Iris Hotels Casula Property Pty Ltd v Liverpool City Council

[2022] NSWLEC 1520

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Iris Hotels Casula Property Pty Ltd v Liverpool City Council [2022] NSWLEC 1520

Hearing dates:

20-21 July 2022

Date of orders:

23 September 2022

Decision date:

23 September 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development application no. DA-1212/2021 for the demolition of existing structures, removal of trees, and construction of a four-storey building over 2 levels of basement carparking and business identification signage; the ground level is to be used as a pub containing a bistro, sports bar, VIP lounge and outdoor dining; Levels 1 to 3 are to be used for hotel facilities and accommodation, containing a total of seventy-two (72) rooms at 437 Hume Highway, Casula is refused consent.

(3) The exhibits are returned, except for C, E, F, H, J, K, 1, 2, 4, 6 and 7.

Catchwords:

DEVELOPMENT APPLICATION – hotel accommodation with a pub – site suitability – site isolation – adverse social impacts

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Gaming Machines Act 2001, s 209

Liverpool Local Environmental Plan 2008, Sch 5

Cases Cited:

680-682 Kingsway Caringbah Pty Ltd v Sutherland Shire Council [2017] NSWLEC 99

CIC Insurance Ltd v Bankstown Football Club Ltd (1995-1997) 187 CLR 384

Karavellas v Sutherland Shire Council [2004] NSWLEC 251

Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280

New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154

Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355

Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 199

Suh v Liverpool City Council and Casual Community Group for Responsible Planning Inc No 2 [2016] NSWLEC 1596

Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10; [2006] NSWLEC 133

Waugh Hotel Management v Marrickville Council [2007] NSWLEC 775

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

WWL Consulting Pty Ltd V Marrickville Council [2011] NSWLEC 1161

Texts Cited:

Liverpool Development Control Plan 2008

Roche, A et al. (2015) ‘Evidence review: The social determinants of inequities in alcohol consumption and alcohol-related health outcomes’, VicHealth

Category:

Principal judgment

Parties:

Iris Hotels Casula Property Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
R O’Gorman-Hughes (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/358101

Judgment

1. This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Liverpool City Council of DA-1212/2021 (DA). By that application, Iris Hotels Casula Property Pty Ltd sought consent to develop the site known as 437 Hume Highway, Casula for hotel accommodation including a pub.

2. The site is located on the corner of Hume Highway and Grove Street and is presently occupied by a development that offers budget accommodation. The proposal involves the demolition of the existing building and the construction of a four-storey building over two levels of basement carparking with business signage.

3. The proposed use of the ground level is for a pub containing a bistro, sports bar, VIP lounge (including gaming) and outdoor dining. The proposed use of Levels 1 to 3 is for hotel facilities and accommodation, containing a total of 72 rooms.

4. The Basement (Level 2) will accommodate 79 cars including seven (7) disabled car parking spaces, as well as building services; and two lifts, one to service the proposed pub and the other the proposed hotel. There will also be parking spaces for 20 cars at grade along the southern site boundary.

5. The hotel is proposed to trade Monday to Saturday from 7am to 12 midnight; and Sunday from 7am to 10pm. The maximum capacity for the proposed development is 310 patrons. The proposed development intends to operate in accordance with the Plan of Management dated July 2022 (PoM) (Ex C) which encompasses venue management, security management, alcohol, and community liaison.

Contentions

6. At the hearing, the Council stated that the contentions in its Amended Statement of Facts and Contentions (ASOFAC) (Ex 2) had, to a large extent, been resolved by the provision of further information. This further information has also facilitated the concurrence of Transport for NSW (TfNSW), the NSW Police, Endeavour Energy and Sydney Water to the proposed development. The dispute is now isolated to the issues of social impact (Contentions 9, 10 and 12), site isolation of the adjoining sites, particularly the southern neighbour at 443 Hume Highway (No 443) (Contention 11), and the public interest.

Decision

7. For the reasons that follow, I have determined to refuse development consent to the DA and dismiss the appeal.

Facts

8. The facts may be briefly stated. The site is located on the western side of the Hume Highway some 500m from its intersection with the M5. It has an area of 3133m² with a primary frontage to the Hume Highway of 46.48m and a secondary frontage to Grove Street of 72.79m.

9. The land is within the B6 Enterprise Corridor zone under the Liverpool Local Environmental Plan 2008 (LLEP), and the proposed use is permissible with consent as “Commercial premises” (which are defined to include retail premises which includes a pub) and hotel or motel accommodation.

10. The objectives of the B6 Enterprise Corridor, to which regard must be had, are:

•  To promote businesses along main roads and to encourage a mix of compatible uses.

•  To provide a range of employment uses (including business, office, retail and light industrial uses).

•  To maintain the economic strength of centres by limiting the retailing activity.

•  To provide primarily for businesses along key corridors entering Liverpool city centre, major local centres, or retail centres.

•  To ensure residential development is limited to land where it does not undermine the viability or operation of businesses.

•  To provide for residential uses, but only as part of a mixed-use development.

11. The locality is best characterised as a mix of business uses and low-density residential development. Approximately 600m away in De Meyrick Avenue, several blocks from the site is the closest school - the Casula Public School. There is a public bus stop approximately 160m to the south of the site on the Hume Highway that provides public transport directly to Liverpool Station up until 10pm weekdays and weekends.

12. The aerial photograph at Fig 1 below shows the site (outlined in red) in its context.

13. The zoning map extract (ASOFAC Fig 2) and schedule detailing the adjoining properties explains the interrelationship of the various allotments and land uses.

LEGEND
Colour	Zone
Green	RE1 Public Recreation
Grey Blue	B6 Enterprise Corridor
Pink	R2 Low Density Residential
Yellow	SP2 Infrastructure

Orientation	Description of Site
North	1 Grove Street, Casula (Double Storey Dwelling)
South	443 Hume Highway, Casula (Single Storey Dwelling)
West	2 Grove Street, Casula (Single Storey Dwelling)
East	SP2 Classified Road, Hume Highway

14. Immediately to the east and to the west of the site are generally single storey homes within a R2 Low Density Residential zone under the LLEP. Adjoining the site to the east is the Hume Highway, which is zoned SP2 (classified road), and the land to the north and south including the property at No 443 is zoned B6 Enterprise Corridor under the LLEP.

