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[2003] VCAT 1478
respondent. The decision of Maribyrnong City Council was affirmed. Under s 85(1)(a) of the Planning and Environment Act 1987 (Vic), the Tribunal directed that a permit must not be granted.
1 cited instrument linked from this judgment.
The Tribunal upheld the Council's refusal of permission for an outdoor beer garden. The applicant relied at the hearing on a proposed acoustic fence that had not been included in the application. Because that change raised issues including a possible referral to Melbourne Water, the Tribunal considered a new, complete application to the Council more appropriate than resolving the new proposal in the review. The Tribunal accepted that parking was not a reason to refuse the application.
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2,229 words · generated 29/09/2026
Palmerino Petrarca applied for merits review under s 77 of the Planning and Environment Act 1987 (Vic) after Maribyrnong City Council refused a permit for a beer garden at 538–540 Barkly Street, Footscray West. The Tribunal was constituted by Senior Member G.J. Sharkey, and the hearing took place on 9 October 2003. The order was made on 21 October 2003.
The existing two-storey commercial building was used as a bottle shop, bar and restaurant trading as Petrarca Cellars, with separate retail premises also operating on part of the ground floor. The proposed beer garden was to occupy the hardstanding area behind the building. It would have tables and chairs, include one car-parking space accessible from Market Street, and be a licensed area where patrons could consume liquor. Minor landscaping, including a fountain and garden beds, was also proposed (paras 2–3).
The setting was mixed use, but nearby homes were a central concern. Residential properties lay to the north, and the Responsible Authority submitted that some residents would be separated from the beer garden by a laneway of about three metres. The Council's grounds for refusal were that the proposal would cause an unreasonable loss of amenity, particularly through noise, and conflict with State and local policy protecting residential amenity (paras 9, 13).
At the hearing, the applicant relied on an acoustic consultant's report. The consultant proposed a 2.2-metre acoustic fence along the eastern, western and northern boundaries, with sound-absorptive treatment on part of the fence. The report predicted that average maximum noise levels from typical patron activity could be controlled to 60 dB(A) or lower if the fence were provided (para 14). The critical procedural fact was that the fence had not been part of the proposal considered earlier. The application had also not been referred to Melbourne Water, although the site was subject to a Special Building Overlay and the parties raised whether the fence proposal required referral (paras 5, 15–17).
The Tribunal did not determine the review by finding that the fence would fail to control noise. Instead, it considered that a fresh application setting out the complete proposal, with any necessary referrals, was more appropriate. It therefore disallowed the review, affirmed the Council's refusal and directed under s 85(1)(a) that a permit must not be granted. The Tribunal separately accepted the Responsible Authority's submission that car parking could be accommodated, so parking was not the decisive issue (paras 18–20).
The central issue in the Tribunal's reasons was the late emergence of a materially different noise-control proposal. The Council had argued that the beer garden would be an open outdoor area without sound attenuation, enclosed only by existing steel fencing, and close to neighbouring homes (para 13). The applicant's acoustic consultant then recommended a specific acoustic fence and construction details (para 14). The Senior Member expressly noted that this proposal had not been raised before (para 15).
The Tribunal acknowledged that the proposed fence “may well deal with concerns about noise from the subject land” (para 16). That is a cautious observation, not a finding that the fence would necessarily achieve an acceptable outcome. The Tribunal did not test the fence through an amended application or decide whether the proposed design would satisfy the planning scheme. Instead, it noted the Practice Note requirement for amended plans to be filed and served at least 20 business days before a hearing, and recorded the argument that the fence proposal should be referred to Melbourne Water because of the Special Building Overlay (paras 16–17).
Mr Loughnan asked the Tribunal to allow a referral to Melbourne Water at that stage. The Tribunal considered the request and concluded that “a fresh application, including all that is proposed,” should be made to the Responsible Authority, with any referrals then made (para 17). The reasons therefore turn on how to handle the new proposal and the associated referral question within this review. They do not establish a general rule that an acoustic fence must always be the subject of a separate application, or that a Tribunal can never consider amended plans.
Parking was expressly addressed but did not drive the result. Clause 52.06 set out parking requirements for particular uses, and the applicant's planner submitted that the proposed area would attract a requirement of 15 spaces. The Responsible Authority relied on its traffic engineer's assessment that surrounding streets and off-street parking could accommodate the needs of the premises. The Tribunal accepted that submission (paras 6, 18–19). The outcome should therefore not be read as a refusal based on insufficient parking.
The Tribunal identified the principal issues as residential amenity, particularly noise, and on-site parking (paras 11–12). Its actual reasoning dealt with parking briefly and focused on the unanticipated acoustic fence and referral issue. The final order affirmed refusal and directed that no permit be granted on the application before it. The reasons do not contain a detailed assessment of the relevant noise policy provisions or a final technical finding about acceptable noise levels.
This decision records the provisions and planning controls applicable to the application in 2003. It does not purport to change the law or announce a broad new test for noise, outdoor dining, amended plans or planning referrals.
Before the determination, the land was in a Mixed Use Zone. The Tribunal recorded that a restaurant or tavern was a Section 2, permit-required use under Clause 32.04-1, and that a permit was required for relevant building or works under Clause 32.04-7 (para 4). The site was also covered by a Special Building Overlay. Under Clause 44.05-1, a permit was required for building or works, and Clause 44.05-4 provided for referral to Melbourne Water unless the Responsible Authority considered that the proposal satisfied previously agreed requirements or conditions (para 5). The application had not been referred to Melbourne Water.
The judgment also records Clause 52.06's parking provisions and Clause 52.27's requirement for a permit to use land to sell or consume liquor (paras 6–7). It lists relevant policy provisions, including Clause 15.05 on nose abatement, Clause 17.01 on activity centres, and Clause 22.02 on Mixed Use Zone land use and development policy (para 8). The judgment does not quote the detailed content of those policies or explain how each was applied.
After the decision, the legal position established by this particular order was limited: this review did not produce a permit, and the Council's refusal remained in force. The Tribunal considered a fresh application an appropriate way for the complete proposal and any referrals to be dealt with (paras 17, 20). The judgment does not say whether a later application was made, what happened to one, or whether the proposal was ultimately approved.
Accordingly, this case is best understood as a fact-specific procedural and merits-review decision. It illustrates the significance the Tribunal placed on a noise-control measure emerging at the hearing when that measure had not been part of the application and raised a referral question. It should not be treated, on this source alone, as an amendment to the statutory or planning scheme provisions it recites.
At paragraph 15, the Senior Member states: “The proposal for an acoustic fence had not been raised before.” In plain English, the fence was a new feature at the review hearing, not part of the proposal that had previously been assessed by the Council.
At paragraph 16, the Senior Member says the fence “may well deal with concerns about noise from the subject land”. “May well” is tentative. It recognises the potential of the acoustic evidence without deciding that the fence was sufficient, properly designed or certain to resolve the amenity issue.
Paragraph 16 also refers to the Practice Note's timing requirement for amended plans. The Tribunal was concerned with the procedural setting in which the new design was raised. The reasons do not state that the Practice Note itself determined the outcome; rather, it formed part of the context for deciding how the newly proposed fence should be handled.
At paragraph 17, the Senior Member says: “I consider it more appropriate that a fresh application, including all that is proposed, should be made to the Responsible Authority and any referrals then made.” In plain English, the Tribunal considered that the Council should assess a complete proposal, including the fence, and address any necessary referral through a fresh application rather than having the Tribunal manage a referral at that point in the review.
At paragraph 19, the Tribunal states: “I accept the submission of Mr Wainwright with respect to car parking”. This confirms that the Tribunal accepted the Council's position that parking could be accommodated. It helps distinguish parking from the issues that led to the refusal being upheld.
Finally, paragraph 20 states that the review “is disallowed” and that “it is appropriate for a permit not to be granted”. The operative order is more specific: the Council's decision was affirmed, and the Tribunal directed under s 85(1)(a) that a permit must not be granted.
The decision is potentially relevant to planning review matters where an applicant introduces a substantial design change or mitigation measure at the hearing, particularly where that change may affect amenity assessments or trigger an additional referral. Here, the applicant's acoustic fence proposal had not been raised earlier, and the site was subject to a Special Building Overlay. The Tribunal considered both the timing of the proposal and the question of referral before deciding that a fresh application was more appropriate (paras 5, 15–17).
The facts also provide a useful comparison point where an outdoor licensed area is proposed near homes. The Tribunal recorded that the garden would be close to residential properties and that noise from patrons was the main amenity concern (paras 11–14). However, this judgment does not establish a numerical noise threshold, decide that a 2.2-metre fence is generally sufficient, or determine that all outdoor beer gardens require acoustic fencing. Its observations about the fence were provisional.
For parking disputes, the decision may be relevant where a responsible authority's traffic assessment says nearby parking is adequate despite limited on-site spaces. The Tribunal accepted the parking submission on the evidence before it (paras 18–19). That is a case-specific assessment, not a general rule that nearby street parking will always satisfy planning requirements.
Any comparison should account for the precise application, the timing and content of proposed amendments, the applicable referral provisions, the local planning scheme and evidence about the site. The judgment supplies no broader factual threshold for determining when a change is too late to be considered in a merits review.
The judgment contains no citations to other judicial decisions, and the supplied text contains no information about later cases considering or applying it. No conclusion about subsequent judicial treatment can therefore be drawn from this source.
The decision itself is a VCAT determination by a Senior Member in a merits review. Its reasons apply the statutory and planning scheme provisions identified in the judgment to the particular proposal and procedural history. The text does not state that the Tribunal was adopting or departing from a line of authorities, nor does it describe the decision as establishing a general rule.
For research purposes, the distinction between what this judgment says and what later courts may have said is important. The source supports the conclusion that this Tribunal considered a fresh application more appropriate in light of the late acoustic-fence proposal and the referral issue. It does not support an assertion that later courts have endorsed, limited, distinguished or overruled that approach. Establishing later treatment would require sources beyond the judgment provided here.
The judgment does not explain whether the acoustic fence would, if assessed on a complete application, have controlled noise sufficiently to protect residential amenity. The consultant predicted that average maximum noise levels from typical patron activities could be controlled to 60 dB(A) or lower with the specified fence, but the Tribunal did not make a final finding accepting or rejecting that prediction (para 14).
The reasons also do not decide whether a referral to Melbourne Water was legally required for the fence proposal on these particular facts. They record the applicable referral provision, the absence of a referral on the existing application and the argument that the proposed fence should be referred. The Tribunal's response was to prefer a fresh application and any referrals then made (paras 5, 16–17).
Other matters left unresolved include the detailed application of the noise and residential amenity policies, whether the proposed garden's operating hours or patron numbers affected noise, and whether any management conditions could have addressed amenity concerns. Those details are not set out in the judgment, so they cannot be treated as findings.
The decision also does not report what happened after the order. It does not say whether Petrarca lodged a fresh application, whether Melbourne Water was consulted, or whether a later proposal was approved. It therefore resolves the review of the refusal before the Tribunal, not the ultimate planning status of any later or modified proposal.
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PLANNING AND ENVIRONMENT LIST VCAT Reference: P1612/2003
RESPONSIBLE AUTHORITY: Maribyrnong City Council
SUBJECT LAND: 538-540 Barkly Street, Footscray West
MEDIUM NEUTRAL CITATIONS: [2003] VCAT 1478
It is ordered that the decision of the Responsible Authority is affirmed, and it is directed pursuant to Section 85(1)(a) of the Planning and Environment Act 1987 that a permit must not be granted.
For the Responsible Authority: Mr S Wainwright, Town Planner
Respondents/Objectors: Ms L Williams and Ms S Macri
For the Applicant for Review/ Mr D Loughnan, Consultant Planner, who called
Permit Applicant: Mr D Dolly, an Acoustic Consultant, as an expert
1. This is an application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of a decision of the Maribyrnong City Council ("the Responsible Authority") to refuse to grant a permit.
2. Mr Wainwright, in his written submission for the Responsible Authority, described the proposal as follows:
"A permit is sought to use the hard standing area at the rear of the subject site as an 'beer garden' associated with the existing restaurant/bar. The area will accommodate tables and chairs as well as one car parking space accessible via Market Street. It is proposed that the beer garden will be a licensed area within which liquor may be consumed.
Some minor landscaping works are also proposed, consisting of the installation of a fountain and garden beds."
3. Mr Wainwright described the subject land and surrounds as follows:
"The subject site is located on the north east corner of Barkly Street and Market Street, West Footscray and is known as No.538-540 Barkly Street. The site forms part of a mixed use precinct that extends along Barkly Street.
The subject site is described in Certificate of Title Volume 3953 Folio 413.
The site has a 10.66 metre frontage to Barkly Street and a 31.39 metre sideage to Market Street. It also has a rear abuttal to a 3 metre wide laneway. The site encompasses a total area of approximately 335 sqm.
A two storey commercial building occupies the site. It is used as a bottle shop, bar and restaurant trading as 'Petrarca Cellars'. Part of the ground floor is also used as separate retail premises (hairdresser).
To the east of the site at No.534 Barkly Street is a two storey office building used as a dentist, beyond which is a single storey dwelling, followed by a post office. To the west at No.542 Barkly Street, on the opposite site of Market Street, is a dwelling with a shop at the rear that addresses Market Street. To the north of the site are residential properties that front Milton Street.
4. The subject land is covered by the Maribyrnong Planning Scheme and is in a Mixed Use Zone which is the subject of Clause 32.04. Retail Premises, which includes a restaurant or tavern (bar), is a Section 2 - Permit required use, pursuant to the Table at Clause 32.04-1. A permit is required to construct a building or to construct or carry out works for a Section 2 use, pursuant to Clause 32.04-7.
5. The subject land is covered by a Special Building Overlay which is the subject of Clause 44.05. A permit is required to construct a building or to construct or carry out works pursuant to Clause 44.05-1. Clause 44.05-4 provides that an application must be referred to the relevant Floodplain Management Authority, Melbourne Water, pursuant to Section 55 of the Act unless in the opinion of the Responsible Authority the proposal satisfies requirements or conditions previously agreed to in writing between the Responsible Authority and the Floodplain Management Authority. The application was not referred to Melbourne Water.
6. Clause 52.06, Car parking, is relevant to the proposal. Clause 52.06-1 provides that the Table at Clause 52.06-5 sets out the number of car spaces required for particular uses. The Table provides that for a hotel or tavern 60 car spaces are required for each 100 square metres of bar floor area available to the public, plus 30 car spaces for each 100 square metres of lounge floor area available to the public. Mr Loughnan submitted that the area of approximately 50 square metres would attract a rate of 15 car parking spaces. Clause 52.06-1 provides that a permit may be granted to reduce or to waive the number of car spaces required by the Table.
7. A permit is required to use land to sell or consume liquor, pursuant to Clause 52.27, Licensed Premises.
8. Reference was made to the following planning policies:
* Clause 18.02 Car parking and Pubic Transport Access to Development
* Clause 22.02 Mixed Use Zone Land Use and Development Policy
1. The proposal will cause an unreasonable loss of amenity to neighbouring residential properties, particularly due to noise emissions.
2. The proposal is contrary to State and local policy regarding the protection of residential amenity.'
1. The proposal will not cause unreasonable noise impacts to neighbouring residential properties.
2. The proposal is consistent with state and local planning policy regarding the protection of residential amenity.
3. The proposal is consistent with the Maribyrnong Planning Scheme as a whole including the State and Local Planning Policy Frameworks and Council's Municipal Strategic Statement.
4. The proposal will not detrimentally affect the amenity of the area.
"The permit application raises two main issues both of which are reflected in the objections received by Council. Namely these issues are:
* Will the proposed beer garden have an unreasonable impact on the amenity of neighbouring residential properties?
* Does the proposal make adequate provision for on-site car parking having regard to the. overall use of the subject premises?"
