Application under S.77 of the Planning and Environment Act 1987 (PE Act) for review of a decision to refuse to grant a permit.

Request under S.87 of the PE Act for amendment of a permit.

Application under S. 149A PE Act for a declaration.

Café and take-away food premises with access to a main road and reduced requirement in relation to car parking and loading bay.

An "L" shaped piece of land on the north-western corner of the intersection of Bell Street with Sussex Street having frontages of 60.350m to the north side of Bell Street and 35.218m to the west side site of Sussex Street and an area of 2979m2.

Residential "C" Zone fronting a main road reservation under the Moreland Planning Scheme.

"1. The proposal will have an adverse affect on the amenity of the area, particularly the abutting residential properties in Sussex Street and Greenwood Street.

2. The proposal is not in keeping with the orderly and proper planning of the area.

3. The proposal is contrary to the determination of the Administrative Appeals Tribunal in Appeal 1997/78564, to require a trial period of the drive-through so that its affect could be more accurately be determined.

4. The proposed slip-lane will cause an unacceptable danger to pedestrians and cyclists.

5. The proposed development creates an unsafe space between the fence and the enclosed drive-through, for which no adequate surveillance is proposed."

"6. The proposal adversely affects a heritage building which ought to be retained, is recognised in the Moreland Heritage Study Review and is the subject of proposed Amendment L61.

7. The proposal will have an unacceptable noise effect especially from the drive-through tunnel enclosure and especially after 9pm.

8. The proposal will lead to unacceptable traffic consequences."

"1. The proposal will not have an adverse effect on the amenity of the area or on the abutting residential properties in Sussex Street and Greenwood Street.

2. The proposal is in keeping with the orderly and proper planning of the area.

3. The proposal is not contrary to the determination of the Administrative Appeals Tribunal ("Tribunal") in Appeal No. 1997/78564.

4. The proposal responds to the Tribunal's comments concerning the unenclosed drive thru facility and separate acoustic fence (the design approved by permit no. MPS 1997/0444) by redesigning the drive thru facility to provide for an enclosed drive thru facility lane with acoustically designed walls and roof.

5. The proposal eliminates the acoustic issue raised by the Tribunal as well as any perceived problem.

6. The proposal eliminates the need for any trial period as required by the Tribunal for the previous open drive thru lane.

7. The proposal will result in a visual enhancement, in addition to the acoustic improvement.

8. The proposed slip-lane is in accordance with proper traffic management principles and practice and does not constitute a danger or any unacceptable danger to pedestrians and cyclists.

9. The proposed development does not create an unsafe space between the fence and the enclosed drive thru facility.

10. The proposed use and development is in accordance with all relevant provisions of the Moreland Planning Scheme and the objectives for planning in Victoria.

11. Having regard to all relevant planning principles, the provisions of the Moreland Planning Scheme, the nature of the proposed use and development and the location of the site the use and development applied for should not have been refused."

Mr Christopher Wren, barrister appeared with Mr G Testro, solicitor on behalf of the Responsible Authority on the 6 and 7 April 1999. Thereafter Mr Testro appeared for the Responsible Authority.

They presented written and oral submissions. In fact there were four separate written submissions, one in relation to the case generally, the second one presented on the 5 May 1999 in relation to heritage matters and two further written submissions in relation to the application for a declaration and review of the Responsible Authority's decision to refuse to extend time under an existing permit. (This later case, application for review No. 1999/38128 has already been determined). Mr Henry Hume Turnbull, Traffic Engineer was called on behalf of the Responsible Authority and presented a written report in addition to oral evidence.

