Section 79 of the Planning and Environment Act 1987.

2 storey commercial building with the ground floor being converted to a restaurant.

Mr Dominic Scully, Solicitor of Best Hooper. Mr Scully called evidence from Mr David Dolly, Acoustic Engineer.

Ms Kellie Burns, Town Planner of SJB Town Planners.

1. This is an application for review concerning the failure of Stonnington City Council to determine application for permit 218/08 within the prescribed time.
2. Subsequently the Responsible Authority formed the view that had it the power it would have approved the proposal subject to seven conditions. Condition 3 relating to the requirement for the restaurant to cease operations at 11.00 pm is the most controversial. The applicant wished to have a 1.00 am closure on every evening.
3. The Responsible Authority principally supported the application but with reduced hours of operation on the basis of the property's location in a business zone and a desire to seek compliance two aspects of its Licence Premises Policy (clause 22.10) that:

The preferred location for trading after 11.00 pm is in Principle and Major Activity Centres, subject to compliance with other aspects of this policy

Trading after 11.00 pm is discouraged for licensed premises adjacent to a residential zone/use unless the Responsible Authority is satisfied that the use will not adversely affect the amenity of the area.

1. Monica Hall is opposed to a liquor licence being granted for a restaurant in close proximity to her premises. She has obtained a permit to convert her business premises to a residence and she intended to live on the premises with her family which include a young child.
2. Ms O'Donnell and Mr Fahey also objected to the operation of a restaurant with the liquor licence on the basis that Duke Street is primarily a residential street, in an area identified for predominantly retail and some entertainment uses. They also expressed concern about condition 6 that allows amplified music and the request to trade to 1.00 am each day. They also seek, failing a upholding of this review, that matters in the management plan address:
   • A complaints handling system;
   • The location of the external smoking area, whether this will be licensed and how patrons of this area will be managed to prevent patrons from using adjacent laneway and James Street car park, provision of rubbish facilities and management and cleaning up of cigarette butts from the footpath;
   • Potential noise impacts of music noise;
   • Works to minimise noise and vibration from machinery located adjacent to their house or their dwelling and delivery and waste management arrangements.

1. The purpose of this application is for a liquor license for a restaurant that is for the sale and consumption of alcohol within the premises.

1. The subject is located on the southern side of Duke Street about 80 metres east of Chapel Street in Windsor. Chapel Street is a busy activity area with the principal retailing, entertainment and commercial activities in a Principal Activity Centre which is identified as that part of Chapel Street and abutting areas to the north of High Street and the area to the south of High Street providing a Neighbourhood Activity focus with retailing, food and drink and entertainment facilities[1].
2. The subject restaurant is on the ground floor level of a two storey commercial premises. The premises abut a 3 metre wide bluestone laneway on its western boundary that is used for loading and unloading of goods associated with these premises and it also serves as pedestrian and vehicle access from the James Street car park to Duke Street. There is also a pedestrian link over the railway between the upper floor of the subject property and the rear of 118-120 Chapel Street.
3. The premises has its main pedestrian access to Duke Street and other access by a single door and roller door access to the laneway.
4. Land to the immediate rear comprise old garage structures apparently used for storage. A three storey commercial building is located to the east at No. 4-6 Duke Street. There is a town planning permit to convert the two upper levels of this building to residential apartments but it has not yet been enacted. To the east of the car of the storage area and to the south of No. 4-6 Duke Street is a three level apartment building at No.8 Lincoln Place. Apartments 1&2 are owned and occupied by Ms O'Connell and Mr Fahey and are the closest abutting dwellings to the site.
5. The subject premises and all surrounding properties are located in a Business 1 zone or part Business1/Residential 1 and located within the Windsor Neighbourhood Activity Centre, with Chapel Street providing the principle focus for retailing, food and drink premises, including outdoor dining and drinking facilities. Many of the restaurant /food and drink premises operate to about 12.30 or 1.00 o'clock in the morning.
6. There are restaurants/ food and drink premises that have access to rear laneway, including the laneway abutting the western boundary of the subject premises. There are rear doors and evidence of various mechanical ventilation devices serving these premises. Whilst most of Duke Street has a inner residential neighbourhood feel, the western end of it is clearly commercial in both built form and function.

