A219980
DECISION OF DIRECTOR OF LIQUOR LICENSING
APPLICANT:
VHT PERTH PTY LTD
PREMISES:
VHT PERTH PTY LTD
PREMISES ADDRESS:
410 - 412 WILLIAM STREET, PERTH
LICENCE NO:
14151
NATURE OF MATTER:
CONDITIONAL GRANT OF A LIQUOR STORE LICENCE
__________________________________________________________________________
This is an application by VHT Perth Pty Ltd ("the applicant") for the conditional grant of a liquor
store licence for premises to be known as VHT Perth Pty Ltd and situated at 410 - 412 William
Street, Perth. The application is made pursuant to sections 47 and 62 of the Liquor Control Act
1988 ("the Act").
Pursuant to section 67 of the Act, the application was required to be advertised on the site of the
premises between 27 September 2011 and 24 October 2011; by way of a notice published in The
West Australian newspaper; by way of a Notice to Residents and Businesses distributed within a
200 metre radius of the premises; and by a General Notice distributed to educational, health care
and local and regional government institutions, as well as community and church groups situated
within the locality.
Notices of intervention and objection were lodged against the application.
Pursuant to sections 13 and 16 of the Act, the application will be determined on the papers.
DOCUMENTS CONSIDERED
The following documents were considered in making this decision:
·
Notice of Application lodged 25 August 2011;
·
Public Interest Assessment (PIA) lodged 25 August 2011;
·
Letters of support lodged 25 August 2011;
·
Petition in support lodged 25 August 2011;
·
The applicant’s Management Plan incorporating the House Management Policy and Code
of Conduct lodged 25 August 2011;
·
Certificate of Local Health Authority – Section 39 dated 10 August 2011;
·
Certificate of Local Planning Authority – Section 40 dated 21 July 2011;
·
Signed advertising declaration lodged 31 October 2011;
·
Notices of objection from:
·
o
Hoang Phi Nguyen
o
Yee Leng Tong
Notices of intervention from:
o
The Executive Director Public Health
o
The Commissioner of Police
DECISION OF DIRECTOR OF LIQUOR LICENSING
PAGE 2
·
Licensing authority correspondence (document exchange letter) dated 10 January 2012;
·
‘Applicant’s response to the interventions’ dated 10 January 2012;
·
‘Applicant’s response to the objections’ dated 10 January 2012; and
·
Further EDPH submissions dated 30 January 2012.
LEGISLATIVE FRAMEWORK
The objects of the Act are set out in section 5. The primary objects are:
·
to regulate the sale, supply and consumption of liquor;
·
to minimise harm or ill-health caused to people, or any group of people, due to the use of
liquor; and
·
to cater for the requirements of consumers for liquor and related services, with regard to the
proper development of the liquor industry, the tourism industry and other hospitality industries
in the State.
Section 33 of the Act provides:
(1)
Subject to this Act, the licensing authority has an absolute discretion to grant or refuse
an application under this Act on any ground, or for any reason, that the licensing
authority considers in the public interest.
(2)
An application —
(a)
may be refused, even if the applicant meets all the requirements of this Act; or
(b)
may be granted, even if a valid ground of objection is made out,
but is required to be dealt with on its merits, after such inquiry as the licensing authority
thinks fit.
Applicants must satisfy the licensing authority that the granting of an application is in the public
interest. In this regard, section 38(4) of the Act provides:
Without limiting subsection (2), the matters the licensing authority may have regard to in
determining whether granting an application is in the public interest include —
(a)
the harm or ill-health that might be caused to people, or any group of people,
due to the use of liquor; and
(b)
the impact on the amenity of the locality in which the licensed premises, or
proposed licensed premises are, or are to be, situated; and
(c)
whether offence, annoyance, disturbance or inconvenience might be caused to
people who reside or work in the vicinity of the licensed premises or proposed
licensed premises; and
(d)
any other prescribed matter.
The reference to “public interest” indicates that both sections 5 and 38 of the Act are relevant
when making a decision.
DECISION OF DIRECTOR OF LIQUOR LICENSING
PAGE 3
DETERMINATION
The applicant proposes to establish a liquor store within its Asian grocery store which, it submits,
will allow its “customers to do both their grocery shopping and purchase any alcohol without
driving to a separate location.”
In its PIA the applicant asserts:
·
“As Asian cuisine is increasing in popularity within Australia we would like to extend our
product range to include Asian alcohol, beer and spirits. Not only are these consumed as
beverages, but they are also utilized as essential ingredients for recipes and cooking. We
have had multiple requests over the past few years to include alcohol in our range. Not
only by local neighbours and regular customers, but also visitors and tourists that frequent
the area.
This part of William Street is also well visited by tourists who stock up on their foods
throughout their stay in Perth, as well as purchasing their souvenirs.”
·
“Our current client base consists of locals, expats and migrants (and their families) from
Asian countries.”
·
“The Asian category products are intended for the local residents and tourists. These
include spirits, liquor and beers that are well known in Asian countries; thus satisfying the
customers longing for nostalgia (a taste of home) or reliving a flavour experienced from a
holiday...The Australian category products are mainly intended for the tourists and local
residents, either for consumption within Australia or as souvenirs to be taken overseas.”
·
“The majority of the restaurants are BYO, having a liquor store within walking distance will
increase the restaurants attractiveness as well as the customer’s satisfaction.”
To support that the grant of the application for a liquor store will be catering for the requirements
of consumers for packaged liquor, the applicant submits a petition and letters of support mainly
from the “surrounding neighbours”. The petition is of no substance in relation to supporting the
abovementioned assertions and is of no probative value; at best they are general statements of
support for the grant of the application for the liquor store licence.
With respect to the letters of support, no weight is assigned to them as per the Liquor
Commission’s assessment in Busswater Pty Ltd [LC 17/2010]:
“...letters of support from business people purporting to speak on behalf of consumers
simply does not go far enough to satisfy the Commission that the general public has a
requirement for liquor and related services in the manner proposed by the applicant
(object 5(1)(c) of the Act). Statements by applicants, without supporting evidence, cannot
be construed as facts.”
DECISION OF DIRECTOR OF LIQUOR LICENSING
PAGE 4
No other evidence of probative value was submitted by the applicant supporting the assertions in
its PIA regarding the requirements of tourists, “locals, expats and migrants” or “customers longing
for nostalgia (a taste of home) or reliving a flavour experienced from a holiday”.
The Commission has consistently and carefully enunciated its position confirming it is not
sufficient for an applicant merely to express opinions and make assertions about the perceived
benefits of an application. The applicant must submit an appropriate level of evidence to satisfy
the licensing authority that there is real and measurable consumer requirement to justify the
granting of a licence. Statements by applicants, without supportive evidence, cannot be
construed as facts (refer: Busswater Pty Ltd [LC 17/2010], Paul Kontorinis and Maria Kontorinis
[LC 23/2010], Shallcross Investments Pty Ltd [LC 26/2010] and Element WA Pty Ltd [LC
32/2010]).
The validity of the objections lodged by Hoang Phi Nguyen and Yee Leng Tong were not
established as required by section 73(10) of the Act.
The grounds of intervention by the EDPH are:
·
“the premise is located in the suburb of Perth and is a short distance from Northbridge;
·
Perth and Northbridge have an established record of high levels of alcohol-related
violence;
·
in the absence of harm minimisation conditions, increasing the availability of packaged
liquor in an environment that already experiences high levels of alcohol-related harm
poses a greater risk of further harm/ill-health occurring;
·
there are harm and ill-health concerns associated with the proposal for the liquor store to
be integrated within the VHT supermarket; and
·
if the licence is granted, licence conditions, that maintain the separation of liquor from
general grocery items, would be an important harm minimisation approach.”
