1 Before the use starts, a Noise and Amenity Action Plan (NAAP) must be submitted to and approved by the Responsible Authority. When approved, this plan will be endorsed and will then form part of the permit. The plan must be generally in accordance with the "Standard Operating Procures Plan" by Liquor Consulting Services 2006, but modified to ensure that the following matters are included:

(a) The identification of all noise sources (including, but not limited to, patrons on the premises, patrons, entering and leaving the premises) likely to impact on nearby residents.

(b) Measures to be undertaken to address all noise sources identified, including on and off-site noise attenuation measures.

(c) Measures to be undertaken in the event of complaints by a member of the public, the Victoria Police, an "authorised officer" of the Responsible Authority or an officer of Liquor Licensing Victoria.

(d) Details of staffing arrangements including numbers and working hours of all security staff, bar staff, waiters/waitresses, on-premises manager, and other staff.

(e) Details of training provided for bar staff in the responsible serving of alcohol.

(f) Measures to be instituted when dealing with intoxicated patrons.

(g) Lighting within the boundaries of the site.

(h) Security lighting outside the premises, if required.

(j) Details of waste management plan including storage and hours of collection for general rubbish and bottles associated with the licensed use.

(k) Any other measures to be undertaken to ensure minimal amenity impacts.

all to the satisfaction of the Responsible Authority.

Once approved the NAAP must be implemented to the satisfaction of the Responsible Authority.

2 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 application plans, but modified to show:

(a)

Noise attenuation measures, if required, to achieve compliance with State Environment Protection Policy N-1 (Control of Noise from Commercial, Industrial or Trade Premises) and State Environment Protection Policy N-2 (Control of Music Noise from Public Premises) or subsequent State Environment Noise Policies in accordance with recommendations, of an appropriately qualified Acoustic Consultant.

3 All development and use must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.

4 Liquor must only be sold or consumed between the following hours:

•

7am to 3am (the following day) Thursday, Friday, Saturday and the eve of any public holiday;

•

7am to 11pm Sunday; and

•

7am to 1am (the following day) Monday to Wednesday.

5 No more than 90 seats are to be made available to the public.

6 Noise emissions must comply with State Environment Protection Policy or any other standard recommended by the Environment Protection Authority.

7 No live music or amplified music is to be played on the premises.

8 No music must be played outside the premises. No speakers must be outside the premises.

9 An area must be provided for the placement of Garbage Bins and Recycling Services. The area shall be paved, screened and constructed to the satisfaction of the Responsible Authority.

10 No emptying of bottles into garbage bins is permitted after 10pm on any night, or before 7am on any day.

11 The amenity of the area must not be detrimentally affected by the use or development, through:

(a)

The transport of materials, goods or commodities to or from land;

(b)

The appearance of any buildings, works or materials;

(c)

The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products. grit or oil, or

(d)

The presence of vermin.

12 The operator must request patrons, either by leaflets or a prominent notice, to take account of the needs of local residents for peace and quiet during normal sleeping hours.

13 During all hours (whether or not liquor is served) in which the business is open to the public, entry must be made freely available to any authorised officer(s) of the Responsible Authority for the carrying out of any investigations associated with the sale or consumption of alcohol on the site.

14 During all hours (whether or not liquor is served) in which the business is open to the public, there must be present on the premises, a person above the age of 18 years, responsible for the good conduct of the premises ("the Manager").

15 The Manager must at all times be authorised by the occupier of the premises to make statements and admissions on their behalf to any authorised officer of the Responsible Authority regarding the conduct of the premises for the use hereby authorised.

16 This permit will expire if the use or development is not commenced within two years from the date of this permit. All development must be completed within four years from the date of this permit. The Responsible Authority may approve extensions to these time limits if requests are made within three months of expiry.

With respect to planning permit application no. PL05/0532, the responsible authority's decision to refuse the grant of a permit is set aside. A permit is granted for use of the land for the sale and consumption of liquor; bar (tavern) and the waiver of car parking generally in accordance with the endorsed plans at 406 Bridge Road Richmond. The permit must contain the following conditions:

1 Before the use starts, a Noise and Amenity Action Plan (NAAP) must be submitted to and approved by the Responsible Authority. When approved, this plan will be endorsed and will then form part of the permit. The plan must be generally in accordance with the "Standard Operating Procures Plan" by Liquor Consulting Services 2006, but modified to ensure that the following matters are included:

(a) The identification of all noise sources (including, but not limited to, patrons on the premises, patrons, entering and leaving the premises) likely to impact on adjoining residents.

(b) Measures to be undertaken to address all noise sources identified, including on and off-site noise attenuation measures.

(c) Measures to be undertaken in the event of complaints by a member of the public, the Victoria Police, an "authorised officer" of the Responsible Authority or an officer of Liquor Licensing Victoria.

(d) Details of staffing arrangements including numbers and working hours of all security staff, bar staff, waiters/waitresses, on-premises manager, and other staff.

(e) Details of training provided for bar staff in the responsible serving of alcohol.

(f) Measures to be instituted when dealing with intoxicated patrons.

(g) Lighting within the boundaries of the site.

(h) Security lighting outside the premises, if required.

(j) Details of waste management plan including storage and hours of collection for general rubbish and bottles associated with the licensed use.

(k) Any other measures to be undertaken to ensure minimal amenity impacts.

all to the satisfaction of the Responsible Authority.

Once approved the NAAP must be implemented to the satisfaction of the Responsible Authority.

2 Before the use and/or 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 application plans, but modified to show:

a. Noise attenuation measures, if required, to achieve compliance with State Environment Protection Policy N-1 (Control of Noise from Commercial, Industrial or Trade Premises) and State Environment Protection Policy N-2 (Control of Music Noise from Public Premises) or subsequent State Environment Noise Policies in accordance with recommendations, of an appropriately qualified Acoustic Consultant.

3 All development and use must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.

4 Liquor must only be sold or consumed between the following hours:

•

7am to 3am (the following day) Thursday, Friday, Saturday and the eve of any public holiday;

•

7am to 11pm Sunday; and

•

7am to 1am (the following day) Monday to Wednesday.

5 No more than 72 patrons are to be permitted on the premises at any one time (62 in the building and 10 in the rear courtyard).

6 Noise emissions must comply with State Environment Protection Policy or any other standard recommended by the Environment Protection Authority.

7 No live music or amplified music is to be played on the premises.

8 No music must be played outside the premises. No speakers must be outside the premises.

9 An area must be provided for the placement of Garbage Bins and Recycling Services. The area shall be paved, screened and constructed to the satisfaction of the Responsible Authority.

10 No emptying of bottles into garbage bins is permitted after 10pm on any night, or before 7am on any day.

11 The amenity of the area must not be detrimentally affected by the use or development, through:

a. The transport of materials, goods or commodities to or from land;

b. The appearance of any buildings, works or materials;

c. The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products. grit or oil, or

d. The presence of vermin.

12 The operator must request patrons, either by leaflets or a prominent notice, to take account of the needs of local residents for peace and quiet during normal sleeping hours.

13 During all hours (whether or not liquor is served) in which the business is open to the public, entry must be made freely available to any authorised officer(s) of the responsible authority for the carrying out of any investigations associated with the sale or consumption of alcohol on the site.

14 During all hours (whether or not liquor is served) in which the business is open to the public, there must be present on the premises, a person above the age of 18 years, responsible for the good conduct of the premises ("the Manager").

15 The Manager must at all times be authorised by the occupier of the premises to make statements and admissions on their behalf to any authorised officer of the Responsible Authority regarding the conduct of the premises for the use hereby authorised.