1. A permit is required under Clause 52.27 of the Stonnington Planning Scheme because a license is required under the Liquor Control Reform Act 1998. The purpose of this provision is:
   • To ensure that licensed premises are suitable situated in appropriate locations;
   • To ensure that the impact of the licensed premises on the amenity of the surrounding area is considered.
2. There are decision guidelines which require, in addition to the decision guidelines in clause 65, that the Responsible Authority must consider, as appropriate:
   • The State Planning Policy Framework and the Local Planning Policy Framework including the Municipal Strategic Statement and local planning policies;
   • The impact of the sale for consumption of liquor permitted by the liquor licence on the amenity of the surrounding area;
   • The impact of the hours of operation on the amenity of the surrounding area;
   • The impact of the number of patrons on the amenity of surrounding area;
   • Accumulative impact of any existing and the proposed liquor license, the hours of operation and the number of patrons, on the amenity of the area.
3. In addition the Responsible Authority clause 22.10 Licence Premises policy applies. The objectives of this policy are:
   • To effectively manage the amenity conflicts between licensed premises and other uses;
   • To manage the impacts of licensed premises on the diversity of uses and economic viability of activity centres;
   • To encourage daytime uses and active frontages within activity centres; and
   • To provide reasonable commercial opportunities for the trading of licensed premises.
4. Under clause 22.10-3 the policy addresses:
   • Impact on amenity of surrounding uses in relation to noise, hours of operation and car parking demand;
   • On site noise attenuation measures;
   • Noise emissions so as to comply with state environment protection policies;
   • Referred location for trading after 11.00 pm is in the principal and major activity centres, subject to compliance with other aspects of the policy;
   • Trading after 11.00 pm is discouraged for licensed premises adjacent to a residential zone use unless the Responsible Authority is satisfied that the use will not adversely affect the amenity of the area;
   • Licence premises should not be concentrated to an extent that there is an adverse cumulative effect on the area;
   • Licensed premises should be located so as to discourage patrons parking in a residential 1 zone.
5. There are a host of decision guidelines contained in clause 22.10-5. There are also application requirements in clause 22.10-4 that include the requirement for a Noise and Amenity Action Plan to accompany a planning permit application.
6. No permit is required for a restaurant use in a Business 1 zone. A permit has been issued by the Responsible Authority following the direction from Deputy President Gibson[2] for car parking and bicycle parking dispensation associated with the part use of the site as a restaurant and buildings and works.
7. The subject site is located within a neighbourhood activity centre, as identified on the strategic framework plan in clause 21.01 of the Municipal Strategic Statement in the planning scheme.[3]

1. At the review hearing Mr Mielnik, Ms Burns and Mr Scully provided detailed written submissions and supplemented these with oral presentations. Ms Hall made an oral submission. At the commencement of the hearing Ms Burns sought leave to have Cathy O'Connell and Michael Fahey as parties. Ms O'Connell and Mr Fahey had forwarded a cover sheet with a statement of grounds that in reality was a bound collection of previous correspondence, documents, photos and Tribunal decisions forwarded to Best Hooper in October 2007.
2. After hearing from both Ms Burns and Mr Mielnik, Ms Hall identified herself in the back of the hearing room and wished to make a submission. Ms Hall had been late in attendance and did not notify the Tribunal of her lateness nor attendance until about 11.30 am. Ms Hall was given an opportunity to express her concerns about the application, including potential amenity impacts because she intends to live on the premises after it was converted to residential purposes.
3. During the hearing there was a number of claims about objections from police and others. There was no objection to this planning permit application by Victoria Police on the Tribunal file. I sought clarification on this issue and it was revealed that Victoria Police and other persons, unrelated to the parties in this application lodged objections to Licence Application 46547A01 with Liquor Licensing Victoria.
4. I have viewed these objections and there may be some confusion by objectors about the purpose of the various permits lodged with the Council and Liquor Licensing Victoria because some objections lodged with Liquor Licensing raise parking concerns but these have been dealt with in an earlier permit application, mentioned in paragraph 18 above. There is no information on the Victoria Police document to explain the reasons for the recommendation that the Chief Commissioner of Police lodge an objection. Whilst there were seven objections to the planning permit lodged with the Council only Ms Hall, Ms O'Connell and Mr Fahey have pursued their objections in this review. No other objector nor Victoria Police has applied for leave to be a party
5. Prior to the conclusion of the hearing I gave express instructions to all parties and their representatives that I will be undertaking a site and a view of the Ms O'Connell and Mr Fahey's properties after the hearing and it was inappropriate to make any further submissions made on site without the other parties being present. The purpose of my inspection was to view various parts of Ms O'Connell and Mr Fahey's dwellings and to familiarise myself with the site conditions and neighbourhood context. Despite this instruction, Ms O'Connell sought to advise me of various noise concerns that she believed emanated from the subject site. I took these concerns into account having regard to the earlier submission of Ms Burns because this is one of the central issues in contention. Whilst this potentially may have created a dilemma in raising issues outside the hearing room, as will be explained later in the decision it provided improved focus for me on acoustic issues which I consider did not result in any prejudice to the applicant.
6. I also undertook an inspection of the site on Friday 6 February 2009 at around 11.00 pm - 11.30 pm to determine noise impacts, background noise and amenity consideration late at night in this neighbourhood.

1. Ms Hall, and to a lesser degree Ms Burns argued that no liquor licence should occur on the subject premises due to the potential amenity impact on residents and future residents in close proximity to the premises. Ms Hall was of the view that operating a licensed restaurant would cause amenity impact when she occupied the building as a dwelling particularly as she had a young child.
2. During the site inspection of dwellings 1 & 2/ 8 Lincoln Place Ms O'Connell identified bedrooms in her dwelling which were in close proximity to the south eastern edge of the subject premises and she claimed that members of her family experienced noise from the subject premises in the past. She conceded there was no discernable noise at that time of the inspection during the daytime.

It is concluded that the proposed restaurant can readily operate in compliance with SEPP N-2 permissible noise limits. Provided that the above recommended provisions are made and internal music levels are constrained to the levels tabulated in Section 4.3.

It is advised that mechanical services plant and equipment must comply with SEPP N1 noise limits at all residential locations.

The lower ambient noise level during the night period is typically 37dB(A)in Duke Street and 39 Db(A) in the Lincoln Place(sic) carpark during the midnight to 100am period during the midweek.

The ambient noise level at similar time periods is 4dB(A) higher in the Lincoln Place(sic) Car park on Saturday and Sunday Mornings. Ambient noise levels are 5-8dB (A) higher in Duke (Street) during these periods. The higher levels observed during weekends night periods are clearly due to increased activity along Chapel Street associated with the operation of many existing uses.

1. Mr Dolly recommended in Section 3.1 of the report that mechanical plant designs be incorporated into noise control systems/ designs based on complying with the permissible noise limits during all periods. There was no acoustic evidence from any party to challenge the above evidence.

