Victorian Civil and Administrative Tribunal|2008-09-12

Papas & Ors v Director of Liquor Licensing (Occupational and Business Regulation) [2008] VCAT 1944 (12 September 2008)

Occupational and Business Regulation List - liquor licensing --relevant considerations - packaged liquor licence application - meaning of "amenity" - whether "amenity" includes consideration of existing use - Liquor Control Reform Act ss 3A, 4, 38 and 44

Denis Papas, Peggy Cresp, James Bishop, Dorothy Peak, Robin Seymour, Fergus McCowan, Janet Hartley, Deidre Milligan, Christine Barrington, Manningham City Council

Papas & Ors v Director of Liquor Licensing (Occupational and Business Regulation) [2008] VCAT 1944

The decision of the Director of Liquor Licensing is affirmed.

For James Bishop, Peggy Cresp, Dorothy Peak, Robin Seymour, Christine Barrington, Fergus McCowan, Janet Hartley

Mr Attiwill of counsel on 18 August 2008 and Mr Chandrasegaran, solicitor of Birch Ross & Barlow on 19 and 20 August 2008

Mr S Devlin, solicitor to the Director of Liquor Licensing

Mr Lloyd Bryant instructed by Mallesons Stephen Jacques, solicitors

On 30 July 2007, Woolworths Limited applied to the Director of Liquor Licensing for a packaged liquor licence for premises at 898 Doncaster Road, Doncaster East. The application showed that the proposed premises would trade as a stand alone "Dan Murphy" liquor store.
At that time the premises were occupied by a Safeway supermarket, with its lease expiring in May 2008. The application was made in anticipation of a Woolworths' Property Committee of Management meeting held on 14 August 2007. At that meeting, the Committee approved the closure of the supermarket and approved a proposal that Woolworths enter into an Agreement for Lease and Lease for a new "Dan Murphy" store at that site.
There were objections to the application made to the Director. There was a panel hearing in December 2007. The panel recommended that the application be approved. The Director granted the application on 15 February 2008.
A number of individuals and Manningham City Council applied to this Tribunal for review of the Director's decision to grant the application.
Since the applications for review were lodged, the lease has expired. Woolworths has now entered into an agreement for lease and a new lease of the premises. The agreement for lease enables Woolworths to terminate the new lease in the event the licence application is not successful by the approval date. It is possible under the agreement to lease, for Woolworths to extend the approval date or to refurbish the supermarket. The only Property Committee approval is the Safeway closure and the Agreement to Lease and Lease for a "Dan Murphy" store. In the meantime, the premises continue to operate as a Safeway supermarket.

The hearing took place on 18, 19 and 20 August 2008. A group of the individual objectors was represented by Mr Attiwill and Mr Chandrasegaran. They called a number of lay witnesses who gave evidence and were cross-examined and an expert witness Ms Bernadette George, a social planner. She had prepared a report and a supplementary report, she gave evidence and was cross-examined. Mr Papas and Mrs Milligan represented themselves. They gave evidence and were cross-examined. Ms Drakos represented the Council. She called no evidence. Mr Bryant represented Woolworths. He called two witnesses; Mr Tanner the Liquor Licensing Manager for Woolworths and an expert witness, Mr Ernest Mensforth, a Traffic Engineer, of Cardno Grogan Richards. Both gave evidence and were cross-examined. Mr Devlin represented the Director. He called no evidence.
All the parties made submissions. I observe here that the Chief Commissioner of Police has at no stage opposed the application.

It is important in this application to have some understanding of the location and history of the proposed "Dan Murphy" site, the subject of this application.
The premises are still operating as a Safeway supermarket. It is known as the Jackson Court Safeway supermarket. It has been operating as a supermarket in Jackson Court for approximately 40 years. Apart from Safeway, Jackson Court has over 60 independent retailers. They include fresh food stores, cafes and restaurants, specialty and service stores, clothing and beauty shops and offices for professional services including accountants' offices, medical clinics, real estate and a community bank. The Court has ample parking.
Manningham's Activity Centre Strategy Report of 2005 describes the Jackson Court Activity Centre relevantly as -

the friendly, accessible neighbourhood centre for its local catchment, trading on the virtues of its independent retailers, personal service, depth of choice and great location.

