1. Mr Scally sought leave to amend the statement of grounds with respect to review P1352/2014. He said the applicant did not wish to contest condition 3 that limits the restaurant to 43 patrons. He also sought permission to withdraw the review of condition 5(f) regarding the tavern's hours on Sunday for the sale and consumption of liquor. I granted the amendment of his application as it diminished the possible amenity impacts of the proposed use.
2. Mr Lewin had requested a VCAT registrar to issue a summons requiring Mr Zvi Belling, the permit applicant, to attend the hearing to provide a wide range of documents, to give oral evidence and to be subject to cross-examination. Following submissions from the parties, I ordered the summons to be quashed and gave oral reasons for my Order[2].
3. Mr Lewin sought leave to allow Mr Michael Buxton to present town planning evidence to the Tribunal on day 2 of the review. Mr Buxton had not prepared or circulated evidence by the commencement of the Hearing. I denied the request because:
   • It would be contrary to Practice Note VCAT2 Expert Evidence that requires evidence to be circulated ten business days before the hearing.
   • There were no special circumstances to waive the required time and the applicants for review have had ample time to prepare their case and engage experts.
   • It would be prejudicial to the permit applicant's case and a denial of natural justice unless an adjournment was granted before they presented their case.
   • Mr Linke may be required to provide further supplementary evidence to consider the views of Mr Buxton.
   • Mr Buxton is not an expert statutory planner and it is unlikely that the Tribunal would be assisted by his evidence in this case with respect to whether permission is required to use the land for a café and tavern.
4. Mr Linke served supplementary evidence on the Tribunal and the parties. Mr Linke received further information that led him to change his expert opinion as to whether a planning permit is required to use the land for a restaurant and tavern. The supplementary evidence was circulated in accordance with the Practice Note VCAT2.
5. Mr Scally sought an order for costs against Mr Lewin. The costs would generally seek reimbursement for Mr Belling's attendance two hours at the Tribunal. This would be $380 based on Mr Belling's professional fees. Mr Scally also seeks reimbursement for additional expenses incurred to address the characterisation of the use as a single or two separate uses, which he says was not a matter included in Mr Lewin's statement of grounds.
6. I ordered the parties to lodge with the Tribunal and the other parties written submissions regarding costs 28 days from the final hearing day. I reserve my decision regarding costs to consider the submissions from the parties.
7. The application for a permit and the Notice of Decision to Grant a Permit refer to the land being used for a café. The parties agreed a café is an undefined land use term in the scheme, and it would be more appropriate to use a land use term that is defined in clause 74. The parties agree it would be appropriate to replace the term "café" with the term "restaurant".

Is planning permission required to use of the land for a restaurant and tavern?

1. A restaurant and tavern are included within "food and drink premises" land use under clause 74 of the scheme. A food and drink premises is included in section 1 (no permit required) of the table to the Commercial 2 zone. The condition in the table requires that the leasable floor area of a food and drink premises must not exceed 100 square metres leasable floor area. A food and drink premises that exceeds that floor area would require a planning permit.
2. Clause 62.01 provides that if land is used for more than one use and one is not ancillary to the other, each use must comply with this scheme. Land that is used in conjunction with or close association with another use may be considered as the one use if there is an:

essential association between the uses, and they have a genuine, close and continuing functional relationship in its operation with the other use[3].