1. In assessing the evidence and the claims made by Ms Burns, Ms Hall and Ms O'Connell on site I made a detailed inspection of the subject premises and the neighbourhood.
2. I noted the kitchen and cool room had been installed, but the remainder of the premises was incomplete and not in use. Only the cool room and the plant to it was operating. Noise from the cool room plant was clearly audible inside the premises, in close proximity to the roller door. Whilst a new ventilation duct from the kitchen to the roof was provided it was not operational. There was no noise from the premises outside in Duke Street with the only detectable noise emanating from two kitchen exhaust flues extending from 120 Chapel Street above the Duke Street footpath and the occasional tram running along Chapel Street or vehicle using Duke Street.
3. There was only very faint noise from the cool room plant immediately outside the roller door in the laneway. What was more discernable was noise from cooling plant behind a crudely ventilated door at the rear of the premises at 118-120 Chapel Street. Whilst there was an elevated split system air conditioning plant above this door, it was not operational during the daytime inspection.
4. Noise experienced in Duke Street outside the premised mainly came from two ventilation ducts in the commercial premises at 116-120 Chapel Street[4] that extended out over the Duke Street footpath, the occasional tram travelling in Chapel Street and cars using Duke Street.
5. I attempted to detect noise from the James Street Car Park and I could detect some plant noise from air conditioning and/or kitchen exhaust vents but it was difficult to identify every source. Rather it seemed that the primary noise source at the time was from the rear of No 116-120 Chapel Street. Neither kitchen exhaust vent nor the plant for the first floor occupancy of the subject premises were operating. Whilst my observations are not comprehensive, I was able to conclude is not a quiet environment but rather it serves as the back end of a busy commercial activity centre.
6. On the visit on the Friday night noise sources in the northern section of the car park ranged from air conditioning and ventilation ducts, music noise from patrons vehicles and an occasional person talking. Noise from air conditioning and mechanical ventilation was clearly part of the background noise and this was more apparent as I walked along the lane towards Duke Street. Noise from the cool room plant was barely audible and was masked by the plant noise from behind the door on 116-120 [5]Chapel Street and the elevated split system air conditioning plant.
7. My observations of noise in Duke Street was different to my experience during the earlier day time inspection. Noise from a restaurant courtyard at 122-124[6] Chapel Street was the most noticeable due to elevated conversations. This noise was generally higher than the two ventilation ducts that protrude over Duke Street. As I proceeded toward Chapel Street, the noise from patrons dining/ drinking/smoking in the Chapel Street and tram/vehicle noise was more pronounced. Conversely, "background" noise rapidly diminished beyond commercial buildings in Duke Street.
8. I consider that in a vibrant busy neighbourhood activity centre such as Chapel Street, Windsor it would be unrealistic to expect that no liquor licence should be granted when there are numerous examples of other licensed food/drink and entertainment premises within walking distance and ear-shot of the subject site.
9. Based on my observation of a warm summer night in this section of the Chapel Street Neighbourhood Centre there are many licensed premises, including those with dining and drinking on the footpath outside the respective premises open after 11.00pm and it is very busy. Whilst my observations were not comprehensive they provided a reasonable indication of the amenity and noise conditions during day and night in summer months. Accordingly I consider that my observations were consistent with the evidence of ambient noise levels and observations of Mr Dolly and I am satisfied that the premises can comply with both SEPP N1 and N2.
10. I could not detect any amenity concern from the current plant on the premises. If there is other plant causing noise nuisance, such as from the first floor commercial premises that is unrelated to this application, it will need to be addressed separately.
11. I have imposed specific condition to address compliance with these SEPPs having regard to the purpose of Clause 52.27 which is;

To ensure that the impact of the licensed premises on the amenity of the surrounding area is considered.

1. In this case I doubt the kitchen and its exhaust would ordinarily operate after 10 or 11 pm if no liquor license existed. Similarly other measures suggested such as seals near the rear door and glazing are prudent suggestions and will assist in ensuring the premises meets the relevant SEPP.
2. It is acknowledged that the site does not have a frontage or proximity to Chapel Street to suggest that the hours of operation should be open ended. However, the premises are located within the business section of Duke Street and the level of activity and noise observed satisfies me that a licence can issue. Further, the hours of operation can extend to 1 am at least on Friday and Saturday evenings when the level of activity and noise in the neighbourhood is at a level that virtually masks the activity derived from this restaurant premises. The later hours on Friday and Saturday night seem consistent with Mr Dolly's noise readings and my general observations.
3. During the hearing Mr Scally conceded his client would accept 11 pm closure during the weekdays, not including Thursdays and Fridays. I consider there is insufficient evidence to conclude that amenity conditions, including ambient noise levels for Thursday warrant later closing time and therefore I will limit the later hours to Friday and Saturday nights only..

