Use for hotel or bar under the General Residential Zone

1. As the subject land enjoys existing use rights for a hotel or bar, there is no dispute that permission is not required to use the subject land (or the relevant parts of it directly affected by the application) under the General Residential Zone ('the GRZ') for similar reasons to those we have outlined in relation to clause 52.27.

1. Part of the subject land parallel to the River is within the Incorporated Plan Overlay ('the IPO'). Under the IPO:

A permit must not be granted to use or subdivide land, construct a building or construct or carry out works until an incorporated plan has been incorporated into this scheme.

This does not apply if a schedule to this overlay specifically states that a permit may be granted before an incorporated plan has been incorporated into this scheme.

A permit granted must:

■ Be generally in accordance with the incorporated plan, unless a schedule to this overlay specifies otherwise.

■ Include any conditions or requirements specified in a schedule to this overlay.[6]

1. The Lower Maribyrnong River Concept Plan 1984 (the 'concept plan') has been incorporated into the planning scheme under schedule 2 to the IPO.
2. The IPO does not include any requirement for permission. As will be observed, it requires that a permit, if granted under any provision of the planning scheme for use, subdivision or buildings and works, must be 'generally in accordance with' the concept plan.[7]
3. We do not need to closely examine the provisions of the concept plan to determine if there is general accordance. Both the Council and AVC submit that there is general accordance. We adopt those submissions.

1. No permission is required under the Development Contributions Plan Overlay ('the DCPO') because clause 45.06 of the planning scheme contains no provision to that effect. If an amended permit were to be granted, it must be consistent with the Maribyrnong Development Contributions Plan 2021 ('the contributions plan') including any conditions required to give effect to any contributions set out in schedule 2 of the DCPO. The contributions plan has been incorporated under schedule 2 of the DCPO.

1. Permission is not required under clause 52.06 of the planning scheme to reduce parking requirements because we accept Mr Beaton's opinion that the statutory parking requirements for the Tavern, if the amendment is granted, are met.

1. We have already referred to the construction of works in Anglers Way to provide kerbside car parking spaces and a drop off/pick up area near the Tavern's upper floor entrance and to the Council's objection to these works and their inclusion in the amended plans.
2. The works are confined to the road reserve in Anglers Way and no permission is required to construct roadworks.[8] We characterise the works as roadworks.[9]

1. For completeness, the Council briefly submitted that permission was also required under clause 63.05 of the planning scheme. Permission is required under the clause for buildings and works if a use in section 2 or 3 of a zone for which an existing use is established is to continue. A hotel or bar is a section 2 use in the GRZ. Having regard to our ultimate findings, it is unnecessary to rule on whether this permission is required. However, we observe that permission is already required for buildings and works under the GRZ and other provisions and therefore we doubt such permission is needed.

1. Three relevant notice and review exemptions apply in relation to the clauses of the planning scheme under which permission is required.

An application under any provision of this planning scheme which is generally in accordance with the incorporated plan is exempt from the notice requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Act.[10]

1. As the application is generally in accordance with the concept plan, the exemptions apply to an application under any of the relevant provisions.
2. The first relevant question is to what part of the subject land does the IPO apply?
3. AVC shows the boundary of the IPO on the amended plans.[11]
4. Ms Jordan said she satisfied herself that the boundary as shown on the amended plan was correct. She relied on a measurement from a 'distance tool' shown a 'definition plan' derived from the planning scheme maps. She tendered the plan.
5. The plan shows the IPO extending 21.27 metres from the boundary of the subject land at a point central to the north-south extent of the extension to the beer garden. She had the same tool applied to the amended plan which showed the IPO extending 21.52 metres from the boundary of the subject land at a different point that appears about 25 metres further south from the first point.
6. The 350 mm difference between the two measurements is de minimis and we accept Ms Jordan's opinion that the IPO is shown accurately on the amended plans.
7. The second relevant question is what part of the buildings and works in the application are within the IPO and therefore subject to the exemptions?
8. Perusal of figure 2 shows the footprint of the extended beer garden shaded in green (comprising the roofed section containing the bar, store and toilets, as well as the unroofed section) entirely within the IPO.
9. All the buildings and works in the IPO area are exempt from notice and review rights.
10. The buildings and works outside the IPO are not exempt. This includes the works to alter the car spaces and accessways and crossovers in the car park.

1. An application for permission to construct buildings and work in the Land Subject to Inundation ('the LSIO') is subject to exemptions.[12]

1. An application for permission to vary, reduce or waive bicycle facilities requirements is subject to exemptions.[13]

1. It suffices to state that we can consider all relevant matters in the decision guidelines relevant to the clauses under which permission is required.

1. Ms Driver, Ms Quinsee and others ('the respondents') may not rely on any grounds in their statement of grounds that relate to permissions for which the exemptions apply.
2. We cannot consider any submissions that respondents make that relate to permissions under the LSIO[14] or under clause 52.34 and any permissions needed for buildings and works in the IPO.
3. As no permission is required to use any part of the subject land to sell or consume liquor or to use any part of the subject land for a hotel or bar (including the extended beer garden), we cannot consider any submission they may make about the existing use (such as amenity impacts of that use, including acoustic impacts). We also cannot consider any submission about any activities in the relevant parts of the subject land related to the extended beer garden (including any potential increase in the number of patrons and amenity impacts of those activities).
4. As no permission is required to reduce the number of car spaces on the subject land, we cannot consider any submission they may make about the adequacy of the number of car spaces.
5. We also cannot allow the respondents to cross examine any witness giving evidence about those matters.[15] This means the respondents are unable to question Mr Swan. They are also unable to question other witnesses on their opinions about buildings and works in the IPO.
6. In these unusual and complex circumstances, it follows that the respondents have 'limited' standing to participate in the proceeding and we are only able to consider submissions from them about buildings and works outside the IPO for which permission is required. In essence, this is confined to works for reconfiguration of the car park, including altered accessways and crossovers, and landscaping works outside the IPO, and some signage. At the start of the hearing, we made this clear to the respondents.
7. If we were minded to grant an amended permit, AVC accepted that we could include conditions for amendments allowing buildings and works 'aimed at achieving particular outcomes (eg acceptable levels of noise) ... [if] there is a sufficiently direct connection between the outcome sought and the works authorised'.[16] We agree with that proposition and it accords with the Tribunal's findings in Motorcycling Australia v Surf Coast SC.[17]
8. We also told the respondents at the start of the hearing, that we would grant leave for them to make submissions on appropriate conditions. The respondents did not make such submissions and did not attend the relevant days of the hearing when this opportunity arose for all parties.

