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[2001] VCAT 407
mixed. The application for review was allowed in part and the Council's decision was varied. The Tribunal ordered amendments to the permit application and directed the Responsible Authority to issue a permit...
1 cited instrument linked from this judgment.
The Tribunal dealt with an objector's challenge to a Council decision approving a replacement RSL club. The objector's concerns included noise, parking and vehicle access. At mediation, the parties agreed to revised plans and conditions. The Tribunal recorded that settlement, amended the application and granted a permit with detailed controls, including acoustic works, a noise monitor, limits on patrons and operating hours, and requirements for parking and landscaping. The reasons do not decide a broad legal principle about planning permits; they explain and give effect to the settlement in this matter.
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1,918 words · generated 01/10/2026
In Mitchell v Hobsons Bay City Council [2001] VCAT 407, H Mitchell sought review of Hobsons Bay City Council's decision to grant a permit for a replacement RSL club at 16 Mary Street, Spotswood. The application was made under section 82 of the ([1]). The Tribunal's reasons describe Mitchell as the objector and the Council as the responsible authority. Spotswood Kingsville RSL Sub-Branch was the permit applicant.
The former RSL club on the site had been destroyed by fire and demolished. The Council report, recounted in the reasons, described a proposal for a new club, 32 additional car spaces, making 56 spaces in total, revised access arrangements and landscaping buffers ([2]–[4]). The proposal did not include poker machines, according to the report quoted by the Tribunal ([3]). The site was in a Public Park and Recreation Zone, and the Council report identified permit requirements for both the use and development ([4]).
Mitchell's stated review grounds concerned the possible effect of a function room, bands and a dance floor on neighbourhood amenity; the adequacy of parking; fencing between the club and a children's playground; vehicle access from Mary Street; and acoustic attenuation ([5]). These were the issues framed by the objector, rather than findings by the Tribunal that any impact had already occurred.
The parties attended mediation on 6 February 2001. The reasons say that the objector was present and that both the Council representative and the permit applicant's representative had authority to settle. They agreed settlement terms and asked the Tribunal to make an order ([9]). The Tribunal then amended the application, including its description of the proposal and the plans, and allowed the review in part ([10], order A and B). The permit was granted subject to 21 conditions.
The result is best understood as a settlement-based planning order. The Tribunal did not provide a detailed evaluation of competing expert evidence or make findings on each review ground after a contested hearing. Instead, it recorded the agreed terms and gave effect to them, stating that a permit was appropriate subject to conditions ([9], [13]).
The Tribunal's stated reason for allowing the application in part was brief. At paragraph 9, Member Sharkey recorded that the parties had agreed settlement terms and requested an order. Paragraph 13 then says that, “[f]or the above reasons”, the application was allowed in part and a permit was appropriate. The reasons should therefore not be read as setting out a broad test for when an RSL club, licensed premises or place of assembly should receive a permit.
The permit conditions show how the settled proposal addressed the issues identified in the proceeding. Noise was addressed through detailed construction specifications, a programmable noise monitor, an acoustic engineer's report before use began, and conditions concerning noise and other emissions (condition 1(a), conditions 2, 5, 8 and 9). Condition 1(a) specified wall, window, door and roof treatments based on reports by Graham E Harding and Associates Pty Ltd. Condition 5 required a suitably qualified acoustic engineer to report whether those measures had been completed satisfactorily.
The conditions also controlled the scale and timing of use. Condition 15 capped the number of people accommodated at 294, stated to be the limit imposed by the Liquor Licensing Commission and consistent with the current liquor licence. Condition 16 restricted use to 9:00 am to midnight, seven days a week, unless the Responsible Authority gave further written consent. Conditions 6 and 7 addressed amenity and nuisance, while conditions 8 and 9 referred to applicable environmental and EPA noise standards.
