Liquor Stores Assoc v Angas Park Hotel P/L No. Scgrg-98-1396 Judgment No. S230

LIQUOR STORES ASSOCIATION INC & ANOR
v ANGAS PARK HOTEL PTY LTD
[1999] SASC 230

Full Court: Doyle CJ, Duggan and Debelle JJ

DOYLE CJ. The facts relevant to this appeal, and the main statutory provisions, are to be found in the reasons of Debelle J.
I agree that the appeal should be allowed, and that the order made by the Licensing Court, redefining the licensed premises the subject of the licence held by the respondent, should be set aside.
I reach that conclusion for reasons that differ from the reasons of Debelle J. Accordingly, it is necessary for me to state my own reasons.
Debelle J has concluded that s68 of the Liquor Licensing Act 1997 (“the Act”) cannot be used to redefine licensed premises, to include as part of the licensed premises, premises that are not contiguous to the existing licensed premises. He concludes that the only power in relation to premises that are not contiguous is to be found in s69 of the Act, and that that section does not permit a variation (to use a neutral term) of licensed premises so as to enable the sale of liquor for consumption off the premises.
I respectfully differ. I consider that acting under s68 a licensing authority has power to redefine licensed premises, to include as part of the licensed premises, premises that are not contiguous. But I am of the opinion that in doing that in the present case the Licensing Court has exercised its discretion on a basis that cannot be supported as a matter of principle. The judge of the Court has, in my respectful opinion, exercised the discretion under s53 and s68 of the Act in a manner that is inconsistent with the fundamental policy of the Act. For that reason I would allow the appeal.
It also appears, as Debelle J points out, that the respondent has not obtained the consent of the lessor of the premises as defined before the Licensing Court made its order. The application probably did involve a proposed alteration to the licensed premises: see s68(1)(a) of the Act. It may be that this defect can be remedied. That will depend upon the attitude of the owner. But the ground upon which I would allow the appeal means that the application should be refused. There is no point in remitting it for further consideration.

The importance of defining licensed premises under the Act

I agree with what Debelle J said about the importance of defining licensed premises under the Act. The Act regulates the sale and consumption of liquor in various ways. One of these is to specify what can (and by implication cannot) be done on licensed premises. By implication the relevant premises must be defined. Many provisions in the Act assume this will be done. For example, most types of licence authorise specified things to be done “on the licensed premises”. A number of provisions penalise certain conduct by making it an offence if that conduct occurs on licensed premises. For example, s108 relating to the sale or supply of liquor to a minor on licensed premises. These are just two examples of what one finds in provision after provision. That is, an assumption that licensed premises are defined in some way.

The defining of licensed premises

The Act requires the applicant for a licence to lodge plans for premises in respect of which a licence is sought: s51(1)(b) and Regulation 10 of the Liquor Licensing (General) Regulations 1997. Similar requirements are found in earlier legislation. The practice for many years has been to define the licensed premises by marking on the plan the boundary of the licensed premises. Usually the boundary is the outer wall of the building including, in some cases, a permanent structure of some sort attached to the building (for example, a fence enclosing a beer garden). Sometimes the boundary encloses part only of a building. Sometimes, although rarely in my experience, the boundary of the premises is an allotment or part of an allotment of land, within which a building is situate.
There was a longstanding doubt about whether the Licensing Court could grant a licence in respect of premises that are not contiguous, that is, touching or in contact or adjoining. Under the earlier legislation it was doubted whether the Court could, for example, grant a hotel licence in respect of a building and a separate drive-in bottle department, resulting in two separate buildings being the subject of a single licence. Expedients were found to avoid the problem in many cases. By various means a connection, sometimes rather artificially, was created between the two buildings, so that there was but one area defined as the licensed premises.
Debelle J accepts that, in limited circumstances, there is no need to resort to such devices under the Act, and that a single licence can be granted in respect of two separate buildings or premises. I respectfully agree. The legislation of earlier years contained provisions that arguably implied that this could not be done, and which gave rise to the doubt to which I have referred. These provisions are not found in the Act. I cannot find any prohibition in the Act against a licence operating in respect of more than one building. Nor can I find provisions in the Act that impliedly deny power to define licensed premises, on granting a licence, to include more than one building, the two buildings not being contiguous.

