The sale and consumption of liquor in outdoor eating areas: E-Alert May 2011
June 2011
Planning
The Tribunal's determination in Tan v Kingston City Council [2001] VCAT 470 is likely to come as a surprise to those councils that have regarded the local law exemption in clause 62.01 of their planning scheme as applying to clause 52.27.
The Tribunal in Tan needed to consider whether clause 62.01 of the Kingston Planning Scheme applied to exclude clause 52.27 of the scheme (clause 52.27 relating to the sale and consumption of liquor).
Clause 62.01 of all planning schemes provides that any requirement in the scheme relating to the use of land does not apply to (relevantly):
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.
It was thought by Kingston that clause 62.01 of the Kingston Planning Scheme applied to exclude clause 52.27 with respect to the sale and consumption of liquor on footpaths if the Council issues a permit under its local law to place tables and chairs on the footpath.
The Tribunal disagreed with Kingston and, in doing so, made the following relevant observations and findings:
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. ... 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.
And further:
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.
And finally:
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.
If your council has been applying the local law exemption in clause 62.01 to exclude the operation of clause 52.27, we strongly recommend that the council immediately review its local law to determine whether it is distinguishable from that which was the subject of the Tan decision.
For further information please contact John Rantino or Mimi Marcus.
John Rantino | Partner
Direct 61 3 9288 0694
Mimi Marcus | Senior Associate
Direct 61 3 9240 0871