2. Pursuant to the provisions of Section 85(1)(a) of the Planning and Environment Act 1987, it is directed that a permit must not be granted.

For the Applicant for Review Kel Twite, SJB Planning Pty Ltd

For the Respondent Objectors Joel Ruffles, Brand Partners Solicitors

1. This is an Application for Review pursuant to Section 77 of the Planning and Environment Act 1987 to review a decision by the Melbourne City Council to refuse to grant a permit at 265-281 Errol Street, North Melbourne (Rydges Hotel) for alterations and additions to provide an outdoor seating area for 20 patrons as an extension to the existing restaurant, including use of outdoor area to sell and consume liquor from 6.30 am to 11 pm seven days a week.

2. The application for permit (No TP02/66) was lodged with the Responsible Authority on 23rd January 2002. Council required notice of application to be given and 6 objections (from 19 people) were received. The grounds of objection were summarised in Council's submission.

3. On 22nd April 2002, Council issued a Refusal to Grant a Planning Permit on the following grounds:

1. The proposal would conflict with the primary purpose for which the land is zoned and with the objectives of the zone.

2. The proposal is contrary to Local Policy 22.14 (Discretionary Uses in Residential Areas).

3. The proposal would detract from the amenity of adjoining residential properties by reason of visual intrusion, excessive noise and artificial light penetration.

4. The introduction of the proposed use into a predominantly residential area would have a detrimental impact on the amenities and environment of nearby residential properties.

5. The proposed trading hours would be prejudicial to the amenity of the area by reason of increased noise and disturbance.

4. The Application for Review was lodged on 3rd May 2002 on the basis that:

1. The proposal complies with the Melbourne Planning Scheme.

2. The proposal would not adversely affect the amenity of the neighbourhood.

3. The proposed use would not have a detrimental impact on the amenities and environment of nearby residential properties.

4. The development is consistent with orderly and proper planning of the area.

5. By forwarding grounds for contesting the application for review Jane Good, Mark Perica, Ann Cremean, Tim Cremean, Katrina Campsini, Alan Fenwick, Marian Fenwick, Andrew Chadder, Robert Lethbridge, Tony Nastasi, Giuseppe Nastasi, Tom Dabic, Jjelica Dabic, Ray Bassett, Moray Hughes, Andrea Hughes and Kathy George became parties to the review hearing. All parties were represented by Joel Ruffles of Brand Partners.

6. Subsequent to the hearing the Tribunal inspected the subject site and surrounding locality on two separate occasions.

7. At the commencement of the hearing Mr Twite confirmed his request to substitute the plans. Since the revised design had been previously circulated and no objection received, pursuant to Section 64 Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the application was so amended.

8. I find the following description of the site and locality, taken from the submission by Melbourne City Council, to be an appropriate one and confirms my observations during two site visits:

The subject site is located at the western corner of the intersection of Harker Street and Flemington Road in North Melbourne.

The subject site comprises three separate Certificates of Title, which are collectively known and referred to as 265-281 Errol Street & 133 Flemington Road, North Melbourne.

The two smaller parcels with frontage to Flemington Road are vacant and recognisable on inspection as an informally landscaped area that is fenced to exclude the public.

The larger, L-shaped lot is occupied by a three-storey building of brown brick construction. The building was constructed in two stages between 1969 (the southern wing) and 1975 (the northern wing) and has operated since that time as the Marco Polo Inn, now owned by the Rydges Hotel Group. A porte-cochere marks the main entrance to the building which comprises 70 rooms, associated house facilities and on-site car parking for approximately 68 vehicles.

The Motel has a bar and dining area located at ground level at the southern end of the building, with seating for 40 dining patrons. This area operates as an ancillary component of the motel.

An important characteristic of the subject site is its slope from Northwest to Southeast.

The immediate urban context of the site is influenced by the following land use and development:

* Royal Children's Hospital which comprises a number of medium and high rise buildings occupies a substantial parcel of land opposite the subject site on the northern side of Flemington Road. It presents a relatively large building mass, being 9-10 storeys at the Flemington Road/Gatehouse Street corner.

* Beyond No.20 Chapman Street, to the North-west, is a varied collection of 1 and 2 storey housing, much of it attached. A number of these dwellings have rear private open space and rear access from a right-of-way. Two storey attached terraces are also located immediately opposite the site, and continue as a mix of single and two-storey dwellings on the south side of Chapman Street.

* Single dwellings are also located to the east of the site across Errol Street at the south-eastern end of Chapman Street.

