Deal Corporation (Rose Street) Pty Ltd v Yarra CC [2025] VCAT 329

Deal Corporation (Rose Street) Pty Ltd v Yarra CC [2025] VCAT 329 | Case summary | Zoe

[30]

In May 2022, the applicant applied to the Tribunal pursuant to section 87A of the PE Act to amend the permit issued following the compulsory conference. As explained in the decision of Deal Corporation (Rose Street) Pty Ltd v Yarra CC[3] ('the previous decision'), the applicant sought to add a liquor licence as part of the permissions granted under the original permit, make changes to the hours of operation of certain parts of the hotel and to enable non-hotel guests to use the roof terrace. There were additional amendments sought initially that were withdrawn during that hearing.
The proposal was described in detail in the previous decision commencing at paragraph 19. For completeness, it is useful to provide a summary of the details of that proposal:
1. sale and consumption of liquor every day between 7am and 1am the following day, applicable to the entirety of floors 1-6, including all hotel guest rooms, the roof terrace and most of the ground floor.
2. amend Condition 3 of the permit (Hotel Management Plan) to allow the roof terrace to be open during the hours of 7:00am to 1am but restricted to 60 patrons after 10:00pm seven days a week, and delete the requirement that only hotel guests have access to the roof terrace;
3. allow the ground floor dining room to be open during the hours of 7am to 1am the following morning, and allow for a maximum of 125 patrons in the ground floor dining area;
4. amend permit conditions to require that the roof terrace and ground floor dining room have tables and chairs set out for at least 75% of patrons permitted in each of those areas.
5. Include a 1.4m high shear glass balustrade around the perimeter of the roof terrace to meet acoustic recommendations.
6. allow pre-recorded music to be played on both the roof terrace and in the dining room with a noise limiter in place, with live music permitted in the ground floor dining room until 11pm on all days except Sundays, where it is permitted until 10pm. Music will be played at background levels only after these hours.
7. conditions proposed to be amended included:
  1. Requirement for an amended acoustic report to be prepared and approved, implemented and complied with;
  2. A Noise and Amenity Acton Plan to be prepared and approved, implemented and complied with;
  3. Display of signage at the premises exit regarding noise from exiting patrons;
  4. Noise limitation requirements including the implementation of a noise limiter;
  5. Live music being permitted in the ground floor dining area up until 11pm on all days except on Sundays to 10pm;
  6. Emptying of bottles and cans to be restricted to between 7am and 10pm Monday to Saturday and 9am to 10pm on Sunday.
The Tribunal made the following finding in the previous decision:[4]

[33]

I am not persuaded that the proposal will result in an acceptable outcome, primarily because I am not satisfied that off-site patron noise can be managed to an acceptable degree, or the risk can be mitigated to an acceptable level, including through a hotel management plan, beyond the existing 10:00pm closure time. I find that the combination of extended hours, ability for non-hotel guests to patronise the restaurant and a liquor licence, will give rise to unacceptable amenity impacts to nearby residential properties.
There are numerous residential properties in very close proximity to the review site. Some are directly opposite and have habitable rooms that abut the front boundary of respective properties. Whilst the review site is in an inner urban location, the current context is one of low activity uses, at least in the evenings which is the time period most in dispute.
There was no dispute between the witnesses that once a patron leaves the premises, there is no legal ability for the operator to control patron behaviour and little practical management that can occur. Given the very close proximity of residential properties to the review site, the benefits of distance from a dispersal perspective will not be realised for these closer residences.
The existing permit allows non-hotel guests in the dining area and the proposal does not seek to alter that.
I find that the measures that Ms Jordan said could be put in place to manage guests and likely noise would be rather difficult to enforce and impractical to manage. Further, methods such as keeping of a register, use of chargeback records and bar and wait-staff asking patrons are ultimately insufficient ways in which verification could be undertaken which would lead to a difficult enforcement exercise in my view.
The potential impact of noise arising from patrons leaving the venue after 10:00pm and creating noise disturbances for existing residential properties nearby is too great. I am not persuaded that the measures put forward reduce this risk to a degree that I find acceptable. Given the dining area is open to non-staying hotel guests, this invites these risks to perpetuate with little in the way of management able to be effected by the operator, with the potential impacts to very closely located residential properties.

