1. The decision of the Responsible Authority is affirmed.
2. In permit application 5/2015/48, a permit is granted and directed to be issued for the land at 91 - 93 Melville Street, Numurkah, in accordance with the endorsed plans and on the conditions set out in the Notice of Decision to Grant a Permit issued on 30 June 2015.
3. The permit allows:
   • Use of the land for a packaged liquor licence.

Mr M Townsend of Counsel instructed by LGS Legal. He called the following expert witness: Mr D Soussan, town planner, who presented a statement of planning evidence and a separate cumulative impact assessment.

It is proposed to use a vacant shop for the sale of packaged liquor. The licence would operate within approximately 598 m² of building space, of which 350-400 m² is retail area. The balance would be for storage. The whole of the building is proposed to be included within the 'red line' licence area. Proposed hours of operation are 9am - 11pm Monday to Saturday; 10am to 11pm Sunday; and midday to 11pm ANZAC Day.

Application under Section 82 of the Planning and Environment Act 1987 - to review the decision to grant a permit.

Clause 52.27 to use the land for a packaged liquor licence.

Clauses 9, 10, 11, 17, 18, 21, 34.01, 52.27 and 65.

The subject land is located on the east side of Melville Street. It is a part of a large property of approximately 2,363 m² containing retail buildings and a private car park. The site for the proposed use is vacant. The land abuts a Foodworks store. A Council car park is to the rear, accessed from McCaskill Street. A "Duncan's" liquor drive-through shop is also accessed from McCaskill Street. The land is in the main commercial area of Numurkah. A water treatment facility and houses are on the east side of McCaskill Street.

Hunt Club Commercial Pty Ltd v Casey CC [2013] VCAT 726.

1. No. 91-93 Melville Street is in Numurkah's commercial precinct. In June 2015, the Moira Shire Council determined to issue a Notice of Decision to Grant a Permit allowing part of this property to be used for a packaged liquor licence. This followed the Council's receipt and consideration of some 450 objections to the permit application.
2. Mr Tuhan, one of the objectors, has asked the Tribunal to set aside the Council's decision. He submits that the location for the proposed liquor outlet is not appropriate, that there will be unreasonable amenity impacts on nearby residential properties and the community, and that the cumulative impact of another licensed premises will adversely affect the amenity of the area. He has other concerns about the proposal and the suitability of the premises, consistent with objections made to the Council. Mr Tuhan tendered copies of 20 objections and read two of them at the hearing.
3. The Council and permit applicant challenge all the grounds presented by Mr Tuhan. That includes through expert evidence called on behalf of the permit applicant. They contend the use is appropriate for a vacant shop in the town centre. The cumulative impact assessment concludes the proposal is satisfactory and there is no evidence to substantiate claims that the proposal would have an unreasonable impact on amenity.
4. The Tribunal is required to assess the merits of the permit application, having regard to the physical and planning contexts that apply. I must decide whether a permit should be granted. Based on the grounds presented by the parties, the issues to be assessed in determining whether to approve the use of the subject land for the sale of packaged liquor are:
   • Is the use acceptable given the site's location and strategic context?
   • What social and economic considerations are relevant?
   • Is the use acceptable in terms of impacts on the amenity of the area, including considering cumulative impacts taking into account existing licensed premises?
   • Is the use acceptable with respect to car parking and traffic impacts?
   • Are the premises suitable with respect to security and safety concerns?

IS THE PROPOSED LOCATION ACCEPTABLE IN PRINCIPLE?

1. Numurkah is one of four "principal townships"[2] within the Moira Shire. It has a population of more than 4,800 people.

