Katy Solonikios v Yarra CC [2007] VCAT 2412

The grounds of application for review of conditions is amended such that conditions 1(a) and 5 of the Notice of Decision issued 13 June 2007 are sought to be modified to allow for a maximum of 40 patrons.

The permit application is amended by plans circulated on 24 August 2007, referred to as Drawing Sheets 1-10, dated 19 August prepared by "Greentwist" and titled "The Terminus Hotel" (Celmec International Pty Ltd Sketch:ks106807/1tmsmod).

Under section 60 of the Victorian Civil and Administrative Tribunal Act 1998 T&L Pultney, Denise Charman, Menka Simmonds, T Puli, Beverley Tozer, M Savides, Andrew Beveridge, Ian Kerr, Denise Hemley, Phillip Wohlers, Michael McCarthy & Clive Wilson, Susan Zeitz and David Barnes are joined as parties to this matter.

The decision of the Responsible Authority is varied. In permit application PL06/0813 a permit is granted and directed to be issued for the land at 492 Queens Parade North Fitzroy. The permit allows demolition of the rear of the building, construction of alterations and additions to the rear of the building to form an outdoor patron dining area and waiver of car parking requirements associated with an increase in floor area in accordance with the endorsed plans and subject to the conditions contained in the Notice of Decision to Grant a Permit PL06/0813 issued by the Responsible Authority on 13 June 2007 modified as follows:

1. Condition 1 shall be amended to read as follows:

Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with Drawing Sheets 1-10, dated 19 August prepared by "Greentwist" and titled "The Terminus Hotel" (Celmec International Pty Ltd Sketch:ks106807/1tmsmod) but modified to show:

1. Amend condition 1(a) to read as follows:
   • (a) The outdoor patron dining area comprising a maximum of 40 seats;
2. Delete condition 1(b) and renumber all remaining sub-conditions under Condition 1.
3. Amend condition 3 as follows:

The use of the outdoor patron dining area is subject to the following conditions:

(a) The outdoor patron dining area must not be used by patrons on any day after 11pm unless with the further written permission of consent of the Responsible Authority.

(b) No more than 40 patrons may be permitted in the outdoor patron dining area at any time without the further written permission of consent of the Responsible Authority.

(c) At no time is any form of music permitted to be played in the outdoor patron dining area without the further written permission of consent of the Responsible Authority.

(d) Implementation of the Noise and Amenity Action Plan (the NAAP) as required under condition 6 herein to the satisfaction of the Responsible Authority.

1. Delete conditions 4, 5, 6 and 7.
2. Insert new condition 4 as follows:

Prior to the development commencing, a Noise and Amenity Action Plan (the NAAP) is to be submitted to and approved by the Responsible Authority. The NAAP is to provide details of the management of the outdoor patron dining area to minimise potential amenity impacts.

(a) the development in not commenced within two years from the date of this planning permit and/or

(b) the development is not completed within four years from the date of this planning permit.

The Responsible Authority is directed to issue a modified permit in accordance with this order.

Mr David Barnes, Town Planner of Hansen Partnerships Pty Ltd

Sam D'Amico, Town Planner of Ratio Consultants Pty Ltd

Mr Dominic Scally, Solicitor of Best Hooper. He called as expert witness Mr Andrew Rogers, an acoustic consultant.

Sam D'Amico, Town Planner of Ratio Consultants Pty Ltd

Mr David Barnes, Town Planner of Hansen Partnerships Pty Ltd appeared on his own behalf as a resident and on behalf of Ms Salonikios, Mr Helme , T&L Poultney, Ms Tozer, M Savides and Mr McCowan

Dr Denise Charman appeared on her own behalf and that of Ms Langley.

Other respondents indicated that they did not wish to appear at the hearing and relied on their written grounds.

