Frontage 7.6 metres, depth 21.6 metres, area 164 square metres.

Maribyrnong Planning Scheme, Residential C (Footscray) Zone. The lane opposite the subject site is zoned Neighbourhood Business (Footscray) Zone.

2. There are two restaurants and reception centres in Gamon Street, and there is no need for another establishment in this small quiet street.

3. There is less than 60cm between the subject site and the property of the Applicants for Review/Objectors, which will be affected by noise, movement and vibration severely affecting amenity.

4. The use of the balcony to accommodate 20 people will create a threat to privacy.

6. Operation of the restaurant to 11pm six days a week is unacceptable.

7. Increase in the number of patrons will lead to parking problems.

8. There is a bus stop in front of our premises and is difficult for visitors to obtain on-street parking.

9. There was an agreement between the Respondent/Permit Applicant and the previous owner of our property that alcohol would not be served and the restaurant would not open after 8pm at night.

10. The Responsible Authority permitted the premises to operate within a strict time twelve months ago and there are no grounds to justify a change.

11. It is totally inappropriate to extend the size and operation of the premises as requested.

Ms. R. Gallant, Town Planner, for the Responsible Authority.

Written submissions, photographs, and other documents tendered by the parties have been placed on the Tribunal file.

This was an application for review of the decision of the Responsible Authority to grant a permit for extension of operating hours, increase in the number of seats and an increase in the number of staff for an existing restaurant at 84 Gamon Street, Yarraville.

The subject site is on the south-west corner of Gamon Street and O'Farrell Street, and contains a two storey shop and residence on the subject site which dates back to the turn of the century. Pedestrian access is available from Gamon Street, and at the rear of the property there is a small courtyard and single garage with access from O'Farrell Street. Adjacent properties at 86 Gamon Street (the property of the Applicants for Review/Objectors) and 1 O'Farrell Street are occupied by dwellings. The subject site and adjacent land is in a Residential C (Footscray) Zone, and there are single storey detached period style weatherboard houses surrounding the subject site to the south-west and north.

The land opposite the subject site and the east side of Gamon Street is in a Neighbourhood Business Zone. This Business Zone covers a small strip of eight shops including a milk bar, clothing retailer, pizza and pasta restaurant and take away, a shop used as a dwelling, a beauty salon, a book shop and a plant nursery. The milk bar operates until 9pm daily and the pizza restaurant operates until 12 midnight during the week and until 1am at weekends.

Ms. Gallant, in her written submission for the Responsible Authority, said that according to Council records the subject site appeared to have been used for commercial uses, such as service premises or a shop, until the late 1980's. A permit application was made in 1994 for the use of the shop as a cafe, but at that time the existing use rights of the shop had lapsed. Ms. Gallant went on to describe the planning history of the subject site as follows:

"The application TP 94/29 for conversion of a disused shop associated with a dwelling to a cafe included the proposal to upgrade the premises by constructing a new verandah and balcony. The application attracted nine objections, two of which were withdrawn. The objections included concern about the inadequate provision for off street parking (because parking in the area was already a problem), and the likelihood of extra traffic and noise.

Council decided to refuse to grant the permit based on concern that the lack of suitable car parking would prejudice the residential. amenity of the area.

The applicant appealed Council's decision. The Tribunal determined that the appeal be allowed and a permit TP94/29 was granted for the use of the land as a cafe, with operating hours of:

8:00am to 8:00pm Tuesday to Friday during daylight savings

8:00am to 6:00pm Tuesday to Friday outside daylight saving times

9:00am to 8:00pm Saturday to Sunday throughout the year.

A permit condition limited the staff number to two (2). The seating number, proposed to be 20, was not specified within the permit for the use or limited specifically by permit condition.

The modifications to the building have been constructed as proposed.

Application TP96/1158 was made to convert the use from the permitted cafe to a restaurant. A restaurant permit would facilitate the gaining of a liquor licence for the premises. One objection was lodged against the proposal but then later withdrawn based on the objector and applicant reaching a signed joint agreement relating to potential extensions to operating hours and licensing 6f the restaurant. (Refer Attachment 3 - The Joint Agreement). A permit issued for the restaurant use on 14/1/97.

This permit was later amended by the responsible authority to allow the operating hours of the restaurant to extend to a closing time of 8:00pm, Tuesday to Sunday throughout the year.

The restaurant is now the sole use of the building. There is no associated residential use.

A B.Y.O. liquor licence has issued from the Liquor Licensing Commission.

Permit No. TP 94/29 was issued following Appeal No. 1994/25801, Susan Jankovic v City of Footscray.

The Residential C (Footscray) Zone is the subject of Clause 114 of the Local Section of the Maribyrnong Planning Scheme. The purpose of the zone includes:

"* To recognise areas of residential development, and encourage the establishment of educational, recreational, religious and community facilities compatible with the area and responsive to local community needs.

A permit is required for the use pursuant to Clause 114-1.2.

The following clauses in the Regional Section of the Planning Scheme are relevant:

Ms. Gallant said that two objections were received and summarised the grounds of objection as:

* the increase in seat numbers is not accompanied by an increase in parking availability;

* the application breaks the agreement with the previous owners of 86 Gamon Street,

* increase in noise from the restaurant kitchen to the neighbouring dwelling;

* no need for a late night venue at this location."

Appeal No. 1994/25803, Susan Jankovic v City of Footscray was an appeal against the refusal of the Responsible Authority to grant a permit for a cafe on the subject site. Dr. Mainwaring allowed the appeal and directed that Permit No. TP 94/29 be granted. Dr. Mainwaring said in the Reasons for Determination:

"The issue in this appeal is directly associated with the inability of the site to accommodate carparking and the impact, but this will have on the amenity of the adjoining neighbourhood. The evidence before the Tribunal was that during the day time, there was adequate parking available in the local streets but that after 5.00pm, the competition for parking becomes relatively intense. The concerns that arise out of this relate to the impact of additional parking on an already tight parking situation, requiring the residents to compete for carparking spaces with patrons to the cafe. Associated with carparking are concerns regarding the impact on residential amenity of patrons parked in residential areas departing in the evening. The Responsible Authority also had concerns regarding the potential prejudice on the proper future development of the area in permitting a cafe outside the Business zone.

The essential issue then, is whether the carparking impact is an unacceptable one. The evidence of Mr. O'Brien was that there is unrestricted parking available in Gamon, Mackay and O'Farrell Streets with parallel parking available on both sides of Gamon and O'Farrell Streets. There is a bus stop located adjacent to the subject site on Gamon Street preventing any parking in this location. Parallel parking is available on the north side of Mackay Street and angle parking on the south side. It was Mr. &Brien's evidence that the angle parking provided on the south side of Mackay Street associated with the Local Business Zone was well below capacity in the evenings. The Tribunal accepts that this is most probably the case, however, in this regard the Tribunal agrees with Mr. Wilde that it is unlikely that the patrons of the cafe will park in Mackay Street if there is parking available in O'Farrell Street thereby competing with residents parking.

There was some discussion at the hearing regarding the possibility of angle parking in O'Farrell Street adjacent to and continuing beyond the proposed development. It was Mr. O'Brien's evidence that it was practicable to provide such angle parking, and some debate ensued regarding the possibility of this, the potential cost and the amount that should be contributed by the present applicant. Ms. O'Keefe for the Responsible Authority informed the Tribunal that the Council's Engineer considered there was insufficient room at O'Farrell Street, that the total cost would be far too great and that residents would resist angle parking.

The Tribunal indicated to the parties at the conclusion of the hearing that it was prepared to issue a permit for hours of operation from 8.00am to 5.00pm Tuesday to Sunday inclusive, and that it would consider an extension of hours in the context of the parking situation. It was put to the tribunal by Mr. Barnes at the hearing that some consideration might be given to extended hours during the daylight saving period.

The Tribunal after considering the matter further, is prepared, in the absence of any additional parking being provided, to permit the operation of the cafe between the hours of 8.00am and 8.00pm Tuesday to Friday during the period of daylight saving and 8.00am to 6.00pm Tuesday to Friday during the winter months with weekend hours of operation being 9.00am to 8.00pm throughout the year. The Tribunal considers that the proposed use is relatively low key one that will attract the majority of its patrons during the mid-morning to mid-afternoon period. The Tribunal further considers that the hours of operation proposed are such as to ensure that residents are not impacted by the noise of patrons leaving the premises and moving their cars from residential streets during times relevant to sleep disturbance. The Tribunal considers it unlikely that many patrons would drive to the premises in the evening because of the nature of the business in the area closing hours, but that it is quite likely that use would be made of the cafe by local residents at this time. The Tribunal considers that the potential exists for the Responsible Authority to take action to alleviate residents parking problems by the provision of angle parking, or use of residents parking permits, however in the Tribunal's view it is inappropriate to put a condition on a permit making hours of operation dependent on this."

As noted by Ms. Gallant, whilst it was proposed that the seating number under Permit No. TP 94/29 would be 20, seating numbers were not specified within the permit for the use, or limited by permit condition.

The Notice of Decision to Grant a Permit that is now the subject of an Application for Review does not include any restriction on the number of seats or the number of patrons. The proposal was for the restaurant to close at 11pm Tuesday to Sunday inclusive, but a condition in the Notice of Decision to Grant a Permit restricted this closing time to 10pm, and Mrs. Jankovic, the Respondent/Permit Applicant, said that this is a reasonable compromise.

Ms. Gallant responded to the grounds of appeal. Ms. Gallant said that the restaurant functions as part of the shopping and service cluster, but must comply with the objectives of the Residential C Zone. She said that the restaurant use has had a positive effect on local small business, and it works well in synergy with nearby businesses.

Ms. Gallant said that the Respondent/Permit Applicant is unable to supply more than one car space, although the opportunity to better utilise the rear of the site for staff parking has not been explored. She said that there are generally some car spaces available in O'Farrell Street, Gamon Street and Mackay Street, however in the evenings the restaurant patrons tend to compete with residents for parking, particularly on the north side of O'Farrell Street and parts of Gamon Street close to the subject site. Off-street resident parking is estimated to be available to only 30% of nearby residential properties. Ms. Gallant said patron parking behaviour can be altered by parking controls, and it is expected that if the permit issues residents would lobby council to seek protection of their parking. She said that the two objections lodged against the subject permit application compared with eight objections to the original cafe proposal in 1994, and this could indicate that the operation of the restaurant over those four years has not caused significant parking or amenity difficulties. She said that within 80 metres of the subject site there is generally adequate parking for staff and patrons, although parking arrangements could be altered to be more protective of resident parking.

Ms. Gallant said that overlooking from the balcony to the dwelling owned by the Applicant for Review/Objector, would be no more substantial than from the footpath directly in front of the dwelling.

Ms. Gallant tendered a copy of an agreement between the previous owner of 86 Gamon Street and the Respondent/Permit Applicant which was dated 5 January 1997. The agreement provided that any further application to extend trading hours would not request closing times beyond 8.30pm Monday to Thursday inclusive and 10pm Friday to Sunday inclusive, and that it could be reviewed in 12 months. On the basis of the agreement the then owners of 86 Gamon Street undertook to no longer object to Permit Application No. TP 96/1158. Ms. Gallant said that the agreement was not transferable to the present owners of 86 Gamon Street, the Applicants for Review/Objectors.

Dr. Tran, one of the Applicants for Review/Objectors, spoke to a written submission in which he expanded on his grounds of appeal.

Ms. Jankovic, the Respondent/Permit Applicant, also spoke to a written submission. Ms. Jankovic said that the current restrictions applying to the 20 seat cafe/restaurant force customers to be turned away at peak periods and an 8pm closing causes inconvenience to a large number who arrive after 8pm and expect the premises to be open. It is hoped to expand the business and offer flexibility in opening hours, considering room is available to seat a further 20 people upstairs. It is considered that 10pm closing is a reasonable compromise. Ms. Jankovic said that the business makes a contribution to the Yarraville community including attracting business from beyond the immediate area. She said that the balcony has a stunning view of the City and offers enormous appeal and potential. The need to remain competitive is highlighted by the number of restaurants/cafe businesses nearby, and this business must respond to the demands that competition brings to the area. There have been no complaints or problems arising from the location.

The main issue in this Application for Review, as in Susan Jankovic v City of Footscray, is availability of parking both for the desired increased number of patrons and extended hours to 10pm. Dr. Mainwaring was initially prepared to allow hours of operation to 5pm Tuesday to Sunday inclusive, but after consideration agreed to allow operation to 8pm Tuesday to Friday during daylight saving, to 6pm Tuesday to Friday outside daylight saving, and to 8pm on Saturday and Sunday throughout the year. It would appear that Dr Mainwaring did have some concerns about lack of parking availability, and these concerns seem to be confirmed by the submission for the Responsible Authority in the subject Application for Review. I consider that any parking problems would be exacerbated by allowing operation of the premises to 10pm Tuesday to Sunday throughout the year, although I acknowledge that on some nights patronage would be less than others, and patronage levels may well be seasonable. Whilst neither the existing permit nor the Notice of Decision place any limit on the number of seats or the number of patrons, allowing an increase in the area of the premises to be used would allow an increase in the number of patrons. This would increase parking demand.

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

I consider that the other issues raised are either not significant or could be dealt with by condition. A screen at the southern end of the balcony would deal with any concerns regarding overlooking or noise impact from the balcony on the amenity of residents of 86 Gamon Street.

It is ordered that Application for Review is allowed, and it is directed pursuant to Section 85(1)(a) of the Planning and Environment Act 1987 that a permit must not be granted.