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[2001] VCAT 2364
appellant. The Council’s refusal was set aside. A permit was granted for increased patronage and trading hours, and waiver of car parking, subject to 13 conditions. The responsible authority was directed to...
The Tribunal allowed the restaurant operator’s review of Council’s refusal. It accepted the traffic engineer’s evidence that nearby parking could accommodate the restaurant’s expected demand, particularly with lower patron numbers during weekday daytime periods. It also considered that traffic effects would not be unacceptable. The permit was granted with limits on hours and patron numbers and conditions directed to noise, security, waste and a possible acoustic fence. The reasons are a case-specific assessment of the evidence and conditions, not a general rule that similar restaurants must receive permits.
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In McKimm N v Bayside CC [2001] VCAT 2364, Nick McKimm applied to the Victorian Civil and Administrative Tribunal for review of Bayside City Council’s refusal of a permit application. The application concerned an existing restaurant at 382 Hampton Street, Hampton. It sought increased patronage and changes to operating hours, together with a waiver of the car-parking requirement. The Tribunal identified the review as one brought under s 77 of the ([1]).
1 cited instrument linked from this judgment.
The applicant’s proposal had originally sought to increase capacity to 180 patrons. The operating hours described in the written submission included Monday to Wednesday, 8 am to 11 pm, and Sunday, 9 am to 10 pm ([3]). During the process, the applicant’s position changed on patron numbers. The Tribunal ultimately set a maximum of 100 patrons on weekdays between 8 am and 6 pm, and 150 patrons at other times ([31]; order condition 5). The permit also specified different operating hours for weekdays, Thursday to Saturday, and Sunday (order condition 4).
The site was in a Business 1 Zone. The judgment records that restaurant use was a Section 1 use under Clause 34.01 and describes Clause 52.06 as setting a restaurant parking rate of 0.6 spaces for each seat available to the public. It also records that Clause 52.06-1 allowed a permit to reduce or waive the number of required spaces ([6]). The site already had five on-site parking spaces. A public car park and street parking were nearby ([4]).
Council refused the application on four grounds: inadequate on-site parking, unreasonable traffic congestion, loss of residential amenity, and adverse effects on available public parking ([7]). The objector, Mr Enticott, operated an antique business nearby. He said parking was difficult to find and that reduced availability would affect his business and customers, who needed time to browse ([19]–[20]).
The applicant called traffic engineer Mr Fairlie. He gave evidence about parking supply and demand, patron travel patterns and occupancy. His evidence was that the peak parking rate was around 0.35 to 0.40 spaces per patron, and that 0.4 spaces per patron was appropriate, excluding staff parking ([24]–[26]). The Tribunal accepted his evidence that traffic and parking effects would be acceptable ([27]). It set aside Council’s refusal and granted a permit subject to 13 conditions ([34]).
The Tribunal’s reasoning turned substantially on the evidence about parking. The Council’s material described a more limited nearby supply and recorded average vacant spaces at different times. It said that 134 spaces were close to the restaurant, with varying average vacancies on Fridays and Saturdays ([16]). The consultant’s earlier report, by contrast, had identified a larger figure, though Council’s submission raised concerns about the accuracy of some figures, including the inclusion of loading bays ([15]–[16]).
The Tribunal did not resolve that material by setting out a fresh numerical inventory of its own. Instead, it accepted Mr Fairlie’s evidence that the restaurant’s expected parking demand could be accommodated ([27]). Mr Fairlie estimated a weekday lunchtime demand of up to about 30 spaces and a Friday or Saturday evening demand of about 60 spaces, based on patron numbers and a rate of 0.4 spaces per patron ([26]). The Tribunal’s conclusion should therefore be read in the context of the expert evidence and the patron limits included in the permit, rather than as a general finding about parking capacity in Hampton.
The patron limits were important to the reasoning. The Tribunal considered the critical parking period to be before 6 pm on weekdays. It accepted the applicant’s position that 100 patrons should be allowed during that period, with 150 permitted at other times ([31]). That is reflected in condition 5. The condition therefore linked the scale of the use to the different parking demand patterns described in the evidence.
On traffic, Mr Fairlie described Hampton Street as a primary arterial road carrying about 14,000 vehicles per day, and Small Street as a local street ([28]). The Tribunal found that the proposal would not make an unacceptable difference to traffic conditions on either road ([28]). Its reasons do not provide a detailed traffic modelling analysis; they record acceptance of the expert evidence and the Tribunal’s conclusion after considering the submissions, planning provisions, policy and site inspection ([29]).
