The applicant contended that the delegate erred in extending the locality to include Hollywood Plaza. It submitted that the relevant locality is defined by reference to members of the community that might be expected to purchase liquor from the proposed premises, and the persons their consumption of alcohol might in turn impact. It submitted that if an extension or reduction of the two kilometre radius suggested in the Guidelines was considered necessary, there needed to evidence that there is in fact a different primary catchment for the proposed premises. It submitted that the delegate's rationale for the extension, being the fact that Hollywood Plaza was a large shopping centre and the fact it clearly "offers one stop shopping and would have significant pulling power" was not evidence capable of supporting that conclusion.
It submitted that this error was significant in two ways.
First, because the locality was incorrectly determined to a significant degree, it meant that the delegate's evaluation as to whether the grant of the application was in the community interest was conducted on a false premise.
Second, the inclusion of Hollywood Plaza suggests that the delegate thought it necessary to consider another licensed outlet as part of the locality in order to apply the Act, which was an error given the abolition of the "needs test".
Next, it was contended that the delegate erred in her findings about, and characterisation of Martins Plaza and her view that it was a relatively small shopping centre that drew analogies to cases where packaged liquor sales licences had been refused in respect of proposed premises such as Cellarbrations Walkley Heights.
It noted that the delegate made no positive finding as to the total size of Martins Plaza. It submitted that there was evidence before the delegate that established that Martins Plaza has a total lettable space of 6,100 square metres and that the largest tenancy was 1,200 square metres.
It submitted by reference to a comparative table of Neighbourhood Centres involved in recent licence applications that Martins Plaza was not a small shopping centre. It added that if the delegate was doing no more than observing that Martins Plaza was not as large as Hollywood Plaza Shopping Centre, she was correct, but this did not resolve the issue. It submitted that convenience or community expectation is not met by the co‑location to a very large shopping centre of the size of Hollywood Plaza. It submitted that other factors, such as distance to such a centre; accessibility and parking; the type of offering at the centre, and the products and brands available; and the existence of a sufficient range of goods and services at other centres were relevant.
It submitted that there could be a community expectation of a liquor store being amongst the offerings at a shopping centre despite there being a much larger shopping complex some further 2.7 kilometres away. It submitted that there were many examples of this, such as Brighton to Marion Shopping Centre; St Peters to Norwood, and Christies Beach to Colonnades.
It submitted that the delegate erred in finding that the Foodland Supermarket was not a "full line" supermarket and that in making this finding she appears to have adopted the untenable submission made by the objectors that the Foodland Supermarket was akin to a "convenience store". It submitted that the delegate's basis for the finding appears to be a conclusion that a "full line supermarket" must have an in‑store baker and butcher. It submitted that this involves a misunderstanding of what is a full line supermarket. It submitted that "full line" means no more than the store containing the range of products (and choices within product lines) that are customarily available to allow a customer to complete a more comprehensive or weekly shop and that the absence of in‑store bakeries and butchers was not determinative. It submitted that in any event, Martins Plaza otherwise meets those needs as meat, poultry and fish are available in the nearby Asian‑style store which is equivalent at least to a conventional butcher and bakery products are available in the bakery immediately adjacent to the supermarket.
It submitted that the delegate erred in failing to address the significance of the combined grocery offerings at the centre, and in particular the large Asian‑style grocery store. It submitted that she ignored the other significant features of Martins Plaza being the variety of takeaway food, pizza and the OTR petrol station. It submitted that this led the delegate to err in finding that Martins Plaza does not provide for "one stop shopping" and that it was "not a thriving Centre providing a full range of services required for residents' major weekly or fortnightly shopping needs." It added that there is a contradiction for the delegate to proceed on the basis that within Martins Plaza there is "no separate butcher and baker on offer in the Foodland supermarket" but not to observe that there is a bakery next door, and butcher's counters within the Asian grocer.
