Victorian Civil and Administrative Tribunal|2011-03-23

The application to strike out the application for review on the grounds that the Tribunal has no jurisdiction is refused.
Pursuant to section 127 and clause 64 of schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the notice of decision to grant a permit issued by the responsible authority on 30 December 2010 is amended so that "What will permit allow:" now reads as follows:

To use the rear courtyard and the front footpath area to sell and consume liquor under clause 52.27 in accordance with the endorsed plans.

This matter is listed for a hearing in the Short Cases List on 7 June 2011 at 2.30pm for 2 hours.

This proceeding is an objector's application for review under section 82 of the Planning and Environment Act 1987 against the decision of the council to grant a permit under clause 52.27 of the Kingston Planning Scheme relating to licensed premises.
A permit application was made to extend the licensed premises area of the existing restaurant on the land to include the rear courtyard and the front footpath. Mr Tan's objection to the council and the statement of grounds in his application for review object only to extension of the licensed area to the front footpath, not the rear courtyard. Mr Tan and his family occupy a nearby shop top dwelling and are concerned about the anticipated noise from a licensed premises serving alcohol on the footpath opposite their residence and the effect this will have on the amenity and the character of the street.
When the council came to consider the permit application, it determined that no planning permit was required under clause 52.27 to use the front footpath area to sell or consume liquor because of the general exemption in clause 62.01 of the planning scheme, which provides that any requirement in the scheme relating to the use of land does not apply to:

The use of land in a road if the use is associated with the use of adjoining land and is authorised by the Council under a local law.

The council says that it has a local law controlling licensed premises on footpaths and consequently the provisions of clause 52.27 do not apply. As a result, the notice of decision issued allows only an extension of the on premises liquor licence to include the rear courtyard. The council has applied to strike out the application for review on the grounds that the Tribunal has no jurisdiction.
The purpose of clause 52.27 is as follows:

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.

Under the provisions of 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 category of licence is required from that which is in force.
- The hours of trading allowed under any licence are to be extended.
- The number of patrons allowed under any licence are to be increased.
It is not in dispute that the provisions of clause 52.27 apply because a licence is required under the Liquor Control Reform Act 1998 for the two additional areas in question, the rear courtyard and the footpath area. The key issue is whether the council's local law operates to exempt the footpath trading area from the need for a planning permit by virtue of the provisions of clause 62.01.
The local law in question is Local Law No 2, known as the Roads and Traffic Local Law. A copy of the Local Law was not provided at the hearing but was submitted subsequently at my request. The council also submitted a copy of its Footpath Trading Policy. The Footpath Trading Policy is intended to be read in conjunction with Local Law No 2. No further submissions were made by the council as to which parts of the Local Law or the Footpath Trading Policy were relevant. I have read both documents and I have concluded that they do not operate to supplant a requirement for a planning permit under clause 52.27 of the planning scheme to use a footpath to sell or consume liquor and nor are they intended to do so. My reasons are as follows.
Local Law No 2 applies to a range of matters, including:
- Construction works, such as road opening, reinstatement and works, and vehicle crossings;
- Asset protection;
- Use of roads for parties, festivals and processions;
- Use of roads, council land and other places for other purposes, such as shopping trolleys, moveable advertising signs and display of goods, outdoor eating facilities on roads, trading on roads and in public places, street appeals, street stalls, repair and display of vehicles, unlawfully parked vehicles, etc;
- Resident parking schemes, and other parking schemes.
The only aspect of Local Law No 2 that seems to be relevant is clause 17 relating to outdoor eating facilities on roads. The operative part of this clause provides as follows:

(1) A person must not place any chair, table or other similar facilities on any road, Council land or designated site (except the park or recreational reserve) without first obtaining a permit.

