Liquor Control Reform Act 1998
There is some overlap between the requirements of the Liquor Control Reform Act 1998 and the VPP requirements relating to licensed premises. Under the Liquor Control Act, the Commission must consider, in the grant of an amendment to a licence, amenity issues such as presence or absence of parking facilities; traffic movement and density; noise levels; the possibility of nuisance or vandalism; the harmony and coherence of the environment; any other prescribed matters.
There have been a number of cases that have identified some inconstancies between the Liquor Control Act 1998 and the VPPs.
In McCormick v Port Phillip CC (1999) 3 VPR 292, the Responsible Authority granted a permit to sell liquor ‘on premises’. Objectors sought review of this decision. In directing the issue of a permit the Tribunal held:
- The new format Victoria Planning Provisions planning schemes had not maintained the links between the liquor licensing legislation and planning schemes which previously existed.
- Because s.9(3) of the Liquor Control Reform Act 1998 applied certain conditions only to a permitted use as ‘restaurant’, and the as of right use of the land included ‘Food and Drink Premises’, which was more widely defined than ‘restaurant’, it was appropriate to include the s.9(3) conditions in the permit to ensure that the on premises licence was used only in conjunction with a restaurant use.
- In order to protect the amenity of surrounding residents, additional conditions should be placed on the permit, designed to prevent the restaurant from becoming a drinking and entertainment venue.
In Melbourne CC v Starera Pty Ltd  VCAT 569 4 VPR 270 (editorial comment 4 VPR 247), the Council sought various declarations from the Tribunal, the broad aim of which was to prevent the hotel from operating as a nightclub. Simultaneously, it applied, pursuant to s.90 of the Liquor Control Reform Act for the cancellation or suspension of the hotel’s licence. Its application was based on the nature and scope of those alterations in the hotel’s operation as well as the extent to which they affected the amenity of the surrounding area. In granting the application, the Tribunal held:
- While some steps had been taken to reduce noise levels, the licensee had contravened the terms and conditions of the hotel’s licence on a regular basis.
- The manner in which the licensee had operated the hotel (or allowed it to be operated) had a detrimental affect on the area in which it is situated.
- Sections 90 and 91 of the Liquor Control Reform Act enabled the Tribunal to control the problem of excessive noise through the imposition of conditions on the hotel’s licence.
In Laurinso Pty Ltd v Ballarat CC  VCAT 984 15 VPR 78, the Council advised the Director of Liquor Licensing that a permit was not required for the relocation of a liquor licence to sell packaged liquor. Application was made by a third party for:
- A declaration that the Responsible Authority’s advice to the Director was erroneous and that, pursuant to Cl.52. 06 of the Planning Scheme, the use could not commence until the Permit Holder complied with the provisions of the Scheme and a review of the Director’s decision to grant a relocation of the licence; and
- A review of the Director’s decision to grant a relocation of the licence.
In making the declaration that a planning permit was required and affirming the decision of the Director of Liquor Licensing, the Tribunal held:
- A planning permit was required for a reduction in or the waiver of car parking and such permit must be obtained before the use could commence.
- The letter from the City of Ballarat to the Director was merely advice and thus did not fall within the terms of s.149B(1)(b) of the P&E Act.
- The issue was not merely theoretical, as an actual dispute existed between the Applicant, the Respondent and the Council. Accordingly it was appropriate that a declaration be made that the use could not commence until a planning permit had been obtained.
- The Liquor Control Reform Act did not contain a specific requirement that the Director must be satisfied that a planning permit existed before a licence could be granted.
- By the operation of s.16 of the LCRA any licence was subject to a statutory condition that the application must comply with the provisions of the relevant planning scheme.
- Because of the operation of Section 16 of the LCRA the erroneous advice from the City of Ballarat had not led to a fatal defect in the grant of the licence.
- The level of amenity differed between varying activity centres and an amenity-based argument in this instance could not be sustained.
- Amenity – cumulative impact of amenity
- Characterisation of use
- Existing use rights