15. A Post-war brick dwelling is erected at No 443 which is a heritage item of local significance identified in Sch 5 to the LLEP (Item 13A Post-war brick dwelling).

16. Part 6 Section 2 of the Liverpool Development Control Plan 2008 (LDCP) provides a minimum frontage width for development for the purposes of a new building along a classified road in the B6 zone in certain circumstances, and further provides such development must not leave adjacent land so that it cannot achieve the minimum width. The provision states:

“Objectives

a) To ensure that land in a Business zone can accommodate the use including the car parking and loading provisions.

b) To ensure that there is sufficient frontage and area for any dwellings in conjunction with the business use.

c) To ensure that vehicular access is reasonably spaced and separated along roads and lanes.

d) To ensure suitable business exposure in a visually uncomplicated and ordered environment.

Controls

Neighbourhood Centres and Local Centres (B2 & B1 zones)

Sites must have a minimum street frontage of 20 m.

Business Development (B5 zone)

The minimum subdivision lot size is 2000sqm (LLEP 2008).

Enterprise Corridor (B6 zone)

1. Development shall not be permitted for a new building (other than a maximum 10% addition to an existing structure) in the B6 zone unless the site has a frontage width to the Classified road of at least:

- 30 m, where the site also has frontage to a local street that intersects with and would permit access to and from the classified road; or

- 90m otherwise.

2. Development for a new building (other than a maximum 10% addition to an existing structure) in the B6 zone must not leave adjacent land such that it cannot achieve either:

- A site frontage with of at least 30m (where the site also has frontage to a local street that intersects with and would permit access to and from the Classified Road): or

- 90m otherwise.”

17. Relevantly, the property at No 443 has one frontage of 15.46m to the adjoining classified road. As a practical matter, it is submitted that it cannot amalgamate with the property to the south, and if this DA is approved, the Council contends No 443 “…cannot achieve either a site frontage of at least 30m…or 90m otherwise”. On that basis, the applicant’s proposal is said to breach Control 2 of Part 6 of the LDCP because it isolates the adjoining site at No 443.

Objector evidence

18. Residents living near the proposed development addressed the Court onsite. Among the submitters were a local pastor from Prestons, a specialist medical officer and the adjoining landowner.

19. To a large extent, the oral submissions mirrored the contentions raised by the Council about likely adverse social impacts arising from the proposed pub use and site isolation (Contentions 9, 10 and 12 of the ASOFAC). These concerns were often repeated in the 300 submissions (including petitions) lodged with the Council during the notification period. That said, it was clear to me that those who spoke held a genuine belief based on lived experience that an approval of the proposed pub use would likely exacerbate alcohol-related harm within their immediate locality. A locality which collectively they described as being “particularly disadvantaged” with high levels of unemployment, domestic violence and alcohol and drug-related problems.

20. Those most proximate to the site gave evidence about their direct experience of unacceptable noise, and behavioural issues associated with the existing low budget Ibis Hotel at the site and feared for the worse with the introduction of a pub even to an upgraded hotel facility.

21. Mr Kniepp, who resides with his young family opposite the site, voiced strong objection to the proposal. He explained that his family’s residential amenity was already highly compromised by his property’s location along the Hume Highway to the east and adjoining the M5 motorway at its northern boundary. He feared the introduction of a pub and outdoor bistro - directly opposite his backyard and southern boundary - will further reduce his family’s remaining quiet enjoyment of their home. He does not believe that the proposed pub use is suitable for the site because of its proximity to residential properties. Nor does he have any faith in satisfactory management of the proposed pub use via a plan of management based on his experience living opposite the existing budget hotel. The end result, in his view, will be an unacceptable increase in noise and alcohol-fuelled violence outside his home, particularly at closing time when all traffic leaving the site will be required to turn left into Grove Street and exit through the residential streets in order to re-enter the Hume Highway. Mr Kniepp is also worried about the impact of the pub development on the value of his main asset, his family home.

22. The other submitters, including Pastor Hemans from the Open Heaven Church and Criss Moore on behalf of the Casula Community Group for Responsible Planning also believe that the proposed pub use will exacerbate existing anti-social behaviour and alcohol-fuelled violence in the immediate area. These submitters described the site as inappropriate for the proposal given its close proximity to a socially depressed residential area of low socio-economic means. An area they identified as having vulnerable populations including: two women refuges, elderly pensioners (some with disabilities), and a number of culturally diverse and linguistically challenged individuals (some of whom indicated to Ms Moore that they object to the proposed development but did not understand how to lodge an objection as they cannot write or read English and therefore did not participate in the consultation process), together with a large number of residents who are dependent on social welfare.

23. Dr Crozier, a vascular and trauma surgeon from Liverpool Hospital (Hospital) of 26 years standing expressed strong objection to the DA, based on personal experience and as a delegate for the Southwestern Sydney Local Health District. He read a lengthy written submission dated 20 July 2022 which was subsequently filed in Court. In summary, Dr Crozier said he was aware of the existing levels of alcohol and gambling-related harm in the Liverpool LGA and the inadequate resources that exist to help victims harmed by alcohol and gambling-related problems. He was conscious of the burden of road crash victims on his hospital’s resources and described the segment of the Hume Highway immediately in front of the site as deemed to be the most dangerous segment with respect to the frequency of road crash deaths and serious injuries. In that regard, Dr Crozier gave evidence that he had managed many victims of road crashes during his two and a half decades of service at the Hospital noting that several had come from crashes on this segment of the Highway. He believes that the proximity of the intersection with the M5 less than 200m away from the site, is likely to magnify the consequences of increased crash risk if this application for a pub with onsite gambling facilities is approved. Having observed for many years the derogation in the amenity of the suburb of Casula, following the approval of a particular tavern with progressive extensions to its liquor licence, Dr Crozier said adding the service of alcohol for the hours proposed in a new hotel on this site was totally unacceptable, if not irresponsible. He emphasised that the unacceptability of the development was due to the socially-disadvantaged community around it and the chronic resource limitations currently experienced at the Hospital, exasperated by COVID-19 and a backlog of elective surgeries.

