Australian Regional Group Pty Ltd v Independent Liquor and Gaming Authority

[2024] NSWCATAD 305

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Australian Regional Group Pty Ltd v Independent Liquor and Gaming Authority [2024] NSWCATAD 305

Hearing dates:

25 September 2024

Date of orders:

15 October 2024

Decision date:

15 October 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

LICENSING – liquor - packaged liquor licence - overall social impact - well-being of the local or broader community

Legislation Cited:

24-Hour Economy Legislation Amendment (Vibrancy Reforms) Act 2023

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Liquor Act 2007

Cases Cited:

Adamson v Independent Liquor and Gaming Authority [2022] NSWCATAD 394

Aldi Foods Pty Ltd v Independent Liquor and Gaming Authority [20191 NSWCATAD 26

Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 26

Bun v Independent Liquor and Gaming Authority [2020] NSWCATAD 60

Commissioner for Fair Trading, Department of Customer Service (NSW) v Kalkan [2022] NSWCATAP 112

Fruginiet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14]-[15]

McDonald v Director General of Social Security (1984) 1FCR 353

Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666

North Coast Property Holdings Ply Ltd v Independent Liquor and Gaining Authority [2024] NSWCATAD 98

Scott-Mackenzie v Independent Liquor and Gaming Authority [2020] NSWCATAD 108

Shiv Migration Agents Registration Authority [2008] HCA 31.

Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224

Texts Cited:

nil

Category:

Principal judgment

Parties:

Australian Regional Group Pty Ltd (Applicant)
Independent Liquor and Gaming Authority (Respondent)

Representation:

Agent:
S Gill (Director of Australian Regional Group Pty Ltd) (Applicant)

Counsel:
J Taylor (Respondent)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2024/00075328

Publication restriction:

nil

DECISION

1. The Applicant, Australian Regional Group Pty Ltd seeks review of the decision of the Independent Liquor and Gaming Authority (Authority) to refuse a packaged liquor licence (licence) pursuant to s 45 of the Liquor Act 2007 (the Act).

What is the relevant legislation?

2. The Applicant lodged its application for a licence on 17 December 2022. At a board meeting on 15 March 2023 the Authority considered the application and resolved to refuse the application under s 45 of the Act. It was not until 22 January 2024 that the Authority provided its statement of reasons for its decision.

3. On 27 February 2024 the Applicant sought review by this Tribunal.

4. Then, on 1 July 2024, various amendments to the Act by the 24-Hour Economy Legislation Amendment (Vibrancy Reforms) Act 2023 came into force. There were no transitional provisions which might have indicated how a matter should be dealt with where a decision of the Authority comes before the Tribunal after the law changed. The Respondent submitted that the correct law to be applied when, as here, the Tribunal is exercising administrative review jurisdiction, is the law that applied when it made its decision. The Applicant, understandably, wished to have the Application for Review determined expeditiously, and, to that end, also suggested the old Act applied.

5. In Commissioner for Fair Trading, Department of Customer Service (NSW) v Kalkan [2022] NSWCATAP 112 (Kalkan), the Appeal Panel held that, in the circumstances of that matter the Tribunal should apply the law as at the date of the matter coming before the Tribunal. In submissions before me the Respondent contended that the circumstances in Kalkan were different to the present matter. Firstly, that matter was in relation to the Home Building Act 1989, and to amendments introduced to overcome unintended consequences as a result of a matter previously determined by the Tribunal, the details of which need not be repeated here; see [22] of Kalkan. Further, and more particularly, the amendments to the relevant Act included transitional provisions. Also, in Kalkan the application for review was made after the date the amendments came into effect, whereas, in the present matter the amendments to the Act came into force after the Applicant had lodged its application for review.

6. Further, it was submitted, Kalkan is inconsistent with Fruginiet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14]-[15] and the earlier case of Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, which was there cited with approval. There, at [14] the High Court said:

…[The AAT’s jurisdiction] is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.

7. Section 30(1)(c) of the Interpretation Act 1987(NSW) provides, relevantly, that the amendment of an Act does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the relevant Act. Consequently, the Applicant, in applying for administrative review of an administratively reviewable decision can be said to have an “accrued” right within the meaning of s 30(1)(c) of the Interpretation Act 1987. 

