Ms Susan Brennan, barrister, appeared on the instructions of her client for the responsible authority. She presented written and oral submissions.

Mr Lewis Sayer, town planner of WSC Pty Ltd appeared for a number of objectors namely Pamela Knott, Ronald Rea-Iki, R Horning, Robyn Prent, Michael Gurry, WA Studd, BR Studd, Peter Millington, Pamela Dethridge, Marilyn Fenwick, Rod Fenwick and Ross Macaw.

He presented written and oral submissions and called Dr Marilyn Fenwick, who gave her occupation as human resources manager, academic and consultant, to give oral evidence.

Mr William Cook, objector, appeared in person for himself and also for Gerry Clarkson and Margaret Clarkson. He presented written and oral submissions.

Various plans, photographs and other documents were tendered in evidence. The submissions and evidence in documentary form have been retained on the file of the tribunal.

Request under s 87A of the Planning and Environment Act 1987 for amendment of a permit.

Amendment to a condition in a planning permit TP 02/716, namely condition 7, preventing the consumption of alcohol outside the building on the land with a consequential amendment to condition 4 relating to crimes for the supply of alcohol.

Residential 1 Zone and subject to a Heritage Overlay (Item 6, South Yarra Precinct) and a Design and Development Overlay, Schedule 15, under the Melbourne Planning Scheme

Lot 2 on Plan of Subdivision 411107Q being the land in Certificate of Title Volume 10707 Folio 811

Irregularly shaped land on the northwest corner of the intersection of Toorak Road with Millswyn Street having a frontage of 20.12 metres to the north side of Toorak Road, a frontage of 63.98 metres to the west side of Millswyn Street and an area of 1252m2.

Fenwick v Melbourne CC [2003] VCAT 1440

Diamond Waters Nominees Pty Ltd v Melbourne CC [2008] VCAT 35

1. Superficially, this case concerns a relatively simple and confined dispute about whether the restriction imposed by condition 7 of planning permit TP 02/716 issued 30 October 2003 should be relaxed. That permit was granted by this tribunal (constituted by a member other than myself) in its determination dated 13 October 2003 of the case of Fenwick v Melbourne CC[1].
2. The conditions reads:
   1. Alcohol shall only be consumed inside the subject building, and not on the open balconies or any part of the car park of the premises.
3. Condition 4 of the current permit reads:
   1. Alcohol shall only be supplied within the following hours to the satisfaction of the Responsible Authority:

Monday - Saturday (excluding Anzac Day and Good Friday) 7am to 1am

1. This is not a review proceeding, but rather proceeding in the original jurisdiction of the tribunal.
2. Unfortunately, the applicant company, Diamond Waters Pty Ltd ('the company') has not formulated the alterations to the wording of these conditions that it seeks. A request should formulate the actual wording being sought. However, it wishes to have amendments that would allow the consumption of alcohol in an outdoor area that was referred to in the course of the hearing as "the terrace". This terrace area is at ground level situated between a ground floor dining room and the street frontage to Millswyn Street. The company wishes to be able to serve alcohol in that area up until 10pm.
3. The responsible authority opposes the amendment, essentially on amenity grounds. So do the objectors who appeared or who were represented at the hearing.

