Melbourne CC v Borazio [2009] VCAT 2524

In this case, the responsible authority seeks an enforcement order in relation to the use of the land at 22 Drewery Place by the respondent Jerome Borazio. Mr Borazio admits that he conducts a business on these premises. The name of the business is "Sister Bella". The issue in the case is the correct characterisation of that use.
The responsible authority alleges that the use of the land is as a tavern within the meaning of that expression in the Melbourne Planning Scheme. Mr Borazio denies use of the land as a tavern. He claims to use the land as a restaurant, again within the meaning of that expression in the planning scheme.
The land is located in a Capital City Zone in central Melbourne. In that zone land can be used 'as of right', in other words without need to obtain a planning permit, if the land is used for a restaurant. On the other hand, a planning permit is required to use the land as a tavern.
Accordingly, if Mr Borazio is right, and his use is as a restaurant and a restaurant alone, then he is not contravening the planning scheme.
It is admitted that there is no planning permit to use this land as a tavern. An application for such a permit was contemplated at one stage, but Mr Borazio did not pursue that course. In the absence of the required permit, use of the land as a tavern is a contravention of the planning scheme.
The premises has two stories and is located fronting a lane in central Melbourne. Drewery Lane runs from north to south between Little Lonsdale Street and Lonsdale Street, a short distance to the west of Swanston Street. This means that the lane is on the Elizabeth Street side of Swanston Street. Similar cul de sac lanes form "T" intersections running into the west side of Drewery Lane. They run west from the lane, but terminate without connecting with any other thoroughfare. Two of these lanes are Drewery Place and Sniders Lane. The premises of Mr Borazio, known as 22 Drewery Place, runs north to south between those lanes so as to have an abutment to each of them. Although the address is given as 22 Drewery Place, I am informed that the abutment to Sniders Lane, to the south of Drewery Place, is regarded as the frontage to the premises.
Between the premises and Drewery Lane, and also occupying the space between Drewery Place and Sniders Lane, there is a more substantial property where a business known as Baroq House is conducted.
There are people living in close proximity including those residing in dwellings on the north side of Drewery Place. Ms Bond is one of them.
She and others have complained to the responsible authority about the conduct of the premises. These complaints have been primarily in relation to noise from the premises, including amplified music, late at night.
Complaints have been made to the police in this connection and the licensing police have given the management of Sister Bella a number of warnings. However, until this current application, no proceedings have been commenced by the licensing authorities or the responsible authority under the planning legislation.
These current proceedings are not directly related to noise or noise allegations. There are laws in relation to the generation of excessive noise, but no proceeding has been brought in relation to them. The law of nuisance can be relevant to noise problems. Noise can give rise to public nuisance, private nuisance and/or statutory nuisance such as nuisance under the Health Act. Municipalities like the City of Melbourne, have powers and duties under the Health Act in relation to such nuisances. As I have said, no such proceedings have been commenced. If they were, it would be a matter for the Health Department of the municipality, and not under the planning laws.
There are State Environment Protection Policies in relation to noise. These so called SEPPs are the responsibility of the Environment Protection Authority under the Environment Protection Act 1970. One of these SEPPs is the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No N-1). This SEPP N-1 is a sophisticated policy that sets standards for noise emanating from commerce, industry and trade. It is sophisticated because, amongst other things, it takes account of varying circumstances, including various zonings nearby as well as times of day, background noise levels and the like. By zoning, in this context, I mean zoning under relevant planning schemes.
At one stage, such SEPPs were enforceable under a provision in the Environment Protection Act. I recall the relevant subsection being repealed. I have not gone into the matter for the purposes of this case, but I think it is correct to say that no provision of the Environment Protection Act currently makes it an offence to contravene the provisions of SEPP N-1.
However, it is still a useful policy. It is an important guide as to what reasonable noise levels are in varying circumstances. Furthermore, it is not unusual for a condition in a planning permit to require compliance with SEPP N-1.
If the current use of the land is, or includes, use as a tavern (within the meaning of that expression in the planning scheme), then a planning permit for that use is a legal requirement. It is a contravention, and an offence, to use land for a purpose that requires a planning permit if no such planning permit is in existence. If it is a tavern, then to stay within the law Mr Borazio needs to cease use as a tavern, or obtain a planning permit. If he applies for a permit he might well be granted one, but it may be subject to a condition requiring compliance with SEPP N-1.
If such a condition was imposed, he might apply to this tribunal for a review of it, with a view to having it deleted. However, the tribunal might very well confirm the imposition of such a condition. After all, part of the purpose of the SEPP is to set reasonable limits on the emission of noise so as to prevent people on surrounding premises being subject to unreasonable noise. He apparently prefers not to have to apply for a permit if he can avoid it. Obviously while there is no permit there cannot be a permit condition requiring compliance with SEPP N-1.
Mr Pirrie, on behalf of the respondent, sought to impune the motives of the responsible authority or its officers in investigating the complaints and bringing these proceedings. I find nothing to justify these strictures. The responsible authority has a public duty, imposed upon it by s 14 of the Planning and Environment Act 1987 (PE Act) to enforce and carry out the planning scheme. If it discovers circumstances, whether as a result of complaints or otherwise, that are believed to be in contravention of the planning laws, it is obliged to take action to have the situation rectified. The existence of that statutory duty is sufficient to warrant the current proceedings, where investigations have given rise to a belief that the land is being used as a tavern without the necessary permit.
The position of Mr Borazio is that his use of the land is as a restaurant, and not as a tavern. The position of the responsible authority, as explained by Ms Porritt on its behalf, is that the use of the land is as a tavern, and not as a restaurant. However, I do not accept that the use must necessarily be one or the other of those uses. It is quite possible for land to be used for more than one land use purpose under a planning scheme. Admittedly, activities that are ancillary to a single dominant use, are part of that use. Nevertheless, there can be situations where various activities constitute more than one land use where neither is ancillary to the other.
It follows from this that it is entirely possible for the use of this land to be as a restaurant and as a tavern. In those circumstances the restaurant use is lawful requiring no permit, but the tavern use is currently unlawful unless and until a planning permit is obtained.
Both "restaurant" and "tavern" are defined in the planning scheme. Land use terms are found in cl 74 of the planning scheme. The distinction between them has a degree of subtlety, and calls for some careful consideration. Indeed, there was some debate about the terms and meaning of these expressions at the beginning of the hearing. I understood consensus to be reached between myself and the two representatives of the parties on this point.
Amongst the reasons why some careful consideration is necessary is that both land uses can involve the provision of food and alcoholic drinks for consumption on the premises.
Both restaurant and tavern are varieties of a wider land use term namely "Food and drink premises". Food and drink premises are defined as follows:

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Melbourne CC v Borazio [2009] VCAT 2524 (7 December 2009)

Parties