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]: