• the fitness and propriety of any person;

• the question of whether if a particular application were granted, public disorder or disturbance would be likely to result;
• any other matter relevant to the public interest; or
• the interest that any person may have in a licence.

The Executive Director may intervene in relation to the harm or ill-health caused to people, or any group of people, due to the use of liquor and the minimisation of that harm or ill-health.

In addition to intervening, both may be required by the licensing authority to provide a report on relevant matters.  Further, both may elect to object to an application, in addition to/or instead of intervening. 

Both parties are increasingly intervening in applications in an attempt to either have the grant of a licence refused or, as is more commonly the case, to ensure that if a licence is granted, restrictive conditions are placed on the licence.  These interventions tend to generally focus heavily both on outlet density and crime statistics within the locality as justification for the imposition of conditions on a licence.

Outlet density relates to the number of licensed premises located within close proximity to proposed licensed premises.  It is argued in areas where there are a high number of licensed premises the likelihood of alcohol related harm occurring increases and therefore, the grant of a new licence is not in the public interest in that area.  For example, Health interventions most often state that ‘…the physical availability of alcohol, as measured by the density of licensed outlets in a defined geographical region, is associated with levels of alcohol-related harms arising within that region.  That is, higher aggregate levels of alcohol consumption and related harm occur where higher outlet densities also occur.’

Interventions also rely heavily on crime data, particularly alcohol related crime data.  The existence of alcohol related offending in an area is offered as proof that licensed premises are responsible for creating public disorder and disturbance.  The addition of another licensed venue in that area is said not to be in the public interest as it will contribute to the rate of alcohol related offending.  The Police proposition is that ‘… in essence, crime increases during the peak periods of trade of licensed premises in Perth and an inference can be drawn that an increase in licensed  premises will have an increase in criminal offences‘.  This summarises the Police argument against introducing new licensed premises where there is an existing level of alcohol related crime.

It is now commonplace for interventions to be lodged against virtually all hotel, tavern, small bar, nightclub and liquor store licence applications as well as a variety of other licensing applications such as variations, alterations and extended trading permits.

Interventions generally prolong and complicate the processing of an application.  Applicants are afforded the opportunity to respond.  The intervener may then reply.  The process can consequently add to an applicant’s costs.

A thoroughly prepared application is one which anticipates the possibility of an intervention with evidence to the contrary.  Another way to neutralise an intervention or to allay interveners’ possible concerns is to engage in consultation either before or after lodgement.

Although interventions are not necessarily fatal to an application’s prospect of success, in many cases a refusal occurs due to the impact of the intervener’s contribution.

If you require assistance in responding to an intervention or have any other liquor licensing query please do not hesitate to contact:

The amendments to the Liquor Control Act with the introduction of the restricted and unrestricted manager system arguably has had the greatest practical affect across the board on licensees.

A new kind of hotel licence called tavern restricted licence was introduced.  Like the small bar licence a restricted tavern does not allow packaged sales but is not subject to the numbers’ limit of 120 persons.

Various clauses in the Liquor Control Regulations became effective which exempted the requirement for licensing approval in a variety of circumstances.  The exemptions authorised, amongst other things, BYO liquor to be consumed at unlicensed live entertainment venues, the sale and supply of liquor at some small functions without an occasional licence, the supply of complimentary liquor by businesses and BYO liquor to be legally consumed within small charter vehicles.  Although described as an act of deregulation, it can in fact be argued that by introducing the exemptions the licensing authority has created an official watershed where previously there was more flexibility and less regulation.

Three members were added to the Liquor Commission in 2011.  Dr Eric Isaachsen, Mr Seamus Rafferty and Mr Alistair Bryant joined incumbent members Mr Jim Freemantle (Chairperson), Ms Helen Cogan, Mr Edward Watling and Mr Greg Joyce.  The appointments reflect the Commission’s heavy workload this year and likely further anticipated increase in its role.

The Commission’s decision in Dan Murphy’s Bicton [34/2011] affirmed its position that independent and relevant evidence in support of an application is required to discharge an applicant’s onus of proving that the grant of a licence is in the public interest.  The Commission rejected ‘… the general principle that merely because a business model has proven to be popular in other localities, that that justifies the grant of a new licence in this locality or any other locality. Such a contention is untenable and ignores the regulatory scheme and objects of the Act; the need to consider the merits of each case; and need to properly weigh and balance the public interest considerations in the context of each individual application’.  This case and others throughout the year have progressively raised the bar for applicants in terms of providing evidence in support of an application that is independent, relevant and proves the need for the licence.

Despite the ongoing licensing authority hardening of attitudes towards the grant of more ‘complex’ applications, numerous tavern and hotel applications within the CBD were successful.  Multiple tavern licences were approved at the soon to be completed City Square site, including the flagship 1,000 person capacity Print Hall premises.   The numerous City Square licences, along with the other CBD grants, pending applications and the Department of Health and WA Police stance on outlet density, are likely to make it increasingly difficult to obtain licences for large inner city venues in the foreseeable future.

The licensing authority is set to increase its application fees for new licences in 2012.  The fee for the majority of licences will increase from $2,810.00 to $3,100.00.  The balance, such as for producer’s, wholesaler’s and restaurants, will increase from $765.00 to $800.00.

Annual licence fee accounts have been issued.  Licensees are reminded that these annual licence fees must be paid by 1 January 2012.  Failure to pay the annual fee will result in late payment fees or may result in licence suspension.

On behalf of Lavan Legal, the Liquor Licensing Team wishes all Snapshot recipients a happy and prosperous festive season.  We very much look forward to your ongoing support in 2012. 

If any Snapshot recipients would like a particular topic covered by the Liquor Licensing Team in 2012 or require any liquor licensing assistance please do not hesitate to contact:

The Department of Racing, Gaming and Liquor recently refused another application for a liquor store licence.  This application was for a restricted take away service in Perth.  The majority of sales were to be generated and transacted via the internet to members of its wine club.  The liquor store’s focus was to be the provision of premium wines.  It would not stock beer, spirits, or ready to drink products.

Neither the WA Police nor the Department of Health lodged an intervention against the proposal.  One objection was received but was held not to have been validly made out and consequently had no bearing on the Department’s determination.

Ultimately, the licensing authority found that, despite the applicant having produced evidence showing a demand for premium wine clubs in the metropolitan area, ‘there was no evidence to support the claims [of the applicant] nor any detailed information on what research it conducted leading to the conclusion that its proposed premises is necessary to cater for the requirements of consumers for liquor and related services.’  The decision specifically stated that ‘statements about a Vintage Wine Club operating at or from another licensed premises, such as Raffles Hotel, are irrelevant’.

This decision is an extension of what has now become the well entrenched approach of the decision maker.  Applicants for new licences cannot rely on generalised conclusions about the state of the industry or the likely demand for a product or service.  Simply aiming to replicate an existing successful business model will not suffice in terms of proving an idea may be in the public interest.

Can licensees be liable for assaults that take place off licensed premises?

On 7 September 2010 Levy J of the New South Wales District Court ordered a licensee company (and its approved manager) contribute over $250,000 in damages to a patron of its hotel after it was found to have negligently allowed another patron to leave its premises ‘without hindrance from the hotel staff” who then severely assaulted a patron who had earlier been evicted from the hotel.

The plaintiff, Graham Hadaway, was involved in two altercations with the defendant, Heath Robinson, prior to being evicted from the hotel.  Both the altercations on the day of the assault had been instigated by the defendant.

At some point after the second altercation the plaintiff was ejected from the hotel according to the primary judge.  Shortly after that the defendant left the venue, of his own free will, caught up with the plaintiff approximately 200 metres from the hotel and seriously assaulted him.  At first instance it was found that the licensee and the approved manager had breached their duty of care to the plaintiff by either not ejecting both Hadaway and Robinson, or at least one of the men, after the first or second altercation.

However, on appeal it was found that there was insufficient evidence to make a finding as to whether the licensee or its management had in fact evicted Hadaway.  Further, the Court of Appeal found that ‘it was not established that the appellants [licensee and approved manager] were in breach of the duty of care owed to the respondent in failing to eject Mr Robinson, or the respondent and Mr Robinson, at the time of the 5.30pm confrontation.’

