Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant an amendment to a permit.

Clauses 9, 10, 11, 13, 15, 17, 21, 22.04, 34.01, 43.02, 52.27 and 63 in addition to the matters in clause 65 of the Moonee Valley Planning Scheme.

Outlined in the interim order of the Tribunal dated 12 April 2018.

I inspected the subject land and surrounds, including residents' properties at day time following the hearing. I subsequently inspected the deck whilst amplified music was being played late on a Saturday night (with consent of the responsible authority for the purposes of this proceeding) and inspected the Tait property and the broader area at that time.[1]

1. The Laurel Hotel (Hotel) is a longstanding food and drink premises in Ascot Vale. It operates on the corner of Mount Alexander Road and Middle Street, with records dating back to the mid 1800's when it started as a traditional 'corner pub'.
2. As I explained in my earlier reasons in these proceedings, a planning permit was issued in 1988 allowing buildings and works for a first floor deck/roof garden amongst other more significant additions to the premises.[3] The permit also purported to authorise the use of the land for a Hotel.[4] Conditions of the permit confined the use of the deck to residential use in connection with the apartment at the upper level of the Hotel at that time.
3. Relevantly, that permit was amended in 2013 to allow for the sale and consumption of liquor on the deck, as well as to be accessed by members of the general public as part of the Hotel use.[5] At that time, amended plans were also endorsed under the permit with additional 'enclosure' works to the walls of the deck.
4. Two contested conditions of the permit seek to restrict the provision of amplified music on the deck except with the consent of the responsible authority (condition 3) and to provide operating hours for the deck (condition 19). The permit holder did not contest the lawfulness of conditions such as condition 18 which limit the number of patrons who can use the first floor deck.
5. The applicant currently relies on existing use rights as facilitating the use of the land as a Hotel, including the deck area. Its submissions suggest that this existing use right is unrestrained, and would include all activities reasonably associated with a conventional Hotel, including the sale and consumption of liquor and provision of entertainment. It claims that the lawful activities encompassed within that use either specifically include the provision of amplified music, or the use is entitled to intensify to include such activities within the purpose of the existing use right.
6. Consequently, it submitted that no planning permission is required for the use of any part of the land and that the contested use-related conditions of the permit would invalidly fetter the existing use and should be deleted accordingly (Proceeding No. 1880/17). In this regard, it sought declarations as to the extent of the existing use right.[6]
7. Alternatively, if the conditions of the permit were found to be valid, the permit holder sought review of the refusal of the responsible authority to extend the operating hours for the first floor deck under condition 19 and to delete condition 3 to allow amplified music without its consent (Proceeding No. P630/2017).
8. The extended hours sought would reflect the current liquor licence for the premises, which allows trading to 11pm on Sundays and public holidays and until 1am Monday-Saturday (i.e. the following day). This compares with condition 19 which requires the use of the deck by patrons to cease at 10pm on any day.
9. The responsible authority refused to extend the operating hours for the first floor deck because of concerns about impacts on local residential amenity. Although the subject land is included in the Commercial 1 Zone, it abuts and is near residentially zoned land used for conventional housing (amongst other land uses).
10. A number of local residents lodged statements of grounds in these proceedings which have been considered, irrespective of whether those people attended the hearing.[7] They submitted that the effects on their amenity were already too much to bear, and that the permit conditions should be upheld in their current form.

1. The permit holder and the responsible authority had originally requested that I deliver written reasons in respect of the application for declaration first. If that application was successful, they thought it may lead to directly corresponding orders in the review proceeding, or may negate the need to determine whether the permit should be amended in the manner sought. This was thought to also potentially alleviate issues associated with acoustic testing, which had not been obtained comprehensively by the permit holder to date.[8]
2. In retrospect, I consider that it was reasonable and necessary to hear and consider both proceedings in full to arrive at an integrated decision in both matters and I have also had regard to the various submissions filed by each of the parties with leave following the hearing.
3. For reasons that follow, I find that the analysis of the inter-relationship between the existing zone controls, existing use rights and the conditions of the permit provided by the responsible authority is generally sound.
4. In summary, I consider that:
   • It is relevant that the use of the land for a Hotel is currently as-of-right in the zone. Therefore, the provisions of clause 63.04 apply.
   • The contested permit conditions meet the conventional tests for the validity of use-related permit conditions on a development permit, especially having regard to the extent of the permissions granted under the permit. There is clear case authority supporting the imposition of such conditions on development permits even when existing use rights apply to the underlying use.
   • Even if existing use rights remain operative, the existing use right that has been demonstrated is referable to the use of the land over the past 15 years by virtue of clause 63.11. It is therefore shaped, and to some extent constrained by the conditions of the permit that existed at that time by virtue of clause 63.04.
   • In any event, the activities comprising the use have not been demonstrated to include the consistent provision of amplified music sufficient for this to be a feature of the existing use right that cannot be regulated by permit condition.
   • The permit holder continues to take the benefit of the permit and it is equitable that the accompanying restrictions continue to apply to the extent that they are lawful.

Which provisions of the planning scheme apply?