1. The Licensed Premises Policy appears to be well thought out and it was helpful in determining the merits of this application. Like most policies in the planning scheme it is not a mandatory provision but rather is an aid in the exercise of discretion. In this application it is necessary to give the policy considerable weight, but there also needs consideration of the site context, the size of the premises, the nature of the surrounding uses and existing levels of amenity, including background noise and measures intended to address amenity issues.
2. The Licensed Premises Policy draws a firm line in approach to operating hours of licensed premises in a Neighbourhood Activity Centre. Whilst this approach has some basic planning logic, based on my observation of existing premises operating after 11pm it seems there are many premises south of High Street in the Neighbourhood Activity Centre are already in breach of this policy, presumably they obtained licenses before the policy was implemented. This is not a criticism of the responsible authority because dealing with licenses premises in this locality is a complex issue that has arisen over time.
3. Whilst the policy discourages licensed premises after 11.00 pm it does not discourage these uses completely in Neighbourhood Activity Centres.

1. In considering the impact of the proposal I have examined the land use and zoning on the subject site and properties to the east in Duke and Lincoln Place. Both 4-6 Duke Street and the premises behind in 8 Lincoln Place are partly zoned Business 1 and partly zoned Residential1. Further to the east in Duke Street properties are zoned and used for residential purposes.
2. Land between Chapel Street and up to No 11 Duke Street, on the opposite side of the street, is in a Business 1 Both 4-6 Duke Street and the premises behind in 8 Lincoln Place are partly zoned Business 1 and partly zoned Residential1. Further to the east in Duke Street properties are zoned and used for residential purposes.
3. Properties between Chapel Street and up to No 11 Duke Street, on the opposite side of the street, are zoned Business 1and used for commercial purposes. This includes No 9 Duke Street, owned/occupied by Ms Hall and her partner, although it has a town planning permit for conversion to residential that has not commenced. All other properties to the East of No 11 Duke Street are Zoned Residential 1 and appear to be used for residential purposes.
4. I consider that a liquor licence is appropriate in this commercial premises which is located in a Business 1 zone. A restaurant use does not normally need a town planning permit in a Business 1 zone.
5. The definition of a restaurant in the planning scheme is:

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

(b) the supply of liquor other than in association with the serving of meals provided that tables and chairs are set out for at least 75% of patrons present on the premises at any one time. It does not include the sale of packaged liquor.[7]

1. I acknowledge that permits have been granted to convert existing commercial premises that are either in a business zone or a split business/residential zone situation. These permits have not been acted upon. Any person contemplating converting commercial premises to a residential use in this business zone are advised to familiarize themself with the existing amenity conditions of this neighbourhood prior to embarking on a residential conversion. They should take steps to install acoustic measures to protect them selves from background noise and other likely noise from the activities taking place in Duke and Chapel Street.

Balancing conflicts between licensed premises and other uses

1. The principle conflicts identified by objectors related to amenity concerns for residents in premises which are located abutting commercial premises that are located in a Business 1 zone. Much of the issue related to the potential impact on the escape of noise and vibration whether by mechanical plant or music noise or patrons congregating outside the premises such as to have a smoke.
2. If this was solely a residential area or a site that immediately abutted a more conventional residential area I would have no hesitation in upholding the council's Notice of Decision including condition 3 limiting hours of operation to 11.00 pm on any night however this is a busy area with relatively high background noise at different times.
3. This case remind me of the often repeated decision of Martin Stewart which stated

The owners and occupiers of allotments at the site zone interfaces must both make compromises. The occupier of the residential allotment must accept the lower residential amenity. The occupier of the business zone allotment must accept a possible requirement that the height and intensity of development that may be appropriately elsewhere in the zone be softened or scaled down at the boundary.

