The decision of the Responsible Authority is affirmed. The Tribunal directs that Condition 8 shall remain in the permit.

Planning and Environment List Planning and Environment List

For the Responsible Authority, Mr D Scally of Best Hoopers, Solicitors.

For the Applicant/Permit Applicant, Mr John Carey of Minter Ellison, Lawyers.

For the Respondents/Objectors, R Edmond, C Romios, G Jantzen, K Swan and B Sloan appeared personally.

1. This matter is an application for review made by Roy Boyz Pty Ltd ("Applicant") under Section 80 of the Planning and Environment Act 1987 against the conditions on Permit No 1354/2001 issued by the Port Phillip City Council ("Council") dated 28 February 2002 in respect of the subject land which is the Railway Hotel at 280 Ferrars Street, South Melbourne.

2. The permit allowed the development of the land for the purpose of alterations and additions to the existing hotel including demolition of canopies and iron roof abutting the laneway and construction of a covered yard and associated car parking dispensation in accordance with the endorsed plans and subject to the conditions set out in the permit.

3. The application was against Condition No 8 which read:

"A maximum of one hundred and ninety (190) patrons are permitted on the premises at any one time, without the further written consent of the Responsible Authority."

4. The Applicants reasons for making the application are:

* Condition 8 is void as it seeks to impose use conditions on a development permit.

* Condition 8 is necessary as patron numbers are already regulated by the liquor licence pursuant to the Liquor Control Reform Act 1998.

5. A copy of General Licence No 31911571 for the current calendar year in the name of the Applicant for the subject premises was produced to the Tribunal and provided the following condition:

6. All parties agree that the permit condition is reflected on the liquor licence.

7. The proposal for which the permit was granted was described in the application for planning permit as "to demolish an old roof structure and construct a new sound proof structure". The way the area of the works was used is described as "a covered service yard".

8. The subject land presently comprises a public bar, lounge, kitchen, pool room, bistro, terrace and garden area with female and male toilet and stores with a service yard at the rear opening on to a right of way. The service yard is partially covered by an existing galvanised iron roof diagonally across and an existing galvanised canopy.

9. The proposed works were to enclose part of the service yard by increasing the existing building area by 32.5m2 setback 3.4 metres from the rear right of way. An access door from the building to the rear service yard would be provided. An amended drawing showed further minor internal alterations to that previously considered by Council:

* An additional two female toilet cubicles necessitating the closing of two existing doors and the creation of a new opening in the brick work to the existing female toilet.

* The existing window to the courtyard from the cool room is to revert to a door opening.

* In preparing to pour the concrete slab for the new extension, the wall to the adjacent storeroom had to be removed and the storeroom is now included within the new enclosed patron area.

* 200mm thick acoustic insulation would be provided to the ceiling of this former store area in accordance with the requirements of Condition 1(b) last dot point.

10. The permit application is retrospective as the works are completed.

11. The subject land is 280 Ferrars Street, South Melbourne on which is situated the Railway Hotel, holding a general licence under the Liquor Control Reform Act.

12. The hotel is situated on the north western corner of Ferrars Street and Bank Street. The 32m2 of the covered service yard now incorporated in to the usable part of the premises is only a small portion of the total area.

13. The subject land is located within the Residential 1 Zone (Clause 32.01) wherein a permit is required for a food and drink premises as defined in Clause 74.

14. The premises have existing use rights as a Hotel and Clause 63 of the scheme is applicable.

15. Clause 52.06 of the Planning Scheme relating to the provision of car parking spaces is also under consideration and the Council submitted that the increase floor area required a car parking waiver under those provisions.

16. The land is also subject to a heritage overlay (Clause 43.01) under which a permit is required to demolish the existing roof sections and doorway openings and to construct the new building works. Planning permission was granted having regard to the heritage overlay requirements.

17. The question of law arising under the application is the first ground, namely that Condition 8 is void as it seeks to impose use conditions on a development permit.

18. Deputy President Horsfall decides this question as a member who is a legal practitioner, but Mr Gilfillan concurs in his decision.

19. Mr Carey submitted there is no power to impose condition 8, and that permit conditions must relate to the permission which is sought. He referred to the statement by Deputy President Byard in Rosemeier v City of Greater Dandenong (No 1) 20 AATR at page 86 where at paragraph 67 it was stated:

"The grounds of alleged invalidity appearing in the application forms were that the conditions challenged did not satisfy the test(s) of validity that a condition must fairly and reasonable relate to the permitted development (in relation to which the application cited well known cases of Pyx Granite Co Limited v Ministry of Housing and Local Government (previously cited) and Protean (Holdings) Limited v Environment Protection Authority 1977 (VicRoads 51) or that the condition must be reasonably capable of being regarded as relevant to the implementation of planning policy as ascertained from the Planning Act and/or Planning Scheme* (in relation to which the applications cited the further well-known case of 271 William Street Pty Ltd v City of Melbourne 1975 (VicRoads 156).