1. The Terminus Hotel is one of those classical bluestone pubs that has survived the test of time. It has occupied the corner of Queens Parade and Brennand Street in Clifton Hill since the 1850's. On 13 June 2007 Yarra City Council (the Council) resolved to issue a Notice of Decision (NOD) to grant a permit to allow the construction of an outdoor dining area at the rear of the hotel.
2. On 26 June 2007, Ms Salonikios a neighbour to the hotel, lodged an application with the Tribunal to review the NOD. Her grounds for review encompassed concerns about the legality of the works, noise, car parking, smoking, security, privacy issues and other amenity impacts.
3. On 10 August 2007, the Mitchell, Markos & Miller Pty Ltd (the permit applicant) made an application to the Tribunal for review of four conditions on the permit contained within the NOD (the NOD conditions). These conditions are:
   • Condition 1(a), which limits patron numbers in the outdoor area to 20 with the applicant seeking an increase to 40 patrons;[1]
   • Condition 3, which limits the time for use of the outdoor area to 11pm with the applicant seeking use until 1am.
   • Condition 5, which again limits patron numbers; and
   • Condition 7 which requires the works to be completed and in use within six months. The applicant seeks two years to undertake the works.
4. The decision of this Tribunal and the reasons set out below deal with these applications.
5. Before dealing with these matters, I will first dispense with some preliminary and procedural matters as they arose in this hearing.
6. In respect to matter P2026/2007, the appeal against the conditions of the NOD, the permit applicant sought to amend the permit application by way of amended plans. By way of written submission Ms Langley objected to this request. I considered her objections but decided to direct that the permit application be amended (Order B of P2026/2007).
7. The respondent parties in the conditions appeal drew to my attention some confusion over the communication of the grounds of appeal and whether the number of patrons being requested in amended conditions was 30 or 40. Mr Scally made reference to correspondence to the Tribunal of 24 August 2007 and application for review that was circulated to original objectors. These documents foreshadowed the modification to conditions 1(a) and 5 of the NOD would be for 40 patrons. For completeness I have directed that the amendment of grounds to reflect this application (Order A of P2026/2007).
8. Following the circulation of amended plans, a number of people applied to the Tribunal to be joined as parties to the review of the NOD.[2] These applications were not opposed by the permit applicant or the Council. I have made orders accordingly (Order C of P2026/2007).

1. The permit applicant has demolished rear outbuildings[3] to make way for an outdoor patron dining area. To provide for this dining area, the now amended plans, indicate the proposed works to comprise of:
   • Extending an existing bluestone wall to 3.7m height and 2.5m in length western side of the proposed dining area.
   • Construction of an additional 3.7m high and 3.5m long brick rendered wall with an acoustic rating of Rw30 along the southern side of the proposed dining area.
   • Construction of a 1.2m high timber fence to the east of the dining area, enclosing the remaining open area.
   • Installation of permanent, all weather umbrella style awnings over that portion of the dining area bordered by the two high masonry walls.
   • Some landscaping using potted Robina psuedoacacia 'Sunburst' around the low wood fence.
   • Partitioning of a service area for the existing kitchen by a timber and corrugated iron fence.
2. The outdoor dining area is to be accessed from the existing dining room via existing doors and installation of folding doors to south end of the indoor dining room.
3. Details of the umbrella system proposed for the dining area were submitted by way of a product brochure. This brochure indicates that structures are designed to be open in all weather conditions, to essentially form a canopy over outdoor dining areas. The umbrella canopies can be linked by infill materials as well as guttered to collect rainfall runoff. Side panels can be connected. Mr Scally indicated that the permit applicant intended to have the canopies as permanent, fully linked structures for weather and sound proofing. There was no indication of any side wall panels being proposed.
4. Under the amended application for review of the NOD, the dining area is to provide room for 40 patrons. The permit applicant wishes to utilise this area until 1am.
5. Mr Scally also raised the matter on a without prejudice basis as to whether or not an amendment was required to the application to incorporate any changes to the liquor licence area required to facilitate the proposal and as may be required under Clause 52.27 of the Yarra Planning Scheme. However, given the later clarification of the existing licensed area of the hotel, as set out below, and the decisions set out in these reasons, I find that such an amendment to the application is not necessary.
6. A number of submissions to the Tribunal raised concerns about the confusion as to what patron numbers and hours of operation were being sought. Some respondents found the application confusing and suggestions were made that the process for the application was not properly undertaken. I am satisfied that the material, while perhaps confusing, was circulated and sufficient notification made. I do not find it necessary to require further notification, as was submitted.

