1

This was an application under section 77 of the Planning and Environment Act 1987 to review the Port Phillip City Council's decision to refuse the grant of a permit with respect to planning permit application no.957/2003.

2

The permit application seeks several permissions that would allow land known as 22 Aughtie Drive to be used for a café (daytime use), restaurant (evening use) and function centre (day and evening use); development including partial demolition of the existing building and the construction of buildings and works in the form of new alterations and additions; a liquor licence for the sale and consumption of alcohol; a waiving of car parking required under Clause 52.06 of the planning scheme and for advertising signs.

3

The permit application was lodged with the Council on 19 August 2003 on behalf of Food and Desire Pty Ltd. Notice of the permit application was required to be given and in response, 24 objections had been lodged at the time that the Planning Officer reported on the proposal to the Council. The grounds of objection were summarised at page 17 of the Planning Officer's report and these related to a range of matters including the proposal's consistency with applicable policies; the loss of parkland; the appropriateness of the uses proposed; adequacy of parking and the impacts on amenity.

4

The proposal was also referred to the Council's Heritage Advisor who did not oppose the proposed alterations and additions to the existing building. Parks Victoria advised the Council that it supports the proposal.

5

On 9 March 2004, the Council made its decision to refuse the grant of a permit on the following grounds:

1. The proposed land use is inconsistent with the purpose of the Public Park and Recreation Zone.

2. The proposed land use is contrary to Council's policies for parkland and open space (Clause 21.05-7) and traffic and parking (Clause 25.05-11) (sic).

3. The subject land does not, and cannot provide, adequate car parking for the proposed use.

4. The development, as submitted, is inconsistent with Council's urban design policy (Clause 21.05-4).

6

The application for review was filed with the tribunal on 18 March 2004.

7

At the commencement of the hearing Mr Chris Townshend for the permit applicant advised he was relying on the following point of law[1]:

i .... ... the proposed use falls within Section 1 use under Clause 36.02-1 of the Port Phillip Planning Scheme because:

•

The use is specified in an incorporated plan in a schedule to the zone; and/or

•

The use is conducted on behalf of Parks Victoria.

In the alternative it will be contended that the proposal is an unspecified Section 2 use.

You are further advised that the Permit Applicant will invite a permit condition imposing a maximum of 200 patrons for the restaurant use in the evening period. The overall patron maximum would remain at 500. ... ... ...

ii the lakeside façade was being pulled back to the original building line, instead of covering the terrace as originally proposed.

8

The subject site is located on the western central shoreline of Albert Park Lake. The building on the site is currently vacant, however, it is well known locally as the former "Carousel Restaurant".

9

The existing building is single storey in height and is designed to face outward to the east to enable views of Albert Park Lake. The building was constructed in the 1960's and considered by some to be an architectural and cultural icon given the concertina style roof over the central section and its previous use.

10

The main entry to the building is from the south adjacent to a public car park that provides about 110 spaces. A boardwalk that allows for both pedestrians and bicycle traffic runs along the lake's edge, in between the existing building and the lake.

11

A small building that has been used as a kiosk and public toilets exists adjacent to the main building.

12

Parks Victoria is responsible for the management and operation of Albert Park.

13

Albert Park is a regional park providing opportunities for casual recreation and leisure as well as organised recreation. Casual facilities include walking, jogging and cycling tracks; picnic areas and playgrounds. Organised recreation facilities include the Melbourne Sports and Aquatic Centre [MSACS], the golf course and driving range as well as various ovals and sports facilities. Various function centres and restaurants also exist. Albert Park serves about five million people annually, not including 400,000 Grand Prix attendees[2].

14

It is proposed that the existing building be altered and extended to facilitate its use as a café during the day, a restaurant during the evening and a function centre. The maximum capacity of the building would be 500 persons at all times.

15

It is proposed that part of the existing building would be demolished [as shown on the demolition plan], however, key structural elements including the concrete floor upon which the revolving dance floor exists and the concertina style roof are to be retained. A relatively modest increase to the footprint of the building, measuring about 110 square metres, occurs in the area facing the car park that has been used for external storage with other works includes a new entry and porte cochere to the southern façade. New cladding is proposed to the north, east and west elevations.

16

The application plans also show that the building is to be extended to the north over an existing deck. However, Mr Townshend advised us that the applicant does not intend to pursue this aspect of the proposal and a condition requiring the plans to be changed so that this extension is deleted would not be resisted.

17

It is proposed to use the building as a café (minimum 100 persons), restaurant (maximum 200 persons) and function centre. The maximum number of patrons on the land at any one time would not exceed 500. The premises are to be licensed to serve liquor.

18

It is also proposed that the existing kiosk and toilet block building be refurbished and a new "shaded garden" comprising a pergola structure and landscaping be provided in a location almost directly opposite the kiosk.

19

The proposed lease with Parks Victoria requires the operator to keep the kiosk, café and public facilities open 7.00am to 7.00pm all year round with a minimum of 100 seats being available to the public within the café/restaurant area.

20

Additional mandates and restrictions of the Parks Victoria lease to the permit applicant are:

i

Nightclub, discotheque and gambling machines are expressly prohibited;

ii

Liquor sales are limited to an on-premises licence, normally associated with the serving of meals;

iii

To clean the public facilities;

iv

To keep the car park clear of rubbish;

v

To store all waste bins within the building envelope;

vi

Limitation upon the hours of operation to:

• Monday to Wednesday - 7.00am to 11.00pm;

• Thursday - 7.00am to 12.00am (midnight);

• Friday to Saturday - 7.00am to 1.00am; and

• Sunday - 7.00am to 12.00am (midnight)

The operating hours may be extended to 3.00am for booked events for invited guests on eight occasions per calendar year with no more than four such events in any one month.

21

Other works associated with this proposal include the re-alignment of the pedestrian bicycle path so that it runs to the south of the building, the removal of trees, new landscaping and tree planting and consequential changes to the car park.

22

It is also proposed to erect 3 signs, 2 of which are to be located on the building (measuring 1800 metres by 300mm) with the third located at the entry to the car park near Aughtie Drive.

23

The site operated as a restaurant since 1962, with the building's architecture described as being "of the essence of contemporary American culture which, according to the architect Robin Boyd, some post war Australians copied to the point of 'mesmerism'" with the restaurant revolving "...on the floor above the ground level, giving diners a panoramic view, influenced by a Niagara Falls restaurant"[3].

24

The site previously enjoyed the following planning permits:

i

No. 29474 dated 7 November 1962 issued by the M&MBW for a restaurant use for 132 persons;

ii

No. S1054 dated 10 July 1989 for 184 seat restaurant;

iii

No. S3133 of 3 May 1993 for a restaurant for 250 patrons being 184 seated patrons and 66 bar patrons with a general liquor licence.

25

The premises have also been used as a nightclub/discotheque[4] and stopped operating in 1999[5].

26

The permit applicant does not rely upon existing use rights.

Crown Land (Reserves) Act 1978 gazettal

27

By Order dated 4 July 2003 and published in the Government Gazette on 11 September 2003, the Acting Minister for Planning approved the granting of a Lease over the Carousel building and its immediate perimeter under the Crown Land (Reserves) Act 1978, ss.17D & 17DA for:

Kiosk, café, restaurant, function/conference centre

28

The proposed ceremonial or shaded garden[6], toilet and shower facilities, and boardwalk are omitted from the proposed lease area, as is the existing 110 space car park to the south.

29

The significance of these omissions from the leased area is to emphasize that the garden, ablution facilities and car park remain under the jurisdiction and control of Parks Victoria, so that, for example, any desire by the operator of Carousel site to use the shaded garden for weddings or such, needs to be independently booked with Parks Victoria. The benefit of these areas and enhancements would not be exclusive to the occupiers of the Carousel site.

30

Further we note that the Order states that the Minister is satisfied:

(a)

there are special reasons which make granting the lease reasonable and appropriate in the particular circumstances; and

(b)

to do this will not be substantially detrimental to the use and enjoyment of any adjacent land reserved under the Crown Land (Reserves) Act 1978.

31

The subject land is zoned Public Park and Recreation under the Port Phillip Planning Scheme. The provisions for this zone are found at clause 36.02. The purpose of the zone is:

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

To recognise areas for public recreation and open space.

To protect and conserve areas of significance where appropriate.

32

Retail premises, which term encompasses food and drink premises such as kiosk, café and restaurant is a Section 1 "as-of-right use" in the zone and does not require planning permission if:

iv

it is conducted by or on behalf of Parks Victoria under the Crown Land (Reserves) Act 1978, or

v

if it is a use specified in an incorporated plan in a schedule to this zone. The schedule to this zone specifies the Albert Park Master Plan 1994 as an incorporated document in the planning scheme.

33

Function centre is nested under Place of Assembly, and would fall within the Section 1 "any other use not in section 3" as an as-of-right use, only if either of the following conditions are met:

vi

it is conducted by or on behalf of Parks Victoria under the Crown Land (Reserves) Act 1978; or

vii

it is a use specified in the Albert Park Master Plan 1994.

34

Pursuant to Clause 31.01-1[7], if either condition is not met, the function centre use is in Section 2 and requires a permit unless the use is specifically included in Section 3 as a use that does not meet the Section 1 condition. As Section 3 does not so exclude a Section 1 use that does not conform with its attached condition, the function centre component would otherwise require planning permission, and is not prohibited. Anomalously, however, a function centre need not be associated with the public land use, while a restaurant would have to be, if it were not associated with the public land use. Otherwise a restaurant becomes prohibited pursuant to Clause 31.01-2.

35

As for buildings and works, pursuant to Clause 36.02-2 a permit is required unless certain exceptions exist. We discuss their applicability later.

36

The land is also covered by Heritage Overlay No.3 (South Melbourne, Albert Park, Middle Park and part of St Kilda). Pursuant to Clause 43.01-1 a permit is required for demolition and the construction of buildings and works on land within a Heritage Overlay. All the proposed buildings and works require permission under this Overlay.

37

The relevant purposes of the Heritage Overlay, in addition to implementing the State and Local planning policy framework, are, inter alia:

To conserve and enhance heritage places of natural or cultural significance.

To conserve and enhance those elements which contribute to the significance of heritage places.

To ensure that development does not adversely affect the significance of heritage places.

38

Decision guidelines under the Overlay are set out at Clause 43.01-5.

39

It was agreed that permits are required for the waiver of car parking pursuant to Clause 52.06, the sale and consumption of liquor pursuant to Clause 52.27 and the display of signage pursuant to Clauses 36.02-8 and 52.05 (Category 4).

40

In addition to the decision guidelines expressed in the above clauses, consideration must also be given, as appropriate, to the matters set out in clause 65. These include the planning scheme's policies, purpose of the zone and overlay, orderly planning and the impact on amenity.

41

As there was a legal dispute about required permissions, a number of questions of law arose. These have been decided by the presiding member, Member Komesaroff, who is a lawyer.

42

The applicant does not contend that Café/Restaurant and Function Centre are being conducted on behalf of Parks Victoria, although it does contend that both uses are specified in the incorporated Albert Park Master Plan 1994, thereby not requiring a planning permit. Mr Pitt agreed that the Master Plan specifies the use of the Carousel site as a restaurant and as such, agreed that a permit is not required for this aspect of the proposed use.

43

Café/restaurant is nested under retail premises and would fall within the section 1 retail premises as an as-of-right use, only if:

i.

it is conducted by or on behalf of Parks Victoria under the Crown Land (Reserves) Act 1978; or

ii.

it is a use specified in the Albert Park Master Plan 1994.

44

I agree with Mr Pitt SC that the Carousel is referred to and identified on pages 35 & 78 of the Master Plan as 'restaurant'. I think for the purposes of this discussion, restaurant also embraces café which can be regarded as a more "informal" type of restaurant use.

45

The café/restaurant does not need any planning permission to operate as such.

46

Kiosk is nested under retail premises and would fall within the section 1 retail premises as an as-of-right use, only if:

i.

it is conducted by or on behalf of Parks Victoria under the Crown Land (Reserves) Act 1978; or

ii.

it is a use specified in the Albert Park Master Plan 1994.

47

The kiosk is not referred to and identified on pages 35 & 78 of the Master Plan.

48

Although it is arguable that the kiosk:

i

is being operated on behalf of Parks Victoria, because the Lease mandates the operator to keep it open between 7.00 am to 7.00 pm for 365 days per year, and

ii

therefore enjoys automatic use rights for which no planning permit is required,

I think the better answer is that the kiosk requires planning permission. Parks Victoria is not operating the kiosk. Food and Desire is, under a lease. The lease may contain certain conditions of operation, but in the final analysis, the kiosk is not being operated on behalf of Parks Victoria.

49

Pursuant to Clause 31.01-1 a permit may be granted provided it is associated with the public land use.

50

The kiosk is clearly associated with the public land use as:

•

the Lease mandates the operator to keep it open between 7.00 am to 7.00 pm for 365 days per year, and

•

kiosks are a relatively common type of facility that is found in larger, regional parks and a useful in fulfilling quick fix or snack refreshment needs.

51

Function centre is nested under Place of Assembly, and would fall within the Section 1 "any other use not in section 3" as an as-of-right use, only if either of the following conditions are met:

iii

it is conducted by or on behalf of Parks Victoria under the Crown Land (Reserves) Act 1978; or

iv

it is a use specified in the Albert Park Master Plan 1994.

52

As Mr Townshend submitted that a restaurant includes function centre so as not requiring planning permission, this is the first question I need to answer.

53

The lease speaks of function/conference centre, which changes the concept of function centre simpliciter. But I will answer the question anyway.

54

In 1962, restaurant was not defined in the planning scheme's IDO, but was distinguished from social reception rooms in the table of as-of-right and discretionary uses requiring a permit.

55

In 1970, restaurant was defined in the Planning Scheme for the first time as:

Any premises, not being part of a hotel, in which meals are served to the public for gain or reward and upon which there takes place or provision may be made for live entertainment by more than one person or for dancing.

56

Social reception rooms was deleted and Reception Rooms is now nested within the definition of Place of Assembly.

57

Although Mr Townshend argues that what occurs within a reception rooms or function centre can equally occur within the definition of restaurant, Mr Pitt SC responds that the occasional conversion of a restaurant to a function centre does not alter its primary purpose, but if it does change its primary purpose to function centre or reception rooms, that is a change of use readily ascertainable as a matter of fact and degree. In other words, according to Mr Pitt SC, the two are separate and distinguishable land uses.

58

I accept that depending on how a particular facility is managed, there can be a blurring between "restaurant" and "reception rooms". For example, it is true that on some occasions, restaurants are totally booked for a single function. But in general terms, I agree with Mr Pitt SC. One needs to look at how the use in question will typically operate. The occasional booking of an entire restaurant for a function, say once a week would not mean that there has been a change of use to function centre if on the other days it is open for use to the public at large.

59

Previous use as a nightclub discotheque occurred but the Responsible Authority argued it had no ostensible planning permission. No finding is made thereon as there is no need to. A function centre is also a different land use to a nightclub or discotheque. Further, no existing use rights for the restaurant or nightclub component are being relied upon by the permit applicant.

Is the function centre use specified in the Albert Park Master Plan 1994?

60

Mr Pitt SC and Mr Townshend also part company on whether the function centre is specified in the incorporated Albert Park Master Plan 1994.

61

At page 35 of the Master Plan, the "Carousel Restaurant" is referred as 'restaurant and function centre', while 'function centre' is omitted from page 78.

62

If there is doubt about its specification, the next question is whether it ought to obtain permission as a section 2 use, on the merits?

