Ice Box Liquor Pty Ltd v Independent Liquor & Gaming Authority

[2024] NSWCATAD 180

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

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

Hearing dates:

13 – 14, 17 April, 7 – 8 August 2023

Date of orders:

28 June 2024

Decision date:

28 June 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member

Decision:

(1)   The Authority’s decision is set aside.

(2)   The Authority is to issue Ice Box Liquor Pty Ltd with a packaged liquor licence subject to the conditions specified in its application in respect of premises at 136 Queen Street, Woollahra, New South Wales, and subject to the further conditions that customer collections will not be allowed to occur in Peaker Lane and that the Applicant will not make trolleys available for customers in its store.

Catchwords:

LICENSING — Liquor licensing — Application to the Authority — Licence sought – packaged liquor licence

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Gaming and Liquor Administration Act 2007 (NSW)

Liquor Act 2007 (NSW), ss 3, 48

Cases Cited:

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

ALDI v Foods v Independent Liquor and Gaming Authority [2019] NSWCATAD 43

Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25

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

Ice Box Liquor Pty Ltd v Independent Liquor & Gaming Authority [2022] NSWCATAD 358

Kallin Pty Ltd v Independent Liquor and Gaming Authority [2019] NSWCATAD 36

Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

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

North Coast Property Holdings Pty Limited v Independent Liquor and Gaming Authority [2024] NSWCATAD 98

Texts Cited:

Callinan, S and Livingston, M “Drinking trends by age and over time baby boomers and older drinkers” Foundation for Alcohol Research and Education Centre Canberra, (2018)

Donnelly, N, et al “The effect of liquor licence concentrations in local areas on rates of assault in New South Wales” Crime and Justice Bulletin, (December 2014) 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. and Chikritzhs, T. “Revealing the link between licenced outlets and violence: Counting venues versus measuring alcohol availability” Drug and Alcohol Review (September 2011) Vol 30, 524

Livingston, M. “Alcohol outlet density and harm: comparing the impacts on violence and chronic harms.” Drug Alcohol Review (Sept 2011), Vol 30, 515

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

Livingston, M. “A longitudinal analysis of alcohol density and domestic violence” (2011) Addiction Vol 106, 919

Livingston, M. “A longitudinal analysis of alcohol outlet density and assault” Alcohol Clinical and Experimental Research, vol 32, No 6 (2008) 1074

Livingston, M., et al. Community impact of liquor licences; an Evidence Check rapid review brokered by the Sax Institute for the NSW Ministry of Health, (2015)

Scott, D. et al., “Alcohol Accessibility and Family Violence-related Ambulance Attendances”, Journal of Interpersonal Violence (2022) Vol 37 13

Category:

Principal judgment

Parties:

Ice Box Liquor Pty Ltd (Applicant)
Independent Liquor & Gaming Authority (First Respondent)
Narraport Woollahra Holdings Pty Ltd (Second Respondent)
Souffle Pty Ltd (Third Respondent)

Representation:

Counsel:
C Ireland (Applicant)
J Emmett SC / H Grace (Second and Third Respondents)

Solicitors:
Hatzis Cusak (Applicant)
Crown Solicitor (First Respondent)
Back Schwartz Vaughan (Second and Third Respondents)

File Number(s):

2022/00190816

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. Ice Box Liquor Pty Ltd, the Applicant in these proceedings, seeks a review of a decision by the Independent Liquor and Gaming Authority (Authority), which refused to grant a packaged liquor licence for premises at 136 Queen Street, Woollahra in New South Wales (Premises). Currently, the Premises are used by a small retail outlet selling fruit, vegetables, and cut flowers.

2. The Applicant applied to the Authority for a packaged liquor licence on 12 July 2021. The extent of an authorisation arising under a packaged liquor licence is set out in the Liquor Act (NSW), s 29.

3. The Authority’s decision was notified to the Applicant on 16 February 2022. In summary, the Authority, having regard to the relevant provisions of the Liquor Act, was not satisfied that the overall social impact of the licence, if granted, would not be detrimental to the well-being of the local and broader community. At the hearing, it maintained that position.

4. The second respondent, Narraport Woollahra Holdings Pty Ltd, runs two liquor outlets known as the Woollahra Hotel and a packaged liquor outlet called Moncur Cellars. The third respondent, Souffle Pty Ltd, runs another packaged liquor outlet known as Jim’s Cellars. Both the second and third respondents object to the grant of a packaged liquor licence to the Applicant; together, they applied and were joined in the proceedings for the reasons set out in Ice Box Liquor Pty Ltd v Independent Liquor & Gaming Authority [2022] NSWCATAD 358 pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 44.

5. The second and third respondents refer to their packaged liquor outlet businesses as the Existing Bottle Shops (a terminology adopted, with respect, in these reasons). There is no controversy about the existence of the existing bottle shops as commercial competitors of the putative business of the Applicant in these proceedings. While the fact that they are commercial competitors was relevant to questions of standing and interest, and aside from questions of density, the position of the second and third respondents with regard to the Applicant is of no material relevance. At the hearing, the second and third respondents were entitled and did address the considerations that are relevant to the Tribunal’s determination of the statutory test.

Issue

6. The issue to be determined in this case is whether, having regard to the evidence before it, the Tribunal is satisfied that the overall social impact of a packaged liquor licence issued to the Applicant will not be detrimental to the well-being of the local or broader community.

7. For the reasons that follow, I have determined that the overall social impact of a packaged liquor licence issued to the Applicant will not be detrimental to the well-being of the local or the broader community. The effect of that conclusion is that the Authority’s decision to refuse the package liquor licence to the Applicant should be set aside, with the result being that the Applicant should be provided with a packaged liquor licence subject to the conditions nominated in its application.

Law

Jurisdiction and Onus

8. The Authority’s decision to refuse the Applicant’s application for a packaged liquor licence is amenable to review by this Tribunal under the Gaming and Liquor Administration Act 2007 (NSW) (Administration Act), s13A and the Administrative Decisions Review Act 1997 (NSW), ss 7 and 9.

9. The Tribunal is to determine the application by deciding the correct and preferable decision having regard to the material before it, including any factual material and the applicable law; Administrative Decisions Review Act, s 63.

10. In proceedings such as this, neither party bears a legal burden of proof; Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 at [25]. But the Applicant bears a practical or evidentiary burden in proceedings such as these to ensure there is sufficient evidence before the Tribunal to reach the requisite level of satisfaction required to be reached pursuant to particular provisions of the enabling statute; Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25 at [50]; ALDI v Foods v Independent Liquor and Gaming Authority [2019] NSWCATAD 43 at [88].

The principal legislative provisions

11. The Liquor Act 2007 (NSW), s 3 sets out the legislative objects and the matters to which regard must be had when securing the objects; that section provides:

3 Objects of Act

(1) The objects of this Act are as follows—

(a) to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community,

(b) to facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality,

(c) to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries.

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

(a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour),

(b) the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor,

(c) the need to ensure that the sale, supply and consumption of liquor, and the operation of licensed premises, 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.

12. The objects of the Liquor Act are reflected in the community impact provisions under the Liquor Act, s 48 and, most notably, subsection 48(5), which is the principal legislative provision to be considered in this case. That section provides:

(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.

13. A “relevant application” includes, among other matters, an application for a packaged liquor licence: Liquor Act, s 48(2)(a).

14. As the Tribunal in Bun v Independent Liquor and Gaming Authority [2020] NSWCATAD 60 at [73] observed:

… the Tribunal must be actually satisfied that the overall social impact of the proposal will not be detrimental.

15. The term “overall social impact” was considered extensively in Kallin Pty Ltd vIndependent Liquor and Gaming Authority [2019] NSWCATAD 36 where, at [20], the Tribunal stated:

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

16. When considering the overall social impact, the Tribunal is required to take into account both positive and negative aspects: Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 at [30].

17. Accordingly, the Tribunal on review must not grant an application for a liquor licence unless it is satisfied that the overall social impact of the licence will not be detrimental to the well-being of the local or broader community: Liquor Act, s 48(5) having regard to the material set out in the subparagraphs to that section.

Additional Material

Guideline 6

18. The Authority, as required under the Liquor Act, s 57, has issued guidelines, one of which, GL4010 - Guideline 6, Consideration of Social Impact under s 48(5) of the Liquor Act 2007, which is dated 13 October 2021 (Guideline 6), was directly relevant to the subject matter of these proceedings.

19. Pursuant and subject to the limitations stated in the Administrative Decisions Review Act, s 64(4), the Tribunal may have regard to Guideline 6. The relevant parts of Guideline 6 are paragraphs 25 – 49, and, where relevant, the Tribunal has had regard to that material.

20. In particular, I have adopted the definitional aspects of “local community” and “broader community” set out in Guideline 6 such that I consider the local community to comprise the suburb of Woollahra (Suburb) and the “broader community” to be the local government area of Woollahra (LGA) being an area of sufficient breadth though without imposing on myself any artificial limitations. I note that the proper construction of the term “local or broader community” in the chaussure to the Liquor Act, s 48(5) is disjunctive.

Evidence

The Authority’s Evidence

Section 58 Bundle

21. At the hearing, the Authority tendered a bundle of documents it had previously filed under the Administrative Decisions Review Act, s 58 (s 58 Bundle). That bundle, which extended to over 770 pages, included a copy of Guideline 6 and otherwise comprised material relevant to the review of the decision.

22. The s 58 Bundle included the following material:

1. The Applicant’s completed application form and associated documentation, including a community impact statement dated 7 June 2021 and updated Alcohol Plan of Management dated November 2021; the licence application seeks authorisation to sell liquor from a shop on Queen Street at Woollahra between 10:00 AM and 9:00 PM Monday to Saturday and between 10:00 AM and 8:00 PM on Sundays;

2. Compliance record search for the Applicant, showing no incidents;

3. A notice of determination of a development application dated 4 February 2021. On that document, Woollahra Council recorded that:

1. the development application was unsatisfactory against the following criteria:

1. Social impacts and outlet density of licenced premises;

2. NSW Police response, including that the application had not demonstrated that the social impacts have been minimised or can be controlled “due to the over-supply of liquor outlets in Woollahra”; and

3. Non-compliance with Chapter F3 of the Woollahra DCP 2015, meaning that it has not adequately demonstrated that the impact on the amenity of nearby and adjacent residences has been addressed, nor has it addressed the “existing and likely cumulative social impacts” and that it has not demonstrated that it has formulated appropriate management practices to minimise anti-social behaviour on surrounding residential premises.

2. The development application was found to be satisfactory with regard to:

1. Parking and truck deliveries;

2. Heritage, including with regard to the renovation of the shopfront; and

3. Building works.

4. A complying development certificate issued by Woollahra Council;

5. Summary of key statistical data about the Woollahra area;

6. Photographs of the location aerial photographs of the area which show the proximity of the site to the Existing Bottle Shops and other licenced premises;

7. Documents concerning the packaged liquor licence held by the Coles Group under its Vintage Cellars brand in respect of a site across the road from the Premises. It is apparent from that material that the licence was referred to by the second and third respondents as the Dormant Liquor Licence; however, respectfully, I will refer to this as the Vintage Cellars Licence in these reasons.

8. The minutes of a meeting of the Board of the Authority that took place on 16 February 2022 in which the Board, contrary to the recommendation of Authority staff, refused the Applicant’s liquor licence subject to conditions on its opening hours. In its conclusion remarks refusing the liquor licence, the Authority’s Chairperson stated that:

[H]aving considered the positive and negative social impacts that are likely to flow from granting the Licence, serious concerns in relation to outlet clustering and the social impact of approving the Applicant remain particularly in light of the objections received.