Amenity concerns were addressed through conditions rather than by rejecting the proposal. Condition 6 prohibited detrimental amenity effects from matters including transport of goods, noise, light, odour and waste. Conditions 7 to 9 addressed music and mechanical noise by reference to identified State Environment Protection Policies. Condition 8 also required live entertainment, amplified equipment, public address systems and loudspeakers not to be audible outside the building. The Tribunal explained that audibility offsite was the relevant test for those matters ([30]).
Further controls addressed patron behaviour and waste. Condition 10 required signs asking patrons to leave quietly. Condition 11 required a security person on Thursday, Friday and Saturday nights during December to February, from 9 pm until one hour after liquor sales ceased. Condition 12 restricted removal of bottles and other waste between 10 pm and 7 am. Condition 13 provided for an acoustic fence along the eastern boundary of 16 Small Street if the owner made a request within one month of the permit date.
The decision is therefore best understood as a fact-specific balancing of the parking and traffic evidence against identified amenity concerns, with the permit conditions narrowing and controlling the approved operation. The Tribunal did not say that conditions will always be sufficient in comparable cases. Its findings followed from this proposal, this evidence, and the final conditions.
The judgment does not purport to change or develop a general legal doctrine. It does not discuss prior cases or set out a comparative analysis of competing legal principles. Its legal framework is the statutory review jurisdiction and the planning scheme provisions recorded in the reasons.
Before the Tribunal’s decision, Council had refused the application on parking, traffic, amenity and public-parking grounds ([7], [13]). The existing restaurant had earlier permits: a 1998 permit for restaurant use, an amendment in 1999 permitting later trading on Thursday, Friday and Saturday, and a 2000 permit for buildings and works ([9]). The application at issue sought a further increase in patronage and trading hours ([11]).
After the decision, Council’s refusal no longer stood. The Tribunal directed that a permit issue under s 85(1)(b) of the Planning and Environment Act 1987. The permit authorised the increased patronage and hours, subject to conditions. It also waived the car-parking requirement, as stated in the order.
The judgment’s account of Clause 52.06 is relevant to how the parking issue was approached. The scheme specified a rate of 0.6 spaces per public seat and allowed a permit to reduce or waive the required spaces ([6]). In this case, the Tribunal accepted evidence based on parking demand per patron and nearby parking supply, and used patron limits as a control. The judgment does not state that this method replaces the scheme rate generally. Nor does it explain the detailed operation of the clause beyond the description it provides.
The case therefore illustrates an application of the provisions described in the judgment, not a change to their meaning. Any claim about the present wording or operation of those provisions would require sources beyond this judgment.
At [27], the Tribunal said: “I accept the evidence of Mr. Fairlie that traffic and parking related impacts would be acceptable.” In plain English, the Tribunal accepted the traffic expert’s assessment as sufficient to support a finding that the proposed use’s traffic and parking effects were acceptable in this case.
At [28], it stated that traffic generated by the proposal would not make “any unacceptable difference” to traffic conditions on Hampton Street or Small Street. This is the Tribunal’s case-specific conclusion about the two roads, based on the evidence it had heard. It is not a general conclusion about other developments or other roads.
At [29], the Tribunal said it had considered submissions, evidence, planning provisions and policy, and its inspection, and considered that a permit should be granted. This passage indicates the material the Tribunal treated as relevant to its overall planning assessment. It does not itemise the weight assigned to every factor.
At [30], the Tribunal stated that “the test for all these matters is what is audible offsite.” The discussion concerned conditions about live entertainment, public address systems, amplified equipment and loudspeakers. The Tribunal preferred a condition directed to sound being audible outside the building, rather than treating the matters solely as questions about whether particular equipment was installed.
At [31], the Tribunal accepted a lower patron limit before 6 pm on weekdays and a higher limit at other times. In plain English, it treated the timing of demand as important: weekday daytime capacity was restricted, while the larger capacity applied outside that period.
At [34], the Tribunal concluded that the review was allowed subject to conditions. The order is essential to reading the reasons: the Tribunal did not approve an unrestricted increase. The permit’s hours, patron caps and amenity controls formed part of the outcome.
