Trensilk Holdings Pty Ltd v Ettamogah Pub (Morley) Pty Ltd - [2000] WASCA 254

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: TRENSILK HOLDINGS PTY LTD -v- ETTAMOGAH PUB (MORLEY) PTY LTD [2000] WASCA 254

CORAM: IPP J
PARKER J
MILLER J

HEARD: 14 AUGUST 2000

DELIVERED : 12 SEPTEMBER 2000

FILE NO/S: FUL 201 of 1999

BETWEEN: TRENSILK HOLDINGS PTY LTD
Appellant (Objector)
AND
ETTAMOGAH PUB (MORLEY) PTY LTD
Respondent (Applicant)

Catchwords:

Liquor licensing - Application for re-definition of licensed premises - Premises demolished - Whether open to re-define - Application to convert hotel licence to tavern licence - Whether evidence to support finding no longer significant need for residential accommodation - Failure to apply proviso to section as to whether no useful purpose to be served by continuance of requirement - Conclusion of appeal court on issue

Legislation:

Liquor Licensing Act 1988, s 28(2), s 31(3), s 32, s 32(5), s 41, s 66, s 68(1)(b), s 77, s 80, s 90, s 91, s 92, s 93(1), s 94

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Objector) : Mr M J Buss QC
Respondent (Applicant) : Mr C J L Pullin QC

Solicitors:

Appellant (Objector) : G D Crocket & Co
Respondent (Applicant) : Gadens Lawyers

Case(s) referred to in judgment(s):

Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321
Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407
Liquor Stores Association of WA (Inc) v Manya Holdings Pty Ltd [2000] WASCA 21
Tapp v ALH Group Pty Ltd, unreported; FCt SCt of SA; BC 200002598; 18 May 2000

Case(s) also cited:

Mullen Ex parte; Re Hood (1935) 35 SR (NSW) 289
Farnworth Pty Ltd & Ors v Royal Oak Pty Ltd, unreported; FCt SCt of WA; Library No 930295; 25 May 1993
Hay Properties Pty Ltd v Roshel Pty Ltd, unreported; FCt SCt of WA; Library No 980496; 20 July 1998
Liquor Stores Association v Angas Park Hotel Pty Ltd [1999] SASC 230
Liquorland (Australia) Pty Ltd v Austie Nominees Pty Ltd (1999) 20 WAR 405
Minister for Immigration v Eshetu (1999) 197 CLR 611
Re Evans [1902] 28 VLR 413
Re Fiver Pty Ltd, ex parte The Cabaret Owners Association of Western Australia Inc & Ors, unreported; FCt SCt of WA; Library No 8001; 21 December 1989
Re Lakers Tavern (1999) 21 SR (WA) 226
Re Old Baley Tavern (1997) 17 SR (WA) 62
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

IPP J: I agree with the reasons of Miller J and have nothing further to add.
PARKER J: I agree with the orders proposed by Miller J and with his reasons for decision.
MILLER J: On 16 February 1959 there was granted in respect of the Morley Park Hotel a hotel licence. That licence subsisted as a hotel licence during various repeals and re‑enactments of liquor licensing legislation, until by 20 February 1995 Austotel Trading Pty Ltd ("Austotel") was the holder under s 41 of the Liquor Licensing Act 1998 ("the Act") of the hotel licence in respect of the premises. The licence document (No 601‑0186‑7) describes the licensee as Austotel; the name of the premises as Morley Park Hotel and the address of the premises as Walter Road, Morley. An approved manager is nominated. By the licence, the licensee was authorised to sell liquor at the licensed premises described in accordance with the provisions of the Act. The licence was stated to continue in force until surrendered, suspended or cancelled under the Act. The licence document reveals that it was in fact suspended pursuant to s 92 of the Act with effect from 20 February 1995.
The provisions of s 41(2) of the Act provide that during permitted hours (in this case Monday to Saturday 11 am - 7 pm), the licensee of a hotel licence is authorised to keep open the licensed premises or part of those premises and while they are open is required to sell liquor on the premises to any person for consumption on the premises and to sell packaged liquor on and from the premises to any person. There are various other provisions within the section which deal with accommodation and meals.
Nowhere in the licence document are the licensed premises defined by reference to any plans and/or specifications or even drawings. The only definition of the licensed premises is "Morley Park Hotel" at Walter Road, Morley. However, the provisions of s 31(3) of the Act provide that a licence authorises the holder to sell and supply liquor in accordance with its terms "from the buildings or places referred to in the licence or otherwise as provided in the licence". The term "licensed premises" is defined in the Act to mean the premises specified or defined by the licensing authority in relation to a licence. The word "premises" is also defined in the Act. It includes land.