The Authority is not satisfied that the above matters mitigate the risks sufficiently such that the overall social impact of granting the licence would not be detrimental to the well-being of the local and broader communities. Rather the Authority is satisfied that the additional liquor licence would not facilitate the balanced development, in the public interest, of the liquor industry.

23. The Authority also relied on Harm Minimisation and Community Impact Reports, which were provided in updated form throughout the hearing of this matter. The final updated report, dated 19 July 2023, was tendered as an exhibit. That report showed that:

1. In 2021, there were five packaged liquor outlet licences in the suburb and 49 in the LGA.

2. The five packaged liquor outlet licences included a licence held by the Coles Group for a site that is no longer capable of being used as a liquor shop and an online store called Frootbat Australia.

3. The density rate of packaged liquor outlet licences per 100,000 population, arising from those figures, was 69.55 for the Suburb and 91.60 for the LGA, compared with a rate of 39.02 for all of NSW.

4. The incident rate of alcohol-attributable to hospitalisations for the LGA was 768.5 compared with 527.0 for all of NSW. However, the rate of deaths attributable to alcohol was lower in the Woollahra LGA compared with the rest of NSW.

5. The two-year trend for incidents of domestic assaults related to alcohol was stable in both the Suburb and LGA, and the rates of that offence were significantly lower than the rest of NSW at the LGA level with an increase in these types of offences at the suburb level in the year up to March 2022.

6. Rates for non-domestic alcohol-related assaults, malicious property damage offences and incidents of disorderly or offensive conduct at the suburb and LGA levels were significantly below the rest of NSW.

Senior Constable Franks

24. Additionally, the Authority called Senior Constable Franks to give evidence about the NSW Police Force's objection to the licence. His affidavit evidence was to the effect that the proposed store created conditions conducive to harm materialising. Those harms included:

1. The sale of alcohol to minors or the sale to adults on behalf of minors; this was said to be due to the congested foot traffic and the opportunities that created. I see no real basis for that suggestion and reject it.

2. The location is near Centennial Park and other hotels and could be a source of “pre-loading” before concerts and events. In that regard, the evidence was that there are several more conveniently located outlets than the proposed site for such activity. Accordingly, I place no weight on that evidence.

3. The proximity of the proposed store, so close to other liquor outlets might allow service of alcohol to patrons who have been refused service elsewhere. Having regard to the time of day when refusal of service and anti-social behaviour takes place, being later in the evenings and having regard to the proposed bottle shop’s hours, I do not consider this to be a matter of serious concern.

25. In cross-examination, counsel for the Applicant asked Senior Constable Franks about the police response as part of the application process for the Vintage Cellars Licence in 2014. In respect of that application, the police had not made any similar grounds of objection to a much larger packaged liquor outlet proposed to be located almost directly opposite the Applicant’s site; the only conditions sought to be imposed by police for that proposal being the installation of a CCTV camera system and adherence to a plan of management.

25. Senior Constable Franks, in the context of being asked questions about the lack of any incidents reported relating to the Existing Bottle Shops, also accepted that police would expect to receive reports of assaults and other criminal incidents adjacent to licenced premises such as hotels, bars and nightclubs rather than packaged liquor stores.

26. When asked about the ten incidents of domestic violence-related assaults recorded in the BOSCAR statistics for the year ended December 2022, Senior Constable Franks conceded that none of those incidents were linked by the NSW Police Force to either of the Existing Bottle Shops and that there was no basis to suggest that any of these incidents were related to the sale of packaged liquor or any liquor outlet.

27. Senior Constable Franks was also able to confirm for the Tribunal his observations of the opening hours of the butcher, takeaway chicken shop and restaurant. He told the Tribunal that, after the lifting of COVID-19 restrictions, these shops traded into the evening, the last of which the restaurant traded, at least on some evenings until 9:00 PM.

28. Senior Constable Franks lastly explained that the reason that NSW Police had not objected to the licence at an earlier time was due to workloads; therefore, the lack of opposition was administratively inadvertent.

Evidence relied on by the Applicant

30. In addition to evidence from various lay and expert witnesses, the Applicant tendered the following documentary evidence:

1. Bureau of Crime Statistics and Research (BOSCAR) data for alcohol-related crimes from January 2013 to December 2022. The BOSCAR statistics showed that;

1. Incidents of alcohol-related domestic assault are higher than the average for New South Wales;

2. The suburb records a low rate of incidence for every other criminal offence, including alcohol-related assaults, when compared to the rest of New South Wales.

3. The hot-spot maps prepared by BOSCAR using its data set show the Premises are located in a low-density area for assault and domestic assault and is a medium-density hot-spot for the offence of malicious damage to property.

4. The LGA has higher densities of offences including non-domestic assault, particularly at weekends.

2. The more recent statistics recorded a fall in alcohol-related domestic violence. Though, as the second and third respondents submit, it would be unwise to consider such a limited range of data in terms of trend.

3. The Socio-Economic Indexes for Areas (SEIFA) which is a statistical index created by the Australian Bureau of Statistics and indicates the relative advantage and disadvantage of a community at various levels of aggregation. The suburb of Woollahra is in the second lowest percentile for socio-economic disadvantage, and the Woollahra LGA is in the lowest percentile. By comparison, Sydney is in the 56^th percentile, and the whole of the State of New South Wales is in the 45^th percentile of disadvantage. It is beyond doubt that the suburb and LGA of Woollahra are areas of high relative socio-economic advantage. This does not mean, of course, that there are not poor or vulnerable persons in those areas.

4. 2021 Census for the suburb of Woollahra and the Woollahra LGA, which as Sarah George, the expert social planner qualified by the Applicant in these proceedings, notes, the census data shows that:

1. the Woollahra LGA displays robust socio-economic and demographic characteristics, and the representation of groups at higher risk of alcohol-related harms is not high. Specifically, there is a low representation of vulnerable communities, the unemployed and people on low incomes; and

2. Residents of the Suburb are more likely to be female, middle-aged, university-educated, employed full-time, working in high-paying jobs and residing in their own homes that are either fully owned or mortgaged.

