Victorian Civil and Administrative Tribunal|2012-05-03

Sodhi v Moonee Valley CC & Anor [2012] VCAT 564 (3 May 2012)

Sodhi v Moonee Valley CC & Anor [2012] VCAT 564

The decision of the Responsible Authority is set aside.
In permit application MV/306/2011 a permit is granted and directed to be issued for the land at 726 Mount Alexander Road, Moonee Ponds in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows the sale of packaged liquor pursuant to clause 52.27 of the Moonee Valley Planning Scheme.

Mr Sodhi proposes to open a bottle shop on Mt Alexander Road close to the Moonee Ponds Junction. He seeks permission to operate the bottle shop until 11pm each night.[1] Planning permission is required under clause 52.27 of the Moonee Valley Planning Scheme for the sale of packaged liquor.[2]
Mr Sodhi explained that he selected the site on the basis of a desktop analysis that showed him that there were few opportunities to buy packaged liquor in the immediate area, with a high number of restaurants, cafes and bars by comparison.
Victoria Police provided a strong objection to the application to the responsible authority. It was concerned about the proposed introduction of an outlet that would sell liquor for consumption off the premises, in the context of what it regarded as a problematic late night "hotspot". It also considered that there was sufficient current availability of packaged liquor to meet requirements of patrons in the Moonee Ponds precinct.
The responsible authority assessed the application and upheld the concerns of Victoria Police. It determined that the subject land was not appropriately located for a packaged liquor outlet having regard to the potential for cumulative impacts, including antisocial behaviour and negative interactions with other nearby venues.
It also highlighted that the amenity of the area would be affected by the supply of packaged liquor in a council nominated 'Alcohol Free/Dry Area' especially during the night-time period. It had concerns about impacts on nearby residential land uses.
Victoria Police did not submit a statement of grounds form to the Tribunal and did not participate in the hearing. At my direction, it filed an outline of the issues it faces in maintaining public order in the immediate area. It expanded upon its original concerns to the proposal and provided accompanying incident reports for nearby venues.[3]
Mr Sodhi submitted in reply that there was a community need for packaged liquor, especially in this area where it could be consumed as part of a meal at one of the BYO restaurants along the entertainment area.[4] He considered that proprietors of restaurants, cafes, bars and nightclubs could purchase liquor from the shop if they ran out of alcohol or had unforseen requirements.
Essentially, Mr Sodhi was concerned that the responsible authority's position was tantamount to stifling competition. He further submitted that the licensed premises would be operated responsibly and that there would be no negative impacts on the amenity of the residential areas to the rear of the subject land.

I have no reason to doubt that the bottle shop, if approved, would be run lawfully and responsibly by the permit holder/licensee so far as is possible. This is an expectation under liquor licensing legislation.
The key issue before me is the appropriateness of the location of the subject land for the sale of liquor in the form of a bottle shop, having regard to broad considerations of amenity and other relevant impacts.[5]
This is the first case of which I am aware that considers issues associated with a proposed planning permit under clause 52.27 for the sale of liquor associated with a packaged liquor licence. The relevant amendment was made to the planning scheme in April 2011[6] to now control this type of use via the planning permit process (reversing its former exclusion).
Ultimately, my decision turns on principles of orderly and proper planning as to the siting of proposed new land uses. In my opinion, new uses involving the sale of liquor within an activity centre context call for careful scrutiny in the public interest.
This is supported by the Explanatory Report on Amendment VC79 that documents that it is the government's intention to open proposals for new bottle shops to public input in determining appropriate locations and acceptable impacts. This is closely tied to the purpose of clause 52.27, stated as:

To ensure that licensed premises are situated in appropriate locations.

To ensure that the impact of the licensed premises on the amenity of the surrounding area is considered.

Bottle shops have the potential to generate both desirable and undesirable synergies with nearby land uses within an activity centre such as this. The identification of cumulative impact on amenity (relative to existing licensed premises) as a decision guideline to clause 52.27 expressly calls for such an analysis.

From the outset, I note that the responsible authority and Victoria Police did not raise any inherent concerns with 'pure' day-time hours in terms of the supply of packaged liquor from this location. Notwithstanding, they inferred that the night-time issues identified would warrant refusal of the application overall.
A pertinent decision guideline in clause 52.27 is
- The impact of the hours of operation on the amenity of the surrounding area.

