Tapp & Tapp v ALH Group P/L & Liquor & Gaming Comm No. Scgrg-99-1325

TAPP and TAPP v ALH GROUP PTY LTD and LIQUOR AND GAMING COMMISSIONER
[2000] SASC 123

Full Court: Doyle CJ, Debelle and Bleby JJ

DOYLE CJ:I agree that the appeal should be allowed for the reasons given by Bleby J. There is nothing that I wish to add to those reasons.
DEBELLE J: I have had the advantage of reading the reasons of Bleby J. Iagree with the substance of his reasons. I wish only to add the following.
It cannot be emphasised too strongly that a licence is granted in respect of defined premises and, in the case of a hotel licence or a retail liquor merchant’s licence, the licence would be granted only if the applicant demonstrates the need for the licence at those premises in accordance with either s 58(1) or (2) of the Liquor Licensing Act 1997.
In the ordinary case, the licensed premises will comprise one building or a single set of identifiable premises within one building. That is the position for most hotels and bottle shops in South Australia. If licensed premises comprise more than one building, the premises must be an identifiable complex of buildings which, together, plainly appear to form one set of premises. Thus, separate buildings on one parcel of land which are very close together may appear to be one complex of buildings, that is to say an identifiable unit of buildings, and thus may be regarded as one set of licensed premises. In other words, there must be an apparent unity, an appearance of oneness, before separate buildings may be regarded as one set of licensed premises.
On reconsideration, I attached too absolute a significance to s 69 of the Act in my reasons in Liquor Stores Association v Angas Park Hotel Pty Ltd (1999) 74 SASR 187. Section 68 of the Act may be used to redefine licensed premises where more than one building is involved. If the requirements of s 69(3) are satisfied, s 69 allows for an extension of the trading area to non-contiguous, as well as contiguous, premises for consumption on those premises only. It is a special provision. It has work to do even if the power to redefine licensed premises extends to non-contiguous premises in the manner contemplated in these reasons. Nevertheless, the fact that s 69 does not permit the sale of liquor in adjacent premises for the consumption off the premises serves to underline the care which must be exercised when redefining premises to ensure that the premises are one complex of buildings with the appearance of unity.
By no stretch of the imagination can the proposed bottle shop be regarded as forming one complex of buildings with the existing hotel.
For these reasons, I would also allow the appeal.
BLEBY J: The first respondent, ALH Group Pty Ltd, is the licensee of the Aberfoyle Tavern. It is the holder of a hotel licence in respect of the premises. That licence enables it to sell liquor on the licensed premises for consumption on or off the premises. It presently has bar, dining and gaming facilities and a drive‑through bottle section.
The building housing the Tavern is a free‑standing building. It is located in an area known as the Aberfoyle Hub in which are located churches, schools, sporting facilities, a community centre and other community facilities, a shopping centre, service station as well as the Tavern. The various facilities and their associated car‑parks are linked by internal roadways and walkways.
The Tavern is located on the north‑western side of a group of buildings comprising principally a shopping centre with some office accommodation. The shopping centre includes two supermarkets and a number of variety shops. The various buildings comprising the offices and supermarkets and a group of the variety shops are not all under the one roof but are linked by covered and open walkways.
The first respondent continued an application begun by the previous licensee of the Tavern for redefinition of the licensed premises pursuant to s 68 of the Liquor Licensing Act 1997 (“the Act”). The proposed redefinition was to include within the licensed premises a separate walk‑in bottle shop located in one of the shops in the shopping centre.
I have already mentioned that the Tavern is located on the north‑western side of the shopping centre. Its main entrance is on the northern corner of the building with other entrances on the north‑eastern side and through the drive‑in bottle department located on the south‑western side of the building. There is no public entrance on the south‑eastern side of the building, which is the side adjacent to the shopping centre.
The proposed retail liquor store is located in a shop in the shopping centre situated on the south‑eastern side of the shopping centre, being the opposite side of the shopping centre from that adjacent to the Tavern. It is adjacent to a car‑park which is quite separate from another car‑park nearer the Tavern. The distance from the proposed retail shop to the nearest land boundary of the Tavern is some 70 metres. Most of that distance can be traversed through a covered walkway, but standing in a direct line between the proposed retail liquor shop and the bulk of the Tavern building is one of the large supermarkets forming part of the shopping centre. The distance from the proposed shop to the nearest public entrance to the Tavern, being part of the drive‑through bottle department, is approximately 100 metres. From a plan of the site, I would estimate that the distance from the shop to the nearest normal pedestrian entry point to the tavern would be in excess of 100 metres.
From one point outside the Aberfoyle Hub it is possible to see at once the two buildings comprising the Tavern and the group of shops in which the proposed retail liquor store would be located. It would be difficult if not impossible to see any recognisable part of the Tavern from the bottle shop, or vice versa.
The Licensing Court Judge who heard the application was satisfied that the facilities available in the Tavern were unsatisfactory for the provision of a modern walk‑in bottle department, and that it would be impracticable to provide a contemporary walk‑in bottle shop on the hotel premises. He granted the application for redefinition of the hotel premises to include the proposed retail liquor store. It is from that decision that the appellants, objectors on the hearing of the application, now appeal to this Court. The Liquor and Gaming Commissioner, the second respondent, made submissions in support of the appellants. The arguments in support of the appeal were that the premises, not being contiguous, were not sufficiently close to constitute a legitimate redefinition of the premises, that there was no good reason in the public interest to grant the application, and that it had not been established that the provision of expanded bottle shop facilities was impracticable on the existing site.
Section 68 of the Act, under which the application was made, provides:
“68. (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.”
As its long title suggests, the Act is an act to regulate the sale, supply and consumption of liquor. As part of the scheme of regulation it provides for the granting of ten different types of licence, covering a variety of circumstances in which liquor is sold. In respect of all but two of such licences (special circumstances licence and limited licence), both of which are of limited operation, a licence is only granted in respect of premises. Section 4 of the Act defines “licensed premises” as meaning “premises in respect of which a licence is in force and includes premises for which the licence is currently under suspension”.
In the sense in which it is used in the Act, “premises” is one of those few English words which, although referring to a single unit, is always used in the plural. One speaks of “premises” or “a set of premises”. That suggests that, in its ordinary meaning, it has a number of separate components. Indeed, that accords with most standard dictionary definitions. The word is defined as “a house or building with its grounds or other appurtenances” (Oxford English Dictionary) or “a house or building with the grounds, etc, belonging to it” (Macquarie Dictionary). Other dictionary definitions are to the same effect.
Premises will therefore usually comprise a building or set of buildings of some sort with grounds or appurtenances associated with it. The dictionary definition does not necessarily require common ownership, but it does require an identifiable connection between the several components of the premises. Usually that will be a connection of a physical or visible type. If premises are on separately owned pieces of land, they will usually be on adjoining or contiguous land. To come within the commonly understood definition they require some physical or functional unity or integrity. If there is some substantial permanent physical barrier or fence separating two buildings or groups of buildings, or if buildings are used for quite different purposes, even though the land is contiguous, they may well not be described as comprising the same premises, even where the land may be in common ownership. For example, a grazing property may contain an identifiable area containing buildings in which the manager and his family live and work. They may be properly designated as the manager’s premises. On the same land but physically separated, perhaps not even within sight of the manager’s premises, may also be another set of identifiable buildings comprising shearers’ quarters or premises. Yet again there may be identifiable shearing premises or sheds.
There is also a sense in which premises defined by reference to their functional purpose overlap. The premises of a shopping centre may include a number of buildings and associated car‑parks. Within those premises will be individual smaller premises which house a supermarket, a record shop, a butcher’s shop, a coffee shop etc. All of those are separate and identifiable premises.
Against that background, two features of the Act are important. The first is that the Act contains its own definition of “premises”, but it is an inclusive definition (s 4):
“‘premises’ includes -
(a)... land;
(b) any building or structure on land;
(c).... a public conveyance;
(d) a part of premises;”

