Laval Pty Ltd v Hackham Plaza Investments Pty Ltd No. Scciv-03-1230

LAVAL PTY LTD & ORS v
HACKHAM PLAZA INVESTMENTS PTY LTD
[2004] SASC 111
Full Court: Prior, Debelle and Bleby JJ

PRIOR J: I agree with Justice Debelle. The appeal should be allowed, the judgment of the Licensing Court set aside and the application for a retail liquor merchant’s licence dismissed.
DEBELLE J: This is an appeal by leave from a decision of the Judge of the Licensing Court granting a retail liquor merchant’s licence in respect of premises at Hackham. The premises form part of a neighbourhood shopping centre at the corner of Main South Road and Penneys Hill Road, Hackham.
The essential issue before the Licensing Court and on this appeal is whether the applicant for the licence, Hackham Plaza Investments Pty Ltd (“Hackham Plaza”), satisfied the requirements of s 58(2) of the Liquor Licensing Act 1997 which provides:
“(2) 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.”
There were a number of objectors to the application. The Judge held that Hackham Plaza had satisfied the requirements of s 58(2) and granted the licence. From that decision the objectors have appealed to this Court.
The grant of the licence was made after two prior unsuccessful applications. 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: Harding Hotels Pty Ltd v Jatadd Pty Ltd (2001) 81 SASR 222 at 227 where Doyle CJ said:
“The Licensing Court should be slow to depart from a previous recent decision, if a second application is made for a licence in respect of premises after a refusal of an application. 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.”
I would qualify those remarks by saying that, assuming no error in the first decision, the Licensing Court should grant the second application only if there has been a material change in relevant circumstances. It is not enough merely to prove that change has occurred. The changed facts and circumstances will have to be of sufficient weight to justify a different conclusion. See also Nuriootpa Vine Inn Hotel and Motel Pty Ltdv Licensing Court (Perry J, 13 December 1999, [1999] SASC 512, Unreported). [17], affirmed on appeal in Angas Park Cellars v Nuriootpa Vine Inn Hotel Motel Pty Ltd (Full Court, 4 September 2000, [2000] SASC 302, Unreported) [15]. As the Licensing Court is concerned with the public interest and not private interest, an application does not give rise to a lis inter partes so that there is no room for the application of the principles of res judicata or issue estoppel.
Two Previous Applications
There have been two previous applications in respect of these premises, one in 1999 and the other in 2001.
In 1999 there were two competing applications for a retail liquor merchant’s licence in this locality. The applications were heard by Acting Judge Cramond. One application was made by Woolies Liquor Stores Pty Ltd. It was in respect of a proposed store at Hackham which was then nearing completion. It is the same store as is the subject of the present application. The other application was made by A Saturno Nominees Pty Ltd and L Saturno Nominees Pty Ltd. It was in respect of premises in a shopping centre on Collins Parade, Hackham. Acting Judge Cramond dismissed both applications. In his reasons he expressed the view that the application in respect of the Hackham premises was the better site to serve the needs of the locality.
By leave, Woolies Liquor Stores Pty Ltd appealed to the Full Court against the decision of Acting Judge Cramond. The Full Court dismissed the appeal: Woolies Liquor Stores Pty Ltd v Seaford Rise Tavern (2000) 76 SASR 290. The issues on the appeal were concerned with the Acting Judge’s finding that two liquor stores, Super Cellars and Village Cellars, should be regarded as being within the locality and that without anything more than mere inconvenience the members of the public in the locality could satisfy their demands for liquor. One aspect of the latter question concerned the distance which people in the locality had to travel to licensed premises selling liquor for consumption off the premises. It was contended that some had to make a round trip of the order of six kilometres to purchase liquor. The Full Court rejected each of these arguments. I will later examine its reasons in more detail.
The Full Court dismissed the appeal on 11 May 2000. In 2001, Hackham Plaza applied for the grant of a retail liquor merchant’s licence in respect of the same premises. By this time the premises had been constructed and the shopping centre at Hackham had been trading for some time. The application was heard by Judge Kelly. On 30 November 2001 he dismissed the application.
On 10 April 2003, some sixteen months after Judge Kelly had dismissed the application, Hackham Plaza again applied for a retail liquor merchant’s licence in respect of the same premises, albeit slightly redesigned. Five persons lodged objections to the application. They were the proprietors of the Aussie Inn, the Christies Beach Hotel, the Port Noarlunga Hotel, O’Sullivans Beach Liquor Store, and the Emu Hotel at Morphett Vale. The Emu Hotel also operates Vintage Cellars. Judge Kelly granted the application. All five objectors have appealed to this Court.
The Locality and the Licensed Premises
The locality defined by Acting Judge Cramond has been accepted in the subsequent two applications. It is convenient, therefore, to note it at this stage. Roughly described, it is a square which is intersected by the Main South Road. It is bounded on the north by Flaxmill and Wheatsheaf Roads which are on either side of Main South Road. On the west it is bounded by the Southern Expressway and on the south and east by the Hills Face Zone. In addition to the Main South Road, ready and convenient access north and south is provided by two other main roads, both of which are to the east of Main South Road. They are States Road and Panalatinga Road.
I list the licensed premises to which regard was had in all of these applications.
Village Cellars  -       Main South Road, Morphett Vale
Emu Hotel  -       Main South Road, Morphett Vale
Super Cellars  -       Colonnades Shopping Centre, Beach Road
Aussie Inn  -       Main South Road, Hackham
Mick O’Shea’s Irish Pub    -       Main South Road, Hackham
The Emu Hotel and Village Cellars are one set of licensed premises although Village Cellars is physically separate. The Emu Inn has a modest area for selling bottled liquor. Super Cellars is a large retail outlet located in the Colonnades Regional Centre. There are outlets outside the locality which were mentioned but they are distant. The only one which requires mention in this case is Woodcroft Shopping Centre which has a hotel as well as a separate store the subject of a retail liquor merchant’s licence. Mick O’Shea’s Irish Pub is close to the Aussie Inn but does not cater for those seeking to purchase bottled liquor to take away.
The Reasons in 2001
Before examining the reasons for the decision under appeal, it is helpful to examine Judge Kelly’s earlier reasons for decision in 2001. That examination assists in determining whether there has been a material change in circumstances since.
The Judge adopted the same locality as that determined by Acting Judge Cramond. By the time he had to consider the matter, the shopping centre at Hackham West was well established. Hackham Plaza based its case on the same grounds as had been examined by Acting Judge Cramond. As Judge Kelly found, the witnesses called made similar complaints about access to and from existing licensed premises, parking difficulties, and the distances that had to be travelled as had been made in the first application. It was in essence a case grounded on the convenience of one stop shopping. Judge Kelly found that there were no changed circumstances apart from the fact that the opening of the Southern Expressway had reduced the volume of traffic along Main South Road. Judge Kelly found that it had not been established that there was any inadequacy in the supply of liquor in the locality and that the complaints as to traffic, parking and distance travelled did not warrant the grant of a licence. He adopted much of Acting Judge Cramond’s reasoning.
It is important to note several findings made by Judge Kelly. The first was to reject criticism of the Village Cellars Bottle Store. He had inspected that store. He found “they represent a perfectly contemporary bottle shop with a good range of liquor.” He also rejected a complaint that Village Cellars were lacking in room. In doing so, he noticed that Village Cellars is a larger store than that proposed by Hackham Plaza. He also adopted the description of Super Cellars made by Judge Cramond:
“It is a large store with a good range of beers and commercial wines. It also has a quite reasonable range of mid priced and premium wines. It provides a full range of services including regular wine tastings and a free delivery service. It also runs a wine club for its customers.”
By the time of Hackham Plaza’s second application, the standard of service at Super Cellars had fallen a little.
Judge Kelly addressed the issue of the distance that had to be travelled by those who live close to the Hackham West store which involves a round trip of about six kilometres. After noting the decision of this Court in Nepeor Pty Ltd v Liquor Licensing Commission (1987) 46 SASR 205 he found:
“Mr Beazley stresses that many people have low incomes and the cost of petrol is significant. I take account of that. Having said that I also take account of the fact that trips to Village Cellars or to Colonnades are by excellent roads and taking little time without apparent traffic hazards. By contemporary standards I do not see a round trip of perhaps 6 kilometres in this area as being at all unreasonable and certainly not amounting to proof of inadequacy under the Section.”
The Judge also found that there was no particular demand for trading on Sundays.
