DK Retail Management Pty Ltd v Independent Liquor and Gaming Authority

[2025] NSWCATAD 68

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DK Retail Management Pty Ltd v Independent Liquor and Gaming Authority [2025] NSWCATAD 68

Hearing dates:

14 and 15 October 2024, submissions 13 December 2024

Date of orders:

19 March 2025

Decision date:

19 March 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Robinson, Principal 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:

Administrative Decisions Review Act 1997

Gaming and Liquor Administration Act 2007

Gaming and Liquor Administration Regulation 2024

Liquor Act 2007

Cases Cited:

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

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

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

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

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

Ice Box Liquor Pty Ltd v Independent Liquor & Gaming Authority [2024] NSWCATAD 180

Lang v The Queen [2023] HCA 29

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240

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

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

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

Donnelly N et al (2014) “The effect of liquor licence concentrations in local areas on rates of assault in New South Wales” Crime and Justice Bulletin No 181

Independent Liquor and Gaming Authority GL4010 - Guideline 6, Consideration of Social Impact under s 48(5) of the Liquor Act 2007, 13 October 2021

Liang W & Chikritzhs T (2011) “Revealing the link between licensed outlets and violence: Counting venues versus measuring alcohol availability” Drug and Alcohol Review, 30(5), 524-535

Livingston M (2008a) “A longitudinal analysis of alcohol outlet density and assault” Alcoholism: Clinical and Experimental Research, 32(6), 1074-1079

Livingston M (2008b). “Alcohol outlet density and assault: A spatial analysis” Addiction, 103(4), 619-628

Livingston M (2010) “The ecology of domestic violence: the role of alcohol outlet density” Geospatial Health, 5(1) 139-149

Livingston M (2011a) “A longitudinal analysis of alcohol outlet density and domestic violence” Addiction, 106(5), 919-25

Livingston M (2011b) “Alcohol outlet density and harm: Comparing the impacts on violence and chronic harms” Drug and Alcohol Review, 30(5), 515-523

Livingston M et al (2016) “Evidence Check, Community impact of liquor licences” A rapid review brokered by the Sax Institute for the NSW Ministry of Health”.

Loxley W et al (2004) “The prevention of substance use, risk and harm in Australia: A review of the evidence” The National Drug Research Institute and the Centre for Adolescent Health

Morrison C et al (2015) “Social disadvantage and exposure to lower priced alcohol in off‐premise outlets” Drug and Alcohol Review, 34(4), 375-378

Morrison C et al (2016) “Relating off‐premises alcohol outlet density to intentional and unintentional injuries” Addiction, 111(1), 56-64

Roche A et al (2015) “Evidence review: The social determinants of inequalities in alcohol consumption and alcohol-related health outcomes” NCETA Flinders University for VicHealth

Scott D et al (2021) “Alcohol accessibility and family violence-related ambulance attendances” Journal of Interpersonal Violence, 37(13-14).

Category:

Principal judgment

Parties:

DK Retail Management Pty Ltd (Applicant)
Independent Liquor and Gaming Authority (Respondent)

Representation:

Counsel:
M Heath (Applicant)
Z Heger SC (Respondent)

Solicitors:
Rankin Ellison Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/00131019

Publication restriction:

Nil

REASONS FOR DECISION

1. The Applicant, DK Retail Management Pty Ltd, seeks review of a decision of the Independent Liquor and Gaming Authority to refuse a packaged liquor licence under s 45 of the Liquor Act 2007. The Applicant operates a supermarket in Weston NSW and proposes to sell packed liquor from within the supermarket.

2. The Applicant lodged its application for a licence on 16 November 2023. The Authority refused the licence application on 21 February 2024 and provided reasons dated 11 March 2024. The Authority refused the licence application on the basis that the social impact of approving the application may be detrimental to the well-being of the local or broader community.

3. The application for review was lodged with the Tribunal on 9 April 2024.

Material before the Tribunal

4. The application for review attaching the reasons for the Authority’s decision and a document outlining the Applicant’s initial grounds for review was before the Tribunal.

5. The Applicant provided an affidavit of Mr Dhaliwal, son of the sole director of the applicant company who manages the supermarket, with attachments, a report and supplementary report each from Dr R Berg, Mr G Smith, Mr A Purcell and Mr P Paroz, a 2018 Cessnock local health report, and a delivery plan of the Department of Enterprise, Investment and Trade, as well as written submissions and speaking notes to the Tribunal and the Authority.

6. The Authority provided a bundle of documents filed under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act), an affidavit and report of Dr J Stubbs, a document of correspondence with the Bureau of Crime Statistics and Research, a document of certain data, a transcript of a conversation between Dr Stubbs and a community organisation of 19 August 2024, a report of a site visit conducted on 11 October 2024 and a document of data analysis by J Storer further to a document attached to the affidavit of Dr Stubbs, as well as written submissions to the Applicant and the Tribunal.

7. A bundle of academic and research papers was also before the Tribunal.

8. The expert witnesses, except Mr Paroz, gave concurrent evidence at the hearing. Mr Dahliwal also gave oral evidence and was cross examined at the hearing.

9. Following the hearing, while the decision was reserved, the parties drew the attention of the Tribunal to a decision of the Appeal Panel in Narraport Woollahra Holdings Pty Ltd v Ice Box Liquor Pty Ltd [2024] NSWCATAP 240 of 22 November 2024. The Tribunal provided an opportunity for the parties to provide submissions as to any consequences of that decision affecting this review. The Applicant provided further written submissions on 13 December 2024 and the Authority also provided further written submissions on 13 December 2024.

Applicant’s case

10. The Applicant submits the information relied on by the Authority in making the decision was, and before the Tribunal is, sufficient for the Tribunal to be actually satisfied that the overall impact of granting the licence will not be detrimental to the well-being of the local or broader community.

11. The Applicant submits the lack of objection from relevant stakeholders including the local police, the local council and many community members is relevant and compelling, citing the particular support of a long term local resident, councillor and health advisory committee member.

12. The Applicant invited the Tribunal to consider imposing additional licence conditions to restrict the sale of liquor hours in the supermarket to match the opening hours of the Icebox Liquor shop in Weston, namely 9:00am to 8:00pm Monday to Saturday and 10:00am to 7:00pm on Sunday.

Respondent’s case

13. The Authority submits that the correct and preferable decision is to affirm the decision to refuse the licence because, on the basis of the evidence including research, the Tribunal cannot be satisfied the overall impact of granting the licence application will not be detrimental to the well-being of the local or broader community.

14. This is because, the Authority submits, granting of the licence would lead to increased consumption of alcohol resulting in detrimental social impact to both Weston and to the Cessnock local government area.

Role of the Tribunal

Jurisdiction

15. The Tribunal has jurisdiction to review an administratively reviewable decision: ss 7, 9 and 55 of the Administrative Decisions Review Act 1997 (ADR Act). Section 13A of the Gaming and Liquor Administration Act 2007 and cl 4(a)(iv) of the Gaming and Liquor Administration Regulation 2024 operate to provide that applications may be made to the Tribunal for administrative review of a decision to refuse an application for a packaged liquor licence. The Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

16. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.

Relevant Legislation

17. Amendments were made to the Liquor Act following the refusal decision of the Authority and before the Tribunal hearing in this review. Both parties submitted that the relevant law to apply in this review is the law applying when the Authority made its decision to refuse the application for a licence.

18. The legislative change and its impact on Tribunal proceedings was addressed by the Tribunal in Australian Regional Group Pty Ltd v Independent Liquor and Gaming Authority [2024] NSWCATAD 305 at [5]-[9] where the Appeal Panel decision of Commissioner for Fair Trading, Department of Customer Service (NSW) v Kalkan [2022] NSWCATAP 112 was considered. I agree that given the lack of transitional provisions in the amending legislation and the different statutory context, Kalkan can also be distinguished in this review. Further, I also accept the submissions of the parties that to apply the later legislative framework could lead to absurdity and prejudice to an applicant because the material required to be attached to a licence application under the new scheme is not the same material as under the previous legislative framework.

19. The relevant legislative scheme in this review is therefore the scheme applying at the time of the Authority’s refusal decision.

20. Relevantly, section 3 of the Liquor Act at the time provided:

(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.

21. Section 48 of the Liquor Act relevantly provided:

48   Community impact

(1)  The object of this section is to facilitate the consideration by the Authority of the impact that the granting of certain licences, authorisations or approvals will have on the local community, in particular by providing a process in which the Authority is made aware of—

(a)  the views of the local community, and

(b)  the results of any discussions between the applicant and the local community about the issues and concerns that the local community may have in relation to the application, and

(c)  whether the granting of the application would provide employment in, or other opportunities for, any of the following—

(i)  the live music industry,

(ii)  the arts sector,

(iii)  the tourism sector,

(iv)  community or cultural sector.

(2)  In this section—

relevant application means any of the following—

(a)  an application for a hotel licence, club licence, small bar licence or packaged liquor licence,

…

(5)  The Authority must not grant a licence, authorisation or approval to which a relevant application relates unless the Authority is satisfied, after having regard to—

(a)  the community impact statement provided with the application, and

(a1)  any published cumulative impact assessment that applies to the area in which the premises the subject of the application are located, and

(b)  any other matter the Authority is made aware of during the application process (such as by way of reports or submissions),

that the overall social impact of the licence, authorisation or approval being granted will not be detrimental to the well-being of the local or broader community.

Consideration

Issue to be determined

22. To grant a licence the Tribunal must be satisfied, on the material before it, that the overall social impact of granting the licence will not be detrimental to the well-being of the local or broader community: see s 48(5) of the Liquor Act. As observed in Bun v Independent Liquor and Gaming Authority [2020] NSWCATAD 60 at [73] “the Tribunal must be actually satisfied that the overall social impact of the proposal will not be detrimental”.

23. Neither party bears a legal burden of proof in this review: see Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 at [25]. However, the Applicant bears a practical burden to provide sufficient evidence to demonstrate the social impact will not be detrimental to the well-being of the local or broader community: see ALDI Foods v Independent Liquor and Gaming Authority [2019] NSWCATAD 43 at [88].

24. As set out by the Appel Panel in Narraport at [51]-[53]:

The statutory question – whether the social impact of the licence will not be detrimental to the well-being of the community – requires an overall assessment of the social impact of the licence. This, first, requires the Tribunal to determine various "benefits and disbenefits" (borrowing the words of Kirby J in Ballesty & Anor v Director of Liquor & Gaming & Ors [2002] NSWSC 1102 at [130], concerning gaming machines). Put another way, the positive and negative effects of the licence on the local and broader community.