Exercise of discretion

There are sound reasons to conclude that this power may be exercised only when the separate buildings or premises are close to each other, and when there is good reason to do so in the public interest.
The grant or removal of certain categories of licence requires the consideration of the needs of the public in the relevant locality, and a consideration of the facilities provided by existing premises in the locality. All licence applications require consideration by the Court of the impact of the licence on people who “reside, work or worship in the vicinity of the licensed premises”: s57(1)(b). Section 69, to which Debelle J refers, manifests a clear concern to ensure that a licence will be extended only to an area that is close to the existing licensed premises. There are provisions restricting the removal of liquor from licensed premises that could give rise to practical problems for a licensee if the licensed premises are comprised of two separate premises, and that difficulty would be magnified if the premises were some distance apart.
My firm impression is that the Act is premised upon licensed premises consisting of contiguous premises, so that the licensed premises are a single unit, or separate premises only when the separate premises are on contiguous parcels of land or are at least close to each other. In my opinion it would not be a proper exercise of the discretion conferred on a licensing authority by the Act to permit licensed premises to be defined in a manner that departed from this underlying policy.

Redefining licensed premises

So far, as I understand the reasons of Debelle J, he and I are in agreement. The point of disagreement is that I find no reason to treat s68 as not authorising a redefinition of licensed premises so that they include separate buildings. To do that is to redefine the licensed premises. Bearing in mind what can be done when granting a licence, I see no reason to treat the power to redefine licensed premises as a more limited power. Of course, the power is subject to the same limits on its exercise as is the power to define premises upon the grant of a licence.
With great respect to Debelle J, I find no reason to read s69 as the only source of power to extend licensed premises to premises that are not contiguous. Section 69 authorises the sale of liquor pursuant to a licence from premises that are not part of the licensed premises, but which are “taken to form part of the licensed premises”: s69(2). Those premises must be adjacent to the licensed premises or at least “in close proximity” to the licensed premises: s4. An application cannot be granted under s69 if the object of the application could be achieved by redefining the licensed premises: s69(3)(a). To my mind, that provision contemplates that there will be situations in which premises are not contiguous, but in close proximity, in which the appropriate solution is to redefine the licensed premises rather than to grant an authority under s69. Quite apart from that, I consider that s69 is concerned only with the sale of liquor for consumption in areas that cannot, for some reason, be made part of the licensed premises. An example of this is a public footpath outside a hotel or restaurant. Because I consider s69 to be directed only to this limited situation, I do not consider that its terms carry any implication for what may be done under s68.
It is on that point only that I disagree with Debelle J.
It follows that the Licensing Court had power to do what it did in the present case. That power is to be found in s68 of the Act.

The exercise of the Court’s discretion

But defining licensed premises the subject of a hotel licence to include a building some 350 metres away, on the opposite side of a public road and in a shopping centre having no connection with the hotel, is not something within the scope of the discretion available to the Court.
The hotel and the proposed bottleshop cannot be regarded as close to each other. They cannot be regarded as together constituting substantially one place of business. They are not adjacent to each other. I consider that the Act contemplates separate premises being licensed under the one licence only when their relationship is of the type just identified by me. I acknowledge that these expressions are imprecise, but I consider that the policy of the Act is clear enough.
By granting the application the Licensing Court allowed the creation of an outlet for the sale of liquor that has no apparent connection to the hotel the licence of which applies to the outlet. The outlet is in a shopping centre to which the hotel is not adjacent. The shopping centre has no apparent connection to the hotel. In my opinion what the Court has done is likely to give rise to confusion in the mind of the public about the status of the new outlet. I cannot imagine any circumstances under which this would be a proper exercise of the Court’s discretion. Quite apart from that, in the present case there does not appear to be any public interest in the grant of the application. It is not suggested that there was any public need for the outlet. A customer of the hotel who proposed to patronise the hotel would have to make a journey that involved passing another adequate outlet before arriving at the new outlet. The Court exercised its discretion in a manner that was tantamount to authorising a completely new outlet in the town.
To my mind these latter matters indicate that the decision sets an undesirable precedent, quite apart from my conclusion that the exercise of the discretion is contrary to the underlying policy of the Act.
It is for those reasons that the decision cannot be justified as an exercise of the Court’s discretion. I would allow the appeal, set aside the order made by the Licensing Court, and order that there be substituted an order refusing the application made to the Court.
I express no view on the question of whether there should be a review of the Act and a review of the rationale behind the present scheme for licensing the sale of liquor.

