Mr. Tom Callander, Solicitor, Rigby Cooke. He called the following witnesses to give evidence:

• Mr. S. McGurn, Town Planner
• Mr. T. Marks, Acoustic Specialist

Mr. Dean Matthew Jordan appeared on behalf of Mr. Jim Hooper

1. This is a sec. 77 review under the Planning and Environment Act 1987 against Council's refusal to amend Condition 1 of Permit No. D/704/95 issued in April 1996 for the use and development of the land for the purpose of a cafe and take-away food premises and access to an existing main road reservation at 1011-1017 Plenty Road, Kingsbury. This permit is the approval for the MacDonald's convenience restaurant currently operating from the site.
2. There have been several amendments to the permit and further permits for the site since the use and development permit was issued in 1996. Some are for display of adverting signs. A permit issued in 1999 (D/405/1998) was to develop No.1 Dunne Street as a commercial vehicle park - the restaurant's car park to the northwest (referred to as the western car park in this order) of the site. This car parking provides 18 car spaces.
3. An amendment to the original permit approved on 13 February 2004 was to amend Condition 25, allowing an increase in the number of seats on the premises from 70 to 144 and an increase in the overall car parking number from 35 to 77, taking in the additional spaces at the western car parking at No. 1 Dunne Street approved under permit (D/405/1998).
4. This review is an application to amend Condition 1. This condition requires:

Without the prior written consent of the Responsible Authority, the use hereby permitted shall operate only between the hours of Monday to Sunday (inclusive) 6.00 am until 1.00 am the following day.

1. The intention of the application to amend the condition is to allow for 24 hour trading.
2. The sole ground of Council's refusal was:

The proposed extension of hours is excessive and will be detrimental to the amenity of adjoining residential properties and the area particularly by way of noise.

1. The review site is on the south-west corner of Dunne Street and Plenty Road, Kingsbury. It is irregular in shape, with a frontage of approximately 54 metres to Plenty Road, a frontage of 62 metres to Dunne Street, and a site area of 3,592 sq m. It is developed with a McDonald's convenience restaurant pursuant to the aforementioned permit issued in 1996. An acoustic fence has been erected along the common boundaries with abutting dwellings.
2. Plenty Road is a busy arterial road with a tram service. Dunne Street is also a busy collector street.
3. This restaurant has a McCafe and a drive-through facility. Its current approved operating hours are from 6am to 1 am the following day. It, however, is currently closing at 12am.
4. Abutting the site to the south at No. 1009 Plenty Road is a single storey dwelling. To the west at No. 3 Dunne Street is also a single storey dwelling. At the rear to the southwest are single storey dwellings at No. 2a and 2 Clunes Street.
5. To the north of the site on the north side of Dunne Street is, according to Council's submission the Darebin Life Skills Centre. Buildings of this centre appear to be former domestic buildings. Otherwise, this section of Dunne Street is a residential street.
6. Opposite the site on the east side of Plenty Road is La Trobe University.

1. The proposal is amend permit condition No. 1: that is to replace the trading hours from 6:00am to 1:00am the following day to 24 hours.

1. The review site is in the Residential 1 Zone of the Darebin Planning Scheme ("the Scheme") under which a permit is required for the use and development of a restaurant. The dwellings surrounding the site are also in the Residential 1 Zone. Plenty Road is Road Zone Category 1, and Dunne Street Road Zone Category 2.
2. The site is affected by the Development Contributions Plan Overlay 1.
3. The provisions of Clause 52.20.
4. Other relevant provisions and policies of the Scheme are Clauses 12, 14, 15.05, 17.01, 17.02, 21.05.5, 21.05-6, 22.03 and 65.

1. Council and review applicant's representatives spoke to written submissions. Mr. Jordan, on behalf of Mr. Hooper made an oral submission. The witnesses called to give evidence were made available for cross examination.
2. At the hearing, the Tribunal was supplied with many additional documents: planning scheme extracts, other Tribunal decisions on McDonald's restaurants, and many photographs. Submissions of the parties and these documents are kept on file and the Tribunal does not intend to quote from these documents.
3. At the commencement of the hearing, Mr. Callander advised that his client will accept Mr. McGurn's recommendation to close off the western carpark between 1am and 6am.
4. At the conclusion of the hearing, the Tribunal reserved its decision and indicated that it would inspect the site.