1. The Council's economic development objectives include promoting the long term viability of the commercial and community centre. This includes consolidating the retail precinct and encouraging the redevelopment of vacant and underutilised commercial sites including in Numurkah.[3]
2. While there is residentially-zoned land to the east of McCaskill Street, a public car park and the road separate the rear of the subject land from the residential area. A drive-through bottle shop behind Foodworks, fronting McCaskill Street, operates adjacent to the Council car park. Its entry and exit are from McCaskill Street. A maternal and child care facility is proximate, to the south of the subject land, as is a senior citizens centre. A primary school is to the north-east of the subject land, at Quinn Street.
3. In land use terms, the subject land is appropriate for the proposed use:
   • The packaged liquor will be sold as a retail activity from a building that is vacant (formerly a hardware store). This accords with the purpose of the Commercial 1 Zone. This outcome is supported by local policy contained in the Scheme whereby the use of vacant sites within Numurkah's commercial precinct is encouraged. It will see the large building occupied rather than the 'dead space' ones sees today. It will enable purchases to be made locally.
   • It fronts the main commercial street. There is good pedestrian access as well as on-street and off-street public parking nearby.
   • It is sufficiently separated from land zoned for residential purposes taking into account that the alcohol is packaged and will not be consumed on the premises. There will be no patrons on the land akin to a hotel, club or some other forms of licensed premises. A local law operates to prevent alcohol consumption on (among others) Melville and McCaskill Streets between 10pm and 8am.[4]
   • The proximity to the child care facility and a "Vinnies" are noted. These premises are close to the Foodworks in-store liquor and Duncan's bottle shop. I was not provided with any information or evidence to suggest that the proximity of these uses to one another has caused specific issues that should have a bearing on my decision as to the suitability of the subject land for the sale of packaged liquor.
   • The use is proposed to operate until 11pm. The proposed hours of operation are compatible and acceptable for land zoned Commercial 1. Even though the proposed use may not always open until 11pm, the main commercial street is an appropriate location for a use operating into the evening/night time. Consistent with this, there are hotels and food stores/cafés that operate in the evening nearby. Several premises have licences to operate until 1am (even though that may not occur).

1. Mr Tuhan referred to "ethical and moral objections" as very relevant to the community's objections but fairly acknowledged that decision makers are constrained in their ability to take these matters into account. In addition:
   • Mr Tuhan highlighted the very large number of objections and questioned whether the Council took this into account in its decision.
   • Mr Tuhan tendered copies of objections received by the Council that oppose the permit application because (among a range of issues):
     • There is no need for another liquor outlet.
     • There will be impacts on other businesses selling liquor.
     • There will be easier and increased access to alcohol.
     • Alcohol can be abused, and alcohol consumption causes harm, family violence, and escalates existing social and related issues.
     • Currently over 50% of police callouts are linked to family violence and are principally caused by alcohol and, to some degree, ice.[5]
   • Mr Tuhan submitted that the social issues in Numurkah are understated in some of the material relied upon by the Council and permit applicant. Council's Community Development officer recommended refusal for reasons such as assaults and family violence.
2. I address these submissions as potential economic and social impacts.

1. Decision guidelines at Clause 65 of the Scheme require that matters set out in Section 60 of the Planning and Environment Act 1998 be considered before deciding on a permit application. That includes Section (1)(f) "any significant social effects and economic effects which the responsible authority considers the use or development may have". However, reference to "any" significant social and economic effects is not without limitations in planning permit decisions, as I identify next. Section 60(1B) says "For the purposes of subsection (1)(f), the responsible authority must (where appropriate) have regard to the number of objectors in considering whether the use or development may have a significant social effect."

1. The relevance of economic impacts in planning matters relates to the contended effects on the community, not individuals and their private financial interests. The effects must be demonstrable and 'significant' consistent with the wording in the Planning and Environment Act 1987.[6] Planning decisions are not about protecting private commercial interests.

1. Other licensed premises in Numurkah include three hotels (with a drive-through bottle shop at the Shamrock), the Duncan's drive-through bottle shop near to the Telegraph Hotel, packaged liquor from the IGA, and three cafés/restaurants with varying types of licences. There is also a licence associated with the RSL and, I was advised, the senior citizens centre. East of the Broken Creek are the Showgrounds (with a restricted club licence) and golf and bowls club (with a full club licence).
2. The licenced premises do not operate in the same way. For example, hotels operate differently to a packaged liquor outlet, such as at the IGA or Foodworks. The senior citizens and golf/bowls club are again different, linked with the nature of their regular activities and events/functions that may be held on their premises.
3. To the extent it is said there would be an economic impact on the Numurkah township/businesses, I was not provided with any information or evidence to support arguments that there would be a "significant" or demonstrated adverse impact to conclude this is a reason to refuse a permit.

