Hotel licence refused

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:

Dan Mossenson Ian Curlewis
Partner Partner
(08) 9288 6769  (08) 9288 6756
dan.mossenson@lavanlegal.com.au......... ian.curlewis@lavanlegal.com.au

 

Jessica Patterson Alec Weston
Senior Associate Solicitor
(08) 9288 6946 (08) 9288 6873
jessica.patterson@lavanlegal.com.au.......... alec.weston@lavanlegal.com.au
Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.