Curtailing operating hours is one common technique which is used to mitigate amenity impacts of approvals of licensed premises.

A bottle shop is a category of retail premises that would (all things being equal) appear to be consistent with the purpose of the Business 1 Zone, to encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.
At times far removed from the operation of late night entertainment uses, I consider that a bottle shop could play a legitimate role in providing readily accessible packaged liquor to consumers in an activity centre context. This includes consumers who may want to partake in meals at local restaurants, noting that some offer BYO services in the local area, or gatherings at a private residence/location.
Even though Victoria Police requested a limit on operating hours until 5pm (if approval was granted), there was no evidence that this extent of operation would be problematic or that it could not be managed without amenity impacts. It is relevant that this activity centre takes on a different day time character especially in its reduced prevalence of licensed premises, especially from 10am in the morning when the shop would be permitted to open. Examining the evidence of Victoria Police more closely, I find that the time of heightened risk in the local area tends to be from 9pm onwards, with a greatly reduced number of incidents recorded earlier.
For reasons I address below, I accept that the degree of convenience associated with a bottle shop on this site within a strip shopping centre, would be meaningfully higher than for those frequenting this part of Mt Alexander Road/Puckle Street/Ascot Vale Road at present. I regard this as a 'plus' during the day-time period and a 'minus' at the night-time period.
First Choice Liquor and Safeway Liquor are both reasonably nearby in terms of simple distance.[7] First Choice Liquor is licensed to trade to 11pm although its operating hours on its website appear to be more limited. Safeway Liquor can trade until 11pm although it advertises closing at 10pm on Sundays.[8]
Significantly, these premises are only accessed via a shopping centre and are not within direct view of the subject land. I find that their siting (and distance) would tend to involve planned or multi purpose visits to the centre more broadly as part of one's daily activities. Conversely, if attending only the entertainment precinct near the junction, their location would tend to discourage quick drop-ins for a bottle of wine or spirits, 6 pack of beers and the like as an impulse buy for example.
Whilst the Junction Hotel/Tabaret[9] is located only doors down from the site, its principal focus is a more traditional bar, restaurant and tabaret offer and this is the aspect of the Hotel most prominent to passers by. I believe that it offers a limited availability of packaged liquor for members but does not operate as a packaged liquor outlet by any means.
A Dan Murphys outlet is located more than 450 metres away and operates across reasonably limited hours (until mainly 8pm during the week and Saturdays, 9pm Fridays and 6pm on Sundays).
In the day time and early evening, say until 7.30pm, I find there is an opportunity for positive land use synergies, mainly with BYO restaurants in the area through the purchase of wine/beer or similar to drink with a meal. I would anticipate other impacts to be positive or benign.
Beyond this time, there is a likelihood that patrons of late night licensed venues would purchase alcohol from the bottle shop before entering these venues. In my opinion, this is a risk that should be avoided for reasons I address below.
In summary, I regard this proposed bottle shop as a suitable and potentially desirable adjunct to the existing mix of uses within this activity centre during the day time and early evening period to 7.30pm.
However, recognising the concerns of Victoria Police about trading from a bottle shop in this area beyond 5pm, I propose to adopt the responsible authority's recommendation for a CCTV system at the premises with a view of adjacent public areas at all times the premises is operating.

The responsible authority tendered documents indicating that there are some 56 licensed premises within a 500 metre radius of the subject land. On any view, this represents a high concentration of such premises and reinforces the area as a significant entertainment and leisure destination.
A feature of this precinct is its 'walkability', with patrons (especially pedestrians) moving between venues during the evening and night period. This is also relevant to the nearby public transport interchange which is one way of departing the area. Such linkages are expressly encouraged by local planning policy.
I inspected the subject land and surrounds on a Saturday night following the hearing. Given the time of year and time of night, it appeared to me that the late night entertainment venues in the immediate vicinity were operating at far below capacity.[10]
I mentioned earlier that my decision turns on the achievement of broad policy objectives in a localised setting. By this I mean that planning has a key role to play in creating and maintaining safe, functional and attractive environments. This is especially relevant to land uses within Principal Activity Centres and to the mix and type of uses within such centres.
In my opinion, the balance is tipped when considering the proposed foray of this bottle shop into the night period. There are two key reasons for this.
The first is that I find that there is genuine potential for undesirable impacts on amenity caused by the introduction of a bottle shop - a specific type of licensed premises - into an entertainment area that is already experiencing difficulties regulating public order and where amenity is reduced as a result.
The second reason is that local planning policy encourages the improved vitality of this area through urban renewal. I accept that this capacity exists in the immediate area at present. I consider that this proposal would represent a poor fit with this policy direction if permitted to operate into the night-time period. My concern links back with amenity, so I return to this aspect.