This decision may be informative where a planning dispute concerns a restaurant seeking increased patron numbers or trading hours, a request to reduce or waive a parking requirement, and evidence about nearby parking availability. The most directly relevant factual features are an existing restaurant, a mixed commercial setting near residential property, public and street parking nearby, and an expert assessment of patron-related parking demand ([4]–[6], [24]–[28]).
It may also be relevant where the decision-maker is considering whether different patron limits should apply at different times. Here, the Tribunal relied on a weekday daytime cap of 100 patrons and a cap of 150 at other times ([31]). It considered that the critical time for parking was before 6 pm on weekdays. A later matter with different peak periods, parking supply, customer travel patterns or neighbouring uses may not be comparable on that point.
The decision may assist in understanding how conditions can respond to particular amenity concerns. In this case, the conditions addressed noise, patron departures, security during part of the summer period, late-night waste removal and a possible acoustic fence. The Tribunal’s reasoning on sound specifically turned on offsite audibility ([30]). The permit also made the fence conditional on a timely request from the neighbouring property owner, rather than requiring it unconditionally.
The judgment should not be treated as establishing that a particular parking ratio, patron cap, trading hour or noise condition will be appropriate elsewhere. Its reasoning depends on the evidence in this case and the conditions imposed. The Tribunal accepted a particular expert assessment; it did not state that 0.4 spaces per patron is a universal planning standard.
The supplied judgment contains no discussion of later decisions and no citations to other judgments. It therefore does not establish how later courts or tribunals have treated this decision. No later treatment can be reliably described from this source alone.
The decision itself is a VCAT Planning List decision delivered by Member G.J. Sharkey on 29 November 2001. Its reasons explain the outcome by reference to the particular planning scheme, submissions, expert evidence, inspection and permit conditions. They do not set out a doctrine of precedent or state that the decision is binding on later decision-makers.
For professional research, the distinction matters: the judgment can be used as an example of how this Tribunal assessed parking and amenity evidence in a particular restaurant permit review, but any account of its subsequent treatment would require later judgments or other legal sources not included here.
Several matters are left unanswered by the reasons. First, the Tribunal does not give a detailed calculation reconciling the differing estimates of nearby parking supply described by Council and the applicant’s expert. It records Council’s concerns about some earlier figures and then accepts Mr Fairlie’s overall conclusion ([15]–[16], [25]–[27]). The precise weight given to each parking survey is not explained.
Second, the decision does not discuss in detail how the scheme’s rate of 0.6 spaces per seat was reconciled with the expert’s assessment of 0.4 spaces per patron. The judgment records both figures ([6], [25]), but does not provide a fuller analysis of their relationship or explain whether the variation reflected a particular decision guideline.
Third, the reasons do not evaluate the objector’s parking evidence through a separate empirical finding. Mr Enticott described the practical effect on his business and customers ([19]–[20]), while the Tribunal’s conclusion relied on the accepted traffic evidence and patron caps. The reasons do not specify how the objector’s account affected the final assessment.
Fourth, the conditions leave practical questions about implementation to the responsible authority. Several requirements operate “to the satisfaction of” that authority, including the restaurant layout, glazing, noise controls and acoustic fence. The judgment does not describe later compliance steps or any subsequent dispute about those conditions.
Finally, the decision does not establish whether the approved use operated as proposed or whether the conditions were later amended, enforced or tested. Those matters cannot be inferred from the judgment.
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Planning Restaurant. Refusal, Car parking, Traffic, Amenity, Application for Review, Allowed, Permit
Medium Neutral Citation [2001] VCAT 2364
It is ordered that the decision of the Responsible Authority is set aside. A permit is granted for increased patronage and increased trading hours, and waiving of car parking for the existing restaurant at 382 Hampton Street Hampton, subject to the following conditions:
1. Before the use starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the advertised plans, but modified to show:
a) The internal layout of the restaurant to the satisfaction of the Council Health Department.
c) Installation of double glazed or laminated glass to all south and east facing windows and glass doors to the satisfaction of the Responsible Authority.
2. The use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. This permit will expire if the use is not started within two years of the date of this permit. The Responsible Authority may extend this period if a request is made in writing before the permit expires or within three months afterwards.