1. In my opinion, the answer in this case lies in a proper understanding of how existing use rights operate and the synthesis between provisions of the Act, the scheme and the permit that has been issued.
2. Throughout my analysis, I am conscious of the overriding requirement in section 6(3) of the Planning and Environment Act 1987 (PE Act) that 'nothing in the planning scheme can prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation'.
3. A highly relevant fact in this case is the fact that the use of the land for a Hotel under the provisions of the Commercial 1 Zone is now section 1 - as-of-right, being a land use included within Food and Drink premises.
4. In my opinion, the efficacy of the existing use right claim in this case is diminished to this extent (at least at the present time, with the planning controls as they stand). Any operator of land could use premises for a Hotel without a planning permit, provided that the remaining requirements of the scheme are met in respect of buildings and works or supplementary permissions required, and the condition in clause 34.01-2 preventing detriment to amenity is met.
5. I consider that the analysis in the cases of Seers v Macedon Ranges SC[9] is a generally applicable starting point. Deputy President Gibson gave primacy to the current planning controls to consider whether there is a need to rely on existing use rights moving forward. She held:

[71] In my view, the starting point for any enquiry about whether existing use rights can be established should always be to enquire why it is necessary to establish existing use rights. Ordinarily this will only become relevant because the use of land does not comply in some way with the current planning scheme. If the use of land fully complies with the planning scheme - for example, it is a section 1 use and all conditions are complied with, or a permit has been issued under the provisions of the current planning scheme - the issue of existing use rights will not be relevant. The lawfulness of the use of the land will be able to be established either by reference to the provisions of the planning scheme or to a permit.

[72] The need to establish existing use rights will most commonly arise when there has been a change to the planning scheme since the use commenced that would mean the use would not now be permitted or would now require a permit under the planning scheme (as amended) and no such permit has been granted.

[74] . . . it is not section 6(3) of the Act that confers protection on existing use rights. Rather, it is the planning scheme that does this. It is the planning scheme that, under section 6(2)(b) of the Act, may regulate or prohibit the use or development of any land. Section 6(3) simply places constraints on this power. . .

1. The reasoning in this decision supports my primary conclusion that the existing use right claimed is no longer the key determinant of the use under the current planning framework, since permission is no longer required for the use in question.
2. Alternatively, if existing use rights are demonstrated and continue to have effect, clause 63.04 of the scheme would apply, which provides that 'a use in Section 1 of a zone for which an existing use right is established may continue provided any condition or restriction to which the use was subject and which applies to the use in Section 1 of the zone continues to be met'.
3. If existing use rights apply, for reasons I explain later in this decision, I find that these demonstrated rights accrued and were shaped by the permissions provided by the permit and its associated limitations (i.e. since the permit was operative during the 15 year period relied on). This informs the nature of the existing use right that has accrued and is in the nature of a 'condition of restriction to which the use was subject'.
4. It is also generally relevant in this regard that all uses in the Commercial Zone are also subject to the restriction in clause 34.01-2 that they must not detrimentally affect the amenity of the neighbourhood.
5. Irrespective of any claimed existing use right, it is undeniable that the zone and overlay controls at the time (both in 1988 at the grant of the permit and in 2012 upon the amendment of the permit) each required planning permission for buildings and works.
6. These were requirements of both the Essendon and Moonee Valley planning schemes that also applied to land with the benefit of existing use rights, as demonstrated by the responsible authority's evidence and submissions filed with leave of the Tribunal in the proceeding.[10]
7. This remains the position under the current planning controls since clause 34.01-4 requires permission for all buildings and works (unless exempt), even if the use is as of right in the zone.
8. It is clear from decisions of the Tribunal that the concepts of use and development are different. Although a use may benefit from existing use rights, the planning controls can still lawfully compel an applicant seeking to carry out buildings and works to obtain this further permission. One such case is Sorrento Apartments Pty Ltd v Mornington Peninsula SC.[11]
9. In addition, permission was required in 2012 under clause 52.27 of the planning scheme to permit the sale and consumption of liquor on the first floor deck since the area within liquor was allowed to be consumed was to be extended. The permit was amended in 2012 to grant this permission.
10. The responsible authority submitted that the contested conditions were validly imposed having regard to the suite of controls under which these additional permissions were required, even if existing use rights applied. I agree for the reasons that follow.

Were the conditions imposed lawfully and do they have ongoing effect?

1. If one assumes that the current provisions of the scheme continue to govern the operation of the use as the primary 'control', my next task is to consider whether the permit conditions were lawful having regard to ordinary principles regarding the validity of permit conditions.
2. Putting existing use rights to one side, I accept the responsible authority's position that the contested conditions can be upheld on ordinary case law principles pertaining to the validity of permit conditions.
3. The seminal case authority is Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council[12] which in essence provides that a condition needs to be reasonably related to the purpose for which the function of the authority is being exercised, by reference to the implementation of planning policy as identified in the Act and the relevant scheme.
4. The responsible authority also pointed to section 62(2) of the (PE Act) as enabling it to impose any condition 'it thinks fit'. While this may be the way this sub-clause is expressed, the applicant is correct that case law has confirmed that this is not an absolute right. It is still subject to the proviso above.
5. As a matter pertinent to the planning merits, use-related conditions have been accepted as lawful and appropriate within permits approving development, so long as there is the relevant nexus, as well as the requisite reasonableness. The Tribunal summarised this conveniently in Challister Ltd v City of Caulfield as follows:[13]

In my view, if in circumstances such as this a development permit is sought which would vary, intensify or extend the use in some manner so as to affect the surrounding amenity or give rise to other related town planning issues, then provided a condition is reasonably related to the development then conditions affecting the use could in those circumstances be imposed.

1. In this case, I find that there is a clear and sufficient nexus between the permit issued in 1988 and the conditions imposed (which included no amplified music except with consent) as well as the amendments in 2012 and the amended conditions at that time (including operating hours for the deck).
2. More specifically, the permission sought at first instance included substantial buildings and works, including those external to the existing Hotel building, with obvious capacity to cause detriment to the amenity of the surrounding neighbourhood by way of noise emissions. It was not disputed that policies and decision guidelines in the Act and the planning scheme called upon a decision maker to consider the management of potential land use conflicts.
3. Likewise, the amended permit sought to delete the restraint on the type of users of the deck to facilitate a broader class of users, to permit additional buildings and works to the walls of the deck, and to approve the sale and consumption of liquor on this part of the premises (apparently for the first time).
4. In my view, it was entirely reasonable that these combined permissions sought would justify the imposition on trading hours for the 'outdoor' element of the use (especially with a night time limitation).
5. Those permissions have directly facilitated the more intensive, regular use of this outdoor area by patrons of the hotel, with a clear capacity to generate noise and other amenity impacts given the setting and mode of operation.
6. In my opinion, amplified music is entertainment of a category that normally has the potential to cause greater detriment to amenity than acoustic music such as a musician with a guitar.
7. Another essential element of the planning controls is that a relevant objective of clause 52.27 is to ensure that the impact of the licensed premises on the amenity of the surrounding area is considered.
8. Even the permission to sell and consume liquor on the deck alone would in my view raise legitimate questions about what time of night the use of this part of the building should cease to maintain nearby residential amenity at the nearby zone interface in particular. This is consistent with the decision guideline in clause 52.27 to consider 'the impact of the hours of operation on the amenity of the surrounding area' and matters in clause 65 of the scheme.
9. Likewise, maintaining limitations on the provision of amplified music (i.e. only with the consent of the responsible authority) is another direct way of seeking to limit the emission of levels of noise that would disturb residential amenity. This was always a key element of the applicable planning controls, and remains so in the form of the restriction in the Commercial 1 zone provisions as it pertains to all uses.
10. It also appears unlikely that there was any material before the responsible authority at the time to enable it to conclude that the state-wide requirements of SEPP N-2 that had been imposed on the permit could be met without this supplementary condition.
11. The statutory scheme governing the enquiry of permits has also been found to contemplate that conditions of development permit may continue to take effect even after the relevant buildings and works have been completed.[14]
12. I consider that the contested conditions are expressed and intended to operate in this way, especially in so far as they pertain to the entitlement to sell or consume liquor on the deck.
13. For completeness, the planning 'harm' associated with the contrary view is a factor often considered as an element of Supreme Court and Tribunal decisions in leading to a balanced decision.
14. It is clear from the relevant officer's reports that the council was attuned to the need to consider broader planning objectives, to balance opportunities for vibrant commercial uses that serve local community needs, whilst protecting neighbourhood amenity to a reasonable degree.
15. In this case, it is entirely conceivable that if the responsible authority had been advised that it could not lawfully have imposed these restrictions on the use, it would have refused to amend the permit in the manner sought or potentially refused to grant the permissions in the first place.
16. A contrary finding to the one I have reached could therefore have the effect of preventing the reasonable expansion of existing uses.

Is it reasonable that the permit holder continues to be bound by the conditions?

1. An important element of this case that has been understated by the permit holder is that the deck in its current form continues to be used as part of the ongoing use.[15]
2. The permit holder continues to take the benefit of the permit, especially the deletion of the condition limiting the use of the deck to residential use and the ability to sell and for the general public to consume liquor on the deck.
3. In my opinion, the permission needs to be applied as a whole, consisting of a package of permissions and restrictions. This concept is reflected in clause 63.04 that seeks to preserve existing limitations on the use in question.
4. This has parallels to the decision of Justice Osborn in Benedetti v Moonee Valley CC[16] in some respects.[17] In that case, His Honour confirmed that:

[31] In my view Condition 1 continues to have effect while the owner of the land takes the benefit of the permit. It will have no effect if the permitted development which includes an element over six metres is demolished, but while such development is maintained, the conditional obligation not to modify the layout or the size of the building persists.

1. The conditions limiting the way in which the deck could be used in connection with the activities of the Hotel were arguably 'the price paid' for the benefits now enjoyed by the permit holder and its predecessor.
2. It is therefore reasonable as a matter of equity for the permit holder to be bound by these conditions, unless overriding considerations imply.

Can a permit seek to control the outcomes of specific permissions notwithstanding any existing use rights being operational?

1. If existing use rights are found to have ongoing effect in this case, a further question is whether a finding of existing use rights affects otherwise lawful opportunities to impose such constraints as part of associated permissions for the land.
2. I have had regard to the detailed submissions made on behalf of each party, and the case law authorities relied on by them which pertain to existing use rights. I have deliberately confined these submissions to the more salient points to provide a more streamlined decision.
3. The permit holder/applicant's main submission was that it was not lawful to seek to control the operation of the use on the first floor deck by way of permit conditions, since the land as a whole benefits from existing use rights that could not be fettered by permit condition. It submitted that the use of the deck was simply a legitimate intensification of the existing use of the land for the purpose of a Hotel.
4. Somewhat inconsistently though, this applicant has seemingly accepted other use-related conditions of the permit such as maximum patron numbers on the deck without challenge (presumably because this aligns with building regulations). It only seeks to contest certain conditions of the permit that it regards as overly onerous on its current operations.
5. The permit applicant submitted that if conditions of the relevant permit were imposed without power, they could not lawfully attach to the existing use.[18] It also pointed out, in line with the case of Bada Bing Bada Boom Pty Ltd v Darebin CC[19] that if a condition of permit is found to be invalid, it will have been ineffective from its imposition.
6. I agree with these submissions in principle, subject to my findings that the constraints that form part of the permit have shaped the 'extent' of the existing use right under clause 63.11 and continue to be relevant for the purpose of clause 63.04.
7. The responsible authority submitted that when permission was sought for buildings and works and the expansion of the area for the sale and consumption of liquor (as required by the provisions of the scheme), this provided a legitimate opportunity to control the activities that were to occur on the deck, consistent with provisions of the scheme at the time.
8. On the facts of this case, I consider that the extent of the use right that has been demonstrated provides a logical answer to this question, although I accept that existing use rights should be construed liberally as a matter of fairness.[20] Likewise, I consider that my analysis is consistent with a long line of case authorities that call on the decision maker to consider the protected purpose by reference to the actual use at the relevant time, not necessarily to technical or planning scheme definitions of such use.
9. The principal restriction that arises under section 6(3) of the PE Act is that a planning scheme (and by extension, a planning permit issued under it) cannot prevent the ongoing existing use of an existing building.
10. The permit holder submitted that a provision of a planning scheme, being a subordinate instrument, could not override a protection offered by the legislation itself i.e. in section 6(3) of the PE Act. It further submitted that in circumstances where there was no power to restrict or control an existing use right, the amenity impacts of the use are irrelevant.
11. The responsible authority countered this by pointing out that in the case of this existing use right, the planning scheme provided expressly that any existing condition or restriction to which the use was subject would need to be met, and the requirements associated with a section 1 use in the zone would be operative (presumably referring to the buildings and works requirement and the no detriment to amenity condition).
12. It has been established by the Tribunal and the courts that depending on applicable planning provisions, it may be lawful and appropriate to regulate the intensification of an existing use right somewhat, falling short of preventing or extinguishing that right.
13. These decisions generally relate to where a particular provision of a planning scheme requires separate or additional permission to be obtained under the applicable planning provisions, such as clause 52.06 pertaining to car parking, or clause 52.28 authorising the installation of gaming machines.[21]
14. In my opinion, the permission required under clause 52.27 for the sale and consumption of liquor (i.e. extending the area in which liquor can be consumed) and the buildings and works permission, is generally comparable.
15. In Wellington v Surf Coast SC, the Tribunal observed[22]:

[163]. . . the intensification [of the use] is to an extent regulated by the existence of a buildings and works control under cl 63.05, whereby all buildings and works associated with the existing use right require a permit. A permit may sometimes be refused where it might entrench a non-conforming use or, alternatively, conditions on a permit may be used to ameliorate off-site amenity impacts created by the works...

1. The case of Motorcycling Australia & Ors v Surf Coast SC[23] is a direct example where the Tribunal accepted that land had existing use rights for off-road motorcycling events and activities[24], but nonetheless considered that use-related conditions were lawful and justified when approving further buildings and works in connection with that use.[25] The Tribunal explained:

[6] In addition to whether the proposed buildings and works will inappropriately entrench the use, the Tribunal is required to consider whether lawful and reasonable use conditions can be applied to a permit allowing the proposed buildings and works and the new clubhouse.

This was in the context of the applicant opposing conditions that sought to include noise management conditions as reasonably related to proposed buildings and works including a new clubhouse.

1. Elements of the underlying zone provisions and decision guidelines were given effect to by the Tribunal in the exercise of its discretion, including requirements in respect of buildings and works. This was in addition to giving weight to considerations in clause 65 of the scheme and broader policies of the scheme.[26]
2. The Tribunal concluded that the Allen Construction test for the validity of conditions applied. It noted that the 'more significant works' would justify the imposition of the conditions proposed by the responsible authority in the context of a requirement for permission for buildings and works. It observed:

[133] . . .these more significant works will entrench a use otherwise prohibited in the zone. They will lead to greater use of the motorcycling track and associated facilities, with more frequent off-site amenity impacts over the longer term - particularly noise. Having regard to the relevant planning policies in relation to existing use rights and the balancing of competing interests, we consider permit conditions restricting event days or dealing with those off-site amenity impacts are reasonably capable of being regarded as related to the implementation of planning policies directed to existing use rights. As we have indicated, that is one of the very purposes of the control in cl 63.05. On this basis, we consider that the proposed conditions would be valid.

1. That case considered the situation where the use was 'non-conforming' in the sense that it would otherwise be a prohibited use, but I find that the same underlying reasoning would apply in terms of the ability of permit conditions to govern a use so long as they are validly related to policy and justifiable on the merits given the nature of the works being approved.
2. Ultimately, the Tribunal in that case was not satisfied that projected noise emissions would be adequately controlled by potential conditions and declined to grant the permit.
3. I consider that it is reasonable for this logic to be extended to the situation before me, where the permissions are required under other provisions of the scheme. The same underlying principles apply.
4. Given this more recent decision, I do not rely expressly on the decision of Royz Boyz Pty Ltd v Port Phillip CC & Ors[27] as cited by the responsible authority, since it does not address these matters as directly.
5. It is also highly significant to my findings that the contested conditions only seek to regulate the specific area in which the works have been approved or the permitted extension has been applied. That is, they apply only to the deck. They do not seek to control the operation of the internal areas of the premises that have been used for a Hotel over time, which would have been more open to challenge if existing use rights remained operative.
6. It is also clear that limitations that arise under other legislative provisions have been accepted as validly impacting on the way an existing use may be conducted (albeit not as restrictions under the planning scheme), such as where there is a liquor licence in place under the Liquor Control Reform Act 1998 with more detailed conditions. The permit holder explicitly accepted this in the current proceeding.
7. I also consider that compliance with State Environment Protection Policy No. N-2 (SEPP N-2) is such a provision, as is included in the conditions of the permit and its validity was not challenged before me.

1. I consider that the matters raised before me come under the auspices of section 149A of the PE Act, in that they relate to either the interpretation of a permit in relation to land[28], or relate to whether section 6(3) of the Act applies to a particular use or development.[29]
2. It is well established that an application for declaration is a discretionary remedy. Whether such an order will be made will be dependent on the quality and consistency of material and submissions presented to the Tribunal, as well as equitable considerations. The utility of making the declarations sought is relevant.

1. My principal findings above do not hinge on the existence of existing use rights given the operation of the current planning scheme provisions.
2. Notwithstanding, I consider that it is desirable to provide some finality to the parties in terms of the relevant entitlements that have been demonstrated. It is also necessary to consider the scope of the existing use right in the event that existing use rights are found to warrant greater priority than I have attributed to this fact scenario.
3. I provided a further opportunity to the applicant to file and serve relevant evidence of existing use rights, since it is well known that the Laurel Hotel is a longstanding use in this area. I have considered the material received as well as the response from the responsible authority.
4. The burden of demonstrating existing use rights, especially when a declaration is sought to confirm them, rests with the applicant. The test is on the balance of probabilities (being the civil standard of proof), and sufficient relevant evidentiary material is normally required to demonstrate compliance with the planning controls.
5. The responsible authority submitted that the Tribunal should refrain from making a declaration that the property enjoys existing use rights since it regarded the evidence relied on by the applicant as inadequate. I am not persuaded in all respects.
6. It referenced the ways in which existing use rights can be established under clause 63.01. In its supplementary submissions and evidence, it noted that the applicant considered that the relevant 'approval date' of the planning scheme was 6 May 1999 - when the current scheme commenced operation. I accept this.
7. The responsible authority advised that, at that time, the use of land for a hotel was an innominate, permit required use. It specifically referenced the grant of the permit on 2 November 1988 which approved buildings and works and the use of the land as a Hotel.[30]
8. At that point in time, an equivalent to clause 63.05 applied such that existing use rights could continue provided that buildings and works or an expansion of floor area were subject to a permit, and relevant conditions or restrictions to which the use was subject were adhered to.
9. Alternatively, if the existing use rights were claimed for the 15 year period immediately prior to this application[31] in respect of dot point 4 of clause 63.01, the responsible authority submitted that this period would include the applicable permit, with all of its conditions.
10. On this basis, it submitted that even if existing use rights were confirmed (irrespective of the method of accrual under clause 63.01), they should be governed or limited by the controls under the permit.
11. Although the Hotel has been operating on the land since the mid 1800's, the evidence relied on for existing use by the applicant in this case in fact substantially pertains to the last 15 years from the date of the application for declaration, rather than specifically at the time period immediately prior to the introduction of the new planning scheme (i.e. 6 May 1999).
12. Whilst the permit holder seeks to rely on dot point 1 or dot point 4 of clause 63.01 as alternatives, in reality, I find that there is insufficient evidence provided of the ongoing lawful use of the land as a Hotel prior to the approval date to meet the standard required for dot point 1 of clause 63.01. The evidence did not explicitly address this time period and did not address the lawfulness of the use during that time.
13. I turn to the other alternative relied on in this case. Clause 63.11 is a deeming provision that provides:

If, in relation to an application or proceeding under the Act or this scheme...the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.[32] [Tribunal emphasis.]

1. It was agreed by the parties that if existing use rights could be demonstrated, these rights would extend to the full extent of the site's curtilage, including the areas of outdoor decking on the first floor.[33] This proposition is in line with the Supreme Court authority of Stonnington CC v Southern Property Corporation Pty Ltd[34], and I have proceeded on this basis.
2. For the record, key aspects of the evidence submitted in this case that lead me to the view that the land has been used as a Hotel on the balance of probabilities included:
   • a document known as the Moonee Valley Thematic Environmental History, produced by historians Jill Barnard and Sonia Jennings. This study was commissioned by council and subsequently adopted by it on 18 September 2012. It refers to the use of the land as a Hotel commencing in the mid 1800's and then to specific periods of operation;
   • generally consistent affidavits of patrons describing their (mostly) regular patronage of the Hotel over an approximately 20 year period and the services offered which included the sale of alcohol and service of meals and some entertainment from time to time;
   • regular users and a staff member gave evidence that every time they attended the Hotel it was open for business during regular hours, and that they were not aware of any time in the past 15 years when the use had 'ceased';
   • an affidavit of a former Hotel manager and resident, who is now a cleaner of the venue who worked at the premises from 1990/1991. This indicates that the premise has always held a liquor licence, had a public bar, a bistro and served food. Entertainment was provided during functions 'in the earlier years';
   • an affidavit of the company director of the permit holder indicating that the business was purchased on 2 May 2008. She confirmed that the business had been operating 365 days each year. She provided a number of general advertisements and media articles relating to the Hotel. One exhibit was a statement from another staff member of 16 years standing, indicating that functions had been held upstairs on the outside deck, as well as for barbeques and for regular patrons.
3. None of this evidence was specifically contested by the responsible authority or local residents.
4. I acknowledge that the activities comprising an existing use can change or intensify, so long as the same purpose of the use is served.[35]
5. However, this is where the distinction between existing use rights demonstrated to be lawful before the current planning controls and existing use rights demonstrated by 'long user' may be different. Although the site has a long historic use, it cannot reasonably be argued that the original format and lack of constraints on the use have continued in the same way over the past 15 years because of the operation of the permit and its amendment in recent years.
6. The Tribunal and the Supreme Court have confirmed that existing use rights accrued over a 15 year period can be affected by conditions of a relevant planning permit that was effective during that timeframe. As Deputy President Dwyer held in Octopus Media Pty Ltd v Melbourne CC[36]:

[79] . . . Pursuant to clause 63.05, the existing use can continue provided any condition or restriction to which the use was subject continues to be met. This may include a conditional restriction on the type of sign, or the period for which it might be displayed. On Octopus Media's own material, any use rights obtained through the original permit DP88/0006 were essentially superseded by the more restricted use rights under the permit TP96/324. The then permit holder took the benefit of that permit together with its obligations, in order to erect and display the new advertising sign. Octopus Media relies upon this permit either for part of a 15 year period, or for continuous use beyond some earlier 15 year period. This permit included the mandatory expiry condition, which led to the expiry of the right to display the sign at the latest after 23 March 2010.