Pursuant to s 66 of the Act, any application for the grant of a licence must be accompanied, unless the Director otherwise approves, by plans of the premises to which the application relates. Specifications complying with such requirements as may be prescribed are to be submitted with the plans to which they relate: s 66(5). It follows that upon the grant of a licence there will be (unless there is some special reason to the contrary) plans and specifications which identify and define the licensed premises.
Section 66(1)(c) provides that on an application for approval of a proposed alteration to or redefinition of licensed premises, there will be accompanying that application the appropriate plans of the premises to which the application relates. Specifications will, by reason of s 66(5), also be required. Similar requirements are set out in s 68(1)(b), which itemises the documents required to accompany any notice of application.
The grounds upon which a licence may be suspended are set out in s 90, s 91 and s 92 of the Act. Under s 90 the Director, on informal application in writing being made by the licensee, may suspend the operation of any licence temporarily or otherwise for such period as he thinks fit and the licence shall thereupon be deemed to be varied accordingly. There may be a temporary suspension where by reason of fire; unforeseen or unavoidable calamity; repair; rebuilding; or requirement for use for any public purpose, the licensed premises are either wholly or partially rendered incapable of use for the business carried on there under the licence: See s 90(a) and s 80. Alternatively, under s 92 the Director may suspend the operation of a licence if it appears that the licensee has ceased to carry on business at the licensed premises.
It appears that by letter dated 17 February 1995 Messrs Jackson McDonald, acting for Austotel, advised the Director that the owners of the Morley Park Hotel were determining the lease of the hotel to Austotel and intended to re‑enter. Austotel sought suspension of the licence on and from the close of business on 19 February 1995. By decision of the Director dated 21 February 1995, he declared himself satisfied on the information before him that Austotel had ceased to occupy or carry on business at the licensed premises and therefore, pursuant to s 92 of the Act, operation of the hotel licence in respect of the Morley Park Hotel was suspended with effect from 20 February 1995. Thereafter, on 13 August 1997, the licence was transferred from Austotel to Muirwill Nominees Pty Ltd and thence (on 20 January 1998) to Westfield Shoppingtown Carousel Pty Ltd. Later in the same year, on 28 October 1998, the licence was transferred to the respondent. These transfers were effected notwithstanding the suspension of the licence because under s 32 the licence continued in force for all purposes unless either surrendered under s 94 of the Act or cancelled by the licensing authority under the Act.
Some time during the suspension of the licence (between March 1995 and December 1996) the Morley Park Hotel was demolished. The demolition did not, however, affect the validity of the licence as premises are defined to include land, and the licence subsisted during its suspension.
On 19 October 1998 the respondent made application under s 77 of the Act to alter and redefine the licensed premises. Whilst s 77 defines an alteration for the purposes of the section to comprise or consist of a material change, whether structural, decorative or otherwise affecting the premises, the application to the Director appears in truth to have been one to redefine the licensed premises as defined in the licence. Section 77(4) provides:
"(4)On application in writing being made by the owner or occupier of the licensed premises, or by the licensee with the consent of the owner and any lessor, the licensing authority may approve -
(a)a proposed alteration of licensed premises; or
(b)unless section 80 applies, the redefinition of the licensed premises as defined in the licence."
Nevertheless, the Director referred to the application as one for alteration and redefinition. There was also an application to change the hotel licence so that it had effect as a tavern licence. In a written decision dated 26 May 1999 the Director noted that the site at Walter Road, Morley was "the same location as the demolished Morley Park Hotel and it is currently used for carparking purposes". He went on to say:
"The proposal is to build premises that reflect the "Ettamogah Pub" concept. The concept is based upon a popular cartoon which features an outback pub with distinctive architectural features. That concept has been acquired by the applicants and developed in Sydney as a theme tavern/restaurant. This proposal is the first establishment of the concept in Western Australia. The Ettamogah Pub, if established at this site, will be approximately one third of the size of the Morley Park Hotel.
