DATES OF HEARING: Tuesday 8 and Wednesday 9 October 2002

MEDIUM NEUTRAL CITATION: [2002] VCAT 1662

The decision of the Responsible Authority in relation to Planning Permit Application No. P02/0208 is affirmed.

For the applicant for review: Mr Christopher Wren, of Counsel, by direct brief. He called the following persons to give evidence:

* Mr Devendra Singh, Restaurateur, and Director of the applicant company; and

For the responsible authority: Mr Peter Newman, Consultant Town Planner.

For the respondent objectors: The following respondent objectors appeared in person: Ms Heather Tytler, Mr Robert Holmes, Ms Terril Taylor, Dr James Cooper, Mr Les Brain, Ms Bernice Ross and Mr C.G. Nikakis. Ms Tytler also appeared for Robert and Chris Tyrell.

1. This was an application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision by Mornington Peninsula Shire Council to refuse to grant a permit (in Permit Application No. P02/0208) to use part of the land at 98 Stanleys Road, Red Hill, for a restaurant. A permit has already been granted for and the land is already used as a restaurant. The subject application seeks approval for a restaurant with longer hours and more patrons than that which has already been approved.

2. The primary issue for consideration in this application is whether such longer hours and increased patrons would give rise to an unacceptable impact on the amenity of nearby residents through additional noise and activity at night. At issue also was the consistency of this application with the Local Planning Policy at Clause 22.07 of the Planning Scheme, which refers to commercial and industrial uses in rural areas.

3. By way of background a permit was issued by the former Hastings Shire Council in May 1995 to establish a winery and cellar door sales on this land which at the time comprised a dwelling, ancillary shedding and 3h vineyard. Permit No. 8698 permitted the erection of a 160 sq m mud brick building designed to accommodate wine making, barrel storage and a tasting area. This was permitted to operate between the hours of 9.00 a.m. and 5.00 p.m. daily.

4. On 4 January 2000 Planning Permit P99/1230 was issued by the Responsible Authority authorising an increase in the original winery building from 160 sq m to 256 sq m and the use of the building as a restaurant for up to 60 persons, to operate between the hours of 10.00 a.m. and 5.00 p.m. daily. Conditions of permit provided that these hours and patron numbers could not be altered except with the further consent of the Responsible Authority. A car park for 36 cars was also provided in conjunction with the restaurant use. The provision of this number of spaces for 60 patrons is in excess of the parking requirement of the Planning Scheme which is for 0.6 car spaces per seat.

5. I was advised that Permit Application No. P99/1230 had originally sought approval for trade until midnight on seven days per week. The application attracted five objections on grounds not dissimilar to those raised in respect of the subject application. However, as a result of a conference between the permit applicant, objectors and the Responsible Authority, the applicant agreed to modify the restaurant proposal restricting the hours to a 5.00 p.m. close ie. no night operation. Other changes in relation to the location of the car park and the introduction of screen planting and fencing were also arrived at through negotiation. A permit issued subject to conditions and there was no application for review of the Council's decision. The building extensions and car park were subsequently constructed and the use commenced operation in December 2001.

6. The subject application for permit was lodged with the Responsible Authority in February 2002. The applicant seeks a permit to use the land for a restaurant for up to 90 patrons - compared to the 60 already approved - and with trading hours to 11.00 p.m. on Thursday to Sunday. Permission is also required to reduce the parking requirement for a restaurant from a ratio of 0.6 car spaces per patron to 0.4 spaces per patron.

7. Following the giving of notice of the application nine objections were received. The grounds for objection were summarised in Mr Newman's written submission as follows:

"* That the use is not associated with the rural use of the land.

* The loss of the tranquil amenity, due to noise and other associated nuisances, including vehicle movements, from late night patrons.

* That the original proposal for restaurant evening trading hours was strongly objected to (in response to which the existing permit restricts trading hours to 5pm).

* That insufficient justification has been provided for variation of car parking requirements.

* That the existing planning permit is not being complied with."

