In permit application no. M/2003/649, the decision of the Responsible Authority is set aside. A permit is granted and is directed to be issued. The permit relates to the land at No. 47-51 Maroondah Highway, Croydon. The permit will allow the use and development of the land for the purpose of a convenience restaurant, and a reduction in the parking requirements of Clause 52.06, in accordance with the endorsed plans and subject to the following conditions:

1 Before the development and/or use starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be substantially in accordance with the plans submitted with the application, but modified to show:

(a) Floor and car park levels and dimensions to elevations.

(b) Corrections to the plans to ensure an accurate scale is shown.

(c) The provision of a landscape plan and associated planting schedule for the site, as referred to in Condition 21.

(d) The removal of the Hungry Jack's sign on the rear (north) face of the mansard roof of the building.

(e) The provision of a 3 metre high acoustic fence along the common boundary of the subject land with properties at No. 45 Maroondah Highway and No. 10 Hannora Crescent, tapering down toward the Highway frontage.

(f) Provision of a pedestrian pathway from the Maroondah Highway leading into the site, including a crossing point at the internal driveway and pathway leading to the main entry.

(g) Provision of a linemarked pedestrian pathway between the convenience restaurant leading to the remainder of the Hotel site.

(h) Lighting plan for the carpark and driveway areas. There must be no pole lighting and all lighting must be programmed by automatic timer devices.

(i) Provision of a waiting bay(s) for customers to the drive-through who must wait for their meal, so as to avoid queuing and delays.

(j) A schedule of colours, materials and finishes including non-reflective elements to minimise glare and reflection.

(k) A management plan as referred to in Condition 14.

2 The use and/or development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3 The amenity of the area must not be detrimentally affected by the use of development, through the:

(a) Transport of materials, goods or commodities to or from the land;

(b) Appearance of any building, works or materials;

(c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;

4 All materials stored on the site shall be stored out of view or in such manner so as not to cause unsightliness when viewed from nearby lands or roadways.

5 No external sound amplification equipment or loud speakers shall be used for the purpose of announcements, broadcasts, playing of music or similar purposes, except with the further written consent of the Responsible Authority.

6 No security alarm or similar device shall be installed on any part of any existing or proposed building situate on the land unless it is of a silent type approved by the Standards Association of Australia and connected to a registered security firm, except with the further written consent of the Responsible Authority.

7 Noise levels emanating from the land shall not exceed the maximum levels specified by the relevant EPA regulations.

8 Odour filters shall be installed and maintained to control cooking, odours, fumes and smoke to the satisfaction of the Responsible Authority so as to prevent the emission of odours outside the premises.

9 Illuminated signage on the roof of the building, including strip lighting, facing properties at Nos. 10 Hannora Crescent and No. 45 Maroondah Highway is to be turned off after 10pm on any day.

10 The metal cladding on any building including the roofing shall be non-reflective and this shall be complied with in any of the following ways:

(a) By use of color bonded or treated metal cladding;

(b) By painting in muted tones, provided always that such painting is completed prior to the occupation of any building hereby approved;

(c) By means as approved by the Responsible Authority.

11 Except with the further written consent of the Responsible Authority, the use hereby permitted shall only operate between the hours of:

(b) Friday and Saturday - 6am to 2am the following morning.

The external playground may only operate between dawn and dusk on any day.

12 Construction plans for all parking areas and access lanes and the drainage thereof shall be submitted to and approved by the Responsible Authority prior to the commencement of any buildings or works authorised or required by this permit, except with the further consent of the Responsible Authority.

13 Before the use/development starts, areas set aside within the site for parked vehicles and access lanes as shown on the endorsed plans must be:

(a) Surfaced with an all-weather seal coat, with one of the following alternatives:

(i) 100 mm depth reinforced concrete on a 50 mm Class 2 fine crushed rock bed with F72 reinforcing fabric fixed centrally.

(ii) A bituminous concrete surfacing consisting of a 40 mm compacted depth, size 10 aggregate, on a 150 mm depth bed of 20 nun, Class 2 fine crushed rock bed.

(iii) a bituminous prime and seal or emulsion treatment using a cover of size 10 aggregate and a second cover of size 5-6 aggregate on a fine crushed rock bed as for (ii) above.