1. The responsible authority says the restaurant and the tavern would operate as two separate premises, and as both premises would be less than 100 square metres leasable floor[4] area, no planning permission is required to use the land.
2. Mr Lewin says a close and continuing functional relationship exists between the restaurant and tavern because the land is owned by the same person, and it is likely the activities within the building will be marketed as one integrated retail or food and drink premises. He says the uses exceed 100 square metres floor area and a permit is required for the proposed uses.
3. In his initial evidence, Mr Linke advised that a permit is required to use the land as the total floor area of the two premises would exceed 100 square metres leasable floor area. In light of further information he received from the permit applicant, he says he is satisfied the two premises would be separate and hence no planning permit is required for the use of the land. It was his advice that the only features the premises would share would be disabled toilets on another floor of the building, and patrons of the tavern would access the lift through the restaurant, even when it is closed.
4. On the information before me, I am satisfied the restaurant and tavern would operate separately and they would not have any necessary close functional relationships. I come to this conclusion because each would:
   • Operate in different parts of the building that are well separated.
   • Provide different goods and services (the primary offer in the restaurant would be food, it would be liquor in the tavern).
   • Operate at different times.
   • Be under different managers.
   • Have different points of sale.
   • Have their own separate food and drink preparation areas.
5. The characterisation of the uses, whether they are separate or an integrated single use, is a matter of the facts regarding their operation. Common ownership of the land does not inevitably mean the uses would be necessarily interdependent or functionally connected, and information about ownership is unhelpful to this review as it provides no basis to assert the two premises would be interdependent.
6. If further information becomes available that indicates the tavern and restaurant are operating with a close functional interdependence and a permit is required for their use, this matter can be addressed through enforcement action.
7. Mr Lewin is concerned that the building could accommodate multiple food premises without planning permission. I accept this is possible provided the tests in clause 64.01 and 64.02 are satisfied. The requirement for a permit for multiple food and drink premises has to be assessed on its own facts. In my view my findings regarding these two particular food and drink premises do not necessarily mean no permission is required to convert the remainder of the building into a retail premises specialising in small food and drink premises. The need for a permit would have to be assessed on its own facts and information, where functional interdependence is established.
8. I note that while the use (food and drink premises) does not require a permit and they can operate all hours, clause 34.02-2 provides that a use in this zone must not adversely affect the amenity of the neighbourhood through, amongst other things, the emission of noise or artificial light. This clause requires the restaurant and tavern to ensure their activities do not impose unacceptable amenity impacts on nearby sensitive uses. Failure to do so can invite enforcement action.
9. The matters before me that require planning permission are to use the land for the sale and consumption of liquor (pursuant to clause 52.27) and to waive the provision of car parking (clause 52.06-3) and a loading bay (clause 52.07). These permissions enable me to consider the objector concerns with amenity issues (noise, patron behaviour, safety and hours of operation) in respect of the sale and consumption of liquor, not in respect of all the trading hours of the premises. That is the premises may serve liquor only within the hours specified, but could serve food and non alcoholic drinks outside those hours without requiring planning permission.

Is this an appropriate location for the sale and consumption of liquor?

1. The review site is located within a commercial precinct. The adjoining property to the east is used for a three storey office building, and the adjoining land to the west is used for a four storey office building, including an artists studio/warehouse at the rear facing the right-of-way. Land on both sides of Easey Street between the review site and Smith Street is used for an mix of offices, retail outlets, a radio station, a DIY motorcycle repair centre and other similar uses.
2. The review site is centrally located in the Commercial 2 Zone. Land on the north side of the right-of-way abutting the site is also within the Commercial 2 Zone and is developed with one and two storey commercial and industrial buildings that front Keele Street. One of these buildings is used by Dr Campbell for a medical recruitment and placement service.
3. Land on the south side of Easey Street, land facing Sackville Street further to the south and land on the east side of Budd Street is also within the Commercial 2 Zone and is used for industrial and commercial purposes. Others are used for various commercial enterprises, including a café.
4. The site is within 150 metres of the Smith Street major activity centre to the west and 150 metres of the Johnston Street neighbourhood activity centre to the south. The site is well served by public transport with trams operating in Smith Street, buses operating along Johnston Street and Victoria Park train station some ten minutes walk to the east.
5. The nearest dwellings within a residential zone are located on the north side of Keele Street, in the order of 50 metres distant from the review site. They have direct line of vision to the train carriage and roof deck.

1. The Commercial 2 Zone applies to the land. Its purposes are to implement State and local planning policy and to:

Encourage commercial areas for offices, appropriate manufacturing and industries, bulky goods retailing, other retail uses, and associated business and commercial services.

Ensure that uses do not affect the safety and amenity of adjacent, more sensitive uses[5].

1. The determinative matter before me is whether I should grant a permit for the sale and consumption of liquor. The reasons a planning permit is required are:

To ensure that licensed premises are situated in appropriate locations.

To ensure that the impact of the licensed premises on the amenity of the surrounding area is considered.

