Cardno Pty Ltd v Campbelltown City Council [2013] NSWLEC 1056

Land and Environment Court New South Wales

Medium Neutral Citation: Cardno Pty Ltd v Campbelltown City Council [2013] NSWLEC 1056 Hearing dates: 14-15 March, 2013 Decision date: 05 April 2013 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. 2052/2012 for a retail liquor outlet at 4 Rennie Road, Campbelltown is refused. 3. The exhibits, other than exhibits 1, 3 and B, are returned. Catchwords: DEVELOPMENT APPLICATION: retail liquor outlet, social impact, identification of the locality, alcohol-related harm and socio-economically disadvantaged suburbs within the locality; proximity to a skate park and fast food restaurants. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104 Category: Principal judgment Parties: Cardno (NSW/ACT) Pty Ltd (Applicant) Campbelltown City Council (Respondent) Representation: Mr I. Woodward Solicitor (Applicant) Mr M. Staunton Barrister (Respondent) Woodward Legal (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 11207 of 2012

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No. 2052/2012 (the proposal) by Campbelltown City Council (the Council), for the use of an existing commercial premises as a retail liquor outlet at 4 Rennie Road, Campbelltown (the site).

Issues 2The Council's contention in the matter is that the context of the proposal makes it an inappropriate location for a retail liquor outlet and that it will have an unacceptable social impact on the locality for the following reasons: * The proposal is likely to increase the potential for alcohol-related incidents in the vicinity of the nearby Campbelltown Skate Park (the skate park), which is an alcohol free zone (AFZ) and a popular meeting point for children and youths and is likely to increase the potential for secondary supply of alcohol to minors, due to the convenience of purchase near the skate park; * The proposal is located close to two reserves, Payten and Kanbyugal Reserves, which provide convenience for the illicit consumption of alcohol and increases the potential for alcohol-related incidents to occur at the reserves; * The proposal is in close proximity to a number of fast food outlets, which is an inappropriate location as the fast food restaurants attract families and youth and there is the potential for alcohol purchased at the proposed retail liquor outlet to be consumed on the premises of fast food restaurants; * The proposal is located in close proximity to the Ibis Budget Hotel which is used for emergency accommodation by NSW Family and Community Services; * The proposal is located adjacent to the walking route between the socio-economically disadvantaged suburb of Claymore and Leumeah Railway Station and a retail liquor outlet located adjacent to the walking route will exacerbate anti-social behaviour in Claymore. 3The applicant disputes a number of (without prejudice) conditions of consent, as follows: * The extent of windows to be added to the north-eastern elevation to allow for surveillance of the carpark and external areas (condition 2); * A trial period of consent for 24 months (condition 10); * Operating hours Monday to Saturday 9am - 8pm and Sunday and Public Holidays 10am - 7pm. The applicant seeks to extend the hours on Friday and Saturday to 9pm (condition 17); * Plan of Management is to be endorsed by Council and Campbelltown Local Area Command (condition 20); * Requirement for security personnel on Thursday, Friday and Saturdays from 4pm until closing. The applicant seeks to have security personnel only when there are organised events at the skate park (condition 26(2)); * Requirement for a Licensed Security Officer patrolling in the vicinity of the proposal on any trading night (condition 26(3)). 4The applicant deleted the promotional tastings from the proposal at the commencement of the hearing.

The site and its context 5The site is located on the north-western side of Campbelltown Road and is accessed via Harbord Road and Rennie Road, in the suburb of Woodbine. There is a skate park across Campbelltown Road from the proposal, within Hollylea Reserve, on the south-eastern side of Campbelltown Road and Payten Reserve is to the north of the site. 6The site is within an existing commercial building, of which half is occupied by an Oporto Chicken outlet and the proposal is to occupy the remaining half of the building. Each commercial tenancy has its own separate entry. 7The precinct, which was identified by the parties as a 'fast food hub', consists of isolated buildings located within large carparks, on either side of Harbord Road, on the north-western side of Campbelltown Road. The precinct has been laid out exclusively for convenient car access and parking, with little or no thought given to pedestrian circulation. 8There are a number of fast food outlets within the 'fast food hub', including Oporto Chicken, KFC, Hooters, McDonalds and Sizzler and two hotels, Ibis Budget Hotel and Quest Hotel. 9Woodbine is on the south-eastern side of the M5 South-West Motorway (also known as the Hume Highway) (the M5) and the suburb of Claymore is on the north-western side of the M5, 1.8km from the proposal. The two suburbs are linked by a pedestrian footway, which passes over the M5 and provides Claymore residents with pedestrian access to Leumeah Railway Station, on the south-western side of Campbelltown Road. The pedestrian route between Claymore and Leumeah Railway Station passes along Harbord Road. 10A number of streets within the vicinity of the proposal, including Rennie Road, the south-eastern portion of Harbord Rd, Plough Inn Road and Hollylea Road are classified as an AFZ, as is the skate park. There is no penalty for persons consuming alcohol in an AFZ, however, police officers confiscate any opened alcoholic vessels within an AFZ (Exh 2, folio 22).

Background and the proposal 11The proposal is for the use of existing commercial premises as a retail liquor outlet. The proposed hours of operation of the premises are 7 days per week, 9am - 8pm Mondays to Thursdays; 9am - 9pm Fridays and Saturdays and Sundays and Public Holidays 10am - 7pm. The proposal includes the fitout of the commercial premises with shelving, cool room and refrigeration, sales counter and external signage on the north-eastern façade and a sign on an existing post orientated towards traffic travelling in a south-western direction on Campbelltown Road. The applicant agrees to insert a window in the north-eastern façade, adjacent to the proposed sales desk, for surveillance of the carpark. 12The proposal includes the following mitigative measures in response to the concerns of the respondent and the Police: * Plan of Management; * CCTV monitoring; * Window next to the sales counter for staff to observe the carpark, in order to assist in identifying secondary sales; * Reducing the signage by deleting a proposed sign on the southern façade which could be seen from the skate park; * Existing regular police patrols in the area; * Complete the planting of an existing hedge to 1.6m high, along the southern side of the carpark, which will provide a substantial physical barrier, coupled with the existing fence on the median strip of Campbelltown Road, to discourage a direct path between the skate park and the proposal.

Planning Framework 13Section 79C(1) Matters for Consideration - General, of the Environmental Planning and Assessment Act (NSW) 1979 (EPA Act), includes, at (b): the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality 14The site is zoned 4(b) - Industry B Zone, pursuant to the Campbelltown (Urban Area) Local Environment Plan 2002 and the proposal is permissible with consent.

