Smitham Due East Pty Ltd v Commissioner for Liquor and Gaming [2026] QCAT 92

Liquor Regulation 2002 (Qld), s 7

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24

Monty on Montague Pty Ltd v Commissioner for Liquor and Gaming [2020] QCAT 129

Vicpoint Pty Ltd v Liquor Licensing Division, Queensland Treasury [2008] CCT LR07-07

Ms L Benjamin of the Office of Liquor and Gaming Regulation of the Department of Justice and Attorney General

[1] These reviews of two decisions were filed in the Tribunal on 14 July 2023 and they were heard before me, in person, on 24 June 2025 and the parties were legally represented.

[2] The facts and circumstances relating to the reviews are not in dispute and I will briefly outline the background:

(a) The applicant, Smitham Due East Pty Ltd ('Smitham'), is the holder of a Commercial Hotel Licence ('Licence') for the Gumdale Tavern ('Tavern') which is situated at the Eastside Village Shopping Centre ('Centre'), shop 23, 277 Tilley Road, Gumdale.

(b) As part of the Licence, Smitham also operates three detached off licence bottle shops. One of those bottle shops operates from shop 5 ('Bottle Shop 5') in the Centre and is approximately 50 metres from the Tavern.

(c) Smitham operates the Tavern pursuant to the provisions of the Liquor Act 1992 (Qld) ('the Act').

[3] On 2 August 2022, Smitham made two applications (Applications), pursuant to s 154 of the Act, to the Office of Liquor Gaming and Regulation ('Commissioner') requesting the Commissioner to approve the following:

(a) Decrease the area of the licensed premises of the Tavern by removing Bottle Shop 5 from being part of the licensed area of the Tavern and as a detached - on premises - bottle shop; and

(b) Increase the area of the licensed premises of the Tavern to include Bottle Shop 5 as an on-premises bottle shop to be part of the main licensed premises of the Tavern.

[4] On 19 June 2023 the Commissioner refused the Applications because:

(a) Bottle Shop 5 was already approved as a detached bottle shop.

(b) Approving Smitham's Applications would allow Smitham to apply for an additional detached bottle shop which would undermine the intention of the Act to limit the number of detached bottle shops per licence to three.

(c) There is not sufficient connection between the Tavern and Bottle Shop 5 to conclude that it is part of or an extension of the Tavern.

[5] I will refer to the Commissioner's refusals as the Decisions.

[6] The reviews were made pursuant to s 30 of the Act_._

[7] The jurisdiction and powers of the Tribunal in reviewing the Decisions are set out in s 19 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'). That is the Tribunal has the same powers, discretions, duties, and limitations as the Commissioner under the Act.

[8] Pursuant to s 20 of the QCAT Act the review of the Decisions is a fresh hearing on the merits and the purpose of the review is to produce the correct and preferable Decisions. The Tribunal is not required to identify an error in either the process or the reasoning that led to the Decisions being made, and there is no presumption that the Decisions were correct.

[9] Pursuant to s 24(1) of the QCAT Act in a review the Tribunal may -

(a) Confirm or amend the decision; or

(b) Set aside the decision and substitute its own decision; or

(c) Set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with directions the tribunal considers appropriate.

[10] Section 33 of the Act states that reviews of decisions made under the Act are confined to a consideration of the evidence that was before the Commissioner when the Decisions were made and the application of the relevant law that applied when the Decisions were made.

[11] Smitham made an application pursuant to s 34 of the Act to present further evidence outlined in the affidavits of Annabelle Efstathis and Zahra Rashidi filed in the Tribunal on 21 September 2023. On 13 June 2025 this application was refused.

[12] The statement of reasons ('S of R') filed in the Tribunal on 24 August 2023 attaches relevant documents, with numbered pages. I will refer to these documents as the Bundle. Photographs and plans of the Tavern and the Bottle Shop 5 are on pages 91 to 148 of the Bundle.

[13] Several examples of similar arrangements ('Examples') were outlined in the submissions from Smitham to the Commissioner and the Examples were highlighted and discussed by both parties during the hearing. See pages 43 to 49 of the Bundle. I was invited by both parties to view these Examples without any of the parties being present. I viewed the following Examples:

(a) The Tavern

(b) Newmarket Hotel.

(c) Malt.

(d) Montague Hotel.

(e) Belmont Tavern.

[14] The central issue in this Application is the interpretation of s 154 of the Act, the underlying subordinate legislation and guidelines. This legal framework has been the subject of several decisions of the Tribunal.