Next, the Tribunal must evaluate or weigh up all the positive and negative factors, in order to reach a conclusion (if possible) on whether, overall, there will be a negative social impact from the licence. For there to be a favourable result for the licence applicant, the Tribunal must arrive at a positive satisfaction that there will be no detrimental social impact. As noted in Ballesty & Anor v Director of Liquor & Gaming & Ors [2002] NSWSC 1102 (at [130]) where there was a similar process, this would be regarded as a matter of evaluation and a question of fact. See too, Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 at [20].

This process does not involve the exercise of a discretion; it is not a case where there may be more than one legally correct answer. The statutory question attracts the “correctness standard”: GLJ v The Trustees [2023] HCA 32 at [15]–[16].

25. Further, Narraport is relevant authority that:

1. The Tribunal is to assess the beneficial and detrimental impacts arising from the grant of the particular licence (at [219]);

2. In weighing up the risks of detrimental impacts, if there is a possibility of increased risk of harm, unless it is merely fanciful or negligible, it is required to be taken into account (at [125)];

3. The Tribunal is to have regard to community expectations, aspirations and effect on amenity of community life (at [170]); and

4. Findings are not made on the balance of probabilities (at [129]).

26. A Guideline has been published by the Authority that explains the procedure and the considerations relevant to its decision making - Guideline 6, Consideration of Social Impact under s 48(5) of the Liquor Act 2007. Guideline 6 sets out information required in relation to a licence and matters that that mustbeconsidered in determining whether the overall social impact of the licence will not be detrimental to the well-being of the local or broader community. While 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], the Tribunal may have regard to Guideline 6 under s 64(4) of the ADR Act: see ALDI at [16]; see also Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 26 at [44]-[45].

Applicant’s history and Weston

27. It is agreed the local community is Weston and the broader community is the Cessnock local government area.

28. The Applicant has operated a FoodWorks supermarket in Weston since 22 May 2024. The supermarket is open from 7:00am to 9:00pm but has approval to open from 6:00am.

29. The Applicant proposes to sell packaged liquor from the supermarket premises via a dedicated checkout lane staffed by people qualified in the responsible service of alcohol. The liquor is proposed to be located in an area behind clear plastic doors and in a cool room connecting to the area.

30. The Applicant’s supermarket is within a residential zone near the commercial precinct of Weston and is 230m from the Criterion Hotel. The hotel is open 10:00am – 3:00am Monday to Saturday and 10:00am – midnight on Sunday. The hotel has a hotel licence and also sells packaged liquor.

31. The supermarket is 350m, in the same direction as the hotel, from IceBox Liquor that sells packed liquor and is open from 9:00am to 8:00pm Monday to Saturday and 10:00am to 7:00pm on Sunday.

32. Two other premises in Weston hold liquor licences, the Aberdare Hotel that does not currently operate and the Western District Workers’ Co-operative Club that has a club licence.

33. Weston is in the most disadvantaged 7% of areas in Australia for the SEIFA Disadvantage indicator, is in the most disadvantaged 2% of areas in Australia for the SEIFA Education and Occupation indicator, and is in the most disadvantaged 24% of areas in Australia for the SEIFA Economic Resources indicator.

34. Weston has a substantially higher than average rate of Aboriginal people, with 11% of the population in Weston identifying as Aboriginal compared to the average of 3.4% in New South Wales. Weston also has a substantially higher than average rate of people who are unemployed, who left school before completing year 10 with no post-secondary qualifications, of young people aged 15 to 29 years, of sole parent families, and people who are separated, divorced or widowed.

Relevant Research

35. The Tribunal was provided with a considerable body of academic research and articles on which a large part of the expert evidence was based. A number of the articles are referenced and summarised at a high level in Guideline 6. Of particular relevance in this review are the following relevant key findings in the following articles:

1. Donnelly N et al (2014) “The effect of liquor licence concentrations in local areas on rates of assault in New South Wales” Crime and Justice Bulletin No 181. This paper was revised in 2023. Findings include that there is a correlation between packaged liquor licences and assault rates at the local government level. The upturn of the risk occurs most steeply for packaged liquor licences when the concentration exceeds 0.75 per 1000 population. 

2. Liang W & Chikritzhs T (2011) “Revealing the link between licensed outlets and violence: Counting venues versus measuring alcohol availability” Drug and Alcohol Review, 30(5), 524-535. Includes a finding that the higher the amount of alcohol sold from off-site outlets, the greater the risk of assault within the relevant local government area.

3. Livingston M (2008a) “A longitudinal analysis of alcohol outlet density and assault” Alcoholism: Clinical and Experimental Research, 32(6), 1074-1079. Findings include that changes in the number of alcohol outlets in a community are linked to changes in the amount of violence the community experiences.

4. Livingston M (2008b). “Alcohol outlet density and assault: A spatial analysis” Addiction, 103(4), 619-628. Findings include that greater outlet density is associated with greater assault rates.

5. Livingston M (2010) “The ecology of domestic violence: the role of alcohol outlet density” Geospatial Health, 5(1) 139-149. This research found that the density of packaged liquor outlets was not associated with rates of domestic violence. However, this was contradicted by subsequent studies including Livingston (2011a) as detailed below.

6. Livingston M (2011a) “A longitudinal analysis of alcohol outlet density and domestic violence” Addiction, 106(5), 919-25. Includes a finding of a positive relationship between alcohol outlet-density and domestic violence. The effects were particularly large for packaged liquor outlets.

7. Livingston M (2011b) “Alcohol outlet density and harm: Comparing the impacts on violence and chronic harms” Drug and Alcohol Review, 30(5), 515-523. Findings include that the density of off premises alcohol outlets is related to the rate of alcohol use disorders.

8. Livingston M et al (2016) “Evidence Check, Community impact of liquor licences” A rapid review brokered by the Sax Institute for the NSW Ministry of Health”. Findings include that higher outlet density is associated with greater alcohol-related harms.

9. Loxley W et al (2004) “The prevention of substance use, risk and harm in Australia: A review of the evidence” The National Drug Research Institute and the Centre for Adolescent Health. Includes a finding of a clear relationship between alcohol and other drug use and social factors, such as unemployment, low income and insecure housing.

10. Morrison C et al (2015) “Social disadvantage and exposure to lower priced alcohol in off‐premise outlets” Drug and Alcohol Review, 34(4), 375-378. Findings include that disadvantaged populations are exposed to more outlets, and the outlets to which they are exposed sell cheaper alcohol.

11. Morrison C et al (2016) “Relating off‐premises alcohol outlet density to intentional and unintentional injuries” Addiction, 111(1), 56-64. Findings include that greater off-premises outlet density is related to greater incidence of traumatic injury.

12. Roche A et al (2015) “Evidence review: The social determinants of inequalities in alcohol consumption and alcohol-related health outcomes” NCETA Flinders University for VicHealth. Findings included that generally lower socio-economic groups experience higher level of alcohol-related harm than wealthier groups with the same levels of alcohol consumption. Further, where several forms of socioeconomic disadvantage apply, the inequities in alcohol-related harm are exacerbated.

13. Scott D et al (2021) “Alcohol accessibility and family violence-related ambulance attendances” Journal of Interpersonal Violence, 37(13-14). Findings include that easier access to a liquor outlet is associated with greater domestic violence-related ambulance attendances for packaged outlets.

Expert and related evidence

Dr Berg

36. Dr Berg holds qualifications and has experience in social impact assessment. I accept Dr Berg is an expert witness in relation to social impact. It is Dr Berg’s opinion that grant of the licence will not result in any “significant” increase in alcohol related harm. Further, in Dr Berg’s opinion grant of the licence will benefit customers of the supermarket, providing convenience because alcohol can be purchased when groceries are purchased and making it easier for customers who might be intimidated by entering a hotel, particularly those alone, to buy alcohol.

37. In her first report, Dr Berg disputed the definition of local community and broader community that is now accepted by the parties, instead she considered that the relevant community was those who shop at the supermarket and/or live nearby. Dr Berg also relied in part on the observation of Mr Smith regarding the wrongly described “medical facility for the terminally ill” which is in fact an aged care facility, that it was “not remarkable” that the Cessnock local government area has a higher rate of alcohol death than NSW because of the presence of the facility in the area: see [47] below. Further, Dr Berg compared Pokolbin as another suburb of Cessnock which is a known wine tourist region and is therefore not an equivalent comparison for packaged liquor licences when considering Weston’s density factor. On that basis the opinions in Dr Berg’s first report should be treated with some caution.

Mr Purcell

38. Mr Purcell is a former police officer who retired in 2008 and spent some during his career in leadership of licensing units within the NSW Police. He now works as a consultant in the area of “liquor compliance”.

39. While Mr Purcell participated in the concurrent evidence of the hearing, I do not consider Mr Purcell’s whole evidence to be expert evidence because I am not satisfied he has demonstrated the three fundamental requirements of expert evidence, namely: it must identify an accepted field of expertise held that can be applied to the facts; it must identify a factual basis for the opinion in the admissible evidence; and it must expose how the expertise is the substantial basis connecting the factual basis to the opinion: see Lang v The Queen [2023] HCA 29 (at [223]) citing with approval Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. This impacts the weight that can be given to Mr Purcell’s evidence. This was also previously the case in previous decisions the Tribunal was referred to by the Authority: see Ice Box Liquor Pty Ltd v Independent Liquor & Gaming Authority [2024] NSWCATAD 180 at [41] and Adamson v Independent Liquor and Gaming Authority [2022] NSWCATAD 394.

40. While I accept Mr Purcell as a former police officer may have some expertise on matters such as the likelihood of theft as a result of arrangements within the supermarket, Mr Purcell has no demonstrated expertise or qualifications in assessment of social impact. Therefore, for example, his assumptions as to the likely buying habits of the general population leading to his opinion that the Ice Box outlet and the supermarket can coexist if the supermarket has a licence to sell packed liquor, or how people would chose to buy liquor if the Aberdare Hotel became operational, cannot be given weight. For the same reasons the Tribunal cannot give weight to his opinion that grant of the licence “will not impact on health, community, support and emergency services in the Cessnock LGA at all.”

41. Mr Purcell’s second report essentially disputes many of the findings of Dr Stubbs including the interpretation of crime statistics, particularly crime rates and crime hotspots. Given the disparity in their experience and qualifications, I prefer the evidence of Dr Stubbs. Further in oral evidence Dr Stubbs explained that crime rates examined over a period of 12 years had the potential to demonstrate trends and is further discussed below (at [73]-[74]).

Mr Smith

42. Mr Smith has qualifications and experience in town planning. Mr Smith’s first report concluded:

I am firmly of the opinion that granting a packaged liquor licence…would not result in any appreciable increase in the existing levels of alcohol related harms either in Weston or the Cessnock LGA

43. This opinion appears to be, in part, based on unspecified investigations on the grant of packaged liquor licences Mr Smith conducted but that did not result in any published research because, Mr Smith says, he retired. On that basis, I consider that the concluding opinion expressed in his first report is speculative and I cannot place weight on it.

44. Mr Smith’s second report concluded:

In my opinion, Dr Stubbs’ report concentrates on all the potential adverse impacts of granting the ….application and, if anything, tends to exaggerate them. In my opinion, there is unlikely to be any appreciable increase in alcohol-related problems in Weston if the application is granted.

45. For the reasons set out below beginning at [50] I prefer the evidence of Dr Stubbs. I do not accept there was any exaggeration in her evidence.

46. In his second report Mr Smith also criticised both Dr Berg and Dr Stubbs for not referring to an article which the authors themselves identified needed to be treated with caution because of a number of specified factors.

47. Mr Smith’s evidence in general does not set out the basis upon which his opinions were formed and I find in many several respects his opinions are speculative. For example, in addition to the issue discussed at [43] above, Mr Smith’s evidence as to the effect of a particular facility on health impacts within the relevant area did not have a factual basis, as was clarified during the concurrent oral evidence. The premises he described as a facility for terminally ill is an aged care facility. It was agreed it was not a dedicated palliative care or alcohol related facility. Mr Smith’s speculative assertions as to the facility’s impact on the rate of alcohol death on the relevant communities therefore cannot be given weight and in all the circumstances I consider his evidence should be treated with caution.

Mr Paroz

48. A former police officer, Mr Paroz’s written evidence concluded that approval of the licence had a low risk of contributing to alcohol related crime incidents for both the local and broader community, namely Weston and the Cessnock local government area. Mr Paroz disagreed with several of Dr Stubb’s conclusions, including as to the crime statistics, on the basis the statistics for Weston were very small and that under reporting of domestic and family violence was improving.

49. Mr Paroz was not made available for cross examination, therefore the Tribunal can only attribute limited weight to his written evidence. Further, for the reasons set out below, the Tribunal prefers the expert evidence of Dr Stubbs regarding the issue of social impact.

Dr Stubbs

50. Dr Stubbs provided a social impact assessment report containing a detailed curriculum vitae attached outlining her extensive expertise across social research and assessing social and economic impacts. Her report contained extensive footnotes and referred to many independent and objective sources.  I accept Dr Stubbs as providing expert evidence in relation to the likely overall social impact of the granting of the licence. 

51. Dr Stubbs’ evidence is that grant of the licence is likely to result in a significant increase in alcohol related harm in the local community (exhibit R2 p18), her report conclusions, maintained in her oral evidence, were that grant of the licence will be detrimental to the local community of Weston, particularly to vulnerable groups in that community and with flow on adverse impacts to the Cessnock local government area (exhibit R2 p23).

52. The Applicant submitted Dr Stubbs had a hint of advocacy in her approach to her evidence. I do not accept that submission. In giving evidence Dr Stubbs clearly outlined the evidence and experience on which her opinions were based and I find her to be a candid and careful expert and her evidence to be comprehensive and deeply considered.

53. The Applicant contended that Dr Stubbs’ opinions were speculative as to what may occur if packaged liquor was sold at the supermarket. I also reject this criticism. Dr Stubbs has set out her findings in a considered way and those findings are based on scientific data and research.

54. The evidence of Dr Stubbs was in contrast to some evidence of Dr Berg, who asserted particular behaviour was likely to occur without identifying the objective evidential basis on which the assertion was made, instead referring to her own personal habits. For example, when asked about the potential for increased alcohol purchases to occur as a result of discounting with a potential consequence of increased alcohol consumption, Dr Berg referred to her own habits of consumption when asserting buying more alcohol was not likely to increase how much a person would consume.

55. In all the circumstances, where there is disagreement between Dr Stubbs and Dr Berg, I prefer the evidence of Dr Stubbs.

56. The Applicant further submitted the Tribunal should be cautious about the totality of Dr Stubbs’ evidence because of her failure to specifically cite Livingston (2010) and because she did not also speak to the police or any health authority or any local councillor, particularly a local councillor who provided a submission in support of the supermarket, in preparing her report.

57. I consider Dr Stubbs report to be comprehensive and accept her explanation that it was not necessary to cite every study in the field. Dr Stubbs in giving oral evidence at the hearing clearly explained her consideration of the relevant literature as set out in her comprehensive report. I am also not satisfied it was necessary for Dr Stubbs to have engagement with the people described above further than considering their submissions already provided in the material she was provided with. In any case, if the failure to speak to the people described above was a valid criticism of Dr Stubbs, it should equally be made of the applicant’s experts.

58. Further, I am satisfied Dr Stubbs approached Barkuma Neighbourhood Centre (Barkuma) to seek verification and validation of the conclusions she had made, and when such verification came after preparation of her report, it was not necessary to amend the report because no changes were necessary. Dr Stubb’s evidence was that she approached Barkuma as the largest community support organisation for Aboriginal people in the area and I am satisfied she was not being negatively “selective” as to who she spoke to.

59. For the reasons identified above I remain satisfied of the expertise of Dr Stubbs and I prefer her expert evidence where there is inconsistency between the experts.

Co-location with the only supermarket in the area

60. Dr Stubbs provided case studies based on her experience, the literature and the submission of Barkuma to practically illustrate how a range of factors can interact to increase alcohol related harm in Weston as a result of the grant of the licence. Of particular concern to Barkuma was the co-location packaged alcohol in the only supermarket in Weston. In all the other licenced premises in Weston, people specifically attend to buy alcohol, whereas there could be a temptation to buy alcohol when doing grocery shopping.

61. I accept the evidence of Dr Stubbs, based on her experience and supported by the submission of Barkuma, that day to day exposure is more difficult to resist for those trying to avoid alcohol. Going to a pub or a separate liquor outlet involves a conscious choice to be exposed to alcohol. That is very different to going into the supermarket to buy bread and milk and being exposed to opportunistic purchase of alcohol which can then lead to alcohol related harm including domestic violence.

62. I am also satisfied on the material before the Tribunal that children and young people are at increased risk of earlier drinking through increased visibility, casual interaction and normalisation of alcohol which can occur as a result of the co-location of alcohol in a supermarket.

Application of the research

63. The Applicant submitted there were limitations on the published research that should be of concern to the Tribunal and noted the lack of specific studies regarding Weston. The Applicant’s submissions effectively asked the Tribunal to consider any potential gaps in evidence to its benefit, criticising the Authority’s evidence as lacking specific studies on the impact of alcohol consumption on the particular communities at issue in this review.

64. However, as set out in ALDI, it is the Applicant who bears the practical burden of providing sufficient evidence that the Tribunal can be positively satisfied that there will not be detrimental social impact to Weston, or to the Cessnock local government area if the licence were granted. An absence of evidence does not necessarily result in a conclusion there is no detriment.

65. In any event, in this review on the material before the Tribunal, I am unable to come to a positive satisfaction that there will be no detriment to Weston and of the Cessnock local government area if a licence were to be granted, as set out below.

Social Impact – consideration of factors

Vulnerability – socio economic disadvantage

66. The communities of Weston and of the Cessnock local government area are vulnerable given the demographic factors described above (at [33]-[34]).

67. I accept the evidence of Dr Stubbs that Weston having a SEIFA Disadvantage indicator of 7% is very low for a whole suburb and given the indicator is an average across the suburb, within Weston there are likely to be pockets of even further disadvantage.

68. On the material before the Tribunal I am satisfied Weston and the Cessnock local government area, as communities of higher than average disadvantage, are more vulnerable to alcohol related harm because they are less likely to have access to protective factors that can reduce the risk of alcohol related harm.

69. Therefore this is a negative factor weighing against grant of the licence.

Health data

70. The Cessnock local government area has poorer health outcomes across a range of indicators than the state average, for example emergency department admissions and higher incidence of certain cancers. I accept the evidence of Dr Stubbs that such outcomes are likely to be relatively poorer for Weston which is more disadvantaged (7% – see [33] above) compared to the Cessnock local government area (25%).

71. The Cessnock local government area has a higher rate of alcohol related deaths than the state average but is lower for alcohol related hospitalisations. I accept the explanation of Dr Stubbs that while people in areas of lower socioeconomic disadvantage are likely to consume more alcohol or to drink at levels of higher risk, those from areas of greater socio economic disadvantage who do drink to excess do so at greater risk to their health because they are likely to have poorer underlying health due to their disadvantage. I also accept the evidence of Dr Stubbs that people in regional areas are more likely to drink at riskier levels than those in metropolitan areas.

72. In all the circumstances therefore, this is a negative factor weighing against grant of the licence.

Crime Data

73. Both Weston and the Cessnock local government area have higher domestic assault rates than the State. Over a 12 year period Weston had double the rate for alcohol related domestic assault than NSW and the Cessnock local government area had 1.4 times the rate of NSW.

74. While I accept the submission of the Applicant that the incidences may be small in number, which can lead to statistical anomalies, I am satisfied given the assessment over a 12 year period that overall Weston and the Cessnock local government area have higher rates of alcohol related domestic assault than the rate of NSW.

73. Dr Stubbs used the expertise of Mr John Storer in preparing some of the data assessment in her report regarding Donnelly 2014 (exhibit R2, Attachment C) and Mr Storer provided an updated assessment (exhibit R6) upon receipt of further data from BOSCAR. The recalculation showed that on one indicator there could be a decrease in domestic related assault in Weston with the addition of one packaged liquor outlet. I accept the evidence of Dr Stubbs, based on the literature as a whole that this conclusion is counter intuitive and likely to be an anomaly as a result of the particular type of analysis used.

74. In any case I am satisfied, based on the literature, research and evidence before the Tribunal, that an increase to the density of packaged liquor outlets in Weston is likely to result in an increase already elevated rates of alcohol related domestic assault in part because a key risk a purchase of the liquor is a person taking it home and then domestic violence occurring in the home.

75. Further, in relation to non-domestic alcohol related assault over a 12 year period, average rates in Weston and the Cessnock local government area are also above the rates for NSW, and the research indicates those rates are likely to be negatively impacted by increased alcohol consumption in those communities.

Hotspots

78. Three high density hotspots (clustering of criminal incidents) for domestic assault were identified in Weston, one located near the Criterion Hotel and IceBox Liquor and two within areas of Weston of particular disadvantage. A medium density hot spot for non-domestic assault is also located near the Criterion Hotel and IceBox Liquor, and a high density hotspot for malicious damage to property is located near the supermarket.

