Planning scheme amendment VC193 is a State-wide amendment; one of a number of planning scheme amendments made to support the State’s social and economic recovery from the Coronavirus (COVID-19) pandemic. The Amendment was made operative on 21 October 2020 and provides 12 months of exemptions to planning scheme and existing planning permit requirements, for uses and development in relation to (mainly) outdoor dining. The Amendment seeks to facilitate the reopening and safe operation of restaurants and other food and drink businesses.
The Amendment changes Clause 52.18 State of Emergency and Recovery Exemptions in the Victorian Planning Provisions to specify:
The exemptions in this clause prevail over any inconsistent provision in this planning scheme or condition of a permit.
The exemptions in this clause do not apply to a requirement in the Heritage Overlay relating to the construction or carrying out of works to an existing building, the alteration of an existing building, or the painting of an existing building, other than a building constructed or placed under an exemption in this clause.
A use or development carried out under an exemption in this clause must comply with the requirements in clause 52.18-7.
Previously this Clause included exemptions relating to existing planning permits or planning scheme provisions limiting hours and or days for goods delivery and dispatch, loading and unloading of food, drink, groceries, medicine, or cleaning, sanitising, health, hygiene, medical or personal protection equipment, supplies, or products, or the like.
Those provisions have now been expanded to exempt proposals from planning scheme requirements (where on public land) for:
- the use of landfor the preparation or sale of food or drink for immediate consumption on, or off, the land, or for the consumption of food or drink, during the exemption period if the requirements of clause 52.18-7 are met.
- buildings and worksfor a temporary or moveable building associated with the preparation, sale or consumption of food or drink on the land during the exemption period if the requirements of clause 52.18-7 are met.
And:
- the use of landfor food or drink premises if the use is associated with the existing use of adjoining land for a food and drink premises, function centre or winery, and the requirements of clause 52.18-7 are met.
- buildings and worksfor a temporary or moveable building associated with land used for a food and drinks premises if the requirements of clause 52.18-7 are met.
The exemptions include car parking requirements, whereby any car parking requirement in the planning scheme does not apply to a use commenced under an exemption in Clause 52.18, or to an existing use of land for a food and drink premises, function centre or winery, during the exemption period.
Existing planning permits issued prior to 21 October 2020, for use or development of land for a food and drinks premises, function centre or winery, (including the use of land for sale or consumption of liquor for these uses) now benefit from exemptions to planning permits and conditions which would otherwise restrict:
- layout or location of the use;
- layout or location of development or works on the land;
- provision of car parking.
provided the requirements of Clause 52.18-7 are met.
Clause 52.18-7 sets out the limitations of these exemptions including:
- Only within the exemption period (currently to 21 October 2021);
- The use of land must not cause unreasonable amenity impacts;
- Land within 30 metres of a residential zone must not be used between the hours of 10.00pm and 7.00am;
- Buildings must not exceed 3.6 metres in height and must not be within 1 metre of adjacent land in a Residential Zone if the height exceeds 1.8 metres;
- Buildings in a Bushfire Management Overlay, Erosion Management Overlay, within a Floodway Overlay, Land Subject to Inundation Overlay or Special Building Overlay must be to the satisfaction of the Responsible Authority or Floodplain management Authority as relevant;
- A building constructed or placed under an exemption in this clause must be removed from the land before the end of the exemption period.
We understand a number of food and drinks premises operators throughout the State are using the exemptions to establish outdoor seating for consumption of food and drinks, without the need to amend or apply for new planning permits. The exemptions are however separate from local laws requirements which may differ from Council to Council in respect of outdoor seating and dining arrangements.
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