Parking and site design were addressed through conditions requiring the parking areas and access lanes to be constructed, surfaced, drained, marked and kept available for those purposes (condition 17). Condition 17(f) required markings indicating two-way access. Condition 18 required a masonry kerb separating landscape areas from the proposed car park and accessways. Conditions 1(b) and 20 dealt with landscaping, including a detailed plan and planting near the rear of neighbouring dwellings fronting Melbourne Road.
The objector's concern about Mary Street access appears in the background to the proposal and settlement. The Council officer's statement recorded an intention to construct a barrier preventing vehicle access from Mary Street, and revised plans included fencing along that frontage ([6]–[7]). The final permit conditions refer to the endorsed plans and access arrangements, but the reasons do not set out a separate finding on the merits of that particular concern.
There is also a limited procedural point about condition drafting. The Tribunal noted that it corrected two apparent typographical errors, adding “allow to be created” in condition 7 and “only” in condition 16 ([12]). It also explained that the acoustic report condition was changed so that the report would be supplied before the use started, and that minor amendments and renumbering followed the settlement ([11]).
The judgment does not describe a change in the law before and after the decision. It does not review earlier cases, identify an unsettled legal test, or announce a new rule. The reasons identify the statutory basis for the review as section 82 of the Planning and Environment Act 1987 ([1]) and the order relies on clause 64(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 to amend the permit application. The order also directs the Council to issue a permit under section 85(1)(b) of the Planning and Environment Act 1987.
The judgment's contribution is primarily case-specific. It records how the Tribunal gave effect to an agreed resolution by varying a Council decision and imposing detailed permit conditions. That is different from establishing a general legal rule about the weight of objector concerns, the level of noise that is acceptable, or the parking provision required for a licensed premises. No such general propositions are stated in the reasons.
The permit conditions also should not be treated as universal standards. For example, the 294-person cap, midnight closing time and acoustic specifications are conditions of this permit, on this site, under this settlement. The judgment does not say that those limits apply to other RSL clubs or licensed premises.
At paragraph 5, the reasons list the objector's concerns: the effect of a function room and entertainment on amenity, insufficient parking, fencing, access through Mary Street and acoustic attenuation. In plain English, these were the matters Mitchell wanted the Tribunal to review. Their inclusion does not, by itself, mean the Tribunal found that the proposal would necessarily cause each alleged problem.
Paragraph 9 says that “[t]he parties agreed to settlement generally along the lines set out above, and signed detailed terms of settlement.” This explains the procedural basis for the order. The decision records an agreed outcome following mediation, rather than a reasoned choice between opposing positions on each issue.
Paragraph 10 explains that the settlement also changed the permit application to reflect revised plans, describe the proposal more clearly and change the applicant's name. The order specifies the revised proposal as development and use for a “Place of Assembly and licenced premises, with reduction of car parking.” The spelling “licenced” appears in the order.
Paragraph 11 records a practical change to the acoustic report requirement. Rather than requiring the report before commencement of both the use and development, the revised condition required an acoustic report before the use started, addressing whether the required acoustic measures had been completed satisfactorily. That distinction matters when reading the permit conditions: construction of the acoustic measures and commencement of the use were dealt with at different stages.
Paragraph 13 is the Tribunal's conclusion: the application was allowed in part, and it was appropriate to grant a permit subject to conditions. The order gives the operative detail. It includes conditions on acoustic construction, noise, occupancy, hours, parking, drainage, landscaping and permit expiry. Those conditions, rather than a broad statement of legal doctrine, are the principal practical content of the decision.
The decision is most directly relevant as an example of a planning review involving an objector, a replacement club building, a licensed premises and neighbourhood amenity concerns. Its facts include a former club destroyed by fire, a replacement proposal, extra parking, revised access, acoustic reports and mediation between the objector, permit applicant and responsible authority ([2]–[9]).
It may be a useful comparison where a permit outcome is negotiated and the parties ask a tribunal to formalise settlement terms through a permit and conditions. The judgment shows the kinds of subjects that were addressed in this particular permit: acoustic design, a noise monitor, an engineer's compliance report, hours, maximum occupancy, parking layout and landscaping. It also illustrates how plans and the formal description of an application can be amended as part of the settlement ([10]).
