Effective date: 7 April 2010
Last amended: 19 December 2018
Next review: December 2020
This Policy is designed to provide information in regard to the subject matter covered, and with the understanding that the Director of Liquor Licensing is not passing legal opinion or interpretation or other professional advice. The information is provided
on the understanding that all persons undertake responsibility for assessing the relevance and accuracy of its contents.
The purpose of this Policy is to provide applicants and licensees with guidance on submitting an unconditional section 40 certificate (certificate of local planning authority) or development approval lodged in lieu of a section 40 certificate.
Section 40 of the Liquor Control Act 1988 (“the Act”) requires a certificate from the local planning authority to be submitted to support an application for the grant or removal of a licence, or for a change in the use or condition of any
premises, unless otherwise determined.
A section 40 certificate shall state that the proposed use of the premises –
- will comply with the requirements of the written laws relating to planning specified;
- would comply with the requirements specified if consent were to be given by a specified authority, if it is known whether that authority will give the consent, and what specified conditions or specifications should be, or are likely
to be, imposed; or
- will not comply with the requirements specified for the reasons specified.
The licensing authority will accept the lodgement of a development approval in lieu of a section 40 certificate to demonstrate planning approval for applications for the grant or removal of a licence, or for a change in the use or condition of any premises.
The development approval must list the type of liquor licence the applicant is applying for (or possesses) and all conditions of the development approval.
Unless the licensing authority otherwise determines, an application for the grant or removal of a licence, or for the change in the use or condition of any premises, can be accepted by the licensing authority without a section 40 certificate or development
approval being submitted at the time the application is lodged.
However, the licensing authority will generally not determine an application for the grant or removal of a Hotel, Hotel Restricted, Tavern, Tavern Restricted, Liquor Store or Nightclub licence before a section 40 certificate or development approval is
Section 62A of the Act provides for conditional grants, pending certain approvals, consents and exemptions. Where an application is made for a licence or a removal of a licence, and the licensing authority is satisfied that it would grant the licence
or removal if an unconditional section 40 certificate or development approval was produced, the licensing authority may grant the licence subject to the condition that the relevant document be produced on or before a specified day.
Additionally section 62A(3) of the Act provides for the conditionally granted licence to be cancelled if evidence is not produced on or before the specified day.
The Director may seek updates in respect to section 40 certificates or development approval where the application has been adjourned or conditionally granted. Failure to provide the relevant document on or before the expiration of two years will result
in the conditional licence being cancelled or the adjourned application being refused by the Director.
It is the responsibility of the applicant to be aware of the considerable time and uncertainties involved in rezoning applications and not make premature applications. The risk lies with the applicant not the Director. It is important to remember
that if an application is deferred too long, circumstances can change and matters such as the public interest assessment can lose currency. Additionally, under section 69(14) of the Act, an application that is not determined within 12 months of the
lodgement date may be struck out by the Director.
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 Director is contravened.
For further information, please contact the department on +61 8 6551 4888 or by email firstname.lastname@example.org