31. At the hearing, the Applicant read affidavits from several witnesses who were made available for cross-examination. The Applicant also relied on documents that were tendered.

David Owens

32. David Owens is the manager or director of the Applicant. At the hearing, the Applicant read two affidavits from Mr Owens, and he was cross-examined by counsel for the second and third respondents.

33. In addition to deposing about matters which may be in favour of the application for a packaged liquor licence, Mr Owens’s first affidavit, in fact, annexed two earlier affidavits he had made relevant to these proceedings and which are also included in the s 58 Bundle. The two earlier affidavits were both made on 16 December 2021. In the first of the December 2021 affidavits, Mr Ownes deposes to the proposed business model or sales offerings of the Applicant’s store, if opened.

34. By the second affidavit, Mr Owens states his reasons for the Applicant purchasing the property, his observation of traffic and pedestrian activity near the property, as well as addressing various matters concerning a petition the Applicant obtained and the reasons for submitting a complying development consent. As to the opinions provided by Mr Owens, I have taken these as a descriptive account of his reasons, as a director of the Applicant, for the commercial decision to purchase the site in the first place rather than as evidence proving as fact the matters he opines about; in particular I have treated in this way Mr Owens’ assessment of what are the type of retailers proximate to the site and the position of a liquor store near other food retailers. Mr Owens also deposes, in his second affidavit, that the Applicant's previously submitted development application had been refused by the council two days after it was lodged. However, it would appear from the notice refusing development consent contained in the s 58 Bundle that the development application was lodged on 16 October 2020 and refused on 4 February 2021.

35. Mr Owens’ evidence in cross-examination concerned questions of amenity, planning, marketing, and the range of products to be offered. Mr Owens accepted that the area in which the proposed liquor shop was located was “not thirsty”, which I took him to mean that he accepted that there were many opportunities to purchase and consume liquor. As the second and third respondents submit, the statutory criteria do not call for a needs-based assessment, but it may reduce the Applicant’s argument that there is a positive impact in having another bottle shop open up in an area where that is already abundant with liquor supply outlets.

36. Mr Owens’ credit was the subject of some attack by the second and third respondents. He was questioned about why the application form sent to the Authority stated that there were no issues raised by local councils or other consent authorities when, earlier, the Applicant’s development application had been rejected by the council on amenity grounds, and the NSW Police Force had registered a strong objection that had been included in the reasons provided for the rejection of that development application. Mr Owens could not adequately account for why the response was made in those terms. On the basis of his answers in cross-examination, the second and third respondents invited the Tribunal to find that Mr Owens had not been honest in his answers concerning this matter. While Mr Owens’ responses were not sufficient, I do not find that Mr Owens was trying to be dishonest or evasive in his answers. A more innocent explanation was apparent from his evidence as a whole: he seemed to have considered the opposition of the council and the NSW Police to a development application as being something quite different from opposition concerning a packaged liquor licence. Even had I concluded Mr Owens was being dishonest with regard to this topic, that would not lead me to reject his evidence on every topic; there was simply no basis for me to do so, and, indeed, the second and third respondents in submissions relied on other aspects of his evidence to make good other aspects of their submissions concerning amenity near the location of the proposed liquor shop.

37. It was an uncontroversial fact that the Applicant had made a development application to redevelop the site for a bottle shop and that this application had been rejected by Woollahra Council. The details of that rejection are set out at paragraph 22(3)(a) above. It was also uncontroversial that sometime later, the Applicant submitted what is commonly known as a complying development which allowed the site to be used as a bottle shop without being subject to an approvals process undertaken by Woollahra Council. To the extent that the respondents suggest the Applicant had been underhanded in this approach, I reject such a suggestion. The fact that the Applicant was able to avail itself of an outcome under the planning laws and regulations that it could not obtain through another process is neither underhanded nor is it particularly relevant to the question before the Tribunal. The relevant fact is that the Applicant has planning consent to be able to operate a bottle shop at the site, subject to being granted an appropriate liquor licence.

38. Mr Owens was also cross-examined about the terms of a summons that had been issued by this Tribunal at the request of the Applicant to the NSW Police Force for records of crime relevant to the Existing Bottle Shops. The summons returned no documents, i.e. there were no COPS reports of incidents associated with the Existing Bottle Shops. However, the second and third respondents also submitted that Mr Owens or the Applicant had deliberately ensured, by the terms of the summons, that the summons would not include COPS records regarding other packaged liquor premises in the area. Mr Owens denied this, and there does not seem to be any basis, aside from the terms of the summons, on which that submission could be made. A reasonable and less conspiratorial explanation for the terms of the summons may have been that the Existing Bottle Shops are the most proximate and, therefore, most relevant to the Tribunal’s consideration. In any event, I reject the submission made by the second and third respondents that this was a deliberate strategy on the part of the Applicant. I also reject the submission that the Tribunal was left with only a selective view of the police records associated with packaged liquor sales in the area. However, I do accept that the absence of any COPS records obtained under the summons does not allow me to infer that an additional liquor outlet in the same area will not cause incidents to occur.

Adam Purcell

39. Adam Purcell provided two reports and a supplemental affidavit in these proceedings:

1. The first report, dated 31 October 2021, was included in the s 58 Bundle and provided Mr Purcell’s observations and analysis of the Premises and the surrounding area in October 2021. Mr Purcell’s first set of observations took place between 4 and 7 PM on Friday, 29 October 2021 and between 9 and 11 AM on Saturday, 30 October 2021.

2. The second report, dated 22 December 2022, was annexed to Mr Purcell’s affidavit of 23 December 2022 and provided his further observations of the Premises and the surrounding area over three attendances on Saturday, 3 December 2022, between 10:00 AM and noon, on Friday, 9 December 2022, between 4:00 and 6:00 PM, and on Thursday, 22 December 2022, between 3:30 and 6:30 PM.