The Court of Appeal does not express a view in its decision as to whether the licensee could have been held to have been contributory negligent for the assault which occurred off the licensed premises.  No such finding was warranted given that it had been found that the licensee had not breached its duty of care.

The judgement at first instance marks a high watermark in terms of a licensee’s liability for the welfare of its patrons once they leave licensed premises.  Despite the fact the decision of the Court of Appeal has seemingly restored the balance, the question as to whether a licensee can be liable for the actions of its patrons after they leave the licensed premises remains unclear.

The Liquor Commission recently reaffirmed the decision of the Director of Liquor Licensing by rejecting a hotel licence for a major southwest development to be called Champagne House.  The Director had refused the application on the basis that the applicant had failed to prove it was in the public interest to grant the licence due to a lack of supporting evidence as to need.

Section 25 of the Liquor Control Act empowers any party dissatisfied with the Director’s decision to apply to the Liquor Commission for a review.  Reviews are conducted on a de novo basis, meaning the entire application is redecided afresh.

The applicant Topsouth Holdings Pty Ltd applied to the Commission to have its decision reviewed.  Topsouth currently operates with a producers’ licence at the subject property on Caves Road down south.  Existing facilities at the site include a 170 seat function centre, restaurant and bar, amphitheatre, accommodation and vineyard producing gold medal winning wine vintages.  The applicant had proposed to construct a further nine villa units (comprising of 43 suites and capable of accommodating 86 people) at the property this year and was seeking a licence more suitable to the operation of the property. 

Topsouth had obtained planning approval.  In addition the local government authority wrote a letter in support of the proposal to the Director.  The Executive Director Public Health intervened on the basis that the application may increase the likelihood of harm and ill-health occurring in the area due to the increased consumption of liquor.  The health concern was that the subject area was already experiencing high levels of harm as a result of liquor consumption, that the grant of the licence would increase outlet density and potentially increase road trauma in a locality where there is already a high level of alcohol related road trauma.  Eleven members of the public objected.

At first instance the Director determined that the objectors had not established the validity of their objections.  However, the Commission found that while many of the objections were lacking supporting material some did raise issues that were taken into account.  This opinion was ultimately qualified by the Commission’s conclusion that ‘in view of the lack of supporting evidence little weight was accorded to the objections’.  The Commission also disregarded the health argument finding that ‘it is the Commission’s view that the proposed functions at the premises will not sufficiently increase the consumption of liquor such that harm or ill health will be an issue‘.

Despite finding that the objections carried little weight and not being satisfied that harm or ill health would sufficiently increase as a result of the grant of the licence, the application was still refused.  The Commission was not satisfied that the application was in the public interest.  The applicant had been specifically advised by the Director in the earlier proceedings of its obligation to provide objective evidence in support of the application.  The applicant only supplied eight letters of support.  Even though the Commission stated that ‘each of these letters provides specific support for the hotel resort and represents a wide range of experience in the tourism industry’ the letters alone were not enough to satisfy it that the application was in the public interest.

Although there is no express statutory obligation to provide independent affirmative evidence in favour of a licensing proposal, it is clear that the licensing authority will refuse to grant a licence to an applicant which has provided no, or insufficient, objective evidence in support of the application.  This is particularly so in the case of an application that is opposed by the general public or the subject of an intervention.  The value judgment required as to the amount of objective public supporting evidence to be produced, in all cases involves a clear understanding of the nature, probative value and quality of the evidence which is needed to discharge an applicant’s onus of proof.  The need to obtain professional advice on this aspect is clearly demonstrated by this decision.

For more information, please don’t hesitate to contact:

As a matter of policy, the Department of Racing, Gaming and Liquor does not accept any application for the grant of a liquor licence without a Liquor Control Act section 40 certificate from the local government authority in which the proposed premises are, or will be, situated.  Such a certificate verifies that the proposed use conforms with the zoning scheme.

