Subject site is an existing commercial property located on the south west comer of Gamon Street and Charles Street, Seddon. A two storey, building exists on the site, and is currently used as a restaurant/bar on the ground floor and a residence on the first floor.

Restaurant/bar trades under the name "Sabroso", and has been in operation since May 2003.

Restaurant operates under the provisions of planning permit 77/22, which was issued on 21 March 1977. This permit allowed the ground floor of the building to operate as a restaurant, with the first floor being used as a residence. This permit did not restrict the number of patrons allowed on the site, the number of seats, the number of staff, or the hours of operation. The permit did however require 10 car parking spaces to be provided on site as well as landscaping strips along the Station Road, Charles Street and Gamon Street frontages. Toward Station Road it is noted that the landscaping strips are quite dilapidated, while along Charles Street such landscaping strips appear to be non-existent.

Public pedestrian access to the site is available via Gamon Street and Charles Street. Informal, off-street car parking is provided in the front setback to Charles Street and is accessible via an existing crossover from both Gamon Street and Charles Street. Five (line marked) car spaces are available to the rear of the site (accessible via Gamon Street and/or Station Road) however these spaces are primarily used by employees of the business.

5 The subject land is covered by the Maribyrnong Planning Scheme and is in a Residential 1 Zone which is the subject of Clause 32.01. Mr Hocking submitted:

The existing use of the site as defined as a "food and drink premise." A food and drink premise is included under Section 2 of the zone. However a planning permit is not required for this use, as the business operates under the provisions of a planning permit issued in 1977 (our ref: 77/22).

Pursuant to Clause 32.01-6, a planning permit is required to construct buildings and works associated with a Section 2 use.

The provisions of this overlay are not applicable to the application, in this instance.

Pursuant to Clause 52.06-1, a new use must not commence or the floor area of an existing use must not be increased until the required car spaces have been provided on the land. The table at Clause 52.06-5 sets out the number of car spaces required. For a "food and drink premise" 0.6 car spaces per seat are required to be provided. As the outdoor area is to comprise 24 seats, a total of 14 additional car spaces are required to be provided on the land. The Applicant cannot provide this number of spaces on site, and in fact proposes to remove one car (from the Charles Street frontage) space to allow for the construction of the deck area. A planning permit is therefore required to waive the car parking requirement, pursuant to Clause 52.06-1 of the Planning Scheme.

A planning permit is required, pursuant to Clause 52.27 of the Planning Scheme, to sell and/or consume liquor on the proposed deck area.

1. The proposal is inappropriate in a Residential 1 Zone.

2. The proposal fails to satisfy the essential State and Local Policy Framework objectives.

3. The proposal does not provide adequate car parking and does not satisfy the requirements of Clause 52.06.

4. The proposal will impose unreasonably amenity impacts on the community.

7 The proposal was advertised by 30 letters to surrounding property owners/occupiers and three signs on the three street frontages of the subject land. There were 21 objections. Mr Hocking summarised the objections as follows:

* Waiving of oar parking not appropriate given the high demand for on-street parking in the area

* The continued waiving of car parking requirements for commercial businesses by Council, without clear direction as to how the demand for residential on-street parking in the area will be managed

* Increased noise and litter caused by increasing the area of the site to be used by the restaurant

A range of issues were discussed during the Application mediation meetings including:

* The Seddon Stropping Centre Parking Management Plan and its findings/recommendations in terms of the introduction of residential parking per its and/or great r parking restrictions in the surrounding area.

* Ways of ensuring that no more than 24 outdoor seats are provided on site.

* Restrictions as to how long the outdoor area will operate.

* Noise, such as the emptying of glass bottles into bins late at night, caused by the existing operation of the restaurant.

* Noise (chatter, car doors, taxi horns, etc) caused by patrons leaving the premises late at night.

* Litter (straws, serviettes, cigarette butts) littering the surrounding area and how this can be controlled.

* The site's frontage to Station Road is unsightly, by virtue that the bin area is not screened.

