Motto Farm Pty Limited v Port Stephens Council

The site and surrounding area 3The site comprises pt Lot 1 in DP 350551, Lots 1, 2 and 3 in DP 264023 and Lot 101 in DP 807522 and has an area of around 4 ha. The motel has its principal frontage to the Pacific Highway and other street frontages to Kingston Parade and Rainbird Close. The motel complex is located towards the Pacific Highway frontage and comprises eight buildings plus a manager's residence. It is made up of 80 accommodation units, three function rooms, one of which is used as a restaurant with an on-premises licence, a swimming pool and some recreational facilities. A total of 131 car spaces and five bays for coach and truck parking are located on the site. Vehicular access to the motel is located off Kingston Parade, approximately 30 m from the intersection with the Pacific Highway. 4The site is located on the western side of the Pacific Highway and generally to the north, the motel adjoins a residential development of some 40 lots with areas around 1 hectare. These lots have a frontage to Kingston Parade and Rainbird Close and share their only access from the Pacific Highway, at Kingston Parade, with the motel. Further to the north are the Kingston Motel, the Raymond Terrace High School and the Bellhaven Caravan Park. To the south of the site is the Pacific Gardens Caravan Park. 5On the opposite side of the Pacific Highway, the land uses are predominantly industrial with some showrooms/sale yards, a service station and fast food outlets along the Pacific Highway frontage.

The proposal 6The proposal provides for the use of the area presently housing the motel's reception area, the breakfast area and lounge area for motel guests and the adjoining verandah, as a hotel. The use of this area involves:

• the construction of a 25 sq m storeroom/cool room
• the erection of balustrade along part of the verandah facing the Pacific Highway,
• the demolition of existing internal counters and the erection of a new bar,
• the erection of numerous bollards, speed humps and boom gates to segregate the motel and hotel parking,
• the relocation of the motel's reception desk, and
• upgrading of the motel's sewage system. 7The proposed hours of operation are:
• Monday to Thursday - 10 a.m. to 11 p.m.
• Friday to Saturday - 10 a.m. to midnight
• Sundays and public holidays - 10 a.m. to 10 p.m. 8The internal floor area is around 180 sq m (excluding the bar counter and store room areas). The verandah areas are also to be licensed and to provide a place for smokers as well as other patrons. This provides for a licensed area of around 300 sq m (or 250 sq m accessible by patrons) and a hypothetical maximum practical capacity of around 180 patrons. The applicant has indicated that they would accept a condition providing for a maximum number of 150 patrons. The sale of packaged alcohol would be available over the bar but no separate liquor sales area is proposed. 9The development application does not include the provision of gaming machines however the applicant states that five or six gaming machines and a TAB facility may be installed in the hotel.

Relevant planning controls 10The objects of the Environmental Planning and Assessment Act 1979 (the EPA Act) relevantly include s5(a)(i) and (ii) which encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land , 11Section 79C(1) of the EPA Act relevantly provides: (1) Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 12The site is within Zone 1(a) Rural Agriculture under Port Stephens Local Environmental Plan 2000 (LEP 2000). The description of the zone is:

1. Description of the zone The Rural Agriculture "A" Zone identifies land which is of agricultural value and land which has not been set aside for rural residential development. 13The zone objectives are: (2) Objectives of the zone The objective of the Rural Agriculture "A" Zone is to maintain the rural character of the area and to promote the efficient and sustainable utilisation of rural land and resources by: (a) regulating the development of rural land for purposes other than agriculture by ensuring that development is compatible with rural land uses and does not adversely affect the environment or the amenity of the locality, and (b) ensuring development will not have a detrimental effect on established agricultural operations or rural activities in the locality, and (c) preventing the fragmentation of grazing or prime agricultural lands, protecting the agricultural potential of rural land not identified for alternative land use, and minimising the cost to the community of: (i) fragmented and isolated development of rural land, and (ii) providing, extending and maintaining public amenities and services, and (d) protecting or conserving (or both protecting and conserving): (i) soil stability by controlling development in accordance with land capability, and (ii) trees and other vegetation in environmentally sensitive localities where the conservation of the vegetation is likely to reduce land degradation or biodiversity, and (iii) water resources, water quality and wetland areas, and their catchments and buffer areas, and (iv) land affected by acid sulphate soils by controlling development of that land likely to affect drainage or lower the water table or cause soil disturbance, and (v) valuable deposits of minerals and extractive materials by restricting development that would compromise the efficient extraction of those deposits, and (e) reducing the incidence of loss of life and damage to property and the environment in localities subject to flooding and to enable uses and developments consistent with floodplain management practices. 14Clause 10(2) provides: 10 Zone objectives and development control table (1) . (2) The consent authority must not grant consent for development of land to which this plan applies unless it is satisfied that the proposed development is consistent with the objectives of the zone in which it is intended to be carried out . 15While a hotel is an innominate use in Zone No 1(a), t he proposed development is only permissible by way of cl 14A that provides: 14A Hotels and restaurants in Zone No 1 (a) (1) This clause applies to land within Zone No 1 (a). (2) Despite any other provision of this plan, the consent authority must not consent to development of any land to which this clause applies for the purpose of a hotel or restaurant unless the development is in conjunction with a tourist facility. 16The Dictionary to LEP 2000 relevantly provides: tourist facility means an establishment providing primarily for tourist accommodation or recreation, or both.

The applicant's submissions 17Mr Ireland, for the applicant, submits that the existing motel is a tourist facility, and that the motel use will continue to operate "in conjunction with" the hotel and restaurant. "Tourist facility" is defined in the Dictionary to LEP 2000 as meaning an establishment providing primarily for tourist accommodation or recreation, or both. As the motel has no permanent guests, it necessarily follows that it provides tourist accommodation. 18"Tourist" is not defined in LEP 2000, however the Australian Concise Oxford Dictionary (4th edition) defines a tourist as a "person making a visit or tour as a holiday; a traveller, esp abroad (often attrib: tourist accommodation)...". The Macquarie Essential Dictionary defines tourist as "someone who tours, especially for pleasure" and the Concise Oxford Dictionary relevantly defines tourist as a "person who makes a tour, traveller, esp. for recreation". Mr Ireland submits that it is apparent from these definitions that business or commercial travellers are not excluded from the definition of tourist. 19An analysis of the motel's guests record show that the purpose of 70% of guests staying at the motel is "leisure", rather than business, which establishes that the premises are primarily used for tourist accommodation. The location of the motel on the Pacific Highway and in an area approximate to tourist destinations in the Nelsons Bay and Port Stephens area explains this higher proportion of tourist accommodation. If any doubt exists, Mr Ireland submits that the applicant is willing to accept a condition requiring that the hotel and motel uses not only operate in conjunction with each other but also remain in common ownership.