8. At its meeting on 27 May 2002 the Responsible Authority considered the application. Notwithstanding its officer's recommendation to grant a permit - subject to no increase in patron numbers - the Council determined to refuse to grant a permit on the following grounds:

"1. The proposal is inconsistent with the Municipal Strategic Statement and the objectives of Clause 22.07 - Commercial and Industrial uses in rural areas, in that:

* It will have significant negative impacts on the landscape character of the area; and

* There will be a significant impact on the amenity of local residents.

2. The increased operating hours and seating capacity will result in the use of the land unreasonably impacting on the distinct rural character of the area, with excessive traffic, noise and light dispersing from the site.

3. The increased operating hours is inconsistent with the established development and use pattern of other wineries and restaurants in the area.

4. The use is not considered ancillary to primary production undertaken on the land."

9. The application for review was lodged with the Tribunal on 5 June 2002 and the stated grounds for review are in effect a rebuttal of the grounds for refusal.

10. The hearing was conducted over two days. At the commencement of the hearing Mr Nikakis and Ms Ross sought leave to be heard pursuant to Clause 56 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act. Mr Nikakis and Ms Ross had both been original objectors to the application but had failed to lodge grounds for contesting the application for review within the prescribed time. Clause 56 provides that the Tribunal must not allow such a person to be heard unless it has obtained and considered the views of the applicant and the Responsible Authority. Although Mr Wren objected to their being heard I resolved to grant leave, being of the opinion that they had interests which could be affected and being persuaded that neither persons' submission would unreasonably extend the time of the hearing.

11. Also at the commencement of the hearing Mr Wren advised that his client would agree to a reduction in the hours of operation originally applied for. As already noted the application for permit had been to trade until 11.00 p.m. on Thursday to Sunday nights, in addition to 5.00 p.m. trading on any other day. Mr Wren confirmed his clients would be prepared to abide by a condition allowing evening trade until 11.00 p.m. on Friday and Saturday only, except during the tourist season from 1st of November to 1st of April and on the Queens Birthday weekend, when trading until 11.00 p.m. from Thursday to Sunday was sought.

12. Except for Mr Nikakis, who presented an oral submission, those parties or their representatives that attended the hearing, as well as the persons called to give evidence, tabled and spoke to written submissions or witness statements. These, together with the plans, photographs and other material tabled in the course of the hearing - and some further material about opening hours of other wineries/restaurants provided at my direction, following the hearing - have been attached to the Tribunal's file. Following the hearing I inspected the subject land and surrounding properties in order to obtain a better understanding of the issues.

13. The subject land is a slightly irregular shaped allotment located on the north side of Stanleys Road, approximately 1km east of its junction with Red Hill Road. Stanleys Road provides a connection between Red Hill township and Balnarring. Stanleys Road runs east-west and the subject land is located at a crest. As part of the original restaurant application the access to the property was moved in order to reduce the danger of an accessway being located on a crest in an east-west aligned road.

14. The land has a frontage of approximately 104m and a depth of about 500m giving an area of 5.58h.

15. As noted already the land is developed with a vineyard with some 3h being under vine. There is a substantial two storey dwelling located on the front western side of the property with the existing restaurant and cellar door sales building located in the front eastern portion of the lot. Between the restaurant and the road frontage there is a gravel car park accommodating 36 cars. The land falls from the west to the east, such that the car park at its eastern side is well elevated above natural ground level. A 1m high fence borders the edge of the car park and there is evidence of some recent screen planting between the car park and the front and east side boundaries.

16. There was some dispute as to the setback between the car park and the east and front boundaries. According to Mr Newman, the endorsed plans for the existing restaurant permit have the car park set back 5m from the frontage and 18m from the eastern boundary. According to Ms Tytler the actual setback is 4m from the frontage and 7m from her side boundary. It would appear that Mr Newman made an error and the endorsed plans show an 8m rather than 18m setback.

17. The properties surrounding the subject land are used for various rural and residential purposes. Immediately to the east is the residence of Ms Tytler and Mr Brain, at No. 96 Stanleys Road and beyond that the residence of Mr and Mrs Tyrell, at No. 94 Stanleys Road. According to Ms Tytler the existing restaurant is set back 39m west of their dwelling with the closest part of the car park some 30m from her bedroom.

