1 This matter is adjourned.

2 The permit applicant is to advise the Registrar in writing within 14 days of the date of this document, with copies to the other parties as to whether the permit applicant wishes to amend the proposal taking account of the reasons given herein. The advice must include a timeframe for the preparation of plans and accompanying information.

1 This matter concerns an application made under Section 82 of the Planning and Environment Act 1987 by objectors against the Nillumbik Shire Council's decision to grant a permit with respect to Planning Permit Application No. 596/2004/02P. The permit application sought permission for a 95 seat restaurant to be operated in conjunction with the "Samson Hill Estate" winery on land known as 360 Eltham-Yarra Glen Road, Kangaroo-Ground [the site]. The Notice of Decision to Grant a Permit issued by the council on 14 December 2004 is subject to 24 conditions.

2 The site is located on the south side of the Eltham-Yarra Glen Road, about 500 metres east of Kangaroo Ground - St Andrews Road. The site is irregular in shape with a frontage of 180.49 metres, a depth of 504.42 metres along its west side boundary and an overall area of about 10.3 hectares.[2] The site is set on mildly sloping terrain, generally falling from its frontage down towards the rear boundary, particularly the southwest corner.

3 About half of the site is currently planted with grape vines. Most of the vines are planted to the south of the area where a number of buildings are located, with a smaller area located towards the northwest corner. Further, groups of olive trees have been planted along the east, west and southern boundaries. A dam that stores water for irrigation is located toward the southwest corner.

4 There are a number of buildings on the site, located about 110 metres from the frontage. These include a 4 bedroom dwelling; 2 double garages associated with the dwelling and 2 colourbond clad "sheds" that are essentially used for winery purposes; the production of wine and cellar door sales.

5 The buildings used for winery purposes are located about 20 metres away from the site's east boundary. Car parking for about 20 cars and some landscaping exist in this setback area. Access to the car parking area is via an internal road that extends from the site's frontage down to where the buildings are located where it then continues in an easterly direction.

6 Mr and Mrs Sipthorp reside in the dwelling on the adjoining property immediately to the east of the subject site. The Sipthorp property has an area of about 8 hectares and is essentially used for rural residential purposes. Buildings on the Sipthorp property comprise a double storey dwelling and 2 sheds/outbuildings. The dwelling is sited about 20 metres from the common boundary with the site. The dwelling has an expansive verandah area that allow for sweeping views towards the southwest, including Melbourne's CAD skyline. There are also expansive southeast views towards the Dandenongs. The 2 outbuildings are located to the northwest and southwest of the dwelling, near the common boundary with the subject site.

7 Contextually the site is located within a rural area, set on sloping terrain with most of the land cleared of vegetation. It is within what is understood to be a green wedge area. Other surrounding properties are used for agricultural and rural residential purposes; however, according to Mr Livingston, the dwellings on other properties are located more than 350 metres away from the sheds on the subject site.

8 The Eltham-Kangaroo Ground Road pavement proper is sealed; however, it has gravel shoulders.

9 In light of issues raised at the hearing, it is necessary that I set out some of the facts behind the establishment of the vineyard and winery on the site.

10 I understand that the planting of vines on the site, which did not require a permit, commenced sometime around 1998.

11 Construction of the buildings and the use of the site for a winery has been authorised pursuant to several permits dating back to 1998. The endorsed plans pursuant to the first permit[3] show the construction details of the existing dwelling, the 2 double garages immediately adjacent to it and 1 of the 2 colourbond sheds. This shed is rectangular in shape and oriented to run in a north-south alignment. I will refer to it as Shed 1.

12 In August 2003, a permit[4] was issued allowing the use and development of a winery and cellar door sales. The endorsed plans under this permit show that wine production and cellar door sales would occur in Shed 1 as well as the provision of car parking along the east side boundary adjacent to the shed. Conditions on the permit restrict cellar door sales to between the hours of 9am and 8pm with the number of visitors to the property limited to 30. Condition 4 on the permit also restricts the size of buses coming to the property.

13 In October 2003, a permit[5] was issued for the construction of the second shed [Shed 2]. This shed is also rectangular, but is oriented in an east-west direction and located to the rear of Shed 1. The endorsed plans show landscaping in the area immediately south of the shed. On my inspection I noted inconsistencies between what is shown on the endorsed plans and what has been constructed. In particular, the endorsed plans show that a significant part of the southwest corner of the shed as being devoid of cladding. Mr Iles suggested that the area marked "no cladding" is meant to reflect glazing, however I do not agree. I would infer from the details shown on the plans that this building would not be totally enclosed. However, glazing has been installed in this part of the building thus making it a fully enclosed building. Further, the landscaping to the south of the building has not been planted; rather, this area is paved.