The second mediation meeting was arranged at the request of the Ward Councillor Cr Hartland to discuss the Seddon Shopping Centre Parking Management Plan, and to gain a greater understanding of people's concerns regarding the proposal.

At this second meeting, a compromise seemed to be reached between some objecting parties, that the removal of the existing parking spaces located in the Charles Street frontage may be acceptable provided that landscaping in addition proposed decking area, be provided. It was considered by some objecting parties that this suggestion would i prove the existing site's (physical) presentation to Charles Street, and may overcome concerns regarding whether the proposed parking layout is functional and efficient. A greater amount of landscaping could also be provided along the site's Station Road frontage, to provide a greater amount of screening of the rear car parking and bin storage area from this street.

9 Mr Hocking submitted that the proposal was assessed against the following provisions of the Planning Scheme:

10 The purpose of the Residential 1 Zone is set out at Clause 32.01 and is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.

The subject site has been operating commercially in a residential zone for the last 15 years (since 1979). In Council's view, the site has operated as a restaurant without any formal complaint (although some concern has been raised regarding glass disposal, litter end noise in the mediation meetings) and is one of the few commercially used sites in this area that has capacity to provide some parking on site.

The proposed decking area is well placed in terms of the site's use, integration with the street and interface with surrounding, residential properties. While decreasing the number of car spaces provided on site, and potentially increasing the seating numbers on site, the Applicant is able to maintain a minimum of 5 off-street car spaces. These spaces, it is anticipated, will primarily be used by the restaurant staff for long-term parking.

The proposed use and development is further considered appropriate given the site's existing non-residential use and its location adjacent to the commercially zoned Seddon Shopping Centre.

12 Mr Hocking submitted that the Responsible Authority had arranged for The Seddon Shopping Centre Parking Management Plan to be prepared by the Traffix Group, a firm of Consulting Traffic Engineers. Mr Hocking submitted:

... Parking occupancy surveys were undertaken over a period of 5 days by Council. The surveys occurred during a Monday, Wednesday and Friday between 10am and 4pm during the daytime and on a Wednesday and Friday between 5pm and 10pm during the evening. The daytime surveys were undertaken during July 2003, while the evening surveys were undertaken in October also during 2003.

13 Mr Hocking produced a copy of a graph from the report which showed parking occupancy as described in the above paragraph. Mr Hocking further submitted:

The graph shows that the parking occupancy is relatively constant across each day and that each day of the week follows a similar pattern. Significantly, the overall occupancy varies between 50% and 60% of the total parking supply with at least 200 car spaces unoccupied across the study area at all times.

While the above figures do not suggest a significant parking shortage in the overall area, the surveys did find there to be an imbalance between the parking occupancy in different parts o the study area ...

14 Mr Hocking submitted that, in general, individual street results show the streets closest to the core retail area in Charles Street experienced the highest occupancies during the day time, including Gamon Street to the north of Station Street. Other streets experienced lower occupancies during the day time, and those streets were typically located furthest from the shopping strips or those with the most prohibitive restrictions, particularly toward the north-east of the study area.

15 Mr Hocking submitted that a number of street sections which experience high occupancy of parking spaces during the day time also experience high occupancies during the evening, including Gamon Street north of Station Street.

Bearing in mind the extent of change within this proposal, Council believes this Study indicates sufficient flexibility and capacity of cars paces in the immediate area for the non-residential use to continue (in compliance with modem laws and regulations) without unreasonable impending reasonable expectations of residential amenity. Residents living near a Business 1 zone and close to an existing Restaurant without a fixed seating capacity should not expect the same levels of amenity as residents living in area solely zoned Residential 1. A fair and reasonable balance must be struck. With the imposition of a wide range of operating conditions, many for the first time, Council believes an appropriate planning outcome can be achieved.

Secondly, the subject site has approval to operate as a restaurant (with no limitation on number of staff or number of seats/patrons) on the basis that 10 spaces are provided on site. On site, this provision of car spaces equates to 5 spaces being provided toward the Station Road frontage, and 5 spaces being provided toward the Charles Street frontage. It appears that car parking at the Station Road end of the site is primarily used by employees of the restaurant.

17 Mr Hocking submitted that the Respondent/Permit Applicant has applied to waive the requirement for 14 additional car spaces on site and proposed to reconfigure that currently parking layout and provide 6 spaces in the setback to Charles Street instead of 5 spaces required under the current permit. Comments by the Council Traffic Department indicated that the proposed parking layout in the Charles Street setback would not provide safe or efficient manoeuvrability, and was not supported for reasons which were set out.

Following on from these comments, and in terms of the decision guidelines of this Clause, it is considered acceptable for the Applicant to provide no car parking in the Charles Street setback, and for the existing two vehicle crossovers to be removed and reinstated to footpath, kerb and channel at the expense of the owner/Applicant. In deleting all car parking in the setback area to Charles Street, the dispensation sought will affectively be for 19 car parking spaces.

While many objectors raised concern relating to the proposed waiving of car parking, and the impact this would have on parking demand in surrounding residential streets, it is considered that the proposed car parking layout will cause further detriment to the amenity of the area, given its inefficiencies and close proximity to the comer of Charles Street and Gamon Streets.

The site is well located in terms of public transport, and is within easy walking distance of a number of local residential streets. The proposal does however maintain five car spaces to the rear of the site off Station Road, with these spaces currently, primarily being used by staff members for long term parking. This existing provision is highly appropriate, and should result in any increased demand for car parking in the area being limited to customers who will seek short term parking arrangements, and may find such spaces in Charles Street, Victoria Street or opposite on Gamon Street. Given that these streets accommodate businesses that operate at varying times, it is considered that there will be the potential for these existing commercial areas to absorb any increased in demand for parking.

19 Mr Hocking submitted with respect to General Amenity:

The propose use provides many benefits to the community and local businesses, and may be sufficiently conditioned (should a planning permit issue) to ensure that the use does not cause substantial detriment to the amenity of the area, in terms of noise, litter, etc. One such benefit, is that the Town Planning Permit will require substantial planting along the Charles Street frontage and to a lesser extent the Gamon Street and Station Road frontages to improve the site's integration with these streets.

Following on from the recommendation to eliminate the provision of car parking spaces in the site's Charles Street frontage, and stemming from suggestions made by objecting parties in the second mediation meeting, it is considered that this area of unused site area may be better used for landscaping. The provision of landscaping, coupled with the outdoor area, will improve and enhance the site's relationship to the physical environment, particularly to Charles and Gamon Streets, as well as providing adequate screening of bin storage areas to Station Road.

20 I note that Condition 4 in the Notice of Decision to Grant a Permit provides that there be no more than 55 seats, including a maximum of 24 seats in the outdoor dining area at any time. I was informed that the existing capacity of the restaurant is 55 seats, and it is therefore not proposed that this be increased.

21 Ms Den Elzen, in her written submission for the Applicants for Review/Objectors, submitted:

We believe the current proposal does not meet a significant number of planning policy objectives and will adversely affect the community due to a reduction of amenity and an increase in the demand for on-street car parking.

However we believe an alternative can be reached. As Ward Councillor Hartland can attest to, five mediation meetings were convened, including one meeting on-site, and the objectors tirelessly attempted to reach a compromise. Unfortunately the Applicant did not negotiate any significant aspect of the proposal.

Despite the failure of these mediation meetings we hope the Tribunal can resolve these issues and work with the Applicant and community to ensure a development that meets the needs and expectations of the Seddon community and the Applicant.

The submission will conclude with the demonstration of a proposal which we believe will meet the needs of the Applicant and the community. We have produced this alternative proposal to possibly aid the Hearing Member's decision and demonstrate our general support of the business located at 2 Gamon Street.

22 Ms Den Elzen submitted, with respect to the purpose of the Residential 1 Zone:

The primary purpose of the zone is to encourage and provide for residential development. Keywords contained in the purpose of the zone specifically related to the current proposal include "local community needs" and "a limited range of non-residential uses". The scale of the restaurant (with the exception of car parking) as it currently stands generally satisfies local community needs. Expansion of capacity to approximately 80+ would however create a service well beyond the needs of the local community. The local area is well serviced by a number of restaurants, cafe's and bars, most of which have a capacity under 50.

23 I have already noted that it is not proposed to increased the total number of seats on site.

24 Ms Den Elzen dealt with relevant State and Local Planning Policy, in support of Grant of Refusal No. 2. Ms Den Elzen was critical of amenity aspects of the proposal. Mr Den Elzen submitted:

It is the group appellant's opinion that the proposal will detrimentally impact the local amenity surrounding the subject site. We are concerned that the proposal has significant potential to produce an increase in noise levels, an increase in odours, increase in fly-away litter and increase the competition between residents and patrons for on-street car parking.

The Applicant in previous discussions has stated that they do not expect the number of patrons in total to increase, due to the limited capacity of their kitchen and staff. However it is our opinion that if the proposed outdoor dining area is successful, in a business sense, then it is reasonable to assume that the business will grow to cater for the additional patrons.

The potential for the proposal to increase the detrimental levels of noise is significant. The addition of 24 patrons and the location of this activity outdoors will increase the levels of noise created by the business.

We acknowledge that the State Environment Protection Policy N-2 is legislation that protects the amenity from noise pollution in regards to music. The legislation, however, will not protect the amenity of the residents in regards to the noise associated with the arrival and departure of patrons. It is this noise that is the most disturbing of all noise elements experienced to date. The opening and slamming of car doors, the raised voices of patron's farewelling each other, patrons smoking outside and conversations on mobile phones are all intermittent and irritating especially at night when most nearby residents are attempting to secure an orthodox' night's sleep. This is a particular concern for the parents of young children, as sleep deprivation and disturbance in small children can have significant effects on their health and well-being.

Unfortunately this is an element of noise that the Applicant does not have a significant degree of influence over. The Applicant can, as suggested by the NOD, encourage patrons to leave quietly and advise that they are in a residential area. This however is a minimal amount of control. We are concerned that if the Applicant cannot control the behaviour of its patrons once they depart the premises, then it is unreasonable to grant a permit that will add to the number of patrons causing this disturbance.

We are also concerned that there will be additional noise from the live music. During 2003 the live music caused significant detriment to the surrounding amenity as the doors facing Gamon Street were constantly open, allowing the sound to travel and disturb a significant number of residences in Gamon Street and Charles Street.

However since Council's issuing of the NOD, the doors facing Gamon Street have remained closed and patrons are required to use the Charles St entrance. This practice has significantly reduced the noise levels resulting from the live music, and we applaud this action.

We are concerned however, that if the outdoor dining area is granted then the Charles St entrance will remain propped open and cause noise to travel and affect residences in Gamon and Charles Streets. We are also concerned that the outdoor dining area may also result in the Gamon Street doors being opened once again, and that nearby residents will again suffer the adverse affects of noise.

It is worth noting that the original 1977 permit and attached plans did not have doors opening onto Gamon Street (see Appendix J). The Applicant applied to Council to replace a window with these doors. Council has since informed the group appellant that it considered the change a minor alteration of the existing permit and was therefore not required to consult the community. Whilst the Council believe the change was minor, they obviously did not consider the consequences of this action. By replacing permanently sealed windows with opening doors, the Applicant has compromised the sound attenuation of that wall and increased the volume of noise escaping and severely affecting nearby residents.

The emptying of glass bottles into a steel waste receptacle creates an unbelievable amount of noise. The noise created is so loud that it wakes people from sleep within homes that are approximately within 100 metres of the subject site. This noise disturbance has again been cited as a major concern for parents of young children.

After discussion with management in late 2003, members of the group appellant were assured that this practice would not continue and until recently management had ensured that the emptying of bottles occurred no later than approximately 6pm. However in the past 2 -3 weeks the emptying of bottles at approximately 7 - 8 pm has reoccurred.

We are concerned that the proposal to increase the number of patrons will also increase waste and therefore the frequency of this extremely disturbing noise. We are also concerned that the Applicant, once they have been issued a permit will return to these disturbing practices with disregard for the residents.

We also concerned that an increase in patrons will increase the volume of waste produced and therefore increase the unpleasant odours from the waste area.

The additional waste created, also has the potential for a greater frequency of garbage collection service. The current location of the garbage area directly abuts the bedrooms of a residential property. The residents, who are members of the group appellant, are concerned that the shared fence will be further damaged by the collection vehicle and the level of unpleasant odours will also increase.

We are concerned, that as close neighbours of the subject site, the proposal will cause an increase in fly-away litter. Other outdoor dining businesses in the area do create fly-away litter such as napkins and cigarette butts that continue to end up in the gutters or residents front gardens.

In conclusion the group appellant are of the opinion that the proposal will impose unreasonable significant affects upon the local amenity to the detriment of the community.

25 I note that Condition 15 in the Notice of Decision to Grant a Permit provides that collection and disposal of rubbish from the premises (other than normal Council collection) be conducted between the hours of 8.00am and 6.00pm Mondays and Saturdays, unless otherwise agreed upon, in writing, by the Responsible Authority.

26 Ms Den Elzen submitted with respect to car parking:

The proposal submitted by the Applicant was to alter the Charles St setback area to provide space for a deck that would accommodate 24 dining seats and still provide 6 car spaces on-site. We submit that the plans provided to Council and the community were misleading and not to scale. Based on simple mathematics we believe it is reasonable to suggest that if only 4 car spaces are currently provided along the length of the Charles St set back, it is impossible for 6 car spaces to be provided along the smaller width of the Charles St setback as illustrated in the submitted plans.

Council, aware of this impractical proposal, chose to remove all on-site car parking from the Charles St setback as part of their decision to issue a NOD. Council made the decision to remove all car parking and replace with landscaping against the advice of more than 21 local residents, most of which live less than 100 metres from the subject site.

Council's decision to alter the proposal appears to the group appellant to be a breach of the existing 1977 permit. The removal of 6 car spaces at the Charles St setback breaches the existing permit condition to provide 10 car spaces on site. We discussed with Council and the Applicant the potential to formally limit the indoor and outdoor seating capacity as part of this proposal. Yet Council advised that this would breach the existing permit and therefore be illegal.

Council's decision has altered the proposal to remove all car parking from the Charles St setback area to provide an outdoor dining area for 24 seats and landscaping, and the waiving of car parking requirements. Under this proposal the Applicant will extend the dining capacity of the restaurant from 56 seats to 80 seats plus bar patrons, whilst providing only 3 car spaces at the rear, which are primarily used by staff. An 80-seat restaurant, according to current legislation would require the provision of 48 car spaces on-site. The outdoor dining area alone would require the provision of 14 car space on-site.

27 Ms Den Elzen went on to assess the proposal against Clause 52.06, Car parking, and the Decision Guidelines contained at Clause 52.06-1. Ms Den Elzen submitted with respect to one of those Decision Guidelines, an empirical assessment of car parking demand:

The City of Maribyrnong, as part of its draft Seddon Shopping Centre Car Parking Management Strategy, has engaged consultants to collect data in relation to car parking demand in the area. The results showed that carparking demand was an average was 60% capacity of available on-street car parking provisions prior to 4 pm. Since this data was collected, Council has engaged a consultant to collect data regarding weekend on street car parking demand. Interestingly streets such as Gamon St, Station St and Charles Street, show a capacity of 80% to 100% from 7pm till 11pm on Saturdays. (See Appendix M Seddon Shopping Centre Car Parking Management Strategy)

The Council also assessed the proposal against Maribyrnong Local Planning Policy Framework 21.04-6 which relates to activity centres and retailing (see Appendix Q). The infrastructure objective of this policy is "Ensure all centres have sufficient on and off street parking to meet proven needs". The group appellant believe that the proposal does not meet this policy's objective.

The current provision of 6 patron exclusive car spaces on site and the limited availability of on-street car spaces do not meet the current demand of the 56 indoor dining seats. As demonstrated previously a significant number of patrons are forced to park the cars on street and as such, the on-street car space resource is almost at capacity. The current provisions do not meet the current proven demand and it is unreasonable to propose an additional 24 dining seats (14 car spaces required) and the removal of 6 car spaces. The Seddon local area does not have a surplus of car spaces.

28 The proposal is not to increase the number of seats. I consider from what was submitted by the Responsible Authority and also the Traffix Group report that the increased demand for on-street car parking can be met without impact on local amenity.

29 It is an accepted planning principle that each decision must be made on its own merits. Ms Den Elzen made reference to a number of Decisions of various Divisions of the Tribunal. One of those Decisions was H Tran v Maribyrnong CC [1998] VCAT 630 (15 January 1999), which was an Application for Review of the decision of the Responsible Authority, the Maribyrnong City Council, to grant a permit for extension of hours, increase in a number of seats, an increase in the number of staff of the existing cafe/restaurant at 84 Gamon Street Yarraville which is also on the west side of Gamon Street but to the south of the subject proposal. I allowed the Application for Review and directed that a permit not be granted. In my Reasons I said:

I consider that the increase in parking demand, having regard to the parking available, would be undesirable if the hours were to be extended and/or the area available was increased as desired by the Respondent/Permit Applicant. I have therefore come to the conclusion that the Application for Review should be allowed and a permit not granted.

30 I consider that the issues in the subject Application for Review with respect to car park are different to the issues in Tran v Maribyrnong City Council.

31 Ms Den Elzen also made reference to Petracra v Maribyrnong CC [2003] VCAT 1478 (21 October 2003), which was an Application for Review of the decision of the Responsible Authority to refuse to grant a permit to use a hard-standing area at the rear of the subject land as a "beer garden" associated with the existing restaurant/bar.

32 Mr Wainwright represented the Applicant for Review. In my Reasons I said:

"The beer garden will occupy an open, outdoor area on the north side of the existing building. No form of sound attenuation is proposed and the area will be simply enclosed by the existing steel fencing. Under these conditions noise emissions from patrons of the beer garden will have a direct impact on the residential properties to the north, even noise associated with a small number of patrons. Residents will be separated from the beer garden by only the width of the laneway (ie. minimum 3 metres). This degree of separation is considered inadequate to ameliorate the potential noise impacts associated with the beer garden."

14 Mr Loughnan, for the Applicant for Review/Permit Applicant, submitted an Expert report prepared by Mr D Dolly, an Acoustic Consultant, under cover of a letter dated 30 September 2003 and received by the Tribunal on 2 October 2003. Mr Loughnan called Mr Dolly as an expert witness at the hearing. Mr Dolly set out details of existing ambient noise and recommended design noise levels. Mr Dolly recommended noise control measures as follows:

"Based on our calculations it is anticipated that average maximum noise levels from typical patron activities can be controlled to 60dB(A) or lower by providing an acoustic fence at the perimeter of the Beer Garden as shown in Appendix C.

The acoustic fence should be 2.2 metres in height and be constructed in a manner equivalent to the design provided in Appendix D.

The acoustic fence is to extend on the east, west and north boundaries to ensure predicted compliance at each residence (R1 to R4).

A sound absorptive facing should be applied to the eastern fence to control sound reflection. This treatment should cover not less than 20 square metres and have a noise reduction coefficient of not less than 0.7.

It is noted that the fence will also attenuate noise that may be emitted from the existing building via the north facing doors. It is understood that these doors can be open during warmer months leading to some escape of people and background music noise."

15 The proposal for an acoustic fence had not been raised before. Noise impact was a ground of Refusal, and Mr Wainwright in his written submission, as quoted at paragraph 13 above, submitted that no form of sound attention was proposed.

16 The acoustic fence proposed by Mr Dolly may well deal with concerns about noise from the subject land, and it could be argued that it should have been the subject of a request to amend the permit application. Practice Note Planning and Environment List (No.1) General Procedures provides at paragraph 11 that amended plans should be filed and served at least 20 business days prior to any dates set for a hearing. It was also argued at the hearing that because of the Special Building Overlay a proposal for such an acoustic fence should be referred to Melbourne Water, which had not been done.

17. Mr Loughnan submitted that I should allow the matter to be referred to Melbourne Water now. I have considered this request, and I consider it more appropriate that a fresh application, including all that is proposed, should be made to the Responsible Authority and any referrals then made.

18. Mr Wainwright submitted with the respect to car parking:

"In responding to this question consideration has been given to the 'parking study' provided by the applicant which shows that the surrounding streets have spare capacity to cater for patrons of the subject premises. The parking study should be treated with caution though as it appears to have been conducted without the assistance of a recognised traffic engineer. Greater weight can be placed upon the findings of Council's own traffic engineer who has concluded that there are no parking issues associated with the proposal. It has been stated by Council's traffic engineer with respect to the original permit application that:

'Although only one hour parking spaces are available in Barkly Street, there are sufficient spaces in the surrounding residential streets. Therefore the existing on-street parking and other off-street carparks can comfortably accommodate the parking needs of the proposed restaurant.

A clear written warning should be attached to the permit, to say that Council may introduce some new parking restrictions or time limits in the future due to the introduction of a new parking policy'.

On this basis, the effective absence of any on-site car parking for the subject premises does not recommend against the grant of a planning permit.

19. The Respondents/Objectors were concerned about car parking. I accept the submission of Mr Wainwright with respect to car parking, however.

33 It will be clear from the Reasons that my concerns were firstly that the issue of acoustic fencing had not been addressed prior to the hearing. The proposal was covered by a Special Building Overlay and Melbourne Water was a Referral Authority pursuant to Clause 44.05-4 and the matter had not been referred to Melbourne Water. It would also be clear that I did have concerns about car parking.

34 Those two Decisions can therefore be readily distinguished from the issues in the subject Application for Review.

35 I have come to the conclusion that a permit should be granted for the following reasons:

* The proposal can be granted a permit under the Residential 1 Zone provisions, although as pointed out at Clause 65 because a permit can be granted does not imply that a permit should or will be granted, and the Responsible Authority must decide whether the proposal will produce acceptable outcomes in terms of the Decision Guidelines of Clause 65.

* I consider that the proposal would produce acceptable guidelines in terms of those Decision Guidelines.

* The proposal is consistent with relevant State and Local Planning Policies.

* The proposal does not provide adequate car parking on site but adequate on-street parking will be available consistent with Clause 52.06, and it is appropriate therefore that a waiver of the car parking requirement be allowed.

* There are amenity concerns with the operation of the restaurant at present. Conditions in the Notice of Decision to Grant a Permit will improve the situation to a satisfactory level, particularly with respect to landscaping, and the wall adjacent to the dwelling to the west of the subject land and fronting Charles Street.

* The total number of seats will be limited to 55.

* It is likely that the outdoor seats will be more likely to be used in summer, particularly closer to 10.00pm, after which the outdoor dining area is not be used without the written consent of the Responsible Authority.

36 Condition 1(g) provides that supporting documentation must be provided demonstrating the measures that the permit holder will use to promote appropriate locations for parking in surrounding commercial streets to the satisfaction of the Responsible Authority, and such measures may include, but not be limited to, the placement of parking information notices ("table talkers"). Condition 5 makes reference to Condition 1H. This reference should be to Condition 1(g).

37 Mr Hocking, as quoted at paragraph 2 above, submitted that after detailed consideration Council resolved to require only five car spaces on site at the Station Street end and the land in the Charles Street setback not require or the new deck and outdoor seating would be landscaped and beautified to enhance the streetscape aesthetics.

38 The Notice of Decision makes reference to the plans submitted with the application. It seems appropriate to make reference to the plans that were the subject of the Notice of Decision to Grant a Permit.

39 For the above reasons this application is disallowed. It is appropriate for a permit to be granted, and I will so order.