Clause 52.27 - To use land to sell or consume liquor if a licence is required under the Liquor Control Reform Act 1998.

The site is located on the corner of Church Street and Justice Road, Cowes, with its principal frontage being Church Street, Cowes. The land is currently developed with two and three storey buildings constructed in the late 1950s which are associated with the previous use of the land as a Motel. The site also contains associated recreation facilities including a swimming pool, outdoor dining and sun lounge areas.

1 Jaysal Pty Ltd (the applicant) proposes to develop and use a Motel (with a general liquor licence) at 349-357 Church Street, Cowes. Following Bass Coast Shire Council's (the Council) failure to determine the application within the statutory period, the permit applicant has requested the Tribunal determine the matter.

2 Prior to the commencement of the hearing, the applicant circulated amended plans in accordance with the Tribunal Practice Note PNPE9. The amended plans remove a function centre from the plans, reduce the number of accommodation units and increase the available onsite car parking.

3 On the basis of the amended plans, the Council has advised that it now supports the granting of a permit subject to conditions. The applicant opposes some of these conditions.

4 The respondents to this application object to the proposal being granted a planning permit, however their concerns have been tempered by the amendments made to the advertised plans.

5 There being no objection, I allowed the amended plans to be substituted and these now form those on which my decision is reached.

6 I have considered these objections and the issues raised by the respondents along with the reasons why the Council now supports the proposal, and the response of the applicant.

7 I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Bass Coast Planning Scheme, and assisted by my site inspection, I have decided to set aside the decision of the responsible authority and direct that a permit be granted.

8 My reasons explain the findings I have arrived at in respect to the substantive issues and why I have concluded that a permit that is subject to a range of conditions should be granted.

DETAILS OF THE PROPOSAL AND THE SUBSTANTIVE ISSUES

9 The land is currently developed with two and three storey buildings constructed in the late 1950s which are associated with the previous use of the land as a Motel. The site also contains associated recreation facilities including a swimming pool, outdoor dining and sun lounge areas.

10 Following uncertainty about the ongoing and continuing use of the land as a Motel, the matter came before the Tribunal, in Jaysal Pty Ltd v Bass Coast SC [2021] VCAT 514, where the Tribunal found that the site does not maintain Existing Use Rights as a Motel. In essence the proposal now seeks to formalise the previous use of the land as a Motel and construct three new accommodation modules (total 12 motel rooms) arranged in a U shape around a communal garden.

11 The application also seeks approval for a general liquor licence which would authorise the supply of liquor for consumption both on and off the licensed premises within a defined red line area shown on the substituted plans.

12 The hearing was conducted on the basis that many of the Council and respondent concerns with the original application have been resolved as a result of the amendments provided in the substituted plans. As this is a de novo hearing, I must therefore be satisfied that a planning permit should be issued for all of the relevant planning permit triggers.

13 The use of the land sought is for a Motel which is a form of accommodation and is included within the definition of a residential building. The definition of Motel includes:

Land used to provide accommodation in serviced rooms for persons away from their normal place of residence and where provision is made for parking guests' vehicles convenient to the room.

14 The parties agreed that the site is suitable for this type of land use. Its relatively large size, existing constructed infrastructure, and capacity to accommodate all required car parking on-site supports the use. No vegetation is proposed to be removed from the site.

15 The proposed building works comprise the construction of three building modules which each house four motel units, with the provision of screen planting along the western and southern boundaries of the site adjacent to proposed car parking areas and new buildings and works. Module 1 is set back 7.7 metres from the southern side boundary, Module 2 is set back 2.0 metres from the southern boundary and 2.1 metres from the west side boundary, with Module 3 set back 2.1 metres from the west side boundary.

16 Forty-three car parking spaces are proposed on-site, which satisfies the statutory rate of Clause 52.06.

17 I am satisfied that the use of the land for the purpose of a Motel is supported by the relevant provisions of the Bass Coast Planning Scheme. The proposal enables the existing infrastructure to be utilised and the site to be further developed for additional visitor accommodation. This supports the objectives of the local policy framework which identifies (at Clause 21.05-1) that Cowes is one of the four major population centres within the Shire, and that local policy places an emphasis on tourism being the pillar of the Bass Coast economy. Policy acknowledges that a range of accommodation contribute to the visitor's experience and to the economy and that there is a growing demand for environmentally sustainable tourism development.

18 With respect to the siting of the new building modules, the proposed minimum setback of 2.0 metres from the adjoining property boundaries to the south and west provides the opportunity for landscaping between the property boundaries. The single storey scale means that there are no opportunities for overlooking of adjoining properties.

19 Clause 18.02-4S Car parking's objective is to ensure an adequate supply of car parking that is appropriately designed and located. The amended application is able to meet all car parking requirements.

