Pubs and Clubs – Planning Law Considerations
We often find ourselves acting for clients who propose to purchase a pub or club, and as part of their due diligence in the purchase, instruct us to undertake investigations to determine if the existing use of the subject property is lawful. In other words, we are asked to carry out an assessment to determine whether:
- the property has the relevant development permits in place to allow the use to be lawfully carried out; or
- the use does not require a development permit because there is an existing lawful use.
Many hotels have been around prior to the introduction of planning schemes or are subject to old approvals or consents which lack the sophistication of modern development approvals. It would be very unusual for those hotels not to have changed in their style of operation over time. Changes are likely to have occurred without much thought given to obtaining planning approvals when the hotel use, in the general sense, was considered to be lawful. The major change of the introduction of gaming is the obvious example, however less dramatic changes are likely to have occurred over the years. Packaged liquor sales areas might have expanded, family friendly bistros added, or entertainment offers enhanced. Making an assessment as to the existence of an existing lawful use will require an investigation as to the historical use of the property and the historical planning instruments that applied when that use was carried out.
Further, and more specifically, we are often instructed to provide advice to owners who are seeking to increase the number of gaming machines that are permitted to be used under their gaming machine licence. This often requires an assessment as to whether the increase in gaming machines would amount to a "material change of use", requiring a development permit.
The definition of "material change of use" under the Planning Act 2016 includes "a material increase in the intensity or scale of the use of the premises". The test to determine whether a material change of use has occurred is a matter of "fact and degree" in each individual case and requires an examination of the use before and after the proposed change. In circumstances involving the increase in gaming machines, that would include consideration of a number of matters, including:
- the number of additional gaming machines;
- the renovations proposed to be undertaken to the property to facilitate the additional gaming machines; and
- whether there is a significant change of impact associated with the increase in gaming machines.
It is the unfortunate consequence of the multilayered approval process in Queensland that people are required to consider planning approvals and gaming machine approvals as separate concepts. Although planning and gaming are governed by different pieces of legislation and are regulated by different authorities, it would be possible to implement an integrated approach to the approval process. This would be implemented so that if a further development approval was required to support a gaming approval, then the approvals could effectively issue as a result of one application. That is not too dissimilar to the process for referral agency considerations in development applications, for instance when a proposed development under assessment by a Council also requires state assessment because of an impact on a state-controlled road.
Should you have any queries in respect of any of the above matters please do not hesitate to contact the Mullins Planning and Environment Team.
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