The Centre integrates shopping, recreation, commercial and community services to provide an accessible meeting place for the neighbourhood.

Located along Doncaster Road in Doncaster, Jackson Court Activity Centre is one of three Neighbourhood Activity Centres in close proximity on this main road.

A key strength is the range of retail mix and the depth of its independent retailers. It includes a Safeway Supermarket which has potential to be improved. The central car park gives shoppers the perception of easy access to all parts of the Centre.

Jackson Court Activity Centre is predominantly car dependent with a large parking area available encouraging such use. The Resident Phone Survey indicates that 87% of frequent shoppers drove to the Centre. Interestingly, 13% travelled by bus or walked to the Centre, a high percentage in Manningham terms, potentially reflecting a relatively good access to bus services available to Centre users via Doncaster Road and the growing level of medium-density residential housing surrounding the Centre. There are indented bus bays on Doncaster Road with a pedestrian path to the Safeway and other shops.

a key attractor for the centre but one of its major drawbacks. The supermarket continues to operate for 'strategic' reasons (given nearby supermarkets) but does not provide a full range of goods and does not attract the investment that other stores gain to update their offering and customer service.

800 metres to the east of and on the same side of Doncaster Road as Jackson Court, Woolworths operates another Safeway supermarket in a retail area known as the Devon Plaza Shopping Centre. It is a "full range" supermarket and Woolworths is proposing to spend $6 million in upgrading and redeveloping it. Woolworths has also just redeveloped its Safeway supermarket at Westfield Shoppingtown. It is a "full range" supermarket offering approximately 40,000 product lines.
Woolworths has made it plain that the Jackson Court supermarket sales area and supporting infrastructure are now old and that it cannot operate within Woolworths' "current accepted practices". As Mr Tanner explains it, referring to it as the JC supermarket :

Because of the physical dimensions of the premises, they cannot be conducted as a "full range" supermarket and only present the basic offer of a Safeway supermarket. In this regard, the JC Supermarket does not contain a serviced delicatessen section or bakery, and its meat, dairy and fruit and vegetables sections only present an extremely basic and limited offering. Additionally, refrigeration space is limited, the materials handling area requires a forklift driver to unload items, there is limited storage space and there is no central heating or air-conditioning system. The number of product lines it offers is approximately 20,000 and its size is only approximately 1,667m2. The JC Supermarket is not a "full range supermarket" ... From my experience, a 'full range supermarket requires at least 30,000 product lines'.

Woolworths seeks an order affirming the Director's decision.
There has been huge local interest in the future of the Safeway supermarket. That is clear from the vast number of articles in the local press, the number of objections lodged with the Director with respect to the application, the number of petitions there have been and the efforts made by Manningham in its endeavours to have the premises remain a supermarket.
The premises are included within a Business 1 Zone. As such a planning permit is not required to use the land for a shop use. Manningham Council objected to the grant of a packaged liquor licence, but separately requested the Minister for Planning on 17 September 2007 to approve a site-specific amendment to the Manningham Planning Scheme. The proposal was for a site-specific amendment under s 20(4) of the Planning and Environment Act 1987, to require that any packaged liquor licence operates in conjunction with a supermarket and that the floor area of a packaged liquor licence be limited to 25% of the total floor area.
According to the Council's submissions, the amendment -

sought to achieve a balance between the objectives of Woolworths Limited to sell packaged liquor through the site with the desires of members in the community, which are to ensure the retention of a supermarket component from the premises. It sought to achieve this by providing for a packaged liquor outlet to be carried out in conjunction with a supermarket rather than exclusively as a packaged liquor store.

The Minister did not approve the Amendment. On 4 January 2008, the Council wrote to the Minister requesting authorisation to prepare an Amendment to the Manningham Planning Scheme (Amendment C67). The thrust of the amendment was the same as the first request.
On 14 May 2008, the Council was notified that the Minister determined pursuant to s 8A(3) of the Planning and Environment Act 1987 not to approve Amendment C67. The Minister's letter included the following paragraph :

I appreciate that Council is concerned that the potential loss of the supermarket will have some effect on this centre. However, it is not the role of planning to seek to determine or control the retail mix of each site. Retail mix is for the market to determine. Further, I consider that there is no strategic justification to support preparation of the amendment.

