1. Various parties refer to the concerns that a venue of the scale proposed, with a focus on sport and gambling, will target impressionable young males and will bring, or add to, anti-social behaviour and alcohol-fuelled violence. For example, as noted, Mr Dowling has illustrated this concern through his professional and personal experiences. Mr Cahir submits that the nature of a sports bar venue is likely to lead to the misuse and abuse of alcohol.
2. I appreciate these and other concerns ventilated at the hearing about alcohol-fuelled violence. I appreciate there are social issues that are of concern to the Mordialloc community. Ultimately, I do not explore submissions about the health and social implications identified because this is not a relevant matter to the application of clause 52.27.
3. This finding is consistent with many other decisions of the Tribunal and the ambit of this review proceeding. The Tribunal's decision in Hunt Club[15] assists to explain my finding. The Hunt Club case did not relate to a tavern but the findings are apposite to the current proceeding:

...Although the significant social effects of a planning decision may conceivably be a relevant consideration in a given case, as a matter of general principle, a broad concern about the social harm caused by alcohol, the accessibility of alcohol in the community generally, or the potential for the abuse or misuse of alcohol, will rarely (if ever) be a relevant consideration in the exercise of discretion for a particular licensed premises under clause 52.27. These matters are more commonly relevant to the complementary regulatory framework under the Liquor Control Reform Act 1998, albeit that there is some overlap between the liquor licensing and town planning frameworks.

Town planning is not a panacea for all perceived social ills, nor is planning decision-making a forum for addressing all issues of social or community concern. At its heart, planning is about the use, development and protection of land. It has a spatial context that is primarily concerned with the fair, orderly, economic and sustainable use and development of land. Town planning does not involve itself in moral judgements nor, subject to this locational or spatial perspective, in the operation of a competitive market economy in which certain goods and services are lawfully made, sold or consumed. Whilst town planning seeks to secure a pleasant, efficient and safe working, living and recreational environment, it is not the role of town planning to address all issues of public health, nor to regulate the pricing or general availability of a product to manage the health and well being of a society.

It follows, for example, that it is not the role of a planning decision-maker to consider the broader impacts on society of obesity, when making a decision about the development of land for a particular fast food outlet....[16] [Footnotes in the original have been excluded]

1. I have not been presented with material, lay or independent evidence that demonstrates that the location proposed for the sale and consumption of liquor will have significant social effects as relevant to the consideration of section 60(1)(f) of the Planning and Environment Act 1987.
2. I agree with Ms Brennan that the focus of this proceeding is on the suitability of the proposed location and the impact on 'the amenity of the surrounding area'.[17] This is made clear by the purpose and decision guidelines in clause 52.27. The decision guidelines include:
   • The impact of the sale or consumption of liquor permitted by the liquor licence on the amenity of the surrounding area.
   • The impact of the hours of operation on the amenity of the surrounding area.
   • The impact of the number of patrons on the amenity of the surrounding area.
   • The cumulative impact of any existing licensed premises and the proposed licensed premises on the amenity of the surrounding area.
3. I address these decision guidelines next. The material before me with respect to the consideration of clause 52.27 includes submissions by the Council and respondents, observations by residents, concerns expressed in statements of grounds, and submissions and expert evidence for the applicant. I have considered all of this material but do not recite it all here.

1. The subject land is within the heart of the activity centre and does not abut any existing dwellings. As already noted, the closest dwellings are some 50 metres away. Some of these dwellings are within the MUZ which, although a residential zone for the purposes of the Victoria Planning Provisions, itself seeks to provide (inter alia) "for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality".
2. It is common ground between the Council and applicant (and in expert planning evidence from Ms Jordan) that residential amenity expectations are not the same as if the land was in the middle of a residential area. As I have already found, an entertainment use in the Mordialloc MAC is consistent with both State and local policy and is further supported by the fact that the use is as of right. I do not consider it contentious to say patron behaviour associated with hotels and taverns can have the potential to cause disruption to amenity and, as acknowledged in other Tribunal decisions,[18] frequently it is the larger venue and the longer trading hours where there is the greater potential for amenity impacts.
3. The key amenity issues focus on noise and patron behaviour. At this point, I refer to noise emitted off-site as a consequence of patron behaviour and movement through the locality. There are also potential issues relating to inappropriate and unruly patron behaviour. Later I refer to the acoustic evidence with respect to noise from the roof terrace [wherein the acoustic evidence recommends the height of the balustrade screens be increased to between 2.3 metres and 2.5 metres, and constructed of glazed material, compared with the plans showing 1.7 metre high screens].
4. It is also relevant to explain the number of patrons that are sought to be approved under a liquor licence. As will become apparent later in these reasons, the typical upper limit of operations is expected to be 300 to 350 patrons. The permit applicant agrees to limit the number of events with up to 450 patrons to eight per year. These are usually ticketed for major local, national or international sporting events.
5. In considering the question of potential amenity impacts, particularly for residential properties, it is relevant that all patron access to the tavern will be confined to Main Street. Neither Centreway nor a rear door will be used. This will guide patrons to the main road corridor. This does not mean the patrons will not traverse other streets particularly to access car parking but it does shift the focus of activity to the main road environment. Patrons walking through the activity centre are not unreasonable or unexpected, including streets within the MUZ and leading to Beach Road and the foreshore parking areas. There are no other licensed premises with which patrons waiting to enter the proposed tavern on Main Street would overlap.
6. Of greater concern is the prospect of patrons parking in the residential streets, such as Owen Street and Montgomery Street, outside the MAC. As I discuss later, parking in these streets is already pressured into the evenings and a reduction in parking for the proposed tavern does not rely on these spaces being available. It is within the Council's control, and consistent with its adopted Parking Management Policy (to which I refer later), for parking restrictions to be introduced into these streets. This would have twin benefits. One is to facilitate maximum parking opportunities for local residents, some of whom do not have scope to provide their own on-site parking. Another benefit is to limit the need for patrons of the proposed tavern, and potentially other uses of the MAC, to traverse these areas.
7. In addition, the outdoor roof terrace will be restricted in patron numbers, close earlier than the balance of the premises, and be limited to background music. Based on my consideration of the acoustic evidence, to which I refer below, that will be capped at 80 patrons with a closing time of 10pm.
8. It is not possible for a licensee to manage patron behaviour well beyond the site's environs. No-one can guarantee that there will not be incidents associated with existing licensed premises or the proposed tavern. I accept submissions by residents that there have been incidents of inappropriate behaviour including aggressive conversations, littering and, potentially, more offensive and/or violent alcohol-fuelled behaviour.

1. It is relevant that the applicant has prepared a draft Security and Amenity Management Plan that assists to control and manage patron behaviour. While there was some criticism of the draft plan at the hearing for being too standard in its approach, it addresses the operations of the proposed tavern in a way that is reasonably expected and within the parameters of an operator's ability to control. These types of plans are typically required for taverns and like uses. The draft Security and Amenity Management Plan requires review to address matters raised through the course of this hearing and align with conditions that I ultimately determine to include in a permit.

1. The proposed tavern is seeking approval to operate until 1am which is the same time as applies to some existing licensed premises, including the Seed Café in Centreway. It is the same or earlier than licensed premises with larger patron numbers such as the Bridge Hotel (with varied hours including to 3am), Mordialloc Sporting Club/Mordy HQ (with varied hours including to 1am), and The Bay (with varied hours including to 1am), none of which are within the C1Z. The proposed hours are not unusual for a tavern. For reasons given above, and my other findings in these reasons, I do not accept submissions for the Council and by objectors that the proposed hours are unacceptable with respect to the amenity of the surrounding area.

1. The decision guidelines at clause 52.27 require me to consider the cumulative impact of any existing licensed premises and the proposed licensed premises on the amenity of the surrounding area. This is a relevant consideration as the tavern forms part of a cluster of licensed premises based on the meaning of a cluster given in the Practice Note 61, Licensed Premises: Assessing Cumulative Impact. That is with respect to five premises plus the proposed premises within a 100 metre radius. It is not a cluster with respect to a 500 metre radius, based on Ms Peterson's assessment. As I have already observed, there are existing licensed premises both within the MAC boundaries and close to the activity centre but within zones that are not part of the MAC. Two major premises essentially bookend Main Street -The Bridge Hotel to south side and Mordy HQ to the north.
2. The majority of existing licenses relate to restaurants and cafés. I accept Ms Peterson's evidence that these are a lower risk compared with a tavern or hotel. There are also packaged liquor outlets including six within a 500 metre radius and two within 100 metres. There is one on-premises licence within 100 metre radius of the subject land (Mordy Main Street) that may operate until 1am with the exception of Sundays. There is one additional on-premises licence venue within 500 metres, The Bay, that may operate until 1am. The Bridge Hotel has a general licence, triggered by its provision of packaged liquor and on-site consumption, parts of which may operate until 3am.

1. The proposed tavern is of a comparable size to some existing licensed premises (having regard to the regular activity which may be capped by a permit condition and only eight events to a capacity 450 patrons). I have no evidence of instances of queueing or existing venues operating at capacity. There is no specific or adequate evidence of existing problems with licensed premises to enable me to determine that the proposal will reinforce existing or create new impacts from the mix of uses. In addition, there are public transport options available within easy walking distance including controlled crossings of Main Street and taxi ranks in convenient locations. Mitigation measures are proposed including limitations with respect to the external terrace which would be closed earlier than the balance of the premise. Easily accessible public toilets are opposite in Centreway.