24. The adjoining owners of the site immediately to the south at No 443 engaged a consultant planner, Ben Tesoriero, to give evidence for them. As identified in the Council’s contentions, their main issue is site isolation. After identifying the frontage and access constraints of his clients’ land, Mr Tesoriero explained his clients’ failed attempts to amalgamate with properties to the north and south, at or for above market sums. He described his clients as struggling to redevelop because their site did not comply with the 90m minimum lot frontage and did not have a secondary street frontage in addition to the Hume Highway. In the event of an approval of the applicant’s DA, Mr Tesoriero said that his clients’ site would be isolated and adversely impacted in terms of its inability to comply with Part 6, Section 2 and other controls in the LDCP. As such, he said an approval of the applicant’s DA did not constitute orderly development of the land. While a potential solution could be a right of way over 437 Hume Highway to give access to Grove Street for No 443, he explained that all approaches on that basis had also been rejected. In those circumstances, he invited the Court to refuse consent.

Expert evidence

25. Dr J Stubbs and Ms S George gave written and oral expert evidence about the social impacts of the development. Their joint report is Ex E.

26. Ms K Hodgkinson and Mr R Micallef gave expert planning evidence about the site isolation issue. Their joint report is Ex F.

Jurisdictional matters

27. There are two matters of jurisdiction which must be addressed before any consideration of the merits of this application.

28. The first matter of jurisdiction concerns the height of the development. The evidence is that the building has a parapet height of 15.4m and the maximum permissible height under cl 4.3 of the LLEP is 15m. The 400mm breach of the standard arises from the lift services overrun and the screening on the roof of the building.

4.3 Height of buildings

(1) The objectives of this clause are as follows—

(a) to establish the maximum height limit in which buildings can be designed and floor space can be achieved,

(b) to permit building heights that encourage high quality urban form,

(c) to ensure buildings and public areas continue to receive satisfactory exposure to the sky and sunlight,

(d) to nominate heights that will provide an appropriate transition in built form and land use intensity.

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

Note—

Clauses 5.6, 7.2 and 7.5 provide for circumstances under which a building in the Liverpool city centre may exceed the maximum height shown for the land on the Height of Buildings Map.

29. To address the breach of the height standard the applicant has lodged a written request pursuant to cl 4.6 of the LEP prepared by its planner Ms Hodgkinson (Ex A Tab 12).

30. At paragraph 21 of the written request, the applicant relies on the first of the Wehbe[1] tests to argue that compliance with the standard is unreasonable and unnecessary in the circumstances of this case because the objectives of the clause are achieved notwithstanding the breach. It then sets out in detail how the objectives are achieved emphasising the minimal nature of the 400mm variance. I accept that the scale of the non-compliant elements of the building result in a building height that is commensurate with the location of the building and is responsive to the topography and limited fall of the land. The result is a design that encourages high quality urban form. The written request next deals with the zone objectives at paragraph 23 and, again at paragraph 25 submits that the proposed development is consistent with those relevant objectives. The proposed development including that portion of the building that is non-compliant with the standard allows for a variety of uses located along a main road which are compatible uses. The proposed development including the non-compliant component will provide a range of opportunities for employment as a result of the diversified use of the land. Having considered both the standard objectives and the zone objectives I am satisfied that the proposal is consistent thereby, the proposed development can be said to be in the public interest.

    1. Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827.

31. Paragraphs 28-30 of the written request articulate the environmental planning grounds that are said to support an approval of the variation – with particular emphasis on par 30. In that regard I accept having satisfied the objectives of the B6 Enterprise Corridor zone and appreciating the fact that the non-compliant building height will not impact on the streetscape or result in overshadowing or loss of sunlight and the building height screens, plant and equipment that the breach can be justified on environmental planning grounds.

29. Relevantly, the Council does not take issue with the 400mm minimal non-compliance with the standard and for the reasons outlined in the request I am satisfied that the variation is justified in the circumstances of this case. For the purposes of cl 4.6(5), the Secretary of the Department’s concurrence to the variation is assumed (Planning Circular PS 18-003 dated 21 February 2018) and cl 64(1) of the Environmental Planning and Assessment Regulation 2000 and I have considered the matters raised in subcl 4.6(5) and am satisfied.

30. The second jurisdictional matter concerns cl 102 of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure; now s 2.120 of State Environmental Planning Policy (Transport and Infrastructure) 2021) which arises because the proposed development has a frontage to a classified road. Again, the Council raises no issue in respect of this matter and based on the evidence before me including the traffic evidence, I am also satisfied that the matters raised in cl 102 of SEPP Infrastructure are satisfactorily addressed. The plans and PoM ensure that there will be safe and efficient access to and from the proposed development from Grove Street thereby satisfying subcl (2). All exiting from the Hume Highway will be a left-only turn. As the proposed development has been sited and designed to address the matters raised by SEPP Infrastructure, there is no impediment to my assessment of the merits of this DA.

Adverse social impacts

34. The LDCP requires applications for development of, or major changes to, hotels, bars, pubs and taverns to provide a comprehensive social impact assessment (SIA). Ms George prepared a Social Impact Assessment Report dated September 2021 which addressed the LDCP requirements and was submitted with the DA (Ex A). Dr Stubbs has reviewed the SIA and the updated PoM in a report dated 16 June 2022 annexed to the joint report Ex E. Also annexed to that joint report is Dr Stubbs’s review of Duane’s (2022) Catchment Area Analysis.

35. The principles in relation to social impact are relatively well known, and in some respect, more easily stated than applied. They were recently noted in the Court’s decision of Suh v Liverpool City Council and Casula Community Group for Responsible Planning Inc No 2 [2016] NSWLEC 1596 (Suh) at [32].

