Woolworths Ltd v Blacktown City Council

Case •

[2011] NSWLEC 1296

•

19 October 2011

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Woolworths Ltd v Blacktown City Council [2011] NSWLEC 1296
Hearing dates:17, 18 March, 19, 20 July 2011
Decision date: 19 October 2011
Jurisdiction:Class 1
Before: Pearson C
Decision:

Appeal upheld

Catchwords: Development application - retail liquor outlet - weight to be given to amending local environmental plan - whether adverse social impact - site security
Legislation Cited: Environmental Planning and Assessment Act 1979
Blacktown Local Environmental Plan 1988
Cases Cited: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279
New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195
Category:Principal judgment
Parties: Woolworths Limited (Applicant)
Blacktown City Council (Respondent)
Representation: Counsel
Mr M Staunton (Applicant)
Solicitors
Mr C Gough, Storey & Gough (Applicant)
Mr A Seton, Marsdens Law Group (Respondent)
File Number(s):11003 of 2010

Judgment

  1. This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to Development Application No 09-1113 seeking consent for the fit out and use of an existing commercial premises for the purposes of a retail liquor outlet, at 454 Quakers Hill Parkway, Quakers Hill (the site).

  1. The proposed fit out will include display shelving, cool room and refrigerators, sales counter, office and staff areas and storage areas. The proposed hours of operation are Monday to Wednesday 9am to 8pm; Thursday to Saturday 9am to 9pm; and Sundays and public holidays 10am to 7pm. Signage is proposed as part of the development, which is to be a "Beer Wine & Spirits" retail liquor outlet.

  1. The site is a small commercial facility accessed from Quakers Hill Parkway which comprises a service station, McDonalds restaurant, a Subway restaurant, a real estate agent and a solicitors office. The subject premises are currently vacant, and most recently were used as a video store. The subject premises share the use of 79 car parking spaces with the other commercial tenancies on the site.

  1. The surrounding area is predominantly residential. There is a poultry farm to the east on Quakers Hill Parkway. Quakers Hill High School is located approximately 555m to the west of the site along Quakers Hill Parkway. At the rear of the site is Corbin Reserve. The land drops down from the site to the public reserve. Stairs previously connecting the site to the reserve have been removed and there is presently no direct access from the site to the reserve. On Farnham Road, on the other side of Quakers Hill Parkway there is a small shopping centre in which Quakers Hill Cellars is located; that shopping centre adjoins a public reserve.

Issues

  1. The issues between the parties relate to the weight to be given to the amendment of Blacktown Local Environmental Plan 1988 since the development application was made, which has the effect of prohibiting the proposed development; whether the proposed development is likely to have an adverse social impact in the locality; and whether site security concerns and the number and nature of objections received warrant refusal of the application.

Planning controls

  1. The land is zoned 2(a) Residential under the Blacktown Local Environmental Plan 1988 (the LEP). The objectives of the LEP are provided in cl2:

2 Aims, objectives etc
...
(2) The objectives of this plan are:
(a) to allow for a variety of rural based activities while maintaining the urban potential of relevant rural land,
(b) to allow for a variety of residential lifestyles,
(c) to allow for a variety of business uses while consolidating existing commercial centres,
(d) to enable a variety of uses in industrial areas while protecting the viability of existing retail centres,
(e) to prohibit offensive or hazardous industries,
(f) to ensure space is provided for community services and facilities,
(g) to ensure space is provided for recreational activities and facilities,
(h) to ensure land is available to accommodate all required special land uses in the most effective manner, and
(i) to protect Blacktown's environmental heritage.

  1. The zone objectives and development control provisions are:

1 Objectives of zone
The objectives are:
(a) to make general provision to set aside land to be used for the purpose of housing and associated facilities,
(b) to identify existing residential areas of a predominantly single dwelling character, and to maintain that character by prohibiting residential flat buildings,
(c) to enable sensitive infill development of other housing types if the infill development is of a bulk, scale and appearance that does not adversely impact on adjoining development or the amenity of the locality,
(d) to enable development for a variety of housing forms, including townhouses, villas, integrated housing, dual occupancies and the like, if such development does not interfere with the amenity of surrounding residential areas by way of overshadowing, overlooking, or loss of privacy,
(e) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours, and
(f) to allow within the zone a range of non-residential uses which:
(i) are capable of visual integration with the surrounding environment,
(ii) either serve the needs of the surrounding population or the needs of the City of Blacktown without conflicting with the basic intent of the zone, and
(iii) do not place demands on public services beyond the level reasonably required for residential use.
2 Development that does not require consent
Nil.
3 Development which requires consent
Any purpose other than a purpose included in Item 2 or 4 of the matter relating to this zone.
4 Prohibited
Residential flat buildings; purposes listed in Schedule 1.

  1. Schedule 1 to the LEP includes as a prohibited use "shops", defined in cl 6 to mean "a building or place used for the purposes of selling, hiring, displaying or offering for sale by retail goods, merchandise or materials, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere specifically defined in this clause".

  1. The development application was lodged on 22 May 2009. At that time, cl6 of the LEP included a definition of "liquor outlet", to mean "any licensed premises at which alcoholic beverages are offered for sale by retail and for which the licensee holds an off-licence". It was common ground that a "liquor outlet" being separately defined, the proposed development did not fall within the prohibition in Schedule 1 of a "shop", and accordingly the proposed development was permissible with development consent.

  1. On 22 April 2010 Blacktown Local Environmental Plan Amendment No 221 (the amending plan) commenced. The amending plan deleted the definition of a "liquor outlet" in cl 6 of the LEP. As a consequence, the proposed development would now fall within the definition of a "shop", and would be prohibited in the 2(a) Residential zone.

  1. Clause 52 of the LEP provides that a development application that was lodged with the consent authority, but that was not finally determined, before the commencement of the amending plan is to be determined as if the amending plan had been exhibited but not commenced.

  1. Clause 41A of the LEP applies to the site and provides:

41A Development of certain land for additional purposes
Nothing in this plan prevents a person, with the consent of the council, from carrying out, on land described in Column 1 of the following Table, development for a purpose specified in relation to that land in Column 2 of that Table, subject to such conditions, if any, as are specified in Column 2 of that Table.
Column 1                    Column 2
Land   Development
Lots 1-3, DP 853722,
Quakers Hill Parkway,
Quakers Hill.              Service station, restaurant, video store and real estate agent.

  1. The Blacktown Development Control Plan 2006 applies to the site.

Evidence

  1. The Council notified the proposed development and received 21 individual objections, a petition with 697 signatures, 450 pro forma letters of objection and two letters of support. Those submissions are included in the council's bundle of documents (Ex 8). The grounds of objection were that there was no need for another retail liquor outlet in the area, impact on existing retail liquor outlets, inappropriate location adjacent to family oriented fast food outlets, inappropriate proximity to a high school which would increase exposure of young persons to alcohol and encourage underage drinking, inappropriate location adjacent to a public reserve which would result in an increase of anti-social behaviour such as vandalism, littering and violence, insufficient access and egress arrangement to the site, and excessive hours of operation.

  1. The hearing commenced on site with a view of the site, the public reserve, and the shopping centre at Farnham Road. Evidence was given on site by four neighbouring residents opposed to the development, the Principal of Mary Immaculate Primary School, a representative of the Catholic parish, the proprietor of Quakers Hill Cellars, and Detective Inspector Guyatt from Quakers Hill Local Area Command. The evidence of the residents was consistent with and supportive of the written objections and in particular raised concerns as to anti-social behaviour, crime, and litter.

  1. The Principal of Mary Immaculate Primary School, which is located on Farnham Road on the other side of Quakers Hill Parkway, stated his concern about the proximity of the proposed liquor outlet to schools in the area, and to the McDonalds and Subway outlets.

  1. The proprietor of Quakers Hill Cellars stated that he has recently purchased the business, and has concerns about traffic and impact on children. He thinks the subject site will be a meeting place for children, and he has concerns about the proximity of the liquor outlet to the reserve.

  1. Detective Inspector Guyatt stated that he adopted the submissions made by other officers of the Police Force to the council, and his concerns relate to the congregation mentality. Specific issues of concern related to traffic, including traffic movement problems due to the single exit driveway from the site, traffic movements within the site, and deliveries; anti-social behaviour including graffiti at the rear; limited lighting, increased potential for robbery offences; and the use of McDonalds by young people as a gathering and meeting point in the evening. Detective Inspector Guyatt was not satisfied that proposed CCTV cameras would alleviate his concerns in relation to surveillance.

  1. Evidence in support of the proposed development was given by a neighbouring resident, and by the franchisee of the Subway restaurant.

  1. Expert planning evidence was given on behalf of the applicant by Mr Robert Chambers and on behalf of the council by Mr Lindsay Fletcher. Mr Chambers and Mr Fletcher provided a joint report (Ex 7) and gave oral evidence on 18 March 2011.

  1. Expert evidence on social planning issues was given on behalf of the applicant by Mr James Lette and by Dr Judith Stubbs on behalf of the council. Mr Lette and Dr Stubbs provided a joint report dated 15 March 2011(Ex 9). The applicant objected to the inclusion of an attachment to the joint report titled Social Impact Assessment dated February 2011 prepared by Judith Stubbs & Associates (JS2), and to references to that document in the joint report, on the grounds that its preparation was contrary to the direction that the experts not prepare separate statements; it was prepared by three people and not the witness giving expert evidence; the scope of the document goes beyond the contentions; and the applicant's expert would need time to deal with some of the material. The document was admitted on the basis that it provided the background material on which Dr Stubbs' opinions were based in the joint report, and the parties reached agreement as to the deletion of certain parts of that document.