1. In reaching its decision, the Tribunal has had regard to the submissions of the parties, evidence of the witnesses, provisions of the Scheme and its inspections of the site.
2. The Tribunal has inspected the site on 13 and 14 October 2007, including the closing of the restaurant at 12am and beyond. It has also inspected another 24 hour McDonald's restaurant located in the Residential 1 Zone with a residential interface in Nunawading between 12am to 1:30 am to observe late night and early morning trading.
3. The issues of this review are:
   • whether the propose 24 hour trading hour, particularly between 1am to 6 am appropriate for the site in the Residential 1 Zone surrounded by conventional housing in a suburban area; and
   • Whether the recommended conditions to reduce the impact of the proposed 24 hours by closing the western car park and additional minor traffic works can reduce the amenity to an acceptable level.
4. The Tribunal notes that although the site is in the Residential 1 Zone, the review site has been identified as a Local Convenience Centre pursuant to Clause 22.03 (Activity Centres Policy) of the Scheme. According to this policy, a local convenience centre is defined as a centre that provides local convenience retail service to a limited local catchment primarily comprising of walk-in customers in the immediate environment or to serve passing traffic. Council's Retail Activity Centres Strategy 2005 is a reference document of this clause. This study identified the core role or function of this centre as "McDonalds Family/restaurant" (centre No. 82).
5. Whilst this document provides further guidelines for use and development for other retail based local centres, the "Decision Making Framework for Planning for Local Convenience Centres" contained in Table 5.4 of the document (P. 62) is not useful for this particular centre.
6. To the Tribunal, the fundamental assessment for this review is the amenity impact of the extended trading hours on abutting residential properties, all of which, including the review site, are in the Residential 1 Zone; and whether the ameliorating measures recommended to overcome the amenity impact viable.

