Kulin Holdings Pty Ltd -V- Penrith City Council [1999] NSWLEC 157

Part 8, (Security Staff) proposes the employment of a licensed uniformed security guard at, and in the vicinity of, the tavern from 10pm until all patrons have left the hotel, in addition to an on duty staff member who is to be a licensed security agent.

The emergence of plans of management adopted and observed by licensees of hotel premises is a recent development in the hotel industry and reflects the significant legislative changes made to the Liquor Act 1982 by the Liquor and Registered Clubs Legislation Amendment Act 1996 (Act No 41) which came into force on 1 October 1996 and which contained provisions in respect of "harm minimisation" and "responsible service practices".

"Harm minimisation" is declared by s 2A to be a primary object of the Act, that section providing as follows:

A primary object of this Act is harm minimisation, that is, the minimisation of harm associated with misuse and abuse of liquor (such as harm arising from violence and other anti-social behaviour). The court, the Board, the Director, the Commissioner of Police and all other persons having functions under this Act are required to have due regard to the need for harm minimisation when exercising functions under this Act. In particular, due regard is to be had to the need for harm minimisation when considering for the purposes of this Act what is or is not in the public interest.

" Responsible service practices " is provided for in s 47A of the Liquor Act which states:

The court is to refuse an application for a licence unless satisfied that practices will be in place at the licensed premises as soon as the licence is granted that ensure as far as reasonably practicable that liquor is sold, supplied and served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and that those practices will remain in place.

Additionally, s 125C was added, enabling regulations to be made making " provision for or with respect to requiring or encouraging the adoption of responsible practices in the sale, supply, service and presentation of liquor " subsection (1) .

In his second Reading Speech on the Liquor and Registered Clubs Legislation Amendment Bill, the Minister for Gaming and Racing, the Hon. Mr J.R. Face described these changes as "public interest amendments" when he said (NSW Parliamentary Debates 18 October 1995 at p 1989):

This bill will introduce a range of public interest amendments to the Liquor Act 1982 and the Registered Clubs Act 1976. The amendments are important because - for the first time - the licensing laws will be amended to directly acknowledge the level of harm that is related to alcohol consumption in our community. The bill will introduce into both Acts the concept of harm - minimisation, in recognition of the harm - the violence and the antisocial behaviour - associated with the misuse and abuse of alcohol. The bill will also introduce for the first time requirements for compulsory responsible service training across the liquor industry. The measures in the bill attempt to put some balance back into the liquor laws - in the interests of the community at large, our young people, and the liquor industry itself. I am pleased that the liquor and registered clubs industries have been very supportive of responsible serving programs and training; and the peak liquor associations are working well with Government on various projects to ameliorate the impact of alcohol abuse in the community.

The Applicant's reliance upon these significant legislative changes to the licensing laws, accompanied by the liquor industry's response to such changes in respect of the manner in which hotels are now expected to be responsibly operated, was complemented by its own good reputation in the industry arising from its experience in the conduct for the past 10 years of a large hotel in the busy cinema district situate in George Street, Sydney.

I did not understand the Council's case to question either those significant changes to the State's licensing laws or the Applicant's experience in hotel management or indeed the prospect that if the proposed tavern were to come into existence, it would be responsibly and effectively conducted by the Applicant.

However, the Council's case did bring into question the following matters: (i.) the ultimate outcomes (in terms of the environmental and social impacts, for the communities in which hotels are located) of such legislative changes and the Liquor Industry's response thereto; (ii.) the perceptions of hotels by those communities; and (iii.) in particular the almost universal unfavourable perception by the Erskine Park community of the proposed tavern.

In these respects, the Council was not in my judgment, being cynical. Rather, it was adopting the pragmatic approach of waiting to see the "hard evidence" of changes, both in the hotel industry as to the manner in which hotels are operated and managed, and in community perceptions of hotels, brought by the legislative changes.