36. In this case the parties invite me to apply those principles when assessing the social impact of the proposal and I agree that is appropriate. However, the Council goes a little further and submits that I should also follow the adverse findings about social impact set out in the Suh decision due to the similarities between the two appeals. It was submitted that they both concern a pub in a similar location. Both are in domestic assault hotspots and both are in very disadvantaged areas, although the locality around the subject site is even more disadvantaged than that considered in Suh.

37. That said, short of articulating the relevant principles at [32], the findings in Suh are, in my opinion, background circumstances but of limited relevance to the case at hand. The Suh case was factually different. It concerned a larger single storey hotel with a bar and eating facilities for up to 500 patrons located several metres down the road about 137m from the McDonald’s restaurant just south of the subject site. The proposed trading hours were later, and the relevant area had a SEIFA Disadvantage (Socio-Economic Indexes for Areas (SEIFA) – the Index of Relative Socio-Economic Disadvantage) score in the 13th percentile in Australia.

38. Whilst it is desirable to have consistency in decision making across cases where the facts bear some similarities, ultimately each case must be decided on its own facts and the evidence at the relevant time: Segal v Waverly Council (2005) 64 NSWLR 177; [2005] NSWCA 310.

The Council’s position

39. Dr Stubbs has assessed the relevant locality for the purposes of her assessment of the likely social impact to be the area within 1km radius of the site.

40. Accepting that in the Australian context, the SEIFA Disadvantage is the best measure of overall disadvantage and the main indicator of increased alcohol related harm (Ex E p 10), she notes that the SEIFA Disadvantage index for the most relevant locality in this case is the 11^th percentile (Ex E, p 77 Table 4.1).

41. On that basis Dr Stubbs has assessed the likely adverse social impacts associated with the proposed development to include the following:

1. a significant increase in alcohol-related harm including harm related to physical and mental health, domestic violence, personal and family distress, and exacerbation of existing alcohol-related health and welfare issues in the locality;

2. a significant increase in existing levels of alcohol-related crime including assault (domestic violence) and malicious damage in the immediate locality where there are already hotspots for such crimes; and likely introduction of problems related to assault (non-domestic) associated with the new hotel in this socio-economic context;

3. amenity impacts related to noise, nuisance and annoyance from patrons returning to parked cars and/or residences in nearby streets including late at night;

4. introduction of a licensed premises into a highly vulnerable immediate locality/community that makes it far more accessible than existing hotels, and highly visible and within easy walking distance of highly vulnerable populations, public housing communities, and those with existing drug and alcohol problems;

5. while not considering electronic gaming machines (EGMs) per se, the likelihood that the 30 EGMs and late night trading will attract the most vulnerable members of the local community, including late at night, who are more likely to be alcohol affected, and at risk of flow on effects related to increased domestic violence and other alcohol-related harms, as victims of crime (noting that s 209 of the Gaming Machines Act2001 excludes from this Court’s consideration aspects related to the gaming machines: Waugh Hotel Management v Marrickville Council [2007] NSWLEC 775);

6. vehicle and pedestrian safety impacts in surrounding streets to the west of the Hume Highway for patrons seeking to travel south on the Hume Highway including for cars exiting the premises in a highly trafficked environment; and for pedestrians leaving the premises, in particular in relation to increased risk of being adversely affected by alcohol consumption on the Hume Highway and in surrounding streets;

7. adverse amenity and safety impacts on sensitive uses including the primary school, two crisis/DV refuges, childcare centres and NDIS providers, residences, as well as on adjacent fast food premises;

8. potential issues related to accommodation provided with the licensed hotel for guests who may be more vulnerable, and with regard to ready access to alcohol; and

9. the lack of efficacy of administrative controls in the revised proposed PoM in this context.

(Ex E p 48).

42. Dr Stubbs is critical of Ms George’s selection of geographic scales for the purposes of the assessment of social impacts in the SIA for the development (SIA 11152223 Suburb) (Ex E, Stubbs’ report dated June 2022 at par 4.2.4), and the accuracy of Mr Duane’s Catchment Area Analysis (Ex E, Stubbs’ report dated June 2022 at p 123).

43. Accepting that licence premises do not respect suburb boundaries, Dr Stubbs believes that unless the hotel is a “destination venue” or within an attractor such as a major CBD, the catchment is likely to more closely align with the relative proximity of residents and workers in an area to that hotel and particularly with respect to more frequent usage.

44. As this proposal is not a “destination hotel” or “attractor hotel”, Dr Stubbs identified the following features of the proposed development and the surrounding areas to justify her conclusion that the relevant locality is a 1km radius: as indicating a quite localised primary catchment area for this hotel namely:

• walkability from adjacent residential areas;

• lack of ready access to a train station;

• limited availability of buses out of the areas from around 9.30pm; and

• the location and likely catchments of hotels in the Liverpool CBD and the Casula suburb including the larger hotel with a more extensive entertainment offering and opening hours in the southern part of Casula which would more reasonably attract residents from less disadvantaged part of Casula due to proximity.

45. A conclusion Dr Stubbs believes is supported by the literature in that:

“…the main impacts of alcohol-related harm, such as related to amenity and crime are most likely to be experienced in areas in closest proximity to the proposed hotel and extending out 500-1000m from the hotel”

(Ex E, Stubbs’ report dated June 2022 par 4.2.2).

46. In terms of a wider locality, given the location of the other hotels and residential areas, Dr Stubbs gave evidence that it is more likely that the proposed hotel would attract patrons to its west (rather than south), from areas such as Lurnea and Prestons for example, as constituting a wider locality. (Noting, that Lurnea is about 5 mins away (2.9 km) driving time from the site and it is one of the top disadvantaged areas of NSW with a low SEIFA score (bottom 4% of NSW households). And, according to the Council’s assessment report in the year to September 2021, the rate of alcohol related domestic assault in the suburb of Lurnea was 129.1. This was higher compared to Liverpool LGA rate of 69. It was higher compared to the rate for major Cities of Australia (NSW) (91.4). The alcohol related domestic assault rate in the year September 2021 for the suburb of Lurnea was higher in the rate of 49.7 in the year to September 2020. Outlet saturation in Lurnea (10.7) is lower compared to NSW (209.1) and lower compared to Major Cities of Australia NSW (187.5) averages (L&GNSW) (Ex 3 Tab 7 folio 31)).