1. The decision guidelines of clause 52.27 require the responsible authority and the Tribunal on review, to consider planning policy and any impacts the sale and consumption of liquor may have on the amenity of the surrounding area. The assessment is to consider any impacts that may arise from the location, hours of operation, number of patrons and any cumulative impact on the amenity of the area, taking into account the proximity of other venues also selling liquor.
2. The State and local planning policy framework provides the following key objectives to guide the discretion of the responsible authority and on review the Tribunal[6]:
   • Build up activity centres as a focus for high quality development and living for the whole of the community.
   • Encourage the concentration of major ... entertainment developments into activity centres.
   • Assist in the control of noise on sensitive land uses and ensure that community amenity is not reduced by noise emissions.
   • Encourage development which meets the community's needs for entertainment and provides net community benefit.
   • Locate commercial facilities in existing or planned activity centres.
   • Promote walking, cycling and public transport and recognise that unrestricted car use and parking is not practical or achievable in the municipality.
   • Reduce potential amenity conflicts between residential and other uses.
   • Maintain Yarra's diversity, reduce conflict between commercial and residential uses so that appropriate commercial activities are supported and local residents located within or near commercial centres can enjoy a reasonable level of amenity[7].
3. With regard to Collingwood, the suburb is to be considered industrial (non residential) in character albeit surrounded by residential precincts. The Smith Street centre provides wide retail choice, restaurants and entertainment to both local and a wider regional population.
4. The site is within the Smith Street major activity centre. The Smith Street Structure Plan (2008) identifies the review site to be within an area that is an office and industrial precinct where those uses are preferred. I give this plan no weight as a planning panel that reviewed the plan and the related Amendment C140 found it was inconsistent with planning policy. Council abandoned Amendment C140 in September 2013.
5. Clause 22.09 refers to licensed premises. The objectives of the local policy are to:

Effectively manage the location, operation and hours of trade of licensed premises, in order to protect the amenity of nearby properties and areas.

Protect residential and other commercial uses from excess noise, traffic and car parking issues.

Provide for daytime trade and active street frontages in retail strips, while providing reasonable commercial opportunities for the trading of licensed premises.

1. The policy discourages licensed premises from locating in residential or mixed use zones, and encourages an appropriate buffer be provided to protect residential areas. In my view clause 22.09 provides no directions regarding consideration of other commercial businesses. It also provides limited directions for licensed premises in commercial zones; primarily that licensed premises in a business zone are discouraged from trading beyond 1.00pm unless it can be demonstrated there would be no adverse impacts on amenity.
2. Clause 22.09 encourages licensed premises to locate where patron access and egress can be managed and there are opportunities for surveillance and safety. It also provides that patron car parking should not adversely affect residential areas.
3. Mr Lewin says a licensed venue should be directed to Smith Street or Johnston Street. He says the proposed site is inappropriate as it is unduly close to dwellings and it would disturb other commercial businesses in the area. It would constrain the redevelopment of the commercial area for employment and commercial activity. It would also be isolated from the other venues, so patrons would be without the surveillance, policing and transport infrastructure that is available on the main streets.
4. I am generally satisfied that the proposed sale and consumption of liquor would be consistent with the purposes of the zone and the planning policy framework for the following reasons:
   • It is within a commercial zone and within a higher order activity centre, both identified by policy to be the appropriate locations for a wide range of uses, including entertainment uses.
   • A food and drink premises can operate on the land all the time without planning permission, and the discretion before me is in regard to the sale and consumption of liquor; hence my discretion is in respect of an intensification of uses that can otherwise operate without planning permission.
   • Local policy encourages business zones to be the preferred location for the sale and consumption of liquor, and accepts they will operate until 1.00pm because, in general, these areas are less sensitive than Mixed Use or Residential Zones.
   • It would provide services to the local community and strengthen the Smith Street activity centre.
   • It is within an area that already has restaurants and licensed premises, and so would add to the diversity of the activity centre.
   • It would provide services to nearby commercial premises, encouraging them to continue to trade in this area.
   • It is within a zone in which residential use is prohibited, hence the uses would be protected from residential encroachment over time.
   • The uses are some distance from nearby residential uses.
   • The site is well served by public transport and people could also readily access the premises by foot and by bicycle.
5. The venue would be separated from other licensed venues, and be somewhat distant from Smith Street. This could be both an advantage or a problem. I think its separation from other licensed venues is a positive feature. It would discourage people from congregating in Easey Street and there would be little risk of patrons of this venue having to mix with patrons from another nearby venue. It would lessen the likelihood that patrons would move between venues, enabling patron behaviour and liquor consumption to be managed by these venues. While it is a short walk to Smith Street, patrons can easily access nearby public transport services, and police can attend the venue quickly. Easey Street is also well lit. I think the location of the premises is an advantage that can facilitate appropriate behaviours and lessen the risks that arise from licensed premises.
6. Accommodation, including dwellings, is prohibited in the Business 2 zone. There is a very low likelihood that dwellings would over time be located near the review premises. The prohibition provided by the scheme protects the licensed premises from encroachment as new sensitive uses locate nearby and then demand it be constrained. Any dwellings within the Commercial 2 zone such as occupied by Ms Fastenau and Mr Newbury (no.3/57 Keele Street) enjoy non conforming use rights at best or do not comply with the scheme. In either case when the residential use ceases, it cannot be continued.
7. I am satisfied this is an appropriate location subject to it demonstrating it would not impose unacceptable amenity impacts. I turn to the possible amenity impacts on other businesses and dwellings below.

