1. In Application P2207/2009, pursuant to section 149A of the Planning and Environment Act 1987, I declare that:

1. If no change is proposed to General Licence No.31902920, including the approved plan of the licensed premises or by an extension of trading hours, no planning permit will be required under clause 52.27 of the Stonnington Planning Scheme for the proposal described in permit application No. 0941/08. 2. Planning permission will be required under clause 52.06 of the Stonnington City Council before the proposed increase in floor area depicted in permit application No. 0941/08 may be used as an extension to the Hotel land use.

1. The existing use rights enjoyed by the land as a Hotel would extend to the part of the property proposed to be developed with the buildings and works proposed in permit application No. 0941/08.

1. No planning permit is required under the provisions of the Residential 1 Zone or any other provision of the Stonnington Planning Scheme for the proposed expansion of the Hotel use to occupy the buildings and works depicted in permit application No. 0941/08.

1. Application P1582/2009 is listed for a Directions Hearing at 9:30am for a duration of 30 minutes on 10 November 2009 to consider the future conduct of the proceeding, including whether the application is proposed to be amended and whether additional notice should be given of the permit application.

Mr Stuart Morris QC, instructed by Ryans Commercial Lawyers

1. The Open Door Pub Company Pty Ltd has applied for a planning permit[1] for buildings and works to the College Lawn Hotel in Greville Street, Prahran. The responsible authority failed to determine this application within the statutory timeframe since a number of legal questions remained unanswered and it was therefore uncertain of the extent of notice to be given of the application. The company has lodged an application for review with the Tribunal.[2]
2. In the context of the application for review, the responsible authority raised three questions of law. The company then lodged an application for declaration[3] with the Tribunal to seek a ruling on these questions in advance of the merits application being processed further.

1. The company seeks declarations that can conveniently be summarised as follows:

1. No planning permit is required under clause 52.27 of the Stonnington Planning Scheme for the sale and consumption of liquor in connection with the proposal for which a planning permit is sought. 2. No planning permit is required under clause 52.06 of the Stonnington Planning Scheme to waive or reduce the car parking requirements in connection with the proposal for which a planning permit is sought.

1. No planning permit is required under the Residential 1 Zone of the Stonnington Planning Scheme for the proposed (expanded) use of the existing Hotel on the land.

Is permission required under clause 52.27 of the planning scheme if the Hotel use was to expand to the proposed buildings and works?

1. It appears that this issue is the most controversial as between the permit applicant and the responsible authority. If the permit application was to be amended to include permission for the sale and consumption of liquor, this would necessitate consideration of cumulative amenity impacts (amongst other decision guidelines). The responsible authority indicated that would also request the Tribunal to direct further notice to be given of the application.
2. Clause 52.27 of the planning scheme (amended by VC47 in April 2009) provides the following "trigger" for a permit:

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.[4]

1. The 'red line' plan of the premises approved under the General Licence for the premises[5] depicts the area where alcohol may be sold and/or consumed on the premises. The existing (northern) courtyard and proposed courtyard are not currently included in this area. Mr Morris QC advised that alcohol is consumed within the existing courtyard (and has been for at least 15 years) on the basis that the licence for the premises allows the consumption of liquor "off the premises".
2. Mr Morris' principal submission on this point was that no change was required to the red line plan under the licence[6] and no other changes were proposed to the conditions of the licence (including an increase in trading hours) to facilitate the application of the current liquor licence to the proposed buildings and works.
3. It is not open to me to make a finding one way or another on this question of law in the context of the planning applications before me. If the applicant can ultimately demonstrate that no variation is in fact required to the licence (including conditions) or to the red line plan, such that the licence remains identical to what it is now, and no increased trading hours are proposed, I am of the view that there would be no trigger for a planning permit, since none of the three dot points of clause 52.27 would be enlivened. The first two dot points contemplate a specific type of application being made to Consumer Affairs Victoria in respect of a liquor licence and the last dot point pertains to an increase in trading hours more generally. If no such application is required and the hours of trading are to remain the same, it appears that there is consequently no requirement for a planning permit.
4. Adopting a 'fallback position', Mr Morris then requested an alternate declaration that no planning permit would be required even if the red line plan under the licence would need to be amended. To my mind, this is potentially a more complicated issue, and one which I am not necessarily required to determine. However, for the sake of completeness, notwithstanding submissions advocating for an alternate interpretation[7], I would affirm my decision in Dare 2 Dream Enterprises Pty Ltd & Memart Investments[8], where I held:

[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. . .

1. Whilst in that decision, I acknowledged that there may be a reasonable alternate view and encouraged the government to consider clarifying the permit requirement to avoid future ambiguity, I must interpret the provisions as I find them now. The possibility of improving their drafting does not detract from my findings above.

Is permission required for a reduction or waiver in car parking under clause 52.06 of the planning scheme?

1. The operative part of clause 52.06 provides, at clause 52.06-1:

A new use must not commence or the floor area of an existing use must not be increased until the required car spaces have been provided on the land.

Where the floor area occupied by an existing use is increased, the parking requirement only applies to the floor area of any extension of the use or site area provided the existing number of car spaces is not reduced.

1. The provision later enables a permit to be granted for a waiver or reduction of parking if appropriate, having regard to a number of decision guidelines.
2. The applicant did not submit that land uses with the benefit of existing use rights are exempt from compliance with clause 52.06. Instead, Mr Morris submitted on its behalf that the proposal was for an outdoor addition to the premises (in the nature of a beer garden/courtyard), and that such an area did not constitute an increase in "floor area" under the triggering provision. There appears to be no case authority directly referable to the issue now before me.
3. In support of this submission, Mr Morris referred me to the definitions of "gross floor area" and "leasable floor area" in clause 74 of the planning scheme. He also referred to the potential lack of 'fit' between the terms "bar area" and "lounge area" in the table applying to a hotel use in its application to an outdoor area.[9]
4. I am not persuaded that the position advanced on behalf of the company represents a correct interpretation of clause 52.06.
5. There is nothing in this provision of the planning scheme to indicate that "floor area" is to be read down or to be limited beyond its ordinary meaning. The scheme could have easily referred to indoor floor area only by using a term such as "gross floor area" if this was intended as in other parts of the scheme, since this term is expressly confined to the floor area of "a building", rather than to land more generally.
6. On a plain reading of the provision, the construction of a formal beer garden or outdoor courtyard intended to operate as a direct extension of the existing hotel, would constitute an increase in the floor area of that use, for which the required number of spaces prima facie needs to be provided on the land. I agree with the council that in this case, "logic suggests that floor area equates to area used by patrons for the purpose of drinking alcohol". That is, the area to be occupied by patrons of the hotel use is properly to be regarded as part and parcel of the floor area of that use - whether inside or outside a building.
7. In my view, there is also nothing to prevent a practical assessment of whether the proposed area is more akin to a 'bar' area as opposed to a 'lounge' area (either in whole or part) if clause 52.06 were to apply. These designations appear to be referable to the proposed mode of operation and whether/what type of seating is proposed. In any case, I do not consider that this perceived 'obstacle' in fact bears on whether the provision as a whole requires planning permission to be obtained for a waiver or reduction of parking - this being determined by the 'triggering' aspect of the provision quoted above.
8. I note that at the Practice Day Hearing, the responsible authority indicated that if planning permission was required for a reduction or waiver of parking, given the current operation of the College Lawn Hotel and its setting, it would not regard this element as a trigger for additional public notice. Similarly, it accepted that there appeared to be justification on the planning merits for a reduction or waiver of parking since no increase in overall patron numbers are proposed. This may be relevant to future directions in respect of Application No. P1582/2009.

What is the physical extent of the existing use right enjoyed by the Hotel? Would permission for the use of the land as a Hotel be required for the expanded area proposed?

1. I consider that these two questions go the heart of the third declaration requested by the applicant. The College Lawn Hotel currently has existing use rights for the use of the land at 32-34 Greville Street, Prahran as a Hotel by virtue of this use having commenced before the introduction of planning controls in Prahran.[10] This is conceded by the responsible authority.
2. The applicant submitted that the whole property has the benefit of existing use rights as a hotel and that no planning permission would be required for the use of the land under clause 32.01 (Residential 1 Zone use provisions), if it were to extend to the proposed buildings and works.
3. The responsible authority agreed that no permit was required for the use of the expanded area, provided that that the applicant accepted that the expanded area was to be regarded as "on" the premises, not "off" the premises in relation to the application of clause 52.27 of the planning scheme (since it would otherwise be 'outside the site').
4. It seems that the responsible authority considers it unfair for the applicant to have the benefit of existing use rights for the use of the land as a hotel extending to the property boundaries, but then to avoid the expanded area from being regarded as "on" the premises for the purposes of liquor licensing (thereby avoiding an amendment of the existing liquor licence). I will address the overlap perceived by the responsible authority between licensing and planning regimes shortly.
5. In terms of the extent of existing use rights for the hotel land use, I consider that the general facts raised by this application are generally parallel to those forming the basis of Justice Osborn's decision in Stonnington City Council v Southern Property Corporation Pty Ltd & Ors (Argo Hotel decision)[11] and the preceding decision of Member Rickards in Stonnington City Council v Abgol Pty Ltd[12].
6. I regard the reasoning and findings of Justice Osborn and Member Rickards in these decisions to be generally applicable to the facts before me. Namely, where the land is readily defined and has been used as a whole, existing use rights do not generally accrue at a level of specificity that would attach to only particular parts of a building actually used, provided that they were all used for the same purpose. His Honour also noted upfront that a finding to the contrary would mean that:

[6] . . . existing use rights would be frozen permanently in floor plan, an outcome which would materially constrain their content and be contrary to well established principles. . .

1. The responsible authority appears to be suggesting that the 'red line plan' under the liquor licence applying to the premises must mirror the property's existing use rights under planning law. On this basis, if the driveway and front courtyard area were to be regarded as part of the hotel land use, it submitted that they could not feasibly be regarded as "off the premises" for the purpose of the liquor controls or determining whether a permit is required under clause 52.27.
2. With respect, I consider the position of the responsible authority in this respect is somewhat confused. There is nothing to prevent the delineation of the "planning unit" for the purpose of existing use rights differing from the area of the property regarded as the "licensed premises"[13] for the purposes of liquor control. Each calls for a different analysis. Planning focuses on the concept of the purpose of the use, while liquor licensing focuses on the precise identification on a plan of areas within which liquor may be sold or consumed. Although related in practice, there is not necessarily a direct overlap in all cases, and this is potentially but one example.
3. I consider that this reasoning is consistent with the comments of Justice Osborn in Southern Property Corporation, that:

[37] . . it cannot be that the detailed liquor licensing requirements as they affected the manner of hotel operation over the last 100 or more years, could satisfactorily define the extent of existing use rights.

The key issue before His Honour, and now before me, was whether the land continued to enjoy existing use rights for the purpose of a hotel.

1. Reiterating my finding above, I consider that the whole of the land - including the area of the proposed expansion and any outdoor areas - has existing use rights as a Hotel. It follows that any proposed expansion of the Hotel use into additional buildings and works on the property would not require additional planning permission for such use either by the zone provisions or otherwise. It would simply constitute a legitimate intensification of the existing use of that land, provided that all other requirements of clause 63 were met such as a permit being obtained for buildings and works (as is now proposed).

1. Having regard to clause 52.27 in the context of the permit application for buildings and works to the subject land, no planning permission will be required for the sale and consumption of liquor if the liquor licence for the premises remains identical to what it is now and the trading hours under the licence will not be extended.
2. Applying clause 52.06 of the planning scheme to the proposal, I consider that planning permission will be required for a waiver or reduction of parking for the increase in floor area that would be associated with the proposed buildings and works.
3. There was consent between the parties that the land enjoys existing use rights as a Hotel. Having regard to recent Supreme Court authority, I consider that these rights would extend to the future use of the proposed buildings and works on the land as part of this Hotel use.

[1] A permit is required to construct buildings and works under the zone provision and also the Heritage Overlay provisions.

[2] No. P1582/2009 under section 79 of the Planning and Environment Act 1987.

[3] Under section 149A(1)(a) of the Planning and Environment Act 1987.

[4] A number of express exemptions are then provided, but they are not relevant to these facts.

[6] Relying on its approval for the consumption of alcohol off the premises.

[7] Including a submission that the original draftspeople of clause 52.27 may have intended to refer to "categories" of licence when referring to a "different" licence, and "classes of licence" in line with the former Liquor Control Act 1987. I am not convinced that such a 'historic implication' is determinative in the circumstances.

[8] [2009] VCAT 1737.

[10] Under clause 63.01 of the planning scheme, there being no evidence of a two year or more cessation of the use.

[11] [2006] VSC 435.

[12] [2005] VCAT 2346.