8. It was also submitted that the application of the new legislation would be unfair to the Applicant. Putting aside any substantive changes, s 48(1) of the amended Act requires an application to be accompanied by a statement of risks - in an approved form. In the previous version of the Act an applicant was to file a community impact statement. The new version requires a statement of risks and potential effects which appears to require a greater level of specificity in its content. While the effect of applying the new Act, had it applied, may have been inconvenient for the Applicant I do not accept that as a valid reason to apply the old Act. As I have found that the Applicant has an accrued right to have the review considered under the old Act, I have disregarded the observation about unfairness to the Applicant.

9. I have therefore proceeded on the basis that the old version of the Act applies in my consideration of the Application for Review.

Evidence

10. The material before me comprised:

1. Documents filed by Mr Gill on behalf of the Applicant on 4 June 2024

2. Applicant's submissions dated 5 August 2024

3. Applicant’s reply dated 2 September 2024

11. Mr Gill gave evidence, during which I asked him a number of questions.

12. The Respondent filed:

1. material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act),

2. Affidavit and Expert Report of Dr Judith Stubbs dated 22 July 2024 (Stubbs Report). Dr Stubbs was not required for cross examination.

3. Updated harm minimisation and community impact data report filed 16 July 2024

4. Submissions dated 19 August 2024

Substantive issue before the Tribunal

13. The objects of the Act at the relevant date were set out in s 3 as follows:

3 OBJECTS OF ACT
(1) The objects of this Act are as follows:

(a) To regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community,
(b) To facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality,
(c) To contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries.

(2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following:

(a) The need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour),
(b) The need to encourage responsible attitudes and practices towards promotion, sale, supply, service and consumption of liquor,
(c) The need to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of community life

(d) the need to support employment and other opportunities in the—

(i) live music industry, and

(ii) arts, tourism, community and cultural sectors.

14. In considering whether to grant a licence, the Respondent, and hence the Tribunal on review, is required to have regard to:

1. the public interest considerations in s 3(2) of the Act; and

2. whether granting the licence would provide employment in or other opportunities for the industries and sectors listed in s 45(7), namely the live music industry, the arts sector, the tourism sector and the community or cultural sector.

15. Relevantly, the Authority (and hence the Tribunal) must not grant a licence to an applicant unless it is satisfied pursuant to s 48(5) of the Act, that the overall social impact of granting the licence will not be detrimental to the well-being of the local or broader community. This was the only issue in contention before me.

16. The Respondent has published a Guideline to explain the procedure and the considerations relevant to its inquiry - Guideline 6 (the Guideline). The Tribunal may have regard to the Guideline under s 64(4) of the ADR Act: Aldi Foods Pty Ltd v Independent Liquor and Gaming Authority [20191 NSWCATAD 26 (Aldi Foods) at [16]; see also Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 26 (Auld) at [44]-[45]. The Guideline sets out comprehensively information required in relation to a licence. Importantly, the Guideline also sets out matters that must  be considered in determining whether the overall social impact of the licence will not be detrimental to the well-being of the local or broader community, repeating s 48(5) of the Act. Having said that though, the Tribunal is not obliged to give effect to Guideline 6 as it is not a "relevant Government policy" for the purposes of s 64(1) of the ADR Act: Scott-Mackenzie v Independent Liquor and Gaming Authority [2020] NSWCATAD 108 at [16].

Tribunal’s task

17. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the original decision-maker, and there is no presumption that the original decision is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. Neither party bears a legal burden of proof with matters in dispute determined on the balance of probabilities: see Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 (Smith) at [25].

18. Nevertheless, an applicant will bear an "evidentiary burden" or a "practical" onus in proceedings such as these to put sufficient evidence before the Tribunal to enable it to reach the requisite level of satisfaction: see for example, Auld at [50] and ALDI Foods at [88]. In Bun v Independent Liquor and Gaming Authority [2020] NSWCATAD 60 at [73] I considered that the Tribunal must be actually satisfied that the overall social impact of the proposal will not be detrimental. In ALDI Foods at [88], the Tribunal described the test as imposing a practical, though not legal onus on the Applicant. See also Adamson v Independent Liquor and Gaming Authority [2022] NSWCATAD 394 (Adamson) at [7] and Auld at [50]. When determining the "overall social impact" of a proposal, both positive and negative social aspects are to be taken into account: Smith at [30] and ALDI Foods at [90].

CONSIDERATION

Factual background

19. On 17 December 2022, the Applicant lodged an application for a "standalone packaged liquor store” (bottle shop) at a [specified address] within the Moree Plains Shire (the LGA), approximately 1.6km from Moree town centre (which was referred to in the decision under review as “the suburb”).