Would the sale and consumption of liquor impose unacceptable amenity impacts on its neighbours?

1. While the review site is generally a suitable location for a tavern and a restaurant, the responsible authority and on review the Tribunal must be satisfied the uses would not impose unacceptable impacts on its neighbours, including the nearby commercial uses. I address below the matters set out in clause 22.09 and clause 52.27.

Risk of amenity impacts arising from the venue's location and access arrangements

1. Mr Lewin says patrons would be likely to enter and leave via Budd Street, Keele Street and Sackville Street, all of which have residences. He says people are likely to disrupt the residents' amenity through anti social behaviours.
2. Mr Lewin says the proposed location would be inappropriate as the tavern could adversely affect nearby businesses and some people living within the Business 2 Zone. He says existing and potential businesses in Easey Street could defer investment and employment growth or leave the area, contrary to policies that encourage business development.
3. Two local businesses say they would be adversely affected by the tavern. Mr Rubin is an artist who operates a studio and warehouse in the rear of no.46 Easey Street, adjoining to the west of the review site. He says his studio would be disrupted by music, patron noise and the constant concern that arises from people circulating in Easey Street late at night. He is particularly concerned the tavern may encourage anti social behaviour in places removed from public surveillance. Mr Rubin has lodged an application to establish a caretakers dwelling in his premises[8].
4. Dr Campbell operates a medical recruitment business at no.27 Keele Street, approximately 70 metres to the northwest of the review site. The business recruits and places doctors throughout Australia, and employs up to 20 persons, including six people who are at the premises until midnight. The building is a former shoe factory that has been refurbished for its present purposes. It contains secure parking accessed from Keele Street. Dr Campbell is concerned with graffiti, vandalism and break-ins from the rear right-of-way shared with the tavern.
5. Mr Newbury and Ms Fastenau reside at 3/57 Keele Street within the Commercial 2 zone. As a residential use is prohibited in the zone, their occupation is either a non conforming use or without planning approval. Whatever the case, residents of a dwelling within a Commercial 2 zone cannot expect a level of residential amenity comparable to a residential zone. It would comprise the tail wagging the dog, and be, in my view, an inappropriate balancing of the matters to be considered. Nevertheless they can expect some amenity and to feel safe within their premises.
6. I think the location and access arrangements for the two licensed premises would reduce the risk of anti social behaviour and noise because:
   • The review site is within a commercial precinct and does not abut sensitive residential uses.
   • The only public entrance would be from Easey Street.
   • No public access would be available to the right-of-way north of the land. Consequently most patrons would be likely to enter and leave via Easey Street.
   • Patrons would be likely to walk west along Easey Street to Smith Street, or south to Johnston Street, and there are no destinations in Easey Street to entice them to stay.
   • There are no destinations or attractors that would encourage people to use Keele Street.
7. I am generally satisfied the location and access arrangements would contribute to the venue having minimal amenity impacts on residents in Keele Street or on nearby commercial uses.