Public submissions 15The hearing commenced on site with a view of the site, a view of the skate park, the reserves and the Court in the company of the parties and the police walked over the pedestrian footbridge which links Claymore and Woodbine and onto the Claymore shopping centre. During the walk to Claymore, Mr Staunton regularly identified disposed packaging from McDonald's Restaurant and other fast food outlets near the pathway. 16The NSW Police Force (Campbelltown Local Area Command, Crime Management Unit and Licensing Unit) (the Police) opposes the proposal. Senior Constable Adam Jones provided a written submission in objection to the proposal and he and three police officers attended the site inspection and provided objector evidence. Senior Constable Jones, who has been a member of the NSW Police Force for 11 years, has been the Campbelltown Licensing Officer for three years and has extensive knowledge of the area, community and crime associated with alcohol consumption. The concerns of the Police can be summarised as: * The skate park The proposal should be refused because of the risks associated with the proximity of the proposal to the skate park across the road, which is a popular meeting place for children and youths. It is used daily by over 100 young people and this number increases on weekends and special events. Users of the skate park are generally up to 30 years of age. The proposal is likely to increase the number of alcohol-related incidents at the skate park due to the convenience of being able to purchase alcohol nearby. In addition, the proximity and visibility of the proposal to the skate park will increase the convenience of supply of alcohol to minors, who may attempt to purchase alcohol from the premises or approach adults to purchase alcohol for them. Police believe that a retail liquor outlet in an area frequented by a large population of minors is inappropriate and the Police provided statistics to demonstrate that alcohol-related incidents concerning minors are already a problem in the Campbelltown area. * Claymore Claymore is one of the most disadvantaged suburbs of Sydney and the residents of Claymore, with a low rate of car ownership and car registration, rely on walking to their destinations to a greater extent than may be the case in other areas. The footbridge over the M5 provides the Claymore residents with direct access to the fast food outlets and Leumeah Station and it is inappropriate to have a retail liquor outlet in close proximity to both the walking route and fast food outlets. In the experience of the Police, many persons spoken to around the fast food outlets for anti social behaviour or loitering are Claymore residents. * AFZ The AFZs have successfully decreased alcohol-related issues from this area and signal to the community that this is a family and community friendly area. Rennie Road and nearby streets are AFZs and they were made AFZs to prevent ongoing alcohol-related issues in the area. The only service of alcohol in the near vicinity of Rennie Road is the two 'on premises' licensed restaurants. The proposal will increase the likelihood that alcohol is consumed in the surrounding car park, which is an AFZ and in the nearby reserves, due to the increased visibility of a liquor premises. * The fast food outlets The proposal will increase the likelihood that alcohol is illicitly consumed in or around the fast food outlets. * The reserves The proposal will increase the incidence of youths consuming liquor after dark and intimidating residents, whose properties back onto the two reserves. * Alcohol-related incidents The proposal will increase the likelihood of anti-social behaviour, violent incidents, malicious damage and stealing in the area and the proposal will be a target for serious crimes. The majority of crime in the Campbelltown LGA occurs on Saturday nights, followed by Friday and Sunday nights, 6pm to 6am. Police are regularly called to the fast food outlets for anti-social or violent incidents, which can be alcohol-related. Police say the proposal represents a significant setback in their quest to reduce crime in the area. * Emergency accommodation in the Ibis Budget Hotel The Ibis Budget Hotel is used for emergency accommodation and it is not appropriate to have a retail liquor outlet in close proximity to people in crisis. 17Two Aboriginal Community Liaison Officers from the NSW Police Force (Campbelltown Local Area Command, Crime Management Unit) provided written submissions. The acting CEO of Tharawal Aboriginal Corporation also provided a written submission. Their objection to the proposal can be summarised as: * The proposal will be potentially harmful to those members of Aboriginal community who have alcohol, mental health and drug issues and are provided with emergency accommodation in the Ibis Budget Hotel, by either the Tharawal Aboriginal Corporation or the Department of Housing, as it is inappropriate to locate a retail liquor outlet adjacent to emergency accommodation for vulnerable people. * The consumption of alcohol in public areas on a daily basis by some members of the Aboriginal community is already a major issue in Campbelltown. The proposal may encourage people to congregate in the vicinity of the proposal and use it as their new social drinking area.

Expert evidence 18Expert social planning evidence was provided by Ms Joanna McClellan on behalf of the applicant and Dr Alison Ziller on behalf of the Council.

Defining the locality 19The experts agree that the proposal will be patronised by local customers able to walk to the proposal and by a car-based trade in the wider area and that the locality includes Woodbine, Leumeah, Claymore and the western parts of Campbelltown. They agree that as the proposal is located adjacent to the main arterial route it is likely to service the whole population of the Campbelltown LGA. 20Ms McClellan agreed under cross-examination that Claymore is part of the locality, however she qualified her agreement by saying that it is unlikely to be a significant proportion of Claymore residents that patronise the proposal. 21Dr Ziller says that the fast food outlets in the vicinity of the proposal make it an attractive destination for young people. As the proposal it is within easy walking distance of Claymore, it is likely to be well patronised by Claymore residents, particularly the youth of Claymore, as it will provide easy access to fast food and alcohol. She says this is a more significant issue for Claymore residents given the young and disadvantaged demographic of Claymore and consequently, the proposal has the potential to have a significant negative impact on the residents of Claymore. 22The experts agree that the proposal is adjacent to the most convenient walking route from Leumeah Station to Claymore. 23Dr Ziller says that a higher proportion of Claymore residents rely on public transport and walking than residents of less disadvantaged suburbs, as 29% of households in Claymore do not own a car, compared to 10% of households in Leumeah and Woodbine. Ms McClennan says that Claymore residents also patronise the buses and the bus route from Claymore is to Campbelltown via Minto and the bus route does not pass the proposal.

Whether the proposal is likely to have an adverse social impact in the locality 24The experts agree on the following facts: * Socio-Economic Indexes for Areas (SEIFA) provides summary measures derived from the Census to measure different aspects of socio-economic conditions by geographic area. The SEIFA 2006 Index of Disadvantage rates Campbelltown as the fifth most disadvantaged LGA in greater Sydney. * Risky drinking does not have a social gradient, however alcohol-related harm as a clear socio-economic gradient, where levels of harm are greater among people who are relatively socially disadvantaged. * Claymore is the most disadvantaged suburb in the Sydney region, with a higher percentage of low income residents and residents of public housing (81.8% rented public housing compared to 5% in greater Sydney), a much younger age profile (median age of 20 compared to 36 in greater Sydney), a much lower school completion rate (24.2% complete Year 12 compared to 55% in greater Sydney), a much higher unemployment rate (40% compared to 5.7% in greater Sydney) and a higher than average proportion of Aboriginal and Torres Straight Islander residents (7.3% compared to 1.2% in greater Sydney) (Exh 3, par 43). * There are retail liquor outlets in the Claymore shopping centre and near Leumeah Railway Station. * There have been issues in relation to alcohol consumption in the AFZ, as reported by the Police. * The proposal is not located within a domestic violence 'hotspot' (NSW Crime Statistics and Research map 2010, Exh 3, map 3). 25Dr Ziller says that while the literature demonstrates that risky drinking does not have a social gradient, a wealth of epidemiological research shows that in developed economies, such as Australia, people higher on the social scale tend to experience far fewer harms from the same or similar behaviours and risk factors than people who are socially and economically disadvantaged. 26Dr Ziller refers to Michael Livingston's article, 'The social gradient of alcohol availability in Victoria, Australia' (ANZ Journal of Public Health 2012 vol 36 no 1) in her statement of evidence (Exh 3, par 84). Livingston's research study explores the socio-economic spread of alcohol outlets to determine whether their distribution explains socio-economic inequalities in alcohol-related harms. Livingston found that, in Victoria, outlets where alcohol is typically more expensive (general and on-premises outlets) are located in areas of social advantage and outlets where alcohol is sold most cheaply (packaged outlets and clubs) are more prevalent in disadvantaged areas. He found that disadvantaged areas were exposed to almost twice as many packaged liquor outlets when compared to areas of social advantage and this is likely to be because operators target their premises to the most appropriate markets. Livingston concludes that Victorians living in communities exposed to substantially higher rates of packaged liquor outlets experience higher rates of harm and therefore policies that are aimed at reducing health inequalities in Victoria should focus on reducing packaged liquor outlet numbers in disadvantaged neighbourhoods. 27Dr Ziller says that while Claymore has the highest level of social disadvantage in the Campbelltown Local Government Area (LGA), there are an additional 17 suburbs within the LGA that have a social profile of relative disadvantage when compared to Sydney as a whole and some of those suburbs are within the car based catchment of the proposal. 28Dr Ziller quotes from a NSW Department of Aboriginal Affairs report in her statement of evidence (Exh 3, pars 89-94), which states that Aboriginal people experience a greater burden of injury, disease and hospitalisation resulting from alcohol abuse. Aboriginal people comprise a higher proportion of the residents of Claymore, at 7.3% when compared to greater Sydney at 1.2% of the total population. 29According to Dr Ziller, there has been a 12% increase in licensed premises in the Campbelltown LGA in the period 2009 - 11 and most of that expansion is in the category of retail liquor outlets. The population of the LGA has increase 2% in the period 2006 - 2011. 30Dr Ziller notes that the reason the proposal is not located within a domestic violence 'hotspot', as defined by NSW Crime Statistics and Research, is because it not located in a residential area. The proposal is within the vicinity of domestic violence hotspots, including Claymore and Campbelltown and the rates of domestic violence and non-domestic violence assaults in the Campbelltown LGA are markedly higher than for NSW as a whole. Claymore experienced 2.4 times the average number of alcohol-related non-domestic violence assaults in 2011, which is one assault for every 174 persons, compared to an average of one for every 429 persons in the Campbelltown LGA. 31Ms McClennan says that alcohol is already available through alternative liquor stores within the local area and that the proposal is in an area that is not considered to have a high density of alcohol-related crimes and anti-social behaviours. She says that there is no evidence to suggest that locating a liquor store in an area frequented by young people will lead to an unacceptable risk of secondary supply. 32According to Ms McClennan, there may be some legitimate social impact concerns in relation to the proposal, however there is no evidence to suggest that there is an unreasonable risk that the proposed retail liquor outlet would adversely impact on rates of crime and antisocial behaviour in the area or upon the young population who utilise the area as long as the store operates in strict accordance with the proposed mitigation measures. 33Dr Ziller disagrees as to the effectiveness of the proposed mitigative measures. She says that it is impossible to mitigate the risks to local vulnerable communities already experiencing high rates of alcohol-related harm.