* Harker Street is the primary road opposite the site that leads directly to Flemington Road and also to a slip lane that leads to a service lane. It is a heavily trafficked through-route that enables traffic to bypass the centre of the CBD. The street provides existing vehicle access to the Motel by means of a porte-cochere on this frontage.

9. The modified proposal has the following key features:

* Construction of an elevated timber deck with an area of approximately 40 square metres to the exterior of the existing restaurant in the area between the building, the drive and the footpath. The area is currently landscaped.

* The deck is set back 1.5 metres from the Harker Street and Chapman Street frontages and is level with the floor of the existing restaurant.

* The outer edges facing Harker and Chapman Streets are to be provided with 1.6 metre high timber slated screens and access will only be available via the restaurant.

* The deck will have seating for 20 patrons and will be used in conjunction with the adjoining restaurant between 6.30am and 11pm.

* Liquor will be able to be consumed on the deck between 6.30am and 11pm (restaurant hours).

10. The subject site is zoned Residential 1 under the Melbourne Planning Scheme.

11. A Heritage Overlay applies to the land (HO3 - North Melbourne Area).

12. In addition, other Clauses of the Planning Scheme relevant to consideration of the Application include:

s State Planning Policy Framework - Clauses 13 (Principles of Land Use and Development Planning) and 19.03 (Design and built form)

s Local Planning Policy Framework - Clause 22.05 (Heritage Places Outside the Capital City Zone)

s General provisions - Clauses 52.27 (Licensed Premises) and 65 (General Decision Guidelines)

13. Council made reference to Clause 22.14 which I find of little assistance in this matter. The policy applies specifically to discretionary uses in a Residential zone. I have taken the view that the proposal before me is a building and works associated with an existing use, rather than a new or extended discretionary use in the Residential 1 zone.

14. Parties also made reference to Clause 19.03 of the SPPF and to Clause 65 (General Decision Guidelines) which, in the absence of more specific policies, were of particular use in providing a policy context for my assessment of the proposal. In addition the Heritage provisions in Clause 43 were also of assistance because the site itself, although having no heritage value, is within the North Melbourne Area (HO3). One of the three objectives of the overlay is to ensure that development does not adversely affect the significance of Heritage Streets.

15. In relation to Clause 19.03, the provisions seek, amongst other matters, to achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties. For pedestrian spaces design of the relationship between buildings and footpaths and other pedestrian spaces, including the arrangement of adjoining activities, entrances, windows and architectural decoration, should enhance the visual and social experience of the observer.

16. Clause 65 contains Decision Guidelines which must be considered before deciding on an application. This wide range of matters includes State and local planning policy frameworks and the effect on the amenity of the area.

17. All parties referred to the planning policy frameworks. Mr Joyner and Mr Ruffles took the view that policy supported Council's refusal and in particular drew my attention to Clauses 19.03, 22.05, 22.14 and the Heritage Overlay (43.01). Mr Ruffles submitted that:

...the proposed restaurant extension fails to meet any of the above State Planning Policy Framework objectives on grounds of design and respect to the local neighbourhood character. Further, it is submitted that the applicant's proposal also fails to meet the objectives of the Local Planning Policy Framework.

He also submitted in relation to the Heritage Overlay that:

Whilst the Rydges Hotel is an existing use in this zone, it is submitted the extension of a restaurant into the street frontage of the site is not in keeping with the character and appearance of the adjacent buildings and the heritage place. Nor does the proposed design of the building fit in with the character of the surrounding heritage precinct.

18. Mr Joyner took a similar position in relation to local policy but also made reference to inconsistency with one of the main zone objectives:

This [extended trading hours] combined with the other issues stated above create a proposal which is contrary to the Local policy and also to one of the main objectives for the zone: that any non-residential use which may be approved must serve the needs of the local community.

19. Mr Twite for the permit applicant also referred to the Planning framework. In relation to Clause 22.14 he submitted that:

...Clause 22.14 does not strictly apply to the consideration of this planning permit application and, accordingly, it is submitted that the Tribunal's assessment of the proposed deck against the provisions of the policy should be tempered by its applicability.

20. I agree with Mr Twite's assessment about the applicability of Clause 22.14 and as noted previously, consider that it has little or no relevance in assessing a buildings and works application for an existing use. However, other policy does apply, and must be considered in assessing the proposed deck. I note that Mr Twite primarily focussed on particular impacts such as the needs of the hotel for an outdoor eating, drinking and smoking area, the aesthetics of the deck, amenity of the neighbourhood and car parking. I discuss these matters later in my decision.

