Carleton Investments Pty Ltd v J & B Development Investments Pty Ltd - [2009] SASC 282

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
CARLETON INVESTMENTS PTY LTD v J & B DEVELOPMENT INVESTMENTS PTY LTD
[2009] SASC 282
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Layton and The Honourable Justice Kelly)
9 September 2009
LIQUOR LAW - LICENSING - LICENSING TRIBUNALS GENERALLY - REVIEWS, APPEALS AND CASES STATED
LIQUOR LAW - LICENSING - APPLICATION FOR NEW LICENCE - HEARING OF APPLICATION - MATTERS FOR CONSIDERATION - WHETHER REQUIRED FOR NEEDS OF PUBLIC
Appeal against a decision of a judge of the Licensing Court granting a certificate of approval under s 59 of the Liquor Licensing Act 1997 - the s 59 certificate approved the respondent's plans to gain a grant of a Retail Liquor Merchant's Licence and open a liquor outlet within a shopping complex - the appellant opposed the application in the Licensing Court - the appellant is the holder of a hotel licence relating to a tavern within close proximity to the respondent's proposed site - whether licensing judge overlooked or ignored aspects of unchallenged evidence - whether there had been material and substantial changes in the relevant locality since previous application - whether the evidence of the need witnesses could be relied upon - whether the relevant population had increased - whether existing licensed premises were adequate - whether the shopping centre which was to house the proposed liquor outlet had undergone substantial change.
Held: appeal allowed - Licensing Court judgment set aside - respondent's application dismissed.
Liquor Licensing Act 1997 s 59, s 58(2), s 56, s 57, referred to.
Woolies Liquor Stores Pty Ltd v Carleton Investments Pty Ltd (1998) 73 SASR 6; Harding Hotels Pty Ltd v Jatadd Pty Ltd (2001) 81 SASR 222; Temple v Liquor Licensing Commissioner & Ors (1987) 138 LSJS 376; Nuriootpa Vine Inn & Anor v Liquor Licensing Commissioner [1999] SASC 512; Woolies Liquor Stores v Seaford Rise Tavern (2000) 76 SASR 290; South Eastern Hotel Pty Ltd v Woolies Liquor Stores (1998) 71 SASR 402, applied.

CARLETON INVESTMENTS PTY LTD v J & B DEVELOPMENT INVESTMENTS PTY LTD
[2009] SASC 282
Full Court: Doyle CJ, Layton and Kelly JJ

DOYLE CJ:I agree with the reasons of Kelly J. I would allow the appeal, set aside the order of the Licensing Court granting a certificate to the applicant, and substitute for that order an order dismissing the application.
LAYTON J: I respectfully agree with the orders proposed by Kelly J and her reasons.
KELLY J:
Introduction
This is an appeal against a decision of the Licensing Court to grant a Certificate of Approval under the provisions of s 59 of the Liquor Licensing Act 1997 (“the Act”) in respect of proposed premises at the Woodcroft Market Plaza Shopping Centre.
The respondent, J & B Development Investments Pty Ltd, was the applicant. The appellant, Carleton Investments Pty Ltd, opposed the application in the Licensing Court.
The effect of the order made by the Licensing Court Judge on 15 January 2009 is that, subject to the premises being constructed in accordance with the plans submitted in support of the application for the certificate under s 59 of the Act, a Retail Liquor Merchant’s Licence will be granted to the respondent in respect of those premises.
The Woodcroft Market Plaza Shopping Centre (“the shopping centre”) is located in Woodcroft, a residential suburb approximately 18 kilometres southwest of the city of Adelaide.
The shopping centre is owned by a company associated with the respondent. Currently, in that shopping centre there is one major supermarket and nine specialty shops. They include a chicken take-away, a bakery with attached coffee facilities, a hairdresser, a chemist’s shop, a computer sales and service shop, a newsagency, a pizza shop and a florist. There is construction work currently being undertaken by way of a separate extension to the centre in which a childcare and a medical centre will be located.
The appellant is the holder of a hotel licence relating to a hotel named the Woodcroft Tavern which is located about 1.8 kilometres southwest, by road, from the shopping centre. The Woodcroft Tavern itself is located in another shopping centre which is known as the Woodcroft Town Centre. That centre is situated on the north-western corner of the Panalatinga and Bains Road junction. The appellant was one of three objectors to the respondent’s application in the Licensing Court.
