Dunpec Pty Ltd and Department of Infrastructure and Transport
[2012] AATA 132
•1 March 2012
[2012] AATA 132
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2512
Re
Dunpec Pty Ltd
APPLICANT
And
Department of Infrastructure and Transport
RESPONDENT
DECISION
Tribunal Deputy President R P Handley
Date 1 March 2012 Place Sydney Decision Summary:
The Tribunal sets aside the decision under review and substitutes a new decision that Dunpec Pty Ltd be granted a general liquor licence in respect of the premises of Khan’s Supa IGA at Birdwood Road, Georges Hall, NSW, subject to the following conditions:
(1) No signage is to be placed on the exterior Western wall of the supermarket building.
(2) Deliveries of liquor are not to be made to any point beyond the off-street carpark immediately adjoining the supermarket building.
(3) (a) Liquor shall not be sold outside the following trading hours:
Monday to Saturday: 8:00 am to 9:00 pm
Sunday: 10:00 am to 6:00 pm
(b) Notwithstanding the hours stated above, liquor shall not be sold pursuant to this licence unless the adjoining premises are also open and trading.
............[sgd]............................................................
Deputy President R P Handley
Catchwords
AIRPORTS – Bankstown Airport – refusal of liquor licence – supermarket – needs of community – definition and meaning of the word “need” – Bankstown Airport Master Plan – uses of Bankstown Airport land – employment zone – decision set aside
Legislation
Airports Act 1996 (Cth)
Airports (Control of On-Airport Activities) Regulations 1997 (Cth)
Liquor Act 1912 (NSW) (Repealed)
Liquor Act 2007 (NSW)
Cases
Buttery v Muirhead [1970] SASR 334
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Silkman v Kendall [1982] 1 NSWLR 133
Toohey v Taylor [1983] 1 NSWLR 743
Travis v Jackson (1987) 10 NSWLR 601
Secondary Materials
‘Guidelines for Issuing and Administration of Liquor Licenses’
Bankstown Airport Master Plan 2004/05
REASONS FOR DECISION
Deputy President R P Handley
1.Dunpec Pty Ltd (“Dunpec”) has applied for the review of a decision of the Department of Infrastructure and Transport (“the Department”) to refuse its application for a general liquor licence for its supermarket at Bankstown Airport. The issue to be decided is whether Dunpec should be granted such a licence.
BACKGROUND
2.On 16 December 2009, Bankstown Airport Ltd (“BAL”), the Bankstown airport lessee company, granted development consent for the erection and fit out of an IGA supermarket and adjoining shop on premises located in an ‘employment zone’ shown on the master plan for the airport. The development consent provided for a range of uses for the adjoining shop including as a “bottle shop (subject to further requirements under the Airports Act and Condition 13 below)”. Condition 13 refers to the need for a liquor licence application to be made to the Department and that this would require the written consent of BAL.
3.An IGA supermarket was subsequently constructed on the premises and commenced trading in about the second week of January 2011. An affidavit from the Store Manager, Mr Raid Fawzi Dawood, dated 7 October 2011, states that the supermarket has a net floor area of 1,400 square metres, and a sales turnover of approximately $170,000 per week from an average of 6,000 sales transactions. The supermarket includes a dedicated fruit and vegetable section; a full service delicatessen; a butchery; a bakery; and a full range of dairy products. Trading hours are from 7:00 am to 8:00 pm on Mondays to Saturdays and from 8:00 am to 8:00 pm on Sundays.
4.On 24 November 2010, Dunpec lodged an application with the Department for a general liquor licence for the premises known as ‘Khan’s Supa IGA’. This was accompanied by written consent dated 22 November 2010 from BAL for the grant of a liquor licence. The Department requested further information from Dunpec which was received on 24 January 2011. On 31 May 2011, a delegate of the Secretary of the Department refused to grant the licence. The Delegate stated (paragraph 22):
… I decided to refuse to grant the licence because I concluded that there is no demonstrated need for the activity proposed under the licence. I also had some concern that there is some potential that the grant of the licence would encourage the abuse or misuse of alcohol. In reaching my decision I had regard to all relevant matters and information before me. I placed weight on the strong objections of the parents of pupils at the Georges River Grammar School, and the views of the NSW Office of Liquor, Gaming and Racing and the NSW Government regarding a liquor outlet on the airport site.
5.On 27 June 2011, Dunpec lodged an application with the Tribunal for a review of this decision.
RELEVANT LEGISLATION
The Airports Act 1996 (“the Airports Act”) regulates the use and conduct of airports in Australia. Among the objects of the Act stated in s 3 are:
(b) to establish a system for the regulation of airports that has due regard to the interests of airport users and the general community;
(c) to promote the efficient and economic development and operation of airports.
Section 170(1) of the Airports Act provides for the making of regulations to “make provision for and in relation to prohibiting or regulating the sale, supply, disposal or possession of liquor at a specified airport”. The relevant regulations are the Airports (Control of On-Airport Activities) Regulations 1997 (“the Regulations”). Part 1A of the Regulations is concerned with the control of liquor at Sydney (Kingsford-Smith), Bankstown and Camden Airports. Regulation 4AB states the objects of Part 1A:
The objects of this Part are:
(a) to control the sale and supply of liquor at airports to which this Part applies; and
(b) to control the standard and use of premises on which liquor may be sold or supplied at those airports; and
(c) to promote harm minimisation practices in connection with the sale and supply of liquor at those airports.
Regulation 4AL(1) states:
The Secretary must consider an application for a licence made in accordance with this Division and must either:
(a) grant the licence; or
(b) refuse to grant the licence
Regulation 4AM states:
Matters to be considered in licensing decision
(1) In making a decision on an application the Secretary must take into account the following matters:
(a) whether the applicant is a fit and proper person to hold a licence;
(b) whether the grant of a licence for the premises specified in the application would be detrimental to the amenity of the airport, or any part of the airport, on which the premises are situated;
(c) whether there is a demonstrated need for the activity proposed under the licence;
(d) whether the activity proposed under the licence would be likely to encourage the misuse or abuse of alcohol;
(e) if the applicant is not the airport‑lessee company for the airport on which the premises are situated, the views of the airport‑lessee company for the airport;
(f) the requirements of regulations 4AN and 4AO.
(2) In addition to the matters mentioned in subregulation (1), the Secretary may take into account:
(a) the views of any other person consulted about the application by the Secretary; and
(b) any other matter that the Secretary has reason to believe is relevant to the application.
(3) If an applicant for a general licence is a corporation, the Secretary must apply paragraph (1) (a) to each person who is a director of the corporation as if each such person were the applicant.
Note Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
Regulation 4AN states:
General restrictions on the grant of a licence etc
(1) A licence must not be granted to a minor.
(2) A licence must not be granted in respect of premises used, or to be used, as a petrol station.
(3) A licence must not be granted in respect of premises used, or to be used, primarily as a convenience store or mixed business, unless the Secretary is satisfied that:
(a) the premises are situated in a tourist area or another area with special needs; and
(b) there are not adequate existing facilities for the sale and supply of liquor in the area.
(4) However, subregulation (3) does not apply to premises in a passenger terminal on Sydney (Kingsford‑Smith) Airport.
(5) Before making a decision under subregulation (3), the Secretary may consult on the matters mentioned in paragraphs (3) (a) and (b) with any Commonwealth, State or local government authority that the Secretary has reason to believe has a relevant interest in those matters.
Regulation 4CN(1) provides that an application may be made to the Tribunal for review of a decision of the Secretary to refuse to grant a licence under Regulation 4AL.
The Department has issued ‘Guidelines for Issuing and Administration of Liquor Licenses’ (“the Guidelines”). Clause 1.2, which addresses additional requirements for general liquor licenses, recognises the difference between regular public transport airports (such as Kingsford-Smith) and general aviation airports such as Bankstown:
The general aviation airports, including Bankstown at this stage, differ in their function from the Regular Public Transport Airports. There is limited or no commuter traffic and therefore less need to be concerned about providing facilities for use by the travelling public.
