1. Having regard to the Responsible Authority's grounds of refusal and the provisions of the Whitehorse Planning Scheme (the scheme), there are three issues for determination in this Application:
   • Is the amendment consistent with planning policy?
   • Will the amendment result in unreasonable amenity impacts?
   • Will the amendment result in adverse traffic impacts?

Is the amendment consistent with planning policy?

1. The purpose of the R1Z includes to allow a limited range of non-residential uses to serve local community needs in appropriate locations. The Applicant's evidence relating to trade area for this store shows that a majority of customers recently surveyed live within a radius of a few kilometres of the store. The store is in an appropriate location and does serve local community needs.
2. The Kerrimuir activity centre is a neighbourhood activity centre. Existing policy seeks to reinforce its limited convenience retailing role. The proposed amendment does not affect the existing role of the centre.
3. The Responsible Authority's non-residential uses policy at cl 22.05 of the scheme emphasises that such uses are discouraged if they would cause amenity impacts. The policy needs to be applied having regard to the fact that the application to amend does not seek to introduce a non-residential use but to change the terms under which one currently operates.
4. When the use was approved in 1998, the Responsible Authority considered the site was 'highly accessible', generates traffic compatible with the function of the two abutting roads, was compatible with the function of the surrounding area, and was designed to minimise impact on residential amenity.
5. Clause 52.20 applies to convenience restaurants in residential zones. Decision guidelines are relevant to the application, but must be applied recognising that the use exists and the proposal is to amend the permit relating to the use. The guidelines emphasise the importance of designing a store to minimise significant loss of amenity.

Will the amendment result in unreasonable amenity impacts?

1. This is a key issue because the subject land is in the R1Z. There is no entertainment or liquor provided at the store. Accordingly, the potential impacts are noise, light, odour, car park use and general activity.
2. Since 24 hour weekend trading commenced in 2008, there have been no objections or complaints made to the Responsible Authority.
3. Having regard to the site context, the main issue is the eastern abuttal and the impact on the owner or occupier of the dwelling at 2 Springfield Road, and particularly the use of the nearby drive through facility. The owner or occupier of that dwelling did not object to the application to amend the permit. The dwelling (but not its garage) is set back 3 m from the common boundary.
4. The current permit addresses existing impacts. Odours are filtered. Patrols minimise litter. A 2.3 m acoustic fence and a mature landscaping strip adjoins the drive through, with the result that there is a separation distance of approximately 10 m from the customer order display (COD) unit and the dwelling (not its garage).
5. The acoustic evidence was that noise emissions from use of the drive through (ie from vehicles and voices using the COD unit) and mechanical equipment on the store roof and in the nearby plant corral complied with SEPP requirements for night time noise and non-statutory criteria for sleep disturbance. This evidence was based on a noise assessment conducted at around 11 pm on 26 February 2010.
6. At the hearing, the Applicant nevertheless stated it was prepared to construct a noise control barrier between the dwelling at 2 Springfield Road and the COD unit. The Applicant tendered a plan showing a proposed 9 m long extension to the existing COD unit canopy. The new canopy will use materials with sufficient massing to attenuate noise and to avoid reverberant noise. The acoustic engineer's evidence was that the barrier would reduce vehicle noise by up to 8 dB and would reduce voice noise by up to 10 dB.
7. The proposed barrier should be constructed because the noise standards may not be complied with at all times without the attenuation afforded by the barrier and because the dwelling at 2 Springfield Road is in a residential zone and improved measures to reduce amenity impacts are warranted.
8. There was no objection to amending the application for amendment to include the plan showing the additional barrier.
9. The amount and nature of traffic observed by Ms Hui and Mr Govenlock in the drive through late at night was confirmed by my own observations when I inspected the site after midnight. The volume of vehicles using the drive through after midnight is low - approximately 20 vehicles per hour soon after midnight and declining per hour after that.
10. Under condition 4 of the permit, a management plan has been prepared and approved to address a number of amenity issues. There has been compliance with that management plan and that has contributed to the absence of complaints since 24 hour trading at weekends commenced. I endorse this approach. The plan should be amended so that it adequately deals with the extended trading hours now being sought and with the proposed noise control barrier in the drive through.

Will the amendment result in adverse traffic impacts?

1. At the hearing, this was not a matter in issue. I am satisfied that the modest increase in traffic generated by the proposed extended hours can be comfortably accommodated by Middleborough Road and Springfield Road.

1. The amendment of the permit is granted.
2. The proposed noise control barrier is required. Condition 3 should not be deleted, as proposed in the application to amend. Condition 3 needs to be amended so that the noise control barrier is completed before the additional hours proposed to be specified in condition 3 start. Various other technical amendments of the permit should be made, including amendments requiring an amended management plan.