1. Mr Lewin says the area is quiet at night as the nearby businesses have usually closed by 7.00pm and the taverns and restaurants in Smith Street are far enough away not to disturb the residents. He says many residents who live in Keele Street sleep in bedrooms at the front of their dwelling, one of which is built to the front boundary. They are occasionally disturbed when patrons leave the licensed venues in Smith Street and walk eastwards to Victoria Park train station or to their cars. He says the noise from patrons is very prominent in the area, particularly at night. He says the noise levels from the music and patron voices on the roof deck, and from additional people walking along Keele Street would be an unpleasant addition to the area.
2. Mr Burton is an acoustic expert, and he surveyed the background noise levels at midnight outside various residential properties in Budd Street and Keele Street, near the review site. The background noise levels ranged from 38dB(A) to 50dB(A). He says the main influences on background noise are the traffic along the nearby main roads and from an electricity transformer.
3. SEPP N-1 provides a methodology to establish an acceptable noise limit taking into account the prevailing noise levels and the land use zones and activities. In this place, the acceptable noise limits would be dB(A) in the daytime, 49dB(A) in the evening (to 10.00pm) and 44dB(A) at nigh time between 10.00pm and 7.00am.
4. Mr Burton says there are three noise sources, these being plant, music and patrons. He says SEPP N-1 applies to the air conditioning units and the uses would be required to comply with the required noise limits particularly evening and night time operation.
5. SEPP N-2 applies to music from public premises. SEPP N-2 provides that during the night time, music can exceed the L90 background noise level by 8dB(A) measured in specified frequencies. He says music from the tavern could comply with SEPP N-2 if limited to a maximum of 80dB(A). Music noise heard in Keele Street would comply with SEPP N-2 due to the distance between the noise source and receptor.
6. He recommends that a noise limiter be incorporated into the amplification system for both the rooftop tavern and the ground floor restaurant. The noise limiter would be set by, and could only be changed by, an accredited acoustic consultant. He thought the permit conditions that prohibited live music and DJs, except with the consent of the responsible authority, would ensure that noise levels remain within acceptable limits.
7. I concur with the responsible authority the noise emissions from any plant and music would comply with the relevant SEPP N-1 and N-2 policies as required by conditions 12, 13 and 14. I will strengthen condition 14 to prohibit live music or music played by DJ's and similar except with the prior written consent of the responsible authority. I don't think these noise sources are problematic.
8. With regard to noise from patrons, Mr Burton says the noise from the people on the deck would exceed the noise from the patrons inside the train carriage and the background music. Hence the noise from the patrons on the two outdoor decks is the noise source most likely to cause amenity impacts on nearby residents and the commercial businesses.
9. Mr Burton estimates that 46 patrons on the rooftop decks outside the train carriage could generate in the order of 70dB(A). He says raised voices can generate in the order of 98dB(A), but only for very short periods, and there is little difference between those who are drinking alcoholic drinks and those who are not drinking. The serving of alcohol does not make a venue more noisy.
10. He estimates the noise level from 48 patrons on the decks would reduce to 37dB(A) outside the windows of the nearest dwellings on the north side of Keele Street. This would be within the SEPPN-1 limit, even though it does not apply to patron noise.
11. Mr Burton notes there are no Victorian statutes that control patron noise, particularly in a commercial zone. The test most commonly used to measure acceptable patron noise is sleep disturbance criteria measured at dwellings in residential areas. Sleep disturbance occurs when there is noise greater than 55dB(A) within a bedroom. As noise within a bedroom is usually 10dB(A) less than outside the window to the room, noise outside a bedroom window can be up to 65dB(A) and not disturb sleep.
12. Applying this test, he says that the patron noise from the outdoor decks would be less than 55dB(A) within a bedroom due to the distance between the outdoor deck and the residential properties. He accepted a proposition that a heavy glass screen could be erected on the deck to further lessen patron noise, although he thought this to be unnecessary.
13. He advised that modern offices are designed to have an internal noise level of 35dB(A). He says the distance and the brick walls of the medical recruitment building in Keele Street would diminish patron noise to approximately 37dB(A), which would be an acceptable level within an office. He also says that noise levels within the medical recruiting centre, being noise from computers and people on telephones and the like, would be likely to exceed the noise levels generated by the tavern and café.
14. With regard to Mr Rubin's art studio and warehouse, he thought they would be acceptable as it would be absorbed by the other two train carriages on the roof and by the walls of the two buildings. He noted there is no guidance regarding acceptable noise levels between commercial premises.
15. Under cross examination, Mr Burton conceded that his estimates of noise absorption by the train carriage were untested. He also conceded that people have very different tolerances of noise and sleep disturbance.
16. He was asked questions regarding differences between the editions of Australian Standard 1055 Acoustics - Description and Measurement of Environmental Noise. The difference refers to setting the acceptable noise level at 5dB(A) above the background noise level, an approach deleted from the later edition of the Standard. Mr Burton says he used the most conservative level in his assessment, and the predicted noise levels would comply.
17. While Mr Burton's estimates of noise levels within and through the steel train may be untested, I accept that his evidence is conservative, and I accept his evidence the deck and the tavern would be unlikely to generate noise levels that would disturb most residents in the dwellings in Keele Street. His evidence was not disputed by other expert advice, and it accords with acoustic advice generally accepted by the Tribunal.
18. I am also guided by policy that in my view says that residents who live adjacent to a commercial area and so enjoy very convenient proximity to the services and infrastructure of an inner city activity centre, should not also expect to enjoy residential amenity consistent with a residential suburb that is more removed from the commercial centre.
19. I am satisfied that the noise from serving patrons of the restaurant and the tavern with alcoholic drinks would be acceptable given the distance between the review site and closest dwellings.
20. I am not persuaded the noise from the uses would unduly disrupt the medical recruitment centre. Mr Burton says it is sufficiently far away for the noise levels to diminish to acceptable levels. The staff should be secure as the building has a high level of security, including secure car parking within the building. I think the impact on staff would be very limited.
21. I accept the art studio next door is likely to experience heightened noise levels. The studio and warehouse is a workplace in a commercial precinct. It is not in a secluded bush environment. I think the possible disruption of a sole artist who may work an unspecified or unknown number of times in the evenings does not justify preventing patrons of as of right uses in a commercial zone from partaking alcoholic drinks.
22. Notwithstanding Mr Burton's evidence, I am troubled by the direct line of sight between the roof deck and the dwellings and nearby businesses. I also note the train can have its windows open, and it is made of steel that is likely to have poor noise absorption qualities. I think it prudent to be cautious.
23. I accept the proposed condition from the responsible authority that a further report be prepared by an acoustic expert before the sale and consumption of liquor commences. It would review the estimates of noise likely to be generated from both premises and make recommendations to mitigate noise to reasonable levels. The report would be approved by Council and when approved, would form part of the permit.
24. I will also require a further acoustic report be completed three months after the commencement of the sale and consumption of liquor to ensure the tavern is not generating unacceptable noise and whether additional acoustic measures are required. These reports would ensure that all necessary acoustic measures are implemented. They will also provide a basis to monitor noise levels to ensure compliance with the permit, including the forecast noise levels set out in the report.
25. Notwithstanding my requirements for further acoustic reports, I have the benefit of two acoustic reports prepared by Mr Burton and his evidence at the Hearing. I consider that two acoustic measures should be implemented. Firstly a transparent acoustic barrier should be placed at the end of the northern deck to limit noise from that deck. Mr Burton recommended glazing of 6mm thickness to the height of the train carriages and I adopt his advice. I accept his advice was given in oral evidence and it may be appropriate to adjust the details of the acoustic screen subject to the further advice of an acoustic expert and to the satisfaction of the responsible authority.
26. Secondly, the windows of the train carriage/bar are openable. I consider the windows should be closed at 10.00pm every evening reflecting the change between the evening and night time periods as defined by the EPA. I expect the acoustic reports would carefully examine the seals around the windows and doors to ensure they provide effective noise mitigation.
27. With these measures in place, I am satisfied the noise from the tavern and restaurant will be acceptable.