4. Unless the Responsible Authority gives prior written consent the use may operate only between the hours of:
Thursday - Saturday 8am - 1am (of the following day)
5. Unless the Responsible Authority gives prior written consent the maximum number of patrons allowed at the premises at any one time must be as follows:
6. The amenity of the area must not be detrimentally affected by the use or development through the:
a) Transport of materials, goods or commodities to or from the land.
b) Appearance of any building, works or materials.
c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.
7. Music emanating from the premises must comply with the State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2, to the satisfaction of the Responsible Authority.
8. Any live entertainment, amplified equipment, public address system or loud speakers must not be audible from outside the building, to the satisfaction of the Responsible Authority.
9. All noise emanating from any mechanical plant (air conditioners etc.) on the site must comply with the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) N-1, to the satisfaction of the Responsible Authority.
10. Signs must be erected near all entrances and exits to the premises requesting that patrons depart the premises in a quiet and orderly manner so as not to cause any disturbance to nearby residents.
11. Between the months of December and February inclusive, from 9pm on a Thursday, Friday and Saturday evening until one hour after the sale of liquor ceases at the premises that evening or the following morning, a security person must be engaged to control the behaviour of patrons arriving and departing the premises.
12. Bottles and other waste materials must not be removed from the site between the hours of 10pm on any day and 7am on the following day.
13. An acoustic fence must be erected along the full length of the eastern boundary of 16 Small Street, to the satisfaction of the Responsible Authority (generally in accordance with the recommendation of Mr. Peter Fearnside of Marshall Day Acoustics in his report dated 18 April 2001) within three months of receiving a written request from the owner of this property, provided that such request is received within one month of the date of this permit. An acoustic fence is not required adjacent to the dwelling if no such request is received in relation to that dwelling. Any such fence must be maintained by the Permit Holder, to the satisfaction of the Responsible Authority.
The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.
For the Responsible Authority: Ms. J. Bowdern, Legal Support Planner
For the Applicant For Review/ Ms. S. Brennan of Counsel, instructed by
Permit Applicant: Williams, Winter and Higgs, Solicitors.
Ms. Brennan called Mr. R. Fairlie, a Consultant Traffic Engineer, as an expert witness.
1. This is an Application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of a decision of the Bayside City Council ("the Responsible Authority") to refuse to grant a permit.
2. The Permit Applicant was Nick McKimm, whilst the Application for Review was lodged in the name of Nick McKimm on behalf of Tabsy Pty. Ltd. Ms. Brennan requested that the name of the Applicant for Review be amended to be Nick McKimm. There was no objection, and I ordered that the Application for Review be amended accordingly, pursuant to Section 127(1) of the Victorian Civil and Administrative Tribunal Act 1998.
3. Ms. Brennan, in her written submission for the Applicant for Review/Permit Applicant, described the proposal as follows:
"The permit application originally proposed an increase to 180 patrons and hours of use as follows:
Monday to Wednesday 8am to 11pm (an additional 5 hours)
4. Ms. Bowdern, in her written submission for the Responsible Authority, said:
"The site is irregular in shape, with a frontage to Hampton Street of 11.91 metres, a frontage to Small Street of 53.4 metres. The site currently contains a restaurant with on-site parking for five (5) cars to the rear accessed from a right of way that abuts the Sandringham railway line.
The subject site is located on the north-east corner of Hampton Street and Small Street to the south of the railway line that dissects Hampton Street Shopping Strip.
A public car park for 68 spaces exists to the south of the site off Small Street whilst an additional 20 spaces exist in Small Street adjacent to the subject site."
5. Adjoining the subject land to the north is a motor mechanics premises, and on the south side of Small Street, opposite the subject land, is an antique shop and the public car park referred to above. A residential dwelling abuts this public car park to the east. Hampton Street Shopping Strip is characterised by a mix of specialty shops, take away food outlets, restaurants and office uses.
6. The subject land is covered by the Bayside Planning Scheme and is in a Business 1 Zone which is the subject of Clause 34.01. The use is a Section 1 - Permit not required use, pursuant to Clause 34.01-1. Car parking requirements are set out at Clause 52.06, Car parking. The Table to Clause 52.06-5 provides for a restaurant, 0.6 car spaces required for each seat available to the public. Clause 52.06-1 provides that a permit may be granted to reduce or to waive the number of car spaces required by the Table, and also sets out Decision guidelines.