20 Conditions unopposed by the applicant require the endorsement of a patron management plan including a complaints process can address matters of site management in respect to noise and patron behaviour.

21 While Council, via its draft conditions sought the reduction in the width of the existing site crossover, I am satisfied on the basis of Mr Morello's evidence that the wider crossover allows for improved vehicle movements at the entry to the site. I refer to the commentary of Mr Morello that there are no clear traffic engineering reasons to require the reduction of the existing crossover.

22 With respect to the proposed liquor licence, this largely relates to the sale of alcohol within the on-site restaurant as well as via room service. Council's draft conditions sought a 10.00pm cessation of trading hours while the applicant sought a 11.00pm cessation.

23 Based on the nature of the use (being largely in-room or restaurant service), I am satisfied that the hours as sought by the applicant (being 11.00pm closure) will not unreasonably impact the amenity of the surrounding area or adjoining dwellings, consistent with the decision guidelines of Clause 52.27 of the Planning Scheme.

24 Finally, Council's draft conditions proposed that the car parking areas be constructed of an all-weather-seal coat, to reduce dust emissions beyond the boundaries of the site. The applicant submitted that a durable surface such as crushed rock or similar will provide an acceptable surface for the defined parking areas, as such a surface treatment is characteristic to Phillip Island with many tourist facilities provided with similar access and car park surfacing.

25 There was some confusion about the extent of paving of the internal accessway and proposed car parking spaces. For example, Drawing No. 3 shows both a gravel and a bitumen driveway at the rear of the existing building and adjacent the proposed new building modules, whilst a concrete driveway is proposed at the front of the site.

26 Mr Morello, under questioning, acknowledged that a sealed carpark and access lanes would result in reduced dust and noise emissions. For that reason, I agree with Council that some form of sealed access and car parking construction is necessary. Whilst I appreciate that older motel units may have previously been provided with gravel access and carparking, the reality is that the site now closely abuts newer residential dwellings with habitable room windows proximate to the shared property boundaries.

27 I accept that the Council condition as proposed will require an all-weather construction of both the accessways and car parking spaces. The actual nature of this construction is a matter that can be resolved with Council and may be in the form of a light spray seal that will reduce the dust and noise emissions that commonly arise from gravel treatment.

28 For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions. Conditions have been imposed in accordance with my findings above. I have also deleted conditions relating to car parking supply (as no permit is required) and required that the plans be amended to delete the development of the proposed dwelling on part of the land and remove reference to tree removal (as no permit is sought).

• Development and use of a Motel
• Sale and consumption of liquor on the premises

1 Before the use and development 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 generally in accordance with the plans considered by VCAT but modified to show:

(a) Removal of the notation "existing tree to be removed as dashed".

(b) Removal of that part of the land developed with a single dwelling (proposed Lot 2).

(c) Areas set aside for car parking or access notated as surfaced with an all-weather-seal coat.

(d) A schedule of external materials, finishes and colours incorporating colour samples.

(e) The location of new external plant and equipment associated with the 12 proposed Motel rooms including but not limited to service units for heating, cooling and hot water, solar panels, service shafts, ventilation systems, waste chute, television antennae and communication devices, service metres, and clotheslines, which are to be located and designed so as not to be visually prominent from the public realm or neighbouring properties. Where visible the plant must be appropriately screened.

(f) Designated loading and unloading area to the satisfaction of the Responsible Authority.

(g) Any changes recommended by the Waste Management Plan as required by condition 7 of this planning permit.

2 Before the development starts, a landscape plan prepared by a person suitably qualified and experienced in landscape design to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

(a) A survey (including botanical names) of all existing vegetation to be retained and/or removed.

(b) Buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary.

(c) Details of surface finishes of pathways and driveways.

(d) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.

(e) Landscaping and planting within all open areas of the subject land and landscape buffer adjacent to car park space 1.

3 Before the development is started/occupied or by such later date as is approved by the Responsible Authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.

4 The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority and used for no other purpose. Any dead, diseased or damaged plants are to be replaced.

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

6 No buildings or works shall be constructed on any existing easement (including implied sewer, drainage, telephone, gas, power and water easement) or proposed easement without the further approval in writing of the Responsible Authority and/or the relevant service provider.