63

Even if the function centre is not in the incorporated plan, the practice in parks is that it is also clearly associated with the public land use. But as I have pointed out earlier, it does not need to be so associated to be permissible.

64

By Order published in the Government Gazette on 11 September 2003, the Acting Minister for Planning approved the granting of a Lease over the Carousel building and its immediate perimeter under the Crown Land (Reserves) Act 1978, ss.17D & 17DA for:

Kiosk, café, restaurant, function/conference centre

65

Mr Townsend also advised that the premises could be used for conference meetings.

66

In the final analysis, I am of the opinion that the use sought as function/conference centre requires planning permission on the merits, because:

i

There is inconsistency in its specification in the Master Plan, and

ii

Once it incorporates a conference component it is not the identical use contemplated by the Master Plan.

67

The Carousel building refurbishment needs building and works permissions as:

i

it is not being carried out by or on behalf of Parks Victoria;

ii

although the restaurant is, the function/conference centre component is not shown in an Incorporated plan which applies to the land.

68

If the pergola over the shaded garden is not characterised as a structure and therefore a building under the Planning and Environment Act 1987, Section 3, but rather planting or landscaping, no planning permission is required.

69

The better answer is that the pergola is characterized as a structure and therefore a building, but planning permission is still not required for it, as it was agreed that the shaded garden is not in the leased area and will be carried out for Parks Victoria, the public land manager.

70

If the kiosk were refurbished on behalf of Parks Victoria, it would need no planning permission, but as it is in the leased area, it is arguable that it needs the same permission as does the café/restaurant, because it is not being carried out by or on behalf of Parks Victoria. We have assumed this latter course.

71

After having considered the submissions and evidence presented, the matters to be considered under the planning scheme and legislation and the details of the proposal, we consider that the key issues in this matter are:

•

Is the use of the land for a function centre acceptable having regard to the zoning of the land, policy and the Albert Park Master Plan?

•

Will the proposed buildings and works and signs detract from the appearance and amenity of Albert Park as a public open space?

•

Can the car parking demand associated with the proposed use of the land be accommodated within the adjoining car park and in Aughtie Drive?

•

Would the proposal cause traffic problems that would reduce road safety?

•

Would the proposal result in unreasonable impacts on the amenity of the wider area, particularly, the most proximate residential properties?

72

Before turning to these key issues, we think it appropriate to make a number of observations about this proposal, particularly having regard to the submissions made by Mr Pitt on behalf of the Council.

73

First, there did not appear to us to be any concern about the proposed refurbishment of the kiosk/toilet block building. Indeed, Mr Pitt went as far as saying that the kiosk component would be a "welcome adjunct to Albert Park as a service to recreational park users". We did not understand the objectors to be concerned about this aspect of the proposal.

74

Second, Mr Pitt conceded that the use of the land for "restaurant" would clearly accord with the Albert Park Master Plan and it is an "as of right" use. This is not surprising given that the use of this part of Albert Park for a "restaurant" is clearly marked on the plan for the City Edge precinct. Further, we note Mr Pitt's concluding submission on behalf of the Council was that we should not necessarily refuse the grant of a permit; rather, that we should grant a permit for a lesser use and development, that is, the refurbishment of the Carousel building so that it can be used for a restaurant with a seating capacity of up to 250 persons and for the kiosk. The Council submits that this level of seating is consistent with the amount that has been allowed in the past. We did not understand there to be any concern with respect to the granting of a liquor licence.

75

Third, Mr Pitt agreed that the refurbishment of the existing building is desirable. Whilst we understand that most objectors believe that the subject land should be given over to public parkland, nonetheless, as a general proposition, we would consider the refurbishment of an unused building located prominently within this important park to facilitate its use for an appropriate purpose would represent a desirable outcome.

76

We now turn to our consideration of the key issues that we have identified.

Is the use of the land for a function centre acceptable having regard to the zoning of the land, policy and the Albert Park Master Plan?

77

On this issue it is relevant to refer to the purpose of the Public Park and Recreation Zone. We note that in addition to the implementation of planning policy, the purpose of the zone is clearly directed towards the provision, protection and enhancement of areas for public recreation and open space. However, it is also clear, the zone purpose contemplates that there will be some circumstances where the inclusion of commercial uses within public parkland and recreation areas will be appropriate.

78

In this case, it is clear that the Albert Park is not simply a local park. It is a large open space and recreation reserve that is clearly of regional importance to Melbourne and, given the various facilities that it supports and the events that it hosts, there is argument to say that it is of importance to Victoria as a whole particularly with respect to tourism.

79

We do not think that, in principle, there was significant dispute that it is appropriate that some commercial facilities be provided within a park that is geared towards meeting local, regional and state needs. For example, there was no opposition to the kiosk, albeit that it is a commercial venture. It would also be fair to say that the commercial component attached to the proposal that was the subject of greatest attack from both the Council and the objectors was the use of the Carousel building as a function centre; however, the concerns relating to the café/restaurant were not as intense. Indeed, Mr Pitt conceded that the restaurant use is acceptable and a number of objectors also agreed with this, although not supporting the level of patronage envisaged.

80

We are not surprised that the restaurant use was not the subject of considerable attack given that it is clearly identified in the Master Plan.

81

Accordingly, we will focus out attention on the appropriateness of the proposed function centre.

82

In this regard we note the evidence of Ms Ring in which she identifies the various policies scattered throughout the planning scheme in both the State Planning Policy Framework and Local Planning Policy Framework that apply. The various policies cover a range of matters. In terms of State policy, those identified as being in some way applicable included the goals and principles at Clause 11, noise [Clause 15.05], open space [Clause 15.10], energy efficiency [Clause 15.12], car parking and public transport to development [Clause 18.02] and design and built form [Clause 19.03]. In relation to local policy, Ms Ring drew our attention to Clauses 21.05-3 [Neighbourhood Character], Clauses 21.05-4 and 22.06 [Urban design], Clause 21.05-6 [Tourism], Clause 21.05-7 [Parkland and open space], Clause 21.05-11 [traffic and transport policy] all of which are within the MSS as well as the local policies at Clauses 22.08 [Advertising signs] and 22.10 [heritage].

83

From the Council's perspective, we note the grounds of refusal specifically expressed concern with respect to 3 aspects of the policy matrix that applies, that is Clauses, 21.05-4, 21.05-7, and 21.05-11.

84

In relation to these three policy concerns we note Clause 21.05-4 essentially deals with urban design issues whilst Clause 21.05-11 deals with traffic and parking concerns. We will deal with specific concerns about urban design, traffic and parking matters later in these reasons.

85

In relation to Clause 21.05-7, we note that the MSS states that:

Port Phillip's network of public open spaces is an important local resource that offers the community active and passive recreation opportunities. It provides an important part of Port Phillip's cultural heritage, contributes to the role of Port Phillip as a tourist destination and is vital in protecting the amenity of a high density residential population. These public open spaces must be protected and enhanced by ensuring that only sustainable uses with manageable impacts are allowed in Port Phillip's open spaces.

86

The objectives under this clause include:

To enhance and maintain a range of open space facilities that are easily accessible and match the needs of the local community.

To balance the needs of parkland users with the need to preserve the physical and cultural heritage values and environmental attributes of public open space.

To continue a management and maintenance regime for Port Phillip's parklands and public open spaces based on sound environmental principles and designed to ensure that these assets are kept clean and safe.

Only permit new commercial facilities in public open spaces where:

• the facility is located in an existing building or an existing building is replaced with one of a scale and character which is sympathetic to the surrounding landscape or built from,

• the facility will enhance the range of facilities available and not disadvantage existing users,

• environmental issues such as waste management, traffic movement and parking can be satisfactorily addressed.

88

On reviewing the Council officer's assessment, it seems that the concern with respect to this clause is that the function centre is not an open space facility and from this goes on the reach the conclusion that it "therefore does not enhance or match the open space needs of the local community". Further, it is asserted that the use would be of a private nature and does not necessarily match the needs of the community.

89

With respect to the above, we make the following observations. First, it is clear that Albert Park performs more than just a local role; it is a regional park and serves the needs of a wider community. It would seem to us that it would be erroneous to simply assess any proposal in terms of local need without considering the wider role of this park. Second, the overview at Clause 21.05-5 states that parkland "........contributes to the role of Port Phillip as a tourist destination". We would think that Albert Park is one of those parks within the municipality that contributes to the municipality's role as a tourist destination. As such, we consider that any consideration of the merits of the proposal must come to terms with more than just local considerations. We are not saying that local considerations are not relevant or unimportant. On the contrary they are important. Rather, we say that the consideration needs to go further than just stopping at local considerations in recognition of the role that this park plays at a regional and state level.

90

Interestingly, the officer's report goes on to suggest that a smaller function centre with a dominant restaurant would be more appropriate. What this means exactly is a bit unclear to us, but at least we are able to ascertain that it is the scale of the function centre and its off site impacts that is of concern. In this regard, it seems to us that traffic, parking, safety and other amenity considerations such as noise come into play. But if these are found to be satisfactory, we consider that the use of this building as a function centre would not be unacceptable in the circumstances of this case having regard to the following factors:

• The zoning of the land contemplates that there will be circumstances when commercial uses in parkland are appropriate.

• The Albert Park Master Plan specifically identifies the use of this site for commercial use [i.e. restaurant].

• The purpose of a function centre is specifically contemplated under the Crown Land (Reserves) Act 1978.

• There is recognition that parks within this municipality perform more than just a local role and it is appropriate that this be taken into account.

• The park manager supports the proposal.

• The building already exists and has done so for many years. The proposed function centre does not require a new or additional building; rather, it will be within a refurbished building that has existed on the land for many years and one that has been identified as being suitable for commercial use.

• Although the applicant does not rely on existing use rights, nonetheless, there is clear evidence that the site has been used a function centre in the past, something that is acknowledged in the 1994 Master Plan.

• We would consider that there some symbiosis between the operation of a function centre and a restaurant. We accept Ms Ring's evidence that functions are held in commercial venues in larger parks of this type [eg: Studley Park, Kings Domain, Fitzroy Gardens]. Further, the function centre would not consume the café/restaurant which is required to be open at specified hours.

• This proposed function centre would be available for use to both the local and regional communities. The suggestion that the function centre would be a "private facility" does not properly take into account that it can be booked by members of the public at large and people from all over Melbourne and beyond would be able to come to and enjoy Albert Park. This is not a private club.

91

Provided that amenity impacts are reasonable, we fail to see why it would be unreasonable to allow the one building to be used for both a restaurant and a function centre. We are mindful that the "Future Directions Plan", which we understand to be a draft document, espouses the principle that "new developments not be exploitive of the park location for purely commercial or convenience reasons". However, putting aside that this is a draft document with uncertain status [as opposed to the 1994 Master Plan which is an incorporated document in the planning scheme] it also expresses support for expanding existing facilities at individual venues. In this case, the incorporated Master Plan contemplates a restaurant on the site and the function centre would be an adjunct to it.

92

We appreciate the concerns raised by objectors about the amount of parkland and access to it being whittled away. This is a legitimate concern. However, this proposal needs to be put into perspective. It is not one that takes away large tracts of parkland; rather, it will facilitate the re-opening of a refurbished facility that has been a long standing feature within Albert Park. The proposed uses are acceptable.

Will the proposed buildings and works and signs detract from the appearance and amenity of Albert Park as a public open space?

93

A number of the objectors expressed concern about the impact that the proposed development works would have on the appearance and amenity of the park. Specific areas of concerns relating to the existing building were the impacts of the extensions; the plant equipment to be placed on the roof and the signs. Other concerns were raised about the impact of the pergola over the shaded garden.

94

We note at the outset Mr Pitt's concession that the refurbishment of the Carousel building would enhance the appearance of the area. We agree.

95

In this case, the proposed refurbishment works are quite extensive, however, they mainly involve the refurbishment of the Carousel building and largely follow the existing footprint. The most significant part of the extension, that is, over the deck to the north of the building, has been abandoned by the applicant and we note from the officer's report that this would be an appropriate outcome. Further, it is also proposed to retain the aspect of the buildings original architecture that gives it its uniqueness, that is, the concertina roof form over the central section. We consider this to be a desirable approach

96

When viewed in the context of the building as a whole, we regard the extensions to the rear as being relatively minor. Further, the extensions are to occur over land that has been associated with the former use for storage and plant etc. We agree that the extension to the rear of the building will improve its appearance and, as a consequence, the visual amenity of the surrounding area. In this regard, we note the views of the Council's Heritage Adviser who commented as follows [Officer Report to Statutory Planning Committee 9 March 2004]:

It [the site] is in the HO [Heritage Overlay] but has no grading. If it survives for another 50 yrs [years] it might achieve one, but at present its value is in the context of entertainment buildings on the lake but the Power House is the only one graded.

These alterations to the rear, which is presently a mess and they have high amenity and some aesthetic value. There's no reason to oppose them.

This is not a problem aesthetically, but the permit should probably be conditional on Parks Vic approval.

97

The above comments are relevant in that they acknowledge that the appearance of the building would be improved. Further, they express no concern about the proposal from a heritage viewpoint, in terms of both the impact on significance of the wider HO3 area or the building itself.

98

With the removal of the extension to the north, and on reviewing the officer's report, it seems that the proposed "shaded garden" area is the feature that led the Council to the view that the proposal does not meet the requirements of Clause 21.05-4. However, we note that the shaded garden is outside the area leased to the Carousel and therefore its construction must be being carried out on behalf of Parks Victoria. As such, it does not need a permit for buildings and works under the zone control. This being the case, the buildings and works permission is required under the Heritage Overlay and therefore the matters that can be considered relate to heritage. In this regard we note that no heritage concerns were raised about the shaded garden.

99

In any event, even if a permit was required under the zone control, we would be of the view that this is a relatively minor structure that is not out of place within a regional park like this. Pergolas, rotundas and other structures that provide shade and shelter are commonly found in various parkland and open space environments. We would have thought that the provision of a shaded garden setting like that proposed would be an appropriate addition to a regional park like this.

100

We appreciate that the Council and the objectors are sceptical about its availability for public use; however, this area would be under the control of Parks Victoria [just as other areas of the park are] and its use would not be limited solely for the operator of the refurbished Carousel. In this regard, we would have thought that if the intention was to provide this facility exclusively for the refurbished Carousel, then it would have been included in the lease area. It has not. The shaded garden may be booked for private use, however, the opportunity to do this would be available to the public at large, not just the operator of the Carousel. Further, when the shaded garden is not booked, it would be available as a shaded area within which to enjoy the park. We have no difficulty with the shaded garden area.

101

We also have no difficulty with the addition of a porte cochere at the entry to the building off the car park. It will enhance the appearance of the southern elevation whilst at the same time, clearly identifying the public entry to the building from the car park.

102

Concerns were expressed about the impact of the proposed plant equipment on top of the roof, particularly on long range views when the building is viewed from the lake. We heard evidence from Mr Powell on this issue. Whilst it the plant equipment has not yet been designed, Mr Powell indicated that it could be designed to be low profile with a height of 1200mm and appropriately screened within two discreet areas. The details were shown diagrammatically on a plan prepared in association with Building Services Engineers, Thomas Consulting Group. We accept that the location of the plant equipment and the proposed screening would not detract from the appearance of the building or the amenity of the park. Glimpses of these structures might be available from some vantage points, however, they would be minor at worst.

103

It follows from the above that we do not consider the proposal to be at odds with the planning scheme's design policies. Rather, we consider that the proposal will facilitate improvements that will enhance the appearance of the building and the surrounding setting.

104

Concerns were raised about the visual impact of the proposed signs. In this case, three signs are proposed.

105

One sign, with an advertisement area of 2 square metres, is to be located near the entry to the car park. The final details are to be to the satisfaction of the Council and Parks Victoria. The sign will identify the "Carousel" facility as a whole and includes references to not just the café/restaurant/function centre; but also the kiosk, public car park, public toilets and showers as well as the pelican lawn. We also do not agree with the assertion that the signs would privatise the car park, or discourage public use. Rather, this sign clearly serves a useful purpose in directing park users to the various facilities that are available, including public car parking.

106

We also do not consider it to be excessive in area given its function, location and the level of information that it would provide. We doubt that all the information to be provided, bearing in mind that it relates to various facilities, could be set out in a reasonable and useful way on a smaller sign. Further it is far preferable to include all the information on one sign, than say, two smaller signs that may meet the 1 square metre preferred size.

107

The other 2 signs are to be fixed to the Carousel building, one facing the lake, the other the car park. These signs are also relatively modest in therms of size and proportion and also serve to identify the carousel facility. They each have an area of 0.54 square metres. The level of signage is modest and will not dominating when viewed from the lake or surrounding parkland.

108

We find the proposed buildings works and signs to be acceptable.

Can the car parking demand associated with the proposed use of the land be accommodated within the adjoining car park and in Aughtie Drive?

109

In relation to car parking, it seems to use that the key issues are:

i

whether there is sufficient capacity along Aughtie Drive to accommodate parking that overspills the car park next to Carousel, and ;

ii

whether the car spaces in Aughtie Drive are convenient and safe to use by the patrons in the evening to night period given the nature of Aughtie Drive.

110

The first task to be undertaken is to determine the car parking demand that should be accommodated.

111

Under the table to clause 52.06, car parking is required at the rate of 0.6 spaces per seat for restaurant/cafe whilst 0.3 spaces per seat/patron is function room [place of assembly]. However, under clause 52.6-1, a permit can be granted to waive or reduce the car parking required to be provided under this clause having regard to a number of matters including the availability of car parking in the locality, and an empirical assessment of car parking demand.

112

Mr Durkin's evidence was that based on an empirical assessment, the actual car parking demand for the restaurant/cafe would be as follows:

• 0.21 spaces per seat for restaurant/café during the daytime period

• 0.42 spaces per seat for restaurant during the evening/night period

113

Mr Durkin's justification for these rates was based various studies and surveys that been undertaken. We note that Mr Pitt did not challenge Mr Durkin's evidence that these were appropriate rates to apply to the restaurant/café. Some of the objectors were sceptical about these rates, however, from our experience, they are within the bounds of what is generally put forward for this type of use and we were not at all surprised that they were not challenged by the Council. We accept that it is reasonable to apply the car parking rates put forward by Mr Durkin for the restaurant/café use.

114

Mr Durkin adopted the rate of 0.3 spaces per seat/patron as set out at clause 52.06 for the function centre use.

115

Bearing in mind the constraints imposed on opening hours and the minimum number of seats to be made available, we accept Mr Durkin's estimate that the peak parking demand for daytime use would be 141 spaces [assuming 100 seats for the restaurant/café @ 0.21/per seat and 400 seats for the function centre @ 0.3 spaces per seat] and 174 spaces during the evening period [assuming 200 seats for restaurant @ 0.42 spaces per seat and 300 seats for the function centre @ 0.3 spaces per seat].

116

No car parking can be provided on the subject site itself, however, the provisions at clause 52.06-1allow the requirement to be waived having regard to car parking that is available in the locality. In this regard, the applicant relies on the 110 space car park abutting the site and on -street parking along Aughtie Drive.

117

In section 2.4.2, Mr Durkin states that car parking supply near the land is 683 spaces comprised of the car park abutting the site [110 spaces], on-street spaces in Aughtie Drive [141 spaces] and the Lakeside car park [432 spaces] Mr Durkin's surveys, undertaken on a Friday and Saturday in May 2004, revealed that there were a total of 339 spaces available on Friday [applying the peak demand registered in each area], with 267 spaces available on Saturday.

118

There was some concern expressed that the Lakeside car park spaces are simply too far away and unlikely to be used, particularly by persons attending functions in the evening. We are inclined to agree, although there may be some visitors to the park who may park in this area with a view towards taking a walk and then stopping at the café/restaurant.

119

However, in our assessment, we have focussed on the availability of car parking within the abutting car park and Aughtie Drive as these would be within what we would regard as within reasonable walking distance. Allowing for fluctuations in parking demand between the day and evening period we note the surveys revealed that:

• On Friday afternoon, not less than 208 spaces were available in the Carousel car park and in Aughtie Drive;

• On Friday evening, not less than 216 spaces were available;

• On Saturday afternoon, not less than 137 spaces were available [recorded at 3.00pm];

• On Saturday evening, not less than 216 spaces were available.

120

It is apparent from the above analysis that the period or time during which the demand would be at its tightest is on Saturday afternoon. This is not surprising given that this would coincide with the use of various sporting ovals and other facilities. It is also clear that at other times, there is substantial capacity in the available car parking resources.

121

On the basis of the material before us, we consider that it is reasonable to waive the car parking requirement as the resources available in the area will be able to accommodate the demand generated by the proposal. For most of the time, it is clear that there is spare capacity. At peak times, there is a shortfall, however, it is relatively few spaces. We do not consider this to be unacceptable because the assessment is a conservative one in that it assumes that the restaurant and function rooms will both operating at absolute full capacity and that restaurant patrons will not have walked to the restaurant having left their vehicles elsewhere or cycled there.

122

Mr Middleton expressed doubts about the veracity of Mr Durkin's survey results and presented his own survey information about car parking occupancy. However, in this case, we accept Mr Durkin's evidence noting that this was made available to all parties before the hearing and it was subject to scrutiny by way of cross examination.

123

In the circumstances, we consider that the car parking should be waived. We would expect that, for the vast majority of times, it would be unlikely that proposed facility would be operating at full capacity and car parking resources available would accommodate the demand generated by this proposal.

124

There is, of course, also the issue of whether the on-street car spaces are safe to use, particularly at night, in light of the absence of footpaths and public lighting as well as concerns about the ability to safely cross Aughtie Drive.

125

We note that footpaths and lighting is provided adjacent to the on-street spaces to the north of the car park; kerbside spaces along the Carousel side of Aughtie Drive are wider than kerbside spaces typically found; Parks Victoria have received funding to provide additional lighting along Aughtie Drive to the south of the Carousel car park entry and that they are prepared to provide some additional pathways if required. We also note Mr Townshend's submission that a median break could be provided if required in Aughtie Drive opposite the entry to the car park to provide a pedestrian refuge.

126

We are mindful of the issues raised in Ms Cooper's evidence, in particular, that the car parking resources upon which patrons would rely should be conveniently located and be safe. In this regard, we agree that a number of measures must be undertaken to ensure that this is the case, namely, the provision of the public lighting, additional footpaths, the delineation of a walking area adjacent to the car spaces to the south of the car park entry and a central pedestrian refuge. We do not agree that the provision of some low key pathways adjacent to existing kerbside parking resources to be something that is at odds with public parkland or taking away from open space. All of these measures can be required as conditions.

127

Subject to these, we consider the car parking resources to be satisfactory.

Would the proposal cause traffic problems that would reduce road safety?

128

Concerns were raised about road safety, particularly with respect to the history of accidents along Aughtie Drive. These concerns were two-fold. First, although a 40 km speed limit applies, objectors allege that many vehicles exceed this speed. Second, the car park entry is located at an awkward bend and this can create difficulties for drivers and endanger pedestrians on the road or seeking to cross it.

129

There is no doubt that the proposal would increase traffic in this locality. However, there was nothing presented to us to show that Aughtie Drive cannot cope with the additional traffic that would be generated.

130

We also take into account that the site is located in an area where the speed limit is set at levels lower than that in Melbourne's residential streets. It is a low speed environment. If the speed limit is not being complied with, as alleged, then the appropriate course to be taken is to enforce it. Irrespective of this proposal, Parks Victoria and the Council have an obligation to investigate and monitor this issue and take action taken to seek the enforcement of the speed limit.

131

The re-alignment of the bicycle path across the front of the building through the northern end of the car park was also raised as a concern. We would make 2 comments about this. First, the re-alignment of the path would fall within works that we consider would be undertaken on behalf of Parks Victoria. Second, the bicycle path has been realigned at the top end of the car park. Whilst cars using the drop off zone under the porte cochere would cross it, the majority of vehicles do not need to cross it as the internal access aisle turns before it reaches the bicycle path. We do not consider that this situation would give rise to conflict, however, it would be appropriate to have some differentiation in paving or other ground markings to set out the boundaries of the bicycle path.

132

Further, in the previous section we set out various measures that need to be taken to provide a suitable pedestrian environment. With these, we are satisfied that the traffic arrangements are satisfactory.

Would the proposal result in unreasonable impacts on the amenity of the wider area by way of noise?

133

We have thus far dealt with a number of issues associated with the park.

134

However, objectors also raised concerns about the impact that the proposed function centre could have on their amenity by way of noise. It seems that this concern largely stems from the previous use of the Carousel, particularly when operating as a de facto nightclub, which allegedly resulted in amplified music being audible from the surrounding residential areas around Albert Park well into the night time period.

135

We understand these concerns; however, the proposal does not involve a nightclub which is a different use.

136

The proposal involves a restaurant and function centre. Save for a limited number of occasions per year, such use would cease at 1.00am as opposed to the much later time that the nightclub was allegedly operating.

137

Further, the conditions attached to the permit can be quite explicit in terms of controlling noise. Permit conditions together with the mandatory requirements under both SEPP N-1 and SEPP N-2 should ensure that the proposed activities on the land would not cause unreasonable detriment to surrounding residential properties.

138

It must be remembered that this site is located well away from residential properties. The distance is considerable. In our view, the noise impacts of the proposed use can be managed so that there is no unreasonable impact on residential amenity.

139

For the reasons set out above, we consider the proposal to be acceptable subject to conditions. We will set aside the Council's decision and direct that a permit be granted.

[1] which use was further refined during his presentation to distinguish between the kiosk, restaurant, function centre, buildings and works, sale and consumption of liquor and parking reduction

[2] Albert Park Draft Future Directions Plan 2002

[3] People's Playground. A history of Albert Park, Chapter 7, Politics and Protests, by Jill Barnard and Jenny Keating.

[5] when Parks Victoria cancelled a Lease