1. Leave is granted to the permit holder to amend its application to include permission for the sale and consumption of liquor under clause 52.27 of the Stonnington Planning Scheme (increased patron numbers and/or proposed balcony).
2. Any request to amend the application must be accompanied by an assessment of the application against the decision guidelines in clause 52.27 and must be filed with the Tribunal and a copy served on the responsible authority by no later than 7 September 2009.
3. Within 14 days of filing an amended application in accordance with Order 1, Dare 2 Dream Enterprises Pty Ltd must:
   • (a) Serve a copy of the application or any amended application on the people listed in Appendix A; and
   • (b) Publish a notice of the application or any amended application by placing a notice on each of the three frontages to the subject land in locations to the satisfaction of the responsible authority.
4. The matter is adjourned for administrative mention on 12 October 2009. By that date each party must advise the Tribunal in writing:
   • whether the matter is resolved or is proceeding to a hearing,
   • if that party is ready for a hearing,
   • that party's estimate of the duration of the hearing, and
   • whether a further directions hearing or mention is requested.

1. Any party may request that the administrative mention be converted to a Practice Day Hearing. The party making the request must file and serve a Practice Day Request in accordance with Practice Note PNPE6 - Practice Day.

1. This application was made under section 87A of the Planning and Environment Act 1987, seeking amendment of planning permit No. 0685/05, issued by the responsible authority on 31 July 2006. The planning permit allows the use of the first floor of the land as a Tavern with on-premises liquor licence, signage and dispensation from parking and loading requirements.
2. The premises is located in the Business 1 Zone of the Stonnington Planning Scheme (planning scheme) and is included in the Heritage Overlay and Special Building Overlay.[1]
3. The permit applicant now wishes to amend the permit and endorsed plans to allow for the construction of an outdoor balcony. It also seeks to amend condition 5 to allow for an increase in the maximum number of patrons from 150 to 350.
4. Notice of the request to amend the permit has not yet been given to those who may be caused material detriment. The responsible authority provided a list of names and addresses of people who should be given notice in addition to notice on site, and the applicant agreed to give notice to this extent.

Is permission also required under clause 52.27 of the Stonnington Planning Scheme?

1. A key preliminary issue requiring resolution before giving notice of the application is whether the section 87A application would need to be amended to include permission for the sale and consumption of liquor under clause 52.27 of the Stonnington Planning Scheme (planning scheme) to facilitate the proposed changes to the operation of the premises.

1. This provision relates to licensed premises. It was recently updated by Amendment VC47[2], which added decision guidelines to this particular provision. The section most pertinent to whether a permit is required for this application reads:

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.

These provisions apply to premises licensed, or to be licensed, under the Liquor Control Reform Act 1998.

A permit is required to use land to sell or consume liquor if any of the following apply:

• A licence is required under the Liquor Control Reform Act 1998.
• A different licence, or class of licence is required from that which is in force.
• The hours of trading allowed under any licence are to be extended.[3]

1. The responsible authority submitted that permission was required under clause 52.27 since the maximum number of patrons under the on-premises liquor licence is proposed to be increased and there is also the prospect of the 'red line area'[4] under the liquor licence being extended to cover the proposed balcony (depending on whether it is proposed to be licensed[5]).
2. The permit applicant would prefer not to amend the application to include permission under clause 52.27, principally since the responsible authority has advised that this would require the preparation of a cumulative amenity impact assessment to address the decision guidelines of this provision.
3. I provided the parties with 14 days to file and serve written submissions on this legal issue. The responsible authority took up this opportunity and filed a written submission with the Tribunal on 21 August 2009. In summary, it submitted that:
   • Both the proposed alteration of the licensed premises area and/or the proposed increase in patron numbers would trigger the need for permission under clause 52.27.
   • It referred to the decisions of Deputy President Dwyer in Swancom Pty Ltd v Yarra City Council[6] and Member Martin in Fink v Stonnington City Council[7] in support of this interpretation of clause 52.27. That is, a wide and purposive construction of this provision should be preferred, whereby a variation to a licence would trigger the requirement by virtue of 'a licence being required'.
   • A cumulative amenity impact assessment should be required for the current application, recognising that the amendment would increase patron numbers by over 200%. The premises is sited within the Chapel Street Major Activity Centre, which is an area with a high number of similar premises generating a high level of night-time activity.
4. The permit applicant submitted a number of documents by letter dated 21 August 2009, including an amended Noise and Amenity Action Plan that it committed to providing within 14 days of the hearing. It also highlighted the delays it had been subject to in processing this application (prior to the application being lodged with the Tribunal).
5. The permit applicant submitted that a cumulative amenity impact assessment should not be required because the increase in patron numbers would be a "negligible increase across arguably Melbourne's most important entertainment area". It also confirmed that no amplified music would be provided to the proposed balcony extension and that this area was only proposed to be licensed until 11pm.
6. However, the permit applicant did not squarely respond to the opportunity to make submissions as to whether the application would trigger the need for permission under clause 52.27.