The EDPH has harm or ill-health concerns in relation to the location of the proposed liquor store
being in an environment that already experiences high levels of alcohol-related harm.
The EDPH further submits that research establishes that increasing the availability of alcohol,
including convenience, can lead to an increase in the consumption of liquor which is a relevant
consideration in the context of the alcohol-related harm and problems that presently occur in the
locality of the proposed liquor store.
The Commissioner of Police intervened “...for the purpose of making representations on the
grounds that:
·
If the particular application was granted and conditions not imposed public disorder or
disturbance would be likely to result, or as to any other matter relevant to the public
interest.”
DECISION OF DIRECTOR OF LIQUOR LICENSING
PAGE 5
The Commissioner presented alcohol-related crime statistics in the Northbridge suburb for the
period November 2010 to October 2011 together with police attendances within a 200m radius of
the proposed premises. The Commissioner submits:
“These findings reveal that public harm and public disorder is occurring in the immediate
proximity to the applicant’s proposed premise.”
The applicant’s response to the interventions was to accept the conditions recommended to be
imposed if the application for the liquor store licence was granted. In its PIA, however, the
applicant acknowledges “the most common alcohol related offences” and further submits:
“The site is located within 2km of Royal Perth Hospital and 1km of the Central
Metropolitan Police Station, this benefits the premise as phone calls requesting police
attendance are usually dealt with speedily. Police officers, cars and bikes are also often
patrolling the area both in the day and night.”
While the applicant plans to limit its hours of operation to its current grocery store hours which
can ameliorate the harm or ill-health concerns, the risk of harm does not cease the moment the
sale is concluded and the patron leaves the liquor store.
The evidence submitted with the interventions established that Perth and Northbridge, the locality
of the proposed store, have established high levels of alcohol–related harm, including anti-social
behaviour and violence.
Ultimately, the determination of this application turns on the quality and level of evidence
submitted by the applicant to discharge its obligations under the Act. In this regard, the onus is on
the applicant to demonstrate that, pursuant to sections 33 and 38(2) of the Act, the granting of the
application is in the public interest.
As the application is based on assertions not supported by an appropriate level of evidence, and
given the evidence of alcohol-related harm or ill-health caused to people or any group of people,
including the anti-social behaviour occurring and likely to occur in the locality of the proposed
premises, I am not satisfied that the granting of this application is in the public interest.
Accordingly, the application by VHT Perth Pty Ltd for the grant of a liquor store licence is refused.
Barry A Sargeant
DIRECTOR OF LIQUOR LICENSING
21 February 2012
Government of Western Australia
Department of Racing, Gaming and Liquor
Your Ref:
Our Ref:
Enquiries:
14151
Mary Ioannidis
( (08) 9425 1832
VHT Perth Pty Ltd
412 William Street
PERTH WA 6000
Dear Sir/Madam
CONDITIONAL GRANT OF A LIQUOR STORE LICENCE: VHT PERTH PTY LTD
Please find enclosed decision number A219980.
Parties to this matter dissatisfied with the outcome may seek a review of the Decision under
section 25 of the Act. The application for review must be lodged with the Liquor Commission
within one month after the date upon which the parties receive notice of this Decision.
Should you have any queries regarding this matter please contact me on [08] 9425 1832.
Yours faithfully
Mary Ioannidis
RESEARCH AND PUBLIC INTEREST ASSESSMENT OFFFICER
21 February 2012
cc:
cc:
Licensing Enforcement Division
Executive Director Public Health
cc:
Hoang Phi Nguyen
cc:
Yee Leng Tong
[Enc]
Level 1, 87 Adelaide Terrace, East Perth, Western Australia, 6004
Postal Address: PO Box 6119, East Perth, Western Australia, 6892
Tel: (08) 9425 1888 Facsimile: (08) 9325 1041 Country Callers: 1800 634 541
Email: rgl@rgl.wa.gov.au Web Site: www.rgl.wa.gov.au