WILL THE INCREASE IN DRIVE-THROUGH HOURS CAUSE ANY UNACCEPTABLE NOISE IMPACTS?

1. Hungry Jack's Pty Ltd ('Hungry Jack's') relies upon the evidence of Mr Weston who, in summary, supports the proposal on the basis that the operation will not create unreasonable noise impacts. Mr Weston identifies two initiatives that could be implemented for relatively 'minimal effort and cost to implement[6]'. These are:
   • Implement an additional 1 metre barrier above roof parapet on the north and east elevations; and
   • Prior to closing of the onsite dining and sales, the car parking to the east of the drive through access to be cordoned off.
2. It was Mr Weston's evidence that the parapet extension of the north and east elevations, with no gaps or holes have the potential to reduce noise output five to ten decibels. The parapet extension would benefit nearby properties during the day in addition to the proposed overnight trade.
3. The recommendations by Mr Weston through evidence are in addition to those acoustic recommendations already made in the Acoustic Dynamics report dated 9 April 2024[7] and have been incorporated into condition 28a of the NOD. More specifically the Acoustic Dynamics report recommends:
   • Installation of signage reminding staff and patrons to be aware of their neighbours, and behave and leave in a quiet manner
   • Induct staff to be considerate of neighbours, particularly when arriving and departing from the site
   • Glass bottle and rubbish disposal must be conducted between the hours of 7:00am and 8:00pm on weekdays/Saturdays and 9:00am and 8:00pm on Sundays/public holidays
   • Staff to exercise care when disposing of waste in the dumpsters and avoid slamming of lids
   • Implement a noise management plan
   • Key roles and responsibilities of restaurant manager or operator and staff
   • Complaint procedure.

1. Our observations onsite confirm that Nepean Highway is already a notable noise source for some of the residential properties within Howell Street. We did a similar exercise to that of Mr Weston observing localised noise sources when there was a break in the Nepean Highway traffic. This allowed us to observe the noise output of Hungry Jack's itself.
2. Whilst we make this observation that Nepean Highway already creates noise emissions that potentially impacts upon more sensitive residential amenity nearby, it does not follow that Hungry Jack's should be unconstrained in noise emissions and appreciate that the nature of the noise emissions is a factor in determining the potential amenity impacts that arise.

1. Despite the applicant submitting that the predictive modelling does not resemble lived experience, we find that the data contained within Mr Weston's witness statement a reasonable representation of potential noise modelling if the drive through were to operate overnight.
2. It is an accepted methodology to use predictive modelling in a proceeding of this type to quantitatively assess potential impacts given town planning is assessing a future experience or impact. We appreciate that there will be variation to noise emissions at different times of the day and seasonally, but nevertheless accept that the evidence presented will be a broad presentation of the potential noise impacts.
3. Similarly, the number of customers will vary over the day. Mr Weston bases his analysis on one customer every three minutes. We were interested to note that if the number of customers were doubled, the noise output will only be an additional three decibels.
4. We accept the conservative approach taken by Mr Weston in calculating the individual noise limit for each receiver and selecting the lowest calculated noise limit as the target noise limit for all sites and the use of all plant and machinery operating at full capacity.
5. Whilst we accept the 'margin of error[8]'is small, we acknowledge Mr Weston's recommendation regarding the parapet extension would result in a lower mechanical plant output and create a greater buffer for error.
6. We have no contrary evidence to that of Mr Weston.

1. The applicant submits that at present, there are unacceptable impacts that arise from the current operation, and that an extension of the hours would allow those same impacts to occur during a period of the night where there is current reprieve.
2. We do not accept the first principle that businesses cannot or should not operate overnight to give nearby residents a reprieve. This is not a concept that is underpinned by planning policy.
3. However, Mr Weston has included in his evidence a sleep disturbance assessment that adopts the NSW EPA Road Noise Policy, March 2011 ('NSW RNP'). This publication has been used by Mr Weston in the absence of any other Victorian publication or a quantitative tool contained within the Victorian planning system.
4. When questioned by the Tribunal on why he had not referred to the Environment Reference Standard[9] for ambient noise at night, he stated that he considered them to be quite subjective and that they only provided guidance.
5. In adopting the NSW RNP he noted that it been informed from extensive survey of studies conducted world-wide and it found that:
   1. Maximum internal noise levels below 50-55 dB(A) are unlikely to awaken people from sleep; and
   2. One or two noise events per night with maximum noise levels of 65-70 dB(A) are not likely to affect health and wellbeing significantly.
6. Mr Weston's evidence was that modelling showed that external maximum noise levels outside complied with the lower rage of the external noise criterion with the most affected house with a level of 60 dB(A) Lmax . Other homes have even a greater level of compliance.
7. The NSW RNP is non-mandatory in that it does not have regulatory force in Victoria. However, it has been widely used in Victoria by consultants and is a useful guide for considering the acceptability of amenity impacts. We consider that that assessment of sleep disturbance by Mr Weston showed acceptable noise amenity levels.

1. We accept Mr Weston's evidence that the existing brick wall as an acoustic barrier is effective in mitigating noise impact.
2. Based upon the evidence of Mr Weston we are not persuaded that it is necessary to create additional acoustic treatment around the drive through collection point. We say this as the ordering point with the use of speakers is located on the Nepean Highway frontage away from the nearby residences, the location of the aforementioned brick fence, and the distance to the nearby dwellings across the road with a front garden.
3. Mr Weston states that the existing acoustic fences are in relatively good condition, although submissions were made about the presence of gaps and holes, which we observed during our site inspection. We have added a condition to the permit that requires the site management plan to outline a process to regularly inspect the acoustic fences to ensure that they are fit-for-purpose.

HOW DO NON-COMPLIANCES WITH EXISTING PERMITS IMPACT ON THE PROPOSAL BEFORE THE TRIBUNAL?

1. The applicant is very frustrated with what they say are amenity impacts arising from the permit holder not complying with current conditions of the planning permit. The applicant states that in this case, the business is not a good neighbour.
2. Whilst the concept of kind and considerate neighbours is ideal, it is just that, ideal. We cannot base our determination based on the behaviour of the business- whether good or bad behaviour.
3. The current proceeding is not an application for an enforcement order or interim enforcement order where the matter to be determined is whether the permit holder is contravening any permit conditions.
4. The Tribunal is not a punitive jurisdiction in that it does not refuse permits solely because of past breaches. Our consideration in this matter is whether it is appropriate to allow the extension of the trading hours. The Tribunal must assess the current proposal against relevant planning policies and controls with respect to the proposal only.
5. In arriving in our decision, we must be confident that the permit holder can reasonably comply with conditions of any amended planning permit and judge the proposal on the basis of planning merit, rather than the specific management style of the permit holder.

1. It is not relevant to our determination whether Hungry Jack's has operated a 24 hour service without the necessary approvals. It is a well-established principle[10] of the Tribunal that in the case of retrospective approvals that a permit applicant should neither be punished nor rewarded for undertaking the proposal before a permit was obtained, and that the proposal is to be judged on the planning merits.

1. Furthermore, any noise sources arising from the internal renovations of the building is not a matter before the Tribunal as internal works or renovations are not a matter subject to planning approval.

1. Condition 22(d) of the NOD appropriately sets out no waste collection or deliveries before the hour of 8.00am (unless by a contractor engaged by the Council) or after the hour of 6.00pm on any day.
2. Whilst there was a lot of material presented by the residents suggesting that potentially deliveries and waste collection were being undertaken outside these hours, the proposal does not seek to change this condition and therefore it is not before the Tribunal in this proceeding.
3. The applicant also submits that staff slam the dumpster bins when disposing of waste. Historical material suggest that the dumpsters typically sit within the eastern portion of the car park and are proximate to nearby residential properties and the Tribunal appreciates how this may be a disturbance to nearby residential properties, particularly overnight.
4. With the extension of the trading hours, we find that it is appropriate to impose an additional condition on the amended permit that limit the disposal of rubbish into the dumpsters (or external bins) within the hours of operation of the on-premises sales and dining of condition 22(a).
5. The approach to limit hours of waste disposal is akin to conditions commonly imposed on licenced food and drink premises where bottle handling may be restricted during the night time[11] period. The inclusion of a condition of this nature was supported in the evidence of Mr Weston.
6. When the Tribunal inspected the site, the dumpster bins that were referred to extensively in the hearing were located within the building and behind a roller door. We do not know what noise issues might arise if the roller door is accessed overnight. Whilst we appreciate that the operation of the site may have been adjusted following the hearing, we find that it remains appropriate to impose a condition on the amended planning permit to restrict the disposal of waste overnight, even if the dumpsters are located within the building envelope.

1. We do not find that visitors accidentally turning into Howell Steet instead of the car park entry of Hungry Jack's as a matter to refuse the application. While there may be an element of frustration, there was no material put to the Tribunal that Howell Street does not have capacity to accommodate the traffic.
2. Similarly, no issue arises with any oversized vehicles lawfully parking in Howell Street to visit Hungry Jack's.

1. Odour was not identified as an issue in any of the written submissions by the applicants. One of the applicants in their oral submission reported that they had at times experienced a cooking oil type odour varying in intensity.
2. Hungry Jack's submits that the extension of the trading hours will not lead to any unreasonable increase in emissions of noise and food smells compared to the present operation.
3. The Tribunal is aware that odour impacts affecting enjoyment of residents' residential properties can be controlled by the relevant authorities such as the local council or Environment Protection Authority Victoria.
4. The extension of the operating hours to allow drive-through operations at night when people are generally indoors, should not lead to a change in amenity that would warrant refusal of the application.

1. No additional lighting was proposed to be installed as a consequence of this application. The drive-thru is largely fenced along Howell Street which screens the lights from cars within the drive-thru.
2. We are satisfied that the existing measures such as the fencing, landscaping along the drive-thru and with the Howell Street entry to the premises permanently closed provides appropriate measures to prevent any unreasonable headlight glare during the extended hours.

Anti-social behaviour and congregation within the car park

1. The applicant raises existing issues with potentially anti-social behaviour occurring within the car park and near the dumpster bins when they are left within the car park. The Tribunal notes that the particular events cited in the submission appear to have occurred whilst the convenience restaurant was in operation, and not during the overnight period, subject to this proceeding.
2. The town planning system is not designed to fix every issue associated with the use and development of property. A notable case with respect to this is Hunt Club Commercial Ply Ltd v Casey CC[12] at paragraph 15:

Town planning is not a panacea for all perceived social ills, nor is planning decision-making a forum for addressing all issues of social or community concern. At its heart, planning is about the use, development and protection of land. It has a spatial context that is primarily concerned with the fair, orderly, economic and sustainable use and development of land. Town planning does not involve itself in moral judgements nor, subject to this locational or spatial perspective, in the operation of a competitive market economy in which certain goods and services are lawfully made, sold or consumed. Whilst town planning seeks to secure a pleasant, efficient and safe working, living and recreational environment, it is not the role of town planning to address all issues of public health, nor to regulate the pricing or general availability of a product to manage the health and well being of a society.

1. The evidence of Mr Weston includes a recommendation to cordon off part of the car park closest to 4 Howell Street. The Tribunal finds that this is an appropriate recommendation given that the car park is not needed and we recognise that this section of the car park is in proximity to residential properties. We are satisfied that the cordoning off part of the car park overnight will not affect the other commercial premises that are serviced by these car parking spaces.
2. However, even with the cordoning off the corner the car parking to the east of the drive through access, there remains 28 car parking spaces available for patrons to potentially park their cars after collecting their food via the drive through.
3. We appreciate that the type of noise generated from patrons congregating in the car park of Hungry Jack's could be sudden and intermittent, rather than a regular and constant noise.
4. We note the observation of Mr Weston that during his attended noise measured at night on 11/12 April 2025 that:

Drive-through vehicle noise, patron noise and carpark activities were audible within the carpark area, however, were not audible on Howell Street, even in the short quiet periods when breaks in traffic occurred.

1. Mr Weston evidence was that he had considered the maximum noise level of cars (car doors slamming and vehicle start up) as well as patrons shouting within the car park used to assess potential sleep disturbance impacts. He concluded that the subject site could operate without unreasonable noise impact.
2. We are persuaded that noise and disturbance arising from the potential use of the 28 car parking spaces near the Nepean Highway frontage overnight will not be of a level that would warrant the refusal of the amendment. We say this particularly given the distance of these car parks from the dwelling at 4 Howell Street at approximately 20 metres away and 45 metres when measured to 5 Howell Street, with acoustic fences in situ.

1. No evidence was presented that suggests the impact that the increase in trading hours may have on property values.

1. The nature of the proceeding before the Tribunal does not extend to whether the council had delegation to determine the amendment application. Council delegations are regularly reviewed and adjusted. Even if other amendments to this permit have been presented at a council meeting does not mean that in this instance council has erred in its decision making.
2. At any rate, clarity is provided under section 4(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) that a review of a decision includes a decision that purports to be made under an enactment even if the decision was beyond the power of the decision maker.

