Victorian Civil and Administrative Tribunal|2004-09-23|Before: Mr J, Mrs J

Bomvic Pty Ltd v Yarra CC [2004] VCAT 1961 (23 September 2004)

S 77 Planning and Environment Act 1987 - Yarra Planning Scheme - Residential 1 zone - Existing Hotel - extension of trading hours - clause 52.27 - clause 22.09 - impact on residential amenity.

With respect to permit application no. PL03/1012, a permit is granted to use sell and/or consume liquor in accordance with the endorsed plans at 212 Vere Street Abbotsford. The permit must contain the following conditions:

1. All development must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.

2. The premises must only be open to the public and liquor must only be sold or consumed on the land between the following hours:

Christmas Eve and New Years Eve 7 am to 1 am the following day

Fridays (except Good Friday) to Saturday 7 am to 1 am the following day

3. The beer garden must not be open to the public or used by patrons beyond 11pm.

4. Not more than 100 patrons are permitted to be on the land at any one time.

5. Not more than 60 patrons are to be within the hotel building after 11pm.

6. Noise emissions must comply with State Environment Protection Policies N-1 and N-2.

7. No live bands are to provide entertainment on the land.

8. No live, recorded or amplified music is to be provided to or in the beer garden area at any time.

9. No live music or music provided by a Disc Jockey is to be provided within the hotel after 12 midnight.

10. During all hours when the premises are open to the public, entry must be made freely available to any authorised officers of the Responsible Authority for the carrying out of any investigations associated with the sale or consumption of alcohol on the land.

11. During all hours when the premises is open to the public, there must be present on the premises, a person above the age of 18 years [the manager], responsible for good conduct of the hotel use.

12. The manager referred to in condition 10 must at all times be authorised to make statements and admissions on behalf of the operator of the hotel to any authorised officer of the Responsible Authority regarding the conduct of the use of the land.

13. The amenity of the area must not be detrimentally affected by the use allowed by this permit and the buildings through:

(a) The transport of materials, goods or commodities to and from the land;

(b) The appearance of any buildings, works or materials;

(c) The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam. Soot, ash, dust, waste water, waste products, grit or oil, or

14. Notices must be placed inside the building and within the beer garden area advising that the land is located within a residential area and requesting that patrons leaving the premises do so in a quiet and orderly manner to avoid disturbance of surrounding residents, to the satisfaction of the Responsible Authority.

15. An area must be provided for the placement of garbage bins and materials stored for recycling. This area must be paved, screened and constructed to the satisfaction of the Responsible Authority.

The Responsible Authority is directed to issue a permit in accordance with this order.

Mr S Koenig, Planning Consultant for Mrs J Flanagan. Mr K Bristow, Ms M Macleod and Ms M Comerford appeared in person.

1 This matter relates to an application under S 77 of the Planning and Environment Act 1987 by the permit applicant, Bomvic Pty Ltd, against the Yarra City Council's decision to refuse a permit with respect to permit application no. PL03/1012. The permit application seeks permission under clause 52.27 of the Yarra Planning Scheme to vary the hours during which "The Park Hotel" located at 212 Vere Street Abbotsford may operate.

2 The permit application was lodged with the Council on 2 October 2003. Following the submission of further information, the Council required the application to be advertised. In response, the Council received 45 objections and a petition with 38 signatures. Ms Sharp summarised the grounds of objection as follows:

(a) waiving of car parking is inappropriate and additional parking problems will result;

(b) Increased patrons will lead to additional noise, disturbance and loss of amenity;

(d) Inappropriate intensification of use in a residential area;

3 The Council made its decision to refuse the permit application on 16 March 2004. The grounds of refusal are:

1. Approval of the hours proposed is inappropriate for a residential area and would create inherent conflicts with other land uses and functions in the area.

2. Trading to the hours proposed is incompatible with, and will undermine the core residential function of the area, which are identified at Clause 21.05-1 and will result in unacceptable impacts on nearby residential amenity.