[15] The applicable legal framework is not in dispute. I set out this legal framework.

[16] The main purposes of Act are set out in s 3 of the Act:

(a) to regulate the liquor industry, and areas in the vicinity of licensed premises, in a way compatible with -

(i) minimising harm, and the potential for harm, from alcohol abuse and misuse and associated violence; and

Examples of harm -

• adverse effects on a person's health
• personal injury
• property damage

(ii) minimising adverse effects on the health or safety of members of the public; and

(iii) minimising adverse effects on the amenity of the community; and

(b) to facilitate and regulate the optimum development of the tourist, liquor and hospitality industries of the State having regard to the welfare, needs and interests of the community and the economic implications of change; and

(c) to provide for the jurisdiction of the tribunal to hear and decide reviews of certain decisions under this Act; and

(d) to provide for a flexible, practical system for regulation of the liquor industry of the State with minimal formality, technicality or intervention consistent with the proper and efficient administration of this Act; and

(e) to regulate the sale and supply of liquor in particular areas to minimise harm caused by alcohol abuse and misuse and associated violence; and

(f) to regulate the provision of adult entertainment; and

(g) to provide revenue for the State to enable the attainment of this Act's main purposes and for other purposes of government.

[17] Section 60(1) of the Act authorises the sale and/or consumption of alcohol, both on-premises and off-premises, through a licence. Section 60(1) of the Act provides as follows:

(1) A commercial hotel licence authorises the licensee -

(a) to sell liquor on the licensed premises, for consumption on or off the premises, during ordinary trading hours or approved extended trading hours; and

(b) to sell liquor on the licensed premises, for consumption on or off the premises, at any time to a resident on the premises; and

(c) to sell liquor on the licensed premises, for consumption on the premises, at any time to a guest of a resident on the premises while the guest is in the resident's company; and

(d) to sell liquor on premises approved by the commissioner for sale of liquor under authority of the licence, for consumption -

(i) off the premises; or

(ii) on the premises in the amount and in the circumstances prescribed by regulation.

Note -

Premises approved by the commissioner under subsection (1)(d) are detached bottle shops under this Act.

[18] Section 60(1)(d) of the Act authorises a licensee to have a detached bottle shop. Only a licensee with a Licence may have a detached bottle shop.

[19] Any licensee may apply under section 154 of the Act to change the licensed areas of the premises. Section 154 of the Act provides as follows:

1. Alteration etc. and maintenance of licensed premises

(1) The owner, licensee or other person in control of licensed premises must not, without the commissioner's approval, alter, rebuild, change or increase the area of the licensed premises.

_Examples for subsection (1) - _

1. The licensee of a detached bottle shop in a shopping centre changes the relevant leasing arrangements by reducing the overall area the shop is to occupy. Therefore the licensee must apply for the commissioner's approval to alter the licensed premises permanently.

2. An RSL club is the licensee of a licensed club and wishes to erect a tent next to its licensed premises to provide liquor on Anzac Day. Therefore the licensee must apply for the commissioner's approval to increase the area of the licensed premises for that occasion.

Maximum penalty - 25 penalty units.

(2) For subsection (1) -

(a) in giving an approval, the commissioner must have regard to the business that is the principal activity conducted under the licence; and

(b) a change in the area includes not using a part of the licensed premises as if the part were not licensed premises.

(3) Before giving an approval, the commissioner may ask the applicant to give the commissioner a management plan relating to the proposed alteration, rebuilding, change or increase.

(4) The management plan must include information the commissioner considers appropriate having regard to -

(a) the business that is the principal activity conducted under the licence; and

(b) the nature of the alteration, rebuilding, change or increase.

(5) If the commissioner asks the applicant for a management plan under subsection (3), the commissioner must not give the approval unless the applicant complies with the request.

(6) The licensee of licensed premises must keep the premises clean and in good repair.

[20] The term 'premises' is defined under section 4 of the Act to include:

(a) land; and

(b) a building or structure on or in land; and

(c) a vehicle, boat, aircraft, train or other means of transport.

