WWL Consulting Pty Ltd v Marrickville Council

The site and its locality 2The site is located on the north-western side of Illawarra Road between Marrickville Road and Tuohy Lane. It has a 21.6 m frontage to Illawarra Road and to Touhy Lane in the rear, a depth of 60 m and a site area of 942sq m. A pedestrian pathway adjoins the northern boundary of the site and connects Touhy Lane to Illawarra Road. 3The site is developed with a two storey commercial building with rooftop parking. The ground floor of the building is currently used as a shop and restaurant and the first floor is commercial. A ramp off Touhy Lane provides access to the rooftop car park. 4The site is located within the Marrickville Town Centre, which extends along Illawarra Road and Marrickville Road. A council owned car park is located to the south of the site on the corner of Illawarra Road and Calvert Street. Development to the north, south and east of the site is mainly two storey buildings containing a mix of commercial, retail and residential uses. To the west, on the opposite side of Tuohy Lane, is residential development, including two residential flat buildings that have frontages to Touhy Lane. 5Marrickville Railway Station is approximately 375 m south west of the site. The Royal Exchange Hotel is approximately 250 m walking distance to the north east of the site and the Marrickville Tavern is about 125 m walking distance to the north west of the site. Both these hotels are on Marrickville Road.

Background and the proposal 6The development application seeks consent to: i.demolish part of and carry out alterations to the existing building; ii.use the building as a hotel with hours of operation from 8am to 2am the following day Mondays to Saturdays and 8am to 12 midnight Sundays; iii.erect signage. 7The Statement of Environmental Effects (SEE) provides details of the components of the hotel including:

• Ground floor - kitchen, public bars, bistro/cafe with outdoor terrace, gaming room with outdoor smoking terrace, manager's office, storage areas and toilets.
• First floor - lounge with bar and outdoor balcony, back of house storage and toilets.
• Roof level - parking for 24 cars. 8The facade of the existing building will be modernised and opened up. A low sandstone wall containing a planter box is proposed along the street frontage of the site and would be used to enclose the outdoor terraces. A new lift is proposed to be installed adjacent to the existing stairwell, which would provide access to all levels of the hotel including the rooftop car park. Servicing is to be from a loading dock at the rear of the building. 9The hotel will operate in accordance with a Plan of Management (PoM) prepared by Compliance Wise dated August 2010. 10The Hoteliers Licence for the new hotel will be transferred from the Henson Park Hotel (91 Illawarra Road Marrickville). 11Two previous applications to use and fit out part of the ground floor of the building as a hotel have been rejected by the Court ( Waugh Hotel Management v Marrickville Council [2007] 156 LGERA 414 and JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 1216). Both those applications provided six roof top parking space for use by staff only. These decisions are discussed later in this judgment.

Planning controls 12The objects of the EPA Act relevantly include s5(a)(i) and (ii) which encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural l a nd, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, 13Section 79C of the EPA Act provides: (1) Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 14The site is zoned General Business 3(A) under Marrickville Local Environmental Plan 2001 (MLEP). Clause 13(4) specifies that development which is permissible only with development consent in this zone is development not included in subcl (3) or (5). Development for the purpose of 'hotel' is not included in subcl (3) or (5) and therefore the proposal is permissible with consent. 15Schedule 1 of MLEP defines 'hotel' as follows: Hotel means the premises to which a hoteliers licence granted under the Liquor Act 1982 relates. 16The general objectives of MLEP include: (c) to enhance the quality of life and promote the well-being of the local community, and (h) to promote an accessible and safe living environment, and (i) to maximise business and employment opportunities, particularly in Marrickville's existing commercial centres. 17The relevant objectives of the General Business Zone are: (a) to identify areas suitable for business and commercial activities, and (b) to permit a variety of ancillary and complementary land uses, 18Land to the west of the site on the opposite side of Touhy Lane is zoned Residential B under MLEP. 19MLEP includes provisions for Floor space ratio (cl 33), Advertising and advertising structures (cl 41), Heritage (cl 47 - 55), Community Safety (cl 62) and Accessibility (cl 64). 20Draft Marrickville Local Environmental Plan 2010 (Draft LEP) has been exhibited and is therefore a relevant matter for consideration under s79C(1)(a)(ii) of the EPA Act. 21Marrickville Development Control Plan 28 - Urban Design Guidelines for Business Centres (DCP 28), Marrickville Development Control Plan 19 - Parking Strategy (DCP 19), Marrickville Development Control Plan 31 - Equity of Access and Mobility (DCP 31) Marrickville Development Control Plan 38 - Community Safety (DCP 38) apply to the development. 22Council has adopted a Hotel Trading Hours Policy which provides that any approval granted for extended hotel trading hours would be limited to a trial period. 23Council did not press any issues of compliance with MLEP, Draft LEP or the relevant DCPs. Mr Wright, for the council, submits that the proposal fails to satisfy the objects in s5(a)(i) and (ii) and should be refused under s79C(1)(b) and (c). 24The parties agreed that the social impacts in the locality likely to result from the proposed hotel are a relevant matter for consideration under s79C(1)(b). However, as found by Jagot J in Waugh 2007 and reaffirmed by the Court of Appeal in Waugh Hotel Management v Marrickville Council [2009] 171 LGERA 112 , this does not include an assessment of the social impacts of gaming which are excluded from consideration through the operation of s209 of the Gaming Machines Act 2001 (Gaming Act) which provides: Relationship with Environmental Planning and Assessment Act 1979 (1) An environmental planning instrument (whether made before or after the commencement of this section) under the Environmental Planning and Assessment Act 1979 cannot prohibit or require development consent for, or otherwise regulate or restrict, the installation, keeping or operation of approved gaming machines in hotels or on the premises of registered clubs or any other premises. (2) If an environmental planning instrument contains any provision in contravention of subsection (1), the provision is taken to have no effect. (3) A consent authority (within the meaning of the Environmental Planning and Assessment Act 1979 ) cannot: (a) as a condition of any development consent under that Act, prohibit or otherwise regulate or restrict the installation, keeping or operation of approved gaming machines in a hotel or on the premises of a registered club or any other premises, or (b) refuse to grant any such development consent to a hotel or registered club for any reason that relates to the installation, keeping or operation of approved gaming machines in a hotel or on the premises of a registered club. (4) The installation, keeping or operation of an approved gaming machine in a hotel or on the premises of a registered club is not an activity for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 . (5) Any approval or authorisation under this Act to keep an approved gaming machine in a hote l or on the premises of a registered club is not an approval for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 . 25Jagot in Waugh 2007 at [91] states: ..... There are strong indicators in the statutory scheme that concerns about the density of gaming machines and their contribution to problem gambling within a particular locality are within the statutory proscription in s 209(3)(a) and (b) and thus cannot found either the imposition of a condition of consent or refusal of consent under the EPA Act. In particular: ....... (8) Problem gambling, as the evidence discloses, has serious direct and indirect social consequences. But problem gambling, and the risk of creating the circumstances in which problem gambling is likely to arise, is inescapably a matter relating to the operation of gaming machines. Section 209(3)(b) operates so that problem gambling cannot constitute a reason for refusal of the development application. In the face of that statutory proscription the potential contribution of the development to problem gambling cannot be factored into the assessment of the development application. 26The assessment of the social impacts of the proposal therefore excludes impacts of gambling and focuses on alcohol related harm. The extent of this impact is the principal dispute between the parties.

