Suh v Liverpool City Council and Casula Community Group for Responsible Planning Inc No. 2

Land and Environment Court (NSW)|2016-11-14|Before: Moore J

Solicitors: Mills Oakley (Applicant) Sparke Helmore (First Respondent) University of Newcastle Legal Centre (Second Respondent) File Number(s): 2016/155850 (formerly 11174 of 2015)

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 1060/2015 for the demolition of the existing 'Fontainebleau Motor Inn' and construction of single storey hotel and associated at grade car parking for 161 cars (the proposal) at 467 Hume Highway, Casula (the site) by Liverpool City Council (the Council).
The appeal was subject to mandatory conciliation on 8 March 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 22 March 2015, pursuant to s 34(4) of the LEC Act.
On 23 March 2016, Justice Moore granted the joinder of the Casula Community Group for Responsible Planning Inc as a Second Respondent in the proceedings (Suh v Liverpool City Council [2016] NSWLEC 25).

Issues

The Council's contention in the matter is that the proposal will have unacceptable social impacts within the locality for the following reasons:

In focusing the demographic analysis on the suburb of Casula, the applicant's SIA does not adequately consider the immediate surrounds of the proposed pub from which the pub will be most accessible and where impacts related to increased alcohol-related harm will be most intensely experienced, and thus does not adequately address social impacts in the relevant locality;
The proposal is likely to have adverse social impacts within a 1km radius of the site due to the highly disadvantaged demography of the locality, including a well above average concentration of people with characteristics that make them vulnerable to elevated levels of alcohol related harm;
In terms of net social impacts to the Liverpool Local Government Area (LGA), the relocation of the hotel licence from the CBD of Liverpool to the proposed site is likely to be negative, with significant disbenefits in introducing a hotel to a disadvantaged area with no hotel or packaged liquor licences, compared to the relative slight benefit of removing one hotel licence from a busy CBD environment with 7 hotels, most trading longer and hours than the New Commercial Hotel;
There is likely to be a serious adverse impact within the Liverpool LGA resulting from the loss of the Fontainebleau Motor Inn, as it is the primary private facilities used by Family and Community Services (FACS) - Housing NSW to accommodate homeless people and those seriously at risk of homelessness in temporary accommodation;
The proposal is not in the public interest, pursuant to s 79C(1)(d) and (e) of the EPA Act, having regard to the matters raised in the submissions received by Council as detailed in the Statement of Facts and Contentions (exhibit 1).

The Second Respondent's contentions in the matter are:

The degree of infiltration of alcohol-related harms and disturbances within the surrounding communities and suburbs arising from the proposed development beyond a one kilometre radius from that development will have an unacceptable social impact;
The proposed development will cause an increase in the incidence of health-related problems caused by alcohol including sexually transmitted infection, liver cirrhosis, alcohol use disorders and injuries from assault and motor vehicle accidents; and
The mitigation measures and Plan of Management proposed by the applicant to mitigate the social impacts of the development including alcohol-related harm are inadequate.

The site and its context

The site is on the western side of the Hume Highway and has an access handle to Graham Avenue, Casula. The allotment is irregular in shape and has a site area of 11,650sqm, with a primary frontage of 148m to the Hume Highway.
The M5 is a short distance to the north of the site, with entries and exits to the Hume Highway.
There is a residential area to the west of the site and there is an aged care facility adjacent to the site on Graham Avenue.
Casula Public School is located on De Meyrick Avenue approximately 140m south-west of the site.
A McDonalds restaurant with 24 hour trading is located approximately 137m to the north of the site on the Hume Highway.
The nearest hotel is the Collingwood Hotel approximately 1.3km to the north of the site on the Hume Highway.

The proposal

The proposal is to demolish the existing motel and construct a single storey hotel with the following accommodation: bars, smoking lounge, restaurant, outdoor seating, toilet facilities, kitchen, loading bay and parking for 161 cars.
The trading hours of the hotel are Monday to Saturday 10am to 12 midnight and Sunday 10am to 10pm. The maximum number of patrons permitted on the site at any one time is limited to 500. There is to be no live entertainment. Packaged liquor will not be sold. Security is to be provided.
The driveway in Graham Avenue is to be closed from 10pm every day and 33 parking spaces will be isolated by a boom gate, leaving 128 parking spaces remaining in the carpark after 10pm.
The proposal includes a Plan of Management (exhibit J). Condition 6 (exhibit 6) requires the applicant to provide Council's Manager - Development Assessment with a comprehensive Plan of Management for approval prior to the commencement of the use and the applicant accepts the imposition of this condition on any consent.
There is a 1.8m high noise impact screen along the south-eastern boundary.
No signage is included in the development application.
The applicant accepts a deferred condition of consent requiring an existing drainage easement to be extinguished and a replacement easement to be granted to the satisfaction of the RMS.