1. The issue of patron numbers (and, in particular, additional patron numbers anticipated to use the extended beer garden) is relevant to flood risk impacts. We will address flood risk impacts shortly. In this section of the reasons, we determine if there are likely to be additional patrons at the Tavern following construction of the extended beer garden and the quantum of the addition.
2. The Tavern's liquor licence includes a maximum patrons number of 764 patrons.
3. The permit application lodged with the Council included seeking permission under clause 52.27 of the planning scheme to increase maximum patron numbers at the Tavern from 764 to 1,564.
4. AVC applied to amend the permit application before the hearing of the proceeding to delete permission under clause 52.27 and to reduce the area of the extension to the beer garden from 698 m2 to about 571 m2 (ie a reduction of 127 m2 or about 18%).[18]
5. In these reasons, we have already explained why we granted AVC leave and allowed the amendment.
6. As permission is not required to increase maximum patron numbers, it is not straightforward to determine whether there could be an increase in patron numbers in the Tavern if the extension to the beer garden went ahead.
7. The plans show the Tavern has a total floor area 1,587 m2 at ground level and a total floor area at the upper floor of 727 m2 and an existing beer garden of about 365 m2.[19]
8. We have no evidence about whether the current maximum of 764 patrons is met at some times. It appears records of maximum patron numbers at particular times on particular trading days do not exist.
9. If we are to make a finding, we must do so on the information before us.
10. AVC correctly submits that if the extension were to proceed, there could be no increase in maximum patron numbers under the current licence. In other words, AVC would need to observe the cap of 764 patrons.
11. AVC also correctly submits that the outcome under that scenario would be the ability to accommodate up to 764 patrons at more comfortable and less dense levels.
12. However, we find a reasonable inference that AVC intends to seek a licence variation to increase maximum patron numbers if we allow the application in this proceeding. We make that inference having regard to four factors.
13. First, the original application sought an increase to 1,564 patrons on an extension to the beer garden of 698 m2. At that time, AVC could be inferred as to be intending to apply for that licence variation if the Council had allowed the application.
14. Second, AVC does not deny a potential increase or deny the likelihood or possibility of an application for a licence variation to increase patron numbers. AVC withdrew the increase from the application not because an increase was no longer to be pursued but because there was no need to seek permission for an increase under the planning scheme on account of existing use rights. AVC says an increase is only 'uncertain'.
15. Third, an application for a licence variation does not require planning permission and whether a licence variation to allow an increase in maximum patrons is, as we understand it, largely a function of floor area, facilities and building design (including exits). We are satisfied that the liquor regulator would not be taking flood risk into account in deciding a licence variation application. We anticipate there would be good prospects for a successful licence variation.
16. Fourth, we have no evidence of substantial changes to existing internal spaces at the Tavern. Such changes, if they exist, are not before us. Our inspection revealed that the Tavern remains closed following the 2022 flood event and repair works are ongoing. It is therefore logical to infer that, without significant changes to existing internal spaces, most of the potential increase (to which we calculate shortly) will be accommodated in the extension to the beer garden.
17. We agree that an increase to 1,564 patrons would be unlikely if the beer garden in the amended plans were constructed because the extension to the beer garden is now 127 m2 (or about 18%) smaller. However, an increase to a figure 18% less than the 800 maximum patron number increase is logical ie an increase of about 656 patrons. This would equate to a new potential maximum at the Tavern of 764 plus 656 or 1,420 patrons.
18. In assessing this application, our focus must be on the impact of the extension to the beer garden. We therefore find it reasonable to conclude that the potential increase in maximum patron numbers in the extension to the beer garden as 656 patrons.
19. As we have stated, potential maximum patron numbers in the extension to the beer garden is relevant to the risk of flooding hazards, to which we now turn.

1. The proposed buildings and works require permission under the LSIO that applies to the subject land. This permission is subject to consideration by Melbourne Water as the relevant floodplain management authority.
2. Melbourne Water objects to the grant of an amended permit stating that the proposed expansion of the existing premises is not consistent with the approach of minimising potential flood risks to life, health and safety associated with development.
3. In particular, Melbourne Water submits that the proposal amounts to an unacceptable outcome having regard to:
   • the Planning Policy Framework ('the PPF') in the planning scheme and the purpose and decision guidelines of the LSIO; and
   • Objective 1 (Flood Safety) and Objective 2 (Flood Damage) of the Guidelines for Development in Flood Affected Areas prepared by the Department of Environment, Land, Water and Planning in 2019 ('DELWP Guidelines').
4. From the submissions about flooding, there are two key issues we need to determine:
   • Does the proposal result in off-site flood impacts?
   • Are the proposed flood risk management measures acceptable having regard to flood policy and relevant flood management guidelines?

Decision making context and relevant considerations

1. The decision making context and the relevant considerations comprise the LSIO, policy and guidelines and other relevant documents. We now turn to each of those matters in turn.

1. The subject land is in an area of LSIO as follows.
2. 

Figure 3: LSIO with the subject land outlined in red

Source: Planning Property Report, Tribunal Book, p 12

1. The purposes of the LSIO are to (Tribunal emphasis added):
   • To implement the Municipal Planning Strategy and the Planning Policy Framework.
   • To identify flood prone land in a riverine or coastal area affected by the 1 in 100 (1 per cent Annual Exceedance Probability) year flood or any other area determined by the floodplain management authority.
   • To ensure that development maintains the free passage and temporary storage of floodwaters, minimises flood damage, responds to the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity.
   • To minimise the potential flood risk to life, health and safety associated with development.
   • To reflect a declaration under Division 4 of Part 10 of the Water Act, 1989.
   • To protect water quality and waterways as natural resources by managing urban stormwater, protecting water supply catchment areas, and managing saline discharges to minimise the risks to the environmental quality of water and groundwater.
   • To ensure that development maintains or improves river, marine, coastal and wetland health, waterway protection and floodplain health.[20]
2. Relevant decision guidelines include (Tribunal emphasis added):
   • The Municipal Planning Strategy and the Planning Policy Framework.
   • Any local floodplain development plan.
   • Any comments from the relevant floodplain management authority.
   • The existing use and development of the land.
   • Whether the proposed use or development could be located on flood-free land or land with a lesser flood hazard outside this overlay.
   • Alternative design or flood proofing responses.
   • The susceptibility of the development to flooding and flood damage.
   • The potential flood risk to life, health and safety associated with the development. Flood risk factors to consider include:
     • The frequency, duration, extent, depth and velocity of flooding of the site and accessway.
     • The flood warning time available.
     • Tidal patterns.
     • Coastal inundation and erosion.
     • The danger to the occupants of the development, other floodplain residents and emergency personnel if the site or accessway is flooded.
   • The effect of the development on redirecting or obstructing floodwater, stormwater or drainage water and the effect of the development on reducing flood storage and increasing flood levels and flow velocities.
   • The effect of the development on river, marine and coastal health values including wetlands, natural habitat, stream stability, erosion, environmental flows, water quality, estuaries and sites of scientific significance.
   • Any other matters specified in a schedule to this overlay.[21]
3. Schedule 1 to the LSIO does not specify any matters which affect or alter the provisions of clause 44.04.

