A Public Interest Assessment

Applicant: Candrin Pty Ltd

Application: Application for Restricted Tavern Liquor Licence

Premises: Matilda Bay Restaurant

CULLEN MACLEOD Lawyers Level 2, 95 Stirling Highway NEDLANDS WA 6009 Telephone: (08) 9389 3999 Facsimile: (08) 9389 1511 Reference: SN:200479

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TABLE OF CONTENTS

About the Application and the Public Interest requirement ..... 1

1 The Application 1

2 The Public Interest 1

2.1 The legislative requirements 1 2.2 Addressing the Public Interest 2 2.3 The Locality 3

About the Restaurant ............................................................. 4

3 General Details 4

3.1 Overview and history 4 3.2 Location and immediate surrounds 5

4 Existing manner of trade 6

4.1 Current services and facilities 6 4.2 Staff and staff training 10 4.3 Responsible service of alcohol, harm minimisation and security measures 11

About the Applicant and the Application .............................. 12

5 The Applicant 12

6 The Application 12

6.1 Reasons for the Application 12 6.2 Proposed Manner of Trade 13

Public Interest Investigations ................................................ 15

7 The Locality 15

7.1 Key features and factors 15 7.2 Demographic profile 16

8 Existing risk factors 18

8.1 At risk groups 18 8.2 Social health data 19 8.3 Local issues 20 8.4 Sensitive institutions 20

9 Existing Licensed Premises 20

9.1 Existing Licensed Premises 20

10 Customer Surveys 21

10.1 Surveys undertaken 21 10.2 Face to face survey 22 10.3 Online survey 22

Legal Framework, Submissions and Conclusion ..................... 25

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11 Legal framework 25

11.1 Overarching principles 25 11.2 Object 5(1)(c) 25

12 Submissions 25

12.1 Consumer requirement and development of the liquor industry 25 12.2 Potential harm and ill-health 26 12.3 Potential amenity impacts 27 12.4 Potential offence, disturbance, etc 27

13 Conclusion 27

General ................................................................................ 29

14 Definitions, source data and copyright 29

14.1 Definitions 29 14.2 Source data 29 14.3 Copyright 29

Annexures ............................................................................ 32

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About the Application and the Public Interest requirement

1 The Application (a) The Applicant has made an application to the Licensing Authority for the grant of

a restricted tavern liquor licence for Matilda Bay Restaurant (Restaurant), one of Perth’s most iconic and popular restaurants.

(b) The Restaurant has provided hospitality services and facilities to the general public since 1968 under restaurant liquor licence number 6060006304. However, this licence restricts the manner in which the Applicant can serve and supply liquor at the premises and does not enable consumer demands to be met.

(c) Essentially the Application is to convert the Restaurant’s existing restaurant licence to a category of licence that will enable the Applicant to improve and expand the services and facilities it offers. However, there is no provision under the WA liquor licensing legislation that enables conversion or reclassification of a restaurant licence to a tavern licence. Accordingly an application for the grant of a new licence is required. If the Application is granted the Applicant will surrender its existing restaurant licence.

(d) Under section 38(2) of the Liquor Control Act 1988 (Act) where an application is made for the grant of new liquor licence the Applicant must satisfy the Licensing Authority that the grant of the Application is “in the public interest” (the Public Interest).

(e) This document, together with the Applicant’s other supporting material and evidence lodged by the Applicant in support of the Application, addresses the Public Interest requirement.

2 The Public Interest 2.1 The legislative requirements

(a) The Director of Liquor Licensing’s policy guide on the Public Interest states that “the public interest test is based on the principle that licensed premises must operate within the interests of the local community”.1

(b) The Public Interest is not defined in the Act. In the WA Supreme Court of Appeal decision of Woolworths v Director of Liquor Licensing (Bicton Decision), the Court found that in assessing whether an application is in the Public Interest, the Licensing Authority is bound to take into account the factual matters relevant to the objects of the Act.2

(c) The primary and secondary objects of the Act are as follows:

(i) Primary objects:

1 https://www.dlgsc.wa.gov.au/department/publications/publication/public-interest-assessment-policy 2 Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227 at per Buss JA at 49

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(A) to regulate the sale, supply and consumption of liquor;

(B) to minimise harm or ill-health caused to people, or any group of people, due to the use of liquor; and

(C) to cater to 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.

(ii) Secondary objects:

(A) to facilitate the use and development of licensed facilities, including their use and development for the performance of live original music, reflecting the diversity of the requirements of consumers in the State;

(B) to provide adequate controls over, and over the persons directly or indirectly involved in, the sale, disposal and consumption of liquor;

(C) to provide a flexible system, with as little formality or technicality as may be practicable, for the administration of [the] Act; and

(D) to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor that are consistent with the interests of the community.

(d) Each primary object is considered equal and in the event of any inconsistency between the primary and secondary objects, the primary objects take precedence.3

(e) There are considerations in section 38(4) which the Licensing Authority may also take into account in determining whether granting an application is in the public interest. These factors are:

(i) the harm or ill-health that might be caused to people, or any group of people, due to the use of liquor;

(ii) the impact on the amenity, quiet or good order of the locality in which the licensed premises, or proposed licensed premises are to be situated;

(iii) 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;

(iv) any effect the granting of the application might have in relation to tourism, or community or cultural matters; and

(v) any other prescribed matter.

2.2 Addressing the Public Interest

(a) To address the Public Interest requirement in accordance with the Act and the Licensing Authority’s Public Interest Assessment policy, the Applicant has

3 Section 5(3)

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considered a range of issues, the findings of which are contained in this document.

