Land and Environment Court New South Wales Medium Neutral Citation: Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280 Hearing dates: 30-31 May, 1, 6 June, 9 July 2012 Decision date: 10 October 2012 Jurisdiction: Class 1 Before: Pearson C Decision: See paragraph [119] Catchwords: DEVELOPMENT APPLICATION - Retail liquor outlet - social and economic impacts Legislation Cited: Environmental Planning and Assessment Act 1979 Shoalhaven Local Environmental Plan 1985 Cases Cited: Australian Leisure & Hospitality Group Pty Ltd & Anor v Dr Judith Stubbs & Anor [2012] NSWSC 225 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104 Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402 Milne v Minister for Planning (No 2) [2007] NSWLEC 66 New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119 Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10 Category: Principal judgment Parties: Martin Morris & Jones Pty Ltd (Applicant) Shoalhaven City Council (Respondent) Representation: Counsel Mr C McEwen SC with Mr M Staunton (Applicant) Mr T Robertson SC with Mr J Lazarus (Respondent) Solicitors Corrs Chambers Westgarth Lawyers (Applicant) Sparke Helmore (Respondent) File Number(s): 11034 of 2011 Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of development application DA09/2325 for the construction of a new building to contain a Dan Murphy's retail liquor outlet at the south eastern corner of the intersection of Kalandar Street and the Princes Highway, Nowra (the site). 2The development application proposes the demolition of an existing motel building on the site; construction of a new building with a gross floor area of 1,484.6 sq m with display areas, cool room, storage areas, office areas and staff amenities; reconfiguration of the existing car parking to provide a total of 174 car spaces; erection of associated signage; consolidation of the three existing lots into one lot; and associated road works on Kalandar Street. 3The proposed hours of operation are 9.00 am to 9.00 pm Monday to Saturday; and 10.00 am to 8.00 pm Sunday. The Site and its context 4The site is rectangular in shape and has an area of 2.63 ha. The site currently contains: (a) in the northern portion of the site, a hotel (the Archer Hotel) with bars, bistro area, poker machine and TAB facilities and a nightclub, and a drive through bottle shop with a gross floor area of approximately 400 sq m, which is operated as a BWS retail outlet; (b) in the central portion of the site, a motel with 12 accommodation units and a residence; (c) in the southern portion of the site, a motel with 50 accommodation units; (d) car parking areas; and (e) facilities servicing the motel component including a tennis court and swimming pool. 5The site is approximately 1 km south of the Nowra CBD. The land to the north, east and south is developed for residential subdivision and contains predominantly single storey dwellings. Nowra General Cemetery is located to the west of the site on the opposite side of the Princes Highway. The East Nowra Local Shopping Centre is located approximately 300 m to the east of the site on Kalandar Street. 6The site has a road frontage to the Princes Highway to the west, and to Kalandar Street to the north. Vehicle access to the site is on Kalandar Street, from a combined entry/exit point located approximately 104 m from the intersection with the Princes Highway. The development application proposes the reconfiguration of existing lanes in Kalandar Street on both sides of the Princes Highway to provide one east bound lane in Kalandar Street east of the Princes Highway, and to provide a dedicated right turn lane and a shared left/through lane in Kalandar Street west of the Princes Highway; and to provide a 30 m right turn bay into the site from Kalandar Street. Issues 7The Council contends that the development will have an unacceptable social impact on the surrounding area that is a disadvantaged locality, and that it is not consistent with the aims and objectives of the Shoalhaven Local Environmental Plan 1985. 8The Council's contention concerning unacceptable social impact was particularised as follows: the proposal involves provision of an additional outlet for the sale of bulk discount alcohol which will exacerbate social problems in the local area and particularly in parts of East Nowra close to the site; because of the level of disadvantage the adverse impact will fall disproportionately on residents of the local area; the area where the development is proposed is identified as significantly disadvantaged both socially and economically; the proposed development would increase the availability of alcohol by increasing the number of outlets in close proximity and by decreasing price; the level of alcohol-related harm in the adjoining community is currently high; international literature reports consistent evidence of a direct relationship between the density of liquor outlets and alcohol-related harm, and between the price of alcohol and alcohol-related harm; NSW Police report that the area around the site currently has a range of social issues such as crime and alcohol-related assaults; NSW Health advise that Shoalhaven local government area (LGA) already has high levels of alcohol-related harm such as domestic violence; and public submissions from a number of local community service providers objected to the proposal on the basis of their current experience and the current level of alcohol-related harm in the area, and no submissions in favour of the proposal were received by Council. A further particular related to the adequacy of the social impact assessment prepared by Urbis dated September 2009 submitted with the development application and subsequent additional information dated October 2010; that particular was not pressed in light of the social planning evidence provided in the course of the proceedings. 9The central issue in the proceedings is whether the proposed development will have an unacceptable adverse social impact in the locality, the planning evidence being that if it would not, the proposed development would otherwise be consistent with the aims and objectives of the planning controls. Planning controls 10The Shoalhaven Local Environmental Plan 1985 (the LEP) applies to the site. The site is partly zoned 3(b) (Business "B" (Transitional) Zone) and partly 2(d) (Residential "D" Zone) under the LEP. Clause 9(3) of the LEP requires that the aims and objectives of the LEP and the objectives of the zone within which the development is proposed be taken into account. The aims of the LEP relevantly include in cl 2(1)(b) "to enhance individual and community well-being and welfare by following a path of economic development that does not impair the welfare of future generations"; the objectives include in cl 2(2)(k) "to ensure the social amenity and well-being of the City". 11The objectives of the 2(d) (Residential "D" Zone) are "to identify land for tourist infrastructure and to encourage tourist accommodation facilities and other compatible residential uses and recreation". The objectives of the 3(b) (Business (Transitional) Zone) are "to provide for forms of business activities normally located on the fringe of the central business district which require large sites, including retailing of bulky goods". Evidence 12The hearing commenced on site with a view of the site and the surrounding locality. After hearing objector evidence on site and in court as outlined below, the site view resumed with a view of retail liquor outlets in Nowra, being the BWS store on the site, outlets attached to the Coles and Woolworths supermarkets and IGA Khan in the Nowra CBD, and an approved but not yet operating outlet at Aldi; and a view of the Dan Murphy's store in Shellharbour 40 km to the north of Nowra. Objector evidence 13Evidence was provided on site by Mr Jack Price, Ms Patricia Mason, Mr Lee Dobson, Ms Wendy Hobbs, Mr Alan Stephenson, Ms Pam Arnold, Senior Constable Gary Hayden, Mr Ted Braddock, and Mr Vernon James. Agreed notes of the evidence given on site are exhibit 15. 14Mr Price, Ms Mason, Ms Hobbs, Mr Stephenson and Mr James are local residents. Mr Dobson is a local resident, and pastor of the East Nowra Community Church which provides outreach services in the East Nowra community. In their evidence on site, Mr Price, Ms Mason, Mr Dobson, and Mr Stephenson raised concerns about traffic, including flow of traffic through the intersection of the Princes Highway and Kalandar Street, and traffic backing up to the roundabout to the east on Kalandar Street. Ms Mason provided a written statement (exhibit 8). 15Ms Arnold is Manager of Family Support Service, East Nowra, which caters for upwards of 500 families. Her evidence was that there has been some improvement in East Nowra but the majority of families they see are impacted on by use and abuse of alcohol. There are already a number of liquor outlets in the area and the availability of cheap alcohol will only exacerbate the problems; East Nowra is a hotspot for violence and assault, and in 2006 there were 680 assaults and 440 of those were domestic violence incidents. The ready availability of cheap alcohol within walking distance is the problem. People go to shops in Nowra and bring trolleys back; there are residents who don't have access to cars and the Dan Murphy's will mean cheap alcohol is easily accessible. People go to the BWS, and to other outlets in Nowra, including the IGA and Liquorland; they are not able to buy the volume that they could here. Ms Arnold provided written copies of case studies (exhibit 10). 16Mr Braddock, Co-ordinator of Aboriginal Child and Family Centre, stated that he is a former resident of East Nowra. He was one of the people living week to week spending all his money on alcohol. He frequented the Archer because it was easily accessible to get his fix of alcohol; then his life changed and he got out of East Nowra. Mr Braddock provided a written statement (exhibit 9). 17Mr James, a resident of Bomaderry, stated that he is concerned that local outlets would lose their market share; there is no need to increase outlets in Nowra. 18Senior Constable Hayden, Licensing Officer Shoalhaven Local Area Command (LAC), stated that the price at BWS is significantly higher than Coles and Woolworths. There are often trolleys in the public parks because people are walking long distances, 2-3 km, to get alcohol. The NSW Police had a Liquor Accord meeting with the CBD traders of bottle shops about the social impact problem in the Nowra CBD. People from Bomaderry will walk to here and will pass other outlets because the alcohol is cheaper. People from the lower socio economic areas in East Nowra frequent the liquor outlets in Nowra. There are social impacts of alcohol: violence, domestic violence, impacts on children and crime. Seventy percent of crime in the area (Gerroa to Bomaderry and Kangaroo Valley to north of Batemans Bay) is domestic violence related. The population of the command is small, 99,000, and over the six months review it was in the top 10 (as high as no.3) of domestic violence rates. In his opinion 100 percent of family problems or breakdowns are alcohol related. Seventy percent of the domestic violence is alcohol related; in the Shoalhaven command, 25 percent of domestic violence occurs in the locality of East Nowra, which is one third of impacts for the whole command in one square kilometre. 