3. The long term planning implications of approval of the hours sought is inconsistent with the strategic direction contained within the City of Yarra's MSS and Local Policies including its Licensed premises policy (Clause 22.09)

4. The proposal is considered to be contrary to the principles of orderly and proper planning and is not consistent with Clauses 32.01, 63 and 65 of the Yarra Planning Scheme.

4 The application for review was filed on 8 April 2004. The grounds of the application are:

1. The proposal to extend the hours of opening is appropriate in an inner city area containing a mix of uses (both residential and non-residential).

2. The increased trading hours will not have an unacceptable effect on the amenity of nearby residences.

3. The proposed trading hours will not be incompatible with local Planning Policy.

4. The proposed trading hours will not be inconsistent with the principles of orderly and proper planning in this inner city location.

5 The subject land is located on the northwest corner of Vere Street and Nicholson Street, Abbotsford. The land is occupied by a 2 storey hotel known as the Park Hotel. The only other building of note on the land is a garage located towards the rear of the land. The hotel is relatively modest in size providing for a public bar area [53 square metres], a lounge bar [32 square metres] as well as kitchen and other amenities at ground level. The first floor level is used for residential purposes. The existing hotel building covers most of the subject land, however, a vacant area to the rear is used as a beer garden.

6 The hotel operates under an existing general licence. The licence is subject to 2 conditions; one requiring compliance with SEPP N-2 the other allowing the hotel to trade during the following hours:

Good Friday and Anzac Day between 12 noon and 11 pm

7 Contextually the subject land is located within a residential area, however, there are a number of commercial/industrial uses nearby. Residential properties exist to the north along Nicholson Street and to the west in Vere Street. Commercial/industrial uses exist immediately to the south and east.

8 The proposal involves extending the hotel's trading hours to the following:

Monday to Sunday between 7am and 1am the following day

Good Friday and Anzac Day between 10am and 1am the following day

9 Under the planning scheme the land is located within the Residential 1 zone. Although "hotel" is a section 2 or "permit required" use within the zone, no planning permits have been issued for the land to be used for this purpose. It was common ground, however, that the hotel operates under existing use rights as provided for under clause 63 of the planning scheme. The land is also affected by the Heritage Overlay, however, this control is not relevant to this matter.

10 Although the land enjoys rights to continue to be used as a hotel, a permit is required under clause 52.27 to "use land to sell or consume liquor if", amongst other things, "the hours of trading allowed under any licence are to be extended". Under the schedule to this clause, it is possible to include within the scheme circumstances where a permit may not be required or, alternatively, may not be granted, to use land for the sale and consumption of liquor. The schedule does not specify that a permit cannot be granted for the proposed extension of hours.

11 The decision guidelines that apply are at clause 65. These require consideration to be given to amongst other things, the planning scheme's policies, purpose of the zone, orderly planning and the impact on amenity.

12 In relation to the planning scheme's policies, Ms Sharp, Mr Koenig and Ms McKenzie referred to the provisions at clauses 21.05, 22.01 [Discretionary Uses with in Residential zones Policy] and clause 22.09 [Licensed Premises Policy]. I agree that the provisions of these parts of the planning scheme's policy frameworks are most relevant to the consideration of the proposal.

13 At the hearing, the parties tabled and spoke to written submissions to which they added oral argument. I was also presented with other material relevant to the consideration of the proposal including photographs of the subject land and surrounding area, maps, plans and extracts from the scheme. All the submissions and other material have been considered.

14 It is also relevant to note that I have inspected the subject land and locality.

15 At the commencement of the hearing I allowed amendments to the permit application and application for review to specify Bomvic Pty Ltd as the applicant.

16 During the course of the hearing, one of the arguments presented by Ms McKenzie in support of the grant of the permit was that the proposal presents the opportunity for the hotel to be subject to the conditions of a planning permit. In effect, Ms McKenzie was saying was that the applicant would be willing to accept conditions that regulate the hotel use as a whole as a trade off for the additional hours being sought.

17 After the parties completed their submissions a discussion took place with respect to the draft conditions put forward by the Council. During that discussion, an issue arose as to whether it would be lawful to impose conditions regulating the hotel use as a whole rather than just during the "extra" hours being sought. I indicated to the parties that in my view, the ability to impose conditions regulating the use as a whole would have a bearing on the consideration of the merits of the proposal.

18 Whether or not conditions of the type put forward by Ms McKenzie can be imposed having regard to the control that "triggers" the need for a permit is a question of law. Ms Sharp did not consent to my determination of the question and, as such, it was necessary for it to be referred to a legal member. The question of law was defined as follows:

Can conditions that restrict the use of the land outside the hours of 11.00pm and 1.00am the following day be lawfully imposed on the permit [should one be granted]?

19 The parties were content to make written submissions on this issue. I issued directions on the 21 July 2004 in relation to further submissions on the question of law. The question of law and submissions received have been referred to Deputy President Gibson who has determined this legal matter as follows in her memo of advice dated 31 August 2004:

1. You have asked for my advice about the operation of clause 52.27 of the planning scheme, specifically whether the requirement for a planning permit pursuant to this clause would enable conditions to be imposed that would affect the operation of an existing use outside the extended hours, which is the reason why a permit is required pursuant to the clause.

2. Clause 52.27 appears on its face to be a very broad provision that requires a permit to use land to sell or consume liquor if a new licence is required; an existing licence is changed or hours of trading under any licence are to be extended. There is no limitation in the ambit of the words or the permission required which would imply that conditions cannot relate to any aspect of the use of land to sell or consume liquor.

3. Before the introduction of this provision in the VPPs, the operation of the existing use provisions made it extremely difficult to control the use of licensed premises where the use intensified or the way in which premises operated changed over time as a result of extended hours of operation, the introduction of live music, changes in the clientele, changes to the nature of the licence or extensions to the premises. Conditions were limited to the reason why a permit was required, which was often for a quite narrow reason. It was not always possible to tackle amenity or other issues arising from the use of the licensed premises as a whole even though the proposed change might contribute to a change in overall operating characteristics.

4. The introduction of clause 52.27 changed this. If a new or different licence is required, or hours of trading under a licence are to be extended, a permit is required to use the land to sell or consume liquor. No exception is made for an existing use, and clearly in the case where a different licence is required or there is an extension of trading hours the land will have existing use rights to sell or consume liquor. Therefore it is reasonable to infer that the purpose of clause 52.27 is to consider the whole use of the land to sell or consume liquor not just a limited aspect of the use, for example during the actual hours of extended trading.

5. Such an interpretation recognises, for example, that an extension in trading hours can have an impact on the way in which land is used well outside those hours by attracting more people to the premises or a different type of clientele, and that it is reasonable to control those impacts by conditions in a permit for use of the land to sell or consume liquor.

6. In the current case it is common ground that the conditions proposed can be said to be fairly and reasonably related to the permission being granted. It is submitted that: "the conditions of the kind proposed can be legitimately and lawfully imposed in respect of the whole of the trading hours as those conditions fairly and reasonably relate to the permission sought as they seek to control impacts which may arise during all the trading hours because of the intensification of the use and its consequent flow on."

7. I agree with this proposition in the present case. However, when applying the maxim that conditions must fairly and reasonably relate to the permission being granted, and when considering how far it may go in authorising the imposition of conditions over aspects of existing use, it is necessary to bear in mind what it is that a permit is being granted for. Under the provisions of clause 52.27 a permit is required to use land to sell or consume liquor - it is not a permit to extend hours of operation or a permit for a change in licence. In other words, the permit is not required for the triggering event but for the wider, more general use of land to sell or consume liquor. Therefore conditions must fairly and reasonably relate to this wider, more general use. They need not just relate to the triggering event. Unless clause 52.27 is to be interpreted in such a way, it is difficult to know what its purpose otherwise is.