7 Prior to the commencement of the development, a Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will form part of the permit. The plan must address, but not necessarily be limited to the following:

(a) the storage and collection of waste from the motel and ancillary operations including provision for bulk waste collection bins or approved alternative recycling bins, and the storage of other refuse and solid wastes in bins or receptacles within suitably screened and accessible areas to the satisfaction of the Responsible Authority;

(b) designation of methods of waste collection including the need to provide for private services or utilisation of council services;

(c) appropriate areas of bin storage on site and areas for waste bin storage on collection days;

(d) details for best practice waste management of the motel once operating;

(e) the regular removal of waste and litter from all areas of common property and the public walkway; and

(f) restricting the hours for waste collection from the site to the following hours (unless with the further consent of the Responsible Authority):

8 Prior to the commencement of works, a Construction Management Plan must be prepared, submitted to, and approved by the Responsible Authority. Once approved, the plans will form part of this permit and must be implemented to the satisfaction of the Responsible Authority. The plan must provide for, but is not limited to:

(a) Access;

(b) Materials storage;

(c) Worker parking;

(d) Interim stormwater and sediment runoff;

(e) Environmental management;

(f) Construction hours;

(g) Compliance with Construction Techniques for Sediment Pollution Control (EPA publication 275) and EPA noise control guidelines with respect to construction and demolition site noise.

9 Before the provision and/or consumption of liquor hereby permitted starts, a Liquor Licence must be obtained from Liquor Licensing Victoria, pursuant to the Liquor Control Reform Act 1988, as amended.

10 At all times during the operation of the use, there must be present on the premises a person over the age of 21 years who is responsible for ensuring that the activities on the premises and the conduct of persons attending the premises do not have a detrimental impact on the amenity of the area (referred to in this permit as "the manager").

The manager must be authorised by the operator under this permit to make statements at any time on his/her behalf to any officer of the Responsible Authority and of the Victoria Police and/or of Liquor Licensing Victoria authorised under Section 129 of the Liquor Control Reform Act 1998; and/or to take action on his/her behalf in accordance with a direction by such officer.

11 Before the use starts, a Patron Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be consistent with the endorsed plan(s) and include:

(a) Staffing and other measures which are designed to ensure the orderly behaviour of visitors to the Motel.

(b) Signage to be used to encourage responsible on-site patron behaviour.

(c) The training of staff in the management of patron behaviour.

(d) Staff communication arrangements.

(e) Measures to control noise emissions from the premises_._

12 The consumption and sale of alcohol must be restricted to areas shown on the endorsed plans.

13 Tables and chairs must be placed in position on the premises so as to be available for at least 75% of patrons attending the premises at any one time.

14 The liquor licence approved by this permit must not operate beyond trading hours of:

15 The serving of alcohol is limited to patrons and guests of the accommodation premises and is not available to the general public.

16 The Licensee shall not cause or allow undue detriment to the amenity of the area to arise out of, or in connection with, the use to which the license relates, during or immediately after the licensing hours authorised under this permit.

17 All new air conditioning plant and equipment associated with the 12 proposed Motel rooms and services shall be located so as to be incorporated within the building and should not project beyond the roofline or from an external wall and appropriately located and baffled to minimise noise levels to the satisfaction of the Responsible Authority.

18 The amenity of the area must not be detrimentally affected by the use or development, through the emission of noise to the satisfaction of the responsible authority.

19 The use and development must be managed to the satisfaction of the responsible authority, so that the amenity of the area is not detrimentally affected through the:

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

(b) Appearance of any buildings, 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;

(d) Presence of vermin.

20 All buildings and works must be maintained in good order and appearance to the satisfaction of the responsible authority.

21 All waste material not required for further on-site processing must be regularly removed from the site. All vehicles removing waste must have fully secured and contained loads so that no wastes are spilled or dust or odour is created to the satisfaction of the responsible authority.

22 Appropriate measures must be implemented throughout the construction stage of the development to rectify and/or minimise mud, crushed rock or other debris being carried onto public roads or footpaths from the subject land, to the satisfaction of the Responsible Authority.

The loading and unloading of vehicles and the delivery of goods must at all times be undertaken within the boundaries of the subject land and not occur outside the hours of between 8.00 am and 7.00 pm daily.

23 Before the use starts, the area(s) set-aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:

(a) properly formed and constructed to such levels that they can be used in accordance with the plans;

(b) surfaced with an all-weather-seal coat;

(c) drained;

(d) line marked to indicate each car space and all access lanes;

(e) clearly marked to show the direction of traffic along access lanes and driveways;

(f) measures taken to prevent damage to fences or landscaped areas of adjoining properties and to prevent direct vehicle access to an adjoining road other than by a vehicle crossing;

(g) provision of signage directing drivers to the area(s) set aside for car parking. Such signs are to be located and maintained to the satisfaction of the Responsible Authority. This sign must not exceed 0.3 square metres.

24 The areas must be constructed and drained to prevent diversion of flood or drainage waters, and maintained in a continuously useable condition to the satisfaction of the responsible authority.

25 Car spaces, access lanes and driveways must be kept available for these purposes at all times.

26 Before the use starts/development is occupied, all internal access roads must be constructed, formed and drained to avoid erosion and to minimise disturbance to the natural topography of the land to the satisfaction of the responsible authority.

27 Parking areas and access lanes must be kept available for the designated purposes at all times.

28 Before the use starts, no fewer than 43 car spaces must be provided on the land for the approved use and development, including the required number of spaces clearly marked for use only by persons with disabilities.

29 The loading and unloading of goods from vehicles must only be carried out on the land subject to this permit within the designated loading bay and must not disrupt the circulation and parking of vehicles on the land to the satisfaction of the responsible authority.

30 Before the issue of a Building Permit by the relevant Building Surveyor, detailed civil construction plans 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. All construction plans submitted for approval must be consistent with this permit and must conform with the requirements of all relevant servicing and road authorities, and in particular water, sewerage, drainage, telephone, gas and power authorities, VicRoads and Council. The plans must be drawn to scale with dimensions. An A3 plan and an electronic copy (PDF) must be provided. The plans must show:

(a) Drainage of the subject land, including levels or contours of the land (including relevant external catchments) and all hydraulic computations. The drainage plan must be prepared in accordance with the requirements of the Infrastructure Design Manual (IDM) as amended and must provide for the following:

1. How the land including all buildings, open space and paved areas within each lot will be drained for a 20% AEP storm event to the legal point of discharge.

2. An underground pipe drainage system conveying stormwater to the legal point of discharge and connecting into Bass Coast Shire Council's stormwater drainage system by the existing underground drainage property connection.

3. The provision of stormwater detention within the site and prior to the point of discharge into Bass Coast Shire Council's drainage system. The stormwater detention system must be designed to ensure that stormwater discharges arising from the proposed development of the land are restricted to pre-development flow rates.

4. Provision of over-land surcharge routes for all storm events up to the 1% AEP. This must include cut-off drains and associated infrastructure for the safe and effective passage of stormwater flows arising from areas upstream of the subject land discharging into Bass Coast Shire Council's drainage system.

5. No part of any above ground stormwater detention system is to be located within a stormwater drainage easement or a sewerage easement unless with the Responsible Authority's written approval.

6. Any above ground detention tanks to be deferred via a Section 173 agreement must be noted on the plans.

(b) Vehicle and pedestrian access and car parking to the satisfaction of the Responsible Authority including:

1. A single vehicle access (SD.250) to be designed in accordance with IDM standards. Clearance from obstructions including existing street trees, service authority assets, footpaths, kerb and channel, poles, rain gardens, pits, cables, pipes, bus shelters/stops, street furniture, signs, etc. must be shown on the plans.
2. Car parking areas and access ways on-site to be designed, constructed and sealed with an all-weather seal pavement (asphalt or concrete) to the satisfaction of the Responsible Authority.
3. Car parking spaces and access aisles designed in accordance with the Australian Standard for off-street car parking AS 2890.1 - 2004 and the Bass Coast Planning Scheme.

31 Before the Occupation certificate is issued, all storm water discharging from the existing buildings must be conveyed to the legal point of discharge to the satisfaction of the Responsible Authority.

32 Before the issue of an Occupation certificate the following works must be completed to the satisfaction of the Responsible Authority including all necessary permits being obtained and inspections undertaken:

(a) All civil construction works, must be constructed in accordance with the civil design plans for the property as endorsed by the Responsible Authority pursuant to this planning permit

(b) All drainage works (excluding any above ground detention tanks deferred via a Section 173 agreement) in accordance with the endorsed civil plans.

(c) Photographic evidence of the legal point of connection to Council's drainage system must be provided if Council inspection cannot be arranged prior to backfilling.

(d) Areas for common property, vehicle access and car parking within the land must be constructed in accordance with the endorsed civil design plans.

(e) All proposed vehicle crossings must be constructed in accordance with the endorsed plans and IDM standards,

(f) All redundant infrastructure (including vehicle crossings) abutting the site shall be removed and the naturestrip shall be reinstated. Redundant infrastructure includes the existing concrete pad near the entrance of the facility.

(g) Removal of any sheds or redundant buildings located on created land parcels not accommodating a dwelling.

33 No mud, dirt, sand, soil, clay, stones, oil, grease, scum, litter, chemicals, sediments, gross pollutants, animal waste or domestic waste shall be washed into, allowed to enter or discharged to the stormwater drainage system, receiving waters or surrounding land and road reserves, during the construction works hereby approved to the satisfaction of the Responsible Authority.

34 Earthworks must be undertaken in a manner that minimises soil erosion. Exposed areas of soil must be stabilised to prevent soil erosion. The time for which soil remains exposed and unestablished must be minimised to the satisfaction of the Responsible Authority.

35 The onsite stormwater drainage system including stormwater detention, installed in accordance with the endorsed plans, must not be removed or modified without the further approval (in writing) of the Responsible Authority.

36 This permit will expire if one of the following circumstances applies:

(a) The development is 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 does not start within the two years of the date of the permit

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

In accordance Section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] The submissions and evidence of the parties, any supporting exhibits provided to 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.