(b) In addition to the information contained in this Public Interest Assessment statement, the Applicant relies upon the information and material it has lodged at the Licensing Authority in support of the Application.

2.3 The Locality

(a) In completing the Public Interest assessment for the Application the Applicant has completed enquiries relevant to the “Locality” of the Application, being the geographic area most likely to be impacted by the Application if granted.4

(b) Under the Act, in the context of the Public Interest that applies to this Application, the term “locality” is only referred to in section 38(4)(b) in relation to amenity issues. However the Applicant submits that the identified locality is also relevant to other issues to be considered for the purposes of the Public Interest enquiry. This is supported by the information provided in the Director of Liquor Licensing’s Public Interest Assessment policy as to what issues should be considered in addressing the Public Interest, and has been the approach taken by the Applicant and other applicants in similar, prior applications (such approach being accepted by the Licensing Authority). 5

(c) “Locality” is not a defined term in the Act. The Director of Liquor Licensing provides guidance on how to determine “locality” in the Public Interest Assessment policy, in the “Specification of Locality” section under Attachment 2 and specifies the relevant area that applies.6 The area relevant to the Application is the area within a 2km radius, being the area shown in the map below. An A4 copy of the map is attached as Annexure 1.

(d) Details on the Locality are provided at clause 7 of this document.

4 Director of Liquor Licensing’s Public Interest Assessment policy (https://www.dlgsc.wa.gov.au/department/publications/publication/public-interest-assessment-policy)

5 https://www.dlgsc.wa.gov.au/department/publications/publication/public-interest-assessment-policy 6 https://www.dlgsc.wa.gov.au/department/publications/publication/public-interest-assessment-policy

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About the Restaurant

3 General Details 3.1 Overview and history

(a) As mentioned earlier, the Restaurant is a long established, popular venue that has a reputation for excellence. It is repeatedly ranked highly on food and restaurant rating websites.7

(b) Warwick Lavis, a director of the Applicant, states as follows:

“Matilda Bay Restaurant is one of Perth’s most iconic and popular restaurants. It is a fine dining restaurant uniquely positioned on the edge of Perth’s beautiful Matilda Bay in Crawley, next to the Royal Perth Yacht Club. It is a unique venue that offers uninterrupted panoramic views of Matilda Bay and across the Swan River to Kings Park and the Perth CBD.”

(c) Below are images of the Restaurant and its views.

7 Statement of Warwick Lavis clause 5.6

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(d) The Restaurant first opened in 1968, offering classical French cuisine.8 It was then changed to a Mexican themed restaurant.9 In 1984 the Restaurant was taken over by the Applicant, who carried out extensive renovations and commenced trading it as Matilda Bay Restaurant.10 Several further renovations have been completed over the years by the Applicant to ensure the Restaurant provides the very best in service, style and facilities in an environment that is sophisticated and of a high quality.11

3.2 Location and immediate surrounds

(a) As mentioned earlier, the Restaurant is located in Crawley, on the banks of the Swan River in Matilda Bay, at the end of Matilda Bay Reserve. It is next to the Royal Perth Yacht Club. Below is an image showing the location.

(b) To the west of the Restaurant is the University of Western Australia. The Swan River is to the east.

8 Statement of Warwick Lavis clause 3.2 9 Statement of Warwick Lavis clause 3.2 10 Statement of Warwick Lavis clause 3.2 11 Statement of Warwick Lavis clauses 3.4, 3.5 and 4.3

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(c) There are no residential premises within close proximity to the Restaurant. The closest are located a considerable distance away, on Mounts Bay Road, Crawley or The Avenue in Nedlands.12

4 Existing manner of trade 4.1 Current services and facilities

(a) Currently the Restaurant offers dining (meal) services to the general public and function services.

(b) These are offered in five distinct areas, being:

(i) the main dining room

(ii) the Wine Room;

12 Statement of Warwick Lavis clause 7.2

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(iii) the Bar;

(iv) the Catalina Room; and

(v) the Roe Room.

(c) Details and the capacity of each of these areas is set out below:

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(d) Dining services are provided in the main dining room, the Wine Room and bar area. The Catalina and Roe Rooms are primarily used for functions and events. Further details about each of the areas are provided in Warwick Lavis’ statement lodged in support of the Application.

(e) Currently dining services make up approximately 60% of the Restaurant’s business with round 1,200 to 1,500 customers served each week (41,500 per annum).13 Warwick Lavis comments as follows:14

“Our dining services cater for all ages from 18 years of age to 100 and for all occasions, from first dates to engagements, wedding receptions and business meetings. Customers also come from all places. Many are local residents and many others are interstate or international tourists. I estimate approximately 20 to 30% of our customers are visitors to Perth. The Restaurant is a major attraction for tour groups particularly from Japan and China and also customers from Europe and interstate who travel alone. However, this portion of our trade has been severely impacted by the COVID-19 pandemic.”

(f) Prior to the COVID-19 pandemic the Restaurant was open for lunch and dinner every day of the week.15 However, these trading times have been reduced due to the impact of the pandemic. Currently the Restaurant’s dining services are open for dinner from Monday to Saturday, and lunch and dinner on Saturday, and brunch on Sunday.16 The Applicant intends to resume pre COVID-19 trading times as soon as it is feasible to do so.

(g) Functions are held at various times as required by the customer, within the permitted trading hours under the Restaurant’s licence.

(h) Functions and events make up the other 40% of the Restaurant’s business.17 While a variety of functions and events are hosted, weddings and corporate events are the most popular due to the Restaurant’s stunning location. For example, in March and April 2019 44 weddings were hosted at the venue, and in November and December 2019 74 corporate events were hosted.18

(i) In addition to being renown for its magnificent location, the Restaurant is highly regarded for its food. The Applicant prides itself on offering world class, unique and mouth watering dishes at the Restaurant. The Restaurant’s website proclaims as follows:,

“Dining with us at Matilda Bay Restaurant is not your usual Perth restaurant experience.

Plenty of venues offer good food, they say they have great service, they might even have convenient parking. But there’s no other Perth venue offering the unique combination of experiences as we do at Matilda Bay

13 Statement of Warwick Lavis clause 5.2 14 Statement of Warwick Lavis clause 5.3 15 Statement of Warwick Lavis clause 5.8 16 Statement of Warwick Lavis clause 5.8 17 Statement of Warwick Lavis clause 6.1 18 Statement of Warwick Lavis clause 6.2

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Restaurant. There’s water edge dining, the glistening lights of Perth reflecting across the bay and yachts dotted across the bay. But Matilda Bay is more than just this: our is the real reason your experience will be memorable, where you’ll want to do it again.

When you dine at Matilda Bay we’ll give you food memories that excite you. They’re food experiences from dishes people rave about, the ones you have again when you go back (even though part of you wants to try others). We understand it’s our role to give you something you can’t create a home, where you feel food anticipation as you wait for your meal, and you see food envy in your guests as they watch the meal arrive …”

(j) As well as using local, fresh produce, the Restaurant specialises in dry aged meats where a “unique process makes the explosion of taste nothing other than pure food heaven.”19

(k) Below are some images of dishes that have been served at the Restaurant.

(l) Entertainment is provided at the Restaurant only for private events and functions, as required by the customer.20 It can range from bands, DJ’s and

19 Statement of Warwick Lavis clause 5.4 20 Statement of Warwick Lavis clause 7.1

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general entertainers depending on the event and the customer’s requirements.21

(m) Liquor is currently sold and supplied at the Restaurant in accordance with the existing restaurant licence. That is, for consumption on the licensed premises and when customers are seated at a table. The Restaurant offers an extensive, high quality wine and beverage list. Many of the wines are exclusive to the Applicant as they are produced by the Applicant’s related company.

(n) From time to time the Applicant has sought, and been granted, occasional liquor licences to enable it to supply liquor at functions and events in a manner that is not permitted under the existing restaurant licence.

4.2 Staff and staff training

(a) Currently the Restaurant employs around 35 staff for the Restaurant as set out below.22

Area Dining Services Function / Event Services

Full time Part time

Casual Full time Part time Casual

Front of house 4 1 2 8

Service / wait staff

2 6

Kitchen 7 3

Other 2

(b) All staff receive a comprehensive an induction when they commence work at the Restaurant and receive ongoing training.23 A copy of the Restaurant’s Staff Induction manual is attached to Warwick Lavis’ statement.

(c) Any staff person who serves and supplies liquor at the Restaurant is required to have the relevant qualification, in accordance with the requirements under the Act.24 Additional training is provided by the Applicant as noted by Warwick Lavis:25

“All staff currently employed at the Restaurant are highly training in observing, protecting, preventing and dealing with any incidents.”

21 Statement of Warwick Lavis clause 7.1 22 Statement of Warwick Lavis clause 8.1 23 Statement of Warwick Lavis clause 8.2 24 Statement of Warwick Lavis clauses 8.2 and 8.3 25 Statement of Warwick Lavis clause 10.1

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4.3 Responsible service of alcohol, harm minimisation and security measures

(a) Harm minimisation documents in compliance with the Act are in place at the Restaurant and are strictly complied with. Any person who is undersirable or is already intoxicated is refused entry into the Restaurant.26

(b) Details as to patron behaviour; how levels of intoxication are monitored at the Restaurant and other relevant measures are set out in the Applicant’s Management Plan and Warwick Lavis’ statement.

(c) CCTV is located in strategic locations around the Restaurant with images kept for 30 days.27 Staff monitor the car park for poor behaviour at the close of trade.28

(d) There is an automated taxi call service at the Restaurant and where the Applicant is aware a customer has driven to the Restaurant and the customer is showing signs of intoxication the Applicant will arrange for alternative transport home.29

26 Statement of Warwick Lavis clause 10.7 27 Statement of Warwick Lavis clause 10.8. 28 Statement of Warwick Lavis clause 10.6 29 Statement of Warwick Lavis clause 10.5

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About the Applicant and the Application

5 The Applicant (a) The Applicant is a privately owned company. It is an experienced operator of

licensed premises, having owned and operated the Restaurant for almost four decades.

(b) Two of the directors of the Applicant, Warwick Lavis and Michael Sassella, are highly skilled and experienced in the operation and management of licensed premises. Both have significant experience in the hospitality industry. AS well as the Restaurant they have both owned, operated or been involved with a variety of liquor and hospitality venues.30 Warwick Lavis is also currently a partner of Pepperilly Estate Wines, a boutique winery located in Dardanup, Western Australia.31

(c) The Applicant has a longstanding and demonstrated track record of operating the Restaurant in a responsible manner and is committed to continuing this position. This is largely attributable to well established and effective practices, policies and procedures that are in place to ensure the premises is properly managed and controlled at all times and to ensure the consistent and continued delivery of high quality services and facilities at the Restaurant.