Mr Porter, recognised the capacity of such legislative changes and the Industry's response, to produce improved social impacts and outcomes, but noted that it was still "early days" in the new regime, and that so far as he was aware, there had been no empirical studies undertaken to gauge the impact of the legislative and industry changes.

The Council's response to the Applicant's proposed mitigative measures brings into sharp focus, in relation to the proposed tavern, the interplay between environmental planning laws and licensing laws.

Before the proposed tavern can come into lawful existence, development consent for the proposed tavern is required under the EP&A Act, as is the grant of a licence under the Liquor Act 1982. Although these statutory requirements are cumulative, development consent for the erection of the proposed tavern must be in existence when a conditional licence is granted under the Liquor Act (s 40) and when a final licence is granted under that Act (s 60): see Kennedy v. Emery (1997) 41 NSWLR 413 In this sense, there is a temporal priority in favour of the operation of the EP&A Act over the operation of the Liquor Act. This aspect of the relationship between the cumulative statutory regimes is different from the relationship between the respective antecedent regimes that were formerly provided for by Part XIIA of the Local Government Act 1919 and the Liquor Act 1912, when it was possible to obtain a licence under the Liquor Act in advance of any development consent, a situation that was recognised by the Land and Valuation Court to create a risk that planning authorities, faced with the existence of a liquor licence, might abdicate planning responsibility: see Gordon Boyd and Co. v. Warringah Shire Council (1971) 23 LGRA 46 at 50 where Else-Mitchell J made the following observations:

In evaluating the weight to be given to the objection of injury to the amenity where a hotel is sought to be established in or close to a residential locality, one cannot but comment upon the clear and apparently irreconcilable policies which guide the Licensing Court in the grant of a liquor licence on the one hand and those which are required to be applied by a responsible authority and this Court under a prescribed planning scheme and the Local Government Act on the other. The former require proof of a reasonable requirement for a liquor licence in an identified neighbourhood and this usually means that a site for a licence must be found in an area of population not already catered for by a hotel. But the mere existence of an established residential population makes it inevitable that the hotel will prejudicially affect the amenity of the residential population in some respects, and such affection is one of the primary matters to which a responsible authority and this Court on appeal is obliged to have regard under provisions like cl 27 of the County of Cumberland Planning Scheme Ordinance and cl 36 of the Warringah Planning Scheme Ordinance.

Faced with this conflict in basic policy, is it the function of this court to abdicate its responsibility in favour of the findings of the Licensing Court that the reasonable requirements of the neighbourhood justify a licence, and that the quiet and good order of the neighbourhood will not be disturbed? Plainly not in my view, for the planning scheme which requires regard to be had to any injury to the amenity of a neighbourhood, has equal statutory force to the Liquor Act and provides as compelling a ground for refusing approval to the establishment of a hotel as the reasonable requirement of the same neighbourhood may justify the grant of a licence. And if the consequence was, as counsel suggested, that the competing criteria of the Liquor Act and a planning scheme can never be met by an applicant, the only cause of complaint is against the legislation which has imposed irreconcilable obligations.

The following year, Else-Mitchell J in CGMB Company Pty Ltd v. Hornsby Shire Council (1972) 24 LGRA 414 emphasised the differences between " key concepts" under the separate regimes in the following passage at 417:

The conception of amenity which is to be protected on the consideration of a development application is, it has been said, both wide and flexible including negative and positive qualities and freedom from developments as well as developments which constitute an improvement in facilities ( Humby v. Woollahra Municipal council (4)). Amenity is not to be identified or confused with reasonable requirements of a neighbourhood , the phrase used in the Liquor Act

Although a comparison of considerations relevant to the grant of development consent (see s79C of the EP&A Act ) and those relevant to the grant of a liquor licence (see the Liquor Act s46, s 47 and s 47A ) in respect of a proposed hotel etc would reveal some common aspects of public interest, it is not necessary to further explore these matters, because conventional wisdom is to leave to themselves the respective statutory regimes upon the basis that neither regime eclipses or undermines the other, and that neither relevant decision-maker under each separate regime abdicates its statutory responsibility to the other.