[21] Regulation 7 of the Liquor Regulation 2002 (Qld) ('Regulation') applies to the approval of a detached bottle shop. Regulation 7 is set out as follows:

1. Circumstances in which commissioner may approve premises as detached bottle shop

(1) The commissioner may approve premises, as mentioned in section 60(1)(d) of the Act, only if -

(a) the applicant is the licensee of licensed premises (the main licensed premises); and

(b) the proposed detached bottle shop -

(i) is not more than 10km by road from the main licensed premises; and

(ii) has a floor area of not more than 150m2; and

(iii) does not have direct access from any other business premises; and

(iv) has direct access from a public place; and

(v) does not have a facility ordinarily known as a drive-in or drive through; and

(c) the applicant has no more than 2 detached bottle shops for the main licensed premises; and

(d) the applicant satisfies the commissioner that -

(i) conducting the proposed detached bottle shop on the premises is permitted under the planning scheme of the relevant local government for the premises; and

(ii) only the applicant has a right to occupy -

(A) if the detached bottle shop will occupy the entire premises - the premises; or

(B) if the detached bottle shop will occupy only part of the premises - the part of the premises; and

(iii) the same person or entity will have the financial benefit of the proposed detached bottle shop and the business conducted at the main licensed premises; and

(iv) the applicant will conduct the proposed detached bottle shop under the same business name as the business conducted at the main licensed premises; and

(v) the licensee's principal place of business will be the main licensed premises.

(2) For subsection (1)(b)(i), a proposed detached bottle shop is not more than 10km by road from the main licensed premises if either of the following distances is 10km or less -

(a) the distance measured between -

(i) the place of egress by road from the land on which the main licensed premises is located that is closest to the proposed detached bottle shop; and

(ii) the place of ingress by road to the land on which the premises is located that is, or includes, the proposed detached bottle shop that is closest to the main licensed premises;

(b) the distance measured between -

(i) the place of egress by road from the land on which the premises is located that is, or includes, the proposed detached bottle shop that is closest to the main licensed premises; and

(ii) the place of ingress by road to the land on which the main licensed premises is located that is closest to the proposed detached bottle shop.

(3) A distance mentioned in subsection (2) must be measured using the shortest route that may be taken driving a motor vehicle in compliance with the relevant laws of the State and local laws.

(4) Subsection (1)(b)(i) does not apply if the applicant satisfies the commissioner that -

(a) the proposed detached bottle shop will -

(i) be in a locality in which there is no licensed premises at which liquor is sold for consumption off the premises; and

(ii) primarily service the residents of the locality; and

(b) because of the locality's population or projected population, the locality is not likely to attract the establishment of licensed premises other than a detached bottle shop.

_Example of a locality for subsection (4) - _

a small rural community more than 10km from the nearest premises from which takeaway liquor is sold to the public

(5) Subsection (6) applies if the proposed detached bottle shop will occupy only a part of the premises and there is a condition in the applicant's tenancy agreement for the part of the premises that the owner of the premises will not grant anyone else the right to occupy another part of the premises as a detached bottle shop.

(6) The applicant must satisfy the commissioner that the applicant did not ask the owner to include the condition in the agreement.

[22] In accordance with section 42A of the Act, the Commissioner may make Guidelines to inform applicants about the position the Commissioner is likely to adopt on a particular matter, or how the Commissioner administers the Act, or any matter that may help applicants comply with their responsibilities.

[23] The Commissioner's Guidelines 35 and 40 deal with a change of licensed areas.

[24] Guideline 40 prescribes that a licensee must seek approval from the Commissioner if the proposed changes may result in:

(a) an increase or decrease in the size of the licensed premises;

(b) part of the licensed premises not being used as licensed premises;

(c) the rebuilding of the licensed premises; or

(d) major renovations to the licensed premises.

Guideline 40: Applications to alter, rebuild, change or increase the area of the licensed premises

Liquor Act 1992 - Section 154, Alteration etc. and maintenance of licensed premises

Liquor Regulation 2002 - Regulation 21

Wine Industry Act 1994

Reason for this guideline

This guideline has been developed to help licensees identify when an alteration or other change to a licensed premises requires the Commissioner's prior approval.

Under the Liquor Act 1992, the owner, licensee or person in control of a licensed premises must not, without the Commissioner's approval, alter, rebuild, change or increase the area of the licensed premises.

The Commissioner recognises the approval requirement could be viewed broadly and encompass any change to a licensed premises, even minor or cosmetic ones.

