On 23 September 2022, the decision of Senior Commissioner Dixon was handed down in the matter of Iris Hotels Casula Property Pty Ltd v Liverpool City Council [2022] NSWLEC 1520. Marsdens Law Group represented Liverpool City Council in the proceedings.
The Appeal had been taken against the Council’s refusal of a development application for demolition of an existing building and the construction of a four-storey building over two levels of basement carparking. The development proposed the use of the ground level for a pub containing a bistro, sports bar, VIP lounge (including gaming) and outdoor dining and the levels above were to be used for hotel facilities and accommodation, containing a total of 72 rooms. The site the subject of the Appeal was located on the Hume Highway in Casula.
The development had attracted significant community interest and the Court heard from residents living near the proposed development together with other community members. The Senior Commissioner summarised the submissions of the objectors as follows: “To a large extent, the oral submissions mirrored the contentions raised by the Council about likely adverse social impacts arising from the proposed pub use and site isolation … These concerns were often repeated in the 300 submissions (including petitions) lodged with the Council during the notification period. That said, it was clear to me that those who spoke held a genuine belief based on lived experience that an approval of the proposed pub use would likely exacerbate alcohol-related harm within their immediate locality. A locality which collectively they described as being “particularly disadvantaged” with high levels of unemployment, domestic violence and alcohol and drug-related problems.”
The two issues for consideration by the Court (after the other contentions raised by the Council had been addressed) were the potential for site isolation of the property to the south, and the adverse social impact if the proposal was approved. The site isolation issue was not considered by the Commissioner to warrant refusal of the application, hence the sole issue for determination in the proceedings was adverse social impact.
The Court was provided with written and oral evidence from social impact experts Dr Judith Stubbs for the Council and Sarah George for the Applicant. At first instance, the Senior Commissioner referenced Section 4.15(1)(b) of the EPA Act, which requires a consideration of “… the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts on the locality” (emphasis added).”
In terms of the ‘social impacts on the locality’ the Senior Commissioner noted that term “locality” is not defined in the EPA Act and identified that the relevant locality will be a matter for the Court’s determination based on the evidence. The Senior Commissioner accepted the position of Dr Stubbs and determined that the locality was “the immediate area within [a] 1km radius of the development site”. The Court also accepted Dr Stubbs’ proposition that the size of the venue together with its location influenced the likely clientele, and determined that the majority of the pub’s clientele would be residents from within a 1km radius of the site and those staying at the hotel.
The Senior Commissioner then considered the socio-economic demographic of the locality “because it is generally accepted in the literature that there is a correlation between social disadvantage and increased vulnerability to alcohol-related harm: WWL Consulting Pty Ltd V Marrickville Council [2011] NSWLEC 1161 at [53] and [89]”. The Senior Commissioner noted that the evidence is that the 1km immediate locality around the site is a highly disadvantaged area.
The Court analysed in detail the SEIFA Disadvantage (Socio-Economic Indexes for Areas (SEIFA) – the Index of Relative Socio-Economic Disadvantage) data for the local area and the effect of introducing a pub into this context. The Senior Commissioner ultimately found: “Having considered all the evidence in respect of the likely social impacts positive and negative, I accept Dr Stubbs’ expert assessment, as summarised above, that the immediate locality has high rates of vulnerability on a range of indicators that predict an increased risk in a range of alcohol-related harms in the event of the approval of this application.” The alcohol related harms included increased consumption of alcohol, alcohol-related violence including domestic violence, neighbourhood drunkenness and other amenity impacts, adverse health and social problems, and pedestrian and vehicle crashes.
The Senior Commissioner further noted in her concluding remarks that “While the proposed development is permissible, and some degree of impact is deemed to be acceptable by society - in this case, the weight of the evidence overwhelmingly supports a refusal of consent.”
The refusal of the development application by the Senior Commissioner was a great outcome for the Council and the community members who had fought hard against the proposal based on the adverse social impacts that would result from an approval.
A link to the case on the Land and Environment website can be found here.
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