[80] On this latter issue, in Stonnington CC v Southern Property Corporation Pty Ltd. Osborn J had expressed the view, without finally deciding the matter, that a relevant condition or restriction for the purpose of clause 63.05 would likely need to be founded in a permit or planning scheme, rather than merely by reference to activities on the land. Here, the mandatory expiry condition arises in both the permit TP96/324 and in the planning scheme.

Deputy President Dwyer then analysed relevant authorities and concluded that the mandatory permit expiry condition of the relevant permit was effective as a 'condition or restriction' for the purposes of clause 63.05.

1. In broad terms, I find that the purpose of the existing use is for a Hotel, but the extent of the rights established on this land under clause 63.11 of the scheme is in accordance with the permissions granted under permit No. ES-4917 which have operated during the 15 year period.
2. When I have found that the land has existing use rights for a Hotel, I refer to the sale and consumption of liquor and meals, since these are demonstrated characteristics of the use as it has been operating over the 15 year period.
3. I decline to accept the invitation from the applicant to make specific declarations about the extent to which amplified music forms part of the activities comprising the existing use.
4. My first concern is that this level of specificity is not necessary and tends to confuse the purpose of the use (which is fixed) with the activities comprising the use (which can notionally change over time, so long as the same purpose is served).
5. In any case, it is inconclusive from the evidence as to whether this activity in fact formed a regular part of the use over the 15 year period.[37] For example, there was some mention of live music offered sporadically such as during the Melbourne Cup Period in the carpark marquee (other than the use of a piano in the area that is now the bistro). There was also mention of live music played a few times per week in the 1990's, but an acknowledgement that venue operations changed based on management from time to time.
6. Perhaps more significantly, in so far as the use of the deck is concerned, it was governed by the limitation in the permit which existed from 1988 which prevented such entertainment without prior consent of the responsible authority.
7. I regard this as a distinguishing feature of this case compared with McKinnon Hotel Pty Ltd v Glen Eira CC[38] where the Tribunal and then the Court on review were in a position to make a finding that the activities comprising the use right in that case already included gaming, such that permission to use the land for additional gaming machines could not lawfully constrain the existing use.

1. Having found that the permit conditions are valid and have ongoing effect, I turn now to the planning merits of the request to amend the permit.
2. The permit applicant submitted that if the conditions were lawful, they were overly restrictive on the current use of the upper level deck and should be amended. It sought to rely, in part, on written statements of support from patrons of the Hotel, many of whom claimed to live in the local area and not been affected by noise disturbance. These people were not called to give evidence at the hearing.
3. The permit holder submitted that there are other late night venues operating in the nearby area with later trading hours than those proposed for the deck. It also suggested that if the Tribunal had concerns about the potential for 'vertical' noise escape, it could accept a condition requiring the decking to be roofed, as opposed to the retractable awning that is currently operational.[39]
4. It also submitted that if controls on the use were found to be justified, it would encourage the Tribunal to consider that music noise was suitably regulated by SEPP N-2 but it would still consent to certain limitations on music that could be played on the deck (for example, limited to 'background' level or acoustic instruments only, or during restricted hours).
5. By contrast, the responsible authority submitted that relevant policies of the planning scheme as well as the context of the site justified the current trading hours limitation for the deck.
6. It referred more specifically to clause 21.08-4 of the scheme which seeks to minimise the negative impacts associated with licensed premises. It also placed weight on local policy in clause 22.04 which seeks to limit trading hours for licensed premises to 11pm if nearby residential properties may be affected.
7. It also noted that noise attenuation was a relevant consideration in this regard and that the current roof to the deck is retractable, and that the structure as a whole enables substantial noise escape.
8. For the record, I appreciate that the current residents started occupying their dwellings when the Hotel was already operational. Some of these residents will have commenced occupation after the amendment of the permit to allow use by Hotel patrons.
9. This factor is broadly relevant to expectations of amenity, as well as the general proximity of their dwellings to a main road with commercial zoning.[40]
10. Notwithstanding, I find that the current operation of the upper level deck is causing (or has caused) significant, unacceptable effects on residential amenity.
11. The objectors made detailed submissions about the impacts of the use, especially when the deck was operating with amplified music i.e. before the enforcement order was issued.[41] They were significantly concerned about ongoing noise disturbance from amplified music such as when a DJ was present with their own equipment, and equally from patrons e.g. singing along loudly. They complained of prior sleep disturbance from the deck at the venue past 1am some mornings.
12. The objectors also explained that they had placed heavy reliance on the conditions of the permit as providing the outer limits of acceptable trading for the deck area. I can understand this, and have already addressed the concept of the permit being both facilitative and restrictive.
13. I am conscious of Court and Tribunal decisions that prevent me from 'gathering my own evidence' in the proceeding when conducting a inspection, especially where this is unaccompanied by parties.
14. In this case, my site inspections verified the disturbance to residential amenity as documented in submissions and documentation tendered at the hearing.
15. I observed that there is ready capacity for such disturbance given the design of the deck and the nature of the interface between the properties in question, especially the closest residential property (one removed in Middle Street) and the dual level apartment at the rear of 10 South Road which is even closer.
16. At the very least, there is also scope for patron disturbance when exiting the deck via the outdoor staircase into the car park at the rear of the property.
17. There was no express evidence before me in the proceeding to suggest that the deck does or even could comply with SEPP N-2 given the absence of noise regulation such as by a noise limiter and the lack of soundproofing of the surrounding structure.
18. I indicated tentatively at the hearing that it may be challenging to make a decision about the amenity impacts of an open deck which has not been acoustically treated[42] without having the benefit of an independent quantitative acoustic assessment which takes account of maximum music noise levels. At the hearing, I had raised the potential of allowing the permit holder to obtain independent acoustic testing and evaluation subject to further consideration of the legal issues.
19. The applicant suggested that acoustic evidence had not been recently obtained because of the impact of a current enforcement order preventing amplified music being played on the deck, except with the further permission of the responsible authority. The responsible authority was critical of the fact that no express request had been made to it to facilitate such testing.
20. A closer reading of the terms of the enforcement order discloses that it was possible for the respondent/permit holder to seek the consent of the responsible authority to play such music for the purposes of testing for this proceeding. Mr Sherwell indicated that his instructions would have been to consent to this course of action, and strenuously submitted that this testing should have been carried out in advance of the hearing on behalf of the applicant.
21. The upshot is that I did not have any assistance by way of evidence of acoustic impacts but ultimately, despite earlier suggestions to the parties, I do not consider this to be necessary to inform my final decision because it is abundantly clear to me that, irrespective of compliance with noise standards per se (which do not include patron noise), the operation of the deck with amplified music that is not approved specifically by the responsible authority cannot be sustained in this particular setting. The exercise would be superfluous and would cause additional time and expense.