1. The Terminus Hotel is located on the corner of Queens Parade and Brennand Street, North Fitzroy. The hotel building was constructed around the 1850's, is of bluestone wall construction and of two storey height with a parapet façade to Queens Parade. The side and rear facades are of rendered brick with red corrugated iron, pitched roofing. A portion of a bluestone wall extends around the western side of the building.
2. The hotel comprises of bar, lounge and dining room on ground floor with rooms and an office above. A kitchen, store rooms and other amenities are also located inside the main building. A drive through bottle shop and cool room/liquor store adjoin the south side of the hotel building. Entry to the bottle shop is via a cross over from Queens Parade. Exit is via a sealed driveway that passes around the southern and western sides of the hotel building. Nine marked car parking spaces are located along the western boundary, brick wall.
3. The rectangular site comprises of two titles with an overall land area of 1,170 sqm, orientated with Queens Parade to the south-east boundary and Brennand Street to the north-east. To the north-west are residential buildings. On the immediate interface with the hotel site is a three storey, 1960's orange brick apartment building. Beyond this building are residential dwellings that front onto Brennand Street or McKean Street. The latter includes a redeveloped site of terraced two storey town houses.
4. Beyond Brennand Street to the north is the railway reserve for the Epping rail line. A single storey commercial building (café) adjoins the site's immediate south-west boundary. Further to the south-west along Queens Parade are one and two storey commercial buildings, including a child care centre, and an electrical substation. Beyond these are a mix of residential dwellings and business premises. East of the site is Queens Parade, comprising a divided road of two lanes on each side and tram lines. A tram stop is located in the central median strip close to the hotel site.
5. On-street car parking is available along Brennand St. These spaces currently service the hotel, as well as Rushall and Clifton Hill rail stations. On-street parking is also available along Mc Kean St and Queens Parade, the latter being subject to restrictions.

1. The hotel and part of the grounds, including that area the subject of the development (the licensed area - as discussed later in these reasons) is located in a Business 1 Zone (B1Z).[4] The rear (north-western) portion of the site is located in a Residential 1 Zone (R1Z).[5] Surrounding residential dwellings are located in the R1Z, while the adjoining buildings along Queens Parade are located in a B1Z or Public Use Zone (Schedule 4). The subject site and surrounds are affected by schedule 327 of the Heritage Overlay (HO327).[6]
2. The hotel enjoys existing rights uses, having been established prior to the current planning scheme.[7] Development and works require a permit under the B1Z and HO327.[8] The matter of permit requirements and extent of conditions are considered in detail later in these reasons.
3. The permit application for demolition of the outbuildings, construction of the fence, and external alterations of the building are exempt from notice of review requirements. In any event, the heritage aspects of the proposal were not in dispute between the Council and permit applicant.
4. Decision guidelines relevant to the proposal under B1Z are found at clause 34.01-4. In this instance I find that they have limited application to the proposal save for matters in relation car parking and interfaces with the adjoining residential areas.
5. Particular clause requirements for car parking and general decision guidelines apply.[9]
6. Mr D'Amico referred to the specific clause relevant to licensed premises[10] and drew my attention to a number of state and local planning policies including the Municipal Strategic Statement. These were in relation to activity centres, nose abatement, heritage, business, car parking, design and built form and licensed premises.[11] Mr Barnes also suggested that policy for discretionary use in a residential zone applied.[12] The consideration of these policies and their application to this matter are set out in my reasons below.

1. The hotel operations are subject to the controls and limitations of a General Liquor Licence, No 31914551 (the licence). This licence authorises the supply of liquor on the licensed premises for consumption on and off the licensed premises during trading hours. The licensed premises is described on a plan attached to the licence which denotes an area that encompasses the hotel building and curtilage that extends from the existing rear bluestone wall to the south-western boundary wall, i.e. the whole of the site area within the B1 zoning. It excludes the northern most title block of the site that encompasses the car park and driveway areas that fall within the R1 zoning.
2. The trading hours are set out under the licence, as are restrictions on the number and locations of patrons after 11pm. After 11pm, the dining room is limited to 70 patrons and the lounge is limited to 30 persons. No other areas may contain patrons for the purpose of trade after 11pm. Prior to 11pm there is no restriction on patron numbers.
3. The licensed hours of operation limit the use of these two areas to 11pm on Sunday and Good Friday and 1 am on ANZAC Day (when not a Sunday) and any other day.
4. No application was made in this hearing, nor was I made aware of any application to the Liquor Licensing Commission for a variation to the licence although the review of conditions relating to hours of operation calls into question whether such an application will be made at a later date. Given the decision set out herein, I need not consider this further.

1. Having heard from all parties, undertaken a site inspection and reflected on the submissions made, I find that the matters for consideration essentially distil to whether the proposed outdoor dining area has the potential to adversely impact upon residential amenity by way of noise and car parking.
2. It was not contested as to the heritage impacts of the proposal, and having considered the proposal against the decision guidelines of the heritage overlay, I find that this is not a substantive matter in the application for appeal against the NOD. Being at the rear of the site and not on a street interface, the works essentially involve the replacement of one set of non-heritage building fabric with another.
3. Before considering the merits of the noise and car parking matters, it however necessary to address the interplay between the nature of the permit application, the planning scheme and the hotel's liquor licence as was put by Mr Scally in relation to clause 52.27.

1. As I have noted already the parties did not dispute the fact that the site enjoys existing rights of land use. Accordingly, the requirements of clause 63 apply in respect to the site operating as a hotel. For the sake of completeness I have considered the extent of the existing use rights to some depth in light of Mr Scally's invitation to consider whether or not or not the application requires amendment for a permit under clause 52.27 and the submissions of parties in respect to the extent of the existing use rights.

1. Clause 63.02 set out that when characterising the use and extent of existing right:

...the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date, and not by the classification in the table to Clause 74 or in Section 1, 2 or 3 of any zone.

1. The use of the site is clearly as a hotel for the trading/consumption of liquor.[13] The submissions of the Council and objectors query the extent to which the use applies to the whole of the site, particularly the area of development. Conveniently, the matters dealt with in Stonnington City Council v Southern Property Corporation Pty Ltd[14] (the Argo Hotel matter) are similar to these matters. In his decision, Osborne J rules that the existing use rights must look at the purposeful use of the whole of the site and not some piece by piece stratification of uses, as was argued by the appellant in Argo Hotel.[15]
2. Further his Honour suggests that any 'restriction' arising from a liquor licence is arguably not to be considered as a planning restriction and therefore not a restriction for consideration under clause 63.02.[16]
3. Applying the tests from the Argo Hotel matter, the use of the whole of the Terminus Hotel site has been for the purpose of a hotel. The extent of this use in a planning sense is unaffected by any restrictions as may have arisen from time to time under the current or any other liquor licence.

1. In the normal course of events, a hotel is a section 2 use in either the B1 or R1 zones. Clause 63.05 is therefore relevant:

A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:

• No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.
• Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.
• The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.

1. The continuation of the existing use rights is a three-armed test. A permit is required for the development under the first arm of the test. The NOD will satisfy this requirement.
2. The second arm of the test is also satisfied. The site will continue to be used as a hotel under the applied for development within the proper extent of land assigned the existing use right (i.e. the whole of the land). There is no planning restriction to the purposeful use of the development from planning perspective. In any event, if the existing licence area was to be taken as some restriction in deference to the Argo Hotel rulings, the development is contained within the licensed area.
3. The third test draws upon the merits of this matter and which the applicant for the NOD review and the respondents to the conditions appeal rely on their respective cases. It is to these matters that I now turn.