[38]

Given my findings regarding the hours for liquor licence, I will restrict live music to the same time and ensure that external doors opposite residential properties in Rose Street are not to remain open whilst live or amplified music is being played.
The Tribunal decision was issued on 2 June 2023 with the following conditions, as relevant.
Condition 1 was amended to provide that plans be modified as follows:
1. Solid 1.4m high balustrade with a minimum surface density of 10- 12kg/m2 around the perimeter of the roof terrace;
2. The ground floor plan and roof terrace plan to show a seating layout for 75% total patron capacity;
3. Any additional changes as a result of the amended Acoustic Report; and
4. Any additional changes as a result of the amended Hotel Management Plan.
Condition 3 was amended to include the following additions to the Hotel Management Plan, noting that the roof terrace condition remained unchanged from the original permit requirement:
1. The roof terrace to be accessible only to hotel guests during the hours of 7:00am to 10:00pm each day;
2. The licensed ground floor dining room may only be open during the hours of 7:00am to 10:00pm, each day limited to 125 patrons.
3. The ground floor dining room and roof terrace to include tables and chairs set out for at least 75% of patrons on the premises at any one time;
4. Commitment for food service to be provided at all times the ground floor dining room and roof terrace are open;
5. No live or amplified music to be played after 10:00pm on any night;
6. External doors to Rose Street are not to be propped or remain open whilst live or amplified music is being played.
Conditions 30 to 33 concern amplified music on the rooftop terrace and within the ground floor dining room being limited using a Limiting Device, installed and calibrated by a suitably qualified acoustic consultant to ensure compliance with the relevant noise protocol, and requiring live entertainment within the ground floor dining room to cease by 10:00pm on all days.
Condition 36 was included to provide for emptying of bottles and cans into bins to only occur at specified times.

[45]

The council retains its initial grounds of refusal as follows:
1. The amended proposal will result in unreasonable off-site amenity impacts on the surrounding area.
2. The amended proposal is contrary to the Tribunal's previous decision in Deal Corporation (Rose Street) Pty Ltd v Yarra CC [2023] VCAT 619.
3. The proposed relocation of bicycle parking to the basement is not appropriate for visitor parking.
A number of the same parties to the current proceeding were also party to the original proceeding where the permit was granted by consent, as well as the proceeding of the previous decision. The respondents all oppose the grant of the amendments relating to extended hours and extended patrons.
The key issue for determination by the Tribunal in this decision, including subsets of those issues, are:
1. Can the proposal be considered by the Tribunal pursuant to section 87A of the PE Act?
  1. Are the proposed amendments contrary to the findings of the Tribunal in the previous decision?
  2. Is the proposal an abuse of process?
2. Is the relocation of the visitor bicycle parking spaces to the basement an acceptable outcome?
3. Does use of the roof top terrace as a restaurant require a planning permit?
4. Will the proposed amendments result in unreasonable amenity impacts?
  1. Concerns about current operating conditions and enforcement.
  2. Restaurant use within ground floor dining area and extended hours of operation.
  3. Use of rooftop terrace as a restaurant.
5. Is delineation of the ground floor restaurant necessary?
6. Is the reduction of car parking in association with restaurant acceptable?
7. Are the building additions acceptable?
It is relevant to note that, as in the previous decision, the key issue in this hearing was the impact of noise from patrons leaving the premises once the restaurants close. The physical context of the review site has not changed in any substantial way since the previous decision, and as was the case then, there are numerous residential properties nearby that have habitable room windows facing onto public streets.
Since the previous decision, planning scheme amendment C269yarra has been gazetted.
Having considered all of the submissions of the parties and the relevant policies and provisions of the Yarra Planning Scheme ('planning scheme'), we have determined as follows:[7]
1. The proposal can be considered by the Tribunal;
2. The relocation of the visitor bicycle parking spaces to the basement is not an acceptable outcome. Consequently, the courtyard must remain available for bicycle parking and cannot be used for the purpose of a restaurant;
3. Use of the rooftop terrace as a restaurant does require planning permission; and
4. Some of the proposed amendments will result in unreasonable amenity impacts. Some of the amendments were not contested by the other parties. As a result, we have amended the permit but have not included all the amendments proposed by the applicant.

[52]

The parties agree that the Tribunal has a broad discretion under section 87A to amend the planning permit, whether the amendments are trivial or transformative. We refer to the following submissions of the applicant:
1. Our view is that permissible amendments to planning permits under section 87A may be trivial or they may be transformative. The Tribunal has the discretion to refuse to make an amendment if it considers it inappropriate on the merits. The scope of the proposed amendments may be a relevant factor to be considered by the Tribunal in determining whether it is appropriate to exercise its power to amend the Permit. However, it should not be considered as a limit on the Tribunal's power.
No application was made to strike out or summarily dismiss the application as an abuse of process. No party submitted that the Tribunal should not consider the submissions and make a decision on the merits.
The Tribunal is required to consider the application before it.
The questions of whether the proposed amendments are contrary to the findings of the previous decision and whether sufficient change has occurred since that decision to merit a different decision, are matters for the Tribunal to consider and determine on their merits, as opposed to being threshold matters that go to the jurisdiction of the Tribunal.
In terms of the merits, the Tribunal does consider it a relevant question to ask whether, having regard to the planning history of this site, it is appropriate to amend the permit as requested.
Both the council and the respondents referred to the King David School[8] decision, referenced in the previous decision also.
The following excerpts from that decision consider the public policy imperative of ensuring there is finality to litigation and the effect on the planning system of a party making repeated applications on similar matter and undermining confidence in the system itself:
1. We do however have some concern with the s 87A process being used to seek more substantive changes to a permit, shortly after it has been granted, where the nature of the proposed changes seems directed to seeking a more favourable outcome than that clearly contemplated in the Tribunal decision that led to the grant of the permit.

