1 Before the development starts, three copies of plans drawn to scale and dimensioned 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 show:

a

Deletion of all advertising signs.

b

Location of existing tanks to rear of existing shed.

c

The licensed area where liquor may be served to restaurant patrons shown as the internal dining area and deck only.

d

The Licensed area for cellar door sales and a limited to the cellar storage area.

e

The provision of screen landscaping from the end of the existing Cypress windbreak on the southern boundary, westwards past the existing and proposed buildings and water tanks for a distance of 30 metres to connect to existing windbreak planting.

f

The provision of landscaping of a minimum width of 1.5 metres in front of the existing shed along the eastern elevation.

g

Location of all air-conditioning, plant and equipment.

h

A schedule of materials colours and finishes.

2 The layout of the site, the size, design and location of the buildings, the vehicular access, parking areas and associated works shown on the endorsed plans must not be altered or modified without the prior written consent of the responsible authority.

3 The area approved under this permit for the consumption of liquor by patrons of the cellar door and restaurant is limited to the licensed areas as shown on the endorsed plans except with the further written consent of the responsible authority. The permit holder must at all times ensure that no patron of the restaurant and cellar door consumes alcohol on the subject land outside the licensed area.

4 No more than 50 seats (internal and external) shall be made available within the restaurant.

5 The restaurant must not operate outside the hours of 11 am to 9pm Monday to Thursday and Sunday and to 11pm Friday and Saturday. The external dining area must not operate outside 11am to 9pm during daylight savings time and 11am to 7pm at other times.

6 The cellar door must not operate outside the hours of 10 am to 5pm each day.

7 The materials and colour of the exterior finish of the building herby permitted must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority.

8 All wastewater from the proposed use and development must be treated and maintained within the boundaries of the land to the satisfaction of the Responsible Authority.

9 The emission of noise from the use and development herby permitted shall not exceed the noise limits determined in accordance with the State Environmental Protection Policy No. N-2 "Control of Music Noise from Public Premises" and the EPA document "interim guidelines for Control of noise from Industry in Country Victoria" N3/89.

10 Air conditioning and/ or other plant equipment must be baffled to prevent nuisance or annoyance to persons in nearby dwellings in accordance with EPA requirements so as not to exceed the noise limits referred to in the preceding condition.

11 No live or amplified music shall be played outside the restaurant building.

12 The use and development must be managed 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 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

(d)

presence of vermin

13 The areas set aside for access and vehicle parking must be kept available fro these purposes at all times.

14 Construction plans for all parking areas, access lanes and drainage must be approved by the Responsible Authority prior to the start of the approved works.

15 The main car parking and access areas of the development must be suitably surfaced to the satisfaction of the Responsible Authority.

16 Deliveries to a from the land (including waste collection) must only take place between 7 am and 7 pm Monday through Saturday and 9 am to 5 pm Sunday and public holidays unless with the further written permission of the Responsible Authority.

17 Signs not greater than 0.3m2 must be provided directing drivers to the areas set aside for car parking. The signs, their location and maintenance must be to the satisfaction of the Responsible Authority.

18 Outdoor or external lighting including that of buildings and car park areas must be designed, baffled and located to the satisfaction of the Responsible Authority.

19 This permit shall expire any time that the winery or agricultural use of the land for the purposes of a vineyard ceases.

20 Not less than 80% of all wine offered for sale or consumption on the land must be wine produced from grapes grown on the subject land without the further written consent of the Responsible Authority.

21 Prior to construction commencing, a waste management plan must be prepared and approved to the satisfaction of the responsible authority which includes:

a

Treatment of wastes generated from the processes of wine making.

b

Management of all wastes from the cellar door and restaurant.

22 All wastes produced on the land in association with the proposed uses must be stored and disposed of to avoid any nuisance, pollution or loss of amenity to the locality to the satisfaction of the Responsible Authority.

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

(a)

The development and/or use 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.

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.

1 This proceeding relates to an application under Section 77 of the Planning and Environment Act 1987 [P and E Act].

2 Mr. Scully sought to substitute the Applicant as Denise and Lou Vidoni. There being no objection, I accordingly amended the application.