(b) Linemarked to indicate each car space and all access lanes;

(c) Provided with concrete kerbs or other barriers to prevent direct vehicle access to an adjoining road other than by a vehicle crossing;

(d) Provided with a directional sign(s) to direct drivers to the area set aside for car parking. The sign(s) must be located and maintained to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

14 Prior to the commencement of the development, a management plan addressing deliveries/loading, the collection of waste and rubbish must be submitted to the Responsible Authority. When to the satisfaction of, and approved by, the Responsible Authority, the Plan will be endorsed and then form part of the permit. The Plan must address, but is not limited to:

(a) Details of daily rubbish collection in public areas within a radius of 100 metres from the land.

(b) Storage and collection of wastes, including the number of dump masters.

(c) Provision of rubbish bins within the car park and adjacent areas (such as the Croydon Hotel carpark with the agreement of the Hotel management/owner).

15 An area shall be set aside for the loading and unloading of goods and shall be kept free of obstruction for this purpose to the satisfaction of the Responsible Authority.

16 The loading and unloading of goods from vehicles must only be carried out on the land.

17 No goods or packaging materials shall be stored or left exposed outside the building so as to be visible to the public from the road or so as to prevent cars being parked in designated spaces.

18 Waste collection, loading and deliveries may only occur between the hours of 7am and 10pm on any day.

19 Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.

20 In areas set aside for car parking, concrete kerbs or other barriers must be provided to the satisfaction of the Responsible Authority to prevent damage to fences or landscaped areas.

21 Prior to the commencement of buildings and/or works hereby permitted, or at such later date as the Responsible Authority may approve in writing, a landscape plan prepared by a suitably qualified person which incorporates:

(a) A survey of all existing vegetation and natural features;

(b) The area or areas set aside for landscaping and pathways;

(c) The retention of existing trees including those to the front of the site and along the western boundary as shown on the application plans;

(d) A schedule of all proposed trees, shrubs and ground cover, which will include the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

shall be submitted to and approved by the Responsible Authority. An endorsed copy of the landscape plan shall form part of this permit.

22 Before the use/development allowed by this permit starts, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

23 The area set aside for landscaping shall be used for no other purpose except with the further written consent of the Responsible Authority.

24 Prior to the commencement of the buildings or works hereby permitted, or at such later date as the Responsible Authority may approve in writing, there shall be lodged with the Responsible Authority a security deposit, (e.g. bank guarantee), to the value of $4,000 for the satisfactory completion of the landscaping works hereby required. Upon completion of the landscaping works to the satisfaction of the Responsible Authority, the Responsible Authority will refund the security deposit to the payee. In the event that the landscaping works are not completed to the satisfaction of the Responsible Authority, the Responsible Authority may complete the landscaping works and deduct the cost thereof, (including supervision), from any security deposit lodged pursuant to this permit.

25 The location and detail of signs shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

26 All signs must be located wholly within the boundary of the land.

27 All signs must be constructed to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority.

28 No advertising sign, other than as shown on the endorsed plan, shall be erected, painted or displayed on the subject land without the permission of the Responsible Authority, unless in accordance with the Maroondah Planning Scheme.

29 The signs hereby permitted shall be internally illuminated only.

30 The signs hereby permitted shall not contain any flashing or intermittent flashing light.

31 The intensity of light in the signs shall be limited so as not to cause glare or distraction to motorists or other persons, to the satisfaction of the Responsible Authority.

32 The owner, the occupier and the manager shall be responsible at all times for the orderly conduct of people within the premises and make all reasonable endeavours at all times to ensure that persons resorting to the premises do not create a nuisance or annoyance to adjoining properties or otherwise disturb the amenity of the area.

33 The acoustic fence shall be constructed on the boundary as shown on the endorsed plans at the permit holder's expense and thereafter maintained to the satisfaction of the Responsible Authority.

34 This permit will expire if one of the following applies:

(a) The development and use is/are not started within two years of the date of this permit;

(b) The development is not completed within four years of the date of this permit;

(c) The use is discontinued for a period of two years.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Mr A Finanzio of counsel instructed by Deacons Lawyers. Mr Finanzio called Ms S Opperman, town planner, Mr J Walsh, traffic engineer, and Mr T Marks, acoustic engineer, to give evidence.