Manningham has exhausted all planning options and opposes this application. In March 2008, Manningham resolved to contribute some funding towards the costs of the appeal on the basis that -
- the traders' grounds of appeal match those proposed by Council viz the impact of the loss of a supermarket on the amenity of the shopping centre.
There have been several petitions presented. Mr Bishop who works at a medical centre in Jackson Court and gave evidence in this proceeding, organised one, with several hundred signatories. It was worded as follows :

Draws to the attention of the House Woolworths plan to shut our Jackson Court Doncaster East supermarket and replace it with a Dan Murphy grog supermarket selling 50 million dollars of alcohol each year in our community must be stopped. The government own confusion or conflicting Planning laws and Liquor Licensing laws is risking harm to our community and allowing abuse by uncaring businesses such as Woolworths.

The petitioners therefore request that the Legislative Assembly of Victoria

Disallow the Licence application by Woolworths at Jackson Court
Make Government departments act for our community with objection rights which require the Commissioner of Liquor Licensing to consider Government planning and policy documents like the Melbourne 2030 plan in any decision it makes
Make VCAT and government judicators assist and help community when faced by unlimited resources of large corporations such as Woolworths.
Mary Wooldridge MP presented another to the Legislative Assembly of Victoria in mid August 2008. It has over 2300 signatories. It is worded as follows :

Draws to the attention of the House that it is proposed to close the Safeway supermarket at Jackson Court, Doncaster East and replace it with a Dan Murphy liquor outlet.

The petitioners therefore request that the Legislative Assembly of Victoria

Inform the Director of Liquor Licensing that such a move would have very serious detrimental effects on residents and traders in the vicinity of Jackson Court, Doncaster East and such a move would be in opposition to the very strong wishes of the local community.

Those general sentiments, about the loss of the supermarket and its replacement by the "Dan Murphy" outlet, were echoed by the evidence of the applicants' witnesses.
In summary, they were concerned -
- that if the supermarket closed, easy and close access to all shopping, especially for the elderly, would be lost and the family character of the court and village like shopping would be lost;
- that the dramatic change will take the heart out of the community;
- that the pleasant and agreeable environment which has always been a feature of the court will be displaced;
- about the potential effect the loss of the supermarket would have on the other local shops and the viability of those businesses;
- that the proposal was intrusive and unwelcome;
- that others - as I understand it not local residents - would use the shopping centre and would create "through traffic" problems;
- that there were already enough liquor stores in the vicinity (apparently some 12) and there was no need for another.
Mrs Milligan gave evidence. She is a local resident and was concerned with the loss of the supermarket but she also spoke strongly about alcohol abuse and the potential harmful effects of liquor especially where young people were concerned. She produced numerous newspaper clippings which highlighted the problem.
These concerns raised by the applicants were echoed in Manningham's approach. Further, the evidence of Ms George, who saw the proposal to close the supermarket and open a "Dan Murphy" store as one and the same, strongly championed the benefits to the community of retaining a supermarket at Jackson Court.
The Director takes no issue with the sentiments and concerns expressed by the applicants. However, the Director's position in relation to issues of amenity is that these concerns, though genuine, are irrelevant to the decision on the application, which has to be made in accordance with the law and specifically s 44(2)(b)(i) of the Act.

The Liquor Control Reform Act 1998 provides for the issue of different categories of licences and permits. Included in the categories of licence is a "packaged liquor licence" (s 11) which authorises a licensee to supply liquor in sealed containers, bottles or cans for consumption off the licensed premises.
The objects of the Act are set out in s 4. The objects emphasise responsibility and diversity, and ensuring that the supply of liquor contributes to and does not detract from the amenity of community life, by the provision of adequate controls so as to contribute to minimising harm from the misuse and abuse of alcohol.
Section 38 of the Act permits objections to the granting of licences on the ground that the grant would detract from or be detrimental to the amenity of the area. Section 38(3) sets out three specific matters which are not valid reasons for objecting. Those are the possible success or otherwise of the business, the adverse effect on the business of other licensees and insufficient need or demand to justify the grant.
Applications for licences are made to the Director of Liquor Licensing. Whether an application is contested or uncontested, or has been referred to a panel, the Director may refuse to grant an application on any of a number of grounds set out in s 44(2) of the Act. Included in those grounds and relevant for this proceeding are the following :

(i) that the granting of the application would detract from or be detrimental to the amenity of the area in which the premises to which the application relates are situated;

(ii) that the granting of the application would be conducive to or encourage the misuse or abuse of alcohol;

In this hearing, the main focus was on whether granting the application would be detrimental to the amenity of the area.

"Amenity" is defined in s 3A of the Act as follows :

(1) For the purposes of this Act, the amenity of an area is the quality that the area has of being pleasant and agreeable.

(2) Factors that may be taken into account in determining whether the grant, variation or relocation of a licence would detract from or be detrimental to the amenity of an area include -

(3) Nothing in subsection (2) is intended to limit the definition of amenity.

A secondary focus was on whether granting the application would be conducive to or encourage the misuse or abuse of alcohol.
In considering this matter, I stand in the shoes of the Director and reconsider Woolworths' application having regard to all the material before me. In doing so, I am mindful of the objects of the Act, set out in s 4.

The definition of "amenity" in s 3A was introduced in 2002 when amendments were made to the Act. It defines it as the quality that the area has of being pleasant and agreeable.
It sets out various factors that may be taken into account such as parking facilities, traffic movement, noise levels, the possibility of nuisance or vandalism, and the like. However, such factors are specifically stated as not being intended to limit the definition of amenity. Amenity is a matter to be considered when any licence, not just a packaged liquor licence, is being considered.
The test is an objective one. An impact on an individual person is irrelevant unless it also affects the amenity of the area (see Black v Cooke [2000] VCAT 459).
The applicants say that allowing Woolworths to close the supermarket and open a "Dan Murphy" will detract from and be detrimental to the amenity of the area in which the premises are located. They say that a direct impact of allowing this application is the closure of the supermarket. The effect of that decision is they say detrimental to the amenity of the area. The closure and what follows is therefore, as I understand their argument, a matter relevant to my considerations of amenity issues.
Ms George in her evidence said the definition of amenity should include the adverse effects of the decision to close the supermarket. She said the concept of amenity should include concepts such as "diversity of choice, accessibility, health and safety and energy efficiency", gleaned from planning law and the Planning and Environment Act.
The Director says that the amenity concern under the Act is whether "the grant" of a package liquor licence subsequent to the closure to the supermarket will adversely affect amenity. It is the adverse amenity caused by the introduction of packaged liquor into the subject site that must be addressed - not issues caused by the decision to close the site as a supermarket. The Director contends that when there has been a commercial decision to close the supermarket, its effect is not a relevant consideration when considering whether or not to grant an application.
Mr Devlin submitted that it is incorrect to import "planning" concepts into the definition of amenity because they are matters relevant to planning matters and whether or not to grant a permit to use the subject land for a particular use. This is not the Director's role he said, which is to focus on whether the grant of the licence would have a detrimental effect on the amenity of the area.
Woolworths says that the concept of amenity as it relates to this application is in the context of the grant of an application for a liquor licence and the effect that may have on an area. Amenity, and any detriment that may be caused to it, they say is to be viewed from the perspective of the consequences of the grant of the licence and not a secondary consequence such as the closure of the former business conducted on the premises. They say it is a misconception of the provisions of the Act to have regard to the present use of the premises; neither the closure of the supermarket nor the effect that may have on other businesses are matters that can be relied on in this application.
Woolworths has made a decision to close the supermarket at Jackson Court. It is a decision which, of course, will bring about a change in the amenity of the Centre.
What the applicants are in effect saying is that because Woolworths has made the decision to close the supermarket and the decision to open a "Dan Murphy", I can have regard to the amenity issues that arise from the closure, when I am considering the application for the grant of the licence.
This cannot be correct. Whilst in this case it is the same organisation deciding to close one business and open another, to do as the applicants suggest, would mean that in every application the Director would be required to consider amenity issues caused by the change in use.
The approach I have taken is supported by the words used in the legislation which refer to the granting of the application. Section 44(2)(b)(i) makes it clear that the Director may refuse to grant an application if the granting of the application would detract from or be detrimental to the amenity of the area.
When one looks at the application made to the Director, it is for a packaged liquor licence for 898 Doncaster Road, Doncaster East, trading as "Dan Murphy". The Director has no power over any decision to close the supermarket. That is an entirely separate matter. I do not accept the applicants' contention to the effect that because Woolworths has decided to close the supermarket and open a "Dan Murphy" that it means the decision to close and its effects on the amenity can be part of my considerations of "amenity issues".
Nor do I accept that concepts of "amenity" used in planning law should be incorporated into the definition of amenity. In Lulu Black and Brian Cooke v Liquor Licensing Victoria and Another [2000] VCAT 459, the Tribunal resisted suggestions to adopt an interpretation of the word "amenity" consistent with its meaning in planning cases. The Tribunal said :

