Alexander v Bayside CC [2007] VCAT 2300

1. By close of business 10 December 2007 the Council must:
   • (a) serve on the Applicant and respondents and file with the Tribunal a rationalised set of draft conditions derived from the conditions contained in Planning Permit No. 5.2005.483.1 issued on 8 November 2005 and Planning Permit No. 04/0567 issued on 5 October 2004 and amended on 26 October 2004;
   • (b) provide the Tribunal with a copy of all plans endorsed under Planning Permits 5.2005.483.1 and 04/0567 and the relevant officer's report in relation to Planning Permit 5.2005.483.1. The Council must make these documents available to all parties in this proceeding upon request .
2. In preparing the draft conditions referred to in Part 1(a) of these directions, the Council's attention is drawn to Paragraphs 78 to 87 of this decision.
3. By close of business 17 December 2007, the Applicant and respondents must serve on each other party (including the Council) and file with the Tribunal any written comments in relation to the Council's draft rationalised conditions. Any submissions must be confined to the draft conditions proposed by the Council.
4. By close of business 17 December 2007 the Applicant must request the Tribunal to cancel Planning Permit 5.2005.483.1 using the prescribed form which is available on the VCAT website.

Mr Peter Tesdorpf, town planning consultant. He called Mr Richard Unkles to give evidence on acoustic matters.

Mr Frank Verinder in person. He also appeared on behalf of Neil Mc Andrew and Kay & Lance Mathewson.

1. This case concerns a proposal to extend the operating hours of an existing licensed café/restaurant and shop, known as the "Turtle Dove café" which is located within a Mixed Use zone. The premises has a small courtyard at the back and directly adjoins two dwellings also within this zone. A right of way separates the site from more residential properties to the west.
2. The Council has in the past issued two planning permits relevant to this case. They are:
   1. Planning Permit 04/0567[1] ("the first permit"); and
   2. Planning Permit No. 5.2005.483.1[2] ("the second permit").
3. The first permit established the current use as a "shop and restaurant/café and on-premises liquor licence" allowing up to 10 seats. For ease of reference I will simply describe the premises as a restaurant.
4. The second permit gives permission to:

Increase number of patrons to 32 (internal seating), in accordance with the endorsed plans.

1. Both permits include a condition limiting the hours of operation as follows:
   1. The use may operate only between the following hours:
      1. Tuesday - Sunday from 9:00am - 5:00pm, unless with the written consent of the Responsible Authority

Unless the Responsible Authority gives further consent in writing for variation of these hours.

1. Howard Alexander, the permit applicant who also runs the existing business wants to extend the operating hours including the liquor licence hours by amending Condition 2 of the first permit.
2. The proposed operating hours are:
   • Monday to Saturday 8:00am to 11:00pm
   • Sundays 8:00am to 5:00pm.
3. It is envisaged that the outdoor courtyard area would be used during these extended times.
4. The Council required notice of the amendment to be given to the owners and occupiers of adjoining and surrounding properties and 5 objections were received. The proposal was subsequently refused by the Council.
5. Mr Alexander is now seeking a review of the Council's decision.
6. The key issues for consideration in this case revolve around the intensification of the existing use arising from the proposed extended operating hours. More particularly, whether the increased hours of operation would:
   1. result in unreasonable noise impacts upon neighbouring residents;
   2. cause parking problems in nearby residential streets.
7. Secondary issues include whether the current proposal would be contrary to a previous compromise reached between a previous permit holder and objectors and whether the premises is a 'wine bar' or a restaurant.