6 The Application 6.1 Reasons for the Application

(a) The Applicant has made the Application as the current restaurant liquor licence under which it currently operates restricts how liquor can be sold and supplied to customers which restricts the business of the Restaurant.

(b) The grant of the Application will enable the Applicant to expand and improve the liquor services it offers at the Restaurant. In particular it wants to:

(i) Sell and supply liquor to customers at the Restaurant without the need for customers to have a meal; and

(ii) Sell and supply liquor to customers at the Restaurant when they are not seated at a table.

(c) The above will enable the Applicant to serve liquor at functions and events in a cocktail and stand-up style; and enable customers to order and enjoy pre-dinner alcoholic drinks either at the bar, while standing up, or to come to the Restaurant for an alcoholic drink only. These activities are not permitted under the Restaurant’s existing liquor licence.

(d) When customers want a cocktail or stand up event at the Restaurant the Applicant is required to apply for an occasional licence. Currently, as a general

30 Statement of Warwick Lavis clause 1.4; LLD5 form for Michael Sassella 31 Statement of Warwick Lavis clause 1.4

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principle, the Licensing Authority will only grant a maximum of 24 occasional licences within a 12 month period.32 This restricts the Applicant’s business as it limits the number of these types of events the Applicant can host. Yet, it is the type of event the Applicant also receives the most enquiries for. As noted by Warwick Lavis:33

“Nowadays customers want indoor venues with a relaxed atmosphere in a natural setting. The most popular style of event we get enquiries for are for informal style events with food stations where people can stand up and move around … We are currently limited to the number of these types of events we can host and have to apply for and obtain an occasional liquor licence for each one. This causes problems as we are unable to confirm a booking until an occasional licence is obtained. Many customers want certainty and are unwilling to wait until an occasional licence is secured and take their business elsewhere. Customers are also left dissatisfied and upset, especially if they had their heart set on the venue. For instance, we often get couples who had their first date at the Restaurant, or who met at a function at the Restaurant, wanting to hold their wedding reception at the venue, but do not want a formal sit-down dinner.”

(e) Having to apply for an occasional licence also has a cost. This cost has to either be borne by the Applicant or passed onto the customer.

6.2 Proposed Manner of Trade

(a) If the Application is granted the only change to the current operation of the Restaurant will be the manner in which liquor can be sold and supplied at the premises, which will be expanded and improved. Overall, however, the current style of the Restaurant and the trading areas within the venue will be unchanged. Dining and function services and facilities will remain the key focus of the Restaurant.

(b) The two major changes in relation to the liquor services at the Restaurant if the Application is granted are outlined at clause 6.1(b) above.

(c) Details of the proposed bar services to be offered are provided by Warwick Lavis:34

“We would also like to offer general public bar services, in a discreet manner, at the bar area of the Restaurant. This will enable people to come to the Restaurant for a drink only. The location and atmosphere of the Restaurant makes it an appealing place for customers to sit and relax and enjoy the moment. We will offer a more limited menu in these areas which will reduce the requirement of having to keep open and operate full kitchen services.

Due to the nature of the Restaurant, our customer base and our product pricing the Restaurant will not become a “local drinking hangout”. While we want to offer bar services we still want to maintain a high level of sophistication and quality, with the main focus of the Restaurant remaining as a fine dining venue.

32 Director of Liquor Licensing Occasional Liquor Licence Policy (as at 14.01.2021 and last amended on 03.08.2020) 33 Statement of Warwick Lavis clause 9.2 34 Statement of Warwick Lavis clauses 9.3 and 9.4

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The Restaurant will not be attractive for people seeking to binge drink or “load up”. The bar area is not a large area and only comprises around 2% of the Restaurant’s total floor area. Also, only high quality premium liquor will be available, and our prices reflect this. We do not sell or supply cheap liquor … a glass of wine starts at $14; bottled beers start from $8 and cocktails start at $18. Bottles of champagne/sparkling wine range from $85 to $390 a bottle.”

(d) The existing management policies and place at the Restaurant will remain in place. Staff are already well trained in the responsible service of alcohol and will be required to be particularly vigilant in monitoring patron behaviour if the Application is granted. Warwick Lavis comments as follows:35

“I do not anticipate any change if the Application is granted. We will take extra care to ensure staff are particularly vigilant in monitoring the alcohol consumption of customers who consume liquor without a meal. Any customer who shows signs of intoxication will be dealt with appropriately – no different to how we manage it now. That is, staff are instructed to observe the patrons they are serving and volumes of consumption, to look for signs of intoxication and to refer any identified issues to the duty manager. The duty manager will talk to the customer and refuse further service if appropriate. Water is (and will be) available free of charge at all times to customers.”

(e) The Restaurant is a high quality, expensive venue that attracts a more discerning clientele. This in itself increases the safety and security of the Restaurant and acts as a deterrent to adverse issues.

35 Statement of Warwick Lavis clause

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Public Interest Investigations

7 The Locality 7.1 Key features and factors

(a) The geographic area contained within the Locality is shown on the map at clause 2.3 and Annexure 1. It includes all of the suburb of Crawley, the majority of the suburb of Nedlands and a very small portion of the suburbs of Dalkeith and Perth36.

(b) Nedlands and Crawley are both long established “western suburbs” of Perth, that border the Swan River and are within close proximity to the Perth CBD.

(c) A large portion of the Locality is taken up by the Swan River to the east and south. To the north is Kings Park and to the west are the western suburbs between the Perth CBD and the ocean.