1. The proposal will bring another licensed premise into this location. It is not the largest of existing premises and will contribute to noise and people movement off-site. That this occurs within the core of the MAC is a relevant locational consideration. While I am not bound to accept the only expert evidence before me on this matter, my assessment of the proposal against the relevant provisions of the planning scheme leads me to accept expert evidence for the applicant that the clause 52.27 objectives will be met based on mitigation measures including limits on hours of operation, patron numbers for major and regular events, closure of the external terrace and the implementation of a Security and Amenity Management Plan that is prepared to the satisfaction of the responsible authority.

Is the development acceptable in heritage terms?

1. The subject land is within heritage precinct HO123, as shown on the planning scheme extract below.

1. This is a precinct-based overlay addressing Main Street, as evident in the application of the overlay to properties with frontage to that street. The statement of significance for HO123 includes the following cited by Mr Gard'ner in presenting expert evidence for the permit applicant :

The Main Street Mordialloc Precinct is of social, historical and architectural significance at a local level. The precinct is socially significant as a focus of the Mordialloc community. It is historically significant as a tangible reminder of development patterns in the area during the late nineteenth and early twentieth centuries. It retains its original relationship to the Mordialloc Railway Station and the neighbourhood remains unusually legible as an early retail/ transportation hub. The precinct is architecturally significant for the quality of its early building stock and the precinct retains much of its early fabric including early buildings, memorials, Avenue layout and landscaping.

1. As set out in Mr Gard'ner's evidence, the structures on the subject land are not specifically identified as of significance, however, inter-war buildings contribute to the valued character of the precinct through their massing, scale and form.
2. The contributory role of the existing built form on the subject land is not in dispute. There are in fact two buildings on the subject land, which are understood to have been constructed c.1920s with post-war alterations and additions to the façade and shopfront. This is most apparent in the Main Street, front, elevation where the ground floor has been combined into a single shopfront with a central door and the first floor level has been over-clad in profiled steel. It is uncertain as to the extent of the original wall and architectural detailing that sits behind this cladding.
3. Mr Gard'ner, and the Council's heritage advisor, agree that the first floor façade was either finished in face brick and/or render and had large openings in the centre. Architectural detailing is also expected to have existed. In addition, the two storey Centreway elevation had regular openings on the first floor, some of which have been covered with sheet steel. Other openings are blocked up on the ground floor.

1. Consistent with clause 15, the purpose of clause 43.01 and the objectives contained in clause 22.16 focus on the conservation and enhancement of heritage places.
2. I have considered the applicable decision guidelines in clause 43.01 with respect to demolition, works, alterations and additions. The local policy at clause 22.16 addresses buildings and works to (inter alia) heritage places, that I have considered. There is also specific policy for buildings and works to commercial heritage places including the following:

To promote sensitively designed new development to industrial and commercial heritage places that:

• Maintain and respect the unique character of significant industrial and commercial heritage places;
• Preserve the existing roof line, chimney and contributory architectural features that are essential components to the architectural character of the heritage place;
• Are articulated and massed to correspond with the prevailing building form;
• Respect the scale of the existing heritage place by graduating building form of adjacent new development in a stepped effect away from the place to minimise the visual dominance of adjacent new works;
• Do not obscure principal viewlines to existing significant signage;
• Do not negatively impact upon the significance or architectural character of the place.

1. No party disagrees with the ambition in this permit application to remove unsympathetic alterations, notably the existing large advertising signage and sheet cladding. Nor are restoration of the front façade and new windows into the Centreway elevation in dispute between the parties. The Council's heritage advisor reviewed the proposal and made a number of suggestions during the permit application process with which Mr Gard'ner concurs. This includes reinstatement of the extant façade, reinstatement of the balcony opening, and the form of windows along the Centreway elevation. The substituted plans reflect the expert evidence on these matters and other specific works components as set out in the expert evidence.[19]
2. While the Council's first ground opposing the permit application refers to the development failing to adequately address clause 21.13 Heritage, and clause 22.16, the Council has not substantiated its concerns. Rather, it is clear that efforts are being made by the proponent to restore the building in a way that will conserve and enhance its contributory values, including inserting a row of four small windows above the awning as suggested by the Council's heritage advisor.
3. I find that the proposed restoration works, including partial demolition and the removal of unsympathetic alterations, are acceptable having regard to the purpose in decision guidelines of clause 43.01 and the local policy at clause 22.16. The proposed works will make a positive contribution to the conservation and enhancement of the heritage place and to the contributory role played by the built form on the subject land.

1. An outstanding issue in terms of the achievement of the proposed restoration is the uncertainty as to what might be revealed once the cladding on the front façade is removed. It has been assumed that there will be material beneath the cladding that is original and should be reinstated and restored. However, that is not guaranteed. In addition, at the hearing I questioned the heritage witness as to whether there was any prospect of original painted "Moran and Cato" wall signage being on the side (Centreway) elevation of the building covered by a sheet of cladding. Mr Gard'ner said that could be possible but it is also unknown.
2. Over the course of the hearing, the Mr Sherman and Ms Brennan sought to prepare a permit condition that would deal with circumstances where original fabric is revealed or new works are required if such fabric is damaged or not extant. Mr Gard'ner's evidence has been particularly helpful in this regard. It is relevant to record that the revelation of extant heritage fabric could require:
   • modifications to the proposed business identification signage on the front façade having regard to the position of any important fabric;
   • modifications to the proposed business identification sign on the Centreway elevation if, for example, there is the remnant painted wall sign "Moran and Cato" as appears in images included in the expert evidence;
   • the need for such modifications to be based on the recommendations of an expert heritage architect.
3. In the specific circumstances of this case, I am persuaded to accept these matters can be addressed by permit conditions on the recommendations of a heritage architect with respect to the final sign and window forms/positions and works requiring reinstatement and/or reconstruction re-construction once the fabric beneath the cladding is revealed.

1. The design involves the inclusion of a third floor level for a dining room and exterior deck. The dining area is enclosed while the terrace is provided with a pergola. These works are set back 8 metre from the Main Street frontage. The addition (to the extent of the dining room) aligns with the point along the Centreway elevation where the original 1920s building finishes and the later c.1940s addition commences.
2. As I discuss below, some parties express concern about the position of the upper level submitting there should be a side setback to avoid an imposing form. There are also submissions relating to the materiality of the balustrade which I also refer to below.
3. Having regard to the matters in clause 43.01 and local policy, I am satisfied that the proposed addition is not an overwhelming or imposing element to the host building or within the heritage place, being a HO123.

1. I accept Mr Gard'ner's evidence that the flat roof of the new addition reflects the parapet form of the existing building. The addition will not visually dominate the heritage place nor either streetscape within the heritage place. The addition is set well back from the principal façade and adopts materials and finishes that distinguish the new from the old in a sufficiently recessive manner.
2. It is relevant that the Council's heritage advisor has indicated that the proposed addition is a suitable response in heritage terms. I find that the proposed addition is acceptable having regard to the purpose in decision guidelines of clause 43.01 and the local policy at clause 22.16.

Is the development acceptable with respect to DDO10?

1. DDO10 relates to the Mordialloc Activity Centre. Parts of the area are shown in the planning scheme extract below.

1. The design objectives in DDO10 are:
   • To reinforce the low rise coastal village form, character, streetscape and heritage of the Mordialloc Activity Centre.
   • To achieve responsive and sensitively designed development that is of a high quality architectural and urban design standard.
   • To ensure development has proper regard for the established heritage values, streetscape and development pattern in terms of building design, height, scale, and siting.
   • To preserve solar access to the foreshore, dwellings, public and private open space and pedestrian paths.
   • To protect and enhance key views, vistas and landmarks.
   • In addressing the Design objectives all development proposals must have regard to the Mordialloc Pride of the Bay: A Structure Plan for the Future of Mordialloc, 2004. [sic]
2. The proposal complies with the height requirements of DDO10.
3. Clause 3.0 (Design Standards) states that (inter alia) roof decks may be located within the building setbacks specified in Column 3 of Table 1 to the schedule, unless otherwise specified in the Table. A permit cannot be granted to construct a terrace, balcony or roof deck which is not in accordance with a requirement in the Table. The subject land is within DDO-A6 as shown below:

1. Table 1 includes the following for DDO10-A6 (which I have extracted):

1. Table 2 in DDO10 does not list the building/s at 590 Main Street as making a contribution to heritage significance. Consequently, the mandatory requirements do not apply. Nonetheless, the proposed addition is setback 8 metres from the Main Street site frontage.
2. Clause 5.0 specifically addresses roof decks and states:

• Be set back a minimum of 2 metres (unless a greater setback is prescribed in the specified design standard provisions in Column 3 of Table 1 of this Schedule) from the roof edge on all sides to minimise the visual impact on the street, coastal environs and adjoining properties
• Not include any structures or elements that exceed a height of 1.7 metres, apart from an access structure with a maximum height of 2.1 metres.

A permit can be granted to construct a roof deck which is not in accordance with these requirements. [Tribunal emphasis added]

1. Therefore, a 2 metre setback is not a mandatory requirement, contrary to assertions presented in some submissions. Both the responsible authority and applicant agree that this is discretionary in this case. Clause 43.02 sets out the matters I am required to consider in deciding whether to grant a permit under this clause including the design objectives and decision guidelines of the clause and of schedule 10. I have considered all of these fully, and highlight that among the decision guidelines in schedule 10 are:
   • The effect of the building height on the scale and character of the area.
   • Whether opportunities exist to avoid a building being visually obtrusive by the use of alternative building designs ....
   • Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.
   • The views of the Council's Heritage advisor.
   • Whether third and fourth storey articulation has been achieved.
   • Whether third and fourth storeys are visually intrusive when viewed from the street and surrounding areas.
   • Whether the proposed siting, height, design and building setbacks will be in keeping with the character of the area.
   • Whether the Roof Decks/Balcony is: [sic]
     • Designed to minimise views into secluded private open space and habitable room windows of the adjacent dwellings.
     • Designed and located to have minimal impact on the street and surrounding area. [sic]
   • Use of materials, finishes and colour.

1. The decision guidelines also make reference to the Mordialloc Activity Centre Structure Plan and guidelines for the design and siting of structures on the Victorian coast.[20]

1. As already indicated, the proposed design includes an 8 metre setback of the new third level from Main Street but no side setbacks for that new third level. The third level contains an enclosed dining area and outdoor deck oriented to the foreshore.
2. While the Council's grounds in opposition to the permit application include that the proposal fails to adequately address the objectives and decision guidelines of clause 43.02 and schedule 10, no specific concerns on this matter were pursued at the hearing on behalf of the responsible authority. Conversely, third parties oppose the lack of a 2 metre setback emphasising that the new third level will be an overbearing and unacceptable intrusion into the streetscape.
3. Having regard to the decision guidelines in DDO10, I observe that:
   • As already noted, the views of the Council's heritage advisor have been obtained and, in addition to positive conservation works, the advice is that the roof deck "is a good design response".[21]
   • Earlier in these reasons, I have concluded that the proposed works will not adversely affect the significance, character or appearance of HO123. They therefore reinforce and respect the area's heritage.
4. With respect to the other decision guidelines in DDO10, I accept Ms Jordan's evidence and submissions for the permit applicant that:
   • The overall scale of the development is consistent with the expectations created by the DDO10 provisions.
   • The proposed third level achieves adequate articulation in the context of a contemporary addition to a heritage building.
   • The third level is not visually intrusive when viewed from adjacent streets and surrounding areas, notwithstanding that it will be seen.
   • The third level is visually recessive when viewed in the Main Street corridor; there is not an intent to make a third level essentially invisible from the public realm.
   • The materials, finishes and colours distinguish the form from the solidity of the host building and are a more modest and lightweight component.

• The external deck will have high screening/balustrades for acoustic attenuation purposes, and, although they will be clear glazing, the distance to the nearest secluded private open space and habitable room windows associated with an existing dwelling is some 50 or more metres. Having regard to overlooking standards typically applied (as I discuss later), the design cannot be regarded as providing unreasonable overlooking to, or inter-viewing with, adjacent dwellings.

1. The decision guidelines in DDO10 also bring in consideration the Structure Plan. Clause 22.14 and the Structure Plan seek to ensure that new development and built form accord with the ambitions for the Mordialloc MAC including reinforcing Mordialloc's coastal village attributes, heritage features and environmental qualities. In this regard, and in addition to the findings I have made above, I consider the proposal is an acceptable response to the local policy at clause 22.14 which is part of the implementation of the Structure Plan, as well as a reference document:
   • The works will enhance interaction with the street, and passive surveillance opportunities, by providing new windows particularly along Centreway. While some parties disagree that this is a benefit, it is good urban design practice to encourage design techniques that improve passive surveillance as set out in the Activity Centre Design Guidelines and the Safer Design Guidelines cited in clause 15.
   • The roof deck is consistent with clause 22.14 that includes a policy that "Balconies and roof decks should not overlook into surrounding private open space areas, habitable room windows or cause overshadowing". As I have already indicated, the proposed development does not provide opportunities for unreasonable overlooking to existing dwellings. The proposed works will not create unreasonable overshadowing, as I briefly comment upon below.
   • The proposed development does not overshadow the public realm and will not interfere with the operation of the bus stop in Centreway as the entry to the tavern is from Main Street.
   • The development does not interfere with significant viewlines.
2. Precinct 2, Centreway Gateway, includes policies to promote the provision of shelter by "providing continuous warnings, verandas and canopies", and encourage "sidewalls of buildings at the intersection of Centreway and Main Street to open up on to Safeway". The proposed development does not accord with these policies. While no party has taken issue with this, it is appropriate that I record my view that the proposed works accord with heritage principles without canopies and awnings are acceptable. Further, there is little scope to open up onto the supermarket itself however the side elevation along Centreway improves improved passive surveillance and activation by the introduction of additional windows that accords with the heritage outcome sought for the MAC.

1. Given my conclusion that the proposal adequately responds to clauses 43.01 and 43.02, including the design objectives in DDO10 and Structure Plan outcomes, based on permit conditions, I find no reason to require further modifications to the top floor roof deck or any other parts of the building.

Would impacts on residences and land within the Mixed Use Zone and General Residential Zone be acceptable, particularly with respect to noise and overlooking?

1. Two potential issues are identified in submissions with respect to potential off-site amenity impacts on existing dwellings in residential zones. They are noise from the tavern and overlooking from the deck. [I have referred above to issues about off-site patron activity]. There is no prospect of overshadowing that would cause an issue for existing dwellings or residential areas as a consequence of the proposed third level.

1. Those opposing the permit application express concern about noise from the tavern, particularly the roof terrace, as well as from waste collection and other vehicles.
2. An acoustic report was prepared with the permit application submitted to the responsible authority. The report by Watson Moss Growcott included recommendations for the acoustic treatment of each level of the building. Recommendations are included in the substituted plans. However, some matters have been superseded by the expert evidence in this proceeding.
3. In this hearing, the permit applicant relies on a detailed assessment of potential noise impacts undertaken by Mr Leo, whose expert evidence was presented and tested in extensive cross-examination. Mr Leo's assessment is based on SEPP N-1 (State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1) and SEPP N-2 (State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2). As patron noise is not addressed in SEPP N-1 or SEPP N-2, Mr Leo's evidence also assesses patron noise.
4. The evidence considers the cumulative effective noise level of all on-site activities with respect to the eight closest residential receivers. Predicted noise is based on patron and music noise measurements at two Sporting Globe premises. It assumes background music may be played on the ground floor and the outdoor top floor dining area. It assumes that there could be live music, a DJ and live entertainment in the enclosed top floor dining area and in the first floor restaurant and function room.
5. The expert evidence indicates that specific managerial and physical controls are required to achieve compliance with the design targets including:
   • Using lightweight construction elements to achieve the minimum sound installation outlined in Table 10 of the evidence statement.
   • Limiting music noise levels to those outlined in Table 12 of the statement of evidence.
   • Constructing a 2.5 metre high barrier to the south-western end of the rooftop deck area.
   • Constructing a 2.3 metre high barrier to the north-western end of the rooftop deck area.
   • Providing acoustic absorption to the inner face of both barriers to the rooftop deck area and to the façade of the facilities area on the rooftop.
   • Closing the openable windows along the south-western façade of the enclosed rooftop bar after 10pm.
6. Mr Leo concurs with most other recommendations in the original acoustic assessment with two minor exceptions as explained at the hearing.
7. The permit applicant accepts all of Mr Leo's recommendations and management measures and submits all are appropriate to address by way of permit conditions. It further submits that the assessment is conservative and demonstrates that the proposal will not give rise to unreasonable noise and will comply with reasonable noise expectations.
8. I accept the conclusions reached and the recommended management and operational measures with one exception. The evidence is that the predicted noise levels are well below the design targets in the day and evening. But that is not so for the predicted noise level for patron noise at night. For three residential receivers, the predicted noise level is 1dBLAeq above the design target for the night-time period. That is, after 10pm. Mr Leo's evidence is that the one decibel difference would not be perceptible.
9. A number of parties are concerned that the design target is exceeded. I agree. Notwithstanding that the assessment may be considered to have a level of conservatism, it predicts noise emissions that are above the design target at three residential properties within residential zones. I note that in response to questions about this matter, Mr Leo suggested there could be additional height to the acoustic screens. However, I consider the alternative I asked him about, to require closure of the outdoor terrace by 10pm, is necessary. I also consider it is appropriate to include a secondary consent provision where a time extension is allowed by the responsible authority, presumably with evidence in support of any later operation.
10. Based on my questions at the hearing, Mr Leo also agrees with the provision of an expert commissioning report within a short period after the commencement of the tavern use to ensure compliance is achieved. Compliance testing can be required upon commencement of the operation so that any required rectification or remedial measures are able to be directed. That commissioning acoustic report could offer one pathway for the consideration of any later operating time associated with the external deck - a facility which I expect will be used by smokers.

1. Subject to permit conditions, I am satisfied that noise impacts associated with the premises can be contained to an acceptable level based on reasonable expectations set by State standards referred to in clause 13.04 and the assessment of patron noise.

1. Mr Dowling and some other parties express concern about the ability for patrons of the external roof deck to see into residential properties including the rear of Mr Dowling's dwelling. Concerns are compounded by the use of clear acoustic glazing and the number of people that might use the external deck area.
2. Ms Jordan addresses this matter in her evidence. The closest residential properties are a substantial distance from the subject land in the context of reasonable expectations of overlooking set by the planning scheme. By way of example, in multi-unit residential applications, a distance of 9 metres typically triggers the need for screening to limit overlooking.[22] While the ability to see people does not stop at a distance of 9 metres, having regard to the distance between the deck and existing dwellings I find no reason to conclude overlooking potential is unacceptable or that the glazed acoustic screening should be frosted or modified to another solid form.