The council's submissions 20Mr Robertson SC submits that cl 14A effectively prohibits a hotel in Zone No 1(a) unless it is in conjunction with a tourist facility. On this basis, Mr Robertson submits that the hotel must be subservient to the tourist facility. There needs to be an essential association between the hotel and tourist facility and this association must be demonstrable, a link of substance and more than just a physical co-location. Support for this proposition comes from Neve and Others v Macedon Ranges Shire Council and Another , Jilbandi Pty Ltd v Macedon Ranges Shire Council and Another [2007] VCAT 277, 151 LGERA 311 where the words "in conjunction with" are considered in the context of an application for a resort complex. The Macedon Ranges Planning Scheme (the Planning Scheme) requires that a residential hotel and restaurant were to be "in conjunction with" amongst other things "agriculture". Clause 64 of the Planning Scheme provides that: If a provision of this scheme provides that a use of land must be used "in conjunction with" another use of land: + there must be an essential association between the two uses; and + the use must have a genuine, close and continuing functional relationship in its operation with the other use. 21In Neve, it was held (at 34 and 35) that an "essential association" requires a nexus with agriculture (wine or rural industry) that includes:

• a required or necessary link(s) between bona fide activities,
• a demonstrable, rather than speculative, link(s) between uses,
• a link(s) of substance not of minor, token or tenuous association,
• an association with agriculture from inception 22Furthermore, an "essential association" between uses:
• requires more than just a physical co-existence or co-location,
• does not confine the nature of the link(s) which may be, for example, practical, functional, aesthetic and/or economic,
• does not demand a distinction between primary and ancillary activities although the relative scale of uses may be relevant, and
• does not go so far as to require co-pendency (although that could demonstrate an essential association). 23While the motel and the proposed hotel are in physical proximity and share managerial and operational facilities, Mr Robertson submits that the relationship does not satisfy the "essential association" characteristics identified in Neve. 24Mr Robertson further submits that the analysis undertaken of the occupants of the motel by the applicants town planning expert, Mr George Smith, is flawed and that the figure of "about 80%" of guests staying at the motel is incorrect. The affidavit of Felicity Lisa Gowing of 10 July 2011 is an assessment of the occupancy of the motel from the motel register between 1 January 2010 and 23 May 2011. Ms Gowing indicates that the method of registering guests presents difficulties in determining how many rooms were occupied on any one night. Also, the inconsistency with data entry and the allocation of visits to specific categories, such as government, business or leisure also presents difficulties in determining an accurate assessment of the purpose of visits to the motel. In her assessment, Ms Gowing notes that anything that is not categorised as government, business or a type of group, is categorised as "leisure"; there not being any other available categories. In light of the identified difficulties, Ms Gowing calculates that the average occupancy at 36.8% (January 2010 to December 2010) and 40.2% (January 2011 to 23 May 2011). 25Mr Robertson further submits that from the motel records there can be no accurate distinction between the different patrons of the motel however given its location on a major road and its limited facilities, it is likely that the only class of patron would be a "travellers" as distinct from "tourists". Mr Robertson submits that a tourist facility is more akin to a resort that provides facilities, such as golf courses, beaches and other extensive recreational facilities rather than a motel than caters primarily for just travellers. Examples of such resorts are Magenta (North Entrance), Koorindah Waters (Wyong), Cyprus Lakes (Pokolbin) and Pacific Dunes (Medowie).

Findings 26The proposed development is only permissible by way of cl 14A. To become a permissible use (and subject to a merit review), the hotel must be used in conjunction with an establishment providing primarily for tourist accommodation or recreation, or both. The questions to be answered are firstly, is the existing motel primarily used for tourist accommodation (as it was not suggested that it was used for recreation) and if so, secondly, will the proposed hotel be used in conjunction the motel (or tourist accommodation). Is the motel defined as "tourist accommodation"? 27Tourist is not defined in LEP 2000 however a number of dictionary definitions were provided for the Court. In considering the competing submissions, I do not accept the submission of Mr Robertson that a tourist facility should be seen solely or largely as resort style accommodation that provides facilities, such as golf courses, beaches and other extensive recreational facilities. While this form of accommodation would clearly fall within the definition of tourist accommodation, it does not necessary follow that other forms of accommodation would necessary not be similarly defined. For example, a family on holidays may stop at the site for overnight accommodation as part of their travel to another location. Even though they do not use any recreational facilities at the site, this does not diminish the fact that the accommodation on the site was used as accommodation by tourists. 28I note that to satisfy the definition, an establishment must provide primarily (my emphasis) for tourist accommodation. An establishment does not have to provide exclusively for tourist accommodation in the form suggested by Mr Robertson. I do not accept that the term "tourist" should be interpreted (based on the definitions) in such a narrow way that it would exclude "travellers' or any persons who were not on holidays or seeking a range of recreational activities. Even though there is uncertainty over the types of patrons at the motel, I am not satisfied that this is a critical matter in the determination of whether the motel is defined as "tourist accommodation". 29While dictionary definitions must be used with caution (see House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440) I accept that they provide support in this case for the proposition that the motel falls within the definition of "tourist accommodation". The Australian Concise Oxford Dictionary (4th edition) defines a tourist not only as a "person making a visit or tour as a holiday" but also as " a traveller". The Concise Oxford Dictionary also defines a tourist to include a "t raveller". Further support that the motel falls within the definition of "tourist accommodation" comes from the unchallenged evidence that the motel provides only short term accommodation and no permanent accommodation. Will the proposed hotel be used in conjunction the motel? 30Mr Robertson places some emphasis on the findings in Neve and the tests in the Planning Scheme to determine the meaning of the words "in conjunction with". These tests are, however, peculiar to the Planning Scheme and in the absence of any specific definition within LEP 2000, the Court must give the words their ordinary meaning. The Macquarie Dictionary defines "conjunction" to mean " 1. the act of conjoining; combination. 2. the state of being conjoined; union; association". 31In my view, the approach in Neve and relied upon by Mr Robertson, places a different and more restrictive meaning than the ordinary meaning of the word "in conjunction with" where there must be an association or a relationship between the hotel and the motel. This association or relationship is a matter of fact and degree and in this case, I accept there is a sufficient association or relationship between the two uses to conclude that the hotel will be used in conjunction the motel. The two uses will share a building, have common management and provide the opportunity for motel patrons to use the hotel facilities. Importantly, the proposed hotel with a relatively small licensed area of around 250 sq m will operate in conjunction with a 80 room motel. The submission of Mr Robertson that the hotel must be subservient to the tourist facility would have greater force if the motel had a significantly smaller number of rooms and a larger hotel. 32Also, the fact that a licensed premises cannot deny access to the general public (s 17(2) Liquor Act 2007) would have been in the mind of the person drafting the amendment that included cl 14A in LEP 2000. By allowing a hotel to be a permissible use (even if used in conjunction with a tourist accommodation) there was always the opportunity for persons to use the hotel facilities without the need to be accommodated within the tourist accommodation. 33For the reasons mentioned above, I accept that the proposed development satisfies the requirements in cl 14A(2) and is a permissible use, with consent, within Zone 1(a) Rural Agriculture.

The evidence 34The council provided expert evidence from Dr Judith Stubbs, a social researcher, Mr John Storer, a civil engineer and economist and Ms Ellen Robertshaw, a town planner. The applicant provided evidence from Mr George Smith, a town planner. 35A number of local residents provided evidence on the site inspection. Their concerns related to:

• an increase in anti-social behaviour, violence and crime,
• a strain of police resources,
• unacceptable impacts on the quiet and serene rural environment through noise, intoxicated people and drink-driving,
• the inadequacy of the existing sewage treatment plant,
• unacceptable additional traffic movements into Rainbird Close,
• the proximity to two caravan parks containing permanent residents from a low socio-economic group that are more prone to violence and alcohol use,
• the proximity to an existing high school,
• any pedestrian access along the Pacific Highway is dangerous particularly as there are no footpaths provided,
• the Pacific Highway and Rainbird Close intersection is already dangerous,
• there are already sufficient liquor outlets in the area,
• insufficient areas for truck parking, and
• there are existing problems with alcohol consumption in the area including underage drinking.

Will the hotel increase the potential for alcohol-related harm? - the councils case 36Dr Stubbs identifies three distinct areas for the assessment of potential alcohol related harm from the proposed hotel. These are: The primary locality 37This area includes the state suburb of Heatherbrae, including residents and workers and where the potential exists for the most intensive impacts associated with alcohol-related harm. The specific land uses identified by Dr Stubbs in this locality are:

• Bellhaven Caravan Park (Bellhaven) is located on Elkin Avenue to the north, just off the Pacific Highway, and approximately 1.2 km from the site along the Pacific Highway. It consists of a combination of manufactured homes and caravans and while some appear in good repair, others are run-down. At the time of her inspection, there were several holidaymakers towards the rear of the park however it appeared that most of the persons living in Bellhaven are group permanent residents on government benefits, or based on the Resident Survey, persons working temporarily in the area. Many of the residents appeared to be a single men, students and single mothers with young children. The majority of residents of the park were reported by management to be renting the caravans/manufactured homes on the site.
• Pacific Gardens Van Village (Pacific Gardens) is located approximately 0.6 km to the south of the site on the Pacific Highway. The dwellings are mainly manufactured homes, which are generally kept in good repair with well-kept gardens and lawns. Many of the residents are 60 years of age, or over and most are on the aged pension, based on the Resident Survey. The majority of residents own the manufactured homes in which they live, though they are renting the site on which it is located.
• Hunter River High School is located approximately 0.7 km to the north of the site. There are 700 students in Years 7 - 12. The school is also designated as a trade school providing tuition for adults. The school receives special funding for additional staff and programs under NSW Governments Priority Schools Program and the Federal Governments National Partnership Program in recognition of its severe disadvantage and the special needs of its student base. The school also includes a range of programs for emotionally disturbed and special needs young people, whose family situation is likely to be problematic.
• Kingston Motel is located approximately 0.5 km to the north of the site. Housing NSW and other services use the motel for emergency accommodation for those at risk of homelessness, including women escaping domestic violence and young people.
• Ekin Avenue residential area is located close to Bellhaven. The houses are generally from the 1950s and 60s and consist of fibro/weatherboard cottages. Residents of the area are a mix of older couples, many of whom have been living in the area for over 30 years and younger couples with children who have been living in the area for less than 10 years.
• Kingston Parade residential area adjoins the site with access from the Pacific Highway. The blocks of land are generally large with well presented houses around 15 to 20 years old with well-kept lawns and landscaping.
• Heatherbrae commercial/industrial area is located on the opposite side of the Pacific Highway to the site and made up of mixture of manufacturing, retail and home sales businesses as well as some food outlets and service station along the Pacific Highway frontage. The secondary locality 38This area includes the wider conurbation of Heatherbrae and Raymond Terrace. This area is also likely to experience negative and positive impacts, though less intensively than the primary locality. The Raymond Terrace area can be used to benchmark the potential impact of another hotel in the locality. The wider locality 39This area includes the area beyond the primary and secondary localities and which may also experience some impacts from increased access to alcohol by those working in the Heatherbrae Industrial estate; the areas from which the workforce in principally drawn. The academic literature 40Dr Stubbs states that the constant theme in the substantial body of academic literature on alcohol-related harm is the positive relationship between alcohol and violent crime. Loxley, W et al (2004) in The Prevention of Substance Use, Risk and Harm in Australia ; a review of the evidence, National Drug Research Institute and Centre or Adolescent Health, found in reviewing over 1100 local and overseas studies that around 40 to 50% of assaultive violence, 50% of sexual assault as victim and perpetrator and 25 to 50% of domestic violence are alcohol-related. Further, "being male and being young" each independently is highly predictive of risky behaviour in relation to drugs and alcohol. 41Burgess M. and S. Moffatt (2011) in "The association between alcohol outlet density and assaults on and around licensed premises" Crime and Justice Bulletin: Contemporary Issues in Crime and Justice Number 147, NSW Bureau of Crime Statistics and Research (BOCSAR) found that more than 50% of assaults in the Sydney local government area occurred within 50 m of licensed premises, and virtually all occurred within 200 m of licensed premises. Also, most assaults (domestic and non-domestic violence related) occur in the home (43%) or the public domain (29%) rather than within licensed premises (9%). 42Dr Stubbs also identifies academic literature that identifies a number of demographic groups who are deemed to be at greater risk of alcohol-related harm. Studies indicate that almost any measure of social disadvantage used will predict an increase in alcohol-related harm. Using specific indicators of disadvantage, some researchers have found different relationships between such indicators and harm with:
• decreasing educational achievement,
• increasing unemployment and lower educational attainment,
• decreasing medium income and increasing male population
• unstable poor communities, and
• smaller households and decreasing non-English-speaking background. 43In response to the academic literature, the research conducted by Dr Stubbs indicates that:
• just over 40% of the residents of Heatherbrae reside in, and are long-term residents of Bellhaven and Pacific Gardens, while around 50% of households in Heatherbrae are caravan park residents,
• Heatherbrae is one of the most disadvantaged areas in the State being in 7% of the most disadvantaged suburbs in NSW according to be SEIFA Index of Relative Socio-economic Disadvantage, while Raymond Terrace is in the most disadvantaged 13% of suburbs in NSW on this Index
• caravan park residents of Heatherbrae are even more disadvantaged on a number of indicators relevant to alcohol-related harm, including