1. Condition 3 limits the number of patrons who can attend the restaurant to 43 persons. Condition 4 limits the number of patrons of the tavern to 104 persons. These limits are consistent with the application lodged with Council. The number of patrons has been based on the capacity of each venue using an average of 0.75 square metre per person.
2. Condition 1(c) requires that seating be provided for at least 40 percent of the floor area of the tavern to prevent a vertical drinking culture.
3. I consider the venues are likely to be safe. These are relatively small venues. Both venues would provide seating, which reduces the likelihood of rapid vertical drinking and also limits patron numbers. Both will provide food.
4. I think it is likely that patrons would leave the venues over an extended time after liquor ceases to be served. This would tend to reduce the likelihood of crowding and jostling in Easey Street. People are likely to disperse quickly and in small groups. I think the short distance to Smith Street and Johnston Street and the absence of attractors in Easey Street would also encourage people to disperse quickly.

1. Mr Lewin says local residents have experienced anti social behaviour that includes loud voices, graffiti, vandalism and violence. They say the anti social behaviour is caused by patrons of venues similar to this proposal. They say the proposed restaurant and tavern will lead to more problems, adversely affecting the amenity of the residential area. Mr Lewin says the gazettal of Smith Street as a designated area and regular police patrols along Smith Street are evidence the area has behaviour and risk problems.
2. Mr Lewin also says the Noise and Amenity Action Plan (NAAP) submitted by the applicant is "aspirational and very general". While he has no criticism of its objectives, he says it lacks precision and it would be impotent when incidents occur.
3. I treat the assertions the area has a poor record of patron behaviour with some caution. No records were produced of complaints to Council's regulatory departments, the Liquor Licence Commission or Victoria Police. Residents assert they experience problems occasionally, but were imprecise as to their frequency and the types of incidents. It is also unclear as to whether the people they say cause problems are patrons of licensed venues in Smith Street or Johnston Street.
4. I do not want to be seen to be dismissing the real and understandable concerns of the responsible authority and the residents and businesses near the venue. I accept venues that serve liquor pose a risk that is to be taken seriously.
5. I am guided by the Tribunal's approach in Bambou Restaurant v Stonnington CC [9]. It sets out the likely risk of various venues and their contexts. Risk factors include operating hours, venue types, crowding and venue type and management. Applying the criteria set out in that decision, it is my view the two proposed venues generally fall into the low risk category because:
   • They would have small patron numbers relative to other venues.
   • They would cease serving liquor after 11.00pm on most nights and 1.00am on two nights.
   • They are not associated with gaming.
   • They would not serve liquor late at night, defined by Mr Linke as between 3.00am to 5.00am.
   • They would not be vertical drinking venues.
   • Food would be served with liquor.
   • They would not be proximate to other venues, reducing the risk of congestion around the entries and ongoing liquor consumption from one venue to another.
   • They are not proximate to packaged liquor outlets.
   • Patrons would be likely to disperse quickly in small groups.
   • Patrons would be likely to disperse to Smith Street and Johnston Street, and only a few people would be likely to walk along Keele Street.
6. While I accept the venues pose a risk, I find it is low and insufficient to justify the refusal of the application.
7. I accept Mr Lewin's submission regarding the imprecise content of the NAAP. I will require in the permit the following matters to be addressed, and I note Mr Scally did not resist an amended condition to require the NAAP to include:
   • Storage and collection of waste
   • Storage and collection of bottles
   • Patron use of the lift and toilets
   • Security lighting
   • Security surveillance measures such as CCTV in the right-of-way.

