Clause 52.18 – Planning exemptions to assist in hospitality recovery

Emily Marson
27 October 2020

Yesterday Amendment VC193 introduced new planning permit exemptions into Clause 52.18 of all planning schemes to assist in the recovery of the hospitality and associated industries due to the COVID-19 pandemic.

In particular, no planning permission is required for:

• Use, buildings and works for temporary or moveable buildings on public land or land adjoining a food and drink premises, function centre or winery associated with those uses provided the requirements of Clause 52.18-7 are met;
• car parking required for the above uses or the existing use of land for a food and drink premises, function centre or winery.

Conditions in permits for food and drink premises, function centres, wineries, any car parking requirement for those uses, and for the sale and consumption of liquor issued before 21 October 2020 are “turned off” by the Amendment provided the requirements of Clause 52.18-7 are met.

Any use commenced, buildings or works constructed and conditions not complied with under the exemptions must cease or be removed before the exemption period ends

Any permit triggers under the Heritage Overlay for buildings and works must be complied with.

Clause 52.18-7 Requirements

Certain protections are included in this clause, notably:

• The use must not unreasonably affect the amenity of the neighbourhood including due to transport of materials to or from the land, noise, light, smoke, etc.;
• Access for emergency service vehicles or waste collection cannot be impeded;
• Any temporary or moveable building must not exceed 3.6m in height;
• Any building within 1m of adjacent land in a residential zone must not exceed a height of 1.8m;

Where land is located within 30m of a residential zone, outdoor consumption of food or drink between 10pm and 7am is not permitted unless an existing permit allows for this.  The Council can vary this requirement.

If land is located in one or more of the following overlays that would trigger planning permit were it not for the exemption, the use and/or works must be to Council’s satisfaction:

• Bushfire Management Overlay;
• Erosion Management Overlay;
• Floodway Overlay;
• Land Subject to Inundation Overlay; and
• Special Building Overlay.

Matters to consider

These exemptions do not exempt requirements to obtain permissions under:

• the Heritage Overlay for buildings and works;
• any applicable local law (e.g. for footpath trading); and
• the Liquor Control Reform Act 1998 including conditions in a liquor license issued by the Victorian Commission for Gambling and Liquor Regulations (noting that the VCGLR has introduced fast tracked processes for expanded red line plans and temporary licenses to support the recovery of the hospitality sector).

The Minister has indicated that these exemptions will be in place for one year.

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If you have any questions about this article or require more information, please contact Emily Marson, (03) 9691 0234 or emarson@besthooper.com.au.