19Additional objector evidence was given in court by Mr Lee Dobson, Ms Patricia Mason, Mr Alan Stephenson, Ms Judith Reardon, and Detective Inspector Glen Broadhead. Mr Dobson stated that he volunteers at Nowra East Public School and Shoalhaven High School. There are two outreach programs at East Nowra, The Shed for youth and families, and a faith community. Mr Dobson's evidence included a letter from the Principal of Nowra East Public School. For the majority of families with problems alcohol either causes dysfunction or exacerbates it. East Nowra has 40 percent indigenous enrolment. Up to 70 breakfasts are provided each day and there is a high incidence of foetal alcohol syndrome. In his opinion it is meaningless to measure social impact on the community by a 800m circle. Mr Dobson conceded that there is ready access to cheap alcohol now; his concern is not that there is a discrete group of malfunctioning people, but a spectrum, and his concern is with people who are vulnerable. The outlet should be located somewhere in the business area of South Nowra or in the CBD. Mr Dobson conceded that people would still go there, however proximity is an issue. People in East Nowra walk because they have no car, or if they do it is not registered, or they have no licence. There is a price difference between BWS and Dan Murphys. 20Ms Mason lives approximately 300 m away from the site in a south westerly direction and she has observed people walking past to buy alcohol, travelling in groups, with cartons of beer. If there is cheaper alcohol people will spend what money is available on alcohol. Mr Stephenson lives 1.2 km away from the site in McKay Street. He has observed litter on the nature strip since the Archer resort was built, and noise from people walking past at all hours of the night. 21Ms Judith Reardon is a community worker with Shoalhaven Neighbourhood Services, and she read a statement provided by Aunty Kate Davis, which included that 9 out of 10 cases involved in Circle Sentencing and Care Circle involve alcohol, and easy access to cheap alcohol will make things worse. 22Detective Inspector Glen Broadhead, Crime Manager Nowra Police, stated that in his experience at Shoalhaven LAC there is an inability to address crime issues; over the five years there has been an increase in domestic violence, alcohol related crime and street robbery. In 2010 alcohol prohibition zones were introduced together with the Council. Issues relating to domestic violence have required over the past two years an increase in staff, from one to two for the licensing officer position and from two to three for the domestic violence officer. There are two police vehicles assigned to East Nowra when they are not responding to calls. Twenty percent of alcohol related assaults, 25 percent of the assault alcohol and domestic violence incidents, 17 percent of non domestic violence assaults, and 29 percent of the domestic violence assaults in the whole of the Shoalhaven command occur in the East Nowra area. In five months there were 1816 domestic violence related assault incidents in the Shoalhaven area; in the southern region the average is 728. Police take time to follow up these incidents and there is a 63 percent legal action rate. The last place of consumption of alcohol in these incidents is a residential dwelling or a public place, not on licensed premises. In his opinion there are enough venues in the Shoalhaven area already and there is no need for another in a location readily accessible to East Nowra. 23The Council's Bundle of documents (exhibit 1) included copies of written submissions made to the Council (tabs 5 and 6). There were 28 submissions received, from individuals and from non-government service providers including Nowra Family Support Services, and East Nowra Neighbourhood Centre/Shoalhaven Neighbourhood Centre, and NSW Police and NSW Health. One submission stated no objection to the proposal. Expert evidence 24Evidence on planning issues was provided on behalf of the applicant by Mr Graham Rollinson and on behalf of the Council by Mr Andrew Lissenden. Mr Rollinson and Mr Lissenden provided a joint report (exhibit 5), and were not required for cross examination. 25Evidence on economic issues was provided on behalf of the applicant by Mr Tony Dimasi and on behalf of the Council by Mr Adrian Hack. Mr Hack and Mr Dimasi provided statements of evidence (exhibits 4, B and C). They prepared a joint report (exhibit 7), and gave oral evidence. 26Evidence on social impacts was provided on behalf of the applicant by Mr James Lette (exhibits D and E) and on behalf of the Council by Dr Alison Ziller (exhibit 3). Dr Ziller and Mr Lette provided a joint report (exhibit 6) and gave oral evidence. 27The Council had initially sought to rely on expert social planning evidence to be provided by Dr Judith Stubbs. Dr Stubbs had previously undertaken work for the applicant, in the course of which she was provided with information. Australian Leisure & Hospitality Group Pty Ltd, on whose behalf the applicant was acting, commenced proceedings in the Supreme Court, and the orders made on 27 February 2012 by Nicholas J included orders that Dr Stubbs be restrained from communicating, using or otherwise disclosing certain information identified as Confidential Information, and that she be restrained from taking any steps as an expert witness on behalf of the Council in these proceedings including by preparing or filing a statement of evidence or participating in any joint conferences or preparing a joint report; and orders that the Council be restrained from preparing or serving evidence in these proceedings from Dr Stubbs (Australian Leisure & Hospitality Group Pty Ltd & Anor v Dr Judith Stubbs & Anor [2012] NSWSC 225). 28The "Confidential Information" was defined in order 1 as: (a) sales trading figures, including turnover, for any liquor store owned or operated by the plaintiffs; (b) budget and forecast figures for the plaintiffs' Nowra BWS and the proposed Dan Murphy's Nowra store which is the subject of Land and Environment Court proceedings No. 11034 of 2011 (Land and Environment Court proceedings); and (c) retail strategies in establishing the plaintiffs' liquor stores, including any marketing strategies, product pricing including profit margins forecasts, pricing differentiation, and business assessment regarding the co-location of BWS and Dan Murphy's; 29Qualifying Orders were made by the Supreme Court on 2 March 2012 as follows: The Court notes the following in respect of the orders made on 27 February 2012: 5A. The Court notes that none of the orders made on 27 February 2012 is intended to prevent: (a) the first defendant or any servant or agent of the first defendant or of Judith Stubbs & Associates from providing to the solicitors for the second defendant for the purpose of the preparation of an expert report by another witness, drafts of reports prepared, or any other research or other work carried out, by or on behalf of the first defendant for the purpose of the Land and Environment Court proceedings, provided that no Confidential Information (or any document containing Confidential Information) is to be disclosed; or (b) the solicitors for the second defendant from providing any such material to Dr Ziller for the purpose of the preparation of an expert report in the Land and Environment Court proceedings, provided that no Confidential Information (or any document containing Confidential Information) is to be disclosed. 5B: The Court further notes the plaintiffs' and the second defendant's agreement that: (a) any material proposed to be provided to Dr Ziller be provided first to the solicitors for the plaintiffs; (b) the solicitors for the plaintiffs have 1 business day from the time of such provision to notify the solicitors for the second defendant whether any such material contains Confidential Information; and (c) the solicitors for the second defendant will not provide any material to Dr Ziller to the extent that it has been identified by the solicitors for the plaintiffs as containing Confidential Information. 30The statement of evidence prepared by Dr Ziller dated 21 March 2012 (exhibit 3) included Annexure F Transcripts: interviews by Dr Stubbs; extracts from those interviews; and comments on those interviews. It was common ground that Dr Ziller's statement of evidence did not include any material falling with the definition of Confidential Information. Consideration 31Section 79C(1)(b) of the Act requires the Court to take into consideration "the likely impacts of that development, including ... social and economic impacts in the locality". In taking into consideration the matters identified in s 79C(1)(b), 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]. 32The Council's position is that consent should be refused because the proposed development will have unacceptable social impacts in the locality. The applicant's position is that the evidence does not establish that the approval of a Dan Murphy's liquor outlet on the site is likely to cause an unacceptable social impact in the locality. The applicant accepts that there is a need for a cautious approach in assessing the likely impacts having regard to the level of disadvantage in East Nowra, and that a cautious approach may justify conditioning the development consent by requiring the closure of the existing BWS store on the site; however refusal of the application would be disproportionate to the extremely limited likelihood of harm having regard to all of the evidence and the circumstances of the case. 33It was common ground that the proposed use does not require any additional regulatory or licensing approval if development consent is granted; and that development consent would not be required if the applicant decided to change the name of the existing BWS to Dan Murphy's, change the signage, and reduce the price of alcohol sold at that outlet. Assessing the evidence Objector evidence 34The proposed development was the subject of written submissions during the course of consideration by the Council, and oral evidence was given by objectors. Those objectors included the NSW Police, and representatives of community organisations providing services to residents of East Nowra. The material on which the social planning experts relied included interviews conducted of residents and other relevant stakeholders. 35The Council submits that the vast majority of the lay evidence cannot be characterised as mere subjective fears and concerns, and is rationally based, and should therefore form an important part of the Court's consideration of the social impact issue. 