This guideline provides a balanced approach to regulating licensed premises, having regard to the main purposes and principles of the Liquor Act which include, but are not limited to:

• minimising adverse effects on the amenity of the community

• requiring licensees and permit holders to take reasonable steps to ensure that their operations do not create undue disturbance

• facilitating and regulating the optimum development of the tourist, liquor and hospitality industries having regard to the welfare, needs and interests of the community and economic implications of change

• providing for a flexible, practical system for regulation of the liquor industry with minimal formality, technicality or intervention consistent with proper and efficient administration.

When prior approval will generally be required

Licensees will generally need to apply for the Commissioner's approval when proposed changes may result in any one of the below:

• an increase or decrease in the size of the licensed premises (see further explanation below)

• part of the licensed premises no longer being used as licensed premises

• rebuilding the licensed premises

• renovations to the licensed premises, except when

• the estimated cost of the renovation is less than $500,000

• or

• the renovations are only cosmetic (e.g. carpeting, tiling, painting and decorating), regardless of cost

• or

• the renovations are limited to like-for-like replacements (e.g. replacing bar tops or refrigeration equipment), regardless of cost

• a new on-site bottle shop or liquor barn

• altered acoustic qualities or increased noise that may affect community amenity.

All applications must be lodged and approved by the Commissioner before the alterations or other changes take place.

The Commissioner may determine that the application be advertised under Section 118(1) of the Liquor Act 1992.

When prior approval will not generally be required

Licensees won't generally need to apply for the Commissioner's approval when the proposed changes:

• don't fall within the criteria listed above

• don't adversely affect local community amenity in any other way.

If there is any doubt about the requirement to seek the Commissioner's prior approval, licensees are encouraged to contact the Office of Liquor and Gaming Regulation at OLGRlicensing@justice.qld.gov.au for guidance before commencing any alterations.

Change to the licensed area

An application to change the licensed area is required when the licensee proposes to increase or decrease the area, and/or alter or rebuild the area in a way that will affect its description, for example:

• adding a footpath dining area

or

• adding an adjoining piece of land.

Applications to increase the licensed area must only include adjoining areas. For more information read Guideline 35: Licensed areas.

Review schedule

The Commissioner will undertake a review of this Guideline every 2 years.

Re-issued 17 September 2025

(Issued 21 December 2001; re-issued 1 August 2003; re-issued 22 May 2009; re-issued February 2013)

...

[26] Guideline 40 prescribes that an application to increase the licensed area must only include contiguous areas.

Guideline 35: Licensed areas

Liquor Act 1992 - Sections 58 and 154

The Liquor Act does not contemplate the licensing of separate or detached premises under 1 licence with the exception of detached bottle shops which are specifically provided for under Section 60(1)(d).

In considering whether to grant an application for a licence under the Act or an application to change the licensed area, which includes detached buildings or land, the Commissioner for Liquor and Gaming must ensure that the licensed premises are able to be appropriately defined and form 1 premises.

Factors considered by the Commissioner in determining a premises include, but are not limited to:

1. whether the parcels of land involved are contiguous or adjacent, or close to each other

2. where there is an identifiable connection between the several components of the premises usually of a physical or visual type

3. separate components have some physical or functional unity or integrity

4. the components appear to constitute 1 place of business and give an appearance of oneness.

Examples of a premises can include:

• instances where parts of a licensed premises, such as the main premises and a liquor barn/bottle shop, or an accommodation block are separated by a private easement, car park, access way or roadway, and it is impractical or impossible to include these areas on the licensed area

• a resort-style facility where multiple accommodation blocks are located on different parcels of land, forming 1 complex under the licensee's control

• clearly defined special facilities and tourist attractions (e.g. the Southbank precinct), where a combination of liquor and non-liquor related businesses collectively contribute towards the precinct's operations

• a half-way house on a golf course.

In considering whether the premises are sufficiently contiguous, the Commissioner will consider the totality of factors.

The following characteristics are considered relevant in assessing the above factors.

Proximity between premises

Proximity is a question of degree. Premises that are situated close to each other may be considered favourably, such as premises that are located on the same lot of land or in the same shopping centre.

Despite any geographical proximity, detached premises that are separated by multiple lots of land and/or other businesses/buildings are less likely to be considered as 1 premises.

Line of sight

Direct line of sight between premises is a characteristic that may be considered favourably, where the line of sight between the different areas is obvious to patrons of both areas.

Common colour scheme

Premises that are painted with common colour schemes is a characteristic that may be considered favourably. The colour scheme of the 2 premises will be assessed against the adjoining buildings. For example, lesser weight will be given to colour schemes that are not distinctive and are common in the locality.