The Judge concluded by noting a “smallish increase in population” had occurred in Onkaparinga Hills, a suburb to the north and east of the shopping centre which is more affluent than many in that locality. That did not cause him to alter his conclusion.
One final factor should be noted. The Aussie Inn is a hotel located on the eastern side of the Main South Road some 600 metres from the Hackham Plaza Shopping Centre. In 1999 the hotel had a drive through bottle shop but had limited facilities for purchasers to browse and select liquor. At the hearing in 1999 the licensee frankly conceded that his hotel could not satisfy the needs of customers seeking a reasonable selection of wines nor those who wished to browse amongst a selection of wines. That was also the position in November 2001 when Judge Kelly determined the first application by Hackham Plaza. As will be seen, by the time of Hackham Plaza’s second application, that position at the Aussie Inn had changed.
The Third Application
Hackham Plaza grounded the third application at this site, which was its second application, on the same three factors that had been relied on in the first and had been found to be insufficient. Most reliance was placed on the distance from the home of a witness to the nearest liquor outlet. Some witnesses were critical of the parking arrangements at Village Cellars. All witnesses expressed a desire for the convenience of one-stop shopping, although it must be noted that some of the witnesses did their weekly shopping at places other than the Hackham Plaza Shopping Centre.
In holding that the application should be granted, Judge Kelly said that he had had regard to the remarks of the Full Court in Harding Hotels. He concluded that there had been changes since the previous application which, coupled with the evidence of witnesses called to prove their personal needs, justified the grant of the application. The three factors which the Judge found to be most worthy of consideration were distance, car parking, and the voiced desire for one stop shopping. Of those distance was the most commonly voiced factor. Most of the witnesses called came from Hackham and Onkaparinga Hills, the area furthest from existing bottle shops in the locality. Early in his reasons he expressed his conclusion in these terms:
“I think now, and a little more than marginally, that the applicant has “met” the provisions of Section 58 (2) of the Liquor Licensing Act and has done so without recourse to any misleading or otherwise spurious means. I think the witnesses were all honest and representative and there have been some genuine (though in many circumstances very minor) changes of circumstance.”
Thus, there was, he said, a very minor change of circumstances. The applicant had proved his case “a little more than marginally”. These expressions suggest a degree of hesitancy. In fact, when the facts are examined, there is no change which justifies the grant.
Have Changes Occurred?
Before examining the Judge’s reasons, it is convenient to note what, if any, changes have occurred since the first application by Hackham Plaza.
The evidence established that there was very little change in the objective facts and circumstances since the previous application. First, the population of the locality has remained static and, in all probability, had peaked. The Judge found that Onkaparinga Hills is growing and that it had a population of some 2,500 to 3,000. Its population in 2001 (the last census) was 2,695 persons and the evidence was that it was unlikely to increase. That is because all of the land for residential development has been developed. The evidence of Mr Burns established the population had not changed to any significant extent since the application in 2001. There is land further east but that is in the Hills Face Zone where residential development is not a permitted use.
The land to the south is zoned for industrial or commercial purposes and further south again is zoned Rural Living or Rural. There is no scope for residential development in the former zones and only a very limited potential for residential development in the latter zones. The land to the west has already been developed for residential purposes. Thus, there is little scope for a further increase in the population in the area close to the Hackham Plaza Shopping Centre.
The locality is the same as the locality in the previous application and it is served by the same number of licensed outlets. One significant change has, however, occurred in respect of the Aussie Inn.
At the time of the application the Aussie Inn was in the process of improving access to the hotel from the Main South Road as well as redeveloping its area for sales of bottled liquor. Ready and convenient access had been provided from the Main South Road at the time of the application. The redevelopment of the bottle department is quite extensive. The area of the walk-in bottle shop is being substantially increased. It will be more than twice the size of the premises proposed by Hackham Plaza. These works will cost in the order of $480,000. Access to the walk-in bottle department will be gained through a large doorway between it and the drive-in bottle department. It represents improved access. The sales area of the walk-in at the Aussie Inn will be 200 square metres compared with about 100 square metres of the proposed premises. The increase in the size of the bottle shop is being matched by a substantial increase in the range of liquor carried from about 700 lines to approximately 1,500 lines. The walk-in bottle department but not the drive-in bottle department will be air-conditioned. There will be a dedicated parking area for the walk-in bottle department. The new premises are being modelled on the walk-in bottle department at the Bridgeway Hotel, photographs of which were tendered. The photographs depict a pleasant well stocked outlet. In another decision which we have considered at these sittings of the Full Court, the judge was happy to accept the Bridgeway Hotel as one outlet satisfactorily meeting the needs of the locality.
