitudinal control data, including socio-demographic characteristics of areas, drug market activity and other retail activity. At page 5 of that report he summarised the limitations by saying:

.....while this study finds significant relationships between outlets and assaults, the nuances of this relationship and information relating particular outlet characteristics to violence are not examined. Further data, on alcohol sales, opening hours, capacity and venue style could provide further insight into how different outlets contribute to the effect of outlet density on assault.

Mr Livingston was the co-author or an article entitled "Individual and community correlates of young people's high-risk drinking in Victoria, Australia", an article accepted for publication in scientific journals in June 2008. In a chapter entitled "Discussion" the authors considered the relationship between higher amounts of available money for recreational spending, workforce participation and the increased rate of reported very high-risk drinking (said to be conservatively pitched at 20 standard drinks for males and 11 standard drinks for females which was thought to resemble the lay concept of binge drinking) and in considering the individual variables, examined a number of community-level variables in their multi-level modelling. The result was set out as follows:

The absence of any effects of area-level sociodemographics on very high-risk drinking was unexpected given previous findings that sociodemographic variables mediate the relationship between alcohol consumption and harms in Victoria, although our study did not explore the harms that high-risk drinkers experienced. The association between packaged liquor outlet density and reported very high-risk drinking is important. Whilst the effect seems modest (1.035) the model would suggest that an increase in one packaged liquor outlet in a postcode with 200 very high-risk young drinkers (from a total population of 1000 young people ) would be expected to be associated with an increase of approximately 6 extra young people drinking at such levels. The absence of any effects associated with the other types of licences was surprising but may reflect the fact that access to alcohol is relatively easy in almost all areas of Victoria. This 'saturation' may mean that changes in on-premise outlet density are unlikely to have any major impact on young people's drinking, in contrast to packaged liquor outlets that may serve the underage drinkers in our sample in particular. However we have only considered the effects of licence density on a very high-risk pattern of drinking among young people (perhaps indicating some determination to drink large amounts). It may be that the density of on-premises licences may impact on other drinking patterns.

It should be noted that this study has focussed on only a few community-level variables (socio-economic disadvantage, remoteness and alcohol-outlet density) and has not examined whether other community-level factors mediate the prevalence of high-risk drinking.

What is abundantly clear from Mr Livingston's evidence and from his writings is that which is abundantly clear to anyone reading the daily newspapers or watching the nightly news. Excessive consumption of alcohol and alcohol-related violence is endemic in our community. It is not restricted to youth, to the unemployed, to particular ethnic groups, to particular suburbs or to those suffering economic disadvantage. Clearly the community as a whole is disturbed by recent reports of alcohol-fuelled violence; the Tribunal accepts that as a fact.
Mr Scally, who appeared for the applicant, made a variety of submissions in relation to the evidence of Mr Livingston. For instance he noted that the longitudinal study identified a 0.39 per year assault increase per packaged liquor licence and submitted this was imperceptible. Further the study was limited by a lack of data on areas such as drug activity and other retail activity
Mr Scally urged the Tribunal not to place excessive weight on evidence concerning the socio-economic profile of the area and to reject the suggestion that any increase in the number of licences would ipso facto lead to an increase in harm. His submission was that the Tribunal should place reliance on the uncontested evidence of the record and experience of the intended operator and in balancing the public interest with the requirement to minimise harm and to guard against the misuse or abuse of alcohol, affirm that the applicant is entitled to the benefit of the presumption that he will comply with the law. I accept that submission.
Mr Livingston's evidence does however provide some disturbing conclusions and the range of issues he explores must surely give rise to concern and consideration by our legislators if indeed his conclusions are accepted. It strikes me that this is a matter independent of the result of this application and as Mr Scally submitted, requires a more sophisticated response involving community education, treatment facilities and the like. The proliferation of packaged liquor licences is something that can be minimised by governments if indeed they are persuaded that Mr Livingston's conclusions have force and foundation and that they require legislative action. I consider it is of limited utility to take his conclusions apart point by point because of a lack of local comparators, or the use of international comparators or the non-differentiation of the types of licences. Indeed he has been careful to enunciate the shortcomings of the review process. What is more important is that his evidence does not give rise to a conclusion that another packaged liquor licence will of necessity cause greater consumption of alcohol in the immediate vicinity of the Heathdale estate and thus give rise to greater harm as a result of that increased consumption.
Ms Cooper's conclusions (which I accept) in favour of granting the licence are relevantly set out in paragraph 6 of her report. She stated that in her view -

Granting the proposed packaged liquor licence would be unlikely to generate notable amenity impacts for the local community and/or promote the misuse of alcohol. This is because:

At present, consumption of alcohol in the local area is unlikely to be curtailed due to the lack of access to opportunities to purchase alcohol. As a result, the proposed bottle shop would be unlikely to promote increased consumption.
The location of the proposed bottle shop is such that it would not generate an amenity threshold effect.
For the most part, alcohol purchased at a bottle shop is not consumed in public in close proximity to the outlet. Although sale to minors can lead to public consumption in the vicinity of a bottle shop and thereby generate localised amenity impacts, the extent to which this occurs is a function of serving practice rather than outlet location.
The local park located adjacent to the proposed bottle shop is subject to high degree of natural surveillance and does not offer shelter. As a result it is unlikely to be the location of choice for underage drinkers.
Alcohol related harm is a problem that faces all strata of society. Statistical differences between advantaged and disadvantaged communities in terms of alcohol related violence are small. Furthermore, the explanatory power of the number of packaged liquor outlets in terms of accounting for any differences is weak. As a result, treating particular disadvantaged communities differently in terms of regulating alcohol is not consistent with the prevailing pattern of alcohol consumption and associated harm in metropolitan Melbourne.

Mr Devlin appeared for the Director and submitted that the reports from Mr Livingston (and others referred to by him) should persuade me that this application should be denied. He submitted I should accept that the policy considerations behind the second study (that is, the longitudinal study) conducted by Mr Livingston were particularly relevant as they specified that packaged liquor outlets were particularly problematic for disadvantaged suburban areas with each new outlet associated with an increase of 0.66 assaults per year. This he submitted should be considered in conjunction with recent research conducted to explore the relationship between packaged liquor outlet density and domestic violence which 'has found a strong link, with each new packaged outlet associated with just over one incident of reported violence.' In relation to that, Mr Livingston noted that socio-economic disadvantage is strongly linked with events of domestic violence.
Apart from the expert testimony of Mr Livingston and Ms Cooper, Mr Devlin submitted I should be mindful of two significant pieces of evidence: first, that the Heathdale community is a particularly vulnerable community with reduced amenity levels; and second, that a large number of community witnesses confirm that vulnerability and confirm their expectation that the introduction of a bottle shop into the heart of the residential area will further reduce the fractured amenity of the area.
He also submitted that a consideration of the words "amenity of the area in which the premises to which the application relates are situated" does not confine the impact to the immediate surroundings of the premises but to the greater surrounds "if it can be established that the cause of the amenity issue is anchored to the subject site". It was his submission that "amenity must be considered in the broader context to include the environment to which the subject site proposes to enter and this consideration must include reference to underlying socio-economic indicators and related behaviour/conduct." The problem with this argument is that it requires the Tribunal to treat the Heathdale area less favourably than others because of the alleged lower socio-economic status of the community and this cannot be a proper outcome.
As I remarked earlier, it is difficult to conclude that there is a need for another outlet. The area is dotted with liquor outlets of one kind or another (around thirty within a 2 km radius), be they on-premises, packaged liquor, general, limited or club licences. But the Tribunal is bound to work within the statutory framework provided to it and matters of need and demand are explicitly excluded from consideration by the enabling legislation.
Matters of amenity are of course contextual, and in that I agree with Mr Devlin, but this is a small shopping centre deliberately insinuated into a residential area which is well served with public open space. Ms Cooper conceded that there would be some effect on the amenity of the area were a licence to be granted but in her view such an effect would not be at all significant. The public areas are flat and visible from a variety of directions, they are overlooked by houses and they are not conductive to gathering or loitering. The wetlands are spare and flat, vegetation is low and thinly scattered and visibility is excellent.
Notwithstanding the statements of the various objectors about the effect on the surrounding area of the Vincent Street outlet, such effects were not obvious on the occasion of my inspection. That of course is just an observation and I have not drawn any conclusions from what I observed. I am of course mindful of the evidence given by the residents in relation to the area. Like Ms Cooper, I did not seek the views of local residents but I observed the area was tidy and unremarkable and the adjacent reserve was not littered. Certainly the architecture of the shops leaves a lot to be desired but I saw no evidence of detriment to the amenity of the Vincent Street area and no evidence of rubbish or littering or poor behaviour. Of course that is not to say that anti-social behaviour does not occur. I accept the residents' evidence that they have witnessed poor public behaviour but I am not persuaded that this will be any better or any worse in the event another outlet is established.
Notwithstanding the passionate views of the objectors I am mindful that a very large number of residents supported this particular application when it was first made and that those proponents far outnumber the opponents.
Mr Devlin in his submissions conceded that harm minimisation in a general sense cannot be relied on to defeat an application and noted that what is required is a consideration of the "particular circumstances, site and premises". He referred me to a passage in Black & Anor v Liquor Licensing Victoria VCAT 14 February 2008 where the Tribunal stated-