DUGGAN J. I have reached the conclusion that this appeal should be allowed for the reasons given by the Chief Justice.
In my view, premises may be licensed under the Liquor Licensing Act 1997 in situations where the premises are comprised of buildings which are not contiguous it the sense of being physically linked. There is no provision in the Act which prevents the licensing authority from granting a licence in these circumstances; nor does the Act specifically prevent an inclusion in the one licence of buildings which are on separate parcels of land.
Until the passing of the Licensing Act, 1967 the view taken by the Licensing Court was that the premises to be licensed, if comprised of more than one building, should be physically connected. This view of the Act led to the employment of devices such as covered walkways to connect buildings so that they might be considered as part of the same premises.
A different attitude was adopted by the Licensing Court after the passing of the 1967 Act. The new approach is illustrated by a decision of the Full Bench of the Licensing Court in The South Australian Brewing Co Ltd Application [1970-71] SALCR 290. The South Australian Brewing Co Limited applied to extend the boundary of its licensed premises at Southwark. The company was the holder of a Brewer’s Australian Ale Licence. It wished to extend the licence so as to include buildings on the side of the road opposite the existing licensed premises. The President of the Court, Judge Johnston, noted that, as in the case of a publican’s licence, this would not have been permitted under the previous Act. However he accepted that the court had power to grant the application under the 1967 Act and he held that the discretion should be exercised in favour of granting the application. Mr Marshall SSM, another member of the court, agreed. He stated that there was nothing in the Act to prevent the granting of the application and he made particular reference to the fact that under the new Act the court was given a discretion which it did not have under the previous legislation. His Honour held that: “... it is no longer a rigid rule that all premises covered by a licence should be connected and within the one defined boundary.”
In my view, the same can be said of the position under the Liquor Licensing Act 1997. There is nothing in the present legislation to prevent the court from granting a new licence where the premises are comprised of buildings which are not contiguous and even if they are on separate parcels of land. I think that such premises can also be incorporated into the one licence pursuant to a redefinition of licensed premises under s68 of the Act.
With respect to the view of Debelle J, I cannot agree with the inference which he draws from the fact that s69(1) of the Act deals only with the extension of the trading area for consumption of liquor on the premises. His Honour has expressed the view that Parliament intended s69 to be an exclusive provision controlling the extension of licensed premises. In my view this provision was enacted to facilitate the now common practice of extending liquor facilities to areas adjacent to licensed premises such as footpaths. In the light of this obvious purpose I would not be prepared to accord it a wider significance by regarding it as indicating an intention that this was to be the exclusive provision for dealing with the extension of trading areas to premises which were not necessarily contiguous with existing premises. The fact that s69 is not to be used if the object of the application can be more appropriately achieved by redefinition of the licensed premises under s68 is a further argument against drawing such an inference.
However, in applications of this nature there are good reasons for using caution in the exercise of the discretion conferred by s53 of the Act to grant or refuse an application. The Act seems to contemplate that, in the ordinary case, the licensed premises will be located on the same site. The requirement to prove need in the case of hotel premises and retail liquor merchant’s premises confirms the view that the Act anticipates the restricting of licenses to premises comprised of buildings located on the same site or in very close proximity.
In the light of these conclusions I have no doubt that the exercise of the discretion in the present case miscarried. The proposed bottle shop is 350 metres from the hotel and there is another hotel located between the respondent’s premises and the proposed bottle shop. I agree that the appeal should be allowed and that the order redefining the licensed premises should be set aside.

DEBELLE J. Section 68(1)(b) of the Liquor Licensing Act 1997 permits redefinition of licensed premises. The question in this case is whether the Licensing Court has power to redefine the licensed premises of an hotel to include a bottle shop some 350 metres from the hotel. Commonsense suggests that it does not. An examination of the Act confirms that view.
The Angas Park Hotel is one of two hotels in Nuriootpa. It is an old hotel. Bottled liquor is sold over a bar in the hotel. The hotel does not have a separate area which is used as a bottle shop. The respondent, Angas Park Hotel Pty Ltd which is the licensee of the hotel, wishes to develop a modern bottle shop. The hotel is situated on a small allotment. The Licensing Court judge accepted the evidence of the respondent that there is no feasible means by which it is possible to provide a modern retail liquor shop in the hotel or in premises attached to the existing hotel. The respondent, therefore, seeks to establish such a shop in a new shopping centre in Murray Street, Nuriootpa. The respondent will be a tenant in the new shopping centre. The bottle shop will be some 350 metres from the hotel. The respondent applied to the Licensing Court to redefine the boundary of the hotel to include the bottle shop in the shopping centre.
The other hotel in Nuriootpa is the Vine Inn Hotel. It is located between the Angas Park Hotel and the proposed bottle shop. It did not object to the application to redefine the premises of the hotel. However, two objections were lodged. One was by Mortlick Pty Ltd, which operates a bottle shop pursuant to a retail liquor merchant’s licence in Tanunda. The other objector was the Liquor Stores Association Inc. The Licensing Court held that s 68 of the Liquor Licensing Act 1997 gave it power to approve the application. It then approved the application. The objectors appeal by leave against that decision.
For a long time it has been the practice to define premises licensed to sell liquor by marking the boundary of the premises upon a plan. By that means licensed premises are defined. The liquor licensing legislation in its various forms has not at any time enacted an express obligation to do so. However, it has been implicit in a number of provisions of the legislation that a boundary of the premises should be marked on a plan. The Licensing Court possesses plans of licensed premises since it has long been an obligation for an applicant for a licence to provide plans of the proposed premises. That obligation is currently contained in s 51 of the Act. The fixing of the boundary has at different times had a number of different purposes. Section 4 of the Liquor Licensing Act 1997 defines licensed premises to mean “premises in respect of which a license is enforced and includes premises for which the license is currently under supervision”. Thus it is necessary to fix bounds of the licensed premises to determine their extent. It is also necessary to define a boundary of the licensed premises since it is an offence to sell liquor unless one is licensed to do so and the sale must occur on the licensed premises. Where the licensed premises form part of a large building containing, say, other retail premises, the need to define the boundary assumes more importance. Other reasons for fixing boundaries may be found in s 48, s 102, s 103, s 104, s 105 and s 112 of the Act.
The power to redefine licensed premises is provided in s 68 of the Act. It provides:
“(1) The licensing authority may, on the application of a licensee -
(a).... approve an alteration or proposed alteration to the licensed premises;
(b)redefine the licensed premises as defined in the licence;
(c).... designate a part of licensed premises as a dining area or a reception area.
(2) An application for approval of an alteration to licensed premises must not be granted unless the licensing authority is satisfied that all other approvals, consents or exemptions required by law have been obtained.
(3) If licensed premises are altered without approval under this section, the licensee is guilty of an offence.”

The Licensing Court is a licensing authority for the purposes of the section. Ordinary usage of the word “redefine” indicates that the power to redefine licensed premises assumes existing licensed premises. The power enables the licensing authority to do no more than redefine what already exists, that is to say, redefine the bounds of the existing licensed premises.