The Judge found that the Aussie Inn is conveniently located to the population of this locality, particularly with its improved access. He did not agree that the improved walk-in bottle department would meet the contemporary needs and demands of witnesses in the locality in a convenient way. He referred to remarks he had made in another decision where he identified a number of factors which, in his view, militated against a walk-in bottle department at an hotel being a convenient method of serving the needs of the public. Quoting those remarks, he said:
“ ‘In the case of the hotel drive in and walk in something similar can fairly be said. For those seeking a place to browse and make a considered selection neither of these areas can be regarded as meeting that contemporary demand. It has become obvious over the years that it is a rare woman indeed who would contemplate purchasing their liquor from the average walk in/drive in environment. I thought that, over the years, this expressed dislike would tend to lessen but it hasn’t and I cannot but find that for a very great percentage of our society, liquor being offered for sale in this way is simply not acceptable to them. Indeed for a very high number of men a suggestion that they can meet their demand in this average walk in/drive in environment is met with considerable reluctance. People always say that they feel uncomfortable parking in drive ins. They feel that they are holding traffic up. They feel pressured. They are often quite unaware of walk in facilities as they seem rather “tucked away” and not immediately obvious. Often they are unattractive and nothing much more than a storage area. People feel that the cars will be served before they are and will often be ignored. People feel embarrassed and “put upon” by having to carry their purchases themselves. People often feel that they are a nuisance to the attendants and are looked upon with suspicion. These are the sorts of things evident in so many cases and some of them evident in this.
I do not think that the average drive in/walk in environment of hotels is meeting contemporary demand for those who seek to look at and take time over choosing their product. I stress “average” because some hotels do provide much better. They provide special no busy parking facilities. The walk ins are obvious and have clear signage. They are much better than something akin to storage area or having a very limited range. They have a separate cash register. They have staff committed to servicing the area and so on.’
This was approved by Justice Mullighan in 1999 (see 1999 SASC 303) but, in any event, I adhere to those remarks. I think this hotels [sic] plans fall short. There is certainly no separate entrance. I suspect very much that drive in customers will be given priority treatment as the witnesses believe would occur. The idea of having the walk in area open rather than in an enclosed air conditioned environment is also a detriment according to some witnesses and I can only agree. Many people and women particularly are deterred by the drive in environment. This is evident in case after case for years now and yet hotels continue to provide such. I do not think that in this day and age the public should have to accept that. Of course many are satisfied but there is a very significant number who are not.”

These remarks are replete with generality and are quite unhelpful in that it is necessary to address the specific issues in each case. To speak of the “average walk in/drive in environment” is to fail to deal with the particular circumstances of each case and in particular with the nature of the redevelopment proposed by the Aussie Inn. Although the Judge addresses the particular circumstances of the Aussie Inn in the last paragraph of that extract from his reasons, he has failed to have regard to the clear objective evidence that the walk-in section of the bottle department will be air conditioned, that there will be staff in both the walk-in and drive-in departments so that drive-in customers will not be given priority, and there is a dedicated parking area for patrons of the walk-in. No doubt there exist members of the public who have the perceptions to which the Judge referred. The Aussie Inn may not be as attractive to some as a liquor store. However, the fact clearly remains that the Aussie Inn must be regarded as a conveniently located outlet providing a wide range of liquor for consumption off the premises in a reasonably attractive setting. The judge does not in any way explain why the Bridgeway Hotel adequately caters for the needs of the public but the Aussie Inn will not. In short, the Aussie Inn represents licensed premises closely located to those who reside in the southern parts of Hackham and in Onkaparinga Hills. Even when all due allowance is made for the specialist nature of the Licensing Court, the judge’s assessment of the new area at the Aussie Inn is unduly harsh and unmerited. I reject it.