Contentions 27The Statement of Facts and Contentions filed by Council on 21 December 2010 raised five contentions. Contentions 2 (parking), contention 3 (disabled parking) and contention 4 (servicing) were resolved through the provision of further information and were not pressed by council. 28The remaining contentions in dispute are:

1. The proposed development will have an unacceptable social impact within its locality. Particulars: a. The proposed development would result in another alcohol facility in the Marrickville Town Centre. b. The Town Centre and its surrounds are subject to a high level of disadvantage associated with vulnerability to alcohol related harm which is likely to be exacerbated by the proposal. c. The analysis of social impact provided by the Applicant fails to justify the likely alcohol related social impacts posed by the proposed development.
2. Issues raised by objectors insofar as these issues coincide with the contentions raised by Council Particulars: a. The issues are contained at Paragraph 5(b) of the Statement of Facts. 29Paragraph 5(b) of the Statement of Facts and Contentions states:
   • The application was notified by way of a newspaper advertisement, on site notice and letter sent to the adjoining properties on 14 October 2010. The notification period ended on 11 November 2010. A total of 32 individual submissions and 2 petitions containing a total of 591 signatures were received during the notification period. Concerns raised related to the following issues:
   • Social impacts;
   • The Social Impact Assessment does not address the social impact on local residents as a result of the closure of the existing hotel premises and makes a number of incorrect and unfounded claims;
   • Excessive hours of operation;
   • Traffic impacts;
   • Negative amenity impacts on residents backing into Touhy Lane by way of patron noise, vehicle noise and delivery vehicles servicing site;
   • Entertainment or recreation activities are not proposed for patrons and local residents;
   • Insufficient car parking spaces;
   • Security of local residents;
   • Poor illumination of side and rear of premises which would create increased crime risk;
   • The proposal has a gambling and drinking shopfront;
   • Drop off and pick up area is not provided;
   • There is a child care centre located in close proximity of the site;
   • There are already a sufficient number of hotels in the area;
   • Concerns raised over the future use and preservation of the existing hotel premises at 91 Illawarra Road which is an important part of the history and culture of Marrickville and should be heritage listed;
   • Outdoor smoking areas would have negative amenity impacts on surrounding residential properties;
   • Use of the proposed first floor balcony by patrons during the proposed late trading hours would have acoustic impacts on surrounding residential properties. 30These issues were reiterated by the evidence that the objectors provided on site at the commencement of the hearing. However, the only issue that coincides with the contentions raised by council relates to the social impacts of the proposal. Issues in relation to matters such as traffic, parking, noise, hours of operation and security were not pressed by council and there is no expert evidence to suggest that council's conclusions are incorrect. 31The objector's concerns about the closure of the Henson Hotel were also not raised by council and were specifically rejected by Jagot J in Waugh 2007 as being a relevant consideration where at [92] and [93] Her Honour states: 92 The remaining question that should be dealt with is whether evidence about the effects of transfer of the liquor licence from the Henson Park Hotel to the site is a matter "of relevance to the development the subject of the development application" within the meaning of s 79C(1) of the EPA Act. The Council submitted that it was on the facts of this case. The development involves the use of the site for a hotel. The LEP defines hotel as premises to which a hotelier's licence under the Liquor Act relates. It follows that the existence of a licence is fundamental to the proposed use. The applicant proposed to obtain a licence for the site by transfer from the Henson Park Hotel. Without a licence the Henson Park Hotel could no longer be used as a hotel. Accordingly, the cessation of use of the Henson Park Hotel and the associated impacts on the community were matters of relevance to the development the subject of the development application within the meaning of s 79C(1) of the EPA Act. 93 The weakness in this reasoning process is that the applicant's intention to obtain a licence for the site by transfer from other premises is not a part of the development the subject of the development application. The use "hotel" is concerned with the objective character of the premises (is there or is there not a hotelier's licence relating to those premises), not the source of the hotelier's licence (original grant or transfer). It would be different if, for example, an application were lodged to change the use of the Henson Park Hotel from hotel to some other use. In that circumstance the closure of the Henson Park Hotel would be part of the development the subject of the development application. In this case, however, the connection between the development and the closure of the Henson Park Hotel is a result not of the development the subject of the development application but of the applicant's present intentions about obtaining a hotelier's licence with respect to the site. For these reasons I do not accept that the closure or likely closure of the Henson Park Hotel and its consequences is a matter relevant to the "development the subject of the development application". I do not consider that weight should be given to this factor in the assessment of the development application. 32For the reasons, which I have discussed earlier, the objector's concerns about gambling are also not a relevant consideration. By way of comment, I note that the gambling room has bi-fold doors, which open directly onto the ground level terrace fronting the street. This raises urban design issues in relation to activities at street level. However, due to the constraints imposed by s209 of the Gaming Act and as the parties did not raise it, I have not considered this matter further.