Mr M Antonio, Mr R Richens, Mrs Y Menegol and Mr T Brunners all in person. Several other residents were in attendance during the course of both days of the Hearing.

1 This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Hungry Jacks Pty Ltd to review a decision made by the Maroondah City Council ("the Council") to refuse to grant a permit in permit application no. M/2003/649. A Notice of Refusal was issued by the Council on 3 November 2003. An Application for Review was lodged on 20 November 2003.

2 As a statement of grounds had not been received by the Tribunal, Mr T Brunners sought leave to make a submission. There being no objection, I granted leave for Mr Brunners to make a submission.

3 The subject site is located on the north-west side of the Maroondah Highway, east of Kalinda Road. The site is to the south-west of the existing Croydon Hotel complex and is currently used for car parking (63 spaces). The area of the Hotel complex in total is some 31,610 square metres while the area addressed by the permit application is approximately 3,330 square metres. The review site for the purpose of this proposal has a frontage to the Highway of 45 metres and a depth of some 77 metres. There are native trees on the land within a landscape area adjacent to the Highway. There are also large trees within a landscape strip adjacent to the western site boundary. The Croydon Hotel also includes a drive-through bottle shop and motel. These are single level structures. There is a retirement village further to the north-east of the Hotel.

4 Residences otherwise abut the review site to the north-west and west; much of which is part of a recently developed estate. One dwelling immediately abuts the review site at No. 10 Hannora Crescent (Mr Antonio's residence). It has a setback of 3 metres from the review site, an area that has been recently covered. Private open space is also adjacent to the review site.

5 Other residences with frontage to Hannora Crescent are located to the north-west of the review site (eg. Nos. 12 and 14, the Brunners and Menegol residences respectively). Each has open space facing toward the Hotel site with dwellings set down on their lots. Residential properties are also located further to the west.

6 Most nearby dwellings are single storey however, there are some double storey homes, such as Nos. 8 and 14 Hannora Crescent with upper level windows facing toward the review site.

7 There is a vacant lot at No. 45 Maroondah Highway and then residential properties further to the west. There is a two metre high paling fence along the common boundary No. 45 Maroondah Highway, Nos. 10, 12 & 14 Hannora Crescent, and lots further north. There is a lattice extension above the fence.

8 Maroondah Highway (Whitehorse Road) is a major arterial. It is divided by a central landscaped median strip with three traffic lanes in each direction.

9 The permit application seeks approval for the use and development of the review site for the purpose of a convenience restaurant and associated car parking. The restaurant is proposed to contain 56 seats as well as 24 external seats, allowing for 80 customers. A total of 27 car spaces is proposed, including one space for disabled persons. The building area is proposed to be 290 square metres. The single level structure would be setback by 30.5 metres from the Highway frontage and 27.6 metres from the western boundary. The drive-through would be to the eastern side of the building, with outdoor seating and a childrens' play area to the south (front) of the building.

10 The proposed building would have a pitched roof with a neon strip along the fascia. The maximum height of the building would be around 6.7 metres, with wall heights of around 3.5-4 metres. The drive-through canopy would be 5.5 metres in height. [Some plans have an incorrect scale and the dimensions cited were confirmed by Mr Finanzio at the Hearing].

11 The proposal relies on the existing access point to the Hotel site and proposes a one-way movement system through the site for drive-through customers. Part of this area, to the west of the site, is shared with motorists parking along the western boundary (ie. adjacent to the landscaped area and fence). The landscape setback area is retained along the western boundary adjacent to existing dwellings including all existing trees. Some additional planting is also proposed along the site frontage and new planting is proposed to the rear. Two eucalypts would be required to be removed.

12 The hours of operation proposed are Sunday - Thursday 6am to midnight and Friday and Saturday 6am to 2am the following morning.

13 Advertising signs are part of the proposal, including a 10 metre high pylon pole sign, neon parapet signs to the mansard roof of the restaurant building, directional and clearance signage and menu boards.

14 The subject site is located in a Residential 1 Zone pursuant to Clause 32.01. A permit is required to use and develop the land for the purpose of a convenience restaurant. No overlays apply to the land.

15 The particular provisions at Clauses 52.05 (Advertising Signs), 52.06 (Car Parking), 52.07 (Loading), 52.20 (Convenience Restaurant and Take-Away Food Premises) and 52.29 (Land Adjacent to a Road Zone Category 1) are all relevant to this Application.

16 The local policy at Clause 22.03 applies to all residential land in the municipality (with some nominated exceptions). It is entitled Maroondah Residential Neighbourhood Character Policy. It addresses (inter alia) non-residential uses and includes policies that non-residential land uses should:

* Maintain or enhance the residential aspect or physical appearance of the area.

* Be located adjacent to or abutting an existing business zone.

* Provide a use or service that is not able to be provided within the business centre.

* Not result in the ribboning of commercial development.

* Not result in the establishment of commercial uses in intact residential areas.

17 A number of other Clauses are relevant to this Application, and have been considered by the Tribunal. They include Clauses 16, 17.01, 17.02, 18.01, 18.02 and 19.03 of the State Planning Policy Framework, Clause 21 (Municipal Strategic Statement), Clause 22.06 (a local policy relating to retail and commercial development) and the decision guidelines at Clause 65. Melbourne 2030 has also been considered by the Tribunal.

18 I have considered the written and oral submissions presented and I have twice inspected the subject site and locality (including adjacent residential properties on one daytime occasion). I do not recite all of the material presented. Evidence in documentary form and the written submissions tendered by the parties are retained on file in addition to written statements of grounds filed with the Tribunal. I set out my findings in relation to the key issues in this Application having regard to the policies, objectives and decision guidelines of the Maroondah Planning Scheme.

19 The submissions by the Council and Respondent Objectors strongly opposed the use of the review site for a convenience restaurant. They submitted that there are adequate fast food premises and restaurants in the area without the need for an additional facility. They also contended that the proposal would not serve a local community need as it is designed to capture a wider market and is not wanted by the local community. These submissions were challenged by Mr Finanzio through the evidence of Ms Opperman, noting that there was no disagreement with the submission that the proposal would serve a wider catchment than local residents.

20 I first state that the presence of other convenience restaurants as well as other restaurants and take away food premises in the locality is not a basis to reject this proposal. Mr Finanzio referred to a number of cases where the Tribunal has considered need, decisions with which I agree (for example Shell Company of Australia Pty Ltd and Ors v City of Frankston and Anor 8 APAD 127 at 135). In short, the main point is that demonstrated need for a facility or use may be a relevant factor but "lack of a need will rarely, if ever, be a ground for refusing to grant a permit" of this kind.

21 The proposed convenience restaurant would serve broad catchment that may include the immediate local community (however narrowly "local" may be defined) as well as passers-by and persons who specifically drive or walk to it. That is not, however, automatically fatal to this Application. Rather, it may be one reason why the provisions of the Residential 1 Zone require such uses to only be considered if they adjoin or have access to a Road 1 Zone and why Clause 52.20 requires the suitability of access to a main road to be assessed. A main road is usually a location where traffic infiltration through local residential streets and other amenity issues associated with wholly residential precincts can be minimised.

22 Therefore, while I accept that a regional facility is not encouraged by the purpose of the Zone there may be circumstances where facilities with a wider catchment, and possibly a regional catchment, can be acceptable. The determinative issues in this Application instead relate to the consistency of the proposal with the policy directions of the Scheme, visual impact, off- site amenity considerations, and parking and access which I refer to below.

23 Given that the provisions of the Residential 1 Zone allow consideration of the proposed use, it is important to consider the proposal in terms of the policies at Clause 22.03 that were referred to by some parties. I have set out the relevant policies of Clause 22.03 above and highlight the intent to avoid ribboning commercial development by encouraging non-residential land uses to be located adjacent to or abutting an existing business zone. Non-residential land uses should also "Not result in the establishment of commercial uses in intact residential areas".