16 This permit will expire if the use or development is not commenced within two years from the date of this permit. All development must be completed within four years from the date of this permit. The Responsible Authority may approve extensions to these time limits if requests are made within three months of expiry.

The Responsible Authority is directed to issue permits in accordance with this order.

1 This hearing concerns applications on 2adjoining sites.

2 Application no. P3287/2005 was made under Section 77 of the Planning and Environment Act 1987 by Olmecs Bakery Bar and Café Pty Ltd[1] against the Yarra City Council's decision to refuse the grant of a permit to allow extended trading hours for an existing restaurant at 408-410 Bridge Road Richmond. The permit application number was PL05/0587.

3 Application no. P3288/2005, also by Olmecs Bakery Bar and Café Pty Ltd, was made under Section 77 of the Planning and Environment Act 1987 against the council's decision to refuse the grant of a permit to allow extended trading hours for an existing bar (tavern) on the adjoining property at 406 Bridge Road Richmond. The permit application number was PL05/0532.

4 The council required notice of both permit applications to be given. The council did not receive objections to either application. The council subsequently decided to refuse both permit applications on the same grounds which were:

• The proposed hours is [sic] not appropriate for a core retail area and is [sic] inconsistent with the objectives of the City of Yarra's Municipal Strategic Statement.

• Trading to the hours proposed is incompatible with neighbouring businesses, and will undermine the core retail functions of the centre, which are identified at clause 21.05-4 of the Yarra Planning Scheme.

• The long term planning implications of approval of the hours sought are inconsistent with the strategic direction contained within the City of Yarra's MSS and Local Policies including clause 22.09 (Licensed Premises Policy) of the Yarra Planning Scheme.

5 At the hearing Mr Bryant and Mr Yogaparan tabled and spoke to written submissions to which they added further oral argument.

6 Mr Bryant also tabled a copy of an expert witness report and "Standard Operating Procedures Plan" prepared by Mr R Steane, a liquor licensing consultant. Although the report and procedures plan were served on the council on the day before the hearing, Mr Yogaparan had not seen either document until just before the commencement of the hearing. The matter was stood down to give Mr Yogaparan the opportunity to read the documents after which Mr Yogaparan sought and adjournment on the basis that he had not had the opportunity check some of the facts put forward or to prepare adequately for the cross examination of Mr Steane. Mr Bryant indicated that in light of the council's position, the applicant would only seek to rely on factual matters set out in Mr Steane's report and not the opinions. As it turned out, Mr Yogaparan agreed the factual matters set out in paragraphs 1 to 8 of Part 2 in Mr Steane's report are correct. Mr Bryant did not call Mr Steane to give evidence. I allowed the matter to proceed on this basis and on the understanding that if a permit were to issue, it would be made subject to the preparation of an operating procedures plan to the council's satisfaction.

7 I have inspected the properties in question and the surrounding area.

8 The property known as 408-410 Bridge Road is located on the southwest corner of the Bridge Road/Lord Street intersection. The property is occupied by a single storey building that is used as a restaurant. No parking is provided on the property. The restaurant operates pursuant to 2 permits. The first permit issued on the 2 May 2003 granted permission for the land to be used for the sale and consumption of liquor in association with a restaurant and waiver of car parking[2]. The permit conditions limit the number of seats for patrons to no more than 60; prohibit live music and provide for the use to operate during the following hours only:

• 7am and 1am the following days Friday and Saturday

• 7am and 12 midnight Monday to Thursday; and

• 7am to 11pm Sunday.

9 On the 8 December 2003, the council issued a second permit that allowed the number of seats to be increased from 60 to 90 with a further waiver of parking[3].

10 The property known as 406 Bridge Road is located immediately adjoining to the west. This property is occupied by a single storey building that is used as a bar (tavern)[4]. The conditions on the permit under which this use operates limit patron numbers to 72 and prohibit live and amplified music. Condition 3 on the permit restricts the sale and consumption of liquor on this site to the same operating hours as the restaurant at no 408-410 Bridge Road.