36The applicant submits that the concern of the community agencies is understandable as those who have campaigned against the development are forced to experience the consequences of alcohol related harm every day when they go to work; however the fact that consumption of alcohol leads to alcohol related harm is not the issue, and what is at issue is whether the proposal will result in an increase in consumption to such an extent that there will be an unacceptable increase in alcohol related harm. In relation to the police concern that proposing a large discount store will result in an increase in alcohol related harm and anti-social behaviour, the applicant submits that this concern relied on there being an increase in consumption, which is not supported by the evidence. 37The matters which must be taken into account under s 79C(1) of the Act include (d), "any submissions made in accordance with [the] Act or the regulations", and (e) "the public interest". In Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10, Preston CJ confirmed that community responses are aspects of the public interest within the meaning of s 79C(1)(e) in securing the advancement of one of the express objects of the Act in s 5(c), being "to provide increased opportunity for public involvement and participation in environmental planning and assessment'' (see also New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at 312 per Lloyd J; and Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402 at 415 per Bignold J). Preston CJ held: 193 However, in considering the community responses, an evaluation must be made of the reasonableness of the claimed perceptions of adverse effect on the amenity of the locality. An evaluation of reasonableness involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on the amenity of the locality. 194 In Broad v Brisbane City Council (1986) 59 LGERA 296 at 304, de Jersey J stated: "In determining the likely effect on a proposed development on the amenity of a neighbourhood the Local Government Court is clearly entitled to have regard to the views of residents of the area. The question is whether a resident's view should be disregarded where it appears to be purely subjectively based, with no suggested justification in objective, observable likely consequences of the establishment of the proposed use. In my opinion, such a subjective view need not necessarily be disregarded. Very often, of course, the evidence of such a view would be accorded little, if any, weight. In forming his own view on the likely effect of a proposed development on the amenity of an area a judge would, I think, ordinarily prefer views from residents which find justification in specific, concrete, likely effects of the proposed development": See also Dixon v Burwood Council (2002) 123 LGERA 253 at 264[53] and New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at 316[61] and 317[63]. 195 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EPA Act: Newton v Wyong Shire Council, unreported, LEC No. 40135 of 1982, 6 September 1983, McClelland J, pp 110, 111; Jarasius v Forestry Commission of New South Wales (1988) 71 LGRA 79 at 92; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 22]; New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at 316[62]. "Mere local prejudice" or "the resistance of uninformed opinion to innovation" is not a basis for rejecting a proposal: Cecec (No. 8) Pty Ltd v Mosman Municipal Council (1960) 5 LGRA 251 at 263; Foreman v Sutherland Shire Council (1964) 10 LGRA 261 at 269. 38The approach of Lloyd J in New Century was to the same effect. Lloyd J concluded: 63 It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. This is consistent with the statement of Mason P in Fairfield City Council v Liu (at [2]) that: ". . . the demonstrable social effect of a particular . . . use is relevant under s 90(1)(d) (now s 79C)'': see also Dixon (at 263 [48]). 39In my view the objector evidence should be given significant weight. That evidence was that alcohol abuse is a significant problem in the East Nowra community, that the rates of domestic violence and other alcohol related crime are high, and that families and children are affected. Affects on children include behavioural and mental issues, foetal alcohol syndrome, lack of care and neglect of children, physical and sexual abuse, domestic violence, and poor school attendance. The evidence of those working in community groups and in the local schools, including Ms Arnold and Pastor Dobson, as to the extent of existing problems was supported by the NSW Police. The concerns expressed as to specific effects likely to result from the addition on the site of another retail liquor outlet selling alcohol at low prices, including the additional demands likely to be made on limited community resources, are based on experience of the present impacts of existing outlets, and I am satisfied that they have a rational foundation, and are more than an expression of subjective fears and concerns. Research literature 40Both social planning experts referred to research literature in their statements of evidence, and they were extensively cross examined on their use of the literature. They agreed that the literature provides an adequate basis to inform a decision, however they disagreed as how the literature should be applied to the assessment of the proposed development. 41The Council submits that Dr Ziller's use of the literature is to be preferred to that of Mr Lette. The VicLANES study (described in detail below), on which Mr Lette relied to support his threshold hypothesis in relation to density, was a cross-sectional study which describes the strength of associations between two factors, and which is unable to establish whether one factor has caused the other. Dr Ziller on the other hand, relied on longitudinal studies on the relationship between liquor outlets and domestic violence. Dr Ziller has used meta-analyses to ascertain whether there is such a consistency in reporting a relevant relationship, such as between outlet density and alcohol-related harm, that it is a fact which itself should be taken into account and applied, notwithstanding the limitations of individual studies. Mr Lette, in contrast, has referred to meta-analyses only where he claims it supports a particular hypothesis favourable to his client, such as the relationship between price and alcohol harms or availability, and has engaged in cherry picking particular conclusions from individual reports without recognising the limitations of particular studies. 42The applicant submits that the evidence of Mr Lette is to be preferred to that of Dr Ziller, both in general, and in relation to his use of the literature. The literature establishes that increasing density from one to two outlets has not been shown to be sufficient to increase individual consumption; at-risk drinkers of low socio-economic status are less likely to binge drink than their more affluent counterparts; proximity and availability have not been shown to increase consumption; and lowering of prices by an individual trader has not been found to increase consumption - at a minimum, a global reduction is necessary. Mr Lette demonstrated in cross examination an extremely sound knowledge of the literature and explained and supported his opinions with direct references to it. 43The documentary evidence included copies of the relevant research literature relied upon by the social planning experts (exhibits F and 12). That literature is extensive, and is derived from studies undertaken in Australia, Canada, USA, Europe and the United Kingdom. Much of the literature included in the documentary evidence is relatively recent. 44A significant element of the Council's criticism of Mr Lette's use of the literature related to his reliance on a cross-sectional study undertaken by Professor Anne Kavanagh and Ms Lauren Krnjacki "Accessibility to Alcohol Outlets and Alcohol Consumption: Findings from VicLANES" (VicLANES) (exhibit 12 tab 11). That study was conducted in 2003, collecting information from 2500 participants in 50 census collector districts (CCDs) in Melbourne about their alcohol consumption, and included an audit of all outlets selling liquor for off-premises consumption and recording the availability and price of 70 different alcohol beverages. The report of the study addressed whether accessibility to alcohol outlets close to home increased harmful alcohol consumption, and whether the price and availability of a range of alcoholic beverages in alcohol outlets close to home increased harmful alcohol consumption. The study used four measures of access: density (the number of stores in a 1km road network distance of respondents' homes); proximity (the distance from a respondent's home to their closest store measured along a road network); availability (the number of beverages stocked in the closest store out of a possible 70 items audited); and price (the price of a commonly stocked basket of beverages in the closest store). The findings of the study were that there is an association between outlet density and harmful alcohol consumption, although the association might not be strictly linear; there was a lack of evidence to support an association between proximity and consumption; there was limited evidence to suggest that access to a greater variety of alcoholic beverages reduced the risk of drinking at levels associated with long-term harm; and no evidence of an association between the price of a basket of commonly-available items and levels of alcohol consumption. In relation to the latter finding, the study noted that that finding did not accord with previous research which had demonstrated that consumption is strongly related to price, and noted that there was very little variability in the price of beverages between stores. The limitations of the study as noted by the authors included the possibility of self selection of respondents; the use of a 1km network distance meaning that outlets at that distance would be highly accessible; the study was cross-sectional and therefore it could not be concluded that the associations are causal; and levels of alcohol consumption were self-reported meaning that it is likely that these were underestimated by respondents. 45Exhibit 12 (tab 11A) included a published peer reviewed article by Professor Kavanagh et al "Access to alcohol outlets and harmful alcohol consumption: a multi-level study in Melbourne, Australia"(2011) 106 Addiction 1772-1779. That article focuses on the findings of the VicLANES study on density, and concluded that the evidence suggests that when the number of outlets within a 1 km network distance is 8 or more the risk of drinking at levels associated with short term harm is increased. The authors referred to another study (exhibit F, tab 7) by M Livingston "Alcohol outlet density and assault: a spatial analysis" (2008) 103 Addiction 619-28 which used postcodes as the spatial unit of analysis and found evidence to suggest that when the number of outlets was 15 or more the risk of assault increased sharply. 46The Council submitted that greater weight should be given to the findings of longitudinal studies, or time-series studies, described in a study undertaken for the UK Home Office by A Booth et al (2011) "Alcohol pricing and criminal harm: a rapid evidence assessment of the published research literature"(the Sheffield report) at p 11 in the following terms: Designs comparing the same place over time and/or comparable places at the same time generally provide a stronger indication that one factor has a causal effect than cross-sectional designs involving a single locality. 47In oral evidence Mr Lette accepted the limitations of cross sectional studies, however he relied on the stated strengths of the VicLANES study, and considered that it is an adequate basis on which to form an opinion. 48The Sheffield report (exhibit F tab 13) was a rapid evidence assessment of the published research literature which covered primary studies examining a direct association between alcohol pricing/taxation and crime-related outcomes; 58 reviews or meta-analyses examining associations between pricing and consumption and between pricing and harm; and new primary research on the association between pricing and consumption. It reported that levels of crime were reduced following tax/price increases. The evidence base for alcohol tax/price reductions and their impact on crime was smaller, and dominated by Scandinavian studies on recent tax reductions which concluded that while tax reductions led to increases in overall crime levels they had not led to increases in violent crime, domestic violence or robbery and had led to a reduction in public order offences. The review concluded (at p5) that it was not possible to demonstrate a symmetrical effect between the effects of price increases and corresponding effects from price reductions for specific crime-related outcomes. 49Additional evidence in the literature addressing the relationship between price and harm was in the World Health Organisation (WHO) 2009 report "Evidence for the effectiveness and cost-effectiveness of interventions to reduce alcohol-related harm" (exhibit 12 tab 26). That report noted (at p76) that when other factors are held constant, such as income and the price of other goods, a rise in alcohol prices leads to less alcohol consumption and less alcohol-related harm, and vice versa. In oral evidence Mr Lette noted that the latter finding was based on an a study of tax reform which led to a reduction of between 30-50 percent in retail price of certain spirits, and to an increase in consumption of spirits by 28.6 percent and an increase in alcohol-related problems. In Mr Lette's opinion, the size of the price reduction was substantial and he did not regard this study as a valid basis on which the draw the broader conclusion. 50Other studies included in the research literature in evidence are discussed below. 51I accept the agreed position of the experts that the research literature is a relevant aspect of the evidentiary base on which to assess the social impacts of the proposed development. However, while informative, there are limitations as to its usefulness on the specific issues raised by the proposed development in its location and context. In particular, the WHO report noted (exhibit 12 tab 26, p66) that much of the literature related to studies of the introduction of a retail liquor outlet to communities not previously exposed to such outlets; the present application involves the addition of a liquor outlet to a community where there is already access to alcohol, including at discount prices. Many of the studies, including the VicLANES study, were based on urban areas, rather than the present situation of a regional centre. Further, the studies that addressed the relationship between price reduction or increase and consumption or harm generally did so by reference to across the board price changes such as through taxation, rather than the marketing approach of a single retailer. Dan Murphy's Ballina 52In December 2010 a Dan Murphy's store opened on the Princes Highway in West Ballina, adjacent to an existing hotel which also has an attached BWS liquor store with drive-through bottleshop. 53Mr Dimasi relied in his evidence on customer surveys undertaken at the BWS store on the site, and at the Dan Murphy's in Ballina. In his statement of evidence (exhibit B) Mr Dimasi provided details of the surveys, which included information about the origins of customers, the method of transport used to access the store, the average amount spent, and the socio-demographic descriptors of the customer base. 54Mr Lette undertook a case study of Ballina, which he included at Part 3 of his statement of evidence (exhibit D). Mr Lette stated that the case study was prepared to augment the evidence base available, and to provide a specific and comparable example of the proposed development in Nowra (p16). The focus of the case study was on understanding the situation in the community both prior to and following commencement of operations at the premises. Dan Murphy's Ballina was selected based on a number of criteria, developed from an understanding of the proposal and the surrounding Nowra community. Ballina Dan Murphy's is located on the highway and is highly accessible to the region; it is part of a complex that includes a hotel and a drive-through BWS bottle shop; is located with a neighbourhood shopping complex which forms a local community hub; West Ballina has a significant indigenous population, a concentration of public housing, and low income households, and is a community which has had long-standing issues related to alcohol, particularly alcohol-related crime. 55Mr Lette's investigations included recorded crime statistics and NSW Bureau of Crime Statistics and Research (BOCSAR) crime hotspot maps; evidence from sources on aspects of health and wellbeing including Roads and Maritime Services accident database; a community survey of the West Ballina and Ballina Urban Centre/Locality (UC/L) community; consultation with key informants and the main nearby businesses; reviews of existing studies and Australian Bureau of Statistics (ABS) demographic data; a visual inspection of the site and it surrounds; consideration of liquor licence outlet density, and initial results of an Exit Survey of Dan Murphy's Ballina patrons, and his knowledge of Ballina developed during previous projects. 56At Part 3.7 of exhibit D Mr Lette summarised the Case Study Implications. Mr Lette noted that the case study premises is situated within a disadvantaged community with a number of demographic indicators of potential social risk. Despite these indicators of potential risk, and pre-existing social issues, Mr Lette's evidence was that community safety outcomes do not appear to have been measurably affected by the introduction of Dan Murphy's in December 2010: 71 percent of West Ballina residents thought that the level of crime in their area had stayed the same or decreased; no key informant including NSW Police believed that Dan Murphy's was connected to any change in alcohol-related crime or social health outcomes; and in terms of social health outcomes the crime statistics and other available data had remained the same or improved. Mr Lette concluded (at p 63) that it is difficult to quantify the level of social impact which can be attributed to a single retail liquor outlet; Dan Murphy's Ballina appears to be operating satisfactorily within a disadvantaged community which had alcohol-related issues which pre-dated its opening; and that the operation of Dan Murphy's Ballina appears to have had no measurable influence on alcohol-related assault. 57Dr Ziller was of the opinion that the Ballina Case Study is not helpful. At Annexure C in her statement of evidence (exhibit 3) and in her oral evidence Dr Ziller identified the difficulties with using the case study in order to draw a conclusion about what might happen in Nowra: only one comparative case was presented; there was no "before" study against which to make an assessment about what happened afterwards; the study made considerable use of self-reported changes or lack of change in behaviour which is not a reliable guide to actual behaviour; the comparison of West Ballina (Table 3.2, p20, exhibit D) with Nowra omitted the most disadvantaged part of East Nowra which undermined its usefulness; the crime data relied upon was likely to suffer a time lag between the crime event and its inclusion in the statistics; a 12 month period was not long enough to observe the impacts of the new outlet; alcohol-related harm is not necessarily a quick event and a 12 month operating period gives insufficient guidance; data on alcohol-attributed hospitalisations was reported up until 2010, before the Dan Murphy's opened; some of the community survey data had been misreported; there were no records of interview with local people and it was not possible to follow up with most interviewees; an effort to follow up with those interviewees most likely to be in a position to have a view about recent changes in alcohol-related behaviours in West Ballina had found that several interviewees felt they had not been adequately advised of the purpose of the interview or had not been provided with the opportunity to review the summary of what they had said; and of the 20 people interviewed for the case study, 10 did not respond or declined to participate or said they were unable to help. 58Mr Lette and Dr Ziller were questioned in detail in relation to the reliability and usefulness of the Ballina case study. I accept, based on Mr Lette's evidence in cross examination as to timing and the similar methodology used in a study being undertaken by Deakin University, NSW Health and the University of Newcastle (investigating the prevalence of alcohol-related harms and community attitudes in the context of community-based interventions being implemented to reduce harm in two Australian regional centres) (p 22 exhibit D), that it is not unusual for a case study not to do a "before" study. However, in many respects the data that might inform an understanding of impacts after the opening of the Dan Murphy's in Ballina was not available because the case study was conducted only 12 months after opening. Mr Lette accepted that for long term harm, it would take a number of years for health impacts to occur, however he was of the opinion that for that harm to occur patterns of consumption have to change. I accept that in many respects the Ballina area is similar to East Nowra, in terms of the location of the Dan Murphy's on a site located on a major highway accessible within the region, and where there is already a hotel and a drive-through bottle shop; and its location in an area with substantial public housing, a significant indigenous population, and longstanding issues relating to alcohol and alcohol related crime. While there are differences in actual numbers, for example public housing at 23.7 percent in the 800m radius of Nowra while it is 9.1 percent in the 800m radius at Ballina, I accept that both are a high proportion in comparison to the NSW average. However, there are differences. In the Shoalhaven LGA the rate of assault domestic violence related is above that for NSW as a whole, whereas the rate for Ballina LGA is lower (exhibit D Appendix 8; exhibit 14). The high rate of domestic violence in Nowra and East Nowra was a concern raised by community groups and the police. I accept Dr Ziller's concerns that it is relevant whether the community survey was sufficiently comprehensive as to elicit responses relating to domestic violence, when only question 24, which asks whether the respondent or any member of their household has been a victim of personal crime, specifically refers to domestic violence. However, I do not accept that the absence of an express reference to domestic violence in other questions is determinative, given Mr Lette's evidence that the questions are drawn from standard national surveys, and that other questions include matters sufficiently broad to include domestic violence (for example, question 14 which refers to "verbal abuse", and "problems with neighbours or domestic problems"). 