14 Mr Livingston explained that at some stage before the permit application that is now before me was lodged with the council, the cellar door sales use was relocated to Shed 2 and various facilities including a kitchen and toilet were installed in this building. It was alleged that the building was also used for a picture gallery and dining area for meals. Further, the paved area to the south of the building was also set up to provide outdoor seating.

15 At the time of my inspection, dining had reverted back to Shed 1, with Shed 2 used for storage. There was no seating provided in the paved area to the south of the Shed 2.

16 A permit is now sought to use Shed 2 for the purpose of a licensed restaurant with a maximum of 95 seats for patrons. Permission is also required for the construction of various buildings and works including the fit out of the Shed 2; the construction of a new car parking area, essentially to the north of the sheds of the site, fencing and landscaping. Under this proposal, Shed 1 would be used for the production of wine.

17 The layout and works to Shed 2 are shown on the application plans. Up to 70 seats would be located within the restaurant building; however, the applicant seeks flexibility for some of this seating to be relocated outdoors in the paved area to the south of the building, presumably on days when the weather is favourable. I understand that not more than 50 seats would be provided outdoors; however, not more than 95 seats would be available both indoors and out at any one time. The restaurant would be open to the public between 9am and 6pm, Monday and Tuesday; 9 am to 11pm on Wednesday to Saturday and public holidays and 9 am to 10 pm on Sundays. 1am closing is sought on New Years Eve. No live music that is amplified or DJ music is proposed.

18 The initial proposal involved the retention of the existing 20 space car park adjacent to the common boundary with the Mr Sipthorp's property. In light of concerns raised in objections, Mr Iles said that the applicant would be agreeable to providing car parking to the north of the buildings and in the area in between the dwelling and the water tanks. The overall number of spaces available would be 64, as shown on plan SK3 tabled at the hearing. Access from the car park to the restaurant would be provided via a central pathway leading to an entry on the west side of the building.

19 The existing car park area would be limited to 3 disabled spaces and for deliveries. Landscaping is also proposed.

20 The permit application was lodged with the council on 13 September 2004. The council required notice of the permit application to be given and in response it received 5 objections. Mr Livingston summarised the grounds of objection at page 9 of his submission. In general terms the grounds raised concerns with respect to the appropriateness of the use having regard to its scale by comparison to the other activities on the site, the zoning and the sites Green Wedge location; the impact on amenity [noise, traffic, overlooking, light pollution] and the impact on the environment [scenic qualities of the landscape and wildlife]. The council's Public Health Department and Economic Development Units did not raise concerns that could not be addressed by permit conditions.

21 The council subsequently decided to approve the application.

22 I note that by letter dated the 8 March 2005, the council advised the registrar and the other parties that it would seek an additional condition in the event that the tribunal decides to that a permit should be granted. The condition requires an acoustic fence to be constructed adjacent to the existing car parking spaces, that is, adjacent to the common boundary with Mr Sipthorp's property.

23 Mr Iles indicated that the applicant would not resist such a condition and produced a plan showing the provision of a 2.8 metre high, 35 metre long acoustic fence adjacent to the east boundary as well as a smaller acoustic fence adjacent to the outdoor paved area. In light of the submissions, I propose to consider the provision of the acoustic fence as part of the proposal.

24 Having set out the details of the proposal, I will now briefly set out the various planning scheme provisions that are relevant. In doing so, I do not propose to set out the details of every provision that may be in some way relevant. I think that the details of the relevant statutory controls and provisions, including the various strategies, policies and objectives were comprehensively set out in the submissions presented on behalf of the parties.

25 By way of summary, I note that under the Nillumbik Planning Scheme, the site and surrounding properties are located within the Rural Conservation Zone, the provisions for which are found at Clause 36.06.

26 "Restaurant" is a Section 2 or permit required use within the zone provided that it is "....used in conjunction with Agriculture, Rural Industry, or a Winery" and the number of patrons present must not exceed 150[6]. I note that "function centre" is a prohibited use in the zone. Under Clause 35.06-4, a permit is required for buildings and works. Relevant decision guidelines are at Clause 35.06-5. These require consideration to be given to a range of general, rural, environmental as well as design and siting issues.