The evidence 33Dr J Stubbs, for the council, and Mr J Lette, for the applicant, provided evidence on the social impacts of the proposal. Both experts supported their opinions with reference to extensive literature and reports. I have generally not stated the individual references but accepted that the opinions of the experts are based on underlying research.

Previous appeals 34Before dealing with the particular contention in dispute between the parties, I should briefly address the previous decisions of the Court on the earlier applications. Mr Wright submits that: the critical importance of the issue of social impacts from 'alcohol related harm' is readily understood from the past decisions of this Court in relation to proposals for a hotel for the same site by parties related to the present applicant. 35The previous decisions outline the framework for considering social impacts relating to alcohol related harm. However, despite similarities in the previous proposals and their issues, the current application is different and must be considered on its merits and I have found that the decisions are distinguishable from the current appeal for the following reasons: 36In Waugh Hotel Management v Marrickville Council [2007] 156 LGERA 414 Jagot J refused the application principally on the grounds of the provision of parking [99], which is no longer pressed by council or supported by expert evidence in this case. A further reason was that the development 'creates a real risk of increased activity, anti social behaviours and disturbance' in Touhy Lane [101], which is also not pressed by council or supported by expert evidence in this case. The third reason refers to risks of alcohol related harm from increasing the density of licensed premises in this highly disadvantaged community where at [102] and [103], Her Honour found: 102 The Council helpfully provided a version of Dr Stubbs' report highlighting the different subject matters (gaming, alcohol and residents' submissions). Dr Stubbs made a powerful case that a concentration of licensed premises in this particularly disadvantaged location involves a risk of disproportionate alcohol related harm. Ms Saltman's approach to this evidence was not helpful because her fundamental premise was that all such harm was irrelevant to the assessment under s 79C(1) of the EPA Act. Ms Saltman provided some opinions about alcohol related harm (despite her principal view of it being irrelevant) but these opinions were in the form of generalised assertions seeking to rebut Dr Stubbs' reasoned conclusions. The opinions of Ms Saltman were not based on independent research and were not directed to Dr Stubbs' detailed analysis of the characteristics of the particular community in the immediate vicinity of the site and its particular vulnerability to alcohol related harm. Dr Stubbs presented a wealth of information specifically addressing the risk of alcohol related harm from increasing the density of licensed premises within vulnerable communities. She presented a comprehensive and compelling assessment of the high level of disadvantage and associated vulnerability of the community in the immediate vicinity of the site to alcohol related harm and the serious adverse community consequences with which it is associated. 103 Separate from Dr Stubbs' analysis, there is a real issue about adopting an approach to development applications for land uses such as hotels that could lead to communities being denied access to facilities likely to function for the majority of people as a recreational resource. Ms Saltman made this important point in the conclusion of her report. However, consistent with the report overall this important issue was not adequately explored by Ms Saltman and her evidence did not provide any meaningful basis upon which this issue could be factored into the assessment under s 79C(1)(b) of the EPA Act. In consequence, the debate in this case about the risk of alcohol related harm by increasing the density of licensed premises in the centre of a particularly disadvantaged community weighed overwhelmingly in favour of the detailed analysis Dr Stubbs presented. Accordingly, on the rather one sided evidence available in this case the risks of alcohol related harm from increasing the density of licensed premises in this highly disadvantaged community would be a further independent ground for refusal of this application. 37The circumstances in this case are different as there is no dispute that the social impact of hotels, particularly alcohol related harm, is a relevant consideration under s 79C(1) of the EPA Act. Mr Lette undertook independent research and, for the reasons, which I will discuss, provided an effective contradictor to Dr Stubbs' evidence. The conclusions of Dr Stubbs were also based on different information, including the 2001 Socio Economic Indexes for Areas (SEIFA) data and a different density of licensed premises which included the Marrickville RSL and the Anzac Club that are now closed. 38In Waugh Hotel Management v Marrickville Council [2009] 171 LGERA 112 the Court of Appeal at [11] and [12] states that there is a single ground of appeal, namely: 11. The primary judge erred in that her Honour refused to grant the development consent for the hotel for reasons that relate to the installation, keeping or operation of approved gaming machines in a hotel, contrary to s 209(3)(b) of the Gaming Machines Act 2001 (NSW). 12 The statutory provision invoked by that ground of appeal is: "A consent authority (within the meaning of the Environmental Planning and Assessment Act 1979) cannot: ... (b) refuse to grant any such development consent to a hotel or registered club for any reason that relates to the installation, keeping or operation of approved gaming machines in a hotel or on premises of a registered club". 39There is no dispute between the parties in the current proceedings with respect to the correct operation of s 209(3)(b) of the Gaming Machines Act. 40The reasons for refusal in JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 1216 by Murrell C are summarised at [88] as: 88 I agree with the submission made on behalf of the applicant that the role of the court is not to prescribe a certain number of establishments of the same nature within close proximity or indeed with in a town centre. However, the Court must assess the suitability of the site for the development in accordance with section 79C (1)(c) of the Act. In my assessment the site is not suitable for the proposed hotel because of the inability to provide any patron parking on site and the proximity of the premises to a rate of crime density as shown in Figure 5 for non-domestic alcohol related assaults and within in a socially disadvantaged catchment area as shown by the 2001 and 2006 Census Data and Figure 4. 41As stated above, parking is not at issue in these proceedings. The crime data referred to Murrell C is the 2006 Bureau of Crime Statistics and Research (BOCSAR) 'hotspots', which are different to the information relied upon by Dr Stubbs and Mr Lette in these proceedings. The evidence also addressed the uncertainty of the then recent closure of the Marrickville RSL Club and the Anzac Club and their liquor licenses. This issue was not part of the proceedings before me. The SEIFA data is the same but, for the reasons discussed later, I have reached different conclusions to those of Murrell C based on the evidence of the experts before me. 42Pain J in JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 156 dismissed an appeal against the decision of Murrell C under s56A of the Land and Environment Court Act 1979, but this decision provides little guidance in dealing with the merit issues in these proceedings. The current appeal 43The only contention in the appeal before me is whether the development will have an unacceptable social impact within its locality as set out in the Particulars. There is no dispute that the proposal will result in another alcohol facility in the Marrickville Town Centre and of itself this would not be a reason to refuse the application but it is relevant as part of the overall consideration of social impacts (Particular 1(a)). There is sufficient information before the Court to analysis the social impacts of the proposal and of itself this would not warrant refusal of the application (Particular 1(c)). The specific social impact in dispute is whether the 'town centre and its surrounds are subject to a high level of disadvantage associated with vulnerability to alcohol related harm which is likely to be exacerbated by the proposed development' (Particular 1(b)). What is the locality of the town centre and its surrounds? 44The experts agree that the 'town centre' is that defined in DCP 28 but disagree on what is the locality of the 'town centre and its surrounds' referred to in Particular 1(b) of the Contention. Dr Stubbs considers the locality should be defined in terms of the likely impacts of the proposed use. The area where the most direct alcohol related amenity and crime impacts are likely to occur is the 'primary locality', which is within a 300m radius of the site. The 'secondary locality' is the area within 1km radius of the site, which would also experience impacts but to a lesser extent. Mr Lette considered that the term 'town centre and its surrounds' relates to the 'primary locality' and that this area is predominantly a commercial precinct with limited residential uses. However, he accepts that impacts related to amenity and other related harm should also be assessed in the 'secondary locality'. Is there a high level of disadvantage in the town centre and its surrounds? Measure of disadvantage 45A key disagreement between the experts is the extent of disadvantage within the primary and secondary localities and the appropriate SEIFA index to apply. 46Dr Stubbs and Mr Lette employed different SEIFA indexes and therefore drew different conclusions on disadvantage in the locality. Dr Stubbs used the SEIFA Index of Relative Socio-economic Disadvantage (SEIFA Disadvantage) which she stated is: The best and most widely accepted measure for area disadvantage. It is a general index derived from 17 attributes such as low income, low educational attainment, high unemployment and jobs in low skilled occupations. 47Dr Stubbs also examined specific indicators of disadvantage which she considered to be associated with vulnerability to alcohol related harm such as median income, low income, unemployment, indigenous, non English speaking background, low education, number of males and social housing. She concludes that these measures are: generally not favourable in the locality, and there are pockets of significant disadvantage on the main measure (SEIFA Disadvantage) and most proxy indicators . 48Mr Lette relied on the SEIFA Index of Relative Socio-economic Advantage and Disadvantage (SEIFA Advantage and Disadvantage) and concluded that on this index and other indicators, the locality is neither advantaged nor disadvantaged, with a mix of residents. He accepts that there will be some areas and residents who are disadvantaged and amongst these there will be some who have a 'heightened propensity for social harm from alcohol'. However, he considers that 'disadvantaged or vulnerable groups do not comprise a significant proportion of the population'. Degree of gentrification 49The experts agreed that gentrification has been occurring between 2001 and 2006 and an accurate understanding of the extent of further gentrification will not be available until the 2011 Census. Dr Stubbs states that gentrification is not a uniform or homogenous process that results in the even displacement of the disadvantaged from the relevant locality. On the contrary, it results in a highly polarised society where pockets of significant disadvantage continue to exist. She does not accept that the locality has gentrified but concedes that the level of disadvantaged persons is either static or decreasing. Mr Lette considered that the trends that were evident in the 2006 Census will have continued and that less advantaged people are being displaced by gentrification with an associated reduction in the vulnerability of people to alcohol related harm. Is the level of disadvantage associated with a vulnerability to alcohol related harm? Alcohol related harm 50The experts agree that the types of alcohol related harm relevant to the assessment of social impacts in the locality are: (i) Assault (non domestic violence) and assault (Domestic Violence); (ii) Anti social behaviour such as offensive conduct/language, rowdy behaviour, graffiti and malicious damage; (iii) Amenity impacts that arise from incidents of anti social behaviour. 51Dr Stubbs also considers that social impacts should include health impacts related to alcohol. Relationship of disadvantage to alcohol related harm 52The experts agree that there is a correlation generally between social disadvantage and increased vulnerability to alcohol related harm. Dr Stubbs concludes that the locality contains 'significant pockets of disadvantage' based on SEIFA Disadvantage and also displays vulnerability to alcohol related harm on relevant indicators and compares unfavourably to the Local Government Area (LGA) and/or the Sydney Statistical District (SSD). 53Mr Lette states that the relationship between disadvantage and alcohol related harm is complex. He considers that SEIFA is a useful starting point and is a widely used measure for disadvantage but that further research is needed to understand the nature of disadvantage and how that relates to the potential risk of alcohol related harm. He noted: Based on an analysis of SEIFA indices and a range of further demographic information, that there is a component of the population of the surrounds of the site that has decreased access to economic resources rather than being simply disadvantaged per se .....there is a higher than average presence of three groups, being elderly, creative/cultural workers and higher education students. Whilst these three groups have generally lower incomes, they are not groups which are considered likely to be at risk from the proposed hotel. 54Further, Mr Lette questioned the specific indicators of alcohol related harm referred to by Dr Stubbs on the basis that indicators such as unemployment, income and non English speaking background could not automatically be linked to vulnerability to alcohol related harm. In particular, a key indicator of vulnerability to alcohol related harm identified by Dr Stubbs is areas with a high percentage of males. However, she notes that the percentage of males in the locality is 'equivalent to the LGA and SSD'. Existing alcohol related harm 55The experts disagreed on the level of existing alcohol related harm within the primary and secondary localities and whether it is disproportionately high. 56The experts agree that in 2009:

• at the LGA level rates for assault (both domestic related and non domestic related) and offensive behaviour are lower than for NSW and malicious damage is slightly higher than for NSW.