Mr M Wright QC and Mr Chirs Townsend, barristers, appeared on the instructions of the firm of Messrs Rigby Cooke, solicitors for McDonald's Properties (Australia) Pty Ltd (McDoanlds). They presented written and oral submissions including written submissions as to the case and three other specific written submissions, one in relation to the heritage issues (subject of the hearing on the 5 May 1999) and one each in relation to the application for declaration under s. 149A PE Act and the already determined review under s. 81(a) PE Act. They also called the following expert witnesses who gave oral evidence and presented written reports namely:-

(iii) George Francis Davis, Consulting Engineer, and

Various Respondent/Objectors appeared and made written and oral submissions. Not all of them were present throughout the whole hearing. They were:-

Ms Valerie O'Donnell and Mr Terence O'Donnell (who presented two written submissions);

Mrs D Laker (whose written submission was subsequently presented by Ms Leanne Kupiec because of Mrs Laker's absence due to illness);

Mr Les Blizzard (whose written submission was presented by Ms M Moore);

Ms M Easton who also presented a written submission for Mr Harris;

Mr Joe Ficaru (who submitted two written submissions in relation to the question of noise and in relation to the proposed enclosed drive through;

Ms Leanne Kupiec who presented a written submission on her own behalf, one on behalf of Mrs Laker,another on behalf of Mr B O'Hare and a fourth on behalf of A I O'Hare. She also showed a video tape.

Written submissions were also received from John Crewther, Marria Pilot,

C Windsor, Pauline Najjar, Leanne Averil-Hutton and Helen Stewart.

Various plans, photographs and other documents were tendered as attachments to written submissions or as separate items. The evidence in documentary form, together with the written submissions have been retained on the file of the Tribunal.

OUTLINE OF AMENDMENTS TO PROCEEDINGS AND THEIR DISPOSAL TO DATE.

For the first two days of hearing the only proceedings before us were application for review No. 1998/81001 and request No. 1998/69627.

At the commencement of proceedings on the first day Mr Wright sought to amend permit application MPS 98/0512. This is the planning permit application which was refused by the Responsible Authority and which has subsequently given rise to the application for review No. 1998/81001 wherein McDonalds seeks a review of that refusal. The application for amendment to the permit application was to substitute plans marked as exhibit "M1" for the application plans originally lodged with that application. The "M1" plans had been circulated under cover of a letter from Rigby Cooke, solicitors dated the 10 March 1999. The amendment was granted.

This application for review, 1998/81001 is the principal subject of this present document.

Request 1998/69627 seeks amendment to an existing permit in relation to the land. The amendment is sought under s. 87 PE Act. This amendment is sought on the ground in s.87(1)(d) PE Act namely a material change in circumstances since the grant of the permit. There was an issue, contested on the first two days, as to whether there was a material change in circumstances of a relevant sort that could found such a request. At the end of the hearing on the second day, when the request and application for review 1998/81001 were being adjourned part-heard to the 31 May 1999, a request was made for a ruling in relation to whether a valid ground under s.87(1) had been established. Argument was heard on this point and the question was reserved. Subsequently on the 21 day of April 1999 a ruling was given together with reasons. The ruling was that the ground sought to be relied upon was not established. However, no determination on request 1998/69627 was, or has yet been made.

During the hearing on the 31 May to 3 June 1999 Mr Wright, on behalf of McDonalds, sought certain amendments to that request. No ruling has yet been made on whether such amendment will be granted and the request has been adjourned to a date to be fixed. It may well be, having regard to other decisions that have now been made, that these request proceedings will not be revived.

On the 5 May 1999 there was an interim hearing in relation to a further ruling originally sought on the 7 April 1999. This was a ruling as to whether "the heritage issue" raised by the Responsible Authority in its additional grounds of refusal is a relevant matter in relation to Application for Review 1998/81001. It was convenient that a ruling should be given on this point prior to the resumption of the merits hearing in relation to that application for review fixed for the 31 May 1999. The "heritage issue" centred whether the proposal in its current form should be refused in the interests of conserving a partly demolished house at 1 Sussex Street, Coburg. Number 1 Sussex Street is part of the review site. A written ruling and reasons was given in relation this matter. The document is dated 12 May 1999.

There is an existing permit MPS 1997/0444 allowing this proposal in relation to the land. It contains a condition (condition 19) providing for the expiry of the permit if the buildings and works were not commenced within 12 months of the date of the permit or completed within 24 months thereof or if the use is commenced within 24 months of the date of the permit. After the hearing on the 6 and 7 April 1999 McDonalds applied to the Responsible Authority for an extension of those periods. The Responsible Authority has power under the Act and pursuant to the condition to extend those times. The Responsible Authority refused the extension. McDonalds then applied to this Tribunal under s. 81(a) PE Act for a review, of that decision. This new proceeding, application No.1999/38128, was listed for hearing, together with the existing proceedings, when the hearing recommenced on the 31 May 1999. Argument in relation to the extension matter was concluded on Wednesday the 2 June 1999 when we announced our decision in relation to it and gave oral reasons. A written determination has since been given in relation to the matter.

