For the reasons explained above, the decision of the Responsible Authority is varied and I have made orders directing that a permit issue.
I note that the final correspondence after the hearing included Mr Larkins indicating that the Permit Applicant had not realised that Easter 2017 falls over the days 14-17 April 2017. In this situation, he requested that the 'permitted operating period' be extended by a fortnight from the current deadline of 3 April 2017 to 16 April 2017. This was opposed by the Applicant for Review. On balance, I consider Mr Larkin's request to be reasonable and have amended Condition 2 accordingly, noting that with our changing weather patterns our Easters are getting warmer not cooler.
I also agree with Mr Larkins that for a temporary facility, it would be an overkill to require that the requisite security arrangements must include having "...a licensed crowd controller at the entrance of the premises at least two hours prior to closing and for 30 minutes after closing" and I have deleted this sub-clause from the 'Patron Management Plan' Condition 31.
[2]
The temporary use and development of the land for a Tavern (Pop-up Bar) and a waiver of the standard car parking requirements of Clause 52.06
[3]
Before the use and development commences amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must:
(a) Provide clear identification of which buildings are permanent or temporary. Temporary buildings must include the converted shipping container, portable disabled access toilet and barrier enclosing the front of the site.
(b) Show elevations of the barrier enclosing the front of the site.
(c) Show the provision of a bicycle locker suitable for the storage of at least one bicycle.
(d) Show the extent of occupation of viewing deck area and mark in the red line area of licenced premises.
(e) Include location of signposting for patrons clearly indicating location of toilets downstairs.
The Tavern may operate only between the following hours:
(a) Between 31 October 2016 and 25 December 2016:
(i) Thursday to Sunday - Between 1:00pm until 9:30pm
(b) Between 26 December 2016 and 26 January 2017
(i) Monday to Sunday - Between 1:00pm until 9:30pm
(c) Between 28 January 2017 and 16 April 2017:
(i) Thursday to Sunday - Between 1:00pm until 9:30pm
Drinks must not be served in glass containers on the Tavern premises.
Food and drinks provided within the premises must not leave the Tavern premises.
To provision of entertainment on the Tavern premises shall be limited to pre-recorded background music or live musical entertainment by no more than two performers using acoustic instruments at levels no higher than background music. This condition may not be amended by the responsible authority under Division 1A of the Planning and Environment Act 1987(Section 85(1A) of Planning and Environment Act 1987).
Before the music can be provided on the site a qualified acoustic expert must prepare an acoustic report and a copy must be provided to the Responsible Authority that assesses compliance with State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2 and makes recommendations, as appropriate, to achieve compliance and reduce the amenity impact on residential properties. The recommendations of the acoustic report must be approved by Council in writing and once approved must be implemented to the satisfaction of the Responsible Authority at all times that music is provided on the Tavern premises. The recommendations of the report must not conflict with Condition 7 or any other condition of this permit.
The maximum music noise level emitted from the premises shall not exceed levels specified in the State Environment Protection Policy (Control of Noise from Public Premises) No. N-2.
The downstairs toilets adjacent the kiosk must be available for use at all times when the Tavern is open.
The operator of the Tavern shall to the satisfaction of the responsible authority install and maintain a surveillance recording system able to clearly identify individuals, which shows time and date and provides continuous images of all entrances and exits, bars, entertainment/dance floor areas, and areas external to the Tavern and toilet entrances. The surveillance recording system must operate from the 30 minutes before commencement of trading each day and until 30 minutes after closure. A copy of the recorded images must be available upon request for the immediate viewing or removal by the Victoria Police, by an authorised officer of the Responsible Authority or a person authorised in writing by the Director of Liquor Licensing upon request, or otherwise retained for at least one month.
Signs reading "For the safety and security of patrons and staff this area is under electronic surveillance" shall be displayed to the satisfaction of the Responsible Authority in all areas subject to camera surveillance.
Signage shall be erected near all entrances/exits to the Tavern requesting patrons to leave the premises in a quiet and orderly manner so as not to disturb nearby residents to the satisfaction of the responsible authority.
The operator and/or security staff must request patrons to not congregate on the footpath, in front of the premises.