• for the 2204 postcode (Marrickville) rates for assault (both domestic related and non domestic related) and offensive behaviour are lower than for NSW and the LGA and malicious damage is lower than for NSW. 57The site is within crime 'hotspots' identified by BOCSAR which have the following criminal incident density levels for 2009:
• Within the top 10% of areas in NSW for assault (domestic);
• Within the top 10% of areas in NSW for assault (non domestic);
• Within the top 30% of areas in NSW for alcohol related assault;
• Within the top 10% of areas in NSW for malicious damage;
• Within the top 10% of areas in NSW for graffiti. 58Dr Stubbs considered the most relevant data is that related to the location of the hotel within BOCSAR 'hotspots' with 'exceptionally high levels of domestic and non domestic related assault, malicious damage and graffiti and high levels of alcohol related assault'. She concluded that these 'provide a clear indication that this area is one with a high level of existing alcohol related crime.' 59Dr Stubbs reviewed the NSW Police Computerised Operational Policing System (COPS) linked to the intersection of Marrickville and Illawarra Road, the Marrickville Tavern or the Royal Exchange Hotel. The 'hotspot' maps are based on COPS reports. Dr Stubbs comments that alcohol related assault appears to be underreported. 60Mr Lette considered that the 'hotspot' data does not identify the suburb of Marrickville or the town centre as areas of high alcohol related crime in comparison to the LGA and NSW. Further he notes that dense inner city areas are more likely to be in the BOCSAR top deciles for incidents of crime but that the rate of crime per population residing or visiting the location would be lower. 61Dr Stubbs also relied on submissions in response to the development application and a survey she undertook in 2011 within the primary locality as indicative of amenity impacts resulting from the existing hotels. Mr Lette considers the survey is neither representative nor reliable as there were only a total of 88 respondents who live within three blocks in close proximity to the proposal and the existing hotels. Density and clustering of existing licensed premises 62The experts agree that the existing density of liquor licences is relatively low in the LGA and the secondary locality. The density of hotel licenses at the LGA level is higher when compared to NSW and lower when the secondary locality is compared to NSW and the LGA. 63Dr Stubbs considers that despite the relatively low density of liquor licences in the secondary locality there is already 'significant clustering' of liquor licences in the primary locality (2 hotels, 2 bottle shops, and two restaurant licences that may operate as de facto night clubs). Clustering is associated with increased risk of alcohol related harm and an additional late trading hotel, in close proximity to two existing late trading hotels, will add to the cluster and increase density and inevitably further increase alcohol related harm, in particular assaults. Threshold effects or the precise density that alcohol related harm would be triggered is not clear but Dr Stubbs considers the existing level of harm indicates that any threshold has already been exceeded. 64Mr Lette did not agree that there is clustering of licensed premises or that any increase in density will 'immediately and unavoidably result in social harm' but is dependent upon a range of factors including the management of the hotel. In his opinion, the density of licensed premises in the locality is low and it is appropriate that they be clustered in a town centre given that it serves the wider area. Further, he considers that clustering refers to significant numbers of licensed premises in a small area (about 15 premises). In his opinion, there are particular thresholds above which alcohol problems in a particular area will escalate. Marrickville Town centre is not an 'entertainment centre' and the density of existing hotels in the locality does not approach a likely threshold level. Will the disadvantage associated by alcohol related harm be exacerbated by the proposed development? 65In Dr Stubbs opinion, any increase in the number of licensed premises is likely to increase alcohol related harm, but the degree of impact is context specific and depends on the social and physical environment in which the licensed premises is being introduced. The 'risk profile' is related to:

Findings 70The social impacts of a development are a relevant consideration under s79C of the EPA Act. The key social issue identified in the contentions raised by council is whether the 'town centre and its surrounds are subject to a high level of disadvantage associated with vulnerability to alcohol related harm which is likely to be exacerbated by the proposed development'. 71This question needs to be considered within the context that hotels are a legal land use and therefore a degree of impact is deemed by society to be acceptable. Hotels are permissible within the 3A zone and consistent with BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [117] and [118]: planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. ..... In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 72The town centre and its surrounds is defined by the primary locality (300m radius - where the most direct alcohol related impacts are likely to be experienced) and the secondary locality (1km radius - where these impacts are also likely to be experienced but to a lesser extent). In this combined locality there are 'pockets of significant disadvantage' and within these pockets there would be people with greater 'vulnerability to alcohol related harm'. However, I do not accept that this 'is likely to be exacerbated by the proposed development' to the extent that it warrants refusal of the application. 73I acknowledge that the establishment of any hotel has the potential to increase the impact of alcohol related harm and that there is a correlation generally between social disadvantage and increased vulnerability to alcohol related harm. The degree of impact is context specific and depends on the 'risk profile' - the physical and social context of the locality - as well as the attributes and management of the particular hotel. 74The experts disagree on the 'risk profile' of the locality and therefore on the degree of impact which I discuss below. Physical context Proximity to sensitive uses 75The primary locality is largely within the Marrickville town centre in which hotels and other commercial uses are permissible. The experts agree that there are residential uses within the primary locality in close proximity to the hotel. This clearly has the potential to impact on amenity unless factors such as patron number, hours of operation, noise, responsible service etc are appropriately managed. Council generally did not raise issue with these impacts of the proposal. Density and clustering of licensed premises 76The proposal involves the transfer of the existing Hoteliers License from the Henson Park Hotel, which is about 900m from the proposal. The density within the secondary locality will therefore not increase. However, the density within the primary locality will increase. It is arguable that the number of existing licensed premises in the primary locality would constitute a 'cluster', however, it is also arguable that it is appropriate to 'cluster' hotels and other licensed premises within a town centre locality given that this is reflective of the zoning. The town centre is not an 'entertainment precinct' and an additional hotel here is unlikely to result in a threshold being reached where impacts may escalate exponentially. However, there is the potential for alcohol related harm with any licensed premise, which will increase with an increase in the number of licensed premises. The severity of the impact will depend upon a range of factors, including the attributes and management of the hotel itself. 77Both experts referred to a 2011 BOCSAR research paper on 'The Association between Alcohol Outlet Density and Assaults on and Around Licensed Premises' (2011 BOCSAR Report). This report examined the Sydney LGA but I accept that its findings are also relevant to the Marrickville LGA and the site. The 2011 BOCSAR report found that 'assaults are more likely to be around licensed premises than elsewhere' and suggests that 'the concentration of licensed premises is strongly associated with the number of recorded assaults, and that the association is linear'. However, the report indicates several qualifications to its findings including that: ...the estimated additional four to five assaults per one additional alcohol outlet per hectare is an average across all the licensed premises in Sydney LGA. This should not be assumed that this result is constant for all alcohol outlets. The effect of an additional outlet will depend upon factors such as the quantity of alcohol sold, the level of adherence to responsible service guidelines, the type of licence, the trading hours, patron numbers, patron demographics, type of beverage consumed, environmental characteristics of the drinking setting and so forth. The average is also only relevant to Sydney LGA as a whole. The effect of establishing additional alcohol outlets may vary between neighbourhoods in the LGA. 78Although it cannot be definitively quantified, an additional late trading hotel is likely to increase incidents of assault in the wider community. The 'pockets of disadvantage' and the BOCSAR crime data demonstrate that careful consideration should be given to the operation and management of the hotel to reduce the potential for alcohol related harm. Social context Level of disadvantage 79The key issue difference between the experts in relation to demography is whether the locality is disadvantaged. The difference between SEIFA Disadvantage and the SEIFA Advantage and Disadvantage, as explained in the Australian Bureau of Statistics (ABS) Information Paper on SEIFA (Information Paper), is that SEIFA Disadvantage includes only measures of relative disadvantage such as low income, low education, high unemployment and unskilled occupations and is used where the user wants to look at disadvantage and lack of disadvantage. Whereas SEIFA Advantage and Disadvantage includes measures of relative disadvantage as well as measures of relative advantage such as low or high income, internet connection, occupation and education. It is preferred where the user is not looking only at disadvantage and lack of disadvantage and wants advantage to offset any disadvantage in an area. 80The Information Paper explains that: SEIFA is a suite of four summary measures that have been created from Census information. Each index summarises a different aspect of the socio-economic conditions in an area, and therefore summarises a different set of social and economic information. The indexes can be used to explore different aspects of socio-economic conditions by geographic areas. For each index, every geographic area in Australia is given a SEIFA number which shows how relatively 'disadvantaged' that area is compared with other areas in Australia. 81The Information Paper further explains that: A SEIFA score is created using information about people and households in a particular area. This score is standardised against a mean of 1000 with a standard deviation of 100. This means that the average SEIFA score will be 1000 and the middle two-thirds of SEIFA scores will fall between 900 and 1100 (approximately).... 82Map 5.6 of Dr Stubbs' Statement of Evidence provides the SEIFA Disadvantage scores for Census Collector Districts (CCDs) within Marrickville LGA. Within the locality the majority of the CCDs fall between 901 and 1000. There are five CCDs (of about 28 in the locality) that fall below this, including one in the south west extremity of the secondary locality (CCD 1420604) which has a high proportion of social housing and is within the lowest SEIFA band (785-800). 83The SEIFA Advantage and Disadvantage scores within the primary locality generally indicate scores closer or above the SEIFA mean score. 84It is not necessary for me to adjudicate on which SEIFA index should be preferred as the experts generally agree that there are 'pockets of significant disadvantage' in the locality. However, this does not mean that it is appropriate to conclude that the primary or the secondary locality, as whole, is subject to a high level of disadvantage relative to other areas in Australia. 85The experts disagree on whether the level of disadvantage is declining due to increased gentrification. Dr Stubbs concedes that it is static or declining within the locality but that gentrification would not be a homogenous process. Mr McEwen submits that as the level of disadvantage is not increasing then the number of disadvantaged people who consume alcohol and the extent of consumption is also not increasing. He submits that the level of vulnerability to alcohol related harm is therefore not exacerbated and at best those disadvantaged people who now drink may switch allegiances and drink at a different hotel. While I accept that the locality is undergoing gentrification it is likely that 'pockets of significant disadvantage' will continue to remain, particularly if these pockets are associated with high levels of social housing. It cannot automatically be assumed that the level of vulnerability to alcohol related harm will remain static or decline. 86Dr Stubbs' indicators of vulnerability to alcohol related harm also need to be considered with caution in concluding that the locality, as whole, has increased vulnerability to alcohol related harm. 87Mr Lette refers to individual indicators such as low income as being reflective of the demographics of the area which has a high level of elderly, creative/cultural workers and higher education students that does not necessarily mean an increased vulnerability to alcohol. Similarly, the high level of people with non English speaking background throughout the locality and the LGA do not necessarily indicate an increased vulnerability to alcohol related harm. Further the proportion of males within the LGA, which Dr Stubbs stated was a key indicator for such harm, is not disproportionate. 88However, some CCDs have multiple indicators at levels that may flag a vulnerability to alcohol related harm such as low income, low formal qualifications together with a high indigenous population. 89Despite the uncertainties in interpreting the indexes and indicators, I accept that there are 'pockets of significant disadvantage' within the locality and that there is generally a relationship between disadvantage and increased vulnerability to alcohol related harm. However, I do not accept that the locality as a whole has a high level of disadvantage associated with vulnerability to alcohol related harm. The 'risk profile' of the locality is not cohesively one of disadvantage, which would warrant refusal of the application. However, the 'pockets of significant disadvantage' warrant a precautionary approach to any approval. Existing alcohol related harm 90The experts examined the existing level of alcohol related harm in the primary and secondary localities and the likely contribution of the proposed hotel. If the level of existing harm is unacceptable or disproportionate, then the hotel is likely to further increase the unacceptability, particularly for disadvantage people as they are more susceptible to alcohol related harm. 91The BOCSAR 'hotspot' for Alcohol Related Assault is centred around Marrickville Road, Illawarra Road and Petersham Road. The Marrickville Tavern is within this 'hotspot' and the Royal Exchange Hotel is just outside. This 'hotspot' includes 2.56% of the 303 Alcohol Related Assaults (124 domestic assaults and 179 non domestic assaults) in Marrickville LGA, which equates to 7.76 Alcohol Related Assaults in the 'hotspot' for 2009. Mr McEwen, submits that this is numerically low when compared to the data for the Newtown 'hotspot' for Alcohol Related Assault of 34.19% which equates to 104 Alcohol Related Assaults in 2009. 