Licensed premises

Clause 52.57 of the VPPs set out the requirements for Licensed premises. The purposes of this clause are:

  •  To ensure that licensed premises are situated in appropriate locations.
  •  To ensure that the impact of the licensed premises on the amenity of the surrounding area is considered.

The provisions in Cl.52.27 apply to premises licensed, or to be licensed, under the Liquor Control Reform Act 1998.

There have been a number of cases involving a question as to whether a permit is required for buildings and works and a change of activities within a licensed premises pursuant to the provisions of Cl.52.27.

In Dare 2 Dream Enterprises Pty Ltd v Stonnington CC [2009] VCAT 1737 35 VPR 231 (editorial comment 35 VPR 227), the Tribunal considered an application under s.87(A) to amend a planning permit which allowed the use of the first floor of the land for a tavern in South Yarra. The Applicant sought to amend the permit and endorse plans to allow for the construction of an outdoor balcony and increase the patron numbers from 150 to 350. A preliminary issue for the Tribunal to consider was whether the application to amend the permit would need to be modified to include permission for the sale and consumption of liquor under Cl.52.27 of the scheme in order to facilitate the proposed changes to the operation of the premises.

The key question for the Tribunal was whether there was a relevant permit trigger that was activated by the proposal. The Tribunal noted that Cl.52.27 refers only to three permit triggers:

  • Where are licences required under the legislation;
  • Where a different licence, or class of licence is required; and
  • Where trading hours are to be extended.

The Tribunal noted that the clause does not refer to where a ‘variation’ to licence was sought as a general permit trigger. Nor does it refer to an increase in patron numbers or an extension to the ‘red line’ area as particular triggers.

The Tribunal considered that the inclusion of one specific variation to a licence in the permit triggers of the clause (i.e. increasing trading hours) but not any other type of variations to the license was partly the cause of the ambiguity in the matter. The other source of ambiguity identified by the Tribunal was the lack of detail about what constitutes a ‘licence’ or a ‘different licence’ under the triggering provision. The Tribunal asked, for instance, whether a licence with varied conditions would constitute a ‘different licence’ or would a ‘licence be required?’ The Tribunal found:

Having regard to the purpose and scope of the provision as a whole, I construe the second dot point of the requirement for a permit in Cl.52.27 to include any proposed variation to a license within the term ‘a different license is required.’

In broad terms, I consider that if an amended or varied license is to be issued with conditions that are different from the current license, this amended or varied license would, by ordinary meaning, constitute a ‘different’ license compared with the current license. Similarly, if the red line plan forms part of the approval under the license and that plan is to be amended, it seems to me that this would result in a different license being issued.

I am conscious that this is not strictly what the provision says since it is silent as to the position in respect of variations to a licence (other than for an extension of trading hours). To an extent, my analysis involves “reading into” the provision with a purposive approach. The second purpose of the provision, to ensure that the impact of the licensed premises on the amenity of the surrounding area is considered, would be stymied if the amenity impact arising from variations to a licence (other than to extend trading hours) were unable to be considered. [17-19]

The decision illustrates a considerable level of discomfort within the Tribunal’s mind as to the wording of Cl.52.27 and at paragraph 23-28 of the decision the Tribunal went to considerable effort to set out its concerns regarding the operation of Cl.52.27 and the need for the Government to clarify the wording of Cl.52.27. At paragraph 24 it stated:

Whilst the Tribunal’s approach to date has been generally to prefer a broader interpretation of the triggering events under Cl.52.27, the lack of consistency between the terminology of Cl.52.27 and the licensing regime established by the Liquor Control Reform Act 1998 leaves this debate open in many applications made to a responsible authority and to the Tribunal on review. I consider this to be unsatisfactory, particularly since it determines whether the sale and consumption of liquor is to be controlled solely by the Liquor Control Reform Act 1998 or whether a planning permit is required from the outset. The latter scenario enables an assessment of potentially broader considerations, including cumulative impacts on amenity. [24]

In Open Door Pub Company Pty Ltd v Stonnington CC [2009] VCAT 2332 (editorial comment 35 VPR 227), the Applicant had applied for a buildings and works permit to an existing hotel in Prahran. However, in response to three questions of law put by the Responsible Authority, the Applicant sought a declaration that:

No planning permit is required under Cl.52.27 of the Stonnington Planning Scheme for the sale and consumption of liquor in connection with the proposal for which a planning permit is sought.