The need to redefine may arise in three different kinds of cases. First, it may result from an intention to vary the boundary to allow for changes in the use of an existing building so that different parts of the building will become the licensed premises. Secondly, it may be consequential on alterations to the existing licensed premises. The alterations may increase or reduce the area of the licensed premises. The power under s 68(1)(a) to approve an alteration to the licensed premises is limited to approving an alteration to the existing premises, that is to say, extending or reducing the size of an existing building. Thus, the power to redefine the licensed premises is limited to redefining the existing premises or premises for which the Licensing Court has already approved alterations. In the case of the two instances so far mentioned, the redefinition of licensed premises involves redefining that which already exists and it is plainly within with the purview of s 68. The difficulties arise when application is made to approve alterations which involve premises which are not contiguous to the existing licensed premises. For the reasons which follow, the power to approve such alterations is to be found in s 69, not in s 68, of the Act.
It will have been noticed that s 68(2) requires that, if alterations are involved, the licensing authority must first approve the alteration and the authority cannot grant approval unless all approvals, consents or exemptions required by law have been obtained. Thus, if the alterations require a grant of development consent under the Development Act 1993 or, in the case of leased premises, the consent of the lessor, those consents must be obtained and proved. Section 72 of the Act expressly provides for the lessor’s consent.
The respondent’s application was not to redefine an existing building. Instead, it was an application to alter the licensed premises to add a new and separate building. The respondent does not own the premises but leases them. The respondent, therefore, had to obtain the consent of the owner of the premises. That consent was not proved. The Licensing Court, therefore, had no power to grant the application. The appeal must, therefore, be allowed.
Although that is a sufficient ground to dispose of the appeal, it is desirable to examine the more important question whether the Licensing Court could have approved the application even if the lessor’s consent had been obtained. This appeal directly raises the question whether the Liquor Licensing Act empowers a licensing authority to approve an alteration to licensed premises to include a building separate and distinct from the existing premises and then to redefine the licensed premises in circumstances where it is intended that liquor for consumption off the premises will be sold from the new premises.
The Liquor Licensing Act expressly prohibits a licensing authority from acting in that way. The prohibition is contained in s 69 which provides:
“(1) The licensing authority may, on application by a licensee who holds a licence authorising the sale of liquor for consumption on the licensed premises, extend the authority conferred by the licence so that the licensee is authorised to sell liquor in a place adjacent to the licensed premises for consumption in that place.
(2) The place to which the authorisation relates is, when the sale of liquor is authorised, taken to form part of the licensed premises.
(3) An authorisation cannot be granted under this section unless -
(a).... the licensing authority is satisfied that the object of the application could not be more appropriately achieved by redefinition of the licensed premises; and
(b)the licensee will, when the sale of liquor is authorised, be entitled to sell or supply liquor to customers in the relevant place; and
(c).... the relevant place can be adequately defined and supervised; and
(d)the owner of the relevant place (if not owned by the licensee) consents to the application; and
(e).... if the relevant place is under the control of a council - the council approves the application.”

The word “adjacent” is defined in s 4 of the Act in these terms:
“Places or premises are adjacent if they adjoin (either in a horizontal or vertical plane) or if they are in close proximity to each other.”

It is s 69 which is used to extend, say, the boundary of an hotel or a restaurant to enable dining or drinking in an adjacent open area.