It submitted that the delegate erred in drawing comparisons with shopping centres at Walkley Heights and Hove. It noted that in Cellarbrations Walkley Heights, the premises were to be located in a centre constituted of a Drakes mini supermarket of 400 square metres and six other tenancies. It added that it was also significant in that case that the much larger Ingle Farm Shopping Centre was only 1.5 kilometres away and it contained a "big box" First Choice Liquor retailer. It noted that in Hove Sip n Save,[12] the premises were to be located in a centre constituted of a Foodland of 800 square metres and other tenancies comprised of a Vietnamese takeaway, coffee shop, post office, pharmacy, tax agent and hairdresser. It added that it was also significant that the very large Marion Shopping Centre was only 2.9 kilometres away and that the substantial Brighton Central Shopping Centre was only 1.9 kilometres away and it contained a much larger Foodland and a Cellarbrations branded liquor outlet as one of the 19 speciality shops in that centre.
It submitted that if analogies are to be drawn, the facts here are much closer to those that this Court dealt with in Liquorland (Australia) Pty Ltd (Park Holme)[13] which concerned a smaller shopping centre with fewer speciality stores but with a slightly larger car park and a larger supermarket.
It submitted that the delegate's erroneous findings also infected her consideration of public interest grounds.
The applicant submitted that in light of the delegate's errors it was incumbent upon this Court to consider the application. It submitted that the grant of the application is in the community interest and it is not contrary to the public interest.
It submitted that the Court should find that the proposed premises are to be located in a substantial suburban shopping centre configured around a substantial car park that is considerably larger than the common suburban or local centres, but ranking in size beneath the major suburban shopping centres.
It submitted that the Court should find that the locality was the area within a radius of two kilometres from the proposed premises.
It noted that within that locality, there has been a long standing population growth, associated with the change of land use from horticultural to residential development over the last two decades that that this growth will continue in the future.
It noted that despite that history of growth, no unrestricted packaged liquor licences have been granted in the locality which has resulted in a licence density which is very significantly lower than the State average, and would remain so even if the licence was granted.
It submitted that Martins Plaza is well patronised and used widely by those in the locality to undertake shopping and meets their ordinary daily needs at a chemist, doctor or gym. It pointed to evidence adduced in the hearing before me that demonstrated a consistent pattern of total vehicle numbers of between 13,000 to 14,000 a week which in turn reflects that the car park turns over between seven and nine times a day with substantial patronage even on days when the supermarket is closed. It added that these figures do not take account of patronage of those that would walk or use public transport to visit Martins Plaza, noting that nearby is a retirement village. It pointed out that the sole individual objector explained that she walked to Martins Plaza and it met all her shopping needs.
It submitted that the grant of the application will enhance convenience to a significant portion of the community living in the southern and western portions of Parafield Gardens who are presently required to drive north‑east and past Martins Plaza in order to purchase liquor.
It submitted that it would enhance choice by offering an alternative to the BWS stores at Hollywood Plaza and the Slug 'N' Lettuce Tavern and the Liquorland at Parafield Plaza. It submitted that the proposed premises can be expected to offer a range of products that are differentiated from the products available in those stores because Local Cellars purchases its products from wholesalers of liquor, beer or wine, or purchases directly from producers.
The respondents to this application for review, submitted that the applicant has erroneously elevated the suggested two kilometre radius in the Guidelines as akin to a default rule of law. They make the point that it is no more than a guide and it is for the licensing authority to decide for itself what the relevant locality is. They submitted that the delegate was entitled to rely upon her accumulated experience and she plainly formed the view that those residing in the vicinity of Hollywood Plaza would find it an easy drive to Martins Plaza.
The respondents then submitted that even if the delegate erred, in considering that the fact of the BWS store in Hollywood Plaza was a factor to be taken into account in determining the locality, it made no difference to the outcome, because in undertaking the evaluative exercise that the community interest entails, it was appropriate for the delegate to consider licensed facilities on the outskirts of the locality.
The respondents took issue with the submission that the delegate erred in drawing comparisons with shopping centres at Walkley Heights and Hove. They submitted that the only relevant facilities in Martins Plaza are the Foodland Supermarket, the Asian‑style grocery store and the small Indian‑style grocery store and that the delegate rightly concluded that the retail offerings at Martins Plaza were relatively sparse. They submitted that Martins Plaza was not the type of shopping centre where persons living in the locality would be expected to undertake their weekly or fortnightly shop and that the comparison with Walkley Heights was appropriate as was the comparison between Hollywood Plaza and the Ingle Farm Shopping Centre. It contended that the relative size of Martins Plaza by comparison to Hollywood Plaza not only informed the likely movement of persons in the locality, but it enabled the finding that Martins Plaza was not a shopping centre that would evoke a community expectation of having amongst its offerings a bottle shop.
The respondents invited the Court to note that none of the trading data pertaining to the performance of the Foodland Supermarket, such as gross sales, turnover, or basket size , was placed before the delegate or the Court. It submitted that an adverse inference could be drawn from this and that the Court could be fortified in forming the view that the supermarket was not that successful, given its preparedness to cede 200 square metres of trading area to accommodate the proposed premises.
The respondents submitted that the evidence of car visitations to Martins Plaza was of marginal assistance, because it did not isolate those under the age of 18 and it did not identify what facilities at Martins Plaza the drivers and passengers of those cars were using.
The respondents took issue with the complaint about the delegate's finding that the Foodland Supermarket was not a full-line supermarket. They contended that the expression "a full-line supermarket" is not a term of art and that the delegate's use of the expression reflected her view that the status of the Foodland Supermarket was somewhere between the positions adopted by the parties: the applicant contending that it was comparable to a larger Coles or Woolworths and the objectors contending that it was no more than a small convenience mart.
The respondents submitted that the applicant's contention that the proposed premises enhance choice by offering an alternative to the BWS stores at Hollywood Plaza and the Slug 'N' Lettuce Tavern and the Liquorland at Parafield Plaza was overstated. They submitted that the indicative stock list was in large measure the list that reflects the reality that most customers purchase take away liquor from a core range. They added that if members of the relevant community might be looking to buy more unique products, they already have ample opportunity to do so at the large PALS nearby.
The respondents also raised some technical matters. They noted that under the lease arrangement that Mr Siciliano has with Martins Plaza Pty Ltd, that company is entitled to a share of the gross sales. They made the point that if the same arrangement applies to liquor sales, this would be a breach of s 99 of the Act which makes it an offence "if a licensee enters into any agreement or arrangement under which an unlicensed person may participate in the proceeds of the business carried on under the licence".[14]
The applicant submitted that that there would be a separate lease for the proposed premises that would not involve any agreement or arrangement under which an unlicensed person may participate in the proceeds of the proposed premises.
The respondents then noted that pursuant to s 57(2)(9b) of the Act, an application for proposed premises "must not be granted unless the licensing authority is satisfied that any approvals, consents or exemptions that are required by law for the carrying out of building work before the licence takes effect have been obtained".
As I understand the argument, it is contended that the Community Titles Act 1996 applies to the proposed premises and that absent proof of an agreement to permit the construction of the proposed premises, the requisite approvals, consents or exemptions that are required by law for the carrying out of building work have not been obtained.
The applicant submitted that the Community Titles Act is not properly interpreted as being a planning law as set out under s 57(2)(a) of the Act such that its relevance only potentially relates to s 57(2)(b) or s 57(2)(c). It then submitted that the Community Titles Act consent is something akin to a landlord consent for the undertaking of building work and it is not a matter that s 57(2) is concerned with. It added that in any event, if this was a matter of concern for the Court it could be dealt with by granting the application subject to the requisite consent being obtained.
[2]
I commence with the technical arguments put forward by the respondents.
The submission put by the applicant's counsel that that there would be a separate lease for the proposed premises was doubtless made on instructions. There is no evidence to the contrary and noting that under s 23(b) of the Act that I am not bound by the rules of evidence and may inform myself as I see fit, I am prepared to act upon that submission in finding that issues around s 99 of the Act do not arise.
As to the Community Titles Act point, I do not find it necessary to resolve the relevant status of a consent under that Act because if the application otherwise succeeds, this can be dealt with by making the grant of the application subject to obtaining the necessary consent. If it comes to it, I propose imposing such a condition.
I now turn to the merits.
With respect, in my opinion the delegate erred in finding that the locality included the area around Hollywood Plaza.
It can be seen that in respect of proposed premises the Guidelines invite focus upon the area from where the applicant expects to draw their customers, having regard to the nature of the proposed premises. With this in mind, it is not likely that many of those who reside in the vicinity of Hollywood Plaza, being persons who are already well catered for in terms of retail offerings including a bottle shop would travel over two kilometres to purchase liquor from the proposed premises. In my opinion the delegate should have found that the northern limit of the relevant locality ended in the vicinity of Kings Road.
That said, I agree with the submission put by the respondents that nothing turns on the error. As this Court observed in Hotel Angaston Pty Ltd t/as Angaston Hotel & Ors v Scarlett Zetland Pty Ltd t/as Local Cellars Angaston:
[3]
If members of the relevant community are contentedly purchasing take away liquor from premises outside of the locality and can reasonably be expected to do so in the future, this must be taken into account in assessing whether the grant of the application for a new packaged liquor sales licence is in the community interest.[15]
[4]
The delegate was therefore right to give considerable weight to the facilities on offer at Hollywood Plaza as part of her evaluation as to whether the grant of the application is in the community interest.
I reject the submission that something can be drawn from the fact that there are bottle shops in shopping centres in Brighton, St Peters and Christies Beach that are near much larger shopping complexes.
In the first place, the notion a significant factor in support of an application for a bottle shop licence was a contemporary community expectation that the shopping centre in which it was to be situated was one that might be expected to have amongst its offerings a bottle shop was first propounded by the Full Court of the Supreme Court in 2015 in Woolworths Ltd v Fassina Investments Pty Ltd and Ors.[16] It therefore did not feature in the grants that resulted in bottle shops in Brighton, St Peters and Christies Beach.
Moreover, it should not be overlooked that that actual finding that the Full Court made in that case was that there was "the contemporary community expectation was that a very large regional centre such as Arndale would include a retail liquor store."[17] (Emphasis mine)
That is not to say that community expectations are irrelevant. As noted earlier, a licensing authority must have regard to the objects in determining an application. Those objects include: "to ensure as far as practicable that the sale and supply of liquor is consistent with the expectations and aspirations of the public". I simply make the point that what happened in those other grants has no bearing on this case.
The submission put by the respondents regarding the applicant's failure to adduce evidence of the trading data pertaining to the performance of the Foodland Supermarket particularly resonates in this case, given Mr Tisato's involvement in preparing the Submission.
In Hotel Angaston Pty Ltd t/as Angaston Hotel & Ors v Scarlett Zetland Pty Ltd t/as Local Cellars Angaston,[18] this Court noted that Mr Tisato included in the submission that he prepared in support of applications for packaged liquor sales licences for proposed premises trading under the Local Cellars badge in Tanunda and Angaston, the trading figures for supermarkets adjacent to both proposed premises.
In connection with the supermarket adjacent to the proposed premises at Angaston, this Court noted as follows:
[5]
His evidence of a $160,000 of average weekly sales, 5,400 average weekly transactions, and a $30 average transaction basket, does not indicate a particularly busy supermarket that conducts frequent large scale purchases. Based on other cases heard in this Court, this average basket size suggests that many who shop there, are using it to "top up" rather than using it for a large weekly shop.[19]
[6]
But it is apparent from the small basket size and overall turnover of the Angaston Foodland Supermarket, that their use of the supermarket appears to be very much in the nature of passing trade. That is hardly surprising, given the much larger supermarkets that are available to them in Nuriootpa and Tanunda. There is no reason to suppose that this cohort would treat the proposed premises any differently, given the ample take away liquor options near supermarkets in their own towns. In other words, contrary to the submission advanced by the Plush Group, it is likely that their use of the proposed premises will be in the nature of passing trade.[20]
[7]
The significance of this finding becomes apparent later in the judgment where it was said:
[8]
The Tanunda Foodland Supermarket is quite large and its transactional history suggests that it is a busy supermarket. The Barossa Co‑op is part of a formidable shopping complex in Nuriootpa. Both are near take away liquor facilities, which in the case of Tanunda is about to be enhanced by the recent grant of a packaged liquor sales licence there. These facts permit the drawing of the inference that all are meeting the aspiration that many contemporary Australians share of wanting to combine their take away liquor purchases as part of a one stop shopping experience. The relatively short driving distances from Angaston to Tanunda, and from Angaston to Nuriootpa, enables the drawing of the inference that many of the residents of Angaston and the surrounding areas will be regularly and contentedly using these shops and take away liquor facilities to fulfil that aspiration.[21] (Footnote omitted)
[9]
In this case, the size of Hollywood Plaza permits the drawing of the inference that for many of those living in the vicinity of Martins Plaza, it is meeting the aspiration that many contemporary Australians share of wanting to combine their take away liquor purchases as part of a one stop shopping experience.
