Woolies Liquor Stores Pty Ltd v Liquorland (Aust) Pty Ltd No. Scciv-03-878

WOOLIES LIQUOR STORES PTY LTD v
LIQUORLAND (AUSTRALIA) PTY LTD
[2004] SASC 112
Full Court: Prior, Debelle and Bleby JJ

PRIOR J: I agree with Justice Debelle. The appeal should be dismissed.
DEBELLE J. On 11 December 2002 Woolies Liquor Stores Pty Ltd (“the appellant”) applied for the grant of a retail liquor merchant’s licence in respect of premises which form part of a shopping centre at Northgate. Liquorland (Australia) Pty Ltd (“Liquorland”) objected to the application. On 27 June 2003 the Licensing Court refused the application. The appellant appeals by leave to this Court against the decision of the Licensing Court.
The essential issue before the Licensing Court and on this appeal is whether the Licensing Court judge has correctly applied the provisions of s 58(2) of the Liquor Licensing Act 1997 which provides:
“(2) An applicant for a retail liquor merchant’s licence must satisfy the licensing authority that the licensed premises already existing in the locality in which the premises or proposed premises to which the application relates are, or are proposed to be, situated, do not adequately cater for the public demand for liquor for consumption off licensed premises and the licence is necessary to satisfy that demand.”
The appellant contends on a number of grounds that the judge failed to do so.
The Northgate Shopping Centre
The Northgate Shopping Centre is at the north western corner of Fosters Road and Folland Avenue, Northgate. It is located in a neighbourhood centre zone. The shopping centre comprises a large Woolworths Supermarket with twelve other tenancies for shops and offices. Other shops include a pharmacy, a video store, a variety and a hardware store, a fast food outlet, a newsagent, bakery, butcher and hairdresser, as well as the proposed liquor store.
The Locality and Licensed Premises
The judge held that the relevant locality was bounded on the north by Grand Junction Road, on the west by Hampstead Road, on the south and east by North East Road and on the east by Sudholz Road. He held that it also included areas close to and on the other side of those roads. One suburb he expressly identified was Clearview on the western side of Hampstead Road. He believed that the most relevant potential customers were those residing in the suburbs of Northgate, Northfield and Clearview. There is no dispute as to the bounds of the locality.
There are no hotels or liquor stores within the locality. All relevant hotels and liquor stores mentioned by the judge are just outside the borders of the locality or in the case of the Bridgeway Hotel about 1.5 kilometres outside it. They are
Hampstead Hotel                 corner Hampstead Road and North East Road
Enfield Hotel  Hampstead Road, Clearview
Bridgeway Hotel                  Bridge Road, Pooraka
Windsor Hotel                   North East Road, Windsor Gardens
O.G. Hotel   North East Road, Klemzig
Liquorland   North East Road, Greenacres
Woolies Liquor Store       Sudholz Road, Gilles Plains.
The judge failed to mention another outlet about which evidence was given. It is a BWS Liquor Store on the eastern side of Main North Road at Enfield. It is outside the locality but serves the Clearview area. The proposed liquor store is in the approximate mid point of the locality.
The judge held that residents of Oakden and Hillcrest would conveniently obtain their liquor at either the Liquorland store at Greenacres or the Woolies liquor store at Gilles Plains. He held that those residing in Greenacres, Manningham and Hampstead Gardens as well as some in Hillcrest would use the Liquorland store at Greenacres. Those suburbs were, the judge held, close to those two outlets which adequately catered for them. The liquor stores at Greenacres and Gilles Plains both form part of shopping centres comprising large supermarkets which would enable those who patronise those centres to have the convenience of one stop shopping. The Greenacres store forms part of a relatively large District Centre with two large supermarkets and a range of other specialty shops. The judge reasoned that the case would turn on “the needs, preferences, demands and difficulties” of residents of Northfield, Northgate and Clearview.
After reviewing the evidence of the so-called needs witnesses, the judge said that he could not find a significant population in the locality who are not catered for by licensed premises already existing in that locality. Although one witness had a journey of some three kilometres in each direction to the nearest liquor store, that witness had a hotel close by which catered for his needs. Although some witnesses had complaints as to difficulty in parking and as to the inconvenience of shopping at the existing outlets, he regarded this as the kind of inconvenience commonly suffered when looking for a car park at a busy shopping centre. He believed that there were more compelling factors than car parking. He therefore concluded that there was no demand which was not being adequately met by existing licensed premises.
The judge then explained his conclusion in a little more detail. He said that he was quite certain that it had not been demonstrated that those living in the suburbs of Oakden, Hillcrest, Manningham, Greenacres and Hampstead Gardens were not adequately catered for by existing premises. There might be, he said, a case for those living in Northgate and Northfield. In the absence of evidence from residents in Clearview, he was not prepared to guess on the position in that locality. He concluded:
“My final view is that whilst more affluent people are coming into the locality the time is not yet when I could confidently say that a need for a wider range has been proven in the case of a significant population. Nor can I say that there is a significant population with real difficulty though I concede that Ms Harvey is representative of some.
I think the application is premature. I do think Coles at Greenacres should, even now, be doing better for the apparently small population who want better. I think Woolworths at Gilles Plains should be providing likewise for that apparently small population as of today. Woolworths cannot “sit on their hands” at Gilles Plains and maintain an average range of liquor and at the same time say that there is a demand for a wider range which they will not meet at Gilles Plains and yet will so meet it at another spot in the locality.
Time will tell whether a new licence ought to be granted but not now.”
The judge refused the application.
The Appeal as to Locality
The first ground of appeal is that the judge erred in having regard to premises outside the locality, namely, the Liquorland store at Greenacres. It was contended that the test in s 58(2) of the Liquor Licensing Act did not permit regard to be had to premises outside the locality.
The question of the relevance of licensed premises outside the locality was considered by this Court in Woolies Liquor Stores Pty Ltd v Seaford Rise Tavern (2000) 76 SASR 290 at 295-297 and at 298-299. The Court held that licensed premises outside the locality may be relevant. The relevance of those licensed premises and the regard to be had to them will depend on a range of factors including their capacity to serve the needs of that portion of the public within the locality. Doyle CJ examined some of the factors at 296:
“Premises outside an identified locality remain relevant to the question that arises under s 58(2). First of all, applying reasoning of the type used in Lincoln Bottle Shop, a demand met outside the locality without any discontent at all, or at least by choice, would not be a relevant demand. Secondly, for reasons identified by Bray CJ and von Doussa J, the process of identifying a locality cannot be allowed to dictate an artificial approach to deciding whether a grant of a licence is necessary to satisfy the relevant public demand. The identification of a locality is usually a necessarily imprecise process. A particular boundary must be identified in most cases, but the identification of that boundary does no more than identify in a general way the locality from which the relevant public demand arises: Nepeor at 216 von Doussa J. The effect of s 58(2), as with earlier provisions, is to focus attention upon a locality in which a demand is expressed and upon the facilities available at premises in that locality, but not to do so in an artificial sense, but rather by way of directing primary consideration to these matters. It should not be overlooked that s 58(2), after the reference to whether existing facilities adequately cater for public demand, goes on to provide that the licence will not be granted unless the court also concludes that “the licence is necessary to satisfy that demand”. Consideration of the ability of the facilities in the locality to cater for the demand in the locality is not the end of the matter. The grant of the licence must be necessary to satisfy the demand. Section 58(2) is not concerned solely with the ability of premises in a locality to meet the public demand in that locality. It requires a wider consideration of the means by which that demand is or can be satisfied. It is also relevant to bear in mind that in most cases, although not all cases, however the locality is identified there will be shopping facilities and licensed premises not far from the extremities of the locality which will in fact be playing a part in meeting the demands of people within the locality. It will also often be the case that, however the locality is identified, for a fair number of people in the locality, shopping facilities and licensed premises not far outside the locality will actually be closer and more convenient than the applicant’s premises. When an application is made for a licence, the focus is naturally upon the applicant’s proposed premises. There is a natural tendency to draw the locality around and by reference to those premises. This should not lead the court to ignore the relevance of shopping facilities and licensed premises outside the locality. As King CJ said in Nepeor at 206-207, with reference to a similar provision in the Licensing Act, and its use of “locality”:
“… Its purpose is simply to focus attention upon the local, as distinct from purely general, character of the public demand with which the section is concerned. It is unnecessary, and indeed futile, to attempt to delineate by boundaries the area within which the relevant public demand is to be looked for. The concept is simply that of demand which might be expected to be met at least in part by the proposed licensed premises.”
