1. Pursuant to Section 127 and Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the application is amended to request 24 hour trading for Saturday and Sunday nights only.
2. The decision of the responsible authority is affirmed . A permit is not granted.

Mr Chris Townshend, barrister, briefed by Messrs Rigby Cooke, lawyers.

Mr Townshend called the following expert witnesses.

Mr Christophe Delaire, acoustic consultant, Marshal Day Acoustics Pty Ltd

Mr Simon Davies, traffic and transport planner, GTA consultants

Mr S.D. Thorn, lighting consultant, was not required to give evidence for the reasons given below.

Mr Campbell attended the hearing briefly but left on assurance that his submissions would be considered.

Extension of trading hours of an existing McDonald's convenience restaurant to allow 24 hour trading on Friday and Saturday nights.

Application under Section 77 of the Planning and Environment Act 1987.

Special Building Overlay (part) not relevant to the matter in hand.

Clause 32.01-1 permit required to use land for a convenience restaurant.

Clause 32.01-6 permit required for buildings and works in association with a Section 2 use

Clause 33.03-1 permit required for an innominate use.

Clause 33.03-4 permit required for buildings and works.

Clause 52.20 Matters for consideration in relation to applications for convenience restaurants. Applies only in the Residential 1 Zone.

Clause 52.29 access to main road (no alterations are made in this case).

Clauses 11, 12, 13.04, 15.01, 16.00, 17.01, 21.04, 21.05-1, 21.05-2, 21.05-3, 21.05-8, 22.01, 22.02, 22.03, 52.20, 52.29 and 65.

The subject site is located on north-east corner of Pascoe Vale Road and Devon Road. Site dimensions are 112m x 27m with a total area of some 3931 sq.m.

The restaurant occupies an area towards the Devon Road end of the site with the main car park on the Pascoe Vale Road side of the site and the drive-through facility located at the rear of the site adjoining the Residential 1 Zone to the east. Access is available from two double crossovers one on the north-west corner of the site from Pascoe Vale Road and the other from Devon Road.

Detailed plans of the site are contained on the Tribunal file

I made an unaccompanied inspection on Sunday 22 August between 11.30pm - 12.15am. I then inspected McDonald's restaurants at Bell Street/Sussex St, Bell St/St Georges Road, Bell Street/Francis Street, Doncaster Road/Blackburn Road between 12.15 and 2.00am. I made a subsequent visit to the site on Saturday 8th September between 11.30pm and 12.30am with visits to the Bell Street sites identified above, Box Hill North and Burwood between 12.30am and 2.00 am.

McDonalds Australia v Darebin CC [2007] VCAT 2161 (12 November 2007)

McDonald's V Glen Eira CC [2009] VCAT 1907 (15 September 2009)

McDonalds Australia v Knox CC [2011] VCAT 142 (7 February 2011)

McDonald's Australia v Whitehorse CC[2010] VCAT 681 ( 16 April 2010

McDonald's Australia v Greater Bendigo SC [2012] VCAT 610 ( 10 May 2012).

1. This is an application by the permit applicant to review the decision of Moreland City Council to refuse a permit for the extension of trading hours of the existing McDonald's restaurant on the subject site.
2. Council's grounds of refusal stated that 24 hour trading was excessive and would give rise to unacceptable amenity impacts contrary to the objectives of the Residential 1 Zone, the Industrial 3 Zone, Clause 13.04 (Noise abatement), Clause 52.20 ( Convenience Restaurants and Take-away Food Premises) and Clause 65 (General Guidelines), of the Moreland Planning Scheme.
3. The existing permit provides that

Except with the permission of the Responsible Authority the permitted use must only operate during the following hours:

(a) 6.00am to 1.00am the following day on Fridays and Saturdays

1. The original application to Council sought to amend the permit to allow 24 hour trading on all seven days of the week. At the hearing Mr Townshend made application to amend the application so that permission was sought for 24 hour trading only on Friday and Saturday nights.
2. There were no objection to the application and I made orders accordingly.
3. The thrust of Mr Thorn's evidence was that the intersection of Pascoe Vale Road and Devon Road was a brightly lit traffic light controlled intersection and any lighting from McDonald's premises was effectively subservient to that lighting and would therefore have no significant impact on the surrounding properties. His evidence was not contested by any other parties and is consistent with my observations from my earlier site inspection. As a result he was not required to be available for cross examination.