There is, however, one obvious common feature to both regimes that must be noted. It is that the true nature and character of a proposed development to become licensed premises is to be understood for the purpose of the planning appraisal of the proposal in the light of the operation of the Liquor Act in respect of those premises. This, as I would understand it, was the point made by White J in the decision of the Full Court of the South Australian Supreme Court in Duxsell Pty Ltd v. Stirling District Court (1989) 68 LGRA 157 in the following passage at 163:

It was and is not possible for the planning authority to consider the application for consent-use in an appropriate or meaningful way when the applicant failed to reveal to it the class of liquor licence and the exemptions to be sought. This does not mean that the planning authority is to become involved in liquor licensing matters. On the contrary, the planning authority should not intrude into the domain of the Licensing Court. But it is necessary for the planning authority to know what kind of licence (with or without exemptions and dispensations) will be sought so that the planning authority can envisage the actual intended activities on, and uses to be made of, the premises. The reference to a tavern licence in the application for consent was of no assistance and could be misleading. The consequences of holding a hotel licence, on the one hand, or a general facilities licence, on the other, could be quite different. The planning authority was entitled to know not only the immediate intended use but also the direction in which the activities on the premises might ultimately go - and that would depend upon the type of licence to be sought from the licensing Court.

The significance for present purposes of recognising, at the stage of determining the development application, the operation of the Liquor Act as currently in force, is that it is appropriate for the Court to regard the essential nature and character of the proposed development, as prospective licensed premises, as that of a hotel, the management and operation of which is strictly controlled, particularly by the " harm minimisation " and " responsible service practices " of the Liquor Act . Put in another way, it is appropriate for the Court to evaluate the " environmental " and " social " impacts of the proposed at tavern, as required by s 79C of the EP&A Act , on the basis of those impacts as mitigated by the ordinary operation of the Liquor Act as is reflected in the Applicant's proposed Plan of Management.

In so concluding, I take it that when s 79C directs attention to the environmental impact of the proposed development, it is impliedly directing attention to any proposed mitigative or ameliorative measures (in the same manner that former s 90(1)(b) expressly so provided).

However, the foregoing conclusions do not mean that the proposed tavern is to be evaluated on the basis that the proposed mitigative measures will be foolproof or that they will somehow mysteriously transform the proposed tavern into an entirely innocuous form of development in terms of its social impact on the community. The development remains a tavern with the known propensity or potential of all licensed premises to create social and community problems in terms of violent and antisocial behaviour by some persons attending such premises who experience harm from the excessive consumption of alcohol. However, this understanding of the nature of the proposed tavern must be tempered by the recognition that the Liquor Act now imposes strict controls on licensees and managers of licensed premises designed to minimise the incidence of antisocial behaviour in the interest of the welfare of the community.

In my judgment, so to appreciate the nature of the proposed tavern (ie giving full faith and credit to the proposed mitigative measures) does not dislodge or disturb the central thrust of Mr Porter's evidence that the proposed development in its setting poses a significant risk of adverse social impacts.

That risk, as explained by Mr Porter, substantially is founded upon (i) the physical setting of the proposed development and (ii) the social and demographic profile of the Esrkine Park residential community.

Concerning the physical setting of the proposed development, it is its close proximity to a wide range of community uses, on the large expanse of land on the opposite side of Peppertree Drive immediately to the south of the development site that creates the risk. The physical setting of the development site also involves the close proximity of a handful of nearby residences without the benefit of any buffer from the development site, except for the width of Swallow Drive.

Concerning the demographic and social profile of Erskine Park, the very high number of school aged children and youth in the suburb is a significant factor in the assessment of social risk.

This naturally brings me to a consideration of the evidence of the almost universal opposition raised against the proposal by the Erskine Park residential community and by persons or organisations holding significant positions in that community, and most particularly, the principals of the two public schools opposite the development site and the representatives of local community groups and the local police.