1. The proposal provides no on-site car parking spaces. Based on the rate for a tavern contained in clause 52.06-3, 180 spaces would be required. This is at a rate of 0.4 spaces per patron. This is the agreed calculation between the three expert witnesses called to address this aspect of the permit application by the Council (who called Ms Austin), Woolworth (who called Mr Kiriakidis) and the applicant (who called Ms Dunstan).
2. That there is a standard requirement under the scheme of 180 spaces does not mean this quantum must be provided, as suggested in some submissions. Similarly, while clause 22.14 encourages the development of additional parking areas, this does not mean that a reduction in parking is unacceptable. As I address below, clause 52.06-6 sets out matters to be considered when a permit application is made to reduce parking.
3. Plan Melbourne, State and local policy all strongly focus on consolidating activities into activity centres to, among a range of outcomes, reduce the number of private motor trips. They encourage a modal shift and encourage opportunities for non-car based travel.[23]

1. State policies also encourage the efficient use of parking, the protection of residential precincts from the effects of road congestion created by on-street parking, and seek to ensure an adequate supply of car parking and associated facilities including taxi ranks.[24]
2. Clause 21.12 identifies issues relating to through traffic movement in activity centres. Clause 21.06 includes strategies to improve car parking and vehicle traffic management and opportunities to strengthen the role of public transport, walking and cycling as a means of accessing centres.
3. The Structure Plan, which is given effect through clause 22.14, is consistent with these themes. A number of parking-based projects are identified within the adopted Structure Plan, some of which have proceeded - for example, the acquisition of land and the construction of a 22 space car park on the north-west side of Centreway. In addition, streetscape works and associated measures have been installed to facilitate pedestrian access through and to the MAC via Centreway and over Main Street. This includes pedestrian-operated signals close to Centreway. More car parking works are foreshadowed in the reference document, including multi-deck parking on existing land. This project is not under current active consideration by Council based on submissions presented at the hearing. As noted above, clause 22.14 includes a policy for Precinct 2 addressing additional parking. However, this policy does not expressly refer to parking provision in new development, unlike, for example, policy for Precinct 7.
4. I was also referred to the following documents:
   • Retail/Commercial Development Strategy, Charter Keck Kramer, prepared for the Council in 2006. This is a reference document in clause 21.06. It is a background document in so far as it has informed the local policy. It does not carry the weight of the planning scheme.[25]
   • Parking Management Policy, 2016 for the Kingston City Council. This is an adopted Council policy.[26] The purpose of the document is to provide the Council with a framework to manage parking across the municipality for the benefit of the whole community and road users. It provides guidance for the introduction of new parking restrictions or changes to existing parking for road safety reasons, where parking is in high demand or where traffic congestion has increased.[27]

Among the matters referred to at the hearing from the Parking Management Policy are:[28]

• Parking management and restrictions are to be designed to provide the best and highest use of the parking resources within the municipality.
• That, within the commercial areas of activity centres, parking management will focus on increasing parking opportunities for customers and visitors, with the occupancy rate to not exceed 95%. The policy continues that the balance between short and medium term parking restrictions should be reviewed when this limit is reached.
• Residential amenity is to be protected while providing equitable access to on-street parking.
• Parking restrictions are not usually required unless triggered by demand from a school, commercial area, industrial area or sporting facility etc. Exceptions may include where demand is greater than supply due to the number of vehicles regularly parked in the street. The trigger point is greater than 85% occupation.

1. I have provided this context for my consideration of the application for a reduction in parking because it assists to understand that the question of reduction parking is influenced not only by the specific locational factors of the subject land and the characteristics of the proposed use but also by strategic outcomes for the MAC. A broad strategic intention for a centre-based approach to parking at State level is also applied in the Parking Management Policy, such as when it makes reference to occupancy rates in the activity centre. From the anecdotal information provided over the course of the hearing, and expert traffic evidence, limited action appears to have been taken with respect to parking management and the introduction of parking restrictions other than, by way of example, the introduction of half-hour parking following the opening of the Main Street café that was granted a parking reduction. Anecdotally, submissions indicate that the change to the shorter parking restrictions benefited traders.
2. Turning now to the matters for consideration through clause 52.06-6. In assessing whether it is appropriate to allow fewer or no car spaces to be provided than the statutory rate and likely to be generated by the proposed tavern use, I must consider a Car Parking Demand Assessment, in this case prepared by Ratio at the permit application stage, and the following:
   • Any relevant local planning policy or incorporated plan.
   • The availability of alternative car parking in the locality of the land, including:
     • Efficiencies gained from the consolidation of shared car parking spaces.
     • Public car parks intended to serve the land.
     • On street parking in non residential zones.

• Streets in residential zones specifically managed for non-residential parking.
  • On street parking in residential zones in the locality of the land that is intended to be for residential use.
  • The practicality of providing car parking on the site, particularly for lots of less than 300 square metres.
  • Any adverse economic impact a shortfall of parking may have on the economic viability of any nearby activity centre.
  • The future growth and development of any nearby activity centre.
  • Any car parking deficiency associated with the existing use of the land.
  • Any credit that should be allowed for car parking spaces provided on common land or by a Special Charge Scheme or cash-in-lieu payment.
  • Local traffic management in the locality of the land.
  • The impact of fewer car parking spaces on local amenity, including pedestrian amenity and the amenity of nearby residential areas.
  • The need to create safe, functional and attractive parking areas.
  • Access to or provision of alternative transport modes to and from the land.
  • The equity of reducing the car parking requirement having regard to any historic contributions by existing businesses.
  • The character of the surrounding area and whether reducing the car parking provision would result in a quality/positive urban design outcome.
  • Any other matter specified in a schedule to the Parking Overlay.
  • Any other relevant consideration.

1. I have referred above to the three expert witnesses called to address the proposed reduction of parking. There are some similarities, commonalities, and differences in their assessments which I have assessed. I have also been assisted by the local knowledge and information provided by residents as well as their experiences as described through submissions, photographs and videos. My site visits have confirmed many of the observations made by the parties and witnesses.
2. No Parking Overlay applies.

1. I do not describe all of the parking supply and its associated restrictions. The location of existing off-street and on-street parking facilities is described in the three statements of expert evidence.

1. There are few evening and night time restrictions on parking, including in residential areas close to the MAC. This is despite the fact that one can expect foreshore overflow. All of the traffic experts express their surprise at the lack of restrictions to protect against overflow into the residential areas and felt this would be an important matter for the Council to address.
2. Of particular relevance in this proceeding is the location of a large car park immediately adjacent to the subject land. This is commonly referred to as the "Woolworths car park" and I also identify it as the "Plaza car park". I understand from Woolworths' submission that although the car park is signed as being available for public parking with a two hour limit (at all times) this is not enforced. Woolworths is one tenant in the Plaza complex. There is also an undercroft parking area that appears to be substantially allocated to specific users. I understand that the supermarket currently closes at 11pm. I was not referred to any planning permit condition, legal or section 173 agreement, or other documentation relevant to the way in which the car spaces are signed or managed.

1. Parking demand is determined by the number of patrons and the rate applied per patron for parking. Parking demands for this tavern, as is common for taverns generally, will not always be at the upper limit of requested patron numbers. There are different patterns over the course of a day, days of the week and times of the year. Data from other Sporting Globe premises presented in Ms Dunstan's evidence demonstrates this. In the case of the proposed tavern, there are peaks associated with major sporting events which are promoted and typically ticketed.
2. Ms Dunstan refers to a typical upper patron number of 300 (with a parking demand for 75 spaces), up to 350 patrons another 12 times per year for sports events and functions (with a demand for 88 spaces) and up to 450 patrons eight times per annum with major events such as the AFL Grand Final and NFL Superbowl (with a demand for 113 spaces).[29] This is the existing profile of other Sporting Globe venues - Ms Dunstan's evidence includes detailed data from other Sporting Globe venues across times of day and days of week as well as sales data across a year from Sporting Globe venues in Moonee Ponds and Richmond. Mr Kiriakidis accepts this profile in oral evidence and agrees with the expected duration of stay.
3. Ms Dunstan's applied parking rate per patron is higher than that of Ms Austin. Mr Kiriakidis and Ms Dunstan apply a similar rate:
   • Ms Austin applies 0.16 spaces per patron.
   • Mr Kiriakidis applies 0.31 spaces per patron at the weekend and 0.24 spaces per patron on weekdays.
   • Ms Dunstan applies 0.3 spaces per patron during the day and 0.25 spaces per patron in the evening and for functions.

1. Applying the lower rates suggested by Ms Austin to the patron assumptions agreed by Mr Kiriakidis and Ms Dunstan leads to a lower demand than predicted by Ms Dunstan.
2. Mr Sherman submits the analysis is based on a sporting-themed tavern and another tavern could operate differently. I agree but I also accept Ms Dunstan's evidence as to the typical manner in which parking is associated with taverns. It is also relevant on this point that Mr Kiriakidis' concerns focus on the impact on the turnover of car parking in the Woolworths car park which would be an issue for a tavern without the same sporting-based theme.
3. Another factor in demand is the likely duration of stay and the convenience of spaces. Patrons attending the tavern would typically be prepared to walk further than those undertaking a weekly shopping trip to the supermarket. There is general agreement with this proposition and the proposition that patrons would, nonetheless, seek parking as close to their destination as a preference and this includes the Woolworths car park.
4. A concern is raised by Mr Cahir that the analyses do not take into account staff parking and that staff will take up spaces otherwise needed for customers and other retail premises. All experts agree that their assessments take into account staff parking demands.
5. The rates also need to take account of existing parking deficiencies, as I refer to below. Taking the rates calculated by Ms Dunstan, I find that the requested car parking reduction for most occasions would be up to 65 spaces (75 less a 'credit' of 10). For up to 12 occasions the reduction would be up to 78 spaces (88 less a 'credit' of 10). For the largest, capped, events with up to 450 patrons up to eight times a year, the reduction would be just over 100 (113 less a 'credit' of 10). Mr Kiriakidis' rates are not substantially different and, as noted above, when applying Ms Austin's rates there would be significantly lower parking demand figures.

1. Survey material is available through the Ratio Car Parking Demand Assessment, surveys by all traffic witnesses, and material presented by Mr Earl. These are for varying times and dates in August 2016, January 2017, February 2017 and March 2017. The survey areas are not identical and are differently described but the results demonstrate some patterns:
   • The August parking occupancy rates are lower than the January, February and March survey data. The highest rates are in February on Saturdays which coincides with festival activity.
   • Although the MAC has high levels of occupancy during parts of the day and late afternoon/early evening, the demands of the tavern are not contemporaneous with those times, other than a Friday and Saturday evening when there is an overlap for around one to two hours across 7 to 9pm.
   • Woolworths carpark has a high level of occupancy at many times including for part of the peak times for the tavern. My observations on a balmy autumn Friday evening from 6.30pm to 8pm are consistent with the evidence as to turnover within the Woolworths car park and as to the availability of other spaces including in the Council car park, along Beach Road and in the foreshore car park. The Woolworths car park serves the public and not just its customers - I observed many people going to other premises rather than the supermarket consistent with the expert evidence.
2. All traffic witnesses opined about the design day or period that should be applied, all agreeing that the maximum peaks are not the design standard. They agree that there are temporal variations for the MAC generally and the proposed land use, seasonal variations for the MAC, and peaks associated with eight major event days to be targeted by the proposed sporting-themed tavern. Mr Kiriakidis and Ms Dunstan agree that the critical issue taking into account existing MAC and supermarket operations are Friday and Saturday evenings, although this is not agreed by Ms Austin. In the Mordialloc MAC, there are festivals on Saturdays in February that were said to represent a peak and are reflected in the surveys presented in evidence and commented upon by all witnesses.
3. I agree that high parking demands occur over January and are high again in February. I expect that there are other busy times nearing the same high occupancy levels into December for example and as occurs in foreshore locations on warm and hot evenings. The surveys show the demands are lower in August. Weekdays are busy but daytime use of the tavern is not typically significant compared with the higher evening demands and events. Some parties referred to childrens' parties and questioned their impact but functions are already taken into account in the expert analyses and temporal patterns considered in evidence.
4. With respect to the impact of the proposed tavern on the available supply, the assessments also apply different approaches to the applicable radius (for example, noting Ms Austin's primary parking area compared with Ms Dunstan's approximate 350 metre radius). They take account of time restrictions for on-street parking spaces that apply during the day and cease into the late afternoon as well as the time restriction for the Woolworths car park as they agree that this car park appears and is signed as a public car park. They do not include private car parks, such as the dental surgery to the north of the Council's Centreway car park.
5. The material is, in my view, consistent even though the expert opinions are not. There is sufficient available parking within a radius of some 350 metres from the subject land to accommodate patrons including the foreshore reserve and Beach Road (accessed via Centreway). Exceptions are in February on a Saturday evening coinciding with festival activity. All experts agree that the suitable design dates are not based on limited but popular public event days such as these when parking is saturated.

1. Based on the duration of stay data in Ms Dunstan's evidence, two hour spaces in the Woolworths car park will not suit many patrons attending functions and sporting events, as the events have a longer duration, but that also does not mean that people will not park there because the time limit is not enforced. Further, that there is a high occupancy associated with parking around the subject land is reasonably be expected for a core location within the MAC. Importantly to my findings, given the already high occupancy of the Woolworths car park, the prospect of large numbers of tavern patrons finding parking there might be limited. I appreciate Mr Kiriakidis' concern that once finding a space patrons will stay preventing supermarket customers from parking. But that is already the case and is essentially facilitated by the two hour regime that is offered in the car park.
2. It is further relevant that some of the largest events up to 450 patrons do not occur over summer (such as the AFL grand final) while some international events such as the NFL Superbowl are not on a weekend. These would not coincide with the busiest weekend evening times in the Mordialloc MAC.

1. Contrary to some submissions, I do not consider that there are realistic prospects to provide any sizeable amount of on-site parking while retaining the heritage contribution of the existing built form.

Impact on the viability of the activity centre and future growth

1. A number of parties submit that the proposed lack of on-site parking will result in shoppers being forced to shop elsewhere, thereby having an economic impact on other traders. Woolworths contends the displacement of parking will affect the supermarket, which is an anchor premise for weekly shopping needs, and the MAC's viability and growth.
2. Traffic experts made various comments on the decision guideline referring to viability and were cross-examined as to the extent to which opinions were being expressed that could be said to be beyond the witnesses' expertise. I have considered the evidence and responses in cross-examination. Some perspective to this matter is brought through PN22 which makes the point that "The land use mix in an activity centre should arise from a combination of strategic planning and economic forces at work in the centre".[30] It continues: "Car parking issues have a part to play, but should not dominate when assessing an application for use and development". [31] It is fair to say that parking issues have been a dominant theme, albeit not the only theme in objections to the proposed tavern.
3. As indicated, Mr Kiriakidis' main concern about the parking reduction is its impact on parking turnover, or "churn", in the Woolworths supermarket. Ms Davidov submits the proposal will displace car parking demand as the peak for the tavern would align with the peak for the supermarket.

1. There is insufficient evidence or data for me to determine that the supermarket peaks at 7pm on a Saturday (or Friday) as submitted but, even if I accept this is the case, much of the largest parking demand for the tavern will be later as demonstrated by data in Ms Dunstan's evidence. There may be some alignment or overlap but this is confined. Ms Davidov's submission referring to some proportional sales results for the supermarket does not persuade me to reach an alternative view.
2. Even if parking is displaced, there is no evidence to enable a conclusion to be reached that this would be adverse to the "economic performance of the activity centre" and "impact on the ability of the Centre to facilitate further growth in land use" being arguments advanced in Woolworths' submission. Mr Kiriakidis' evidence statement refers to alternative uses that would have less impact and have a temporal profile that would be more complimentary- that may be so, but that is not what I must determine. Moreover, I am unable to accept his opinion that "any impact on the operation of the supermarket through the displacement of customer parking opportunities (as a result of the proposed tavern), would be disadvantageous to the supermarket and the Activity Centre as a whole".[32] [My emphasis added].
3. Ms Davidov emphasises local policy about the role of the MAC to cater for weekly needs, and the anchor role played by the supermarket in supporting this strategic outcome. I accept that in principle. But no economic evidence and insufficient data have been presented by Woolworths to give a demonstrable basis to its propositions about viability and economic impacts. In addition, there is no economic assessment before me to conclude that a reduction in parking that is the subject of this application would have demonstrable or significant economic effects as relevant to the application of section 60(1)(f) of the Planning and Environment Act 1987.
4. It is self-evident that the proposed tavern will add to competition for car parking spaces in a central part in the MAC. That outcome is not unique to the proposed tavern - customers visiting another evening-focussed commercial use on the subject land would also be expected to seek parking close to their destination. I have been persuaded that there is available supply as is relevant to the demands generated by the proposal and spare capacity as is relevant to the future growth of the MAC at typical operating conditions and even in seasons and at times when there is already significant activity in the MAC. Moreover, there is scope for the implementation of measures to manage the supply - for example, noting the lack of evening parking restrictions in the MAC today.

Any car parking deficiency associated with the existing use of the land

1. The expert witnesses agree that there is a parking deficiency associated with the existing use of the land. However, they derive different figures based on different floor areas they have applied, and particularly whether the first floor storage area is included.

1. The difference is relatively small - in the order of several spaces (8 vs 12 or 14). I have adopted a mid-figure of 10 and have allowed for this in my assessment and findings as indicated above. Allowing the larger figure would reduce the predicted car parking reduction.

Credit for car parking spaces provided on common land or by a Special Charge Scheme or cash-in-lieu payment

1. This decision guideline does not apply in this case.

Equity of reducing the car parking requirement having regard to any historic contributions by existing businesses

1. A number of parties, such as Mr Reid, Mr Cahir and Mr Dowling, express concern about the lack of on-site parking in terms of equity. They refer to other licensed premises, and other retail premises, that provide on-site parking and oppose the concept of this new player not providing any. Mr Dowling refers to residents who have provided their own parking.
2. PN22 explains that it is important to assess any proposal to reduce car parking provision in the context of any earlier car parking arrangements for the locality. It states that fairness is a key consideration in deciding whether to reduce the number of car parking spaces. It is unfair:
   • for an historic shortfall in car parking to be rectified by the applicant
   • to not require car parking from an applicant who will use car parking spaces provided or paid for by other businesses in an area.
3. As I have indicated, I am satisfied that parking for the proposed land use does not rely on privately owned car parks. In practice, there will be use of the Woolworths car park because that is effectively operating as a public car park. The outcome of the proposed reduction in parking for the tavern is acceptable if the Woolworths parking area was to become unavailable through management measures or physical measures introduced by the land owner.