…
There is an application to re‑establish a hotel (to have effect as a tavern) on part of the same site as was the original hotel. The intention is not to build an identical replica of the original hotel, but to erect a totally different hotel. The Act requires that an application be made to alter and vary the plans that currently identify the original licensed premises."
The Director considered the application to have merit and granted the application "to alter and redefine the licensed premises in accordance with the plans submitted on 19 October 1988". He also granted the application to have the hotel licence changed to a tavern licence, terminating licence 601‑0186‑7 and issuing tavern licence no 602‑4854‑6. The name of the premises was also changed from Morley Park Hotel to Ettamogah Pub.
It is difficult to see how the application before the Director could have been categorised as a proposed alteration of licensed premises, as the building constituting the licensed premises had already been demolished and s 77(3)(a) would appear to define an alteration as something less than a demolition. It appears in truth that the Director approved a redefinition of the licensed premises within the meaning of s 77(4)(b). That was the way the Liquor Licensing Court Judge treated the matter when called upon to review the decision of the Director. His Honour said that the respondent had applied to the Director by notice dated 19 October 1998 "for the approval of a redefinition of its licensed premises". His Honour pointed out that the application to the Director was subject to s 77(5) which provides that the licensing authority shall not approve an application made under s 77(4) unless satisfied that all other approvals, consents or exemptions required by law in respect of "that alteration" have been obtained and, if so satisfied, may vary the terms or conditions of a licence accordingly. It is to be observed that there is no reference to "redefinition" in s 77(5) but only to "alteration". This was contended by counsel for the respondent to have been a slip or oversight when the subsection was drawn, and I agree. In the end, the omission of the word "redefinition" in s 77(5) does not, in my view, matter.
Before the learned Judge it was argued that since the former hotel buildings had been demolished prior to the application for redefinition, it was not open to the court to approve the redefinition sought. The submission made to the learned Judge was that there were no licensed premises in existence capable of being redefined. This submission the learned Judge refused to accept. He said:
"In my opinion, the proposed redefinition of the licensed premises in this case is a redefinition of the premises to which the hotel licence formerly related, notwithstanding that in part it extends beyond the site of the buildings which were formerly erected on the land. In the absence, therefore, of any fact or facts which should lead to the refusal of the application in the public interest, I am of the opinion that the Director was correct to conclude that the application should be approved. In my opinion, no removal of the licence was required. If I am wrong in this conclusion, I am of the opinion on the evidence in this case that the Director should approve removal of the licence."
His Honour was also asked to review the Director's approval of conversion of the hotel licence to a tavern licence. The decision of the Director was confirmed by his Honour who said:
"Finally, counsel for the applicant submitted that the court should not approve the conversion of the hotel licence to a tavern licence under s41(6) of the Act. In this regard, the Director observed:
'The question of accommodation being available to the public is one that has been considered by this authority in a number of instances where hotels have sought approval to dispense with the accommodation requirement of a hotel licence. The emergence of specialist accommodation facilities such as motels, both licensed and unlicensed, has removed the need for short stay accommodation at many metropolitan hotels. Unless the hotel actively promotes its accommodation facilities, the occupancy rate is usually quite small. There is no evidence to suggest that short stay hotel accommodation is not being provided for within reasonable proximity of the Morley area.'
In my opinion, the evidence in this case is sufficient to establish on the balance of probabilities that there is no longer a significant need for the type of residential accommodation previously provided by the Morley Park Hotel."
By notice of appeal proposed to be amended, the appellant contends that the learned Judge erred in law in three respects:
(1)in finding that a redefinition application under s 77 of the Act may be made in respect of licensed premises which have been demolished.
(2)in concluding that if he was wrong in his conclusion that the premises could properly be redefined, it was open to the Director to approve the respondent's application as a "removal" application.
(3)in finding that the evidence was sufficient to establish on a balance of probabilities that there was no longer a significant need for residential accommodation of the type provided by the hotel.
The grounds of appeal are more detailed than the brief summary I have set out above. They include the assertions that, in relation to the treatment of the matter as a "removal" application, it was not reasonably open to the court to make such a finding, and in relation to the insufficiency of evidence that there was no longer a significant need for residential accommodation that it was not reasonably open to the court to make the finding, and/or there was a further error in that the learned Judge failed to make any finding in terms of s 41(6) of the Act as to whether or not any useful purpose would be served by the continuance of a requirement to provide residential accommodation. Objection was taken to proposed amendments to the grounds and the decision of the court was reserved in relation to the matter.
The appellant's argument before this Court was that any alteration or redefinition of licensed premises can only be approved if that alteration or redefinition is in respect of the same premises. That is, the redefined premises must be or form part of the same identifiable premises in respect of which the licence is granted. It was put that the premises may be redefined by extension, contraction, rearrangement or by addition of a new building, but the physical features must remain part of the same premises and cannot be different or separate premises. If the proposed redefined premises cannot properly be regarded as part of or an extension of the licensed premises, then (it was contended) any application for redefinition must fail. Reliance was placed upon Tapp v ALH Group Pty Ltd, unreported; FCt SCt of SA; BC 200002598; 18 May 2000, where Bleby J dealt with the question whether, under the provisions of s 68 of the Liquor Licensing Act 1997 (SA) ("the South Australian Act"), premises not being contiguous were sufficiently close to existing premises to constitute a legitimate redefinition of premises.
The Liquor Licensing Act 1997(SA) has a number of provisions which are in similar terms to the Act. In particular, "licensed premises" are defined as follows:
'licensed premises' means premises in respect of which a licence is in force and includes premises for which the licence is currently under suspension;
"Premises" are defined in this way:
'premises' includes ‑
(a)land;
(b)any building or structure on land;
(c)a public conveyance;
(d)a part of premises
Section 68 of the South Australian Act 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."
In Tapp v ALH Group Pty Ltd (supra) at [23] Bleby J said:
"[23] It follows from what I have said that the proper interpretation of s68 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."
The decision in Tapp v ALH Group Pty Ltd (supra) was not concerned with the situation in which the building which constituted the licensed premises had been demolished. It was concerned with an application to redefine by inclusion within licensed premises a separate walk‑in bottle shop located in one of the shops in the shopping centre in which the relevant tavern was located. This area was on the opposite side of the shopping centre from that adjacent to the tavern and was adjacent to a carpark quite separate from another carpark nearer the tavern. The distance from the proposed retail shop to the nearest land boundary of the tavern was some 70 metres, most of which could be traversed through a covered walkway, and the distance from the proposed shop to the nearest public entrance to the tavern was approximately 100 metres. The Court decided that the application in question did not qualify as a proper redefinition application under s 68 of the Act. Bleby J did not advert to the situation where the building comprising the licensed premises has been the subject of demolition and another but different building is to be erected on the same land. If, however, his Honour's remarks are to be taken as meaning that redefined premises must be or form part of the same "identifiable premises" in the sense that they must be or form part of the same building which constitutes the licensed premises, for the reasons which follow I respectfully disagree with the conclusion reached. Shortly stated, those reasons are that because the licence, if suspended, continues in force in relation to the land to which it applies, the retention of the "same identifiable premises" is unnecessary in a case of redefinition.