Assessment of the application relative to clause 52.27

1. In terms of the Liquor Control Reform Act 1998 and the procedures followed by Consumer Affairs Victoria, changes proposed to a 'red line' area or an increase in patron numbers are each dealt with via a variation to an existing liquor licence. This is distinct from an application that may be made for the grant of a licence or BYO permit, regarded as the original issue of such document.
2. It is clear that clause 52.27 refers only to three triggering events for a permit - where a licence is required under the legislation; where a different licence, or class of licence is required; or where trading hours are to be extended. Notably, it does not refer to where a 'variation' to a licence is sought as a separate, general trigger. Neither does it refer to an increase in patrons numbers or an extension to the 'red line' area as particular triggers - as distinct from an extension of hours which has been 'singled out'.[8]
3. The inclusion of one specific variation to a licence in the permit trigger of this clause (i.e. an increase in trading hours), but not any other type of variations to a licence is partly the cause of the ambiguity in this application. Similar, legitimate questions were raised in both the Fink and Swancom decisions. Another source of ambiguity is the lack of detail about what constitutes a "licence" that is required, or a "different licence" under the triggering provision. For instance, would a licence with varied conditions constitute a "different licence" or would a "licence be required"?
4. Both the Fink and Swancom decisions analysed the legislation and relevant policy framework in detail to identify whether the applications before them required planning permission under clause 52.27.[9] I do not propose to repeat this analysis in this decision. Ultimately, each of these decisions adopted a purposive interpretation[10] and "three-dimensional approach"[11] to the provision, considered necessary to give it a sensible operation.
5. 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 clause 52.27 to include any proposed variation to a licence within the term "a different licence is required".
6. In broad terms, I consider that if an amended or varied licence is to be issued with conditions that are different from the current licence, this amended or varied licence would, by ordinary meaning, constitute a "different" licence compared with the current licence. Similarly, if the red line plan forms part of the approval under the licence and that plan is to be amended, it seems to me that this would result in a different licence being issued.
7. 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.
8. It may also be possible to construe the first dot point of the 'permit required component' as being the source of the requirement for permission, but it appears to me that this dot point is directed more towards the original grant of a licence where the premises is not yet licensed.[12] In any case, given my primary finding, I do not need to determine this issue.
9. Like Deputy President Dwyer, I have had regard to the intent of the recent amendment to clause 52.27,which is to enable certain decision guidelines to be considered, particularly cumulative amenity impacts. I note that the reference to cumulative impact on amenity in the decision guidelines specifically refers to considerations associated with patron numbers. If substantial variations to a licence, such as a more than doubling of patrons would not require a planning permit under that provision, there is clear potential to frustrate the achievement of the overall scope and purpose of the provision.
10. At the same time, it would not be appropriate to approach the issue backwards - that is, to ask whether the proposed variation is one that should give rise to consideration of cumulative amenity impacts within the context of a permit application. If a permit is required by operation of the provision, these and other considerations can be considered legitimately. As with any other permit trigger in the planning scheme, a responsible authority's preference for considering matters contained in decision guidelines is neither here nor there - they are only applicable if a permit is required by the substantive provision in the first place.

1. Given the way this provision is drafted, with the uncertainty I have identified above, the application of the 'permit required' component of the provision remains a matter on which reasonable minds could differ legitimately.