59Overall, I am satisfied that the Ballina case study is relevant as part of the evidence base on which to assess the proposed development, and provides some useful information to inform the assessment of the likely impacts of the proposed development. While there are differences in the demography and geography between Ballina and East Nowra as demonstrated in the ABS and BOCSAR data, overall they are sufficiently similar to provide some assistance. However, the timing of the case study 12 months after the Ballina Dan Murphy's opened limits its usefulness in terms of official statistics, and in the emergence of measures of alcohol-related harm in such aspects as health. I agree with the Council that the statistics as to crime rates in West Ballina, set out at Table 3.15 in Mr Lette's statement of evidence (exhibit D, pp 48-9) are too small to be able to express a confident conclusion as to the impact of the Dan Murphy's premises. Having regard to these limitations, while the Ballina case study does contribute some relevant evidence, it should not in my view be regarded as compelling any specific conclusions as to the likely impact of opening a Dan Murphy's at the site the subject of this appeal. Social impacts What is the "locality"? 60The first issue in considering likely social impacts is to identify what constitutes the appropriate locality within which to consider those impacts. The term "locality" is not defined in the Act, and is a question of fact: Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119 at [42]. The nature of the development and its impacts will influence the scope of locality to be considered: Milne v Minister for Planning (No 2) [2007] NSWLEC 66 at [24]. 61The experts disagreed as to what constitutes the appropriate "locality". 62Mr Hack and Mr Dimasi agreed generally on the size of the Main Trade Area, being the combined Primary and Secondary Trade Areas, although they disagreed as to how to define and identify the Primary Trade Area within the Main Trade Area. They agreed that the proposed Dan Murphy's store would serve a very extensive area, which would include all of Nowra as well as the surrounding towns and rural areas, including Berry, Culburra Beach, Falls Creek, Sanctuary Point, and Berrara. Mr Dimasi was of the opinion that the location of the site and its exposure to the Princes Highway would enable the store to effectively serve all of the trade area, but would also draw a significant proportion of its business from beyond this trade area, including from passing traffic and from visitors and holidaymakers throughout the Shoalhaven region. Mr Dimasi estimated that the main trade area contains a population of some 76,500 in 2011. 63In their consideration of the "locality", Mr Lette and Dr Ziller agreed that there are three levels: the Trade Area as a whole (primary and secondary), and within that the Primary Trade Area, and within that a "closer" locality. Dr Ziller and Mr Lette agreed that the definition of the Trade Area was outside their expertise, and their evidence focussed on identifying the "closer" area. They disagreed on the geographical extent of the closer area; whether ABS Collector District (CD) 1180714 is included; whether the remainder of the Nowra/Worrigee suburbs are in the closer area; and whether most residents of CD 1180714 who patronise the site would come by motor vehicle. 64Mr Lette identified the closer area by reference to the distance which a person is likely to walk to patronise the premises. In his opinion a person is likely to walk 400 m to 800 m to a shop and that a trip of 1.2 km (being a round trip of 2.4 km) is likely to be outside the walking limit for most persons particularly if it is necessary to carry a packaged liquor product. Mr Lette limited the locality to the walking catchment because once a person can no longer walk they need to find an alternative mode of transport; and once a person is in a vehicle they have access to a much wider locality. Mr Lette identified the 400 m radius as the primary locality and the 800 m radius as the secondary locality, and up to 1,200 m as the "outer" walking catchment (exhibit D p 10). 65CD1180714 is a Census Collector district (CCD) located to the east of the site, extending east of McKay Street and south of Kalandar Street. The western boundary of CD1180714 is at the western edge of Mr Lette's 800 m radius from the site. Mr Lette did not consider CD1180714 to be within the closer area, as in his opinion many residents of East Nowra are unlikely to walk more than 2.4 km as a return journey for half of which they would carry bulky or heavy packaged liquor items; there was no evidence that Dan Murphy's patrons were more likely to walk than those of BWS, and only 7.5 percent of current BWS patrons walk to those premises; and since public housing residents of CD 1180714 would need to drive, share a lift, hire a taxi or catch a bus to access the site they are no more at risk from proximity of a Dan Murphy's located at the site than if the premises was located elsewhere in Nowra. However, while he did not include CD1180714 in his definition of the closer area, in his statement of evidence he considered that CD separately and provided opinions as to the risk to residents of that CD. 66In her statement of evidence (exhibit 3) Dr Ziller identified two relevant localities: the Nowra-Bomaderry urban area, which has a population to 34,000, and a radius of 10km and approximates the local trade area (locality 1); and the perceived closer area being Nowra/Worrigee suburb which has a population of 15,000 persons, and which includes the Nowra CBD (locality 2). In the joint report (exhibit 6) Dr Ziller stated that the "closer" local area should be defined by perceptions of localness, and based on the interviews (Annexure F) the present liquor outlets at Kalandar Street are regarded as "local" by local service providers and health and welfare workers. Dr Ziller disagreed with Mr Lette's reliance on walking distance, on the basis that there is no evidence as to how much walking residents of East Nowra engage in, and noting evidence that people use trolleys. 67CD1180714 would be within Dr Ziller's closer area, but not within Mr Lette's 1.2km locality. However, Mr Lette considered CD1180714 in his statement of evidence (exhibit D, p10). In summary, he noted (exhibit D, p 96) that CD1180714 evidences significant levels of disadvantage. It has a Socio-economic Index for Areas (SEIFA) Index of Relative Socio-economic Advantage/Disadvantage (IRSAD) score of 647 making it the seventh most disadvantaged CD in NSW; and findings that risk factors for males to develop subsequent harmful substance mis-use include extreme social disadvantage suggest that these residents are particularly at risk of alcohol related harm. 68I would not adopt Dr Ziller's locality 1 or locality 2 as the relevant "locality" for the purposes of considering social impacts of the proposed development. There are 66 liquor outlets in locality 1 (exhibit 3, para 114) and 46 in locality 2 (exhibit 3 para 169). That includes limited licences such as those held by sporting clubs, and even if some of those liquor outlets were excluded, to identify the "locality" on either basis would be too broad to enable a meaningful consideration of the impacts of the addition of the proposed development. Equally, I would not adopt Mr Lette's 400 m or 800 m primary or secondary localities. The presence of the shopping centre in East Nowra on which residents in East Nowra would rely, some 300-400 m away from the site, makes it likely that residents coming from distances greater than 800 m could and would walk the additional distance to the site to acquire alcohol. Surveys conducted on behalf of the applicant during February 2012 of customers at the BWS at the site reported that 89 percent of customers arrived by motor vehicle; 7 percent by walking; and 4 percent by other transport means including motorbike, pushbike or taxi. I agree with the Council that the absence of detailed information as to the dates on which the survey was conducted, and more particularly the weather on the relevant dates, leaves this data open to speculation as to whether the rate of 7 percent walking was lower or higher than usual. The evidence of Ms Arnold, and of Senior Constable Hayden, confirms that people on East Nowra and Nowra more generally walk considerable distances to purchase alcohol, including into the Nowra CBD, bringing back trolleys which are left in public parks. Trolleys were evident on the view. It was common ground between the experts that the location of the site makes it accessible to a wide area. 69In my view, the appropriate locality for consideration under s 79C(1)(b) extends at least as far as Mr Lette's 1.2 km walking catchment and further into the parts of East Nowra serviced by the East Nowra shops. It would include CD1180714, and Worrigee, which is a developing residential area which depends on Kalandar Street as a thoroughfare; the experts accepted that Worrigee is relatively less disadvantaged. Characteristics of the "locality" 70The economic and social planning experts provided considerable information in their individual statements of evidence about the demographic attributes of their respective trade areas and localities, and addressed that data in the joint reports. The information relevant to the "locality" as identified above can be summarised as follows. 71Dr Ziller and Mr Lette agreed that Nowra UCL (IRSAD 937.1) and Statistical Sub-Division (SSD) (IRSAD 949) are relatively less advantaged than the NSW mean SEIFA score and in comparison to the SEIFA score for the aggregate area outside Sydney (IRSAD 967.8), and that there is an area of exceptional disadvantage in part of East Nowra. CD1180714 is the seventh most disadvantaged CCD in NSW: 92 percent of dwellings are public housing; 25 percent of the population identify as Aboriginal; and the SEIFA score of 515 is extremely unusual for an urban area within a short drive of the Sydney metropolitan area. They agreed that there are other ABS CCDs close to the site which identify areas of notable disadvantage. They agreed that there is no information as to where tenants of public housing sold by Housing NSW as part of its sales program have been relocated, however the majority would be within the Nowra urban area. 72In considering the SEIFA indices, Mr Lette and Dr Ziller agreed that relative disadvantage has many aspects and the SEIFA indices are not the only indicators of disadvantage; in addition, SEIFA indices represent combinations of many variables, that is, each one is an index not a single variable, and as a result there can be several explanations for a particular locality's SEIFA scores. They disagreed as to the extent to which further analysis is required to understand the nature of any disadvantage revealed by a SEIFA index and its relationship to risk of alcohol related harm, and as to the appropriate indicators to use in assessing vulnerability to alcohol related harm. Dr Ziller was of the opinion that the SEIFA Indicator of Relative Disadvantage, compiled by the ABS based in part on household income, is a critical factor in levels of alcohol-related harm. Mr Lette relied on the SEIFA IRSAD, as in his opinion it provides the clearest picture of whether a location is advantaged or disadvantaged. 