Clause 2 provides that when considering an application for a grant of a new licence, the Secretary must take into account a number of factors. Amongst other matters, Clause 2.3 provides that ‘The applicant needs to show whether his or her business will provide a facility for the travelling public or meet a particular need at a particular point in time’.
The Delegate’s reasons for refusing to grant a licence are referrable to Regulations 4AM(1)(c) and (d). Regulation 4AM(1)(d) is no longer in issue because Dunpec has undertaken not to provide home delivery of alcohol under any licence granted, and the Delegate has accepted that this goes some way towards alleviating the potential for the misuse or abuse of alcohol, including by minors, which was identified as a concern by the Delegate. At issue in these proceedings, therefore, is whether Regulation 4AM(1)(c) is satisfied, namely “Whether there is a demonstrated need for the activity proposed under the licence”. The activity in question is the sale of alcoholic beverages at Khan’s Super IGA.
THE PARTIES’ CONTENTIONS
Dunpec noted that, by its nature, liquor is not a product that is indispensable, and that Courts in a variety of jurisdictions have interpreted ‘need’ in liquor licensing statutes as something less than necessity and more akin to public ‘wants’. Mr Hatzis, for Dunpec, submitted that construing ‘needs’ as “reasonable demands or expectations” was in keeping with the purpose of the legislation, which is to control the sale of a non-essential, but potentially harmful, product. He contended that it is objectively reasonable according to current community standards for consumers to be able to purchase alcohol along with their groceries at a supermarket. They would otherwise be put to the inconvenience of making a special trip elsewhere.
The Department submitted that the Applicant has set the test for ‘demonstrated need’ too low: at a level which would result in a conclusion that there is a community need for the sale of packaged alcohol at virtually any place where any good or service is offered for sale. Mr Dillon, for the Department, said the Department accepts that the relevant ‘need’ in this case is less than an absolute need. He submitted that use of the word ‘need’ in Regulation 4AM(1)(c) necessarily imports the concept of unmet need or want. He said that, in this case, there is no demonstrated need because there are alternative facilities from which alcohol can be purchased, and mere convenience does not equate to an unmet need or want.
DISCUSSION OF THE LAW
The parties both referred to decisions of the NSW Supreme Court in which the meaning of the word ‘needs’ in s 29(1)(e) of the now repealed Liquor Act 1912 (NSW) was discussed. This provision imposed an onus on the applicant “of proving that the needs of the public in the neighbourhood of the premises cannot be met by facilities existing in, and outside, the neighbourhood”. In Silkman v Kendall [1982] 1 NSWLR 133, at 136, Cross J noted that the real question in the litigation “concerns the meaning of the concept behind the words ‘the needs of the public’ in the new s 29(1)(e)”. He said:
I feel reasonably confident that it was not the intention of the new legislation to force an applicant, when an objection on this ground is taken, to prove that it is a matter of absolute necessity for the public in the neighbourhood that the new licence be granted. The word ‘needs’ in s 29(1)(e) refers, of course, in its context to the supply of alcoholic liquor and/or to the use of the amenities which are present at some liquor outlets; and the word obviously is not intended to connote a concept of absolute necessity. Alcoholic liquor is not, I suppose, a necessity. We will not all die if we do not have it. So I commence with the view that it would appear that the word ‘needs’ must be interpreted on the basis that it is to be considered as normal and valid for citizens to wish to purchase alcoholic liquor and drink it either at the place of purchase or elsewhere, and it is in the light of that wish and custom that the ‘needs’ of the public must be construed.