Central to the respondent's submissions is that when the application for redefinition was made by the respondent on 19 October 1998, the Morley Park Hotel's licence continued "in force", notwithstanding the fact that the hotel no longer existed. That was because the licence had not been cancelled or surrendered and therefore remained in force under s 32(5), which provides that a licence, the operation of which is suspended, continues in force and is capable of being removed or transferred but does not during the period of suspension authorise the sale of liquor. Counsel for the respondent pointed out that the suspended licence was susceptible to cancellation under s 93(1) if the licensee did not intend to resume the business carried on in the premises or on the site of the premises for which the licence had been granted. Pursuant to that section, it is the Director who, after having given the licence‑holder a reasonable opportunity to make submissions or to be heard, may cancel the licence in the circumstances which are there set out. This section was said by counsel for the respondent to show that parliament clearly contemplated the possibility that the building, the subject of the licence, may no longer exist (thus the reference to "the site of the premises").
Counsel further submitted that the existence or non‑existence of the building which constituted the licensed premises was of no relevance to an application for redefinition under s 77(4), as the section makes reference to redefinition of "the licensed premises as defined in the licence", saying nothing in relation to continued existence of the building. It was contended that the respondent's application had resulted in a redefinition of "the licensed premises as defined in the licence" although, as I have previously pointed out, there is in fact no definition of the licensed premises in the licence to which we were referred. The only definition is "Morley Park Hotel", although by inference it must be that the licensed premises are those which were the subject of the plans and specifications which accompanied the application for the licence and in relation to which approval was given.
In my view it was open to the Director to allow a redefinition of the licensed premises in this case, and to the extent that the learned Judge upheld the decision of the Director in that regard it was correct. Although the Act makes no provision for circumstances in which the licensed premises are demolished, the definition of "premises" includes land and the licence in this case clearly continued in force unless it was surrendered or cancelled (s 32(1)). Although suspended under the provisions of s 92, the licence continued in force and it was in fact transferred during the period of its suspension. Being suspended, the licence was capable of reactivation and (by application under s 77(4)) allowed for a redefinition of the premises as defined in the licence. If nothing had been done it was susceptible to cancellation under s 93(1).
Any concern that a redefinition of the licensed premises might lead to the substitution of an entirely different liquor outlet, with consequential increases in actual or potential liquor sales, is dealt with in s 77(6). This section provides that where the director is satisfied that an alteration of the licensed premises or redefinition proposed is likely to lead to a substantial increase in actual or potential liquor sales and to reduce significantly actual or potential liquor sales under a similar licence held by other persons, the applicant may be required to advertise under s 67 of the Act. The result will be that the provisions of s 68 et seq, which relate to intervention and objection, will become relevant. If, therefore, the nature of the rebuilding in question in this case is such as to bring about a dramatic change in actual or potential liquor sales from the site of the former Morley Park Hotel, the Act provides the necessary safety valve to accommodate objections in that regard.
In my view, the scheme of the Act allows for the demolition of licensed premises and for an application for redefinition of those premises by the construction of new premises. It would be an absurdity if the licensee was required to rebuild precisely those premises which had been demolished when nothing in the Act suggests such a requirement. To the contrary, the safeguards that I have identified suggest that parliament envisaged that licensed premises might, in the event of a lapse of time of some 40 years (as in this case), require demolition and rebuilding in a different style. The safeguards for other licensed premises and the public where a proposed redefinition is likely to lead to a substantial change in the level of liquor sales are present within the Act itself.
The submission of the appellant that the respondent was called upon to make an application for temporary removal of the licence under s 80 of the Act cannot be correct. Apart from the fact that it would seem inherently wrong to suggest that one could remove a licence from the same site and reinstate it at that site, the provisions of s 80 of the Act clearly envisage temporary removal of a licence to "some other portion of the premises or to other premises in the vicinity".
In my view the first primary ground of appeal (ground 2 in the minute of amended notice of appeal) should be dismissed. It follows from this that the second primary ground of appeal (ground 3 in the minute) need not be considered. The question whether or not the learned Judge could properly treat the application for redefinition as a "removal" application does not arise. It is therefore unnecessary to consider whether the proposed amendment to ground 3(d) should be allowed.
This leaves the third primary ground of appeal (ground 4 in the minute) which contests the learned Judge's decision that on the balance of probabilities there was no longer a significant need for residential accommodation at the site of the Morley Park Hotel, and that the hotel licence should be converted to a tavern licence under s 41(6). The ground of appeal asserts that the learned Judge erred in law in finding that there was sufficient evidence to establish on the balance of probabilities that there was no longer a significant need for the residential accommodation, and adds that the learned Judge did not address the requirements of s 41(6)(a) and (b) of the Act. The ground contends that (i) it was not reasonably open to the court to make the finding; and (ii) there was an error in law in that there was a failure to make any finding in terms of s 41(6) of the Act as to whether or not any useful purpose would be served by the continuance of a requirement to provide residential accommodation. The latter two contentions are the subject of proposed amendments to the ground of appeal. These amendments are objected to by the respondent on the basis that the appellant's ground of appeal is an attempt to review the case on the merits. It is put that as there is no question of law before this Court (required by s 28(2) of the Act as a prerequisite to any appeal) the ground of appeal is incompetent.
The question whether in this case the decision of the learned Judge to uphold the conversion of the hotel licence to a tavern licence involves an error of law is governed by the observations of Mason CJ in Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 at 355 ‑ 6 where his Honour said:
"The question whether there is any evidence of a particular fact is a question of law: McPhee v. S Bennett Ltd; Australian Gas Light Co v Valuer‑General. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light; Hope v Bathurst City Council. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden.
But it is said that '[t]here is no error of law simply in making a wrong finding of fact': Waterford v The Commonwealth, per Brennan J. Similarly, Menzies J. observed in Reg v District Court; Ex parte White:
'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law.'
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."
There is clearly a distinction between the question of whether a particular inference can be drawn from facts found and the making of an unreasonable decision. The latter is not an error of law. It was so held by Fox, Deane and Morling JJ in Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 at 410 ‑ 411.
"A number of authorities were cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found those propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence, belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses (see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975). An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based."
In the present case the learned Judge had before him a memorandum from the Premises Inspector of the Office of Racing, Gaming and Liquor which constituted a report on the application to re‑establish the licensed premises as a tavern. By s 16(1)(b) of the Act it was open to the learned Judge to accept and act on the information in such a report. The Premises Inspector said:
"As the application also requests the premises be changed from a Hotel licence to a Tavern licence the need for accommodation in the area may require addressing, although the licence has been suspended since 20th February 1995.
Hotels near this location are
The Hotel Alexander - Licence 601 0145 3
Bayswater Hotel - Licence 601 0109 9
These hotels when phone surveyed indicate that The Hotel Alexander has an occupancy average of approximately 70‑80%.
The Bayswater Hotel varies from, for instance 14th November 1998, 100% to average 50% during the week. On these figures I do not consider that there is any further need for additional accommodation in the area of this licence."
There appears to have been no other evidence before the learned Judge on the issue. In particular, there were no submissions on the part of any objector on the subject.
It was on this evidence that the learned Judge said that the evidence was sufficient to establish on the balance of probabilities that there was no longer a significant need for the type of residential accommodation previously provided by the Morley Park Hotel. In my opinion there was material before the learned Judge which entitled him to draw the conclusion that he did. This is not a case in which it can be argued that there was no evidence at all, or that no inference could properly be drawn by the learned Judge from the facts found by him. To the contrary, it seems to me that the submission of the appellant is that the conclusion of the learned trial Judge was "against the evidence" or "against the weight of the evidence". That being so, the question is one of fact not law. There was in this case at least some basis for drawing an inference or conclusion that there was no longer a significant need for the type of residential accommodation previously provided by the Morley Park Hotel. That inference could be drawn because the report of the Premises Inspector revealed that the Hotel Alexander had an occupancy average of only 70 – 80 per cent, and the Bayswater Hotel one of 100 per cent to an average of 50 per cent during the week. Both hotels were in the location of the Morley Park Hotel.
I am therefore of the view that the respondent is correct in its contention that the appellant has sought to review the decision of the learned Judge on the merits and there is therefore no question of law which arises.