The case is less directly informative where the issue is a contested legal question requiring findings on evidence. The reasons do not evaluate the acoustic reports in detail, determine the actual level of likely noise, or explain why one parking arrangement was preferable to another. Nor do they set out a general rule for balancing residential amenity against the operation of a place of assembly. Any comparison with another matter would need to account for those limits and for differences in the planning controls, site, proposed use, evidence and permit conditions.
The supplied judgment contains no references to later cases and does not report how subsequent courts or tribunals treated the decision. On the available text, no later application, distinction, approval or rejection can be identified. It would therefore be unsafe to claim that this decision has become a leading authority or that later tribunals have adopted its conditions as a general approach.
The judgment itself cites no other case. Its legal references are statutory provisions and planning scheme clauses described in the Council report and order. The decision is accordingly better characterised, on this record, as a fact-specific VCAT order implementing settlement terms than as a judgment explaining a line of precedent.
Several questions remain unanswered by the reasons. The Tribunal does not explain how it assessed the acoustic reports or why the specified construction treatment and noise monitoring were considered sufficient. It does not determine whether the proposed parking provision met a general planning standard beyond recounting the Council report's position ([4]). Nor does it give a separate analysis of the objector's concern about the nearby playground, the proposed fencing or access from Mary Street.
The decision also does not explain the substantive legal criteria governing the review beyond identifying section 82 as the basis of the application. It gives no wider account of how those criteria should be applied to other licensed premises or places of assembly. The conditions may be relevant as an example of controls used in this matter, but their inclusion does not establish that identical conditions are required in other cases.
Finally, the order allows the Responsible Authority to extend the one-year commencement and two-year completion periods if a request is made in writing before expiry or within three months afterwards (condition 21). The reasons do not discuss how that power should be exercised. The judgment provides the condition itself, not an interpretation of its limits or application.
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PLANNING LIST APPLICATION NO. 2000/90940
Planning, Place of Assembly, Licensed Premises, Reduction of car parking, Notice of Decision, Application for Review, Mediation, Consent, Allowed in part, Permit.
RESPONDENT (permit applicant): Spotswood Kingsville RSL Sub-Branch
RESPONSIBLE AUTHORITY: Hobsons Bay City Council
A. The Permit Application is amended, pursuant to Clause 64(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, as follows:
1. The Permit Applicant is to be "Spotswood Kingsville RSL Sub Branch".
"The development and use of the land at 16 Mary Street, Spotswood, for the purpose of a Place of Assembly and licenced premises, with reduction of car parking."
3. Plans numbered SK2D, SK3B and SK4C are to be substituted for plans which formed part of the application.
B. The Application for Review is allowed in part and the decision of the Responsible Authority is varied. A permit is granted for the development and use of the land at 16 Mary Street, Spotswood, for the purpose of a Place of Assembly and licensed premises, with reduction of car parking, subject to the following conditions:
1. Before the development 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 plans numbered SK2D, SK3B and SK4C, but modified to show:
a) Acoustic treatment based on reports by Graham E Harding and Associates Pty Ltd, as follows:
(i) function room walls being brick veneer with sisalation and 50mm glassed wall insulation.
(ii) windows being 10mm laminating or float glass sealed windows, non openable.
(iii) doors being solid core timber with acoustic seals, 10mm glass sliding doors in commercially heavy aluminium frames with two rolls of seals; or two separate sliding doors each with 6mm thick glass and nominally 100mm between doors.
(iv) a metal deck roof on 50mm thick glass wool and sisalation with an air space of between 200 mm and 400 mm height, with 200mm thick rock wall insulation laid in the ceiling space on two layers of 16 mm thick plasterboard or three layers of 13 mm thick plaster board.
