The appellants recognise that the decision to impose the discretionary condition, and the subsequent decision to suspend the licences are all grounded in the recognition given by the Authority to the creation of LAPPs under the Act. The appellants submit that although statutory power has been given to territorial authorities to create LAPPs, the statutory status of the LAPPs is unclear. Importantly, the appellants say, the Act does not bind the Authority to enforce an LAPP in its decision making powers. There is no provision in the Act which requires compliance with an LAPP, nor is compliance with an LAPP one of the mandatory conditions that must be imposed under s17. There is no crime for breaching an LAPP. Therefore, the appellants submit, the imposition of the condition by the Authority elevated the status of the LAPP to a legal requirement which was not prescribed by the primary legislation from which the LAPPs are derived. This was both an error of law, and a self-imposed fetter on the Authority’s condition making discretion in s18. Additionally, the appellants submit that the condition as framed by the Authority is defective due to its ambiguity. The condition merely states that the licensee must comply with policy” without specificity. In “any oral submissions, counsel for the appellant recognised that due to the timing of the issuance of the licences, and the subsequent creation of the the Authority could do little more than describe eventual LAPPs in this way. But nevertheless this created an intolerable burden on the appellants to comply with a condition that, in effect, did not exist, and could change over time. This made the discretionary condition unenforceable. Counsel records that the territorial authorities have indicated that permitted zones in their LAPPs will change over time. This is not apparent from the LAPPs although we note that each is subject to a review following a period of time. It was submitted that this manifested
The appellants recognise that the decision to impose the discretionary condition, and the subsequent decision to suspend the licences are all grounded in the recognition given by the Authority to the creation of LAPPs under the Act. The appellants submit that although statutory power has been given to territorial authorities to create LAPPs, the statutory status of the LAPPs is unclear. Importantly, the appellants say, the Act does not bind the Authority to enforce an LAPP in its decision making powers. There is no provision in the Act which requires compliance with an LAPP, nor is compliance with an LAPP one of the mandatory conditions that must be imposed under s17. There is no crime for breaching an LAPP. Therefore, the appellants submit, the imposition of the condition by the Authority elevated the status of the LAPP to a legal requirement which was not prescribed by the primary legislation from which the LAPPs are derived. This was both an error of law, and a self-imposed fetter on the Authority’s condition making discretion in s18. Additionally, the appellants submit that the condition as framed by the Authority is defective due to its ambiguity. The condition merely states that the licensee must comply with “any policy” without specificity. In oral submissions, counsel for the appellant recognised that due to the timing of the issuance of the licences, and the subsequent creation of the the Authority could do little more than describe eventual LAPPs in this way. But nevertheless this created an intolerable burden on the appellants to comply with a condition that, in effect, did not exist, and could change over time. This made the discretionary condition unenforceable. Counsel records that the territorial authorities have indicated that permitted zones in their LAPPs will change over time. This is not apparent from the LAPPs although we note that each is subject to a review following a period of time. It was submitted that this manifested
elp-retail-ltd-and-ors-15-04-14.docx