There may well be, in the future, applications for packaged liquor licences in circumstances where the object of harm minimisation stands out as being poorly served by reason of particular local, social, demographic and geographic circumstances. We do not think it appropriate in the course of this decision to confine the circumstances under which the object of harm minimisation may be achieved by the refusal of a grant of a packaged liquor licence by stating examples of when such a course would be appropriate.

He also submitted that in deciding whether to grant an application, the decision maker must consider current government policy as well as current community concerns. He contends that government policy is clearly concerned with antisocial behaviour linked to liquor supply in and around licensed premises and says I should draw this from the various 2005 and 20067 second reading speeches. He submitted that those statements of policy (in the second reading speeches) are "reflected in the current community debate as to the effects of alcohol in our community, particularly a disadvantaged community.............in this environment it is proper to take a cautious approach to licensing a site that is problematic, including problematic matters in and around the subject site that will cause or are likely to cause detriment to the amenity or anti-social behaviour in around the subject site."
Notwithstanding Mr Devlin's eloquent submissions I am not persuaded they should be accepted. I am not persuaded on the evidence that to grant this application will result in an increase in alcohol consumption. It strikes me that the residents of the area will continue to buy alcohol no matter whether they get it from another packaged liquor outlet, from the local pub or from the local supermarket. Whether or not this outlet is operating, purchases will continue in the immediate area. It is necessary to strike a balance between the community concerns and the opportunity for local residents to have a well-run small liquor outlet in close proximity servicing their needs.
The applicant desires to establish a small stand-alone business that will be run by family members, will stock a range of beers, wines and spirits and a range of ancillary products that will complement the goods available in the next door convenience store. There will be no home delivery and the company is amenable to the imposition of reasonable hours of operation to ensure that generally, there will be limited after-dark trading. The applicant sees the reasonable hours as a concession (to some degree) to nearby residents. There is more than adequate parking. There is no suggestion that there will be an appreciable increase in traffic and noise and the owner is entitled to the presumption that he will operate responsibly and entirely within the law. Indeed, I imagine that the local residents will maintain considerable vigilance to ensure he does so. The Liquor Control Reform Act provides for a regulatory regime which makes it important for licensees to act within the law because failure to do so can result in disqualification, cancellation and hefty fines.
I accept that this is a disadvantaged area but I am not persuaded that the possibility of nuisance and vandalism will be increased or affected by the granting of the licence. As indicated by Ms Cooper and observed by me, the area is open and visible and has natural supervision from neighbouring residences. The Tribunal proposes to impose trading hours which will moderate night trading.
The decision of the respondent is therefore set aside and is replaced with a decision that the applicant be granted a packaged liquor licence according to the plans as submitted subject to a condition that home deliveries will not be permitted and subject to the following trading hours:

The parties have liberty to apply in relation to the said conditions.

Control Reform Act 1998

Joshamie Nominees Pty v Director of Liquor Licensing

At a glance

Court

Decision date

Source

Judgment (28 paragraphs)

Joshamie Nominees Pty v Director of Liquor Licensing (Occupational and Business Regulation) [2009] VCAT 2188 (19 October 2009)

Parties

Legislation Cited (1)