Certificates of planning authority and local government

Purpose

This policy summarises the legislative requirements outlined in the Liquor Control Act 1988 (LC Act) relating to planning approvals and local government certifications. 

Who this policy applies to

Anyone making an application for:

• the grant of a new licence;
• the removal of a liquor licence from a licensed premises to a different premises; or
• a change in the use of or a condition of any licensed premises.¹

Legislative requirements

The Director of Liquor Licensing (DLL) may require evidence that:

• any approval, consent, or exemption required under the local government planning laws has been obtained regarding the use of the premises for sale and/or consumption of liquor; and
• the premises is suitable for the conduct of business under the licence, to ensure public health and safety.

Planning approvals

The DLL is required to be satisfied that the proposed premises complies with the relevant planning laws. Applicants can address this requirement in 2 ways:

1. they can submit a section 40 certificate from the authority responsible for planning matters in the district (for instance, the local government authority or another relevant planning authority, such as Development WA); or
2. they can lodge a development approval instead.
   

A section 40 certificate must specify the relevant planning laws and state whether the proposed use of the premises:

• complies with the planning laws;
• does not comply, along with the reason why; or
• would comply if consent were granted by a specified authority and (if it is known) whether that authority is likely to give consent, and on what conditions or specifications.²

The DLL may impose a condition on a licence relating to the submission, or further submission of a section 40 certificate.³

When an applicant chooses to submit a development approval instead of a section 40 certificate, the development approval must specify the type of liquor licence the applicant is seeking (or already possesses) and outline all conditions set by the planning authority. If the development approval is outdated, incomplete, or not specific to the premises, the applicant will be asked to provide a section 40 certificate instead.

Relevant health and safety approvals

Once all construction work on a proposed or existing licensed premises is finished, the applicant must demonstrate that the premises complies with legal requirements relating to health, hygiene, and building safety standards. This can be done by submitting either:

• a section 39 certificate issued by the local government or
• an occupancy permit issued under the Building Act 2011.⁴

Section 39 certificate

A section 39 certificate must state whether or not a premises complies with the relevant requirements of the:

• Health (Miscellaneous Provisions) Act 1911
• Food Act 2008
• any written law applying to the sewerage or drainage of those premises
• Local Government Act 1995
• Building Act 2011.⁵

In circumstances where the premises does not comply, the certificate is to state the manner in which the premises could be made to comply or that the premises could not reasonably be made to comply.⁶

Occupancy permit

Occupancy permits are issued for new buildings, or for a change of classification under the Building Act 2011. Where an applicant chooses to lodge an occupancy permit as evidence that the licensed premises meets the required standard, it must be a BA10 occupancy permit in the form approved under the Building Act 2011.⁷ If an occupancy permit has not been issued in respect of the relevant building, the applicant must submit a section 39 certificate instead.

Conditional approvals

The LC Act also provides that:

• a new liquor licence can be conditionally granted; and
• alterations or redefinition of an existing licensed premises can be approved;

without the applicant first addressing those matters outlined in sections 39 and 40, subject to the condition that the certificate or other evidence be produced on or before the issue of the licence or approval for the licensee to occupy the altered or redefined part of the premises.

Additional guidance

It is the responsibility of the applicant to be aware of the time and uncertainties involved in planning authority and local government applications and not to make premature applications to the DLL or delay too long between obtaining local government approvals and lodging the application. If an application is deferred too long, circumstances can change and matters such as the public interest assessment can lose currency.⁸

Further information on licence requirements is available, or contact 61 8 6551 4888.

Disclaimer

The policy on this subject is general information and is not professional advice or a legal opinion. The information is provided on the understanding that any person reading it must take responsibility for assessing its relevance and accuracy.

Notes

1. LC Act s39(1), s40(1)
2. LC Act s40(2)(a)-(c)
3. LC Act s40(4)
4. Building Act 2011, s54(1)(a). Building Regulations 2012 r4 establishes that the Building Commissioner approves the form of an occupancy permit
5. LC Act s39(2)(a)
6. LC Act s39(2)(b)
7. Building Act 2011, s61
8. Section 69(14) of the LC Act provides that an application that is not determined within 12 months of the lodgement date may be struck out by the DLL. Additionally, under section 16(4) of the Act, an application may be set aside at any stage of the process if a requirement or order of the DLL is contravened.
   

Approval

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