(v) a Sontec Programmable Noise Monitor or equivalent, installed in accordance with the manufacturers specifications.
(b) A detailed landscaping plan which includes the planting between the new car parking area and the rear of adjacent dwellings that front Melbourne Road, and including a survey of all existing vegetation on the site.
(c) An external colours and finishes schedule for the proposed building.
2. The Programmable Noise Monitor must be operated and maintained to the satisfaction of the Responsible Authority.
3. The buildings and works and use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
4. The layout of the site as shown on the endorsed plan must not be altered or modified (whether or not in order to comply with any statute, statutory rule or by-law or for any other reason), without the consent of the Responsible Authority.
5. Before the use starts, the permit holder must submit a report by a suitably qualified Acoustic Engineer, to the satisfaction of the Responsible Authority. The report must advise whether or not the acoustic measures required by condition 1 are completed in a satisfactory manner.
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) Emissions of noise, vibration, smell, fumes, smoke, vapour, steam, dust, waste water.
7. The Permit Holder and/or the Manager of the premises associated with the use and development authorised by this permit must not allow to be created a nuisance and annoyance to neighbours or otherwise disturb the amenity of the area, to the satisfaction of the Responsible Authority.
8. The emission of noise or any other emission to the environment derived from activities on the site shall conform to standards contained in the appropriate State Environment Protection Policy or Policies, to the satisfaction of the Responsible Authority.
9. All plant and equipment used on the subject premises shall not emit noise, smell or vibration that exceed the maximum levels permitted under current Environment Protection Authority policy, when measured in accordance specified under that policy, at the nearest boundary of any residential property, to the satisfaction of the Responsible Authority.
10. Exterior lighting shall be provided with suitable baffles and/or located so as to minimise the emission of light outside the site, to the satisfaction of the Responsible Authority.
11. The Permit Holder shall be responsible to meet the cost of all alterations to and reinstatement of the Responsible Authority and any other Public Authority assets deemed necessary and required by such Authorities for the development. The Applicant/Owner shall be responsible to obtain the prior specific written approval of the Responsible Authority or other relevant Authority for such alterations and reinstatements and shall comply with conditions required by the said Authority in relation to the execution of such works.
12. The entire development site must be connected to the existing and sewerage system to the satisfaction of the Responsible Authority.
13. The land must be drained to the satisfaction of the Responsible Authority in accordance with drainage plans approved by the Responsible Authority.
14. Prior to commencement of the development allowed by this permit, the applicant shall obtain the relevant consent in constructing the proposed car parking spaces and associated access lanes over the easement.
15. The total number of persons to be accommodated within the land for which this permit has been issued is not to exceed 294 persons (the limit imposed by the Liquor Licensing Commission), in accordance with the current licence to sell and dispose of liquor.
16. The use of land authorised by this permit is to operate only between the hours of 9:00 am and midnight (seven days a week), without the further written consent of the Responsible Authority.
17. Before the land is used for any purpose, areas set-side for parked vehicles and access lanes as shown on the endorsed plans must be:
a) Constructed to the satisfaction of the Responsible Authority;
b) Properly formed to such levels that they can be used in accordance with the plans;
c) Surfaced with all-weather seal-coat or surfaced with crushed rock or gravel to the satisfaction of the Responsible Authority;
d) Drained and maintained to the satisfaction of the Responsible Authority;
e) Line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority;
f) Pavement markings on the proposed accessway, which indicates `two-way', access to the satisfaction of the Responsible Authority.
Parking areas and access lanes (includes both existing and proposed car parking spaces), must be kept available for these purposes at all times.
18. A masonry kerb (of a minimum height of 150 mm) must be erected along the boundary of the landscape areas and the proposed car park and associated accessways.
19. The vehicle crossing must be designed and constructed to the satisfaction of the Responsible Authority. The relocation of any services including electricity poles and the like shall be at the expense of the development/permit holder.
20. The landscaping provision and schedule shown on the endorsed plans must be completed in accordance with this plan before the land is used for any purpose. The garden areas shown on such landscape plan shall thereafter be used only as gardens and shall be maintained in a proper and tidy condition, to the satisfaction of the Responsible Authority.
21. This permit will expire if one of the following circumstances applies:
a) The buildings and works are not started within one (1) year of the date of this permit;
b) The buildings and works are not completed within two (2) years of the date of this permit.
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.
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: Mr L Mrkonjic, Planning Officer.
For the Applicant for Review/ Mr P De Santo with Mr H Mitchell, the
For the Respondent/ Ms E Priddle, Solicitor of Williams, Permit Applicant: Winter and Higgs, Solicitors
1. This is an Application under Section 82 of the Planning and Environment Act 1987 ("the Act") brought by an Objector for review of a decision of the Hobsons Bay City Council ("the Responsible Authority") to grant a permit in Application No. P00.280.
2. The proposal was described in the Officer's Report as follows:
"Construct a new RSL club, 32 new car spaces (total of 56 car spaces), modification to access arrangements for the site and landscaping buffers. The new car parking area will be constructed in lieu of one of the two bowling greens."
"The site previously accommodated an RSL club (includes the place of assembly, gaming premises and bowling greens). The former RSL club was destroyed by fire less than two years ago.
Having regard to this application, the RSL do not propose to have poker machines (hence, if a new permit is to be issued, no reference with regard to gaming has to be made).
The former RSL club has been demolished and the site cleared. The site also has two bowling greens, open space and ancillary sheds and buildings. The site in question has 26 on-site car parking spaces. The site has existing vehicle access (entry) from Mary Street and an exit access onto The Avenue.
The subject site is bounded by four streets, with the site having two street frontages (The Avenue to the north and Mary Street to the south. A row of six residential allotments that abut the subject site, separate the subject land from Melbourne Road. Similarly, the west a narrow public recreation reserve and tennis club, separates the subject site from Cullen Street.
Apart from the park to the west of the site and vacant land directly opposite the subject site along the Avenue, the site in question is surrounded by residential dwellings.
Further to the north of the subject site is the Westgate Freeway."
"The subject land falls within the Public Park & Recreation Zone_. A permit is required for the proposed use of land pursuant to Clause 36.02-1 of the Planning Scheme (section 1 use where the condition has not been met)._
A permit is required for the proposed development pursuant to Clause 36.02-2 of the Planning Scheme.
The proposal does not contravene the decision guidelines stated under Clause 36.02-6 of the Planning Scheme.
A new planning permit is required to rebuild the new RSL club as fire destroyed more than 50% of the gross floor area of a building, pursuant to Clause 63.10 of the Planning Scheme (Damaged or destroyed buildings or works).
With respect to the proposed car parking layout (for the additional car parking spaces and associated accessways); the requirements of Cluse 52.06-4 of the Planning Scheme. The proposed car parking layout is consistent with the requirements of this clause.
With regard to the car parking provision, the proposal should be supported as it is the replacement of a building (same use), with a similar floor area but it has an additional 32 car spaces.
The proposed car parking provision is justified as it exceeds the requirements for existing use of land, which is outlined in this section of the scheme, where additional car parking provision should only be provided to the additional area that is proposed. Although the proposal cannot be treated as an existing use of land (due to Clause 63.10), discretion must be exercised to this proposal as the use it not altering in any way. As a result the additional parking to be provided on the site is more than fair and just.
On the basis of Clause 52.27 of the Planning Scheme regarding Licensed Premises, if a new planning permit is issued for the new RSL club, the permit must include provision for a licensed premises. In terms of planning implications associated with having a licensed premises is consistent with the former building that was burnt less than two years ago.
Having regard to the Licensed Premises component of the proposal, this application was referred to the police. They have requested that a number of conditions are to be added to the permit. These conditions are considered justified by Council's Planning Department, as they will help to maintain the amenity of the surrounding area/residents."
"1. Concerns about the use of land, which includes a function room for bands and a dance floor, which could affect the amenity of the surrounding area.
2. Insufficient car parking, considering the proposed floor area and adjacent land use (motorbike club).
3. The licensed club and an adjacent children's playground should be fenced.
4. Vehicular access via Mary Street should be denied for RSL patrons and directed exclusively to The Avenue.
5. Inadequate acoustic/noise attenuation measures."
"The `conclusion' of the delegates report sums up Council's stance why the proposal should be supported:
"Overall, subject to amended plans being submitted outlining appropriate acoustic measures, the proposal should be supported by Council. The additional parking and more appropriate access arrangements will lead to a use/development that will lead to reduced off-site impacts.
Furthermore, the former R.S.L Club had a floor area of 458 square metres. The new proposal will be smaller, having an area of 313 square metres. Also, the new proposal will not be a gaming venue, as poker machines will not be installed, unlike the old premises that were destroyed by fire.
Also, the new premises will be `purpose-built' to appropriate building standards, taking into account the appropriate acoustic measures, which helps safeguard the amenity of nearby residents, in addition to appropriate conditions on the permit. The proposed building is considered to be well articulated and an appropriate replacement for this site."
In response to the `grounds of appeal' the applicant has confirmed that they intend to undertake the following measures, which include:
* A fence along the Mary Street frontage, adjacent to the proposed building.
* Construction of a barrier to prevent vehicular access to the subject site from Mary Street.
* A chain link fence to be constructed, separating the RSL Club from the playground.
* Appropriate acoustic measures (to be incorporated into the proposed buildings and works), including the installation of a music noise monitor."
7. Ms Priddle, for the Respondent/Permit Applicant, tendered revised plans which provided for fencing around the playground and fencing along Mary Street.
8. I was provided with copies of two reports from Graham E Harding and Associates Pty Ltd, Consultants in acoustics, noise and vibration. The first report dated 17 July 2000 provided three options for acoustic treatment to deal with noise resulting in music/entertainment. The report set out three options, which were designated A, B and C. The second report suggested installing a Music Noise Monitor and also set out a modification for option B.
9. The Applicant for Review/Objector was present at the mediation. Mr Mrkonjc, for the Responsible Authority, and Ms Priddle, for the Respondent/ Permit Applicant, both indicated that they had authority to settle. The parties agreed to settlement generally along the lines set out above, and signed detailed terms of settlement. The Victorian Civil and Administrative Tribunal was requested to make an Order. Those terms of settlement have been placed on the Tribunal file and an order will be made accordingly, allowing the Application for Review in part, and directing that a permit be granted subject to conditions as agreed.
10. The terms of settlement also provide for the permit application to be amended to take account of the revised plans, to better describe the proposal, and to change the name of the Permit Applicant.
11. Condition 4 in the Notice of Decision to Grant a Permit would have required that prior to the commencement of the proposed use and development an acoustic report be submitted. The new paragraph 4 will provide that before the use starts an acoustic report be provided that advises whether or not the acoustic measures required have been completed. There were also some minor amendments to condition 8 and condition 10, with deletion of Condition 20 which was no longer necessary. The terms of settlement also provided for renumbering of permit conditions.
12. I have corrected what would seem to be two typographical errors, namely by addition of the words "allow to be created" in line 2 of Condition 7, and "only" in line one of Condition 16.
13. For the above reasons this Application is allowed in part, subject to conditions. It is appropriate for a permit to be granted, and I will so order.
Mitchell
Hobsons Bay City Council [2001] VCAT 407
The application for review was allowed in part and the Council's decision was varied. The Tribunal ordered amendments to the permit application and directed the Responsible Authority to issue a permit for development and use of the land as a Place of Assembly and licensed premises, with reduction of car parking, subject to conditions. The permit included a 294-person maximum, operating hours of 9:00 am to midnight, acoustic and noise controls, parking and landscaping requirements, and expiry provisions.