It will have been noticed that, while the Act extends the definition of “adjacent” to include premises which are not necessarily contiguous with existing premises, it restricts the power of the licensing authority to authorise only the sale of liquor for consumption on the licensed premises in the extended area. The fact that s 69(1) expressed the limits of the power to approve an extension of the premises to enable consumption of liquor on the premises carries with it the necessary implication that a licensing authority cannot approve an extension of the trading area from which liquor is sold and supplied for consumption off the premises. The expressio unius exclusio alterius principle must be used with caution. But in this instance Parliament has expressly empowered a licensing authority to approve an extension of the licensed premises for a limited purpose only. It would defeat the intention of the provision to allow an extension of the premises in a way not authorised by s 69.
In other words, s 69(1) does not authorise an extension of the trading area of the licensed premises to non-contiguous premises from which the sale of liquor for consumption off the premises will be made. An hotel licence is but one of several kinds of licence which answers the description of “a licence authorising the sale of liquor for consumption on the licensed premises”. Shortly stated, s 69 prohibits the holder of an hotel licence from extending the boundary of the licensed premises so as to establish in separate and non-contiguous premises a bottle shop for sale of liquor for consumption off the premises. Upon all necessary consents being obtained, the licensing authority may permit the holder of an hotel licence to extend the boundary to include contiguous premises for use as a bottle shop or to non-contiguous premises for use as a bar, lounge or dining area. What is prohibited is extending the premises to include non-contiguous premises on which liquor will be sold for consumption off the premises.
The effect of the Act may, therefore, be summarised in these terms. Section 68 is by its terms limited to redefining that which already exists, namely, as s 68(1)(b) states, the premises as defined in the licence. It is not expressed in terms which allow an extension of the licensed premises to non-contiguous premises. That power is to be found in s 69 and, in the case of an hotel licence, enables the extension of the trading area of the hotel to non-contiguous premises for all purposes except the sale of liquor for consumption off the premises. Section 68 cannot be used to redefine the licensed premises of an hotel to include a non-contiguous bottle shop since that would be extremely inconsistent with s 69.
The fact that s 69(3)(a) provides that s 69 cannot be used where the licensing authority is satisfied that the object of the application could not be more appropriately achieved by redefinition of the licensed premises does not qualify the above conclusion. There is ample scope for the operation of this provision in those cases where the court approves an alteration to licensed premises in consequence of the extension of an existing building.
The fact that the Act prohibits extension of the trading areas to non-contiguous premises for the sale of liquor for consumption off the premises may at first sight appear to be anomalous. The prohibition against a non-contiguous bottle shop is, however, consistent with the policy of the Act which requires that a need be demonstrated at the premises which are authorised to sell by retail liquor for consumption off the premises. There are only four kinds of licences which authorise retail sale of packaged liquor for consumption off the premises. They are an hotel licence, a retail liquor merchant’s licence, some forms of club licence, and a producer’s licence. For present purposes, the club licence and the producers can be put to one side as the Act does not require an applicant for either licence to prove need. Furthermore, few clubs are authorised to sell liquor for consumption off the premises. The producer’s licence can also be put to one side because it authorises the sale by the producer of beer, wine or spirits manufactured by the producer. The overwhelming proportion of packaged liquor sold by retail for consumption off the premises is sold by hotels or bottle shops for which a retail liquor merchant’s licence is held.
Section 58 of the Liquor Licensing Act requires that an applicant for either an hotel licence or a retail liquor merchant’s licence must prove that a need exists for licence at that site having regard to existing licences in the locality. Similarly, if the holder of an hotel licence or retail liquor merchant’s licence applies to remove the licence, it is necessary to prove the need for the licence at the proposed site having regard to existing licences in the locality: see s 61 of the Act. It might be noticed in passing that there is nothing to prevent the licensee of the Angas Park Hotel from removing the licence to another site in Nuriootpa which would permit it to construct premises which would include a modern bottle shop facility of the kind proposed in this shopping centre.
The Licensing Act 1967 abolished the system of local option polls which had long existed in South Australia as the means of controlling an undue proliferation of licensed outlets. It replaced that scheme with the requirement to prove need. The obligation to prove the need for a licence is a means of seeking to prevent, among other things, an undue proliferation of outlets selling liquor for consumption off the premises. The obligation to prove a need for a particular licence formerly applied to other forms of licences in addition to hotel licences and the then equivalent of the retail liquor merchant’s licence: see the Licensing Act 1967. The current legislation restricts the obligation to prove need to hotel licences and retail liquor merchant’s licences.
If the holder of an hotel licence or a retail liquor merchant’s licence seeks to redefine the boundary of the licensed premises to include premises which are some distance from the licensed premises and which are intended for the sale and supply of liquor for consumption off the premises, there is a potential to defeat the objects of the Act, in particular the obligation to prove the need for the licence at the site. The policy of the Act is to permit the retail sale of liquor for consumption off the premises from one site, namely, the site of the hotel. It does not authorise sale of such liquor at more than one site.
There are still in South Australia quite a number of hotels which do not have a modern bottle shop. If it were possible to use premises which are nearby but not contiguous, it would be possible for those hotels to establish retail outlets separate and distinct from the hotel and some distance from the hotel. Given that there is nothing to prevent the hotel selling liquor from its established premises, the hotel would in fact have two separate outlets selling liquor for consumption off the premises. Similarly, but for s 69, an hotel with an existing drive-in bottle department, could be permitted to establish an extensive bottle shop in other premises separate from the hotel. That is wholly inconsistent with the policy of the Act. It would also be contrary to the policy of the Act to allow an hotel to establish a separate bottle shop some distance from the hotel and adjoining premises the subject of an hotel licence or a retail liquor merchant’s licence. The example is reinforced in this case by the fact that the Vine Inn (which has a bottle shop) is located between the Angas Park Hotel and the shopping centre where it is proposed to establish the bottle shop.
For all of these reasons, s 68 of the Licensing Act cannot be used to include as part of the respondent’s licensed premises this shop some 350 metres distant. The Licensing Court has, therefore, erred in holding that s 68 authorised it to approve this application.
Section 53 of the Licensing Act invests the licensing authority with an “unqualified” discretion to grant or refuse an application under the Act. The use of the epithet “unqualified” in s 53 denotes an extremely wide discretion: Dalgety Wine Estates Pty Ltd v Rizzon (1979) 141 CLR 552 at 556-567, 572. But it does not authorise a licensing authority to act in a way which the Act does not permit. It cannot, therefore, be used to circumvent provisions such as s 68 and s 69.
The provisions of s 69 might result in one other anomaly. Although it is not the usual case, there have been instances where approval has been granted to a new hotel licence where the licensed premises contained more that one building. The licensed premises include each of those separate buildings. It would be possible for a drive-in bottle department to be in separate premises from the rest the hotel. Some specific instances were identified in argument. But it is fair to say that in most, if not all, of those cases there is an identifiable complex of buildings which comprise the hotel. Those buildings will be on one parcel of land or, if not, on contiguous parcels or parcels which are linked to one another. It might be said that it is anomalous that it is possible to obtain a grant of an hotel licence for a new complex of buildings all of which are not continuous but it is not possible to extend the existing licence to non-contiguous buildings for the purpose of establishing an outlet for sale of liquor for consumption off the premises. The existence of this possible anomaly does not justify the Court in departing from the requirements of s 69. The task of remedying the anomaly, if one exists, is for the Parliament. Licensing legislation represents a compromise of many and diverse interests. It involves a number of difficult questions of social policy where views of divergent interests conflict. The Parliament, not the Court, is the proper forum in which to resolve the conflicting interests.
I have on an earlier occasion questioned whether present attitudes towards the marketing of liquor require that an applicant for an hotel licence or a retail liquor merchant’s licence must prove the need for the licence. I said in Anglers Inn Hotel/Motel Pty Ltd v Taranto(1980) Pty Ltd (1996) 188 LSJS 321 at 323:
“Some may question whether present day attitudes towards the marketing of liquor require an applicant for an hotel licence and for other categories of licence to prove the need for the licence... That issue will provoke a variety of responses. There will be those who will say that it is wholly unnecessary in what is asserted to a more enlightened age in which the standard of the marketing of liquor has considerably improved. Some will say that the need to prove need is anti-competitive enabling existing licensees to enjoy a statutory protection (in some cases a statutory oligopoly) which unfairly and unwisely adds a premium to the value of the licence. Those opposing the abolition or relaxation of the requirement will point to the desirability of providing a degree of protection to licensees given the duties imposed on them. Others will point to the overall interests of the community in restricting the undue proliferation of premises serving alcoholic liquor. No doubt, many other views could be expressed. It is not this Court’s function to resolve those issues. They are for the Parliament which may, if it chooses, seek external advice. It is to be noted that, at present, an inquiry into the Liquor Licensing Act is being conducted.”