It does not exclude the ordinary definition of “premises”. It is possible for licensed premises to be but part of larger premises and not occupy the whole of a particular set of premises. This is because, for the purposes of the Act, it is necessary to delineate the area or areas within which sales of liquor may take place. It follows that licensed premises, or “premises in respect of which a licence is in force” (s 4), may include a part of premises in respect of which a licence is in force, there being other parts of the same premises in respect of which there is no licence in force. The licensed premises will still form part of the same premises if, within the boundary of the premises of which they form part, the boundaries of the licensed premises are moved, adjusted or extended.

The second important relevant feature of the Act is that a licence is granted for only one set of premises. Although a person may hold two or more licences (s 48(1)), no single licence could be issued to a person in respect of more than one premises. This is reinforced by that fact that, save in certain limited circumstances, two or more licences cannot be granted for the same premises (s 48(3)). It is further reinforced by the provisions of Part 4 Division 4 of the Act relating to the removal of a licence. If a business is to be transferred to other premises, so must the licence be removed to those premises.
It follows from what I have said that the proper interpretation of s 68 requires that any alteration or redefinition of licensed premises can only be approved by the licensing authority if that alteration or redefinition is in respect of the same premises. In other words, the redefined premises must be or form part of the same identifiable premises in respect of which the licence is granted. The premises may be redefined by extension, by contraction, by rearrangement or by addition of a new building, so long as the physical features remain part of the same premises and are not different or separate premises. An acceptable redefinition could include any new building or structure within the grounds or other appurtenances of the existing licensed premises, provided that all components together can still be regarded as the one premises. The buildings concerned need not necessarily be under or connected by the same roof. It is not necessary that the buildings should be on the same title, provided that they retain a physical and functional integrity, and can properly be regarded as the same premises.
It is not possible or desirable to list the factors which may need to be considered in a given case to determine whether particular components can properly be said to form part of the same premises. Ultimately, it will be for the licensing authority to decide whether the redefined premises can properly be regarded as part of or an extension of the licensed premises. If they cannot, a redefinition application must fail.
What I have said thus far is without reference to this Court’s decision in Liquor Stores Association v Angas Park Hotel Pty Ltd (1999) 74 SASR 187. That case concerned an application under s 68 which had features not dissimilar from those of this application. The licensee of a hotel in a country town wished to develop a modern bottle shop in a shopping centre some 350 metres from the hotel, on the opposite side of a public road. The shopping centre had no apparent connection with the hotel. An application to redefine the hotel’s licensed premises to include the proposed bottle shop had been granted by the Licensing Court. All members of the Full Court agreed that the appeal should be allowed and the decision of the Licensing Court set aside. However, the Full Court was not unanimous in its reasons for doing so. Debelle J considered that s 69 of the Act was the only source of power to extend a licence to “adjacent” premises, and because that was restricted to sale of liquor for consumption on the premises, an authority had no power, in similar circumstances, to extend the licence for sale of liquor consumption off the premises. Doyle CJ and Duggan J disagreed, but concluded that the power conferred by s 68 could only be exercised when separate buildings or premises were “close to each other, and when there is good reason to do so in the public interest” (at 190). The majority emphasised the need for premises to be on contiguous parcels of land or at least close to each other. The Chief Justice said (at 191):
“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.”
That formulation is of assistance as far as it goes. It assumes that the components of the redefinition were, before the application, properly regarded as separate premises. But it also assumes that they could remain separate premises after the redefinition. That is not something which the Act permits. There is nothing to prevent a redefinition application being successfully brought in respect of what, prior to the application, are separate premises. What is not clearly stated by the majority in the Angas Park Hotel Case, what I believe the Act requires, and what this Court should now make clear, is that the resultant combination, however it is effected, can properly be regarded as comprising the same premises in its ordinary meaning and in the sense which I have discussed. Those premises must also constitute an extension or redefinition of the original licensed premises.
Closeness of the components to each other, whether they are adjacent or contiguous, or whether they appear to constitute one place of business will be important but not exclusive indicators of whether the new components comprise the same premises. Other factors may also be important.
It will be apparent from what I have said that the appeal in this case must be allowed. The existing hotel together with the proposed bottle shop premises could not, on any view, be regarded as comprising the same premises. The two areas are physically separated by other buildings. The proposed components plainly lack that degree of integrity such that one could describe them as comprising the same premises. To grant the application would be tantamount to granting a fresh licence in respect of new premises for the proposed bottle shop without the licensing authority having to consider the many other factors required to be considered on the granting of such a licence (see especially s 58).
The first respondent, at the hearing in the Licensing Court, relied heavily on proposals for what were said to be complementary signs. However, such signs cannot, of themselves, convert to a single set of premises what are otherwise two plainly distinct premises. Even the evidence as to the nature of the proposed signs was vague and imprecise.
There is even good reason to believe in this case that the perception would be of two quite separate businesses being carried on in the respective premises. The first respondent had been substituted as applicant in an application initiated by the previous licensee of the hotel. The evidence showed that the first respondent had not only acquired the business of the hotel and the licence, but had acquired “the agreement to lease the shop and taking over the ownership of the business name for the shop, Aberfoyle Hub Cellars”. That is not the name under which the hotel trades. There was no evidence to suggest that the two premises would even be trading under the same name. Indeed, the inference to be drawn from that evidence is to the contrary.
The application did not qualify as a proper redefinition application under s 68 of the Act. It is therefore not necessary to consider the arguments put to us concerning matters of public interest and whether or not it was impracticable to provide adequate and contemporary bottle shop facilities in the existing premises. However, I would want to dispel any suggestion which might arise from the Angas Park Hotel Case that consideration of the public interest will be a necessary component of every application under s 68 of the Act. If an application qualifies for consideration under s 68 in the sense that the altered or redefined premises will constitute one set of premises, being the same premises as were previously the subject of the licence, the court will obviously have to be satisfied as to the matters referred to in s 68(2). Subject to that, however, s 53 of the Act would appear to ensure that the discretion of the licensing authority to grant or refuse the application is at large, and does not necessarily require the satisfaction of any “public interest” requirement.
Having said that, however, it must be recognised that s 68 applies to a great many possible circumstances. It applies to a situation where a bar area of a hotel may be extended by a matter of a few metres, or the wall of a dining room may be extended to accommodate more tables. It also applies to an application involving the conversion of a small heritage‑listed two bar tavern to become the entrance lobby of a modern hotel containing four different bars and lounges, a nightclub, various dining areas, a drive‑in and walk‑in bottle shop and a range of accommodation. Those contrasting applications will require very different considerations. The discretion must be exercised having in mind s 3 (Objects) of the Act. That section requires certain requirements of public interest to be observed. However, in the first case I described, matters of public interest reflected in s 3 of the Act will probably have little bearing. On the other hand, an application of the second type may well require to be treated in much the same way as an application for a new hotel licence at the same location.

It is sufficient to say that, for the reasons I have given, the public interest does not arise in this case, and in my opinion it did not properly arise in the Angas Park Hotel Case.
In my opinion the appeal should be allowed, the decision and order of the Licensing Court set aside, and the first respondent’s application dismissed.

[2000] SASC 123

18 May 2000