The general decision guidelines in the planning scheme underpin all applications and they include consideration of:

• Any significant effects the environment, including the contamination of land, may have on the use or development.
• The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.[22]

1. Consideration must also be given to the policies at State and local level that are relevant to the exercise of the discretion.
2. We have considered all of the planning policies relevant to development near a waterway, including those relating to 'Biodiversity', 'River corridors, waterways, lakes and wetlands', 'Waterways of the West', 'Natural Hazards and Climate Change', 'Coastal Inundation and Erosion', 'Floodplain Management', and 'Catchment planning and management'.[23]
3. We consider the key objectives of the policies relative to flood risk assessment are worth setting out below.

Clause 13.01-1S - Natural hazards and climate change

1. The objective, which was updated via Amendment VC216, is:

To minimise the impacts of natural hazards and adapt to the impacts of climate change through risk-based planning.[24]

1. The strategies are to (Tribunal emphasis added):
   • Respond to the risks associated with climate change in planning and management decision making processes.
   • Identify at risk areas using the best available data and climate change science.
   • Integrate strategic land use planning with emergency management decision making.
   • Direct population growth and development to low risk locations.
   • Develop adaptation response strategies for existing settlements in risk areas to accommodate change over time.
   • Ensure planning controls allow for risk mitigation and climate change adaptation strategies to be implemented.
   • Site and design development to minimise risk to life, health, property, the natural environment and community infrastructure from natural hazards.[25]

• Life, property and community infrastructure from flood hazard, including coastal inundation, riverine and overland flows.
• The natural flood carrying capacity of rivers, streams and floodways.
• The flood storage function of floodplains and waterways.
• Floodplain areas of environmental significance or of importance to river, wetland or coastal health.[26]

1. The relevant strategies include:
   • Identify land affected by flooding, including land inundated by the 1 in 100 year flood event (1 per cent Annual Exceedance Probability) or as determined by the floodplain management authority in planning schemes.
   • Avoid intensifying the impact of flooding through inappropriately located use and development.[27]

Guidelines for Development in Flood Affected Areas

Any floodplain management manual or guideline of policy and practice, or catchment management, river health, wetland or floodplain management strategy adopted by the relevant responsible floodplain management authority.[28]

1. We agree with Melbourne Water that the DELWP Guidelines are relevant.

1. The DELWP Guidelines are guidelines used by Melbourne Water in assessing planning applications.
2. Melbourne Water submits that if the need for planning permission raises flood related issues, and an application for that permission is referred to Melbourne Water, it will assess all proposals for development on land affected by overland flows associated with its drainage system having regard to the DELWP Guidelines.
3. The DELWP Guidelines have been adopted by the Department of Transport and Planning ('DTP') and they may therefore be considered by the Council in assessing this application.[29]
4. There was no dispute between parties that the DELWP Guidelines are relevant to our consideration. They have also been referred to and relied on in various other decisions of Tribunal in which flooding impacts have been discussed.[30]
5. The DELWP Guidelines provide an assessment framework and method to assist decision-makers in considering development proposals within flood affected areas. They are intended to be used with the land use planning and development system.
6. Part 3 of the DELWP Guidelines, on 'Assessing development proposals', sets out four key objectives for floodplain managers, in this case, Melbourne Water, to assess development proposals against:

Objective 1 - Safety:

Protect human life and health and provide safety from flood hazard.

• Applies to all development proposals.
• Proposals that are unable to meet the safety objective will be rejected.

Objective 2 - Flood damage:

Minimise flood damage to property and associated infrastructure.

• Applies to building proposals
• The objective is usually satisfied by setting floor level requirements as a condition of permit.

Objective 3 - Offsite impacts:

Maintain free passage and temporary storage of floodwaters.

• Applies to buildings and works in flow conveyance and flood storage areas, including those associated with a subdivision.
• The objective is usually satisfied by siting the works appropriately.
• Requirements are reinforced through conditions of permit. Sometimes design modifications are necessary.

Objective 4 - Waterway and floodplain protection:

Protect and enhance the environmental features of waterways and floodplains.

• Applies to subdivisions, buildings and works near waterways and those parts of the floodplain that are regularly flooded.
• The objective is usually satisfied by incorporating setbacks, works to prevent harm and appropriate vegetation into site plans.
• Requirements are reinforced through conditions of permit.

1. Melbourne Water submits flood safety and flood damage to be the relevant considerations in this proceeding. Offsite impacts were also addressed by Mr Swan in his evidence statement.
2. The DELWP Guidelines draw a distinction between the development of various uses and establish different criteria for development based on those uses. Table 3 of the DELWP Guidelines provides safety criteria for development (other than subdivisions). We have extracted out part of this table, relevant to the development of a building for a hotel use in the figure below.