47. Dr Stubbs’ Map 4.2 in her June 2022 report identifies the concentration of existing and proposed venues that sell alcohol in each suburb (excluding on- premises licences and packaged liquor outlets), surrounding the site within a 1km, 2km and 5km buffer. Noting, that there is no other hotel within the primary 1km radius or in the area to the immediate west.

48. And, accepting that in the Australian context SEIFA (Disadvantage) is the best measure of overall disadvantage, Table 4.1 of her June report 2022 provides a summary of indicators for the relevant localities compared with benchmark areas. Relevantly, Dr Stubbs said that Table 4.1 demonstrates much greater than average vulnerability to alcohol-related harms within 1km of the proposed hotel as being highly likely given the 1km radius also accords with a very low (SEIFA Disadvantage) (NSW Percentile) index of 11% (one of the lowest 11% of areas in the State). In this context Dr Stubbs’ evidence is that the social impact of an approval of the development will likely result in an increase in alcohol-related harm (including increased susceptibility to alcohol-related illness and injury, alcohol-related violence (general and domestic), malicious damage, family stress and amenity impacts related to drunkenness, noise and nuisance) because of the increased accessibility and usage by people in the primary and secondary locations.

49. In response to Mr Duane’s wider area as being within 3-5km, given the proximity of the hotel, the location of other pubs and road connectivity etc, Dr Stubbs was of the opinion that this wider locality would be more likely to favour suburbs to the west and northwest of the proposed pub due to lack of pubs in most of these suburbs, proximity, connectivity and the fact that areas to the south, north and east are more proximate to Liverpool CBD, south Casula (Crossroads Hotel) (Ex E p 6). Therefore, on that basis, she was careful to distinguish the more favourable crimes rates for the entire suburb of Casula relied on by the applicant due to the location of the site on the tip of the Casula area and much closer to the poorer suburb of Lurnea based on the SEIFA Disadvantage index and identified hot spots for crime in the suburbs of Liverpool closer to the site. She did not accept that the BOSCAR crime statistics score for Casula with an alcohol related crime event lower than State averages could be relied upon in this case.

50. Dr Stubbs’ evidence is that the proposed pub will be highly accessible to an immediate locality that is particularly disadvantaged and more vulnerable than average to a range of alcohol related harms (Ex E, Stubbs’ report dated June 2022 p 2). She does not support the development being introduced to a community that has well above average levels of disadvantage and vulnerability to alcohol-related harm because, as the literature notes, alcohol-related harm is context specific, with increased harms above the normal threshold related to social disadvantage.

51. Whilst acknowledging that there may be benefits if the application is approved for the wider locality including an increase in choice of licensed premises and accommodation (Ex E, Stubbs’ report dated June 2022 at par 1.3), and that alcohol purchased from bottle shops may be cheaper than pubs, Dr Stubbs remained firmly of the view that the likely adverse social impacts in the immediate and wider locality are so serious, and unlikely to be mitigated by the proposed PoM that the application cannot be supported on social impact grounds. Dr Stubbs was also concerned about the off-site impacts with patrons leaving the hotel in close proximity to a range of sensitive land uses, including residential dwellings, public housing communities, a primary school and 6 childcare centres, and in an already highly vulnerable locality (Ex E p 12 Livingston’s (2008) findings). Her concerns for adjacent users which were also voiced by the local objectors who addressed the Court and reflected in some of the responses to the community consultation process for the SIA (Ex 3 Tab 7 folio 31).

The applicant’s position

52. As stated, Ms George prepared the SIA that was lodged with the DA which assessed the socio-economic and demographic characteristics of the local area (SIA, Chapter 4), and considered the SEIFA for residents of Casula compared to the Liverpool LGA. Consistent with her findings in the SIA, Ms George confirmed in the joint report and in her oral evidence to the Court her expert assessment that there is nothing about the introduction of a new licensed premises on this site that is likely to exacerbate the existing situation.

53. In reaching that conclusion, she emphasised that the proposed hotel accommodation will be fitted out and designed to a very high standard and as such, will appeal to residents within her principal catchment area - being the population of Casula. A population which, in her opinion, is demonstratable underprovided for in terms of licensed clubs and hotels, as demonstrated by the following table:

54. Whilst acknowledging that there are pockets of disadvantage found in most catchments, after a consideration of the overall characteristics of the principal catchment area, Ms George gave evidence that the relevant population in this case is not beset by circumstances that should compromise their access to material and social resources. As such, she believes that the proposed pub will be a positive addition to the locality which will enhance social cohesion in the community. It will be a meeting place for members of the local community to gather together to dine, drink, commemorate, celebrate, and enjoy themselves with other members of their own community.

55. In anticipating that a fair proportion of the patrons of the proposed pub will be those staying within the hotel accommodation at the site Ms George believes that the fit out of the proposed hotel is likely to be more attractive to the residents who live south of the expressway who otherwise have less access to social meeting places within their own community. Given the physical barrier of the expressway, Ms George was of the opinion that the people to the north are more likely to attend the Collingwood Hotel as opposed to the site.

56. Ms George gave evidence of a minimal response to the community consultation process for the SIA (Chapter 5.7 of the SIA). A response which she considers is confirmation that the local community and key stakeholders are not significantly concerned about the proposed development – (a conclusion the applicant submits is supported by TfNSW, NSW Police and NSW Health’s concurrence to the proposal).

57. Ms George gave evidence that the proposed development is consistent with B6 Enterprise Corridor zone objectives in the LLEP (at [10]). Therefore, being both permissible and consistent with the zone objectives, the applicant submitted that development consent ought be forthcoming for a purpose for which it is zoned.

