1. By notice of the applicant for review on the second day of the hearing (7 November 2018), the applicant for review no longer seeks to pursue amendments to the application plans as they relate to signage. The application as it relates to signage is withdrawn.

1. In application P849/2018 the decision of the responsible authority is set aside.
2. Planning permit MPS/2013/795/B is amended and an amended permit is directed to be issued for the land at 336-346 Bell Street, Pascoe Vale South.
3. Conditions in the permit are amended as follows:
   • (a) Condition 17 is deleted.
4. Conditions in the permit are renumbered accordingly.
5. The responsible authority is directed to issue a modified planning permit in accordance with this order.

Mr Will Pearce, town planner of Human Habitats. He called Acoustic Engineering evidence from Mr Ross Leo of Clarity Acoustics.

Ms Emma Kelly, Ms Hayley Sloan, Mr Felix Zappone, and Ms Marilyn Moore, all in person

Condition 17 requires trading hours to be limited to 6.00am to 1.00am the following day on Fridays and Saturdays and 6.00am to midnight on Sundays to Thursdays. The applicant for review seeks to delete this condition and have the Hungry Jacks trade 24 hours daily. The application as it relates to signage is no longer pursued.

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

Clause 32.07-2 Use of the site for a convenience restaurant.

Section 72 of the Planning and Environment Act 1987 to amend an existing permit

Clauses 11, 12, 17, 21.03, 22.02, 32.07, 53.04, and 65

The land is located on the north eastern corner of Bell and Sussex Streets. The site is rectangular in shape with a frontage of 57 metres to Bell Street and a depth of 41.425 metres for a total site area of 2448 square metres. There is negligible fall to the site which is developed with a single storey building containing a Coles Express (24 hours), a petrol station (24 hours) and associated covered bowsers and a Hungry Jacks Restaurant (6.00am to 1am Friday and Saturday and to midnight all other days) with drive through to the rear of the site. Parking is located to the eastern boundary and to the west of the Coles Express store. Vehicular access is via two crossovers each to both Bell and Sussex Streets.

The site fronts on to Bell Street and is located within a residential area that has various commercial tenancies such as McDonalds to the west, Car Stereo Sales and Repairs to the north, Glass cutter and sales to the east, 24 hours BP to the south west and Chinese medicine to the south west. Dwellings are located in Soudan Street to the north with heir rear interface to a ROW, beyond which is the review site to the south. Dwellings also exist in Sussex Street and Bell Street.

The area includes some private and public planting that is in line with the robust nature of Pascoe Vale, whereby vegetation is reasonably limited.

The review site has reasonable access to public transport by way of buses and trams. A small shopping area is located to the west at Bell Street/Melville NAC.

The tribunal undertook inspections of the site and surrounding area on 21 December at 6.15pm and 2.00am and on 11 January at 11.15pm.

Hungry Jacks Pty Ltd v Monash CC [2012] VCAT 1888

HJBE Pty Ltd v Casey [2009] VCAT 2539

7 Eleven Stores Pty Ltd v Moreland CC [2013] VCAT 310

1. CFAL Pty Ltd applied to the Moreland City Council to amend planning permit MPS/2013/795/B to remove Condition 17 and to amend plans as the relate to signage, for the land at 336-346 Bell Street, Pascoe Vale South. The application for review as it relates to signage is no longer pursued, with the remaining application for review relating to Condition 17. This condition requires trading hours to be limited to 6.00am to 1.00am the following day on Fridays and Saturdays and 6.00am to midnight on Sundays to Thursdays. The applicant for review seeks to delete this condition and have the Hungry Jacks trade 24 hours daily.
2. Council determined to issue a Notice of Refusal to Amend the Permit on 13 April 2018. Council's view is that the extended 24 hours trading will result in unreasonable off-site amenity impacts and is thus not compliant with Clauses 22.02, 32.07, 53.04, and 65 of the Moreland Planning Scheme.
3. In addition to the concerns of Council, Ms Emma Kelly, Ms Hayley Sloan, Mr Felix Zappone, and Ms Marilyn Moore also held concerns with impacts of noise, especially exacerbated by differences in natural ground level between the review site and residences in Soudan Street, rubbish on site and in the surrounding area, increased traffic and use of on street parking for staff and patrons, increases in crime and unruly behaviour, smells and the setting of a precedent for McDonalds.
4. The review applicant, through Mr Pearce disagrees with Council and asserts that the use of the site for 24 hours is in line with other convenience restaurant uses, in line with the other uses on the site and will not have unreasonable impacts on the amenity of surrounding residents. It was his contention that the PPF, Local policies, the Residential Growth Zone, Clause 53.04 and 65 all lend support to the proposed development
5. The key issues for determination are:
   1. Is the proposed 24 hour trading supported by clauses 22.02, 32.07, 52.23, and 65 of the Moreland Planning Scheme?
6. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions with regard to the applicable policies and provisions of the Moreland Planning Scheme, I have decided to set aside the Council's decision and direct that a permit issue. My reasons follow.