Figure 4: DELWP Guidelines - Extract of part of Table 3: Safety Criteria for development other than subdivisions

1. The DELWP Guidelines state that all proposed development should satisfy the safety requirements specified in Table 3, which are based on three categories:
   • Building stability for residential development and other lightly constructed buildings.
   • The safety of small children evacuating on foot.
   • The stability of small cars being driven though floodwater.
2. The proposed development was initially assessed by Melbourne Water under the 'Non-accommodation buildings' section of Table 3 and the 'Industrial building, office, place of assembly, retail building, or warehouse' type. For this type, Table 3 provides:
   • maximum depth ('D max') of 0.5 metres ('m');
   • maximum velocity ('V max') of 2.0 metres/second ('m/s'); and
   • maximum product ('VD max') of 0.4 metres2/second ('m2/s').
3. During the hearing AVC submitted that, given the floor area shown on the amended plans, the proposed development should correctly be assessed under the type 'Replacement buildings or expansions - less than 130% of the original footprint'. For this type, Table 3 provides that D max, V max and VD max are 'n/a'.
4. AVC provided the following floor areas and they are shown on the figure below:
   • Ground level pub area: 1,587 m2
   • Entry area: 93 m2
   • Existing beer garden area: 365 m2
   • Existing outdoor deck: 120 m2
   • Existing building footprint: 2,165 m2
   • Additional beer garden area: 571 m2
   • Building footprint area percentage increase: 26.3 %
   • New building footprint: 2,736 m2

Figure 5: Plan showing floor areas prepared by RED Australia Architects, drawing TP06 (rev 13) dated 3 July 2023, tendered to the Tribunal on 18 July 2023.

1. The figure of 126% is very close to the 130% value referenced in the table. Even though the footprint increase may be less than 130% it is worryingly close to that figure and we need to be cautious in this location with such high flood hazard.
2. For the type of 'Replacement buildings or expansions - more than 130% of the original footprint', Table 3 provides that D max, V max and VD max are the same as those used by Melbourne Water to assess the initial application.
3. AVC submitted that they did not rely on the assessment being completed under the safety criteria for a replacement buildings or expansions less than 130% of the original footprint. Instead, they relied on Mr Swan's flood assessment and his evidence.
4. In relation to safe access for infill development, the DELWP Guidelines state that (Tribunal emphasis added):

Safe access for infill development

Proponents for infill development or redevelopment usually have no control over the access from the site to safe ground. This can be challenging for communities with a high flood risk. Requiring a shop floor to be built 1.5 metres above the footpath creates access issues for those unable to use stairs, for example.

Proposals that increase the population at risk should follow the requirements for safe access. For example, subdivision in a residential area should not be supported if the depth and velocities exceed the thresholds in Table 2, because it increases the population affected. Likewise, Table 3 provides restrictions to buildings in unsafe areas: replacement structures and small expansions are acceptable, but not other development.

Wherever possible, the criteria relating to floor level heights should be followed, particularly for dwellings. As can be seen from the example of a shop, there may be instances in which floodplain managers use their discretion to reduce minimal floor level requirements, after considering:

• the scale of the proposal and its purpose
• site constraints
• the amount of flood warning time
• the distance to safe ground.

Where discretion is exercised, a flood emergency plan may be required. The plan sets out appropriate actions to minimise flood damage, risk to occupants, and demands on emergency services.

1. Melbourne Water also considers the City of Maribyrnong Storm and Flood Emergency Plan - A Complementary Plan of the Maribyrnong Municipal Emergency Plan (Version 5.2) (VICSES, December 2019) ('the MSFEP') to be relevant.
2. The MSFEP is a document used by Melbourne Water in assessing planning applications.
3. The purpose of the MSFEP is to detail arrangements agreed for the planning, preparedness / prevention, response and recovery from storm and/or flood incidents within the City of Maribyrnong.
4. The scope of the MSFEP is to:
   • identify the storm and flood risk to the City of Maribyrnong;
   • support the implementation of measures to minimise the causes and impacts of storm and flood incidents within the City of Maribyrnong;
   • detail response and recovery arrangements including preparedness, incident management, command and control; and
   • identify linkages with local, regional and State emergency and wider planning arrangements with specific emphasis on those relevant to storm and/or flood.

1. Clause 13.03-1S includes a policy guideline to consider as relevant the Victorian Floodplain Management Strategy ('the VFMS').[31]
2. The VFMS incorporates important lessons learnt from the 2010, 2011 and 2012 floods, and the subsequent review into the effectiveness of flood warning and response systems, and inquiry into flood mitigation infrastructure. In Chapter 5, titled 'Aligning the Victorian and national approaches to emergency management and disaster resilience', the VFMS states that 'Victoria follows the national approach set out in the Australian Emergency Management Handbook from a flood study to on-ground action.'
3. As stated in the DELWP Guidelines, the VFMS sets the direction for floodplain management in Victoria. Part 2, "Avoiding or minimising future risks", endorses the use of planning controls to manage the potential growth in risk. The DELWP Guidelines respond to Objective 3 in the VFMS: "not making things worse".

1. The Australian Disaster Resilience Handbook Collection[32] ('the ADR Handbook Collection') is published by the Australian Institute for Disaster Resilience ('the AIDR') and provides guidance on national principles and practices for disaster resilience. The ADR Handbook Collection states that it:
   • provides an authoritative, trusted and freely available source of knowledge about disaster resilience principles in Australia
   • aligns national disaster resilience strategy and policy with practice, by guiding and supporting jurisdictions, agencies and other organisations and individuals in their implementation and adoption
   • highlights and promotes the adoption of good practice in building disaster resilience in Australia
   • builds interoperability between jurisdictions, agencies, the private sector, local businesses and community groups by promoting use of a common language and coordinated, nationally agreed principles.
2. The relevant handbooks from the ADR Handbook Collection for this proceeding are:
   • Handbook 7 Managing the Floodplain: A Guide to Best Practice in Flood Risk Management in Australia[33] ('the FRM Handbook').
   • Guideline 7-3 Technical flood risk management guideline: Flood hazard[34] ('the Flood Hazard Guideline')
   • Guideline 7-5 Flood Information to Support Land-use Planning[35] ('the FISLP Guideline')
3. The FRM Handbook is referenced in the bibliography of both the VFMS and the DELWP Guidelines and provides a guide to the best practice approaches to flood risk management in Australia.

What is the flood hazard we need to consider?

1. The subject land is located on the western bank of the River at the river end of Anglers Way between the River and Chifley Drive and to the north and immediately upstream of the Raleigh Road - Maribyrnong Road Bridge in Maribyrnong.
2. The subject land is set low on the River floodplain and as such is subject to both local stormwater (flash) flooding and flooding from even small river floods.
3. The 1% AEP flood level for the site is 4.2 m AHD. The existing building, carpark and beer garden are all below this level. The Maribyrnong township gauge is a flood warning gauge with designated Minor, Moderate and 80 Major flood levels.
4. In Mr Swan's hydrology evidence, being relied upon by AVC, he observes that as the height of the River rises:
   • the ground floor levels of the building would begin to be inundated at 1.7 m AHD (the Minor Flood Level); and
   • the proposed beer garden would begin to flood at 2.6 m AHD (being above the Moderate Flood Level of 2.3 m AHD).
5. Melbourne Water's submissions provide an assessment of the proposal against the flood safety criteria in Objective 1 of the Guidelines, as provided in the figure below.

Figure 6: Assessment of the proposal against the flood safety criteria in Objective 1[36]

1. Based on this assessment, the proposal fails to meet the assessment criteria for flood safety within the DELWP Guidelines, specifically exceeding the safety criteria specified for maximum depth (D) and product (VD) specified in Table 3 of the DELWP Guidelines.
2. Melbourne Water also submits that the proposal fails to meet Objective 2 of the Guidelines given floor levels for the proposed beer garden are not proposed to be constructed to the Nominal Flood Protection Level ('NFPL') of 4.80 m AHD.[37]
3. The subject land is particularly susceptible to flooding and, historically speaking, there have been numerous occasions in which flooding would have impacted the proposed beer garden area to some degree.
4. Historic storm and flooding records contained in the MSFEP indicate that the Maribyrnong River flood gauge at Maribyrnong had, between 1891 and 2017, exceeded:[38]
   • the Minor Flood Level (1.7 m)[39] on 30 occasions;
   • the Moderate Flood Level (2.3 m) on 21 occasions; and
   • the Major Flood Level (2.9 m) on 10 occasions.
5. In terms of flood warning, Mr Swan's evidence is that:
   • it is expected that the waters begin to rise at the Maribyrnong gauge between 12 and 18 hours after the start of prolonged heavy rainfall;
   • in a large flood event, it is expected that the minor flood level will occur 6 hours after the start of rise of the River; and
   • the State Emergency Service ('the VICSES') and the Council are expected to receive 8 to 12 hours of warning of a flood peak occurring at the Maribyrnong gauge, measured from the Keilor gauge.
6. The MSFEP indicates that the typical travel times between the Keilor and Maribyrnong gauges are:
   • between 1 and 6 hours for a Minor Flood Level;
   • between 2 and 5 hours for a Moderate Flood Level; and
   • between 2 and 4 hours for a Major Flood Level.
7. The MSFEP also specifies properties which are 'at risk from flooding over-floor along the Maribyrnong River in Maribyrnong', and states that the subject land:
   • comprises over-floor flood risk at the Minor Flood Level (1.7 m), which comprises a 20% AEP flood event; and
   • experienced flooding in January 2011 when the Maribyrnong River rose to 2.21 m, causing flooding over the lower floor of the existing premises.
8. The parties agree that the Tavern will be one of the first buildings in Maribyrnong which will be impacted by flooding events. Mr Swan recognises this in the case of a Major flood, but Melbourne Water contends the issue is broader than this, and extends to the Minor and Moderate floods.
9. The October 2022 flood event, which impacted the subject land, was the third-largest recorded for the River, with a peak height at the Maribyrnong River gauge of 4.22 m AHD. The October 2022 flood event was slightly less than a 2% AEP.
10. The impact of that event can be seen in the aerial photograph provided below.

Source: Written submissions on behalf of Melbourne Water, dated

1. This photo shows that the subject land is cut off from all access roads and access is only available by watercraft. It also shows that the exact location of the edge of the River, which is very close to the subject land, is obscured.
2. In relation to how the existing flood hazard stands to increase with climate change, Melbourne Water submits:

Even so, climate change stands to increase riverine flood risk. While modelling can and will be updated after major flood events, it is not possible to accurately predict future flooding outcomes under all potential climate change scenarios. Projections of climate change indicate, with a high degree of confidence, that extreme rainfall events in greater Melbourne will become more intense. Equally, extreme rainfall events are likely to be more and more variable.2

1. Greater Melbourne Climate Change Projections 2019, Victorian Climate Projections 2019 (DELWP and CSIRO (2019).
2. The amended plans depict the undercover bar and amenities areas as including a 12 m long bar, fridges, drinks area, a cool room, freezer room, storage room and patron toilets. In the event of flooding at a Major Flood Level, these features would all be affected.

Does the proposal result in off-site flood impacts?

1. Although Melbourne Water did not specifically rely on adverse flood impacts as a result of the development as a reason for its objection, Mr Swan's evidence assessed the potential impact of the development on flood behaviour.
2. The results show that the expected impacts in a both the 5% and 1% AEP flood events are limited and do not significantly change flood behaviour. There is no increase in flood level on neighbouring properties in the 1% AEP event, and impacts of less than 20 mm in the 5% AEP event. Mr Swan considered these differences negligible and stated that they would not constitute an adverse flood impact. His evidence was that the proposed development does not have adverse flood impacts on the flow behaviour, flood level or flow velocity of the River.
3. Mr Swan's evidence in relation to off-site flood impacts was not disputed.

What are the proposed flood risk management measures?

1. AVC proposes a Flood Risk Management Plan ('the FRMP') to be put in place for the subject land and implemented by the Tavern operator in the event of a flood occurring. The FRMP, in draft form, was included in Mr Swan's statement of evidence and supported by him. The FRMP actions depend on which of the two types of flood event occur.
2. In the event of a local flash flood event the proposed response in the FRMP is to shelter in place.
3. In the event of a River flood event the FRMP strategy relies on people being evacuated from the hotel before the flood waters reach the subject land.
4. We observe that the FRMP uses the word 'relocate'. We use the word 'evacuate' throughout these reasons as we think it more accurately describes the temporary, urgent movement of people away from the immediate or anticipated threat of flooding. Evacuations are typically organised by local authorities and the aim is to get everyone out of the area of flood hazard until the situation is safe again, when they can return to the building.
5. In contrast, we consider that the word 'relocation' refers to a longer-term, more permanent strategy that involves moving people, infrastructure and property out of flood hazard areas. Relocations are often driven by policy and the aim is to reduce long-term risks by moving people out of the hazard area permanently. Our approach is consistent with the terminology used in the DELWP Guidelines, MSFEP and the FRM Handbooks
6. The proposed evacuation plan provides guidance for the Responsible Person (or Delegate(s)) to:
   • advise all building occupants (patrons, visitors, staff), to evacuate from the building until further notice as it may be closed for some time;
   • confirm that all patrons, visitors and staff have evacuated from the building; and
   • lock down the building for the duration of flooding in the vicinity of the building.
7. The FRMP response to a River flood event also includes the following (with the qualification of 'if time and staff availability permit and depending on the likely peak flood level'):
   • move perishable goods off-site;
   • move items likely to be damaged by flood water off-site or to Level 1 and / or off the floor onto, for example, benches and tables; and
   • bring outside furniture and other items likely to float into the building - preferably into an area where the potential for damage is minimal if any of the items float.
8. AVC relied on the evidence of Mr Swan that, by evacuating the patrons, it is possible to mitigate the flood risk to people to an acceptable level, if not eliminate it.
9. Melbourne Water's objection is based on avoiding flood risks by avoiding the intensification of land use and / or development on flood prone land.

Are the proposed flood risk management measures acceptable?

1. There is no dispute between the parties that Maribyrnong River floods create hazardous conditions for the subject land, to which humans are particularly vulnerable. The subject land, being set low on the River floodplain, is particularly susceptible to flooding of the River in an range of flood events. The flood event in October 2022 is a recent reminder of this.
2. Flood hazard is independent of the population at-risk. It is the human interaction with the floodplain and associated exposure to flood hazard that creates flood risk. So, if the floodplains are unoccupied and unused, flooding would not create a risk to the community.[40]
3. The dispute between the parties lies not in flood hazard, but in the consideration of flood risk for this subject land.
4. AVC's case relies heavily on the FRMP. Mr Swan's opinion is that it will completely mitigate the risks associated with access to the subject land in the event of a flood as there will be no people on the subject land at the time of flooding. The FRMP proposes different actions for the two different flood events that can occur at the subject land - a local flash flood event and a River flood event. We consider these both in turn below.
5. In the event of a local flash flood event the proposed response in the FRMP is to shelter in place. The best practice information in the FRM Handbook is that the shelter in place strategy should not be used to justify a new development which increases density in the floodplain.[41]
6. However, we accept that a shelter in place strategy may be a viable alternative to evacuation during flash floods for existing or replacement buildings, where there is also safe access to and egress from the building.
7. In this case, the evidence is that, as a result of the relatively small local catchment, during a local flash flood there is still safe access and egress from the building via the doors onto Anglers Way. So, we find it acceptable that a shelter in place strategy is included in the FRMP for local flash flood events.
8. In a River flood the FRMP strategy relies on people being evacuated from the subject land before the flood waters reach the subject land.
9. The evidence of Mr Swan is that, by implementing the FRMP for the subject land, the exposure to flood hazard is essentially removed and the flood risk for the subject land is reduced to almost zero. In his opinion, there is sufficient flood warning time such that the risks associated with access to the subject land in a flood are completely mitigated, as there will be no people on subject land at the time of flooding.
10. We accept that, for the existing development, implementing an effective FRMP can reduce the risk to life, health and safety (as well as reducing flood damage to buildings and their contents) associated with floods. Flood warning and evacuation plans may, in the existing case, be the only economically justifiable flood risk management measure.
11. However, the proposal is for a building extension to the Tavern and, associated with that extension, an additional maximum 656 patrons. This is a development that increases the population at risk. With this larger population at risk, a greater number of people need to be warned and evacuate.
12. In relation to the strategy in the planning scheme to avoid intensifying the impact of flooding through inappropriately located use and development,[42] Mr Swan's opinion was that 'there is little to no intensification of the impact of flooding by the proposed development.'
13. Mr Swan's assessment is that this development in the LSIO is acceptable because:
    • the subject land has an existing use as a hotel;
    • the use is not residential, and no-one will be sleeping here or have their personal belongings onsite;
    • the subject land has a single occupancy has only one responsible person (the manager at the time);
    • there is no flash flooding of concern;
    • there is a good existing flood warning system in place on the River;
    • there is predictive data for the River in the form of flood modelling;
    • there is approximately 8 to 12 hours warning of a minor flood event to evacuate people from the subject land;
    • there are no vulnerable people on site ie elderly, children, hospital patients; and
    • the buildings in the proposed beer garden will be constructed from flood-resistant materials.
14. In relation to the use of flood-resistant materials, we agree with Melbourne Water that construction methods do not appropriately compensate for the need to ensure that development on such a flood-prone site, particularly given the potential for flood damage, is so high. Further, Melbourne Water submits that, given the flood safety risks apparent in the proposal's failure to meet Objective 1 in the Guidelines, ensuring that the proposal is raised to ensure that impacts of flood damage are avoided, and not merely minimised, is all the more important.
15. Our understanding of Mr Swan's oral evidence was that he only considered the existing use and the existing maximum number of patrons allowed at the Tavern (and did not expressly consider an increase in maximum numbers of patrons) because the proposal was only to increase the beer garden area.
16. In oral evidence Mr Swan also agreed with the proposition that it would not be acceptable to put the Tavern (or any hotel or bar) on the subject land if the subject land was vacant ie it were a greenfield site.
17. Mr Swan's opinion that the use would be unacceptable (and should be refused) for a greenfield site carries some weight. In our view, that opinion conflicts with his evidence that the FRMP acceptably manages the flood risk for the proposal - if it did, then a new use would also be acceptable with that same FRMP in place.
18. Further, we don't accept that an increased population at risk is acceptable because it is an existing use - existing use is not a justification for increasing the population at risk. Our interpretation of all the best practice flooding guidelines and handbooks is that existing use is (perhaps reluctantly) accepted, but proposed density increases should be assessed very carefully in high-risk areas such as this, and avoided and minimised if possible.
19. For this reason, we consider it appropriate, when assessing the proposal against the flood safety criteria in Objective 1 of the DELWP Guidelines, to be conservative. The building footprint area percentage increase figure of 126% is very close to the 130% value referenced in the table. Even though the footprint increase may be less than 130% it is worryingly close to that figure and we need to be cautious in this location with such high flood hazard.
20. As such, we don't accept AVC's submissions that the proposal could be assessed under the safety criteria for a replacement buildings or expansions less than 130% of the original footprint. Instead, the proposal should be assessed conservatively under the safety criteria for a replacement buildings or expansions more than 130% of the original footprint (noting that the safety criteria for this approach would be the same as those applied by Melbourne Water to assess the initial application).
21. We say this on the basis that the beer garden extension would increase the population at risk by 656 people, which is a large increase in population at risk. We agree with the submissions made by Melbourne Water that the 'safety criteria for a replacement buildings or expansions less than 130% of the original footprint' option included in Table 3 of the DELWP Guidelines is intended to be used to efficiently assess replacement buildings or extensions with minor changes and should not be applied to this extension which is significantly increasing the population at risk.
22. We note that there was some discussion at the hearing about whether the reference to '130% of the original footprint' was in relation to assessing flood safety or flood damage. Mr Swan's evidence was that Table 3 is located in the flood safety section of the DELWP Guidelines so it is in relation to flood safety but that it could be reasonably interpreted to be relevant to both flood safety and flood damage.
23. There was also some discussion at the hearing about how the reference to 'the original footprint' should be interpreted. Melbourne Water took us to a previous guideline which it said is where the 130% figure came from and, in that guideline it referenced any footprint existing prior to 2000.
24. Melbourne Water submitted that, compared to the hotel footprint in 2000, this expansion would be more than 130%. AVC disputed this submission. Either way, we consider it appropriate, given the increased population at risk, to assess the extension under the conservative safety criteria used by Melbourne Water to assess the initial application.
25. We accept Mr Swan's opinion that the VFMS embraces a mix of structural and non-structural measures to deal with flood risk and the DELWP Guidelines promote a balance of flood risk management and the productive use of land rather than flood risk elimination strategy.
26. We also accept that the DELWP Guidelines provide that 'floodplain managers have discretion to vary from the Guidelines, considering local circumstances, the nature of the development proposal and the flood risk'. They also provide that 'flood affected areas may be used productively when development proposals respond appropriately to the degree of risk'.
27. However, it occurs to us that productive use of land subject to flood hazard usually involves a development that raises floor levels above the flood levels and ensures safe access and egress from the site, rather than relying on evacuation.
28. Our ultimate finding is that the proposal does not 'respond appropriately to the degree of risk'. Our reasons follow.
29. Mr Swan refers to the FRMP and the existing formal flood warning system as non-structural flood mitigation measures. The difficulty with relying on evacuation in this case is that mitigation measures such as evacuation are low in the hierarchy of flood risk management (ie the hierarchy of avoidance, minimisation and mitigation).[43]
30. The strategy in the planning scheme is to 'avoid intensifying the impact of flooding through inappropriately located use and development'.[44]
31. One of the purposes of the LSIO is 'to minimise the potential flood risk to life, health and safety associated with development'.
32. The words 'avoid' and 'minimise' in these provisions, rather than the word 'mitigate' are indications that the planning scheme is aiming to employ strategies higher in the hierarchy of flood risk management.
33. The mitigation measure of evacuation relies on a series of events going to plan. It relies on weather predictions in the upstream catchment being accurate. It relies on the flood warning system and gauges along the River operating effectively. It relies on the existing flood models for the River being accurate. It relies on flood warning communication going out to the population at risk. It relies on those flood warning communications being received (and received in a timely manner) by the population at risk. It relies on the communicated flood warning times being accurate. It relies on there being adequate time to safely evacuate the population at risk. Perhaps most challenging, it relies on the population at risk behaving sensibly and timely in the face of a flood emergency. Finally, it relies on emergency service volunteers putting themselves at risk to rescue people if the evacuation does not go to plan.
34. In this case, the use of the subject land as a hotel makes the population at risk potentially more vulnerable as it relies on potentially inebriated people (in group settings and enjoying celebrations, dining, music and dancing) to behave sensibly and timely in the face of a flood emergency. They may need additional support to evacuate, not just from the hotel and carpark, but from the surrounding area which is all subject to high flood hazard.
35. Even though the use is a hotel (and not residential) and has only one responsible person (the manager at the time), the extent of intensification of the potential flood risk is problematic given the site's high flood hazard.
36. There are aspects of the FRMP that are currently unresolved. We recognise that the FRMP would have to be finalised and be approved by Melbourne Water and the Council before the development starts, but the idea of evacuating up to 1,420 people, many trying to flee from the car park, is too risky. We do not support increasing the population at risk by 656 people in this case. Whilst there may be more than 8 hours' notice to evacuate, a lot could go wrong and the actual time in a serious event could be fewer hours.
37. In contrast to the mitigation measure of evacuation being one of the lowest approaches on the hierarchy of flood risk management, one of the highest approaches on the hierarchy of flood risk management is avoidance via land use planning. That is, managing the risk at the planning stage by preventing new development or intensification of existing development in the floodplain.
38. We agree with AVC's proposition that the policy and the planning controls, in this case at least, are not intended to eliminate all risk. However, they seek to avoid and minimise risk, not just mitigate it.
39. Melbourne Water submits that there is a substantial risk undertaking in place with the entertainment venue on the banks of the River and that the question is whether that risk should be increased to the extent proposed by this application. We agree with Melbourne Water that while risk avoidance might suggest that the use should cease, risk minimisation must consider the proposition that the risk should not be further increased through further development.
40. In this case there is an LSIO and policy in place which supports avoidance and minimisation of flood risk in this location. Notably, there is no competing policy in the planning scheme that encourages intensification of development in this location. AVC submitted that the Tavern's existing use rights are or amount to a competing policy. We do not agree. Even if an existing use could amount to a competing policy, it is of little weight in these circumstances.
41. We are not satisfied that the proposed development is consistent with the LSIO objective to minimise the potential flood risk to life, health and safety. Nor are we satisfied that the proposed development is consistent with the floodplain management strategy in the planning scheme,[45] to avoid intensifying the impact of flooding through inappropriately located development.
42. Further, we are not satisfied that this development achieves the direction for floodplain management in Victoria as set out by the VFMS[46] of "avoiding or minimising future risks" through the use of planning controls to manage the potential growth in risk and "not making things worse."
43. Given that the liquor regulator would not be taking flood risk into account in deciding a possible future licence variation application to increase maximum patron numbers, it is now (when the beer garden extension is being considered under the planning scheme) and only now when the increased population at risk during a flood is appropriately considered.
44. The proposed extension to the existing hotel, is an increase in floor area[47] that in turn leads to a substantial increase in population at risk in this area of high flood hazard.
45. In our opinion, the proposal fails to comply with Objective 1 and fails to substantially comply with Objective 2 of the DELWP Guidelines, and comprises an unacceptable outcome with respect to flood safety and flood damage.
46. The subject land is subject to high flood hazard, well above the DELWP Guidelines safety criteria, for the Maribyrnong River flood. We are not satisfied that the FRMP, which relies on mitigation measures of flood warning and evacuation, is an effective measure to manage flood risk to a level which justifies a development that increases density and the population at risk in the floodplain.