92Mr Wright combines the incidents of alcohol related (179) and non alcohol related (230) Assaults (non domestic) in the LGA. The site is within a 'hotspot' for Assaults (non domestic), which contributes 16.6% of the 409 incidents in the LGA, approximately 73 incidents. Mr Wright then assumes that, of these, approximately half (36.5) would be alcohol related as the number is often under reported. 93Mr Wright also combined the incidents of alcohol related (124) and non alcohol related (111) Assaults (domestic) for the LGA. He notes that the 'hotspot' for Assaults (domestic) in which the site is located is 'large and diffuse' and it contributes about 90% of the 235 incidents in the LGA (212). On the assumption that 50% of Assaults (domestic) are alcohol related, then 106 incidents occur in this 'hotspot'. He recognises that it is difficult to attribute how many incidents would occur within the primary locality but he submits that 'there is a very high level of association with alcohol related assault and domestic violence'. 94There is clearly a significant difference between the evidence and the parties' submissions as to the level of alcohol related assault (domestic and non domestic) in the primary locality of the site. Mr McEwen estimates it to be about 7.6 incidents, whereas Mr Wright estimates alcohol related assault (non domestic) to be 36.5 and alcohol related assault (domestic) to be anything up to 106 incidents. The key difference between these figures relates to the assumption that the relationship of alcohol to an incident is largely unreported and the proportion of incidents in the primary locality within each 'hotspot'. 95Both parties relied on the relevant BOCSAR 'hotspot' maps and Table 5 of the BOCSAR Local Government Area Crime Report for Marrickville 2009 (BOCSAR Report). 96The BOCSAR report states: Table 5 shows the proportion of selected offences that were flagged by police as alcohol related when information is available to police which leads them to believe that alcohol was a factor associated with the incident. It is particularly important to be cautious when interpreting the relationship between alcohol and crime for criminal incidents that have low clear up rates. When police do not know who the offender(s) are, they cannot usually make a judgment about the sobriety of the offender(s). For offences such as these it is likely that the number of incidents flagged by police as alcohol related is considerably lower than the true number. 97I accept that the figures in Table 5 and the 'hotspot' map for alcohol related assault are an underestimate but not to the extent submitted by Mr Wright. Even if his assumptions were correct, the figures for alcohol related assault for other 'hotspots' in the LGA and presumably for other LGAs would also be underestimates and the relativity of the figures may not necessarily change. 98In isolation, the number of recorded incidents in the 'hotspot' for Alcohol Related Assault is not a large proportion of the incidents in the LGA. Nonetheless, the 'hotspot' ranks in the top 30% of areas in NSW for Alcohol Related Assault and it is geographically small which indicates a direct relationship with the density of licensed premises within the primary locality. It is questionable whether the number of incidents in the Newtown 'hotspot' is directly comparable as the 'hotspot' is larger and has different characteristics more akin to an 'entertainment precinct'. 99The 'hotspot' for Assault (domestic) is 'large and diffuse' and covers a significant area of the LGA. It is therefore understandable that this 'hotspot' would include about 90% of the incidents in the LGA but provides little guidance as to the level of Assault (domestic) within the primary or secondary localities or the link between these incidents and alcohol. 100The 'hotspot' for malicious damage is also 'large and diffuse' and covers a significant proportion of the LGA. Although this 'hotspot' is within the top 10% of areas in NSW for malicious damage it provides little insight into the level of malicious damage within the primary and secondary localities or the level of malicious damage associated with alcohol. 101Mr McEwen submits that neither of the existing hotels have an assault rate of any relative concern. The Marrickville Tavern is ranked 743 out of 2099 and the Royal Exchange is ranked 1113 in the BOCSAR data. Further, the NSW Police did not object to the proposal. Mr Wright submits that the BOCSAR data relies on reported incidents and it is the 'tip of the iceberg'. 102In Mr Wright's submission, the 2008 and 2011 Resident Surveys are consistent in their findings of the experiences of residents of poor amenity related largely to the existing licensed premises in the primary locality. However, Mr McEwen submits that the form and questions in the 2011 survey were 'prejudicial to the obtaining of an objective response' and that its results are unreliable due to the small sample. I accept that little weight can be given to the results of this limited survey and that it is not unreasonable that people who live near an exiting hotel would have concerns about the establishment of a new hotel in close proximity but that this does not indicate that the hotel will result in unacceptable amenity impacts from alcohol related harm. 103Further, Mr McEwen submits that of the 624 submissions made in response to the development application, only 9 expressed concerns about increased crime and anti social behaviour. The principal amenity concerns related to parking and noise, which are not raised by council. The oral submissions on site also reflected these concerns. 104For these reasons, I do not accept that the existing impacts that can be directly attributable to alcohol in the locality are unacceptable or are disproportional high such that the risk associated with the establishment of a new hotel is unacceptably high and would warrant refusal of the application. However, the evidence does indicate a cautionary approach should be applied to any approval. 105The crime incident data by time and day in the BOSCAR Report indicates that Assault (non domestic) and alcohol related assault significantly peak between midnight and 6am on Friday, Saturday and Sunday nights. Incidents of alcohol related assault also increases on these nights between 6pm and midnight. This data is relevant to the appropriate opening hours of the hotel. The hotel 106Mr McEwen submits that the current proposal is significantly different to the earlier applications and will have lesser impact. It is described as having 'modern dcor ' and being 'family friendly' with a strong emphasis on food providing a bistro/caf at ground level with outdoor dining and a restaurant at first floor level. Further, it provides adequate parking, including disabled parking, with lift access and an adequate Plan of Management, CCTV, lighting and security measures. It is different to the facilities offered by the Marrickville Hotel and the Royal Exchange Hotel and will not be 'particularly attractive to the highly disadvantaged population'. He submits that these characteristics of the hotel will provide community benefits, which need to be weighed against any adverse impacts of the hotel. 