If the applicant was to contend that notwithstanding this, the grant of this application would meet that aspiration, it might have been expected that it would have produced the trading data for the Foodland Supermarket to demonstrate that it is a busy supermarket. Afterall, given the findings by this Court in Hotel Angaston Pty Ltd t/as Angaston Hotel & Ors v Scarlett Zetland Pty Ltd t/as Local Cellars Angaston, Mr Tisato must have been aware of the importance of producing the trading data of a supermarket in connection with an application for a packaged liquor sales licence that in part is based upon the proximity of the proposed premises to a supermarket. I think it is significant that no such evidence was adduced.
I accept that the evidence of car visitations to Martins Plaza of the order of between 13,000 to 14,000 a week indicates that the shopping centre is visited by many. But these numbers include those who visit there to attend the take away food facilities, the doctor, the pharmacy, the financial services adviser, the local MP and the gym. This cohort might not necessarily also attend the Foodland Supermarket, the Asian‑style supermarket or the Indian grocer, and if the application succeeds, may not necessarily be expected to visit the proposed premises.
On the evidence presented, the inference cannot be drawn that the Foodland Supermarket is especially busy. In my opinion, the evidence does not displace the inference that for many of those living in the vicinity of Martins Plaza, Hollywood Plaza is contentedly providing them with the opportunity to combine their take away liquor purchases as part of a one stop shopping experience and that it will continue to be so if the application is granted.
I therefore respectfully agree with the delegate's findings that Martins Plaza does not provide for "one stop shopping" and that it was "not a thriving centre providing a full range of services required for residents' major weekly or fortnightly shopping needs."
In this case, it must be acknowledged that the evidence does not indicate that there are a disproportionate number of problem drinkers in and about the locality or that, despite the low SEIFA ranking, that the grant of this application will have an adverse impact upon the community.
I accept that there are not any other features of the locality that are especially concerning in the context of this application. It must also be accepted that the grant of this application will create some small employment opportunities.
But for the reasons outlined above, this is not a case where the grant of this application will for many living in the locality enable them to combine their take away liquor purchases as part of a one stop shopping experience.
The relevant community currently has easy access to the BWS store attached to the nearby Slug 'N' Lettuce Tavern and, like Ms Reichbart, many are contentedly using it. It can be expected that many of this community are contentedly using Hollywood Plaza to combine their take away liquor purchases as part of a one stop shopping experience. For those wanting a range of products beyond what might be expected of a BWS or Liquorland store, PALS, albeit some distance away, already provides them with that opportunity.
These are matters of some significance. I repeat the observation made by this Court in Liquorland McLaren Vale (No. 3):[22]
[10]
Parliament has elected not to go down the path taken in other jurisdictions of permitting the wholesale alignment of bottle shops with supermarkets and this can be taken to reflect the public's expectations in this State. The public clearly supports the alignment of bottle shops with some shopping centres that contain supermarkets. If it were otherwise, there would not be so many bottle shops aligned with supermarkets in shopping centres. But through the Parliament, the public can be taken to not aspire to an alignment of a bottle shop with every shopping centre that contains a supermarket. The public can be taken to consider that sometimes, because of the proximity of other take away liquor facilities, it would be better for a shopping centre not to have a bottle shop.[23]
[11]
In my opinion, this is such a case. I therefore respectfully agree with the delegate that the grant of this application is not in the community interest. And, for essentially the same reason, I find that it is not in the public interest to grant this application.
The application for review is therefore dismissed.
[12]
[1] Corrected for the reasons explained in Local Cellars Parafield Gardens (No. 2)[2025] SALC 69.
[13]
[2] An application for a packaged liquor sales licence is deemed to be a "designated application" by s 4 of the Act.