The enquiry referred to in the above passage did not, so far as I can ascertain, involve an examination of the rationale underlying the existing legislation. There have been wholesale changes to the liquor industry since 1967 when a Royal Commission recommended wide sweeping alterations to the legislation which resulted in the Licensing Act 1967. Those changes are particularly notable in relation to the retail sale of liquor. There are now a number of additional forms of retail outlets all of which have, in different ways, substantially affected the virtual monopoly formerly enjoyed by hotels. Community attitudes to the sale of packaged liquor in shops have also altered. What is required is a thorough review of the rationale for liquor licensing, an examination of modern trends in the industry, an opportunity for interested members of the public as well as those who are involved in the liquor industry to be heard, and an examination of how liquor licensing should deal with modern marketing techniques. Other appeals which this Court has recently heard underline the need for such an enquiry. In the meantime, this Court and a licensing authority have no alternative but to apply the existing law.

For all of these reasons, I would allow the appeal and set aside the order made in the Licensing Court.

The other feature of s 69 is that it applies only to licences which authorise consumption of liquor on the premises and that it will only permit the sale of liquor for consumption in the adjacent place. It does not authorise an extension of the trading area to enable the purchase of liquor for consumption off the premises. The only licences which permit consumption of liquor on the premises are an hotel licence, residential licence, restaurant licence, entertaining venue licence, club licence, limited club licence and a special circumstances licence. Of the above licences only the holders of an hotel licence and the holders of certain kinds of club licence may sell liquor for consumption on and off the premises. A retail liquor merchant’s licence permits tasting of liquor but otherwise does not permit consumption on the premises: s 37. Thus, the holder of an hotel licence may apply to extend the licensed area to an adjacent place but the extended trading area cannot be used for the purchase of liquor for consumption off the premises.

[1999] SASC 230

24 June 1999