27 I also note that the site is covered by the provisions of Schedule 3 to the zone which specifies that the "Conservation Values" for land as:

To ensure that land use changes do not have an adverse impact on the landscape or strategic environmental values of the land.

28 The site is located within a metropolitan Green Wedge area and, as such, the provisions at clause 57 are also applicable. Under clause 57. "Restaurant" is not prohibited provided that, amongst other things, it operates in conjunction with Agriculture or a Winery; and it accommodates no more than 150 patrons.

29 In terms of overlay controls, the Environmental Significance Overlay covers the southeast corner of the site. However, the provisions of this overlay do not come into play as the proposal is outside of the overlay area.

30 Car parking provisions are at Clause 52.06. Under the table to this clause, 0.6 spaces must be provided for each seat available to the public. In this case, the maximum patron number is 95 and therefore 57 spaces are required. The proposal provides for this number of spaces and therefore, a permit is not required for a reduction in parking.

31 Under clause 52.27, a permit is required to vary an existing liquor licence.

32 There is a raft of planning policies that are in some way relevant to the consideration of this proposal. Relevant policies within the State Planning Policy Framework [SPPF] include clauses 15.05 [Noise abatement]; 17.02 [Business]; 17.04 [Tourism]; 17.05 [Agriculture]; 18.02 [Car parking and public transport access to development].

33 In relation to the Local Planning Policy Framework, there are various clauses within the MSS that are relevant to the consideration of this proposal including those relating to Rural Land Use within the shire; Environment Conservation and Landscape and Economic Development.

34 Melbourne 2030 is an adopted state government strategy. Policy 2.4 within the strategy outlines directions for Green Wedge areas. I will discuss the relevance of Melbourne 2030 as appropriate.

35 I now turn to the consideration of the proposal and in particular, the various arguments put forward by Ms Bundy and Mr Sipthorp in opposing this proposal.

36 In her submission, Mr Bundy set out in great detail the background to the development and use of the site for a winery and its subsequent use for the purpose of a restaurant. In particular, Ms Bundy focussed on the various permits that have been issued, the applicant's failure to comply with some of their requirements as well as the commencement of the restaurant use without approval. Ms Bundy also submitted that the council's planning officers had not taken satisfactory action to enforce the planning scheme. It was submitted that the applicant had not shown proper regard for the planning scheme and the commencement of unlawful activities should not be rewarded with permits being granted "retrospectively".

37 I can well understand the frustration that neighbours can feel in circumstances where it seems reasonably apparent that use and development has occurred on a particular site either without a permit or not in accordance with the conditions of a permit.

38 However, in cases like this, the tribunal's task is to review the merits of the proposal for which permission is being sought. If the proposal is worthy of a permit, then one should be granted. In merits review cases, it would not be appropriate to deny a permit for a proposal that is acceptable as a form of punishment. If it is considered that the circumstances of a particular case warrant some form of punishment, such as a fine, then the appropriate course is for such matter to be prosecuted before the courts.

39 I agree that the existence of a use or development that is unlawful should not provide an applicant with an advantage. Where something has occurred without a permit, the appropriate way to consider an application seeking retrospective approval is as if what is proposed has not occurred. If it is found that a permit should be granted, then the applicant is fortunate. If it is found that a permit should not be granted, then the use or development in question would remain unlawful. Other action would need to be taken to have the use cease or the works removed. In this case, I have proceeded to consider the proposal on its merits; the existence of works that do not conform to the permit that have been granted have not provided the applicant with an advantage.

40 I am also not in a position to determine whether the council acted reasonably or not in the way that it investigated this matter. In any event, the council's performance is irrelevant to the consideration of the merits of the proposal. Through this application for review, Ms Bundy and Mr Sipthorp have the opportunity to have the whole matter considered afresh or de novo by the tribunal. However, in principle, it would seem somewhat unfair that an applicant should be denied a permit, and therefore penalised, because of another party's performance.

41 Mr Sipthorp expressed some regret that he had not opposed the granting of the permit for the construction of Shed 2. He said that had he known that the building was to be used for a restaurant rather than storage; its construction would have been opposed at the time. Whilst I understand Mr Sipthorp's line of thinking, nonetheless, the initial construction of the shed and the current proposal are 2 separate matters and it would not be correct to link them together. The shed has been approved for use as storage. Its appearance, location and use were found to be acceptable. The fact that the shed exists does not automatically mean that its use for a restaurant is acceptable. The change in the shed's use to a restaurant is a matter to be considered on its merits in this application. Similarly, even if the shed did not exist, it would not mean that an application could not be made for its construction and use as a restaurant.