The second objector is the licensee of the Crown Inn, which is located approximately 3.5 kilometres northwest, by road, from the shopping centre. The third objector is the licensee of the Emu Hotel, which is approximately 5.2 kilometres southwest, by road, from the shopping centre.
Apart from the businesses carried on by the three objectors, there are three other licensed premises close to the shopping centre. One of those is a BWS liquor store situated in the Woodcroft Town Centre, which is approximately 1.8 kilometres southwest, by road, from the shopping centre. The second is a Liquorland shop located approximately 3.2 kilometres due west, by road, from the shopping centre. The third is another BWS liquor store located approximately 5.2 kilometres northeast, by road, from the shopping centre. That outlet is situated in a shopping centre known as Southgate Plaza.
The current application was filed in the Licensing Court in December 2006. Eight years earlier, in January 1998, the Licensing Court refused an application by another applicant in respect of other premises at the same shopping centre for the grant of a Retail Liquor Merchant’s Licence. The refusal of the Licensing Court was upheld on appeal to this Court in Woolies Liquor Stores Pty Ltd v Carleton Investments Pty Ltd (1998) 73 SASR 6 (“the Woolies Liquor Stores case”). In that case the application was refused on the basis that the applicant did not meet the requirement imposed by s 58(2) of the Act which provides:
An applicant for a retail liquor merchant's licence must satisfy the licensing authority that the licensed premises already existing in the locality in which the premises or proposed premises to which the application relates are, or are proposed to be, situated, do not adequately cater for the public demand for liquor for consumption off licensed premises and the licence is necessary to satisfy that demand.
In this case, the applicant had applied for a Certificate of Approval under s 59 of the Act. That section provides that a Certificate of Approval can be granted as an alternative to a licence in circumstances in which a licence would have been granted but for the fact that the applicant’s premises were not yet completed. Therefore an applicant for a Certificate of Approval under s 59 must satisfy the Licensing Court of the same matters as an applicant for a licence. In the case of an application for a Retail Liquor Merchant’s Licence, one of the requirements which must be satisfied is that set out in s 58(2). This was the matter in issue on this appeal.
Judgment of the Licensing Court Judge
The Judge commenced by referring to the unsuccessful application, noting that it had been made twelve years earlier. The Judge then referred to the principle established in a number of decisions of this Court that the Licensing Court should be slow to depart from a previous decision if a second application is made for a licence in respect of premises which are the same as those for which an earlier application has been refused. Observing that the Full Court in the Woolies Liquor Stores case placed reliance on the fact that at the time of the previous application the shopping centre was not capable of meeting all of the regular shopping needs of those residing nearby, the Judge went on to say that one of the issues he was required to address was whether the operations of the shopping centre have altered those shopping patterns.
Having found that the respondent satisfied the requirements imposed by ss 56 and 57 of the Act, the Judge then turned to consider the test in s 58(2) of the Act. In reaching that conclusion, the Judge was influenced by the increase in turnover at the Woolworths supermarket from $13.6 million in 1998 to $22.76 million by June of 2006. He also referred to the scale, design and layout of the shopping centre, together with the tenancy mix which he noted attracted customers beyond the range which might normally be associated with neighbourhood shopping centres. He found that the locality for the purposes of the determination he had to make was the area bounded by Bains Road to the south, Reynell Road to the north, Panalatinga Road to the west and Pine Road to the east. None of the other licensed premises referred to, including the three objectors, fall within the locality as defined by the Judge. However, the Judge did refer to those other licensed premises and correctly identified the real issue for consideration, namely whether those other liquor outlets, in particular the two licensed premises at the Woodcroft Town Centre, can be said to adequately cater for the public demand for liquor consumption off licensed premises. With respect to those premises, the Judge concluded that the range of liquor available in those premises was adequate, if in some cases, barely adequate.
The Judge took into account the opinion of a town planner, Mr Paul Brunning, as to the increasing population in the area in the period between 1996 and 2001. He also referred to a 2005 aerial photograph of the locality, which showed a considerable expansion of residential development within an area bounded by Panalatinga Road to the west, Sir James Hardy Way to the east and Bains Road to the south of the proposed premises. He took into account the opinion of Mr Brunning that despite that being a relatively mobile population, they were disadvantaged in terms of the cost of travel and because of the poor level of public transport in the area.