1. The subject site is located on the west side of Bluff Road between Love and Eliza Streets within a mixed group of commercial and residential premises. The land has a total area of 164.7sq.m and is developed with a two-storey commercial building which occupies the front half of the land. A small courtyard and garage are located at the back.
2. The shop and seating areas are located at ground level (including some seating in the courtyard and on the footpath) while kitchen and administration areas are on the upper level.
3. Both neighbouring buildings to the north and south are used as dwellings, set within 2-storey buildings. The property to the north (No. 125 Bluff Road) is owned and occupied by Mr Berenholtz, a party to this proceeding. He also runs a business from home and is involved in music production and sound mixing work. Mr Berenholtz's property would be the most affected by this proposal given the orientation of habitable room windows, the location of the master bedroom and outdoor areas comprising a deck and backyard which directly adjoin the courtyard.
4. Other premises in this small centre include a mechanical repair business on the corner of Eliza Street, a milk bar and another licensed restaurant (south) on the corner of Love Street which seats up to 54 patrons. Buildings are predominantly 2-storey, many which contain dwellings on the upper level.
5. A laneway about 3m wide runs along the west side of the review site between Eliza and Love Street, providing vehicle access to the rear of premises on both sides of the lane. West again are the backyards of residential properties which address Sarah Street.
6. Residential areas are located further north, south and west, with Mr Verinder and Mr Weston's properties located on the south side of Love Street. The east side of Bluff Road is also residential while a large park (Tricks Reserve) is situated on the corner of McKay Street.

1. The land and other properties to the north and south between Eliza and Love Streets east of the lane are in a Mixed Use Zone (MUZ). Other land nearby is within a Residential 1 zone except the reserve which is within a Public Park and Recreation Zone.
2. The site is also affected by the Design and Development Overlay -Schedule 2 (DDO2) and a Vegetation Protection Overlay - Schedule 3 (VPO3). These however are of no consequence in the circumstances of this case.
3. Statewide policies in the Planning Scheme of particular relevance are to be found at Clauses 11.01 (Introduction) and 15.05 (Noise abatement) the latter which has the objective "to assist the control of noise effects on sensitive land uses". Policies promoting economic development (Clause 17) seek to integrate a variety of land uses within activity centres where appropriate whilst minimising the effects of commercial development on the amenity of residential areas.
4. Local policies in the Planning Scheme identify the centre within which the review site is located as a Neighbourhood Centre.[3] Other local policies recognise that activity centres will play an increasingly important role in providing for future housing needs.[4] One implementation tool is to apply the "Mixed Use Zone to selected neighbourhood centres to encourage conversion to residential use".[5]

1. The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I have taken into account Mr Berenholtz's written submission sent to the Tribunal prior to the hearing. This party was unable to appear at the hearing.
2. I also inspected the site and its locality on two separate occasions. One of these inspections involved walking through the subject premises and Mr Berenholtz's property. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing, my inspection of the site and surrounds and the policies, objectives and decision guidelines of the Scheme.
3. Before turning to the substantive issues in dispute, I have also taken into account submissions from all objectors about existing signage which describes the premises as a 'wine bar'. While there is indeed such signage on display, the reality of the situation is that existing permission includes the use of the subject land for a restaurant and an "on-premises liquor licence". The term 'restaurant' is defined in the planning scheme[6] as:

Land used to prepare and sell food and drink, for consumption on the premises. It may include:

1. entertainment and dancing; and
2. the supply of liquor other than in association with the serving of meals, provided that tables and chairs are set out for at least 75% of patrons present on the premises at any one time.

1. In addition to the 75% rule described above, Section 2(3) of the Liquor Control Reform Act 1998 also provides that:
   1. If the permitted use of the licensed premises under the Planning and Environment Act 1987 is that of a restaurant, the on-premises licence is subject to the following conditions-

(a) the predominant activity carried on on the licensed premises must be the preparation and serving of meals for consumption on the licensed premises

1. I have not been presented with any evidence to suggest that the use of the premises does not operate as a restaurant in contravention of the Planning Scheme definition or contrary to the conditions for an on-premises licence under the Liquor Control Reform Act 1998. Importantly it is the use of the premises rather than any signage that is relevant here.
2. Objectors also made submissions to the effect that the current proposal should not be supported on the basis of a previous compromise reached between objectors and a former holder of the first and second permits - a compromise that led to a withdrawal of those objections. This was also one of the Council's grounds for refusing this application.
3. I am unable to refuse this application on this basis. Sections 72(1) of the Planning and Environment Act 1987 ("the Act") provides that:

72(1) A person who is entitled to use or develop land in accordance with a permit may apply to the responsible authority for an amendment to the permit.