1. While the current restaurant has been operating on this site for some 20 years consideration of any extension of the level of activity on the site must give due consideration to the specific site characteristics and the strategic policy context of the site. Any decision must seek to balance any conflicting policies in achieving net community benefit and sustainable development in accordance with Clause 10.4 of the State Planning Policy framework.
2. I must decide whether a permit should be granted and, if so, what conditions should be applied. I consider that the key issues to be addressed are:
   • Does the proposal enjoy policy support?
   • Will the proposal result in any unacceptable amenity impacts?
3. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Moreland Planning Scheme, having reviewed the Tribunal cases presented to me at the hearing and having visited the subject site and a number of other McDonald's restaurants, I have decided to affirm the decision of the Responsible Authority that no permit should issue. My reasons follow.

1. The State Planning Policy Framework provides that Responsible Authorities should
   • Locate commercial facilities in existing or planned activity centres.
   • Ensure that proposals or expansion of single use retail, commercial and recreational facilities outside activity centres are discouraged by giving preference to locations in or on the border of an activity centre.
   • Ensure that out-of-centre proposals are only considered where the proposed use or development is of net benefit to the community in the region served by the proposal.
2. The existing site is neither within nor on the fringe of any activity centre. It is an isolated commercial site within a wide and very homogeneous residential area. The only activity centre of any size in the neighbourhood is the Oak Park Centre is approximately1 km from the subject site and effectively separated from the site by the railway line. On Pascoe Vale Road, there is no commercial activity of any scale between Gaffney Street some 1km the south and Glenroy Activity Centre about 1.5km to the north.
3. Mr Davies's evidence was that, while surveys have established in overall terms that approximately 35% of McDonald's restaurant trade would be from drive-through patrons, the situation is quite different for overnight trade.

Given that the overnight convenience restaurant trade generally comprises passing traffic associated with people on their way home (as opposed to families making a specific trip to McDonald's) it is reasonable to assume that the percentage of passing trade during the overnight period would be significantly higher than 35%.

1. His surveys in November 2010 and July 2012 both show over 60% of vehicle arrivals used the drive-through facility in the period 10.00pm - 1.00am.
2. Mr Barlow in his evidence sought to rely on the site analysis carried out by Council in the Moreland Industrial Land Use Strategy[2] which identified the subject site as in an area of Multi-Use Employment where:

...priority is for the continued viable operation of existing industry and new industry and other employment generating commercial uses. Amenity expectations for residential or other sensitive uses within or adjacent to these areas must accommodate commercial and industrial use and development. Residential amenity levels consistent with residential zoning should not be expected.

the site has a number of attributes which confirmed its appropriateness for 24 hour trading, namely,

• direct access from a primary arterial road
• access to public transport from Oakpark station some 300mm to the north
• separation from non-industrial uses across primary arterial and collector roads.

1. Given Mr Davies's evidence that over 60% of patrons will use the drive through facility at night and Metro trains cease to operate during the night, I find the link with public transport somewhat tenuous.
2. Moreover, Mr Barlow acknowledged that the subject site cannot be considered as vacant and that a key component of the above Industrial Strategy sought to deal particularly with underutilised industrial land where opportunities might exist to intensity use for offices or other more modern industrial activities. He acknowledged that McDonalds had been operating at the site for some 20 years, the site could not be considered as underutilised and, to his knowledge, McDonalds had not attempted to change or intensify the use for offices or the like at any time.
3. By contrast Mr Milner argued that despite the 'bakery site' next door being a vacant industrial site, Council had clearly recognised its potential for residential development by classifying it as 'Transitional Residential' under the same Industrial Strategy. The Strategy envisages that this category would apply

...in situations where the existing industrial zone is poorly located for continuing industrial use or for the conversion to other non-industrial uses. Generally these areas will be isolated industrial sites or small clusters in essentially residential areas.

To identify areas where, because of the surrounding land use pattern and/or access arrangements, it is appropriate that the area convert over time to residential use.

1. Mr Connor further submitted that Council's policy on Industry and Commerce (Clause 21.05-2) specifically envisages the application of he Industrial 3 zone

...where there is an identified problematic interface between Industrial and Residential areas in Industry and Employment Areas Multi-Use Employment Areas on the Industry and Employment Framework Plan.

