The recent decision of Warrnambool Whalers Hotel Pty Ltd v Warrnambool CC [2026] VCAT 440 provides guidance on the Tribunal’s approach for applications to cancel planning permits issued under former Clause 52.27. The decision builds on the earlier Red Dot decision in Ballarat Cinemas Pty Ltd v Ballarat CC (Red Dot) [2025] VCAT 1029.
BSP Lawyers successfully represented Warrnambool Whalers Hotel Pty Ltd, the operator of the licensed premises the Whalers Hotel, in its application to the Victorian Civil and Administrative Tribunal (Tribunal) to cancel a planning permit issued under the former Clause 52.27 for the supply and consumption of liquor at the Hotel.
The decision builds on and affirms earlier decisions of the Tribunal in both the appropriateness of and procedure for cancellation of such permits.
What is Clause 52.27?
Before 1 July 2025, Clause 52.27 was a statewide planning provision that regulated when a planning permit was required for the supply and consumption of liquor. Its purpose was to ensure that licensed premises were situated in appropriate locations and that potential impact on the amenity of surrounding areas was considered.
On 1 July 2025, Amendment VC286 deleted Clause 52.27 from the Victorian Planning Provisions and all Victorian planning schemes.
A key objective of Amendment VC286 was to remove duplicated regulation involved in both planning law and liquor law – given the Liquor Control Reform Act 1998 (Vic) continues to regulate the impacts of amenity associated with the supply and consumption of liquor.
As a result of the amendment, a planning permit is no longer required for the supply and consumption of liquor. However, the amendment did not affect the validity of existing permits which had been issued and, therefore, there are numerous permits in existence that regulate the supply of liquor that need to continue to be complied with.
What were the facts?
In 2005, Warrnambool City Council issued a planning permit for the subject site under the former Clause 52.27 to allow for an extension of trading hours to the existing liquor licence on site (the Permit). Importantly, the Permit only included triggers relating to the Premises’ liquor licence.
The Applicant applied to VCAT to cancel the Permit on the basis of a material change in circumstances since the issue of the Permit – that material change being the deletion of Clause 52.27.
The cancellation of the Permit allows the publican to amend the hours of trade on the liquor licence.
What was the determination and reasons made by the Tribunal?
The Tribunal granted the application and ordered that the Permit be cancelled under section 87 of the Planning and Environment Act 1987 (Vic). The Tribunal accepted that the repeal of Clause 52.27 was a ‘material change of circumstances’.
In doing so, the Tribunal followed the reasoning in Ballarat Cinemas Pty Ltd v Ballarat CC (Red Dot) [2025] VCAT 1029 (‘Ballarat Cinemas’).
The Tribunal also noted that the cancellation of the Permit would not materially affect the hotel’s operation because the existing liquor licence duplicated some of the existing conditions of the Permit.
Further, the Tribunal held that it was not required to consider the merits of the application under the decision guidelines of the former Clause 52.27 because that provision no longer formed part of the planning scheme at the time the present application was decided. Importantly, Council supported the cancellation of the Permit under the circumstances.
Potential Implications of Section 69D of the Planning Environment Act 1987 (Vic)
The Planning Amendment (Better Decisions Made Faster) Act 2026 (Vic) inserts the new section 69D into the Planning and Environment Act 1987 (Vic).
Broadly, section 69D provides that, if a subdivision or amendment to a planning scheme means that a permit is no longer required for a previously approved use or development, then the permit and any of its conditions will cease to have legal effect.
That would mean that – if not cancelled – the Permit would automatically cease to have effect once this section came into effect.
However, that section is not expected to come into effect until 29 October 2027.
In this decision, the Tribunal acknowledged that section 69D had not yet commenced and noted the reservations expressed in Ballarat Cinemas that there was uncertainty as to whether it could apply if a planning scheme amendment occurred before its commencement.
Notwithstanding, the Tribunal concluded that the cancellation of the planning permit in question, would not derogate from the objective of section 69D.
Practical Takeaways: What this means for the hospitality industry?
The important takeaway from this decision is the Tribunal’s confirmation that the repeal of Clause 52.27 is a ‘material change of circumstances’ for the purposes of an application to cancel a planning permit issued under the former clause, and the pathway is now a standard and accepted one.
The practical results of this are that operators can vary their liquor licences without then having to also vary their planning permits – which was the objective of the amendment in removing Clause 52.27 to begin with.
What remains to be tested, though, is where a planning permit was issued under Clause 52.27 together with other planning provisions – such as buildings and works, or other land use provisions – which would therefore mean the permit cannot simply be cancelled. This means that some operators, when changing the way their venues operate, may still have to pursue variations to both a liquor licence and a planning permit.
The precise nature of the permissions required (or lack thereof) will depend on:
- The scale and scope of an existing permit and its conditions;
- The attitude of Council; and
- Other provisions in the scheme that might govern broader amenity considerations.
Hospitality operators should review their existing planning permits alongside their current liquor licences to see how they may be affected. For some operators it may be prudent to wait until the enactment of S69D.
How can BSP Lawyers assist you?
If you require any further assistance regarding interpretation and application of your planning permits and liquor licence conditions, please do not hesitate to contact us.
This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.