A garbage receptacle area and bottle disposal area shall be provided for and in the vicinity of the Tavern to the satisfaction of the Responsible Authority. The area shall be within an animal-proof enclosure and shall be of such construction to complement the amenity of the area by use of suitable materials and screening from the public view to the satisfaction of the Responsible Authority.
On the day following each day of operation, prior to 10am, the operator of the Tavern must collect and dispose of any litter from the public land within 40 metres of the Tavern to the satisfaction of the Responsible Authority.
Amusement machines and gambling must not be provided on the Tavern premises to the satisfaction of the Responsible Authority.
Barriers in accordance with the endorsed plans must be provided between the Tavern premises and The Esplanade footpath to control the movement of patrons in and out of the premises to the satisfaction of the Responsible Authority.
Except with the written consent of the Responsible Authority, permanent or temporary screens, fences or barriers must not be constructed or installed on the site other than in accordance with the endorsed plans.
The area constructed and set aside for car spaces and access lanes and driveways must be kept available for these purposes at all times, to the satisfaction of the responsible authority.
No goods or packaging shall be stored or left exposed outside the building so as to be visible from public land.
The use must be conducted to the satisfaction of the responsible authority so that the amenity of the area is not detrimentally affected by the use or development, through the:
(a) Transport of materials, goods or commodities to or from the land;
(b) Appearance of any buildings, works or materials;
The maximum noise level emitted from the premises shall not exceed levels specified in the Guidelines: Noise From Industry in Regional Victoria, EPA Publication 1411.
Odours offensive to the senses of human beings must not be discharged beyond the boundaries of the premises to the satisfaction of the responsible authority.
External lighting must be designed, baffled and located so as to provide sufficient lighting for public safety and must not cause any adverse effect beyond the Tavern area, to the satisfaction of the responsible authority.
No advertising signs shall be erected unless in accordance with the Surf Coast Planning Scheme or with the further approval of the responsible authority.
All temporary structures including but not limited to the converted shipping container, portable disabled access toilet and in-fill barrier on the endorsed plans must be removed within 14 days of the completion of the Tavern use permitted by this permit, being no later than 17 April 2017. This condition may not be amended by the responsible authority under Division 1A of the Planning and Environment Act 1987(Section 85(1A) of the Planning and Environment Act 1987)
The use as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
The development, including temporary structures, as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
The use and development approved by this permit must not be used for events or private functions.
Prior to the commencement of the permitted use, a Patron Management Plan must be submitted to the satisfaction of the Responsible Authority for approval. When approved, the plan will be endorsed and will then form part of the permit. All activities forming part of the use must comply with the endorsed Management Plan. The patron management plan must include (but is not limited to):
(a) Staffing and other measures which are designed to ensure the orderly arrival and departure of patrons;
(b) Staffing and other measures which are designed to control intending patrons outside the premises to ensure no queuing of intending patrons to the tavern;
(c) Control of noise by intending and departing patrons outside the premises;
(d) Measures to manage patrons coming and going to/from the downstairs toilets next to the kiosk;
(e) Provision of a telephone number(s) of the manager or operator on the premises during operating hours who may be contacted in the event of any disturbance or other problem arising from the operation of the venue; and
(f) Staffing and other measures which are designed to control or prevent patrons smoking outside the premises so that no adverse noise impacts are caused to nearby residential properties.
The use must at all times operate and be managed in accordance with the conditions and provisions of the approved Patron Management Plan to the satisfaction of the Responsible Authority.
[6]
[CAN THE PROPOSAL BE SAID TO BE "ASSOCIATED WITH THE PUBLIC LAND USE" VIS-À-VIS "THE PROTECTION OF THE COASTLINE"?]
[7]
The commentary below, out of completeness in dealing with an alternative position, addresses the Applicant for Review's preferred position that whether or not the proposal can be said to be "associated with the public land use' needs to be assessed against the purpose for which the relevant crown land has been reserved under the CLRA. Here that reserved purpose is "the protection of the coastline". I have already discussed in my main reasons how the then Land Conservation Council (LCC) also made certain recommendations about how Coastal Reserves should be used.
Whilst now several decades old, these recommendations still seem relevant/helpful and a good place to start.
I have already alluded to the fact that these recommendations pull in several different directions eg protecting natural coastal landscapes/conserving flora and fauna but also providing for boating and (with my emphasis) "...informal recreation by large numbers of people...". It is telling that these recommendations make it clear that 'enjoyment of coastal areas by large numbers of the community' is a core part of the management of our overall coastal reserve system in Victoria. This is consistent with the strong role that 'a day at the beach' has long played in Australian culture - arguably the best known photo by an Australian photographer is the iconic "Sunbaker" by Max Dupain (showing a man's relaxed head and shoulders lying on the sand at the beach).
Contrast this for example with national parks, where there is a much stronger mandate for protecting the natural landscapes and biodiversity of highly valued and typically more pristine locations. With national parks, there is a major emphasis on minimising human intrusion and maximising the preservation of the natural values and appearance of the location.
However this does not make it 'open slather' with human impacts on coastal reserves. Rather, a balance is needed between facilitating a reasonable level of community enjoyment of coastal reserve areas but also ensuring their environmental/landscape values are nurtured and protected for the long term.
In this context, where the 'public land use' in question is "the Protection of the Coastline", it seems important to clarify 'protection from what'? In contrast to the narrower interpretation being promoted by the Applicant for Review, I favour a somewhat broader interpretation. I see the draftsperson as intending that the words "protection of the coastline" point to the need to protect coastal reserves from either environmental damage or excessive community usage impacts. For example, we need to manage exotic pests in coastal reserves but also avoid them being 'loved to death' by large numbers of beach-goers over summer.
In this spirit, I suspect that there are many sections of the coast with the 'public land use' being "the Protection of the Coastline", where the foreshore is relatively undisturbed and common sense tells us that any further human intrusion/development should be minimised. In this more unspoilt and sensitive situation, I would expect that most people would see the introduction of the built form and commercial activity associated with a 'Tavern (Pop-up Bar)' as being a blight and incompatible with the valued natural features of the coast.
However this Fisherman's Beach foreshore location, this is not one of those more unspoilt and sensitive coastal reserve locations. Instead there is already considerable human intervention in the form of:
The Torquay Anglers Club and the Marine Rescue Services buildings and associated public toilets already existing at the top of this section of beach.
The Bomboras kiosk already operating.
The Anglers Club already being a licensed venue.
There being car parking on either side of the two buildings.
There being concrete stairs from The Esplanade down to the kiosk area.
The public deck area on top of the Anglers Club building, with associated seating.
Given this significant extent of human presence, it is unsurprising that Fisherman's Beach is listed as an 'activity node' for the purposes of both the Victorian Coastal Strategy and the GORCC Coastal Management Plan.
In summary, even following the Applicant for Review's preferred approach on this issue, I am satisfied that locating the proposal in this much less pristine 'activity node' location does meet the Section 2 condition that the proposed use is "...associated with the public land use" (where such public land use here is "the protection of the coastline").
I am satisfied that it will assist in 'protecting the coastline' to cluster this type of intended commercial use and development in an existing coastal 'activity node' where there is already considerable human presence in the form of the various buildings, structures and car parking area. The natural values of this particular coastal reserve location are already far less than pristine. An approach of clustering the proposal with the existing Anglers Club/kiosk (and minimising any intrusion into other more sensitive coastal reserve areas) seems far preferable to allowing new commercial uses and development to randomly spread in a 'ribbon' fashion along our coastal reserves.
My finding here is reinforced by the following factors:
The proposal does not involve any vegetation removal or intrusion into the main beach or sand-dune areas.
The proposal involves minimal new built form - this is more adapting an existing hard-stand type area for the proposed use. There is no expansion of the existing sealed area and the proposed minor works are quite reversible at a later stage.
The 'Tavern (Pop-up Bar)' would be set back at least 50 metres from the closest usable section of the beach for bathers, with an area of scrub in between. Hence the area to be utilised sits at the same level as and more presents as an extension of The Esplanade, rather than having any immediate connection with the useable area of the beach which sits considerably lower.