12. I accept that these are the issues in this Application for Review.
"The beer garden will occupy an open, outdoor area on the north side of the existing building. No form of sound attenuation is proposed and the area will be simply enclosed by the existing steel fencing. Under these conditions noise emissions from patrons of the beer garden will have a direct impact on the residential properties to the north, even noise associated with a small number of patrons. Residents will be separated from the beer garden by only the width of the laneway (ie. minimum 3 metres). This degree of separation is considered inadequate to ameliorate the potential noise impacts associated with the beer garden."
14. Mr Loughnan, for the Applicant for Review/Permit Applicant, submitted an Expert report prepared by Mr D Dolly, an Acoustic Consultant, under cover of a letter dated 30 September 2003 and received by the Tribunal on 2 October 2003. Mr Loughnan called Mr Dolly as an expert witness at the hearing. Mr Dolly set out details of existing ambient noise and recommended design noise levels. Mr Dolly recommended noise control measures as follows:
"Based on our calculations it is anticipated that average maximum noise levels from typical patron activities can be controlled to 60dB(A) or lower by providing an acoustic fence at the perimeter of the Beer Garden as shown in Appendix C.
The acoustic fence should be 2.2 metres in height and be constructed in a manner equivalent to the design provided in Appendix D.
The acoustic fence is to extend on the east, west and north boundaries to ensure predicted compliance at each residence (R1 to R4).
A sound absorptive facing should be applied to the eastern fence to control sound reflection. This treatment should cover not less than 20 square metres and have a noise reduction coefficient of not less than 0.7.
It is noted that the fence will also attenuate noise that may be emitted from the existing building via the north facing doors. It is understood that these doors can be open during warmer months leading to some escape of people and background music noise."
15. The proposal for an acoustic fence had not been raised before. Noise impact was a ground of Refusal, and Mr Wainwright in his written submission, as quoted at paragraph 13 above, submitted that no form of sound attention was proposed.
16. The acoustic fence proposed by Mr Dolly may well deal with concerns about noise from the subject land, and it could be argued that it should have been the subject of a request to amend the permit application. Practice Note Planning and Environment List (No.1) General Procedures provides at paragraph 11 that amended plans should be filed and served at least 20 business days prior to any dates set for a hearing. It was also argued at the hearing that because of the Special Building Overlay a proposal for such an acoustic fence should be referred to Melbourne Water, which had not been done.
17. Mr Loughnan submitted that I should allow the matter to be referred to Melbourne Water now. I have considered this request, and I consider it more appropriate that a fresh application, including all that is proposed, should be made to the Responsible Authority and any referrals then made.
18. Mr Wainwright submitted with the respect to car parking:
"In responding to this question consideration has been given to the 'parking study' provided by the applicant which shows that the surrounding streets have spare capacity to cater for patrons of the subject premises. The parking study should be treated with caution though as it appears to have been conducted without the assistance of a recognised traffic engineer. Greater weight can be placed upon the findings of Council's own traffic engineer who has concluded that there are no parking issues associated with the proposal. It has been stated by Council's traffic engineer with respect to the original permit application that:
'Although only one hour parking spaces are available in Barkly Street, there are sufficient spaces in the surrounding residential streets. Therefore the existing on-street parking and other off-street carparks can comfortably accommodate the parking needs of the proposed restaurant.
A clear written warning should be attached to the permit, to say that Council may introduce some new parking restrictions or time limits in the future due to the introduction of a new parking policy'.
On this basis, the effective absence of any on-site car parking for the subject premises does not recommend against the grant of a planning permit.
19. The Respondents/Objectors were concerned about car parking. I accept the submission of Mr Wainwright with respect to car parking, however.
20. For the above reasons this application is disallowed. It is appropriate for a permit not to be granted, and I will so order.
Petrarca
Maribyrnong CC [2003] VCAT 1478
The decision of Maribyrnong City Council was affirmed. Under s 85(1)(a) of the Planning and Environment Act 1987 (Vic), the Tribunal directed that a permit must not be granted.