21. In relation to the policy frameworks, I am not convinced that the proposal to provide a dining deck to the front of the existing Rydges Hotel and to within 1.5 metres of two street frontages will protect the amenity or visual experience in Errol/Harker or Chapman Streets. Existing landscaping is to be removed and because of the sloping ground, the deck will protrude out to a height of around 1.5 metres at the point closest to the two streets. Although slated screening will be provided to 1.6 metres on the sides facing Chapman and Errol/Harker Streets, movement and noise will be discernable from the deck. In this regard, I am not so concerned about daytime use of the deck when background noise from the surrounding area, and particularly from traffic along Harker Street, is at a high level. My main concern is later in the evening when background noise is less and when it is more likely than patrons will be noisier. The impact of patrons eating breakfast on the outside deck is quite different from late night dining and drinking, and I consider it unacceptable in terms of impact on nearby residential properties.

22. There are two main off-site impacts - one visual and the other noise. In relation to the visual impact it concerns removal of existing well established landscaping, particularly the screening shrubs/trees at the south east corner of the main building. Because of the slope of the site, this corner of the building where the deck is to be placed is quite prominent. The extension of the deck and removal of landscaping will emphasise this prominence and visually bring the whole built form of the development towards Harker and Chapman Streets. At present Chapman Street residents west of Harker Street have very little view of the more active parts of the motel - extending the dining deck so that it protrudes beyond the corner of the building will change the visual appearance for these residents. I note the heritage control objective requiring that development does not impact on a heritage street. Except for the modern motel/hotel building, Chapman, Errol and Harker Streets have very intact historic streetscapes. It could be argued that a minor extension to an existing non-historic building, not presently contributing positively to the historic streetscape, will have minimal additional impact. Depending on the location of such an extension that may well be true (for instance on the north side facing Flemington Road where new development is already proposed). However along Harker or Chapman Streets with houses in close proximity, a relatively minor extension is more likely to have an adverse impact on the streetscape, and I find that the case with the proposed elevated outdoor dining deck.

23. In relation to concerns about noise from the deck, I can well understand residents concerns, particularly about noise late at night when surrounding traffic and other noise is less and when patrons could reasonably be expected to be more boisterous than early in the morning. The houses in Harker Street, Errol Street, and in Chapman Street close to the intersection, are subject to considerable traffic volumes and noise, particularly during the day. At night traffic volumes ease and background traffic noise is less intrusive. The main entrance to the hotel faces Errol Street but is located to the north of Chapman Street and under a porte-cochere. While there is noise associated with vehicles arriving and leaving and guests entering and leaving vehicles, the noise is generally transient and for short durations. By contrast, the noise levels from patrons on a dining deck (once it is occupied) is likely to be more constant and potentially louder, particularly later in the evening when higher levels of dining and drinking are likely to occur on the outside deck, and when amplified music may also be used. This level of use will be exacerbated because smokers will be required to stand or sit outside if they wish to smoke while eating or drinking.

24. I have less concern about issues of cigarette smoke, litter and light spill. Although smokers will use the deck, I consider that in the context of the overall precinct, including fumes from traffic, such smoke will be virtually undetectable, particularly for residents living on the opposite side of Errol and Chapman Streets. Litter can be a problem near hotels where departing patrons may deposit bottles, cans or other rubbish in surrounding areas, but given the character of the Rydges Hotel and the proposed use of the deck in association with the existing restaurant, I consider that littering of that nature will not be a problem. In relation to cigarette debris, one would expect that suitable containers be provided on the tables or floor of the deck and I consider that cigarette butts and other associated rubbish will not be a problem.

25. In relation to light spill, I am not convinced that will be a problem for residents. Street lighting in the area is quite bright and lighting of the deck would appear relatively subdued by comparison. In any event permit conditions can require lighting to be baffled so that is does not spill onto adjoining properties, including the footpath and road.

26. The need for additional car parking was not raised as an issue by Council and I accept Mr Twite's submission:

that the deck and associated seating will not generate a demand for additional parking.

27. Having heard all submissions and evidence, and having inspected the site on two occasions, I consider that the Application for Review fails on the ground that it does not adequately respect the neighbourhood character of the area and in particular the character of Heritage Streets. I also find that the location of the deck in such a prominent position will create unacceptable noise and amenity impacts to residential properties as a result of the activity of patrons, particularly late in the evening.

28. Accordingly, I will order that the decision of the Responsible Authority be affirmed and that no permit issue.