1. I find it relevant that Council, taking the Industrial Strategy into account, prepared Amendment C38 which rezoned the 'bakery site' site to Residential 1 Zone. The explanatory statement of Amendment C38 promotes the amendment as assisting in the implementation of the Local Planning policy Framework by managing

...the location and design of increased residential development to achieve environmental sustainability, ensure new development has high quality amenity and makes a positive contribution to the preferred future character of he neighbourhood.

Subsequently, A planning permit was issued for residential development at the direction of the Tribunal. The permit has since been amended by the Tribunal to permit some 107 apartments.

1. Mr Milner submitted that there was nothing in land use strategy terms which supported 24 hour commercial activity on this site, current action clearly demonstrated that council saw the future development of this area as having a strong focus on residential development and, consequently, any further intensification of the existing use would be quite inconsistent with that policy thrust as well as the overall activity centre policy.
2. While, at the time of the hearing construction had not commenced on the approved apartment building to the east, I find Mr Milner's argument more persuasive and conclude that the long term strategic direction for the area in general is one in which residential development will be given priority and where that the commencement of a new 24 hour commercial activity is not encouraged.

1. At the hearing a wide range of Tribunal cases involving McDonald's convenience restaurants was referred to by all parties. These cases involved applications for new restaurants as well as those for extensions to trading hours. These included decisions at Malvern East, Ormond, Knoxfield, Whitehills/Bendigo and Kingsbury. Parties sought to highlight specific aspects of cases as matters for my consideration. I also inspected a number of sites as identified in the Information section above.
2. It is inappropriate to migrate solutions from one site to the next as each has its own characteristics and context and it has been the Tribunal's consistent approach to balance policy context and site characteristics in making decisions.
3. Mr Townshend specifically drew my attention to a decision in Blackburn North[3], where 24 hour trading had been permitted, as being of particular relevance. On inspection I note that this restaurant is located at the corner of Middleborough Road and Springfield Road within a group of commercial activities and the opening sentence of the Tribunal's assessment of that site context pointed out that

The subject land is part of the Kerrimiur Neighbourhood Activity Centre. The centre is anchored by 13 specialist shops...

1. It was the only one of the cases cited where the Tribunal permitted 24 hour trading.
2. I also note that, with one exception, the remaining sites cited above are located in or adjoining activity centres of varying size. The Kingsbury McDonald's, although located on Plenty Road, lies within a large residential area, albeit adjacent to a small local centre. It is the facility which most closely resembles the Oakpark site and in that case the Tribunal refused to issue a permit because of concerns about potential disturbance to residential amenity.
3. In the Whitehills/Bendigo case the Tribunal while acknowledging that the application had many positive features, including landscaping, acoustic fencing, lighting which could be baffled, and that Council had supported the original application for 24 hour trading, took the view that

I consider it important that some respite from the activity is provided.

