Untangling planning and liquor licensing laws — relevant recommendations from the Review of the South Australian Liquor Licensing Act 1997

18 July 2016

There is currently a close and sometimes vexed relationship between the Development Act 1993 (“the Development Act”) and the Liquor Licensing Act 1997 (“the Liquor Licensing Act”) as they concern licensed premises – in many areas, the responsibilities of councils as relevant authorities under the Development Act overlap with the responsibilities of the relevant licensing authority under the Liquor Licensing Act. These areas of overlap can cause delays, result in duplication of processes and additional costs for councils.

These areas of overlap are:

• where a development authorisation under the Development Act is required for licensed premises, a liquor licence application for those same premises cannot be granted unless the authorisation has been obtained;[i]
• councils have the ability to intervene in a liquor licence application,[ii] even in circumstances where a development authorisation was required and was obtained;
• a general right of objection to a liquor licence application can be exercised by any person on various grounds, including the following planning concerns:
  • if the application were granted, undue annoyance, disturbance or inconvenience to people who reside, work or worship in the vicinity of the premises or proposed premises would be likely to result;
  • if the application were granted, the amenity of the locality in which the premises or proposed premises to which the application relates are situated would be adversely affected in some other way;[iii]
• a person can object to a liquor licence application independently of their right to make a representation in respect of the preceding development authorisation under the Development Act, including where they made a representation (and even exercise appeal rights) in respect of the approved development application for the premises;[iv]
• the licensing authority (either the Liquor and Gambling Commissioner or the Licensing Court depending on the circumstances) has a broad discretion to impose conditions on liquor licences. These conditions can be similar in nature to conditions imposed on development authorisations, particularly where they relate to noise control and mitigation.
• not all liquor licence applications require a development authorisation. A liquor licence, of itself, does not trigger an act of “development” requiring a development authorisation.  Where liquor licence applications are considered for long-standing licensed premises, liquor licence conditions to govern noise and other amenity impacts may be required as they cannot be imposed under the Development Act.
• where licensed premises do not require a development authorisation, councils often intervene in a liquor licence application with the objective of achieving conditions imposed on the liquor licence which manage planning matters arising from the licence. The costs of an intervention can be significant and are borne by the council.

In the recently-delivered Review of the South Australian Liquor Licensing Act 1997[v] by the Hon. T R Anderson QC, a number of recommendations have been made to address these areas of overlap.

Given that the implementation of the Planning, Development and Infrastructure Act 2016 (“the PDI Act”) is expected to occur over the next 4 years, a number of the recommendations concern matters than are or can be addressed under this Act.

The recommendations focus upon ensuring that planning issues arising from licensed premises are assessed in a development application process so that matters assessed by the licensing authority are limited to:

• the probity of the applicant and persons responsible for managing the licensed premises;
• harm minimisation;
• responsible service of liquor;
• whether the grant or removal of a licence is consistent with the objects of the Liquor Licensing Act and meets the relevant tests in that Act.

The recommendations are summarised as:

1. the Planning and Design Code to include provisions to prescribe areas in which different types of licensed premises are an acceptable use of land and contain standard land use conditions for licensed premises;[i]
2. further to the amendments to the Liquor Licensing Act contained within Schedule 6, Part 6 of the PDI Act,which require the licensing authority to avoid inconsistency with or duplication of processes addressed by the PDI Act, that guidelines or practice directions be developed to clearly delineate responsibilities between relevant authorities under the PDI Act and the licensing authority;[ii]
3. amendments to the Development Regulations 2008 as well as to the provisions in the Planning and Design Code, to ensure that certain liquor licence applications trigger the need for a development authorisation;[iii]
4. that a liquor licensing application cannot be lodged before the required development authorisation is obtained;[iv]
5. that the rights of a council to intervene in a liquor licence application are removed where a development authorisation was first required; and
6. that the Liquor and Gambling Commissioner have the absolute discretion to add, substitute, vary or revoke any existing conditions on existing liquor licences where they relate to a matter addressed under the Development Act or PDI Act.

The Government is currently considering the recommendations made in the Review. We will keep a ‘watching brief’ and advise of any consequential legislative amendments.

If you have any questions regarding the above please contact Victoria Shute at vshute@kelledyjones.com.au or on 8113 7104.

[i] See recommendation 65

[ii] See recommendation 66

[iii] See recommendation 67

[iv] See recommendation 68

[i] This requirement can be waived by the licensing authority in respect of a direct sales licence or a limited licence; see section 57(3) of the Liquor Licensing Act

[ii] Other than in respect of a small venue licence; see section 76(5) of the Liquor Licensing Act

[iii] Liquor Licensing Act, section 76(5)(g)

[iv] Other than in respect of a small venue licence application

[v] The Review can be accessed at the Attorney-General’s Department website: http://agd.sa.gov.au/initiatives/review-of-sa-liquor-laws