1. Unacceptable amenity impact is Council's sole ground of refusal. Council's particular concern is the impact of noise. It pointed out that this outlet is surrounded by dwellings. Non-residential uses to the north and east (Darebin Life Skill Centre and La Trobe University) operate on a reduced scale or not at all overnight.
2. Council was concerned that to allow the restaurant to operate 24 hours will expose the nearby residents to disturbance for longer periods when they would expect to be asleep and when background noise (such as traffic along Plenty Road) would be lower. The noise disturbance identified by council include loud conversations, cars revving, doors slamming in the early hours of the morning when the use would be otherwise quiet. The extent of noise nuisance caused by a 24 hour operation, in Council's view, as not consistent with the objective for residential amenity in the Residential 1 Zone.
3. Council notes that despite the site being identified as a local convenience centre in its Activity Centre Policy of Clause 22.03, it is unlike other local convenience centres which are usually located in business zones. In this case, the site is in the Residential 1 Zone butting residential land uses. The catchment for this convenience restaurant is not limited to local areas. As such, it contends that this McDonald's restaurant has reached the upper limit of intensity that be comfortably accommodated in this location.
4. It also notes that the location is not one that expects 24 hour commercial activity, as it is not a major activity centre where the emphasis is on non-residential land use. Its review of 24 hour McDonald's restaurants in Darebin and adjoining municipalities reveals that they are located in or on the edge of principal or major activity centres. These are the McDonald's restaurants at Bell Street/St. Georges Road, Northland Homemaker Centre, Greensborough Plana and Epping Plaza.
5. With regard to noise nuisance, Mr Marks, acoustic specialist called by Mr. Callander to give evidence, is of the opinion that the current traffic noise along Plenty Road and Dunne Street already exceeds sleep disturbance criteria. His evidence is that noise from the premises meets EPA's SEPPN-1 guidelines. To him, the worst case scenario is when vehicles using the drive-through going very fast at night that may have the potential to cause sleep disturbance. He, nonetheless, considers that such an occurrence unlikely because of the configuration of the drive-through.
6. He concluded that, given the existing high traffic levels in the area at night, and subject to the recommended measures in his statement of evidence, the proposed extended trading hours will not adversely affect the existing noise environment. These measures include additional speed humps, speed restriction signs to limit speed within the site, deterrence of noise emitted by the worst case scenario in the drive-through at the closest point to 2 and 2A Clunes Street, and garbage collection to occur during the times recommended by EPA publication TG302/92.
7. Mr. McGurn's town planning evidence is that if there is to be a convenience restaurant in Darebin, the review site is well suited due to its location on a major north-south corridor, its identification as a local convenience centre, and its proximity to the La Trobe/Technology Business Park. His view is that although there is no reference to 24 hour activities in the MSS or local policy, there is an increasing demand and community expectation for eating out facilities and "quick service" in Metropolitan Melbourne. A number of 24 hour McDonald's restaurants have been approved in Metropolitan Melbourne.
8. In the context of the site, he considers the permit approving the restaurant to operate up to 1 am an indication of a degree of late night activity. His assessment is that there is a separation distance between the restaurant building and abutting residential boundary, that there would be an unlikely disturbance caused by the extended operation. There is no other statutory requirement of the proposed extended hours apart from the requirement of the operation to meet SEPP-N1 guidelines. His view is that disturbance is more likely to result from customers arriving at and leaving the restaurant late at night or early morning from customer parking on the western car park adjacent to No. 3 Dunne Street. His observation is that a significant proportion of customers at the extended hours are likely those who use the drive-through. To eliminate any potential for noise impact and subsequent amenity loss, he recommended the following conditions to be included:
   • Closure of the western car park and associated Dunne Street crossover after 1 am (with subsequent relocation of the waiting bays and reorientation of the northern driveway);
   • Closure of the outdoor terrace;
   • Consideration to install lower 'bollard' lights or baffling the light in the car park close to No. 3 Dunne Street;
   • Additional measures to influence customer behaviour such as signs in the restaurant and car parking reminding customers to respect the site's residential neighbours. This can be achieved by the requirement of a management plan;
   • The waiting vehicle bays to be relocated to be closer to the restaurant to avoid vehicles idling immediately adjacent to No. 3 Dunne Street.
9. Mr. Jordan, on behalf of Mr. Hooper submitted that the existing restaurant has caused amenity concerns for local residents: headlights affecting dwellings on the opposite side of Dunne Street, cars doing burnt outs during trading hours, excessive noise and music by customers whilst waiting and after exiting the drive-through, flood lights remaining on until after all staff have left. He noted that the area around this McDonald is residential and there is no 24 hour operating business. The local community does not require a 24 hour convenience restaurant. Additional hours will mean more rubbish accumulated in residential properties. McDonald's original agreement to clean up the area on a regular basis has not been honoured. He intended to show a short video evidence of the rowdy costumer behaviour at a later date.
10. Mr. Callander objected to this video as it is an unknown evidence. It may be necessary for him to assemble his expert team to review this video and make a further submission on it.
11. The Tribunal agrees with Mr. Callander that any video should be shown on the day of hearing so that all the parties can see it and for the Tribunal to ascertain the circumstances when the video was taken.
12. In response to Mr. Jordan's allegation that litter is a problem in the area, Mr. Callander submitted that Council has not received complaints about the restaurant, and the restaurant has its own litter management that includes picking up litter from the area. He submitted that the restaurant is well managed, from the operation of the business to maintenance of landscaping and buildings. There is no issue of odour. The proposed 24 hour trading is a response to community need and demand for the service. Acoustic evidence at the hearing is favourable to the proposed extension. His client accepts the recommendation from Mr. McGurn and the Tribunal should allow the review.
13. The Tribunal's concern of the proposed extended hours is amenity impact on adjoining dwellings.
14. It has already considered the proposal in the context of the Activity Centre Policy of Clause 22.03 and determined that it is not particularly useful in the assessment of the proposal, although it can be said that the catchment area of the 24 hour restaurant will not be limited to the local community or customers within walking distance.
15. The context of the site, the Tribunal finds, as one of a convenience restaurant in the Residential 1 Zone abutted by single dwellings in 1009 Plenty Road, No. 3 Dunne Street, and 2 and 2A Clunes Street and at the busy intersection of Plenty Road and Dunne Street.
16. To assess the likely impact of the proposed extended hours, the Tribunal inspected the site during trading and outside trading hours, and another 24 hour McDonald's restaurant in the Residential 1 Zone with a residential interface.
17. The Tribunal's inspection of the review site was conducted on 13 and 14 October, 2007. The inspection of 13 October 2007 was from 11:15pm to 12:30am to observe late night trading to closing. The Tribunal returned on 14 October morning to inspect the area in daylight.
18. This inspection reveals a noticeable change of clientele between late night and morning. All customers were young people at night. The drive-through was particularly busy just before closing. For some reasons, all these drive-through customers all left in a hurry and made a U-Turn in the first opening in Dunne Street pass the northern exit crossover, making (to this member) rather piercing noise in doing so. There was a group of 6 young people who did not seem to be customers, walked in from Dunne Street and stayed in the terrace area.
19. When the restaurant closed at 12 midnight, all the external illuminated signs were turned off and only internal lighting within the building were left on. Staff was picked up by relatives/parents with cars parked in the main carpark in front of the restaurant facing Plenty Road.
20. Despite some traffic noise in Plenty Road, the place suddenly became dark and quiet after closing. The only intrusion into the residential amenity is the occasional traffic noise from Plenty Road. Dunne Street was quiet.
21. This inspection revealed that the place is busy at the drive-through just before closing but not the dining area, may be because the dining area will close at midnight.
22. On the morning of 14 October 2007 at 8:30 am, there were three pieces of litter from the store on the footpath on the same side of Dunne Street, another four within the front setback area of No. 3 Dunne Street. There was an empty beer bottle in the gutter outside No. 3 Dunne Street, which has obviously nothing to do with the store.
23. The 24 hour McDonalds' convenience restaurant that the Tribunal inspected is the Nunawading store at the corner of Springvale Road and Whitehorse Road. That store and the properties to the east and north are located in the Residential 1 Zone with an interface with dwellings to the north. It abuts an office building to the east, with bulky stores on the opposite side of Whitehorse Road and non-residential uses on the other corners of the intersection. There is a fence/wall of over 3.5 metres high separating the restaurant and its drive-through from that dwelling on the north side of the site in Springvale Road.
24. That restaurant was busy beyond mid-night. At about 1 am on 14 October, there was a queue of 9 vehicles waiting in the drive-through. The dining area, although not full, have at least 8 groups of customers. The age group of customers are mostly young people. The Tribunal would say that the dining area of the restaurant is as busy at that time of the night as other non-peak daytime. The general atmosphere is that it is busy, humming with activities with customers getting in and out, cars coming and leaving, and surprisingly the terrace very well used. Although it is difficult to determine whether the noise generated by all the activities is to such a degree that it would cause sleep disturbance in accordance with the NSW EPA's Environmental Criteria for Road Traffic Noise May 1999, this is a far cry from the quiet and dark atmosphere of the Plenty Road McDonald's after closing.
25. If the activities of the Nunawading store is a glimpse of the activities of a 24-hour restaurant: movement by people and vehicles, the level of illumination of building and area; the Tribunal is not persuaded that an extension of hours to cover the gap between 1am to 6am for the review site is justified in several aspects.
26. Noise is not the only concern, although it is the primary reason for Council refusing the request. Activities of the restaurant also include cars coming in, pulling out, pedestrians walking into and out of the restaurant, the queuing and vehicles idling in the several windows of the drive-through, and customers in the outdoor terrace and in the carpark, including talking and eating.
27. There is the general illumination of the premises by signs, within the building and generally in the car park.
28. For the review site, the Tribunal notes that all the advertising signs along the drive-through are higher than the acoustic fence separating No. 1009 Plenty Road, and the light poles in the western car park higher than the acoustic fence with No. 3 Dunne Street. All these properties have habitable room windows facing the restaurant. The canopy of one of the drive-through windows is higher than the fence against No. 2A Clunes Street. This means the entire range of activities of the restaurant and lighting of the premises will continue throughout the night and early morning against these properties.
29. One of the arguments is that the amenity of these dwellings is already compromised by their main road frontages, and that they cannot expect the same level of residential amenity as those in a quiet residential street. There is some validity to that argument. The question is whether these properties should have no relief at all when the restaurant and these dwellings are located in the Residential 1 Zone.
30. Dissimilar to the Nunawading example, or the Lower Templestowe store (which is also located in the Residential 1 Zone but abuts no dwelling), this store has primarily an interface with dwellings, and adverse impact is not limited to one or isolated dwellings.
31. Mr. Callander cited many 24 hour McDonald's either approved by Council or the Tribunal. That may be the case. This Tribunal is not convinced that they are directly comparable to this one. For example, many of those examples are located in a business zone (such as the Holmesglen, Balwyn, and Burwood store), or if located in the Residential 1 Zone but not abutted by dwellings (Lower Templestowe and the Glen Waverley Store).
32. Mr. Callander quoted the Tribunal's decision with respect of P934/2007 for 1736-1740 Dandenong Road, Clayton, where a permit was directed to be issued for a 24 hour McDonald's convenience restaurant with residential interface. The Tribunal's inspection of the site is that the development has yet to commence and that no first hand information can be obtained as to how that store interacts with adjoining dwellings. Further, in paragraph 18 of that order, the Tribunal said:
    1. 24 hour trading is proposed. This might require further consideration if the site abutted a conventional residential area, but having regard to the nature of the residential interfaces to the west, the acoustic and landscape treatment of the review site's western boundary, we do not consider that 24 hour operation would contribute to an unacceptable amenity impacts."
33. It appears to that Tribunal that it would have a different consideration if the site is located in a conventional residential area. As far as this review is concerned, the site is surrounded by conventional suburban dwellings.

1. Mr. McGurn has made some useful recommendations to contain the extent of disturbance to the area, such as closing the western carpark, restricting exit after 1am to the southern access, closure of the terrace area, replacement of lighting in the western carpark, relocating the waiting bays for the drive-through, and management policy advising customers to be neighbourly. Further, Mr. Marks recommended additional traffic restraining measures to reduce speed in the carpark to eliminate excessive noise disturbance.
2. These recommended measures are not difficult to implement and can reduce the adverse impact on abutting dwellings, particularly for No. 3 Dunne Street which abuts the western car park.
3. The restaurant has at the moment a seating capacity of 144, relying on all the car parking spaces provided on site, including those in the western car park. If the western car park is to be closed, there should be a proportional reduction in seating capacity. If that is the case, the seating capacity should revert to 70 as approved by the original permit. The Tribunal does not have the impression that the seating capacity is intended to be reduced. If seating capacity is not reduced, the restaurant will provide inadequate car parking, which is not acceptable from the car parking point of view. If the Nunawading store can be relied to give an indication of the use of the dining area, the Tribunal is not persuaded that trading between 1am and 6am is limited to drive-through.
4. Another recommendation is to close the northern exit between 1am and 6am as part of closing the western car park. This means vehicles will have to exit the drive0through via the southern exit. This also means customers exiting the drive-through will have to go west along Dunne Street and make a U-Turn at the first opening. If driver behaviour on the night of 13 October 2007 is the norm, such a manoeuvre will cause the same amenity problem for residents near that first turn off.
5. In all, amenity impact is not restricted to noise. It is the sum total of activities associated with the restaurant: people coming and going, cars coming and going, queuing in the drive-through, people talking and eating in outdoor areas, and of illumination of the site by lighting in car parks, in the buildings, and the numerous advertising and directional signs. Many of these signs and lighting are located higher than the acoustic fences that separate the site from adjoining dwellings. All adjoining dwellings have habitable room windows facing the site.
6. The Tribunal finds the amalgam of amenity impact unacceptable for a site surrounded by dwellings in a residential zone, or that the use should generate a level of activities that is 24 hours with no relief, even accepting that those dwellings abutting in Plenty Road and Dunne Street should expect a lower level of residential amenity.

1. This is a proposal to extend the current permitted hours of 6am to 1am following day to 24 hours trading.
2. Having considered the zoning of the land, the policies that affect the site, the interface with multiple dwellings, and the potential impact on these dwellings, the Tribunal agrees with Council that amenity impact on these abutting dwellings as unacceptable, even with the ameliorating measures recommended by the review applicant's acoustic and planning experts.

1. The decision of the Responsible Authority is affirmed.