58. Whilst Ms George accepted risky alcohol consumption or alcohol misuse can result in harms; she gave evidence that there is no one socio-economic factor to predict a person’s likelihood of using alcohol in a harmful way. She said the research confirms the complex relationship between socio-economic characteristics/factors. In that regard, Ms George referred to research which showed that higher socio-economic groups drink more and at riskier levels, whereas many people from low socio-economic groups do not drink. Albeit, she conceded that lower socio-economic areas tend to have higher concentrations of liquor outlets, clubs and bottle shops that provide alcohol at a cheaper rate. She also accepted that health literacy plays a significant role in reducing harms.

59. Importantly, Ms George gave evidence that an approval of this pub will not result in outlets densities that are above average in NSW – which the research indicates is the tipping point for alcohol-related harms. Nor will an approval of this DA result in outlets in the area being separated from other outlets that sell alcohol.

60. Ms George’s evidence relied heavily on the literature which records that the majority of licensed premises are well run and do not cause problems and only a minority of premises are associated with a disproportionate amount of violence. It is her considered opinion that the proposal is a venue for the consumption of alcohol in a controlled environment. In her assessment, this may, in fact, reduce the need for people to drink at home and may result in a protective factor against alcohol contributing to incidents of domestic violence at home (she referred to studies which indicate greater risk of domestic violence with the sale of packaged liquor and drinking at home).

61. Ms George cautioned against reliance on BOCSAR hotspot mapping as the best measure of the risk of crime in any given area (Ex E p 11) because hotspots reflect density of incidents in specific areas, not the number of incidents in the entire LGA; and they are not adjusted for the number of people residing or visiting the LGA. Therefore, they do not reflect areas where people have a higher-than-average risk of victimisation.

62. Ms George believes the on-site accommodation will help ensure that the premises operate so as not to cause a disturbance to hotel patrons. She anticipates that the proposed security features such as security personnel, CCTV monitoring, and the courtesy bus to transport patrons’ away from the venue are likely to reduce the potential for malicious damage and the like. And, because the premises will not be providing cheap drinks - given its target clientele; and will not be overcrowded, or offering late-night trading when the majority of people are said to be involved in alcohol-related crime, [2] she disagrees with Dr Stubbs’ evidence that:

“…the introduction of this pub into the immediate locality is likely to result in the effects seen in Assault (non-domestic) hotpots maps associated with areas around the Miller and Liverpool CBD pubs in the context of their highly disadvantaged demographic”.

2. Roche, A et al. (2015) ‘Evidence review: The social determinants of inequities in alcohol consumption and alcohol-related health outcomes’, VicHealth

63. Ultimately, Ms George gave evidence that given the particular characteristics of the proposed development it is unlikely to result in unreasonable or adverse social impacts. The robust PoM, the size of the venue, the target market and onsite parking and accommodation and the low outlet density in the suburb of Casula and the Liverpool LGA are reasons why a prohibition approach in this case is not suitable.

Consideration

Social impact on the locality (Contentions 9, 10 and 12)

64. Section 4.15(1)(b) of the EPA Act requires a consideration of “… the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts on the locality” (emphasis added).

65. The term “locality” is not defined in the EPA Act. Therefore, what constitutes the relevant locality in this case is a matter for my determination based on the evidence, having regard to the location of the site on a main road which makes it accessible but subject to identifiable outer limits (Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 199; Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280 at [96].

66. For the reasons outlined by Dr Stubbs, as summarised, I find that the relevant locality for the purposes of the assessment under s 4.15(1)(b) of the EPA Act is the immediate area within 1km radius of the development site.

67. In forming that view, I accept Dr Stubbs’ assessment that the wider locality would be more likely to favour suburbs to the west/northwest of the site due to proximity, road connectivity, and the fact that the areas to the south, north and east are more proximate to existing larger destination hotels in the Liverpool CBD and south Casula (such as the Crossroads Hotel, Wattle Grove Hotel, Moorebank Hotel and Sports Club). I accept her expert assessment that the 310 patrons of the proposed development are more likely to be those closest to it including guests of the hotel and people living within a 1km radius which is consistent with the research she refers to. A 1km radius where there are no other establishments that lawfully serve alcohol to be taken away or consumed on the premises, accepting the on-premises licence at the existing Ibis Hotel (Tcpt, 21 July 2022, p 12(5-25)).

68. As Ms George accepted in Court this proposal is nothing like the significantly larger Collingwood Hotel to the north and the Crossroads Hotel Pub which offer features such as live entertainment, greater dining options and better access to public transport – “pulling cards” that she agreed would generate a greater catchment area (Tcpt, 21 July 2022, p 14(25-40)). Rather, she described the proposed premises as including a licenced hotel with standard trading hours (Ex E p 6). It is not a destination hotel. Nor is it a large format hotel although “…having accommodation above the hotel makes it different as you have co-occurring uses” (Tcpt, 21 July 2022, p 14(46-50); p 16). Reflecting on her evidence, I accept that some people staying in the onsite accommodation may come from outside the local area and that it is unlikely that they live within a 1km radius, but the majority will be locals within the 1km radius.

69. Accepting that the research suggests that the size of the venue and its features inevitably influence the clientele and in turn the catchment area, I accept Dr Stubbs’ evidence that the majority of the proposed pub’s patrons will be those staying at the premises or living closest to it. As Dr Stubbs identified this is a smaller pub venue, located outside the CBD, with limited transport options, no live entertainment and limited dining options. As such, it is more likely to draw on clientele within a 1km radius of this site and some of the visitors staying in the 72 rooms of onsite accommodation.