18. The Tyrells, Ms Tytler and Mr Brain are co-operators in a broiler chicken farm and the broiler sheds are sited on the rear two-thirds of their joint properties. These sheds are well screened by landscaping and the operators' two dwellings are set in attractive landscaped gardens located towards the front part of their joint properties.

19. To the west of the subject land there are two further properties, one behind the other in a "battle-axe" alignment. The front property is developed as a storage facility for equipment used in grape growing and wine production. The land accommodates a number of substantial sized sheds, most of which are well screened from the roadway by dense roadside vegetation. To the rear of this there is the property of Dr Cooper. His is an attractive undulating property of approximately 3h which accommodates a substantial, architect designed dwelling that is presently nearing completion. This dwelling is located approximately 180m from the existing restaurant building.

20. Opposite the subject land, on the southern side of Stanleys Road, are three rural residential properties, Nos. 95, 97 and 99 Stanleys Road. No. 95 is owned by Mr Holmes and contains a recently completed dwelling on a site of approximately 0.8h. Ms Terril Taylor's property next door to the west and immediately opposite the subject land, comprises a dwelling on approximately 1h. To her west is a dwelling used as the manager's residence for a thoroughbred horse stud owned by Ms Ross. This latter property wraps around to the rear of Nos. 75 to 79 Stanleys Road. Ms Ross advised that the stud's foaling paddock is located adjacent to the manager's residence - in order to ensure surveillance. In the course of my inspection I observed a foal in the foaling paddock with its dam.

21. The following description of the area surrounding the review site is extracted from Mr Linke's submission:

"The properties surrounding the review site provide for a range of uses, including a mixture of agricultural/horticultural uses; including broiler farms, rural residential, and storage facilities. There are some smaller properties in the area that are used for rural residential purposes. The land in the area is undulating and is generally cleared of vegetation with the exception of sporadic copses of native trees and cypress rows along property boundaries.

The character of the surrounding landscaping is typical of the Red Hill South area. The surrounding land uses, mix of native and exotic tree lines, low scale development and undulating topography all contribute to the attractiveness and scenic appeal of the rural landscape."

22. I confirm from my site inspection that this is an apt description and indeed that Stanleys Road is an attractive well vegetated and undulating tourist route.

23. The subject land is zoned Rural - Schedule 1, under the Mornington Peninsula Planning Scheme. The minimum lot size is 10h. An exception is where land is also subject to Schedule 28 of the Environmental Significance Overlay. In such instances, subject to some rather complicated provisos - including that the land to be subdivided has remained in the same ownership since 14 May 1975 and has a minimum area of 10h - the minimum lot size is 1h.

24. The subject land is affected by Environmental Significance Overlay Schedule 28 as well as Schedules 10 and 17 of that overlay. It is also affected by Schedule 2 of the Vegetation Protection Overlay, Schedule 3 of the Significant Landscape Overlay and Schedule 1 of the Environmental Management Overlay. Because this application does not involve new buildings or works or the lopping of existing trees, the overlay provisions are not relevant to my enquiry. There was a suggestion that if I was to adopt Mr Turnbull's recommendations in relation to providing for an overflow parking area, that this would entail works requiring a permit under the Overlay provisions. In view of my ultimate decision I have not found it necessary to consider this question.

25. The relevant purpose of the Rural Zone, apart from implementing the State and Local Planning Policy Framework, is to provide for the sustainable use of land for extensive animal husbandry (including dairying and grazing) and crop raising (including horticulture and timber production). It is also a purpose of the zone:

* Protection and creation of an effective rural infrastructure and land resource.

* Improvement of existing agricultural techniques.

* Protection and enhancement of the bio-diversity of the area.

* Value adding to agricultural products at source.

* Promotion of economic development compatible with rural activity.

* Development of new sustainable rural enterprises."

26. Within the Rural Zone no permit is required to use land for the purpose of crop raising - which includes grape growing. However a restaurant, being within the Planning Scheme's "nest" of retail uses, is a Section 2 use in the Table of Uses to the Rural Zone. As such a permit is required, pursuant to Clause 31.01-2 of the Scheme, to use the land for such a Section 2 purpose.

27. The permit applicant had a number of courses available to him in respect of obtaining the approvals that he now seeks. There was some confusion at the commencement of the hearing as to which course he was or should be pursuing. It was agreed that the subject application was for an entirely new restaurant permit that would in effect replace the exiting permit which, by virtue of the conditions restricting hours of operations, and patron numbers, is no longer what the permit applicant desires.

28. The application for permit in actual fact sought approval for "variation of existing permit (extension of hours and increase seating)". This however is not an option that is available to the permit applicant. Put simply there is no provision in the Planning Scheme for a permit to be obtained to in effect vary an existing permit. The permit holder must either obtain a new permit or seek to amend the existing permit pursuant to either Sections 73 or 87 of the Act. A further option, given the way the existing permit conditions are expressed, would have been to apply to the Responsible Authority to vary the hours and patron numbers in Conditions 3 and 4 of the existing permit. In the event of the Responsible Authority refusing to give its consent to such changes the permit applicant would have been entitled to apply under Section 149 of the Act for review of the Responsible Authority's failure to give such consent.

29. In the circumstances I find it appropriate to amend the application for permit, pursuant to Clause 64 of Schedule 1 of the VCAT Act, to clarify that this is an application for permit to use an exiting building for the purpose of a restaurant. The material accompanying the application also confirmed that application is being made to reduce the requirement for parking, pursuant to Clause 52.06 of the Scheme and it is apparent also that approval is required, pursuant to Clause 52.27, for a permit to use the land to sell or consume liquor when the hours of trading allowed under the license are to be extended.

30. Clause 65 of the Planning Scheme sets out decision guidelines that must be considered, as appropriate, before deciding on any application for permit. This clause commences with the following statement:

"Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause."

31. The decision guidelines which I consider to be relevant to this application, as well as some brief comments in relation to them, are set out below:

"* The State and Local Planning Policy Framework including the Municipal Strategic Statement and Local Planning Policies."

Comment: In this regard the State objectives for agriculture at Clause 17.05-1, for noise abatement at Clause 15.05-1 and for tourism at Clause 17.04-1 have relevance. The objective for agriculture is:

"To ensure that the State's agricultural base is protected from the unplanned loss of high quality productive agricultural land due to permanent changes of land use and to enable protection of productive farmland which is of high quality and strategic significance in the local or regional context."

General implementation measures related to this objective include:

"Planning should support effective agricultural production and processing infrastructure, rural industry and farm related retailing and assist genuine farming enterprises to adjust flexibly to market changes.

Planning should provide encouragement for sustainable agriculture and support and assist the development of innovative approaches to sustainable practices."

At Clause 15.05-2, general implementation of the noise abatement objective includes:

"Planning and responsible authorities should ensure that development is not prejudiced and community amenity is not reduced by noise emissions, by ensuring that there is suitable separation between potentially amenity reducing and sensitive land uses and developments.

Decision making by planning and responsible authorities must be consistent with any relevant aspects of the following documents:

* State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 (in metropolitan Melbourne).

* Interim guidelines for control of noise from industry in country Victoria (EPA 1989).

* State Environment Protection Policy (Control of Music Noise from Public Premises)."

At the level of the Local Planning Policy Framework the most relevant provision is the Local Policy at Clause 22.07, referring to commercial and industrial uses in rural areas. I will refer to this policy in greater detail later.

"* The purpose of the zone ... or other provision."

Comment: The purpose of the Rural Zone has been set out. There is no "purpose" specified at Clause 52.27 in relation to licensed premises. The relevant purpose of Clause 52.06, referring to car parking, is to ensure the provision of an appropriate number of car spaces having regard to the activities on the land and the nature of the locality.

"* Any matter required to be considered in the zone, overlay or other provision."

Comment: The decision guidelines at Clause 35.01-6, relating to applications to use or development land in the Rural Zone, are relevant here as are the matters set out at Clause 52.06-1, relating to matters to be considered before reducing the required amount of car parking for a particular use specified in the table to that clause. On the matter of Clause 35.01-6 the most relevant guidelines are:

* Whether the site is suitable for the use or development and the compatibility of the proposal with adjoining and nearby farming and other land uses.

* The farm size and the productive capacity of the site to sustain the rural enterprise and whether the use or development will have an adverse impact on surrounding land uses.

* An assessment of industry requirements, growth expectations, staging of the development and investment requirements.

* The effect on the amenity of the area. (emphasis added)

32. As stated earlier the principal issue in this proceeding was the effect on the amenity of the area due to the additional noise and activity from later trading and more patrons. As I stated in the course of the hearing an important question to be decided is where the appropriate balance lies between the desire by nearby residents for peace and quiet in the evenings at weekends and the desire by the permit applicant to take advantage of value adding at source to his legitimate agricultural product.

33. It was the evidence of Mr Singh that with the advent of the Wine Equalisation Tax, small vignerons, such as himself, need to sell as much of their wine as possible from the cellar door in order to avoid a very substantial Wholesale Distribution Tax. This tax has been introduced since the original restaurant permit was granted making it more imperative, in his opinion, to sell wine from the restaurant and to have longer restaurant hours and more patrons to sell to. Mr Singh also confirmed that the vigneron licence, under which the restaurant operates, prevents the sale of any alcoholic beverage other than wine produced from grapes harvested from the site.

34. It was the primary contention of the Responsible Authority that its decision to grant a permit for 60 patrons till 5.00 p.m. on any day was the appropriate balance and in support of this Mr Newman relied considerably on the Local Planing Policy at Clause 22.07. The respondent objectors agreed. In their submission the appropriate balance had been achieved under the previous application. In reaching a settlement they had been prepared to endure a degree of detriment due to the advent of diners up to 5.00 p.m. To go further, and intrude into their peace and quite in the evening, at weekends would be unreasonable. In their submission also any suggestion that this application should be measured in terms of the additional detriment over and above that already caused by the restaurant would be unfair. Rather, the detriment needed to be measured in relation to their amenity prior to the first restaurant permit. In many ways their objections focussed on a concern that this application was made by way of a piecemeal process. In their submission it would be unfair if the permit applicant, by getting a "foot in the door", could take advantage of the situation to the detriment of his neighbours. In their submission if the originally approved hours had proved to be economically unviable then the fact that the restaurateur commenced operation at an unviable level should not stand as a reason to increase their detriment in order to maintain viability.

35. Of course this Tribunal must consider each application on its merits and whilst I accept that there is a level of disquiet amongst the neighbours in relation to the seemingly staged approach adopted by the permit applicant, at the end of the day what needs to be decided is whether the proposal presently before me has merit. In saying this, however, it is relevant to be aware of the fact that this is an application to establish a new rather than expand an existing restaurant.

36. The Local Planning Policy at Clause 22.07 applies to all land in the Rural Zone. At Clause 22.07-1 setting out the basis of the policy, it is noted that there is wide discretion within the State-wide rural zone to consider industrial and commercial uses, notwithstanding the primary purpose of the zone for agriculture.

37. The policy seeks to ensure that rural land is not regarded as cheap industrial/commercial land and that the Shire's road and tourist routes - which include Stanleys Road - are not seen as an alternative to the existing township's commercial areas or as opportunities for commercial exposure. In strategic terms the Local Planning Policy Framework, and indeed State policy, encourages commercial development to be contained within recognised activity centres.

38. The local policy at Clause 22.07 has much in common with the "Green Wedge" provisions in the recently released Metropolitan Strategy "Melbourne 2030". The Advisory Note on Implementation of the Strategy suggests that the Strategy "has the status of a seriously entertained strategic plan and policy statement that should be considered in planning decision making where relevant". An aim of Melbourne 2030 is to "achieve a fundamental change in the relationship of rural areas to metropolitan Melbourne". New zones are proposed -including over the currently rural zoned land in the Green Wedge of the Peninsula - to: "tighten the range of uses that are allowed in green wedges so that uses better suited to urban areas are confined to locations inside the UGB" (Urban Growth Boundary).