A fourth proceeding was also commenced between the hearing on the 7 April 1999 and the resumption on 31 May 1999. It was before us when the hearing resumed on that day. This fourth matter was an application for a declaration. It has also been adjourned to a date to be fixed. Like the request under s.87, it is likely that it will not be revived, having regard to other decisions that have been made.

We have now given three documents in relation to these cases containing rulings or determinations with reasons namely that on the 21 April 1999 in relation to the ground of material change of (circumstances the issue of a permit relevant to Request 1998/69627), the ruling as to the relevance of the "heritage issue" in relation to Application for Review 1998/81001 of 5 May 1999 and our determination of Application for Review No. 1999/38128 under s.81(a) PE Act dated 16 June 1999.

1. This case concerns a proposal by McDonalds to establish a café and take-away food premises on the land on the north-western corner of the intersection of Sussex Street with Bell Street in Coburg. The planning permissions required for the proposal are permission to use the land for those purposes (which permission is required by the zone controls under the Planning Scheme), permission for access to a main road namely Bell Street (required by Clause 17 of the Planning Scheme), permission for a reduced number of on site car parking spaces as compared with the standard requirement that would otherwise be necessary (Clause 19 of the Planning Scheme) and a reduction in relation to the requirement for a loading bay (Clause 23 of the Planning Scheme).

2. McDonalds already holds planning permit MPS 1997/0777 granting it these necessary permissions. That permit was granted by the Administrative Appeals Tribunal in its determination of Planning Appeal 1997/78564. The AAT on that occasion also granted permits for certain signs. It was constituted by members other than ourselves. The members announced their decision on the last day of the hearing and gave oral reasons. Their written determination was given on the 27 March 1998. In addition to the determination itself, the document contained remarks including a summary of the reasons for its decision. The relevant appeal was made by McDonalds against a refusal of the Responsible Authority to grant the permit it had sought.

3. The permit granted contained 23 conditions. It was really condition 17 which has given rise to the proceedings before us. It read:-

"Except with the written consent of the Responsible Authority the permitted use must only operate during the following hours:-

6.00 am to 1.00 am the following day, Fridays and Saturdays.

The drive through facility forming part of the permitted use must not be open to the public after 9.00 pm on any day except for a period of three months from the date on which the permitted use commences operation. During this three-month period the drive through facility can be used at any time the permitted use is lawfully operating."

4. The remarks of the Tribunal in its determination document make it clear that the three month period is intended as a trial period. A unusual feature of the trial is that it makes no provision for McDonalds to carry on operating its drive through facility after 9.00 pm in the event of successfully demonstrating, in the course of such a trial, that it will not cause adverse effects.

5. McDonalds initially thought that it was an error that condition 17 should have set up such an arrangement which would require it to obtain a new permit for the use if it wanted to operate after 9.00 pm beyond the three month trial period, although it would have necessarily committed itself to a substantial investment at that stage. It was surprised to have such an arrangement imposed upon it where, it claims, the matter was not discussed during the hearing and it had no opportunity to make submissions.

6. It has emerged that the scheme of condition 17 was not a slip or error by the Tribunal, but quite deliberate. The members intended the result that McDonalds would have to apply for a new permit if it was successful with the three month trial and thereafter wanted to have the drive-through remain open after 9.00 pm.

7. It is also clear that the amenity concern in relation to the drive-through was the potential for noise nuisances to be occasioned to the adjoining residential properties to the north.

8. After unsuccessfully seeking an amendment to the existing permit from the Responsible Authority pursuant to ss. 72 and 73 PE Act, McDonalds issued the two proceedings which were before us on the 6 April 1999.

9. These two proceedings were advanced as alterative means of achieving a strategy whereby it hoped to avoid having to serve a trial period and having to cease trading after 9.00 pm whilst seeking a new permit if it passed the trial successfully.