20. Mr Carey said in this instance a permit was required for development only, but Condition 8 of the permit imposes a use condition on a development permit. He relied on the decisions of John Paul College v City of Frankston (1991/02059) and Challister Limited v City of Caulfield (1992) 8 AATR 22 for the proposition that it is possible to impose a use condition on a development permit only where the development permit would "vary, intensify or extend the use in some manner so as to affect the surrounding amenity or give rise to other related town planning issues" which he said is not the case. He noted that the Council Officer's report stated:

"The hotel is not extending its licensed area or intensifying the land use."

(b) This area has always been part of the licensed area and always available for patrons to stand in and have a drink. Nothing has changed except the area is now covered.

(c) It cannot be said that Condition 8 reasonably relates to the permission which is sought and as such there is no power for the Council or for the Tribunal on review to impose such a condition.

(d) The imposition of the condition is contrary to the existing use rights enjoyed by the Hotel, in circumstances in which a permit has not been sought to extend or expand that use.

22. Mr Scally for Council submitted the proposal will result in an increase in "floor area" in circumstances requiring the provision of an increased number of car parking spaces on the land under Clause 52.06 of the Planning Scheme, and, in lieu of providing the required car parking, having regard to the provisions of Clause 63.05, 63.12 and 65.01, it was appropriate to require a condition on the planning permit restricting patron numbers.

23. He said that under Clause 63.05 a use in a Section 2 or Section 3 of a zone for which an existing use right is established may continue provided (inter alia) that:

"No buildings or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in the scheme."

24. He referred to the decision guidelines in Clause 63.12 which require that:

"In addition to the decision guidelines in Clause 65 and any other requirements of the Act, the Responsible Authority must consider the extent to which compliance can be achieved with all scheme requirements that can reasonably be met."

25. He referred to the decision guidelines in Clause 65.01 which include:

* "the matters set out in s.60 of the Act (e.g. environmental impacts);

* The purpose of the zone, overlay or other provision;

* The SPPF, MSS and local planning policy framework;

* Any matter required to be considered in the zone, overlay or other provision; and

".... The floor area of an existing use must not be increased until the required car spaces have been provided on the land.

Where the floor area occupied by an existing use is increased, the parking requirement only applies to the floor area of any extension of the use or site area provided the existing number of car spaces is not reduced."

27. Mr Scally submitted that pursuant to the carparking table of Clause 52.06-5, 30 car parking spaces are required, for each a 100m2 of ground floor area available to the public for a hotel and submitted that the increased floor area of 32.5m2 required a car parking waiver of 10 (9.75) spaces.

28. Mr Scally submitted that the planning permission sought contemplates an extension of the patron areas of the existing hotel use, that the Applicant advised the Council that the existing pool table will be moved into the new area and the new area will be used as an extension to the lounge. He submitted the new area increases patron capacity whereas previously it was an external service yard traversed by patrons accessing the male toilets.

29. He said it increased "floor area" within the meaning of that term at Clause 52.06-1 of the Scheme and whilst floor area is not defined he referred to the definitions of "gross floor area" and "net floor area" in Clause 72. He submitted that "floor area" should be given its ordinary meaning which under the Macquarie Dictionary includes "that part of a room or the like which forms its lower enclosed surface, and upon which one walks" and he referred to other definitions in the Oxford and Macquarie Dictionaries.

30. He submitted that the former existing iron roof and canopy over parts of the service yard could not be said in any sense to form part of a "room" in that both elements were fixed to the external walls of the existing building and were open to the service yard and that in any case only part of the area now enclosed could be said to have once had a roof.

31. He submitted that where there was no proposal before the Tribunal for additional car parking, in order to ensure that the affect on the amenity of the area is not unreasonable, a condition restricting patron numbers is justified having regard to the decision guidelines of Clause 65.01:

"* The MSS must be considered and increased on street visitor car parking is identified as a particular issue within residential areas:-

"Ensure that new non-residential uses, where permitted, do not result in a loss of amenity for residential properties, particularly as a result of increased traffic and public demand (at clause 21.05-1)"

* Amenity impacts are also a relevant consideration.

* The saturated parking conditions have not changed since the earlier VCAT decision.

* That decision found patron numbers should not increase "for that reason alone".

* No new evidence is before this Tribunal that parking conditions have improved.

* On any reckoning the lounge floor area has been increased with the result that a car paring waiver is required (3-10 cars) (clause 52.06).

* The need for increased car parking spaces puts increased pressure on residential amenity.

* In lieu of parking a patron number cap is necessitated as a planning priority identified within the Planning Scheme."

32. The Tribunal observes that whilst Condition 8 is the only condition attacked by the review, the permit contained a number of other provisions that could be said to be "use" conditions.

* Condition 3 requires that no speakers (amplified music are to be located within the new room)

* Condition 4 requires the external door provided from the room to the outdoor service yard must be self closing and not remain open during hotel operation times.

* Condition 5 requires the rear gate may not be used for entrance and egress except in emergencies,

* Condition 15 is the general condition that the amenity of the area must not be detrimentally affected by the use or development.

* Condition 16 controls the level of noise emitted from the premises, and

* Condition 17 requires toilets to be provided for patrons.

33. In Challister v City of Caulfield the relevant passage relied on is:

" This opinion is supported by Mr Byard in the appeal John Paul College v City of Frankston, Appeal No 1991/02059, page 7 in which he stated:

"As I have found that 89/484 is a development permit, only conditions that relate to the development permission granted can validly be imposed. Mr Stewart argues, in effect, that 'use' conditions cannot be attached to a development permit. He argues that Condition 2 relates to use and therefore is not valid. He says it should be deleted on the basis that the planning scheme does not afford a basis for any control of hours in relation to an as-of-right use like education centre. It would only be if a permit was being granted for a use that required permission, eg. a place of assembly, that a condition controlling hours could be imposed.

I accept that a condition must relate to the permission being granted. Generally the conditions that can be attached to a development only permit will be much more limited than would be the case if a use permission was also involved. Generally a condition on hours will relate to use. However, it does not follow that a restriction on hours can never validly attach to a development permit. Situations can be conceived where a development would be acceptable from a town planning point of view, but only on the basis that there was some limitation on hours. A development might enable or encourage an activity that would be quite acceptable at some hours but cause serious detrimental affects on the amenity of the area if engaged in at other times. The appropriate result in such circumstances would not be to grant or refuse an unconditional permit. Rather it would be to grant a development permit subject to a condition restricting the hours of activity in an appropriate way.

Hence I do not accept Mr Stewarts proposition that Condition 2 is clearly invalid and unsupportable under the Planning Scheme. Such a condition, depending on the circumstances and the restriction it imposes, might very well be appropriate."

In my view, if in circumstances such as this a development permit is sought which would vary, intensify or extend the use in some manner so as to affect the surrounding amenity or give rise to other related town planning issues, then provided a condition is reasonably related to the development then conditions affecting the use could in those circumstances be imposed."

34. The test for validity of a condition on a permit is well established. The test makes no reference to whether the permit or the condition are for "development" or for "use" We agree with what was said in Challiste_r_, but do not consider that the last paragraph quoted above means that the only circumstance in which a "use" condition may be applied to a "development" permit is where there is a variation "intensification or extension of the use". The last paragraph gives those circumstances an example of appropriate circumstances, but the Member confirms that the test is that the condition must be reasonably related to the development. The paragraph also adds that a use condition on a development permit may be appropriate where the circumstances give rise to other planning issues

35. Accordingly the determination of the question of law is that the condition is not void by reason of it being a "use" condition applied to a "development" permit.

36. Further we find that Condition 8 does fairly and reasonably relate to the purpose for which the permit is sought.

37. We accept Mr Scally's submissions in relation to floor space and consider that the extension is the creation of additional floor space within the meaning of Clause 52.06 and that a waiver for car parking is required. It is reasonable and appropriate in the circumstances for the Council to place a limit on patron numbers in order to ensure that the demand for car parking is controlled. It is not sufficient for the Applicant to say that it is only a small extension of the already large area used by patrons for the hotel or that the area is already within the licensed area. Whilst there may not be an intensification of the use, there is an extension of floor area which brings the car parking provisions into play.

38. Further whilst it may be true that the area outside was used for a drinking area, its enclosure and furnishing will make it more attractive to patrons and will provide an enclosed and furnished additional area within the building which has the capacity to attract more patrons to that area, in contract to patrons drinking in an exposed service yard.

39. It is noted that this Tribunal in an application in the Occupational Business and Regulation List has refused an application by the Applicant against the decision of the Director of Liquor Licensing in relation to increasing the maximum patron numbers above 190. However that the liquor licence imposes a maximum capacity provision is not a reason why the planning permit should not contain such a provision. We have found that a maximum capacity provision is relevant to the planning controls and should be imposed for the purposes of the car parking provisions and protecting the amenity of the area.

40. The maximum capacity provision on the liquor license, whilst no doubt relating to the amenity of the area, is imposed under different legislation, not under the Planning and Environment Act 1987 or the planning scheme. It is irrelevant to this Tribunal that there is a maximum capacity provision imposed on the licence.

Planning and Environment List Planning and Environment List