In the written report on the proposed development submitted to the Council's meeting held on 15 March 1999, the Council's Senior Environmental Planner outlined the extent of "Community Consultation" in respect of the proposal. His Report includes the following:

Prior to submission of the development application the applicant's planning consultant notified much of the Erskine Park community by way of a mail out. The wording used in the mail out invited residents to come and meet the owners of the new Erskine Park tavern at the subject site on 19 December 1998.

The application was advertised in the local press from 18 December 1998 to 15 January 1999. Property owners and occupiers in the vicinity of the site were notified and invited to comment.

In addition, various community groups, the two local public schools and St Marys Police were invited to provide their views on the proposal. As a result of this process, 364 submissions by way of objection and a petition containing 555 signatures objecting to the proposal were received. Opposition to the proposed development was also received from the Police and the Department of Education.

The main grounds of objection are:- · The site of the proposed use is inappropriately located near schools, childcare centre and houses · Safety and welfare of school students would be affected detrimentally · The proposal would lead to increased vandalism · The proposal would result in anti-social behaviour · The proposal would lead to an increase in traffic and reduced traffic safety · Drug and alcohol impact on youth due to proposal · The proposal would lead to an increase in crime · There is no demonstrated need for the tavern · The proposal would have an adverse impact on amenity of existing residential development · There is insufficient parking for the proposal.

His Report then proceeds to summarise the written objections received from the following local community Groups, namely: (i.) The Erskine Park and St Clair Safety Association Inc.; (ii.) The Erskine Park Neighbourhood Development Team; (iii.) The Erskine Park Child Care Centre Committee; (iv.) The James Erskine Public School; and (v.) The Erskine Park High School.

Given the extraordinary level of resident concern in relation to the proposed tavern, a meeting was arranged at Council's Civic Centre on 4 February 1999, with the applicant, representatives of community groups, schools and Councillors. In addition, to enable residents to raise their views directly with Council, a public meeting was held at the Erskine Park Community Centre Hall on 18 February 1999. Over 400 people attended this meeting, including the Mayor, East Ward Councillors, Councillor Aitken, the Local State MP, Diane Beamer and the Opposition Liberal Candidate, Christine Bourne.

The objections previously raised in resident and community group submissions were further stated at the two meetings referred to above. (Copies of Community Group, Police and Department of Education submissions are included in the attachments to this report).

The Report contains the following comments on the community's response to the proposed development:

In the early 1980s when the estate was planned and the relevant area (including the subject site) was zoned Business 3(c) it was the planning theory that taverns were generally amenable with neighbourhood shopping centres. However, almost 20 years later, this type of facility no longer has the support of the wider Erskine Park community. The very considerable opposition to the proposal is reflected in the unusually high number (360) of individual letters of objection and a petition including 550 signatures from all parts of the Erskine Park community, comprising about 2,500 households or a population of 6,700.

This represents about 15% of the Erskine Park population and possibly as high as 30% of all households. The objections concern amenity, social and safety issues, as previously detailed.

The proposed development would site more appropriately within the context of a larger district or town centre where opportunity exists to provide an effective buffer/separation to schools, residential and community uses.

It is considered that the proposal is contrary to the community expectations for their community/shopping centre precinct. The development of the tavern is therefore not considered to be in the public interest.

Mr Smith, in his Report ( Exhibit 4 ) drew attention to a flyer prepared by an anonymous author that had been circulated in the Erskine Park Suburb inviting objections to the development proposal. Its content included the following:

Do you want……. · A pub located across the road from our local schools, childcare centres, community centre and sporting fields? · Your children to be subjected to and harassed by drunk and disorderly pub patrons? · Your children to be approached and harassed by drug dealers? · Your children to be subjected to drinking and gambling by peer group pressure? · An increase in vandalism, break and enter, and theft in our local area? · To feel threatened by drunken and disorderly pub patrons lingering around the shopping centre? · Increased traffic flow on our local roads? · Drunk drivers on our local roads? · Drunk and disorderly pub patrons walking home late at night past your home, destroying your letterbox, garbage bins and gardens, fighting and making a noise? · The price of your home to plummet due to an increase in crime?

Can our local police force cope with the increase in crime in our area if a pub is approved in our area?

DO SOMETHING NOW TO STOP THE APPROVAL OF THE ERSKINE PARK TAVERN.

WRITE TO PENRITH COUNCIL NOW - STATING YOUR OBJECTION TO THE DEVELOPMENT

Mr Smith thought that this flyer showed " someone set out to paint the worst possible picture of the proposal ".

Mr Smith, while acknowledging that "organised opposition to development proposals is a legitimate part of the political process of local government" believed that "the Court should not be influenced by objections (no matter how numerous) which are based on misconceptions, misrepresentation or, as is the case here, near hysteria".

I am unable to accept Mr Smith's opinion that the community opposition raised against the proposed development should be seen to be "based upon misconceptions, misrepresentation or near hysteria".

I do accept Mr Smith's opinion that the flyer circulated in the local community did represent the proposal in "its worst possible light", but I do not accept his implicit opinion that for that reason the widespread community reaction to the development proposal can be simply dismissed or ignored. There are many reasons for this conclusion and they include the following: (i.) the representations contained in the flyer of the possible social and environmental impacts of the proposed tavern, though decidedly uncomplimentary, are not of a character that involves any flight of fancy - rather, the representations focus attention on the worst possible impacts of the proposed tavern (being impacts that are not unknown in the hotel industry); (ii.) the community opposition includes opposition voiced by persons occupying important positions in the local community eg the School Principals, the local Police Force and the Local Community Associations and being particularly qualified to speak on behalf of the welfare of children and youth in the community; (iii.) the community responses to the proposed development are to be regarded as aspects of the "public interest" within the meaning of s 79C(1)(e) of the EP&A Act, in securing the advancement of one of the express objects of the Act "to provide increased opportunity for public involvement and participation in environmental planning and assessment": see s 5(c); and (iv.) the grounds expressed in the community objections are substantially corroborated by the expert evidence adduced by the Council of the social and environmental impacts of the proposal.

Mr Smith concluded in his Report (Section 13) that "the only real issue in this appeal is whether or not the proposed development should be permitted to proceed in the face of very widespread community opposition (which) is based primarily, on the proximity of the site to child care facilities and a school".

Having thus posed the essential question for decision, Mr Smith goes on to say that "there are numerous examples of hotels and similar facilities being in much the same relationship" and that "he was not aware of any evidence that such arrangements led to the serious problems which some of the objectors allege would arise if the appeal is upheld".

Mr Smith ultimately answered the question he had posed for himself in the following passage in his Report:

Erskine Park is a fairly typical suburb despite what some residents may contend. There is no reason to expect that a well-run hotel would cause any more problems in it than other hotels do in other suburbs. I appreciate that there are some hotels in some areas which have unfortunate reputations. However, the great majority are simply innocuous parts of their communities. I anticipate that would be the case here since it would be a small hotel which is not designed to attract large crowds from a wide area; it is simply intended to service the needs of the local population which would now number around 7,000.

Mr Smith is a town planner of vast experience (including wide experience in relation to the State's licensing laws). As such, his views are entitled to great weight and respect.

In the present case, however, I am unable to accept his ultimate opinions principally because I think that he has seriously misjudged the effect of community opposition to the proposed developed. I accept that there are existing situations where hotels and schools may peaceably co-exist in close proximity one to the other. The development at Wattle Grove in Liverpool City, which was cited as an example of such co-existence, and was included in the Court's view, appears to be a recent example of the successful integration of a tavern in a modern shopping centre, servicing the planned residential suburb of Wattle Grove where there was located on land adjoining the tavern, a private school.