Complementary signage

Premises that have complementary signage is a characteristic that suggests contiguity. However, lesser weight will be given to this characteristic. At minimum, the Commissioner expects that the signage of the premises will have a common colour scheme and design. The signs should also provide directions and instructions to members of the public that the 2 premises are connected as 1 business.

Similarity of building designs

Buildings that have the same architectural design may be considered favourably. For example, where 1 building is heritage listed and another building is designed as a modern office building, it will not be a characteristic viewed favourably.

Applicants are encouraged to lodge written submissions in the first instance to demonstrate how disparate premises meet all the abovementioned criteria.

An exception to this general rule of contiguity is made in relation to producer/wholesaler licences, which by virtue of their wholesaling nature, require an office and a warehouse. These 2 facilities that must form the licensed area may be non-contiguous.

[28] The photographs and plans of the Tavern, Bottle Shop 5 and the Centre are attached to the Bundle and provide an accurate and visual depiction of the Centre, Tavern and Bottle Shop 5. Further when I visited the Centre, I made some observations and took some approximate measurements. I note:

(a) The Tavern and Bottle Shop 5 are located within the same shopping centre. They are situated on two different parcels of land, but these parcels are owned by the same registered proprietor and form part of the Centre. As noted in the Smitham's material, the Centre extends across multiple lots being Lot 1 on SP174637, Lot 4 on SP179637 and Lot 100 on SP 228303. The Tavern and the Bottle Shop are in the same Centre and situated on lots that are contiguous or are adjacent to each other.

(b) Patrons of the Tavern and Bottle Shop 5 share a very large common car park with the other shops in the Centre.

(c) The Tavern and Bottle Shop 5 are some 50 metres from each other.

(d) The Tavern and Bottle Shop 5 are separated by other shops and there is a common passageway between shops 10 and 11 connecting the car parks.

(e) There is a common covered passageway between the Tavern and Bottle Shop 5. The Tavern and Bottle Shop 5 are on different levels. There are steps and a graduated incline connecting the lower part, where the Tavern is situated, and the upper part, where Bottle Shop 5 is situated. See the photograph 111 of the Bundle.

(f) The common passageway outside shops 11 to 15 is approximately 6.6 metres wide whereas the common passageway between shop 10 and Bottle Shop 5 is approximately 5 metres wide.

(g) The common passageway between the Tavern and Bottle Shop 5 extends past Bottle Shop 5 to the Tenancy 1-3 as shown on page 146 of the Bundle.

(h) Shops 11 to 15 consist of food outlets where there is inside and outdoor dining. The outdoor dining areas between these shops are in some cases divided by temporary dividers and there are many outdoor tables, stools and chairs. During my inspection, which took place in the middle of the day, the outdoor dining area was cluttered with tables, chairs and stools and there was no delineated or clear pathway through these outdoor dining areas. See photograph 114 of the Bundle.

(i) There is a direct line of sight between the Tavern and Bottle Shop 5, although this line of sight does have obstacles which interrupt the line of sight in places. For example, the line of sight is interrupted by exterior roof supports. See the photographs pages 105 to 107 of the Bundle.

(j) The Tavern is at the end of the Centre near Tilley Road.

(k) Bottle Shop 5 looks out onto the car park and Old Cleveland Road. If a person stands about 1 or 2 metres outside the Bottle Shop and looks towards the Tavern that person sees a wall of the Tavern. To see the entrance to the Tavern a person must stand outside one of the roof supports of the Centre. See photograph 115 of the Bundle. Using this photograph the person must stand to the right of the roof support and the Bottle Shop 5 sign. See also photograph 134 of the Bundle where the entrance to the Tavern can be seen in the void beneath the Eastside Village sign. The entrance is behind the white vehicle depicted in the photograph.

(l) To walk from the Tavern to Bottle Shop 5, a person must walk through the outdoor dining areas or walk directly on the concrete and avoid the roof supports. The distance between the roof supports and the car park is 400 mm. See the photograph on page 134 of the Bundle. This distance is narrow and using the car park is problematic when there are vehicles parked in the car parking spaces near the Centre building. Therefore, the most logical and practical route to take is to use the covered walkway and walk past the food outlets.

(m) The path to Bottle Shop 5 from the common passageway between shops 10 and 11 is much more straight forward because a person can use the stairs or the pedestrian ramp. See the plan on page 146 and photographs on pages 116 and 117 of the Bundle.