8. My conclusion on the point of law referred to me in application P937/2004 is therefore that conditions which restrict the use of land outside the hours of 11.00pm and 1.00am the following day can be lawfully imposed on the permit (if one is granted).

20 Accordingly, based on the above determination on the question of law, I am able to consider the imposition of conditions that restrict the use of the land outside the "extended hours" being sought.

21 After having considered the submissions, the relevant matters to be considered under the planning scheme and legislation and the details of the proposal, it seems to me that the key issues in this matter are:

* Is the proposal contrary to the purpose of the zone and planning policy?

* Will the proposal result in unreasonable impacts on the amenity of the area?

22 In relation to the first issue, the subject land is located within a residential area and I accept the submissions presented on behalf of the Council and objectors that this is a relevant factor in assessing whether the amenity impacts associated with the proposed extension of hours are reasonable.

23 The purpose of the zone does not explicitly encourage the type of use that exists. However, this application does not seek permission for the establishment of a new use; rather, it involves a change to a use that has existed in this residential area for many years, forms part of its character and influences amenity. This is a case where the decision to be made involves the management of an existing use and making an assessment as to whether what is proposed will have an unreasonable impact on amenity.

24 In relation to policy, it is fair to say that the general thrust of the objectives at clause 21.05-3 seek to bring about an outcome where there is a continual reduction in the incidence of amenity conflicts between commercial an residential activities whilst clause 21.05-3 encourages entertainment facilities to be located within the municipality's major activity centres. The objective of the policy at clause 22.01 builds on this theme by seeking to achieve an outcome whereby residential amenity is not adversely affected by non-residential uses.

25 The policy for licensed premises at clause 22.09 is detailed, however, in terms of this matter, it states that trading after 11pm is not supported in residential areas unless the Council is satisfied that the use will not adversely affect the amenity of the area in terms of noise, hours of operation and car parking. The policy does not go as far as saying that trading beyond 11pm cannot be permitted in any circumstance; rather, it is necessary for the individual circumstances of each case, particularly the amenity impacts, to be considered. I think that Ms Sharp's assessment of the policy situation is essentially correct, that is, an extension of hours for the hotel must only be permitted if I can be satisfied that minimal detriment would occur.

26 This leads me to the second issue, namely, whether the proposal would bring about unreasonable impacts on residential amenity.

27 On this issue, it is relevant to consider the context of the land and the amenity on offer. Mr Koenig correctly acknowledged that the subject land is situated at the interface between a residential area and a commercial/industrial area. It is also relevant to consider that the subject land and other nearby properties are occupied by non-residential uses. Furthermore, it is apparent that there are times when there is pressure and high levels of demand for on street parking. It is not unusual to find these characteristics in inner urban locations like this and the amenity on offer is different to that which would be typically found in residential hinterland areas.

28 The Tribunal has often held that residents living close to commercial uses and zones cannot reasonably anticipate or expect the same type of "amenity" as that on offer within a residential hinterland area. For example in Logie v Campaspe Shire Council and Murray Goulburn Co-operative Ltd. (Appeal Nos. 1997/80066, 1998/21359 and 1998/21367) the Tribunal [Senior Member Byard] stated:

I note a further matter, which was also raised on the first day of hearing. Mr & Mrs Logie are correct in pointing out that their land, and the subject site, are both in a Residential zone under the planning scheme. They are mistaken however, in assuming that this means that they can expect to enjoy the same level of residential amenity as can be enjoyed by a residential property set in the midst of a Residential zone well away from any interface with an Industrial zone or with land which, although zoned for residential purposes, is used legally for industrial purposes. If they are beside land legally used for non- residential purposes they must expect and are obliged to accept the ordinary effects of such use, notwithstanding residential zoning.