1. It would be fair to say that the neighbourhood residents concerns are principally founded on the noise impact from the outdoor dining area. This was mostly so for Ms Salonikios, who resides in an upper level apartment immediately adjoining the site. My site inspection suggests that those dwellings further to the rear of the site along Brennand St are benefited by the three storey apartment building to the west of the hotel, as it will provide an element of noise attenuation. The distance to the McKean St dwellings benefit from a larger separation and from similar acoustic attenuation from the apartment and other surrounding buildings to the south-west. Matters to address the apartment noise impacts will by association address these other dwellings.
2. I agree with Mr D'Amico that it is right to consider the potential noise amenity impacts to the residential neighbours and that the sensitivity to noise will be a matter of degree and the hour of the day or night.
3. In lieu of the amendments made to the application, I find however that emphasis on this being an outdoor area is overstated. The amended plans will contain a 3.7m high acoustic wall facing toward the apartment building, and turning the corner to address that open area to residences toward the south-west. The area will be roofed, albeit with a lightweight structure but one which I accept from Mr Rogers evidence will provide a degree of attenuation due to its weight and sealing of gaps. The main open area of the dining area will face toward the bottleshop and Queens Parade.
4. I find that the amended design is an improvement over the original application and addresses to a large degree the main source and direction of noise to residential areas. However the tribunal is faced with a difficult task in these mattes, as there are no directly applicable regulatory criteria by which to consider an appropriate level of noise. While Mr Rogers relies on sleep disturbance criteria applied in NSW, there remains some uncertainty as to how well these criteria actually provide for amenity protection. There is much couching of impacts in terms of 'may' and 'unlikely' that points to a need for a cautious approach.
5. I accept the empirical assessment undertaken by Mr Rogers. It demonstrates a possible level of noise generation from an outdoor liquor trading venue. However, it provides only a snapshot of potential background noise conditions. It also makes assumptions as to patron behaviour. There remains a further element of uncertainty and that is how well the assessment will reflect real life.
6. I note that the design still provides for an open area, away from the roof structure and hence, un-attenuated patron noise may still emanate from the dining area. Without the roof structure, the potential noise level may border the adopted criteria (i.e. 49dB(A) compared with the adopted 50dB(A) criteria).[17] Further, while Mr Rogers has based his assessment on 40 patrons (using data from a monitored bear garden site) I bear in mind his evidence that the noise levels from 15-20 patrons or more or less similar to that of up to 80 patrons. This is evidence that this Tribunal has heard before[18] and it cuts both ways. A small crowd of 20 patrons makes no more than 80 patrons, but ipso-facto a crowd of 20 patrons makes as much noise as 80 patrons. Thus, a small crowd of people spilling out from under the roof structure may generate sufficient noise to generate an adverse impact.
7. The degree of amenity impact is also one of timing and of activity. Disturbance is more likely to be significant after 11pm than before. Boisterous or noisy behaviour is less likely from dining patrons than from those only consuming liquor. Therefore not withstanding my concerns set out above, I accept that there is some leeway to be had as to the timing and nature of the use for the outdoor area along with the number of patrons. I consider that while the noise arising from patrons sitting and dining under the roof structure have been suitably addressed, this may not carry through for later use of the area as is sought by the permit applicant, i.e. after dining has finished, but trade in liquor continues.
8. Having regard to Mr Rogers' evidence from 40 patrons compared to 20 patrons, I find there is no substantive gain to be made from the reduction, provided that all use of the area ceases once dining also ceases. This presently occurs at 11pm. I see no reasons to extend this dining period when balancing the submissions of the applicant against the amenity protection needs, particularly when there is policy to limit such use where there are interfaces to residential areas.
9. While recognising the effort in attenuating noise impacts, I must nevertheless consider the surrounding sensitivity and amenity requirements of the neighbourhood. As has been set out above, while enjoying the privileges of existing rights use, the decision guidelines provide for consideration of the impact arising from new development in association with that use. The Tribunal has an established practice of giving considerable weight to the amenity of the surrounding R1 zoned land. It is not one that I would wish to depart from under the circumstances of this application and having regard to ability of the proposal to address the requirements of policy at clause 22.09.

