Davy v Chief Executive of the Liquor Licensing Division [1997] QSC 99 [1998] 1 Qd R 586

\ IN THE SUPREME COURT OF QUEENSLAND No. 947 of 1995 BETWEEN: AND: SELWYN JOHN DAVY and GLENDON FRANCIS YOUNG as Trustees of The Peregian Trust Applicants CHIEF EXECUTIVE OF THE LIQUOR LICENSING DIVISION Respondent REASONS FOR JUDGMENT - MUIR J. Judgment delivered 16 May 1997 CATCHWORDS: Interpretation of s.154 of the Liquor Act 1992 Counsel: G. Gibson Q.c. for the applicant A. Innes Q.c. for the respondent Solicitors: Glendon Young for the applicant Flower & Hart for the respondent permission. -- 1 of 10 -- IN THE SUPREME COURT OF QUEENSLAND No. 947 of 1995 BETWEEN: AND: SEL\VYN JOHN DAVY and GLENDON FRANCIS YOUNG as Trustees of The Peregian Trust Applicants CHIEF EXECUTIVE OF THE LIQUOR LICENSING DIVISION Respondent REASONS FOR JUDGMENT - MUIR J. Judgment delivered 16 May 1997 The applicants seek to review the decision of the delegate of the Chief Executive Officer of the Liquor Licensing Division amending the licensed area of the Coolum Hotel Motel by, in effect, removing from the general license held by Stewarts Home Supply Pty Ltd a detached bottleshop located in Grebe Street, Peregian Beach and by replacing that premises with shops one and two in a shopping centre on a service road parallel to David Low Way, Peregian Beach. Grebe Street is a minor one-way road which leads from the David Low Way to the ocean. Although the re-Iocated position of the bottleshop is on a service road parallel to the David Low Way, the new site and the former site are in the same shopping centre. It contains som,e 47 shops and is bounded by Grebe Street, Kingfisher Drive, Herron Street and the service road. The old bonleshop site is separated from the new one within the shopping centre by a pedestrian mall. The two premises are on different titles. The old site is located on Lot 1 on R.P. 171401 whilst the new site is located on Lot 72 on R.P. 9313. The lots are under the same ownership. In order to go from the old site to the new, it is necessary to walk past some 14 shops on the outside of the shopping centre, -- 2 of 10 -- 2 and across the outlets to the pedestrian mall and an arcade or, alternatively, through an arcade and the mall past 10 or so shops. The point for determination is a short one. The application was made purportedly under s.154 of the Liquor Act 1992 ("the Act") and the respondent Chief Executive dealt with it on that basis. The applicants contend that the respondent had no power to grant such an application under s.154. They submit that any such application could be made only under s.59, in which case it would be the subject of the advertising and objection requirements and procedures contained in ss.118 and 119 of the Act. The respondent accepts that if s.59 is the only source of power under which the application could be granted the decision under review should be set aside. Relevant provisiolls of the Liquor Act 1992 Section 59 relevantly provides- "59.(0 A general licence authorises the licensee- (a) to sell liquor on the licensed premises, for consumption on or off the premises, during ordinary trading hours or ordinary trading hours extended by an extended hours permit; and (b) to sell liquor on the licensed premises, for consumption on or off the premises, at any time to a resident on the premises; and (c) to sell liquor on the licensed premises, for consumption on the premises, at any time to a guest of a resident on the premises while the guest is in th~ resident's company; and (d) to sell liquor on premises approved by the chief executi ve for sale of liquor under authority of the general licence, for consumption- (i) off the premises; or (ii) on the premises in the amount and 10 the circumstances prescribed by regulation. 59.(4) Premises approved by the chief executive for sale of liquor under the authority of a general licence are taken to be part of the licensed premises to -- 3 of 10 -- 3 which the licence relates. " Alteration and maintenance of licensed premises 154.(0 The owner and licensee of licensed premises must give notice to the chief executive before altering or rebuilding the licensed premises. Maximum penalty-25 penalty units. (2) The owner or licensee of licensed premises must not, without the chief executive's approval, attempt to change the area of the licensed premises by- (a) using an area that is not included in the licence as licensed premises, as if the area were part of the licensed premises; or (b) not using an area that is included in the licence as licensed premises, as if the area were not part of the licensed premises. Maximum penalty-25 penalty units. (3) The licensee of licensed premises must keep the premises clean and in good repair. Maximum penalty-25 penalty units." The applicants' contentions The language of s.154(2) is not apt to extend to "the total closure of licensed operations at one premises and their relocation to another premises on a different allotment of land." The provision is to enable minor modifications consisting of additions to or ,. deletions from an existing area of a licensed premises. Such additions or modifications must be on land adjoining the licensed premises or, at best for the respondent, on the same registered allotment or parcel. The explanatory notes accompanying the introduction of the bill in 1992, in the paragraph that immediately proceeds the paragraphs specifically referring to s.155, state- "Licensed premises are to be maintained in good order, and prior notice must be given to the Chief Executive of a proposal to carry out any alterations, -- 4 of 10 -- 4 rebuilding, or to increase or decrease