Mr Martin Pirrie, barrister, appeared on the instructions of Simon Parsons and Co solicitors for the respondent Jerome Borazio. He presented written and oral submission and called two witnesses who gave sworn evidence. They were Francis Thomas Busby, architect and the respondent.

Each witness, in addition to giving sworn evidence, adopted the contents of a written witness statement, with or without corrections.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the tribunal.

Application under s 114 of the Planning and Environment Act 1987 for an enforcement order.

Use of the land as a tavern within the meaning of the Melbourne Planning Scheme without a planning permit required by that planning scheme.

Capital City Zone, Schedule 2, and a Design and Development Overlay, Schedules 1 and 2, under the Melbourne Planning Scheme.

Lot 1 on Title Plan 335712G being the Land in Certificate of Title Vol 9649 Folio 510

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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:

Food and drink premises Land used to prepare and sell food and drink for immediate consumption on, or off, the premises.

1. Food and drink premises is a subset of a yet wider land use of "Retail premises". That land use term is defined as follows:

(a) sell goods by retail, or by retail and wholesale;

1. The land use "Restaurant" is defined as follows:

Restaurant Land used to prepare and sell food and drink, for consumption on the premises. It may include:

(b) the supply of liquor other than in association with the serving of meals provided that tables and chairs are set out for at least 75% of patrons present on the premises at any one time.

1. That is the defined meaning for the purpose of the planning scheme. I think that in ordinary English restaurant involves the concept of serving meals with or without liquor. Although this definition refers to the word "meals" the essential definition is the first sentence quoted above which refers to the sale of "food and drink", rather than necessarily "meals".
2. The essence is the sale of food and drink for consumption on the premises. However, the definition goes on to refer to some other things that might be described as optional extras. The land use does not cease to be restaurant because of the provision of entertainment or dancing. They are specifically included in the definition. However, entertainment and dancing are not necessary, and a land use can just as well be restaurant without either of them.
3. Under this definition, there can be a further optional extra whereby liquor can be supplied without meals providing the ratio of tables and chairs to patrons is observed.
4. The gist of the land use is the preparation and sale of food and drink for consumption on the premises.
5. The definition of tavern is:

Tavern Land used to sell liquor for consumption on the premises. It may include accommodation, food for consumption on the premises, entertainment, dancing, amusement machines, and gambling.

1. Here the essential element is sale of liquor for consumption on the premises as opposed to the restaurant with its preparation and sale of food and drink for consumption on the premises.
2. Tavern also has its optional extras and these include food for consumption on the premises along with entertainment and dancing. These extras can be included and their presence will not exclude the concept of tavern. However, they are not essential to the concept and a place can be just as much a tavern without any of them.
3. A place of business that is simply a bar with no food would be a tavern but not a restaurant. Nevertheless, a tavern may have food for consumption on the premises as with a restaurant. Restaurant can sell liquor without meals providing the formula is met. The distinction between the two concepts lies in the meaning of the first sentences in each of the respective definitions.
4. The evidence called on behalf of the responsible authority, standing alone, would be indicative of tavern rather than restaurant. It indicates the presence of significant numbers of patrons who are drinking alcohol but with little or no food at all, and with hardly any evidence of proper meals eaten at tables with knives and forks as opposed to snacks and nibbles eaten with the fingers. Even snacks and nibbles are rare enough. It is admitted that there is a proper commercial kitchen, but it was uninhabited during most of the inspections and was not in use. Photographs so it cleaned up as if not being used or as having been cleaned up after use.
5. Most of the inspections were late at night after 10 pm and in proximity to the hours of 10.30 pm to 1.00 am the following day.
6. There were two inspections at lunchtime. Again, there was no great evidence of meals or diners, although three people in chef or kitchen attire were observed.
7. It is evident from their evidence that the planning enforcement officers who conducted inspections on behalf of the responsible authority concentrated on patrons drinking and the absence of eating, and did not pay great attention to the stocks of food available on the premises, available to kitchen staff or to the activities of kitchen staff when they were observed.
8. There was little or no evidence as to discussions with or admissions by Mr Borazio or managers conducting the business on his behalf when he was absent.
9. Judging on the evidence called on behalf of the responsible authority, and relying on that evidence alone, I would conclude that the use of the land was as a tavern and not a restaurant. The almost minimal presence of food, and that almost never being in the form of substantial meals, together with the condition of the kitchen at the time of the late night inspections indicate significant socialising and drinking but only very minor and ancillary eating.
10. However, other evidence was given by and on behalf of Mr Borazio. This includes photographs and other documents indicating the presence of significant amounts of food consistent with the preparation of meals and with the consumption of food on the premises being a significant part of the land use. Mr Borazio also relies on other indications of food available for consumption on premises including specials written up on a mirror and menus.
11. The evidence called on behalf of the responsible authority includes only two visits at lunchtime and none at all during what would normally be peak time for dinner at a restaurant namely a period of approximately 6.30 pm to 9.30 pm. I accept Mr Borazio's evidence that 7 pm to 9.30 pm or thereabouts is peak at his place with diners finishing up their meals at around 9.30 pm to 10 pm or perhaps onto 10.30 pm. According to him, kitchen staff get busy on cleaning up after orders for meals recede. The possibility of ordering food continues for a while, even during cleaning up, although the range available becomes limited. Nevertheless, on all the evidence from both sides I find that activities later at night changeover from the preparation and provision of meals to consumption on the premises to the provision and consumption of liquor on the premises with this later being predominant for the last 2 ½ hours or thereabouts, leading up to closing time at 1 am.
12. I accept that the definition of restaurant does not require patrons to leave immediately upon finishing their food. Indeed, the perhaps somewhat loose definition in relation to the 75% ratio means that a restaurant can operate simply as a bar in relation to a proportion of its patrons who need not eat food at all.
13. While I accept that, I nevertheless find, on the evidence in this case, that for a significant period in the order of 2 to 2 ½ hours late at night and in the first hour of the morning the premises and the activities thereon do not meet or satisfy the definition of restaurant, but do satisfy the definition of tavern.
14. If patrons carried over drinks and coffee after eating for a moderate period, that would still come within restaurant. On the evidence in this case, and my findings in relation to it, I ask myself whether this holding over after food supply ceases or is drastically curtailed for as long as 2 or 2 ½ hours, as compared with a carry over period of 30 or 45 minutes, does not in fact constitute a second land use as tavern. I consider the "tavern" period to be too considerable to be regarded as a mere incidental of the restaurant use.
15. I do not think that the evidence called by the responsible authority is sufficient to prove on the basis of the balance of probabilities having regard to the seriousness of the consequences that might flow, that there is no restaurant here. On the other hand, the vital question is not whether this is a restaurant, but whether the business is or includes a tavern. I do not think that the tavern activities for so substantial a period as 11 pm to 1 am is merely an ancillary or subsidiary part of the restaurant. I think it constitutes a separate use as a tavern. As such, it requires planning permission, and conduct of the business in its presence style, in my opinion, requires a planning permit for use as a tavern. In the absence of such a permit, the current use as a tavern is a contravention of the planning scheme warranting the making of enforcement orders.
16. I propose to make an enforcement order that the use of the premises as a tavern cease after 30 days from the date of the order. This affords Mr Borazio a breathing space to decide whether to modify his activities to stay within the definition of restaurant without also straying into use as a tavern, or whether he will seek permission for use of the premises as a tavern.