3. His reports address issues of social need, convenience, parking availability, and impulsive liquor purchases.

4. His supplemental affidavit addresses the report of Professor Ryan, Senior Constable Franks and Mr Coady, a town planner qualified by the second and third respondents, about children seeing alcohol served or consumed in Queen Street.

40. The second and third respondents were critical of Mr Purcell’s evidence on the following fronts:

1. Mr Purcell professes opinions that he is not qualified as an expert to provide. I accept that criticism and have outlined how I propose to deal with those aspects of Mr Purcell’s evidence below;

2. He left out crime statistical data, which he considered to be an aberration, instead of addressing it, and his conclusions were inconsistent with the BOSCAR data available. With regard to this, the Tribunal prefers the actual BOSCAR evidence before it without commentary from Mr Purcell in any event;

3. Mr Purcell’s so-called local knowledge is obsolete. I do not agree entirely with that submission. I accept that Mr Purcell is an experienced former police officer with knowledge of and experience in enforcing licencing laws. In this case, his experience in the Rose Bay local area command is also relevant. Though the second and third respondents called this experience “obsolete”, I do not accept that this is necessarily the case. Additionally, at the date of the hearing, Mr Purcell was the then President of the Eastern Suburbs Liquor Accord. I consider that local knowledge gained as a serving police officer in the community is not so easily displaced – a matter that applies with equal force to Senior Constable Franks’ evidence.

41. Though phrased as an expert report, for the reasons I set out in Adamson v Independent Liquor and Gaming Authority [2022] NSWCATAD 394 at [13]-[15] and [17], I do not consider that Mr Purcell’s opinions should be given weight in the manner of expert opinion. However, as with my consideration of Mr Purcell’s evidence in Adamson at [19]-[24], the Tribunal was assisted by Mr Purcell’s observations of his attendance at the Premises and its environs. I give limited weight to his opinions on licensing and no weight at all to the opinions he expresses on the basis that he is an expert about local amenity that are beyond even those areas of expertise he professed having.

42. Mr Purcell attended each of the existing venues and gave evidence of his observations concerning the ability of consumers to purchase packaged liquor. He observed the venues, the parking access and the street activity. Mr Purcell’s observations of these things are all matters upon which the Tribunal may rely.

43. Mr Purcel’s observations included that:

1. There was no convenient way to purchase packaged liquor if one were shopping at any of the food shops located directly on the strip where the Applicant’s liquor shop is proposed.

2. The position of the proposed site has access to numerous 30-minute parking spots that Mr Purcell observed had a high turnover at the times of his observations on Friday early evening and Saturday mornings. Mr Purcell observed that the parking near Moncur Cellars was either subject to a 2-hour limit or had “no stopping” signs. In his first report, Mr Purcell observed that parking outside Jim’s Cellars (which is located on Ocean Street) was subject to timed clearway lane restrictions between 3:30 and 6:30 PM on weekdays. In his second report, Mr Purcell observed that the area outside Jim's Cellars was a no parking zone between and later subject to a no parking zone between 3:30 and 6:30 PM on weekdays.

3. While there are several outlets that have packaged liquor licences, the number of physical venues offering takeaway liquor for purchase is less than the number of licences might suggest. Mr Purcell’s evidence was that he attempted to purchase takeaway liquor from the Woollahra Hotel, the Phoenix Hotel, the Centennial Hotel and the Light Brigade Hotel and was unable to do so. Mr Cooney, the owner and licensee of the Phoenix Hotel, says in his affidavit that his venue is permitted to, and regularly does, sell packaged liquor, though he concedes that the sale of packaged liquor is not the primary focus of his business. In the case of Woollahra Hotel, which is owned by the second respondent, he was directed to go around to the bottle shop around the corner (presumably Moncur Cellars). Mr Purcell also observed that when he attended Moncur Cellars on a Friday afternoon/early evening, there was a queue. He also observed that Jim’s Cellars was not open on Saturday morning at 10:45 AM.

44. I give no weight to Mr Purcell’s comments concerning the type of stock on offer by the Existing Bottle Shops. The fact is that alcohol was available to be purchased within the trading times of those outlets; the type of product on offer is not especially relevant when considering the matters to which the Tribunal must have regard.

45. I give no weight to Mr Purcell’s opinions concerning crime in the area or his analysis of crime hotspots for domestic and non-domestic assaults in particular. These are matters outside his area of expertise and are not observations of fact.

Anton Reisch

46. The Applicant relied on the evidence of Anton Reisch, who is a traffic and transport planning consultant. With regard to his experience and qualifications, Mr Reisch is appropriately qualified and experienced to provide the opinions set out in his report on the subject of traffic and transport planning. He was qualified by the Applicant to respond, among other things, to matters in Mr Coady’s reports that had been served on the Applicant by the second and third respondents. Mr Reisch prepared a report that was annexed to his affidavit, and he was also cross-examined by counsel for the second and third respondents. His report addressed:

1. the use of the rear access to the proposed liquor store in Peaker Lane for deliveries and customer pick-up;

2. whether there would be an increase in the intensity of demand for parking near the proposed store with specific reference to Queen Street;

3. whether the proposed store would lead to unacceptable increases in pedestrian use on the footpath near the proposed store;

4. whether the proposed store would increase general convenience to customers or enhance the local retail precinct’s ability to provide one-stop shopping.

47. Mr Reisch referred to the material upon which his conclusions were based as including other evidence tendered by the Applicant, including material from Mr Purcell and Mr Owens, the traffic surveys undertaken by a firm called Austraffic (who were commissioned by the Applicant’s solicitors), his observations of the vicinity and his review of the material in Mr Coady’s report. His conclusions, in summary, were that:

1. While there was no doubt that Peaker Lane is narrow and a single vehicle could prevent other cars or trucks from passing, the deliveries to the rear of the proposed store in Peaker Lane would be “essentially identical” to those in place for the current shop operating at the site and that there was no evidence that the change to a liquor store would create greater demands on the use of Peaker Lane for deliveries;

2. Parking demand on Queen Street and adjacent areas would not be significantly more than the demand created by the current store, nor would the characteristics of that demand be materially different;

3. The proposed liquor shop would have to have one-third more customers than the existing shop to generate sufficient demand for one additional car space.