The Tribunal was satisfied that the three permit triggers of Cl.52.27 were not invoked, and held:

If the applicant can ultimately demonstrate that no variation is in fact required to the licence (including conditions) or to the red line plan, such that the licence remains identical to what it is now, and no increased trading hours are proposed, I am of the view that there would be no trigger for a planning permit, since none of the three dot points of Cl.52.27 would be enlivened. [8]

However, in response to submissions from the Permit Applicant’s advocate for an alternative ‘fall back’ declaration that that no planning permit would be required even if the red line plan under the licence would need to be amended, the Tribunal affirmed its Dare 2 Dream Enterprises decision that notwithstanding the ambiguities of the clause, a change to the red line would result in a different licence being required thus triggering the need for a permit.

In Get on the Good Foot Pty Ltd v Stonnington CC (Red Dot) [2009] VCAT 2347 (editorial comment 35 VPR 227), the proposal was to amend the permit and increase the number of patrons from 200 to 260. The Tribunal analysed previous Tribunal decisions, including Dare 2 Dream Enterprises, Fink v Stonnington CC [2006] VCAT 349 and Swancom Pty Ltd v Yarra CC [2009] VCAT 923 34 VPR 48.

In Fink, the Tribunal held that the need for a permit was not triggered by the second bullet point because it was considered the words “different licence” meant a different licence with a new licence number. It noted that Cl.52.27 used the term “different licence” compared to the Liquor Control Act, 1998, which used the term “variation of a condition of the licence.”

In Swancom, it was proposed to increase both the number of patrons and the hours of trading of an existing hotel. Clearly a permit was triggered by the third dot point of Cl.52.27 because the trading hours were to be extended, however the Tribunal also considered the increase of the number of patrons would trigger the need for a permit under the first dot point: A licence is required under the Liquor Control Act, 1998. The Tribunal said:

The decision guidelines for Cl.52.27 refer expressly to the impact of patron numbers – this carries with it the necessary implication that patron numbers form part of the overall use of licensed premises to be covered by the permit trigger.

Just as an amendment to the planning permit is required for extended patron numbers, an amendment to the liquor licence will also be required. A licence (albeit amended) is required for the purpose of the first dot point in Cl.52.27. [42]

The issue of whether an amended licence in terms of patron numbers was a “different licence” within the meaning of the second dot point was not expressly considered in Swancom.

In supporting the approach of the Tribunal in Dare 2 Dream, the Tribunal said:

I do not place any weight on the different terminology used in Cl.52.27 compared to the provisions of the Liquor Control Reform Act 1998. The Victoria Planning Provisions are intended to be interpreted according to their plain English meaning unless terms are specifically defined either in the Victoria Planning Provisions themselves or by reference to other legislation. “Different” can mean “not identical” . In my view a licence that has had a condition changed relating to maximum patron numbers is a different licence since it is not identical to the original licence. I do not consider that there is any basis to say that the licence is not different because it has been “varied” or “amended”. They amount to the same thing. A varied licence or an amended licence is not identical to the licence in its unchanged format: it is different.

Thus I do not agree with Member Martin that the words “different licence” in the second bullet point must mean a different licence with a new license number as opposed to a variation of the same licence with the same licence number. I do not accept his apparent basis for this conclusion, which is that Cl.52.27 does not use the same language as the section 29(2)(b) of the Liquor Control Reform Act 1998. Section 29(2) of this Act specifies various ways in which a licence may be changed, which include a variation of trading times; a variation of the size or perimeter of the licensed premises; a variation of a condition; the imposition of a new condition; or the removal of a condition. It seems to me that all of these changes can be encompassed by the simple expression “different” licence.

I note that the second dot point of Cl.52.27 refers to two situations where a permit is required:

    •  Where a different licence is required from that which is in force; or
    •  Where a different class of licence is required from that which is in force.

In my view, this second dot point is intended to apply whenever there is a change to an existing licence either in respect of its terms and conditions or its class. I consider that the term “class of licence” is a plain English term and it does not matter that in the Liquor Control Reform Act 1998 the term “categories of licences” is used. In my view, “category” and “class” are synonymous in this context. [16-19]

Another issue that has been considered under the updated Clause 52.27 is the relevance of social harm in  assessing applications for licenced premises, including applications for packaged liquor licences (ie bottle shops)

See also:

  • Amenity – cumulative impact of amenity
  • Characterisation of use
  • Existing use rights
  • Hotel
  • Liquor Control Reform Act 1998
  • Tavern
  • Social impacts

Other sources: