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.