39. Under new zones proposed for the Green Wedge, the use of a restaurant would be conditional upon it accommodating no more than 100 patrons and being used in conjunction with agriculture. The subject proposal would comply with both of these criteria.

40. The local policy at Clause 22.07 is also not opposed to all commercial type uses. For example in the policy basis it states:

"The Municipal Strategic Statement does, however, recognise that the recreational role of the Peninsula requires the provision of supporting facilities, which add value to the region's natural resources and assets, enriches the experience of visitors and provides benefits to the local economy_. Accordingly it is appropriate to encourage the provision of facilities and services that generally support the ability to experience the Peninsula's natural and cultural recreational values, including the provision of short term and home hosted accommodation, host farms and similar facilities."_ (emphasis added)

41. Included among the objectives of the Local Policy - that is to say the outcomes sought to be achieved by applying the policy - are the following:

"* To maintain permanent non-urban areas of high landscape value for a variety of recreational activities and experiences and to support sustainable agricultural use of rural land.

* To encourage tourism and recreation uses that minimise the adverse impacts on the amenity of local residents_."_ (emphasis added)

42. In order to achieve these objectives it is policy at Clause 22.07-3 that:

"* Applications for commercial uses in rural areas should be limited to those which demonstrate a direct link to rural activity or the provision of accommodation, services and facilities linked to the Peninsula's role as an area providing opportunities for outdoor and unstructured recreation, associated with the Peninsula's natural and cultural heritage values. Uses which may be considered include the provision of the sale of farm produce grown on the property and the provision of home hosted accommodation.

* Applications must be compatible and integrated with the primary land use on the site and that of surrounding land. Large scale proposals, including restaurants for 40 or more persons or galleries or similar uses with a floor area greater than 100 sq m must be supported by site analysis and design response plans. Restaurant proposals should demonstrate a clear link to the production of food or wine on the property, be associated with a significant recreational site or established tourism node or contribute to the conservation of buildings with heritage value.

* Applicants for commercial development must demonstrate that their proposal addresses a need or gap in the tourist industry and is not dependent on the development of other residential or commercial activities on the site or in the locality.

All car parking required by commercial or industrial uses in the Rural Zone must be accommodated on the land and should be sited and constructed so as to minimise the impact on the rural landscape character of the site and surrounding locality. Restaurant facilities in rural areas should generally avoid night time operation due to the potential impact on rural amenity from additional traffic, noise and light."

43. Clearly the subject application meets the requirement for a clear link to the production of wine on the property. Mr Wren also sought to argue that his client, by providing Indian cuisine, is addressing a "need or gap in the tourist industry", for his particular style of cooking. I am not persuaded however that this is a relevant consideration, given the fact that the cuisine could change under another operator. It could also change if Mr Singh himself found that other styles were demanded and I noted in the course of my inspection that indeed other styles are provided, according to the menu board. I also noted in the course of my inspection that other restaurants, including the Long Table in the Redhill village or activity centre, provide Indian cuisine in any case - or certainly as much Indian cuisine as I noted on the menu board at Mr Singh's restaurant.

44. I have not been able to be persuaded either that the advent of the wine equalisation Tax and its implications for small vignerons, must stand as a reason to have less regard to the possible impact of a winery restaurant that is located in close proximity to established dwellings.

45. This brings me then to the policy objective for tourism and recreation uses that minimise adverse impacts on the amenity of local residents and the policy direction for restaurant facilities to "generally avoid night time operation due to potential impact on rural amenity from additional traffic, noise and light".

46. Notwithstanding Mr Wren's submissions to the contrary, I reject the suggestion that because the Tytler's operate a broiler farm they should in some sense be expected to tolerate more exposure to night time noise and activity. My inspection confirms that their dwelling enjoys a high level of amenity, being set in attractive surrounds and well separated from the broiler sheds. The broiler farm also appears to have been carefully laid out and I was provided with no evidence of complaints about its operation. Indeed if there had been one might expect there to be little enthusiasm on the part of the permit applicant to locate his wine "tasting" room next door.