We consider this also applies to amenity considerations and the residents having a Business 1 abuttal cannot expect the same level of amenity as that found in the midst of a purely residential street.[8]

1. During the site visits I observed pedestrian movements and parking conditions in Chapel, James and Duke Streets and the James Street car park. Parking in Chapel Street is controlled by short term parking restrictions and there are time limits/ permit restrictions in both James and Duke Streets. There are longer parking times during daytime business hours in the Janes Street car park, which based on my observation were being policed. There was little parking availability at the time of inspection during the day in Duke Street although there was parking available outside the site during my evening observation. On both occasions the James Street Car park was about 50% full during the evening and about 60% full during the day. If anything activity at night, including traffic movements, outside the licensed premises at the Chapel Street/ Duke Street intersection was busier in the evening than during the day time inspection.
2. The laneway beside the subject site was frequently uses by pedestrians between Duke and Chapel Streets and the James Street car park during day and night times. The lane was well lit at its northern extremity by floodlights.

1. I acknowledge Ms Hall's concerns about the potential amenity impacts to her property particularly if it is converted to residential from patrons of the premises standing outside the premises late at night and smoking. The nature of smoking from licensed premises is well documented in Ryan[9]:

Where licensed premises interface with the residential premises and noise is a particular problem. Many planning permits require noise attenuation measures to contain noise from music or other sources from licensed premises. Such measures are proposed as part of this proposed tavern. The layout of premises and the areas to which patrons may have access are also frequently of concern and form the subject of conditions in permits. As a matter of general principle, it is important that any outdoor areas where smokers may congregate are shielded from residential uses to avoid disturbing resident's amenity, particularly when they are trying to sleep.

1. I consider that there is little likelihood of impact of noise or nuisance on Ms O'Connell and Mr Fahey's property from smokers from this small restaurant premises because that is to the rear (south east of the subject premises). Any amenity impact on Ms Hall's property should be considered in its Business 1 zoning and the fact that it has not been converted to residential yet.
2. I note that the footpath is relatively narrow and would tend to discourage if not prevent outdoor seating in this particular location and therefore smoking is more likely to be attributed from patrons of this relatively small premises. I may have taken a different view if the premises were much larger and the was to be used as a bar or tavern. However the primary purpose of these premises is that of a restaurant with the intention of obtaining a meal.

1. Ms Burns argued that there should be no strongly opposed the imposition of condition 6 of the draft notice of decision and suggested there should be no amplified music at all. I consider this is unrealistic to expect that these premises cannot have any amplified background noise having regard to the level of background noise and activity in the neighbourhood. I consider it is probably a more realistic that a condition be imposed that enacts the recommendations of Mr Dolly to ensure compliance with SEPP N1and N2. This is a far more manageable condition and I note that in the applicant's draft noise and amenity action plan it states on a number of occasions that the premises will provide background music through in house system only. It also states later it does not provide live bands or DJ's at the premises.
2. During the hearing there was some discussion about whether the applicants should provide for airlocks to prevent the escape of noise from premises. I consider that it is more appropriate having regard to the intent of having background noise only that the condition requiring compliance with N1 and N2 is more appropriate.
3. Ihave not imposed further requirements for a complaints register in the Noise and Amenity Action Plan. Rather I see it is more important for the applicants to meet the recommendations of Mr Dolly and the SEPP policies as integral to addressing normal noise and nuisance issues derived from a restaurant use.
4. I have modified other conditions suggested by the Responsible Authority including nominating the maximum number of patrons rather than the maximum number of seats so that it is quite clear that this is seen as a relatively small restaurant and it does not and is not perceived as a de facto bar.
5. I have imposed a condition limiting the hours of removal of rubbish and recyclables to ensure the amenity of nearby residential properties is not affected at night times.

1. I examined loading and unloading issues in this neighbourhood including the specific reference to signage on both sides of the right of way that limits loading and deliveries under a Local Law. In many respects this mechanism is a more effective way of dealing with a local issue because Local-Law officers can enforce or at least penalise offenders at the time of offence. Nonetheless I have placed condition similar to those imposed by Member Cook in application P2125/2008 concerning premises at 15 Chapel Street, Windsor. If there is some anomaly between the times in the local Law and the permit condition this can be readily be rectified by the responsible authority.
2. I would remark loading and unloading from laneways to the rear of premises in either Chapel Street or Duke Street seems a common occurrence. I acknowledge that access from the James Street car park does utilise the lane as a secondary access point but there are alternative access routes available. I do not consider it is realistic to ban or to prohibit the loading and unloading in this laneway or place any greater restriction than that that which would apply under the council's local law.
3. In examining other objectives in the licensed premises policy I have discounted the requirement to encourage daytime uses and active frontages within activity centres. Whilst it is appropriate to prefer daytime uses in this locality there is no restriction on the hours of operation of the upper level of the premises at present and this street does not tend to rely on active street frontages rather the active street frontages are found on Chapel Street.

1. For the above mentioned reasons the Responsible Authority's decision is set aside.[10]
2. The Responsible Authority must issue a permit for liquor license in accordance with the endorsed plans and conditions. I have imposed additional conditions to that suggested by the council to address the escape of noise and from mechanical and music. I have allowed some liquor licensing to 1.00 am on Friday and Saturday evenings having regard to the nature of this area but I have refrained from allowing full operation to 1.00 am on Sundays and during the week.

1. Before the commencement of the use, three copies of the Noise and Amenity Action Plan must be submitted to and approved by the Responsible Authority. The plan and documentation must generally be in accordance with that submitted with the application but modified to show
   • The hours of operation to accord with those specified in condition 3.
   • Measures to demonstrate compliance with SEPP N1 and N2 including works/ treatment recommended in Mr Dolly's Acoustic Report tabled at VCAT Hearing P2319/2008.

All to the satisfaction of the responsible authority

1. Any plans and the Noise and Amenity Action Plan endorsed to accompany this permit must not be amended without the written consent of the Responsible Authority.
2. Without the prior written consent of the Responsible Authority, the sale and consumption of liquor shall only occur between the following hours:
   • Monday to Thursday (excluding ANZAC Day) 7.00 am to 11.00 pm
   • Good Friday and ANZAC Day 12.00 noon to 11.00 pm
   • Friday (except Good Friday and ANZAC Day when falling on that day) and Saturday 7.00 am to 1.00 am the following morning
3. Not more than 40 patrons are permitted within the restaurant premises at any one time to the satisfaction of the Responsible Authority.
4. No live entertainment may be provided at the premises at any time. All music must be limited to background noise levels only.
5. Music noise emanating from the subject land must comply with State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2 at all times, to the satisfaction of the Responsible Authority.
6. The Noise and Amenity action plan must be complied with to the satisfaction of the Responsible Authority.
7. The collection and waste and recyclables from the premises (other than normal Stonnington City Council collection) must only be conducted between the hours of 7.00 am and 8.00 pm Monday to Saturday and 9.00 am to 8.00 pm Sundays.
8. The loading and unloading of vehicles and delivery of goods to and from the premises may only be conducted between 7.00 am and 10.00 pm Monday to Saturday and 9am to 10 pm Sunday except with the further consent of the Responsible Authority.
9. Mechanical noise emanating from the subject premises must not exceed the permissible noise levels when determining in accordance with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 to the satisfaction of the Responsible Authority.
10. This permit will expire if one of the following circumstances apply:
    • The use is not commenced within 2 years of the date of this permit.

[1] See Strategic Framework Plan in Clause 21.01of the Stonnington Planning Scheme

[2] See application P34/2008 which had dismissed an application by Michael Patrick Fahey.

[3] That section of Chapel Street, north of High Street is designated a Principal Activity Centre in the Strategic Framework Plan.

[4] It was not possible to determine the precise origin of the occupancy of the ventilation equipment.

[5] It was difficult to decipher the precise address because there was no address on the back of the premises

[6] It was difficult to decipher the precise address from Duke Street

[8] Martin Stewart Pty Ltd v Port Phillip CC (2000) VCAT 887

[9] See Ryan v Port Phillip CC (2006) VCAT 1923

[10] A failure application under section 82 is deemed a refusal under the VCAT Act.