(n) Bottle Shop 5 is not on the lower level where the food outlets are situated. However, the distance between these two areas is only a matter 15 to 20 metres.

(a) The bottle shop and the hotel are on different lots.

(b) The bottle shop is situated in a multi-level office building and the hotel is situated in an old 2 level heritage listed building.

(c) The two premises can only be accessed by a public footpath and there is no cover over the footpath.

(d) The two premises are separated by other commercial premises and a driveway. These premises are situated in the multi-level office building, and some are situated in the two-level heritage building. The two buildings have slightly different colours.

(e) There is no line of sight between the two premises when a patron is inside one of the premises. The only way a patron can view the two premises is to stand outside the premises.

(f) There is large signage which connects the premises. There is signage on the front of both premises as well as signage above the footpath.

(a) The two premises are in the same shopping centre.

(b) The two premises are situated approximately 60 or 70 metres from each other across a common car park. The tavern is a separate stand-alone building whereas the bottle shop is part of the shopping centre. The tavern looks directly at the bottle shop. The tavern and the bottle shop have different colours.

(c) The bottle shop is set amongst other general retailers in the centre.

(d) There is a direct line of sight between the tavern and the bottle shop. However, during my visit, I could not detect any prominent signage on the tavern or the bottle shop to indicate that the two premises are connected.

(a) There is the hotel building and one small bottle shop which are on the same upper level of the Reading shopping centre. This shopping centre is much bigger than the Centre. There is also a drive through bottle shop which is situated on one of the lower levels of the shopping centre.

(b) Both bottle shops are attached to the hotel.

(c) The hotel mainly faces the other commercial premises in the shopping centre. There are sets of steps at the hotel which allows patrons to enter the hotel from the shopping centre and the car park. The front of the hotel is situated on Enoggera Road and Newmarket Road. The hotel can be accessed from Enoggera Road and Newmarket Road. The hotel is an old hotel, and the shopping centre was constructed around the hotel.

(d) The small bottle shop has large BWS signs and two small "Newmarket Hotel" signs on the window. The "Newmarket Hotel" signs are not prominently displayed. There is also a BWS sign on the front the bottle shop and another BWS sign hanging from ceiling of the covered passageway near the bottle shop.

(e) I could not detect any "Newmarket Hotel" signs anywhere on the drive through premises. There may be such signage on the drive through premises, but it is not clearly identifiable to the casual observer. There are very large "BWS" signage prominently displayed on the drive through premises.

(f) There are no other retail outlets in the underground car parks, and it is situated at the opposite end of the shopping centre to the Newmarket Hotel.

(g) The small bottle shop is set amongst several food outlets. Some of these food outlets offer dine in and some outdoor dining. Some of these food outlets offer only take away food.

(h) There are several other food outlets which are situated in the shopping centre. There are several food outlets situated near the hotel.

(i) Patrons of the hotel and small bottle shop can use the upper level and lower-level car parks. Patrons of the small bottle shop and the hotel can access each of these premises directly from the public car park

(j) To use the covered walkway to walk from the small bottle shop to the hotel, it is necessary to walk past many other retail outlets and then walk across a roadway in the car park which has pedestrian crossing markings. This marked crossing is not covered. This walk requires several directional changes, and it is used by patrons of other retail shops, including Coles.

(k) There is a direct line of sight between the small bottle shop and the hotel, but this line of sight is partially interrupted by a large tree in the car park. The line of sight is across the public car park and, on the evidence before me, the distance is approximately 70 metres.

(l) Walking directly from the small bottle shop to the hotel and vice versa requires a patron to take an uncovered route through parked cars and cross at least two car park roadways. I assume this route is not the most practical route, especially in the rain, in summer and when the car park is busy.

(m) I assume that most patrons walking between the small bottle shop and the hotel use the covered walkway route which requires walking much further than 70 metres.

(a) The Montague Hotel is separated from the bottle shop by approximately 60 metres.

(b) There is some line of sight between the hotel and the bottle shop, but it is limited.

(c) The hotel and the bottle shop are on two different parcels of land. There is no shopping centre.

(d) The car park for the hotel is at the rear of the hotel. There is no dedicated car park for the bottle shop. Patrons driving to the bottle shop must find on street parking or use the car park.

(e) It is necessary to walk along a public footpath or a lane at the back of the premises to access the bottle shop from the hotel. In doing so, it is necessary to pass other private properties. Residential housing and commercial buildings of various colours are erected on these properties. Further the setbacks from the footpath to the housing/commercial buildings is not uniform.