The licensed premises in the locality all remain at the same location so that questions as to distance and convenience remained the same as in the first two applications. However, what had altered was that the Aussie Inn had now become an hotel which provided a reasonable range of liquor in reasonably attractive surroundings so that it had to be considered as geographically convenient to the witnesses who were called at the hearing of the second application by Hackham Plaza. Instead of an hotel which was not to be taken into account when considering the ability of licensed premises to cater for the demand for liquor at the Hackham Plaza site it had now become a relevant outlet. Those residing near the Hackham Plaza Shopping Centre do not have to make round trips of the order of six kilometres to purchase liquor for consumption off the premises.
Another factor relevant to the question of distance is that on both the previous applications it had been established that the population of this locality is very mobile. In his reasons in 2001 Judge Kelly had adopted the following remarks by Acting Judge Cramond:
“They satisfy me that the public at large in this region is relatively mobile with access to a motor vehicle and accustomed to driving significant distances for the purposes of shopping and or employment.”
The evidence called in this case confirmed that the population was still very mobile. The population in the locality is more mobile than that in Metropolitan Adelaide viewed as a whole and there was a high number of households in the locality with more than one motor vehicle.
The ability to move easily around this locality is enhanced by States Road and Panalatinga Road which both provide ready and convenience access to the north. That was emphasised in evidence from some of the witnesses who were called in this application who used the Woodcroft Shopping Centre which is a little to the north and east of the locality. That shopping centre includes a liquor store used by some of the witnesses who found it quite satisfactory. One of the witnesses called by Hackham Plaza regularly visits the Quaffers store at Unley every three to four weeks, making substantial purchases of $400 to $500 per trip. Plainly for that witness and her husband, the proposed store at Hackham is no more than added convenience.
Some witnesses called by Hackham Plaza complained that the premises at Village Cellars were too small, too crowded or too dingy. The objective evidence is that those premises have an area which is approximately twice as large as the area of the liquor store proposed by Hackham Plaza. Acting Judge Cramond described the premises in these terms in 1999:
The Village Cellars bottle shop is of substantial size (approximately 220m² and stocks an adequate range of beer, wine and spirits. The liquor is well displayed and easily browsed in a congenial environment. Shoppers at the Woolworths supermarket have direct access to it and may use their supermarket shopping trolleys while shopping both for food and for liquor.”
In his decision in 2001 Judge Kelly, who had inspected the premises, adopted that description and later in his reasons said that “they represent a perfectly contemporary bottle shop with a good range of liquor”. He said that the traffic and parking difficulties were of little consequence when viewed objectively. Photographs of these premises tendered at the hearing of this second application by Hackham Plaza indicate that those descriptions of Village Cellars are still accurate. The criticisms of those witnesses were plainly not fairly based. The judge did not accept them, save for the criticism of parking space. It should be noted that the Emu Hotel also has a modest drive-in bottle department.
It should be noted also that the Hackham West Shopping Plaza is located in a neighbourhood centre which is at the lower end of the hierarchy of shopping centres described by the Development Plan for this Council area. It is lower in status than a district centre and regional centre. The Village Cellars Liquor Store is located in the Morphett Vale Centre Zone which the Development Plan states is anticipated to operate on a district level. The Super Cellars are located in the Colonnades Regional Centre. This Hackham Plaza shopping centre is not particularly large nor does it have a wide variety of other shops. It comprises a large Woolworths Supermarket, a small variety discount store, and specialty shops including a newsagency, café, video store and hairdresser. A Hungry Jacks fast food outlet is located in one corner of the development. The centre is considerably smaller than the Morphett Vale village centre and the Woodcroft town centre. Its area of some 3,000 square metres should be compared with 4,200 square metres at Morphett Vale and 10,000 square metres at Woodcroft.
The judge examined ten factors which Hackham Plaza contended constituted changed circumstances. Some the judge regarded as being but small factors to take into account. Although I have touched on some already, I list the judge’s ten factors adding comments based on the evidence. The judge’s remarks are italicised.
1.Super Cellars has sold its outlet at Colonnades to Woolworths. The judge found that it now has a poorer range of liquor and poor service. However, the judge found that the extent of the range of liquor in the licensed premises in the locality was not a factor in this case. Although the service at Super Cellars was poor, he believed that to be a small factor to be taken into account.
2.“Onkaparinga Hills is growing so it is claimed. It presently has some 2500-3000 people in that suburb. Many shop at Hackham. Most would have to travel up to eight kilometres or more round trip to their nearest liquor outlet.