• almost 87% of those residents are low income earners, that is earning below $1000 per week compared to 42% in NSW and 72% for the Heatherbrae state suburb,
• the unemployment rate in the caravan parks is 34%, compared to 5.9% for NSW and 15.2% for Heatherbrae,
• 68% of the residents of the caravan parks have no qualifications compared to 45.5% for NSW and 60% for Heatherbrae,
• 57% of the occupants of the caravan parks are lone person households compared with 24% for NSW and 41% for Heatherbrae, and
• 38% of the residents of the caravan parks have no access to a motor vehicle compared to 4% for NSW and 17% for Heatherbrae.
  • caravan park residents are particularly vulnerable to gaming related harm, and more likely to be attracted to play gaming machines
  • the site is opposite an industrial estate, with a predominantly male (85%) and blue collar (66%) workforce, and with a high concentration of manufacturing industries. Around 25% of the workforce is aged 29 years or younger and 50 per cent are aged less than 40 years. The Resident Survey and Business Survey 44The evidence provided by Dr Stubbs is based on site visits and observations and a Resident Survey and Business Survey conducted by her company. 45The Resident Survey addressed the caravan park residents and residents within the residential areas of Heatherbrae. For the caravan parks, 175 surveys were administered, of which 78 surveys were completed and for residential properties, 77 surveys were administered and 51 surveys were completed. Dr Stubbs states that overall, feeling towards the proposed development was mixed, though for the most part the residential area residents viewed the proposal negatively. Opinion was far more varied among caravan park residents. Dr Stubbs evidence states that of those who viewed the proposal negatively, the key concerns were:
  • there were already enough alcohol outlets in the area,
  • traffic congestion/disruption at the Kingston Parade and Pacific Highway to section would be exacerbated,
  • the development is out of character with the residential area adjacent to the proposal, and
  • the potential increase in alcohol-related violence and antisocial behaviour is through the availability of additional alcohol. 46Those respondents who viewed the proposal positively stated that the benefits were:
  • greater convenience for Heatherbrae residents, and
  • additional social benefits associated with the hotel. 47The Business Survey - the research by Dr Stubbs identified around 105 businesses operating in Heatherbrae. Of the 105 businesses, 87 businesses were surveyed with 64 businesses responding. The results indicated almost half of the businesses were undecided or felt neutral towards the proposed development although respondents were twice as likely to feel negatively or very negatively than to feel positively or very positively (33% compared to 16%). The main reasons that business respondents feel negatively were:

The risk of alcohol-related harm - the applicant's case The academic literature 56Mr Smith acknowledges the long list of academic papers referenced in the evidence of Dr Stubbs however states that there are three important matters that have to be considered in relying on these documents. These are:

• many are based on overseas experience where legislation and other factors may not be compatible with those prevailing in NSW,
• a considerable number of studies were prepared or published prior to the current legislation and practices relating to liquor outlets in NSW, and in fact some of the current practices were a consequence of some of those studies, and
• few studies, if any, look at localities outside major urban centres. 57On this basis, Mr Smith states that the articles and publications are of questionable relevance to the situation at Heatherbrae. He notes that there are many small communities in NSW, which exhibit many of the same characteristics as Heatherbrae and which have hotels (and have had for many years) without, apparently, experiencing unacceptable adverse social impacts. The likely clientele 58Mr Smith does not accept that the hotel will attract disadvantaged people in any significant number to the hotel because it is unlikely to provide low-cost alcohol. The hotel will close early on most nights, will not provide entertainment and will have an ambiance, which the disadvantaged may not find comfortable, for example, its dress code. The hotel is a single room with a single bar so it will not be possible to provide, within the different public spaces, different pricing policies, different dress and behavioural codes and different ambiences. Even accepting that some of the caravan park residents may be severely disadvantaged and, may belong to a group that is statistically, more vulnerable to harm of alcohol than the average person, Mr Smith concludes that the hotel would not have an appreciable impact on them. The more disadvantaged appear to live in Bellhaven, which is over a kilometre from the proposed hotel and about 2 km from the hotels in Raymond Terrace. Mr Smith states that those residents in Bellhaven who seek the solace of alcohol are more likely to go to Raymond Terrace than the proposed hotel, because of the multiple outlets for liquor and other facilities available there. 59Mr Smith states that a significant proportion of the hotel's patrons (if not the majority) are likely to be hotel guests will appear to come from widely dispersed places and will range across most of the social spectrum. They would constitute a different clientele to any of the existing hotels in Raymond Terrace. Moreover, as the hotel will be part of the motel, the owners will ensure that patron behaviour at the hotel does not detract from the reputation of the motel by disturbing the amenity of its guests. 60While accepting that any new hotel may generate some level of anti-social behaviour, Mr Smith states that he does not believe that this hotel would generate an unacceptable level of such behaviour because firstly, the premises are small with no late night trading and no entertainment and secondly, the hotel will be integrated into the motel and its guests will be the first and the most likely adversely affected by any anti-social behaviour. Potential impacts - the primary location 61Mr Smith states that hotels are a legal form of development and all adults have the right to patronise them subject to some conditions such as a dress standard and the like. In his opinion, it is not that the role of the planning system to protect disadvantaged people from self-inflicted harm as any such "protection" would be tantamount to discrimination. The Liquor Act 2007 contains specific provisions intended to require scrutiny of social impacts of certain types of licensed premises, including hotels, before they are granted licences. No similar provisions exist within the EPA Act to curtail, for example, the spread of hotels because of their alleged adverse social impacts. Consequently, Mr Smith is of the opinion that the level of scrutiny of hotel proposals under the EPA Act should not depart significantly from the levels of scrutiny undertaken of proposals for all other forms of development. 62Mr Smith states that the impacts of the electronic gaming machines is not a matter that can be taken into consideration because of s 209 of the Gaming Machines Act 2001. The area beyond the primary locality 63Mr Smith states that the establishment of the hotel will make no appreciable difference to the density of hotels in any area except Heatherbrae where it will increase the number of licensed premises from two to three (excluding a catering service), with the two being long established restaurants in motels. The literature relied upon by Dr Stubbs on the density of licensed premises and alcohol-related is irrelevant in this case, as none of it has ever contemplated a situation where the density of premises is as low as it is in the Heatherbrae locality or in the Raymond Terrace district. Even though it may be that Raymond Terrace suffers from violence and crime associated with alcohol, it does not mean that establishing an entirely different form of hotel, some 3 km away will lead to the same outcome.

The risk of alcohol-related harm - findings 64The potential risk of alcohol-related harm raises a number of separate issues that lead to the different conclusions of Dr Stubbs and Mr Smith. These can be generally be grouped into the following: The academic literature 65The weight to be given to the academic literature was a major difference between Dr Stubbs and Mr Smith and significantly influenced their evidence. I propose to address this in the first instance. I find that the academic literature referred to by Dr Stubbs is, in general terms, a useful and valuable means of addressing the requirement in s 79C(1)(b) relating to the social impact of the development in the locality. Like most evidence, it should not be accepted blindly but considered in light of its relevance to the application in question. In this case, I accept that it is relevant and should be given weight in the consideration of those matters relating to social impact. In coming to this conclusion, care needs to be taken in the provision of such evidence so that the research and surveys do not go beyond what is appropriate and necessary in order to consider the social impacts in the locality. 66I am not satisfied that the principal concepts promoted by the academic literature, such as the link between alcohol and violent crime and identification of specific demographic groups who are more likely to be at risk of alcohol-related harm can be dismissed as easily and for the reasons suggested by Mr Smith. These concepts are undisputed in the range of academic literature and have been used regularly by the Court in other appeals in addressing social impact (for example, see Waugh Hotel Management v Marrickville Council [2007] 156 LGERA 414 and WWL Consulting Pty Ltd v at Marrickville Council [2011] NSWLEC 1161). Gaming machines 67Dr Stubbs saw the impact of gaming machines as contributing to gaming related harm for a highly disadvantaged demography whereas Mr Smith states that the application does not propose gaming machines although they could possibly be installed at a later time. In any event, Mr Smith states that gaming machines are not a relevant matter for the consideration of a development application. 68On this matter, I agree with Mr Smith. I accept that the social impacts in the locality are a relevant matter for consideration under s79C(1)(b), however, as found by Jagot J in Waugh [2007] and reaffirmed by the Court of Appeal in Waugh Hotel Management v Marrickville Council [2009] 171 LGERA 112 , an assessment of the social impacts of gaming are excluded from consideration through the operation of s209 of the Gaming Machines Act 2001 which provides: Relationship with Environmental Planning and Assessment Act 1979 (1) An environmental planning instrument (whether made before or after the commencement of this section) under the Environmental Planning and Assessment Act 1979 cannot prohibit or require development consent for, or otherwise regulate or restrict, the installation, keeping or operation of approved gaming machines in hotels or on the premises of registered clubs or any other premises. (2) If an environmental planning instrument contains any provision in contravention of subsection (1), the provision is taken to have no effect. (3) A consent authority (within the meaning of the Environmental Planning and Assessment Act 1979 ) cannot: (a) as a condition of any development consent under that Act, prohibit or otherwise regulate or restrict the installation, keeping or operation of approved gaming machines in a hotel or on the premises of a registered club or any other premises, or (b) refuse to grant any such development consent to a hotel or registered club for any reason that relates to the installation, keeping or operation of approved gaming machines in a hotel or on the premises of a registered club. (4) The installation, keeping or operation of an approved gaming machine in a hotel or on the premises of a registered club is not an activity for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 . (5) Any approval or authorisation under this Act to keep an approved gaming machine in a hote l or on the premises of a registered club is not an approval for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 . 69Jagot J in Waugh 2007 at [91] states: ..... There are strong indicators in the statutory scheme that concerns about the density of gaming machines and their contribution to problem gambling within a particular locality are within the statutory proscription in s 209(3)(a) and (b) and thus cannot found either the imposition of a condition of consent or refusal of consent under the EPA Act. In particular: ....... (8) Problem gambling, as the evidence discloses, has serious direct and indirect social consequences. But problem gambling, and the risk of creating the circumstances in which problem gambling is likely to arise, is inescapably a matter relating to the operation of gaming machines. Section 209(3)(b) operates so that problem gambling cannot constitute a reason for refusal of the development application. In the face of that statutory proscription the potential contribution of the development to problem gambling cannot be factored into the assessment of the development application. 70The assessment of the social impacts of the proposal must therefore exclude impacts of gaming machines. The likely clientele 71On the question of potential clientele, I prefer the evidence of Dr Stubbs that the hotel is likely to be very busy on some afternoons and evenings with patrons drawn from the primary locality, secondary locality and the wider locality. In my view, the evidence of Mr Smith that a significant proportion of the hotel's patrons (if not the majority) are likely to be hotel guests is unrealistic given:

• it's prominent location on the Pacific Highway and the consequent ability to attract patrons driving along this road,
• the inaccurate assessment (even if only on the basis of his instructions) by Mr Smith of the existing patronage levels of the motel,
• the provisions of the Liquor Act 2007 (s 17(2) that provide that a hotel must be open to the general public (subject of course to the requirements for matters such as age, sobriety, dress code, etc),
• the relatively short distance (3 km) to other licensed premises and residential properties in Raymond Terrace,
• the close proximity to nearby residential areas caravan parks and employment areas,
• the provision of alcohol sales from hotel, albeit over-the-counter,
• the inability to enforce what Mr Smith describes as the target market that will not include "disadvantaged people in any significant number", and
• the lack of evidence to support the proposition that the pricing of alcohol and the ambience of the hotel will limit patrons. Impact on the primary locality 72In summarising the expert evidence on this matter, Dr Stubbs identified a number of land uses within the primary locality of the hotel that, in her opinion, will potentially have a greater risk of alcohol-related harm, based on their demographic profiles, the academic literature and the surveys of local residents and businesses. The concerns of Dr Stubbs are largely dismissed by Mr Smith for number of reasons including the small size and limited patronage of the proposed hotel, the hotel patrons being predominantly motel patrons, controls provided by hotels to address the excessive consumption of alcohol and the incorrect assumption of Dr Stubbs that patrons of the hotel will act in an illegal or unacceptable manner. 73In considering the different approaches of Dr Stubbs and Mr Smith, I am not satisfied that either approach should be adopted in full, although I ultimately accept the conclusion of Dr Stubbs that the hotel will have an unacceptable social impact but not necessarily on all the land uses she identifies. I have accepted that that the use of academic literature and social surveys can be a valid method of addressing the likely social impacts impacts of the development in the locality. It is not however, the end of the consideration. I agree with Mr Smith that consideration also has to be given to the fact that hotels are a legal and legitimate land use and importantly, a permissible use in the zone. 74Relevantly, in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, McClellan CJ relevantly states (at 117): 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects ( Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 75In my view, there is a need to balance the potential social impacts of the hotel against the legitimate rights to operate a hotel on the site. As part of this balancing exercise, it must be accepted that a hotel, because of its nature and operation will potentially, or even likely have adverse impacts on a locality. This was a conclusion accepted by Mr Smith. The extent of the alcohol related harm is a function of a range of factors, including the hours of operation, the size of the hotel, management initiatives and the physical context in which it is located. As with most forms of development, there are likely to be some impacts and the question to be answered is whether those impacts are so unacceptable to warrant the refusal of the application. 76In this case, I am satisfied the question must be answered in the affirmative but only for the hotel and its relationship with Bellhaven and Pacific Gardens. I agree with Dr Stubbs that the proximity of the hotel to Bellhaven and Pacific Gardens is a significant and unacceptable negative social impact. The occupants are clearly a vulnerable and disadvantaged group within society and their particular characteristics fall squarely within many of the indicators of social disadvantage identified by Dr Stubbs that can be used to predict an increase in alcohol-related harm. The surveys conducted by Dr Stubbs indicate that almost 87% of the residents are low income earners, 57% of the occupants are lone person households, there is a 34% unemployment rate and 68% of the residents of the caravan parks have no qualifications. Also, 42% of people surveyed in the caravan parks were positive or very positive about the development, with 25% citing that the hotel was convenient, being within walking distance of the caravan parks and 25% citing positive social benefits, such as having the hotel in close proximity, as reasons for feeling positive. 77I accept Dr Stubbs evidence that this suggests caravan park residents are likely to use the proposed hotel. When combined with 38% of the residents of the caravan parks having no access to a motor vehicle, it is also likely that many residents would walk to the hotel. For reasons set out later in the judgment, pedestrian movements along the Pacific Highway, particularly from Bellhaven is unsafe. 78At this point I depart from the conclusions of Dr Stubbs. In balancing the potential social impacts of the other identified land uses in the primary locality against the legitimate ability to construct and operate the hotel, I accept that the impacts are not so unacceptable to warrant the refusal of the application. I do not accept that the existence of certain land uses in proximity to a hotel is automatically a basis for the refusal of the application. Similarly, I do not accept that the existence of an indicator or a limited number of indicators of vulnerability to alcohol related harm is a basis, per se, for refusing the application. For example, the research of Dr Stubbs for the adjoining industrial area found that it is predominantly a male (85%) and blue-collar workforce (65%) with around 25% of workers 29 years or younger and 50% of workers less than 40 years of age. While the industrial workforce falls within the indicators of "being male and being young" and based on the academic literature, each is independently predictive of risky behaviour in relation to drugs and alcohol, in practical terms, such a workforce breakdown would be likely typical of similar industrial areas. To suggest a hotel should not be located near an industrial area because the workforce may instigate "risky behaviour" because of the existence of the hotel is unreasonable, given the legitimacy of such a use. I agree with Mr Smith that while some workers in the industrial area may be susceptible to alcohol, in the same way that a cross section of society may be, it does not necessarily provide a valid reason to refuse the application. 79I am also satisfied that the proximity of the hotel to the Ekin Avenue residential area and the Kingston Parade residential area would not be a reason to warrant the refusal of development application on social impact grounds. There was no evidence to suggest that any residents fell within the indicators of social disadvantage in the same way as the occupants of the caravan parks. While there may be potential conflicts between the hotel and the Kingston Parade residential area, these are largely locally based amenity concerns (as compared to the wider social impacts on the locality) that can be often controlled through conditions of consent and specific operating requirements, such as hours of operation and acoustic controls. 80The Hunter River High School is located approximately 0.7 km north of the proposed hotel. Again, I am not satisfied that the proximity of the hotel to the school would be a reason to warrant the refusal of development application on social impact grounds. Even accepting that there are problems with underage consumption of alcohol and secondary supply of alcohol to underage children, in my view, it would be unreasonable to refuse the application on the basis that people, other than those associated with the proposed hotel, may legally purchase alcohol from the hotel and then pass the alcohol onto underage children. The licensing regime for a hotel provides considerable sanctions against a hotel if alcohol is sold to underage children and I agree with Mr Smith that it cannot be presumed that this will occur. The transfer of alcohol from a person who can legitimately purchase alcohol to a person who cannot, is not a matter that can be reasonably addressed as part of a development application for a hotel. 81Even though the Kingston Motel is located approximately 0.5 km to the north of the site, is the closest of the identified land uses to the site and according to Dr Stubbs is used for emergency accommodation, no evidence was provided to indicate the extent of usage by Housing NSW and other service providers or any specific potential social impacts. Consequently, it would be unreasonable to make a finding that the proposed hotel would have an unacceptable social impact on this premises. 82Overall, I am satisfied that it is possible and reasonable to distinguish the characteristics of the caravan park occupants from the workers within the industrial area, the residents of the residential areas and the school because of their greater degree of vulnerability to alcohol related harm and disadvantage, even though people associated with the other land uses may share some of the same indicators of vulnerability to alcohol related harm as the caravan park residents. Impact on the area beyond the primary locality 83There was general agreement that there is existing evidence of high levels of alcohol-related harm associated with existing licensed premises in Raymond Terrace, based on the evidence of Dr Stubbs, although recent initiatives involving significant police resources and community action have seen reduced levels of violence over the past 12 to 18 months. 84I note that the submission from the Port Stephens Licensing Unit states that from June 2009 police have focused a major portion of the commands resources to the task of reducing alcohol-related crime in the Tomaree and Raymond Terrace areas on Friday and Saturday nights and Sunday afternoons. These resources have some times been supplemented by police officers from other commands. The police acknowledge that the Heatherbrae area, although having a number of premises nearby with late trading liquor licences, has minimal hotels that exercise these hours. The police state that if the application is to be granted, the migration of hotel patrons from other premises, within a 1.5 km radius, will be of major concern. The police cite a distinct lack of public transport in the area and unreliable taxis service as a further reason for their concern. The police submission concludes by stating that if approval were granted, it would almost certainly have an adverse effect on the amenity of the neighbourhood, would affect local police resources, increase alcohol-related crime and affect the amenity of neighbouring businesses. 85I accept that density of hotels is an indicator of increased consumption of alcohol and consequent alcohol-related crime, however the proposed hotel will not add significantly to the numerical density of hotels in the wider locality. However, the question of potential alcohol-related crime is not only a question of density. The evidence suggests that significant improvements have been made to the alcohol-related crime in the Raymond Terrace area through specific initiatives of the police. These initiatives have been successful, in part, because of the clustering of the hotels in Raymond Terrace commercial area and the ability to concentrate police resources to a defined area. There is considerable merit in the submission from the police that the establishment of a hotel in Heatherbrae, where no other hotels exist, has the potential to initiate alcohol-related crime to an area where it currently does not exist because of the absence of any hotels. While there are licensed premises around the hotel site, I do not accept Mr Smith conclusion that premises used as restaurants with an on-premises licence can be reasonably compared to a hotel, in terms of likely social impact. 86Given the established relationship between alcohol outlets and alcohol-related crime (Burgess M. and S. Moffatt (2011)), I am satisfied that the establishment of the hotel in an area that does not have any hotels and consequently suffers little or no alcohol-related crime is a valid reason to refuse the development application.

The economic impacts - the council's case 87Mr Storer states that the s 79C(1)(b) EPA Act requires a consideration of the positive and negative economic impacts in the locality and in his opinion, economic impacts must be quantified and assessed in dollar terms, as far as possible, and in accordance with best practice using an appropriate method. The economic benefits considered by Mr Storer include additional employment, use of local suppliers, increased dollar spend of tourists, gaming machine revenue and savings in travel time. The likely economic costs include the cost of traffic crashes, including pedestrian crashes and the cost of lost gaming machine revenue through taxation. 88The methodology and calculations are set out in considerable detail in Mr Storer's evidence where he concludes that the quantified costs of the proposed development are $318,000 with the benefits being $31,000 or costs exceeding benefits by a factor of 10. The former figure consists of $250,000 from gaming machine revenue and $68,000 from the cost of traffic crashes. The benefits are $4000 from increased spending by tourists and $27,000 in savings in travel time. Following concerns by Mr Smith, Mr Storer, excludes gaming machine revenue, and recalculates his economic costs and benefits using two different methodologies (Generic Cost and Willingness to Pay) that results in costs exceeding benefits by a factor of 2 and 6 respectively.

The economic impacts - the applicant's case 89Mr Smith questions the use of a CBA, in this case, for assessing economic impact. To adopt Mr Storer's components of economic impact, Mr Smith states that the components would need, firstly, to be quantified with a reasonable degree of precision, and secondly, have realistically assigned monetary values. In the opinion of Mr Smith, neither test can be satisfied in this case, and as such, a CBA is of little or no probative weight in the assessment required. For example, Mr Smith states that when unemployment is said to be high, the provision of additional regular or part-time employment should be welcomed however it is not possible to assess the extent of the benefit because it will depend on the success of the hotel. Similarly, the benefits to local suppliers will also be largely dependent on the success of the hotel. Mr Smith also rejects the calculations of Mr Storer where he states that the benefit from one additional guests staying at the motel every night would be in the order of $4000 per annum. Mr Smith calculates the figure to be $29,200 per annum. 90If a CBA is accepted as an appropriate means of assessing economic impacts, Mr Smith accepts the components identified by Mr Storer as contributing to the likely economic impacts of the proposed development. Mr Smith also states that if Mr Storer's assessment is to be adopted then there are other benefits, such as the hotel performing the role as a local meeting place and also providing a facility for travellers who may not wish to stop at the existing fast food outlets, although Mr Smith is unsure how these matters could reasonably be converted to a monetary value. 91Mr Smith again questions whether electronic gaming machines can be considered as part of any assessment of economic impact as they do not form part of the development and s 209 of the Gaming Machines Act 2001 effectively prohibits their consideration as part of the development application for a licensed premises.