We consider that the meaning of the word 'amenity' when used in the Act is a wide and flexible term but not as liberal as that used in the planning legislation. The word 'amenity' clearly includes and takes into account the effect upon the senses such as the physical appearance of the premises, the convenience of accessing liquor, parking, traffic, the services provided and the beneficial aspects of liquor being available within a certain area. However, we do not accept that it goes so far as to say that one person's particular preference or specific choice to attend a particular premises and have available a larger range of specialist wines constitutes what would be defined as the 'amenity of the area'. Rather, it is the wider meaning of the word 'amenity' which takes into account the village or community feel of the particular area and the particular characteristics offered by the proposed application and the effects they would have on the particular area in question which are relevant.

Whilst that decision preceded the introduction of the amendments in 2002 defining "amenity", it clearly indicates one is to take account of matters to do with village or community feel of the particular area and the particular characteristics offered by the proposed application and the effects it would have on the area in question.

Much of the witnesses' evidence related to the inconvenience to them were the supermarket to close. I accept that for them the loss of the supermarket would be inconvenient. Many of them walk daily to Jackson Court and shop at the supermarket. They enjoy and benefit from the experience. Despite any inconvenience caused by the closure, all the witnesses but Mrs Walton were able to drive and had alternatives available to them were the supermarket to close. Even Mrs Walton agreed she could walk the extra distance to Devon Plaza and I note that she already has her fortnightly big shop home delivered.
I also accept their evidence about the perceived effect the loss of the supermarket would have on the overall feel or character of Jackson Court. I accept that they find the proposal intrusive and unwelcome. However, I am not satisfied that that is a relevant "amenity" issue. I have to focus on the amenity issues associated with the introduction of "Dan Murphy".
The closure of the supermarket may have an adverse effect on other businesses at Jackson Court. Mrs Barrington who for many years has run the local florist shop, readily acknowledged she was concerned about the effect of the closure of the supermarket on her business. She was equally concerned about the effect it would have on the overall community feel of Jackson Court. Her sentiments echoed those of a number of other witnesses who were concerned that the closure of the supermarket would affect the pleasant and agreeable environment and take away the heart of the community. Again, the closure is not a relevant amenity consideration, nor do I have any jurisdiction to control the retail mix of Jackson Court.
A number of the witnesses raised the number of existing packaged liquor outlets in the vicinity as an issue. They said there was no need for another outlet, and on that basis this application should be rejected.
Whilst this could potentially be an "amenity" issue, it may also be a "harm minimisation" issue. I accept that there may be circumstances where there is compelling evidence that might satisfy one that the grant of yet another licence would have an adverse effect on the amenity of an area or would be conducive to or encourage the misuse or abuse of alcohol.
I agree with the observations of Judge Bowman in Nardi v Director of Liquor Licensing [2005] VCAT 323 in addressing a like argument, where he said -

the logical extension of an argument such as this would be that no new licenses would be granted, in order to minimise harm. The proper foundations should exist so as to justify a decision, fairly and properly made, to refuse an application for a licence.