24 There is also a Retail and Development Policy that applies to all retail and commercial development at Clause 22.06. It was not referred to in any of the submissions or in the statement of planning evidence, although I raised it at the Hearing. On my reading, it works "hand-in-glove" with the non-residential uses section of Clause 22.03 in so far as it seeks to consolidate existing activity and retail centres rather than create new centres at new locations. It is policy at Clause 22.06 that "new convenience and combined retailing outlets be located in or adjacent to existing commercial areas".

25 The subject site is not zoned for commercial purposes and several business zones can be found a distance to the east and west along the Maroondah Highway. Some of these centres house existing convenience restaurants and other restaurants and take-away food premises. The review site is also not adjacent to or abutting an existing business zone. On that basis, it could be said that the proposal would add to a ribboning effect along the Highway. Consequently, it could be readily concluded that the proposal is at odds with the policy direction of the Scheme. Indeed, such a finding could be made if the land was used for residential purposes at present. There is also the valid contention that the proposal would intensify the use of a site that is already used for a non-residential purpose.

26 However, I am not persuaded that the proposal can simply be dismissed for those reasons because:

* The review site is part of a large land holding that appears to have been used for non-residential purposes, as a hotel, for many years. Although it is not zoned for business purposes, it is an existing commercial site which is under-used except on one or two peak days in a year (such as Christmas Eve) when the parking area is full to overflowing. Given the land's existing use, the proposal would not, in my view, add to a ribboning effect along the Maroondah Highway.

* The proposal would not change the land from residential to a non-residential use. Clause 52.20 refers the question as to whether the review site would be suitable for a residential use. On one view, positioning new housing so close to a Hotel could be fairly queried, although residents in this case can also validly question the reverse proposition of siting a convenience restaurant close to existing housing.

* The proposal seeks lesser hours of operation than allowed for the Hotel (albeit that the Hotel may not exercise fully what I understand to be a 4am entitlement).

* There are no obvious alternative sites available within business zones nearby.

27 On balance, if amenity, layout and other considerations can be addressed, I find that the subject site could be suitable for the proposed use.

28 The form of the proposed development was criticised in terms of its relationship to the character of the area and the loss of trees.

29 The restaurant building and associated structures would be set well back from the Highway frontage, by some 30 metres (excluding an enclosed childrens' playground forward of the building). When taking into account the fall of the land away from the Highway, the retention of existing trees and the single storey scale of the structures, the visual impact is not dominating or unreasonable.

30 Signage would be a more intrusive element but a desired adjunct to this type of business from an operator's perspective. The proposed pylon sign to the front of the site may be higher than the existing Hotel sign (at around 8-9 metres) but I find the form and height to be reasonable given the nature of the use.

31 The design provides for two trees to be removed with the remainder retained. While the existing vegetation creates maintenance issues for Mr Antonio, I find that replacement planting and new planting can provide a reasonable landscape setting for the proposed development and that the loss of trees is not a basis to reject the Application. Species selection is a matter that can be reviewed by the Council.

32 A number of issues arise from the submissions of Respondent Objectors in relation to potential off-site amenity impacts that I address in turn.

33 First, is the visual impact associated with the proposed building form. The proposed building and outdoor area is a minimum of 24 metres from the vacant land at No. 45 Maroondah Highway and more than 30 metres to the nearest dwelling at No. 10 Hannora Crescent. To the extent that views of the proposed building are possible from dwellings or private open space, to its upper portion and roof at most, I am not persuaded that the visual impact is significant or intrusive. Existing vegetation may not conceal the building but there is no need to do so at this setback distance. Views of the proposed building would be more apparent from the second storey of dwellings at Nos. 8 and 14 Hannora Crescent but again I do not consider that the ability to see the structure and some signage equates to visual intrusion or dominant building elements that warrant changes to the design or rejection of the Application. Few views would be possible from the private open spaces of Nos. 12 and 14 Hannora Crescent.

34 Second, is the potential for noise intrusion. This is of considerable concern to Council and residents, based primarily on activity in the car park (and to a lesser extent the childrens' playground). Car park activity was said to potentially include noisy vehicles late a night, gatherings of young and rowdy people/motorists including music playing in cars, noise associated with delivery and waste vehicles, and the operation of plant and equipment. As a fall-back, the possibility of a 3 metre high acoustic fence was suggested by some residents.