[57]

Further, abuse of process in the Tribunal "is a flexible concept designed to ensure that the processes of the tribunal are used in good faith." An abuse of process may "encompass repeat applications that lack merit and do not demonstrate any material change in circumstance." In an analogous fashion to the policy considerations underpinning the King David School case, it is submitted that if the Tribunal finds a repeat application under s 87A of the Act lacks merit or is not supported by a relevant material change in circumstances, or would bring the administration of justice into disrepute by right-thinking people (including because the time and energy required to respond to such an application is significant), the Tribunal is entitled to find that the proceeding is an abuse of process and refuse the application as being not appropriate for the purposes of s 87A of the Act.
The Applicant's approach in relation to the repeat amendments has undermined the finality and certainty of 2022-2023 hearing on precisely the same amenity impact issue. The conditions ordered by Member Templar ought to remain in place and it would be inappropriate to amend them given the above inferences as to the Applicant's conduct, the investment of public resources in resolving the 2022 application dispute, and the consequences for public confidence in the planning system if the Applicant's apparent strategy is vindicated.
As discussed during the hearing, the Crosthwaite submissions concerning abuse of process were directed at providing the Tribunal with a further reason for refusing the application, as opposed to requesting that the Tribunal refuse to consider the application.
Several respondents made submissions concerning their frustration with the repeated proposals for what appeared to be the same use and development and the decrease of public confidence in the Tribunal and the integrity of the planning process generally. While we do not restate them verbatim, we have had regard to all the submissions made on behalf of all parties.

[58]

The applicant submitted that the gazettal of amendment C269 is a significant change in the planning scheme since the previous decision and one which warrants a review of the use and hours of operation.
The applicant also submitted that there are two key issues that the other parties submit have been determined and therefore should not be the subject of further consideration. They are the proposed hours of operation of the ground floor dining area and the use of the roof terrace by non-hotel guests. The applicant described why it considers those matters ought to be determined in this application, as follows:
1. The first is the proposed hours of operation. Relevantly, the Amendment application only seeks to extend the hours of operation for the ground floor dining area from 10pm to 11pm. Whilst it is acknowledged that hours of operation of the ground floor dining and roof terrace to 11pm formed part of the previous amendment application, it is submitted that the earlier Tribunal considered such proposal in the context of the residential hotel use only and that the refusal was due to concerns with respect to management of patrons post 10pm, the level of uncertainty in the application and concerns with the open nature of the ground floor space. The current Amendment application, by virtue of the change in use, the significant change in circumstance (being the opening of the hotel, operation of same and real-life learnings with respect to the guests and patrons of the hotel and interface with existing uses in the area) and the commentary contained in the previous Tribunal decision, has sought to address and rectify the concerns in the context of the amendment application in a manner which will support the extended hours of operation for the ground floor dining area now proposed to be able to operate as a restaurant and not just as ancillary to the residential hotel.
2. The second key issue is the access of non-hotel guests to the roof terrace. Whilst it is also acknowledged that the previous amendment application sought to allow non-hotel guests to access the roof terrace, it is noted that this was not in the context of that premises being used for the purpose of a restaurant. Moreover, there are physical changes proposed to the venue (in light of the Tribunal's commentary with respect to management concerns), with the introduction of a designated, sign-posted and statement entrance to Fitzroy Street to accommodate those external patrons and direct and manage them in a coordinated and considered manner.
The applicant submitted that the change in the planning scheme and the proposed change in the physical and management context of the hotel was sufficient to allow a consideration of the current proposal by the Tribunal.

[65]