Local governments therefore play a pivotal role initially in the liquor licensing application process.  This usually begins with the issue of a development approval.  In order for a section 40 certificate to be unconditional the proposed use must be approved by the local authority.

Even if an applicant has obtained a section 40 certificate which confirms the fact that the proposed premises will comply with the local planning laws, the local government authority may still potentially lodge an intervention against the application and even an objection to the grant of the licence.

On a number of occasions local government authorities having first issued an unconditional section 40 certificate have subsequently written letters to the licensing authority expressing negative views, lodged interventions or even objected to the licence application.  Councils are entitled to do this even if the proposed use is zoning compliant but the authority opposes the proposal in principle.

Applicants are also required to submit a the Liquor Control Act section 39 certificate from the relevant local government authority stating that the premises comply with all health, local government and building requirements prior to receiving an unconditional liquor licence.

Without these certificates applications for licences will not be granted, or if granted conditionally, trading may not commence.

Clearly, local government has an important role to play in the liquor licence application process.  This can only grow as licences become more prevalent in the community and housing densities increase. 

Some of the issues associated with these matters will be explored at Lavan Legal’s Local Government Forum on 7 November 2011.  A range of speakers will address the topic including a number of council staff, Mayors and Councillors from various local authorities who will be present to explain their respective Council’s approach to these matters.

For more information or to register for the Forum please click here or contact:

Many liquor licences in Western Australia are applied for and subsequently operated by or transferred to corporate entities.  As part of the application process, the directors and shareholders are required to submit formal documentation to the Department of Racing, Gaming and Liquor (Department).  The Department requires the formal documentation to assist to assess and determine whether persons nominated to hold positions of authority within companies are fit and proper to be involved in the licensed businesses.

A person in a ‘position of authority’ is defined within the Liquor Control Act (Act) as being someone that:

1. is a director of a body corporate;
2. exercises or exerts, or is in a position to exercise or exert, control or substantial influence over a body corporate in the conduct of its affairs;
3. manages, or is to manage, the business of a body corporate to be conducted under a licence;
4. occupies a position, in relation to a body corporate, prescribed by the regulations to be a position of authority; or
5. a shareholder in a body corporate.

Ongoing obligations are also imposed.  For example, there is an ongoing obligation to obtain approvals from the Department prior to any new directors being appointed by a licensee company.  Section 102 of the Liquor Control Act states that any person who assumes a position of authority in a body corporate that holds a liquor licence without the approval of the Department commits an offence and is liable to be fined $10,000.  This means that any incoming director of a company that holds a liquor licence will be personally liable for being appointed without the approval of the Department.

The section also states that the licensee company can also be held liable for appointing a director without the prior approval of the Department with the same penalty provision as the individual.  Clearly, a breach can become a costly exercise.

Each individual incoming shareholder of a proprietary company must be approved prior to shares being issued.  In addition, previously approved shareholders are obliged to notify the Department within 14 days if their shareholding increases or decreases.  Issuing shares in a proprietary company which holds a liquor licence to an unapproved person can expose both the shareholder and company to be liable to a fine up to $10,000.

Should you wish to know more about the obligations of licensee companies under the Liquor Control Act please do not hesitate to contact:

The State Government has recently tabled its response to the Education and Health Standing Committee’s report Alcohol: Reducing the Harm and Curbing the Culture of Excess (Report).  The Report was tabled in Parliament on 23 June 2011 and recommended sweeping reforms to the liquor industry such as barring people from purchasing takeaway liquor until they are 20 years old.

However, the Government has largely rejected the recommendations of the Report and only moved to support two recommendations and give in principle support to one other recommendation.  The Minister for Racing and Gaming, Mr Terry Waldron MLA, told Parliament that ‘the rights of consumers to enjoy choice and diversity in the range of hospitality services available and the tourism, employment and business opportunities this brings to our State needs to be balanced against the need to ensure that the health and safety expectations of the community [are] maintained.’

The Minister also said that ‘Increasing the drinking age, using juveniles in enforcement operations, banning alcohol sponsorship of sporting organisations and introducing price controls are blunt instruments that the Government does not support.’

