1. Mr Millwood lodged an application for review with the Tribunal against the decision of Frankston City Council to determine to issue a Notice of Decision to Grant a Permit for the sale of Packaged Liquor from the IGA Supermarket at 5/115 Railway Parade, Seaford.
2. The permit applicant seeks the application be struck out as misconceived on the basis that the grounds Mr Millwood relies upon are not matters that can be relevantly considered by the Tribunal under the provisions of the planning scheme and in particular clause 52.27 of the Frankston Planning Scheme.
3. The permit applicant received a licence from the Director of Liquor Licensing in December 2011. Amendment VC79 was introduced into the Frankston Planning Scheme in April 2011. The amendment removed the exemption under clause 52.27 that no planning permit was required for the sale of packaged liquor. Upon receipt of the Liquor Licence the permit applicant applied to the Responsible Authority for a planning permit.
4. Mr Millwood had objected to the granting of the Liquor Licence and similarly Mr Millwood now objects to the granting of the planning permit.
5. Mr Millwood raised in his grounds of review the conduct of the Responsible Authority in assessing the planning application, particularly as they had opposed the Liquor Licence. Mr Millwood also raised issues relating to the reliance on the store on the sale of alcohol and the construction of the bottleshop. He further raised issues relating to the public health impacts on the community and the potential abuse or misuse of alcohol and referred to the existing anti-social behaviour in the area.
6. Under the provisions of the Liquor Control Reform Act 1998 any person can object to the grant of a liquor licence on the ground that the grant would detract from or be detrimental to the amenity of the area in which the proposed licensed premises are situated. In addition any person can object to the grant of a licence for packaged liquor on the ground that the grant would be conducive to or encourage the misuse or abuse of alcohol.
7. Mr Millwood objected to the grant of the packaged liquor licence on the above grounds and whilst his objections were taken into account the Director of Liquor Licensing ultimately granted a licence for the sale of packaged liquor from the subject land.
8. Under the provisions of clause 52.27 of the Frankston Planning Scheme a planning permit is required for the sale of packaged liquor. The purposes of clause 52.27 are to ensure that licensed premises are situated in appropriate locations and to ensure that the impact of the licensed premises on the amenity of the surrounding area is considered. In reaching a decision in relation to such an application the Responsible Authority must take into account the following:
   • The impact of the sale or consumption of liquor permitted by the liquor licence on the amenity of the surrounding area.
   • The impact of the hours of operation on the amenity of the surrounding area.
   • The impact of the number of patrons on the amenity of the surrounding area.
   • The cumulative impact of any existing licensed premises and the proposed licensed premises on the amenity of the surrounding area.
9. The Tribunal in its decision in Coles Group Property Development Ltd v Mornington Peninsula SC[1] distinguished between the scope of inquiry that can be conducted by the Director of Liquor Licensing and the considerations required by a Responsible Authority under clause 52.27:

The clause therefore does not authorise a scope of inquiry into all possible impacts of the sale of liquor on the community, including public health or crime impacts, unless an impact manifests itself into an amenity impact on the surrounding area. This is contrasted to the wider inquiry permitted under the LCR Act to which I have referred and which specifically relate to the harm minimisation purposes of that Act.

The clause directs consideration of three matters. First, policy context. Second, impact of sale or consumption, hours and patron numbers on amenity. Third, cumulative impact of existing licensed premises and the bottle shop on amenity.

1. In terms of the issues raised by Mr Millwood relating to the misuse and abuse of alcohol and harm minimisation these are not matters that can be considered by the Responsible Authority and in turn the Tribunal under clause 52.27. These are matters that can be considered by and have been considered by the Director of Liquor Licensing. Those issues raised by Mr Millwood are therefore misconceived.
2. The Responsible Authority can consider the cumulative impact of licensed premises. In the present matter there is no 'cluster' of licensed premises that is 'three or more premises (including the proposed premises) within a radius of 100 metres of the subject land; or 15 or more licensed premises (including the proposed premises) within a radius of 500 metres from the subject land'[2]. As there are no other licensed premises that meet the cumulative impact criteria this is not a matter that can be considered by the Tribunal. It was acknowledge there is a hotel approximately 330m away but the criteria for cumulative impact considerations are not met and the hotel is by its nature a different liquor outlet to that proposed.
3. The Tribunal can only consider the application 'de novo' as though it was a new application to the Tribunal it therefore cannot consider how the Responsible Authority reached its decision or what maters it did or did not take into account. Therefore Mr Millwood's issues relating to the Council's handling of the application are misconceived.
4. Mr Millwood made reference to the potential impact on nearby business. As determined by the Kentucky Fried Chicken Pty Ltd v Gantidis[3] private economic impact on local businesses is not a relevant planning consideration.
5. Whilst Mr Millwood has expressed genuine concerns that relate to issues of alcohol abuse and harm minimisation in the community these are not matters that can be considered on review by the Tribunal in a planning permit application.
6. The application by Mr Millwood is misconceived and is therefore struck out.

[1] [2012] VCAT 600 at [28 & 29]

[2] Department of Planning and Community Development - Practice Note 61, March 2011 Licensed premises: Assessing cumulative impact

[3] [1979] HCA 20; (1979) 140 CLR 675 (1 May 1979)