IS THE PROPOSED 24 HOUR TRADING SUPPORTED BY CLAUSES 22.02, 32.07, 52.23, AND 65 OF THE MORELAND PLANNING SCHEME?

Clause 22.02 Discretionary Uses in Residential Zones

1. The Discretionary Uses Policy at Clause 22.02 of the Moreland Planning Scheme seeks to protect the character and amenity of existing residential areas through the appropriate location of non-residential uses, such as food and drinks premises. There is an emphasis on providing access to services and facilities "compatible with and within walking distance of residential areas" both within Clauses 22.02-1 and 21.02-2 of the Moreland Planning Scheme.
2. I am satisfied that the deletion of Condition 17, which has the effect of creating a '24 hour' operation, furthers the objectives of Clause 22.02. I am satisfied that the Hungry Jacks is both appropriately located and the use of the site 24 hours per day will not unreasonably impact residential amenity. I say this for the following reasons:
3. The use of the premises for food and drinks is existing, albeit limited in hours. The site is located on a main road, Bell Street, on the corner with Sussex Street. The site includes a petrol station that operates 24 hours a day, including a Coles Express (24 hours), an existing Hungry Jacks facility with a small eat-in component (16 seats), a drive through component of Hungry Jacks traversing the rear boundary, with parking to the side and frontage of the site, interfacing with Sussex and Bell Streets respectively. While it was put to me that the site is located in a residential area, with Sussex Street a minor residential street, my site visit did not confirm this situation 'on the ground'. The immediate area is robust, with commercial tenancies apparent, including the uses on the review site, the McDonalds restaurant to the west on the NW corner of Bell and Sussex Streets (348 Bell Street), 24 hour BP service station directly to the south of McDonalds (301-303 Bell Street), Chinese Acupuncture medical centre to the south (299 Bell Street), car stereo sales and repairs to the north of the ROW to the north of the site (2 and 2A Sussex Street), glass cutter/mirrors/glass products directly to the east (334 Bell Street) and other commercial facilities further afield on Bell Street. These uses, in conjunction with the well trafficked nature of both Bell and Sussex Streets, but more particularly, Bell Street, combine to create an existing level of amenity that is low, due to car noise and human activity, including voices. The area is noisy, but from what I observed on each occasion, this noise emanates primarily form the car traffic on Bell Street, with patron noise and voices far less unyielding.
4. During my site visits I propped (20 minutes) in the ROW to the north (rear) to hear the ordering system in the drive through to the rear of the site. It was virtually inaudible above car noise on each occasion. I examined the whole lot to look for litter and propped on site (30 minutes) to observe patron behaviour in the parking area. I observed some litter in the parking bay to Bell Street (one burger wrapper). I observed patrons eating in their cars, on some occasions standing outside their cars eating. There was no raucous behaviour on site. I observed patron behaviour from the review site was not as loud as from McDonalds, I also observed that McDonalds had far more customers, which may account for this difference in noise. There was patron behaviour outside McDonalds (presumably from McDonalds patrons) that I would describe as most likely the result of having consumed alcohol previously, or if not, somewhat obnoxious and unnecessarily shouting. This din was scarcely noticeable above the noise of traffic.
5. I also propped in both Sussex Street (20 minutes) and Soudan Street (20 minutes) to observe patron behaviour. I did not detect patrons in these streets. That is not to say there were none, just that they were not readily observable.
6. I also attended the store itself both through the drive through, and in the store. I noted that the customer order system was not overly loud within the drive through. I also noted the extent of overhang of the drive through 'tunnel' was extensive. In the store (once in, as the store was closing) I asked for a copy of the litter register. After a phone call to another person, the manager (Tony) provided me with a copy of some photos of "patrolling pics" from 12.09pm. I was not provided with a complete list of the date and time that litter patrols were undertaken, nor the amount of times per day they were undertaken, nor detail of the streets where the litter patrol was undertaken, nor provided with details of the amount of litter collected within the premises. From my site inspection it does not appear that litter management is being conducted in line with Condition 11 of Planning Permit MPS/2013/795/A.
7. It would be wise for Hungry Jacks management to take note of the concerns of surrounding residents regarding litter, after all, these are prospective patrons that are being repelled. Surrounding residents' concerns relate principally to patron behaviour including litter, noise, unruly behaviour and parking. Whilst this is not an enforcement hearing and I cannot take specific measures regarding compliance with conditions of the existing Planning Permit MPS/2013/795/A, it is a requirement of the land owner to be fully compliant with all the conditions of the permit. In particular, litter management. When in doubt of whether or not planning compliance is achieved, wisdom would dictate doing more rather than less. This would serve not only to promote better neighbourliness but may also promote good will. That is not to say that there is currently no goodwill intended, but there is clearly a schism here between residents and Hungry Jacks, a schism I believe that can be ameliorated with more tolerance and better neighbourliness beyond simple compliance with the requirements of planning. Neighbourliness is a hope rather than any regulation or requirement that planning, and in this instance the Tribunal can require. That said, if the conditions of the current permit are not being complied with, residents have the right to pursue that matter further, separate to the matter that is to hand here. To the extent I observed litter, it was for a short period of time, was limited to one piece, and was located wholly on site with no litter observed elsewhere. To this end, whilst the litter management condition does not appear to be complied with fully (with thorough details lacking), the incidence of litter that I observed was not unreasonable.
8. Whilst 24 hour operations are discouraged in Clause 22.02, I am satisfied the increase in hours will not have an unreasonable impact on the residential amenity of the local area. I agree with the statement put in HJBE Pty Ltd v Casey [2009] VCAT 2539 by Mr Finanzio and repeated by Member Hadjigeorgiou at paragraph 11 in that:

Planning in this state has always acknowledged that on land in residential zone that is located on a main road, convenience restaurants and other service related activities are acceptable, even desirable. It is well recognised that such uses to serve local community needs, even if they would also draw passing trade.

The recognition that such uses can be appropriate in locations like this is manifest in the VPPs, which expressly includes provision to deal with the establishment of convenience restaurants and car wash facilities in locations just like this.

1. I am satisfied that this site, located on Bell Street, is well able to capture patrons from passing traffic, from the surrounding area, and from those who seek to use the petrol station. In this way the extension of hours might serve not only the needs of local residents, but also road users of Bell Street, essentially opportunistic patrons. In this way, the traffic from Bell Street (a road in a Road Zone Category 1) might be captured, with limited interaction in Sussex Street, thus reducing generation of extra traffic on the local street network. I have not been persuaded that the increase in traffic in Soudan or Sussex Streets would result in unreasonable amenity impacts through significant changes to traffic conditions in local streets including an increase in car parking demand
2. I agree with the position of Member Keaney in Hungry Jacks Pty Ltd v Monash CC [2012] VCAT 1888 whereby he noted the limited incidence of patronage in the small hours based on other cases (such as those presented in the current hearing, all of which I do not recite for brevity's sake). At Paragraph 30 he stated:

While it is acknowledged that the drive-through operation inclusive of vehicle and patron noise will doubtless increase, two things are apparent. The first is that the incidence of usage between 1.00am and 6.00am is likely to be very low and (based on other examples) it is likely to generate about 15 vehicular trips be [sic] hour (one every four minutes).

1. Immediately abutting properties are commercial in nature with residential properties separated by a ROW (77&79 Soudan Street) or by a full street (Sussex and Bell Streets). I have not been persuaded that the noise from the premises, extended to 24 hours, will have an unreasonable impact on the amenity of surrounding residents. In this I am buoyed by the acoustic engineering evidence of Mr Leo of Human Habitats who submitted "the barrier is constructed to exceed the acoustic requirements of condition 6 of the planning permit." He noted the construction of the noise barrier with:

1. a minimum surface mass of 15.49kg/m2, 2. for a height of 2.5 metres

1. extending from within 15 metres of the western boundary to the eastern boundary and down to the south, 2. with a 5 metre wide canopy over the Customer Order Device (COD).
2. I do not agree with Mr Harries in that the proposal for 24 hours operation I n the decision of 7 Eleven Stores Pty Ltd v Moreland CC [2013] VCAT 310 is relevant here. The site context is similar in many ways, being located on a main road, and within a residential zone. However, the interface for that site (512-514 Pascoe Vale Road, Pascoe Vale) is very different to the context of the review site. I visited that site on 21 December 2018. In the Pascoe Vale Road decision, the site was L shaped and had direct interfaces to sensitive private open spaces of seven residential properties. In this review, there is no direct residential interface. I find that the context is poles apart, to the extent that I will not apply the tenets of that decision here.
3. I have not been persuaded that the difference in NGL will have an appreciable effect on the impact of noise, this question being asked and answered by Mr Leo, who advised that the difference in ground level would have negligible effects on sound transmission. Additionally, Mr Leo submitted that the extended hours would comply with SEPP N-1 with a maximum predicted noise level at 77 Soudan Street of 35 decibels and at 79 Soudan Street of 34 decibels, both of which are well within the SEPP N-1 level of 41 decibels. Similarly, a sleep disturbance predicted assessment was provided indicating compliance (by 7 decibels) with the maximum sleep disturbance event predicted at 58 decibels, well below the allowable 65 decibels.
4. In contrast, assertions made through submissions were not supported by any evidence that was presented in a manner that might be examined, such as through cross examination. I was provided with quotes from studies that were not specific to this application, nor was the writer of the study able to be cross-examined. I give this evidence limited weight. In lieu of any expert evidence submission to the contrary that is able to be interrogated through cross examination, and despite anecdotal submissions of wakefulness, I am satisfied that the evidence provided by Mr Leo is credible, and to be relied upon.
5. Additionally, I have not been persuaded that the increase in hours will unreasonably increase crime or unruly behaviour. I observed none on site when I attended. I am not persuaded that reportage from Channel 9 programming addresses the impacts of the increases in hours for this particular site. Similar to the reasons identified above, there is no evidence that is empirical, there are no options for cross-examination, and there is no specificity to this site. For these reasons, I give this evidence limited weight.

1. The review site is located within the Residential Growth Zone. One of the purposes of the Residential Growth Zone is "to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations." A Food & Drink premises is a 'Section 2' permission required use. In addition to the purposes of the Zone, Clause 32.07-12 requires consideration of the PPF the Municipal Planning Strategy and any other specified decision guidelines.
2. I find that the proposed 24 hours use satisfies the purposes of the zone and the decision guidelines and I say this for the following reasons:

1. As noted previously, I find the 24 hour use is compatible with nearby residential uses. 2. I am satisfied the 24 hours use generally serves local community needs.

1. The scale and intensity of the use is reasonable for the reasons outlined previously

1. There is no change to the design, height, setback and appearance of the buildings, landscaping or provision of car parking and associated accessways. 2. I am satisfied that the use of the site 24 hours will not impact on loading and refuse collection facilities, which are determined by the conditions of the original permit. 3. The safety, efficiency and amenity effects of traffic to be generated by the proposal is satisfactory, as noted previously.

Clause 53.04 Convenience Restaurant and Clause 65 Decision Guidelines.

1. An applicable General Requirement and Performance Standard of the Moreland Planning Scheme includes Clause 53.04- Convenience Restaurant and Takeaway Food Premises. Clause 53.04-2 requires consideration of the PPF the Municipal Planning Strategy, Clause 65 and additional decision guidelines. I find that the proposed 24 hours use satisfies Clauses 53.04 and 65. I say this for the following reasons:
   1. The location is appropriate for a 24 hour convenience restaurant having regard to:
      1. The amenity of the neighbourhood which I find will not be unreasonably impacted on through noise, litter, light spill, traffic and parking or unruly behaviour;
      2. As noted above, the site has direct interfaces with commercial premises and a ROW with residential properties beyond that;
      3. There will be no effect of the use on heritage and environment features;
      4. I am satisfied that the premises have the capacity to contain significant off-site effects, in line with reasonable expectations;
      5. The site has access to a Road Zone;
      6. The site is not suitable for a residential use due to the existing Coles Express, Hungry Jacks and Petrol Station operating on site.
      7. There will be no changes to built form. The application as it related to signage has been withdrawn.
      8. The site layout, as approved in the original permit included design measures that incorporate adequate noise attenuation measures, landscaping, car parking, vehicle access lanes, rubbish bins, plant and equipment, lights, signs, drive through facilities to prevent significant loss of amenity to adjoining land due to noise, emission of noise, emission of light or glare, loss of privacy, litter or odour.
      9. The adequacy of traffic, car parking, and drive through queuing spacing to accommodate customers at peak periods and employee requirements on the land was addressed at the time of the existing permit and will not be unreasonably impacted upon through 24 hour trading.

1. In conclusion, having regard to the context of the review site and the relevant policies and provisions of the Moreland Planning Scheme, I consider that the proposal will represent an acceptable planning outcome. I will set aside the decision of the Responsible Authority and direct grant of an amended permit.