(d) Stirling Highway, a major arterial road, cuts through the northern segment of the Locality. There is significant commercial development along both sides of Stirling Highway.37

(e) A key feature of the Locality is Matilda Bay reserve, the southern end of which the Restaurant is located. The Reserve stretches the length of Matilda Bay. It features grassy parkland that lead down to the water’s edge and offers views across the river to Kings Park, Perth City and southern suburbs. It is a popular public recreational area given its riverside location, ease of access to protected waters and large number of shady trees. Images of the reserve are below.

Source: Parks and Wildlife Service (parks.dpaw.wa.gov.au/park/matilda-bay-reserve)

36 Statistics Report clause 2 37 www.reiwa.com.au/suburb/nedlands

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Source: Parks and Wildlife Service (parks.dpaw.wa.gov.au/park/matilda-bay-reserve)

(f) There are two hospitality venues located on Matilda Bay Reserve, being the Restaurant and Bayside Kitchen. Bayside Kitchen is a casual café that offers dine-in and takeaway food and beverage services. It is owned and operated by a related company of the Applicant.

(g) Also located in the Locality is University of WA, the oldest university in WA. The campus grounds cover an extensive area, bounded by Stirling Highway/Mounts Bay Road, Fairway and Hackett Drive.

7.2 Demographic profile

(a) For the purposes of the Application and the demographic information analysed for the Public Interest, the Locality is taken to be the suburbs of Nedlands and Crawley, given these two suburbs substantially comprise the area within 2km of the Restaurant and therefore provide the “best fit” representation.

(b) At the 2016 Census the population for the suburbs of Nedlands and Crawley was 14,289 people.38 Almost two thirds of this population (10,194 people) reside in Nedlands.

(c) The 2016 Census Quickstat data for Crawley and Nedlands is provided in the Statistics Report. Below are the Quickstat summaries for each suburb, together with the summary for Greater Perth for comparative purposes.

38 Statistics Report clause 4

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(d) It is evident from the data that compared to Greater Perth the population of Nedlands is relatively affluent and older. Crawley’s population is younger with lower incomes compared to Greater Perth. This is most likely due to a large proportion of Crawley’s population being comprised of students who study at the

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University of WA and who reside at one of the five University’s residential colleges, all of which are located in Crawley.

8 Existing risk factors 8.1 At risk groups

(a) Certain categories of persons have been identified under the Drug and Alcohol Interagency Framework for Western Australia as being “at risk” in terms of liquor related harm and ill-health.39

(b) A review of the demographic information relevant to the “at risk” groups for the Locality with comparison to Greater Perth reveals the following:40

(i) Children and young people:

Overall the proportion of children aged 0-14 in the Locality is less than Greater Perth.

There is a significantly higher proportion of young people aged between 15 to 24 years of age residing in Crawley (47.4%) compared to Greater Perth rates (13.1%) reflecting the student population living in the area.

(ii) Indigenous Persons:

The proportion of Indigenous persons in Nedlands (0.2%) is significantly less than Greater Perth proportions (1.6%) with the proportion in Crawley (1.7%) being consistent with Greater Perth levels.

(iii) People from Regional, Rural or Remote Communities:

The Locality is not a regional, rural or remote community.

(iv) Families:

The number of families in the Locality with children (32.2%) is significantly less than Greater Perth (46.3) as are the number of one parent family households (5.55% for the Locality and 14.5% for Greater Perth).

(v) Migrant Groups from Non-English Speaking Countries:

The proportion of Australian born people in the Locality (48.7%) is lower than Greater Perth proportions (57.4%). However, this is largely due to Crawley where the proportion is 35.6% compared to 61.8% in Nedlands. The top 3 countries of birth for residents of Crawley are Australia (35.5%); China (15.8%) and Singapore (7.1%).

(vi) Mining Communities or Communities with a High Number of Itinerant Workers:

39 Director of Liquor Licensing “Public Interest Assessment Policy” 40 Statistics Report section 8

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The Locality is not a mining community.

(vii) Communities that Experience High Tourist Numbers:

The Locality is not a tourist destination.

(c) Income levels vary in the Locality with residents of Nedlands (which as mentioned earlier contains 2/3 of the Locality’s population) recording both personal and family median incomes higher than Greater Perth Levels.41 In contrast, levels in Crawley were less. Again this is likely a reflection of the student population.

(d) The Index of Relative Socio-Economic Advantage and Disadvantage decile ranking for both Crawley and Nedlands within Australia is 8 and the Index of Relative Socio-Economic Disadvantage decile ranking within Western Australia is 10. This indicates the Locality is relatively affluent.

(e) Relevantly the number of homes that are owned outright in Nedlands is 1.5 times that of Greater Perth rates (42.1% for the Locality compared to 28.1% for Greater Perth).42

(f) It is evident that the only potential “at risk” group is the student population for the University of WA. However, the Restaurant does not attract this demographic, due to the style of the Restaurant and the price of the food and beverages offered (refer the comments at clause 6.2(c)). Students are more likely to go to the UWA Guild Tavern or the Varsity Bar.

8.2 Social health data

(a) There is no publicly available crime and health data specifically relevant to the Locality other than the suburb specific crime data.43 All other available data is on an aggregated basis.

(b) Currently publicly available alcohol related health data is extremely limited with previous published data by the WA Health Department, such as the Alcohol and Other Drug Indicators Report for the relevant health region and alcohol related hospitalisation data, no longer available.

(c) A summary of the available crime data is provided below (full details are provided in the Statistics Report):44

(i) The Locality has a significantly lower crime per capita for most offences, and in aggregate, than WA.