42 Ms Bundy also submitted that the shed is an inappropriate building given its size and prominent position. I think that this issue needs to be put into its proper perspective. This application does not seek permission for the construction of the shed as a whole; rather, a permit has already been granted for it and there is nothing to stop it from remaining in place as shown on the plans appurtenant to the permit no. 445/2003/06P. The shed has been approved and irrespective of whether the applicants believe that a permit should not have been issued, the reality is that is has. Clearly, permission is required for some of the works to modify its external appearance, namely the glazing, at the southwest corner. The other works are internal. I have had the opportunity to view the shed, from the site, Mr Sipthorp's property and from the southwest towards the intersection of the Kangaroo Ground-Warrandyte Road and Eltham-Yarra Glen Road.

43 In simple terms, I do not accept Ms Bundy's submission that the proposed works would make the building any more prominent than it is or that it is out of place within the landscape. The shed is similar to many rural buildings commonly found in areas like this. I note that landscaping along the shed's southern side has not been planted as required by the permit to which I have previously referred. However, in the context of this site, I have not been persuaded that there is a need for this building to be heavily screened from view as it sits comfortably within its agricultural setting. I would expect that this was why it was approved in the first place. The building will be visible at night due to lighting; however, this impact is not something that I would find inappropriate if the use of the site for a restaurant is found to be acceptable.

44 Turning to the appropriateness of the use, the first point to be made is that discretion exists for a permit to be granted for a restaurant provided that a number of conditions are met. These include that the restaurant must be operate in conjunction with Agriculture and/or a Winery and that the maximum number of patrons must not exceed 150.

45 Whilst Ms Bundy sought to raise the issue of whether the proposed restaurant would operate in conjunction with one of the other required uses, this legal matter was not raised in the grounds of appeal, nor were the other parties provided with reasonable forewarning that such an issue would be raised. When confronted with the prospect that this may cause the hearing to be adjourned, Ms Bundy indicated that she would not pursue this point.

46 Nonetheless, whilst Ms Bundy sought to retreat from her submission, the reality is that I must still be satisfied that the discretion exists for a permit to be granted. On reviewing the facts of this case, it is not difficult for me to come to the view that such discretion exists. The prerequisite for a permit to be granted for a restaurant is that "it must be used in conjunction with Agriculture, Rural Industry or Winery". In this case, the site is used for 2 of these purposes; namely the vineyard where the grape growing occurs [Agriculture]; and the area where wine is made [the winery]. Both these activities occur under the guise of the Sansom Hill Estate. The proposed restaurant is being put forward on the basis that it will operate in conjunction with these activities. There is no doubt in my mind that the vineyard, winery and this restaurant will have a direct association which each other. This is not a case where the proposed restaurant is to be operated as a separate entity.

47 In any event, the need for the restaurant to operate in conjunction with the winery or agriculture is not discretionary. As noted in my decision in Vidoni v Mornington Peninsula SC [2005] VCAT 1445, another case where a permit was being sought for a restaurant operating in conjunction with other uses:

If the restaurant is not linked to one of these uses, the use would be prohibited and a permit cannot be granted for it. Further, if a permit is granted and the restaurant does not operate in conjunction with the other required uses, then the permit would not, in my view, authorise the restaurant use. The use would be unlawful.

48 I have no doubt that discretion exists for a permit to be granted.

49 A further issue relates to whether the restaurant would become a "function centre" if it was booked for functions. "Function centre" is prohibited in the zone. It is overly simplistic to say that because a restaurant accepts bookings that it suddenly becomes a "function centre". It is not uncommon for restaurants to be booked, either partially or in totality, for a private function. It would be a far cry for this occasional activity to be considered as though the use is being transformed into another. One needs to look at how the use typically operates and I would think that such a facility being booked for an occasional function would not bring about a transformation of such use to a function centre. Authority for this proposition is found in the tribunal's determination of questions of law in Food and Desire Pty Ltd v Port Phillip City Council [2004] VCAT 2248.

50 However, even if discretion exists for a permit to be granted for a restaurant; that does automatically mean that the use is acceptable. The proposal must be considered on its merits having regard to the various matters raised in the decision guidelines. This includes the purpose of the zone and the planning scheme's policies.

