Update: Licensed premises may now be able to rely on existing use rights to avoid the need to obtain planning permission to extend or modify trading hours

The recent decision of Kevak Hotels Pty Ltd v Darebin CC [2022] VCAT 318 (the ‘Kevak Hotels case’) has significantly evolved case law regarding licensed premises and existing use rights.

BSP Lawyers successfully represented the Applicant and owner of a licensed premises, seeking a declaration from the Victorian Civil and Administrative Tribunal (Tribunal) that it did not require a planning permit from Council pursuant to clause 52.27, being the relevant licensed premises planning scheme control, to increase its trading hours on the liquor licence from 3am to 5am each day.

The Tribunal’s decision has not been appealed to the Supreme Court. Therefore, the Kevak Hotels case can be relied upon, in applicable circumstances, to extend the trading hours under a liquor licence without the need for a planning permit to be obtained first – removing one of the two permissions ordinarily required to be obtained.

What are existing use rights?

An ‘existing use’ is the use of a premises or land for a lawful purpose, immediately before the commencement of a provision of a planning control, which makes a use that would be prohibited or would require planning permission to be obtained to allow that use. Existing use rights can also arise as a result of 15 years of continuous use where the use is not pursuant to a planning permit.

If land has been used for the purposes of a licensed premises before March 2000 (being the date the relevant planning controls under clause 52.27 commenced), and a permit has never been granted for the use and proof of continuous use for 15 years can be demonstrated, existing use rights can likely be established for that licensed premises.

Implications of the Kevac Hotels case

If existing use rights can be established, and no planning permit restricting trading hours at the premises has been issued in the past, the Kevak Hotels case can be relied upon to increase a premises’ trading hours without the need to obtain a planning permit under clause 52.27.

While the facts of the decision were limited to an extension of trading hours, the Kevak Hotels case may also prove to be a valuable commodity by excluding the need for a planning permit to increase the number of patrons or the area in which liquor is allowed to be consumed, being other activities also regulated by clause 52.27 in the same manner as the increase in trading hours, provided the change in activity does not amount to a change of use (and therefore becomes outside the scope of an intensification of the existing use).

Separate approval will still need to be obtained from the Victorian Gambling and Casino Control Commission (Commission) to vary a liquor licence. However in some instances, licensees may be able to rely on the recent changes to the Liquor Control Reform Act 1998 allowing automatic authorisation to supply liquor until 1am on any day, to avoid the the need to apply to vary a liquor licence to 1am.

The automatic 1am extension is subject to a very nuanced and particular caveat from the Commission – which is that the automatic extension does not apply to areas of the premises that have specified/reduced trading hours separate to the ‘overall’ trading hours. This includes, for instance, outdoor areas that are restricted for noise or amenity reasons. The application of these principles will depend on the exact wording of each licence, and even the circumstances of historical changes to the licence conditions. The Commission is expected to publish further guidelines in the future.

We would encourage licensees with premises operating pursuant to existing use rights to consider whether they wish to take advantage of the precedent set out in the Kevak Hotels case. If you would like to explore the implications of this decision in the circumstances of your premises, please contact us for advice.

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.

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