1. The submissions and documents in the proceeding have confirmed that there is only a limited qualitative degree of acoustic attenuation from the screening that has been erected on the sides of the decking which has substantial open spacing, and the roof is either open or covered with a retractable canvas awning canopy at certain times.[43] Part of the deck has been designed as an area with a sufficient openings to facilitate smoking in line with relevant legislative restrictions. Also, there is obvious noise escape via the open entrance at the top of the staircase.
2. This is combined with the relative proximity of residential properties and the fact that there is no noise limiter installed at the premises for acoustic music. There is also an established history of DJs and the like bringing their own, unrestricted amplification system for use on the deck area for parties.
3. This is compounded by the relatively generous area of the deck which would allow for larger gatherings of patrons outdoors with a separate bar.
4. I have considered whether to give any weight to the statements of support provided on behalf of the applicant. These people were not called to give evidence and, in general, I found their comments to be superficial and somewhat self-serving. In addition, it is not known how distant their properties are from the venue and how regular their observations have been.
5. By contrast, the submissions and supporting documentation provided by the objectors in this case are from neighbouring residents and were specific and had been supplemented by associated complaints made to the responsible authority for a number of years about the late night operation of the deck.
6. Significantly, the permit holder did not dispute residents' experiences of excessive noise disturbance as a matter of fact.
7. It is not at all surprising to me that local residents have complained about noise disturbance when the deck is occupied.
8. My inspection verified that even at relatively low levels of music, the lyrics of songs were clearly audible down Middle Street (including outside the Keron property), as well as from the upper level deck on the Tait property to the immediate south at close range, which adjoins the lounge room and main bedroom. Also, laughs and conversation from the three patrons on the deck could be heard clearly further down the street. Both of these observations are entirely consistent with the objector's submissions and statements of grounds.
9. Although the applicant submitted that this site is within the context of a main road in a commercial zone with other late night uses, it is evident that it is within a part of the activity centre that does not have any late night entertainment uses, particularly those with any outdoor areas. Such uses exist further to the north and there is no direct policy encouragement for this part of the street to intensify by way of late night activities.
10. By contrast, the area to the rear of the property has a conventional level of residential amenity at night, albeit with the intrusion of car and tram noise along Mount Alexander Road. This is a more continuous, background noise, rather than the type of noise from patrons or amplified music which is far more disruptive to sleep and residential amenity especially at night.
11. If the deck continues to be used in its current configuration, I consider that the requirement to cease use at 10pm is the outer limit of what is reasonable for this particular setting.
12. Beyond this, the amenity of residential properties will be too compromised. This would also be in direct conflict with the requirement in clause 34.01-2 for all uses in the Commercial 1 Zone to not cause detriment to the amenity of the neighbourhood.[44]
13. I am cognisant of the ability of the Tribunal to modify conditions of the permit to provide some limitations on the playing of amplified music or to require acoustic improvements or the like. These were offered 'on the run' and in principle by the permit applicant, but did not specifically form part of the amendment application and no detail was provided.
14. In these circumstances and given my findings above, am not satisfied that any of these measures would be effective to manage amenity impacts suitably.

1. My principal finding is that existing use rights do not need to be relied on in the current proceeding where the use is now as-of-right. I consider that the conditions that were imposed on the permit meet relevant tests of validity and continue to apply by virtue of clause 63.04.
2. If existing use rights were determinative of this proceeding, my preferred view is that because the existing use right has been demonstrated over the past 15 years (for the purpose of clause 63.11), the extent of the existing use right is governed by the conditions of the permit in question.
3. Also, the permit holder has taken the benefit of this permit and it remains appropriate for it to be bound by its restrictions.
4. I have found that the permit conditions as they stand represent the outer limit of acceptability for the upper level deck. Any amendments to permit amplified music without further consent or to extend operating hours would not be consistent with policy objectives which seek integrated planning outcomes for areas with a mixed character such as this.