The Government’s response to the Report will be comforting for those within the industry, and possibly the wider community, who feared the Report may lead to a radical restructuring of the liquor industry and reduction in individual rights and liberties.

For further information on the recommendations of the Report please see Lavan Legal’s previous Snapshot entitled Is WA liquor legislation regressing to the 1700’s.

Should you wish to know more about Western Australia’s liquor legislation or require any assistance in preparing an application for a liquor licence please do not hesitate to contact:

It has previously been reported that the licensing authority is increasingly imposing unique conditions or restrictions on the grant of many new licences.  Special trading conditions are frequently tailored to ensure licensees conduct their businesses strictly in the manner portrayed in their application documents, particularly their intended manner of trade document.  It is therefore important for applicants for new licences to very carefully draft their proposals.  Some applicants have suggested trading conditions or even offered to self enforce restrictions which have initially helped obtain the grant of the licence but hand-cuffed the operation commercially later.

Most small bar licences are now conditioned so as to ensure that they maintain and uphold the theme for which they are granted.  With the passage of time, as a business grows, or in the event the licensed premises is sold, it may eventuate that the unique trading conditions initially imposed on the licence are no longer appropriate.  Often an incoming licensee does not wish to continue with that particular theme.  Unless an application is made to the licensing authority to vary the licence conditions, licensees are bound to continue operating the licensed premises in the manner required under the licence.

The Liquor Control Act does not prevent a licensee from applying to have the conditions on the licence permanently changed.  In order to have a trading condition on a licence permanently changed, an applicant is normally required to submit, among a range of other things, a public interest assessment.  Public interest assessments are complex and time consuming to prepare.

Should you wish to know more about trading condition variation applications or require assistance in preparing an application to vary a licence condition, please do not hesitate to contact:

Licensees wishing to trade later than normal on Sundays preceding a Monday public holiday in 2012 will need to lodge extended trading permit applications with the Department of Racing, Gaming and Liquor on or before 31 October 2011.

Long weekend extended trading permit applications in respect of nightclubs, hotels, taverns, small bars and some special facility licences must be accompanied by public interest assessments.  These public interest assessments must identify the strategies that will be in place during the extended hours of operation to minimise the potential for harm to be caused as a result of the increase in trading hours. 

Public interest assessments are complex and time consuming to prepare.  Such public interest assessments should also cover a multitude of other issues, including but not limited to:

• whether or not persons living or working in the vicinity of the premises are likely to be disturbed;
• the public interest to be served by the extension of hours;
• the type of entertainment the licensee will provide; and
• whether or not food will be available.

Any permit granted will be subject to strict conditions during the additional hours of trade, such as:

• prohibiting serving liquor with energy drinks;
• imposing a lock out 30 minutes prior to closing;
• requiring licensed crowd controllers to be employed for the duration of the extended hours; and
• banning packaged liquor sales.

Should you are require any assistance in preparing your application for extended trading on long weekends next year, or extended trading permits generally, please do not hesitate to contact:

Licensees, other than club restricted or occasional licensees, are required to actually occupy the licensed premises and maintain the right to occupy the licensed premises to the exclusion of others pursuant to section 37(5) of the Liquor Control Act. 

There are numerous circumstances where licensees may lose the right to occupy licensed premises.  Examples of these are:

• where a licensee enters into an agreement with the chef to lease and operate the kitchen within the licensed venue;
• authorising or letting part of the premises to another organisation by allowing a neighbouring business to lease a store room that forms part of the licensed area; or
• where a corporate manager is appointed to operate parts of a business, such as in a hotel, where a manager might be appointed to operate the accommodation facilities.

In circumstances such as these, unless the arrangement has the prior approval of the Director of Liquor Licensing, the licensee’s interest in the licence terminates.  In the event the licensing authority becomes aware that a licensee has lost exclusive possession of its premises, the licence is likely to be suspended pending a response from the licensee explaining why the licence should not be cancelled or other sanctions applied. 

It is therefore of paramount importance that licensees occupy the licensed premises at all times to the exclusion of all others.

If you are concerned your business may have lost its right to occupy its licensed premises to the exclusion of all others, please do not hesitate to contact: