REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

PLANNING SCHEME - interpretation or consideration of VPP provision

Consideration of clause 52.27 and whether an increase of patron numbers alone triggers the need for a planning permit under clause 52.27 - consideration of meaning of "A different licence, or class of licence is required from that which is in force"

The proposal in this proceeding to amend an existing permit for a tavern and licensed premises to increase patron numbers was held to also trigger the need for a permit under clause 52.27 because the second dot point will apply: namely a different licence will be required from that which is in force. Accordingly, the decision guidelines of clause 52.27 must be considered, including the guideline relating to cumulative impact.

The meanings of the three dot points in clause 52.27 were considered:

• 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.

In interpreting the second dot point, the decision of Dare 2 Dream Enterprises Pty Ltd v Stonnington CC [2009] VCAT 1737 was preferred to the decisions on this point of Fink v Stonnington CC [2005] VCAT 349, Swancom Pty Ltd v Yarra CC [2009] VCAT 923.

Held that the 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.

Section 87A Planning and Environment Act 1987 - amend permit for tavern to increase patron numbers - permit under clause 52.27 to use land to sell or consume liquor - Fink v Stonnington CC, Swancom Pty Ltd v Yarra CC and Dare 2 Dream Enterprises Pty Ltd v Stonnington CC considered

Get on the Good Foot Pty Ltd v Stonnington CC (includes Summary) (Red Dot) [2009] VCAT 2347

1. I rule that a permit is required under the second dot point of clause 52.27 of the Stonnington Planning Scheme because of the proposed increase in patron numbers.
2. Pursuant to section 127 of the Victorian Civil & Administrative Tribunal Act 1998, the application is amended to include the permission required under clause 52.27.
3. The matter is adjourned for administrative mention on 27 November 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. If either party wishes to convert the administrative mention date to a practice day hearing, it may do so upon giving the other parties and the Tribunal not less than 7 days notice in writing.

Mr Mark Naughton, solicitor, of Planning and Property Partners

1. The purpose of this practice day hearing is to consider whether a permit is required under clause 52.27 of the Stonnington Planning Scheme as a result of a proposal to increase patron numbers at licensed premises in Chapel Street, Windsor.
2. The proceeding involves an application to amend a permit[1] under section 87A of the Planning and Environment Act 1987. The permit allows use and development for a tavern and licensed premises. Condition 2 of the permit restricts numbers to a maximum of 200 patrons at any one time. The applicants wish to amend this condition to increase the number to 260 patrons. No other buildings or works are required to accommodate the increased number of patrons.
3. The applicants hold an On-Premises Licence under the Liquor Control Reform Act 1998. The class of licence will remain the same, but the licence itself will need to be changed to increase the maximum capacity from 200 patrons to 260 patrons.
4. The question is whether this change to the licence triggers the need for a permit under clause 52.27 and, as a consequence, the need for the responsible authority to consider the decision guidelines under clause 52.27. The decision guidelines include:
   • The impact of the number of patrons on the amenity of surrounding area.
   • The cumulative impact of any existing and the proposed liquor licence, the hours of operation and number of patrons, on the amenity of the area.
5. Under clause 52.27, 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.
6. The applicant contends that a permit is required under clause 52.27 in the case of the need for a new licence or a different category of licence or a change of hours, but a permit is not triggered in the case of a change in patron numbers or licensed area (the latter not being applicable in this instance). The applicant disagrees with the Tribunal's findings in Dare 2 Dream Enterprises Pty Ltd v Stonnington CC[2] and Swancom Pty Ltd v Yarra CC[3] on this point.
7. Clause 52.27 was amended on 7 April 2008 by Amendment VC47, to include purpose provisions and decision guidelines. The explanatory statement for Amendment VC47 states that the amendment is required to:

- help address cumulative impact issues resulting from clusters of entertainment venues through planning permit assessments of licensed premises proposals.

The amended licensed premises provisions are said to:

provide a transparent set of assessment considerations relating to the 'cumulative impact' of licensed premises in an area.

How has clause 52.27 been interpreted by the Tribunal?

1. There have been several recent interpretations of clause 52.27 and its triggering events by legal members. A particular issue they have addressed is that the provisions of clause 52.27 do not reflect the same terminology used in the Liquor Control Reform Act 1998. In Dare 2 Dream Enterprises v Stonnington CC, Member Cook highlighted the uncertainty associated with the current wording of clause 52.27 and suggested that the wording of the provision should be reviewed.[4]
2. In Fink v Stonnington CC[5], the question was whether a permit under clause 52.27 was required when an existing upper level roof area of a hotel was converted to an upper deck area where alcohol would be consumed. Member Martin held that the need for a permit was not triggered by the second bullet point: A different licence, or class of licence is required from that which is in force. He held that the words "different licence" in the second bullet point means a different licence with a new licence number (as opposed to a variation of the same licence with the same licence number). He considered it important that clause 52.27 does not use the same language as the Liquor Control Reform Act 1998[6]. It uses the term "different licence" compared to "variation of a condition of the licence" used in the Liquor Control Reform Act 1998. Member Martin considered that:

The draftsperson could have included in the second bullet point of Clause 52.27 the words "varied licence" or 'modified licence' but did not do so.[7]

1. On the other hand, Member Martin found that the roof deck did trigger the need for a permit under the first bullet point of clause 52.27: A licence is required under the Liquor Control Reform Act 1998. This is because the proposed roof deck conversion constituted a new licensed area for the purposes of the first bullet point.
2. In Swancom Pty Ltd v Yarra CC[8], there was a proposal 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 clause 52.27 because the hours of trading were to be extended. However, Deputy President Dwyer also considered whether the increase number of patrons was a trigger in its own right.[9] He held that an increase in patron numbers would trigger the need for a permit under the first dot point: A licence is required under the Liquor Control Reform Act 1998. He 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 intended to be covered by the permit trigger.
• Just as an amendment to the planning permit is required for the 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.

1. The issue of whether an amended licence in terms of patron numbers is a "different licence" within the meaning of the second dot point was not expressly considered in Swancom. It was considered by Member Cook in Dare 2 Dream Enterprises Pty Ltd. Like the present case, this involved an increase in patron numbers.
2. Member Cook noted that under the Liquor Control Reform Act 1998, an increase in patron numbers is dealt with via variation to an existing liquor licence. This raised the question, would a licence with varied conditions constitute a "different licence" within the meaning of the second dot point or would a "licence be required" within the meaning of the first dot point? She found that:

[17] 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".

[18] 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.

[19] 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.

1. Member Cook noted that in this respect, her view differs 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 clause 52.27, where a licence is required. She did not attempt to resolve this difference, but said:

[20] 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. In any case, given my primary finding, I do not need to determine this issue.

1. Fink was decided before Amendment VC47 and introduction of the decision guideline relating to cumulative impact. However, in both Swancom and Dare 2 Dream, the importance of giving effect to this decision guideline, the reference to number of patrons within the cumulative impact decision guideline, and the inclusion of a separate specific decision guideline relating to the impact of the number of patrons on the amenity of the surrounding area, were important considerations leading each Tribunal member to conclude that an increase in patron numbers triggered the need for a permit under one or other of the dot points in clause 52.27.

1. I do not place any weight on the different terminology used in clause 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"[10]. 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.
2. 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 clause 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.
3. I note that the second dot point of clause 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.
4. 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.[11]
5. It therefore follows that I support the interpretation of Member Cook in Dare 2 Dream. I find that an increase in patron numbers will trigger the need for a permit under clause 52.27 because a different licence is required from that which is in force.
6. Deputy President Dwyer in Swancom reached a similar conclusion that a permit would be required for an increase in patron numbers, but did so on the basis that it was captured by the first dot point. He did not consider the application of the second dot point.
7. For the reasons I have set out above, I consider that an amended licence, which is the way that Deputy President Dwyer described it, is a different licence. I consider that the first dot point relates to a new licence rather than a changed or different licence, or class of licence.
8. My findings here reflect what was said in Ryan v Port Phillip CC[12] where the Tribunal observed:

[45] Clause 52.27 is a broad provision that requires a permit to use land to sell or consume liquor if a new licence is required; an existing licence is changed; or hours of trading under any licence are to be extended. There is no limitation in the ambit of the words or the permission required which would imply that conditions cannot relate to any aspect of the use of land to sell or consume liquor.

[46] In Bomvic Pty Ltd v Yarra CC [2004] VCAT 1961 the Tribunal held that the purpose of clause 52.27 is to consider the whole use of the land to sell or consume liquor not just a limited aspect of the use. Under the provisions of clause 52.27 a permit is required to use land to sell or consume liquor - it is not a permit to extend hours of operation or a permit for a change in licence. In other words, the permit is not required for the triggering event but for the wider, more general use of land to sell or consume liquor. Therefore conditions must fairly and reasonably relate to this wider, more general use; they need not just relate to the triggering event. ...

1. There was some discussion in Fink about the fact that if a modification of an existing licence constitutes a different licence, then there would be no need for the third dot point in clause 52.27, since the extension of operating hours would already come within the scope of the second bullet point. I agree that it may appear unnecessary to have specifically included the third dot point, but I do not consider that this means my interpretation (and that of Member Cook) is necessarily invalid. The specific inclusion of the third dot point emphasises that an extension of trading hours triggers the need for a permit.
2. Alternatively, it may be explained by the fact that under the Liquor Control Reform Act 1998[13] various categories (or classes) of licences authorise the licensee to sell or supply liquor:

(ii) at any other times determined by the Director and specified in the licence.

1. The term "ordinary trading hours" is defined in the Liquor Control Reform Act 1998[14] for various licences. It is possible that the third dot point in clause 52.27 was intended to apply when there is an extension of hours of trading allowed under a planning permit that is nevertheless still within the ambit of "ordinary trading hours" as defined, in the Liquor Control Reform Act 1998. Such a case would not necessarily require an amendment or variation of the licence thereby resulting in a "different licence" within the meaning of the second dot point, however it would still be caught by the third dot point. Therefore, in my view, the third dot point is not necessarily redundant.

1. I therefore conclude that the proposal in this proceeding to amend the permit to increase patron numbers will also trigger the need for a permit under clause 52.27 because the second dot point will apply: namely a different licence will be required from that which is in force. Accordingly, the decision guidelines must be considered, including the guideline relating to cumulative impact.
2. I understand that there is substantial agreement between the applicant and the council about what is required. I will leave it to them to advise if any further direction is necessary.
3. I also consider that the permission required under clause 52.27 can be addressed in any amendment to the permit under section 87A.[15]

[2] [2009] VCAT 1737

[3] [2009] VCAT 923

[4] [2009] VCAT 1737 at [23] - [28]

[5] [2006] VCAT 349

[6] Section 29(2)(b)

[7] [2006] VCAT 349; appendix at [8]

[8] [2009] VCAT 923

[9] [2009] VCAT 923 at [41] - [46]

[10] See Macquarie Dictionary of "different": adj. 1. differing in character; having unlike qualities; dissimilar. 2. not identical; separate or distinct. 3. various; several. 4. unusual; not ordinary; striking.

[11] In the Macquarie Dictionary, the definition of category includes a class. Likewise the definition of class includes the way in which a category is defined.

[12] [2006] VCAT 1923

[13] Sections 8, 9, 10, 11 and 13

[14] Section 3

[15] See Bestway Group Pty Ltd v Monash CC [2008] VCAT 860 at [14]