Findings 34The central issue in the proceedings is whether the proposal will have an unacceptable adverse social impact in the locality. The reference to 'likely' impacts means 'a real chance or possibility': Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104 at [46].

The locality 35The term 'locality' is not defined in the EPA Act and the first issue in considering likely social impacts is to identify what constitutes the appropriate locality within which to consider those impacts, which is a finding of fact by the consent authority or the Commissioner on appeal: Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119 (Randall) at [42]. 36I accept the agreement of the experts that the locality relevant to this matter includes Woodbine, Leumeah, the western parts of Campbelltown and Claymore and that the proposal will be patronised by local customers able to walk to the proposal and by a car based trade in the wider Campbelltown area. 37The experts disagree on the proportion of Claymore residents that will patronise the proposal. Basten JA held in Randall at [42], that 'impact in the locality' requires the overall impact on the locality to be determined and not specific and identifiable impacts within the locality. Consequently, the disagreement of the experts as to the proportion of Claymore residents that will patronise the proposal is irrelevant to defining the locality. I accept their agreement that Claymore is part of the locality, for the purpose of the s79C(1)(b) assessment.

Is the proposal likely to have an adverse social impact in the locality? 38The experts agree that the proposal may have an adverse social impact on the locality, however they disagree as to whether there is evidence to suggest that the risk of an adverse social impact is unreasonable. I prefer the evidence of Dr Ziller in regard to the unacceptable risk of an adverse social impact in the locality, for the reasons provided in the following paragraphs. 39Starting at the larger scale context of the proposal; the Campbelltown LGA is comprised of a high proportion of disadvantaged areas, when compared to greater Sydney and includes a number of medium to high crime density 'hotspots' for domestic violence and non-domestic violence assaults. There has been a disproportionate 12% increase in licensed premises in the Campbelltown LGA between 2009 and 2011, when compared to the 2% increase in the population over a longer period (2006 - 2011) and the increase in licensed premises has been mostly in the category of retail liquor outlets. The recent increase in licensed premises and particularly retail liquor outlets in the Campbelltown LGA in the context of the findings of Livingston's research (that disadvantaged communities are exposed to substantially higher numbers of retail liquor outlets, where alcohol is sold cheaply and they experience significantly higher rates of alcohol-related harm) makes it a reasonable conclusion that an additional retail liquor outlet in the Campbelltown LGA is likely to have an adverse social impact in terms of alcohol-related harm in the Campbelltown community. 40Focusing on the mid scale context of the proposal, the agreed locality includes the significantly socio-economically disadvantaged suburb of Claymore. While Claymore is 1.8km from the proposal, the proposal is located on a pedestrian route between Claymore and the fast food outlets, the skate park and Leumeah Railway Station. Mr Staunton demonstrated that locals frequent the pedestrian route between Claymore and the proposal, by pointing out a substantial quantity of discarded fast food packaging alongside the pathway, during the site visit. 