1. A risk-informed approach to land use planning must be taken for the proposed development. It should not be approved due to the high flood hazard associated with this location and the increased population at risk resulting from the development.

1. It is well established that if multiple permissions under a planning scheme are required in respect of a particular application for a permit (or for amendment of a permit), a 'composite' permit or amendment must only be granted if permission is granted under each permission.
2. As we have decided to not grant permission under the LSIO, the application to amend the permit must be refused. It is therefore unnecessary to make findings about the grant of other permissions.
3. It is therefore unnecessary to decide, for example, whether we support the conditions recommended by Mr Tardio to address acoustic impacts of the extended beer garden.
4. We record that Mr Tardio in his written evidence included conditions requiring a noise limiting device to ensure amplified music complied with relevant regulations.[48] Mr Tardio also recommended a cap on patron numbers in the whole of the beer garden (ie the existing and proposed sections of the beer garden) of 400 at any time after 10 pm. AVC did not support a cap and, in oral evidence, Mr Tardio withdrew his support for his recommendation as being unnecessary.
5. We also briefly comment on a submission by the Council that amendment of the permit should be refused on the grounds it would entrench an inappropriate existing use having regard to the impacts on the amenity of the residential neighbourhood in which it is located. The Council relies on the reasoning in Motorcycling Australia that if buildings and works are regulated by clause 63.05, permission under that clause 'may sometimes be refused where it might entrench a non-conforming use ...'.[49]
6. AVC made detailed submissions about the reasoning in Motorcycling Australia. It suffices to state we repeat our doubt that permission is required under clause 63.05 and that the reference to a non-conforming use is a reference to a use that is a section 3 or prohibited use under the relevant zone provisions. The Tribunal in Motorcycling Australia was considering a section 3 use. In this proceeding, the existing use is a section 2 use. Accordingly, the principle of entrenchment has little relevance.

1. For the above reasons, we will affirm the Council's deemed decision to refuse to amend the permit. No amendment to the permit is granted.

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Written submission on behalf of the Council [32].

[4] The plans endorsed under that permit (no. TP710/2014(1)) on 29 January 2015 refer to the beer garden as the 'main terrace'.

[5] [2023] VCAT 376 ('Phelan').

[7] A permit includes an amended permit, as is relevant in this case. A permit for 'use' or 'subdivision' are not relevant in this case.

[8] Planning scheme cl 62.02-2. No permission is required under the planning scheme to construct roadworks unless there is a specific provision in the planning scheme that requires such permission. Under clause 44.04-2, permission is specifically required for roadworks in the LSIO if 'the water flow path is redirected or obstructed'. There was no evidence before us that the roadworks have that effect. Accordingly, no permission is required.

[9] It is unnecessary to consider the various authorities the parties brought to our attention about what works constitute roadworks.

[14] We follow the reasoning in Cinanni v Campaspe SC [2023] VCAT 797 [23]-[39].

[15] In making that ruling, we are following the Tribunal's ruling in Clifftop at Hepburn Pty Ltd v Hepburn SC [2023] VCAT 201 [181].

[16] Written submissions on behalf of AVC, [30].

[17] [2013] VCAT 1388 [133], [135] ('Motorcycling Australia').

[18] The area of the extension to the beer garden was specified in a plan prepared by RED Australia Architects, drawing TP06 (rev 13) dated 3 July 2023, tendered to the Tribunal on 18 July 2023.

[19] The upper floor area is dimensioned on the existing endorsed plans. The area of the existing beer garden is specified as 365 m2 on the plan prepared by RED Australia Architects, drawing TP06 (rev 13) dated 3 July 2023, tendered to the Tribunal on 18 July 2023.

[23] Ibid cls 12.01, 12.03-1S, 12.03-1R, 13.01-1S, 13.01-2S, 13.03-1S & 14.02-1S.

[30] See eg No.8 River Street Pty Ltd v Stonnington CC (Corrected) [2019] VCAT 2058, and Scotch College v Boroondara CC [2020] VCAT 1410, as referred to by the parties in this proceeding.

[31] Department of Environment, Land, Water and Planning, 2016.

[32] Also sometimes known as the 'Australian Emergency Management Handbook Collection' and previously the 'Australian Emergency Manual Series'. We understand that the AIDR is currently undertaking a review of the previous handbooks and manuals: https://knowledge.aidr.org.au/resources/handbook-review-2023/

[33] Australian Disaster Resilience Handbook 7 Managing the Floodplain: A Guide to Best Practice in

[34] Australian Disaster Resilience Guideline 7-3: Technical flood risk management guideline: Flood

hazard, 2014, Australian Institute for Disaster Resilience CC BY-NC.

[35] Australian Disaster Resilience Guideline 7-5 Flood Information to Support Land-use Planning (AIDR 2017).

[36] Melbourne Water submissions, dated 10 July 2023, p 21.

[37] A 600 mm freeboard allowance is applied to the estimated 1% AEP flood level of 4.2 m AHD on the subject land.

[40] Australian Institute for Disaster Resilience (2017), Handbook 7 Managing the Floodplain: A Guide to Best Practice in Flood Risk Management in Australia, page 9.

[41] Australian Institute for Disaster Resilience (2017), Handbook 7 Managing the Floodplain: A Guide to Best Practice in Flood Risk Management in Australia, page 60.

[43] Australian Institute for Disaster Resilience (2017), Handbook 7 Managing the Floodplain: A Guide to Best Practice in Flood Risk Management in Australia, page 2.

[46] And recalling that the VFMS is referenced as a policy guideline to consider as relevant in clause 13.03-1S of the planning scheme.

[47] For completeness, we construe the whole of the beer garden (both covered and open areas) are relevant floor area.

[48] The condition would ensure sound levels at the nearest off site sensitive use (being dwellings in Chifley Drive) would comply with the relevant day/evening and night period limits in the Environment Protection Regulations 2021 (Vic).

[49] [2013] VCAT 1388 [163].