Amendment VC247 quietly came into force on 6 October 2023. It extended the exemption period in force under clause 52.18 of all Victorian planning schemes for a further 12 months. But for Amendment VC247 the exemption period would have expired on 12 October 2023.
This announcement covered the following aspects:
Clause 52.18 contains exemptions from the requirements of this planning scheme and exemptions from conditions of permits for food and drink premises, function centres, nightclubs and wineries. It also confers exemptions for temporary buildings and works relating to exempt hospitality uses. Clause 52.18 was introduced to assist with economic recovery from the Covid 19 pandemic.
Given the recent extension of the exemption period it is timely to consider the scope of clause 52.18. Clause 52.18-3 confers an exemption for the use of land for hospitality but only if the use is associated with the existing use of adjoining land for a food and drink premises.
It also seeks to oust the operation of permit conditions constraining the use of land for hospitality purposes. However, clause 52.18-3 provides that that exemption does not apply to a condition relating to the maximum number of patrons, hours of operation (including any condition that applies to a particular outdoor area), location or playing of music, or noise levels. As such local government planners should be mindful that certain conditions will remain valid and enforceable, despite the extension of the exemption period until 12 October 2024.
Further, it will also be important when assessing permit applications to clearly distinguish between temporary proposals (where the permit applicant intends to remove temporary structures before the end of the exemption period) and permanent proposals which do not enjoy the benefit of the exemption. The requirements at clause 52.18-6 include a requirement that the use must not continue and that temporary buildings are to be removed prior to the end of the exemption period. If a permit applicant does not assure Council in writing that the buildings and works are temporary, the exemption in clause 52.18 will not apply.
If a permit applicant intends to keep temporary structures on site after the exemption period, they will not enjoy the exemption under clause 52.18. Similarly, if the temporary use is to be extended in perpetuity a use permit will be required before the exemption period expires. Operators of hospitality businesses should review their planning approvals well in advance of October 2024.
If you have any questions about the scope of clause 52.18, please email Barnaby McIlrath at bmcilrath@alignlaw.com.au.