2 Within 14 days of the date of this order the applicant must serve upon the people identified under Order 1, the following:

b) A notice that if the person wishes to contest this application they must within 14 days of service of this notice lodge with the Tribunal and serve copies on the applicant and the responsible authority:

* An application to be joined as a party under section 60 of the Victorian Civil and Administrative Tribunal Act 1998; and

* A Statement of Grounds upon which they intend to rely at the hearing of the application for review.

3 As soon as possible the applicant must advise the Tribunal that Order 2 has been complied with by completing a statement of service and lodging it with the Tribunal.

4 Any applications by persons to be joined as parties which are lodged with the Tribunal shall be listed for hearing at a practice day.

5 If no applications are received for persons to be joined as parties, application P650/2004 shall be listed for hearing before a planning member for half a day.

(given orally at the hearing and subsequently revised)

1 This application for review is made pursuant to section 149(1)(b) of the Planning and Environment Act 1987. It involves a review of a decision of the responsible authority in relation to a matter that is the subject of an agreement made under section 173 of the Act, which matter must not be done without the consent of the responsible authority.

2 The applicant is the owner and user of land at 99 Maroondah Highway, Croydon, which operates as the Sofia Restaurant. The land is subject to a section 173 agreement and Clause 6(n) of the agreement provides that the applicant must not allow the seating capacity of the restaurant to exceed 250 seats, without the further consent of the responsible authority.

3 The applicant requested the consent of the responsible authority to increase the seating capacity of the restaurant from 250 seats to 348 seats in a letter dated 17 February 2004. The responsible authority refused to consent to the request in a letter dated 20 February 2004. The application for review seeks to set aside the decision of the responsible authority and for consent to be given to increase the seating capacity of the restaurant to not more than 348 seats.

4 A planning permit application (M/2002/210) was previously made erroneously for the same matter, and a notice of decision to grant was issued by the responsible authority. There was an application for review lodged by objectors but the matter did not proceed because the Council formed the view that it was in error to issue a notice of decision to grant a permit on the basis that it is not possible to vary a section 173 agreement by way of granting a planning permit. The objectors' concerns related mainly to traffic issues associated with the restaurant on the subject land and two adjoining restaurants, La Porchetta and McDonalds.

5 Local residents have previously voiced their concerns about traffic associated with the restaurants to the Council and this led the Council to commission a traffic and parking study, which was conducted by the Traffix Group. The executive summary of the study (March 2003) states:

"This study has been initiated by the Maroondah City Council in response to resident concerns relating to traffic and parking impacts associated with the three (3) restaurants accessing Nursery Road. Resident concerns included traffic management, access and car parking issues including the safety and operation of the intersection of Nursery Road with Maroondah Highway."

6 Resident concerns, which were identified in the study, include:

"Town planning permit conditions related to the number of patrons allowed at each of the restaurants (ie number of patrons allowed directly impacts on car parking numbers);"

7 Planning consent for the restaurant on the subject land is unusual insofar as there is no planning permit. Rather, the land was subject to a site specific amendment to the former Croydon Planning Scheme which allowed the two restaurants (Sofia Restaurant and La Porchetta Restaurant) subject to a section 173 agreement being entered. The section 173 agreement effectively operates as a planning permit and contains many conditions which would normally be found in a planning permit. This includes Clause 6(n) which governs the number of seats in the restaurants.

8 It appears that in June 2001 permit No M/2001/224 was issued by the responsible authority for an extension to the existing Sofia Restaurant and the endorsed plans for this permit include the additional seating for which consent is now sought under the section 173 agreement.

9 The purpose of the directions hearing was to clarify the relationship between the application and permit M/2001/224 and whether any other parties are affected. In particular, the Tribunal raised the issue that local residents who had been objectors to the earlier (erroneous) application for a planning permit to increase the number of seats may be people whose interests are affected by the proceeding within the meaning of section 60(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998.

10 The applicant has served a copy of the application for review on the owner and occupier of the La Porchetta Restaurant, which is also affected by the section 173 agreement. However, both the applicant and the responsible authority opposed giving notice of the application to any other persons. They submitted that under section 149 of the Planning and Environment Act 1987 the only persons entitled to be parties to the application for review were the parties to the section 173 agreement.

11 It was submitted by Mr Boyle on behalf of the responsible authority that the residents have had their views considered by the responsible authority through the traffic and parking study commissioned by the Council and by the responsible authority's refusal to consent to the increase in seating numbers. The residents have been given a fair hearing on the issue. This dispute now relates to a section 173 agreement and it is appropriate that such disputes are confined to the parties to that agreement.

12 I have formed the view that there may be local residents whose interests are affected by this proceeding and who should be given an opportunity to be heard for the following reasons. There has clearly been local resident concern about the traffic associated with this and the other restaurants nearby. This traffic is linked to the number of seats permitted in the restaurants. Whether those concerns are justified is a matter that can only be determined by hearing from these people and other parties in connection with the request to increase the number of seats at the Sofia Restaurant. The opportunity to be heard should be confined to people who have previously demonstrated their concerns namely those residents who lodged objections to the earlier permit application for consent to an increase in the number of seats.

13 I acknowledge that persons who are not party to a section 173 agreement are not normally parties to proceedings under section 149 of the Planning and Environment Act concerning those agreements and that as a general rule disputes under section 173 agreements should be confined to the parties. However, the circumstances of the present case are unusual in that the section 173 agreement operates as a de facto planning permit. The consent sought is to increase the seating capacity of the restaurant by 40%. This is not a minor change. Whilst section 149 of the Planning and Environment Act may not provide for other persons to be parties to section 173 agreement disputes, there is a general power under section 60 of the Victorian Civil and Administrative Tribunal Act for the Tribunal, on its own initiative or on the application of any person, to join persons as parties to a proceeding where their interests are affected or if for any other reason it is desirable that the person be joined as a party.

14 I consider that section 60 is a provision that is directed to achieving natural justice and achieving the objective set out in section 97 of the Victorian Civil and Administrative Tribunal Act that the Tribunal must act fairly and according to the substantial merits of the case in all proceedings. The power in Section 60 of the Victorian Civil and Administrative Tribunal Act is a general reflection of similar powers found in other parts of the Planning and Environment Act, which ensure that people whose interests may be affected by a proceeding are given the opportunity to be heard. Specific provisions include, section 82(B) in respect of permits; section 90(2) in respect of applications to cancel or amend permits; and section 115(e) in respect of enforcement orders.

15 If the increase in the number of seats required a planning permit, there is no doubt that surrounding residents would need to be given notice. It is all very well for the Council to say that the residents have had their views considered and they have been listened to because the Council has refused its consent under the section 173 agreement. But if the applicant is successful, that situation will be changed. I do not consider that where there is clear resident concern about a situation potentially affected residents should be excluded from the decision making process simply because the increase in seating numbers requires consent under a section 173 agreement rather than a planning permit. As a matter of natural justice I consider that the circumstances of this case justify giving potentially affected residents an opportunity to be heard if they so wish. I consider that potentially affected residents are those who have demonstrated an interest in this matter previously by lodging an objection to the previous planning permit application M/2002/210, and they should be given an opportunity to make application to be joined as a party to this application for review. If any such applications are made, they will be considered by the Tribunal, and the applicant and responsible authority will have an opportunity for their views to be considered before any order is made to join those people as parties.