107Mr Wright submits that the opening hours of the hotel from 8am to 2am are inconsistent with the 'family friendly' description of the hotel. The emphasis on food is also questioned given that the plans for the first floor do not show a restaurant nor provide a kitchen. There is limited reference to the restaurant use in the SEE other than that lounge area will be 'complemented by an up market dining area' serviced by a dumb waiter and the 'indicative menu' provided. The proposal is for a 'hotel' as defined under the MLEP and must be assessed as such. 108The design, food offer and management of a hotel can assist in mitigating impacts, which are likely to result from hotels. However these factors should not be considered as the panacea to every problem as there are clearly limitations on what good management and provision of food can achieve, particularly in the public domain. 109While the 'family friendly' description provides little certainty, factors such as the availability of food, patron numbers and hours of operation can place more tangible limits on the likely impacts. The 2011 BOCSAR Report as well as the evidence of Mr Lette and, to a lesser extent, Dr Stubbs identify that these are important factors which influence the effect of an additional liquor license. 110The concerns identified by Mr Wright about the first floor restaurant have been acknowledged by the applicant who has agreed to conditions that require minimum hours of operation for the bistro/caf and the restaurant as well as minimum seating capacity. However, there remains a degree of uncertainty as to the extent that the bistro/caf and restaurant will assist in mitigating potential impacts given that they are not required to be open after 9pm and 10pm, respectively. 111The parties have agreed to conditions including a limit on patron numbers and opening hours, with a trial period, which are discussed below. Conclusion 112There is evidence of 'pockets of significant disadvantage' and existing alcohol related harm in the locality but not that this will be exacerbated to an unreasonable extent by the proposal sufficient to warrant refusal of the application. However, it is indicative that careful consideration needs to be given to factors such as hours of operation, patron number and management to mitigate the potential impacts of an additional hotel in the locality. 113There are two late trading hotels that are in close proximity to the proposal, which would have a similar catchment. There is no evidence that there is a shortage or limited supply of alcohol in the locality, although the density of liquor licenses is relatively low compared to the LGA and NSW. The agreed position of the experts is that the level of disadvantage in the locality is static or declining, however, 'pockets of significant disadvantage' are likely to remain. It cannot definitively be concluded that there would be an increase in the number of disadvantaged people who consume alcohol or that they would consume more alcohol. However, the level of disadvantage and the indicators of alcohol related harm require a cautious approach to any approval. 114On the applicant's own evidence the hotel is targeting a different market to the existing hotels. There is likely to be an increase the number of people from within the community and potentially from outside the locality that will consume alcohol within the primary locality as a result of the additional hotel. Consequently, the consumption of alcohol is likely to increase. There is clear evidence that any increase in the number of licensed premises can increase alcohol related harm, the severity of impact is linked to the 'risk profile' and the attributes of the hotel itself. 115Individually the factors in the 'risk profile' of proximity to residential uses, clustering, disadvantage and existing alcohol related harm do not support refusal of the application, however, they indicate a cautionary approach to any approval. 116The parties have proposed agreed conditions of consent, which include a limit on patron numbers to 144 (condition ), compliance with a Plan of Management (Condition ) and a one year trial period of trading hours between midnight and 2am (Condition 27). 117However, I do not agree that Condition 27 is adequate in light of:

• the peaks in assault identified in the BOSCAR Report data, particularly after midnight;
• the link between hotels and assaults and the importance of factors such as hours of opening in reducing incidents;
• the two existing late opening pubs in close proximity to the hotel with a similar closing time;
• the proposed closing hours for the bistro/caf (9pm) and the restaurant 10pm).
• a more accurate understanding of gentrification and the level of disadvantage will not be available until the results of the 2011 Census. 118I find that any approval of the hotel should include a condition which approves the hours of operation from 10am to 10pm with an initial one year trial period of extended hours up to 12 midnight and that this trial period should be monitored. 119At the successful conclusion of the initial trial period it is open to the applicant to apply for further extended hours up to 2am, which should then also be subject to a trial period, which is monitored. 120The proposed amendment to the trading hours sought by the applicant and the trial period contained in Condition 27 has been discussed with the parties at a mention on 21 June 2011. The parties indicated that the proposed trail period is consistent with the Hotel Trading Hours Policy and an assessment of the opening hours of the two existing pubs. 121The Hotel Trading Hours Policy 'adopts a merit based approach for the assessment of applications in relation to extended trading hours of hotels'. This approach includes the use of Plans of Management and limited consents with trial periods 'to ensure that the extended trading hours are reviewed and assessed in light of the performance of the hotel and to ensure that the extended trading hours do not interfere with the amenity of the locality'. 122The policy does not define 'extended trading hours' presumably as it is aimed at existing hotels which seek approval to extend trading hours beyond those already approved. The merit assessment of such an application would include a review of the impacts of the exiting hotel operating within its approved trading hours. 123The application before me is for a new hotel and for the reasons that I have discussed in this judgment; I find that the hotel should only be approved with limited trading hours. The satisfactory impacts of the hotel between 10pm and midnight need to be confirmed prior to any approval of trading hours between midnight and 2am, even on a trial basis. 124The applicant has indicated that while it is not its preferred position it would accept the proposed amendments to the trading hours and trial period. 125The parties filed conditions on 22 June 2011, which reflect this judgment. On this basis the application may be approved.

Orders

1. The appeal is upheld.
2. The development application to demolish part of and carry out alterations to existing premises at 252-254 Illawarra Road, Marrickville, for use as a hotel is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibits 1 and E, may be returned. Annelise Tuor Commissioner of the Court

ANNEXURE A 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: 24 June 2011