the total licensed area." Under s.118, applications for approvals under s.59(1)(d) are required to be advertised and members of the public have an opportunity to object. If the respondent's contentions are correct, the public advertising requirement, in the case of where one premises approved by the chief executive under s. 59 (1) (d) is substituted for a different premises in "a different location" are avoided by the simple expedient of making the application under s.154 rather that s.59(1) (d)' Section 59 is the central provision dealing with licenses. The scheme of the Act is to provide for licenses in respect of particular premises. The respolldent's contentions Section 154 is included within division 1 of part 6 of the Act which contains provisions binding licensees. It allows a licensee to use an area not included in the license as licensed premises with the chief executive's approval, and not to use an area that is included in the license as licensed premises with the chief executive's approval. Section 154 is concerned with licensed premises and not the license itself. An approval under s.154 affects only the area of the licensed premises and does not alter or affect the rights to sell liquor conferred by s.59. A s.59(1)(d) approval results in an expansion of a general licensee's rights to sell liquor and creates new rights in a licensee by creating new licensed premises in respect of which a s.59(1)(b) authority may be exercised. A s.154 approval merely changes or adjusts existing rights and does not create new rights. Because a s.59(1)(d) approval creates new rights in the sense that it results in the establishment of new licensed premises (a detached bottles hop) , an application for such an approval must establish a public need under s.116 having regard to the existing licensed -- 5 of 10 -- 5 premises and the locality. An application under s.154 is not subject to a requirement that a public need be established. The words "an area that is not included in the license as licensed premises" is an apt description of new premises to which a detached bottleshop has been relocated. There is no warrant for imposing a qualification on the language of s.154(2) to the effect that such an area be continuous with the existing area of a detached bottleshop or that no such approval can be granted unless it is accompanied by an approval under s.59(1)(d). Section 154(2), construed in accordance with the respondent's submissions, would not give the chief executive a complete and unfettered discretion. There is a control mechanism in the fact that no alteration under s.154(2) may be made without the chief executive's approval. If the change sought was too great, for example, if it involved a change from one "locality" to another, then it would not be a proper exercise of discretion on the part of the chief executive to grant an approval under s.154(2)' On the other hand, where the change is from one location within a particular shopping centre to another, the approval is within the chief executi ve' s discretion and is within the scope of the matters contemplated by s.154(2). The wording of the existing s.154(2) may be contrasted with its predecessor which appears in reprint 4- "Section 154(1) a licensee must not- I.. (a) alter or rebuild licensed premises; or (b) increase or decrease the area used for the conduct of business under authority of the license or permit; without giving to the chief executive prior notice." Constmetion of section 154 of the Aet , Section 4 defines licensed premises to mean- " .. premises to which a license relates, and includes premises approved under -- 6 of 10 -- 6 s .125 for sale of liquor. " Section 59 (1) makes provision for entitlements under "a general license". Section 59(2) enables the chief executive to extend the authority of a general license to another premises by so specifying in the license. Section 118 relevantly requires the advertisement of applications for- "(a) a license or variation of a license; (b) an approval under section 59(1)(d) (authority of general license)" Section 116 requires such applicants to- " .. satisfy the chief executive that the license, approval .. applied for is necessary to provide for the reasonable requirements of the public for liquor and related services in the locality to which the application relates." Where the chief executive receives an application to which s.116 applies the chief executive is required to infonn the local government for the relevant locality. The local government is then given the opportunity to- "(a) comment on the reasonable requirements of the public in the locality; or (b) subject to the grant of the application on the grounds that the amenity, quiet or good order of the locality would be lessened." The Act thus contemplates that if the holder of a general license wishes to extend the general license to pennit the licensee to operate a detached bottleshop, an application should be made which fulfils the requirements of s.116 and which is subject to the public and local authority scrutiny afforded by the prescribed advertising and objecting procedures. If the respondent's construction of 154 is correct, the Act so operates that a licensee who wishes to obtain the pennission of the chief executive to extend a general license to a detached bottleshop or who wishes to have the license varied by the substitution of one bottleshop for another, can make application under either s.59(1)(b) or s.154. If the application is made under the first mentioned section the chief executive is required to be satisfied in tenns of -- 7 of 10 -- 7 s.116(2) and there must be compliance with the public notice and advertising requirements. If application is made under the latter provision no such requirements apply. That, in my view, would be an odd result. Although the respondent's argument derives some support, albeit minor, from the fact that s.154, before its amendment in 1994 provided as set out above, in my view, the construction for which the respondent contends cannot be supported. Part 4 of the Act entitled "Licenses and permits" deals with the types of licenses which may be granted in respect of premises. Part 5 of the Act is entitled "Grant variation and transfer of licenses and permits". It deals with matters which must be satisfied with respect to applications for licenses and also for approvals under s.59(1)(d). Section 154 is in part 6, "Obligatory provisions and offences". It is not concerned with the general content of licenses or with the identification of the premises to which licenses attach in whole or in part. It contains various provisions which regulate the way in which business can be carried on by a licensee on or in respect of licensed premises. Its provisions further regulate the use and occupation of licensed premises. Section 154, in my view, does not have a parallel operation to s.59(1)(d). Section 154(1) is concerned with premises the subject of a license which exists pursuant to s.59 and which has been applied for and granted under Part 5. Section 154(3) obviously refers to such " premises also. Where s.154(2) refers to "change of an area of licensed premises" it is dealing also with such premises. It should not be read as if "area" meant "area and general location" . In the context of s.154 it appears to me that "area" has a restricted meaning. Some indication of its meaning may be derived from a consideration of the following dictionary meanings- -- 8 of 10 -- 8 The Macquarie Dictionaty's definition of "area" includes- "Any particular extent of surface; region; tract: the settled area. " The Shorter Oxford English Dictiona!Y includes the following in its definition- "I. A level piece of ground not built over or occupied; a clear space within a building, as the arena of an amphitheatre, etc ... or. the particular extent of ". It is not necessary for the purposes of resolving this matter to attempt a fully comprehensive definition. It is sufficient, for present purposes, to conclude that s.154(2) does not deal with the substitution of a different premises for a premises described as the licensed premises on a general license or the substitution of new premises for premises which have been approved under s.59(1)(d). The words of the sub-section are apt to describe a state of affairs under which the change of area is brought about by means of physical addition to or subtraction from the premises which is or are the subject of the existing license. Where a licensee ceases using the premises approved under s.59(1)(d) (and thus taken to be part of the licensed premises by virtue of s.59(4)) and commences using quite separate premises in lieu thereof as a detached bottles hop , the licensee is not "using an area that is not included in the license as licensed premises, as if the area were part of the licensed premises". In these circumstances, the licensee is simply using the new bottleshop without " approval. The position is different where the licensee's actions involve activities such as the addition of a room, balcony, deck or the like to a building which is licensed premises or the enlargement of a tenanted area in a shopping centre. In such cases the licensee's actions will more readily be perceived as the use of the new area as if it "were part of the licensed premises" . Whether an approval falls within s.154(2) will often involve questions of degree. In -- 9 of 10 -- 9 some cases it will be clear that a change of area does not come within s.154(2) eg., where the change is from one end of a town or suburb to the other. At the opposite end of the spectrum is an extension of area to include another room in or a greater part of the yard or curtilage of a free standing premises most of which falls within the existing licensed premises. The facts under consideration fall somewhere in between these two extremes. In my view, whatever the boundaries of what may come within change of an area for the purposes of s.154(2), it does not encompass a situation in which one tenanted area in a shopping centre is entirely substituted for another in quite a different location and on a different street frontage. In these circumstances it does not appear to me that there is a change in "the area of the licensed premises by using" the new tenancy as if that tenancy "were part of the licensed premises" for the purposes of s.154(2). The new tenanted area is being used in substitution for the old and not as if it were part of the old. In so concluding I have had regard to the respondent's submission that in the case of a detached bottleshop, the use of the bottleshop area is to be regarded as a use of that area as it if were part of the principal premises under the general license (s.59(4)). A consequence of this, it is argued, is that where one bottleshop is substituted for another the licensee is necessarily using the new area as if it were part of the principal premises. The argument is not without its attractions but, in my view, s.154 deals with actual use of an area as part of another area, not a notional or deemed use. I set aside the decision referred to in the application with effect from 9 p. m. on 25 May 1997. I order that the first respondent pay the applicants' costs of and incidental to the application to be taxed. -- 10 of 10 --