This is not strictly changed circumstances, rather amplified material not before the Court last time. I comment on this later.”
The evidence shows that the population of Onkaparinga Hills is not growing. Its population remains static. It is fully developed.
3.“People want seven day shopping particularly with pending extended hours. The present licensed premises are not open on Sundays. This again is a mixture of pending changed circumstances and amplification evidence.
The lack of Sunday trading may be a very small factor to be taken into account but things will obviously change in the short term when extended trading takes effect.”
I agree that this is a factor of small account. Its weight is even further reduced by the fact that the Aussie Inn will be trading on Sundays, a factor overlooked by the judge.
4.“The centre has continued to grow. That was to be expected and is hardly a changed circumstance in the strict sense though the growth has been a little unusual.”
This observation requires no comment.
5.“Two retirement villages are likely to be placed nearby the centre in the near future. This will change things marginally but hardly of significance without more.”
This observation requires no comment.
6.“There have been changes in the “make up” of the population and the 2001 census is now published.
There are changes but really I am dealing with much the same sort of population as I did in 2001. Per capita income has probably increased and might be explained by the activity in Onkaparinga Hills where many affluent people seem to have moved in. This does not amount to anything much in my consideration of the case.”
The evidence was that the population had not increased which serves to reinforce the judge’s view that there was nothing in this point.
7.“Parking at Village Cellars is even harder. This is probably but marginally so. I take account of this problem in my consideration of the “needs” evidence.”
This concern was voiced by some of the witnesses. In 2001 the judge has said that parking difficulties were of little consequence when viewed objectively. There is a large parking area. The concerns which were voiced went to convenience not absence of car parking. The evidence as to difficulties with parking was not compelling. There was evidence from the proprietor of Village Cellars that, while parking in front of the Woolworths store at Morphett Vale is often difficult, parking is usually available at the rear of Village Cellars. Plainly the issue is one of convenience. The Hackham Shopping Centre is smaller. There can be no guarantee that parking will be any more convenient at that store. Shopping centres are often busy. It is common knowledge that the ease with which one can find a car park is directly proportional to how busy the centre is at a particular time. At the end of the day the question of car parking is but one aspect of convenience. It is not a compelling factor when deciding an application of this kind.
8.“The applicant proposes a much better stock list. True but hardly amounts to anything important in my consideration in the present case. Range or lack thereof is not a real feature of the case.”
This observation requires no comment other than to note that the Aussie Inn will have a comparable range of liquor.
9.“The Aussie Inn is changing its take away bottle facility. I will discuss this shortly.”
As already noted the Aussie Inn is changing. The judge failed to give adequate weight to this facility.
10.“In the case case I was clearly dissatisfied with the non representative nature of the “needs” evidence. I felt then that I had not really been given a good picture of the needs of a cross section of the public. Today I am very much surer of the position because the applicant has presented, quite fairly and properly in my view, a wider cross section and a clearer picture of the locality. For example in the case of Onkaparinga Hills I now know that this area has some 2500-3000 people in it. These people, on an objective view look to be those probably furthest away from liquor facilities. In addition I am given the subjective evidence of these people in a very much more enlightening manner than on the last occasion. On that last occasion I was left uncertain about people in this area and the significance of their numbers. I am now far better informed. I might say however that I do not accept, as the applicant would have it, that this is a significantly growing community. Generally I think the growth is near its peak.”
Those remarks do not carry the matter any further. The evidence led on this application was hardly any more representative than that led on the application in 2001. Four of the seven witnesses called to express their wishes for the supply of liquor lived in Onkaparinga Hills, two lived in Hackham close to the proposed outlet and a very short distance from the Aussie Inn, and one lived in an area in a Rural Living Zone a short distance south of the Aussie Inn. By contrast, the witnesses in the previous application came from different parts of the locality including Onkaparinga Hills. The judge’s criticisms in 2001 of the witnesses was that of the eight witnesses then called, three resided within walking distance of the Hackham Shopping Centre and two were without transport. Most of the witnesses called on this occasion had transport. In short, there was nothing much the witnesses demonstrated on this application which had not already been demonstrated on their prior application. The position at Onkaparinga Hills had not materially changed. The reliance on Huntfield Heights was entirely misplaced. That area had already developed before the 2001 application. For like reasons the reliance on Hackham East and Hackham West is misplaced.