73The BOCSAR crime statistics confirm the evidence of police that alcohol-related violence is an issue in East Nowra. Medium density "hotspots" for alcohol-related assaults in 2010 were located in the area of the site of the proposed development, and also in CD1180714 (exhibit 3, map 20). East Nowra as a whole was identified as a high density hotspot for assault-domestic violence (exhibit 3, map 21). The evidence of the NSW Police, in the written submission by the Acting Superintendent of the Shoalhaven LAC (exhibit 1, tab 4) was that the crime figures for Nowra reflect the disadvantaged community that East Nowra represents: during 2008-2009 55 percent of malicious damage reported to police occurred within Nowra; Nowra accounted for 55 percent of all alcohol related assaults and 59 percent of all domestic violence related assaults within the Shoalhaven LGA; and between 40-45 percent of all domestic violence related assaults are alcohol related within the Shoalhaven LGA with East Nowra being the top suburb. The Nowra Domestic Violence Intervention Service statistics referred to in that submission were that they deal with 2468 clients who are the victim of domestic violence: of that number 34 percent are from Nowra/East Nowra; 14 percent are of Aboriginal or Torres Strait Islander background; and approximately 90 percent of domestic violence related assaults occur in the residential home. 74The social impact assessment prepared by Urbis in 2009 as part of the documents accompanying the development application (exhibit 1, tab 7) discussed (at 5.6.3) significant issues in the immediate vicinity of the site in relation to alcohol with public drinking occurring in the areas immediately surrounding the BWS such as the bottom of the car park, bushland, and the cemetery on the other side of the Princes Highway. Urbis noted that the BWS publican had identified issues with consumption of alcohol bought in the shop within the immediate environs; staff being required to move on people engaging in this public drinking; intoxicated persons attempting to buy alcohol at the BWS after they left the hotel; secondary purchase of alcohol for minors; and on average ten people per day visiting the shop two or more times a day to purchase low priced goods. 75Mr Lette's oral evidence that action has been taken by the hotel and BWS so that drinking on the site or in the cemetery is no longer occurring, and that in terms of secondary supply there is now a security guard on site checking IDs, was not disputed. Mr Lette conceded that instead of drinking on the Archer Resort premises people may have been warned off and may be drinking somewhere else. 76Dr Ziller and Mr Lette disagreed on the extent to which social change has occurred in East Nowra since 2006. Mr Lette noted that one stakeholder he consulted had commented that "while it is far from perfect it is greatly improved" (exhibit D, p93), and that Council staff had agreed that the demographic of the area is changing. Other stakeholders interviewed by Dr Stubbs noted some improvement, however expressed concern as to continuing problems, for example Ms Arnold from the Family Support Service who noted (exhibit 3, Annexure F p 38) that while some social housing has been sold there is still a predominance of social housing in East Nowra and the families who move in are not necessarily better off. Ms Arnold noted that problem drinking and excessive consumption of alcohol affects extended families and whole streets. Impacts 77It was common ground that the particular social impact of concern in assessing the proposed development is alcohol-related harm, which may be experienced either directly as a result of the risky consumption of alcohol, or indirectly by those who are exposed to persons who engage in the risky consumption of alcohol. 78The applicant submits that at the heart of the Council's contention is the likely effect of the proposed development on the level of consumption among the socially and economically disadvantaged persons in the locality and that if the evidence does not establish a probability of an increase of consumption as a result of the proposed development then there is no basis for concluding that the development will cause an increase in alcohol related harm. In order to contemplate refusal of the application, it would have to be concluded that the proposed development is likely to result in consumption of alcohol at risky levels among the socially and economically disadvantaged persons in the locality to such an extent as to cause an unacceptable increase in alcohol related harm. Accordingly, the primary issue is whether consumption of alcohol is likely to increase among socially disadvantaged at-risk drinkers in the locality as a result of the approval of a Dan Murphy's liquor outlet. In order for that to occur the Court would have to be satisfied that a Dan Murphy's on the site would lead to an increase in consumption by the target group, and in order for this to be a probability any increase in consumption would have to be on a magnitude such that it exacerbates and increases existing levels of harm. 79The Council submits that the issue is not whether the evidence establishes that consumption of alcohol would increase. Consumption may remain the same while harm increases, through switching consumption from one sector to another; and it is not possible to measure increase in consumption without access to the confidential data of the retailer, or a survey based on self-reporting which it is accepted underestimates consumption. The literature looks to harm, as measured by data collected by police and health services, rather than consumption. 80The Council submits that the precautionary principle is applicable in the context of impacts in the social environment as well as impacts on the physical environment, and that such an approach involves the shifting of the burden of proof, requires the decision-maker to apply a degree of precaution, and that the response be proportional. The applicant submits that if the precautionary principle is triggered it permits the taking of preventive measures proportional to the potential threat; in the present case the closure of the BWS would be an ample precautionary response to the risk. 81In their joint report (exhibit 6) Dr Ziller and Mr Lette addressed the general issue of rates of alcohol-related risk drinking. They agreed that the relevant issue is the consumption of alcohol at levels above those identified in the 2001 and 2009 NHMRC guidelines, the latter having lowered the threshold at which drinking becomes risky for males. They agreed that there is no statistical difference in rates of high risk drinking by socio-economic status as measured by SEIFA; estimates of rates of risky drinking are based on self-reported behavioural surveys which are acknowledged to under-report those rates; and reported rates of alcohol consumption among pubic housing tenants vary with age and gender. Based on the 2010 Catholic Health Australia & NATSEM report "Health Lies in Wealth: health inequalities of Australians of working age", they agreed that in terms of household income, those in the bottom income quintile are 30 percent less likely to be high risk drinkers compared with men in the top income quintile; education appears to moderate risky alcohol consumption in younger men and women; and younger women in public rental housing are nearly three times as likely to be high risk drinkers compared to women living in their own home. 82Dr Ziller and Mr Lette agreed that the rates of risky drinking identified in the NATSEM report and the Australian Institute of Health and Welfare National Drug Strategy Household Survey can be applied to the various geographies to provide indicative estimates of the number of current risky and high risk drinkers. They disagreed, however, on the numbers derived in that manner. Dr Ziller estimated 7039 persons aged 18 or over in the Nowra-Bomaderry SSD engage in short term risky drinking, based on the ABS data that 40 percent of persons aged 18 or over do so. Mr Lette disputed the data, and methodology, used by Dr Ziller; his estimate was that in the SSD 2,294 people engage in risky drinking, and 225 within the closer area he adopted. 83Whichever of the methodologies is adopted, I agree with the applicant that the numbers are relatively small. The applicant submitted, correctly in my view, that simply because the numbers are small does not indicate that there is not a problem. However the level of current risky drinking is quantified, any potential increase in the numbers of people either drinking at risky levels, or experiencing other forms of alcohol related harm, is relevant in the context of the evidence of the current significant issues relating to alcohol related harm in the Nowra and East Nowra community. 84The relevant factors addressed in the evidence in considering likely impacts of the opening of Dan Murphy's at the site concerned density, proximity, range and availability, and price. Density 85In their joint report (exhibit 6) Mr Lette and Dr Ziller agreed that based on the literature a link has been established between outlet density and certain alcohol-related harms, and that there is no literature that allows the impact of the proposed development, in terms of increased density, to be quantified. They agreed that in general the theory points to the presence of licensed outlet density thresholds above which problems in a particular local area will manifest themselves, however knowledge as to specific points is lacking. 86Mr Lette's opinion was that alcohol-related problems do not necessarily increase consistently with outlet density, and that a threshold point exists after which each additional outlet contributes increasing levels of alcohol-related harm. He relied upon the VicLANES study to support the propositions that in terms of density, the risk of drinking at levels associated with short term harm lies with eight or more outlets within a one kilometre walking network area. In oral evidence Mr Lette conceded that VicLANES also suggests that there may be a threshold at an increase of three to four packaged liquor outlets. Mr Lette agreed that there are over 80 studies about density in the literature and they consistently report that if density increases harm increases, however he noted that the studies are not consistent that it is a linear effect. 