4. There is no evidence available to suggest that there would be greater pedestrian traffic generated by the liquor shop above the present levels of pedestrian traffic entering the current shop (and by inference, Mr Coady’s opinion on this point is not soundly based). Further, Mr Reisch opined that the removal of flower buckets placed out on the footpath by the operator of the current store would increase the available area of the footpath, representing a substantial improvement in pedestrian amenities outside the proposed store.

48. Mr Reisch said he would not support any of the following measures that had been inherently supported by Mr Coady:

1. Restrictions on the use of Peaker Lane, including banning set down for delivery or customer vehicles where a vehicle is unable to pass a parked vehicle.

2. Banning parking in any local lanes where the potential exists for a vehicle to meet another vehicle travelling in the other direction.

3. Remove benches, tables, take-away counters, and counter seating on footpaths to improve pedestrian amenity.

49. Mr Reisch comments that no part of the Council’s reasons for the rejection of the development application concerned traffic access or parking. He noted specifically that Council had commented that parking and truck deliveries were considered to be satisfactory and that Council expected the intended use of the premises as a liquor store to be similar to the existing shops along Queen Street.

50. A primary criticism of Mr Reisch’s report was that he visited the area once, for an hour. Further, his report was criticised because Mr Reisch did not have any information concerning the current practice of deliveries for the existing use of the site. Instead, he had assumed that the Council, when assessing the development application, had regard to this issue and was satisfied. I do not accept that criticism. The site area is quite contained, and an expert of Mr Reisch’s skill and experience is capable of being able to garner the necessary observations and measurements if required to assist the Tribunal without lengthy or repeated inspections. Mr Reisch was also able to draw on the observations of Mr Purcell and Mr Coady and the traffic survey that had been commissioned separately.

51. Mr Reisch’s conclusions are logically drawn; the site is currently used as a retail shop with customers and deliveries. It is true that a liquor store and a store that sells mainly fruit and vegetables are different businesses; they may attract different customers and have different peaks of trading. However, there was no evidence before the Tribunal to describe how or what those differences were. The submissions of the second and third respondents suggested that deliveries made by a liquor store would be extensive and that customers of a liquor store would require greater use of car pick-up since the items were bulkier. I cannot accept that as the case in all circumstances: a bottle of wine is, no doubt, lighter or less bully than some items from a greengrocer (for example, melons and other cucurbits, potatoes, oranges, flowers), and while I can readily accept that liquor can be purchased in bulk quantities, so too, from general experience, can items from a fruit and vegetable store.

52. In cross-examination, Mr Reisch accepted that his observations of loading and unloading were not statistically significant and that he would have conducted further surveys of Peaker Lane if time had permitted – a matter that he already recorded in his report. However, I do not consider these concessions detracted from his evidence having regard to his experience and training.

Stuart McDonald

53. Mr McDonald is a town planner qualified by the Applicant. He provided an expert report dated 22 December 2022 that was annexed to an affidavit of the same date. Mr McDonald provided a further report dated 3 March 2023 that was annexed to a second affidavit also made on 3 March 2023.

54. Mr McDonald gave concurrent oral evidence with Mr Coady, the town planning expert qualified by the second and third respondents for these proceedings.

55. In his first report, Mr McDonald referred to visiting the location of the proposed liquor outlet several times, though he identified only two occasions on which he attended the area with particularity. Mr McDonald comments on the amenity, conformity with planning controls and local environmental plans and the size of the proposed store. Mr McDonald noted that the proposed store could not be objectionable on those bases.

56. Mr McDonald also stated in his first report that the scale of the outlet is a relevant consideration for the Authority under Guideline 6, though scale cannot, in my respectful opinion, relate only to the size of the premises but the intensity and extent of the business likely to be conducted there. However the size of the premises may tend to indicate the scale or intensity of the operation. It is relevant to note, as Mr McDonald states, that the proposed outlet would occupy a space of 61 sqm (though there was some debate about whether this was the actual size or only the trading area size) but that, by comparison, Vintage Cellars had been granted a packaged liquor licence to operate and outlet almost directly across the street from the proposed site in premises covering 215 sqm (i.e. more than three times the area).

57. A significant amount of Mr McDonald’s first report was unhelpful in that it made a direct comparison with the Existing Bottle Shops with regard to pricing, range, parking, children walking past those shops, and the market for alcohol. This gave rise to some extensive cross-examination of Mr McDonald which also did not greatly assist the Tribunal either. The Existing Bottle Shops are not the subject of these proceedings. The fact that those outlets may have less than adequate parking, or that children can observe liquor for sale from their shop windows, or that they offer heavily discounted liquor to the local area are not matters that are relevant to the Tribunal in this case. The relevant question here is whether or not a packaged liquor licence if granted for the proposed bottle shop, will be detrimental to the well-being of the local or broader community. The conduct of the Existing Bottle Shops, even if it were reckless or detrimental (and I expressly make no finding on that subject), could only have marginal contextual irrelevance to the question at hand.

58. Mr McDonald opines in his first report about matters that are outside the expertise of a town planner; for example, he provides an opinion on whether the proposed liquor outlet will operate in an established market or create a new market of different customers. Mr McDonald is not qualified as an economist, and I do give his opinion significance on this subject. No expert evidence from an economist specialising in retail liquor gave evidence to the Tribunal.

59. In his second report, Mr McDonald responds to matters raised in Mr Coady’s report. Mr McDonald prepared a land use survey of Queen Street between the intersection with Victoria Avenue to the west and Ocean Street to the east, as well as cross-streets intersecting Queen Street in that area, including Moncur, Spicer, Holdsworth and Alton Streets, and Dorhouer Lane. This area includes the area zoned as a mixed-use zone B4 by Woollahra Council’s Local Environmental Plan 2014, in which the site of the proposed liquor outlet is located, as well as the Woollahra Hotel and Moncur Cellars but not Jim’s Cellars. From his survey, Mr McDonald concluded that the area within those bounds was a neighbourhood centre which included a wide variety of retail shops selling fresh and takeaway food, restaurants and cafes, homewares, as well as services such as a pharmacy, doctors, hairdresser, a Pilates studio and dry-cleaners. Mr McDonald, responding to Mr Coady’s report then states his opinion that the proposed liquor outlet will not lead to the clustering of packaged liquor stores and instead, these outlets are spatially and visually separated.

60. Mr McDonald’s second report also addresses Mr Coady’s conclusion about the exposure of children to the sale of alcohol. I accept and prefer Mr McDonald’s conclusions over Mr Coady’s report in this regard. I do so because there is simply no basis to allege that school-aged children who walk past a properly managed liquor shop – or a properly managed hotel, for that matter – are placed in harm’s way. The site of the proposed store is near a cooked chicken shop and a store that sells treats or toys that children typically look out for. It is a universal observation that school-aged children (and younger) are more likely to be interested in toys, hot chips and ice creams than the products typically sold in a liquor shop. That focus was apparent from the posture of the children depicted in Mr Coady’s photographs. From the observations provided by Mr Purcell and Mr McDonald and Mr Coady, it is also apparent that most younger children walk past all sorts of shops in this particular neighbourhood while accompanied by a responsible adult who supervises them and might even provide appropriate framing of their experience.

61. Mr McDonald’s second report also considers the use of Peaker Lane for deliveries. In a similar vein to Mr Reisch, Mr McDonald opined that:

The existing shop and all 9 shops that rely on Peaker Lane, are in the same situation. Uses such as the butcher, fishmonger and food premises would have daily deliveries and regular waste collections. Any retail use of the site would be reliant upon and maintain the current arrangements. The proposal to use the site as a bottle shop doesn’t change this and does not introduce new or unacceptable circumstances, which are shown to be acceptable to the Council.

If one were to strictly apply the approach taken … in the Coady Report, then where would never be acceptable circumstances for any use on the site, or for that matter any of the 9 uses relying on the lane. As I have indicated above, the circumstances relating to the site and Peaker Lane currently exist and the proposed bottle shop will not unacceptably change things, as accepted by the Council in their assessment report.

62. Mr McDonald also comments and provides his opinion on the question of parking. His opinion, that there will not be increased traffic or parking congestion in the area because of the change of use of the site to a bottle shop, is consistent with Mr Reisch’s findings and is based on the traffic study performed by Austraffic. I accept Mr McDonald’s opinion expressed in his second report that:

… the Council has already considered this issue of parking and found that use to be satisfactory in this regard. The Austraffic traffic study confirmed the high availability and turnover of kerbside parking spaces in proximity to the site. Based on my experience, I have found parking to be readily available in the location.

63. Mr McDonald’s opinions concerning the use of Peaker Lane for deliveries are based on his observations of the site and on his experience as a planner. I accept those opinions and respectfully agree with them. Mr Reisch’s observations are equally supported and cogent. Accordingly, I find that on the question of amenity and particular the issue of delivery to Peaker Lane and traffic congestion, the proposed licence would not reduce or diminish the amenity of the area.

Susan Stancombe

64. Ms Stancombe read an affidavit which attached a report she had prepared of qualitative market research that she had undertaken using focus groups drawn from a sample of people living in the Woollahra local government area who purchase liquor and who are regular visitors to Queen Street Woollahra. She was also cross-examined by counsel for the second and third respondents.

65. Ms Stancombe’s report concluded that neither of the Existing Bottle Shops were particularly convenient and that the retail precinct of Queen Street was a nice, upmarket area. Those findings do not advance the matter very far. It is obvious that a bottle shop placed immediately next to food and other stores where it is proposed the new store will be located is convenient and that that must be a valuable attribute to the community. It is also without doubt, having regard to the socioeconomic statistics of the area, that the neighbourhood shopping precinct is likely to be an appealing area to visit.

66. The second and third respondents are strident in their criticisms of Ms Stancombe’s report. They submit that the report is “a pseudo-scientific attempt to dress up a series of uniformed subjective opinions as objective evidence about community expectations”. Further, as the second and third respondents point out, the research conducted by Ms Stancombe involved responses from only 23 people and that the manner in which those people were selected further reduced the chance of a representative sample.

67. Ms Stancombe’s academic qualifications, which comprise an incomplete bachelor’s degree in behavioural science, an advanced diploma in gestalt therapy and she is also a qualified professional researcher – an accreditation awarded by The Research Society, Australia, did not assure the Tribunal that she is an expert in a recognised field of specialist knowledge. While Ms Stancombe has 20 years of experience as a market researcher, it is not apparent that market research, or as the Applicant in closing submissions called it ”qualitative research” is really a field of specialised knowledge. Ms Stancombe presented as a reasonable and thoughtful witness and I can readily comprehend that her work may well be of great value commercially, but it is of little utility in proceedings such as this.

68. For the reasons given above, I do not give Ms Stancombe’s opinions arising from the focus group any weight, and I am not assisted by the observations she provides arising from her focus group work.

Sarah George

69. Ms George is a social planner. She holds a Bachelor of Arts majoring in psychology and sociology and TAFE qualifications in teaching and workplace training and assessment. She has relevant professional experience, having drafted approval policies for local government on alcohol-free zones and having prepared numerous social impact assessment assessments and social impact statements for various government agencies and applicants for licences. She also worked for several years in a town planning consultancy.

70. Ms George provided an expert report and gave concurrent expert evidence with Professor Ryan, a social planning expert qualified to give evidence by the second and third respondents. Both social planning experts referred to the research literature in their reports, and that material was made available to the Tribunal in addition to the expert reports.

71. Professor Ryan and Ms George agreed that the literature provided an adequate basis to inform the Tribunal’s decision. However, they disagreed as to how the literature should be applied to the assessment of the proposed liquor licence. Specifically, while she did not dispute the evidence and research relied upon and referenced by Professor Ryan, Ms George differed in her interpretation of that material.

72. That difference led to her conclusion that the proposed liquor outlet would not result in unreasonable detriment to the local or broader community. Ms George’s reasons for this were, as set out in her report:

● The populations of the local and broader communities display socio-economic and demographic characteristics that are robust and that are likely to be protective against alcohol-related harm including a well-educated population, employed and in high paying occupations.

● The local and broader communities do not have strong representations of groups typically considered to be at heightened risk of alcohol-related harms including people who identify as Aboriginal and/or Torres Strait Islander, the unemployed, and people in low paying occupations.

● The proposal relates to a small, packaged liquor outlet located within a local shopping strip where no alcohol is to be consumed on the premises, trading within standard house of trade.

● The subject site is located within an area that records low rates and densities of crime, including alcohol-related crime despite the existing outlet density calculations being above the rate referred to in the … research. As such, it is reasonable to assume that the grant of the subject application is similarly unlikely to result in any adverse impacts in respect of alcohol-related crime.

73. In her review of the relevant literature, Ms George summarised the following state of the research contained in the published literature as follows:

1. Assessing the potential impact of social harm requires consideration of the interrelationships between various socio-economic factors;

2. Incidents of alcohol-related crime and violence are more likely to occur between 9 PM and 3 AM on weekends and are more likely in places where licensed premises close at the same time. This accords strongly with the evidence of Ms Elsing and other local residents about anti-social behaviour that occurs in and around residences in Woollahra. Accordingly, this is not a relevant consideration for packaged liquor outlets. Indeed, packaged liquor outlets are not commonly associated with criminal incidents when compared with on-licence premises.

3. Alcohol consumption, particularly binge or long-term high-risk drinking is linked to health concerns and disease.

4. The evidence concerning the relationship between alcohol consumption and domestic violence is not clear; alcohol misuse is often a trigger for offending but incidents of domestic violence also occur in the absence of alcohol.

5. Management of licenced premises, including implementing harm minimisation and responsible service of alcohol practices, plays a significant role in minimising harms associated with alcohol use.

74. Ms George also addresses the question of whether, when assessing the density of liquor outlets, the Vintage Cellars Licence should be included. Professor Ryan considers that dormant licences should be included on the basis of the possibility that dormancy may end. Ms George opines that it is not necessary to include the Vintage Cellars Licence since, at the present time, alcohol is not being offered from that outlet. The inclusion of the Vintage Cellars Licence does not materially increase the density of liquor outlets in the area in absolute terms. But in relative terms, as the Authority noted in its submission to the Board, if that licence is excluded then the density of packaged liquor outlets in the suburb drops below the average for both Major Cities in NSW and the State average.

75. Though it is not clear when, or indeed if, the Coles Group will seek to make use of its liquor licence, the evidence was that it intended to do so sometime in the future. The Tribunal’s first instance decision in Auld considered a situation where premises to which a licence was attached had closed down, and there was no evidence that it would be enlivened (other than by transfer to a new site). Here, the Vintage Cellars licence, having been granted, has never been used and the site in respect of which it was granted has been converted to a different use. This, in my respectful opinion, is a relevant consideration on the ultimate issue but not a relevant question on the issue of outlet density.

76. Accordingly, on balance, I prefer to adopt Professor Ryan’s approach on this topic and have included the Vintage Cellars Licence when considering density. Further, I note that while the Authority’s submission that the outlet density statistics maintained by it include dormant liquor licences and, therefore, to omit the Vintage Cellars Licence may mean that a meaningful comparison of outlet density would be obscured if the Tribunal were to calculate density on a different basis from the Authority’s data, the Authority’s submission to the Board actually leaves the question open to whether or not to exclude the Vintage Cellar’s licence from consideration.

77. There is also an online packaged liquor retailer, based in the Woollahra LGA, known as Frootbat that does not have a physical store presence in the suburb or the LGA; instead, as I understand the evidence, customers order alcohol online for delivery by this. There was no evidence concerning the scale of that business or the extent to which their customer base was located in the suburb or the LGA. Professor Ryan noted other online stores also delivered to the area including BWS. To a layperson, the harms that the online outlets could induce might seem to be different from physical stores, including the proposed outlet and the Vintage Cellars Licence, in that neither offer takeaway liquor or walk-in liquor sales; as such they are irrelevant to my consideration of things such as street amenity, retail balance and development. However, as set out elsewhere in these reasons, the research indicates that the volume of sales, rather than the density of outlets, is a significant predictor of rates of violence in a community. Accordingly, I have considered these outlets with regard to the issue of licence density, and I also consider them to be marginally relevant to the question of industry development.

201. At the conclusion of the hearing, it remained unclear the extent to which customer collections at the rear of the store would be practical. To that end, the Applicant offered to have imposed on it a condition that customer collections were not to occur in Peaker Lane. This was a sensible condition, and I will include it in final orders. That condition, in my view, eliminates the potential for negative impacts in that regard.

Conclusion and Orders

204. Having regard to the totality of the evidence, I am satisfied, on balance, that the overall social impact of granting the Applicant a packaged liquor licence will not be detrimental to the well-being of the local or broader community.

205. Accordingly, I make the following orders:

1. The Authority’s decision is set aside.

2. The Authority is to issue Ice Box Liquor Pty Ltd with a packaged liquor licence subject to the conditions specified in its application in respect of premises at 136 Queen Street, Woollahra, New South Wales, and subject to the further conditions that customer collections will not be allowed to occur in Peaker Lane and that the Applicant will not make trolleys available for customers in its store.

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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: 28 June 2024