1. The Council and permit applicant referred to the Tribunal's decision in Hunt Club[7] with respect to broader social concerns identified by Mr Tuhan and others who oppose the proposal. Deputy President Dwyer said:

...Although the significant social effects of a planning decision may conceivably be a relevant consideration in a given case, as a matter of general principle, a broad concern about the social harm caused by alcohol, the accessibility of alcohol in the community generally, or the potential for the abuse or misuse of alcohol, will rarely (if ever) be a relevant consideration in the exercise of discretion for a particular licensed premises under clause 52.27. These matters are more commonly relevant to the complementary regulatory framework under the Liquor Control Reform Act 1998, albeit that there is some overlap between the liquor licensing and town planning frameworks.

Town planning is not a panacea for all perceived social ills, nor is planning decision-making a forum for addressing all issues of social or community concern. At its heart, planning is about the use, development and protection of land. It has a spatial context that is primarily concerned with the fair, orderly, economic and sustainable use and development of land. Town planning does not involve itself in moral judgements nor, subject to this locational or spatial perspective, in the operation of a competitive market economy in which certain goods and services are lawfully made, sold or consumed. Whilst town planning seeks to secure a pleasant, efficient and safe working, living and recreational environment, it is not the role of town planning to address all issues of public health, nor to regulate the pricing or general availability of a product to manage the health and well being of a society.

It follows, for example, that it is not the role of a planning decision-maker to consider the broader impacts on society of obesity, when making a decision about the development of land for a particular fast food outlet....[Footnotes in the original have been excluded]

1. Taking into account this explanation of the scope of a proceeding such as the current case before me, I have not been presented with any material that persuades me the location proposed for the sale of packaged liquor will have demonstrable or significant social effects as relevant to Section 60(1)(f) of the Planning and Environment Act 1987.[8]
2. Mr Tuhan and Ms Tuhan Kitos are concerned that the crime statistics are not fully reported and population growth does not match projections relied upon by the permit applicant. Even allowing for those possibilities, the documentary material in the cumulative impact assessment is persuasive. Reported crime rates are lower than average in regional Victoria for many types of offences (including drugs, public order, crimes against property and people).
3. I appreciate that there are social issues in Numurkah that are of concern to the community. Even so, I cannot uphold grounds focused on harm and accessibility to alcohol as reasons to refuse the permit application before me. That is notwithstanding that I understand and appreciate the genuine concerns of opponents of this permit application about exacerbating excessive alcohol consumption in a modestly sized township.
4. I have considered the very large number of objections for a town of this size generated by this permit application. I appreciate that expression of opinion but there is no evidence to substantiate the concerns. That expression of opinion alone is not demonstrative of a significant social impact. [9]

1. Many Tribunal decisions have considered the relevance of need. Their primary finding is that a demonstrated need for a facility or use may be a relevant factor in a planning decision but lack of a need will rarely, if ever, be a ground for refusing to grant a permit. This is consistent with long standing principles, as set out in Shell[10]:

When the word "need" is used in a town planning sense, it must mean community need. It is not necessary to show an element of urgent community necessity for a facility. Rather need connotes the idea that the well being of a community or some part of it can be better and more conveniently served by the provision of a particular facility. ......

Need is a relevant consideration, but not an essential requirement......If an applicant can show a need for a proposed use, then this factor may outweigh other considerations adverse to the use. However, a lack of need will rarely, if ever, be a ground for refusing to grant a permit.

1. Therefore, even though there is no express need for another licenced liquor outlet, that is also not an appropriate reason to refuse a permit.

WOULD THERE BE UNACCEPTABLE AMENITY IMPACTS, INCLUDING CUMULATIVE IMPACTS, FROM THE NUMBER OF LICENSED PREMISES?

1. This question is central to the case advanced by Mr Tuhan. I address it by identifying the relevant Scheme provisions, and the associated Practice Note 61 Licensed premises: Assessing cumulative impact [PN61]. I then consider the material before me having regard to the decision guidelines in Clause 52.27 and guidance by the Practice Note.

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.

1. The decision guidelines are:
   • The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
   • The impact of the sale or consumption of liquor permitted by the liquor licence on the amenity of the surrounding area.
   • The impact of the hours of operation on the amenity of the surrounding area.
   • The impact of the number of patrons on the amenity of the surrounding area.
   • The cumulative impact of any existing licensed premises and the proposed licensed premises on the amenity of the surrounding area.
2. PN61 explains that cumulative impact refers to both positive and negative impacts that can result from clustering a particular land use or type of land use. [11] It continues[12]:

Cumulative impact is a product of the number and type of venues present, the way they are managed, and the capacity of the local area to accommodate those venues.

1. The guidelines "should be used" for all applications for a new or expanded licensed premises that:
   1. will be licensed and open after 11pm; and
   2. is in an area where there is a cluster of licensed premises. [Tribunal emphasis added]

1. The parties agree that the use will not operate after 11pm but is in an area where there is a cluster[13] of licensed premises.
2. While PN61 does not mandate a cumulative impact assessment, or indicate that one "should" be undertaken in this case, the parties agree such an assessment is appropriate to identify and address the extent to which a proposal for a new or modified licensed premises is likely to contribute to a cumulative impact within the area.
3. PN61 identifies the following matters as ones that should be considered when assessing the cumulative impact of licensed premises:
   1. Planning policy context
   2. Surrounding land use mix and amenity
   3. The mix of licensed premises
   4. Transport and dispersal
   5. Impact mitigation.
4. It then sets out an explanation of each element and questions to guide the assessment of the planning application. I have considered this material fully but do not recite it here.

1. Grounds in the Application for Review filed with the Tribunal include that the Council failed to have proper regard to Clause 52.27 and PN61 with respect to the impact on the amenity of the area, the impact of the proposed hours of operation on the amenity of the area, and cumulative impacts. In addition, Mr Tuhan submits[14]:
   • For a town with a small population of around 4,860 people, the number of existing licensed premises is at saturation point.
   • The proposed outlet adjoins or is opposite multiple existing licensed premises and the addition of another outlet adds to a cluster and limits retail diversity.
   • The subject land is opposite a "Vinnies" store.
   • Former police officers and some serving officers oppose the issue of a licence for another outlet. Greater pressure will be placed on an understaffed police station.

1. A cumulative impact assessment accompanied the permit application. Mr Soussan's evidence is a different assessment, by a different person. The conclusions are, however, similar. The Council and applicant relied on both assessments in support of their submissions that the proposal will not have an unreasonable impact on the amenity of the surrounding area and is unlikely to generate or increase negative cumulative impacts.
2. Mr Soussan's evidence concludes (among other findings) that:
   • The proposal will not result in increased occurrence of nuisance, noise or anti-social behaviour.
   • The proposal will not contribute to safety issues within the township or immediate area.
   • The proposal will not result in increased violence or crime.
   • The proposal will provide some economic benefits, including increasing consumer choice and enhancing the role and vitality of the town.
3. The evidence contains detailed information under each of the five elements cited at paragraph 30 above.

1. The subject land abuts a Foodworks with in-store liquor sales. The Telegraph Hotel is next to the north. A detached Duncan's bottle shop is accessed from McCaskill Street at the rear. The proposal will create a group of three premises with licences on the east side of Melville Street. It would be opposite two licensed take-away/café/restaurants. There is, therefore, no doubt that it would add to a cluster.
2. However, the subject land is separated from sensitive uses and is not a venue where people will gather for extended time periods and/or queue. There is unlikely to be a surge of people associated with the proposed use. Moreover, the proposal is different to several of the nearby licensed premises. Foodworks and Duncan's involve liquor that is purchased on-site and consumed elsewhere. The hotel offers liquor consumed on-site. The cafés/restaurants involve liquor with meals. Closing times vary between the licensed premises.
3. The proposal will not add to patrons consuming alcohol on-premises because there is no capacity for alcohol to be consumed on-site. Into the evening/overnight, local laws prevent alcohol consumption in public places. Mr Soussan's evidence was that this law is primarily enforced by the Victoria Police (who are likely to be most accessible) and Council's local laws officers.
4. There is no evidence to suggest an existing problem will be exacerbated or add to existing demonstrated impacts associated with licensed premises. There are no recorded enforcement proceedings relating to existing licensed premises.