1. As indicated earlier, the Oak Park site is quite different to both the cases cited and the sites which I visited. It is an isolated commercial site with, currently, limited commercial operation, within a wide and relatively homogenous residential area. It adjoins a main road and a high proportion of its customers in the late hours use the drive-through facility.
2. The subject site is a long narrow site located at the corner of Pascoe Vale Road and Devon Road, Oakpark. Immediately adjoining the site to the north is a school. To the east, between the McDonald's restaurant and the railway, is the 'bakery site' for which, as I have outlined above, a permit was issued and subsequently amended at the direction of the Tribunal. The permit allows the construction of 107 dwellings on the site in a mixture of townhouses and apartments. Construction has not commenced although the original bakery building on the site has been demolished and a safety fence erected around the site.
3. It is notable that this section Pascoe Vale Road passes through an area which is predominantly residential. Development is predominantly single dwellings on a range of allotments with only a sprinkling of medium density development. There are no other commercial premises on that road within 1km of the McDonalds restaurant in both directions. A small local activity centre is located on the eastern side of the railway at the intersection of Waterloo Road and Snell Grove.
4. Mr Delaire suggested that the amenity of residents on the west side of Pascoe Vale Road was already reduced due to the levels of traffic on that road. Pascoe Vale Road is normally a very busy arterial route during daylight hours but the recent introduction of an overnight curfew on truck traffic has created a significantly quieter residential environment overnight. On both my site visits, patronage of the restaurant was very low, there was only limited drive-through traffic and traffic on Pascoe Vale Road was very light. There were intervals when there were no vehicles in sight and the overall residential environment was very quiet and undisturbed. This is a situation where residents' existing amenity is not reduced by the presence of existing adjacent commercial activity and where, through the introduction of the truck curfew, expectations of an undisturbed overnight residential amenity have been reinforced
5. Mr Davies's evidence was that if overnight trading was permitted the usual pattern would change in that increased patronage would occur in what would have been the last hour of trading. He also affirmed that, in his view, over 60% of overnight customers would use the -drive-through facilities. I note that in the survey of Friday 26 November 2010, some 79% of trade in the 12.00am - 1.00am period consisted of drive-through patrons.
6. Other McDonald's restaurants which I visited between the hours of 12.30am and 2.00am displayed varying levels of activity. The McDonald's at the corner of Bell Street and St Georges Road is recognised as an area of high activity and is not comparable to Oak Park. There were some 12 cars in the site on the corner of Bell Street and Sussex Street with a number of cars in the carpark occupied by people talking and consuming food and where, in some cars, radios could be heard. A similar level of activity was present at site on the corner of Blackburn and Doncaster Road while a small party was in progress in the McDonald's on the Corner of Bell Street/Francis Street.
7. I accept Mr Delaire's evidence that the existing mechanical plant noise did not comply with SEPP-N1 as far as the bakery site was concerned, but that this could be rectified by permit condition. I also note that with the exception of a 'worse case' for sleep disturbance criteria, acoustic standards are also met. The plans for the proposed development tabled by Mr Barlow shoe a five storey apartment building which will directly overlook the McDonald's site together with two-storey town houses at the north and south ends of the development separated by a landscaped strip of approximately 4 metres. Like Member Hewet[4], I am not convinced at that a 3 metre high acoustic fence represents an appropriate interface with a major residential development
8. It's not simply noise that is relevant. It is generally recognised that a range of behaviours by patrons can cause nuisance including, cars moving into, across and out of the site, people in cars eating and/or talking, car music, lighting etc. In this context I note Mr Campbell's submissions which indicate that the nearby OakPark Reserve is frequently visited in the late evening by cars with people who eat, drink, listen to music and leave litter. While he acknowledges that he cannot directly link any particular vehicle as coming from McDonalds he does observe that most of the litter consists of McDonald's wrappers.
9. I visited the Oakpark Reserve at approximately midnight on Saturday 8th September. It was a fairly chilly evening and while no cars were present I did pick up two pieces of litter with McDonalds brand.
10. Mr Connor emphasised the objectives of Clause 22.01 Discretionary Uses in Residential areas which seeks to protect residential areas from noise, light, odours, disturbance associated with hours of operation and any potential safety risks
11. In this case the area became very quiet after midnight and I was not presented with any evidence which suggested that there would be a significant community benefit in allowing the restaurant to trade later than its current hours with the possibility for the existing residential amenity to be disturbed. This is reinforced by Mr Davies's evidence that more than 60% of customers overnight could be expected to use the drive-through facilities.
12. The ability to show compliance with technical amenity standards does lend weight to the applicant's case in this matter, but ultimately the assessment of amenity impacts will inevitably involve a degree of subjective judgement to determine whether a proposal is acceptable. I find that the extension of trading into the overnight hours is not acceptable in an area whose existing characteristic is overwhelmingly residential, a characteristic which council are reinforcing by its approval of the redevelopment of the 'bakery site'.

1. I have concluded, therefore, that there is a strong policy imperative which specifically

discourages the expansion of single use retail, commercial and recreational facilities outside activity centres

1. The site is in a residential area where further residential development is contemplated and where other measures have been put in place to improve residential amenity. Despite the ability of some modifications to the plans which would reduce noise impacts I have not found any evidence of benefit to the local community which would suggest to me that the overnight amenity of that community should be compromised.
2. I will affirm the decision of the Responsible Authority.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Moreland Industrial Land Use Strategy. Moreland CC. August 2004

[3] McDonald's Australia v Whitehorse CC [2010] VCAT 681 ( 16 April 2010)

[4] McDonalds Australia v Knox CC [2011] VCAT 142 (7 February 2011)