(f) The public footpath is not covered.

(g) I agree with the finding of the member at paragraph [81] of the Monty on Montague Pty Ltd v Commissioner for Liquor and Gaming [2020] QCAT 129 ('Monty') decision that there is limited sense of unity between the hotel and the bottle shop. Further the member in the paragraphs [84] and [85] of Monty decision was not satisfied that further signage and a painted walkway would improve the sense of connectivity between the hotel and the bottle shop.

[33] A reading of s 154 of the Act does not provide clear parameters on how this provision should be interpreted. Accordingly, the Commissioner has made guidelines to inform applicants on how the Commissioner administers the Act. Smitham has not raised any issues regarding the Commissioner making such guidelines. The guidelines that relate to a change of licensed areas are guidelines 35 and 40.

[34] Guideline 40 prescribes that an application to increase the licensed area must only include contiguous areas.

[35] Guideline 35 outlines that the Commissioner must ensure that the licensed premises are able to be appropriately defined and form one premises. Factors to be considered by the Commissioner are:

(a) Whether the parcels of land involved are contiguous or adjacent, or close to each other.

(b) Where there is an identifiable connection between the several components of the premises usually of a physical type.

(c) Separate components have some physical or functional unity or integrity.

(d) The components appear to constitute one place of business and give an appearance of oneness.

[36] There are some examples quoted in guideline 35.

[37] The Commissioner has relied on the law and facts as set out in the Monty decision. I agree with the matters of law outlined in this decision. After viewing the Montague Hotel, I also agree with the findings of fact made by the member.

[38] I also agree with the law as stated in paragraph [27] of the Monty decision, where the member states that it is useful to consider the facts and circumstances where previous approvals have been granted and consistency in decision making is desirable. The member goes on to state in paragraph [27] "it is, of course, possible that a previous approval has was granted in error". No party has provided any analysis or commentary on any of the previous approvals that may have been made in error by the Commissioner. Therefore, prima facie, any previous approval granted by the Commissioner is valid and lawful.

[39] In paragraph [30] of the Monty decision the member says that each application must be considered on its own facts. I agree with this statement.

[40] This is a fresh hearing on the merits, and I have considered all the material and evidence that was before the Commissioner and the Examples that I viewed.

[41] I have also considered the decision of the Commercial and Consumer Tribunal in Vicpoint Pty Ltd v Chief Executive Licensing Division, Queensland Treasury [2008] CCT LR017-07 ('Vicpoint'). This decision was referred to paragraphs [35] and [36] of the Monty decision_._ In the Vicpoint decision, the former Tribunal imposed conditions on an applicant to enhance the perception that the tavern and an associated liquor barn were one business. These conditions included the tavern, liquor barn and dedicated walkway were painted in a common colour and appropriate signage being installed on the liquor barn to indicate that it is part of the tavern.

[42] Smitham has indicated that it would agree to conditions, such as signage, being imposed on any approvals to demonstrate that Bottle Shop 5 and the Tavern are connected and are one business.

[43] One of the issues in this review is compliance with guidelines 40 and 35.

[44] On balance I am satisfied that the physical characteristics of the Tavern and Bottle Shop 5 with the addition of recommended signage/common colouring is and will be in compliance of the relevant laws, including guidelines 35 and 40 because:

(a) The issue of proximity and connection is a matter of degree.

(b) The Tavern and Bottle Shop 5 are part of the same shopping centre which extends across at least two lots which are registered to the same owner.

(c) The Tavern and Bottle Shop 5 share a common shopping centre car park which is adequate to service the Tavern, Bottle Shop 5, and the other retail shops at the Centre.

(d) There is a covered walkway connecting the premises.

(e) There should be a clear unhindered under cover pathway between the Tavern and Bottle Shop 5. That is currently not the case, but this issue can be remedied with suitable conditions attached to the approval of the Applications.

(f) The facts and circumstances of proximity in this review are very similar to the Malt Example. Further at the Newmarket Hotel the two premises are much further apart on one level and the Newmarket Hotel drive through bottle shop is on an entirely different level to that of the hotel.

(g) At the Newmarket Hotel Example there is no straight forward walkway between the bottle shop on the upper level and the Newmarket Hotel as is the case in this review. Further, in the Newmarket Hotel Example a patron who wishes to walk from the bottle shop to the Newmarket Hotel must cross a busy two-way car park driveway which is not covered.

