USE IT OR LOSE IT: Does a licensee have to use all of the licensed area?
16 September 2026
In a recent decision of the Supreme Court of Queensland, guidance was provided for licensees as to the requirement or otherwise to utilise the entire area of the licensed premises under their liquor licence.
The Ganbros decision
Ganbros Pty Ltd v Commissioner for Liquor and Gaming [2026] QSC 45 considered two decisions in relation to the Moffatdale Ridge winery and restaurant, which is a licensed premises in Murgon. The second respondents, Jason and Susan Kinsella, applied under section 154 of the Liquor Act 1992 (the Act) to increase the licensed area of Moffatdale Ridge to include an adjoining lot as part of the licensed area, and an application under section 60(1)(d) to operate a proposed detached bottle shop from the Murgon Shopping Centre.
Both applications were approved on 2 May 2025, with the decision on the increase of the licensed area impacting the decision to operate a detached bottle shop; that is, increasing the licensed area allowed the detached bottle shop to be within 10 kilometres from the main licensed premises.
The applicants, the licensees of the Australian Hotel Murgon, instituted proceedings to review the decision, arguing that s.154 could not support the making of the decision unless the decision-maker was satisfied that the adjoining lot was to be used for, and was suitable to be used for, the purposes of conducting the business of a commercial hotel. If the court agreed, the applicants submitted that the decision-maker failed to satisfy itself of those matters, and the decision under s.154 was made in error.
The original decision
The judgment contains relevant excerpts from the Commissioner’s internal decision memorandum and also the statement of reasons produced at the request of the applicant. Relevantly, the memorandum noted that there is no obligation under the Act to conduct the principal activity of the licence at every “nook and cranny” of the premises.
Analysis of the relevant provisions
McCafferty J helpfully expanded on the language used in the internal memorandum to provide some clear direction about the interaction (or lack thereof) between the s.154 and s.60 applications and the legislative procedure to be followed.
On one hand, an application under s.60(1)(d) is an application for a licence under s.107. This requires that the Commissioner be satisfied that the premises to which the application relates are suitable for the conduct of business under the authority of the commercial hotel licence. On the other hand, an application under s.154 must be made under s.105, as it is not an application for the grant of a licence or permit. This provision applies to applications “for or relating to a licence”. There is no requirement to satisfy the Commissioner of the pre-condition contained in s.107.
The “approval mechanism” for an application under s.154 is contained in subsection 2 – namely, the Commissioner must have regard to the “business that is the principal activity conducted under the licence”. The pertinent point to note is that the preconditions to the initial grant of the licence under s.60(1)(d), which are contained in sections 61 and 107(4), do not apply when the Commissioner is considering whether to approve an alteration, rebuild, change or increase to the area of the licensed premises under s.154. This is because the licensee has already satisfied the Commissioner of those preconditions when they originally applied for the licence which they are now seeking to vary.
McCafferty J concluded his analysis of s.154 by noting that the requirement to have regard to the business that is the principal activity conducted under the licence requires a consideration of both the use and suitability of the area proposed to be included as part of the licensed premises. Such a conclusion is consistent with the subject matter, scope and purpose of the Act.
Practical application of this decision
The differences between what the Commissioner must be satisfied of under s.60 and what the Commissioner must have regard to under s.154 are subtle, but they are important nonetheless. An application under s.60 is more onerous, as it requires the Commissioner to be satisfied of matters under s.107 in order to approve the sale of liquor from separate premises under an existing licence, so it is justifiable for less stringent criteria to apply to an application for what is essentially a variation of an existing licence under s.154.
In other words, the degree of subjective satisfaction of the Commissioner is at a higher level under s.60, as the Commissioner must be satisfied of particular things, rather than simply having regard to considerations when making the decision under s.154.
The salient point to take from this judgment is that a licensee does not need to submit that the whole area is to be used, but they must demonstrate the suitability of that area for the sale of liquor. Although there is no obligation to utilise the whole of the licensed premises and there is flexibility under the Act for licensees to change how they use their licensed premises, this must not be abused by licensees – the Commissioner retains the power to take disciplinary action against licensees who fail to conduct a business on the premises consistent with their licence type. The Commissioner also has the power to reassess whether the premises is non-compliant with the Act and the requirements of their licence.
Licensees should be aware of this, as the Commissioner is always watching, and disciplinary action can be detrimental to the ongoing operations of a liquor licence.
Fundamental licensing considerations
This decision also serves as a great reminder to go back to basics when considering how to preface any application under the Act. A fundamental consideration in all applications is whether granting the application is likely to have an adverse impact on the amenity of the area. Although this was such a large area the second respondents sought to add to their licensed area, they did not propose to conduct amplified entertainment or have extended trading hours after the increase. Both of these factors are important considerations when determining whether there will be any impact on the amenity.
Further to that, the drafting of a statement of reasons is often a difficult concept to reconcile. Fortunately, McCafferty J made a number of helpful remarks with respect to the content of these statements. A court should not be concerned with “looseness in language nor with unhappy phrasing”. Reasons must be construed in a practical, common-sense manner and not dissected in a piecemeal fashion aimed at detecting some error. An invaluable recommendation for administrative decision-makers it to take a structured approach to the reasons. Where they start and end the deliberations with the correct legal test, along with a discussion of the application of that test to the particular factual scenario they are faced with, a court should not “readily infer legal error as a consequence of infelicitous or loose language somewhere in between”.
McCafferty J illustrated this practical approach by applying the test in Pasnin v Parole Board Queensland [2024] QSC 280 at [47], that taking a matter into account requires “an active intellectual process directed at the relevant consideration”, not mere lip service. He was satisfied that the Commissioner had considered the suitability of the lot and the intellectual process was considering the detailed objection made by the applicants and concluding that it was not persuaded by those objections. The proposition that “Lot 16, along with Lot 18, was previously licensed under the Wine Industry Act, which demonstrates the suitability of the area for the sale of liquor” is the conclusion reached by the Commissioer having regard to the applicants’ objection.
Other points to note
McCafferty J also made some helpful comments in relation to the interpretation of who is a person adversely affected by the decision in the context of the Act. Aside from the obvious economic interest arising from potential competition, the relevant interest extends to ensuring that the Act is administered properly. In other words, the applicants had a relevant, or ‘legitimate’, interest in the decision about increasing the area of the licensed premises is in accordance with the Act due to the potential unfairness to their business that results from an incorrect decision.
Conclusion
So if you are representing a licensee or other person aggrieved by a decision, devote your time to analysing whether the Commissioner has applied the correct legal test and considered it appropriately, rather than attempting to dissect the reasons in an attempt to locate error.