The Judge then referred to the six lay witnesses before accepting that those witnesses were generally representative of those living in the locality. The Judge placed significant emphasis on the unsatisfactory standard of car parking at the Woodcroft Town Centre, referring in particular to the evidence of Mr Steinert, a witness called on behalf of the respondent and upon his own observations at the view. He accepted the opinion of Mr Brunning that significant volumes of traffic on the Main South Road, Pimpala Road, Panalatinga Road, Kenihans Road and Chandlers Hill Road, presented a significant physical and psychological barrier in terms of gaining access from residential areas to shopping centres within the wider catchment area. Ultimately, he concluded that the other licensed premises referred to, including the Woodcroft Town Centre, played little part in the lives of the people in the relevant locality.
The Judge found that since the original application, the shopping centre has developed as a neighbourhood centre, which meets the day-to-day needs of those in the locality, i.e. for all of those other than those who reside in the southernmost quadrant, adjacent to the Woodcroft Town Centre.
His Honour concluded that the respondent did meet the requirements in s 58(2) of the Act and granted the application for the Certificate of Approval.
Issues on Appeal
On appeal it was argued by the appellant that the Judge either overlooked or ignored several aspects of unchallenged evidence, which, if properly considered by the Judge, would have and should have led to the conclusion that the test under s 58(2) of the Act had not been met by the respondent.
The appellant identified in particular the evidence in relation to population growth in the relevant locality in the period between 1998 and 2005, the fact that during that same period several other licensed premises relevant to the application had made improvements to their facilities and service, and to the evidence that the population in the locality remained a very mobile one.
The appellant contended that when the whole of the evidence is properly analysed it is plain that there is nothing to show that there has been a sufficiently material change in the relevant circumstances, such as to justify the Judge’s conclusion that the test under s 58(2) of the Act had been satisfied.
The respondent, on the other hand, pointed to six main factors which it contended justified a conclusion that there has been material and substantial changes in the relevant locality since the determination of the previous application by Woolies Liquor Stores in 1998. The respondent identified a number of changes to the shopping centre itself and the various tenancies within the centre, the advent of retirement homes and the importance of the people living in them, the fact that the need witnesses (so called) do not patronise the Woodcroft Town Centre, the traffic conditions along Panalatinga Road, car parking issues at Woodcroft Town Centre, and changes in lifestyle such as the cost of fuel and the like.
The Legal Principles
The starting point for consideration of the issues which arise on this appeal is s 58(2) of the Act. In the Woolies Liquor Stores case Doyle CJ discussed the nature of the test in s 58(2). He said at p 10:
The language used by Parliament suggests that, as before, the focus of s 58(2) is upon the demand for liquor and the availability of liquor, whereas the focus of s 58(1) is on the needs generally of the public in the locality, although of course those needs are to be considered in relation to the facilities that might be provided by a hotel licence. That broader focus in relation to a hotel licence is apt to enable more emphasis to be given to the wishes and preferences of the public in relation to matters of style of premises, the availability of choice and of a variety of outlets, matters of preference, matters of convenience and so on. The language used in relation to a retail liquor merchant's licence focuses attention more closely on the demand for and availability of liquor. Matters of the type just adverted to by me are not wholly irrelevant in that context. However, they are to be given less weight because the Court is concerned with the demand for liquor and its availability, and not with the wider concept of the needs of the public.
The other feature of s 58(2) is that the court must consider whether the existing premises "do not adequately cater for the public demand for liquor". Those words suggest to me that the court is required to consider the accessibility of the existing premises to the public in the locality (matters such as distance, forms of transport available, time taken to get to existing premises and so on); the availability at the existing premises of the range of liquor demanded by the public, the standard of the existing premises and of the service provided there, and the existing shopping patterns and habits of the public to the extent that they bear on the accessibility of the existing premises. There may well be other matters, but these seem to me to be the matters most relevant in considering whether existing premises adequately cater for the public demand for liquor.
However, in deciding whether the existing premises adequately cater for the public demand, the court has to apply some standard. None is indicated by the legislation. I consider that Parliament must have had in mind that the court would consider contemporary standards, using the knowledge and experience that the Licensing Court gains through its work as a specialist court dealing with the liquor industry. By this I mean that the Licensing Court is to apply contemporary standards in deciding what distances one could reasonably expect customers to travel to obtain liquor, in deciding how much time one could reasonably expect them to spend getting to a liquor outlet, in deciding the amount of inconvenience that one could expect them to accept if, as will often be the case, a liquor outlet is not available at the place where they prefer to do most of their shopping, and in deciding the range of liquor and level of service that it is reasonable for them to expect. The court is required to determine not just what the public in the relevant locality want. If, whatever the public may want, there are existing premises that are capable of catering for the public demand for liquor, the court must decide, by reference to contemporary standards, whether, if the public are to satisfy their demand at those premises, it can be said that their demand is adequately catered for.
Those comments have informed subsequent decisions in which the test under s 58(2) of the Act has been discussed and applied.
As I noted earlier, the Woolies Liquor Stores case involved an application by a different applicant in respect of premises at the same shopping centre as the current applicant. It is well established that the Licensing Court should only grant a second application where there has been a material change in the relevant circumstances. As Doyle CJ noted in Harding Hotels Pty Ltd v Jatadd Pty Ltd (2001) 81 SASR 222 at 227, in the ordinary course of things one would expect the Court to grant a second application only if there is good reason to think that there has been a change in the public demand for liquor in the locality, or in the ability of the licensed premises in the locality to cater for that demand.
Nevertheless, the application by the respondent in this case made its application some considerable time after the earlier application. Whether it was twelve years as the Judge concluded or whether it was only nine years is of no particular importance as on any view of the matter a substantial period of time had elapsed since the last application. The applicant was therefore entitled to have its application treated on its merits notwithstanding the earlier refusal at the same site.
Discussion
The factors which the Judge relied upon to justify the grant of the Certificate of Approval under s 59 of the Act were, in the main, distance, traffic and parking difficulties in accessing the Woodcroft Town Centre, and use of the Market Plaza for daily needs of residents within a distance of 1.25 kilometres of the shopping centre. The Judge concluded that for those residents, existing licensed premises including the Woodcroft Town Centre played little part in their lives. These factors together with the expressed desire of the so called need witnesses for one stop shopping combined to compel the conclusion that the respondent had satisfied the test under s 58(2) of the Act.
It is necessary to examine the evidence to ascertain whether the Judge’s conclusion was supported by the evidence.
The cogency of the evidence of the need witnesses
The Judge devoted some considerable portion of the reasons to the evidence given by six local witnesses. It is notable that all but one of the need witnesses reside in the northern half of the locality defined by the Judge. Two of them in fact resided just outside the locality, four were within a very short distance if not walking distance, from the proposed premises at the shopping centre. These witnesses were found by the Judge to be representative of those members of the public who seek to satisfy their demand for packaged liquor in the locality. Not surprisingly they all expressed a desire for a liquor outlet in close proximity if not walking distance from their respective residences. Notably each of the witnesses who gave evidence appear to have transport and drive regularly to other shopping outlets within and just outside the locality for one purpose or another. That is consistent with the evidence of the planner named Mr Brunning whose evidence the Judge accepted. Mr Brunning’s evidence confirmed that the population in the relevant locality remained a highly mobile one with residents having a high level of either ownership or access to private motor vehicles.

Public demand, as King CJ said in Temple v Liquor Licensing Commissioner and Ors (1987) 138 LSJS 376 at 380, is not to be confused with individual desires.
In Nuriootpa Vine Inn & Anor v Liquor Licensing Commissioner [1999] SASC 512 Perry J said at [15]:
I have said before while sitting as a member of the Full Court, and I repeat, that there is a tendency in the Liquor Licensing jurisdiction to place too much emphasis on so-called need witnesses and lay evidence of demand. That type of evidence is relevant, but it tends to be very subjective and coloured by the natural leaning of many people to support any new facility however marginal the real case as to need might be. More important than evidence of that kind are the objective features of the locality and its demographics, coupled with the Licensing Court's own expertise as to what the reasonable requirements of contemporary demand may be, considered in the light of a very stringent test for the grant of a retail liquor licence which is still a feature of the legislation.