The clause then goes on to provide that in determining whether to grant a permit for the placement of chairs and tables or other similar facilities for outdoor eating facilities on a road, the council must take into account various matters. Many of those matters relate to issues such as safe pedestrian access, whether the tables or chairs will be a hazard, or whether the facility would obstruct visibility at an intersection.
I can find nothing in Local Law 2 which specifically relates to the sale of liquor or the use of roads for licensed premises generally.
The council's Footpath Trading Policy provides that no items may be placed on the footpaths within Kingston except in accordance with a permit issued by Council under its Local Law No 2. It provides that the main aims of the Local Law and the Footpath Trading Policy can be stated as to:
- Control and regulate secondary activities on roads including trading, placement of goods and equipment, repairs to vehicles, street parties, festivals and processions, advertising and collections (which does not compromise the primary need for the passage and repassage of people and goods);
- Provide free and safe access for people with sight and movement impairment or disabilities; and
- Provide generally for the peace, order and good government of the municipal district.
On page 9 under the heading "Other", the Footpath Trading Policy states:
- The operator is responsible for obtaining all necessary approvals to trade from the footpath area (eg planning permit).
- If alcohol is to be served from the outdoor eating facilities, a liquor licence permitting such sale and consumption must be obtained.
Further, on page 14, the Policy states as follows:

Consumption of Liquor within a Kerbside Café area

Should the applicant intend to serve alcohol from the outdoor eating facilities, it will be necessary to obtain a liquor licence. (Proof of licence is required when applying for a Footpath Trading Permit). You will also require a Town Planning Permit.

The provisions of clause 62.01 of the planning scheme exempt a use of land from the need for a permit if the use of land in a road is authorised by the council under a local law. The use of land for which a permit is required under clause 52.27 is to sell or consume liquor. I find that there is nothing in Local Law No 2 that controls the use of land to sell or consume liquor.
Clause 17 of the Local Law No 2 does not contain any control over the use of land. It controls the placement of chairs, tables or other similar facilities on the road, but not the use of land for eating or drinking in the sense that use of land for these purposes is addressed in the planning scheme. This contrasts with clause 18 of Local Law No 2, which relates to trading on roads and in public places. This clause provides quite explicitly that a person must not sell or offer for sale goods carried about on the person or any animal or in any moveable conveyance or distribute goods or literature without a permit. The provisions of clause 18 refer to a use of land in a road whereas clause 17 only relates to the placement of objects on land in a road.
Further, there is a clear intention evidenced in the Footpath Trading Policy that planning permits will be required in addition to any permits under Local Law No 2. This is most explicitly stated with respect to consumption of liquor within a kerbside café area.
I therefore find that the need for a permit under clause 52.27 to sell or consume liquor on the front footpath outside the subject land is not exempt under clause 62.01 because the use of land for which a permit is required under clause 52.27 is not a use authorised by the council under a local law.
In any event, I consider it would be strange if the need for a permit under clause 52.27 could be excluded by a local law, especially having regard to the recent strengthening of the provisions of clause 52.27 by Amendment VC74 and the inclusion of the decision guideline relating to the cumulative impact of any existing and the proposed liquor licence, the hours of operation and the number of patrons, on the amenity of the area. A local law would need to be very explicit in dealing with the identical use for which a permit is required under the planning scheme to achieve this outcome.
It follows from what I have said that the Tribunal does have jurisdiction to consider this application for review. The council was wrong to exclude from the Notice of Decision to Grant a Permit any reference to the front footpath area because a permit was applied for this area. Steps are therefore required to overcome the council's failure to include the front footpath area in the Notice of Decision. One means of addressing this failure, and to ensure that the merits of Mr Tan's application for review can be properly considered, is to amend the notice of decision pursuant to section 127 and clause 64 of schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 so that "What the permit allows" includes a proper reference to the permit trigger under the planning scheme and the land for which a permit has been applied. An appropriate wording would be:

To use the rear courtyard and the front footpath area to sell and consume liquor under clause 52.27 in accordance with the endorsed plans.

I intend to exercise my discretion to amend the Notice of Decision in this way rather than further delay the hearing of the merits of this proceeding by referring it back to council. If council does not support this, it can deal with this at the hearing. It will also need to consider any amended conditions. Advice about its position on these matters should be circulated to the Tribunal and parties 20 business days before the hearing.

Control Reform Act 1998

Tan v Kingston CC (includes Summary) (Red Dot) [2011] VCAT 470 (23 March 2011)

Tan v Kingston CC

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

Tan v Kingston CC (includes Summary) (Red Dot) [2011] VCAT 470 (23 March 2011)