Anyone having an interest in the operation of licensed premises whether they be landlords, developers, local Councils and all operators of existing licensed premises.
What do you need to do?Consider the implications of the changes being introduced by the Liquor Act 2007 and the changes proposed to the Environmental Planning and Assessment Act 1979 on their businesses generally.
Partner
T +61 2 9296 2125
Debra Townsend
Partner
T +61 2 9296 2341
Sydney
Author
Jason Browne
Today, the Liquor Act 2007, and its accompanying regulations, commences and replaces the existing statutes which regulate all liquor sales and related activities in Hotels, Registered Clubs and Star City Casino in New South Wales.
This alert outlines the most significant aspects of the new regime, but will also make reference to likely amendments to the Environmental Planning and Assessment Act 1979 which, together with the new liquor regime, will require careful consideration for those contemplating development projects incorporating licensed premises.
Why does it matter?
Recent political and media comment on social issues relating to licensed premises, particularly in relation to perceived problem gambling and perceived alcohol abuse within the community, is at an all time high. The new liquor regime is to be implemented in this environment and its emphasis on increased community consultation and involvement in licensing processes, particularly in relation to the approval and operation of licensed premises, will potentially create new hurdles for licencees and any organisation having an interest in the operation of licensed premises.
Recently the Director of Liquor and Gaming, Albert Gardner, (the Director) who will have from 1 July 2008, amongst other powers, the power to determine disturbance complaints, impose conditions on liquor licences and declare lockouts and curfews was reported as saying “we will continue to look at ways and remedies to resolve issues in local communities. If that means ramping back further trading hours, curfews, types of drinks available and increasing security, then so be it."
Despite the fact that many of the reforms will result in a more streamlined and administrative based application process (including the abolition of the current Liquor Administration Board and the Licensing Court of New South Wales), Mr Gardner’s comments suggest that anyone having an interest in the operation of licensed premises will need to carefully consider the implications of this new regime.
The new Liquor Regime
A new administrative authority called the Casino, Liquor and Gaming Control Authority (the Authority) is to be created to deal with all liquor licence applications and disciplinary matters. The Authority will replace the current Liquor Administration Board and Licensing Court of New South Wales.
The Authority has promised to administer a more transparent administrative system, while providing for more expansive enforcement powers in the hands of the Director. The Director will determine disturbance complaints, impose conditions on liquor licences and declare lockouts and curfews. The Director’s decisions will be reviewable by the Authority, with the Authority being responsible for imposing penalties and suspending or cancelling licences in disciplinary matters. Appeals against disciplinary decisions of the Authority are to be heard by the N.S.W Administrative Decisions Tribunal. Applications to the Authority under the Liquor Act 2007 can be accepted from 1 July 2008.
Restrictions on licensed premises by way of reduced trading hours, lockouts, curfews and liquor accords may have a significant impact on the profitability and valuation of licensed premises, particularly those whose revenues are primarily sourced from approved gaming machines.
Key Regulatory changes - Liquor Act 2007
The key changes under the new regime are:
- simplification of licenses with an emphasis on a new “on premise” licence which is intended to encourage a wider variety of licensed premises with the aim of promoting the reintroduction of live music and more public entertainment venues
- restaurants currently operating as licensed premises will have their licences reclassified as “on premise” licences and may, by way of application, be authorised to sell alcohol without a meal
- increased community consultation and involvement in licensing processes. Any person or group can make submissions to the Authority either in the context of either notification of application or by way of complaint in respect of an existing operation, and
- community impact statements (CIS) replace the existing social impact assessments (SIA). The CIS will gauge the potential impacts of the relevant licence application and summarise the results of consultation held with stakeholders. The Authority may only approve an application which requires a CIS where the Authority is satisfied that the overall social impact will not be detrimental to the well being of the local, and broader, community.
Despite the movement toward an administrative system, it is clear that seamless planning and licensing advice will become increasingly important in ensuring that both development applications and licensing applications are appropriately prepared. The new regime evidences the reality that there is little substantive difference between town planning and licensing considerations. This is reflected by section 45(3)(c) of the Liquor Act 2007 which prevents approval of a licence application by the Authority without it being satisfied that development consent is in force for the use of the premises contemplated by the licence application.
We do not deal with the presently proposed changes to the development application process in this alert, but we do note proposed section 80A(10B) of the Environmental Planning and Assessment Act 1979 gives the consent authority (usually the Council) the power to grant development consent subject to a “reviewable condition” which allows the consent authority to “review” a reviewable condition at any time or at intervals prescribed by the development consent. One example of a reviewable condition is a condition that permits extended hours of operation that are in addition to any specified hours of operation. While the specified (or core) hours will not be able to be unilaterally changed, the extended hours will.
Our Property and Planning group are well placed to assist you with developments in these specialist areas, and will continue to keep you informed of developments in this area through updates as the practical implications of the new regime emerge.
Key areas of expertise
We have a group of partners and lawyers who specialise in providing advice to the commercial property sector with significant experience and expertise across the full spectrum of areas relating to developments incorporating licensed premises for both operators and investors. Consequently we have a thorough understanding of the hotel, tourism and leisure industry and the relevant government policy and legislative requirements which means we are well placed to assist you navigate the new developments in this area.
Our key areas of expertise include:
- Property trusts - we have considerable experience in advising on the structuring, development and offering of complex trust products involving property trusts and trusts which operate in heavily regulated environments devised to produce efficient stamp duty outcomes for such trusts.
- Structuring models for tax effective outcomes - we are fully aware of the GST, income tax, CGT and stamp duty considerations in the operation, development and sale and acquisition of developments incorporating licensed premises.
- Our property teams have extensive experience grounded in corporate and commercial property law with unrivalled depth of commercial property law talent in:
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