3 The proposal is for a 50 seat restaurant within a new 256m2 building to be constructed at the rear of an existing shed which currently provides manufacture and storage facilities for the wine. The building will have an overall height of 7.7 metres in a "tower section". It is setback 75 metres from the road frontage.

4 The site has 4 hectares under vine and a restricted liquor licence which allows mail order sales.

5 The site and surrounding land is zoned Green Wedge 1. A Restaurant is a permissible use subject to a permit provided it is used in conjunction with agriculture or a winery. A permit is required under Clause 34.05-4 for buildings and works associated with a Section 2 use.

6 The site is also affected by a number of overlay controls including the Significant Landscape Overlay (Schedule 1 and 6), the Environmental Significance Overlay (Schedules 10, 17 and 28), the Vegetation Protection Overlay Schedule 2. The site also abuts the Significant Landscape Overlay Schedule 3 which applies to the Main Creek Road reservation and identifies scenic roads. A permit is required under ESO10, 28, SLO1 and SLO6 to construct a building and to carry out works.

7 Other relevant clauses include Clause 12, 15.01, 15.05, 17.04, 17.05, 18, 21, 22.06 Development on Highways, main roads and tourist routes, 22.07 Commercial and Industrial Uses in Rural Areas, 22.14 Mornington Peninsula Land Units, 52.06 and 52.27.

8 Submissions, plans, photos, evidence statements and other documents submitted at the hearing have been retained on Tribunal files. The Tribunal inspected the site and neighbourhood following the hearing on the Melbourne Cup weekend.

9 Mr. Scully sought to amend the permit application from "restaurant and cellar door sales" to "winery including restaurant and cellar door sales". The reason for the change was to recognise that the manufacturing of wine occurred on site at present and had done so for a number of years. There was no objection to the proposed amendment from the other parties.

10 In determining an appropriate description of the proposed use, I was referred to two VCAT decisions. In Vidoni v Mornington Peninsula SC (P111/2005) Member Cimino considered an application for a restaurant on the property adjacent to the subject site. In this case, the application was for a Restaurant and the decision did not address the term "winery" as this site did not undertake manufacturing. Although at paragraph 44 the member notes that the dining associated with the café may be considered ancillary to a winery given its definition. In Mihaly v Mornington Peninsula SC (P51451/2001) Member Liston considered whether a café/restaurant is part of a winery stating at paragraph 11 that one could conceive of a restaurant that is so large or so independent in its operation that it should be regarded as a separate use.

11 I advised the parties that on a preliminary view, the proposed seating capacity of 50, the restaurant component is in my opinion may be a significant use in its own right. Mr. Scully then submitted that the permit application should include both a winery and a restaurant.

12 In amending the application, I noted that the inclusion of the term "winery" will recognise the existing manufacturing use which presently occurs on a very small scale within an existing shed which is to contain the cellar door component of the use. I am satisfied that provided the existing level of wine manufacture is retained and conditions address the existing shed, then the application does not require further notification. The nature of the use has not altered and the effect of the amendment is to more accurately describe the proposal.

13 I accordingly amended the application to include "use and development for a winery (including cellar door sales) and a Restaurant and licensed premises (Clause 52.27) generally in accordance with the endorsed plans".

14 At the commencement of Council's submission, Mr. Nicol outlined that Council's position in respect to the application had altered:

•

Council now considered that a winery including a restaurant and cellar door sales was appropriate on the site.

•

That in light of the evidence report by Mr. Linke that Council considered that there was sufficient nexus between the existing vineyard and winery functions to support a restaurant/ café on the land and that this nexus should be reinforced through the permit conditions.

•

That the restaurant/ café should not be a fully fledged restaurant/ function centre independent of the vineyard and that the hours of operation should be restricted to day time only to ensure this.

15 The key issues in this application were thus narrowed to:

•

What is the appropriate level of activity on the subject land;

•

Whether the proposed buildings and works are appropriate in terms of visual amenity and the amenity of the adjoining property.

16 Main Creek Road from Purves Road to the subject site has minimal commercial or tourist uses other than some small wineries and retreats. There are some activities such as the Veterinarian located near to the main ridge hall. Adjoining the subject site and owned by Mr. Stoios is a Restaurant "Peridot Lakes Estate".

17 The use is proposed to operate for lunch and dinner 11 am to 9pm Monday to Thursday and Sunday and to 11pm Friday and Saturday. These hours are similar to those approved next door, but that site also is able to open for breakfast. Mr. Scully submitted that the use of the restaurant for functions was limited to that normally associated with a restaurant. The cellar door is proposed to be open 10am to 5pm 7 days a week.

18 Clause 22.07 Commercial and Industrial Uses in Rural Areas sets out policy that Restaurant facilities in rural areas should generally avoid night time operation due to the potential impact on rural amenity from additional traffic, noise and light. Mr. Nicol submitted that night time use exacerbates amenity impacts on the surrounding rural area through activity associated with people and cars.

19 The subject site is located over 150 metres from the nearest dwelling on adjoining properties. A proposed dwelling for Mr. Stoios' property is located approximately 200 metres away. I am not concerned about the potential amenity impacts of the proposed use on neighbouring dwellings. I note that the hours of operation of the external deck area are restricted on Mr. Stoios' property to 9 pm during daylight savings and 7 pm other times. I consider this reasonable in the context of minimising noise and light in the rural area.

20 The other issue was the agglomeration of uses given the restaurant next door operated by Mr. Stoios. The cumulative effect of these two uses will in my opinion be negligible. While the traffic in the general area would increase, I do not consider that this would create an unacceptable amenity impact on the surrounding rural area.

21 I can see no planning reason to restrict the operating of the use to daylight hours only.

22 The land is affected by a number of overlays which identify the importance of minimising visual intrusion including SLO6 National Trust Landscapes. The proposed building is set behind the existing substantial shed which is visible from Main Creek Road, but is setback in the order of 75 metres. It incorporates a "tower" element which runs north to south i.e.: broadside to the road and will be visible above the shed.

23 I am satisfied that the new building will be appropriate when viewed from Main Creek Road given the distance and context of the existing shed. The "barn-like" appearance of the tower element will not in my opinion be out of character with the rural landscape. However, some additional landscaping in front of the existing shed would act to soften the combined appearance of the buildings and is desirable.

24 Of greater concern is the visual impact of the proposal when viewed from Mr. Stoios' property and in particular from the restaurant deck area. Having inspected the subject site from the base of the deck area, I consider that views over the subject property are partially screened by existing vegetation and the existing shed. I note also that there is required to be a screen erected along the northern edge of the deck area no less than 2 metres high which will direct views to the west over the vineyard area which is the natural desired view for the restaurant patrons in my opinion. In addition a shed proposed for Mr. Stoios property would if constructed partly interrupt these views.

25 In the absence of the shed, I consider that the proposed addition to the existing shed building will be very visible from the deck area without additional landscaping provided along the common boundary to augment the existing Cypress windbreak. I consider it essential that additional landscaping is provided from the end of the Cypress planting, past the rear of the existing and proposed sheds and tanks and joining with the newer cypress planting further down.

26 The proposed car parking along the access way will be visible from Main Creek Road, in front of the site, but is screened by the hedge of the adjacent property when travelling north and by the vines when in leaf when travelling south.

27 A number of other issues discussed at the hearing including the need for waste management from the restaurant and winery, the need for proper identification of the licensed areas and parking arrangements, I have addressed as permit conditions.

I have come to the conclusion that a permit should be granted for the proposed winery and restaurant. I consider that:

• There is a demonstrated link between the vineyard and the proposed uses. In particular wine is capable of being produced on site.

• The use is sufficiently separated from sensitive land uses.

• The proposal will not unduly impact on the adjacent restaurant use.

• The proposed building and car parking is appropriate in the context of the policies and controls applying to the land and will not have undue visual impact.

28 For the reasons that I have set out above, I will allow the Application for Review and direct that a permit be granted subject to conditions.