[1] I made general observations of noise levels outside the Bruckner property on Mount Alexander Road but was provided with the request to inspect this property too late.

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

[3] Permit No. ES-4917 on 2 November 1988.

[4] No specific declarations were sought in respect of this element of the permission granted and if this permission was effective, it would only strengthen the overall conclusions I have reached in this proceeding, that the existing use rights are shaped by the permit.

[6] They were framed to be generally in line with declarations made by the Tribunal in Stonnington CC v Abgol & Ors [2005] VCAT 2346, the Tribunal decision at first instance.

[7] I have referred to these people as 'objectors' in the colloquial sense, for convenience, rather than to indicate their legal status in the proceedings.

[8] Although a report by Hearlink dated 7 September 2016 had been submitted to the responsible authority, with notable conceded deficiencies.

[9] (Red Dot) [2016] VCAT 1198, a decision of Deputy President Gibson.

[10] Per Exhibits 7 and 8 to the affidavit of Matthew Sherwell affirmed on 19 June 2018.

[11] [2011] VSC 302, a decision of Balmford, J.

[12] [1970] HCA 42; (1970) 123 CLR 490.

[13] (1992) 8 AAATR 22, a decision of Deputy President Ball (as he then was), referencing decisions such as John Paul College v City of Frankston, Proceeding No. 1991/02059, a decision of Member Byard (as he then was).

[14] For example, Cope v Hobsons Bay CC (2004) 19 VPR 96 as confirmed in Benedetti v Moonee Valley CC.

[15] This is a different issue from acquiescence to conditions, which was an issueI have considered but not found to be determinative on the basis of submissions by the permit holder.

[16] [2005] VCC 434.

[17] Although the facts of that case were more focused on the facilitative and restrictive functions of a condition that required compliance with endorsed plans and prevented alterations to development except with consent of the responsible authority. It also concerned elements of development that would not ordinarily be controlled via a planning permit but formed part of the endorsed plans for the proposal.

[18] Referencing Kraan v Cardinia SC [2006] VCAT 1629, a decision of Deputy President Gibson.

[19] [2009] VCAT 2729, a decision of Senior Member Byard (as he then was), [71].

[20] Including existing uses demonstrated under clause 63.11, per Wellington v Surf Coast SC (Red Dot) [2011] VCAT 2317.

[21] For example, relevant permissions was extended under 52.27 and extra parking was waived under clause 52.06 in CWK Hotels v Port Phillip CC [2013] VCAT 1704 concerning the Greyhound Hotel in St Kilda which had the benefit of existing use rights as a Hotel. A similar conclusion and use related conditions were imposed by the Tribunal in Katy Solonikios v Yarra CC [2007] VCAT 2412. This is generally consistent with my approach in Open Door Public Company Pty Ltd v Stonnington CC [2009] VCAT 2332. This issue was also considered in McKinnon Hotels Pty Ltd v Glen Eira CC [2011] VSC 627, with some peculiar aspects of installation which differ from traditional buildings and works.

[22] (Red Dot) [2011] VCAT 2317, constituted by Deputy President Dwyer.

[23] [2013] VCAT 1388, a decision of Deputy President Dwyer and Senior Member Baird.

[24] Which would otherwise be a prohibited use in section 3 of the Farming Zone.

[25] Albeit that clause 63.05 applied to that fact situation.

[27] [2002] VCAT 907.

[30] This was referable to clause 7(2) of the then Essendon Planning Scheme pertaining to the Commercial and Industrial Zone, whereby permission was required for what was regarded as a change of use.

[31] Confirmed in the Supreme Court Octopus Media decision.

[32] The provision then refers to the time period ceasing to run if there has been a finding of unlawfulness or an unambiguous written direction to cease, neither of which are applicable here.

[33] It also appears that much of this built form, including the external staircase, pre-dated the current application.

[34] [2006] VSC 435, per Osborn, J.

1. [35] For example, in the Abgol decision, this included a re-focusing or re-allocation of activities comprising the use within the 'planning unit'.

[36] [2016] VCAT 2101, a decision jointly with Member Keddie. The aspects of the reasoning that I have referenced were not displaced in the Supreme Court appeal, Octopus Media Pty Ltd v Melbourne City Council [2017] VSC 429.

1. [37] In reality, there were only limited opportunities for this to have lawfully occurred on the deck given the conditions of the permit.

[38] (Red Dot) [2011] VCAT 413, a decision of Deputy President Dwyer which usefully reiterates the relationship between the Act, the scheme and permits in respect of existing use rights and the protection offered to them.

[39] With smoking by patrons to be facilitated elsewhere on the property.

1. [40] Issues of degree are relevant. For example, I consider that the dwelling that abuts the Hotel and claims to be affected by noise has a lesser claim to residential amenity than the properties within the residential streets to the rear, with residential zoning.

[41] On 29 March 2017, in Tribunal proceeding P1957/2016.

[42] Most areas of the deck are surrounded by Masonite type walling, with glazed panels or portholes. One area that is more 'internal' to the site has privacy type timber screening.

[43] Despite the attempt in condition 22 to require sound proofing works.

[44] That provision could itself conceivably ground an application for enforcement order under section 114 of the Planning and Environment Act 1987 if the circumstances were appropriate.