41While I accept there are existing retail liquor outlets in Claymore and Leumeah that provide packaged liquor to the residents of Claymore, the distance to walk to purchase liquor from these two locations when purchasing fast food is a disincentive to do so. It is reasonable to conclude that the proposal will be patronised by Claymore residents as it is located among the fast food outlets they currently patronise and the temptation of purchasing take away alcohol along with take away food, in the same location, will be significant. As alcohol-related harm has a clear socio-economic gradient, where levels of harm are greater among people who are relatively socially disadvantaged and the relationship between increased availability and increased alcohol-related harm is indisputable, it follows that the addition of a retail liquor outlet to the 'fast food hub' will lead to an increase in consumption of alcohol by the socially and economically disadvantaged persons of Claymore and this will further disadvantage them and result in an adverse social impact in the locality. 42The immediate context of the proposal includes the fast food outlets, the nearby skate park and the Ibis Budget Hotel used for emergency accommodation. I accept the evidence of the Police that the immediate area of the proposal, with the skate park and fast food outlets is an attractor and a popular meeting place for a significant population of minors, youth and families. The fast food outlets make the proposal an inappropriate location for a retail liquor outlet, as it is among family oriented, unlicensed fast food restaurants, which provide an alternative and affordable option for eating out to licensed restaurants. 43Putting aside the risk of secondary supply, the visibility and proximity of the proposal to the skate park makes it a temptation for adults to purchase alcohol and consume it in the vicinity of the skate park and this may jeopardise the success of the skate park as a safe, free and constructive place of entertainment for young people. I accept the evidence of the Police that the proposal is likely to increase the number of alcohol-related incidents at the skate park and potentially put minors and others at risk of harm. The Council has clearly demonstrated their intention that alcohol is not to be consumed in the vicinity of the skate park by making it and the streets around it an AFZ. 44Locating a retail liquor outlet directly in front of a budget hotel used for emergency accommodation by NSW Family and Community Services for vulnerable people, who are experiencing highly stressful circumstances, is inappropriate. It is possible that the proposal will have an adverse social impact on those members of the community who are provided with emergency accommodation in the Ibis Budget Hotel.

Mitigative measures proposed 45I am not satisfied that the proposed mitigative measures are capable of adequately curing the likely adverse social impacts of the proposal to an appropriate extent. The mitigative measures partly rely on police patrols of the area and the evidence of the Police is that they cannot guarantee that they will always be available and able to provide regular patrols of the area.

Conclusion 46I have given the written submission and objector evidence of the Police significant weight in my decision and I have taken a cautious approach in assessing the likely social impacts of the proposal in the locality. 47On the evidence before me, I am satisfied that the proposal would have an unacceptable adverse social impact in the locality, in relation to exacerbating alcohol-related harm. The locality includes the Campbelltown LGA community, the socially and economically disadvantaged residents of Claymore and the significant population of minors, youths and families that use the skate park and the fast food outlets. In my view, the unacceptable adverse social impacts of the proposal in the locality are a sufficient basis for the refusal of this application. 48Given the above findings, it is not necessary to deal with the contentions regarding the conditions of consent.

Orders 49The orders of the Court are: 1.The appeal is dismissed. 2.Development Application No. 2052/2012 for a retail liquor outlet at 4 Rennie Road, Campbelltown is refused. 3.The exhibits, other than exhibits 1, 3 and B, are returned. Susan O'Neill Commissioner of the Court

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Amendments 08 April 2013 - Applicant and Respondent appearances amended Amended paragraphs: Coverpage DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2013