Drinking and DA’s don’t always mix!

The highly regulated nature of liquor licensing laws in Western Australia is such that it encroaches on virtually all facets of a licensed business, commencing from the conceptual stage, even before the business gets off the ground.  That includes any development application that is associated with establishing the business.

A development approval (DA) that does not satisfy relevant liquor licensing requirements associated with the proposed licensing application can potentially cause a raft of problems down the track.

It is important to address the relevant liquor licensing issues, both in terms of the proposed use and the physical design of the premises, prior to lodgement of a development application.

The licensing authority interprets and applies the content of DA’s strictly.  The DA wording and the detail of the floor plans approved as part of that DA can sometimes potentially determine the nature and extent of the licensing approval which the applicant will be eligible for.  In some cases, the applicant’s liquor licence application may even be limited or even refused on the basis that the nature and scope of the approval granted by the DA does not extend to cover the proposal for the licence.  For example, a DA which refers to “restaurant and bar” usage will not necessarily be sufficient to enable the applicant to pursue a “tavern” class of licence. 

Whilst DA’s are not always required to be lodged in support of the liquor licensing application, an essential formality for any licence application is lodgement of an unconditional certificate pursuant to section 40 of the Liquor Control Act 1988 (WA).  A section 40 certificate is issued by the relevant local government authority with planning jurisdiction for the site and is required to certify whether the zoning of the subject site is appropriate for the proposed liquor usage.  Often section 40 certificates will not be issued without a DA, even where the premises is already established and has been the subject of some other liquor licence previously. 

For example, if the owner and operator of a licensed restaurant seeks to upgrade its licence to a small bar licence, it will need to apply to the liquor licensing authority for a new small bar liquor licence.  The application for the small bar licence will need to include an unconditional section 40 certificate from the relevant local government planning authority.  It is likely that in order to obtain that certificate, a development application will be required for a change of use from restaurant to small bar. 

By way of another example, a prospective applicant for a liquor store licence at a newly constructed shopping centre will need to obtain an unconditional section 40 certificate for the licence application.  If the DA for the shopping centre development did not include reference to liquor store usage then the licence applicant will most likely have to submit a development application for a change of use in order for the local government authority to issue the required section 40 certificate.

The process for an applicant to obtain the all-important unconditional section 40 certificate for a liquor licence application varies from case to case.  Frequently, it is a lengthy and arduous process which can cause considerable costly and inconvenient delay.  The application for the licence cannot even be lodged at the licensing authority until the unconditional section 40 certificate has been issued.  

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.