The socio-economic demographic of the locality

70. Having identified the relevant locality, I must now consider the socio-economic demographic of that area because it is generally accepted in the literature that there is a correlation between social disadvantage and increased vulnerability to alcohol-related harm: WWL Consulting Pty Ltd V Marrickville Council [2011] NSWLEC 1161 at [53] and [89]. In this case, the evidence is that the 1km immediate locality around the site is a highly disadvantaged area. It has a demographic profile that on aggregate (SEIFA Disadvantage) and on individual indicators would predict well above the Greater Sydney average threshold levels. Therefore, based on the literature, Dr Stubbs gave evidence that the areas closest to the site are likely to experience the effects of the hotel most intensely in terms of increased impacts for a range of alcohol-related harms including:

• increased consumption of alcohol,

• alcohol-related violence,

• neighbourhood drunkenness and other amenity impacts,

• adverse health and social problems, and

• pedestrian and vehicle crashes (section 2.1.4 of Attachment JS1).

71. Accepting that the SEIFA Disadvantage is an independent predictor of a range of alcohol-related harms, and that more severe impacts are predicted in areas in the most disadvantaged 20% areas, the experts’ agreed evidence is that the immediate locality, in this case, is in the most disadvantaged 11% of the areas for Australia, and that some of the most proximate SA1s and State Suburbs are even more disadvantaged. In fact, the data records that the wider locality is even more disadvantaged with the State Suburbs of Miller, Ashcroft, Cartwright Heckenberg, Sadlier and Bushy (most with large public housing estates) in the most disadvantaged 2% of State Suburbs for Australia; and the adjacent suburb of Lurnea in the most disadvantaged 4% of State Suburbs for Australia. Dr Stubbs gave evidence that this is a very high and widespread level of disadvantage and would predict much higher than average vulnerability across a range of alcohol-related harms. I accept her expert assessment because it focusses on the relevant area within 1km radius of the site and areas to the west and northwest and Ms George’s evidence does not.

72. Dr Stubbs also gave evidence that the immediate locality (the 1km radius) has high rates of vulnerability on a range of other indicators that have also been predicted to increase a range of alcohol-related harms above average/threshold levels, including much higher-than-average rates of public housing, unemployment households on very low incomes, and people in lower skilled occupations, lower education levels and who are divorced, separate or widowed. In her evidence, Dr Stubbs said that these factors introduce increased alcohol-related harm into a community already burdened with poorer health and wellbeing outcomes by virtue of very low socio-economic status (Roche et al. (2015); joint report p 7). I accept Dr Stubbs’ evidence that the SEIFA Disadvantage and a number of individual indicators independently predict above-average adverse effects of introducing a pub into this context, acknowledging that such communities already experience higher threshold levels (such as poorer mental health and physical health, existing patterns of risky drinking, etc) by virtue of disadvantage.

73. During concurrent evidence, Dr Stubbs and Ms George agreed that the lower the SEIFA score, the higher the risk of commission of domestic violence. They also agreed that introducing alcohol into areas of a low SEIFA score would likely increase the risk of domestic violence (Tcpt, 21 July 2022, p 34(35-50)). Although, Ms George was careful to emphasise that the research also indicates that a significant proportion of domestic violence occurs when no alcohol is involved and whilst there may be a contributory link between domestic violence and alcohol, there is no evidence of a causal link (Tcpt, 21 July 2022, p 21(45-50)).

74. Fortunately, I do not have to find a causal link between alcohol and domestic violence in this case. My focus is on a consideration of the likely social impacts of the development on the locality (s 4.15(1)(b) of the EPA Act). Having considered all the evidence in respect of the likely social impacts positive and negative, I accept Dr Stubbs’ expert assessment, as summarised above, that the immediate locality has high rates of vulnerability on a range of indicators that predict an increased risk in a range of alcohol-related harms in the event of the approval of this application.

75. Ms George gave evidence that people who live near a pub may be more inclined to go to a pub closer in proximity (depending on what it is offering) (Tcpt, 21 July 2022, p 25(40-50)). Yet, she chose the suburb of Casula as the relevant locality (which has a score of 32% relative to the rest of NSW rather than the immediate locality that might be walking distance of the proposed pub within a 1km radius which has a much lower figure of 11%) for the purposes of her SIA. Her decision had the effect of portraying the SEIFA score of the likely patrons at the site as being more advantaged than they are on the more relevant evidence of Dr Stubbs.

76. The suburb of Casula extends south of the site in the vicinity of 5km and a 100m from the northern boundary. Ms George said she chose that suburb because it was a discrete suburb in the Council’s policy “…who might be most impacted - a reasonable local community on which to base the statistics” (Tcpt, 21 July 2022, p 27(5-15)). While I accept Ms George did not intend to obfuscate data by choosing the suburb of Casula at 32% rather than the closer 11%, it is important to appreciate the correct relatively low SEIFA score when considering the social impact of an approval of this DA.

77. As Dr Stubbs identified in her evidence the suburb of Lurnea to the north of the site - outside the Casula catchment but within the 1 km radius - where there is no hotel, is more relevant than the suburb of Casula in the assessment of social impact for this site. In referring to her map at 4.3 of Attachment JS1 (Ex E, Stubbs’ report dated June 2022) - she gave evidence that “… it didn’t make any sense to use Casula as an arbitrary boundary” because you need to understand what is close to the site and in this case, the relevant areas cut across the Liverpool State Suburb, Casula State Suburb, and part of Lurnea. Based on Dr Stubbs’ study area (including the surrounding suburbs that are very poor areas or very disadvantaged on the SEIFA scale, who are very vulnerable to alcohol-related harms), it is clear that the base level for introducing this development is higher than average. Therefore, as Dr Stubbs identified, you are starting with a threshold of poor health, mental health issues, stressors that come from poverty, propensity to drink at high levels and so on and also other neighbourhood problems (Tcpt, 21 July 2022, p 31(15-50)). On her evidence, adding one hotel into that higher threshold, where the community is already vulnerable at a high level, is going to generate greater-than-average impacts because the SEIFA Disadvantage also predicts a higher-than-average impact on some of those alcohol-related harms. She described it as a double whammy or the reciprocal relationship entrenching inequality. Currently without a hotel in the relevant area, you do not have the burden of people walking home at night drunk or additional problems. In her expert assessment, approval of this proposed development will introduce those problems. It is a complex relationship, but I accept her assessment.

