2. The use and development allowed by this permit and shown on the

plans and/or schedules endorsed to accompany the permit shall not be amended for any reason without the consent of the Responsible Authority.

3. Without the prior written consent of the Responsible Authority, the use hereby permitted shall operate only between the hours of 10.00am to 11.00pm, Sunday to Thursday and 10.00am to 1.00am the following morning on Friday and Saturday.

4. The use hereby authorised shall only cater for a maximum of 175 patrons at any one time and must not be altered without the consent of the Responsible Authority.

5. The car space provided for the use hereby permitted shall be made available for staff of the proposed use during the normal or specified hours of operation. The car parking shall not be restricted in any way and no charges or fees maybe imposed, fixed or collected for the use of any of the spaces, except the charges (if any) and fees (if any) from time to time approved in writing by the Responsible Authority.

6. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to minimise any adverse effect on adjoining land to the satisfaction of the Responsible Authority.

7. The use hereby permitted shall at all times be conducted in a manner

which ensures that the amenity of nearby residential properties is not detrimentally affected, to the satisfaction of the Responsible Authority.

8. The collection of rubbish from the premises (other than normal Council collection) shall be conducted between the hours of 8.00am to 6.00pm on any day of the week.

9. Air conditioning and other plant and equipment shall be located and

screened so as to not be visible from any of the surrounding footpaths, and the emission of unreasonable noise or any other emission to the environment derived from activities on the site shall conform to standards contained in the appropriate State Environment Protection Policy and/or Policies, to the satisfaction of the Responsible Authority.

10. Noise emanating from the use hereby permitted shall comply with

State Environment Protection Policy (Control of Music Noise from

Public Premises) No. N-2, to the satisfaction of the Responsible

11. The provision of music and entertainment on the premises shall be limited to background music or entertainment by performers using non-amplified instruments unless the consent in writing of the Responsible Authority is obtained for other entertainment.

12. Adequate provision shall be made for the storage and collection of garbage and other solid wastes within the curtilage of the site. This area shall be properly graded and drained and screened from public view to the satisfaction of the Responsible Authority.

13. The location and details of the sign shown on the endorsed plans must not be altered without the written consent of the Responsible Authority. The sign must be maintained to the satisfaction of the Responsible Authority.

14. The consent granted by this planning permit for the display of the internally illuminated sign will expire 15 years from the date of issue of the permit.

15. Aside from the expiration referred to in Condition 14, this permit will expire if one of the following circumstances applies:

a)

the use and development are not started within two years of the date of this permit.

b)

the development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Costs reserved. Leave is granted for the applicant to file with the Tribunal and serve on the responsible authority an application for costs by no later than 28 days from the date of these Orders. The application must specify the particular subsections of s 109 of the VCAT Act relied upon and particulars as to the amount of costs claimed. The responsible authority may file with the Tribunal and serve on the applicant a response to the costs claim within 56 days of the date of these Orders. The costs application will be determined "on the papers" unless either of the parties requests a hearing.

Mr M Dietrich, Consultant Town Planner, who called evidence from Mr T Hardingham, Consultant Traffic Engineer

These reasons follow a decision and outline of reasons given orally at the conclusion of the hearing.

The subject land is located on the north west corner of Chapel Street and Maddock Street in Windsor. Maddock Street is a dead end street extending some 50 metres to the west of Chapel Street immediately to the north of Windsor Railway Station. The land has a frontage to Chapel Street of 11.2 metres and a frontage to Maddock Street of 24.3 metres. It has an area of 273 square metres and is occupied by a single storey commercial building constructed to the front and both side boundaries and extending for 90% of the length of the site. Two car parking spaces are located at the rear of the building, accessed from Maddock Street.

The building on the land has been used most recently as a hairdressing training premises, and prior to this it was used as a bank. There is still an ATM located on the Chapel Street façade.

North of the land and opposite it are commercial uses fronting Chapel Street. To the south is the Windsor Railway Station and beyond that commercial uses facing Chapel Street. To the west is a two storey building with vacant commercial premises at ground floor with apartments at upper floor level.

The proposal is for buildings and works to the existing building and to use it as a tavern. The tavern is to operate essentially as a wine bar from 10 am to 11 pm Sunday to Thursday, and 10 am to 1 am the following day on Friday and Saturday. The emphasis is to be on the serving of premium wines in a sophisticated and well appointed setting. The total floor area open to the public is to be 128 square metres and the maximum number of patrons proposed is 175 persons. Entry is to be from Chapel Street. A Building Surveyor's report tendered by Mr Dietrich confirms that the floor area, exits and facilities can accommodate this number. No live entertainment is proposed. External works are proposed for the Chapel Street façade to modify the existing access and to provide for modest business signage. Buildings and works are also proposed at the rear of the site to provide additional storage and service areas. One of the two car parking spaces is proposed to be retained.

The land is in the Business 1 Zone. Pursuant to the zoning a "tavern" is a section 2 use requiring a planning permit. Pursuant to Clause 34.01-4 a permit is required for buildings and works. The land is also affected by a heritage Overlay (HO126). Pursuant to the Overlay a permit is required for demolition, external alterations, buildings and works. Pursuant to Clause 52.05 a permit is required for the proposed illuminated sign on the Chapel Street façade. Pursuant to Clause 52.06-1 38 car parking spaces are required, but a permit may be granted to waive or reduce the shortfall of 37 spaces.

Pursuant to Clause 52.77 a permit is required for the sale and consumption of liquor, as the premises are currently unlicensed. The plans do not show any bicycle parking. Pursuant to Clause 52.34-2 a permit is required to waive the one space required by the clause, but Mr Dietrich stated that this space could be readily accommodated.

The Officer's Report on the permit application recommended approval of the proposal, but the responsible authority refused to grant a permit on the following grounds:

The proposal will result in unacceptable and unreasonable amenity impacts on nearby residential uses by way of noise, traffic and parking activity and unsuitable hours of operation.

Inadequate levels of suitable car parking serve the proposal and surrounding area.

The land is in the Principal Activity Centre which extends from Toorak Road in the north to Dandenong Road in the south. The proposed use is consistent with the strategies for Activity Centres set out at Clause 12 of the State Planning Policy Framework. It is also consistent with Clause 17 as it relates to Activity Centres.

The former Entertainment Policy in the LPPF section of the Stonnington Planning Scheme has been replaced via a Scheme amendment by the Licensed Premises Policy at Clause 22.10. The critical parts of this policy are as follows:

The preferred location for trading after 11:00 pm is in principal 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.

The adjacent land at the rear of the subject land is in the Business 1 Zone and contains apartments at first floor level. The nearest Residential Zone to the subject land is approximately 40 metres to the west.

The existing building on the land has no heritage value. The responsible authority has no concerns about the proposed alterations to it. The Council's traffic engineer, to whom the permit application was referred, was generally supportive of the proposal (and of the reduction in car parking requirements proposed) provided that both of the existing car parking spaces on site were retained, but observed that the cumulative effect of granting reductions in car parking requirements into the future would be likely to reduce the availability of parking in the area. As there is more than sufficient parking available now close to the subject land to accommodate parking demand generated by the proposal, any future shortfall of parking is not a problem for the applicant. If such a problem becomes apparent in the future, that is really a problem for the Council to address. As to retaining both car spaces on the land, the loss of one space is not significant and can be readily justified, given the availability of parking nearby.

A report prepared by Mr Hardingham, which included the results of parking surveys conducted in the precinct in which the subject land is located, accompanied the permit application. The report stated that a reduction in car parking requirements was readily justified on the basis that empirical data suggests that the likely maximum demand for parking generated by the proposal would be 40 spaces (at 0.2 spaces per person). It further stated that more than 150 spaces were available in the McIlwrick Street and Lincoln Street off-street car parks on Friday and Saturday afternoons, and more than 200 spaces were available in these car parks on Friday and Saturday evenings. The McIlwrick Street car park is within 60 metres of the subject site and provides free parking after 6 pm. The Lincoln Place car park is within 150 metres of the subject site. The entrance to the McIlwrick car park is off Chapel Street just south of the subject land. At the hearing, Mr Hardingham's evidence was that on Saturday evenings 98% of the 157 spaces in the McIlwrick Street car park, and 20% of the 76 spaces in the Lincoln Place car park, are vacant.

Mr Bowden conceded that there was sufficient supply of parking spaces nearby to accommodate the parking generated by the proposal. His submission was that the Council is concerned about the noise impacts on residences created by patrons from late night venues returning to their cars, and that it was on that basis that the responsible authority refused to grant a permit.

One could understand the responsible authority having some concerns if this were a late night music or nightclub proposal and there was a strong likelihood that patrons would park in nearby residential areas. Generally speaking, one would expect most of the patrons of late night nightclubs and live music venues to leave at or close to closing time. But this is not a proposal for a nightclub or live music venue. The closing times proposed are 11 pm on weeknights and 1am on Saturday and Sunday evenings. I note that there are numerous other premises nearby which trade a good deal later than 1 am (for example, the pizza restaurant opposite, on the east side of Chapel Street trades 24 hours a day; the souvlaki restaurant just up Chapel Street from the subject land trades until 3 am; the nearby Railway Hotel trades until 3 am and has a bottle shop which trades 24 hours per day; and the Union Hotel trades until 3 am). It may well be that patrons of these venues or other late night venues in the area park in nearby residential streets. If that is proving to be a problem then the Council could solve it by introducing permit only parking between, say, 10 or 11 pm and 8 am.

Given that the emphasis of the use is the serving of premium wines in a sophisticated setting, one would not reasonably expect patrons, or even a large majority of them, to all leave at closing time. I might also add that, given the nature of the proposed use, one would not reasonably expect patrons to be unduly affected by alcohol. And finally, given the location and quantity of free parking available in the nearby car parks, particularly the McIlwrick car park, which is within 60 metres of the subject site, there is no reason why one would expect patrons returning to their cars to have any impact on any dwellings.

I have therefore set aside the decision of the responsible authority and granted a permit subject to conditions. Before doing so I considered the decisions of the Tribunal in Brovonjak v Stonnington CC [2004] VCAT 1792 and Koutsantoni and Assoc v Stonnington CC [1997/09147), drawn to my attention by Mr Bowden. In Brovonjak the proposal was for a live band venue accommodating 300 patrons and operating until 3 am seven days per week. In Koutsantoni the proposal was also for a live music venue accommodating 200 patrons and also operating until 3 am seven days per week. In my opinion the proposals were so different from the proposal before me that the decisions in these cases have no relevance to my decision.

I have not included in the conditions of the permit the condition proposed by the responsible authority of a Noise Amenity and Action Plan. The condition did not even specify that such a plan should be prepared. It simply stated "A Noise and Amenity Action Plan which contains the following information ........". It did not specify that the applicant must prepare it. It did not specify that such a plan must be to the satisfaction of the responsible authority, or that once approved by the responsible authority it must be complied with. The matters listed for inclusion in the plan included a series of things dealt with by other conditions proposed for the permit. But aside from all that, the question arises as to whether a management plan is appropriate for a use such as that proposed. On balance I don't think it is appropriate. Management plans which must be complied with are commonly imposed as conditions on permits for late nightclubs and live music venues where the issue of noise impacts on dwellings from the venue, from patrons entering and exiting the venue, and from patrons moving between the venue and parked cars arises. But as I have observed above, this is not a late night proposal and it is not a proposal for a nightclub or live music venue. Noise from the venue itself or from patrons entering or leaving the premises is not likely to be an issue, and neither is noise from patrons returning to parked cars likely to be an issue.

Mr Dietrich stated that his client intended to apply for costs. My understanding from Mr Dietrich is that the applicant intends to rely on the relative strengths of the claims made by the parties, pursuant to s 109(3)(c) of the VCAT Act, and on the grounds that the real and substantial reason for refusing to grant a permit had nothing to do with planning considerations. I have granted leave for a costs application to be made as set out in Order B.