1. The proposal does not provide for adequate on site parking.
2. The proposal will generate unreasonable traffic congestion in the area.
3. The proposal will result in a loss of amenity to nearby residential dwellings.
4. The proposal will have an adverse impact on available public parking in the area.
1. The proposed extension of hours and increase. in patronage for the existing Restaurant is consistent with the orderly and proper planning of the area.
2. The proposed use of the premises will not generate unreasonable traffic congestion in the area or have an adverse impact on the available public parking in the area.
3. The waiving of the car park requirement for the proposed use is reasonable given the existing use of the premises and the car parking generation that will be associated with the increased use.
4. The Applicant addressed all concerns of the objectors and the Responsible Authority in preparing the Application and agreed to permit conditions that would have ensured the premises operated without detriment to the amenity of the area.
5. The Applicant reserves their rights to add further grounds of appeal after perusal of the files of the Responsible Authority.
9. The Responsible Authority issued Permit No. 98/4036 on 14 December 1998 to allow for a restaurant use on the subject land. The permit was amended on 2 August 1999 to allow increased trading hours to 1.00am on Thursday, Friday and Saturday nights. Permit No. 2000/5983 allowing for buildings and works was issued on 8 November 2000. This permit contained conditions limiting the number of persons associated with the restaurant.
"The restaurant contains an existing on premises liquor license for the following hours:
11. Application was made on 21 November 2000 to increase the trading hours and the number of patrons. Subsequent advertising was by way of two signs on the site and mail to adjoining owners and occupiers. There were seven letters of objection and a petition containing 300 signatures in support of the extended trading hours.
12. There was a consultation meeting on 18 April 2001, which was attended by Council staff, the Applicant and a member of the Licensing Division of the Victoria Police. The main issues discussed relate to amenity concerns raised by S & S Crowther, who were Objectors. Ms. Bowdern advised that Mr and Mrs Crowder withdrew their objection on 30 July 2001. Issues canvassed included controlling noise in the public car park and surrounds late at night, caused by people leaving the premises, and the possibility of security guards and acoustic fences were options put forward by the Permit Applicant. No consensus was arrived at.
13. The Officer's Report recommended that a permit subject to conditions be granted. The Responsible Authority, at its meeting on 25 June 2001, decided to refuse the application on the Grounds set out above.
14. Ms. Bowdern said that the Responsible Authority is opposed to the proposal because there was a failure to provide adequate on-street parking. Ms. Bowdern submitted:
"Council also acknowledges the concerns of the objectors related to the lack of parking available for other traders should a 180 patron restaurant be approved. Clause 52.06 of the Bayside Planning Scheme outlines that a restaurant shall provide 0.6 parking spaces per seat available to the public.
Council acknowledges that the Applicant has revised the originally proposed patronage of 180 at all times to a range of between 100-150 patrons as a result of consultation with Council officers. To accommodate for the additional patrons requested this restaurant would need to provide an additional 48 parking spaces when operating with 150 patrons and an additional 18 parking spaces when operating with 100 patrons. A permit is required too for any variations to carparking requirements under Clause 52.06-1 of the Bayside Planning Scheme. In considering any variation Council must consider inter alia:
* The availability of car parking in the locality.
* An empirical assessment of car parking demand."
15. Ms. Bowdern said that a traffic report had been submitted by Ratio Consultants and referred to the Council Traffic Engineers for assessment. The report was based on a survey conducted during peak periods on Fridays and Saturdays, to ascertain availability of parking spaces in close proximity to the restaurant at various times during the day and evening. Ms. Bowdern said that the Ratio report concluded that there were 347 parking spaces in the vicinity of the site and increased demand could be adequately absorbed. She submitted that there are numerous cafes, restaurants and taverns as well as other businesses within Hampton Street which also have to be served by the available parking.
16. Ms. Bowdern submitted that the Traffic Engineers had expressed some reservations as to accuracy of some figures of available car parking, and that in earlier reports the Consultants had inadvertently included loading bays. Ms. Bowdern further submitted:
"Council's Traffic Engineers determine that a total of 134 parking spaces are located in close proximity to the restaurant. Acknowledging that the restaurant is already operating with 70 patrons it was found that:
* On average 15 out of these 134 spaces are vacant on Friday
* On average 35 out of these 134 spaces are vacant on Friday after 6pm
* On average 43 out of these 134 spaces are vacant on Saturday
The average parking ratio applied in practice for a restaurant is 0.4 vehicles/patron. This ratio was generated from on-site customer surveys. Council's Traffic Engineers consider that the parking ratio applied is reasonable and within the usual parking demand generated by a restaurant. Council considers that the additional car parking demand can be accommodated in the area subject to a restriction on patronage numbers.