78. Having considered all of the social impact evidence including the relevant views of the objectors where they supported the expert evidence and were something more than an expression of subjective fear or concerns: New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154; Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10; [2006] NSWLEC 133, I find that the likely social impacts of this proposed development do not support an approval of the DA. While the proposed development is permissible, and some degree of impact is deemed to be acceptable by society - in this case, the weight of the evidence overwhelmingly supports a refusal of consent.

79. Furthermore, the evidence about crime statistics for the suburb of Casula relied upon by the applicant does not represent the relevant assessment area. While all of the community is entitled to have access to alcohol establishments, and the absence of such establishments from which alcohol can be purchased around the site is relevant - as is increasing the choice of licensed premises in a wider locality, the impacts on the immediate locality are, as Dr Stubbs states, so serious and unlikely to be mitigated by the proposed PoM that I believe they should be avoided.

80. The applicant made much of the fact that the NSW Police have provided concurrence to the DA. On reading the letter from the NSW Police, it is best described as a letter of non-opposition to the development on the basis of the imposition of certain conditions. In that circumstance, the expert evidence before the Court about likely social impacts is to be given greater weight because the police have had no experience of the social impacts of a pub in this location against which to assess likely impacts and raise objection to the DA at the time they were asked to assess the application.

81. Lastly, as the B6 zone allows for a variety of uses, the permissibility of this use is a neutral factor in my assessment of the DA. Any advantage of this venue providing an opportunity for socialising on the site is outweighed by the likely adverse social impact.

Site isolation of 443 Hume Highway

82. The Council contends on the evidence of its planner, Mr Micallef that the proposal breaches Control 2 of the LDCP. As noted at the outset, No 443 has a frontage of only 15.495m to the adjoining classified road. Accepting that it cannot be amalgamated with the property to its south, the Council submits that the proposal leaves No 443 “so that it cannot achieve either a site frontage of at least 30m…or 90m otherwise”.

83. In construing the words “cannot achieve”, it is further submitted by the Council that regard must be had to their context and purpose, as is the case with statutory provisions generally: CIC Insurance Ltd v Bankstown Football Club Ltd (1995-1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at [78]. It should be construed as including situations where amalgamation is not practical. By way of analogy, the accepted jurisprudence in planning law is that a site may be considered to be isolated notwithstanding amalgamation is theoretically possible, where practically it is not. Relying on the Court’s decision in Karavellas v Sutherland Shire Council [2004] NSWLEC 251, Commissioner Tuor refused to find that simply because two neighbouring land owners were $50,000 apart in their negotiations, that amalgamation of the sites was feasible, adding that “inherent in the concept of whether amalgamation is feasible is whether it is also reasonable” and in 680-682 Kingsway Caringbah Pty Ltd v Sutherland Shire Council [2017] NSWLEC 99 at [136], the Council emphasised that site isolation does not only relate to cases where a site is physically isolated but also extends to situations where amalgamation is not practical (for example, by the existence of a road) but also where the nature of development on adjoining land ensured that a site was practically isolated (for example, where it contained a residential flat building or a cinema). The Council argues on the facts that the site at No 443 is such a case. It contains a building of relatively recent construction that is close to the maximum permitted density. Ms Hodgkinson said in oral evidence that the floor space ratio (FSR) for No 443 was 0.75-0.8:1, close to the 1:1 maximum. And although not qualified to express an opinion on whether the development potential of that lot made redevelopment viable, Mr Tesoriero gave evidence that the owners of No 443 had attempted to amalgamate with that property, including offering to purchase it at a valuation above market rate, but such offers had been refused.

84. Whilst the Council accepted that a consent authority is required to be flexible in applying DCP provisions, it submitted that no reasonable alternative solution has been offered that would achieve the objects of the provision. No offer of an easement over the subject site has been accepted and according to Mr Micallef, the alternative solution suggested by the applicant, being the acquisition of an easement to provide access to the cul-de-sac at the rear of No 443, is not feasible as it would involve the acquisition of easements over two other properties.

85. The Council invites me to ask the questions identified by the Court in Karavellas v Sutherland Shire Council at [17]:

“The general questions to be answered when dealing with amalgamation of sites or when a site is to be isolated through redevelopment are:

• Firstly, is amalgamation of the sites feasible?

• Secondly, can orderly and economic use and development of the separate sites be achieved if amalgamation is not feasible?”

86. After a consideration of those questions, the Council submits that there is no evidence in the DA to satisfy the Court that amalgamation of No 443 with the subject site is not feasible and that the DA should be refused. Indeed, the Council submits that the little evidence before the Court suggests that it is feasible. 

87. The applicant points out in its final submission that the property to the south of the site does not have a FSR of 0.75-0.8:1 but rather is proposed to be at the maximum if that is 1:1 and complying with the 15m. In terms of the LDCP control, it submits that the property at No 443 has a DA pending before the Council (Ex D Tab 4 subtab C, p 18) maximising the FSR even with the existing heritage item on it. On that basis, there is no site isolation issue. The applicant submits it may be so in the LDCP but not on the evidence before the Court.

88. I accept the applicant’s submissions and for those reasons, I find that there is no satisfactory evidence before me to refuse consent on this ground.

Conclusion

89. For the reasons above, after an assessment under s 4.15 of the EPA Act I have decided that the application should be refused development consent and the appeal dismissed.

90. The Court orders:

1. The appeal is dismissed.

2. Development application no. DA-1212/2021 for the demolition of existing structures, removal of trees, and construction of a four-storey building over 2 levels of basement carparking and business identification signage; the ground level is to be used as a pub containing a bistro, sports bar, VIP lounge and outdoor dining; Levels 1 to 3 are to be used for hotel facilities and accommodation, containing a total of seventy-two (72) rooms at 437 Hume Highway, Casula is refused consent.

3. The exhibits are returned, except for C, E, F, H, J, K, 1, 2, 4, 6 and 7.

………………………

S Dixon

Senior Commissioner of the Court

**********

Endnotes

Amendments

29 September 2022 - Correction to typographical error at [30].

Decision last updated: 29 September 2022