Insights Library
Recent Tribunal decisions since Clause 52.27 (licensed premises) removed from Victorian Planning Schemes
Since Amendment VC286 removed the requirement to obtain planning permission for licensed premises by deleting Clause 52.27 from all Victorian Planning Schemes from 1 July 2025, the Victorian Civil and Administrative Tribunal (Tribunal) has considered the impact of this change in two recent planning appeals.
Application for use of land for a bottle shop
In Kangru Pty Ltd v Frankston CC [2025] VCAT 909 the Tribunal considered an appeal against the refusal of a permit for the use of land for a bottle shop in the Activity Centre Zone.
A liquor licence for the supply of packaged liquor had already been issued by Liquor Control Victoria (LCV) prior to the gazettal of VC286 on 1 July.
The Tribunal heard submissions that amenity issues associated with the use including alcohol-related harm and social impacts could be considered pursuant to provisions in the Planning Scheme in respect to land use compatibility, notwithstanding Clause 52.27 had been removed from the Planning Scheme.
The Tribunal disagreed and held that, as Clause 52.27 has been removed from the Scheme, alcohol-related harm and social impacts of alcohol consumptions were not relevant to the purposes and decision guidelines of the Activity Centre Zone that applied to the relevant land. The Tribunal noted that land use compatibility was relevant to its exercise of discretion, commenting at[18] and [22]:
We agree with the applicant’s submission that as a consequence of Amendment VC286, social and amenity issues relating to the sale and consumption of liquor are now under the remit of Liquor Control Victoria (‘LCV’).
…
Our consideration of the proposal is about the land use within the confines of the subject land. It is about the associated impacts of the proposed use but does not extend to the impacts arising from products purchased.
In respect to the issue of a liquor licence by LCV, the Tribunal placed limited weight on the existence or otherwise of any liquor licence as “it is not a relevant consideration pursuant to the applicable provisions of the planning scheme in this application’.
The proposed use was found to be acceptable.
Application for cancellation of permits issued under Clause 52.27
In Ballarat Cinemas Pty Ltd v Ballarat CC [2025] VCAT 1029, the Tribunal considered a request by the permit holder, the owner of land on which the Palace Regent Cinema operates, to cancel four planning permits relating to the on-premises liquor licence allowing the sale and consumption of liquor on the land under s 87 of the Planning and Environment Act 1987 (Vic) (PE Act).
The applicant relied upon the ground at section 87(1)(d) of the PE Act that there had been a material change of circumstances since the grant of the permits, namely, the permits have no ongoing effect or operation as a result of Amendment VC286.
While some of the permits may have been unnecessary as they related to a permit issued earlier, cancellation was sought to avoid uncertainty.
The only clause of the Ballarat Planning Scheme under which the permits had been issued was Clause 52.27.
The cancellation was consented to by the Responsible Authority.
Three arguments were relied upon by the applicant.
First, the applicant argued that the permits became ‘spent’ on the commencement of VC286 on 1 July 2025 and that it was no longer taking the benefit of the permits, referring to the ‘Benedetti’ principle from the decision of the Supreme Court of Victoria in Benedetti v Moonee Valley City Council [2005] VSC 434 (Benedetti).
The Tribunal was not persuaded by these submissions and distinguished Benedetti on its facts and law, principally because the facts in Benedetti concerned a permit for the develop of land and that, at present, authorities on whether a permit is spent are confined to subdivision permits (despite acknowledging that there may be some circumstances in which a permit to construct buildings or works may be spent if there are no conditions intended to operate beyond completion of those works).
The Tribunal noted that applicant was inviting the Tribunal to extend the Benedetti principle to very different circumstances i.e. where a permit to use land had been acted upon but the requirement for the permit no longer exists. The Tribunal was not willing to do so.
Second, the applicant argued that the issue of the licence is a material change of circumstances. The Tribunal did not accept this as this was not an effective change because a relevant licence was in force when the relevant permits had been acted upon.
Third, the applicant relied upon VC286 as a material change in circumstances. The Tribunal agreed noting:
- The lack of a savings provision in Amendment VC286 for permits issued under Clause 52.27 which implied that a permit issued only under clause 52.27 has no continuing effect even though it has not expired
- the purpose of Amendment VC286 was to remove regulatory duplication with licence requirements under the Liquor Control Reform Act 1998 (Vic) (LCR Act) and planning schemes no longer regulating the use of land for the sale and consumption of liquor; and
- the cancellation of the permits would not allow any material change in circumstances in the cinema operation as the conditions of the liquor licence are consistent with the conditions on the permits.
Both appeals highlight the restricted role of planning schemes in regulating the sale and consumption of liquor. However, we expect to seek more decisions in respect to existing permits which relate to Clause 52.27 and other permissions.
If you hold existing planning permits that regulate the sale and consumption of liquor and require advice in seeking cancellation or amendment of existing permits, please contact Emily Marson, Dominic Scally and our planning and environment team.