1. The applicant states that there are 75 signatories to the objection to the amendment application. Under sections 60(1B) and 84B(2)(jb) of the Planning and Environment Act 1987 (Vic), responsible authorities and the Tribunal must have regard to the number of objectors in considering whether a proposed use or development may have a significant social effect.
2. Consistent with the Supreme Court of Victoria decision of Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd[13] opposition by a section of the public is not, in itself, evidence of a significant social effect.

1. For the reasons given above, the decision of the responsible authority is varied. An amended permit is granted subject to conditions.

1. Before the commencement of the amended starting time approved as part of application GE/PP-20020/2007/C, 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 must show:

(a) A site plan and elevations showing the extent of the acoustic barrier for the roof plant equipment, generally as set out in paragraph 10.4 of the Statement of Evidence of Matthew Allan Weston, dated 26 May 2025. The design of the acoustic barrier must be supported by a further acoustic report prepared by a suitably qualified acoustic engineer that details proposed materials and minimum density requirements, and integrated into the building to the satisfaction of the Responsible Authority.

(b) A site plan showing the locations of all noise management direction signs as set out in Section 7 (Directional Signage) of the Site Management Plan endorsed on 31 August 2010. The size and materials of the signs must also be included on the plan, which are to be to the satisfaction of the Responsible Authority.

(c) The Howell Street car park entrance closed.

(d) Any other changes to reflect existing site conditions.

1. The layout of the site and the size of the proposed buildings and works as shown on the endorsed plan shall not be altered or modified (whether or not in order to comply with any Statute, Statutory Rule or By-Law or for any reason) without the consent of the Responsible Authority.
2. The area set aside for the parking of vehicles and so delineated on the endorsed plan shall be made available for such use and shall not be used for any other purpose and the boundaries of all vehicle spaces and access lanes shall at all times in conformity with the plan can be clearly indicated on the ground.
3. The areas set aside for parking of vehicles together with the aisles and drives shall be paved with an adequate thickness of material as necessary to prevent the formation of potholes and depressions according to the nature of the subgrade and the vehicles which will use the areas. The areas shall be sealed and adequately drained and maintained continuously in a usable condition.
4. The direction in which vehicles are to travel shall be clearly indicated on the ground.
5. Directional signs shall be erected on the land within 3 metres of the street frontage where appropriate indicating the car parking areas. Such signs shall not be less than 0.2 square metres area and shall clearly indicate the areas set aside for parking.
6. Where cut or fill is necessary along any boundary for the provision of car parking or access lanes as shown on the endorsed plan and retaining wall constructed to the satisfaction of the Responsible Authority shall be erected on any such boundary.
7. All redundant vehicular crossings shall be removed and reinstated with kerb, channel, footpath and nature strip to the satisfaction of the Responsible Authority.
8. The landscape plantations shown on the endorsed plan shall be established as garden areas and maintained continuously to the satisfaction of the Responsible Authority.
9. The plantations along the street alignment shall be trimmed with a kerbing of a minimum height of 225 millimetres and width of 150 millimetres and such kerbing shall be erected in positions that will prevent vehicular access to the street other than where driveways are provided and will also prevent vehicles being positioned beyond the limit of the site.
10. The use hereby permitted shall not be commenced until such time as a Certificate of Registration has been issued by the Council pursuant to the Health Act of 1968.
11. The loading and unloading of vehicles and delivery of goods to and from the store or other places where goods are or are to be kept shall at all times be effected within the curtilage.
12. No goods or packaging materials shall be stored or left exposed outside the buildings so as to be visible to the public from the road.
13. All lights fittings shall be provided with suitable baffles so that no direct light is emitted outside the site.
14. No water shall be discharged from the site other than by means of an underground pipe drain discharged to an approved outlet in the street or to an underground pipe drain to the satisfaction of the Responsible Authority.
15. No billiard tables, pinball machines, amusement machines or vending machines, other than those dispensing cigarettes or drinks in sealed containers, shall be installed in the premises.
16. This permit shall have no force or effect until a plan of subdivision to create the site shown on the endorsed plan has been sealed by the Council and approved by the Office of Titles.
17. The use hereby permitted shall not cause injury to or prejudicially affect the amenity of the locality by reason of the transportation of materials, goods and commodities to and from the premises or by reason of the appearance of any building, works or materials or by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or of the presence of vermin or otherwise.
18. Speed deterrent devices shall be installed on the site and designed and located all to the reasonable satisfaction of the Responsible Authority.
19. Provision shall be made on the site for the parking of all vehicles used in connection with the activities of the use, and the occupiers shall at all times use their best endeavour to ensure that no vehicles under the control of persons patronising the café are parked in the streets nearby.
20. The occupiers shall use their best endeavours to ensure that no litter emanates from the property.
21. Hours of operation:

(a) Save with the consent of the Responsible Authority the restaurant premises shall only be open for trading with the public between the following hours:

(b) The drive-thru may operate 24 hours, seven days per week.

(c) Deleted.

(d) Refuse and rubbish shall not be collected form the subject land, and no deliveries of goods shall be made on the subject land, before the hour of 8.00am (unless by a contractor engaged by the Council) or after the hour of 6.00pm on any day.

(e) The disposal of rubbish into dumpsters (or external bins) within the hours of operation outlined in condition 22(a).

1. Deleted.
2. No provision shall be made for live entertainment or for dancing and no external sound amplification equipment or loud speakers shall be used for the purpose of announcements, broadcasts, playing of music or similar purposes.
3. Unless the use or development hereby permitted is commenced within two years from the date hereof or any extension of that period of two years which the Responsible Authority may on application made before or within three months after the expiry of the permit by writing allow, this permit shall lapse.
4. Prior to the commencement of the amended starting time hereby permitted, the following must be completed to the satisfaction of the Responsible Authority unless with the prior written consent of the Responsible Authority:

(a) The construction of an acoustic fence along Howell Street measuring a length of 16.5 metres at a height of 1.8 metres.

(b) The construction of a timber acoustic fence on the north eastern boundary measuring a length of 43.1 metres at a height of 2.4 metres.

(c) The construction of a 1.8 metre high timber acoustic fence along the northern part of the Howell Street property boundary and across the Howell Street site entrance (approximately 28.6 metres in length).

1. Deleted.
2. Prior to the commencement of the amended starting time approved as part of application GE/PP-20020/2007/C, a Site Management Plan must be prepared to the satisfaction of the Responsible Authority. The site management plan must be generally in accordance with the approved site management plan endorsed 31 August 2010, and updated to include the following:

(a) The recommendations set out in section 10.4 of the Statement of Evidence of Matthew Allan Weston, dated 26 May 2025.

(b) a process to regularly inspection of the acoustic fences to ensure that they are fit-for-purpose.

1. Within 30 days of the commencement of the amended use permitted under application GE/PP-20020/2007/C, an acoustic report prepared by a suitably qualified acoustic engineer and to the satisfaction of the Responsible Authority must be submitted demonstrating noise emissions from the use allowed under the amended permit complies with the Environment Protection Regulations 2021 Vic) and any recommendations to ensure noise does not exceed this level.
2. Within 60 days of the submission of the acoustic report required by Condition 29 of this permit, all recommended acoustic measures must be implemented on site. This includes any additional measures required to further upgrade fencing as required under condition 26.
3. The permit as it relates to the amended use permitted under application GE/PP-20020/2007/C will expire if one of the following circumstances applies:

(a) The use is not started within two years of the date of this permit.

(b) The use is discontinued for a period of two years.

The Responsible Authority may extend the permit if a request is made in writing in accordance with Section 69 of _Planning and Environment Act 1987 (_Vic).

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] McDonald's Australia Limited v Moreland CC [2020] VCAT 1347 at [31].

[3] Prepared by the Victorian Planning Authority for the Department of Transport and Planning dated March 2025.

[4] [2020] VCAT 1347 at [42].

[5] [1955] VicLawRp 19; [1955] VLR 332.

[6] Paragraph 2.4 of Statement of Evidence of Matthew Allan Weston dated 26 May 2025. The Tribunal notes that this is put to the Tribunal as a general proposition from the perspective of an acoustic engineer.

[7] This report is an Operational Noise Emission Assessment prepared by Acoustic Dynamics dated 9 April 2024 that accompanied the amendment application and was included in the notice of the amendment application.

[8] Referred in the hearing as 'wiggle room'.

[9] Environment Reference Standard, No. S245 Gazette 26 May 2021.

[10] Example includes Knox City Council v Tulcany Pty Ltd [2004] VSC 375, [13]; and following the findings of Van Egmond v City of Knox, Bassett & Ors as cited in Tulcany with reference to (1985) 3 PABR 249, 250.

[11] The particular hours are typically determined on a site by site basis depending upon the facts and circumstances of the operation.

[12] [2013] VCAT 725.

[13] [2013] VSC 505.