The existing setting and potential impacts on amenity

Mr Sodhi did not call evidence or address me on the issue of how the sale of packaged liquor at the subject land may inter-relate with other licensed premises having regard to potential cumulative amenity impacts.[11] He expressed the view that the operations of the proposed bottle shop and the operations of nearby hotels/taverns etc would represent a "totally separate service". He was also of the view that refusing an application such as this would have no impact on vandalism in the area.
Even though he may have the right intentions, this indicates to me that he has only addressed the issue of the suitability of the land for the proposal in a superficial way on the issue of amenity impacts. At the same time, Mr Sodhi did not contest the opinion of Victoria Police or the evidence on which it relied.
Council identified 6 licensed premises within 100 metres of the subject land. The evidence of Victoria Police including its report on incidents adopted generally the same focus. It demonstrated that:
- This particular precinct has been the victim of many serious night time assaults and incidents of criminal damage to residential properties and motor vehicles.
- Friday/Saturday nights and early Sunday morning are the times when the highest level of assaults occur; this is often near nightclubs and hotel premises.
- The greatest number of reported or observed incidents occur between 7pm and 4am on Fridays and 10pm and 4am on Saturdays.
- The number of incidents of offences and public disorder and the like increase around October/November with the racing carnival with a significant increase in patron numbers/pedestrians in the area at that time.
- Theft from motor vehicles is a significant concern around the Moonee Ponds Junction in particular. Saturday shows a "heavy hotspot" between 10pm and 6am and "intelligence suggests that given the hotspot of offending times, alcohol affected persons exiting the licensed venues. . . are the most likely offenders".
- 'High mass hotspots' for property damage occur between 7pm and 5am Fridays and Saturdays. The densest hotspot in the response zone is attributable to the vast amount of licensed and retail premises in the area.
- The main venues which contribute to crimes against the person, many of which are alcohol fuelled/related, are Empire Club (across the road), Cubby House Lounge Bar (highly proximate) and Deluxe Bar and Lounge (across the road slightly further away). All three venues experience relatively high numbers of incidents in connection with their operation, and all are within 100 metres of the proposed bottle shop.
The issue at hand is not so much about the isolated operation of the particular premises or whether it will be well run within the confines of the building. Rather, it centres around the relationship that the use would have with other surrounding uses later in the evening and night time period. This is recognised expressly in the decision guidelines to clause 52.27.
In relation to 'cumulative impacts' of the proposal I have considered the extensive range of matters described for consideration in Swancom v Yarra CC[12]. These matters include the relevant area under consideration, the density, mix and type of existing licensed premises and the existing level of amenity.
Clearly, the subject land sits within a late night entertainment precinct. I accept the evidence of Victoria Police that this precinct experiences above average rates of alcohol related crimes and public order related offences.
A relevant factor is that the council has introduced a by-law to make this part of Mount Alexander Road a "dry area".[13] To my mind, this indicates the serious approach taken by the responsible authority to managing the consumption of alcohol in and around this activity centre. It expressly seeks to limit the extent of drinking in public places, including on the way to and from licensed venues.
From experience and observation, it is not uncommon for people attending such venues to try to minimise drinking alcohol at inflated venue prices. This can involve what has been termed "pre-loading" where people gather before attending a venue to consume alcohol or "side-loading" where patrons leave a venue for a time to consume alcohol before returning to that venue or travelling to another venue.[14]
On balance, I accept the position of Victoria Police that to permit a packaged liquor outlet centrally located in a high risk, late-night precinct would result in (or be likely to result in) an increase in the number and/or seriousness of alcohol related crimes and public order related offences. I find that a likely precursor to this is a general increase in public disturbance associated with a changed pattern of alcohol consumption due to increased accessibility. Those who may travel between venues may pose a particular risk. There is also a prospect that these impacts will spill into residential areas behind the main streets.[15]
How is this relevant to planning approvals, when harm minimisation is not the driving principle[16]? The answer lies in the fact that amenity is often a cornerstone of the attractiveness of an area to the public, its overall vitality and impressions of safety within public spaces. The converse is also possible in terms of land uses contributing to a poor image, lack of vitality and safety concerns within a given area.
I find that this application raises the realistic potential for impacts akin to the latter in the night-time period. It is no coincidence that this is a time when the most assaults, property damage and general lawlessness are recorded by Victoria Police in the immediate area.
I was also referred to a document adopted by the council, the Community Safety Plan 2010, which acknowledges safety concerns in relation to the late night entertainment precinct along Mount Alexander Road.
Taking a realistic approach, I cannot accept that the only impacts I can (or should) consider when assessing a planning approval are those occurring at the time of sale of packaged liquor.
There will rarely, if ever, be amenity impacts associated with the immediate point of sale of packaged liquor. Therefore, one must ask the obvious question, what are the potential or likely consequences of the increased/ready availability of packaged alcohol in this area?[17] This is the essence of an approach focusing on appropriateness of location, including an amenity assessment.
The fact remains that there is arguably little a bottle shop licensee can do to prevent the alcohol sold at the store from being misused by purchasers, potentially in the local, public area with antisocial consequences. The use is one where control is generally lost when a customer leaves the premises.
In my opinion, whilst a licensed premises 'action plan' may assist in general terms by setting out basic operating parameters, its scope and limitations are clear.
The broader setting and its dynamics are relevant and ultimately, determinative. Ultimately, in this location, I find that there is a real and potentially undesirable synergy between a proposed bottle shop and immediately proximate late night entertainment uses such as taverns, hotels and nightclubs. It would introduce an entirely different type of licensed premises into the immediate setting.
Allowing a bottle shop to open during hours that overlap with (or approach) other late night entertainment uses would enable patrons in the direct sphere of influence of local clubs/pubs to conveniently and cost-effectively increase their alcohol intake outside licensed premises. This has a real potential to increase consumption patterns. Some patrons under the influence of alcohol would be drawn to entertainment venues in the local area and would potentially remain within the general street environment outside these times. The evidence of Victoria Police becomes relevant at this point.
I have balanced these impacts against improved choice and accessibility for those who can consume liquor responsibly. There are currently other (albeit less convenient) opportunities to purchase packaged liquor nearby. In reality, I also find it hard to accept that local venues will provide a stream of business for the proposed bottle shop. It is far more likely that these premises already have larger and more established commercial supply chains for the planned supply of alcohol. It would appear to me to be most unusual for such venues to want/need to purchase liquor from a bottle shop next door at night whilst operating (potentially at retail prices) other than on very rare occasions. Ultimately, I regard the ledger in deficit in terms of nett community benefit.

Relevant policies are most succinctly documented in the Moonee Ponds Activity Centre Structure Plan[18] adopted by council and referenced in the Planning Scheme. The Structure Plan and local policy more broadly focuses on encouraging higher order commercial uses and introducing higher density residential uses into the Principal Activity Centre (of which the land forms a part).
At night time, the area is already heavily weighted towards a dominance of bars, hotels and nightclubs (notwithstanding a reasonably generous number of restaurants in the strip). In my opinion, an additional night time use that has the potential to interact negatively with these uses or to exacerbate their impacts would not engender policy support.

The responsible authority did not adduce any evidence to suggest that parking associated with the proposed use would be problematic. At the same time, I need to be satisfied that the use is appropriately served in terms of parking availability.
I am satisfied that the proposed provision of on-site car parking spaces is adequate for staff parking and that loading can occur on-site within a designated area to the rear.
There are also additional spaces notionally available on site for customer parking. However, there is no direct opportunity for customers to walk through from the rear given the proposed layout of the premises.
Given the context of the shop, I expect that the vast majority of customers will park within the activity centre, especially along Mount Alexander Road. In addition, multi-purpose trips are likely to occur. Relevantly, the area is well serviced by public transport, especially buses and trams almost to the front doorstep.
To my mind, the use of public, on-street parking within the activity centre for this proposal would be acceptable to cater for the confined demand that may be generated by the use.