Debelle J put the position in these terms at 299:
“When determining whether a demand exists, and the nature of that demand, regard will be had to licensed premises within the locality and those outside the boundaries of the locality which serve the demand in the locality. In the usual case, those premises will be close or relatively close to the boundaries of the locality. Regard will be had to them because they may well serve the public in that locality: compare Bray CJ in Hoban’s Glynde Pty Ltd v Firle Hotel Pty Ltd (1973) 4 SASR 503 at 512 and Nepeor v Liquor Licensing Commissioner (1987) 46 SASR 205 per King CJ at 206. A simple example illustrates the proposition. It may be possible to define a locality in which no licensed premises are to be found but there may be excellent hotels and bottle shops close to each boundary of the locality which adequately caters for the demand in that locality. It is true, as Mr Walsh contends, that premises outside the identified locality may be less significant than premises within the locality. However, for the reasons expressed, it does not follow that regard should not be had to those premises. The extent to which premises outside the locality may be relevant will depend on a number of factors including their proximity and convenience to the public whose demand has been expressed and the quality of the services provided. Both issues are relevant when assessing the demand and determining whether it is being catered for by existing premises.
Although the task of defining a boundary is frequently undertaken in applications for retail liquor merchant’s licences, the limitations inherent in a defined locality must be recognised. First, it is a somewhat artificial concept since there are obvious difficulties in defining the locality with precision. The locality in which the demand exists is not capable of precise delineation. Secondly, the purpose of defining the locality is not to fix lines on a map but rather to focus attention upon the local, as distinct from the purely general, character of the public demand with which s 58(2) is concerned: per King CJ in Nepeor v Liquor Licensing Commissioner at 206. This necessarily imprecise process is no more than a means to the end of identifying the relevant public demand and the relevant licensed premises.”
There was a faint suggestion in the argument of Mr Beazley QC, who appeared for the appellant, that the decision in Seaford Rise Tavern was inconsistent with that in Tomley Investment Company Pty Ltd v Victoria (Tapleys Hill) Pty Ltd (1978) 17 SASR 584. The submission misconceived the effect of the reasons in Tomley. What was criticised in that case was a reliance on premises quite distant from the locality. In Seaford Rise Tavern, the Court was concerned only with licensed premises just outside the locality and reasonably proximate to members of the public within the locality. The question whether licensed premises are reasonably proximate is of course a question of fact and degree in each case.
Mr Beazley QC also submitted that the judge had failed to apply the test first expressed by Bray CJ in Blackwood Foodland Pty Ltdv Milne [1971] SASR 403 at 409 and affirmed in Tomley Investments (supra) at 594 and 598 that the question is whether the demand is habitually and contentedly met by supply outside the locality. I do not agree. Although the judge has not expressly referred to that test, a reading of his reasons makes it quite apparent that he is applying it.
A Premature Application?
As I read the judge’s reasons he said that the appellant failed to satisfy each of the requirements of s 58(2). He was not satisfied there was a sufficient demand at this site and, secondly, such demand as did exist was capable of being met by existing licensed premises in the locality. For the reasons which follow it has not been demonstrated that he was wrong in reaching that conclusion.
The appellant appealed against the finding that the application was premature. The appellant relied on the demographic evidence which had been led that the site of the shopping centre was the only place in the locality where a shopping centre could be established, that all roads led to that centre, and the fact that the centre had recently commenced trading, causing people in the locality to change their shopping habits.
In my view the demographic evidence supported the judge’s conclusion. It supported his view that the developed areas of Oakden, Hillcrest and Greenacres were already met by existing facilities.
The Northgate Shopping Centre forms part of an area formerly used by the State Government which is now being redeveloped for residential use. The redevelopment of Northgate, which is on the northern side of Folland Avenue, commenced in 2000. It is proceeding in stages. At the time of the application it was less than half complete. At the time of the application 300 new houses were being completed, occupied by some 800 persons. Further residential development was proposed on the southern side of Folland Avenue in the area of Northfield. At the time of the application it was still being planned. Ultimately by about 2008 there will be a total of 5,000 residing close to the Northgate Shopping Centre in the areas of Northgate and Northfield.
The Northgate Shopping Centre is not the only shopping centre for residents at Northgate. It does not have the range of shops and other services provided at other larger shopping centres in the locality. At Greenacres there is the large district centre which is intended to serve the locality. In addition, there is a larger shopping centre at Gilles Plains. Both of those centres include an existing liquor store. The Northgate Shopping Centre is a significantly smaller neighbourhood centre. The judge found that the convenience of one stop shopping existed at Greenacres and the evidence supports his conclusion.
This recapitulation of the objective evidence shows that the area in the immediate vicinity of the Northgate Shopping Centre is in the early stages of its development. In a year or two the area will be more substantially developed. These are all grounds which justify the judge’s conclusion the application was premature.
Other Grounds of Appeal
The next ground of appeal is the judge erred in his treatment of the seven residents in the locality who were called to prove the demand for liquor at the new shopping centre. The judge found that, with one exception, the demand voiced by those witnesses was for a fairly standard range of liquor. The exception was a witness who represented a higher socio-economic group moving into the area who sought a wider selection of wines. She currently purchases liquor at the Vintage Cellars store in Walkerville and would continue to do so even if the appellant’s premises were licensed because she likes “the shopping experience” at the Vintage Cellars store. Her reasons for seeking to purchase liquor at the appellant’s proposed premises were essentially one of convenience.
Mr Beazley contended that the judge had failed to link the evidence of these residents with the objective demographic and planning evidence. He added that it was implicit in the judge’s reasons that, unless the appellants called a bus load of witnesses, the application would not be granted. Both criticisms are unfounded. Having examined the evidence, the judge has found that the voiced demand for liquor is for a modest range which is available from licensed premises in the locality. He has found a number of witnesses to be representative of particular sectors of the community. However, he found that none of the witnesses suffered any more than minor inconvenience. These are judgements which a judge of a specialist tribunal is equipped to make. It has not been demonstrated that this Court should interfere with his conclusion.
It was contended that one example of failing to have sufficient regard to the demographic evidence was to be found in the judge’s treatment of those who resided in the suburb called Clearview. No evidence was called from residents of Clearview. The complaint is that the demographic evidence was sufficient to establish that demand. The residents of Clearview have relatively convenient access to the BWS liquor store on Main North Road and to the Enfield Hotel. There was little evidence about the Enfield Hotel. The manager of the appellant described the range of liquor at the hotel as very light. But, the ability of that hotel to meet the needs of the locality depends on what kind of needs is voiced. The judge was I think correct not to make any finding concerning the Clearview area until he had some evidence pointing to the kind of need voiced in the area. This ground of appeal also fails.
The appellant’s final ground was that the judge failed to give sufficient weight to complaints of those in the suburbs of Clearview and Northfield where the residents are a mixture of young professionals and with higher incomes and those who reside in Housing Trust homes whose income is lower and who do not all have access to motor vehicles. I have already referred to the fact that there was no evidence called from Clearview. Those in the Northfield area have relatively convenient access to the Bridgeway Hotel. The judge’s finding was clearly open and it has not been shown that he has erred. Reliance was placed on the decision in Waiata Pty Ltd v Lane (1985) 39 SASR 290 but that decision is clearly distinguishable on its facts.

This probably was a borderline case. However, for the reasons already expressed, it was plainly open for the judge to reach the conclusion that the application was premature and that the appellant had not satisfied the requirements of s 58(2) of the Liquor Licensing Act. For all of these reasons I would dismiss the appeal.
BLEBY J: I agree that the appeal should be dismissed for the reasons given by Debelle J.

[2004] SASC 112

23 April 2004