1. In the course of the presentation of this case on behalf of his objector clients, Mr Lewis Sayer, town planner, referred to several complex, but possibly important legal questions and uncertainties. As far as I know, neither he nor anyone else had given any notice of the intention to raise these matters. When I put it to him that no notice had been given, he did not deny it. I have checked the statements of grounds filed on behalf of his clients and other objectors. They relate to amenity matters, and do not relate to the questions raised. Mr Cook, an objector who appeared for himself and two other objectors, also raised these problems, to some extent.
2. In my opinion, failure to give notice, and then raising such matters without giving notice, was unfair to the requestor company and to the responsible authority and creates difficulties as to how this matter should proceed. These so called "underlying questions" involve matters in relation to existing use rights and other matters. Ascertaining the correct legal position in relation to existing use rights sometimes involves obtaining evidence as to the history of the use of the land, and also as to the history of the various planning scheme and interim development order provisions that have applied from time to time. The failure to give notice takes other parties by surprise and denies them the opportunity to investigate the situation, consider the allegations, locate relevant evidence and to deal with the matters in an appropriate way. An experienced planning advocate should know that the giving of notice would be needed for these reasons.
3. This situation posed difficulties for me as to how to proceed. An apparently simple question as to whether a condition like number 7 should be varied becomes complicated if there are legal challenges to the validity of condition 7, the permit of which it forms part, the decision to grant that permit and as to the basis or lack of basis or extent of existing use rights relevant to it.
4. Apart from the question of notice, no proceedings have been commenced by anyone such as enforcement proceedings or applications for declarations, that would raise and test the questions concerned.
5. In the course of the hearing, I raised the question as to whether there should be an adjournment and notice to enable these matters to be properly dealt with. None of the parties wished me to proceed in that way. I said that I would proceed with the hearing and consider whether the amendments sought could and should be granted, whilst noting that these underlying legal issues had been raised.
6. I think it desirable that, having considered some of them, I should make some comment, as far as I am able, in relation to them whilst also noting that I am not in a position to determine them. Apart from other matters, I am not confident that I have the evidence necessary, either as to past use of the land, or as to past planning controls, including land use definitions applicable from time to time. When I return to these matters further down in this document I will be able to refer to the current planning scheme including current land use definitions and the current terms of cl 52.27 relating to licensed premises but I am conscious that some of these provisions have been amended from time to time and that the earlier versions are likely to be relevant.

1. The land is located on the northwest corner of the intersection of Toorak Road with Millswyn Street. On the south side of Toorak Road the Fawkner Park are located. The north side of the road is in a Residential 1 Zone and the locality is distinctly residential in character and use.
2. There is a substantial two storey Victorian house on the review site corner. This is a substantial, attractive and interesting feature. The land is subject to a Heritage Overlay, although that is not relevant for the purposes of this present case. It is also subject to a Design and Development Overlay. That is in relation to views to or from the Royal Botanical Gardens, located further to the north. Again, the overlay is not relevant to present concerns.
3. According to reasons given in previous tribunal decisions, use of the Victorian house as a motel commenced in about 1953. The review site has an irregular shape, which suggests that it may have been added to, from time to time, over the years. There is a substantial three, and now partly four storey building erected behind the Victorian two storey house, and extending along the substantial Millswyn Street frontage to the western side of that thoroughfare. This structure apparently dates back to around about 1960 and was constructed to extend and enlarge the motel. This building contains a dining room with kitchen facilities located towards its northern end, and looking out through glass windows and glass doors over what is now the terrace area onto Millswyn Street.
4. The surrounding area, in the immediate vicinity, is devoted to residential uses, including some blocks of flats on adjoining land.

1. It is common ground that there are existing use rights enabling the site to be used for a motel without the need to obtain a planning permit for that land use. Clause 32.01 of the planning scheme contains the zone provisions in relation to the Residential 1 Zone. Clause 32.01-1 contains a table of uses divided into three sections. Section 1 contains uses that can be carried on as of right, and without the need to obtain planning permission, provided that any specified condition applicable to a particular land use mentioned in the section is satisfied.
2. Section 3 of the table contains uses that are prohibited and for which no planning permission can be granted. Section 2 contains land uses that can be carried on, provided that a planning permit is obtained and provided that any specified condition relating to the particular land use is satisfied.
3. In spite of the restrictions applicable to section 2 and section 3 uses, they may be lawfully continued pursuant to existing use provisions in cl 63 of the planning scheme, under certain circumstances. As I have said, it is common ground that there are existing use rights as motel.
4. If there were no existing use rights, it would be necessary to obtain a land use permit as motel is contained within section 2 of the table. It is a form of accommodation. Accommodation is a broadly defined land use that includes residential hotel which, in turn, includes motel. The land use "accommodation" in section 2 of the table encompasses residential hotel and motel and all forms of accommodation except three specified ones that are not relevant for present purposes.
5. I now set out these several land use definitions as they currently appear in cl 74 of the planning scheme. In doing so I note that they are the current definitions which are not necessarily the same as those applicable at earlier times or under earlier planning schemes. Sometimes it is those earlier definitions that are relevant in relation to existing use cases.
6. The land use "accommodation" is defined as:

Accommodation Land used to accommodate persons.

This land use includes "residential building" which is defined as follows:

Residential building Land used to accommodate persons but does not include camping and caravan park, corrective institution, dependent person's unit, dwelling, group accommodation, host farm, residential village or retirement village.

It does include the land use "residential hotel" which is defined as follows:

Residential hotel Land used to provide accommodation in serviced rooms for persons away from their normal place of residence. If it has at least 20 bedrooms, it may include the sale of liquor for consumption on, or off, the premises, function or conference rooms, entertainment, dancing, amusement machines, and gambling.

The land use "residential hotel" includes, but is wider than "motel" which is defined as follows:

Motel Land used to provide accommodation in serviced rooms for persons away from their normal place of residence, and where provision is made for parking guest's vehicles convenient to the rooms.

1. I draw attention to the notion of residential hotel, not only because it fits into this hierarchy, but also because it is a term that has been used in relation to the present case. The point to note is that, although motels are within the definition of residential hotel, residential hotel is a wider concept and includes things that are not motels.
2. The company apparently seeks to portray its business as an hotel. It is referred to in documents, and in a sign on the land, as "Albany Hotel". The company's representative frequently referred to the business as "hotel", and then retreated to the expression "residential hotel" when picked up on the point.
3. There is no common ground beyond the agreement that the land has existing use rights as motel. The objectors do not concede that it is a residential hotel, or if it is, that there is any right to carry on that use, as opposed to motel, on the land. Far less do they concede that the land is an hotel. That land use is not even in the accommodation group, but rather is a species of food and drink premises which is, in turn, a type of "retail premises" within the retail premises group of land use definitions in the planning scheme. Hotel is defined as:

Hotel Land used to sell liquor for consumption on and off the premises. It may include accommodation, food for consumption on the premises, entertainment, dancing, amusement machines, and gambling.

The company does not maintain that the use is an "hotel", it just uses the expression frequently. The land use "restaurant" is another variety of food and drink premises, which I will refer to hereafter.

1. Land may be used as a motel without the liquor being provided on the premises, or without there even being a dining room. However, if liquor is to be provided a liquor licence is required. That requirement is not under the planning legislation, but under other legislation. Various varieties of liquor licence can be obtained for various styles of premises where liquor is made available.
2. However, there is a link to the planning laws. That link is cl 52.27 of the planning scheme.
3. I will refer to cl 52.27 in its present form, which dates from planning scheme amendment VC64 of 23 December 2009 however, I am conscious that it has not always been in its present form. Two relatively recent amendments were referred to.
4. The purpose of cl 52.27 in relation to licensed premises is stated therein to be:

To ensure that licensed premises are situated in appropriate locations.

To ensure that the impact of the licensed premises on the amenity of the surrounding area is considered.

These provisions apply to premises licensed or to be licensed, under the Liquor Control Reform Act 1998.

1. The clause specifies that a planning permit is required as follows:

A permit is required to use land to sell or consume liquor if any of the following apply:

• A licence is required under the Liquor Control Reform Act 1998.
• A different licence, or category of licence is required from that which is in force.
• The hours of trading allowed under any licence are to be extended.
• The number of patrons allowed under any licence are to be increased.

1. That last item was, I believe, added by amendment VC64. It does not appear in the version of cl 52.27 provided to me by the responsible authority in the course of the hearing.
2. The clause then goes on to provide some exceptions when a licence is not required and to specify some decision guidelines. I need not go into those matters for present purposes.
3. Most of the planning scheme provisions under which planning permission (that is, planning permits) are required relate to the development of land or relate to land use. However, there are other matters and things in relation to which planning permits may be required. Some past or present examples are to have shops open after 10 pm, to illuminate a domestic tennis court or display outdoor advertising signs. The permission required under cl 52.27 is such an other matter or thing, rather than land use or land development.
4. There is a subtle distinction to be noted here. A careless reading of the permit requirement provision could be misleading because it contains the word "use" in relation to "land". However, the requirement is for a planning permit relating to sale or consumption of liquor on land. The expression "land to sell or consume liquor" is not a land use in cl 74 of the planning scheme nor does it appear in the various land use tables like that referred to above in relation to Residential 1 Zone land. There are a number of land uses that are defined and are used in the tables in relation to which liquor is or may be sold or consumed. Hotel and restaurant are both two examples. It is only if a restaurant is to sell or provide for the consumption of liquor that it needs a liquor licence, and it is only then that permission under cl 52.27 is required. A land use permit, as distinct from a cl 52.27 permit, may also be required depending on the zoning or whether there are existing use rights; but that is a matter distinct from cl 52.27. That clause really requires planning permission in relation to the sale or consumption of liquor, and not for the use of land in terms of the uses of land contemplated in the planning scheme.
5. So far as the motel on this land is concerned, it could be carried on for years pursuant to the agreed existing use rights, and without a land use permit, and could still be carried on in that way without ever needing a liquor licence or a planning permit under cl 52.27.
6. In fact, it appears that this is exactly what happened for many years. However, in or about 2001 a new planning permission was applied for and granted by the responsible authority. The matter did not come to this tribunal. That permit bears the number TP 01/356 and it was issued by the responsible authority on 25 July 2001. What the permit allows is specified in the following words:

To use the site to consume Liquor in accordance with an On-Premises Liquor Licence in accordance with the endorsed plan.

1. This permission appears as a permit under cl 52.27 or its predecessor, and it is not a land use permit to use the land as a motel or for any other land use defined or used in the planning scheme. Land use permission for motel was not necessary because of the existing use rights. Land use permission for any use other than motel is not covered by the existing use rights at that stage and would require a permit. Such a permit would need to specify what land use was being allowed. Additionally, and by the way, a motel land use permit could have been applied for and granted in which case it, presumably, would take over from the existing use rights and would contain suitable use permissions in relation to the land use generally. This permit contains only eight conditions which appear to relate, either specifically, generally or to some extent to the liquor licence and liquor consumption permission being granted.
2. Of these conditions, the third relates to when alcohol can be supplied. The second and fourth conditions read as follows:
   1. Alcohol shall only be consumed inside the subject building, and not on the open balconies or any part of the car park on the premises.
   2. Alcohol shall only be provided for consumption on the premises to persons who are resident in the establishment and their guests for the time being to the satisfaction of the Responsible Authority.
3. Complications arise with the next step. On 30 October 2003, the responsible authority issued what purports to be a planning permit TP 02/716. This is the "permit" now sought to be amended. It was issued at the direction of this tribunal in its determination of the case of Fenwick v Melbourne CC[2] determined by a member other than myself on 13 October 2003 following a hearing on 26 August 2003.
4. I say "purports" to be a permit although it really is intended to be an amendment of the earlier permit TP 01/356. That is revealed by the words purporting to grant permission which reads as follows:

Amendment of the condition of the "on-premises" liquor licence to allow alcohol to be served in the dining room to persons other than guests of the motel in accordance with the endorsed plans.

1. At the time of issue of this permit, and the determination giving rise to it, the Planning and Environment Act 1987 (PE Act) provided two specified means by which an amendment of an existing permit could be achieved. The first means of amendment was by the responsible authority pursuant to s 72 and 73 PE Act as it then stood. That procedure was subject to certain constraints, and was not available in some circumstances.
2. The other means of amending an existing permit was by a request to this tribunal pursuant to s 87 PE Act. That procedure was also subject to certain constraints, including that a ground for amendment pursuant to section 87(1) had to be demonstrated to the satisfaction of the tribunal. The current s 87A pursuant to which this current proceeding is brought, was not then in the Act.
3. It therefore appears that the responsible authority was in error in entertaining a permit application to achieve amendment of an existing permit. That was not, and still is not, a procedure open under the PE Act. It appears that this error was not drawn to the attention of the tribunal, but was passed through to it by the review by R&M Fenwick of the decision of the responsible authority to grant a "permit".
4. It is clear, both from the determination of the tribunal, and from the words granting permission, that this was not intending to be a permit granting a new land use in relation to the land. Both refer to the "motel" and to the "dining room" thereof.
5. Mr and Mrs Fenwick were concerned about opening up the dining room for people who were not staying at the motel, or guests thereof. They opposed the dining room being opened to the public expressing concern about noise, unruly behaviour and adverse affects on car parking. As to these matters, the tribunal was satisfied that outsiders could dine in the dining room provided that the total number of diners was limited to 50 and that conditions continued to confine consumption of alcohol to within the building. I am not sure that there was not some ambiguity about this limitation to 50 diners. I think the intended limitation is to 50 overall, including people staying at the motel and outsiders. Two versions of the endorsed plan were tendered at the hearing before me. Again, there is some ambiguity inasmuch as one of them bears a notation limiting the dining room to 50 whilst the other does not.
6. Although the reasons of the tribunal, its order and the words granting permission refer to "motel" and to "dining room" there is some sliding in terms because there are other references, in the reasons and in the conditions to "restaurant".
7. There is a question here as to whether opening the dining room to the public did not create a second use of the land namely as a "restaurant". It is part of the business of a motel to provide breakfasts to guests staying in the motel, whether in their rooms or in a dining room. Provision of other meals, but limited to motel guests, might be said to be ancillary to the motel, but I think there is a real question as to whether a dining room providing meals to the public is not a restaurant. It is not part of the current definition of motel, quoted above[3] to provide such facilities to people not being accommodated in the serviced rooms.
8. Restaurant is defined in cl 74 of the planning scheme as follows:

Restaurant Land used to prepare and sell food and drink, for consumption on the premises. It may include:

(b) the supply of liquor other than in association with the serving of meals, provided that tables and chairs are set out for at least 75% of the patrons present on the premises at any one time.

1. Restaurant is quite a distinct land use from motel, or any of the other accommodation group land uses. It is unfortunate that what purports to refer to the dining room should, in condition 5 uses the word "restaurant" as follows:
   1. Access to the restaurant shall not be permitted after 10.00 pm by persons other than residents of the establishment or their guests for the time being to the satisfaction of the Responsible Authority.
2. Condition 6 also uses the word "restaurant" as follows:
   1. The maximum number of patrons in the restaurant shall not exceed 50 people.
3. For completeness I note that condition 7 reads:
   1. Alcohol shall only be consumed inside the subject building, and not on the open balconies or any part of the car park of the premises.
4. This condition 7 is the one now sought to be amended. I note that there is no reference in it to the so called "terrace" area or other open air facilities that have since been added such as a rooftop swimming pool, but the requirement that alcohol must be consumed inside the subject building is perfectly clear.
5. The existing use rights as motel do not include or extend to a second use as restaurant. Although it is common ground that there are existing use rights as motel, the common ground does not extend beyond that single land use. If the land is to be used as a restaurant, a planning permit for that use is required as restaurant is a section 2 use in the table of uses for the Residential 1 Zone.
6. There are restrictions and limitations on the scope of planning permit conditions that can be imposed, even when permission for a new land use is being granted, although I think it is clear that no such further land use was granted in 2003, as no one, including the tribunal, directed their attention to that matter. Conditions need to relate to the permission being granted and need to be directed to a planning purpose or at least have that effect. The "permit" document TP 02/716, and the tribunal order from which it derives, contains a total of 21 conditions many of which appear to me to go far beyond the limited "amendment" to the original permit. That limited amendment was to allow outsiders in the dining room up to 10 pm on the basis that patrons must not exceed 50 and alcohol may only be consumed within the building. Some of the other conditions, as I have said, appear to go far beyond that and their validity might be doubtful to that extent. For example, conditions 1 and 2 refer to an operational management plan to deal with management generally but specifically to deal with rubbish storage and removal, staff training in relation to the serving of alcohol and the management of staff and guest parking.
7. All this confronts me with something of a puzzle in as much as I am requested to amend condition 7 on this document to allow outdoor consumption of alcohol on the "terrace" where there appear to be real questions as to whether the "condition" to be amended is really a valid condition and as to whether the purported permit in which it appears is a valid permit.
8. Although the questions arise from the submissions by Mr Sayer and Mr Cook, they also arise from the documents that have been tendered. In fact, it is the documents that have given me concern. However, these questions cannot be determined by me at this stage as they were not properly before me and those who might be adversely affected by decisions in relation to them have no proper notice. Although section 124 of the Victorian Civil and Administrative Tribunal Act authorise me to make declarations in addition to or instead of other relief being sought, I consider that I cannot proceed in that direction where relevant evidence and submissions have not been made and the issues have not been presented and contested.
9. I have mentioned the concern as to whether the opening of the dining room to the public creates a second land use for which planning permission is required. Another concern is the suggestions and allegations that the current use of the land is as a residential hotel, rather than as a motel. I am not aware of any permit having been granted to use the land as a residential hotel, as distinct from a motel. Furthermore, it is not common ground that this wider use enjoys existing use rights, and the evidence that was produced before me suggests that there is neither permit nor existing use rights for residential hotel.
10. The history continues with a purported permit application in December 2006 seeking a permit:

To amend the condition of the "On Premises" liquor licence to allow alcohol to be served within the outdoor area adjacent to the Dining Room/Bar.

1. There was a notice of refusal to grant a permit dated 18 June 2007, which appears to relate to that application. The matter was not reviewed before the tribunal.
2. On 25 January 2008 a planning permit PP-2006-1085 was issued by the responsible authority at the direction of the tribunal in its determination of the case of Diamond Waters Nominees Pty Ltd v Melbourne CC[4]. This permit did not relate to the use of the land, but rather to building works for which planning permission was required under the Heritage Overlay and the Design and Development Overlay. These building works relate to an addition at first floor level of some extra rooms and an outdoor, rooftop pool and other things. At paragraph [18] of its reasons the tribunal[5] said:

[18] Our decision is based upon the planning merits of these building alterations and additions and any car parking and amenity issues that arise from these building works.

1. The planning permission for these building works was required under the planning scheme and a permit could and was granted for those works. Condition 4 maintained the prohibition on outdoor consumption of alcohol in the following terms:
   1. Alcohol shall only be consumed inside the subject building, and not on the open balconies or any part of the car park of the premises.

Condition 5 provided that use of the pool is restricted to "hotel" guests and that use of the pool must cease at 10 pm.