87Dr Ziller's evidence was that it is the consistency of the finding that density of alcohol outlets in a particular area is positively associated with alcohol-related harm that is significant, and that this finding should be considered in the context of the information relating to alcohol-related harms in the Nowra urban area. Dr Ziller distinguished between density and harm, and density and levels of consumption, and in her opinion the relationship between density and harm is established. She would maintain her concerns about density even if the BWS closed. 88The evidence before the Court includes studies that support the proposition that as outlet density increases so does harm. Those studies include the WHO report (exhibit 12, tab 26, p65) which concluded that the number of alcohol-related outlets is related to the level of alcohol-related harm; Heung et al "Alcohol and Community-based Violence: A Systematic Review" (Ontario Public Health Association, 2010) (exhibit 12, tab 10, p11) which concludes that alcohol outlet density is positively associated with levels of violence; and Chikritzhs et al "Predicting alcohol-related harms from licensed outlet density: A feasibility study" (National Drug Law Enforcement Research Fund, 2007) (exhibit 12, tab 6, at p xii), which concludes that liquor stores consistently indicated strong positive associations across all alcohol-related harm indicators. One of the studies undertaken by M Livingston "A longitudinal analysis of alcohol outlet density and domestic violence" (2011) 106 Addiction 919-925 (exhibit 12, tab 18) was a longitudinal study which concluded that alcohol outlet density was associated significantly with rates of domestic violence over time, and that there was a large effect for packaged liquor licences in comparison with on-premise licences. While the VicLANES study, on which Mr Lette relied, identified a threshold above that relevant in the present application, given the limitations noted in the study and of cross sectional studies more generally (also noted by Livingston in "A longitudinal analysis of alcohol outlet density and domestic violence" (2011) at p 923), I accept the evidence of Dr Ziller that it is the consistency of the findings across the literature that is relevant in the context of assessing this application. The concern with an increase in the number of retail liquor outlets is supported by the evidence of the community service providers and other objectors including police. I am satisfied that the evidence supports a finding that the addition of another retail liquor outlet on the site is likely to result in an increase in levels of alcohol related harm. Price 89Mr Hack was of the view that while the market is broad, Dan Murphy's particularly targets price conscious buyers. Mr Dimasi disagreed, on the basis that Dan Murphy's has a range of fine wines, and the sheer range of wines means that Dan Murphy's is targeting the affluent. Mr Dimasi conceded that Dan Murphy's at Shellharbour has special discounts at the end of the aisles, and that the Dan Murphy's guarantee is to beat, rather than meet, competitors' prices. In his opinion smaller bottleshops have features that may attract some people keen to get in and out quickly. The drive through may attract people to BWS; in comparison, Dan Murphy's is larger and well lit, with many staff, and requires customers to queue at a checkout. Mr Dimasi's evidence was that Dan Murphy's would take 30 percent of the BWS trade, however it would survive. Mr Hack agreed that factors other than price, such as location, would influence whether people would go into the larger store, and that many people would continue to shop in outlets attached to the supermarkets because of the convenience factor. 90Mr Hack and Mr Dimasi recorded prices at the outlets visited on the view. Mr Hack noted that a 5 litre cask was $19 at Coles and Woolworths, and $14 at the Shellharbour Dan Murphy's; a 4 litre cask was $14, and at Dan Murphy's it was $11. Mr Dimasi noted that Liquorland had a 4 litre cask at $11.95; he and Mr Hack agreed that the existing outlets engage in special discounting. 91Mr Hack and Mr Dimasi addressed the issue of whether reduced price would mean increased consumption. Mr Hack's evidence was that through competition, consumption would increase because of a reduction in price. Mr Dimasi's evidence was that it was not clear whether price reductions lead to an increase in consumption, and the evidence is inconclusive; in his opinion it is not clear that at a population level one retailer will influence consumption, and there is little basis for the assumption that a Dan Murphy's would lead to an increase in consumption, rather it is more likely that there would be substitution and an increase in sales from passing traffic. 92Dr Ziller and Mr Lette considered the issue of price. Dr Ziller relied on evidence that when the price of alcohol rises, consumption is reduced, referring to the University of Sheffield study, and to Stockwell et al (2010) "Does minimum pricing reduce alcohol consumption? The experience of a Canadian province" 107 Addiction 912-920 (exhibit 12, tab 23). Dr Ziller was of the opinion that the literature consistently finds a relationship between alcohol consumption and price and between price and alcohol-related harm; while the specifics of the relationship are the subject of on-going research, it is the consistency of the finding that matters. Mr Lette's evidence was that it cannot be assumed that there is a consistent symmetrical effect between crime-related outcomes following a price increase and those same outcomes following a price decrease. Mr Lette relied in particular on the VicLANES conclusion that price was not associated with consumption of alcohol at levels that increase the risk of harm, when price was fitted as a continuous or categorical variable. Mr Lette noted that the only form of crime for which a firm association can be drawn to alcohol price reductions is assault (non-domestic violence related), and that an element of this crime would relate to consumption at on-premises licences. 93Some of the limitations of the research literature addressing the relationship between price and consumption and price and harm have been noted above. Literature addressing this relationship in evidence also included a report by the New Zealand Law Reform Commission (2010) "Alcohol in our lives: Curbing the Risk" (exhibit F, tab 11, p 275) which reviewed the literature on price elasticity of demand and concluded that it suggests that a 10 percent increase or reduction in price would result in a 5 percent decrease or increase in consumption, and noted (at 277) that when affordability is taken into account elasticity shows a positive relationship. I accept the evidence of Dr Ziller that while the specifics of the relationship between price and harm are the subject of on-going research, it is the consistency of the findings that there is a relationship that is significant. The evidence of the community organisations and the police that people walk considerable distances past other liquor outlets to obtain cheaper alcohol supports a finding based on this relationship that the opening of a Dan Murphy's on the site may result in an increase in consumption and harm. The economic evidence suggests that there may be other factors, however, including the convenience factor of shopping at outlets associated with supermarkets, the likely trade coming from outside the Nowra area, and the special discounting already evident, and supported by the view, in the existing liquor outlets. Availability 94Mr Lette and Dr Ziller addressed the Council's contention that the proposed development would increase the availability of alcohol by increasing the number of outlets in close proximity and by decreasing price. Dr Ziller's opinion was that availability includes the number of outlets, the size of outlets, and price, and she noted that the proposed outlet is very large and will have a large stock. 95The issues of density and price have been addressed above. The evidence of Mr Dimasi and Mr Lette that the large size of the proposed development relates in part to the provision of a wide range of products, including more expensive products, and the layout of the aisles and checkouts, is consistent with the observations of the Shellharbour Dan Murphy's on the view. Dr Ziller conceded that the literature that does not draw a relationship between availability in terms of range of product sold and consumption. The VicLANES study (exhibit 12, tab 11, p 22) noted limited evidence that suggests that access to a greater variety of alcoholic beverages reduced the risk of drinking at levels associated with long-term harm; the study noted that larger variety may provide greater choice including of beverages of low alcohol content, however further study is needed to investigate the association. I am not persuaded on the evidence before me that availability, as framed in the contention, would be likely to increase the risk of harm. Proximity 96Mr Lette and Dr Ziller agreed that the location of the site on the Princes Highway makes it accessible to a wide area, and that people will pass by the site. Mr Lette did not agree that the proposed premises would increase the temptation to certain at-risk groups in the area, given that there is already a BWS and a hotel on the site. Dr Ziller was concerned that the location is in an area well known for alcohol-related harms, however in cross examination she conceded that the literature does not suggest a relationship between proximity and consumption. The issue was addressed in Kavanagh et al "Access to alcohol outlets and harmful alcohol consumption: a multi-level study in Melbourne, Australia"(2011) 106 Addiction 1772-1779 (exhibit 12, tab 11A, p 1778). While that article focussed on density, and found associations between outlet density and harmful alcohol consumption consistent with other studies, the authors noted that there was a lack of evidence to support an association between proximity and consumption, and that no studies had found such an association. Based on this evidence, I am not persuaded that proximity would be a factor of itself that would be likely to increase consumption or alcohol related harm. Mitigating the social impacts 97I am satisfied for the reasons above that the increase in the number of liquor outlets is likely to result in an increase in consumption of alcohol at risky levels and an increase in alcohol-related harm in the locality. The evidence supports the possibility that price may also be a factor. It is not necessary in my view, in the context of evidence of significant current issues relating to alcohol related harm in the community, to quantify precisely the number of individuals likely to be affected either directly or indirectly to be satisfied that there is a real chance of an adverse social impact. 