Objector evidence

Dr Crozier, a vascular and trauma surgeon at Liverpool Hospital and also representing some local general practitioners who practise in the vicinity of the site, raised the following concerns:

As a trauma surgeon at the local hospital he is aware of the high rates of domestic and non-domestic assaults in the area and the proposal will result in an increase in alcohol related assaults or alcohol related crime contrary to what the Statement of Social Impact claims;
The locality comprises one of the highest concentrations of road traffic collisions on the Hume Highway and the proposal will generate peak traffic movements of 192 vehicles per hour onto the Hume Highway which carries approximately 11,000 daily movements. Driver inattention is a significant contributor to traffic accidents and alcohol intake contributes to drivers being distracted.
The site is near three women's refuges.
The existing location of the hotel licence at the New Commercial Hotel is in the Liverpool CBD and not close to any residential areas. The New Commercial Hotel is one of three hotels close to Liverpool Railway Station and forms part of the "Golden Triangle" which includes tattoo parlours, a methadone clinic and brothels. The head of the Intensive Care Department at Liverpool Hospital sends Christmas cards to the hotels each year thanking them for all their business.

Pastor Hemans of the Open Heaven Church, Liverpool, is a local resident and ministers to those in need and provides outreach services. He is concerned that the proposal will attract people suffering from addictions.
A teacher from the local primary school who resides locally is concerned that the proposal will cause harm to the disadvantaged members of the local community. The community is comprised of individuals from a range of different backgrounds and there is government provided housing nearby.
A daughter of an aged care resident at the facility adjacent to the site is concerned that the proposal will disturb the residents of the aged care facility. She noted that 'family friendly' is not an appropriate description of a venue that sells alcohol.
A local resident, representing the P&C of Casula Public School is concerned that the hotel is inappropriate for a low socio-economic community and that the hotel is too close to the primary school.
The Court in the company of the parties viewed the site from the backyard of a resident objector's house which shares a rear boundary with the site. The resident is concerned about noise and disruption.

Planning framework

Section 79C of the EPA Act relevantly includes the following: 79C Evaluation (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: (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
State Environmental Planning Policy (Infrastructure) 2007 relevantly includes the following at cl 101: 101 Development with frontage to classified road (1) The objectives of this clause are: (a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and (b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads. (2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that: (a) where practicable, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
The site is zoned B6 Enterprise Corridor pursuant to the Liverpool Local Environment Plan (2008) LEP 2008 and the proposal for a 'commercial premises' is permissible with consent. The relevant objectives of the B6 Enterprise Corridor, to which regard must be had, are: • To promote businesses along main roads and to encourage a mix of compatible uses. • To provide a range of employment uses (including business, office, retail and light industrial uses). • To maintain the economic strength of centres by limiting the retailing activity. • To provide primarily for businesses along key corridors entering Liverpool city centre, major local centres or retail centres. • To ensure residential development is limited to land where it does not undermine the viability or operation of businesses.
Liverpool Development Control Plan 2008 requires applications for development of, or major changes to, hotels, bars, pubs and taverns to provide a comprehensive social impact assessment.

Expert evidence

The applicant relied on the social planning expert evidence of Ms J. McClellan and Associate Professor R. Ryan. The Council relied on the social planning expert evidence of Dr J. Stubbs. The second respondent relied on the expert evidence of Professor K. Kipri (behavioural scientist) and Professor P. Miller (psychologist).
Mr N. Dickson on behalf of the applicant and Mr G. Nehme on behalf of the Council provided a planning expert witness joint report and were not required for cross-examination.