(ii) Total crime offence rates in Crawley and Nedlands have been trending downwards since 2017/2018.

(d) In relation to crime data, it must be noted the WA Police do not provide any data for the purposes of liquor licence applications. Therefore the only data available to the Applicant to review are the crime statistics and offence data published on

41 Statistics Report section 8 42 Statistics Report section 8 43 Statistics Report 44 Statistics Report section 1 and 5

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the WA Police website. 45 This data does not contain records of proven crimes or any detail as to the extent the crimes are liquor related.

(e) Notwithstanding this, it is evident that while the data indicates there is an existing level of crime in the Locality, this is certainly not alarming or serious and overall, the offence rates have been declining.

8.3 Local issues

(a) The Applicant has managed the Restaurant soundly over the last 37 years with minimal issues occurring.46 The Licensing Authority’s records show that the Applicant has not been convicted of any offences or been issued with any infringements. 47 This position will not change if the Application is granted.

(b) Further the Applicant is not aware of any local issues. It is well familiar with the area through its ownership of the Restaurant, and related involvement with the nearby Bayside Kitchen. Warwick Lavis reports as follows:

“I am not aware of any liquor related concerns or issues in the local area. Nor have we received any complaints from any statutory authority or person about the operation of the Restaurant or received any fines or infringements from any authority (including the Licensing Authority). Given the nature of the Restaurant, its location and its customers, it is generally very quiet, low-key and operates in harmony with its environment. It simply is not a high risk venue. Because of this no special security measures have been required.”

8.4 Sensitive institutions

(a) The Applicant has identified the liquor related “sensitive institutions” in the Locality (such as schools, child care centres, churches, etc as identified by the Licensing Authority).

(b) The only “sensitive premises” within 200m of the Restaurant is the University of Western Australia.

9 Existing Licensed Premises 9.1 Existing Licensed Premises

(a) Currently there are six licensed premises in the Locality that operate under a hotel, tavern or small bar liquor licence. These are:

(i) Steve’s Fine Wine and Food;

(ii) Varsity Bar;

(iii) The University Club;

(iv) Itsara;

(v) Hampden Hotel (which trades as “The Resident”); and

45 https://www.police.wa.gov.au/Crime/CrimeStatistics#/ 46 Statement of Warwick Lavis clause 10.2 47 Statement of Warwick Lavis clause 10.2

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(vi) Captain Stirling Hotel.

(b) In addition the UWA Guild Tavern provides bar services and facilities. However, it operates under a special facility licence rather than a tavern licence.

(c) The location of each of the above is shown on the Locality map below.

(d) Details of each of the premises are provided in Warwick Lavis’ statement (refer clause 11.2).

(e) It is evident that none of the existing licences offer the same level of services and facilities as what the Restaurant currently does, or is proposing, and are different in nature and style. In particular, none have the magnificent views or location that the Restaurant offers. Nor are any of the venues focussed on fine dining, other than the University Club of WA. However, the University Club’s Restaurant and Lounge Bar and the Café’ and Bar are licensed as a Member’s only facilities which means it is not open to the general public.48

10 Customer Surveys 10.1 Surveys undertaken

(a) The Applicant carried out two surveys to obtain views of the public on the Application. Given the location and appeal of the Restaurant customers come from everywhere, not just the local area. Therefore, it was considered that the most appropriate feedback would be from past and present customers.

(b) Two surveys were carried out by the Applicant being:

(i) A “face to face” survey of customers attending the Restaurant.

48 Universityclub.uwa.edu.au/about-us/club-dining/

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(ii) An online survey of people on the Restaurant’s mailing list. This list contains names and addresses of people who have come to the Restaurant previously, either for dinner or for a function.

10.2 Face to face survey

(a) This survey was completed over the period of 18 to 20 November 2020.

(b) Customers attending the Restaurant were invited to participate in the survey. If they agreed, they were asked questions using a pre-prepared survey.

(c) In total 53 complete surveys were obtained. All survey respondents were aged 18 years of age or older.

(d) Details of the survey are provided in the Face to Face Survey Report. Key findings included:

(i) The main reasons why customers had chosen to go the Restaurant were:

(A) the view/location (55%);

(B) it was a favourite place, or they like to go there (25%); and

(C) the food selection / menu (25%).

(ii) 74% of customers stated they would like to be able to have an alcoholic drink at the Restaurant without being required to sit down at a table.

(iii) 87% of customers thought it was a good idea that the Restaurant be able to offer cocktail and stand-up style events and functions as well as sit-down functions.

(iv) 87% of customers supported the proposal to change the liquor licence for the Restaurant from a restaurant licence to a restricted tavern licence with the main themes being “good idea”, “long overdue” and “needed”.

10.3 Online survey

(a) This survey was completed over the period from 20 November 2020 until 8 January 2021.

(b) An online survey service, Survey Monkey, was utilised to complete the survey.

(c) Once the survey was developed the Applicant sent an email to people on its mailing list inviting them to participate. A link to the survey was provided with the invitation.

(d) The first question in the survey was the age of the participant. Anyone who responded as being younger than 18 years of age was automatically disqualified.

(e) In total 1,551 people completed the survey.

(f) Details of the survey are provided in the Online Survey Report. Key findings included:

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(i) 20% of respondents lived or worked in the Locality, with 93% of the remainder living in Perth.

(ii) For those respondents who had last gone to the Restaurant for lunch or dinner, the main reasons why they had chosen to go the Restaurant were:

(A) the location / view (84%);

(B) the food selection / menu (71%); and

(C) the quality of service (50%).

(iii) Many respondents go to the Restaurant for special occasions, such as to celebrate wedding anniversaries, birthdays or because the Restaurant holds a special meaning for them, such as their wedding reception was there.

(iv) When asked what they disliked about the Restaurant most people responded “nothing”. Of those that provided other comments, key themes related to price (“expensive”); issues with parking and the fact that they could not sit at the bar or have a drink without a restaurant booking/meal.

(v) 84% or respondents agreed that customers should be able to have an alcoholic drink at the Restaurant without having to order a meal.

(vi) 72% of respondents agreed that customers should be able have an alcoholic drink at the Restaurant without having to sit at a table.

(vii) 76% of respondents agreed that the Restaurant should be able to offer cocktail style functions and events.

(viii) 76% of respondents agreed that the Restaurant should be able to offer bar services in the bar area.

(ix) 82% of respondents agreed that customers of the Restaurant should be able to consumer liquor at the Restaurant without having to have a meal.

(x) 80% of respondents agreed that customer should be able to consume liquor while standing up or when not sitting at a table.

(xi) 83% of respondents support the Application. Reasons given for the support included:

(A) “Would love to have the option, to either have a meal or just catch up with friends over a drink”.49

(B) “The change suits modern lifestyles!”50

(C) “I’d like to have a drink with a beautiful view without being locked into a meal.”51

49 Respondent #2 50 Respondent #18

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(D) “It is a unique and great location that should be able to be utilised more and on a more casual basis. Somewhere I would like to take interstate and overseas visitors to also.”52

(E) “It would be great to have a relaxed drink with family at sunset and not have the extra expense of a full meal. Also I could have work and colleagues drinks meeting between 4pm and 6pm on my way home”.53

(F) “We’d love to book a cocktail function for events. It would be pleasant to stop by for a drink and enjoy the ambience without having to have a meal.”54

(G) “It would be lovely to gather with friends who live nearby with a gorgeous setting, one of the best in Perth, and you don’t have to be a member of a yacht club.”55

(H) “Formalised restaurant seating at tables in today’s eating out have changed. People look for a place with a view to relax and chill. The venue offers both. An opportunity for table seating or a standing bar alternative. A perfect location to make this venue more people friendly and fun. What people are looking for in today’s market.”56

(xii) Only 37 respondents opposed the Application. The main reasons for this included a fear that the Restaurant would lose its current ambience and that there were be issues with parking.

(xiii) Overall respondents did not have any concerns with the proposal to change the Restaurant’s current licence from a restaurant licence to a restricted tavern licence and supported the change. Those respondents who expressed concerns that echoed the reasons given by those that opposed the Application (i.e. concerns about adverse impact on the ambience of the Restaurant and issues with parking).

51 Respondent #84 52 Respondent #115 53 Respondent #316 54 Respondent #317 55 Respondent #545 56 Respondent #707

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Legal Framework, Submissions and Conclusion

11 Legal framework 11.1 Overarching principles

(a) The relevant legal principles that apply when assessing whether the grant of an application is in the Public Interest are set out at the beginning of this document. In short, the relevant factual matters to be taken into account by the Licensing Authority are those set out in the primary and secondary objects of the Act.57 The Licensing may (but is not bound to) also take into account the factual matters set out in section 38(4) of the Act.

(b) The Licensing Authority can only determine whether the public interest criterion has been satisfied by first finding the relevant primary facts (on the balance of probabilities), faithfully and rationally according to the evidence before it. Evidence in the nature of conclusions, opinions and evaluations will only be probative where the underlying reasons have been exposed and evaluated objectively.

(c) Where tension arises between competing objects of the Act, the Licensing Authority is required to “weigh and balance” the competing interests.58

(d) Each application must be dealt with on its merits, after the Licensing Authority has carried out such inquiry as it thinks fit (section 33(2)).

11.2 Object 5(1)(c)

(a) In considering the “requirements of consumers” under object 5(1)(c), regard must also be given to secondary object 5(2)(a)(being the facilitation and use of licensed premises to reflect the diversity of consumer requirements).59

12 Submissions 12.1 Consumer requirement and development of the liquor industry

(a) The Restaurant is an iconic, popular venue that has successfully traded for many years. However, the restaurant licence at the Premises is very restrictive which inhibits the capacity of the business to properly meet modern consumer demands and expectations. Currently the Applicant is not permitted to provide customers with a bar service and stand up drinking which means that functions and events are regularly turned away and customers are unable to enjoy pre-dinner drinks other than at their table or come to the Restaurant other than for a full meal.

(b) Nowadays customers want the opportunity and ability to enjoy an alcoholic drink without the requirement to have a full meal or sit at a table. Especially at a venue

57 Woolworths v Director of Liquor Licensing [2013] WASCA 227 58 Executive Director of Health v Lily Creek International Pty Ltd & Ors [2000] WASCA 258 59 Woolworths v Director of Liquor Licensing [2013] WASCA 227 per Buss J at 52

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such as the Restaurant which offers unparalelled views of the Swan River and superior services and facilities.

(c) The Application is sought so the Applicant can expand its function services and to be able to provide customers liquor without a meal at the premises, which includes the ability to stand up while drinking and to drink at the bar. This is overwhelming supported by past and present customers of the Restaurant.

(d) There is no other premises in the Locality of the Application that offers the services and facilities proposed by the Applicant in the setting the Restaurant offers. Therefore the grant of the Application will increase the variety and diversity of licensed premises available to the public in the area.