When the Director considered the question he did apply the wrong test. The question he resolved was whether there was evidence "to suggest that short stay hotel accommodation is not being provided for within (a) reasonable proximity of the Morley area". This was not the question, as s 41(6)(a) clearly reveals. However, the appeal to this Court is not against the decision of the Director. The Director's decision was quoted by the learned Judge, but the learned Judge asked himself the correct question, namely, whether the evidence in the case was sufficient to establish on the balance of probabilities that there was no longer a significant need for the type of residential accommodation previously provided by the Morley Park Hotel. Unfortunately, the learned Judge did not go on to consider an additional test contained within the proviso to s 41(6). That is, he did not consider whether "in consequence no useful purpose will be served by the continuance … of a requirement to provide residential accommodation". Again it appears that no submissions were made in relation to this issue by any party before the learned Judge and there is nothing in the materials to indicate that anybody has addressed the question by way of report or otherwise.
It is possible to envisage circumstances in which there might not be a significant need for residential accommodation in the locality, but a useful purpose might be served by the continuance of a requirement to provide residential accommodation. A hotel adjacent to an airport, railway station or bus station might serve a useful purpose in providing residential accommodation, notwithstanding that there is no significant need for residential accommodation in the locality. To this question the learned trial Judge clearly failed to address his attention. It may be that he considered the answer to it was bound up with his conclusion in relation to s 41(6), but the question was one which needed to be considered.
It would be open to this Court to remit the matter to the learned Judge to determine the question, but it seems to me that it is open to the Court to reach a conclusion on the materials whether "in consequence no useful purpose will be served by the continuance of a requirement to provide residential accommodation" at the Morley Park Hotel. There being no evidence to suggest that any useful purpose would be served by the continuance of such residential accommodation, and there being evidence that sufficient hotel accommodation exists at other hotels in the locality, it seems to me that there would in fact be no useful purpose served by the continuance of the requirement.
A plan of the "affected area" annexed to the application for redefinition prepared by Thompson Ong & Associates (Architects & Planners) reveals the site of the Morley Park Hotel to be in the heart of a residential area and adjacent to a major shopping precinct constituted by the Morley Galleria. The Thompson Ong report reveals under the heading "Location Factors and Town Planning Issues" that in 1990, the Department of Planning and Urban Development released "Metroplan", a planning strategy for the growth of the Perth Metropolitan Region. Morley was designated a Strategic Regional Centre targeted for major growth. Morley was envisaged providing a range of shopping, office, administrative, social, entertainment, recreational and community services and developing as a major employment centre. Strategic Regional Centres are a preferred location for primary road, rail station and major public transport services, and it does appear from the Thompson Ong report that in the "affected area" (a five kilometre radius circle centred on the site of the Morley Hotel) there is a network of roads of regional significance and a railway reserve in the south east. That railway reserve is the Perth ‑ Midland railway line which runs through Maylands, Bayswater, Ashfield and Bassendean along Guildford Road, Whatley Crescent and Guildford Road. Immediately adjacent to the railway line at Bayswater is the Bayswater Hotel where the Premises Inspector has reported a "100% to average 50% during the week" accommodation rate. On this evidence I conclude that no useful purpose would be served by the continuance of a requirement to provide residential accommodation at the site of the Morley Park Hotel.
Sections 41(6)(a) of the Act speaks of a significant need for residential accommodation in the "locality". The proviso speaks of "no useful purpose (being) served by the continuance … of a requirement to provide residential accommodation", which must mean "in the locality".
In a supplementary submission made by the respondent, reference was made to Liquor Stores Association of WA (Inc) v Manya Holdings Pty Ltd [2000] WASCA 21, where consideration was given to the meaning of "affected area" as that term is used in s 38 of the Act. Murray J at [26] appears to have considered there to be a distinction between the affected area and the locality, referring to "locality based consideration" in contra‑distinction to the affected area. However, nothing in the case suggests that the court considered any point of distinction between the terms "affected area" used in s 38 and "locality" used in s 41(6)(a).
The respondent submitted that "locality" as used in s 41(6)(a) is something less than "affected area", and this may be so. However, it is unnecessary to deal with the issue, as there was in the present case nothing to suggest that either in the affected area or locality any useful purpose would be served by the continuance of a requirement to provide residential accommodation at the Morley Park Hotel.
For the reasons that I have given I would refuse the application of the appellant for leave to amend ground 4(b) of the amended notice of appeal but allow the amendment to grounds 4(a) and (c). I would dismiss the appeal on all grounds advanced.