We are concerned by the timing of this application so soon after the previous decision and by the fact that the majority of the amendments include matters that were considered in the previous decision and refused, such as those relating to the hours of operation and patrons on the roof terrace. There is a sense that public confidence in decision making and, therefore, the integrity of the Tribunal is being undermined. We are also aware of the difficulties for all parties, particularly those that are not represented, in the time, cost and mental and physical exhaustion that comes from engaging with this matter over such a long period of time.
We note that in amongst the amendment proposal are additional changes such as relocation of the bicycle parking, extension of the restaurant area into the courtyard, changes to the use of the land and physical and operational changes identified since the use has been operational as well as changes intended to address some of the concerns that have been raised.
The King David School application was filed three weeks after the permit had first issued. In paragraph 17 of the decision, included earlier, the Tribunal noted that the flexibility of section 87A should not be used to undermine the intent of the original decision without some sound justification. It urges tribunals to exercise a degree of caution in making substantive changes to key permit conditions on which an original decision was predicated 'at least in the immediate period following the original Tribunal decision and in the absence of a change of circumstance or some other good reason that makes it "appropriate" to do so'.
This application was filed in August 2024, and the Tribunal order in the previous decision is dated 2 June 2023. Whilst there has not been a long period between the previous decision and the current application, during that time the use has become operational and amendment C269 has been gazetted. It is arguable that the period between the previous decision and this application does not comprise the 'immediate period following the original decision' and that there is sufficient change in circumstances to allow a consideration of this application without undermining public confidence.
As such, the Tribunal will consider this application on the merits and we do so in the next section of this decision. However, the findings of the Tribunal in the previous decision remain relevant and where substantive changes are sought without sufficient justification, they have not been permitted.

[75]

We note Mr Glossop declined to make any comment on the extent or design of the bicycle parking changes. He also said he could not comment on whether it would be more convenient if bicycle parking remained in the courtyard, as opposed to having all bicycle parking on site being located within the basement. The Tribunal was surprised at this response and would have been assisted by his planning expertise in these circumstances.
None of the bicycle parking spaces proposed within the basement meet the minimum required length or width as set out in clause 52.34-6. This clause requires spaces to be 1.7 metres x 0.7 metres. The spaces proposed are all 1.2 metres x 0.5 metres. Further, because all of the spaces are located within the basement, none of them enable a bicycle to be ridden within 30 metres of the space, and none have convenient access from main building entrances which are both requirements at clause 52.34-6.
In order to access the basement for the purpose of bicycle parking, one must access parts of the site that are not generally open to patrons, or which would require security access via the basement lift. Accessing the basement via a lift would also require the wheeling of a bicycle through the lobby area and into a lift which requires a swipe card to access the basement.
We accept that a proportion of staff would cycle to the review site, and storing of bicycles in the basement by staff who do so is an acceptable outcome. This is because they would likely have access to parts of the building not accessible to patrons. For example, the staff locker rooms, change rooms and staff lounge are all at basement level, so there is a high probability that staff would, or could, access this area before and after a shift. Locating some of the bicycle parking for staff purposes in the basement therefore seems logical.
However, there would also be a proportion of patrons, whether staying hotel guests, or patrons of the restaurant, who are also likely to cycle to the venue.
The review site is in an inner-city location, where cycling is much more prominent than more outer suburban locations. Evidence of this is obvious upon a site inspection, with bicycles utilising on-street bicycle parking facilities, and many people riding bicycles in the surrounding area.
We find that locating all of the bicycle parking within the basement is likely to be an impractical and inconvenient outcome with respect to patron or staying guest bicycle usage.
It appears to us that restaurant patrons would need to gain permission to access the basement from a staff member with permitted access, find the storage location, go back to the lift and then exit at the ground floor restaurant. This is likely to require some form of supervision given the secure access only arrangements to the basement. This process, or one that is similar, even perhaps without staff supervision, is a highly inconvenient manner in which to access the only on-site bicycle parking proposed.
It is also unclear how non-staying patrons would access the basement, given this appears to be a secure area for staff and staying hotel guests only.
Whilst one of the locations proposed is within the Administration/Office area and this is less likely to present access issues, the other two locations are either at the end of a vehicle circulation aisle, or within the storeroom, where access is required from three separate points past the bicycle parking spaces.
In our view, the reduced dimensions of the spaces proposed are unacceptable, given two of the locations proposed have the potential to cause impediments for either vehicles or pedestrian circulation. Bicycles used by adults are generally in the order of 1.7 metres long, which is consistent with the design requirements of clause 52.34-6, and so we find that the dimensions proposed here are inadequate.
Given the reduced dimensions, the inconvenient locations, the locations in what appears to be leftover space or where bicycles are likely to cause access impediments, all point to the relocation of the bicycle spaces being an afterthought, rather than an integral part of the design process.
We therefore find that the proposed relocation of all bicycle parking on site to the basement would be inconsistent with both purposes of clause 52.34, as well as the encouragement of cycling found in policy[11], and therefore is an unacceptable outcome.
We have made this finding on the basis that whilst the requirements for provision of bicycle parking relate to both visitor and staff separately, the combination of the substandard dimensions and inconvenient location (for visitors) mean that the proposal to relocate bicycle parking needs a complete rethink. Whilst the principle of having staff bicycle parking in the basement is not necessarily an issue, the dimensions of all bicycle parking are less than the requirements at clause 52.34-6, and some of the staff allocated parking would result in the issues we have already discussed.
Notwithstanding, there would still be a significant requirement for visitor bicycle parking and the only logical location for this is in the courtyard, given we have found the basement is an unacceptable location.

[86]

It follows, Council considers the uses would be necessarily interdependent and functionally connected, and are therefore not separate 'restaurant' uses.
During the hearing we queried the applicant's assessment of the storage area as being excluded from the total area on the basis that it was not for the exclusive use of the rooftop terrace. We were advised that the area is 6.1 square metres. If this space was included in the rooftop restaurant area, the rooftop restaurant would exceed 150 square metres and planning permission would be required.
It was explained that the storage area is used for general storage for the entirety of the hotel.
The definition of leasable floor area is the part of the net floor area able to be leased, not including public or common tenancy areas. We agree that the corridors and amenities area are considered public areas and would not count towards the area for the purpose of this definition. Whether or not, in practice, the entirety of the building will continue to be operated by a single operator, the definition requires a reasonable consideration of what area would or could be included in a lease of the rooftop terrace to a single tenant.
Given the explanation provided by the applicant as to the distinct restaurant offerings, it is possible that the areas will be separately sub-leased in future. As is clear on the plans and evident in person, the storage area on the rooftop can only be accessed through the roof terrace area. Additionally, there is no other area within the rooftop that can accommodate storage of furniture or other items associated with the restaurant. Given its outdoor nature, it is highly probable that any restaurant operation on the rooftop will require storage space.
Having regard to the physical area available it is highly likely that the storage room will be leased and used by the operator of the rooftop space and highly unlikely that staff of the hotel or ground floor restaurant would utilise that space for storage associated with those uses. On our site inspection we were directed to several additional storage areas within the building, indicating there is no lack of storage and unlikely to be a need for the uses within the remainder of the building to use the storeroom accessed from the rooftop.
On that basis, we find that the storeroom should be included in the assessment of the net floor able to be leased for the restaurant. It follows then, that the leasable floor area for the rooftop terrace is 151.1 square metres and planning permission is required. This will be the case regardless of whether the floor area is assessed to include or exclude the ground floor restaurant.

[88]

If we had not determined that the rooftop restaurant area was over 150 square metres and requires a permit, we would have agreed with the applicant submissions that the restaurants should be considered as two separate entities and that the ground floor would require planning permission, and the rooftop would not.
The council submissions, which we have reproduced above, conclude that the ground and rooftop restaurants would be interdependent and functionally connected and should therefore be considered as one restaurant use rather than two separate uses.
The effect of this is that, even if the rooftop restaurant was less than 150 square metres in area, it would require planning permission because the total restaurant area within the building is more than 150 square metres.
The applicant submissions, also reproduced above, consider the restaurants to be separate and distinct entities which should be considered separately.
In considering this situation, the Tribunal posed the question during the hearing of the status of a building which proposed to have, for example, four different restaurants at ground floor level. If each of these restaurants was less than 150 square metres in area, but the total floor area of them combined were greater than 150 square metres, would it be the case that planning permission would not be required for the restaurant use at all? Of course, the converse would apply if any of the restaurants had a greater leasable floor area than 150 square metres or if there was only one restaurant with a larger area.
In keeping the restaurants to less than 150 square metres, the operator would avoid a planning permit and any conditions on number of patrons or hours of operation etc. This could cause unintended consequences.
However, it is the case that in the Mixed Use Zone ('MUZ'), a permit is not required for a food and drink premises of less than 150 square metres in area, so an operator is entitled to open such a premises without a planning permit. If this scenario, and others as we have identified, leads to situations that are unacceptable in a planning sense, it is the planning scheme provisions that require changing.
In the initial planning permission granted for a residential hotel, the two restaurants were considered ancillary to the primary use and did not need separate primary permission, with permit conditions covering the totality of use of the residential hotel.
The applicant is now proposing that each area be considered a restaurant, rather than being ancillary to the residential hotel. For the ground floor, that will require planning permission and lead to specific planning permit conditions governing use of that area for a restaurant. For the rooftop, the applicant submits no planning permission is required for a restaurant.
With respect to the specific submissions concerning interdependence of the two restaurants, we find that the restaurants are being set up in such a way as to allow them to operate independently and not interdependently. While the council submissions included the assumption that both restaurants will be managed and operated by the hotel operator and that in poor weather, guests of the rooftop terrace are moved to the ground floor dining area, these matters are not controlled by condition, nor are they proposed to be.
Given the maximum patron numbers applicable to each restaurant, it cannot be assumed that patrons will move from one restaurant to the other in poor weather. This also does not make sense in terms of two distinct restaurants with different cuisine, ambiance and patronage.
We consider the two restaurants, when compared to each other, to be separate entities. Therefore, if the rooftop restaurant had an area of less than 150 square metres it would technically not require a permit.
However, if they were marketed and operated as one restaurant and patrons could dine at either the ground floor or rooftop space of the same restaurant, the analysis in Lewin v Yarra CC would apply and planning permission would be required for a restaurant on the site that is greater than 150 square metres.