29 This is not to say, however, that commercial activities should be given total freedom. In Logie, the Tribunal went on to say:

The same is true for Murray Goulburn. If it acquires and legally uses land for such purposes which is at the interface with lawful residential uses it must expect and accept certain constraints on its activities, having regard to the adjoining residential use, that it would not be troubled with if it was in the midst of an Industrial zone.

30 The upshot of the above is that in situations like this, a reasonable balance needs to be struck between the expectations and interests of residents and those of commercial activities such as the hotel on the subject land.

31 Deciding on what constitutes a reasonable balance in circumstances such as this is not a straight forward task. In Scott Family Hotel Pty Ltd v Yarra City Council and Ors [2001] VCAT (8 August 2001) the Tribunal [Senior Member Liston] was required to make a such a decision in a case where extended trading hours were sought for a hotel located within a residential area. In that case the Tribunal said:

In cases like this it is difficult to know where to draw the line, corner hotels of this type are an important aspect of the residential environment of places like Fitzroy, it is desirable to allow the hours of trade necessary to assure the viability of such uses. Nevertheless, these are hotels in a residential environment, and the way in which the hotels are used and operated must be consistent with the reasonable expectation for amenity in that residential environment.

32 The concerns and issues raised by the Council and the objectors in this case are consistent with those typically raised in cases like these relating to noise, untoward patron behaviour outside the venue, car parking and traffic. In general terms, the concerns raised were mainly associated with the extension of trading hours into the evening rather than the early morning period, however, some concern was also raised about disturbance during morning periods.

33 Ms McKenzie's submission essentially sought to emphasize the "positive" steps taken by the current hotel operator to minimise impacts on amenity. These include not operating the hotel and a live band venue and various management measures as set out at pages 11-12 of her submission. Further, Ms McKenzie indicated that the applicant would be willing to accept permit conditions that would prohibit live bands, limit the number of patrons and not allow extended trading in the outdoor beer garden. Ms McKenzie emphasised that whilst extended hours are being sought on all days, it would be likely that patronage during the early part of the week [Monday to Thursday] would continue to be low with trading to later hours being anticipated on Fridays and Saturdays.

34 What, therefore, strikes a reasonable balance in this case?

35 In my view, it is not unreasonable for the permit applicant to have some of the flexibility that it seeks in terms of extra trading hours given that there are a number of hotels nearby that operate up to 1 am [as referred to at page 5 in Mr Koenig's submission]; the nature of the venue is not one based on live bands; the closure of the beer garden at 11pm and the number of patrons envisaged between the hours of 11pm and 1am [60 persons] is relatively modest. This is not a large venue and its impacts in terms of car parking, traffic and noise would be modest. In relation to noise, compliance with the State Environment Protection Policies N-1 and N-2 must be achieved.

36 Conditions can be imposed on the permit to ensure that these limits are maintained.

37 However, given the residential context of the land, I consider that the reasonable balance in this case is to allow extended trading hours to 1 am on Fridays and Saturday evenings and in the mornings with the current closing 11 pm closing time applying Monday to Thursday. I consider that the extended hours should also be allowed on special occasion days, Christmas and New Years Eve. The hotel hours should not allow trading before 9 am on Sunday mornings. I do not consider it necessary to specify hours for Anzac Day as these can be those applicable to the day on which it falls. Good Friday hours have been allowed as applied for.

38 Accordingly, my decision is that a permit be granted allowing some, but not all, of the extended trading hours being sought. I have settled the form of the permit conditions to reflect the additional hours during which the hotel may operate and included other conditions relating to patron numbers, the use of the beer garden and no live bands.

Environment Act 1987

Bomvic Pty Ltd v Yarra CC [2004] VCAT 1961

At a glance

Court

Decision date

Before

Source

Judgment (93 paragraphs)

Bomvic Pty Ltd v Yarra CC [2004] VCAT 1961 (23 September 2004)

Parties

Legislation Cited (1)