1. The decision of the respondent made on 22 September 2008 is set aside and in its place there is a decision that a renewable limited licence be granted to the applicant subject to the conditions set out in paragraph 16 herein.

1. Mr McGain's application for a licence to sell organic wines spirits and beer appeared quite simple on the surface and it is probably a source of consternation to him that it has developed into a review at this Tribunal. The respondent refused his application and he now seeks review of that decision. However, the perceived simplicity is somewhat superficial having regard to the governing legislation and its aim of harm minimisation.
2. The history of the matter is as follows. In 1998 Mr McGain applied for and received a permit to conduct a wholesale plant nursery in an industrial area outside the Anglesea township. As things developed, the focus of the business changed from predominantly wholesale to predominantly retail. This occurred even though the site was not ideal for retail and Mr McGain told the Tribunal that he had not at first anticipated the local demand for nursery products.
3. Approximately four years ago, the business starting selling vegetables and fruit concentrating on local and organic products. Mr McGain told the Tribunal that the local council became concerned because his town planning permit did not permit such activity and as the council was anxious to assist what had become a popular local business, it suggested to him that he apply for a permit to operate a convenience store within the nursery premises. New plans were drawn up to accommodate the fruit and vegetable activity and those plans complied with the legal requirement that the part of the premises devoted to the convenience store was not to exceed 240 square metres. The planning permit to operate the convenience store issued in April 2007 and the accompanying letter from Surfcoast Shire noted that "this permit has approved the use of the land for a Convenience Store which by definition limits the type of goods which may be offered for sale to convenience goods only. For the purposes of this permit convenience goods are considered to be "staple foodstuffs for daily consumption".
4. Mr McGain told the Tribunal that from his experience it was clear that many people were concerned with the "cocktail of sprays" applied to food products and that he now wished to sell a range of organic wine spirits and beer to complement the organic products already sold and to satisfy the particular local demand.
5. And of course, that is where he ran into trouble. Section 22(1)(b) of the Liquor Control Reform Act 1998 ("the Act") provides that the Director of Liquor Licensing (and this Tribunal standing in her shoes) must not grant a licence in respect of premises that, in the opinion of the Director; are used primarily as a milk bar, convenience store or mixed business. A "convenience store" is defined in section 3 to means premises of not more than 240 square metres on which food, drinks and other convenience goods are sold. It was the Director's decision that this was a convenience store and thus she refused the licence application.
6. Section 22(2) of the Act provides that the Director may, with the approval of the Minister grant a licence if the Minister is satisfied that the area in which the premises are situated is a "tourist area or an area with special needs and that there are not adequate facilities or arrangements for the supply of liquor." That is not the case here .
7. The block itself is quite large, encompassing 1,042.9 square metres. The area excised from it for the purposes of the convenience store permit is approximately 82.3 square metres and represents the area originally designated for storage.
8. To the applicant, it seems an insignificant step to allow the licence he contemplates. After all, the space set aside for the contemplated sales would only allow for 35 bottles at any one time. Mr McGain contends first that in interpreting the words "premises" used in s 22 of the Act I should regard the entire 1042 square metres as being the premises. That is clearly wrong based on the application he made and the permit granted in 2007 by the local shire; to come to this conclusion would be to indulge in pure sophistry. The "premises" clearly relates to the area delineated on the plan submitted to council on 18 April 2007 and nominated as areas for "fruit and vegetables" and "office/food prep". I am grateful to the respondent's solicitor for her excellent submissions in this regard but for the reasons that follow I have not had to have regard to the bulk of them.
9. The issue before the Tribunal is quite discrete. Is the delineated area a mixed business, a milk bar or a convenience store? If it is not, then the ordinary licensing principles fall to be considered. If it is any of the three categories, then the Tribunal must refuse the licence. Section 22(1) is prohibitive in its terms - there is no discretion.
10. For obvious reasons there is not a lot of law on the subject but what there is, in quite instructive. The particular case of Seldan Pty Ltd v Liquor Licensing Commission and Wonga Park Village Supermarket Pty Ltd (unreported 15.5.1990. Supreme Court of Victoria, Nathan J) provides a comprehensive summary of issues arising out of the identical section in the former Liquor Control Act 1987 and I am grateful to the respondent for bringing it to my attention. I intend to set out a lengthy portion of his Honour's judgment before turning to the factual issues before the Tribunal.