(e) The Licensing Authority has demonstrated, through the granting of similar proposals, that it is appropriate for venues such as the Restaurant to operate under a restricted tavern licence. Some examples include:

(i) Oydssea Beach Café, City Beach – restricted tavern licence 63821325519;

(ii) Miss Chows’s, South Perth – restricted tavern licence 638212767019; and

(iii) Rambla on Swan, South Perth – restricted tavern licence 638209037616.

12.2 Potential harm and ill-health

(a) While it has been identified that the Locality suffers a level of liquor related harm or ill-health, there is no evidence that this level is significantly greater than WA baseline levels. Nor is there any evidence of any particular demographic, person or “at risk group” in the Locality suffering or experiencing alcohol related problems. There is a large presence of university students in the area, given the University of WA is situated in the Locality. However, this demographic does not comprise the customer base of the Restaurant and the nature, style and pricing of the Restaurant is unlikely to appeal to students (except for formal events or special occasions).

(b) In relation to crime, overall offence rates have been declining. For the crime that is recorded there is no evidence as to the extent to which this relates to alcohol.

(c) Nor is there any evidence that the manner in which the Applicant intends to trade the Restaurant if the Application is granted would exacerbate existing issues. The manner of trade of the Restaurant pursuant to the Application will not change significantly from the current manner of trade. The proposed bar services will only be offered in a discrete and limited basis and is unlikely to attract adverse behaviours or criminal behaviour. The business of Restaurant will continue to operate as a sophisticated, high quality venue. The focus on fine dining and food will remain, as will the current high standards. No changes to the premises in the layout or configuration of the premises will be made.

(d) The Applicant has a long-standing and demonstrated track record of the responsible service of liquor at the Restaurant. It is committed to continuing this position.

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(e) Existing harm minimisation policies and procedures at the Restaurant, which are proven and effective, will continue to apply and staff will continue to be trained thoroughly on matters of harm minimisation, the responsible service of liquor and other areas of compliance. In particular the Applicant will ensure extra care will be taken to monitor patron behaviour if the Application is granted. These measures will help to minimise any risk of liquor related harms occurring from the grant of the Application. In addition, the nature and style of the Restaurant, the quality of its customers and services and the price of liquor are in themselves, harm minimisation measures. When regard is given to these factors the risk of any liquor related harm and ill-health occurring as a result of the Applicant being granted will be small.

12.3 Potential amenity impacts

(a) The Restaurant is in existence and has been operating for 37 years, providing dining and function services throughout this period without incident.

(b) The grant of the Application is unlikely to change this position especially given the Restaurant is located in an isolated area, with no residential neighbours.

12.4 Potential offence, disturbance, etc.

(a) Similar to amenity impacts, given: the Restaurant is in existence and has been trading for a significant amount of time without any major issues or incidents; the location and nature of the Restaurant; and the manner of trade at the Restaurant will remain substantially the same as currently, the grant of the Application is unlikely to cause any offence, annoyance, disturbance etc. within its immediate vicinity.

(b) The Applicant has demonstrated that it effectively and soundly manages the Restaurant and this will continue. Appropriate mechanisms are in place to ensure the risk of adverse issues occurring are minimised.

13 Conclusion (a) The grant of the Application will enable the Restaurant business to offer services

and facilities that are more in line with modern consumer demands. The Applicant will be able to improve and expand its already popular function services and to expand its on-site liquor services so customers can come to the Restaurant and enjoy an alcoholic drink without being required to have a full meal or sit at a table.

(b) The evidence and material presented by the Applicant demonstrates that there is a consumer requirement for the grant of the Application and that the risk of any adverse issues resulting from the grant of the Application are small.

(c) In conclusion, the Applicant submits that:

(i) the grant of the Application is in the Public Interest;

(ii) the grant of the Application is consistent with the objects of the Act;

(iii) the specific circumstances of the Application and material facts as established by the Applicant support the grant of the Application; and

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(iv) the positive benefits of granting the Application outweigh any potential, negative impacts.

(d) Given the above, the Application ought to be granted.

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General

14 Definitions, source data and copyright 14.1 Definitions

In this document, the following terms have the following meanings:

ABS means Australian Bureau of Statistics.

Act means the Liquor Control Act 1988.

Applicant means Candrin Pty Ltd.

Application means the application by the Applicant to the Licensing Authority for the grant of a restricted tavern licence.

Face to Face Survey Report means the Report for the face to face survey completed for the Application.

Licensing Authority has the meaning given to that term in the Act.

Locality has the meaning given to that term in clause 2.3 of this document

Online Face Survey Report means the Survey Monkey report for the online survey completed for the Application.

Public Interest has the meaning given to that term in clause 1(d).

Restaurant means the Matilda Bay Restaurant

Statistics Report means the Statistics Report dated January 2021

14.2 Source data

(a) The Applicant commissioned Cullen Macleod to prepare this document on its behalf.

(b) Cullen Macleod obtained or commissioned the various reports for the purposes of the Public Interest assessment.

(c) This document is substantially a summary and compilation of the reports, statements of evidence, interview material, statistical information and other evidence and research.

(d) Cullen Macleod does not take any responsibility for the accuracy of the information drawn from the experts’ reports.

14.3 Copyright

© Candrin Pty Ltd and Cullen Macleod.

This publication is copyright. Other than for the bona fide use by parties and the Licensing Authority in the Application, no part of this document may be reproduced,

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stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Cullen Macleod, Level 2, 95 Stirling Highway, Nedlands.

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Annexures

1. Locality Map

PIA

ANNEXURE 1

PIA