10. Its idea was to enclose the planned drive-through facility within the building. The current permit envisages an open-air drive-through around the western and northern sides of the proposed building. Customers using the drive through would pass windows where they would place orders and pick up their purchases without having to leave their motor cars. Under the existing permit acoustic protection from the noise of such vehicles in the drive-through was to be provided by a 2.7m high acoustic fence screening the adjoining residential properties. The idea of enclosure of the drive-through within the building was that this would provide such an effective acoustic screen as to render the trial period and possible 9.00 pm curfew superfluous.

11. McDonalds sought to implement this new variation of its proposal by two alternative means. One was to seek an amendment to the existing permit to substitute plans which included the enclosed drive-through and to amend condition 17 to delete its second paragraph thus removing the three month trial period and the 9.00 pm curfew. That approach has failed because of the ruling that McDonalds could not establish its ground under s.87(1) PE Act for permit amendment which was material change of circumstances since the grant of the permit.

12. The alternative approach was to apply for a new permit which would be the same as the existing one except for the inclusion of the enclosed drive-through facility. It was this permit application, refused by the Responsible Authority, that gave rise to Application for Review 1998/81001.

13. After hearing all the submissions and evidence of the parties we retired, on the late afternoon of the 3 June 1999, to consider our decision in relation to this matter. We subsequently returned to say that we were of one view in relation to the case and that we were in a position to give our decision and our reasons. We proceeded to give both orally. The decision is that the review should be allowed and a permit granted subject to conditions. The following is a summary in relation to our reasons. It should be appreciated that many objections to this proposal were raised in the course of the long hearing. We have considered them all. We found many to be minor or improbable and such that they would not justify refusal. They were frequently repetitive of issues contested and determined in the previous appeal. We have not thought it necessary or appropriate to deal here individually with all these minor matters. They and not decisive in they are quite insufficient to effect the outcome of the review.

14. We observed that the issues in the case could be divided into two categories, the first being those issues which had been available, contested and determined in the previous appeal to the AAT and the second being those issues arising from the alteration to the proposal that had been before the AAT namely those related to the introduction of the enclosed drive-through facility.

15. Mr Testro had made reference to the "repeat appeal" approach adopted by this Tribunal and its predecessors for many years in relation to planning appeals. This approach recognises that the Tribunal is not bound by precedents in determining the merits of the planning decisions it makes. It nevertheless takes the view that a repeat application and a repeat appeal of the same proposal for the same land can expect the same result as on the earlier appeal or appeals unless a change in circumstances warrant a different result. Mr Testro referred to the "repeat appeals" section of the planning case notes appearing at pages 3411-3413 of Butterworths' publication entitled "Planning and Environment Victoria". This approach recognises that there must be an end of litigation and that it is undesirable that applicants should be able to make repeat applications for the same proposal by way of "jurisdiction shopping" in the hope of finding a Tribunal constituted by members who would give a different decision to their colleagues in an earlier appeal. It is recognised, of course, that a change of circumstances might warrant a different decision although it needs to be a relevant change in circumstances. At paragraph [4.30.15] cases are referred to for the proposition that the Tribunal should act with great caution in considering whether a previous decision should be reversed and that the change of circumstances alleged must be positively shown otherwise the reversal of earlier decisions will introduce such a state of inconsistency into the appeal system that chaos could occur with unsuccessful parties applying and appealing time and again.

16. Mr Wright had argued in relation to the present case that the only relevant issues were those arising from the change in the proposal in relation to the enclosed drive-through facility and that all other issues previously contested before the AAT should be regarded as irrelevant. We refrained from making a ruling to that effect and in fact heard all that the parties had to say, because of a recognition that the proposal to enclose the drive-through did alter the proposal. Nevertheless we had before us the decision of the Tribunal on the previous appeal, which includes its decision on various aspects not influenced by the change to the enclosed drive-through facility. Without applying the "repeat appeal" principle strictly to exclude consideration of various matters, we preferred to hear them to determine their relevance. Nevertheless we approached our task, not only conscious of the previous Tribunal's decision, but having considerable respect for it in relation to the various issues not affected by the drive-through facility. We were also conscious that McDonalds is in a position to act on its existing permit if it so chooses. So far as the issues not relating to the drive-through facility are concerned, we said that we were content to follow the view adopted by the previous Tribunal, having come to similar conclusions in relation to them. These included the possible danger of littering, traffic consequences including possible danger to pedestrians in walking past the land, other suggested danger of traffic accidents in relation to the intersection, the streets and a possible future slip lane" for vehicles turning left out of Bell Street into Sussex Street (which is, in any event, a matter for VicRoads rather than McDonalds whose only real concern is that part of its land may be required).

17. On turning our attention to the issues relating to the drive-through, we observe that we had been concerned as to the resulting appearance of the proposal and the effect it might have on the amenity of the area in terms of its streetscape and appearance. We found the form of the building, as modified to incorporate the drive-through, to be acceptable. In fact the drive-through enables an improvement in the amenity of the area, and of the neighbouring properties, so far as appearance is concerned. This is because it enables a reduction of the 2.7m high acoustic fence otherwise required to protect those properties. We expressed some particular concern of a fence that high, being beyond ordinary residential proportions extend right along the common boundaries including down to the street frontage of Sussex Street. This reduction, together with lighting and transparency at some points, sufficiently alleviates security concerns about the setback area between the building and boundary fences.

18. We said that we accepted that the acoustical screening of the enclosure was such to render obsolete the need for a trial period and the need for 9.00 pm closing. Concerns about possible noise problems are further reduced by the imposition of a condition requiring compliance with State Environment Protection Policy N-1. We have imposed such a condition, disregarding the misguided suggestion that some other Environment Protection Authority guideline should be preferred. SEPP N-1 is the appropriate document. It is designed to take account of the proximity of any nearby residential areas.

19. We observed that some of the objectors and residents had advanced some extreme and improbable objections to the proposal including the exhaust facilities for the enclosed drive-through facilities. The proposal includes the installation of exhaust fans with intakes at ground level and outlets through the roof or the front gable facing Bell Street over the entrance to the drive-through facility. The evidence disclosed that these exhaust facilities were to prevent motor vehicle exhaust coming in through the order and service windows from the drive-through facility causing discomfort to staff and customers within the restaurant building. The gathering of exhaust gases from the enclosed area and the venting of them at elevated outlets would be, if anything, preferable to their discharge at ground level in the original proposal. A sense of proportion should be retained by remembering that such vehicle exhaust gases are emitted into the atmosphere from moving and stationary vehicles in Bell Street and Sussex Street, more or less at all hours of the day and night. Of course such emissions are much greater during the peak periods. Both those streets are busy ones, particularly Bell Street, which is an important arterial road. The difference in emissions occasioned by the enclosed drive-through would be minimal, and was certainly not shown to be other than minimal.

20. The observation that McDonalds was not known to have other enclosed drive-through facilities led to wildly exaggerated suggestions that this proposal was a rash and untried experiment that might give rise to unusual health hazards, explosions or fires. Enclosed carparks and vehicle tunnels of vastly greater significance than this modest drive-through facility are common. The tunnel under the Sydney harbour and the proposed one under the Melbourne Domain are but two examples, and enclosed or underground carparks with ventilation and exhaust systems are really quite common. We found none of the apprehensions of danger about the drive through or the ventilation system to be justified.

21. We did not find apprehensions as to parking or traffic to be warranted or increased by the proposed drive-through facilities. We accepted the evidence of Mr Grogan as to these matters which was substantially corroborated by Mr Turnbull. It had been put to Mr Turnbull that the proposal was, in his view, "Generally acceptable subject to attention to detail" and he had agreed "That is a fair summary".

22. Mr Turnbull had expressed some concern about what he took to be a loading bay which seemed to him to be inaccessible. He was referred to an area marked "Deliveries" south of the storage corral in the building. Amplification of the proposal by Mr Grogan revealed that this deliveries area was not intended to be a loading bay. Rather deliveries, which will be relatively few in any event, will occur in a specially designed portion of the car parking area during quiet trade periods. The "Deliveries" area is kept free, not to be occupied by the delivery vehicle, but to accommodate the opening of corral doors and to give access into the corral area by those unloading delivery vehicles.

23. Mr Turnbull also expressed some concern about the possibility of drive-through vehicles queuing up during a busy time so that the queue extended back through the parking area, possibly onto Bell Street. Although such a possibility could occur, its likelihood is remote as queuing drivers are more likely to park in a car parking space and go into the restaurant to order goods. In any event, such an occurrence is likely to be so infrequent, if it should ever occur at all, as to justify it being disregarded.

24. The same can be said for apprehensions expressed about trucks coming to the facility for drivers to buy food and, either parking in the car parking area where space is not available, or parking further north in the residential part of Sussex Street. Again, such things could occur, but we accept the evidence that truck drivers do not frequent McDonalds facilities of this sort because of the inconvenience of accommodating large vehicles. Special facilities exist elsewhere to cater for truck drivers. Truck parking in Sussex Street to buy things at this facility is unlikely, and if did occur very occasionally would not amount to a reason for refusal. In any event it barely relates to the drive-through facility.

25. Other apprehensions expressed were too minor and remote to amount to reasons for refusal, especially when mitigating conditions are able to be imposed.

A. Application for Review 1998/81001 is allowed and a permit granted to use the land as a café and take-away food premises with access onto the main road of Bell Street and with reduced car parking and loading bay requirements all in accordance with the endorsed plans hereinafter provided for and subject to the following conditions:-

1. Prior to the commencement of the use hereby permitted or the construction of buildings and works provided for in the endorsed plans hereafter provided for, three (3) copies of plans drawn to scale with dimensions must be submitted to and approved by the Responsible Authority. When approved these plans will be endorsed and form part of this permit. Such plans are to be generally in accordance with the plans submitted as exhibit "W1" at the hearing of planning Application for Review 1998/081001 by the Victorian Civil and Administrative Tribunal but modified to show:-

(a) elevations of the building with details of building finishes including colours and materials;

(b) the outer wall of the drive-through facility being extended for a distance of 7m east of the exit of the roofed portion of that facility (all for a height of 3.5m);

(c) the northern wall of the drive-through facility at the exit point for vehicles is to be extended at a height of 2.4m to a point within 6m of Sussex Street but otherwise of a construction and transparent material to match the extension of that wall as shown on the "W1" plans;

(d) removal of the 2.7m high acoustic fence along the western boundary of the land with 2 Greenwood Street and the northern boundary with 3 Sussex Street;

(e) extension of the 2.7m high acoustic fence along the northern boundary of the land with 2 Greenwood Street to connect with the western wall of the drive-through facility which extension may contain an entry or doorway which must be acoustically sealed and the extension and/or door are to be of transparent material;

(f) a landscape plan in accordance with the Moreland Landscape Guidelines incorporating advanced tree planting;

(g) the provision of at least three rubbish bins appropriately positioned on the site.

2. The siting, dimensions, appearance and design of all buildings and works and the internal layout and use of all buildings and works must accord with the endorsed plans and must not be changed except pursuant to Section 62(3), 73 or 87 of the Planning and Environment Act 1987.

3. The garden areas and plants shown on the endorsed plan must be established to the satisfaction of the Responsible Authority prior to the use commencing and then maintained to the satisfaction of the Responsible Authority.

4. The area set aside for the parking of vehicles together with the access lanes shown on the endorsed plan must:

(a) be completed prior to the commencement of the use to the satisfaction of the Responsible Authority;

(b) be maintained to the satisfaction of the Responsible Authority;

(c) be properly formed to such levels so that they can be used according to the plan;

(d) be drained and surfaced with an all weather seal coat to the satisfaction of the Responsible Authority;

(e) have the boundaries of all vehicle spaces clearly marked on the ground to accord with the endorsed plan;

(f) not be used without the permission of the Responsible Authority for any purpose other than access and the parking of vehicles.

5. The loading and unloading of vehicles in association with the use of the land must only be carried out within the boundaries of the land.