20. The location of the proposed bottle shop in relation to various NSW Bureau of Crime Statistics and Research (BOCSAR) crime hotspots is shown in the updated harm minimisation and community impact data report filed by the Authority, and in the Stubbs Report, the location of the proposed bottle shop in relation to various statistical areas on the Socio-Economic Indexes for Areas (SEIFA) Disadvantage Index and other key socio-economic indicators of vulnerability to alcohol-related harm.

21. In its Statement of Reasons, the Authority stated that it was "concerned that the social impact of approving the application is likely to be detrimental to the well-being of the local and broader community", stating:

The premises is (sic) located in high density hotspots in the suburb for all offence categories usually considered by us and we are concerned that the crime rates in both the suburb and LGA are significantly higher than the NSW average. We note Council's request that social issues be taken into account in considering the application.

If the licence is granted, there is a risk that liquor sold from the premises would lead to an increase in alcohol-related crime, health and other social and amenity issues, worsening these problems.

The overall social impact test

22. The words "overall social impact" in s 48(5) of the Act were considered in Kallin Ply Ltd v Independent Liquor and Gaming Authority [2019] NSWCATAD 36. The Tribunal held, at [20], referring to Macedon Ranges Shire Council [2008] VSCA 45, that:

As suggested in Macedon Ranges Shire Council, the meaning of “overall social impact” will be influenced by the subject matter and purpose of the Liquor Act. Clearly the Act is concerned with the minimisation of harm associated with misuse and abuse of liquor (including violence and other anti-social behaviour), as well as ensuring that the sale, supply and consumption of liquor contributes to, and does not detract from “the amenity of community life” (s 3(2)). Therefore in my view, these factors, where relevant, will inform the meaning of “overall social impact”. The Act also refers to other social impacts such as the balanced development of the liquor industry and of related industries such as the live music, entertainment, tourism and hospitality industries.

23. The Act also refers to other social impacts such as the balanced development of the liquor industry and of related industries such as the live music, entertainment, tourism and hospitality industries.

24. In Smith at [23], the Tribunal identified its task as follows:

The Tribunal's task in this case is essentially to make findings of fact. I must make a finding as to the overall social impact of granting the licence and then ask whether that impact will be detrimental to the well-being of the local or broader community. In Macedon Ranges Shire Council v Romsey Hotel Ply Ltd [2008] VSCA 45, the Court stated at [44] that "the weight to be given to the evidence is, of course, a matter for the decision maker, and will depend on the nature, extent and cogency of the evidence". Evidence will have little or no probative value if it is based on dubious assumptions or mere speculation.

25. The Tribunal in Smith accepted that it could give weight to "risk factors", such as local crime rates, socio-economic disadvantage of residents and health-related harms, provided there is "probative evidence that granting the licence will have a particular social impact": at [24]. In Smith the Tribunal considered that BOCSAR data constituted objective facts from which the inference could be drawn that granting the relevant licence would be likely to result in a significant negative impact, being an increase in the rate of assaults in the local community.

What is the relevant local or broader community?

26. In Aldi Foods, the Tribunal considered the meaning of the phrase "local or broader community" at [17], as follows:

It should be noted that Hennessy DP [in Smith] expressed the reservation that:

One of the views expressed in the Guideline is that the reference to the 'local community' in s 48(5) is a reference to the town of Kurri Kurri and that the reference to the broader community is a reference to the City of Cessnock local government area. Mr Smith agreed with that view. For the purpose of these proceedings, I accept that interpretation but I am not persuaded that the broader community always corresponds with the relevant local government area. A local government area is an area which a council can govern in accordance with the Local Government Act 1993 (NSW). The size and population of local government areas varies significantly as does the location of a local community within a local government area. The identification of both the local and broader community is questions of fact to be determined in each case.

I agree with those reservations. In this case the parties are in agreement that the Gunnedah Shire should be treated as the relevant broader community when considering Aldi's application for a packaged liquor licence. Given that agreement, and in the absence of material to the contrary, I accept Gunnedah Shire is the broader community for the purposes of s 48(5) of the LiquorAct.