The economic impacts - findings 92While the economic impact of a development on the locality is a valid and necessary consideration under s 79C(1), I do not accept that the necessary consideration must be quantified in dollar terms or take the form of a CBA although I would accept that in some applications it may be appropriate. I do not accept that the subject application is an appropriate example for a number reasons. 93First, I agree with Mr Smith that it is not possible to specify with sufficient precision, in monetary terms, the components identified by Mr Storer in his assessment. For example, Mr Storer in his assessment of the cost of traffic crashes relies on a fatality rate of 0.2 persons per annum. This is based on his limited observations of the Pacific Highway and a limited survey period of five years. On the same assessment, Mr Storer also assumes that the person killed has approximately 20 years working life left and a salary of $28,000 per year based on the per capita GDP in Australia in 2009 of $51,000 and a wages share of about 54%. Over a 20 year period at 7%, this is the equivalent of about $300,000. For injuries, Mr Storer accepts that this is more difficult to calculate as there is likely to be a range of resources involved, such as ambulances and hospitals, in addition to lost productivity. He ultimately adopts an estimated annual cost for two injuries each five-year period of $8,000. While I accept that Mr Storer has attempted to quantify factors that are inherently difficult to quantify; this must legitimately raise the question of whether there is any value in relying on the calculations given the assumptions on which they are based and importantly, the broad context in which they are to be used, that is s 79C(1)(b). 94Further support for this concern over the use of CBA comes from the findings of Preston CJ in Telstra Corp Ltd v Hornsby Shire Council [2006] 146 LGERA 10 (at 174). While considered in the context of the precautionary principle, His Honour raises concern over the use of CBA because of the difficulty in firstly, including "qualitative soft values in favour of quantifiable hard values" and secondly "correctly internalising all externalities". These are not dissimilar to some of the concerns raised by Mr Smith. 95Second, I do not accept that if a CBA concludes that the economic costs exceeds the economic benefits then this will warrant the refusal of a application on the grounds that it the proposal is in conflict with the requirements of s 79C(1)(b). In the case of licensed premises or hotels, it would be difficult to argue that there are not economic (and social) impacts that flow from this form of development. The academic literature clearly establishes these impacts. These impacts must have a cost but society, through the legislature that allows licensed premises and hotels to operate, has by inference accepted that some costs are accepted, or are to be tolerated. The real question to be answered is whether the extent of any impacts or costs is so acceptable in the circumstances of the particular licensed premises or hotel that the application should be refused. 96Third, the extent of consideration required for the economic impact of a development in the locality has largely been addressed through a number of seminal cases. In Kentucky Fried Chicken Pty Ltd v Gantidis [1979] 140 CLR 675, the High Court of Australia found the effect of competition on individual businesses was not a relevant town planning consideration. In Fabcot Pty Ltd v Hawkesbury City Council [1997] 93 LGERA 373, Lloyd J found that if facilities currently enjoyed by a community would be put in jeopardy by a development, then the community detriment, if not made good by the proposed development, was a relevant town planning consideration. The reliance on a CBA takes the consideration required for the economic impact of a development in the locality to a new area of consideration and, in my view, not specifically contemplated by the EPA Act, particularly for a development of the size proposed in the development application. 97Third, and also in Telstra (at 166) (and also in the context of the precautionary principle) Preston CJ relevantly addresses the concept of proportionality where His Honour states: ....The concept of proportionality is that measures should not go beyond what is appropriate and necessary in order to achieve the objectives in question. Where there is a choice between several appropriate measures, recourse should be had to the least onerous measure and the disadvantages caused should not be disproportionate to the aims pursued. 98As with the issue of social research, care needs to be taken in the provision of evidence so that any analysis does not go beyond what is appropriate and necessary in order to address the concern over the economic impact of the hotel on the locality. Any response must be proportional to the extent of the concern. As stated in Telstra , if other opportunities are available to address the question of social impact without potentially onerous and costly research then this opportunity should be pursued. In this case, I have little trouble in concluding that the detailed analysis carried out by Mr Storer for the CBA and risk assessment was largely disproportionate to be extent of the problem relating to be economic impact of the hotel on the locality. I agree totally with Mr Smith that if this approach was accepted for a development application that proposes a relatively small hotel development, then there is little reason why a similar detailed assessment would not be required for many other development applications. 99Fourth, the Court has an overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings (s 56, Civil Procedure Act 2005) . I do not accept that this can be achieved when a particular contention is disproportionately addressed by way of detailed specialist evidence that consequently requires a detailed response and extensive cross examination at the hearing. This has unacceptable cost and time consequences on the parties and the Court. 100Notwithstanding the extensive evidence provided by Mr Storer, I am not satisfied that the evidence supports a finding that the proposed development will have an adverse economic affect on the locality.

Risk assessment/ pedestrian safety - the council's case 101Mr Storer uses AS/NZ ISO 31000:2009 to provide principles and guidance on the management of risk. The considerations include risk identification risk analysis and risk evaluation. Mr Storer also reviews the literature on pedestrian and vehicle crashes in his evidence, and highlights that this review identifies indicators for increased risk of pedestrian crashes that include alcohol; with the risk of a pedestrian crash increasing by 15 times with persons having a blood alcohol content of 0.15, disadvantage; with the most disadvantaged people being at four times the risk of pedestrian crashes compared to the most advantaged people, disability and age; with approximately one quarter of accidents experienced by persons aged 70 years over. In his opinion, these indicators reflect parts of the demographic makeup of the primary locality. 102Mr Storer states that proposed hotel is within a high-speed highway environment with a history of pedestrian and vehicle crashes. The site is located within an 80 kph zone on the Pacific Highway that has an AADT of some 30,000 vehicles. It is heavily trafficked, making crossing difficult with the nearest signalised intersection is 550 m from the site. Pedestrian access is poor, with the likely pedestrian path between the two caravan parks and the proposed hotel being the paved shoulder of the Pacific Highway, which is within 1 m of the moving traffic as there are limited footpaths along the highway in the vicinity of the site. 103The locality also has a high rate of vehicle crashes, including 62 crashes, two fatalities and 37 injuries in the five years to December 2009. Mr Storer maintains that alcohol impairment is a significant factor in road crashes and this section of the Pacific Highway at Heatherbrae, is a recognized blackspot, with traffic lights recently constructed at the intersection of Hank Street and the Pacific Highway as a response to the crash and injury history. 104The introduction of inebriated pedestrians and motorists into such an environment is likely to result in an increased rate of both pedestrian and vehicle crashes. This is likely to be exacerbated by:

• the proximity of the proposed hotel to disadvantaged groups and those with other indicators of an increased risk of alcohol-related harm (caravan park communities and workers in the large industrial estate),
• the configuration of nearby uses (including caravan parks with low levels of car ownership (38%) and an "at risk" demography, a high school, an industrial estate, and take-away food outlets) and
• features of the site and its surrounds, including lack of safe pedestrian pathways along across the highway in the vicinity of the site. 105Mr Storer states that the probability of a pedestrian being struck by a car on the highway, adjacent to the site, is very high. Observations on his site visit indicate no pedestrian movements along the Pacific Highway however even accepting five pedestrians per day, or around 9000 in 5 years, Mr Storer calculates that the probability of a pedestrian being killed is 1 in 9000 and the probability of a pedestrian being killed or injured is 1 in 3000. He states the most appropriate means of dealing with this risk is to refuse the development application.

