Victorian Civil and Administrative Tribunal|2007-12-21

Caldicott v Colac Otway SC [2007] VCAT 2435 (21 December 2007)

S 77 Planning and Environment Act 1987 - Colac-Otway Planning Scheme - Industrial 1 Zone - clause 52.27 - extend trading hours of hotel - vary liquor licence hours - amenity - permit by consent.

Caldicott v Colac Otway SC [2007] VCAT 2435

With respect to planning permit application no. PP110/07, the responsible authority's decision to refuse the grant of a permit is set aside. A permit is granted for the use of land for the sale and consumption of liquor [hours of trading allowed under an existing licence extended] at 1 Dalton Street Colac East. The permit must contain the following conditions:

The use must only be open t the public and trading for the sale and consumption of liquor must only occur between the following hours:

Sunday: 10am to 11pm
Good Friday and Anzac Day: 12 noon to 11pm
On any other day: 7am to 11pm

Sunday: 10 am - 11.30pm.
Sunday [being Christmas eve or day; or New Years eve or day] 10am to 1am the following day.
Anzac Day [not being a Sunday]: 12 noon to 1 am the following day
Good Friday: 12 noon to 11pm
Friday: 7 am to 2 am the following day
Any other day: 7 am to 1am the following day

Except with the further consent of the Responsible Authority, no live music, bands or DJ's are to be provided after 11.00pm
Patrons must not be admitted to the hotel after 1.00pm.
Signs must be displayed within the hotel and in the hotel's car park requesting that patrons leave the area in a quiet and orderly manner to minimise disturbance of residents, to the satisfaction of the Responsible Authority.
The licensee must ensure that the level of noise emitted from the premises shall not exceed the permissible noise levels for entertainment noise as specified in the State Environment Protection Policy (Control of Music Noise from Public Premises) No. N2.
The amenity of the area must not be detrimentally affected by the use, through:
- (a) The transport of materials, goods or commodities to or from land;
- (b) The appearance of any buildings, works or materials;
- (c) The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or
- (d) The presence of vermin.

At all times when the hotel is open to the public and/or trading in the sale and consumption of liquor on the land, there must be present on the land a person over the age of 18 years who is responsible for ensuring that the activities on the land and the conduct of persons present does not have a detrimental impact on the amenity of he locality to the satisfaction of the Responsible Authority.
The permit will expire if the use hereby permitted is not started within two years of the date of this permit. The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

The responsible authority is directed to issue a permit in accordance with this order.

This was an application under Section 77 of the Planning and Environment Act 1987 against the Colac-Otway Shire Council's decision to refuse a permit allowing an extension of the hours during which liquor could be served at the Colac East Hotel at 1 Dalton Street. Mr Carroll, the owner of a nearby residential property, objected to the proposal.
Under the current liquor licence, the hotel is able to open up to 2 am on not more than 12 occasions each year. Mr Caldicott, who has taken over the operation of the hotel within the last year, is asking that a permit be granted, as required under clause 52.27 of the planning scheme, to allow the existing trading hours to be extended. Essentially, the hotel is allowed to be open up until 1 am on Fridays. Mr Caldicott requested a 1 hour extension, allowing the hotel to close at 2 am each Friday.
Ms Watt explained that the council refused permission because it is concerned about the potential noise associated with late night activity while Mr Carroll said that the hotel had caused amenity problems under previous operators. Mr Caldicott explained that the extra hour was being sought to cater for the workers leaving the nearby abattoirs late on Friday nights. Mr Caldicott indicated that it was not his intention to operate the hotel as an entertainment venue but simply sought to provide for local workers. Mr Caldicott said that he would agree to permit conditions that would ensure that this was the case.
Permit conditions were discussed and agreed to by the parties. Following this discussion, Ms Watt and Mr Carroll said that they would consent to a permit being granted subject to the conditions that had been discussed. Mr Caldicott was also agreeable.
Pursuant to Section 93 of the VCAT Act, where parties have reached agreement, the tribunal is able to issue an order to put that agreement into effect. In the circumstances, it is appropriate that such an order be made.

Environment Act 1987

Caldicott v Colac Otway SC [2007] VCAT 2435

At a glance

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Decision date

Source

Judgment (11 paragraphs)

Caldicott v Colac Otway SC [2007] VCAT 2435 (21 December 2007)

Parties

Legislation Cited (1)