Consideration

A summary of the principles that may assist in determining the relevant considerations for likely social impacts of a proposed development for a liquor outlet within a locality are as follows (Redcape Hotel Group Pty Ltd v City of Ryde [2016] NSWLEC 1497 [26]):

Section 79C(1)(b) of the EPA Act requires the Court to consider "the likely impacts of that development, including ... social … impacts in the locality", where the reference to "likely" impacts means "a real chance or possibility": (Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104 at [46]).
"Locality" in s 79C(1)(b) is not defined in the EPA Act and is a question of fact; the identification of what constitutes a relevant impact in a particular case and what constitutes the appropriate locality within which to consider the impact is for the consent authority to determine, subject to identifiable outer limits of connotation (Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 199 at [42]). The locality should be confined so as to enable a meaningful consideration of the impacts of the addition of the proposed development (Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280 at [68]). Experts have often identified a primary and secondary locality.
Whether the location of the site, such as on a main road, makes it accessible to a wide area and consequently broadens the patronage of the proposal (Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280 at [96] and Motto Farm Pty Ltd v Port Stephens Council [2011] NSWLEC 1293 at [71]).
Weight must be given to the zoning in the resolution of a dispute as to the appropriate development of any site, although the fact that a particular use is permissible may be a neutral factor (BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [117]) As liquor outlets are a legal land use, some degree of impact is consequently deemed to be acceptable by society (WWL Consulting Pty Ltd v Marrickville Council [2011] NSWLEC 1161 at [71] and Motto Farm Pty Ltd v Port Stephens Council [2011] NSWLEC 1293 at [75]).
The socio-economic demography of the locality is a relevant consideration because there is generally agreement that the relevant literature has established a correlation between social disadvantage and increased vulnerability to alcohol related harm (WWL Consulting Pty Ltd v Marrickville Council [2011] NSWLEC 1161 at [52] and [89], Cardno Pty Ltd v Campbelltown City Council [2013] NSWLEC 1056 at [41], Motto Farm Pty Ltd v Port Stephens Council [2011] NSWLEC 1293 at [66]). The socio-economic characteristics of a locality are established using Australian Bureau of Statistics (ABS) Socio-Economic Indexes for Areas (SEIFA) based on the most recent census data.
The prevalence of alcohol related crime in the locality is a relevant consideration, including "hot spots" for alcohol related violence as determined by the NSW Bureau of Crime Statistics and Research (BOCSAR). A Crime Prevention through Environmental Design (CPTED) analysis may be appropriate in order to identify crime risk and minimise opportunities for crime.
The use of academic literature and surveys can be helpful in assessing the likely social impacts of a liquor outlet, however, the provision of evidence should be proportional to the concern raised (Motto Farm Pty Ltd v Port Stephens Council [2011] NSWLEC 1293 at [65] and [98]).
The relationship between the type of liquor outlet and the socio-economic demography of the locality may be a relevant consideration (Cardno Pty Ltd v Campbelltown City Council [2013] NSWLEC 1056 at [26]) and the relationship between the price of liquor and demand may be a relevant consideration (Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280 at [93]).
The density of liquor outlets in the vicinity of the site is a relevant consideration, including whether the proposal contributes to a cluster of liquor outlets or is within an entertainment precinct, notwithstanding that the density of liquor outlets may be reflective of the zoning where the only zone in which a liquor outlet is a permissible use is within a town centre.
Whether existing uses in the immediate context of the proposal result in the proposal being inappropriate (Cardno Pty Ltd v Campbelltown City Council [2013] NSWLEC 1056 at [42]-[44]).
The Court, as the consent authority, is not permitted to refuse development consent for a reason that relates to the installation, keeping or operation of approved gaming machines in a hotel or registered club (Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112 at [41]).
Whether the identified social impacts of the proposal are able to be adequately mitigated by the management and other strategies proposed.

Locality

Ms McClellan and Dr Stubbs disagreed on an appropriate locality for the purpose of the assessment of social impact, pursuant to s 79C(1)(b) of the EPA Act. In her Social Impact Assessment (exhibit H) submitted as part of the development application package to Council, Ms McClellan identified Casula suburb as the immediate locality ("the Casula suburb locality") and the Liverpool LGA as a secondary locality. Ms McClellan based her identification of the Casula suburb locality on it being the anticipated trade area of the proposal. Figure 1 Map showing Ms McClellan's Casula suburb locality (yellow), the site (red), Liverpool (blue) and Liverpool LGA (black), from her Social Impact Assessment (exhibit H)
Dr Stubbs prepared a Statement of Evidence (appendix JS#1 of exhibit 5) in response to the applicant's Social Impact Assessment prepared by Ms McClellan (exhibit H).
Dr Stubbs is critical of the Casula suburb locality because the site is located at the northern tip of Ms McClellan's Casula suburb locality and the profile of the local community in Casula is more advantaged when compared to the profile of the community within a 1km radius of the site ("the 1km locality") which includes part of the suburb of Liverpool to the north of the M5 Freeway. In Dr Stubbs' view, the locality is more appropriately defined as follows:

An immediate locality - the areas within 500 to 1000m of the proposed hotel as an area where the most intensive adverse impacts related to alcohol related harm (increased crime, violence, amenity, health, welfare and road safety impacts) are likely to be experienced; and

Dr Stubbs agreed with Ms McClellan that the Liverpool LGA is an appropriate secondary locality, where more general impacts related to density of licenced premises and loss of emergency accommodation are likely to be experienced.
Ms McClellan is critical of the 1km locality because in her view it is arbitrary area and does not taken into consideration naturally occurring boundaries that would result in a proportion of the population within this 1km radius being unlikely to utilise the proposal and unlikely to be impacted upon by the proposal. Notwithstanding her criticism of the 1km locality, in response to Council's contention regarding the identification of the locality, Ms McClellan prepared Evidence in Reply (appendix JM#1 of exhibit 5) analysing the socio-economic characteristics of the 1km locality.
Dr Stubbs prepared a reply in response Ms McClellan's Evidence in Reply (appendix JS#2 of exhibit 5).
In JS#2, Dr Stubbs included a map (Figure 2) showing the areas to the north of the M5 Freeway that should, in her view, be included in the locality (shown in blue). The SA1 (Statistical Areas Level 1) areas to the south of the M5 Freeway in purple are the areas that the experts agreed should be included in the locality. The areas in red are those areas that Ms McClellan included in the immediate locality. Figure 2 Site is shown as a star. Each number identifies a SA1 from the SEIFA s
The social planning experts agreed in cross-examination that the literature substantiates that a half hour walk is what people are prepared to do and according to Ms McClellan the walking time to a hotel is relevant in determining the locality. Dr Stubbs included the walking time from the centre of each SA1 in Figure 2 to the site and all the SA1s selected by both Ms McClellan and Dr Stubbs had walking times to the site of less than 30 minutes (Table 2-1 JS#2 of exhibit 5). I accept that the walking times for both Ms McClellan's and Dr Stubbs' defined localities conform to the evidence that people will walk up to half an hour to a hotel and that walking times are not a reason to prefer one defined locality over the other; other than to note that the walking times from the SA1s north of the M5 Freeway, to the site (15-17 minutes) are shorter than the SA1 area included in Ms McClellan's Casula suburb locality to the south-west of the site (19 minutes).
I prefer and adopt Dr Stubbs' 1km locality for the following reasons:

The Hume Highway crosses over the M5 Freeway and provides easy pedestrian or vehicular access and therefore connectivity from the residential areas to the north of the M5 Freeway to the site. For this reason I do not accept that the M5 Freeway presents as a 'natural barrier' in defining the locality.
The distance to access the site from the SA1 areas to the north of the site within or on the boundary of the 1km locality is less than the distance to the SA1 area to the south-west of the site included in the Casula suburb locality by Ms McClellan (SA1 1152208), as demonstrated by Dr Stubbs in Table 2-1 (p4, JS#2 of exhibit 5).
A significant portion of the area identified by Dr Stubbs to the north of the M5 is closer to the site than to the Collingwood Hotel at 321 Hume Highway Liverpool. I do accept that there would be some overlap of the locality of the proposal and any locality of the Collingwood Hotel, however, this is not a reason to exclude those areas from the defined locality as the presence of the Collingwood Hotel does not insulate the residents in the area to the north of the M5 from impacts arising from the proposal.
The Casula suburb locality is no less arbitrary than the 1km locality.

I accept that the 1km locality is the area where the most intense impacts related to alcohol related harm (increased crime, violence, amenity, health, welfare and road safety impacts) are likely to be experienced. I am satisfied that the 1km locality, defined for the purpose of s 79C(1)(b) of the EPA Act, is appropriately confined so as to enable a meaningful consideration of the impacts of the addition of the proposal.
I accept the agreement of the social planning experts that the secondary locality is the Liverpool LGA.