What operating hours are appropriate for the sale and consumption of liquor?

1. Condition 5 of the Notice of Decision provides that the serving of liquor in the tavern would cease at 10.00pm Monday to Thursday and 11.00pm on Friday to Sunday nights. As I have previously noted the premises could stay open at all times, but serve liquor for the allowable periods.
2. The permit applicant says conditions 5(d) and (e) should be amended to allow liquor to be served to 11.00pm Monday to Thursday and 1.00am (the following morning) on Friday and Saturday nights. He says the proposed later times would be consistent with the trading hours of other restaurants and taverns in the area. Mr Lewin says any permit granted should be consistent with the Notice of Decision.
3. Clause 22.09 provides some guidance as it provides that:

Licensed premises in a Business or Industrial Zone not trade beyond 1am, unless the responsible authority is satisfied that the use will not adversely affect the amenity of the area.

1. The policy encourages the permitted hours to refer to the surrounding land, the location of car parking areas, the nature of surrounding uses, potential noise and the impacts of patrons arriving and leaving the premises.
2. I give some weight to the support given by Council officers to the hours sought by applicant. The officers note the hours are modest in the context of the operating hours of restaurants and taverns in Smith Street, many of which operate to 1.00am, while several operate to 3.00am[10].
3. Clause 22.09 contemplates that licensed premises in business zones can operate to 1.00am. The various considerations set out in the clause regarding the possible impacts become relevant if premises seek approval to serve liquor after 1.00am. Hence policy contemplates it is reasonable that businesses in a Commercial 2 zone can serve liquor until 11.00pm and 1.00am because they are separated from more sensitive residential uses, particularly compared to similar businesses located in mixed use or residential zones where policy discourages their operations after 11.00pm.
4. Notwithstanding the support in policy for the later serving of liquor, I should consider the matters set out in the policy. I have commented on many of these above. In general it is my conclusion that the site is sufficiently separated from sensitive residential uses so that noise, pedestrian traffic, queuing and leaving are unlikely to cause an unacceptable loss of amenity.

Would the waiver of car parking spaces and a loading bay be acceptable?

1. A restaurant is required to provide 4 car parking spaces per 100 square metres of floor area, and a tavern is required to provide 0.4 space per patron. As this proposal would have 50 square metres of restaurant floor area and 104 patrons in the tavern, it should provide 43 car parking spaces. One car parking space is provided at the rear of the ground floor. I was informed that space is allocated to an office tenancy. Consequently no car parking spaces would be provided for the proposed uses.
2. The responsible authority, the applicant and Mr Linke say most patrons are likely to already be in the area and they will arrive and depart the venue on foot, bicycle or public transport. They say the provision of parking would attract further cars into an area with limited parking. That would be contrary to policy that supports a sustainable approach to transport, primarily by encouraging walking, cycling and public transport and less use of motor cars.
3. Requiring each venue to meet its own car parking requirements would be contrary to the centre wide approach usually taken in activity centres. A centre wide approach aims to manage the demand for car parking for the whole of the centre by providing sufficient spaces for short, medium and long stay drivers, and locating these spaces in the best places relative to the various precincts in the centre. A parking plan also encourages the use of walking, cycling and public transport.
4. A centre wide approach makes efficient use of available spaces throughout the centre, whereas the provision of parking dedicated to each premises is usually highly inefficient, as well as creating potentially unsightly and unsafe places. I note Council's traffic officers had no difficulty with the waiver of parking and I have no reasonable basis to set aside their opinion. I am satisfied the waiver of car parking is appropriate in this location.
5. It is also proposed to waive the requirement for the premises to provide a dedicated loading and unloading bay, pursuant to clause 52.07. With regard to clause 52.07, I am satisfied that an on-site loading bay related to the sale and consumption of liquor is unnecessary as:
   • These alcohol required for these premises would be likely to be delivered by small vans that can unload from the street or right-of-way.
   • Only a few deliveries would be made per day.
   • Each delivery would be likely to take less than 30 minutes.
   • I note that a loading bay is available in Easey Street, near Smith Street.
   • A loading bay would occupy a large part of the ground floor, but be rarely used and it would be a very inefficient use of the floor space.
6. I am satisfied a dedicated loading bay is not required for these uses.