Local traffic management in the locality of the land and impacts on amenity

1. Despite the strategic approach to local parking and traffic reflected in the Parking Management Policy and Structure Plan, all expert traffic witnesses agree that some actions from the Structure Plan have been implemented but there has been limited local area management particularly to protect residential areas and to manage parking restrictions proactively as development occurs. The example of changes post the opening of the Main Street café cited earlier demonstrates how the public parking resource can be managed to the benefit of centre users.
2. There is no doubt that there is scope for more traffic and parking management to be undertaken in accordance with the Parking Management Policy. This is a matter for the Council.

1. Having said that, it is important to emphasise that the acceptability of a parking reduction is not contingent on such measures being implemented either in terms of parking supply and availability. Rather, such measures would be possible to the benefit of the MAC and residents in close proximity to the MAC who are exposed to traffic infiltration in several narrow streets already at the busiest times.
2. I have not been presented with material that demonstrates to me that the Plaza or Woolworths' car park cannot also be managed in a way that more particularly benefits shoppers, such as by some shorter time restrictions and enforcement. Again, it is important to emphasise my conclusion as to the acceptability of a parking reduction is not contingent on such measures being enacted.
3. There is no indication that there would be adverse impacts on pedestrian amenity or safety based on the expert evidence. Centreway is being developed as an important pedestrian link and the proposal will not hinder or undermine that outcome.

Access to or provision of alternative transport modes

1. The subject land is well placed with respect to access to public transport, safe bicycle routes, and taxi ranks. The railway station is proximate, albeit on the east side of the main road. Safe access to the subject land is available on a direct route via pedestrian crossings and signalised crossings to facilitate movement across Main Street/Nepean Highway and service roads. There is a taxi rank near the station as well as a closer taxi rank to the north of Centreway on the west side of Main Street. Some patrons may choose to walk. There is a bus stop in Centreway and access to bicycle paths. There are options should patrons arrive by one mode (such as a train or bus) and depart by an alternative mode (such as a taxi or similar service).

1. Contrary to some submissions arguing the ability to provide on-site parking, modifications to the extant built form on the subject land would be negative in heritage and urban design terms. The proposed built form outcome accords with heritage principles and the objectives in DDO10 as I have already found. Demolition of parts of the building's façades to provide parking would be a negative outcome and there would be a significant loss of building area to allow for the necessary swept paths from the narrow 'road' shown on title to the rear of the land (which currently forms part of an access into the Plaza/Woolworths car park). Provision of crossovers to either street frontage would not be acceptable in heritage or urban design terms and would not be achievable without significant adverse and detrimental outcomes for the public realm.

1. I refer to four other matters that are addressed in submissions and evidence.

1. First, as alluded to above, while there has been much focus on the proposed sporting-theme of the tavern and the franchise model in this permit application, I accept submissions that the permit being sought is for a tavern and another tavern could operate differently. I have taken this into account and have also been mindful of the traffic evidence as to the typical manner in which parking associated with taverns occurs. I refer to the question of a 'personal permit' below but record at this point that the traffic evidence is a permit limitation by patron numbers will address parking considerations.
2. Second, there is no contribution scheme in place to build a fund of parking contributions and thereby augment the public parking resource. This applicant has no scheme to contribute to.
3. Third, it is relevant that the assessment by Council's officers accepted the requested parking reduction. The Council is not bound to accept an officer assessment and presented expert evidence in support of its position. However, this is another professional assessment that I have considered.
4. Fourth, Ms Dunstan refers to the Column B rate in the Table to clause 52.06-5 as a relevant matter. This part of the Table applies when a Parking Overlay operates and applies a floor area rate rather than a rate per patron. As there is no Parking Overlay affecting the subject land and environs, it is common ground that column A applies - as is the basis of my assessment and consideration. If the Parking Overlay did apply, based on the increase in floor area, the proposed tavern use would be required to provide 10 spaces rather than 180 as is the statutory rate in the current case. Kingston has not implemented this approach but it illustrates that often parking in activity centres is approached in a manner where parking is but one factor and is balanced with other considerations, such as facilitating active retail frontages and the efficient use of land, encouraging a modal shift and shared trips, and protecting heritage building fabric.

Other Tribunal decisions for parking reductions in the Mordialloc MAC

1. There is a concern in some submissions that parking waivers granted in other cases involving uses in the Mordialloc MAC are mistakes that should not be repeated. Several decisions to which I have been referred make clear the basis upon which reductions were allowed and I note the following:
   • Zulal[33] - addressed an application for a reduction of six car spaces for The Bay hotel wherein the Tribunal commented on the matter of peak/seasonal parking:

Mr Larkins submitted that the loss of the 6 on site car spaces could be absorbed in the existing public car park within the surrounding area. Through evidence by Mr DeYoung, it was put to me that it is appropriate to waive the 6 car spaces and there is adequate existing off site car parking to cater for the 6 car spaces in the 85th percentile of time throughout the year.

In evidence, Mr DeYoung submitted that in providing car parking you do not cater for the 100th percentile or the peak times of the year. That is you do not provide enough car parking for Christmas time at Chadstone. In this case, you do not provide enough car parking for a sunny 40 degree day where the number of beach goers is 'not the norm' because for 85 percent of the time, there would be too much parking.

• Bjbac[34] - the Tribunal approved a 75 seat extension to an existing café without additional parking. The centre-based approach was applied in combination with the relatively low parking requirement (18 spaces were required) and the ready availability of existing parking spaces. The Tribunal said:

The Council's case was not put on the basis of the need to take a 'centre- based' approach to parking. It should have been. The Tribunal has consistently endorsed the principle that, in higher order activity centres, this approach should be taken...

Under a centre-based approach, development of individual sites in a centre should not be constrained by an inability to provide on site parking. The inefficiencies, disincentives and inequities associated with not granting waivers or reductions (and requiring on site parking or cash in lieu payments) have long been recognised...

• 530 Main Street[35] - addressed a proposal for an Aldi supermarket with basement parking but requiring some reduction in parking. This reduction was granted.

1. Consistent with my earlier findings particularly with respect to the strategic/policy setting, these decisions relating to parking reductions in the Mordialloc MAC give effect to policy expectations as to how activity centres will change over time with their consolidation and increased activity, including entertainment and leisure land uses.

1. I recall the comments of the Tribunal in Toal which are apposite in the current case even though Member Keaney was considering a different proposal in a different location:[36]

Whether that shortfall is reasonable or not brings into sharp relief the 'balance' that so often has to be applied to a planning assessment. On the one hand, the evolution of this former strip shopping centre into a vibrant and successful activity centre which accommodates convenience shopping and local dining is to be celebrated. On the other hand, that success has been so apparent that nearby residents are experiencing a 'different' neighbourhood to that which they knew even a decade ago. Increased traffic and ever present car parking are a constant reminder of that evolution.

1. After careful consideration of the extensive information and evidence, I am satisfied that the reduction of car parking sought for the proposed tavern is acceptable. There will be increased competition for car spaces. But, as relevant to the proposed tavern use, there is sufficient car parking within the wider area (with or without the Plaza/Woolworths car park) to accommodate patrons and without using a disproportionate share that would prevent other new land uses in the MAC. Patron limitations by permit conditions are appropriate and are not contested by the applicant.
2. Ultimately, if there are concerns by the Plaza/landlord with respect to the use of its car spaces by people not attending businesses within the Plaza (including the supermarket), it is open for the land owner to enforce the existing controls and/or place stricter limits on use of some or all of the car spaces at certain times. There is also scope for an enhanced parking management regime to be pursued by the Council.

Are arrangements for waste collection, deliveries and loading acceptable?

1. On-street loading is proposed because there is no opportunity to provide on-site loading and waste collection while retaining the existing building envelope. The narrow road to which the subject land has access as part of its title to the rear is not appropriate given its size and the fact that it now operates as part of an access point to the Plaza/Woolworths car park.
2. A number of parties oppose the waiver of a loading bay. They refer to the site's context where there is an interaction between cars, buses, cyclists and pedestrians. To not provide loading and unloading within the premises is, they submit, unacceptable because off-site loading will add to congestion, give rise to safety issues, and could cause loading to occur in the adjacent off-street car park. Woolworths is concerned that loading could occur in the supermarket car park.
3. As explained in expert evidence by Ms Dunstan, there are opportunities for loading and waste collection to be undertaken safely and appropriately. Available areas are adequate to accommodate loading, deliveries and waste collection. Moreover, management plans required by conditions can address these matters to the responsible authority's satisfaction. These include a Waste Management Plan and a Delivery Management Plan that are not opposed by the applicant. In addition, I will include a permit condition that requires no loading, deliveries and waste collection on private property adjacent to the subject land. On this basis, a waiver of the requirement for a loading bay is acceptable and I am satisfied that appropriate arrangements can be made for waste collection and deliveries.

1. The proposal removes a number of large signs from the existing building and proposes a new panel sign with internally illuminated lettering on the main street façade.

1. On the Centreway façade, a smaller internally illuminated sign with a logo and lettering is proposed be fixed to the building façade.
2. On the rear façade, a non-illuminated logo and lettering fixed to the building façade is proposed.
3. I have commented on heritage considerations earlier and that some modifications to the signs may be required dependent on the heritage fabric revealed. No party takes issue with the signage proposed per se. I find it is acceptable under the provisions of clause 52.05 as well as clause 43.01 and local policies at clauses 22.14, 22.15 and 22.16.

1. The proposal proposes four bicycle parking spaces, requiring a reduction from the requirements of clause 52.34 where five spaces are required. A reduction in bicycle parking is not opposed by the responsible authority. I note this aspect of the permit application is opposed by a number of respondents in this proceeding, however, there are no third-party rights with respect to a permit application under clause 52.34.
2. The applicant has offered to provide two bicycle rails (four spaces) within the public realm adjacent to the subject land as well as the secured spaces for staff within the premises. I find that the contribution of two bicycle rails in the public realm is desirable, with potential benefits to other users of the MAC. They will supplement existing bicycle rails along the site's frontage to Centreway. On this basis, a reduction in on-site bicycle provision is acceptable under clause 52.34.

1. Several submissions refer to the prospect of increased traffic, including dangers to pedestrians, as another reason to refuse a permit. In addition, there is a submission that the applicant should fund investigations for new traffic control infrastructure.
2. Notwithstanding a focus in policy on encouraging a modal shift, there will be increased traffic associated with the development of an activity centre such as the Mordialloc MAC. None of the expert traffic witnesses have raised concerns about pedestrian safety or the operation of intersections. I see no warrant to justify a permit condition linking the proposed development to future traffic control measures.[37]
3. Another concern is the additional vehicle emissions arising from increased traffic. Increased pollution because more cars would be in the area is not a reason that should cause this proposal to fail. Vehicle emissions are addressed through other legislation. A modal shift is encouraged for reasons including better sustainability and environmental outcomes.

Visibility of television screens in the roof deck area

1. The plans do not show television screens in the external roof terrace however, consistent with the balance of the operation, screens are intended. A concern about the visibility of screens beyond the site has been raised, although I note from my evening site visit that I could see television screens in the upper floors of private dwellings as I travelled around the local area.
2. The appropriate size of screens was commented upon in the context of permit conditions. I will not impose a specific limit but will require the details to be provided to the satisfaction of the responsible authority.

1. Mr Reid originally expressed concern about potential overshadowing to his retail premises, but withdrew this ground at the hearing.
2. The addition to the existing building will not give rise to unreasonable shadowing impacts of other properties or the public realm. The extent of additional built form is reasonably contemplated by DDO10.

1. Mrs Earl is one of a number of parties to express concern about the inclusion of a TAB machine and on-line betting. Reference is made to the promotion and availability of on-line gambling and community concerns about the long-term consequences of gambling. A significant amount of information was presented by Mrs Earl on this matter.
2. The layout of the proposed tavern includes a 'TAB' comprising an electronic betting machine/s. This is an ancillary element. A permit trigger does not apply to this part of the proposal - clause 52.28 addresses gaming machines. Gaming and gaming machines are defined terms under clause 72 of the scheme. The proposed machine/s does not meet that definition.[38]
3. For similar reasons as addressed above with respect to alcohol consumption, it is not the role of this proceeding to explore community concerns with on-line betting, gambling and gaming.

1. Concerns are raised about the prospect of littering as well as bottles and glasses being thrown from the roof terrace. The height of the balustrade required for acoustic attenuation purposes will limit the prospect of items being discarded from the terrace. The draft Security and Amenity Management Plan expressly addresses the behaviour of patrons within the premises and on departing the premises. Litter/liquor-related products discarded near the premises are addressed in the draft Security and Amenity Management Plan.

1. Mrs Earl suggests an archaeological assessment should be undertaken as part of the development. Mr Gard'ner's evidence is that the relatively low contribution made by the site to the heritage precinct does not warrant a permit condition requiring such an assessment. I accept that evidence.

1. Mrs Earl suggests a plaque or other recognition of the heritage value of the building should be required. Mr Gard'ner's evidence is that such information may be able to be provided in various ways within the premises or through its operation, such as historical information contained on menus. He does not support a plaque, per se, as this is better undertaken as part of a broader program involving other heritage buildings within the precinct. Again, I accept that evidence. The venue may choose to recognise the heritage values of the building in some way within the premises but I will not include a condition that requires an external information board, plaque or similar recognition.

1. These reasons have addressed the many concerns and issues presented to the Tribunal through submissions and evidence. As previously stated, clause 10.04 of the planning scheme requires the decision-maker to integrate the range of relevant policies and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
2. Multiple objectives must be balanced in this permit application, particularly with respect to the heritage values of the building, the encouragement of entertainment uses in the Mordialloc MAC, potential impacts on amenity and parking supply. I find that:
   • The proposal has positive and acceptable outcomes in terms of the use and development of the subject land based on the relevant considerations in the planning scheme and specifically the location of the subject land in the Mordialloc Major Activity Centre;
   • There are not demonstrated or significant economic or social impacts, or cumulative effects, of the proposed tavern in this location that weigh against a permit;
   • There is sufficient parking in the Mordialloc Major Activity Centre to cater for patrons to a tavern without using a disproportionate amount of the available supply, albeit there will be increased competition for parking in the central area of the activity centre;
   • Where there are potential unacceptable impacts, such as noise emissions, and the need for specific operational management regimes, I am persuaded that impacts can be managed and mitigated to an acceptable level through permit conditions.

1. Consequently, I have determined to grant a permit subject to conditions consistent with my findings. These conditions are contained in Appendix A.

1. I have considered the detailed submissions presented by the parties with respect to potential permit conditions. I do not recite all of the matters raised, or all the ideas offered, but record the following that accord with my findings:
   • I will accept the Council's and applicant's agreement as to an approach to address the revelation (or otherwise) of heritage fabric once the cladding is removed from the building's façade/s. I prefer the Council's proposed condition on this matter with some minor modifications.
   • I will not require a 2 metre setback to the roof deck because the design and built form outcomes meet the design objectives of DDO10.
   • I will require a new acoustic report that addresses the original acoustic report by Watson Moss Growcott and Mr Leo's statement of evidence. I will require that report to be undertaken before the use and development starts because works may require plan changes and/or additional plan notations.
   • I will require the external roof terrace to be closed by 10pm but will include a secondary consent provision that could allow later operation with the responsible authority's approval.
   • I will require a commissioning report with respect to acoustic performance.
   • I will not replace the clear acoustic glazing with an alternative acoustic treatment at the upper deck.
   • I will require new acoustic glazed windows to be positioned on the advice of a heritage architect consistent with Mr Gard'ner's oral evidence at the hearing.
   • I will not include a condition personalising the permit to the Sporting Globe franchise or lease for the purposes of car parking. The Security and Amenity Management Plan will address the Sporting Globe's operational regime. I will not refer to the version of the Security and Amenity Management Plan tabled on 4 April 2017. The Plan has not been reviewed by the Council and it also requires updating to include, inter alia, reference to the amended acoustic report and limits imposed by conditions on this permit.

• Partial demolition of an existing building, use the land for the sale and consumption of liquor associated with a tavern, develop the land for the construction of buildings and works, construction of a roof deck varying the requirements of DDO10, the display of advertising signage, waiver of car parking and loading bay requirements, and a reduction in bicycle parking requirements.

1. Before the use and development starts (other than to remove the existing façade cladding and paint) amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be substantially in accordance with the plans prepared by Parker Design Services, plan numbers TP01.1, TP01.2, TP02, TP03, TP04, TP05, TP06, TP07, TP08, TP09, TP10, TP11, TP12.1, TP12.2, TP13.2, TP14.1, TP14.2, TP15, TP16 and TP17, all Revision A dated February 2017, but modified to show:
   • (a) An increase in the height of the glass acoustic screen at roof floor level (TP10) consistent with the acoustic report required by Condition 4.
   • (b) Removal of the grey background behind the proposed signage shown on the north-east elevation (front façade).
   • (c) The location of speakers and televisions screens in the external terrace in accordance with any recommendations of the acoustic report required by Condition 4 and to limit potential off-site amenity impacts.
   • (d) The positioning of acoustic glazing into window openings in accordance with the recommendations of a suitably qualified expert in architectural heritage.
   • (e) Amendments to the plans arising from Conditions 3 and 4.
   • (f) The provision of a full colour, finishes and building materials schedule (including samples) for all external elevations of the development.

Heritage assessment and works to the building façades

1. The buildings and works associated with the removal of existing cladding and signage from the building on the subject land, and any paint removal, must be undertaken under the supervision of a suitably qualified expert in architectural heritage to the satisfaction of the responsible authority.
2. After the cladding has been removed from the building, a heritage assessment report prepared by an appropriately qualified heritage architect must be undertaken to consider:
   • (a) Whether face brick or rendered services are revealed and what measures for any finish or colour should be adopted.
   • (b) What existing architectural features are revealed and what measures for their retention or treatment (if any) should be adopted.
   • (c) Details of the proposed finishes for all external areas having regard to the assessment report.
   • (d) Measures to be adopted in relation to any signage of heritage significance revealed, including potential retention.
   • (e) Modifications to any signage to:
     1. take account of any revealed architectural form; and
     2. if face brick is revealed as the street front of the facade of the southern of the two original buildings, signage, without backing, similar to that proposed for the Centreway and rear façades.

All of the above are to be to the satisfaction of the responsible authority.