27. In Aldi Foods, the Tribunal affirmed the decision of the Authority to refuse the licence on the basis that it did not meet the social impact test. The Tribunal held, at [68]:

It can be seen from the discussion above that Gunnedah and Gunnedah LGA are areas where the population is more disadvantaged than average in the State and that they have a high indigenous population. The harm which is likely to flow from Aldi selling packaged liquor (albeit unrefrigerated and from a small store) while statistically small, nonetheless has the potential to be very real as it affects the community whether by means of the one-off increase in hospital admissions, an increase in alcohol related crashes or an increase in domestic violence. Those impacts represent a real harm to the broader and local community: one which already has too much alcohol related violence and too many alcohol related crashes.

28. The Tribunal considered that the benefits to the community, including convenience, greater market choice, economic stimulation and a small reduction in traffic volume and kerbside parking, did not outweigh the harms: at [70].

29. In the present case, the Respondent submitted that the "local community" was the “suburb” of Moree and the "broader community" to be the community in the Local Government Area (LGA) of Moree Plains. The Respondent further submitted, and I agree, that the “suburb” of Moree refers to the township of Moree, although I observe that the Stubbs Report also addressed the impact with respect to the proposed location with greater specificity (see below). That evidence of localised harm in proximity to the proposed liquor store and within that local community is also, in my view, a particularly relevant factor.

30. The Respondent relied on the updated harm minimisation and community impact data report dated 16 July 2024 which draws upon data from objective sources such as the census, BOCSAR and SEIFA, shows, among other things, that:

1. Bottle shop licences per 100,000 for Moree and the LGA are lower than the NSW average;

1. Hotels, on-premises licences and small bar licences per 100,000 for Moree and LGA are higher, and in some cases significantly higher, than the NSW average;

2. the Aboriginal and Torres Strait Islander population is 20.5% of the Moree population and 19.9% of the LGA population, compared with 3.4% of the NSW population;

3. the Socio-Economic Index suburb decile of 2 and LGA decile of 3 (out of 10) "indicate a community has a below average level of relative socio-economic advantage and disadvantage compared to the rest of the state" and "may be considered disadvantaged communities";

4. had, for the 2019-21 years an alcohol attributed rate of hospitalisations below the NSW rate, but deaths above the NSW rate; and

5. crime rates for all categories from April 2022 to March 2024 considerably higher than the NSW average – approximately 4 times.

31. In support of its contentions the Respondent particularly relied on the Stubbs Report. The Applicant objected to Dr Stubbs' evidence as it was filed out of time – one day late. There was no dispute though that the Applicant had been provided with an unfiled version on the due date. Consequently, I do not regard the Applicant as having suffered any prejudice by the late filing of the Stubbs Report. I observe that the Applicant had the opportunity to file further material after that date, and in fact filed 2 subsequent submissions, both of which were filed out of time, but in respect of which the Respondent did not object. I observe that the Applicant did not file any evidence to contradict Dr Stubbs’ evidence.

Dr Stubbs’ evidence

32. Dr Stubbs supplied a very detailed curriculum vitae attached to her report. Academically, she holds a Bachelor of Social Work majoring in Community Development and Case Work from the University of NSW, and completed an interdisciplinary PhD in social policy, land economics and town planning within the School of Town Planning and Social Science, RMIT. She holds or has held a range of honorary positions in leading research institutes, government policy bodies and community networks/organisations. In summary, she is an internationally recognised researcher whose practice area focuses on, among other things, social and economic impact assessments, including in remote and regional areas, and she has worked with Aboriginal communities on community development and crime and safety initiatives. She has completed a wide range of projects, including in relation to licenced premises, and has specialised in social and economic impact assessment in relation to diverse development proposals including licensed and restricted premises. From 2002 to 2009, she was an independent advisor to the NSW Office of Liquor Gaming and Racing and assisted with the drafting of guidelines and input into legislation, and assessment and peer review of potentially high-impact applications for liquor licences requiring Liquor Community Impact Statement assessments.

33. I accept Dr Stubbs as providing expert evidence in relation to the likely overall social impact of the application. I reject the Applicant’s submission that her views were “opinions only”. Her heavily footnoted report referred to many independent and objective sources. I also reject the Applicant’s submission that Dr Stubbs may not in fact have visited the proposed site of the bottle shop and environs. I agree that it is unclear from her report whether she visited the proposed site or the LGA. However, I consider her findings to be based on objective data such that it is doubtful that her views would have altered by merely visiting the proposed site or the LGA. The Applicant contended that Dr Stubbs’ views were speculative as to what may occur if there were a bottle shop at the site as the Applicant seeks. I also reject this criticism. While nobody can foretell what will happen in the future, Dr Stubbs, in my view, has set out, in a considered way, her findings, which, as I have observed, are based on scientific data.

34. Dr Stubbs refers to matters in relation to Moree and the broader LGA, including socio-economic and health characteristics, SEIFA data, health indicators, crime environment and density of overall liquor licences.

35. She provided a comprehensive overview and analysis of a substantial body of scientific research in Australia and elsewhere. Based on that research it is her opinion that:

1. There is a relationship between alcohol and violent crime, and a relationship between violence and proximity to licensed premises.

2. The balance of evidence favours a relationship between increased density of outlets and increasing violence.

3. Alcohol outlet density is associated significantly with rates of domestic violence over time.

4. To the extent that studies have not found a statistically significant relationship between packaged liquor licences and assault, this was not tested in relation to the interaction with Aboriginal people and SEIFA disadvantage.

5. People identifying as being from an Aboriginal and Torres Strait Islander background are far more seriously affected by alcohol-related harm, notwithstanding that they are somewhat more likely to abstain from alcohol than their non-Aboriginal counterparts.

6. There are likely to be elevated levels of alcohol-related harm from the addition of a licensed premises in the context of socio-economic disadvantage and that community disadvantage is a major indicator of increased alcohol related harm.

7. Proximity to liquor outlets tends to increase neighbourhood problems such as drunkenness and property damage, with highest rates at less than 500 metres and impacts also experienced within 1km.

8. Increases in alcohol prices lead to reductions in drinking and heavy drinking and correspondingly the consequences of alcohol use and abuse.

9. Demographic indicators likely to increase the risk of alcohol-related harm in a given community include:

1. ABS SEIFA Index of Relative Socio-economic Disadvantage (SEIFA Disadvantage) as an aggregate measure of overall community disadvantage;

2. lower educational achievement and lower employment status;

3. poor, unstable population, concentrations of disadvantage (e.g. homeless, social housing);

4. Aboriginality;

5. smaller households

6. young people (15-29 years);

7. higher than average male population; and

8. a range of other indicators of social disadvantage, such as low income, high unemployment, non-school completion, although these are covered more comprehensively in the two ABS SEIFA Indexes above.

36. Dr Stubbs considered that the areas closest to the proposed bottle shop in south Moree, as well as Moree as a whole and, to a lesser extent the LGA, have a much greater than average vulnerability to alcohol-related harm. In addition to the Moree suburb and the LGA, Dr Stubbs considered smaller areas of Statistical Area Level I geographical areas (SAls), which generally have a population of 200 to 800 people. The proposed bottle shop is on the border of two SAls within a 1 km radius. Dr Stubbs analysed the relevant objective indicators in relation to both SAls. She noted that these SAls are the most proximate and physically accessible to the bottle shop, and hence, given the findings of the literature with regard to accessibility, are at greatest exposure with respect to the proposal. She notes that there is a particularly high risk of well above average vulnerability for those SAIs. Those factors include:

1. very low SEIFA Disadvantage rankings in the locality, with Moree in the most disadvantaged 16% of areas for Australia, and eight of the SAIs in closest proximity to the proposed premises in the most disadvantaged 10% of areas for NSW, including two in the bottom 1% of areas and three in the bottom 2%;

2. very low SEIFA Index of Education and Occupation, with Moree in the most disadvantaged 19% of areas for NSW on this Index, and SAIs in closest proximity among the lowest status areas for NSW in relation to education and occupational attainment (the lowest 1 to 5% of areas for NSW);

3. about double the average rate of social housing in Moree and the LGA;

4. about 25% of residents of Moree and the LGA identify as Aboriginal compared with 7% for the rest of NSW, with SAIs in closest proximity having from 50% to 100% of residents identifying as Aboriginal; and

5. very low household incomes, lone person households and unemployment in some SAIs in closest proximity to the proposed premises.

37. Dr Stubbs was critical of the Applicant’s proposed plan of management. She was of the view that administrative controls outlined there, such as making regular patrols of the interior of the premises, monitoring patron loitering, denying service to alcohol-affected patrons, and discouragement of minors, are relatively weak controls. She observed the operator of a bottle shop has no jurisdiction to act outside the interior of the shop and immediate vicinity, and no ability to mitigate the impact of consumption in public or in the home where most of the effects of risky alcohol consumption and alcohol-related harm are experienced. I accept that this is a criticism of plans of management for bottle shops generally and that it also applies in this case. Dr Stubbs considered that restricting availability, physical and temporal access and cost of alcohol are the most effective methods of reducing alcohol-related harm in the types of communities into which the proposed bottle shop would be introduced.

38. In summary, it was Dr Stubbs' opinion, that the overall social impact of granting the licence "is likely to be highly detrimental to the local community and the broader community as each of these communities have socio-economic, health and crime characteristics that make them far more likely than average to experience alcohol-related harm from increased access to packaged liquor and also indicate that they are already experiencing the detrimental effects of alcohol-related harm, which will be exacerbated by the proposal".

39. Dr Stubbs considered that the detriment will be "even more serious for particular groups and communities within the local and broader communities, including severely disadvantaged and Aboriginal communities, and that these groups will disproportionately bear the harm associated with increased access to a packaged liquor licence in this location". That is so because of the "severity of socio-economic disadvantage, health and crime indicators among these groups and communities, and strong evidence that they are already experiencing severe adverse impacts from alcohol-related harm".

40. In particular, Dr Stubbs notes that the proposed bottle shop will be located "in the centre of these most vulnerable communities in the centre to southern part of Moree, and provide easy access to these most vulnerable groups in the local community compared with other packaged liquor outlets some 1.5 kms (sic) to the north".

41. Dr Stubbs' opinion is that poor performance on health indicators variously associated with alcohol consumption in the literature "indicate a community already under severe stress, and disproportionately suffering the ill-effects of alcohol-related harm. Introducing more alcohol on this site, proximate to the most vulnerable groups, is highly likely to worsen these indicators from an already high base, and increase the burden of disease on vulnerable groups and communities, as well as the LGA health system. She observed that the LGA experienced very poor health outcomes, especially in communities within the LGA that are socio-economically disadvantaged, including Aboriginal people.

42. Dr Stubbs also notes that the crime environment of Moree was highly unfavourable to the proposal, with crime typically associated with problematic alcohol consumption experienced by the Moree community at 4 to 5 times the NSW rate, and the alcohol-related crime rate in Moree is also at least 4 to 5 times greater than the NSW average. Dr Stubbs observed that crime more typically associated with problematic alcohol consumption, such as Domestic and Non-Domestic Assault, Sexual Assault, and Malicious Damage to Property, are experienced by the Moree community at 4 to 5 times the NSW rate. Concerningly, Sexual Assault has more than doubled in Moree over the last 2 years although, at least the rates of the other mentioned crimes have been stable.

43. Some other crimes, which may also be associated with alcohol in the sense that more vulnerable people who have been drinking may be at greater risk of being a victim of crime, are often much higher than average in Moree. For example, Robbery is more than 9 times the State average, Theft — Break and Enter Dwelling is more than 11 times the NSW average, and Motor Vehicle Theft is almost 7 times the State average. Even the Applicant acknowledged that neighbouring premises are continually broken into.

44. Dr Stubbs reviewed the objective data and noted that there is a higher than average density of overall liquor licences, which is also noted in the literature as a key factor in alcohol-related harm. Although the rate of bottle shops in Moree and LGA is lower than the NSW average, Dr Stubbs notes that hotel and club licences are at triple or five times the average rate, and, relevantly, in my view, a number of those clubs operate takeaway liquor outlets including hotels with drive-through outlets. The result is a relatively high level of supply of packaged liquor despite the lower density of standalone bottle shops. Dr Stubbs also notes that the other stand-alone bottle shops in Moree are located in the north of Moree in the town centre, where the demographic context is "far more favourable", and around 1.6km from the proposed premises.

Applicant’s evidence and submissions

45. The Applicant accepted that "the points raised in the [Stubbs Report] ... are all valid points". However, the Applicant made a number of contentions which are discussed below.

Alcohol is an intrinsic part of Australian culture and plays a central role in most people's social lives

46. Mr Gill observed that drinking alcohol was, about 20 years ago, more prevalent, even, he suggested, in the workplace. It was unclear if this submission was to propose that, nowadays, members of the public require greater access to venues dispensing alcohol. The submission was not supported by any independent data. I accept though that consumption of alcohol is popular in many parts of the community. Against this is the objective information analysed in the Stubbs Report about the health, crime and other risks associated with alcohol consumption.

Tourism

47. The Applicant submitted that many tourists visit Moree LGA, especially to attend the mineral rich, naturally-heated artesian water. The Moree Artesian Aquatic Centre is only approximately 300 metres from the proposed site of the bottle shop.

48. The Respondent conceded that it is possible that some tourists staying in the vicinity of the proposed bottle shop may benefit from being able to purchase alcohol there but submitted that there is insufficient evidence to suggest that the type of tourists staying at motels near the proposed store (which is just off the main highway) were leisure tourists. Some of the “tourists” include truck drivers, who, according to the evidence of the owner of the adjoining motel, who need to sleep as early as 8pm. The implication was that those “tourists” are merely stopping over briefly in Moree to sleep. That submission also noted that the motel had been subject to continual breakins, and that local Police were unable to stop the problem because they did not have “enough manpower to deal with drunk people that causing problem to us at night". The Applicant did not provide any response to this assertion.

49. The Applicant was critical of Dr Stubbs’ report in that, it was submitted, she had failed to address the impact of tourism on the area. The Applicant noted that, the number of bottle shop licences was well below the State average per 100,000 for both Moree and the LGA. There was no dispute that the Moree Artesian Aquatic Centre is only approximately 300 metres from the proposed site of the bottle shop. However, I could locate no evidence in the material before me as to the volume of tourists visiting the Centre, nor Moree nor the LGA generally, such that the number of bottle shops might be demonstrably inadequate.

50. I accept that the Moree LGA is something of a tourism destination, especially because of the hot springs to which the Applicant referred. The Applicant asserted that numbers of visitors are such that they need to be accommodated in 30 or more motels. Mr Gill estimated that if the total number of visitors visiting Moree are considered, the current number of bottle shops per 100,000 is insufficient. No evidence was provided in support of the contention of inadequacy of facilities to access alcohol.

The proposed store will replace another drive-through bottle shop.

51. The Applicant submitted that the proposed store will replace the Victoria Hotel drive through bottle shop, which before its closure, was located 200m away from the proposed site, thereby maintaining the status quo.

52. The Respondent submitted that the closure of one drive through bottle shop does not entitle the Applicant to open its proposed bottle shop. Dr Stubbs’ evidence demonstrates that the relevant community is already suffering from the severe and detrimental impacts of alcohol-related harm, suggesting that the maintenance of the status quo is in fact undesirable. Moreover, each application is to be considered on its merits. I have taken the Applicant’s “status quo” submission into account in considering the overall density of alcohol-related venues, but I reject the submission that maintenance of the status quo is a factor in favour of the application.

The development of the shops and uplift in the area will be beneficial to the local Moree community

53. Mr Gill mentioned that the Applicant has application before the local council for the development of a service station and is in negotiation with other businesses to revitalise the area near where the proposed bottle shop is planned, in circumstances where a lot of businesses are leaving the town. The proximity of the site to the highway, it was submitted, also meant there was a lot of opportunities for the various businesses. However, there was no evidence before me as to the likely impact of those new businesses should they proceed, including as to additional numbers of tourists coming to Moree and the LGA generally, nor evidence as to likely quantifiable increases in employment opportunities. Having said that, I am prepared to accept that there may be some increase in jobs for the area in servicing the bottle shop, but this is quite minor, such as deliveries to the site and the employment of staff.

54. Further, I do not consider there to be evidence that would lead me to the view that granting the licence would provide employment in or other opportunities for the live music industry, the arts sector, the tourism sector and the community or cultural sector: per s 45(7) of the Act.

The Applicant will provide "competitive prices", i.e. reduced or lower prices

55. In its submissions of 4 June 2024 the Applicant referred to an alleged monopoly of the hotels in Moree, and that two hotels had closed, thereby leaving patrons with less choice. Mr Gill said that two of the hotels had drive-through liquor stores. Mr Gill said that there were two stand alone bottle shops “in the whole area” (Liquorland and BWS) but that there were at least 19 other outlets from which alcohol could be bought online. He also said that restaurants could sell opened liquor to take away.

56. The Respondent acknowledged that there may be some community benefit to more convenient access to alcohol at "competitive prices", and that the development of the shop may provide some economic benefit to the area and provide employment opportunities and I accept that to be a factor in favour of the proposed bottle shop, although I observe that the number of alcohol outlets in Moree and the LGA is higher than the NSW average.

55. I accept too, the general principle that, in any industry, as the numbers of services approaches a monopoly there is likely to be unwelcome effects on pricing. Similarly, at least in theory, the more competition, the greater the likelihood of prices being driven down. The Applicant’s submission however is flawed in that it suggests that low alcohol prices are always desirable, and overlooks the likely social impact of the greater access because of low prices, for the reasons given by Dr Stubbs.

The Applicant intends to work with the community

58. It was unclear to what the Applicant referred in making this submission, but, it expresses a responsible approach to the provision of alcohol, especially in circumstances, as outlined by Dr Stubbs, that the local community may be subject to higher crime and health issues than the overall community. I accept this, as far as it goes, to be a positive factor in the application.

59. The Respondent submitted that there is a fundamental difficulty in that a licensee is unable to control what happens after the alcohol is purchased. The Applicant offered, for example, to reduce the risk of harm by not providing a same day delivery service, and to set limits to the quantities sold to an individual customer. The Respondent observed that it is in the nature of a bottle shop that it is immediately accessible, unlike on-line orders, whether same-day delivery or otherwise. Mr Gill submitted that there was unlikely to be the level of spontaneity the Respondent suggested. I accept that some accessibility concerns are addressed by the Applicant not providing a same day delivery service and limiting (albeit unspecified) the quantities sold to an individual customer. However, I reject the Applicant’s contention that the proposed bottle shop militates against impulsiveness; the great attraction of a bottle shop is its convenience.

The Applicant is prepared to consider other opening times and conditions

60. The Applicant also referred to a recent application which was approved by the Respondent, subject to conditions. I observe however that that matter referred to a licence for “on-premises” liquor licence. I also observe that the premises were located on the northern side of Moree (where, according to Dr Stubbs, there is less crime) and over 1 km from the Applicant’s proposed bottle shop. In any event, each application is to be considered on its merits and I do not have such further information before me that might lead me to a view of some inconsistency in approach, as the Applicant had submitted.

61. I discussed with the parties whether, if the Applicant’s business model permitted significantly reduced opening hours, the concerns evidenced by the Stubbs Report could be overcome. The Respondent’s position was that, even with significantly reduced opening hours, or the imposition of conditions, the concerns were so fundamental that they could not be cured by limiting the bottle shop’s trading hours. I consider that the views of Dr Stubbs support this conclusion.

Petition

62. The Applicant provided evidence of an online petition with approximately 50 people recorded as being in favour of the proposal. Obtaining the views of the local or broader community is a difficult task, and recourse to petitions can be a fraught and unreliable exercise: see, for example, the Tribunal’s observations in Adamson at [30]-[35]. There was no evidence as to how the survey, with its very small number of participants, was conducted. The majority of participants were not local to the area - from Sydney, Adelaide, Melbourne, Hobart, Wurtulla QLD, Canberra and Brisbane, (among others), and there was no evidence that the petition was circulated in the community. It cannot be said that the petition evidences the views of the local community. Accordingly, I give this material only limited weight: see North Coast Property Holdings Ply Ltd v Independent Liquor and Gaining Authority [2024] NSWCATAD 98 at [35]-[36].

Views of Police

63. It is observed that the Police had no objection to the application. I note however that the Police appear to have based that view on the fact that checks had been made on the proposed licensee and anticipated that there would be some (unspecified) conditions attached to the licence. As discussed at the hearing, the person responding on behalf of the Police was a junior officer stationed in Armidale – some 250 kms away. If crime in the relevant area is as identified in the objective data referred to in the Stubbs Report, and that there is a link between crime and alcohol is as concluded, then it seems almost bizarre that Police, who have the role of dealing with that crime should elect to have what is minimal input into the application and chose not to make any meaningful comment with respect to the application. It seems to me that this is entirely unhelpful to any consideration of the overall social impact test. Even the Applicant acknowledged Police in the area are under-resourced.

Conclusion

64. For the reasons discussed above, I find the benefits suggested by the Applicant do not outweigh the serious harms and risks of the proposed application. There was probative evidence of risks in relation to socio-economic, health and crime characteristics, including data in the updated harm minimisation and community impact data report as well as the Stubbs Report as to the range of characteristics making the local and broader community more likely to experience alcohol-related harm (cf Smith).

65. In my view each of the socio-economic disadvantage, health and crime indicators and risks identified by Dr Stubbs is sufficient for me to conclude that the social impact test under s 48(5) is not met. Further, if taken together, necessarily, I am not able to reach the state of satisfaction required by s 48(5) of the Act.

66. For these reasons I am not satisfied that the overall social impact of the licence will not be detrimental to the well-being of the local or broader community: s 48(5) of the Act.

DECISION

67. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 October 2024