No such evidence, only general assertions, including for example the sheer size of the proposal, has been advanced in this case that satisfies me that because there are already approximately twelve licences in the general vicinity, that this application should be refused. One of the objectives of the legislation is to facilitate the development of a diversity of licensed facilities. Evidence was presented at the hearing, which I accepted, about the patrons "Dan Murphy" particularly attracted, compared with other liquor outlets and that this site is 8.5 kms from the nearest "Dan Murphy".
Mr Tanner in his evidence also said that the number of licences in an area does not in itself increase the amount of liquor sold. He said that it was a matter of competition between the outlets, and Woolworths would be trying to capture a greater share of the market at its competitors' cost. I accept that evidence. Given the nature of the patronage, the distance from the nearest "Dan Murphy" store and the evidence about taking a greater share of the existing market, I am not satisfied that the grant of yet another application in the vicinity would be either conducive to or encourage the misuse or abuse of alcohol or affect the amenity.
Mrs Milligan gave evidence that she was particularly concerned about the effects of alcohol on the young. Summarising what she says, she is concerned that "Dan Murphy" would contribute to youth access to alcohol. One can understand her concern.
Mr Tanner gave evidence about Woolworths' long and unblemished record in relation to the responsible provision of alcohol. I accepted his evidence noting his long experience in the area and am satisfied that Woolworths has in place procedures and a thorough training program for all staff who are involved in selling alcohol or in the supervision of alcohol sales. Woolworths' own record of responsible service considering it manages a significant proportion of outlets in the State, would indicate that its procedures and training are successful.
Other witnesses were concerned about the potential for the "abuse and misuse" of alcohol. For example, Mrs Barrington was worried about "hoon driving in the carpark" and Mrs Cresp about youths drinking in the area. Another was concerned about broken glass in the adjacent park. One can understand their apprehensions but the application is for a packaged liquor licence not for licensed premises where alcohol is bought and consumed. There was no evidence put to me that would substantiate those concerns, such that I might have been satisfied that the grant of the application would detract from or be detrimental to the amenity of the area.
Mr Papas was critical of the "traffic engineering report" prepared by the consultants, Cardno Grogan Richards. He pointed out that the report had not addressed any of the traffic issues he considered relevant, such as "through traffic" problems created by persons shopping at "Dan Murphy". They were issues that Mrs Cresp was also concerned about. She had observed cars "buzzing in and out of the Eltham 'Dan Murphy'". The report does not address issues like through traffic and was not intended to. What it reports on are the various public transport services in the region, and specifically on what services there are for four particular shopping centres/supermarkets along Doncaster Road between Williamsons and Tunstall Roads. It examines local bus routes, bus frequency, bus stop locations, availability of low floor buses and the like. The report shows the site is well served by public transport.
Mr Mensforth of Cardno Grogan Richards gave evidence. He is familiar with other "Dan Murphy" and supermarket sites. He said that at peak times a "Dan Murphy" site needed less than three parking spaces per 100 square metres compared with a supermarket which needed 5 to 5.5 spaces per 100 square metres. I accepted his evidence that the "Dan Murphy" proposal would generate a good deal less in terms of parking requirements than a supermarket. Whilst the parking turnover might vary, I am satisfied the proposed site has parking facilities to easily accommodate a "Dan Murphy". This finding is consistent with the comments about the availability of ample parking in Jackson Court set out in Manningham's Activity Centre Strategy Report.
The application is for a packaged liquor licence. I observe here that Manningham supports a packaged liquor outlet in conjunction with a supermarket. I do not understand Manningham to oppose a packaged liquor licence outlet, provided that it is in conjunction with a supermarket. That approach was reflected in Mr Bishop's evidence. He is not opposed to a packaged liquor licence provided it is part of a supermarket. That neither oppose such a licence, albeit that they support it in conjunction with a supermarket, indicates that they are not concerned about packaged liquor licences themselves in the area as an amenity or harm minimisation issue .

Given my findings, I am not satisfied that the grant of the application for a packaged liquor licence will detract from or be detrimental to the amenity of the area nor that it would be conducive to or encourage the misuse or abuse of alcohol.
For these reasons I affirm the decision of the Director made on 15 February 2008 to grant the application for a packaged liquor licence at 898 Doncaster Road, Doncaster East.

Papas & Ors v Director of Liquor Licensing

At a glance

Court

Decision date

Source

Judgment (48 paragraphs)

Papas & Ors v Director of Liquor Licensing (Occupational and Business Regulation) [2008] VCAT 1944 (12 September 2008)

Parties