His Honour went on to say that if it had been the intention of the Legislature to make absolute necessity the test, it would have clearly and expressly said so. He referred, at 137, to Bray CJ’s discussion of ‘needs of the public’ in Buttery v Muirhead, Whallin, Vaughton & Superintendent of Licensed Premises [1970] SASR 334, at 337-338: “‘Needs of the public’ must mean ‘need’ in the sense of ‘demand’, meaning by that a reasonable demand by contemporary standards”. Cross J noted, at 139, that in the context of s 29(1)(e) the word ‘needs’ was being used as a noun and “merely the plural of ‘need’”. He referred to definitions of the word ‘need’ as a noun, which include the want of something requisite, desirable or useful, and concluded that the Legislature did not intend ‘needs’ to embrace a concept of absolute necessity. In his opinion, the Legislature had in mind “needs arising from or caused by a want in the sense of lack – in relation to the public, a lack of things or qualities which a reasonable man would regard as usual or desirable to have, or a condition reasonably requiring relief” (at 140).
Silkman v Kendall was followed by the NSW Court of Appeal in Toohey v Taylor [1983] 1 NSWLR 743. Samuels and Priestly JJA, at 749, expressed their general agreement with Cross J’s line of reasoning but said that his conclusion should be expressed differently. They said: “In our view, in the overall context, ‘needs’ means ‘the reasonable demands or expectations of the public’”. This construction most appropriately reflected the intention of the statute.
Moffitt P, who agreed with Samuels and Priestly JJA’s exposition, added, at 745:
… the comparative convenience of such a facility [for the supply of liquor], having regard to relevant alternatives, is a material factor in making a factual value judgement whether the reasonable demands or expectations of the public, (or, compendiously, the needs of the public) cannot be met …
It is also a value judgement which may legitimately change with time, in order to bring to account changes in community attitudes to and community practices in regard to shopping and to the use in particular of facilities for the supply of liquor.
The third NSW authority referred to by the parties is the decision of the NSW Court of Appeal in Travis v Jackson (1987) 10 NSWLR 601. Kirby P (who was in the minority) noted that the Court in Toohey v Taylor varied in part the construction of s 29(1)(e) of the Act in Silkman v Kendall, and he described the test formulated in Toohey v Taylor as the correct test to be applied (at 603). He added, at 604: “Normally, today, the purchase of liquor in large supermarkets would be seen as ordinary and unexceptionable”. Mahoney JA (in the majority), at 610, said he did not see any difference between the principle applied by the Court of Appeal in Toohey v Taylor and that adopted by Cross J in Silkman v Kendall. Priestley JA, at 612, said that if his and Samuels JA’s joint reasons in Toohey v Taylor were read objectively, they could be seen to have conveyed the same meaning as that expressed by Cross J in Silkman v Kendall “in what was intended to be somewhat clearer and simpler language”.
Mr Hatzis also referred the Tribunal to two decisions of the former NSW Licensing Court (abolished in 2008). The more recent decision, dated 29 March 2005, was in respect of an application for a retail liquor licence for an IGA supermarket at East Albury attracting 7,000 customer transactions per week. The Court found, at [22]:
The trading figures do indicate that there is a desire on behalf of a not insubstantial number of persons to be able to purchase their supermarket household necessities locally. It is reasonable to assume that same desire, demand or expectation exists on behalf of the public in the neighbourhood to be able to purchase liquor from a similarly well-presented, comprehensively stocked store.
The Court, at [21], referring to the local hotel which utilised a “relatively poorly presented driveway facility”, said that:
The fact that the proposed facility is only 117 metres from the hotel and some 2kms (sic) from a number of other licensed facilities, more particularly Dan Murphy’s, does not of itself defeat the need for a suitable packaged liquor facility within the neighbourhood.
The other decision of the Licensing Court (heard in December 1994) referred to by Mr Hatzis concerned the grant of a licence in Glenhaven. In its decision, the Court referred to the reasonable expectation of persons attending a neighbourhood centre containing a supermarket and other neighbourhood facilities that there would also be a liquor facility in the neighbourhood centre or in reasonable proximity to it.