[91]

The respondents raised several concerns about the current operation of the hotel and restaurant including allegations of breaches of permit conditions. They submitted that the operator is incapable or unwilling to comply with the current permit and therefore would be incapable or unwilling to comply with any additional restrictions included as conditions on any amended permit.
Evidence was presented by some of the respondents themselves. This evidence largely went to alleged breaches, as well as impacts they believed were caused by patrons of the review site creating what they said were noise disturbances in the street. Some of this evidence also included videos of these alleged incidents.
During the hearing there were several discussions concerning possible non-compliance, including the Tribunal raising the question as to compliance with operating hours of the ground floor restaurant, at which bookings were able to be made after the time by which the restaurant was required to have ceased operating. However, compliance with conditions is required and there are actions that can be taken to ensure this is the case.
Mr Glossop's evidence also indicates that alleged breaches occurred whilst he was present at or near the site.
This is an application for review and not an application for enforcement order. We were not advised of any enforcement action that has been brought with respect to this site, noting that such an application can be made by the council or any person.
We must make a decision on the merits of the application now before the Tribunal, based on an expectation that if an amended permit is issued, the permit holder will comply with the conditions.
By way of example, applications often come before the Tribunal concerning structures that have been built without planning permission where a retrospective planning permit application is made. Often, they are also accompanied by enforcement proceedings. An accepted principle applied in the merits reviews of those cases is that the permit applicant should neither be punished nor rewarded for undertaking work before a permit was obtained. This is based on the following excerpt from the decision of Van Egmond v Knox CC & Bassett & Ors:[14]

[112]

It is also proposed that the hours of operation be extended until 11:00pm. The previous decision limited the hours of operation to 10.00pm, consistent with the original permit issued, despite the applicant requesting operating hours until 1:00am within both the rooftop and ground floor dining areas.
It is this element of the application that we consider is more akin to the King David School scenario of applicants that make repeated applications on the same, or similar, subject matter, seeking a different outcome.
The council said that the intensification of the use of the land for a licensed restaurant will result in unreasonable amenity impacts and that in this case, the amenity impacts cannot be appropriately managed. This submission was made on the basis of cumulative impact, from the roof terrace and ground floor and courtyard being used as a licensed restaurant, in proximity to a predominance of residential uses nearby.
Council submitted that the amenity impacts on surrounding properties from the movements of up to 185 patrons to and from the site generated by restaurants that are open to the public, rather than restaurants that are ancillary to the hotel use, will give rise to unreasonable amenity impacts.
The council was also concerned about the ability for hotel management to control or manage patrons once they left the venue. This is consistent with the concerns raised previously and the findings of the Tribunal in the previous decision. The concerns of the respondents essentially echoed those of the council.
It is important to note that the existing use of the land in respect of dining is that of an 'ancillary' dining area at ground floor, and internal to the building only. This space is not limited under the existing permit to staying hotel guests only, and can be used by the public, but in an ancillary way. There is also no dining currently occurring in the courtyard. The dining that is currently permitted to occur at the roof terrace is for staying hotel guests only and not open to the public.
We have already made findings that result in the courtyard not being granted permission to be used as part of the restaurant.

[113]