35 The potential for noise to be unreasonably intrusive was challenged by Mr Finanzio, relying on the evidence of Mr Marks. Mr Mark's statement sets out his results and conclusions and, taking into account existing background noise and "worst-case" situations in relation to noise generation, his opinion was that the proposal would not significantly alter the noise environment experienced by residents if the acoustic fence was in place (2 metres high) in a repaired form. He considered that a 3 metre acoustic fence would mask more noise but was not necessary.

36 The review site is at a sensitive interface and I appreciate that this is a major concern to some adjacent property owners given the late night operation of the proposed facility. However, I am persuaded by the evidence of Mr Marks and do not consider noise associated with the proposed uses as a reason to refuse a permit if appropriate conditions are in place. The adjacent dwellings are exposed to noise as a result of traffic using the Maroondah Highway and other sources, for example, cars using the Hotel car park (including the landscape reserve adjacent to the fence that was said by residents to be used for parking on some occasions). There does not appear to be a high level of complaint by existing residents some of whom explained that they had bought into the area cognisant of and having investigated these circumstances.

37 Mr Marks' evidence was that there would be little noticeable change in these circumstances with an appropriately erected and maintained acoustic fence (that being either the existing fence in a repaired form or a new fence). In fact, his evidence was that the situation "would be no worse than at present" when answering a question from Mr Brunners, although he also recognised the different sensitivities of individuals to noise.

38 I am persuaded to require a 3 metre high acoustic fence to ensure a significant level of protection for adjacent residents and given Mr Mark's view that a higher fence would ensure that the sleep disturbance criteria are met. In so doing, I give weight to the fact that such a condition was not opposed by Mr Finanzio. Such a fence may have a side-benefit of assisting with existing noise from the Hotel and traffic. The fence is required adjacent to the review site (ie. Nos. 10 Hannora Crescent and No. 45 Maroodnah Highway - tapering down adjacent to the front landscaped setback area) but not to other dwellings further along Hannora Crescent that do not share an abuttal with the review site.

39 I add that it would be necessary to include a permit condition to ensure that the fence is maintained to retain its acoustic qualities.

40 The potential for noise to emanate from the playground was as a further concern but I find no need to limit its availability to less than daylight hours or to require an acoustic glazed enclosure. In my view, restricting play time to say 7.30pm is not reasonable - there could be much greater noise from children within a neighbouring back yard than a playground to the front of the convenient restaurant at a distance of more than 30 metres from the closest home within an intervening acoustic fence. I would not oppose such a glazed enclosure if desired by the operator but do not require it.

41 Third, is the potential of lighting associated with the car park and signage to impact on the amenity of nearby residences. I understand that there is no intent to add any pole lighting in the car park and that low level bollard-style lighting is likely. This is a matter that can be addressed by way of a lighting plan to be provided to the Council.

42 I note the offer made by on behalf of the Applicant that the roof sign and strip sign on the west elevation facing the Hannora Crescent dwellings could be switched off at 10pm and that is an acceptable proposal. The use of automatic timer switches as suggested by Mr Richens is sensible and practical. There is also an agreement by the Applicant to remove the rear illuminated roof sign that would serve no real purpose in terms of advertising.

43 While glare from headlights was not raised as a specific issue, a 3 metre high fence and additional planting along the western boundary (ie. adjacent to residential lots) would sufficiently address this matter.

44 Fourth, is odour. The potential for cooking smells and other odours to impact on resident amenity is a valid concern. It is noteworthy that there are some EPA guidelines in relation to air emissions and the installation of odour filters could assist to address concerns relating to the emission of odours from the site. In my view, it is appropriate to add a condition that such filters be installed and maintained.

45 Fifth, is a concern that the proposal will result in anti-social behaviour and drug-related activity. Residents spoke of some incidents they have experienced, such as needles being found over fences. Anti-social activity can occur in many places and I find no basis to conclude that the proposal should be rejected because of the potential for this activity to increase.