Acoustic Report

1. Prior to the commencement of the use and development approved under this permit, an amended acoustic report must be prepared by an appropriately qualified acoustic engineer including:
   • (a) Recommendations of the Watson Moss Growcott report lodged with the application, dated March 2016.
   • (b) Recommendations of the Marshall Day Acoustics report dated 10 March 2017 prepared by Mr Ross Leo and submitted as evidence to the Victorian Civil and Administrative Tribunal in application P2091/2016.
   • (c) Detailing the increase in height to the glass wall/acoustic screens at the roof deck level required to achieve compliance with State Environment Protection Policy N-1 (Control of noise from commerce industry and trade) and State Environment Protection Policy N-2 (Control of music noise from public premises).
   • (d) Specifying which areas of the premises may have and at what times, live music, recorded music and background music and the meaning of those terms.
2. Within one month of the commencement of the use, acoustic monitoring must be undertaken in accordance with industry best practice and carried out by an appropriately qualified and experienced acoustic engineer. A compliance report must be submitted to the responsible authority documenting the outcomes of the acoustic monitoring. If the results of the monitoring demonstrate that the noise limits described in the acoustic report required by Condition 4 have been exceeded, all reasonable measures recommended by an appropriately qualified acoustic engineer must be constructed upon the direction of an within such time as required by the responsible authority to reduce noise emanating from the site to within such limits.

1. The development and use as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

1. Prior to the commencement of any buildings and works on the land (including demolition), a Construction Management Plan (CMP), to the satisfaction of the responsible authority, must be submitted to and approved by the responsible authority. The CMP must be prepared in accordance with the City of Kingston Construction Management Policy, July 2015 and Construction Management Guidelines, 1 November 2015 (and any superseding versions and / or documents). The CMP must specify and deal with, but is not limited to, all of the following elements:
   • (a) Public Safety, Amenity and Site Security.
   • (b) Traffic Management.
   • (c) Stakeholder Management.
   • (d) Operating Hours, Noise and Vibration Controls.
   • (e) Air Quality and Dust Management.
   • (f) Stormwater and Sediment Control.
   • (g) Waste and Materials Re-use.

When approved, the plan will be endorsed and will then form part of the permit and shall thereafter be complied with during the undertaking of all works.

1. Prior to the commencement of the use, four bicycle parking spaces must be provided within the public realm, at the full cost of the owner / developer, with the location to be determined in consultation with Council's Public Place Project Department and to the satisfaction of the responsible authority.
2. Any damaged kerbs, footpath and crossovers must be reinstated to the satisfaction of the responsible authority.
3. All external surfaces of the building elevations must be finished in accordance with the schedule on the endorsed plans and maintained in good condition to the satisfaction of the responsible authority.
4. Once the development has started it must be continued and completed to the satisfaction of the responsible authority.

1. The use must operate only between the hours of:
   • (a) Monday to Sunday 8.00am to 1.00am the following day; but
   • (b) With the exception of the roof terrace which must only between the hours of:
     1. Monday to Sunday 8.00am to 10.00pm;
     2. Or otherwise as approved by the responsible authority in writing.
2. Patron numbers in the whole premises at any one time must not exceed the following maximum numbers:
   • (a) 450 patrons no more than eight times per year;
   • (b) 350 patrons at all other times.
3. Within the patron limit set by Condition 13, the maximum number of patrons on the external roof terrace at any one time is 80 patrons.
4. The door between the outdoor and indoor dining areas on the third level (top floor) must be closed from 10pm.
5. The use of the land must accord with all of the following plans:
   • (a) A heritage assessment required by Condition 3.
   • (b) An Acoustic Report required by Condition 5.
   • (c) A Waste Management Plan required by Condition 17.
   • (d) A Security and Amenity Management Plan required by Condition 20.
   • (e) A Delivery Management Plan required by Condition 21.
6. Before the commencement of the use approved under this permit, a Waste Management Plan must be submitted to the responsible authority for approval. The Waste Management Plan must incorporate the following matters:
   • (a) Details of the anticipated volumes of wastes and recycling that will be generated and how this is determined.
   • (b) Precise details of the quantity, size and type of bins that will be provided for waste and recycling proposal.
   • (c) A plan detailing adequate bin storage for the prescribed number of bins.
   • (d) A plan detailing adequate bin collection space for the prescribed number of bins, with both suitable space for placement and access/egress for collection vehicles.
   • (e) The standard coloured waste and recycling bins nominated for use.
   • (f) The times of collection and the names of person who will be responsible for collection of the waste in accordance with the approved waste management plan including ensuring that collection does not adversely affect the amenity of the area.
7. Any noise emitted from the site must comply with State Environment Protection Policy N-1 (Control of noise from commerce industry and trade), State Environment Protection Policy N-2 (Control of music noise from public premises) to the satisfaction of the responsible authority.
8. No goods or packaging materials shall be stored or left exposed outside the building so as to be visible to the public from a road or other public place.
9. Before the commencement of the use, a Security and Amenity Management Plan must be submitted to the responsible authority setting out the measures by which patron management to minimise amenity impacts will occur, to the satisfaction of the responsible authority. The Plan must include references to the acoustic report required by Condition 4, detailed the arrangements for ticketed events, and be consistent with the hours of operation contained with other conditions in this permit.
10. Before the commencement of the use, a Delivery Management Plan for the loading and unloading of commercial vehicles prepared to the satisfaction of the responsible authority.
11. No loading, deliveries or waste collection is to occur on private property adjacent to the subject land.

1. The location and details of the signs as shown on the endorsed plans must not be altered without the prior written consent of the responsible authority.
2. All signs must be attached to the building or located wholly within the title boundary of the land and must not protrude above the overall height of the building.
3. No intermittent lights may be displayed.
4. The intensity of the light on the signs must be limited so as not to cause glare or distraction to motorists or other persons or loss of amenity in the surrounding area all to the satisfaction of the responsible authority.
5. Once the erection of the signs has commenced it must be continued and completed to the satisfaction of the responsible authority.
6. The signs shown on the endorsed plans must be constructed to the satisfaction of the responsible authority and must be maintained to the satisfaction of the responsible authority.
7. This part of the permit that relates to advertising signs expires 15 years from the date of issue of the permit.

1. The amenity of the area must not be detrimentally affected by the development or use, through the:
   • (a) Transport of materials, goods or commodities to or from the land.
   • (b) Appearance of any building, works or materials.
   • (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.
   • (d) Presence of vermin.
   • (e) Any other way.

1. In accordance with Section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
   • (a) The use and development is not started before two (2) years from date of this permit.
   • (b) The development is not completed before four (4) years from the date of permit issue.
   • (c) The use is discontinued for a period of two (2) years.

In accordance with Section 69 of the Planning and Environment Act 1987, the responsible authority may extend the periods referred to if a request is made in writing:

(d) Before the permit expires; or

(e) Within six (6) months after the permit expiry date, where the use or development allowed by the permit has not yet started; or

(f) Within twelve (12) months after the permit expiry date, where the development allowed by the permit has lawfully started before the permit expires.

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Statements of grounds have been filed by persons who are not parties in this proceeding, per clause 56(6) of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, because they indicated that they did not intend to participate in the hearing of the proceeding. Their grounds have been taken into consideration and are addressed in these reasons.

[4] Knox City Council v Tulcany Pty Ltd [2004] VSC 37.

[5] Further details are contained in the statement of evidence by Ms Peterson and in documents tendered at the hearing.

[8] I have listed the relevant clauses in the Information section of these reasons. I refer to some specific policies through this decision such as Clause 18.05-2 relating to parking and clause 15 with respect to design and associated guidelines.

[10] The boundary of the study area for the 2004 Structure Plan does not align with the DDO10 area. For example, foreshore areas are included within other schedules to the DDO.

[11] The streetscape works are not identical to the design in the reference document Mordialloc Pride of the Bay: A Structure Plan for the Future of Mordialloc, 2004.

[12] Shell Company of Australia Pty Ltd and Ors v City of Frankston and Anor 8 APAD 127 at 135.

[13] Clause 22.15 of the Melbourne Planning Scheme.

[14] Hoskin v Greater Bendigo CC and Anor [2015] VCAT 1124.

[15] Hunt Club Commercial Pty Ltd v Casey CC [2013] VCAT 726, extracts from paragraphs 14-16.

[17] Kohli v Glen Eira CC [2016] VCAT 740, [16], Coles Group Property Developments Ltd v Mornington Peninsula SC (Correction) [2012] VCAT 600, [29].

[18] Newmarket Property Group v Port Phillip CC [2006] VCAT 153, [47], a proposition with which I concurred in Hotel Brighton v Bayside CC & Ors [2011] VCAT 1207.

[19] Page 26, section 6.1.

[20] The latter is an incorporated document at clause 81. No party has suggested that the proposed development will have an unacceptable impact with respect to the coast and associated foreshore areas.

[21] Email dated 16 June 2016 from Mr Peter Barrett to the Council planner.

[23] For example, clauses 18.01, 18.02, 21.06 and 21.12.

[25] Planning Practice Note 13 "Incorporated and Reference Documents" explains that reference documents provide background information to assist in understanding the context within which a particular policy or provision has been framed.

[26] I consider adopted strategy and guideline documents of the Council under section 60(1)(a)(g) of the Planning and Environment Act 1987.

[29] The NFL Superbowl is not on a weekend.

[32] Page 19 of the statement of evidence.

[33] Zulal & Sons Pty Ltd v Kingston [2011] VCAT 260.

[34] Bjbac Pty Ltd v Kingston CC [2011] VCAT 1944.

[35] 530 Main Street Pty Ltd v Kingston CC [2008] VCAT 2590.

[36] Toal & Ors v Manningham CC [2012] VCAT 1830.

[37] There must a clear nexus between the application and the works, no matter how desirable works might be - relying on authorities such as Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554 and Eddie Baron Constructions v Shire of Pakenham [1990] 6 AATR.

Gaming machine - Has the same meaning as it has in the Gambling Regulation Act 2003.