1. I am concerned that this condition should have referred to "hotel guests" and that the words of permission referred to "Alterations and additions to an existing residential hotel". As already noted, it appears that there was then and is now no lawful use of this land as a hotel or as a residential hotel. This slip does not particularly impinge on the validity of the development permit in fact granted, but merely amounts to a misdescription.
2. The documents tendered also included a certificate of compliance under s 97M of the PE Act. It has been observed in the past, and I understand it to be correct to say, that the motivation for the creation of the opportunity for there to be certificates of compliance arises for a particular limited purpose. It is my understanding that some lending authorities would not provide finance unless a planning permit was produced. However, that was not possible where the use or development in question was as of right so that no permit could be granted. Perhaps it was pandering to the ignorance of banks or other lending institutions, but the certificate of compliance provides a quick, cheap and easy means of providing a document verifying lawful use or development. I do not think that this means that the obtaining of such a certificate from the responsible authority conclusively determines something that is in fact incorrectly stated in the certificate. The contentious matter might still need to be contested by means of an enforcement application or an application for a declaration, and the outcome of such proceedings cannot be determined by such a certificate. This certificate bears the number CC-2008-5 and it is dated 16 October 2008. A recital says that it refers to:

The use of the outdoor terrace adjacent to Millswyn Street by guests of the hotel only and excludes the consumption of alcohol.

1. Those words do not contain the proposition being certified, although I note the mistaken reference to "hotel". The actual certificate says:

This Certificate is issued in accordance with Section 97N(1)(a) of the Planning and Environment Act 1987. The use and development existing on the land and referred to in this Certificate complies with the requirements of the planning scheme of the date of this Certificate.

1. That may well be true in relation to the existing development on the land however which "use", meaning "land use", existed at the time of the certificate. If it had said "motel" that would probably be correct. As it is it says nothing, unless it refers back to the recital, which mentions "hotel". So far as land use is concerned, the certificate appears to be useless because it does not specify a land use, or alternatively, specifies "hotel" which is clearly not a lawful use for this land now or at the time of the certificate.

1. Incidental references and incidents in the course of the hearing before me indicate that there is some tension between some of the objectors and those responsible for the management of the motel. It would appear that there is a degree of frustration on both sides. The objectors, or some of them, have been resisting applications and requests made in relation to the motel use of the land. It appears that they feel that the current management has been attempting to, and has been somewhat successful in encroaching beyond the limits of the motel use, which they concede to be lawful. They express concern about such encroachments as the apparent use as a restaurant without a permit and references to the use of the land as hotel or residential hotel without those uses being validated by planning permit or existing use rights. Although those frustrations have been voiced in the past, and were voiced again in the hearing before me, neither they nor the responsible authority has taken proceedings to require clarification of the legal situation. Neither they nor the responsible authority have prosecuted the people running the motel or sought an enforcement order or sought declarations. Such proceedings may well be quite complex, having regard to the existing use issues involved and the need to find evidence of use and planning control dating back over a considerable period.
2. Mutual frustrations have become apparent with resentments relating to the taking of photographs and some diaries or log books have been kept in relation to alleged infringements of permit conditions. However, I have examined the evidence produced at the hearing including the statutory declarations and note that the concern in relation to contravention of conditions focuses particularly on the consumption of alcohol on the terrace, contrary to conditions, rather than clear, solid and continued evidence of complaints about noise and other amenity affects.
3. Some styles of premises where alcohol is sold or consumed are more conducive to disturbance of nearby residential amenity than others. In relation to the merits of the proposal to allow consumption of liquor on the terrace, I would be minded to consider a trial period. It may be that the liquor licensing authorities might not like such a condition, but I am dealing with planning considerations and planning needs, and I would not be minded to varying what I might otherwise decide on planning considerations on account of the situation, if it existed, that the licensing authorities were not prepared to grant a licence where a planning permit condition was not to their liking.
4. However, I am not satisfied that I should grant the amendment sought to the condition in the "permit" where there appears to be so much doubt about the validity of the thing sought to be amended.
5. This does not prevent other proceedings to clarify these matters. The requestor company may seek declarations or planning permits if so minded, quite apart from any proceedings that others might initiate. I do not purport here to have determined any such possible future proceedings, but I do say that the situation is clouded with such legal doubt that I am unwilling to compound the situation, or to appear to accept its validity. Accordingly, I propose to refuse this request.

[1] [2003] VCAT 1440

[2] [2003] VCAT 1440

[4] [2008] VCAT 35