51 Before turning to these, I wish to comment on 2 aspects of Ms Bundy's submission. First, Mr Bundy submitted that there is no demonstrated need for a restaurant on this site as there is already "a substantial variety" of similar facilities in the wider area. Second, Ms Bundy also sought to compare the proposal with other facilities that operate within the wider area.

52 In relation to whether it is necessary for the applicant to demonstrate that there is a "need" for the proposed restaurant, I adopt the position put forward in the following well known passage from the former Planning Appeals Board decision in Shell Company of Australia Ltd and Others v City of Frankston and Another [P82/1527 8APA 126] in which the issue of 'need' was discussed as follows:

When the word "need" is used in a town planning sense, it must mean community need. It is not necessary to show an element of urgent community necessity for a facility. Rather need connotes the idea that the well being of a community or some part of it can be better and more conveniently served by the provision of a particular facility.

Need is a relevant consideration, but not an essential requirement......If an applicant can show a need for a proposed use, then this factor may outweigh other considerations adverse to the use. However, a lack of need will rarely, if ever, be a ground for refusing to grant a permit.[7]

53 In relation to comparisons between the proposal and what exists on other sites, I was not persuaded that these other facilities should set a benchmark for every other facility to follow. It is often said that proposals must be assessed on their own merits. This allows for differences in circumstances to be considered. The process is not one where "one size fits all".

54 There is nothing specific in the purpose of the zone that specifically encourages a restaurant or tourism related uses within the Rural Conservation zone. However, the zone purposes do include references to encouraging "development and use of land which is consistent with sustainable land management and land capability practices and which takes into account the conservation values and environmental sensitivity of the location." There is also a clear emphasis within the zone purpose to work towards outcomes that conserve, protect and enhance the natural environment and natural processes. Bearing this in mind, I would not go as far as saying that the zone purpose does not make any allowance for new development and the introduction of commercial uses. If it were as simple as saying that commercial uses should not be allowed in the zone, then the simplest way of achieving this outcome would be to make such uses prohibited. I would have thought that by making the use "discretionary" that there must be the prospect that in some circumstances, the use would be acceptable within the zone.

55 Planning policy and the strategies within the planning scheme provide guidance on the exercise of discretion. Whilst I think that the policy at clause 17.04 provides general support for the establishment of a tourist related use on the site, it seems to me that it is the policies and strategies within the LPPF that provide the more specific and direct support for this proposal.

56 In particular, the MSS acknowledges that:

The Shire of Nillumbik boasts a tourism industry that draws on the areas natural environment, rural landscapes and the arts and its unique heritage. Approximately 380 businesses in the Shire rely, to varying degrees, on tourism for their trade. These range from wineries, motels, nurseries and antique shops.

Tourism offers viable and ecologically sustainable economic development opportunities that are presently underdeveloped. Agricultural based and environment activities such as wineries, nurseries, eco-tourism, and host farms may provide opportunities fro tourist activities if appropriately designed, located and managed to respect the environmental conservation and landscapes of rural areas and the existing road hierarchy.

58 Objective 5 at clause 21.05-4 of the MSS states:

To provide for land uses that expand tourism opportunities in the Shire and realise a potential for additional local employment.

59 Strategies to facilitate this objective include:

• Facilitate low impact tourism development opportunities that build on the cultural and physical characteristics of the green wedge; and

• Encourage the establishment of tourism related uses in rural locations where there is direct access from a major road, and where such use is compatible with the environmental and landscape values of the site and surrounding area. Ensure that access is not reliant on unsuitable roads and that the use will not impact on neighbouring and surrounding land uses.

• Ensure tourism use is of a scale and type which can be adequately catered for by available infrastructures services.

60 I also note that objective 6 under this clause also calls for existing agricultural land for soil based agricultural production and promote sustainable agricultural activities. In particular I note that the strategies under this objective include retaining agricultural land in Kangaroo Ground for predominantly soil based agricultural purposes.

61 There is no doubt that the MSS clearly identifies the shire's natural attributes as major assets that need to be protected, conserved and enhanced. However, the MSS also acknowledges that the shire's rural areas can also play a role in terms of facilitating agriculture and tourism related uses. The site is located in an area where soil based agricultural activities are encouraged. The use of the land for a vineyard is consistent with this. Further, the appearance and scenic qualities of the site are consistent with what could reasonably be expected in a rural environment where soil based agricultural activities are encouraged. The use of this site as a winery builds on the agricultural use that is encouraged. I see the proposed restaurant in a similar light.

62 Further, it is relevant that the site has its frontage to what is clearly a main road. The inclusion of the Eltham-Yarra Glen Road within the Road Zone - Category 1 reflects this. The road is built to a very good standard, being sealed and allowing comfortably for 1 lane of traffic in each direction. It is more than a local rural road; rather, I think it is the type of major road where tourism related activities are encouraged to locate by the MSS. This context is a far cry from that which was before another division of the tribunal in Green Wedge Protection Group Inc v Nillumbik Shire Council [2004] 1916 where it was proposed to locate a function centre "at the end of an unsealed, 3.0-3.5 metre wide, 1.2 kilometre long, single lane, local rural road, in an area which is predominantly rural in character.....". Whilst the site in this case is within a rural environment, nonetheless the road access to it is far superior and in line with the expectations of the MSS.

63 The policies of Melbourne 2030 include:

2.4 To protect the green wedges of metropolitan Melbourne from inappropriate development.

64 With this aim in mind, it is relevant to also note that Melbourne 2030 acknowledges that the green wedge areas have strong environmental and landscape value; however, they are also important resources for recreation and tourism.

65 In my view, the thrust of the planning scheme's policies would support the establishment of a restaurant on this site in conjunction with the vineyard and winery. It is a tourism related use; located on a site that is used for agriculture and a form of rural industry, namely, the winery. This site already plays a role in providing a tourist related destination given these uses. In my view, the proposed restaurant would simply complement this role.

66 The scale of the proposed restaurant was another concern raised by the applicants for review. In particular, Ms Bundy pointed to the differences in the number of patrons between the existing and proposed situation. Under permit 141/2003/01P for the winery and cellar door sales, the maximum number of patrons on the premises must not exceed 30. Under the proposal, the maximum number of persons for the restaurant is to be 95. It is obvious that permission is being sought for more persons than at present. However, what needs to be considered is whether the impacts associated with a 95 person restaurant are acceptable or not.

67 In this regard, I note Mr Sipthorp's submission that he has lived on his property with his family for many years and chose this location "...purely for the environment, peace, views and tranquillity". Mr Sipthorp expressed concern that the proposal would have adverse impacts on the amenity of his property. Particular concerns were raised about food odours, the impact on views from his property and noise caused by various activities including the use of the outdoor seating area, the clanging of bottles and cars coming and going from the site.

68 Mr Sipthorp's property can be described as a rural residential property; however, neither his property nor surrounding land is zoned for residential purposes. Further, I note that 3 of the 5 schedules to the Rural Conservation zone[8] make reference in their "Conservation Values" that they are places that provide for or encourage rural residential or rural living development. Mr Sipthorp's property and surrounding area are not included within an area where the schedule to the zone supports or encourage rural residential use.

69 Areas like this which are zoned for rural purposes are not there to primarily provide for some form of superior quality residential amenity and expectations as to what could happen in amenity terms must take this into account. In this regard I note that in the Green Wedge Protection Group decision previously cited, the tribunal commented:

It is worth noting at this point, that this is not a residential zone. While dwellings are permitted uses in the zone subject to the grant of a permit, the decision guidelines of the zone require consideration of whether a dwelling is reasonably required for the operation of the environmental rural activity conducted on the land. I received many submission during the course of this hearing which focused on residential amenity issues but my consideration of these must be undertaken in the context that this is a rural zone in which non residential uses are permitted and rural activities encouraged (subject to land capability and environmental management).

70 Whilst the policy framework clearly encourages the protection, conservation and enhancement of the shire natural assets, it also encourages agriculture as well as tourist related uses in locations where natural assets would not be unreasonably compromised. Aside from general amenity considerations, my attention was not drawn to anything specific in the planning scheme's policy frameworks that points to the impact on residential amenity being an important or overriding consideration in circumstances such as these.

71 This not to say that amenity considerations are not relevant; however, expectations need to be tempered against the rural zoning of the area and the thrust of the planning scheme's policies.

72 In relation to the various amenity concerns raised by Mr Sipthorp, my views are as follows.

73 In relation to odours, I was not presented with any evidence to persuade me that the emissions from the site would be unacceptable. I would have thought that any odours associated with the production of wine would fall within the ambit of what could reasonably be expected in a rural setting. Further, the restaurant use would be registered under the Health Act and regularly inspected by council officers. The equipment used to cook food as well as exhaust and ventilation systems would need to be designed to ensure that there is no unreasonable emission of odours.

74 Mr Sipthorp is also concerned that the proposal will have an unreasonable impact on the outlook from his property and, in particular, views towards the city skyline. In this regard I note that there is nothing in the scheme that requires the impact on views to be taken into account. In Healy v Surf Coast Shire Council [2005] VCAT 990, the tribunal re-stated the principles applicable to the consideration of the impact on views in the following terms:

(b) views form part of the existing amenity of a property and their loss is a relevant consideration to take into account;

(c) the availability of views must be considered in the light of what constitutes a reasonable sharing of those views;

(d) in addressing the concept of "reasonableness", it is relevant to consider

(i) the importance of the view to be lost within the overall panorama available; and

(ii) whether those objecting have taken all appropriate steps to optimise development of their own properties.

(e) added emphasis will be placed on principles (b) and (c) above if the issue of views is specifically addressed in the planning scheme.

75 On inspecting Mr Sipthorp's property, it was clear that views towards the Melbourne CAD are available at ground level. The construction of a 35 metre long acoustic fence, as is now being requested by the council, together with associated landscaping would impede these views.

76 Mr Sipthorp has the benefit of expansive views from his property toward both the CAD and the Dandenongs. Views of the CAD are still possible from ground level even though colourbond fencing has been erected on the common boundary with the subject site. Whilst there is nothing in the planning scheme that requires views to be considered, nonetheless, the proposed development would have the impact of removing CAD views at ground level. I am sympathetic towards Mr Sipthorp's concern that views toward the CAD would be lost from ground level; however, the view in question is one that I consider to be very vulnerable, particularly if new landscaping were to be planted along the east boundary of the site. No permit is required for this to occur.

77 The potential loss of views is regrettable; however, when consideration is given to the vulnerability of the view and the absence of specific requirements in the planning scheme that require the impact on views to be considered, I would not find that impact to be unacceptable. However, for other reasons which I will set out shortly, I consider that the provision of a 35 metre long acoustic fence near the common boundary with Mr Sipthorp's property to be unacceptable.

78 Next I turn to the issue of noise. Mr Sipthorp has identified various activities that would give rise to noise, namely patrons chatting in the outdoor area; the clanging of bottles and the noise associated with cars leaving the site late at night.

79 In relation to noise from patrons, I note that it is proposed to erect a 2.8 metre high acoustic fence at the east end of the outdoor area. Together with Shed 2, this fence will serve to block the direct line between the outdoor terrace area and Mr Sipthorp's dwelling. Further, the reality is that an outdoor area like this would not be used extensively at night during the colder months and whilst its use would be more extensive in summer, again I would not have thought that this would extend into the late night period as there has been no mention of outdoor lighting in the application. Further, in my view, the hours during which outdoor areas like this may be used should be restricted, generally to daylight hours when located in reasonable proximity to a residential use; say up to 6pm during the non daylight saving months and up to 9 pm during daylight saving. Conditions can be included on the permit to this effect.

80 The clanging of bottles is a common enough complaint that often arises with uses of this type. This is particularly so when the activity occurs in the late evening period. However, it is a matter that can be overcome by management taking steps to locate the bottle storage area away from neighbouring properties and for disposal to occur during daylight hours.

81 It is apparent that noise from the existing car park has been a matter of concern to Mr Sipthorp.

82 Before turning to this concern, I should note that the overall number of spaces to be provided conforms to the requirements of clause 52.06. The provision of parking at the rate of 0.6 spaces per patron is conservative and would allow for the restaurant use as well as some extra spaces.

83 Under the proposal, the existing car park is to be relocated toward the front of the site and in the area in between the existing house and the winery and proposed restaurant building. This is a far superior location in terms of distance to Mr Sipthorp's dwelling. In light of my earlier comments about the adequacy of the parking, in my view, some of the spaces provided are superfluous and can be removed. In particular, I consider that spaces 20 to 27 should be removed, with 3 extra spaces provided directly opposite spaces 17-19.[9] This would result in a total of 57[10] car spaces being provided in this area; however, such spaces would not extend as close to Mr Sipthorp's property.

84 I note that the area adjacent to the common boundary with Mr Sipthorp's property is to be maintained for vehicle access to the winery delivery and despatch area as well as 3 for disabled car spaces. The delivery/despatch to the winery would remain as existing and allowed under the winery permit that has already been granted. Further I do not think that there would be unreasonable disturbance caused by the use of the 3 disabled car spaces in the location shown on Plan SK3.

85 Based on the above, it would be apparent that in general terms, I consider that the proposed use and development to be reasonable subject to some further refinement of the hours during which the outdoor seating area can be used and changes to the car parking layout.

86 However, the council requires the installation of a 35 metre long, 2.8 metre high acoustic fence within a few metres of the common boundary with Mr Sipthorp's property. Mr Iles explained that the applicant is willing to provide the fence and this measure accords with the recommendations contained in an acoustic consultant's report[11]. The author of the report was not called to give evidence. Amongst other things the report states that the primary purpose of the fence is to attenuate car park generated noise, and also assist in attenuating noise from the restaurant operation itself. In response to my questions, Mr Iles indicated that the fence is required to ensure that compliance is achieved with relevant noise standards/limits.

87 Whilst I have thus far indicated that I am satisfied that the other works proposed as part of the application would not have a significant visual impact, I do not have the same view about a relatively long high fence such as that which is proposed. It would be very large, imposing and in my view, inappropriate within a somewhat open landscape that typifies this rural setting.

88 Further, I am somewhat sceptical that a fence in this position is the most appropriate solution to provide reasonable noise attenuation.

89 First, it is not proposed to provide live amplified or DJ music within the restaurant. There is a condition on permit that requires this to be the case. Second, the acoustic report states that the building is to be acoustically upgraded by the addition of an internal lining.[12] The report goes on to say that compliance would be achieved with SEPP N-2. There is no condition requiring this insulation to be installed, however, such a condition could easily be included. Third, an acoustic fence is proposed adjacent to the outdoor seating area. I would have thought that this would be the primary barrier to protect noise escaping toward Mr Sipthorp's property. Further, I have already indicated my intention to limit the use of the outdoor seating area to daylight hours only. Finally, I have doubts that the fence would provide any great benefit in attenuating noise from the main car park given its location and the relationship between the car park and the dwelling on Mr Sipthorp's property. It would assist in attenuating noise from the area adjacent to the winery and the 3 disabled spaces; however, it seems to me that a large fence of the type proposed is an extraordinary step to take. I would have thought that the activities within this area could be regulated so the hours when this area is used do not coincide with the late evening/night period.

90 In my view, more thought needs to be given to the measures required to achieve satisfactory acoustic attenuation. I do not regard the installation of such a large acoustic fence represents an acceptable outcome.

91 For the reasons set out above, I am generally of the view that the proposed use and development of the site is acceptable subject to a more appropriate solution being found to noise issues. I have not been persuaded that erecting a 35 metre long fence near a neighbouring property boundary is a reasonable or appropriate measure within an open rural setting like this. Rather, it seems to me that this issue has not been thought through properly, and this is reflected in the council's late request to include a condition requiring the fence on any permit.

92 Whilst I have concerns about the erection of such a large acoustic fence, it seems to me that other options exist as to how noise impacts can be reduced and reasonably attenuated. Such measures may include things like restricting the hours during which the area to the east of the winery can be used; the installation of more effective internal lining within the restaurant building and perhaps a smaller fence closer to the east end of the car park.

93 As this is the only issue of concern to me, I am of the view that the applicant should be given the opportunity to reconsider this aspect of the proposal.

94 Accordingly, I have released this interim decision with directions for the applicant. If the applicant accepts my invitation to reconsider and revise the proposal, I will give further directions as to how this matter is to be concluded. Once I have received advice from the applicant that my invitation is accepted and the time that it would take to revise the proposal and to provide any associated information; I will issue further directions requiring the plans and other documents to be served on the other parties. The Council, objectors and the applicant will then be given an opportunity to make further submissions on the changes only. I anticipate that this will be undertaken by written submissions only; however I will only be able to determine the timeframes once the applicant has responded.

95 In the event that the applicant declines to amend the proposal, I will proceed to finalise my decision in this matter based on the proposal as it stands.

[1] I have amended the permit application and the application for review under clause 64 in schedule 1 and section 127 of the Victorian Civil and Administrative Tribunal Act 1998 to reflect the true applicant in lieu of the architects who were acting on its behalf.

[2] These dimensions based on Certificate of Title marked Exhibit A7.

[6] The default 150 patron limit applies as there is no alternative limit is set out in the schedule to the zone.

[9] The car space numbering is that shown on plan SK3

[10] This figure does not include the 3 disabled spaces. The total on site parking provision would be 60 spaces.

[11] The report is by Geoffrey Barnes of Acoustical Advisory and Consulting Services dated 5 April 2005

[12] See section 2.2.3 on page 6 of the report