The fences shall be designed to provide an acoustic barrier between the site and adjacent residential properties. The acoustic fence shall be maintained in a good condition to the satisfaction of the City of Boroondara, the Responsible Authority

1. The maximum number of seats for patron use shall not exceed 100 on site.
2. Prior to the commencement of any development or use hereby permitted a landscape plan and schedule shall be prepared and submitted to the satisfaction of the City of Boroondara, the Responsible Authority. This plan shall be similar to the plan initially submitted with the application but amended to show: the landscape screen planting to the west and north boundary shall use advanced evergreen species to the satisfaction of the City of Boroondara, The responsible Authority.

The landscaping shown on the endorsed plan shall be completed prior to the commencement of the use and the occupation of the development hereby permitted to the satisfaction of the City of Boroondara, the Responsible Authority.

1. The loading and unloading vehicles and the delivery of goods to and from the premises shall be carried out entirely within the site between the hours of 8.00am and 7.00pm and be so conducted as to cause minimum interference with other vehicular traffic noise and noise nuisance to adjacent residential properties.
2. Prior to 9am on any trading day, the operator of the café hereby permitted shall make every reasonable effort to ensure that any packaging material from the café dropped by patrons within 250 metres of the site in Union, Pakington, Cobden, High and Charles Streets, is collected and disposed of.
3. The use and development hereby permitted shall comply with the description on the endorsed plan and shall not be altered or modified (whether or not in order to comply with any Statute, Statutory Rule or Regulation or Bylaw or for any other reason) without the consent of the City of Boroondara, the Responsible Authority.
4. No new building shall be erected, existing building changed, rebuilt or modified or works undertaken on the subject land (whether or not in order to comply with any Statute, Statutory Rule or Regulation or Bylaw or for any other reason) without the consent of the City of Boroondara, the Responsible Authority.
5. The use and development hereby permitted must be commenced within two years from the date of issue of the permit, and thereafter to be completed within two years from the date of such commencement.

The time within which the use, development, matter or thing is to be commenced or completed, may be extended upon application to the City of Boroondara, the Responsible Authority, provided that application is made before or within three months after the expiry of this permit.

1. Pedestrian access to the development hereby permitted shall be provided in accordance with the requirements of Australian Standard C.A.1428-1977 to the satisfaction of the City of Boroondara, the Responsible Authority.
2. No vehicle of or under the control of the management or staff of the use and /or development hereby permitted shall be parked in nearby streets.
3. The buildings, works or use hereby permitted, the processes carried on, the materials and machinery used or the transportation of materials, goods and commodities to and from the premises, shall not cause injury to or prejudicially affect the amenity of the locality by reasons of appearance or emission of noise, vibrations, smell, fumes, smoke, vapour, stream, soot, ash, dust, waste water, waste products, grit, oil or the presence or vermin or otherwise, to the satisfaction of the City of Boroondara, the Responsible Authority.

If a nuisance by reason of smell occurs the operator of the Café hereby permitted shall upon written notification from the City of Boroondara, the Responsible Authority, investigate and provide additional devices to reduce the emissions of smell from the premises.

1. Lighting for the car park area west of the access drive shall be low height bollard type lighting to the satisfaction of the City of Boroondara, the Responsible Authority.
2. Exterior lighting shall be provided with suitable baffles and/or located as to minimise the emission of light outside the site to the satisfaction of the City of Boroondara, the Responsible Authority.
3. Adequate provision shall be made for the storage and collection of garbage and other solid wastes and for the screening of areas and equipment used for such purposes from public view, to the satisfaction of the City of Boroondara, the Responsible Authority.

The removal of waste/garbage from the site shall be carried out between the hours of 8am and 7pm and be so conducted as to cause minimum interference with other vehicular traffic and noise nuisance to adjacent residential properties.

1. No signage or advertisement materials shall be erected, painted or displayed as to be visible from outside the site except in conformity with the KEW Planning Scheme and any necessary permit from time to time issued pursuant to such Scheme.
2. No public address or loud speaker system external to the building is to be installed.
3. Noise levels associated with the use must at all times comply with the Environment Protection Regulations under the Environment Protection Act 2017 (Vic) and the incorporated Noise Protocol (Publication 1826, Noise Limit and Assessment Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and Entertainment Venues).

If in the opinion of the City of Boroondara, the Responsible Authority, noise levels generated through activity on the site are exceeding the levels set by the above described policies the use shall be regulated to the satisfaction of the City of Boroondara, the Responsible Authority, to ensure compliance and if necessary additional noise devices shall be installed in consultation with an acoustic engineer and to the satisfaction of the City of Boroondara, the Responsible Authority.

1. Prior to the commencement of the development hereby permitted, a site works plan shall be submitted and approved by the City of Boroondara, the Responsible Authority. This plan shall show a drainage scheme which provides for the collection of stormwater within the site and for the conveying of the stormwater to the nominated point of discharge, being the existing side entry pit in High Street at Pakington Street, to the satisfaction of the City of Boroondara, the Responsible Authority.

The site works plan shall be in accord with the proper specifications and requirements of the Technical Services Department of the City of Boroondara, Kew Distract Office to the satisfaction of the City of Boroondara, the Responsible Authority.

The works shown on the approved site works plan shall be constructed in accordance with the said plan prior to the commencement of use or the occupation of the development hereby permitted to the satisfaction of the City of Boroondara, the Responsible Authority.

Drainage works constructed pursuant to the permit shall at all times be maintained and repaired to the satisfaction of the City of Boroondara, the Responsible Authority.

1. The area set aside or the parking of vehicles and so delineated on the endorsed plan shall be made available for such use and shall not be used for any other purpose.

The area set aside for the parking of vehicles together with the aisles and drives shall be properly formed to such levels that it can be utilised in accordance with the said plan and shall be drained and sealed with an all weather seal coat which shall be capable of being marked.

The boundaries of all car spaces shall be clearly marked in accordance with the details shown on the endorsed plan.

1. The car park area to the west of the access driveway (adjacent to High Street) shall be closed to patron use by a chain or other device between 10.00pm and 6.00am the following day to the satisfaction of the Responsible Authority.

The 12 car park spaces adjacent to 2, 6 and 8 Pakington Street and all car parking spaces on the east side of the internal vehicular accessway shall be closed to patron use (but available for staff use) by a device physically preventing access to these spaces approved by the Responsible Authority in accordance with condition 25 between 1.00am and 6.00am the following day to the satisfaction of the Responsible Authority.

1. Prior to the commencement of the use and occupation of the development hereby permitted all previously existing vehicular crossings not to be used shall be removed and reinstatement works shall be carried out to the satisfaction of the City of Boroondara, the Responsible Authority.
2. The playground shall be closed and not available for use between the hours of 10.30pm Sunday to Thursday and 11.00pm Friday and Saturday to 7.00am the next morning.
3. The rear portion of the site shown as unused shall be landscaped and the landscaping shall be maintained to the satisfaction of the City of Boroondara, the Responsible Authority.

No public access to this part of the site is permitted.

1. Before the commencement of the drive-through service between 1.00am and 6.00am, a Site Management Plan (SMP) must be submitted to and approved by the Responsible Authority. The site management plan must outline management practices including, but not limited to:

(a) Surveillance and security measures.

(b) Site management.

(c) Restaurant management.

(d) Complaints management, including recording of all incidents occurring on site via logbook or other appropriate method.

(e) Litter patrol and removal.

(f) Delivery services.

(g) Car parking hours signage, including the hours specified under this permit when the car park is closed to patrons.

(h) How the car park area to the west of the access driveway (adjacent to High Street) shall be closed to patron use by chain or other device between 10.00pm and 6.00am the following day.

(i) The means by which all on site car parking will be restricted to staff use only between 1:00am and 6:00am each day, including any physical barriers or the like, and management of the use of those spaces, and any other management methods for this purpose.

(j) The inspection of the existing acoustic fence at specified intervals to identify any gaps or damage, and undertake repairs within a reasonable period of time.

(k) How the external patron seating areas will be closed to patron use between 1:00am and 6:00am the following day.

A copy of the approved SMP must be provided to all managers, supervisors and the like once every six months, and at any time the SMP is varied, to the satisfaction of the Responsible Authority.

The approved SMP must be implemented to the satisfaction of the Responsible Authority.

1. Before the commencement of the drive-through service between 1.00am and 6.00am an updated acoustic report prepared by a suitably qualified acoustic consultant must be submitted to and approved by the Responsible Authority to its satisfaction. Once approved, the acoustic report shall be endorsed to form part of the Permit. The acoustic report shall be generally in accordance with the report prepared by Clarity Acoustics, dated 13 March 2024, but must:

(a) Consider impacts from fixed plant and equivalent average and maximum noise levels with respect to car park and drive-thru through activities between 1.00am and 6.00am.

(b) Include any recommended mitigation measures (where additional to the acoustic fence required by condition 2) to ensure that noise from fixed plant and car park and drive-thru activities between 1.00am and 6.00am comply with applicable noise limits and criteria (as advised by the acoustic consultant).

Any mitigation measures recommended to be undertaken in the acoustic report must be implemented before the commencement of the use as a 24-hour 7 day a week operation, to the satisfaction of the Responsible Authority.

1. Within 3 months of commencement of the drive-through service between 1.00am and 6.00am, acoustic testing and assessment shall be undertaken at the subject land and abutting properties (subject to access being provided by the relevant landowners) 2, 6, 8 and 10 Pakington Street, at no expense to the Responsible Authority by a suitably qualified acoustic consultant. The testing and assessment must be documented in a report that is prepared to the satisfaction of, and submitted to the Responsible Authority within the same timeframe. This report must:

(a) Verify that the noise from fixed plant and car park and drive-thru activities between 1.00am and 6.00am results in compliance with noise limits and criteria as specified in the acoustic report endorsed pursuant to condition 26.

(b) If the testing identifies any non-compliances with noise limits and criteria specified in the acoustic report endorsed pursuant to condition 26, identify any further mitigation measures required to ensure conformance.

Any further mitigation measures identified in this report must be implemented as soon as reasonably practicable after finalisation of that report, to the satisfaction of the Responsible Authority.

1. Before the commencement of the drive-through service operating as a 24 hour 7 day a week operation, changes recommended within the acoustic report, prepared by Clarity Acoustics, dated 13 March 2024, to address noise emissions must be implemented in accordance with Environment Protection Act 2017 (Vic) and the incorporated Noise Protocol (Publication 1826, Noise Limit and Assessment Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and Entertainment Venues) and to the satisfaction of the Responsible Authority as follows:

(a) Acoustic screening to the MAC-90 refrigeration unit

(b) The western and northern site acoustic fencing be sealed and repaired as necessary including certification that the fence addresses noise emissions in accordance with the Noise Protocol (Publication 1826, Noise Limit and Assessment Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and Entertainment Venues).

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

[2] It is acknowledged that this 'criteria' is not a requirement in Victoria. Further discussion of this is set out further below.

[3] This amendment application was made pursuant to section 72 of the PE Act.

[4] Some of the descriptions in this section are taken from the council's written submissions.

[5] Source: the council's submissions, Attachment 4.

[6] This northern inaccessible part of the site is excluded when reference is made in these reasons to the northern and western boundaries.

[7] Source: Attachment 3 of the council's submissions.

[8] Source: document provided by the respondent to Ms Li during cross examination of Ms Li on day 2 of the hearing, 20 February 2025.

[9] Clause 02.01-4 'Economic Development'.

[11] Clause 02.03 'Strategic Directions'

[13] Who were also joint applicants for review, except Ms Giannakopoulos.

[14] Acoustics Expert Evidence by Mr Ross Leo of Clarity Acoustics Pty Ltd dated 4 February 2025, Tribunal Book pages 833 - 862.

[15] Acoustics Expert Evidence by Mr Nicholas Peters of Renzo Tonin & Associates Pty Ltd dated 5 February 2025, Tribunal Book pages 893 - 977.

[16] Intermittency is defined as more than 2 rapid variations in noise over the 30-minute period.

[17] Addendum to Statement of Mr Ross Leo.

[18] Paragraph 1.7 of Mr Peters' addendum evidence statement.

[19] Paragraph 6.2.1 of Mr Peters' evidence statement.

[20] Paragraph 2.5 of Mr Peters' evidence statement.

[21] Paragraph 5.2.4 of Mr Leo's evidence statement.

[22] Paragraph 57 of Mr Pagliaro's evidence statement.

[23] Swancom Pty Ltd v Yarra City Council VCAT 923 (10 June 2009).

[24] Paragraph 19 of Ms Brest's evidence statement.