Is the licensed area approved?

Development Consents and Complying Development Certificates

If a development consent is required under the Environmental Planning and Assessment Act 1979 (or approval under Part 3A or Part 5.1 of that Act is required) to use the premises for the purposes of the business or activity to which the proposed licence relates (the Premises), then evidence must be submitted to the NSW Independent Liquor and Gaming Authority and/or the NSW Liquor and Gaming (the Liquor Authority) that the development consent (DA) is in force.

If that evidence is not made available, then the application will be refused by the Liquor Authority (unless the applicant previously withdraws the application). 

In some cases where a DA is in force for the building (or a tenancy within the building) all that the Liquor Authority requires is a Complying Development Certificate (CDC) for the Premises.

What is the Difference:   DA vs. CDC?

The size and scale of the Premises, along with the relevant planning controls will determine the most appropriate assessment pathway.  Please note: -

  • A DA is a formal application made to the local consent authority (the Council) seeking approval to use the premises, as proposed.  The Council will have its own set of requirements and the DA (when approved) will include prescribed conditions (e.g. trading hours, seating capacity (if applicable), and conditions to reduce neighbourhood amenity type concerns etc).

  • A CDC is a fast-track approval process (by eliminating Council’s involvement) for straightforward matters.  If the proposal meets the specific criteria, then the proposed use can be determined by an accredited Private Certifier as complying.  In your discussions with any Private Certifier is it important that you discuss: -

  1. The proposed trading hours:   A CDC cannot alter the otherwise approved trading hours that apply.  Therefore, it is important that you inform the Private Certifier of your preferred trading hours to ensure obtaining the CDC is appropriate. 

  2. The proposed seating capacity (for café/restaurant operators): Please ensure you discuss your proposed patron seating capacity with the Private Certifier so as to ensure a CDC is the appropriate pathway for you.   If you do not have this discussion, then a CDC may issue (along with a stamped layout drawing of the Premises) but this plan may not illustrate the desired number of seats you wish to be approved by the Liquor Authority.  In these circumstances the local consent authority may object to the Licensing Application before the Liquor Authority on the grounds that the required planning instrument to allow the proposed “use” is not in place.

Outdoor Dining

Restaurant and café operators, who also wish to use an adjacent outdoor dining space, must also provide evidence that the outdoor space is approved under the DA or CDC (that is discussed above) If the land is not privately owned, they must provide a Footpath Dining Licence or similar approval from the local Council.

What if my proposal is considered exempt?

Exempt uses apply to Premises where the proposal is likely to cause only a minimal environmental impact and therefore may be carried out without the need for a DA or CDC.  For example, applicants who seek to use an internet packaged liquor licence that is attached to a home or commercial office can usually rely on the exempt provisions. 

The provisions are governed by the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.   To be exempt the proposal must fall within the definition of “home business” or “home occupation”.  The definitions are included in the Standard Instrument (Local Environmental Plans) Order 2006.  The definition of: -

  • home business means a business, whether or not involving the sale of items online, carried on in a dwelling, or in a building ancillary to a dwelling, by 1 or more permanent residents of the dwelling and not involving the following:-

  1. the employment of more than 2 persons other than the residents,

  2. interference with the amenity of the neighbourhood because of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, traffic generation or otherwise,

  3. the exposure to view, from adjacent premises or from a public place, of unsightly matter,

  4. the exhibition of signage, other than a business identification sign,

  5. the retail sale of, or the exposure or offer for retail sale of, items, whether goods or materials, not produced at the dwelling or building, other than by online retailing,

but does not include bed and breakfast accommodation, home occupation (sex services) or sex services premises.    To qualify under this provision the area to be occupied by the home business must also be a small ratio of the total area of the home. 

  • home occupation means an occupation that is carried on in a dwelling, or in a building ancillary to a dwelling, by one or more permanent residents of the dwelling and that does not involve:-

  1. the employment of persons other than those residents, or

  2. interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, traffic generation or otherwise, or

  3. the display of goods, whether in a window or otherwise, or

  4. the exhibition of any signage (other than a business identification sign), or

  5. the sale of items (whether goods or materials), or the exposure or offer for sale of items, by retail,

but does not include bed and breakfast accommodation, home occupation (sex services) or sex services premises.