The previous decision found that the potential impact to nearby residential properties once patrons had left the premises was uncertain and beyond the ability of the permit, and consequently the operator, to manage. On that basis the Tribunal, in the previous decision, did not allow the restaurant uses (ancillary to the hotel) to operate after 10.00pm.
Mr Tardio addressed the matter of patron noise once patrons exited the premises. His evidence was that requiring patrons to exit on to Fitzroy Street only would mitigate direct impacts along Rose Street, although he acknowledged that people could still walk back from Fitzroy to Rose Street. He undertook observations on two separate occasions, noting that most people exited the site and walked towards Brunswick Street, and opined that this was the most likely path of travel from the site because Brunswick Street is a high activity area, whereas Nicholson Street, in the opposite direction, is not.
Aside from the comments concerning exiting on to Fitzroy Street and the likely direction of travel of patrons once they have exited, the acoustic evidence before us in this proceeding is materially unchanged from the previous decision in respect of amenity impacts arising from patrons once they leave the premises. That is, there may be impacts and these could potentially affect nearby residents and there is nothing from an acoustic engineering perspective that could practically address the potential for these impacts.
Aside from the change to the management of patrons exiting the site, the applicant did not present us with anything to persuade us that this potential had changed. Rather, the applicant relied on what it said were the significant changes to the planning scheme since the previous decision, as well as the evidence of Mr Glossop in respect of existing nighttime activity as to why this location is one in which the planning scheme expects greater activity, and which Mr Glossop said already occurs at nighttime. The applicant submitted that the amenity impacts to existing residents should be considered in that context, and as such, the planning scheme supported the proposed amendments.
The review site is located between Brunswick Street and Nicholson Street, although is more proximate to Brunswick Street. It is not adjacent to the commercially zoned land along Brunswick Street, but it is also not a more remote, hinterland residential area in the middle ring suburbs, far removed from commercial activity, for example. It is a well-located site, in an inner-city location, where there is much activity.
The evidence of Mr Glossop, and the observations and submissions made, paint a picture of some occasions in evenings where there is quite a bit of nighttime activity nearby, and others when there is little or next to no activity. Whilst there are some licensed venues nearby also between Brunswick and Nicholson Streets, they do not operate on the same basis as those along the Brunswick Street spine, for example. They generally close at 10:00pm, with few exceptions.
There are also numerous properties nearby which are used for residential purposes, and which have habitable room windows directly facing onto Rose and Fitzroy Streets. Residential use remains the dominant use in this part of the MUZ and the MAC.
We find that the policy in the planning scheme reflects the mixed nature of uses that could occur in such a location and contemplates that restrictions after certain hours ought to be applied. It seems to us that policy has been purposely drafted in such a way that discretion should be applied depending on the circumstances of each case and site, consistent with the way the planning scheme has historically been applied.
With respect to the change in use of the ground floor dining space to restaurant, we find that the changes to the planning scheme since the previous decision have resulted in increased support for restaurant as a stand alone use. The MUZ zoning of the land, its location within the MAC, its physical location proximate to Brunswick Street, and the policy setting to enable the nighttime economy to continue is sound justification. All of these factors lend support for such a use on the land.
Mr Tardio's evidence in respect of patron noise from inside the restaurant was that reverberant sound pressure level would be 80dBA at the windows and that this would translate to 30dBA Leq and nearby sensitive receptors, which is well below the background noise levels along Rose Street and therefore not problematic from a residential amenity perspective. This element of Mr Tardio's evidence also lends support for the restaurant use.
The use of the land for a restaurant allows for non-staying guests to access the site for that purpose and we are acutely aware of this when making these findings. The current use fits within the restaurant definition in the planning scheme and the proposal before us is that the restaurant will continue to operate to hotel and non-hotel guests as a food and drink premises with tables and chairs provided for at least 75 per cent of patrons at all times.
However, this policy support is not infinite, or the sole policy consideration. There is also policy that seeks to ensure the amenity of the area, including that of existing residents, be considered when non-residential uses are proposed, and that adverse amenity impacts upon residential neighbourhoods be limited.
The planning scheme also seeks that more residential development occurs in this area. A specific purpose of the MUZ is to provide for housing at higher densities. In his evidence, Mr Glossop had regard to the changes in this area over time, and opined that medium density residential development is the primary purpose of the MUZ at present:[15]

[120]

The concerns of the council and respondents, as set out earlier, include the potential of adverse amenity impacts occurring in the residential neighbourhood when 185 people leave the premises en masse. If the rooftop is not permitted to cater to non-hotel guests, this issue does not arise.
However, with regard to the change in use for the rooftop, we find, consistent with our findings concerning the ground floor dining, that the changes to the planning scheme since the previous decision have resulted in increased support for the proposed restaurant use, both at rooftop and ground floor level. The MUZ zoning of the land, its location within the MAC, its physical location proximate to Brunswick Street, and the policy setting to enable the nighttime economy to continue provide sound justification for the use to transition from ancillary to the hotel to a restaurant in its own right, accommodating patrons from outside the hotel.
While it may be that there are regular functions within the restaurants which lead to many people leaving at one time, in balancing the relevant policies and provisions pertaining to the land, we find that the cessation of use as a restaurant at 10:00pm will provide acceptable protection to the amenity of residents in the 'nighttime period' even if there may be additional noise or adverse impacts around the 10:00pm closure time, within the MAC. We consider this to be consistent with the activity centres strategy in clause 11.03-1L to 'support use and development which contribute to the night-time economies of activity centres, while limiting adverse amenity impacts within the centres and surrounding residential neighbourhoods'.
There were also submissions made concerning the need for non-hotel guests to leave the venue in the event of an extreme weather event given the open nature of the roof terrace. We agree that it is unlikely that patrons will move from the rooftop to the ground floor premises in that case.
However, we note the following:
1. It is likely that in an extreme heat or rain event where there is prior knowledge, use of the rooftop will be closed;
2. The works proposed in this application include a retractable awning within the rooftop space;
3. When such an event occurs without warning, patrons will likely leave the premises. However, these events can occur at any time of the day and are unlikely to cause amenity impacts during the daytime hours; and
4. As we have found above, we consider the closing time of 10:00pm to provide an appropriate balance of the policies seeking night time economies and the consideration of amenity of residents.
For the reasons provided, we find that the permit should be amended to allow a restaurant on the rooftop terrace, that is open to the public with a maximum patronage of 60 and a closing time of 10:00pm.