A "milk bar" is an antipodean phenomenon. Ordinarily the expression "bar" would denote the sale of liquor, but we are now familiar with snack bars, or even oyster bars. The word "bar" has come to mean a place from which a particular commodity is sold, for example, sandwiches from a snack bar, or places at which particular types of people gather. A milk bar has a more specialist meaning. It has come to denote a shop from which not only milk, but other processed foods, are sold. The man on the Glen Iris tram would readily understand that a kiosk on the beach front, albeit selling milk based drinks was not a milk bar. The public recognition of a milk bar encompasses small shop front premises which sell newspapers, confectionery, small grocery items, occasionally prepared food and dairy produce. The list is not exhaustive, but premises from which cooked hamburgers were sold would not commonly be considered a milk bar, whereas premises from which sandwiches and sticky cakes were sold, would be. The remarks I have made in categorizing a milk bar would also apply to the expression "mixed business." A mixed business is commonly taken to mean a small scale retail operation selling a variety of readily consumable products. .... Although a big city department store would probably sell all of the products purveyed by a local mixed business, it would not be commonly perceived as a mixed business. Scale of operation, the range of products sold, and in some cases location, are all indicia of premises which would be commonly accepted as being mixed businesses or milk bars.

In my view it is this context that the expression "convenience store" should be interpreted. A convenience store has come to mean a place from which odd items are purchased as a matter of convenience, either because it is located near to the consumer, or is open at times which are convenient.

The concept of a convenience store is.....multifaceted. A wide range of goods are sold. That range is selected by the proprietor to suit the convenience of customers, as is also the case with mixed businesses or milk bars. Premises from which a particular product, or range of products are sold may cease to be convenience stores and become specialty shops, the parameters can never be defined and each case demands subjective investigation. .....

The notion [common knowledge] takes with it an implication that the major part of a households shopping may be done at a large supermarket or shopping complex, but the odd or incidental item, either forgotten at the time of the major purchases, or suddenly found to be required, is bought from a proximate convenience store selling a range of products similar to those of milk bars and mixed businesses.

1. It is clear from his Honour's dissertation that these matters are entirely subjective and each case must be considered on its individual facts. I was aware that the Commissioner had made her decision following a site visit and for that reason I too inspected the subject premises. The plant nursery and shop are to be found in a back street of the town industrial estate. It is certainly not a convenient location and indeed I concluded from my visit that it is patronised principally by the local cognoscenti. It certainly does not fulfil the criteria of being a proximate store to which people would hasten to purchase forgotten or suddenly needed items. It is not likely to attract passing traffic (there being little in any event) and people must purposefully decide to drive to the store for a particular reason; either to the nursery for plants, or potting soil or garden products or to purchase the organic produce that is for sale. It is clearly not a mixed business or a milk bar and Nathan J remarked, no particular expertise is necessary to make that observation.
2. The operating hours are not those of a typical convenience store. It closes at 6.00 pm and the opening hours vary between 8.00am and 10.00 am depending on the day of the week. Before I visited the site I took the opportunity to visit a range of recognised convenience stores and took note of the products sold at them. What was notable about the site at Anglesea on the day of my visit was the product range it did not sell - no newspapers, no magazines, no film, no condoms, no batteries, no confectionery (other than organic chocolate), no hot food, no gift or phone cards, no salted chips above all no tobacco products.
3. The products it did sell which were in common with ordinary convenience stores were only available in the organic variety and it strikes me that for that very reason, it differs. So for instance, organic ice cream was available, but not the range of ice creams usually on sale, milk was available but in limited forms; soft drink was restricted to organic varieties with a concentration on organic juices, cleaning products were only organic, bread was available only in an organic form and so on. It struck me that it fitted better into the category contemplated by Nathan J as a specialty shop.
4. In my view the area set aside for the sale of organic products is not a convenience store. Whilst it might seem odd that premises can be a convenience store for town planning purposes but not for liquor licensing, that seems the inevitable result. One is not determinative of the other and the tests do not necessarily equate. The Tribunal does however note in passing that for town planning purposes a permit is not required for a limited liquor licence.
5. That brings me to the matters normally required for consideration. The Tribunal accepts that Mr McGain is a reputable businessman running a successful and reputable business in a rural area. He is a director of the applicant company. It is notable that there are no objections from anyone in relation to the application, not from the police or the local council and not from any member of the public. Indeed the Director does not contest his suitability. In the circumstances there seems to be no impediment to granting a limited licence.
6. The decision of the Tribunal will be to set aside the decision of the Director of Liquor Licensing and substitute it with a decision that a renewable limited licence be granted to The Beautiful Garden Company Pty Ltd subject to the following conditions and the completion by Mr McGain of acceptable New Entrant Training for Liquor Licensees:
   • The licence is for the sale of organic wine spirits and beer only;
   • The address at which such products can be sold is 1 Simmons Crt, Anglesea;
   • Hours of trading:

1. In the event there needs to be some amendment to the conditions the parties have liberty to apply.