46 Sixth, is the potential for more cars to be distributed differently around the Hotel car park and to parked toward the side/rear of the Hotel site, impacting more residential properties than at present. That is a possible and even likely outcome but not justification to refuse the proposal. The car park exists and there should therefore be an expectation that it may be used for the purpose for which it is designed.

47 Seventh is leaf litter and maintenance associated with trees on the review site. This is a matter raised by Mr Antonio to which I have referred previously. The selection of species is a matter for the Council to consider in detail and it would be desirable for residents to make their views in relation to this matter known to the Council.

48 A further matter is the proposed hours of operation. While residents and the Council oppose the proposal, the potential for reduced hours of operation was raised by Mr Antonio and Mr Richens in the event that a permit was to issue. I have carefully considered this matter and I am satisfied that with other issues addressed by way of conditions, as discussed in these reasons, that the hours sought by the Applicant are acceptable.

49 The proposal provides for a loading/delivery bay to the rear of the proposed restaurant. Mr Richens questioned both the ability of this space to cater for the amount of waste created and access arrangements for waste collection vehicles.

50 I find that this is a matter of detailed design that can be addressed by way of a permit condition that addresses waste management and related matters of loading and deliveries a single management plan. It is reasonable to assume that the proponent has allowed sufficient storage for waste to meet its needs, but that can be reviewed through such a plan. Having said that, it would be appropriate to include a condition that requires goods or packaging materials to be stored so that they are not placed or left exposed outside the building so as to be visible to the public from the road or so as to prevent cars being parked in the designated spaces.

51 The potential for litter to increase beyond the review site was another concern. A decision of the Tribunal has dealt with this issue in some detail; see McDonalds Properties (Australia) Pty Ltd vs City of Moreland and Bailey and Ors (1997/12928, 1997/12936, 1997/12944) reported at 19 AATR 153. In that case, an EPA study found that one McDonald's restaurant was the source of a high proportion of rubbish found across the Merri Creek Catchment, particularly in terms of plastic take away food litter. The Tribunal, in granting a permit with conditions, required the operator to conduct a litter patrol to collect daily rubbish from public roads and reserves within 100 metres of the site. The Tribunal said:

The Tribunal agrees that this [litter] is a vexed problem but it is more of a community problem exacerbated by the popularity of convenience food. There may be some justification in the fast food industry as a whole participating in both clean up and community education programs....

52 I reach the same view in the current proceedings, as was also the case when Senior Member Preuss and I considered a proposal for a McDonald's store in Torquay. In that case (Application for Review No. 1999/048916 Rochester and Ors v Surf Coast Council and Aljean Nominees), we said:

Litter appears to be an issue regardless of the location of a premises, but, in this case, it can be regarded as a particular concern given that people may take food to foreshore areas where litter then finds its way into the sea, and onto the beach and foreshore reserves.

53 Mr Finanzio did not oppose a condition similar to that described above involving rubbish collection around the review site, and that can be part of a waste management plan for the site. Such a plan can consider the need for any additional garbage bins in the locale, such as the Hotel car park, which would be sensible in my view.

54 The proposal provides for 27 on-site car spaces, including one space for disabled persons. The submission by the Council opposed a reduction from the parking requirement of 0.6 spaces per seat set out at Clause 52.06 of the Scheme. Local residents similarly felt that the proposal would have inadequate parking available at peak times (eg. including birthday parties).

55 Where the specified parking provision of 0.6 spaces per seat is provided by a permit applicant there is no debate as to whether parking is adequate. However, the provisions of Clause 52.06 allow a lesser number of spaces to be provided.

56 When considering a proposal involving fewer spaces than the specified rate, a number of matters are required to be taken into consideration. These are set out at Clause 52.06 and include:

* The availability of car parking in the locality.

* The availability of public transport in the locality.

* Any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces.

* Any car parking deficiency or surplus associated with the existing use of the land.

57 In this case, there is an empirical assessment of parking demand provided through the evidence presented by Mr Walsh. It shows a peak demand of 17 spaces, based on surveys of like premises, or 0.3 spaces per seat. Even if that assessment was low, the proposal includes 10 more spaces than the peak predicted demand. Moreover, it is relevant that there is ample space that may be available from time to time on the Hotel site, although that is not relied upon when accepting the empirical assessment.

