Kellehers continues to tackle difficult and novel legal challenges. The intersection of planning and liquor licensing law is often fraught. Typically, the two regimes are kept separate. The Victorian Commission for Gambling and Liquor Regulation (the Commission) does not decide planning matters. Likewise, a Responsible Authority under the Planning and Environment Act 1987 (Vic) (PE Act) cannot determine Liquor Licensing applications under the Liquor Control Reform Act 1998 (Vic) (Liquor Act).
While that’s the theory, the practice is that the Liquor Act imposes a mandatory condition requiring compliance with the relevant Planning Scheme. A contravention of the Planning Scheme therefore also becomes a breach of Liquor Licence conditions and an offence under the Liquor Act.
Liquor Licence applicants must supply the Commission with evidence of their compliance with the Planning Scheme as the Commission has a statutory obligation to ‘monitor compliance with’ liquor legislation. This overlap often causes confusion.
The Department of Justice and Regulation is currently reviewing the interaction between the planning and liquor licensing regimes to consider whether there is ‘scope for streamlining the interaction between liquor and planning processes’. The Law Institute of Victoria’s submission to this review raised a concern that ‘current arrangements do not recognise delineation between the functions of [the Commission] and local councils’, illustrating the difficulty faced by parties in Liquor Licence applications.
In our recent case, a difficult question arose because Council erroneously determined that no planning permit was required for a proposed café and restaurant. This error resulted in a use contrary to the Planning Scheme. Subsequently, Council granted a planning permit for a licensed premises use, but did not correct the error as to the underlying café and restaurant use.
Kellehers argued that the Commission must satisfy itself as to the lawfulness of the use before issuing any Liquor Licence and ensure that the mandatory licence condition could be met in order to avoid condoning an offence under the Liquor Act.
Liquor Licence holders and applicants must ensure their underlying use, eg café or restaurant, complies with the Planning Scheme. Otherwise, they will commit an offence under the Liquor Act and risk losing an existing licence, facing penalties under the Liquor Act, or having an application for a new licence refused.
If you have any queries about Liquor Licences or Planning Scheme compliance, please call Mr Hubert Algie or Dr Leonie Kelleher on 9429 8111.
30 March 2017 
Copyright © Kellehers Australia 2017
This post is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.