Legal Insights

Amendment VC79 amending clause 52.27

By John Rantino

• 15 April 2011 • 3 min read
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The State Government amended clause 52.27 to planning schemes.

On 8 April 2011, the State Government amended clause 52.27 to planning schemes by way of Amendment VC79 (Am VC79).

The amendment was prepared by the Minister for Planning in consultation with Responsible Alcohol Victoria and the Department of Justice, who both support the amendment.

In essence, Am VC79 makes clear that a permit is now required to use land to sell packaged liquor. This previously had been an area unregulated by the planning regime. Relevantly, Am VC79 also expressly clarifies that a permit will be required where the red line plan is sought to be increased. The draft persons also took the opportunity to "improve readability of the clause".

It flows from the above change that responsible authorities will now need to consider submissions from the community, amenity and cumulative impact issues and any other relevant matters when assessing permit applications to use land to sell packaged liquor.

Clause 52.27 contains no transitional provision. That being the case, Council's should be alive to the fact that those applications for a packaged liquor licence lodged with Liquor Licensing Victoria will now also require permission under clause 52.27.

In addition to amending clause 52.27, the State Government released Practice Note 61 providing guidance in assessing the cumulative impact of an existing licensed premises and the proposed licensed premises on the amenity of the surrounding area.

The practice note considers both positive cumulative effects, such as enhanced vitality and economic benefits in an area, and negative cumulative effects, such as increased violence and anti-social behaviour.

The new practice note effectively embodies the criteria decision makers ought have regard to when assessing cumulative impacts of licensed premises established in Swancom Pty Ltd v Yarra CC (Red Dot) [2009] VCAT 923 (Swancom). Those matters include the planning policy context, surrounding land use mix and amenity, the mix of licensed premises, transport and dispersal and impact mitigation.

In assessing cumulative impact, the practice note adopts Swancom's 500 metre radius from the proposed venue as the relevant area within which to assess the cumulative impacts of licensed premises. It need be said that the 500 metre radius, relied on by the Tribunal, was applied in circumstances where the relevant council successfully argued patrons were not likely to walk more than 500 metres between licensed venues.

We do not see how a 500 metre radius is an appropriate radius by which to assess packaged liquor applications. Patrons of large packaged liquor stores, such as a Dan Murphy, are likely to travel in vehicles greater distances than 500 metres when purchasing packaged liquor. It seems to us that the practice note has not sufficiently examined its application to permit applications for packaged liquor in the circumstances. There is good reason for Councils to be weary when applying the practice note to permit applications for packaged liquor.

There is likely to be some teething problems associated with assessing packaged liquor applications while this inconsistency is present in the practice note. Maddocks calls on the Minister to re-examine the terms of the practice note in so far as it asks decision makers to consider applying the 500 metre radius to permit applications for packaged liquor.

By John Rantino

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