1. Several breaches of the local law were cited in the evidence. However, it is also relevant that there has been no objection to the permit application by Victoria Police (either through the planning permit process or with respect to the application for a liquor licence through the Victorian Commission for Gambling and Liquor Regulation).
2. I appreciate that local policing resources are felt by objectors to be limited. I have considered the interview record with the Acting Sergeant, who is the officer in charge at Numurkah Police Station, presented in Mr Soussan's evidence. It is relevant that the officer raised no specific concern about the use of the subject land for packaged liquor sales.
3. Additional traffic and/or pedestrian movement are unlikely to cause unreasonable amenity impacts.
4. For these reasons, and others given earlier, I find the proposal meets the objectives of Clause 52.27. There would not be unacceptable amenity impacts, including cumulative impacts from the number of licensed premises. The subject land is an appropriate location for the proposed use.

1. Mr Tuhan referred to the potential for traffic congestion near the front entrance of the premises in Melville Street. He described the way in which parking is heavily used around the subject site during the daytime.
2. The subject land was formerly used as a hardware store. While I have no data as to the number of cars generated by that use, either in traffic or parking terms, it could have been expected to result in a level of parking demand and traffic generation.
3. As the subject land is in the centre of town, in its commercial heart, it would not be reasonable to refuse a permit because there would be cars attending the subject land. I observed ample public parking in the environs. There is no material before me to show that parking demands cannot be met during the day or evening.

ARE THERE SECURITY AND RELATED ISSUES TO BE ADDRESSED?

1. Mr Tuhan identified potential safety and security issues with respect to the rear of the premises. Mr Soussan responded to these matters explaining that the gates at the rear of the premises are locked after the Foodworks supermarket closes. This is earlier than the hours of operation proposed in this permit application, although it is not likely that the proposed use would operate to 11pm every day.
2. I accept Mr Soussan's evidence that this is a matter to be managed between neighbouring businesses. Any need for further security, as suggested by Mr Tuhan, will be a matter for the operators.

1. Having regard to the location and amount of public off-street and on-street parking in the area, I do not consider that there would be consequential impacts if parking to the rear of the subject land is not available for customers after Foodworks closes.

1. Mr Tuhan explained that public toilet facilities are not available after 5pm.
2. I do not consider that gives rise to specific issues relating to the proposed use. The use would operate essentially as a bottle shop where products purchased on-site would be consumed elsewhere such as at a private home. Other local businesses may purchase liquor to serve in their own premises.
3. There is no specific need for public toilets to be available in association with the proposed use, any more so than another retail premises that might operate in town.

1. I appreciate that the Applicant and others in Numurkah are concerned about the impacts of alcohol consumption on families, property and the community. Having regard to the parameters within which a decision must be made in this proceeding, I find the subject land is an appropriate location for the sale of packaged liquor. I have considered the impact of the licensed premises on the amenity of the surrounding area and found the proposal should be approved.
2. For the above reasons, I will affirm the Responsible Authority's decision and direct that a permit be issued on the conditions set out in the Notice of Decision.

[1] I have considered the submissions of all parties that appeared, all written and oral evidence, and all exhibits tendered. I do not recite or refer to all of the contents of those documents in these reasons.

[4] This was introduced in 2013, to all of the principal townships. I could not be provided with any information to explain whether it was required to address a specific issue in Numurkah.

[5] Packaged Liquor as a Drive of Crime, Assistant Commissioner Luke Cornelious APM, February 2015.

[6] Hoskin v Greater Bendigo CC and Anor [2015] VCAT 1124.

[7] Hunt Club Commercial Pty Ltd v Casey CC [2013] VCAT 726, extracts from paragraphs 14-16.

[8] Hoskin v Greater Bendigo CC and Anor [2015] VCAT 1124.

[9] Hoskin v Greater Bendigo CC and Anor [2015] VCAT 1124.

[10] Shell Company of Australia Ltd and Others v City of Frankston and Another [P82/1527 8APA 126].

1. [13] "Cluster" is explained in PN61. It is not contentious that a cluster exists in this case. PN61 states that as a general guide, a cluster would occur where there are: three or more licensed premises (including the proposed premises) within a radius of 100 metres from the subject land; or 15 or more licensed premises (including the proposed premises) within a radius of 500 metres from the subject land. The area to be included in a cumulative impact assessment should be all land within a 500 metre radius of the proposed venue, unless there is another logical boundary that takes into account relevant features - these might include a major impassable physical barrier (for example, a freeway or watercourse) or another nearby cluster of licensed premises. In this case, the Broken River could be said to be a barrier, although it can be crossed.

[14] Additional matters to those referred to earlier.