The judge had regard to those living in Huntfield Heights. No evidence was led from residents in that area. More importantly their needs can be catered for by the Aussie Inn. The same position obtains for those in Hackham West and Hackham East whom the judge also considered.
That was the basis on which the judge held that circumstances had changed.
Shortly stated the position was as follows:
1.Neither the population of the locality nor of Onkaparinga Hills had increased to any material extent.
2.All of the existing licensed premises continue to trade at the same locations as they had at the time of the previous application.
3.The distances between the licensed premises and the witnesses remain the same save for the fact that the Aussie Inn was now a hotel to be taken into account when assessing the ability with which licensed premises served the demand of the locality.
4.The Aussie Inn was carrying out substantial improvements of its walk in bottle department to create premises approximately twice as large as those proposed by the applicant and with a comparable range of liquor. This provided a facility for bottled liquor which had not been available earlier.
These objective facts are more useful than the subjective evidence of witnesses who express their personal tastes and preferences: Nuriootpa Vine Inn Hotel and Motel Pty Ltd v Licensing Court [1999] SASC 512 at [15]; Harding Hotels (supra) at [21]. All of these objective facts point to the conclusion that nothing had changed since the previous application in 2001.
The only factors to which the judge pointed to justify the grant of the licence were distance, parking and the convenience of one stop shopping. When stripped to essentials, this was nothing but a case grounded on the convenience of one stop shopping dressed up with some other asserted changes which do not in fact exist. In the reasons above, it has been shown that there has been no relevant change in distance or parking. The convenience of one stop shopping is of course relevant but it is not, standing alone, sufficient. I refer to the remarks of King CJ in Lovell v New World Supermarket Pty Ltd (1990) 53 SASR 53 at 55-56:
“The desire for one-stop shopping is widespread in the community. The inability of customers to obtain their liquor supplies where they do the rest of their shopping may be irritating but it does not of itself mean that their demand for liquor cannot be met by existing facilities. It may be that the demand can be met, although perhaps at the price of some inconvenience to the customer. Inconvenience in gaining access to the required liquor is undoubtedly relevant to the determination of the question whether the public demand for liquor in the locality cannot be met by the existing facilities but it is not of itself decisive. If, for example, there existed an accessible first grade bottle shop at a distance of, say, 200 or 300 m from the shopping centre, it would be absurd to suggest that the demand for liquor by customers of the shopping centre could not be met simply because they would have to drive their cars a short distance from the general shopping centre in order to obtain their liquor. To attempt to provide access to a full range of liquor for everybody who is without the use of a motor car would result in a wholly undesirable proliferation of liquor outlets with consequent deterioration of the standards in the service of liquor which are necessary in the public interest. It is, however, a matter of degree. I repeat what I said in New World Supermarkets Pty Ltd & L H & B J Martin Pty Ltd v Liquor Licensing Commissioner and Jattadd Pty Ltd (unreported, Supreme Court, SA, King CJ, Legoe and Bollen JJ, 5 July 1989):
‘The section is satisfied if the public demand for liquor in the locality cannot be met without unreasonable difficulty and inconvenience. Distance and conditions of traffic play an important part in such a decision as is shown by Nepeor Pty Ltd v Liquor Licensing Commission (1987) 46 SASR 205. Entrenched shopping habits and aversions arising out of these and other considerations, if reasonable, are not to be disregarded.’”
The issues relied upon by the judge had all been canvassed at the two previous hearings and were the subject of detailed consideration. When examined, it is quite apparent that there has been no material change in circumstances to justify the grant of the licence. Instead, the redevelopment of the Aussie Inn is a change militating against the grants of the licence.
This Court will be slow to interfere with the decisions of this specialist tribunal. There may be cases where the evidence which is led satisfies the requirements of s 58(2) notwithstanding the absence of any significant change. This is not such a case. For the reasons expressed, the judge erred in granting this licence. I would allow the appeal. I would set aside the judgment of the Licensing Court and dismiss the application.
BLEBY J: I agree that the appeal should be allowed. I agree with the orders proposed by Debelle J and I agree with his reasons.

[2004] SASC 111

23 April 2004