McDonald's V Glen Eira CC [2009] VCAT 1907

1. The decision of the Responsible Authority is affirmed.
2. In permit application MBN7800/A the amendment to Condition 13 is refused.

• Mr S. McGurn, Town Planner of Fulcrum Planning
• Ms L. Hui, Acoustic Engineer of Marshall Day Acoustics

J. Bunworth, F. Alesi & Ors, S. Zagroon, A Filiaci, T. Filiaci, R. Smith, N. Johannesen, L. Scott, Yan Liu in person

To amend the hours of operation for a Convenience Restaurant to 24 hours per day.

Section 77 Planning and Environment Act 1987

cl 32.01-1 (use for a convenience restaurant in R1Z)

The site of area 2374m2 is located on the corner of North Road and Jasper Road, Ormond. The site contains and existing single storey McDonalds restaurant, with drive through facility, play area, terrace dining area and forecourt parking. Private dwellings are located to the east and southeast and zoned Residential 1, with commercial properties to the south and to the west on Jasper Road that are zoned Business 1.

McDonalds Australia v Darebin CC [2007] VCAT 2161

1. McDonalds wish to extend there trading hours to 24 hours per day at their convenience restaurant in North Road, Ormond. The site has had a permit for a number of years to operate as a convenience restaurant, and changes to the site have been made to expand the range of services offered to include a drive through facility. The site currently operates from 6 am to 1 am the following day, 7 days per week. A number of residents around the site raised strong objections and Council refused the planning application on grounds relating to detriment to residential amenity for the surrounding residents and policy considerations for a residential zone.[1]

1. I consider the two issues to be determined in this matter are,
   • Compliance with the requirements of the Residential 1 Zone
   • Extent of amenity impacts on adjoining residents

Compliance with the requirements of the Residential 1 Zone

1. The current development on the site was approved in 1993, and there have been a number of subsequent changes to the site over time including the introduction of the drive through facility that is accessed from North Road and is located, in part on the eastern boundary of the site adjacent to a residential dwelling at 660 North Road. The site trades from 6.00am to 1.00am the following day 7 days a week.
2. Mr Gobbo argued that the site although zoned Residential 1 is immediately adjacent to the Ormond Neighbourhood Activity Centre and to all intents and purposes is part of the centre. In a locational sense I agree, however the site has a Residential 1 zoning and has residential uses on two boundaries so a higher test has to be applied to any development on the site.
3. The use of a convenience restaurant is a section 2 use (requiring a permit) in a Residential 1 Zone and I consider it useful to consider the requirements of that Zone.[2] In general terms, the zone aims to protect the residential amenity of residents in the zone while allowing limited non-residential uses that provide facilities of benefit to the local community.
4. Council has a policy "Non Residential Uses in Residential Zones Policy" which aims to restrict the hours of non-residential uses to ensure minimal impact on adjoining residential uses. Council contends that the extension to trading hours will not meet the objectives of this policy in that it will further erode the residential amenity of adjoining residents. I consider that the proposed trading for 24 hours per day 7 days per week goes well beyond what is reasonable in a Residential Zone and is contrary to the primary intent of the Residential 1 Zone, that is to protect residential amenity.
5. The applicant contended that 24 hour trading was required to meet demand and offer consistent trading hour across the McDonalds stores in Metro Melbourne but admitted that based on the trading statistics from other 24-hour restaurants the number of patrons would be low. This reasoning is to me is not a sufficient basis to approve the extended trading hours contrary to the intent of the Residential 1 zone.
6. Therefore, I consider the application fails the Planning Scheme and policy test.

1. The residents surrounding the site put forward a range of issues that they claim to have to deal with regarding the current 19 hours of operation per day on the site. They included, large trucks idling in the service lane to North Road while the drivers walked to the restaurant to obtain food in the early hours off the morning, graffiti damage to their premises possibly caused by young patrons to the site, noise from patrons congregating on the site, the noise associated with the drive though facility and litter (McDonalds wrappers) scattered around the area.
2. The existing layout of the site is a problem in its self, especially the location of the drive through and order point being very close to the boundary to the east and southeast adjacent to residences on North Road and Wicklow Street. The 24-hour use of this facility will provide the residents with no break from the noise, even if numbers using this facility are low in the early morning hours. From a traffic management point of view the increased operating hours will have limited if any impact on the traffic conditions in the area, however the noise the additional traffic generates and the behaviour of patrons are a significant issue.
3. The residents argued that placing larger and higher sound barriers on the eastern and southern boundaries of the site and further baffling of lighting would not over come their concerns regarding adverse impacts upon them. They maintained the operators of the site had failed in the past to address their concerns regarding the current operation and have no faith that with 24 hour trading the disturbances would not only continue but would become worse.
4. In my opinion, at least some of these adverse amenity effects are related to the operation of the existing convenience restaurant, particularly early in the morning and are likely to be exacerbated by the proposed extension of hours. Although the site is at the junction of two Category 1 Roads and both it and its residential neighbours are in a Residential1 Zone, which carries with it an expectation of a reasonable level of residential amenity particularly from adjacent uses, any extension of hours would not achieve this. I am persuaded by what the residents have put before me that a further extension of trading hours would not be acceptable.
5. The discussion of amenity impacts on adjoining residents in McDonalds Australia v Darebin CC (12 November 2007) is relevant and the decision at paragraph 56 says in part:

The question is whether these properties should have no relief at all when the restaurant and these dwellings are located in a Residential 1 Zone.

1. Member Fong's decision in the Darebin case makes the above point, which I consider pertinent to this case. In that decision she concluded that even with abuttal to busy roads, it was not appropriate to further diminish levels of residential amenity for surrounding residents in a Residential 1 Zone by granting 24 hour operation for the convenience restaurant. I consider that her conclusion is relevant to this case. A similar situation exists here and on amenity grounds, this application cannot be supported.

1. I have considered the provisions of the zone applying to the land and I consider that the adverse amenity impacts that will be generated by the 24 hour trading on the site will have unacceptable and detrimental impacts on the residential properties in the area and are therefore contrary to the intent of the Residential 1 Zone. Even taking into account the measures proposed by the permit applicant to address amenity impacts, the permit application should be refused.

[1] The proposed increase in trading hours will have an adverse impact on the amenity of the surrounding residential areas through increased patron and motor vehicle noise, negative patron behaviour, and increased rubbish in the area.

The proposed increase in trading hours contradicts the intent and objectives of the Residential 1Zone, which seeks to appropriately, integrate a limited range of non-residential uses to serve the local community needs.

• To implement the State and local Planning Policy Framework, including the MSS and LPPF,

• To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households,

• To encourage residential development that respects neighbourhood character, and

• In appropriate locations, allow educational, recreational, religious community and a limited range of other non-residential uses to serve the local community.