  1. On the first day of hearing the applicant foreshadowed that it would be relying on evidence as to the applicant's experience with comparable liquor outlets in the form of evidence from Mr James Scott-McKenzie. The Council objected on the basis that the Council was not in a position to respond to this evidence which included factual assertions. Directions were made in consultation with the parties to address the additional material on which the applicant was proposing to rely, in order to provide information to assist in understanding potential social impacts while limiting the scope of additional research required. Those directions included a direction that the applicant provide its data on comparable outlets to Mr Lette, and that he prepare a report on the comparable liquor outlets including the reasons why they were comparable; investigations of the social impact of the outlets on the locality including impacts on land zoned residential, parks or open space in the vicinity and local schools; and the relevance of the results on the application before the court. The Council's representative indicated that it did not wish to be involved in the process of selecting from the data provided by the applicant. Directions were made for a further conference between the experts and the preparation of a supplementary joint report addressing social impacts of the proposed development in its locality based on the additional information in Mr Lette's report and the material already in evidence. Mr Lette prepared a report on Comparable Liquor Outlets (Ex G), and he and Dr Stubbs conferred and prepared a further joint report (Ex 10). Mr Lette and Dr Stubbs gave oral evidence on 19 July 2011.

Weight to be given to the amendment of the LEP

  1. The Council submits that while not determinative, the amendments of the LEP to prohibit development for the purpose of a liquor store in the Residential 2(a) zone should be given significant weight.

  1. The applicant submits that in accordance with the reasoning in Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, the issue is whether the planning purpose of the amendment is undermined by the proposed development, and whether it is consistent with that purpose.

  1. The Council documents (Ex 8) indicate that the amendment of the LEP to omit references to "liquor outlets" was one of a number of amendments to the LEP undertaken in 2009. The report to the Council (tab 34) recommending support for the amending LEP stated that the purpose of the amendment was to prohibit liquor outlets in non-commercial zones. A previous amending LEP gazetted on 3 April 1998 had prohibited liquor establishments in all zones other than Business Zones. In 2000 in an unrelated amendment, the words "liquor outlets" had been omitted in item 4 of the zoning table for Residential Zones from a legal opinion and redrafting received from Parliamentary Counsel, and consequently liquor outlets were omitted from the list of prohibited uses in the Residential Zones. The omission was discovered by Council staff early in 2009 following a pre-DA meeting for the present application.

  1. The Council's position has been that the omission of "liquor outlets" from the list of prohibited uses in 2000 was an oversight. That is not confirmed in the advice from the Director-General to the General Manager of the respondent dated 10 March 2009 in which he stated that the respondent could not use s73A of the Act to prepare a draft LEP because it was not possible to determine whether the omission was an error, and because the department was not able to establish when in the LEP making process that occurred (Ex F).

  1. The draft amending plan was exhibited without a savings clause; a savings clause was inserted on the advice of the Department of Planning. In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J summarised the authorities on the weight to be given to a draft LEP, particularly in the circumstances where it was a draft when an application was lodged and has since been gazetted with a transitional provision. The fact that the amending plan has come into effect ensures that the plan is certain and imminent and accordingly, must be given significant weight in the determination of the application. However, due to the savings provision, the inquiry does not stop there. Lloyd J held:

30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council [1991] 74 LGRA 185 at 193).

  1. In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 the Court of Appeal confirmed (at [50]) that the terms of a transitional provision such as cl 52, together with s79C(1)(a)(ii) (as then in force), required that proper regard be given to a draft instrument that had been exhibited, and that proper regard meant that some draft instruments were entitled to significant weight; and in the circumstances of that case, that it was appropriate to give significant weight to the fact that the draft instrument was by then in force.

  1. At the time the development application the subject of these proceedings was lodged, a liquor outlet was permissible in the 2(a) Residential zone. The council's general manager had resolved to prepare a draft local environmental plan to amend the LEP on 27 April 2009; the amending plan was exhibited from 28July to 25 August 2009; and the amendment commenced on 30 April 2010.

  1. In my view the amendment of the LEP to prohibit development for the purpose of a liquor outlet in the residential 2(a) zone is a matter which should be given significant, but not determinative, weight. The deletion of the definition of "liquor outlet" from cl 6(1) had the effect of prohibiting development for that purpose in the three residential zones in the LEP, including the Residential 2(a) zone. The amending plan also removed the specific prohibition on development for the purpose of a liquor outlet in other zones, including zone 1(a) General Rural and zone 1(b) Rural Residential. There were a number of other amendments to the LEP made by the amending plan, most being to update references within the LEP. While there is no objective provided in the amending plan, in my view it reflects a general revision of provision for liquor outlets in the local government area in accordance with an assessment of the appropriate zones for such development. However, the proposed development must be considered on the basis that it is permissible on the site, and in undertaking that assessment it is relevant that the amending plan did not amend the objectives of the LEP, or those applicable to the Residential 2(a) zone.

Whether the proposed development is consistent with the LEP and zone objectives

  1. Clause 9(3) of the LEP requires that consent cannot be granted unless the consent authority is of the opinion that the carrying out of the proposed development is generally consistent with one or more of the LEP objectives and one or more of the zone objectives. The expert planners agreed that the only potentially relevant objective contained in cl 2 of the LEP is (2)(c), and the only potentially relevant objective of the Residential 2(a) zone is (f). The planners disagreed as to whether the proposed development satisfies those objectives and thus whether the proposed development meets the requirements of cl9(3) of the LEP.