6. The following conditions of VicRoads must be complied with:

(a) the development must not proceed until a functional layout plan showing access and required road works is approved by VicRoads and the Responsible Authority;

(b) all access works and mitigating works are to be completed prior to the commencement of the use hereby permitted;

(c) a "No Right Turn" sign must be installed on the Bell Street frontage of the site adjacent to the crossing facing vehicles exiting onto Bell Street and a standard left turn arrow in relation to the exit driveway into Bell Street must be provided;

(d) the area generally shown hatched in Drawing No. T132-DAIu Amendment "h" must be shown as road to be vested in VicRoads in accordance with the Subdivision Act 1989 and certified plans lodged with the Registrar of Titles within 12 months of the date of this permit;

(e) the design and construction of the access works, including any required modifications to traffic signals, must be to the satisfaction of and at no cost to VicRoads and the Responsible Authority;

(f) in the event that the site is redeveloped for another purpose, the accesses that are herein permitted must be modified as VicRoads directs and no compensation will be payable in that event.

7. The use (including the drive through) must not adversely affect the amenity of the neighbourhood by:

(a) the transport of materials, goods or commodities to or from the land;

(c) the appearance of any stored goods or materials;

(d) the emission of noise, artificial light, vibrations, odour, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

8. Where the boundary of any car space, access lane or driveway adjoins a footpath, garden area or lawn area, a kerb must be constructed with a minimum height of 100mm and minimum width of 100mm. The kerb must be constructed of concrete or another approved material to the satisfaction of the Responsible Authority.

9. Windows must not be blocked out by the display of advertising signs or fully painted in.

10. All stormwater from the land must be collected and directed to an underground pipe drain connected to an outlet approved by the Responsible Authority.

11. The titles to the land must be consolidated into one title in accordance with the Subdivision Act 1989 and certified plans lodged with the Registrar of Titles within twelve months of the date of this permit.

12. All external light fittings must be provided with suitable baffles to the satisfaction of the Responsible Authority so that direct light is not emitted outside the land.

13. Ramps and entrance doors must be constructed to accord with the Australian Standards for Disabled Access.

14. Solid waste produced on the land must be temporarily stored to the satisfaction of the Responsible Authority and then removed so as to avoid any smell, nuisance, pollution or loss of amenity to the surrounding area.

15. Rubbish containers shall be provided around the land to the satisfaction of the Responsible Authority. At least once on each day that the premises are open for trading to the public, the operator must send a litter patrol to undertake collection to the satisfaction of the Responsible Authority of any litter emanating from the land which is on public roads or reserves within a 100 metre radius of the land.

16. Except with the written consent of the Responsible Authority the permitted use must only operate during the following hours:

6.00am to 1.00am the following day, on Fridays and Saturdays.

17. Building, works, car parking areas and landscaping must be completed to the satisfaction of the Responsible Authority prior to any part of the use allowed by this permit commencing.

18. This permit expires if development is not commenced within 12 months from the 2 June 1999 or if the buildings and works are not completed and the use commenced within 24 months of that date unless these dates are extended by the Responsible Authority in writing. An application for extension of time may be made in writing before or within three months after the expiry date.

19. All access works are to be designed and constructed to the satisfaction of and at no cost to VicRoads and the Responsible Authority.

20. Bicycle parking rails must be installed on the land to the satisfaction of the Responsible Authority.

21. An anti-litter sign must be erected adjacent to the drive-through collection area and adjacent to the vehicle exits to the land to the satisfaction of the Responsible Authority.

22. Prior to the use commencing the owner must install to the satisfaction of the Responsible Authority basket litter traps in the 5 drainage pits in the immediate vicinity of the land.

23. Noise emitted from fixed plant and equipment on the land (including, but without limiting the scope of this condition, the exhaust ventilation system for the drive-through enclosure) must comply with SEPP (Control of Noise from Commerce, Industry and Trade) No. N-1.

24. Unless with the written consent of the Responsible Authority the loading bay must not be used for loading or unloading of goods or materials except after 10.00am and before 5.00pm on any day.

25. This permit does not come into effect unless Permit MPS No. 1997/0444 is cancelled.

B. Request 1998/69627 and Application No. 1999/38136 are adjourned to a date to be fixed.

The Responsible Authority is directed to issue a permit pursuant to