47. I found the evidence of Mr Growcott to strongly suggest the need for caution in relation to the siting of a restaurant some 39m away from a dwelling in such a rural location. The Environment Protection Authority's Interim Guidelines for Control of Noise from Industry in Country Victoria (N3/89) suggests the use of State Environment Protection Policy No. N-1 for "provincial cities and rural areas where background sound levels are comparable to metropolitan Melbourne". The guidelines acknowledge however that the "propagation of sound in a rural environment is strongly influenced by atmospheric conditions. There will be occasions, particularly at night when propagation is enhanced by wind or temperature inversion and noise levels at a measurement point are elevated despite careful plant design." The Guidelines go on to acknowledge that their application will not avoid some change in the acoustic environment and that there may be some rural areas where such change is inappropriate. In such situations it is suggested that a decision-maker should consider rejecting a proposal at the outset or establishing more stringent limits than set out in the Guidelines.

48. Mr Growcott measured the background noise levels during, as he conceded, a not entirely windless period. I find it reasonable to suggest, therefore, that the background levels obtained by him might not be a worse case scenario. In other words I accept that there may often be days of lower background levels due to climatic conditions in the still of the evening in this very pleasant undulating rural area. It is hardly an area "comparable to metropolitan Melbourne".

49. Mr Growcott confirmed that the Guidelines are not directed towards limiting human noise. Rather, as with SEPP N-1, they are directed towards mechanical noise. He agreed however that the hubbub of patrons inside this restaurant or on the balcony could be of equal annoyance as mechanical equipment and that levels of human noise are capable of being measured using the SEPP N-1 provisions.

50. Applying the background noise levels established by Mr Growcott, SEPP N-1 would require noise levels to not exceed 38 dB(A) Leq during the evening period. This is 6.00 p.m. to 10.00 p.m. on most days, but on Saturdays it extends to include 1.00 p.m. to 6.00 p.m. and on Sundays it extends to include 7.00 a.m. to 6.00 p.m. The limit in the night-time period, of 10.00 p.m. to 7.00 a.m., is 34 dB(A) Leq. These levels are required to be met outside of an open window on a residential property.

51. It was Mr Growcott's evidence that 90 patrons could generate an internal noise level of 78 dB(A) although he amended this to 75 in the facsimile transmission forwarded at the conclusion of the hearing. This he considered could reduce to 38 dB(A) (as set out in his subsequent facsimile) when measured from the Tyller's dwelling, given the shielding effect of their side fence. In his opinion, with the restaurant windows closed, this could be reduced by a further 10 dB(A). In other words the limit could be exactly met in the evening although exceeded in the night-time period, unless the restaurant windows were closed.

52. Mr Growcott's calculations were based on persons within the building itself. In Mr Wren's submission his client sought use of the balcony until at least sunset, given the delightful views across the vineyard and surrounding rural areas.

53. Having regard to the precautionary approach taken in the country guidelines I am not persuaded that it is appropriate to risk the prospect of this development not meeting the limits at times of background levels, below those measured by Mr Growcott. The limits set under the country guidelines are not inaudibility. So that even if the limits were met, it would still be possible to hear the sound of patrons. The limits are designed to prevent significant disturbance. This is not to say however that noise would not affect the amenity of an adjoining property owner 39m away.

54. It seems to me that the suggestion at Clause 22.07 for there to be no evening trade for restaurants is a sensible one which sets clear parameters for the exercise of the responsible authority's discretion. There will be situations where noise, could in no way affect the amenity of nearby landholders and where adherence to the policy would not be warranted. However, where the amenity would be affected then the policy stands as an appropriate basis for establishing whether or not a permit should issue.

55. The particular circumstances of this site, with a dwelling less than 40m away and parts of the car park even closer make it inappropriate, I find, to grant a permit whereby on every weekend of the year the peaceful rural tranquillity of the Tytlers' property in particular may be intruded upon. I accept therefore that an appropriate balance has been achieved with the existing restaurant - bearing in mind that on Saturday afternoons and Sundays the existing nose of patrons is likely to be in excess of the limits set by the country guidelines - albeit that these apply to mechanical noise - and I find no reason for this loss of amenity to be further extended into the evening period.