  1. Mr Chambers was of the opinion that the proposed development is consistent with objective 2(2)(c) because a liquor store is a type of business permissible with consent by virtue of cl 52; other business uses are permissible on the site; and the proposed liquor store is compatible with and consolidates the small commercial centre without diminishing the viability of existing commercial centres elsewhere. In relation to objective (f) of the 2(a) zone, Mr Chambers was of the opinion that the proposed development would have no impact on the visual integration of the building or of the land on which the building is erected with the surrounding environment; it would provide a service to the surrounding population without causing impacts that might conflict with the basic intent of the zone; and it would not place demand on public services beyond the level reasonably required for residential use.

  1. Mr Fletcher's evidence was that while the proposed development is consistent with the first part of objective (c) in that it will allow "a variety of business uses", the site cannot be regarded as an "existing commercial centre" given its Residential 2(a) zoning and on that basis the proposed development cannot contribute to "consolidating existing commercial centres". While the proposed development is consistent with paragraphs (i) and (ii) of the zone objective (f), and may serve the needs of the surrounding population, the basic intent of the residential 2(a) zone is to provide low density housing, and even allowing for the site specific circumstances that permit a very limited and specific range of shops on the site there was no evidence to suggest that the council intended liquor outlets to be appropriate on the site. In oral evidence Mr Fletcher accepted that the proposed development does not undermine the existing commercial centres.

  1. Having regard to the expert evidence and to the view, I am satisfied that whether it is described as a service centre (in Mr Fletcher's terms) or as a commercial centre (as Mr Chambers contended), the site has characteristics that distinguish it from the surrounding residential area, including its physical separation from the surrounding residential area and the reserve, the range of uses permitted by cl41A of the LEP, and the uses present on the site. I agree with Mr Chambers that the site is effectively a commercial centre, as a collection of commercial uses which serve the needs of the local community, and is not a usual residential zone. The addition of the proposed liquor outlet would continue the variety of business uses on the site, and I agree with Mr Chambers that it is consistent with the objective in cl2(2)(c) of the LEP.

  1. Considering the zone objectives, the experts agreed that the proposed development is visually integrated with the surrounding environment on the site, and serves the needs of the surrounding population. Mr Fletcher agreed that the intent of the 2(a) zone is to provide housing with appropriate residential amenity, and he accepted that on planning grounds the proposed development would provide an appropriate residential amenity; in comparison with the video store it has a smaller retail area, reduced hours of operation, no greater traffic, and surveillance will be improved. There was no suggestion that the proposed development would impose greater demands on public services beyond that required for residential use. I am satisfied that the proposed development is consistent with objective (f) of the 2(a) zone.

Whether the proposed development is likely to have an adverse social impact on the locality

  1. The Council contends that the proposed development is likely to have an adverse social impact in the locality, for the following reasons:

  • the site is unsuitable for the proposed development because of its proximity to the Quakers Hill High School, fast food restaurant premises and an isolated public reserve at the rear;
  • there is significant potential for the secondary supply of alcohol to minors and the consumption of alcohol on the grounds or in the vicinity of the adjacent McDonalds and Subway premises;
  • there is significant potential for the secondary supply of alcohol to minors and the consumption of alcohol on the grounds of or in the vicinity of the isolated public reserve at the rear of the site which is likely to result in anti-social behaviour (eg graffiti, vandalism, broken glass, alcohol-related violence) on the grounds of or in the vicinity of the reserve;
  • the proposed development provides a temptation for consumption of alcohol in the vicinity, specifically minors and young adults.

  1. The Council submits that while legal, liquor outlets are not suitable for all sites for which they are a permissible use, and the context is relevant. In this context, it is relevant that the site is immediately adjacent to an attractor for young people, namely McDonalds; it is immediately adjacent to a public reserve which includes isolated portions used by youths for anti social activities including graffiti; it is reasonably proximate to a high school and students from that school use the McDonalds restaurant particularly in the afternoons; and the site and its surroundings are on the weekends a place for young people to congregate. For those reasons, the Council submits that there is a heightened and unacceptable risk with the location of a liquor outlet relating to secondary supply of alcohol, whether by consumption on the site or being thrown over the fence to the public reserve.

  1. The applicant disputes the Council's description of McDonalds as a significant youth attractor, and its description of the premises being proximate to the reserve and to the high school. The applicant relies on the measures in place to address possible secondary supply of alcohol, namely the erection of a fence to prevent access from the site to the reserve, and the proposed plan of management. The applicant submits that the proposed development is permissible and meets the relevant objectives. The evidence is that all liquor outlets can potentially supply alcohol to minors through secondary supply and that would not be a proper basis for refusal, and that the evidence does not support the Council's submission that the context of the site makes the level of risk unacceptable.

  1. Dr Stubbs and Mr Lette agreed that the risk that alcohol would be consumed within the premises of McDonalds or Subway is very low and that if it did occur, that person would be expelled from those premises. Neither was aware of any evidence that public drinking or underage drinking is currently occurring at the site or in the reserve, or that alcohol-related crime is occurring in the reserve. They disagreed as to whether this would change if the application is approved.

  1. In Mr Lette's opinion there is a small, but manageable, risk that secondary supply could occur within the site or its locality; this risk is not significant and would not occur at a higher rate than any other retail liquor outlet.

  1. Dr Stubbs considered that the net impacts of the proposal in the locality are likely to be negative. In her opinion, those adverse impacts relate to:

  • the risk of secondary supply to minors and underage drinking through increased visibility, convenience, access to and normalisation of alcohol through co-location with a youth attractor and convenience of illicit consumption in adjacent open space areas;
  • the related increase in alcohol-related harm arising from increased access, visibility and convenience, with such harm being adverse amenity impacts related to anti-social behaviour and malicious damage in the locality for those living closest to the proposed premises, reserve and walkways; and increased harm to young people including increased violence, sexual assault, accident and injury, binge drinking and drink driving for young people in particular.

  1. In Dr Stubbs' opinion these risks are not related to each separate use as such, but to the configuration of uses and the relationship between the uses in the context of the locality. That relates to:

  • The relatively high concentration of young people in the immediate locality and the absence of other structured youth activities or facilities in the locality;
  • The co-location of the premises with McDonalds;
  • The proximity to Corbin Reserve which provides for convenience of illicit consumption;
  • Proximity to other sensitive uses in the context in particular residential development immediately adjoining the site and the reserve, and areas accessed through the reserve and walkways and the high school;
  • The poor CPTED profile of the site with no natural surveillance to the rear or the side of the proposed premises.

  1. In Dr Stubbs' opinion it is better not to locate a packaged liquor outlet near a key youth attractor being McDonalds, with a demonstrated physical relationship to a high school, in the context of an adjacent residential area with a higher than average concentration of adolescents and young people and limited alternative youth activities. Ready access to a park with evidence of an existing high rate of usage by young people for anti-social behaviour and a poor CPTED profile, and proximity and physical relationship to nearby residential areas are exacerbating if secondary concerns.

  1. Mr Lette was of the opinion that on assessing the circumstances of the site and the application, there are favourable factors and indicators of lower risk from alcohol related harm, which are that the current density of liquor licences in Quakers Hill is low; the surrounding demography is less disadvantaged, rather advantaged; the BOCSAR crime statistics show low levels of the forms of crime contended in the vicinity of the site as well as lower rates of crime in the suburb generally; in the Trade Area 4.4 percent of the population is aged 15-17 years compared to 4.5 percent in the LGA which is not an above average concentration of young people; and there is no evidence that underage drinking is an issue of greater significance in Quakers Hill than in other communities in NSW. It is not uncommon for retail liquor outlets to be located at places young people patronise such as shopping centres, and this occurs at Farnham Road Shopping Centre.

Locality

  1. The experts differed as to how to define the relevant locality for the purposes of the assessment of the proposed development under s79C(1)(b). Dr Stubbs defined three relevant localities based on an assessment of likely positive and negative impacts:

  • A primary locality within 500m radius where amenity impacts related to drunkenness and property damage are more likely to be experienced by those living in closer proximity;
  • A secondary locality (800-1,000m radius) where such amenity impacts are also likely to be experienced as well as social impacts related to increased youth binge drinking and drink driving;
  • A tertiary locality (LGA) where positive impacts are more likely to be experienced, principally those related to increased competition.

  1. In defining the primary locality as 500m, Dr Stubbs relied on a study conducted by N Donnelly, S Poynton, D Weatherburn, E Bamford & J Nottage Liquor outlet concentrations and alcohol-related neighbourhood problems (2006). Mr Lette noted that that study combined all forms of liquor licence outlet and was unable to accurately calculate accessibility measures for specific outlet types. Dr Stubbs was of the opinion that in combining all licence types including off licences there was no basis to conclude that the study was not applicable to this type of development. Mr Lette noted that the 500m distance was based on the average distance to the five closest licensed premises, and in his view the model postulated was not reliable when less than five premises were considered. Dr Stubbs disagreed, noting that the conclusion of the study was that respondents who lived closer to liquor outlets were more likely to report problems in their neighbourhood from drunkenness and property damage, controlling for socio-demographic factors.

  1. In his evidence on the "locality" for the purpose of the s79C(1)(b) assessment, Mr Lette agreed that there are different areas of effect from a development. Mr Lette noted that the area of concern particularised in the contentions was at the McDonalds and Subway and in their vicinity, Corbin Reserve and its vicinity, and the area to the rear of the premises. Mr Lette noted that store patrons would arrive and depart predominantly by private vehicle, and that Quakers Hill has the characteristics of a car dependent neighbourhood. The surrounding residential area effectively turns its back to the site and to the Quakers Hill Parkway, and as a result the site is separate from its adjoining residential neighbourhood. In his opinion "locality" is dependent on the nature of impacts being considered, and any primary locality for the site would be notably smaller than a 500m radius. Recent BOCSAR research uses 100m as an appropriate radius to consider some alcohol-related issues associated with hotel licences. The Economic Impact Assessment provided with the development application identifies a Trade Area from which the persons patronising the premises were likely to be drawn and who would be the group who may derive either social benefit or social detriment from the application.

  1. Dr Stubbs and Mr Lette placed different emphasis on the importance of visibility of a liquor outlet, and the distance to be walked to a liquor outlet: Dr Stubbs considered both to be crucial factors, whereas Mr Lette was of the opinion that there was no literature or other evidence to support those as factors. In his opinion assessing proximity depends not just on geography but on how easy a liquor outlet is to access, and the number of outlets is a relevant factor.

Academic literature

  1. Dr Stubbs relied on the academic literature for the following propositions:

  • the extent and severity of drinking by minors and young people in Australia is well established, with studies indicating 20 percent of 16 and 17 year old engaging in at least one alcohol-related problem behaviour, and 86 percent are current drinkers;
  • young adults have higher levels of more frequent intoxication and around 80 percent of alcohol consumed by young drinkers is drunk at risky or high levels for immediate harm;
  • alcohol related harms include increased levels of violence, sexual assault, binge drinking, motor vehicle and other accidents, anti-social behaviour related to drunkenness, and short and long term mental health problems;
  • reducing under-age drinking and associated harm is one of the most important alcohol-related policy issues nationally, however most individual, community based and regulatory measures to reduce consumption and harm are reported to be having limited effects on reducing consumption and harm among young people;
  • compared with adults, adolescents and young adults are particularly susceptible to engaging in risky levels of alcohol consumption and to the harms related to risky drinking, and they are more susceptible to the range of marketing strategies employed by industry, being the "4Ps" of product, price, place and promotion;
  • particular concerns relate to the aggressive price discounting engaged in by major chains, and increased visibility, access and perceived availability of alcohol in local communities and places frequented by young people which increases physical access, normalises alcohol and increases rates of consumption and reduces the age at which young people first drink;
  • physical accessibility to alcohol in the local community is important as factors such as perceived availability and normalisation, and convenience, increase the risk of increased consumption and harm among young people;
  • around 46 percent of alcohol is purchased on behalf of a young person by an older sibling or associate, 34 percent by parents, and 20 percent by both suppliers;
  • density of packaged liquor outlets is important with a 3 percent increase in youth binge drinking and associated harm predicted for each new outlet at the postcode scale, although the alcohol related harm is likely to be disproportionately experienced by young people living within walking distance of a licensed premises (800m);
  • factors that reduce risk for young people include decreasing accessibility through increasing the cost, decreasing physical access, decreasing marketing, and strong enforcement of regulations related to underage drinking; other measures such as RSA and codes of conduct are only effective with strong legal and regulatory enforcement.

  1. Dr Stubbs provided an overview of some of the literature and related finding relevant to the matters of risk factors in alcohol-related harm for adolescents and young people, two of which she had referenced in the first joint report and a further eight which were not (Attachment JS3 to Ex 10). Mr Lette provided a written response to Dr Stubbs' annotated bibliography (Ex H), in which he expressed the opinion that it provides generalised information about underage drinking and its potential social harms, however none of the articles provides specific information regarding the potential impact of co-locating retail liquor outlets with a youth attractor. Mr Lette noted that two of the articles (Truong & Sturm "Alcohol Environments and Disparities in Exposure Associated with Adolescent Drinking in California" (2009) and Livingston et al "Alcohol policy and harm reduction in Australia" (2005)) addressed outlet density research which could be applied to the application, to indicate that the number of young people (12-17 years) living within 500m of the site who binge drink could increase by 0.72 persons as a result of the application, and that 0.59 additional very high risk drinkers could eventuate amongst those aged 16-17 years living within 500m of the site.

Comparable liquor outlets

  1. Mr Lette selected five sites for consideration in his report on Comparable Retail Liquor Outlets (Ex G): Blacktown Chambers Cellars, Kirrawee BWS, Manly Vale Dan Murphy's, Rosehill Woolworths Liquor, and Wentworthville Dan Murphy's. The criteria for selection of the sites were that the site had a frontage to the public domain, that is, was located externally to a shopping centre; had a fast food outlet located within its immediate surrounds; had a park or reserve located nearby (400m radius); had a school located within a 500m radius; and had a demographic structure as close as possible to the community surrounding the proposed premises, assessed in terms of the proportion of young people (aged 12-17 years) and the ABS Socio-Economic Indexes for Areas (SEIFA) Index of Relative Socio-economic Disadvantage.

  1. Mr Lette acknowledged that it is difficult to accurately measure the social impact of an existing retail liquor outlet in any locality and that he had relied on existing data sources, including BOCSAR crime statistics, consultation with key informants including council community safety officers and NSW Police Crime Prevention Officers, a review of existing studies comprising local government policy documents, and visual inspection of each site and its surrounds. Mr Lette noted that the proposed hours of operation at Quakers Hill are shorter than the comparative outlets, the number of staff members is higher than similarly sized outlets, and the comparative outlets appeared to operate without any discernable social impact without the benefit of a plan of management.

  1. Mr Lette concluded in relation to the impact of co-location that the comparative outlets appeared to operate without discernable social impact regardless of their proximity to fast food outlets, no causal link could be established between proximity to a fast food outlet and impacts on rates of underage drinking or secondary supply, and co-location did not appear to have any greater or lesser influence in those local government areas which identified themselves as having a significant underage drinking issue. Based on the absence of complaints to police or council, there was no evidence of social impact on residential dwellings located near the comparison retail liquor outlets, and anti-social behaviour such as public drinking by young people in parks could be attributed to the parks' physical characteristics such as relative seclusion rather than proximity to a retail liquor outlet. In relation to impact on alcohol-related crime, underage consumption of alcohol was a challenge faced in all the comparative communities examined, and those comparative councils identifying significant issues with underage drinking made no connection with the comparative retail liquor outlets; there was no evidence from the BOCSAR hotspot mapping that the locational attributes under consideration had any relationship to rates of alcohol-related crime; and council officers did not identify a link between graffiti and alcohol.

  1. Dr Stubbs did not consider that Mr Lette's report contained data or findings that would challenge her initial assessment of the likely social impacts of the proposed development. In her opinion, there was a lack of statistical reliability; a lack of clarity regarding the scope of social impacts being assessed; a limited range of impacts assessed; and a limited range of methods used. In particular Dr Stubbs stated that there were problems with the comparability of the outlets studied, and a lack of transparency of criteria for selection of case studies.

  1. Mr Lette accepted that the report is not a thorough assessment, and he noted in oral evidence that he spoke to police and council community officers in relation to four of the five sites, and did not speak to police for the Blacktown site as their opinion was already known. He spoke to the licensee of Blacktown after preparing his report.

Population

  1. In her evidence that the McDonalds restaurant at the site is a youth attractor, Dr Stubbs relied on a visit by a researcher on the afternoon and evening of Friday 4 February 2011, from 2.30-5.30pm and 6.30-10.00pm. The report of that visit (p23, JS1, Ex9) notes that the number of young people increased in the evening, totalling 8 accompanied children and 20 unaccompanied youths at 7.30-8.00pm, and a total of 23 children and young people at 9.00-9.30pm. Mr Lette did not accept that this indicates that McDonalds is a significant hangout for underage youth in the evening, noting that the numbers are volatile, no detail was provided on length of stay, there was no information as to how it was determined if someone was unaccompanied, or an "adult" or "unaccompanied youth", and there was nothing to suggest a sample of one night is representative. Mr Lette agreed that young people hang out at McDonalds, however he did not think it was a significant hang out and his general impression from his site visits was that people were there for around 20 minutes.

  1. The experts disagreed as to whether there is a relatively high concentration of young people in the immediate locality. The first joint report included an extract from the Australian Bureau of Statistics 2006 Census of Population and Housing. In Census Collection District (CCD) 127209 (which includes the site) 5.0 percent of the population were aged 12-14 years and 4.6 percent were aged15-17 years. In CCD 127904 (the area immediately opposite on Quakers Hill Parkway) the proportions were 7.7 and 5.1 percent respectively. For Blacktown LGA, 4.5 percent of the population was aged 15-17 years; the percentage for the Sydney Statistical Division was 4.0 percent. Dr Stubbs' opinion was that the age group 15-17 years was the most vulnerable, and that the relevant figure to use was that for the cohort below that range, given the date that the data was collected. Mr Lette disagreed, stating that that was not reliable because people could move in or out of an area.

Findings

  1. In the absence of a directly applicable study relevant to assessment of impacts of a retail liquor outlet as opposed to premises where alcohol is consumed, I do not find Dr Stubbs' focus on distance as the determinant of primary and secondary locality helpful in assessing the likely social impacts of the proposed development. Dr Stubbs accepted that the risk of particular premises is contextual. It was clear from the view that the site is physically separated from the adjoining public reserve, and that the surrounding residential area effectively, in Mr Lette's terms, turns its back on the site and to Quakers Hill Parkway. The proposed conditions include a condition requiring the erection of a 2m fence to prevent direct access from the site to the reserve. I agree with Mr Lette's approach that the relevant context for assessing social impact is the site itself with the McDonalds and Subway, Corbin Reserve and its vicinity, and the area at the rear of the premises, and that the assessment of social impacts should take into account that while there may be some patrons arriving on foot, a significant proportion would arrive and depart by private vehicle.

  1. It was common ground that the staircase between the site and the reserve has been removed, that pedestrian and vehicle access to the reserve is obtained approximately 430m from the site, and that the pedestrian laneway opposite the site on the other side of Quakers Hill Parkway has been shut by locked gates. The Quakers Hill High School has approximately 1030 enrolments across Years 7 to 10, and no Year 11 or 12 students are taught at the school. The bus stop utilised by students is situated in front of the school. The experts agreed that McDonalds does not appear to attract many unaccompanied young people immediately after school, and that the Subway is mainly a takeaway venue with limited internal seating. While there was disagreement between the experts as to the conclusions that could be drawn from the numbers of young people recorded at the site visit on 4 February 2011, it was not disputed that McDonalds was a venue that would be patronised by young people.

  1. There was no dispute that underage drinking and its potential social harms, and the general propositions about the extent, and risks, of underage drinking referred to by Dr Stubbs (summarised at [49] above]) are of significant concern within the community, and are relevant in undertaking an assessment of whether the proposed development is likely to have an adverse social impact in the locality. While accepting that there are serious issues relating to underage consumption of alcohol and secondary supply of alcohol to minors, in my view the possibility that people might purchase alcohol from the proposed premises and supply that alcohol to underage children would not of itself be a basis for concluding that the proposed development is likely to have an unacceptable adverse social impact. There are sanctions associated with the sale, and secondary supply, of alcohol to minors. It was not contended that direct supply of alcohol to underage people from the premises will occur.