[124]

A permit is required under clause 52.06-3 to reduce (including reduce to zero) the number of car parking spaces required under clause 52.06-5 or in a schedule to the Parking Overlay. Column B to clause 52.06-5 applies because the site is located within the Public Transport Network Area (PPTN).
Column B to clause 52.06-5 specifies a rate of 3.5 spaces to each 100 square metres of leasable floor area for a Restaurant. The Restaurant as originally proposed under the current section 87A application, has a total leasable floor area of 581 square metres, including the rooftop and ground floor restaurant areas and the courtyard. No car spaces are to be provided.
As a consequence of our decision to not allow the courtyard restaurant element, this leaseable floor area has reduced to 310 square metres. This would equate to 10 car parking spaces being required.
The council did not raise any concerns with the proposed reduction of 20 spaces and its internal traffic department supported the proposal subject to conditions.
The council officer's report for this section 87A application stated the following:
1. Within the MPS and PPF there is an overarching emphasis on managing demand for car parking by facilitating sustainable transport options. The PPF identifies a transport hierarchy at Clause 18.01-3S to '[d]esign development to promote walking, cycling and the use of public transport, in that order, and minimise car dependency.' Clause 18.02- 4L-01 has the objective '[t]o ensure car parking is supplied and managed consistent with promoting travel by sustainable modes'.
The council officer's report also supported the proposed reduction:
1. Given the restricted parking conditions that exist around the site and within the activity centre, it is considered that patrons will not choose to drive to the site. Those that do, will have to utilise the time restricted on-street parking or the paid car park at 75 Rose St. It is considered that the waiver of car parking in this context is supported by the policy framework and there will be no adverse off-site impacts on the availably of on-street car parking surrounding the site.
We agree with the officer's assessment above. The review site is a well located site, in a densely populated area and with a number of public transport options, as well as on-street and on-site bicycle parking.
For these reasons, we find that the parking reduction would be acceptable.

[126]

There was a lengthy discussion towards the end of the hearing regarding what conditions should be included after all parties filed written submissions.
Following our decision on the substantive matters, we have given careful consideration of the drafting of conditions. We do not intend to explain every aspect of what we have decided with respect to the inclusion or deletion of conditions. However, we set out below our findings with respect to some of the key conditions.
Given our decision to allow the use of two restaurants open to the public we have removed any references to use of those spaces by staying and non-staying hotel guests.
There was a proposal to treat the ground floor façade, primarily the windows, to achieve sound reduction. We have not included a condition to address this, as we have not allowed use of this area beyond 10:00pm and have not allowed the use of the courtyard at all. We have included conditions regarding closure of windows and doors, and which entry and exit points are permitted to be used at certain times.
We have not included any conditions concerning the sale and consumption of liquor, because the extension of the liquor license was only in respect of the courtyard area and we have not allowed the use of this space for a restaurant.
Similarly, the smoking conditions related to the use of the courtyard area for a restaurant and for the same reasons, we have not included those conditions.
The respondents requested that the acoustic report be prepared based on actual measurements of the restaurants when they are at capacity.
The applicant did no oppose this in theory, but queried the practicality of doing so, both in terms of ensuring it is at capacity, and the report being required to be submitted within the three-month timeframe.
We have included the following condition:
1. The amended acoustic report required by condition 16 must be based on actual measurements when the venue is intended to be at 85% patron capacity. The council may consent in writing to the acoustic report in condition 16 being submitted later than the timeframe specified.
Based on the way in which the residential hotel has been operating, it appears that there are regular events held. As such, we consider that it is likely that events will be arranged in advance to cater to the maximum permitted capacity. We understand that it is unlikely that the maximum will be reached and have drafted the condition accordingly.
We have also allowed for the timeframe to be extended if there is no appropriate event within the three-month period specified.
The respondents understand that any reports submitted in accordance with conditions are to be prepared to the satisfaction of the Responsible Authority and it is at the discretion of the Responsible Authority as to whether it is satisfied. However, the respondents requested a copy of the reports so that they could review and possibly provide comment. The council and the applicant submitted that it was appropriate for the respondents to be provided with copies of relevant documents once they were endorsed. Given that it is only the council's endorsement that is required, we agree that this is the appropriate course of action and have included this requirement with respect to both the acoustic report and waste management and delivery plan.

At a glance

Court

Decision date

Source

Judgment (201 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (1)

Deal Corporation (Rose Street) Pty Ltd v Yarra CC [2025] VCAT 329 (15 April 2025)