1. The other substantive matter reason relied upon by the Council in limiting patron numbers is the matter of car parking. The impact from on-street car parking is also of considerable concern to the residents. Currently the site operates with nine on-site car spaces provided. Remaining patronage relies on street parking or alternative forms of transport.
2. It is the Council's position that by limiting the outdoor dining area to 20 patrons, the waiver for additional onsite car parking is acceptable principally during the unregulated patronage period of the hotel (i.e. before 11pm). The residents put that the increase in patronage will serve to only worsen existing conditions due to the intensification of the hotel use.
3. I find the reasoning in these submission to be flawed. The hotel currently operated under licence conditions that does not restrict patron numbers until 11pm. Regardless of whether this development proceeds or not, this will remain the case. It is likely that the demand and supply for parking in part, regulates hotel patronage by vehicle. I accept that the outdoor dining area may make the site more attractive to patrons, but I fail to see that the use will be intensified given the existing licence conditions on patron numbers. Council conceded that the applicant was not seeking an increase in patron numbers. However, the leap in logic is made that by limiting patron numbers in the outdoor area to 20 will prevent further car parking issues developing. I fail to make the same leap.
4. I find that the waiver of parking numbers is acceptable in this instance and not the basis for limiting patron numbers in the outdoor area.

1. In her grounds of appeal, Ms Salonikios raised concerns over the impact from second hand smoke and noise if smokers used the area.
2. Mr Scally submits that the area is likely to be used by smokers and will be a better outcome than that which presently occurs: smokers using the footpath or rear car parking area. However, the use of the area as for smoking was one not actively pursued by Mr Scally on behalf of the applicant, although is was addressed in passing. I am not satisfied that these issues were properly addressed in this hearing. I have therefore declined to consider such a use for this development and limit the use of the outdoor area to those purposes of sought under the permit application, i.e. outdoor dining. The operator is free to pursue the use under separate application.

1. It follows from the above that I will dismiss the application for review bought by Ms Salonikios (matter P1595/2007). Under the matter of P2026/2007, I will direct that a permit issue subject to amendments in conditions. In doing so I have included a number of use conditions. It is accepted by Mr Scally that use conditions relevant to the development permit can be provided for in the permit consistent with the principles set out by the Tribunal in Roy Boyz.[19]
2. In formulating the permit I have had regard to the matters set out in these reasons and the submissions of the parties during the hearing. The amendments allow for 40 patrons in the dining area, but does not extend the use beyond 11pm. The use is subject to a 'Noise and Amenity Action Plan' for this area. Whether the operators wish to extend this NAAP to the whole of the site operations is a matter for them. This permit and conditions are necessarily confined to the matters before the Tribunal.

[1] The statement of grounds submitted with the application for a review of conditions on 10 August 2007 sought modification of condition 1(a) to 30 patrons. This was subsequently amended in correspondence of 24 August 2007 to 40 patrons.

[2] In accordance with s.60 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act).

[3] This component of the application is retrospective.

[4] Clause 34.01 of the Yarra Planning Scheme.

[6] Clause 43.01. HO327 is the North Fitzroy Precinct.

[8] Clauses 34.01-4 and 43.01-1 respectively.

[11] Those cited can be found at clauses 12.01-1, 15.05, 15.11 17.02, 18.02, 19.03, 21.05-1, 21.05-4, 21.05-7, 22.02, 22.09.

[13] I here use the term liquor in the broad sense implied by the liquor licence.

[14] [2006] VSC 435.

[15] In the Argo Hotel matter the existing areas for serving liquor were on one floor and the proposal was to expand this trade to another floor. Osborne J made no distinction about the stratification of uses finding that the test to be applied is whether the whole of the site has been used for the purposes of a hotel in its commonly understood terms. See [2006] VSC 4635at paragraph [31].

[16] [2006] VSC 435 at paragraphs [31] and [37].

[17] Refer Table at paragraph [20], page 7 of Mr Rogers expert evidence dated 23 August 2007.

[18] The Garden on Exhibition Pty Ltd v Melbourne [2006] VCAT 2503.

[19] Roy Boyz Pty Ltd v Port Phillip CC [2002] VCAT 907.