  1. I accept that the academic literature referred to by Dr Stubbs is of assistance in undertaking a general assessment of social impact required by s79C(1)(b) of the Act. However, the proposed development must be assessed, in its context. Dr Stubbs accepted that the literature on which she relied did not address the potential impacts of locating a retail liquor outlet close to a McDonalds or a park. While Dr Stubbs was critical of the methodology used by Mr Lette in his report on comparable outlets, it does not purport to be an academically rigorous study, and in my view it provides background information which is useful in understanding the potential social impacts of retail liquor outlets in locations similar to that of the subject application. There is nothing in Mr Lette's report on Comparable Retail Liquor Outlets to indicate that location of a retail liquor outlet close to a McDonalds, a park, and a school, in a relatively advantaged area, of itself gives rise to adverse social impacts from underage drinking and anti-social behaviour. I accept Mr Lette's analysis of the general profile of the population in the surrounding area, in particular his conclusion that the proportion of young people in the age range most at risk of alcohol-related harm in the area is not above average, and is similar to that for the local government area as a whole. Other than a reference in oral evidence by the new proprietor of the Quakers Hill Cellars to what appears to have been an attempt by a minor to purchase alcohol, there is no evidence to indicate that the proximity of that retail liquor outlet in the Farnham Road shopping centre, which includes take away establishments, in close proximity to a park, has given rise to adverse social impacts.

  1. I accept that the addition of a retail liquor store at the site creates a small risk of secondary supply of alcohol to minors, and that based on the literature referred to by Dr Stubbs and accepted by Mr Lette, it could give rise to a slight increase in binge drinking or risky drinking in the locality. The proposed plan of management contains detailed provisions intended to minimise the potential for direct, and secondary, supply of alcohol to minors. The plan of management includes provisions for increased surveillance, management of graffiti, and security, to minimise potential anti-social behaviour in the vicinity of the premises that may arise. While there may be a risk of adverse social impacts of this nature, I am satisfied that the potential impacts can be managed and are not such as to warrant refusal of the application.

Site security

  1. The Council contends that the application should be refused because of limited natural surveillance opportunities at the rear of the premises which provides opportunities for anti-social behaviour. The proposed conditions of consent address this issue by requiring a minimum of two external cameras for CCTV coverage of the rear and side of the building; vandal proof lighting directed to the car parking area and fence line; the erection of a 2m high palisade fence along the common boundary of the site and Corbin reserve and landscaping; regular patrols and monitoring to prevent consumption of liquor on site; and compliance with a plan of management that includes provisions relating to graffiti removal.

  1. Dr Stubbs agreed that the proposed CCTV, lighting, and graffiti management now proposed by the applicant would improve the situation. I am satisfied that the proposed physical measures including erection of the fence, and improved surveillance and monitoring required by the conditions and the plan of management, are adequate to manage security concerns generated by the proposed development.

Public interest

  1. The Council submitted that the number and nature of the objections to the proposed development, including those made by the NSW Police, supported the contention that the likely adverse social impacts mean that the site is unsuitable for the proposed development. While the concerns expressed by those living in the area are relevant, the evidence before me does not provide a basis on which it would be appropriate to conclude that those fears are objectively based: see New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154. Many of the specific concerns raised by the NSW Police, including anti-social behaviour such as graffiti and rubbish at the rear of the site, limited lighting and natural surveillance, and access to the reserve, have been addressed by the requirement for fencing and in the proposed plan of management. The concerns relating to traffic were not raised as contentions by the council and the evidence does not establish a likely increase in traffic flow or movements. The planners agreed that there are no issues relating to noise, traffic, design or other matters that would affect the suitability of the site for the proposed development.

Conclusion

  1. I am satisfied that the proposed development is consistent with the LEP and zone objectives as required by cl9(3) of the LEP. While the site is zoned 2(a) Residential under the LEP and development for the purpose of a liquor outlet is no longer permissible, the site is effectively operating as a small commercial centre, physically separated from the surrounding residential area and from the adjoining Corbin Reserve. The evidence before me does not establish that the co-location of a retail liquor outlet with the uses on the site will give rise to adverse social impacts such as to make the site unsuitable for the proposed development. I am satisfied that subject to management in accordance with the proposed plan of management, it is appropriate to grant consent to the proposed development.

  1. The orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Application No 09-1113 for the fit out and use of an existing commercial premises for the purposes of a retail liquor outlet at 454 Quakers Hill Parkway Quakers Hill is approved subject to the conditions in Annexure A.

(3)   The exhibits are returned except for exhibits 4, A, B and C.

Linda Pearson

Commissioner of the Court

Amendments

20 October 2011 - Third sentence to read: The amending plan also removed the specific prohibition on development for the purpose of a liquor outlet in other zones, inlcuding zone 1(a) General Rural and zone 1(b) Rural Residential.


Amended paragraphs: 30

Decision last updated: 20 October 2011

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Cases Citing This Decision

1

Martin Morris and Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 8