(h) There is only a limited line of sight between the entrance of the Tavern and Bottle Shop. Currently when a patron stands outside Bottle Shop 5 that patron observes a wall of the Tavern, not the entrance.

(i) In the Malt Example access between the hotel and bottle shop is via a public uncovered footpath and across a driveway. There is signage hanging above the public footpath.

(j) The line of sight between the Tavern and Bottle Shop 5 can be enhanced by painting the wall of the Tavern and placing suitable signage on this wall.

(k) The direct line of sight between the bottle shop and the Newmarket Hotel is across the public car park. This line of sight is partially interrupted by a large tree in the car park. It is unlikely that a patron would use this direct route because of the reasons referred to earlier. Further the signage at the bottle shop connecting it to the Newmarket Hotel was not prominently displayed.

(l) Current signage and paintwork at the Tavern and Bottle Shop 5 connecting the two premises is inadequate. Consequently, as part of any approval of the Applications, this signage should be upgraded. The colouring and signage should be uniform. This occurred in the Vicpoint decision. Further a sign with a common colour should hang from the ceiling of the passageway indicating that Bottle Shop 5 is part of the Tavern. There is a BWS sign on the front of the bottle shop and one hanging outside the bottle shop at the Newmarket Hotel. There is similar signage on the front fascia of the bottle shop in Belmont.

(m) Bottle Shop 5 is close to the food outlets at the Centre, notwithstanding they are on different levels. Many food outlets at the Newmarket Hotel shopping centre are among other retail shops and many of these food outlets are some distance from the Newmarket Hotel and the small bottle shop. Further in the Malt Example the bottle shop is set amongst various retail outlets. This also applies to the Belmont Tavern Example where the bottle shop is set amongst other retail shops across the carpark from the Belmont Tavern.

(n) The Belmont Tavern Example is very similar to the Newmarket Hotel Example. At Belmont the tavern is in a separate building and the bottle shop is amongst other retail premises. Further at Belmont the tavern is a different colour to the shopping centre and there is no prominent signage connecting the two premises.

[45] The physical characteristics in Montague Hotel Example are very different to the physical characteristics of the Tavern and Bottle Shop 5. For example, at the Montague Hotel:

(a) The premises are on separate lots.

(b) The main access is along an uncovered public footpath.

(c) The premises are separated private housing/commercial properties which have various designs, different colours and the setbacks of the buildings from the footpath are not uniform.

(d) The premises are not part of a shopping centre.

(e) The bottle shop is an old building, and the hotel is newer and a differently designed building.

(f) The premises do not have the perception of connectivity and in the Monty decision the member concludes that the imposition of conditions such as improved signage are unlikely to remedy this perception.

[46] On balance I find that the Applications should be approved with conditions. Such conditions would require Smitham to undertake the following:

(a) Bottle Shop 5, the wall of the Tavern and the entrance to the Tavern both premises should have the same colour.

(b) Botte Shop 5 should have appropriately sized signage on the windows and inside the premises indicating that it is part of the Tavern.

(c) There should be prominent signage hanging outside and on the front fascia on the covered walkway on the front of the bottle shop. Signage should also hang from the ceiling of the covered walkway.

(d) There should be temporary signage outside Bottle Shop 5 indicating it is part of the Tavern. This currently is in place.

(e) The wall of the Tavern should have the same colour with appropriate signage showing it is the Tavern and that the on-premises bottle shop is situated at shop 5 and showing how the shop can be accessed.

(f) There should be a clear passageway between the Tavern and Bottle Shop 5 especially on the lower level where the area was cluttered with tables and chairs during my visit. This clear passageway should be closest to the roof supports and be at least one metre wide.

(g) The passageway between the Tavern and Bottle Shop 5 should have markings on the ground showing the connection to the two premises.

(h) If possible and with the consent of the landlord there could be signage at the entrance(s) to the Centre and or the car park showing the connection between the two premises.

[47] Therefore, I will make orders for the Applications to be approved with conditions. I will not make specific orders regarding the conditions of the approvals. The exact terms of these conditions can hopefully be settled by the parties. If no resolution is reached I will make orders allowing a party to file material and submissions for a determination of the exact terms of the conditions.

[48] The parties have not raised any issue regarding the Human Rights Act 2019 (Qld). Accordingly, I do not propose making any findings or orders relating to this legislation.

[49] Smitham has requested an order for costs. I will make orders regarding the issue of legal costs.