The wording of Regulation 4AM(1)(c) is different from that of s 29(1)(e), being expressed in terms of “a demonstrated need for the activity proposed under the licence”, and there being no specific reference to existing facilities. The fact that the word ‘need’ rather than ‘needs’ is used, is not in my view significant, the latter being, as Cross J pointed out in Silkman v Kendall, the plural of the noun ‘need’. Moreover, as was recognised in the NSW authorities, the context in which the word is used in the statute must be considered in determining its ordinary meaning.
The Macquarie Dictionary Online definition of the word ‘need’ indicates that the word can mean “a case or instance in which some necessity or want exists”. This appears to recognise a spectrum of meaning from something which is desirable to something which is required. An examination of the context in which the word is used is therefore important in clarifying its meaning.
Firstly, it is worth noting the objects of the Airports Act stated in s 3 which include “(b) to establish a system for the regulation of airports that has due regard to the interests of airport users and the general community” and “(c) to promote the efficient and economic development and operation of airports”. The objects of Part 1A of the Regulations stated in Regulation 4AB are “(a) to control the sale and supply of liquor at airports to which this Part applies”; “(b) to control the standard and use of premises on which liquor may be sold or supplied at those airports”; and “(c) to promote harm minimisation practises in connection with the sale and supply of liquor at those airports”.
Secondly, Regulation 4AM(1) requires the Secretary “to take into account” stated matters, including “(c) whether there is a demonstrated need for the activity proposed under the licence”. That such matters must be taken into account should be contrasted with Regulation 4AN which mandates when a licence must not be granted.
Thirdly, the phrase a ‘demonstrated need for the activity’ (being the sale and supply of alcohol which, as Cross J recognised in Silkman v Kendall, is of itself not a necessity) suggests that the decision-maker is required to make a value judgement based on the material provided. I am satisfied that such a value judgement should, as the NSW Court of Appeal recognised in Toohey v Taylor, be based on an objective standard, namely the reasonable demands or expectations of the public. Specifically in relation to the purchase of alcohol in supermarkets, I note Kirby P’s comment in Travis v Jackson that “the purchase of liquor in large supermarkets would be seen as ordinary and unexceptionable”. Such a premise also appears to be reflected in the two decisions of the NSW Licensing Court referred to above.
The parties also referred to the Guidelines. The Guidelines appear to be intended both as a guide for those applying for a liquor licence on Commonwealth airport premises or considering making such an application, and for those to whom the decision-making power is delegated. Presumably, the Guidelines represent Departmental policy, in which case the general principle is that decision-makers should generally apply such policy unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
As stated above, the Guidelines note there is limited or no commuter traffic at Bankstown airport and therefore less need to be providing facilities for the travelling public. When regard is had to the objects of the Act, the corollary is that, in relation to clause 2.3 of the Guidelines, the needs of other airport users and the general community should be considered.
THE EVIDENCE AND SUBMISSIONS
As noted above, the Store Manager of Khan’s Supa IGA, Mr Dawood, has provided an affidavit dated 7 October 2011. He states that the supermarket, which averages 6,000 sales transactions per week, attracts a wide range of customers, including parents attending with school children, truck drivers and other workers, including airport workers. For the first four or five weeks after the supermarket opened, he received 20 or 30 customer enquiries per day about whether they could purchase alcohol at the supermarket and, while the number of enquiries has since reduced, he still receives five or six enquiries per week from disappointed customers. Customers often express surprise that they are not able to purchase alcohol there adding that they can buy liquor “from any Coles or Woolworths”. Further, 135 customers have signed petitions in support of a liquor department within the supermarket. Mr Dawood states that it is obvious to him that there is a demand, expectation and need for a liquor facility with the supermarket.
Mr Dawood states that the supermarket has dedicated car parking available for customers and greater availability of car parking spaces compared to that for the nearest liquor store, Georges Hall Liquor Store. (According to the Google map filed by the Department, the distance from Khan’s Supa IGA to Georges Hall Liquor Store is 180 metres.) He says that a survey of car parking spaces available shows that customers who do their shopping at the IGA supermarket would, at various times, have difficulty finding parking if they wished to access Georges Hall Liquor Store (however Mr Dillon drew attention to photographs in the ‘Tribunal Documents’ (pp 303 to 305) which indicated some parking is generally available near this liquor store).