More recently, Doyle CJ in Harding Hotels v Jatadd (2001) 81 SASR 222 at [21] said with reference to evidence of needs:
This Court has previously referred to the desirability of the Licensing Court having regard to objective features of the locality, the makeup of the population and the Court's own expertise, when assessing the demand for liquor, and not paying undue regard to evidence of demand from witnesses. This is because of the way in which the witnesses can be hand-picked, and because of the subjective nature of their evidence: see, for example, Liquorland (Australia) Pty Ltd v Hurley's Arkaba Hotel Pty Ltd (2001) 80 SASR 59 at 74 [107]. On the other hand, the calling of witnesses from the locality is a permissible means of proving that the public demand for liquor is not adequately catered for by existing premises in the locality. Perhaps the main point to emphasise is the need to pay careful attention to the objective features of the locality, and to the makeup of the local population, when considering whether the need witnesses are representative of a significant part of the public in the locality.
In my view the net effect of the evidence of the needs witnesses can be put no higher than that they would find it more convenient to be able to one stop shop at the Woodcroft Shopping Centre for their liquor than drive to the other licensed establishments in the area.
The increase in population
The Judge accepted evidence led through the witness Mr Brunning as to the population increase in the locality in the period between 1998 and 2005. That evidence however established that the main area of population growth during the relevant period was in fact in the southern half of the locality much closer to the Woodcroft Town Centre than the subject shopping centre.
An aerial photograph tendered in the proceedings, taken in 2005 depicting the key areas of new development since 1999, clearly illustrated that fact. There is no indication that the Judge attached much weight to the relevance of that evidence.
It is significant in this context that not one of the need witnesses resided in the area of main population growth in the locality.
It is difficult to see in light of that evidence how the population growth in the locality could have assisted the applicant.
The adequacy of the existing licensed premises
The Judge correctly identified that one of the real issues for consideration was the question of whether the existing liquor outlets, in particular the Woodcroft Town Centre, could be said to adequately cater for the public demand for liquor for consumption off licensed premises. His Honour concluded that the other establishments “have an adequate, if in some cases, barely adequate range” of liquor. Previously His Honour had identified the Liquorland outlet at Morphett Vale, the Crown Inn Hotel at Old Reynella, the Emu Hotel at Morphett Vale, the BWS outlet at Happy Valley, and the two outlets at the Woodcroft Town Centre. Although he did not refer to it there was a further outlet, the Village Cellars, which was a separate freestanding liquor store situated adjacent to the shopping centre at Morphett Vale.
In earlier decisions of this Court in different contexts, the Licensing Court accepted that the Village Cellars was a substantial outlet with a good range of liquor (see Doyle CJ in Woolies Liquors Stores v Seaford Rise Tavern (2000) 76 SASR 290 at 292). In the previous application at the subject premises this Court upheld the Licensing Court Judge’s finding that the Booze Brothers outlet (now the BWS store) at Woodcroft was a pleasant retail outlet with a wide range of liquor which would with nothing more undoubtedly and more than adequately meet the demand of the population in the locality.
There was evidence before the Judge that a number of the existing licensed premises had made improvements to their facilities and services including the Emu Hotel and Village Cellars, the Crown Inn and the Woodcroft Tavern. There was evidence of significant renovations and extensions proposed to the Woodcroft Tavern in particular a proposal to quadruple the size of the bottle shop with proposed improvement to the choice and quality of lines. The net effect of the renovations to the Woodcroft Tavern would be an increase in lines, a larger range and choice and easier access for consumers. Mrs Pearn from the Emu Hotel and the Village Cellars referred to improvements at the Village Cellars and the drive in at the hotel including adding browsing lanes and opening up the existing shop to make it more spacious and adding more lines. Mr Morrison from the Crown Inn gave evidence of some improvements at the Crown Inn in choice and quality of lines with resulting increase in wine variety.
The Judge referred without comment to the evidence given by Mr Harby as to the renovations and extensions at the Woodcroft Tavern. He mentioned the evidence of Mrs Pearn and Mr Morrison from the Emu Hotel and the Crown Inn respectively, only to comment that he found their evidence uncontroversial, and in view of the distance of their premises from the locality, not particularly helpful.
In light of the findings of the Licensing Court in the earlier applications with regard to the Woodcroft Tavern and the BWS bottle shop together with the evidence given in the current application as to the improvements at those outlets the Judge’s qualification and his finding that the existing outlets had in some cases, a barely adequate range of liquor is somewhat puzzling. If that comment was intended to apply to the facilities and services at the Woodcroft Tavern and the BWS Woodcroft outlet, it is not supported by the evidence as to the facilities and services provided by those outlets.
