The Responsible Authority is directed to issue a modified permit in accordance with this Order under the provisions of Section 85(1)(e) of the Planning and Environment Act 1987.

Mr L. Townsend, Town Planner of Integrated Urban Management, appeared on behalf of the Applicant for Review.

Mr M. Gorman, Town Planner, appeared on behalf of the Responsible Authority.

1. This is an Application under Section 80 of the Planning and Environment Act 1987 ("The Act") brought by J. McConnell and R. Smith to review conditions in a permit which the City of Yarra ("The Council") has granted.

2. At the commencement of the hearing Mr Gorman advised that the Applicant for Review has sought a review of both conditions 1 and 5 of Permit which has been issued to "use the land for the purpose of a restaurant (with extended hours of operation) including sale and consumption of liquor". Condition 1 of the Permit requires submitted plans to be submitted showing the provision of two car parking spaces in accordance with plans endorsed under an earlier permit to use the site for a restaurant (no. 980200). Condition 5 limits the hours of use as a restaurant and in particular precludes any trading on a Sunday.

3. With respect to condition 1, Mr Gorman advised that the earlier permit no. 980200 had been issued by the Council to use the land for the purpose of a restaurant and as part of that permit two car parking spaces were required to be provided on site. These car parking spaces are shown on the plans endorsed under that permit. To Mr Gorman's knowledge these car parking spaces had never been provided, and the area required to be made available for two spaces is currently used as outdoor seating. Mr Gorman further advised that the current planning permit application was made only to amend the operating hours of the restaurant and no application was made to reduce or waive car parking requirements or to amend permit 980200. Mr Gorman further advised that the intent of imposing condition 1 on the permit which is the subject of this Application for Review, was in effect to achieve compliance with the earlier permit under which the restaurant use operates.

4. Mr Townsend who appeared for the Applicant for Review, advised that his client did not make application to waive the requirement to provide car parking because he was not aware that car parking was required under the original permit and only became aware of that requirement subsequent to the grant of the current permit.

5. The situation therefore is that the existing use of the site as a restaurant operates under a permit which requires the provision of two car parking spaces in accordance with the plans endorsed as part of that permit. The permit holder has an obligation to comply with that permit and its conditions and the Responsible Authority similarly has an obligation to enforce that permit.

6. I advised the parties that I was not prepared to amend the application for planning permit to waive the car parking requirement without further notification of the application. In any event this may be a matter which is more appropriately considered under an application under Section 87 of the Act to amend the original permit.

7. For reasons upon which I will elaborate subsequently in this decision, I have directed that condition 1 be deleted from permit 000794. The requirement to provide two car parking spaces on site under permit 980200 is not affected by this direction and must be provided in accordance with the conditions of that permit.

8. The review site is currently used as a small restaurant known as the New York Tomato and provides seating for 37 people. Its hours of operation were restricted by the earlier permit to which I have previously referred (980200) to 7.30 am to 6.00 pm Monday to Saturday.

9. The Applicant has applied to extend the trading hours to 10.00 pm on a Friday and Saturday and from 9.00 am to 4.00 pm on a Sunday. By virtue of the Council's decision to issue a permit in application no. 000794, the restaurant is now authorised to operate until 10.00 pm on Friday and Saturday but the permit continues to preclude trading on a Sunday.

10. The review site is located on the north eastern corner of New and York Streets, Richmond and forms part of a substantial, two storey building which was formally used by the Catholic Education Office until the mid 1990's. The building was subdivided into 27 lots in 1997 and subsequently redeveloped into office and residential uses in 1998.

11. I was advised that permit 980200 was issued to use the review site for the purpose of a restaurant in 1998 and that the hours of operation included as a condition on that permit were agreed to as part of negotiations with nearby resident objectors.

12. The site is part of a mixed use and commercial area that extends north to Victoria Street and west to Hoddle Street and which is bisected by the Epping Railway Line. This area comprises a mix of dwellings and commercial and office uses, many of which are located in renovated warehouses or in industrial buildings.

13. The review site is located on the edge of this mixed use area and to the east of it the land use is predominantly residential comprising terrace housing which is typical of this inner suburban location.

14. The review site is zoned Mixed Use pursuant to the Yarra Planning Scheme. The purpose of the Mixed Use zone is, in addition to implementing the state and Local Planning Policy Frameworks, to provide for a range of residential, commercial, industrial and other uses which complement the mixed use function of the locality.

15. A restaurant is a Section 2 Permit Required Use in the zone pursuant to Clause 32.04-1 of the Scheme. The existing use of the land as a restaurant is authorised under permit 980200.

16. A permit is required for the extension of trading hours pursuant to clause 52.27 of the scheme.

17. With respect to the State and Local Planning Policy Frameworks, both Mr Gorman and Mr Townsend provided me with detailed summaries of the relevant provisions of the planning scheme as part of their submissions. These submissions have been retained on file and I do not intend to repeat any of that material here.

18. I was advised that the Council has exhibited an amendment to the planning scheme (No. C10) and that this amendment makes provision for development up to six storeys in height on land to the west of the Epping Railway Line.

Council Consideration and the Application for Review

19. The application for planning permit was received by the Council on 27 June 2000 and following notification of the application two objections were received. Mr Gorman summarised the grounds of objection for me as follows:

* Excessive parking demand as a result of the extended hours; and

* Proposed extension of hours is inconsistent with the original terms of agreement of previous application.

20. The Council issued a Notice of Decision to Grant a Permit on 8 February 2001 and following the receipt of advice that no applications for review had been lodged against that decision a permit was issued on 16 March 2001.