1. The permit applicant, in applying for the current amendment is simply exercising his rights under the Act. While I appreciate that the parties may well have negotiated a compromise in the past, the Act precludes permit applicants from seeking amendments to permits without the involvement of third parties. This is because the Act also sets out procedures for the giving of notice to third parties when requests to amend permits are made as well as rights of review.[7]
2. Thus, while it may seem that we are 'back to square one', the merits of this proposal including the arguments advanced by objectors against it are now before me afresh for consideration and to which I now turn.

1. I have considered the implications of the Mixed Use zoning within which the review site and Mr Berenholtz's property are included. I accept Mr Tesdorpf's submission that in a Mixed Use zone, one cannot reasonably expect the same level of residential amenity capable of being enjoyed in a purely residential area. Similarly, although to a lesser extent, this argument also holds true for houses adjoining the laneway in Sarah Street and houses at the Bluff Road end of Eliza and Love Streets within a Residential 1 zone. I note for example that Council's Discretionary Uses Policy in Residential Areas[8] only applies to all residential zones and but appears to exclude the Mixed Use Zone.
2. Consistent with these arguments, it is relevant that one of the purposes of the Mixed Use Zone is:
   • To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality.
3. On balance, I must however still give substantial weight to the protection of residential amenity when considering the impacts arising from a commercial use in this particular instance. I say this being mindful of the as-of-right status of a dwelling[9] in a Mixed Use zone, whereas a restaurant, cafe and shop are uses that require planning permission.
4. In addition, Clauses 54 and 55 of all planning schemes, commonly known as ResCode, apply to residential development in all residential zones as well as the Mixed Use Zone. They do not however apply to any of the Business zones. One purpose common to both Clauses 54 and 55 is:

To encourage residential development that provides reasonable standards of amenity for existing and new residents.

1. The provisions of ResCode do not of course apply to this case. This example does however usefully illustrate the distinction between residential amenity expectations in Business zones compared with the Mixed Use zone and residential zones.
2. It is within this context that I have assessed this proposal.

1. All parties opposed to the proposal expressed concerns about the impact of increased noise nuisance, particularly from activity within the courtyard at night. This was the primary subject of Mr Berenholtz's submission. He contended that since the commencement of the restaurant use in 2004, enjoyment of his upper level patio, ground level backyard and indoor living areas has diminished. He described the noise nuisance arising from people talking, yelling and laughing in the courtyard as akin to "having uninvited guests, ones that you can not ask to leave".
2. Mr Verinder submitted that neighbouring residents in Sarah Street whose backyards adjoin the laneway in the vicinity of the review site also experience unacceptable noise impacts arising from the use of the courtyard that would worsen with the increased operating hours.
3. In response, Mr Tesdorpf relied upon the evidence of Mr Unkles. It was this witness's evidence that there are no specific EPA policies in relation to noise emissions generated by people except when they are singing.[10] Notwithstanding, it was Mr Unkles' opinion that some limits need to be struck as part of being a good neighbour and any reasonable noise attenuation measures implemented to minimise noise nuisance, propositions which I accept.
4. Mr Unkles measured background noise levels in the courtyard area.[11] Taking into account these readings and adding the noise emissions from four people talking at once in the courtyard at normal conversation levels, it was his opinion that:
   • the nearest residents of Sarah Street to the west are unlikely to experience unreasonable noise impacts from the courtyard's use given the distances involved;
   • residents of No. 121 Bluff Road to the south would not experience unreasonable noise impacts from use of the courtyard due to the presence of a solid masonry wall between the two properties;
   • there is a need to address noise impacts upon Mr Berenholtz's property to the north;
   • a solid barrier, constructed of 6mm cement sheeting should be erected along the fence adjacent Mr Berenholtz's patio to attenuate noise emissions generated from within the courtyard;
   • use of the courtyard during the extended hours proposed is reasonable except after 10pm on any night and before 9am on Sundays.
5. I accept Mr Unkles' evidence that use of the courtyard would not result in unreasonable impacts upon residents to the south or west for the reasons he gave.
6. I also agree with him that noise attenuation measures would be necessary in relation to Mr Berenholtz's property, particularly given that alcohol is proposed to be served during the extended operating hours sought potentially giving rise to more lively and noisy patron behaviour - including at night.
7. I am unable to be persuaded however that the acoustic screen proposed by Mr Unkles is acceptable from the perspective of Mr Berenholtz's visual amenity and access to daylight.
8. When I asked him, Mr Unkles recommended that the acoustic screen would need to be about as high as the trellis and shade cloth screen attached to the side of Mr Berenholtz's deck. I estimate that such a structure would have a height in the range of 4.5m to 5m. I consider that the proposed barrier would be visually intrusive and would further diminish the enjoyment of Mr Berenholtz's deck. While the existing shade cloth and trellis structure would provide some visual screening of the proposed acoustic barrier, the existing structure has a degree of transparency and allows filtered light. That situation would change significantly with the erection of a solid barrier close to the common boundary.
9. I also hold particular concerns about the impact of such a substantial acoustic barrier upon the daylight access to Mr Berenholtz's ground level kitchen/living room window which faces the review site.
10. A solid acoustic screen to Mr Berenholtz's (master) bedroom window was also recommended by Mr Unkles. I again consider that such a screen would unreasonably impact upon daylight access to this window.
11. Consequently, I find that I cannot support the construction of the acoustic barriers that I regard as necessary to minimise the effects of noise intrusion upon Mr Berenholtz's indoor and outdoor areas.
12. A further issue of concern to me is the impact of the courtyard's use upon Mr Berenholtz's ground level open space area. It is unclear from the acoustic evidence given whether additional noise attenuation measures are also necessary to minimise the effects of noise intrusion upon this space. My findings on this point are therefore somewhat inconclusive.
13. Even if I could be satisfied that acoustic measures could be implemented to minimise any unreasonable noise impacts upon this space, I cannot support an extension of the operating hours allowing use of the courtyard by customers for the reasons I have already explained.

1. An exhaust fan on the roof of the subject premises was also said by Mr Berenholtz to generate unreasonable noise nuisance. Activity associated with staff coming and going and general activity associated with the preparation of meals and cleaning up outside of existing operating hours was said by Mr Berenholtz to be problematic. He submitted that noise nuisance from these sources would become even more problematic with the extended trading hours.
2. I will deal firstly with the exhaust fan.
3. Based upon Mr Unkles' measurements of noise emissions from the exhaust fan, it was his evidence that its operation would achieve only "marginal" compliance with the EPA policy State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 (SEPP N-1) for day time use and "would potentially be a cause of non-compliance with the lower Permissible Noise Limits for the evening and night periods depending upon the length of time it operates for." In short, he accepted that the fan would be a source of annoyance for Mr Berenholtz.
4. Clause 15.05-2 of the planning scheme provides that responsible authorities should ensure that development is not prejudiced, and community amenity is not reduced, by noise emissions. Suggested techniques include:

... using a range of building design, urban design and land use separation techniques as appropriate to the land use functions and character of the area.

1. Further, this policy provides that decisions should be consistent with SEPP N-1.
2. To achieve compliance with the SEPP N-1, Mr Unkles recommended fitting the exhaust fan with a silencer. I was told the cylinder would have a cylindrical appearance and would have a height of about 1.1m above the roof.
3. I firstly observe that the need to achieve compliance with the SEPP N-1 is necessary whether or not the operating hours are extended. Condition 4 of the second permit also refers to the SEPP N-1. This condition states:
   1. Mechanical noise emanating from the premises must comply with the State Environment Protection Policy N-1 'Control of Noise from Commerce, Industry and Trade'.
4. Mr Unkles estimated that the proposed exhaust fan silencer would need to achieve a minimum attenuation of 14dBA taking into account background noise levels and permissible noise limits at night, defined as the period 10pm to 7am the following day on Monday to Saturday and 7am to 9am on Sundays.
5. I will require the installation of the exhaust silencer. I have taken into account the likely visual appearance of this structure and have formed the view that on balance, it would not be unreasonably intrusive. I note however that this will necessitate buildings and works approval under the provisions of the Mixed Use Zone - permission which was not sought by the current permit applicant. Indeed I am also surprised that the first permit issued by the Council which established the use of the review site for a "restaurant/café" did not include buildings and works permission for the cooking exhaust and any attenuation structures. Nor does the second permit include any reference to buildings and works.
6. Although I do not regard this situation as altogether satisfactory, I propose to amend the subject application using my powers under Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to include "buildings and works associated with the construction of an exhaust fan silencer".
7. Returning now to the issue of the proposed operating hours, I have formed the view that with the construction of the exhaust fan silencer, it would be reasonable to allow a limited increase in trading hours excluding use of the courtyard by customers at night and in the early morning, essentially internalising potential noise related impacts generated by customers at these sensitive times.[12]
8. I have however taken into account the potential nuisance upon Mr Berenholtz's amenity arising from staff related activity within the courtyard associated with cleaning up at the end of the day after trading has ceased during the critical night period. I have similarly considered the impacts of preparatory activity on the premises at the start of the day before the front door is open.
9. I consider that the restaurant should not operate before 9am on Sundays and not past 10pm on Monday to Saturday. Thus, the existing trading hours on Sundays will remain unchanged - the one day of the week where most residents reasonably appreciate some peace and quiet. The operating hours I will allow are as follows:

• 8:00am to 10pm - Monday to Saturday; and
• 9am to 5pm - Sundays.

1. I am of the view that these hours strike a reasonable balance between residential amenity considerations on the one hand and commercial considerations on the other within this mixed use environment.
2. I also intend to limit the times during which alcohol may be served to no earlier than 10am on any day, having regard to the particular circumstances of this case.

1. Mr Berenholtz expressed concerns with the use of the courtyard by smokers and the nuisance caused by passive smoke.
2. In response, Mr Alexander offered to make this area a smoke free zone. I agree with this approach. I will also require a permit condition requiring the restaurant operator to lock the doors to the courtyard after 5pm to prevent access to this outdoor area by smokers and patrons more generally.

1. Residents opposed to this proposal raised concerns with the adequacy of on-street parking and the potential for parked cars to overspill into residential streets at night with concomitant noise and traffic impacts.
2. The lack of suitable car parking was also one of the reasons Council refused this proposal. The third ground of refusal is:
   • The proposal may increase kerb side parking congestion in neighbouring suburban streets.
3. I have found Council's submission on this matter to be somewhat enigmatic and not altogether convincing. No evidence was provided by the Council in relation to carparking, no parking surveys were commissioned nor was the proposal referred to Council's traffic engineers for assessment.
4. Although affirming the objectors' concerns, the officer's report relied upon by Ms Bowdern verbatim states:
   • 7.2.3 Council notes that there is no provision for on-site car parking, hence the increase of operating hours would create an increase of kerb side parking adjacent to surrounding residential properties. However, it could be argued that there is sufficient car parking within Bluff Road for the night trading, as the neighbouring day trading businesses (not including 111 Bluff) will not be operating freeing up some car spaces.
5. Mr Tesdorpf tabled results of car parking surveys which he conducted with Mr Alexander on Thursday 20th and Friday 21st September 2007. Although I have taken into account these surveys, I give them only limited weight.
6. I agree with the Council's and Mr Tesdorpf's assessment that this proposal for extended trading hours does not technically invoke planning permission for a waiver or reduction in carparking under Clause 52.06 of the Planning Scheme as no increase in seating is proposed.
7. Nonetheless, the issue of carparking is in my view a relevant matter for consideration having regard to the matters set out under Clause 65.01 of the Planning Scheme. These decision guidelines require decision makers to consider the orderly planning of the area and the effect of proposals on the amenity of the area.
8. I have already found that use of indoor area at night would be acceptable subject to the conditions I have already outlined. I think it reasonable to allow up to 20 seats within the premises after 5pm from a car parking perspective. In saying this I have taken into account a parking requirement of 0.4 car spaces per seat - a rate which the Council found acceptable when granting permission for the 54 seat restaurant at No. 111 Bluff Road. This equates to a parking demand for 5 cars, a demand I regard as relatively modest. In making these findings, it is relevant that:
   • all 20 seats are unlikely to be filled every night of the week;
   • most other commercial premises excluding the restaurant at No. 111 and the milk bar are unlikely to operate at night;
   • milk bar patrons have access to three 15 minute spaces in front of this premises;
   • there are 21 unrestricted parking spaces without a residential frontage in the immediate vicinity of the review site.[13]
9. I accept that there may be existing parking congestion in Love Street although no reliable up to date data has been provided to me on this point. It seems to me however that if there is an existing problem, this matter could be best addressed by the Council investigating the introduction of parking restrictions within any affected areas. At the present time, however I am satisfied that there are ample car spaces available without a residential frontage nearby capable of meeting the additional parking demand generated by patrons of the restaurant at night.
10. I am otherwise satisfied that no unreasonable noise or other amenity related impacts will arise from patrons leaving at night, given the low patron numbers involved and the hours of operation which are to be limited to either 5pm or 10pm at night. I have also taken into account the nature of the use - a restaurant where the serving of meals rather than alcohol is the predominant activity as opposed to other entertainment venues such as a night club, hotel or tavern with the potential to generate greater off-site amenity impacts.

1. While amending Condition 2 of the first permit to reflect my findings seems simple enough, I am mindful that Council has issued two permits relevant to the current use of the review site. This raises some procedural issues that I consider are best managed by consolidating the two permits into one and cancelling the second permit.
2. I propose this course of action to address the present situation where approvals are fragmented across two permits. It also became apparent at the hearing that confusion exists in relation to the permitted seating arrangements under the second permit issued by the Council.
3. The second permit gives permission to:

Increase number of patrons to 32 (internal seating), in accordance with the endorsed plans.

1. This is despite condition 3 of this permit which curiously states:
   1. No more than 20 patrons are permitted within the confines of the property boundaries, with no more than 10 patrons within the courtyard area at any one time, and no more than 10 patrons within the front shop section of the building, without the further written consent of the Responsible Authority.
2. It is not open to me to determine what the Council meant by condition 3 in the context of the permission granted by it to increase the "number of patrons to 32 (internal seating)". Rather, in the present circumstances, that task belongs to the Council.
3. Thus, my directions will require the Council to prepare a consolidated set of draft conditions for my consideration which rationalises all relevant conditions from both permits. These conditions will form the basis of a single permit, being the first permit (04/0567) which ultimately I will direct the Council to grant in an amended form.
4. The Council will need to approach the task of drafting a rationalised set of conditions with particular attention to what was intended by condition 3 of the second permit at the time when it was granted. To this end, I will also require the Council to provide the Tribunal with a copy of all plans endorsed under both permits and the relevant officer's report in relation to the second permit.
5. My directions provide the parties an opportunity to comment on the Council's proposed rationalised conditions. I make it clear however that this is not an opportunity to make further submissions on the merits of this case.
6. I will also direct the Applicant to seek a cancellation of the second permit. I propose to grant the cancellation request "on the papers" concurrently with my final decision effecting amendment of the second permit.
7. While this process seems somewhat messy, it provides the opportunity to provide greater clarity and certainty for all stakeholders with an interest in the use conducted on the site. Importantly, it will clean up an already messy situation.

[1] Issued on 5 October 2004 and amended on 26 October 2004

[3] See Strategic Framework Plan - Clause 21.04 of the Bayside Planning Scheme

[4] Clause 21.06-2 of the Bayside Planning Scheme

[5] Clause 21.06-3 of the Bayside Planning Scheme

[6] Clause 74 of all Victorian Planning Schemes.

[7] See Ss. 73 and 76C of the Planning and Environment Act 1987. Notice and rights of review procedures designed to improve the transparency of the permit amendment process were introduced in May 2005 under the Planning and Environment (General Amendment) Act 2004.

[8] Clause 22.09 of the Bayside Planning Scheme

[9] There are no conditions attached to 'dwelling' in the Mixed Use Zone unlike for example in a Business 1 zone where a restaurant use is as-of-right while a dwelling is only permissible without a permit if any frontage at ground level does not exceed 2m.

[10] In which case SEPP N-2 (Music) is applied

[11] Background noise levels measured by placing a noise logger on the roof of the garage/store adjacent to the courtyard from 16 July 2007 and 22 July 2007.

[12] In saying this use of the footpath is subject to separate Local Laws permission. I was told that such permission presently exists for up to 3 tables and 6 chairs on the footpath.

[13] Comprising 8 unrestricted parking spaces between Eliza and Love Street, 3 unrestricted spaces in front of the mechanical workshop in Eliza Street and 11 spaces (unrestricted after 4pm) on the east side of Bluff Road adjacent to Tricks Reserve.