However, ultimately, the evaluation of whether a new development should be permitted in an existing environment depends, not upon general propositions of planning law and practice, but upon an evaluation of the relevant facts and circumstances of the case. In the present case, the physical environment of the development site and its immediately surrounding environment (particularly the large scale collocation of community uses) cannot, in my judgment, be meaningfully compared with the distinct physical environment pertaining to the Wattle Grove development. That provides an apt illustration of how apparently diverse developments can successfully co-exist, but it does not establish any general planning principle for ready application to different physical environments.

In the present case, as I have explained, it is the collocation of extensive community uses (principally involving children and youths) on land immediately opposite the development site that, as a matter of significant degree, highlights the potential adverse social impacts of the proposed tavern by virtue of the co-existence of those diverse uses. Moreover, the shopping centre development and the community use developments unmistakably form the hub and heart of the community life of the Erskine Park residential suburb. It is this central prominence of the development site, and of the adjacent lands accommodating the community uses that contributes to the potential adverse social impacts of the proposed development in the locality.

Finally, I must say that I am also unable to accept Mr Smith's anticipation that the proposed tavern will "simply form an innocuous part of the community'. This anticipation can only be reasonably founded upon the premise that the widespread community opposition to the proposal is somehow or other to be overcome or is otherwise to be dismissed. The Applicant's case has not persuaded me that this is so.

It may be accepted that in life (both individual and community) sometimes present fears of a prospective condition or circumstance are not realised when that prospect actually comes into existence. However, it is human nature to fear the worst. In any event, individual or community fears or apprehensions, cannot be merely explained away, dismissed, or ignored. In a New Zealand town planning case (Allens Service Station Ltd v. Glen Eden Borough Council (1985) 10 NZTPA 400) Chilwell J, sitting in the High Court of New Zealand, made the following observations at 414 in respect of neighbouring residents' objections to a proposed LPG storage facility:

It cannot be gainsaid that psychological health is part of total health. Fear is a natural human reaction to certain circumstances. Community fear finds expression in a variety of ways and in respect of a variety of circumstances. The supposed current wave of violence has seen many public manifestations of fear. On a more limited scale some people fear being close to penal institutions, hotels, hospitals and the like. The list can be significantly enlarged upon a few moments' reflection. Sometimes it is no easy task to allay genuinely held community fear, even when the grounds cease to be reasonable. The reasonable person does not necessarily bring the same reasonable judgment to bear when he acts in concert with his neighbours. Reasonableness is not weighed in a vacuum but in the context of life's realities.

In Strathfield Municipal Council v. Drew (1985) 1 NSWLR 338 (a case involving a proposed crematory) Mahoney JA, in holding that the EP&A Act had not impliedly repealed s 51(2) of the Public Health Act 1902 said at 341:

The legislature has, as I have said, for a long time made special provision in respect of crematories and has made that provision in the context of public health legislation. The reactions of members of the public to crematoria and similar facilities, rational or emotional, are such that the legislature may well have concluded that they should be dealt with by Special legislation rather than be left to be dealt with by the terms of a general planning or environmental law.

These cases are cited as illustrations of the legitimacy (particularly in the operation of the EP&A Act , with its express objects concerning increased opportunity for public participation and involvement in the planning process) of the consideration of community and public responses to proposed developments that are apt to have an environmental and social influence or impact in the community, especially affecting the children and youth of the community.

In the present case, I have found that the widespread community reaction against the proposed development is a relevant fact, in "the public interest" in the evaluation of the proposal. In my ultimate evaluation of the proposal, it is a significant fact which significantly contributes and attests to, the likely social impact of the proposed development in the locality.

Given the weight of community reaction against the proposal, there is, in my judgment, a fundamental incongruity in the Applicant's expressed intention that the proposed tavern will "simply service the needs of the local population". Again, I fear that the Applicant has misjudged the force of community reaction.

For all the foregoing reasons, I find that the proposed tavern is likely to have an adverse environmental impact, and more particularly an adverse social impact in the locality, and that for this reason, and in the public interest, development consent should not be granted to the proposed development.

Accordingly, I make the following orders:

1. Appeal be dismissed.
2. Development consent be refused.
3. Exhibits be returned.
4. No order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.