Risk assessment/ pedestrian safety - the applicant's case 106Mr Smith states that he is unaware how many pedestrians walked along the Pacific Highway between 2005 and 2009. In the five years covered by Mr Storer's data, he estimates some 50 million vehicles passed the site and during that period, there was one pedestrian fatality and two injuries. The absence of any detailed information on the fatality and injuries makes the assumptions of Mr Storer questionable. He notes that the response of authorities to potential accidents on this part of the Pacific Highway appears to have been limited to the installation of traffic signals at Hank Street and potentially the reduction in the speed limit from 100 kph to 80 kph. In any event, Mr Smith states that he doubts that the hotel will attract significant patrons from the nearby caravan parks. 107Mr Smith also rejects the assumption that if the hotel is approved, this will result in one fatality and two additional injuries every 5 years along the Pacific Highway near the site. Mr Smith states that it is unreasonable to proceed on the assumption that the applicant and/or the licensee will ignore conditions of consent or conditions of the hotel licence. In his opinion, and on the assumption that the hotel would be well-managed, there will be very few, if any, inebriated persons leaving it on foot or as the driver of a vehicle. Mr Smith notes that there are a number of hotel located on very heavily trafficked roads in semi urban circumstances akin to the site at Heatherbrae. 108Mr Smith also relies on the provision of a courtesy minibus, to be provided by the hotel, as a means of addressing the concerns over pedestrian safety on the Pacific Highway.

Risk assessment/ pedestrian safety - findings 109Mr Smith and Mr Storer agreed on the fundamental data associated with matters such as the number of vehicles using the Pacific Highway and the accident data however disagreed on the interpretation of that data. Considerable emphasis was placed on the accident history over a five-year period that indicated one pedestrian fatality and two pedestrian accidents on the Pacific Highway near the site. Mr Smith refuted the assumption of Mr Storer that the five-year traffic accident history could be used to reliably predict the effect of the hotel on future pedestrian safety. 110I share the concerns of Mr Smith that it is not reasonable to extrapolate a five-year assessment of traffic accidents and make reasonable predictions for future pedestrian safety. The assumption of Mr Storer that as there had been one fatality in the last five years, then it can be reasonably predicted that there would be a further fatality every five years must be questioned in the absence of any data from accidents outside the five-year period and surveys of pedestrian movements along the Pacific Highway. 111Much cross examination centred on Mr Storer's methodology for his risk assessment however, in my view, it was largely unhelpful. Even without his comprehensive risk assessment, it is reasonably open to the Court to conclude that the proposed hotel will have an unacceptable impact on pedestrians in the locality because:

• the undisputed accident history over a five-year period indicates an already poor history of pedestrian accidents with one fatality and two accidents,
• the proximity of the proposed hotel to disadvantaged groups and those with other indicators of an increased risk of alcohol-related harm (caravan park communities),
• the higher propensity for disadvantaged and aged persons to be involved in accidents,
• the higher propensity for people affected by alcohol to be involved in accidents,
• the low levels of car ownership in the nearby caravan parks,
• the absence of safe pedestrian pathways along across the Pacific Highway in the vicinity of the site, and
• the lack of reasonable alternate means of pedestrians moving between the caravan parks and the hotel except along the Pacific Highway. 112While the provision of a minibus may reduce the potential for pedestrian accidents, I do not accept that it is sufficient to overcome the fundamental concern over the proximity and access issues between the hotel and the caravan parks. The potential impact on pedestrian safety, when combined with the proximity of the disadvantaged groups within the caravan park and their lack of vehicle availability is a significant reason why the development application should be refused.

Zone objectives/ amenity impacts The evidence 113Ms Robertshaw states that the proposed development represents an intensification of the use of the property for a purpose other than rural land uses. Because of this intensification, the proposal does not provide for development, which maintains the rural character of the area and has the potential to impact on the amenity of the locality. For this reason the proposed development is inconsistent with the zone objective (a) and as such must be refused for this reason. 114Mr Smith states that the proposed development neither affects the rural character or environment of the area, or alienate any additional land. It does not affect any land actually used for a rural purpose or any rural resource. Any difference in the level of use would have no appreciable effect on the existing character of the area, even if it would be said to be rural. In the opinion of Mr Smith, the proposal represents a reasonable use of land which has been alienated from rural use (albeit not from a rural zoning) for many years and which is unlikely to return to rural use. Findings 115Clause 10(2) requires a finding that the proposed development is consistent with the objectives of the zone. The relevant objective is: (a) regulating the development of rural land for purposes other than agriculture by ensuring that development is compatible with rural land uses and does not adversely affect the environment or the amenity of the locality, and 116In the absence of a finding of consistency, the development application must be refused however having found that the development application warrants refusal for other matters, the test imposed by cl 10(2) years largely academic however, for completeness I will briefly address this contention. 117Given the existing development on the site and the fact that the proposed development seeks to use part of existing development, I did not accept that Ms Robertshaw's concerns over the potential effect on the rural character of the area can be substantiated. Similarly, with the upgrade of the sewage treatment plant, I do not accept that any concerns over potential affectation of the environment can also be substantiated. 118The remaining part of objective(a) relates to the affect on the amenity of the locality. The residents who provided evidence on-site identified a number of issues relating to the potential impact on the amenity of the locality. These potential impacts included increased traffic movements and car parking and anti-social behaviour. 119With the benefit of the site inspection, I accept that the proposed development would not unacceptably on the amenity of the immediate locality given the spatial relationship between the dwellings in Rainbird Close and the proposed hotel. In coming to this conclusion, I accept that there will likely be a change to the existing amenity enjoyed by the residents in Rainbird Close however it is not likely to be sufficient to warrant the refusal of the application for this reason alone. I note that the council raised no issue with potential noise impacts from the hotel and that the Roads and Traffic Authority had no objection to the proposed development, as it considered there would not be a significant impact on the classified road network. Any concerns over the segregation of the hotel parking from the hotel parking could not have been addressed by the provision of further information, as could the concerns of Ms Robertshaw over amenities for the hotel. 120For these reasons, I am satisfied that the proposed development would be consistent with objective (a) in Zone 1(a) Rural Agriculture.

Orders 121The orders of the Court are:

1. The appeal is dismissed.
2. Development Application 16-2010-478-1 for the change of use of part of an existing restaurant within an existing motel for a hotel at 2283-2285 Pacific Highway, Heatherbrae is refused.
3. The exhibits are returned. G T Brown Acting Senior Commissioner 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. Decision last updated: 11 October 2011