Characteristics of the Locality

Dr Stubbs summarised the differences in SEIFA scores between the 1km locality and the Greater Sydney average as follows (p8 JS#2 of exhibit 5): 1km Locality Greater Sydney average SEIFA disadvantage 15th percentile for NSW N/A 13th percentile for Australia SEIFA education and occupation 21st percentile for NSW and Australia N/A No formal qualifications 15+ years 53.1% 40.5% Did not complete Year 10 22.3% 12% Social Housing 11.7% 5.2% Labourers 15% 7.3% Indigenous 1.5% 1.2% Unemployment 10.9% 5.8% Single parent families 17% 10.8% Low and very low income 49.9% 36.7%

In relation to the SEIFA indices for the 1km locality, it is a fact that across each of these indicators of community disadvantage the 1km locality is consistently more disadvantaged and significantly more disadvantaged than the Greater Sydney average. The social planning experts agreed that the 1km locality is a disadvantaged area and they agreed that the literature has established a correlation between social disadvantage and increased vulnerability to alcohol related harm. They disagreed, however, on the effectiveness of the mitigation measures embodied in the proposal aimed at ameliorating the negative social impacts of the proposal on the locality.
In Dr Stubbs' opinion, the SEIFA Disadvantage for the locality is the most important indicator of an elevated vulnerability to alcohol related harm, because the literature has established a correlation between social disadvantage and increased vulnerability to alcohol related harm. According to Dr Stubbs, 7 of the total of 16 SA1s within the 1km locality are in the bottom 10% in NSW for SEIFA Disadvantage and one is in the lowest 3% for NSW. According to Dr Stubbs and based on the academic literature, each 10% decrease in SEIFA Disadvantage from the mean predicts a high base level of poor health and problems related to alcohol consumption and harm and an increase in alcohol related assaults. The lowest 20% of areas for SEIFA Disadvantage has the greatest correlation of any indicator of predicting increased experience of drunkenness in a neighbourhood.
According to Ms McClellan, 'Whilst there is no direct association established between high risk drinking behaviour and the SEIFA decile the ABS indices are considered the most appropriate calculating [sic] the level of advantage or disadvantage in an area. With the recorded decile of 6 within the local Casula area as well as the relevant Liverpool LGA it is considered that may [sic] be some level of risk for the proposal in relation to this indicator however, the risk is not considered to be significantly high.
Dr Stubbs noted that Lurnea, to the west of the site and in the Liverpool LGA and the secondary locality agreed upon by the social planning experts, has all but three of a total of 20 SA1s in the bottom 20% of the most disadvantaged in NSW.
I accept the agreement of the social planning experts that the 1km locality is a disadvantaged area and that the literature has established a correlation between social disadvantage and increased vulnerability to alcohol related harm.

The prevalence of alcohol related crime in the locality

According to Ms McClellan, over the last 5 years the suburb of Casula has had a consistently lower rate of alcohol related assaults compared to suburb of Liverpool, which has a much higher rate of alcohol related assault than the NSW average. The 'hot spot' of alcohol related assault is focused on the Liverpool LGA (Figure 1, exhibit H) and the proportion of alcohol related assaults in the suburb of Casula is much lower than that recorded for the suburb of Liverpool.
According to Dr Stubbs, the existing New Commercial Hotel is located within a crime hot spot for non-domestic assault, domestic assault and malicious damage to property (maps 5.19-21, JS#1 of exhibit 5).
In Dr Stubbs' view, it is not surprising that there is not a hotspot for assault near the site as there is no liquor outlet there now. There is a significant hot spot for assault in the Liverpool CBD around the existing cluster of hotels. Therefore she considers that it is reasonable to assume that the relocation of the hotel will transfer or generate increased assaults as well as malicious damage into the immediate locality.
According to Dr Stubbs, the site is within a hotspot for domestic violence and this indicates the community within the 1km locality is likely to be experiencing elevated levels of family stress, which is not surprising given the disadvantaged demography of the 1km locality (p 85 and Map 5.23, JS#1 of exhibit 5).
A CPTED analysis was undertaken by Ms McClellan in her SIA (exhibit H) and she recommends lighting and security measures in the carpark to increase surveillance as an appropriate response to the risk of motor cars being stolen from the carpark.