21. An Application for Review of conditions 1 and 5 of the permit was subsequently commenced. Condition 1 reads as follows:

"Before the use starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority, when approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. Plans must be generally in accordance with the endorsed plans pursuant to permit 980200 and must include two on site car spaces located off York Street."

"The use hereby permitted must only operate between the hours of 7.30 am - 6.00 pm, Monday to Thursday, and 7.30 am - 10.00 pm Friday and Saturday, unless further consent is granted by the Responsible Authority."

23. The grounds of the Application for Review are as follows:

"Condition 1 should be amended to remove the requirement that parking space be shown on the plan.

The provision of car parking spaces will adversely affect the viability and functionality of the cafe operation.

The spaces are not required having regard to the likely pattern of use of the cafe availability of parking in the surrounding area.

The spaces will not make a material difference to parking provision in the area.

The hours of operation under condition 5 should permit Sunday trading from 9.00 am to 4 .00 pm.

There are no significant negative amenity or planning impacts that flow from permitting Sunday trading.

Provision of Sunday trading would be a positive feature for the amenity and vitality of the area and would provide an appropriate local service given the location and nature of the surrounding development."

24. At the hearing both parties tabled and read from written submissions.

25. Following the completion of the hearing I inspected the site unaccompanied by the parties.

26. With respect to the imposition of condition 1 requiring the provisions of two car parking spaces on site, it was Mr Gorman's submission that the failure of the restaurant operator to provide this car parking has contributed to an incremental decline in the amenity of surrounding residential areas resulting from the increased demand for on street parking in nearby residential streets. Mr Townsend however submitted that based on his observations there is ample on street capacity in the immediate area during the day, in the evenings and on Sunday and that given the small size of the existing restaurant and the limited nature of the proposed extended hours, the requirement to provide on site car parking as part of the proposal to extend the trading hours of the restaurant is unreasonable. Mr Townsend further submitted that the mixed use nature of the area increases opportunities for the sharing of car parking particularly after normal business hours and on weekends.

27. In my view the increased hours of trade either as approved by the Council or as sought by the Applicant is not sufficient to justify a condition requiring the provision of additional car parking on site over and above that to be provided for the existing use. I am influenced in my view on this matter by the availability of on street car parking in the vicinity of the review site, including opportunities for the sharing of car parking after normal business hours and on weekends within the Mixed Use area.

28. Having regard to the above I have concluded that there is an insufficient nexus between the purpose being sought in the application (extended trading hours) and the requirement to provide two car parking spaces on site. I have therefore directed that condition 1 be removed from the permit. This will also necessitate the removal of condition 13.

29. It is necessary to emphasise that my decision in this respect relates only to the extended hours of operation which is the subject of permit 000794. The effect of my decision is, as I have previously outlined, not concerned with determining whether or not car parking ought to be provided on site in relation to the use of the land for a restaurant as authorised under permit 980200. These spaces must still be provided in accordance with that permit and the fact that they have not been provided previously is a matter for the Council to pursue with the permit holder and if necessary, to take appropriate enforcement action. Alternatively the Applicant could seek to have the requirement to provide car parking under permit 980200 removed by the various means available under the Act.

30. With respect to condition 5 of permit 000794 the dispute in this matter revolves around whether Sunday trading between 9.00 am and 4.00 pm will contribute to an unreasonable adverse impact on the amenity of the area. It was Mr Gorman's submission that to allow Sunday trading would contribute to the process of incremental intensification of the use of the review site to a degree which is unacceptable having regard to its location adjacent to a residential area. In this respect Mr Gorman outlined the changes in the use of the site subsequent to its pre 1998 use to the present situation where it now operates as a restaurant until 10.00 pm on Friday and Saturday nights. It was Mr Gorman's submissions that to allow Sunday trading would be to deviate substantially from the operating hours negotiated with nearby residents in 1998.

31. Mr Townsend on the other hand described the proposed Sunday trading as one which was consistent with inner city lifestyles and the increase in popularity of Sunday morning breakfast, brunch and lunch outings. Given the location of the site and the modest scale of the use, it was Mr Townsend's submission that the restaurant would be likely to cater to a localised customer base and that it would contribute to the vitality of this locality. Mr Townsend said:

"The very nature of the New York Tomato is low key, and Sunday breakfast or lunch is not likely to have any more off site affects than the other days of the week, or Friday or Saturday evening. The only conceivable off site affects are from parking demand in the area.

The New York Tomato is part of a mixed use area with a number of offices and commercial operations. These are closed on Sundays.

It is recognised that the inner area is quieter on a Sunday and that for residents this can be seen as a relief from the more hectic pace of the rest of the week. But there is nothing about the proposed operation that would adversely affect the calm of the local area. In fact it would provide a local venue, and this can be seen as a positive contribution to the residential amenity of the area. In an area of small backyards or balconies the opportunity to sit in a north facing courtyard is a plus for the area."

32. I agree with Mr Townsend's submission and in my view the nature of the use, the modest scale and low intensity of that use is unlikely to contribute to any off site amenity impacts which could be regarded as unreasonable. My view in this respect is reinforced by the fact that the existing use has operated for some three years without any apparent disturbance to the local community. I note that Mr Gorman submitted that this was not the case but he was unable to refer me to any history of complaints which would persuade me that the use is one which is, or has been, disruptive to the adjacent residential area.

33. I have not sought to cover here all the matters that were raised during the hearing however there are no other matters of sufficient importance which would persuade me that the conditions ought to be retained on the permit.

34. It follows from the above that the Application for Review is allowed and it is directed that permit no. 000794 be modified in accordance with the attached Order.