11 Contextually the subject properties are located on the southern side of the Bridge Road shopping centre with other properties along the shopping strip used for a variety of retail and commercial purposes. The most proximate venue trading up to 3 am is the Royal Oak Hotel, located a few hundred metres to the east on the corner of Bridge Road and Burnley Street.

12 A 3 metre wide laneway exists immediately to the south of the subject properties, separating them from a 2 storey industrial building that fronts onto the west side of Lord Street. The most proximate residential properties are located to the southeast, essentially fronting onto Hunter Street but extending through to have a rear abuttal to the east side of Lord Street. This rear abuttal mainly provides for car access resulting in a streetscape largely comprising roller doors and gates. Lord Street is relatively narrow, providing for kerbside parking on the west side and one way vehicle movements from south to north.

13 In simple terms, the permit applications seek permission to extend the hours of both premises to the following:

• 7am and 3am the following day on Thursdays, Fridays, Saturdays and on the eve of any public holiday; and

• 7am and 1am the following day Monday to Wednesday.

14 The existing Sunday trading hours of 7am to 11 pm would remain unchanged. The only works proposed involve the creation of a doorway opening for staff between the 2 premises.

15 While both permit applications were put forward on the basis that they seek an extension of trading hours, Mr Bryant and Mr Yogaparan agreed that if a permit is granted in either case, such permit should be all encompassing so that all planning permissions required for the respective use of either site are consolidated into the one document. I concur that this is the correct approach as it is generally desirable that all the permissions and conditions applicable to a particular use be contained within the one permit, as this gives a clear understanding of what is allowed and the conditions that are applicable. Whilst from a practical point of view these applications seek permission for extended hours, I nonetheless believe that a new permit for the whole use of each property should be granted if approval for the operating hours is given.

16 Under the Yarra Planning Scheme, the properties in question are located within the Business 1 Zone[5] as are the properties to the east, west and to the north on the opposite side of Bridge Road. A Mixed Use zone exists immediately to the south while land to the southeast is zoned Residential 1.

17 Under the Business 1 Zone provisions, a permit is required to use land for the purposes of restaurant and tavern. Further, a permit is also required under clause 52.27 to use land for the sale and consumption of liquor if, amongst other things, the hours of trading under and existing licence are to be extended. Car parking requirements are at clause 52.06. The provisions of clause 52.06-1 provide for car parking requirements to be reduced or waived having regard to a series of decision guidelines. General decision guidelines, as set out at clause 65, require that consideration be given to, a range of matters including planning policy, the purpose of the zone, orderly planning and the impact on amenity.

18 The site is also covered by the Heritage Overlay [HO310]; however, it was common ground that the provisions of this overlay do not trigger the need for a permit and are not relevant to the consideration of the proposal. I agree.

19 There is a raft of policies, objectives and strategies within the scheme that are in some way relevant to the consideration of the proposal. The detail of these policies was comprehensively set out in the submission presented by Mr Yogaparan. I do not propose to repeat the policy details in these reasons; however, it seems to me that the key policies that lead to the council's decision are those set out at clause 21.05-3 [Industry and Commerce] and 21.05-4 [Retailing and Activity Centres], Retail Centres Policy at clause 22.04 and the Licensed Premises policy at clause 22.09. I will refer to the details of these policies as appropriate.

20 After having considered the submissions, the relevant matters under the legislation and planning scheme and the details of each proposal, it seems to me that the key issues in this matter are, firstly, whether the proposal is in conflict with the scheme's policies and, secondly whether the proposals would result in unreasonable amenity impacts.

21 In relation to policy, the MSS objectives for retail and activity centres at clause 21.05-4 include enhancing the long term viability of strip centres; ensuring that centres continue to meet convenience and weekly shopping needs while also improving access to comparison shopping; and enhancing the character of each centre. Mr Yogaparan submitted that the under the retail and centres framework plan, the subject properties are located within a "Core Retail Area", an area where the policy at clause 22.04 encourages shops to locate at ground floor level; not entertainment type uses like restaurants and bars.