I support the introduction of a bottle shop into this activity centre as it functions during the day-time period. The use has capacity for appropriate synergies with a broad range of other uses operating at that time. It would increase shopper choice and convenience but is not likely to generate unreasonable impacts on amenity or perceptions of safety.
However, given the current 'late night landscape' of the Moonee Ponds Junction, I consider that the subject land is not appropriately located for a packaged liquor outlet involving trade into the night-time period.
I have determined that an acceptable balance is struck by granting the application subject to cessation of trading at 7.30pm. This would avoid an overlap of trading hours with licensed late night uses and would provide a buffer (in terms of timing) since most patrons of these other venues can be expected to drawn into the area after this time.
Consequently, the applicant now has a commercial decision to make. He can take the benefit of the permit with the reduced hours or he can elect to not proceed with the proposal in light of the restrictions imposed.

Before the use starts, amended plans (three copies) must be submitted and approved to the satisfaction of the responsible authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted and assessed with the application but modified to show:
1. The provision for a high quality CCTV system which includes views of public areas immediately adjacent to the premises (to the extent lawful).

Once approved these plans become the endorsed plans of this permit.

The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the responsible authority.
The amenity of the area must not be detrimentally affected by the use of land, through;

Transportation of materials, goods or commodities to or from the land; 2. Appearance of any building, works or materials;

Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot ash, dust, waste water, waste produces, grit or oil;

Presence of vermin; or 2. or in any other way

The use may operate only between the hours of 10am to 7.30pm on any day.
Parking areas, loading bays and access lanes must be kept available for these purposes at all times to the satisfaction of the responsible authority.
This permit will expire if:-
1. the use does not start within (2) years of the date of this permit, or
2. the use is discontinued for a period of two (2) years.

Before the permit expires or within three (3) months afterwards the owner or occupier of the land may in writing request the responsible authority to extend the expiry date.

[1] Which are regarded as ordinary operating hours for such a use as identified by the Victorian Commission for Gambling and Liquor Regulation.

[2] No planning permission is required for the buildings and works, noting the zoning of the land as Business 1.

[3] This was prepared on behalf of Licensing Inspector G.A Kedge with the direct input of Sgt G. Johnson. The permit applicant did not take up the opportunity to make submissions in response to this information.

[4] On the responsible authority's analysis there appear to be four at present within 500 metres of the subject land. This appears to be consistent with my internet search by way of verification.

[5] This calls for an analysis to be made on the balance of probabilities.

[7] Some 169 metres and 304 metres respectively. Liquorland is approximately 417 metres away and has it latest closing hours at 9pm although it is entitled to trade to 11pm.

[8] This was confirmed on their websites.

[9] And the Victorian Harness Racing Club.

[10] In addition, a large corner premises was closed, but would have ready opportunity to be converted into a large scale entertainment venue in the future (formerly Metro Lounge). Even so, I observed a practise of queuing patrons outside venues, with exuberant (but not antisocial) behaviour of some queuing patrons.

[11] This was a matter requested via a further information request from the council.

[12] (Red Dot) [2009] VCAT 923, a decision of Deputy President Dwyer and Member Bensz.

[13] From 9pm to 9am each day plus additional restrictions during the racing carnival and Cox Plate. This would make drinking alcohol in designated areas outside licensed venues or private property unlawful.

[14] These trends were outlined in submissions in Kordister Pty Ltd v Director of Liquor Licensing (OBR) [2010] VCAT 277, a decision of Senior Member Davis as follows: pre-loading - involves patrons of nightclubs buying alcohol before they enter the nightclub from a bottleshop and consuming that alcohol before they enter the nightclub so that they would not have to pay the extra price for drinks which the nightclubs would charge. Side-loading - where the patrons of nightclubs leave the nightclub for a short time, purchase alcohol from a bottleshop and then re-enter the nightclub after the alcohol has been consumed. End-loading - where customers from nightclubs would buy alcohol after leaving the nightclub in the early hours of the morning. Whilst that decision was appealed successfully to the Supreme Court, this pattern of behaviour was not inherently disputed.

[15] The nearest residential area is in Hinkins Street, approximately 30 metres to the east.

[16] As it is under liquor legislation.

[17] I am aware of general research on the relationship between outlet densities and antisocial/harmful behaviours, such as that of Michael Livingston of Turning Point Alcohol and Drug Centre but this is currently thought to be somewhat inconclusive and was not presented to me in the form of tested evidence in this case.

[18] MPAC 2030. The land is identified within Precinct G.

Sodhi v Moonee Valley CC & Anor [2012] VCAT 564

At a glance

Court

Decision date

Source

Judgment (42 paragraphs)

Sodhi v Moonee Valley CC & Anor [2012] VCAT 564 (3 May 2012)

Parties