Would the proposal contribute to unacceptable cumulative Impacts?

1. Clause 52.27 requires an assessment of the cumulative impact of any existing licensed premises and the proposed licensed premises on the amenity of the surrounding area. Guidance is provided by Planning Practice Note 61 Licensed Premises: Assessing Cumulative Impact (March 2011).
2. Possible cumulative impacts arise from a cluster of activities associated with the serving of alcohol within an area. There is not an immediate cluster in Easey Street as there are less than three licensed premises within 100 metres. There is a cluster of licensed premises within 500 metres as there are more than 15 licensed premises. I note that the more intensive entertainment area in Smith Street appears to be south of Wellington Street.
3. The presence of a cluster does not necessarily infer positive or negative judgements. The impacts can be negative (substance abuse, noise, aggression, property crime and violence) and positive (infrastructure can be provided, public transport, surveillance, enhanced vitality, employment). Whether there is a cumulative impact and whether additional serving of liquor is positive or negative arises from the particular context and the proposal.
4. The Practice Note sets out various matters to be examined, many of which repeat the above discussion. With regard to the matters in the Practice Note it is my view that the sale and consumption of liquor is:
   • Consistent with the policy context.
   • Would not significantly increase the number of patrons near sensitive uses, as they will mostly use Easey Street.
   • Would not generate unacceptable amenity impacts within the residential areas to the north.
   • Would add to the offer and mix of entertainment activities, provide services to local businesses and residents and provide employment.
   • Not likely to lead to patron dispersal problems due to its isolation and the absence of other venues nearby, particularly vertical drinking venues.
   • Capable of being made acceptable by mitigation measures to be provided such as the NAAP, surveillance and lighting and noise mitigation.
   • Unlikely to increase car parking congestion.
   • Unlikely to cause congestion because of a waiver of a loading bay.
5. Having considered the submissions and evidence in this matter, I find the proposed sale and consumption of liquor in the two premises is a relatively low risk. I am satisfied it would not generate an adverse or unacceptable cumulative impact for the Smith Street major activity centre or the residential area to the north and east.
6. I make this finding because of its somewhat isolated location, its proximity to Smith Street, its separation from Keele Street, and its limited patron numbers. I also think the food and drink offer, modest hours and likelihood that patrons will stay at each venue for some time contribute to the low risk. I am also cognisant that the premises can operate at all hours without a planning permit, and the discretion I have is in regard to the sale and consumption of liquor, and the waiver of car parking and a loading bay.

1. Conditions were discussed at the hearing and any changes to the conditions contained in the Notice of Decision reflect those discussions and have been the subject of careful consideration by the Tribunal.

1. For the reasons explained above, the decision of the responsible authority is varied. A permit is issued subject to conditions.

[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

[2] The reasons relied on the following decision**: _Messade v Baires Contracting Pty Lt_d** [2011] VSC 56

1. [4] Defined in clause 72 as that part of the net floor area able to be leased. It does not include public or common tenancy areas, such as malls, verandahs, or public conveniences.

[7] Clause 22.05 is not directly applicable as it relates to land within a Mixed Use and residential zones

[8] I give this application little weight. He has not responded to four requests for further information, and the outcome of his application is highly uncertain. A caretakers residence is also not expected to enjoy high levels of amenity, given it is ancillary to the commercial/industrial premises to which it is associated.

[9] (includes Summary) (Red Dot) [2010] VCAT 1758

[10] Yarra City Council - Internal Development Approvals Committee Minutes Wednesday 11 June 2014 Item 1.2