The type of liquor outlet and density

Type of liquor outlet According to Ms McClellan, a hotel provides a venue for socialising and therefore also plays a positive role in the community. In Ms McClellan's view, the proposal is designed to be a 'family friendly' venue, as there are restaurants and outdoor areas for families to use. According to Dr Stubbs, there are a range of reasons why people go to hotels, including ambience, ability to be with others and so on.
Dr Stubbs agreed that as a general proposition, the retail sale of alcohol by the proposal will be at a greater price per unit volume than take-away packaged liquor.
In relation to the density of liquor outlets, according to Ms McClellan's analysis Casula suburb has a total of 11 liquor licences, including a licenced hotel, the Crossroads Hotel. The proportion of licences per 1000 of population for the suburb of Casula is 0.75 and 2.24 for the suburb of Liverpool. The applicant intends to remove the liquor licence from the New Commercial Hotel 227 Bigge Street Liverpool to use for the proposal; so the proposal will not result in an increase in density of licensed premises within the Liverpool LGA, and overall the proposal will decrease the density of licensed premises within the Liverpool LGA as the proposal would replace the existing on-premises licence of the Fontainebleau Motor Inn and alleviate the cluster of hotels in the Liverpool CBD.
According to Ms McClellan, there are hotels in the Liverpool LGA including opportunities to purchase packaged liquor, but not in the immediate vicinity of the site.

Existing uses in the vicinity of the site

There is an aged care facility at 14 Graham Avenue, Casula which shares its southern and eastern boundaries with the site. The applicant has sought to ameliorate any amenity impacts on the aged care facility by closing the Graham Avenue exit at 10pm.
The proposed carpark includes parking adjacent to the southern boundary of the aged care facility with a 1.363m landscaped setback. The Graham Avenue driveway is located adjacent to the eastern boundary of the aged care facility with 5 parking spaces and a 1.334m landscaped setback adjacent to the shared boundary. The boom gate is located close to the carpark exit onto Graham Avenue. The loading bay and the kitchen of the proposed hotel are located on the western and north-western corner of the hotel, closest to the aged care facility.
There are dwellings which share their rear boundary with the western boundary of the site. The proposal includes a 1.8m high noise impact screen along the shared boundary and a 9.307m landscaped setback between the western lane of the carpark and the shared boundary.
According to Dr Stubbs, the academic literature indicates that there will be some increase in assault with the introduction of one hotel and predictors of elevated levels of violent crime include demographic factors, particularly a low SEIFA Disadvantage indicator. In her view, an easy to access large and attractive new hotel in the locality, in the context of a vulnerable demography and the surrounding land uses, is likely to increase both harmful consumption of alcohol and alcohol related harm in the locality.
I accept Dr Stubbs' evidence that the areas closest to the site are likely to experience the effects of the hotel most intensely in relation to assaults, malicious damage and amenity impacts such as noise, annoyance and drunkenness.
Inevitably, there will be amenity impacts on the residents in the aged care facility and the properties adjoining the site to the west. I accept that those impacts will be ameliorated to some extent by the screen and the generous landscaped setback along the western boundary, however, the proposal is likely to have a significant impact on the amenity of the aged care residents, particularly those units fronting the shared boundaries with the site.

Zoning

The B6 Enterprise Corridor zone permits with consent a very broad range of uses and for this reason I consider that the permissibility of the proposal is a neutral factor in determining the development application.

Mitigating the social impacts

Ms McClellan relies on the effectiveness of the mitigation measures in the Plan of Management to counter the identified demographic high risk of alcohol related harm. Ms McClellan acknowledged during cross-examination that the Plan of Management could be strengthened and that many of her recommendations (JM#1 p31 of exhibit 5) are not specifically included in the development application, notwithstanding that her support of the proposal is based on the mitigation measures she recommended being included in the proposal. Ms McClellan acknowledged that the proposal will result in an unacceptable social impact in the locality if the mitigation measures are not included in the proposal.
According to Ms McClellan, the community consultation referred to in her SIA has not been undertaken by the applicant, despite her recommendation that consultation been undertaken.
The proposal includes a courtesy bus pick up and drop off service for patrons between their home and the site. All the experts agreed that the proposed shuttle bus drop off zone behind the hotel building and in the carpark is an inappropriate location and that the bus should only be available for drop offs and not for bringing patrons to the venue. Ms McClellan acknowledged that the details on the running of the courtesy bus, including the hours of the bus, have not yet been finalised. I accept Ms McClellan's evidence that this aspect of the proposal remains unresolved and uncertain.
The Plan of Management (exhibit J) includes a complaints handling procedure for the proposal and an incident register.
The Plan of Management (exhibit J) includes the following at 60: The licensee shall participate and facilitate a neighbourhood committee that will seek to address issues associated with the amenity of the area around the Hotel
According to Professor Miller, there is no definition of "neighbourhood committee" in the Plan of Management or how it would be constructed or how often they would meet and he noted the panel has no 'teeth' to effect any change to address issues associated with impacts on the amenity of the area around the hotel. I accept Professor Miller's criticisms of this aspect of the proposal.
Mr Galasso SC submits that the Responsible Service of Alcohol (RSA) policy (exhibit M) and the Three Strikes Disciplinary Scheme (exhibit L) provide mechanisms to effectively police the proposed venue and significantly mitigate any potential harms arising from the proposal by ensuring that the service of alcohol does not extend to a point of serious affectation. According to Dr Stubbs, the RSA policy is often not effective as it is difficult to detect intoxication until a person is very intoxicated. According to Professor Miller, his research has shown that the RSA policy is not effective in a lot of pubs, because by the time a staff person realised a patron is intoxicated, the patron has already reached a level or is beyond the level of intoxication that the RSA policy seeks to mitigate. Professor Miller said that this is because it takes about 45 minutes after consuming alcohol, depending on the person, to show any signs of intoxication. At a 0.08 blood alcohol level, we often show one sign of intoxication but most people, including those trained in RSA, cannot detect intoxication at that level. It takes a blood alcohol level of 0.15 for most people to be able to reliably say that the person is drunk. Mr Staunton submits that this is not a criticism of the RSA policy per se, but rather it is important to consider how the RSA policy works and the difficulties associated with reliably determining a patron is intoxicated. On that basis, I accept Professor Miller's evidence regarding the difficulties associated with the imposition of the RSA policy and I accept that it is not always effective in ensuring that patrons do not reach an undesirable level of intoxication.
According to Professor Kypri, there is harm attributable to blood alcohol levels below what is ordinarily considered to be intoxication, particularly in relation to driving. He is concerned that drivers will have to negotiate entry onto the Hume Highway when leaving the hotel with raised blood alcohol levels. Professor Kypri noted that the proposal is not close to public transport and has a large car park, which suggests that there will be a lot of car movements onto the Hume Highway from the proposal.
I have had no regard to the evidence of the strike imposed on another hotel in Liverpool with the same licensee as the proposal, following an incident at that premises in 2013, because development consent runs with the land and the good management or otherwise of a licensee is not a relevant consideration in assessing a development application.
I am not satisfied that the adopted mitigation measures proposed by the Plan of Management will be sufficient to achieve a proposal that adequately mitigates its adverse social impacts in relation to alcohol related harm within the locality. I accept Ms McClellan's evidence that her support of the proposal rests on her recommendations for mitigating adverse social impacts being incorporated into the proposal and that many of her recommendations have not been included in the proposal. I accept her evidence that the Plan of Management could be strengthened. I am not satisfied that the proposal, including the Plan of Management, is sufficiently certain and robust to warrant relying on the proposed mitigation measures to address the likely social impacts of the proposal. As a consequence, the development application should be refused on the basis of the likely adverse social impacts of the proposal on the vulnerable community within the locality.

Reassignment of the licence of the New Commercial Hotel to the proposal

The applicant proposes to reassign the liquor licence from the New Commercial Hotel at 227 Bigge Street, Liverpool to the proposed hotel.
According to Ms McClellan, the reassignment of the liquor licence is a benefit, as the New Commercial Hotel is one of a cluster of 7 hotels in the Liverpool CBD and the removal of one licence will reduce the negative impacts of the cluster of hotels. Ms McClellan notes that the proposal will result in an overall reduction of licenced premises in the Liverpool CBD as the Fontainebleau Motor Inn, which has a liquor licence, will be closed.
Dr Stubbs notes that the New Commercial Hotel is in close proximity to retail, commercial and service facilities and is near a busy train station; in contrast, the site is in a suburban locality, with a small local shopping centre, close to residential areas, with no train station and on a busy highway. In her opinion, it is likely that there will be alcohol related harms introduced into the locality where these impacts are not currently apparent. In Dr Stubbs' view, there will be only minor benefits from the closure of a hotel in the Liverpool CBD and relatively greater adverse
I prefer and accept Dr Stubbs' opinion in relation to the closure of the New Commercial Hotel in the Liverpool CBD. I am satisfied on the basis of all the evidence that Council's contention that there will be significant disbenefits in introducing a hotel to a disadvantaged area with no hotel or packaged liquor licences, compared to the relative slight benefit of removing one hotel licence from a busy CBD environment with 7 hotels, most trading longer and hours than the New Commercial Hotel, is made out.

Loss of the Fontainebleau Motor Inn

The Council's contends that there is likely to be a serious adverse impact within the Liverpool LGA resulting from the loss of the Fontainebleau Motor Inn, as it is the primary private facilities used by FACS - Housing NSW to accommodate homeless people and those seriously at risk of homelessness in temporary accommodation.
I accept Mr Galasso SC's submission that as the proposal does not enliven sub-clause 50(2) of State Environmental Planning Policy (Affordable Rental Housing) there is no basis for considering the extent to which the development contributes to any cumulative loss of temporary housing in the LGA. The use of the existing motel by FACS has been short-term and the applicant is not obliged to provide accommodation for use by FACS.

Summary of findings

I prefer and accept Dr Stubbs' 1km locality as an immediate locality where the most intense adverse impacts related to alcohol related harm (increased crime, violence, amenity, health, welfare and road safety impacts) are likely to be experienced and I accept the agreement of the social planning experts that the Liverpool LGA is the secondary locality.
I accept the agreement of the social planning experts that the 1km locality is a very disadvantaged area on the basis of the SEIFA Disadvantage index for the locality which places it in the 13th percentile for Australia and that the literature has established a correlation between social disadvantage and increased vulnerability to alcohol related harm.
The existing hot spot for domestic violence which includes the site is a persuasive reason to be concerned about introducing a hotel onto the site where there is currently no liquor outlet (other than the liquor licence associated with the existing motel). I accept Dr Stubbs' evidence that it is reasonable to assume that the relocation of the hotel from the Liverpool CBD will transfer or generate increased assaults within the locality. The possible benefits of providing a venue for socialising on the site are significantly outweighed by the risk of adverse social impacts arising from introducing a hotel into a locality which is significantly and consistently more disadvantaged than the Greater Sydney average. I do not accept that the proposed mitigation measures are sufficiently resolved or likely to effectively mitigate the risk of adverse social impact in relation to alcohol related harm posed by the proposal on this socially disadvantaged and vulnerable community.
I not satisfied that the proposal to close the Graham Avenue exit and car parking spaces in the vicinity of the exit after 10pm will sufficiently ameliorate the significant amenity impacts that the proposal is likely to have on the residents of the aged care facility at 14 Graham Avenue, Casula, particularly those residents in units fronting the shared boundary with the site. I accept Dr Stubbs' evidence that the areas closest to the site are likely to experience the effects of the hotel most intensely and that those impacts are not confined to noise from patrons getting into vehicles and leaving the site.
The B6 Enterprise Corridor zone permits with consent a very broad range of uses and for this reason I consider that the permissibility of the proposal is a neutral factor in determining the development application.
I am satisfied that there is no basis for considering the extent to which the development contributes to any cumulative loss of temporary housing in the Liverpool LGA as the use of the existing motel by FACS has been short-term and the applicant is not obliged to provide accommodation for use by FACS.
I have given the objectors' evidence significant weight. The evidence provided on site at the commencement of the hearing expressed concerns for the impact the proposal would have on the socially disadvantaged and vulnerable community in the vicinity of the site and the amenity impacts caused by the proposal on neighbouring residents, the aged care facility and the nearby primary school. The concerns of the objectors were more than an expression of subjective fears and concerns (New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 [312]). The issues raised by the objectors are a relevant aspect of the public interest within the meaning of s 79C(1)(e) of the EPA Act (Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10 [193]). Importantly, the concerns of the objectors did not raise contentions beyond those already raised by the respondents.

Orders

The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 1060/2015 for the demolition of the existing structures and construction of single storey hotel and associated at grade car parking at 467 Hume Highway, Casula, is refused. 3. The exhibits, other than exhibits 1 and 101, are returned.

Susan O'Neill Commissioner of the Court

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: 14 December 2016

(2009) 171 LGERA 112

(2011) 184 LGERA 104

(2003) 127 LGERA 303

(2005) 144 LGERA 199

At a glance

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Judgment (22 paragraphs)

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Cases Cited (13)

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