79. While it is possible a hotspot can be misleading because a number of incidents by one person can create a hotspot, there is no evidence before the Tribunal to suggest this is the case for Weston.

80. The presence of domestic assault hotspots in areas of particular disadvantage and other hotspots near the current alcohol outlets indicates a vulnerability of these areas to alcohol related harm.

81. In all the circumstances this is a negative factor that weighs against grant of the licence.

Outlet density and accessibility

82. Interpretation of the study of Donnelly 2014, that found a density factor of 0.75 alcohol selling outlets per 1000 people to be of significance, was a matter of disagreement between the parties and their experts. The study found a strong correlation between liquor licence concentrations and rate of assault for hotel licences and a weaker correlation, but still a correlation for packaged liquor licences.

83. In Weston, if the licence were granted and all the other premises holding liquor licences are in operation, the relevant concentration will be 0.73 outlets per 1000 population.

84. Dr Berg described 0.75 as a “tipping point” whereas Dr Stubbs described it as a “local minima”. In essence, at a density factor of 0.75 or greater, alcohol related harm in the nature of assault increases at a much greater rate. However, this does not mean there is no detrimental impact below that point, that is, a factor of 0.73 is not without risk, nor is it necessarily without detrimental impact.

85. A density factor of 0.73 is still relatively high, being close to 0.75, even allowing for exponential factoring.

86. While I accept the evidence of Dr Berg, considering the Livingston 2010 and 2011 studies, that the impacts of “bottle barns” are vastly different to a small shop in the back of a supermarket and particularly encourage excessive drinking in more vulnerable members of the community because they are often selling more alcohol per dollar, on the material before the Tribunal, it does not follow a smaller supermarket selling liquor in a disadvantaged community will not also result in detrimental impacts in a community.

87. I am satisfied this factor weighs against grant of the licence in part because I am not satisfied there is no detrimental impact where a density factor is below 0.75 outlets per 1000 population.

Price discounting

88. It appears to be agreed that grant of the licence may lead to price discounting due to increased competition in Weston. Mr Smith considered price discounting by the supermarket would only likely occur in the short term and it was more likely IceBox Liquor would discount in the longer term to retain customers.

89. Dr Stubb’s evidence was that price discounting could also be conducted by the supermarket to attract customers to the supermarket including for cross promotional purposes.

90. On the material before the Tribunal, particularly the evidence of Dr Stubbs and the literature, I am satisfied price discounting is likely to result in an increase in alcohol consumption in Weston.

91. Therefore this is a negative factor that weighs against grant of the licence.

Local community views

92. I am required to give due consideration to community views: see Narraport at [173]:

Due consideration must be given to considering the views of the community. Further, as a mandatory consideration, there is no discretion to ignore community views that are not reflective of majority views. 

93. Dr Berg conducted a survey on in June 2024 by letterbox drop and distribution of a questionnaire from the supermarket. There were 76 responses and the results are set out from p 48 of Dr Berg’s first report (exhibit A5). A majority of survey respondents were in favour of sale of alcohol from the supermarket with some hoping for cheaper prices and greater choice and convenience.

94. Twelve submissions were received by the Authority during public consultation about the application for the licence.

95. The licensing supervisor of the local police raised no objection to the granting of the licence with proposed conditions. The local police are located in Cessnock but are responsible for the relevant area. The submission noted the biggest concern of the police was potential for stealing from the supermarket which proposed CCTV requirements in licence conditions would address. Of other notified agencies, the local council and Liquor and Gaming Compliance provided submissions and did not raise any objection.

96. Of nine submissions from the public, four were in support and five were objections. The four submissions in support were from:

1. A long term resident who at the time of the submission also a councillor and was previously a council employee and President of the Weston workers club. The councillor is also a member of the New England Health Advisory Committee. The councillor observed no evidence of antisocial behaviour or crime activities within the local indigenous community, although “there is no doubt issues within other sections of our community” and was supportive of much needed new business that would be “a positive addition to our community”.

2. A lifetime resident and business owner in Weston who observed Weston “rarely” needed to deal with antisocial behaviour as a result of alcohol from the current outlets selling alcohol and was of the view grant of the licence would be a positive enhancement for Weston.

3. The Weston Heritage and Tidy Towns Committee noted the new supermarket with the sale of liquor would be an added convenience and could attract visitors to the area. The committee members who are long term residents had not observed “any significant change in social behaviour as a result of excessive alcohol consumption”.

4. A local resident who was “happy for them to have the liquor licence”.

97. The five objection submissions were from:

1. the Director of Icebox Liquor who raised issues including the potential for increase in crime and other negative impacts within the vulnerable local community, as well as increased concentration of outlets noting the proximity to the Weston IceBox Liquor shop;

2. three local residents who raised concerns relating to street noise and potential to increase already present antisocial behaviour and littering due to increased availability of alcohol; and

3. Barkuma.

98. Barkuma is an organisation located in Kurri Kurri supporting indigenous and non-indigenous members of the local community, including in Weston, providing a wide cross section of support including in relation to housing, social support, employment, education, welfare, health and wellbeing. While supporting the supermarket, Barkuma opposed the grant of the licence because of potential negative community impacts. Barkuma’s concerns included:

1. Alcohol plays a significant role in the community falling into hardship or experiencing family violence, acknowledging it is not the only factor.