22 However, on closer examination, it seems to me that the framework map shows that the properties in question are not located within a core retail area; rather, they area within the "Secondary Retail/office area" forming part of the Bridge Road shopping centre. This is relevant to the extent that the policy at clause 22.04 encourages entertainment uses (including food and drink premises) to be located outside the retail core of major centres. Bridge Road is a Major Activity Centre and is identified as such under Melbourne 2030 and the council's retail hierarchy_._

23 Unlike some of the other activity centres within the municipality, no part of the Bridge Road centre has been designated as an "Entertainment and Food Activity Area". In my view, this cannot be taken to mean that there should effectively be a prohibition on the establishment of entertainment uses per se, or even a ban on those that trade beyond 1am in Bridge Road. In principle, it seems inconceivable that such uses could not be established on a site within a Major Activity Centre, outside of a core retail area, fronting a major road and on land where the purpose of the zone contemplates "entertainment uses". This would, however, subject to the proviso that amenity impacts are appropriately managed and kept to acceptable standards.

24 I see no conflict between the use of the land as proposed and the surrounding commercial uses. While it is true that the most proximate commercial uses do not trade to the hours sought in this case, they also do not trade to the hours that have already been allowed by the council. In any event, the use of each property per se is to be kept the same as what the council has already approved. In doing so, I would think that the council would have formed the view that these uses are compatible with surrounding commercial uses and the strategies for the area. I do not think that the additional hours sought would change this in terms of compatibility with surrounding commercial uses.

25 It is fair to say, however, that the MSS objectives and local policies also discourage late night and 24 hour trading activities from locating adjacent to residential areas.[6] On reviewing the policy at clause 22.09, it seems to me that in general terms, it seeks to facilitate the outcome that licensed premises should have minimal impact on the amenity of the area, particularly in terms of to noise, hours of operation and car parking demand. However, I do not agree with Mr Yogaparan's submission that allowing a use to operate at the proposed trading hours would be in direct conflict with the policy.

26 In this regard I refer to the provisions of the policy that require the following to be taken into account in assessing the "Hours" [of operation]:

•

The location of the premises, its use, nature of surrounding uses and hours of operation, its zoning and zoning of surrounding land be considered in the determination of the hours of operation of licensed premises.

•

Trading after 11pm and 24 hour licensed premises not be supported adjacent to residential areas or on Residential or Mixed Use zoned land, unless the Responsible Authority is satisfied that the use will not adversely affect the amenity of the area, in relation to noise, hours of operation and /or car parking demand.

27 In my view, the above provisions do not support the view that trading beyond 11pm cannot be contemplated simply because the sites in question are located adjacent to land zoned residential. Rather, the policy requires that the context, nature of the use and the impacts be assessed and considered in making a decision as to whether trading beyond 11pm should be allowed. The wording of the policy does not support a "blanket" ban on trading beyond 11pm when a site is located adjacent to land zoned Residential or Mixed Use. On the contrary, the policy contemplates that there can be circumstances when approval for later trading hours can be given if it can be demonstrated that the amenity impacts are acceptable.

28 The consideration of what is acceptable from an amenity viewpoint must also take into account the context. In this case, the context is such that the residential properties that are most proximate to the sites are located in proximity to a Major Activity Centre fronting a major road. Further, they also have an adjacency to properties used for industrial purposes. I think it would be fair to say that the immediate context is one where there is a mix of land uses that combine to create an urban environment that is somewhat robust with the amenity on offer being somewhat different to that which would reasonably be expected in the residential hinterland. Expectations as to the type of amenity on offer must take this context into account. In this regard I consider that the approach set out by the tribunal Keghlan v Mornington Peninsula Shire Council [2000] VCAT 2538 is appropriate:

With respect to transitional sites or sites located at the interface of zones, the Tribunal has said on numerous of occasions that there needs to be an expectation that in each zone, the use and development of land will be constrained or influenced by the adjacency of land in the other zoning. It has been said, for example, that dwelling owners/occupants if they occupy premises at the interface with a commercial or industrial zone, cannot expect to enjoy the same level of residential amenity as persons occupying residential properties more remote from the interface. Similarly, the Tribunal has said that persons operating businesses at the edge of a commercial zone must expect to have constraints imposed on their activities or development in recognition of the need to maintain the amenity of an abutting residential zone (or open space area), which constraints would not apply in other more central parts of the commercial zone.

29 In this case, Mr Yogaparan submitted that the proposed extension of trading hours "may" impact on the amenity of the surrounding area by way of noise from the premises themselves, noise from patrons coming and leaving and travelling to and from their cars.

30 It seems that these concerns are based on the council's fear of what might happen, rather, than an on the consideration of the actual facts surrounding these cases.

31 It is important to appreciate that the uses in this case are a restaurant and bar. They are places which generally provide seating for most patrons. There is no provision for live or DJ music or for dancing in either premises. The applicant has accepted conditions on previous permits that prevent live and DJ music being provided and these restrictions would continue. The main "noise" source from within the premises would be that associated with people noise; chatting, laughter etc. As far as entertainment uses go, the noise emissions from these types of premises are likely to be at the lower end of the scale.

32 It is also relevant to note that both buildings have their frontage to Bridge Road, away from the residential area. I would expect that the main opportunity for noise to escape would be out via the front openings toward Bridge Road, not the residential area to the southeast. The premises on the corner have openable concertina type windows facing Lord Street; however, I would think that these windows could be kept closed during the later hours; a task that could be implemented via a management plan. I doubt that the use of the courtyard at the rear of the bar by 10 persons would generate significant noise.

33 The houses on the most proximate residential properties front onto Hunter Street and are generally located away from Lord Street. These properties effectively turn their back on Lord Street, with walls and garage doors providing a strong and somewhat harsh barrier between the dwelling and street environment. The interface is substantially different to that of houses facing a street.

34 Mr Yogaparan did not submit that there would be a shortage of parking in the area. I would agree given that it is likely that most businesses along Bridge Road would be closed. I would think that patrons would first look for parking in Bridge Road rather than having to negotiate narrow and dark residential streets. I doubt that Lord Street would be an attractive location for parking given that cars are not able to enter it from Bridge Road.

35 I think it is also relevant to note that the uses for which extended hours have been sought have been in operation for some time. There was no evidence that the council has received complaints about noise, car parking or patron behaviour. In addition, the council required notice of the applications to be given, yet nearby residents did not lodge objections. This suggests to me that the existing uses have operated satisfactorily in the past and the local community is not concerned about the extra hours.

36 The applicant has also indicated a willingness to prepare and implement and management plan to the council's satisfaction.

37 In the circumstances I am satisfied that the proposed additional hours would have only minimal impacts on amenity.

38 The purpose of the zoning of the properties; their context within a Major Activity Centre and the policy that encourages entertainment uses outside retail core areas provide support for the granting of a permit. Further, given the nature of the uses and the potential impacts, I am satisfied that there would be a minimal effect on amenity. A permit should be granted in both cases.

39 Whilst in reality these applications seek permission for an extension of trading hours, as indicated earlier, the approach I have taken is to grant a permit that encompasses all the permissions required for both uses to operate.

[1] There being no objection from the council, Olmecs Bakery Bar and Café Pty Ltd was substituted as the name of the permit applicant and applicant for review in both matters under clause 64 in schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998

[5] Refer to clause 34.01 of the Yarra Planning Scheme.

[6] For example, see the objectives at clause 21.05-4 of the MSS and the policy at clause 22.04.