Council submits that if the Tribunal is to order that a permit should issue then it is recommended that patronage be limited to 100 patrons from Monday to Friday and 150 patrons on a Saturday and Sunday. Permit conditions can outline the total patronage permitted on particular days and at certain times to ensure the use of the site is optimised without compromising parking demands during busier times. Typically, during the evening and weekends patronage could be substantially increased without compromising the availability of parking close to the site."
17. Ms. Bowdern submitted that the proposed extension in operating hours would generate unreasonable traffic congestion in the area.
18. Ms. Bowdern submitted with respect to amenity:
"Whilst some amenity concerns may still remain from the objector's perspective Council considers that the increased patronage will not directly lessen amenity to he nearby residential dwelling. Conversely, the stricter permit conditions that will exist If the Tribunal find that a permit should issue are likely to offset the level of noise that reaches the objectors' dwelling. Council submits that appropriate conditions can successfully address amenity concerns. Further, at the consultation meeting Inspector Michael Cooper signalled police intentions to ensure the requirements of the existing liquor license are complied with. This police action will assist in the reduction of noise levels in public areas.
Council acknowledges and welcomes the fact that the original proposal for 180 patrons has been substantially reduced to a level that is considered to be sustainable in terms of present and potential future parking demands. The patronage levels will be restricted to reflect the varying parking demands over the period of a week. Council submits that the new measures to be introduced will reduce noise emissions and ensure amenity to the nearby residential dwelling is protected as best is possible by Council controls."
19. Mr. B. Enticott, a Respondent/Objector of 370 Hampton Street, made an oral submission and also made reference to the Statement of Grounds that he had previously submitted to the Tribunal. Mr. Enticott operates an antique business at his premises and he said that he had been there for 26 years, and parking was now at a premium. He needs access to his premises during the afternoon, and on the previous evening no parking had been available. He is trying to run a business, and he finds that there is no parking available in the car park or in the street.
20. Mr. Enticott submitted that his existing business would be affected by loss of parking if this proposal proceeded. Mr. Enticott said that antique shops need accessible 90 minute parking spaces so customers can browse. Since the Brown Cow Restaurant, the subject premises, had reopened, the situation had deteriorated. He submitted that it is now almost impossible to find parking in peak periods in Hampton Street on the east side south of the railway line and on the north and south sides at the eastern end of Small Street, and in particular at the northern end of the car park behind the shops.
21. Ms. Brennan, in an oral submission, submitted that the peak time for the subject premises is week day lunch, and Mr. Enticott trades between 2pm and 6pm and there is therefore only marginal overlap. Ms. Brennan submitted that the Responsible Authority and the Applicant for Review/Permit Applicant were not far apart and cited a sentence in the submission of Ms. Bowdern, which was quoted in paragraph 16 above, and which reads:
"Typically, during the evening and weekends patronage could be substantially increased without compromising the availability of parking close to the site."
"The application has been referred to Council's Traffic Engineers who have concluded from traffic surveys and inspections there is car parking available in close proximity to the site. The proposed patronage of 180 is not considered to be sustainable in terms of likely future parking demands. It is recommended a more sustainable option would be a lower number of patrons to ensure car parking in and around Hampton Street is not fully absorbed, especially during peak demand periods.
Council's Health and Enforcement Department have reviewed the application and accompanying documents and considered that amenity can be protected through conditions on a permit and can be closely monitored."
23. Ms. Brennan submitted that Friday night can sustain a high patronage and the evidence supports Monday to Thursday as well. She submitted that the central issue is parking.
24. Ms. Brennan called Mr. R. Fairlie, a Consultant Traffic Engineer, as an expert witness. Mr. Fairlie said that he had inspected the site on two occasions and arranged for detail parking and traffic surveys to be conducted in the vicinity of the subject land on a number of occasions, and had reviewed relevant documents.
25. Mr. Fairlie provided details of parking supply and demand, assessed parking demand in the context of the 0.6 spaces per seat available to the public as set out at Clause 52.06-5, provided details of patron interview surveys with respect to mode of travel and provided details of patron occupancy levels. It was the evidence of Mr. Fairlie, based on the patron surveys, that the peak parking rate per patron during the Friday and Saturday lunch time period ranges from 0.35 to 0.40 spaces per patron, and that a peak rate of 0.4 spaces per patron (exclusive of staff parking) was appropriate. Mr. Fairlie assessed the available parking supply and concluded that parking demands could be accommodated.
"The expected typical peak parking demand of the proposed restaurant during the weekday lunchtime period is expected to be up to about 30 spaces (75 patrons @ 0.40 spaces per patron). This level of parking demand can be accommodated by spare parking supply in the immediate vicinity of the site.
The expected typical peak parking demands of the proposed restaurant during Friday and Saturday evening peak periods is 60 spaces (150 patrons @ 0.40 spaces per patron), with this demand mainly occurring during warm evenings and peaking at about 9:00pm. This level of parking demand can be readily accommodated in suitable nearby on and off-street parking spaces.
On the basis of the level of parking availability during the lunchtime and evening periods, and the proposed cap on patron numbers to 100 patrons during the period 8:00am to 6:00pm weekdays, the proposed not expected to create any adverse traffic or parking impacts in the adjacent road network or the surrounding car parks.
I therefore conclude that the traffic and parking related impacts in relation to the proposed restaurant on land at 382 Hampton Street, Hampton, are acceptable."
27. I accept the evidence of Mr. Fairlie that traffic and parking related impacts would be acceptable.
28. As far as traffic is concerned it was the evidence of Mr. Fairlie that Hampton Street functions as a north-south primary arterial road and carries about 14,000 vehicles per day with one lane in each direction, and Small Street is a local street running east-west between Beach Road and the public car park east of the subject site, and also provides one lane in each direction. I do not consider that traffic generation resulting from this proposal would make any unacceptable difference in traffic conditions in Hampton Street or Small Street.
29. I consider, based on the submissions and evidence, the relevant planning provisions and planning policy, and assisted by my inspection, that a permit should be granted.
30. Ms. Bowdern tendered draft conditions that might be considered in the event that it was directed that a permit issue and submissions were made on those draft conditions. Draft Condition 6 would require that no formal public address system be installed so as to inaudible from outside the building site. Draft Condition 9 would require that no amplified equipment or loud speakers be installed so as to be audible from outside the building. Draft Condition 11 would require that no live entertainment be provided on the premises without the written consent of the Responsible Authority. I consider that the test for all these matters is what is audible offsite. I have included a condition that these matters not be audible from outside the building, to the satisfaction of the Responsible Authority.
31. Draft Condition 5 set down the maximum number of patrons Monday to Friday as 100 and 150 on Saturday and Sunday. Ms. Brennan submitted that 100 patrons be the maximum on Monday to Friday between 8am and 6pm, and 150 patrons at any other time. I consider that the critical time is prior to 6pm Monday to Friday, and I accept the submission of Ms. Brennan that at other times 150 patrons should be allowed.
32. Draft Condition 13 would require that from 9pm on a Thursday, Friday and Saturday evening under one hour after the sale of liquor ceases, a security person be engaged to control the behaviour of patrons arriving and departing. Ms. Brennan submitted that this Application for Review concerns a restaurant and not a tavern, but the Applicant for Review/Permit Applicant would be prepared to agree to such a condition from December to February inclusive. Ms. Bowdern submitted that the requirement might be from December to the end of March inclusive. I accept the submission of Ms. Brennan and I consider that to the end of February would be appropriate.
33. Draft Condition 5 would require an acoustic fence along the eastern boundary of 16 Small Street. Ms. Brennan submitted an alternative draft condition requiring the fence to be erected within three months of receiving a written request from the owner of this property, provided that such request was received within one month of the date of the permit. Ms. Bowdern indicated that such a condition would be satisfactory.
34. For the above reasons this Application is allowed subject to conditions. It is appropriate for a permit to be granted, and I will so order.
McKimm N
Bayside CC [2001] VCAT 2364
The Council’s refusal was set aside. A permit was granted for increased patronage and trading hours, and waiver of car parking, subject to 13 conditions. The responsible authority was directed to issue the permit under s 85(1)(b) of the Planning and Environment Act 1987.