2. The more accessible, alcohol, vapes and drugs are in the community, they have observed more misuse of those items, particularly in the youth of the community including those as young as nine years old.

3. Greater availability of alcohol is likely to lead to a greater opportunity for adults to buy alcohol for children.

4. In Barkuma’s experience, via the provision of a family violence program for over 15 years, alcohol abuse is a common issue in family and domestic violence, noting many families do not report family violence due to fear of police or of losing children. Further, temptation at the supermarket when trying to buy essential groceries affects recovery of those who have suffered addiction and already vulnerable families.

99. Considering all the submissions received during public consultation and the survey results, while noting the submissions in favour, overall this is a negative factor weighing against grant of the licence given the concerns detailed in the objection submissions that are consistent with the risk of negative impacts identified in the literature and the evidence of Dr Stubbs.

Appearance of Weston

100. The evidence of Mr Dahliwal was that there was no graffiti or damage to the premises during construction and fit out works that occurred over a year, or in the five months following the supermarket opening. The Applicant submits the lack of graffiti or damage to the premises “does not speak of a violent out of control, high risk damage area”.

101. Mr Purcell visited Weston and gave evidence of his factual observations that the Tribunal may take into account in this review. Mr Purcell’s observations were that the places he visited in Weston did not have visual characteristics of disadvantage.

102. However, while relevant, Mr Purcell’s observations of parts of Weston as a tidy town with facilities maintained in good condition sits in contrast with the data concluding that Weston is an area of disadvantage that contains vulnerable populations. Mr Purcell’s observations are also, in part different to the observations of Dr Stubbs who conducted a site visit of parts of Weston in October 2024. Dr Stubbs observed significant amounts of graffiti and evidence of malicious damage to public places including parks as well as a cross section of housing, including a number of dwellings in significant disrepair.

103. Further, while visual appearance may provide some indication of relative prosperity and character of an area, I remain satisfied for the reasons set out above (at [67]-[68]) that Weston is a vulnerable community subject to socio-economic disadvantage.

104. To the extent it is relevant, I am satisfied there are parts of Weston that are well maintained in good condition and parts that are not. On that basis, I consider this to be a neutral factor.

Convenience and choice

105. A positive factor that weighs in favour of the licence is the creation of a one stop shopping experience. With 15% of the population of Weston over 65 there is further advantage to that segment of the population in being able to access packaged liquor while buying their groceries, particularly with the significant security monitoring at the supermarket.

106. A further positive factor weighing in favour of the licence is the increased choice for customers in the area, in addition to the IceBox Liquor shop and takeaway sales from the Criterion Hotel.

Employment opportunities

107. The Applicant’s development application submission provided the development (the supermarket as proposed) would result in the creation of a certain number of jobs. However, at the hearing in this review it was unable to be clarified how many of those staff were additional as a result of the grant of a licence as opposed to those already in place to support the current operation of the supermarket without liquor sales.

108. Mr Dhaliwal’s’ evidence was that he had been trained in responsible service of alcohol and some of his other staff would receive that training so that an appropriately trained staff member was always available to operate the dedicated liquor checkout in the supermarket during operating hours for liquor sales.

109. I therefore accept there will be some increase to employment in the community as a result of the grant of a licence and this is a positive factor that weighs in favour of the grant of a licence.

Other factors

110. The Applicant provided a copy of a masterplan for the Weston Commercial Centre which was likely created after 2017. The plan referred to Weston as entering a “period of renewal and growth” and I am satisfied likely population growth in the area creates demand for packaged liquor and is a positive factor weighing in favour of granting a licence.

111. The Applicant also provided a copy of a 2018 Cessnock Local Health Report. The document is in the nature of a community newsletter reporting on activities undertaken by local health services including hospitals in 2018. Given the age and generality of the document, it is of low relevance to this review.

112. The grant of a development consent occurs under a different statutory regime and the material before the Tribunal may not necessarily be the material before the local council. I consider the development consent for the supermarket granted by the local council to be a neutral factor.

Weighing of factors

113. I consider the negative factors identified that weigh against the grant of the licence greatly outweigh the positive factors identified in favour of granting the licence.

114. I am satisfied on the basis of the material before the Tribunal, including the research and the evidence of Dr Stubbs, that there are likely to be elevated risks of alcohol related harm, including in relation to health indicators and crime rates, including a result of increased risk of domestic and family violence, within the context of the socio-economic disadvantage that applies to Weston if the licence is granted.

115. Therefore I am unable to reach a positive satisfaction that grant of the licence will not be detrimental to the well-being of the local or broader community.

Conditions

116. I do not consider the condition proposed by the applicant to restrict the sale of liquor hours in the supermarket to match the opening hours of the Icebox Liquor shop in Weston alters my finding based on balancing of relevant factors that I am not satisfied grant of the licence will not be detrimental to the well-being of the local or broader community. On the material before the Tribunal, I cannot be satisfied a restriction of hours of sale would reduce the risk to the local or broader community of alcohol related harm to a level that would not result in detriment.

Conclusion

117. In all the circumstances and on the material before the Tribunal, I cannot be positively satisfied that the overall social impact of granting the licence will not be detrimental to the well-being of the local or broader community under s 48(5) of the Liquor Act.

118. Therefore, the correct and preferable decision is to refuse the licence application.

119. It follows that the Authority’s decision should be affirmed.

Order

1. 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: 19 March 2025