58 From time to time the Hotel will be busy as would a convenience restaurant. Their peak parking periods are not coincidental, based on Mr Walsh's evidence, but there would be expected to be some overlap. Only on limited occasions would the car parks both be full - Christmas Eve is the only example in relation to the Hotel that I was referred to. Most other times the existing Hotel car park was said by Mr Walsh and residents to be occupied at a rate of around 50% or less (sometimes significantly less).

59 Childrens parties may be a time when many cars are within the car park but I find no reason to conclude that such an activity warrants additional parking when being mindful of the times at which parties typically occur.

60 In relation to other considerations of Clause 52.06, public transport is not likely to be influential in this setting and I find no issue in relation to local traffic management (referred to below).

61 I am satisfied that adequate spaces are proposed on-site and that overflow could be accommodated if necessary.

62 Several issues arose during the course of the Hearing in relation to the internal layout of the site.

63 A concern of the Council and residents (and a matter commented upon by VicRoads) is the availability of queuing space for vehicles in the drive-through. A related matter is the absence of any bays for patrons using the drive-through but who are required to wait for their order to be available.

64 Mr Walsh's evidence was that adequate queuing space is provided and that adequate aisle width is available to prevent vehicles being blocked when leaving the car park. He conceded, however, that it would be desirable to provide for a waiting bay and proposed two locations for a bay(s).

65 I accept Mr Walsh's evidence that adequate queuing area is available for usual operations although I can envisage situations where queues may extend around the kerb-outstand adjacent to car spaces 21-27. I am not, however, persuaded to vary the design based on Mr Walsh's evidence that courtesy between drivers can reasonably be expected.

66 The provision of a waiting bay(s) is however required. It is a matter for the Council and Applicant as to whether one or two spaces are provided.

67 The potential for additional points of conflict within the car park was also raised, such as when cars use the 3-point turning area or when pedestrians move through the site (given no designated pedestrian pathways are shown). I accept Mr Walsh's evidence that the layout is workable however, the absence of any pedestrian pathway system from the Maroondah Highway is problematic noting that Clause 52.20 requires consideration of pedestrians. A path can be provided from the Highway, with a crossing point at the internal driveway, leading to the main entry. This is necessary and would significantly enhance pedestrian access to the restaurant. A pathway link toward the Hotel may also be desirable.

68 Mr Richens raised the question of the need for speed humps, based on his observations of other convenience restaurants. On the information before me, they are not necessary but again would not oppose their installation if that assists to control vehicle movement within the site.

69 There is no doubt that the Maroondah Highway is a busy and important arterial traffic route. Having visited the site and considered Mr Walsh's evidence, I am satisfied that the proposal would not unreasonably impact on traffic movement on the Highway or create conflicts at the nearest intersecting local streets. In reaching this view, I give weight to the fact that VicRoads has not opposed the Application in terms of its access arrangements and the only concerns raised by that authority in relation to the proposal focussed on the internal layout (as discussed above). There is also no basis to conclude that inadequate queuing area is available for right turn vehicles into the site (westbound from the Highway). In the future, if demand is such that additional queuing area is required, then that is a matter VicRoads would usually take up in managing this part of the road network.

71 First, residents contended that the proposal would have a negative impact on property values. There is no evidence in support of decreased property values and I can not rule in favour of such an objection. The matters which determine the final outcome of this Application for Review are based on planning considerations.

72 Second, residents expressed concern about the possible failure of an operator to comply with permit conditions; a circumstance that had observed at other fast food premises such as in relation to the maintenance of landscaping. I accept that breaches of permits do occur and there are proceedings that can be initiated by a Responsible Authority or individual in such an event. I am not persuaded to depart from the usual practice that permits are granted in the expectation that conditions imposed on them will be complied with, and the sanctions and penalties involved for the flagrant breach of permit conditions are severe and must be pursued through other litigation.

73 For the above reasons, I find that with some changes and subject to conditions, the proposal would achieve an acceptable outcome in terms of the policies and decision guidelines of the Maroondah Planning Scheme. I will therefore order that the decision of the Responsible Authority be set aside, and a permit issue subject to conditions.