24 Whilst the Tribunal's approach to date has been generally to prefer a broader interpretation of the triggering events under clause 52.27, the lack of consistency between the terminology of clause 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.[13]

1. It is ultimately a decision for the government as to whether a planning permit for the sale and consumption of liquor should be required in circumstances when, for example, patron numbers are proposed to be increased or the area for the sale and consumption of liquor is to be expanded. If this is the intended operation of clause 52.27, I would suggest that this be made explicit.
2. By contrast, if an extension of trading hours is the only variation to a licence that is intended to trigger a requirement for a planning permit under clause 52.27, the wording of that provision should be suitably re-worded to overcome the uncertainty that currently exists.
3. In either scenario, the terms "licence is required" and "different licence. . . is required" should be revisited if they are to remain. In addition, the term "class of licence" should also be amended to be referable to the terminology used by the Liquor Control Reform Act 1998, being "categories of licence", if this is intended.
4. Although not related to this application directly, the government's announcement of 24 August 2009 that liquor licences will not be issued with trading hours beyond 1am in the inner city and other specified municipalities raises another potential opportunity to streamline clause 52.27 with the Liquor Control Reform Act 1998. This would avoid the situation where a permit may be granted for the sale and consumption of liquor during extended hours, most likely with a two year commencement period, but the licensee being categorically unable to obtain commensurate liquor licensing permission within that timeframe.

1. In terms of whether clause 52.27 would apply to an amendment to a permit, I concur with the first part of Deputy President Dwyer's analysis in Swancom, that:

. . . the Act and the planning scheme are intended to operate in relation to an application to amend a use as if it were an application for a new use permit.

It follows that the first line of the "permit required" component of clause 52.27 should be read as "a permit or an amended permit is required to use land to sell or consume liquor if any of the following apply. . ." I consider that this extended permission could be contemplated under the section 87A application before me.

1. Following from my decision that this application would require permission under clause 52.27 in addition to the other amendments sought to the permit, I propose to grant leave to the permit holder to amend its application accordingly. This should occur before notice of the application is given.
2. The responsible authority suggested that if the application was to be amended to include this permission, a cumulative amenity impact assessment should be provided by the permit holder/applicant.

32 If the matter proceeds to the Tribunal, it will be required to have regard to the matters contained in the decision guidelines in clause 52.27, including cumulative impacts on amenity. Therefore, an assessment of the application against each of the decision guidelines would be an important tool. It would highlight the key issues likely to arise in the application and identify areas that the responsible authority or any affected person may need to investigate in greater detail prior to the hearing or direct an expert witness about.[14] On this basis, I consider that it is appropriate to direct the permit holder to provide an assessment of the application against the decision guidelines.

1. However, in this proceeding, I have stopped short of requiring a full cumulative amenity impact assessment up front. If the matter proceeds to hearing, the Tribunal would need to consider this issue. The real question is whether this scenario is any different from a normal application for review in the Planning and Environment List, where a permit applicant assumes the risk if it chooses not to provide expert material that would otherwise inform the Tribunal's consideration of the application.
2. I envisage that the Tribunal hearing the application would be assisted by the provision of a cumulative amenity impact assessment - both in terms of the factual material likely to be presented and in terms of the expert opinion expressed. Ultimately, though, I have left the decision whether to provide such assessment to the permit holder to the conduct of its own case.
3. While I appreciate the permit holder's desire to deal with this application in a timely way, I consider that it is not possible to list the matter for a hearing before statements of grounds are received. In the absence of this, it is not possible to gauge the level of public interest and, consequently, the amount of time required for a hearing.

[1] The responsible authority advised me that the deck is being constructed on the upper level of the building and that Melbourne Water is therefore not a statutory referral authority.

[3] Stonnington Planning Scheme does identify any land in the schedule to clause 52.27 for which a permit is not required or for which a permit may not be granted.

[4] Being the designated area within which the sale and consumption of liquor may occur pursuant to a liquor licence.

[5] At the hearing Mr Simonetti advised that he considered that the red line plan did not extend to the area of the deck, although I was not given a copy of this plan to consider.

[6] [2009] VCAT 923.

[7] [2006] VCAT 349.

[8] Other potential variations to a licence may include a change to general conditions other than those limiting patron numbers, the address of the premises or the name of the licensee.

[9] I note that only the Swancom decision post-dates VC47 and the new decision guidelines it introduced.

[12] I note that in this respect, my view appears to differ from that of Deputy President Dwyer in Swancom and Member Martin in Fink, who both determined the applications before them on the basis that the variation to the licence sought would come under the first dot point of that provision, where a licence is required.

[13] By contrast, in the ordinary case of a section 87A application to amend a permit condition relating to patron numbers, the Tribunal is entitled to grant the amendment if it "considers it appropriate to do so" and subject to considering the matters in section 84B(2) of the Planning and Environment Act 1987.

[14] Applying this and the remaining factors contained in the decision guidelines to the application involves some complexity, fact/evidence gathering and a level of enquiry that would not commonly be within a responsible authority's knowledge.