In terms of access, Mr Hatzis referred to photographic evidence in the Tribunal Documents showing that a large step must be traversed in order to enter Georges Hall Liquor Store. Dunpec also claims that the liquor store’s premises are small and cluttered and the shelf prices 10% higher than customers can expect in Khan’s Supa IGA. By contrast, Mr Hatzis said access to the IGA supermarket is level, and customers could expect “a wide range of good quality liquor products, at competitive prices in an attractive, user and gender-friendly store with knowledgeable helpful staff, good access and providing a ‘one stop shopping’ environment”.
Dunpec has provided an analysis showing that, as at 2008, the number of liquor licences in the Bankstown Local Government Area (LGA) was 105 liquor licenses per 100,000 of population compared with 220 licenses per 100,000 of population for NSW as a whole. This is said to support the contention that that IGA shoppers are reasonable in their expectations to be provided with an additional licence to serve their shopping needs. Of the 193 licenses in the Bankstown LGA at 30 June 2009: 24 were club licenses; 19 were hotel licenses; 8 were limited licenses (permitting sales at functions); 84 were ‘on premises’ licences (mainly restaurants); 23 were wholesaler/producer licenses; and 35 were packaged liquor licences, similar to that sought by Dunpec (selling liquor for consumption off the licensed premises). This represents 18.9 packaged liquor licenses per 100,000 of population compared to 24.4 per 100,000 of population for NSW as a whole. In his submissions, Mr Dillon noted that this is a ratio of 1.3 to 1 which, he said, is “near parity”. He also referred to the Department’s analysis showing that at least eight ‘bottle shops’ in the vicinity are, according to the Google maps, within 10 minutes’ drive of the IGA supermarket.
After notice of Dunpec’s application for a liquor licence was published in accordance with the requirements of the Regulations, the only response received was from solicitors acting for the owners of Georges Hall Liquor Store who, in a letter faxed on 7 July 2010, objected to the proposed licence on the ground that the existing licensees are adequately able to cater for the public demand in relation to the supply of liquor”.
The Department then invited further submissions concerning the licence application from the NSW Police, the NSW Office of Liquor, Gaming and Racing, and , Georges River Grammar School, a school located close to Khan’s Supa IGA. In an undated letter, the Chairman of the Board of Directors of the School strongly objected to any signage, particularly any signs advertising alcohol, being placed on the western wall which is adjacent to the School’s grounds. The Chairman said “there are extremely strong feelings from parents objecting to having two liquor outlets so close to each other in the School’s vicinity”. He did not provide any further information about the number or form of these parental objections.
In a letter dated 24 December 2010, the NSW Office of Liquor, Gaming and Racing noted the policy of the NSW Government which has:
… in the past, opposed the approval of liquor licences on Commonwealth airport land where those licenses are not integral to airport operations. It appears that similar concerns would also apply to this latest application as the proposed supermarket is unlikely to cater primarily to airport employees and visitors given its location in a suburban street outside of the main airport facilities. Instead, it appears that the supermarket will cater primarily to local residents.
The letter sets out advice as to relevant issues that should be taken into consideration in determining the application, including the trading hours for the liquor outlet.
The NSW Police response was from the Licensing Office of the Bankstown Local Area Command (LAC). The comments of the Licensing Unit, dated 15 April 2011, supported by senior officers of the LAC, are generally supportive of the application provided the proposed trading hours of the liquor outlet are the same as those of the supermarket. The comments made include the following: “At this time, Police do not believe the granting of this liquor licence would have any foreseeable negative impact on the overall wellbeing of the local or broader community”.
Dunpec submits that the grant of a licence to meet the need of shoppers at a supermarket on airport land is consistent with the objects of the Airports Act (stated above) which have due regard to both airport users and the general community; and is also consistent with the Bankstown Airport Master Plan, which contemplates the development and use of airport land in a way that serves the needs of a wider population. Dunpec has agreed not to install any signage on the western wall of the premises and will agree to a condition to that effect being imposed on its licence. Further, in the interests of harm minimisation, Dunpec will accept a condition on its licence to the effect that liquor will not be delivered to any point beyond the supermarket carpark, thereby preventing home deliveries but still enabling staff to assist in carrying customer’s purchase to their cars. The supermarket will also adopt a rigorous ‘house policy’ to ensure that an appropriate practice is in place for the responsible sale of alcohol.
DISCUSSION
As stated above, the Tribunal must consider “whether there is a demonstrated need for the activity proposed under the licence” (Regulation 4AM(1)(c)). This should be approached by considering whether Dunpec has demonstrated such a need by reference to what the courts have accepted as the objective standard of the reasonable demands and expectations of the public. It is clear from the judicial comments referred to above that any assessment of the reasonable demands and expectations of the public should take into account contemporary attitudes to shopping, including the purchase of liquor.
Moreover, as the NSW Licensing Court has recognised, the fact that there are other liquor outlets nearby is not necessarily determinative of the issue. Shoppers increasingly expect that they should be able to make their household purchases, which may include purchasing liquor, in one store or, at least, under one roof in a shopping complex. As Justice Kirby recognised in Travis v Jackson, and as the NSW Licensing Court has recognised, ‘need’, in terms of the reasonable demands and expectations of the public, must be assessed in this context.
In relation to the current application, Dunpec has provided evidence establishing that a not insignificant number of customers of its IGA supermarket want the supermarket to sell liquor. Mr Dawood’s evidence concerning the diverse customers of the supermarket; of a sizeable weekly sales turnover; and an average 6,000 sales transactions per week, suggests a substantial customer base. Dunpec’s plans for the sale of liquor in its supermarket indicates that the stock will be housed in a modern facility and competitively priced, with the facility overseen by responsible staff. Customers will have easy access to the facility and will presumably be able to add purchases of liquor to their other supermarket purchases, so that these can be carried or wheeled in a supermarket trolley to a vehicle parked in the near vicinity of the premises. All of this indicates that the purchase of liquor in the supermarket will be convenient for customers who shop at the supermarket for groceries and other household items.
In Silkman v Kendall, at 140, Cross J construed needs as “arising from or caused by a want in the sense of lack – in relation to the public, a lack of things or qualities which a reasonable man would regard as usual or desirable to have”. In Toohey v Taylor, at 745, Moffatt P said that “the comparative convenience of such a facility, having regard to relevant alternatives, is a material factor in making a factual value judgement”.
The Tribunal has been provided with evidence indicating that customers of Khan’s Supa IGA want the supermarket to sell liquor products, in accordance with what has become common in larger supermarket chains. Subject to a comment that the proposed trading hours of the liquor department should be the same as those of the supermarket, the proposed licence is supported by the NSW Police.
It is not surprising that Dunpec’s application for a licence is opposed by the proprietors of Georges Hall Liquor Store given that the granting of a licence to Khan’s Supa IGA will undoubtedly impact on their business. In a letter dated 7 July 2010, their solicitors state it is their clients’ view that “the existing licensees are adequately able to cater for the public demand in relation to the supply of liquor”.
The NSW Office of Liquor, Gaming and Racing has expressed the policy of the NSW Government opposing the approval of liquor licenses on Commonwealth land where those licenses are not integral to airport operations. However, the granting of a licence in this case appears not to be inconsistent with the objects of the Airports Act, which recognises the need to promote the efficient and economic development and operation of airports and to have due regard to the interests of both airport users and the general community. The granting of a licence is also consistent with the vision for Bankstown Airport as stated in the Bankstown Airport Master Plan 2004/05, which recognises the need for the airport to meet the reasonable expectations of the broader community. The Plan identifies land for business and employment zones and contemplates the development of the land for a range of activities including “shop (serving the daily convenience needs of the local workforce and population)” (clause 18.3).
The complaint of the school adjacent to Khan’s Supa IGA, Georges River Grammar School, about advertising on the western wall of the supermarket, has been accommodated by Dunpec agreeing not to place any advertising on that wall and to have a condition to that effect imposed on its licence. The other objections to the proposed licence referred to by the Chairman of the Board of Directors of the School (of which there is no specific evidence as to the number of objectors or the specific terms of their objections) do not go beyond general opposition to another liquor licence being granted.
Weighing up the evidence, I am satisfied that it is reasonable for customers of Khan’s Supa IGA to expect that the supermarket has a licence to enable liquor to be sold on the premises, provided appropriate safeguards are in place for harm minimisation. I also note Dunpec’s responsiveness to concerns expressed during the consultation process, which are reflected in the proposed conditions on its licence discussed below, and am satisfied that appropriate safeguards are in place.
Thus, I am satisfied that there is a demonstrated need for a general liquor licence to be granted to Dunpec within the terms of Regulation 4AM(1)(c). Noting that Regulation 4AM(1)(d) is no longer in issue because of Dunpec’s undertaking not to undertake home delivery of liquor, and that the Secretary was satisfied as to other relevant matters, the Tribunal therefore sets aside the decision under review and substitutes a new decision that the licence be granted.
Regulation 4AP(1) permits the Secretary (or the Tribunal standing in the shoes of the Secretary) to impose conditions on a licence, having regard to the objects mentioned in Regulation 4AB. Those objects include promoting harm minimisation practices (Regulation 4AB(c)), and it appears to this end that Dunpec proposes a condition to the effect that deliveries of liquor are not to be made beyond the supermarket’s adjoining off-street car park. In my view, such a condition is appropriate.
Regulation 4AP(2) states that, without limiting Regulation 4AP(1), conditions may relate to a variety of matters including trading hours, advertising and signage. Dunpec proposes two further conditions. The first condition, that no signage is to be placed on the exterior western wall of the supermarket, addresses the objection made by the Georges River Grammar School about signage on this wall. The second condition is in two parts. Part (a) is that liquor should not be sold outside the following trading hours: Monday to Saturday from 8.00 am to 9.00 pm, and Sunday from 10.00 am to 6.00 pm. This addresses a comment made by the NSW Office of Liquor, Gaming and Racing, that the licence should not permit trading outside the hours permitted in the Liquor Act 2007 (NSW). Part (b) is that notwithstanding the stated hours, liquor shall not be sold unless the adjoining supermarket premises are also open and trading. This addresses a comment made by the NSW Police stating that “Police would prefer and request that the proposed trading hours of the liquor outlet are the same as that of the IGA supermarket”.
I am satisfied that in accordance with the concerns expressed during the consultation process, it is appropriate to impose the conditions proposed.
DECISION
The Tribunal sets aside the decision under review and substitutes a new decision that Dunpec Pty Ltd be granted a general liquor licence in respect of the premises of Khan’s Supa IGA at Birdwood Road, Georges Hall, NSW, subject to the following conditions:
(1) No signage is to be placed on the exterior Western wall of the supermarket building;
(2) Deliveries of liquor are not to be made to any point beyond the off-street carpark immediately adjoining the supermarket building;
(3) (a) Liquor shall not be sold outside the following trading hours:
Monday to Saturday: 8:00 am to 9:00 pm;
Sunday: 10:00 am to 6:00 pm;
(b) Notwithstanding the hours stated above, liquor shall not be sold pursuant to this licence unless the adjoining supermarket premises are also open and trading.
I certify that the preceding 54 (fifty four) paragraphs are a true copy of the reasons for the decision herein of Deputy President R P Handley.
...........[sgd].............................................................
Associate
Dated 1 March 2012
Date of hearing 14 February 2012 Counsel for the Applicant A Hatzis Solicitors for the Applicant Lands Legal Counsel for the Respondent A Dillon Solicitors for the Respondent Australian Government Solicitor
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