In my view the criticism that the Judge did not attach sufficient weight to the evidence of improvements at the Woodcroft Tavern and the other licensed premises appears to be justified.
Changes to the Shopping Centre
The Judge found that since the date of the last application the respondent’s shopping centre has developed as a neighbourhood centre which meets the day to day needs of those in the locality, that is for all of those other than those who reside in the southernmost half of the locality defined by the Judge.
He accepted the opinion of Mr Brunning, the planner, that given the significant volumes of traffic on the main arterial roads including South Road, Pimpala Road, Panalatinga Road, Kenihans Road and Chandlers Hill Road presented significant physical and psychological barriers to residents within the locality in terms of gaining access to shopping areas within the wider catchment area. He considered it inequitable and a hardship that those residents within a distance of 1.25 kilometres of the shopping centre should have to travel to what he described as remote destinations for the purchase of liquor particularly if not combined with a supermarket shopping trip.
As Doyle CJ pointed out in the Woolies Liquor Stores case, it would obviously be convenient for residents in the vicinity of the respondent’s premises if they could obtain liquor at the shopping centre. That was the effect of the evidence of the six lay witnesses called who, as I said earlier, all resided within a very short distance from the respondent’s shopping centre. At the time of the earlier application the shopping centre contained the Woolworths supermarket and a number of specialty shops. At the time of this application the shopping centre contained the same Woolworths supermarket and nine other tenancies. There was evidence before the licensing Judge that extensions were planned to the shopping centre which would include a medical centre and child care centre.
Further, it was said that there was evidence that the Woolworths supermarket was patronised to a much greater extent than at the time of the earlier application. Notwithstanding these developments, there was no dispute that the shopping centres at Happy Valley, the Woodcroft Town Centre and Southgate Plaza all had a much wider range of facilities than the Woodcroft Market Plaza Shopping Centre. Woodcroft Town Centre currently has a range of 50 specialty shops. Moreover there was unchallenged evidence that the Woolworths supermarket store while increasing in turnover earlier had, in the four to five years prior to 2005, levelled off and stabilised. It was obvious even from the evidence of the six lay witnesses who all said they used the shopping centre on a daily basis that some of them still needed to travel to other shopping centres in the locality or nearby for one purpose or another.
In summary, the evidence did not disclose that there had been any substantial changes to the shopping centre which might justify the conclusion that residents other than those in the near vicinity of the shopping centre utilised that centre for all of their regular shopping needs. In concluding that for those residents the necessity of travelling further afield for their liquor was inequitable and a hardship the Judge did not give sufficient weight to the evidence that the Woodcroft Town Centre was 1.8 kilometres away and less than three minutes, by road, from the respondent’s shopping centre. In that respect nothing had changed since the date of the last application in terms of distance.
When properly analysed the evidence before the Judge really established that nothing of any material relevance had changed since the date of the last application. The evidence of population growth for the reasons referred to already could not have assisted the respondent. The case for the respondent distilled down to the desire of some of the residents living in the northern half of the locality defined by the trial Judge for the convenience of one stop shopping and the desire to avoid perceived parking difficulties at the Woodcroft Town Centre. As Doyle CJ said in South Eastern Hotel Pty Ltd v Woolies Liquor Stores (1998) 71 SASR 402 at 411 all of us put up with parking difficulties at times when shopping. Such difficulties are a feature of our society.
Conclusion
In summary the evidence before the Judge established that very little in a relevant sense had changed since the date of the previous application. Doyle CJ in respect of the previous application expressed the view that the case was a fairly clear one. In my view the same comment might be made about the evidence in this case in light of the Judge’s own finding that the existing premises relevant to this application did have an adequate range of liquor.
In these circumstances I do not consider that the respondent did satisfy the test under s 58(2) of the Act. I cannot accept that the respondent has established that the grant of the application was necessary in order to adequately cater for the public demand for liquor for consumption off licensed premises in the relevant locality. In my opinion the Judge erred in granting the Certificate of Approval under s 59 of the Act. I would allow the appeal. I would set aside the judgment of the Licensing Court and dismiss the respondent’s application.