98Whether that real chance of adverse social impact warrants refusal of the application depends on whether that adverse social impact can be mitigated. One approach is to consider whether appropriate conditions can be imposed to address the significant factors that give rise to the adverse social impacts. Closing the BWS 99The applicant submits that if there is a concern about the increase in density from one to two outlets on the site, the applicant offers and would accept a condition of consent requiring that the existing BWS store be closed before the occupation of the new development and remain closed while the new development is operative. The applicant submits that BWS has a range of discounted liquor, so that if it closed there would simply be a switch to the new outlet. 100The Council submits that in order to be sure that closure of the BWS would lead to a beneficial result, there would need to be information about the volume of sales from the BWS and Dan Murphy's, otherwise closure would only be a token gesture. There is a concern with people purchasing alcohol from a bulk outlet and then going to a hotel, and the real problem with the site is the multiplicity of venues including the tavern. 101Dr Ziller's evidence was that closing the BWS would not necessarily change the density of liquor outlets. She noted that there have been some studies in the US which have attempted to address floor area, however it is an under explored area and for the most part studies have counted the number of outlets. Dr Ziller was unable to identify literature that identified floor space being a relevant factor in density. 102While I accept that the literature is not conclusive, the consistency of the evidence that increase in number of outlets is a factor in increasing consumption and harm would support the applicant's proposed condition requiring closure of the BWS, resulting in no net increase in the number of outlets on the site and thus no increase in density. Such a condition would be authorised by s 80A(1)(a) and (c) of the Act and would, in my view, in the form of proposed condition 61, be an appropriate response to mitigate the adverse impact arising from density of liquor outlets. Restricting sale of 4 litre casks 103The economic experts agreed that the cheapest form in which alcohol can be purchased is as 4 litre casks of wine, or cartons of beer. Mr Dimasi's evidence was that cask wine is generally available at $2 per litre, and Mr Hack agreed. The option of not selling 4-5 litre casks was identified in the Urbis social impact assessment provided with the development application (exhibit 1, tab 7, p23). The applicant has agreed to a provision in the Plan of Management for the premises specifying that the maximum size of cask wine to be stocked is 2 litres. I accept that to the extent that price is a factor in the likelihood of increased consumption and harm, such a condition would assist in mitigating the adverse impact. It would be preferable if such a condition were included in the conditions of consent. Other mitigation responses 104In his statement of evidence Mr Lette proposed a number of mitigation measures (exhibit D, section 4.4). Section 4.4 outlines proposed strategies by reference to "Woolworth's and Dan Murphy's tested management procedures". Those procedures include policies, staff training and supervision directed to ensuring liquor is not purchased by or passed on to minors; refusal of service to the drunk and disorderly, keeping an incident register; and expansion of existing site security, CCTV coverage of the entry and adjacent car parking area. The strategies include assisting community education programs, and a financial contribution to community services assisting disadvantaged residents in East Nowra. The strategies include the statement that "the applicant has undertaken to not sell cask wine in greater than 2 litre casks". 105The parties have provided proposed draft conditions of consent that include condition 59: Mitigation Strategies. Condition 59 requires that all mitigation strategies "as identified in the approved Plan of Management, Section 4.4 (Mitigation Measures) of the Statement of Evidence prepared by James Lette, dated 7 February 2012 and the letter from the Applicant dated 11 July 2012", be implemented and maintained for the life of the development. 106Proposed condition 21 requires preparation of a plan of management which includes a whole of site security master plan, to be approved by the Council. The matters listed at (a) - (f) of condition 21 relate primarily to physical security at the premises, and do not include the management matters identified by Mr Lette. 107I accept that the management procedures outlined in section 4.4 of exhibit D would be appropriate mitigation measures. However, the inclusion of specific measures, against which performance can be evaluated, should be specified as requirements for the plan of management required under condition 21. The letter dated 11 July 2012 is not in evidence before me. The inclusion of a reference to that letter in the condition suggests that it proposes additional mitigation measures beyond those proposed by Mr Lette. It is preferable in the interests of certainty and public awareness for there to be a formal Plan of Management with specific and enforceable commitments, publicly available. Condition 21 should be amended to specify the management measures to be included in the plan of management. 108Proposed condition 59(b) prohibits letterbox distribution of advertising material for the development within an area bounded by Kardella Avenue, Douglas Street, the Princes Highway, and Mackay Street. That area takes in CD1180714, and extends further north of Kalandar Street towards the Nowra CBD. This condition goes some way to meeting the concern expressed by community groups that the proposed development will target lower income earners in those areas. 109The parties are in dispute as to the wording of condition 59(a) relating to signage. Condition 59(a) as proposed by the Council reads: Signs visible from the Princes Highway and/or Kalandar Street must be limited to the name of the outlet and the company's logo only and must not include claims relating to price, discounting or quantity of alcohol sold at the premises, such as the company's motto "Lowest Liquor Price Guarantee". 110The applicant's version of condition 59(a) reads: Signs visible from the Princes Highway and/or Kalandar Street must be limited to the name of the outlet, the company's logo and company motto "Lowest Liquor Price Guarantee" only and must not otherwise include claims relating to price, discounting or quantity of alcohol sold at the premises. 111The issue of signage was not directly addressed in the evidence or submissions, however a condition restricting the content of signage visible from Kalandar Street and the Princes Highway would be consistent with the approach adopted to direct letterbox advertising, and minimise the risk that the Dan Murphy's may be seen as targeting particular sectors of the community. A condition in the form proposed by Council would be an appropriate mitigatory measure. Conclusion on social impacts 112I am satisfied that the imposition of conditions requiring closure of the BWS, restricting sale of cask wine, specifying management procedures, and restricting advertising, would, on the evidence before me, mitigate the likely adverse social impacts of the proposed development in relation to alcohol related harm to an appropriate extent, and that as a consequence the likely social impacts in the locality would not be a basis for refusal of the development application. Economic impacts 113Mr Dimasi's evidence was that the proposed development would have a number of economic benefits, in particular increased convenience and amenity for the regional population as well as visitors to the Nowra region; increase in local employment; and a boost to economic vitality in the East Nowra locality. Dan Murphy's would employ 30 people, and Mr Dimasi was of the opinion that the impacts on existing outlets would be minor with only three jobs lost. Mr Hack's evidence was that that would only be possible if consumption increases substantially. While I accept that the opening of a large liquor outlet in an accessible location may have economic impacts on existing outlets, the evidence before me does not indicate that any adverse economic impacts would be such as to warrant refusal of the application. Traffic 114The NSW Police raised concerns as to traffic issues at the intersection of Princes Highway and Kalandar Street, and the submission by the Acting Superintendent of the Shoalhaven LAC (exhibit 1, tab 4) noted the significant crash history relating to the entry of the site and that intersection, and concern that the proposed development would significantly intensify traffic at the access point to the site. Traffic management was also an issue of concern for the objectors. The Council's position is that while there is an existing problem, the roadworks and traffic arrangements now proposed by the applicant are adequate. 115The parties have agreed on a deferred commencement condition requiring the submission of detailed engineering design plans for works in the road reserve. The condition specifies the specific matters to be addressed, and provides specifications for prohibiting right hand turns from the site to Kalandar Street, construction of a median island in Kalandar Street, widening of Kalandar Street, provision of a right turn bay into the site from Kalandar Street, upgrading of access to the site to improve efficiency of movements into and out of the site and pedestrian safety; works to the intersection of the Princes Highway and Kalandar Street; and works addressing pedestrian access across Kalandar Street including a pedestrian barrier and refuge. 116In light of the Council's agreement that the proposed roadworks and traffic arrangements are adequate, and the detailed provisions of the deferred commencement condition, I am satisfied that traffic issues would not be a basis for refusal of the application. Planning 117The expert planners agreed that if the Court determines that the proposed development will have an unacceptable adverse social impact based on the social planning evidence, then the proposed development would not be consistent with the aims and objectives of the LEP. Alternatively, if the Court determines that the proposed development will have an acceptable social impact it would therefore be consistent with the aims and objectives of the LEP. 118The relevant aims and objectives of the LEP are outlined at [10]-[11] above. Clause 9(3) of the LEP requires that those aims and objectives and the objectives of the zone in which the development is proposed be taken into account. Having regard to those aims and objectives in light of the conclusions above on social impacts, I agree with the planning experts that application of the planning controls to the proposed development would not warrant refusal of the application. Conclusion 119I am satisfied that it is appropriate to grant development consent for the proposed development, subject to amendment of the proposed conditions to reflect my findings. 120Directions will be made in consultation with the parties for the provision of revised conditions, following which orders will be made in chambers. Linda Pearson Commissioner of the Court 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: 10 October 2012