Finally, I acknowledge that one of the recommendations of the then Land Conservation Council was phasing out the occupation of coastal public land by private individuals or organisations. In this regard, I can see some legitimate weight to the concern of the Applicant for Review that the proposal will involve more restricted access to the deck area where the 'Tavern (Pop-up Bar)' will operate (where this deck area is currently fully open to the public).
However in all the circumstances I do not see this aspect as being determinative of whether or not the proposal is 'associated with protecting the coastline', noting that:
This planning application is for the temporary operation of the proposal over the forthcoming summer. Whichever way you look at the proposal, if it is approved, any further operation of the 'Tavern (Pop-up Bar)' will require fresh planning approval after this summer.
The proposal would not restrict the use of the deck area to members of a certain club or organisation. Rather, subject to the usual liquor licensing restrictions, any member of the public would be able to utilise the proposed use.
The balance area of the viewing deck will still be available to the public.
Furthermore the proposal would not operate 24/7 but rather would merely operate seven days a week during the peak holiday period, open between lunchtime and sunset. Over the balance of the operating period the use would operate Thursdays to Sundays, open lunchtime to sunset.
[8]
[1] I/We have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I/We do not recite or refer to all of the contents of those documents in these reasons.
Parties
Applicant/Plaintiff:
Teasdale
Respondent/Defendant:
Surf Coast SC [2016] VCAT 1224
Legislation Cited (3)
Environment Act 1987
Land (Reserves) Act 1978
Management Act 1995
Cases Cited (4)
Teasdale v Surf Coast SC [2016] VCAT 1224 (22 July 2016)
The subject deck area is crown land, forming part of a coastal reserve area. By way of background:
The relevant CLRA Committee of Management here is the Great Ocean Road Coast Committee (GORCC), as per Section 14(2) of the CLRA.
Under the CLRA, crown land may be reserved either temporarily or permanently for up to 33 different purposes. A recent example of same arose in ifly Australia Pty Ltd v Port Phillip CC[2015] VCAT 767, where the crown land on which the St Kilda Sea Bathes exist has been reserved for "Recreation, Convenience and Amusement of the people".
The permanent reservation which applies to the area of which the subject deck forms part is "the protection of the coastline".
Without needing to repeat the detail here, at pages 8-9 of Mr O'Farrell's written submission he sets out certain recommendations of the then Land Conservation Council for the use of Coastal Reserves, under the Land Conservation Act1970. These recommendations cover a wide range of preferred (but potentially conflicting) outcomes, including the protection of coastal landscapes and ecosystems, providing "...opportunities for informal recreation for large numbers of people...", providing boating facilities and phasing out the occupation of coastal public land by private individuals or organisations.
To be able to follow the debate about whether the proposal is a permissive or a prohibited use, it is helpful to compare how the competing parties each interpreted the key words of "the public land use". The term 'public land use' is not defined in either the Victorian Planning Provisions or the CLRA.
The Permit Applicant and Council conceded per se that the proposal has to be shown to be "associated with the public land use" to avoid being prohibited. For the purposes of this proceeding, they both interpreted the words "the public land use" by reference to the purposes of the PPRZ zoning and the existing day-to-day use of this foreshore/beach area. At [25] Mr Larkins opined that the issue becomes "..can it be demonstrated that there is a clear link between the use of Fisherman's Beach by the public and the use of the venue by the public".
In taking this approach, Mr Larkin's opinion relied on the comparable facts in the previous Tribunal decision of Kelk v Moreland CC[2009] VCAT 2416, which involved a proposed bicycle shop and 100 seat restaurant on land zoned PPRZ. In assessing the proposal, Member Hewet (as he then was) acknowledged that the proposal needed to be "...associated with the public land use" to be permissible. In terms of how he analysed "the public land use", Member Hewet considered the purposes of the PPRZ and the physical context of the review site being a mid-point along this section of the Capital City (bike) Trail. He accepted that the proposed bike shop and restaurant would be "associated with the public land use" because the bike shop would be complementary to the bike path and because the relevant Masterplan nominated this mid-point of the trail as the appropriate location for some degree of facilities.
Returning to the facts here and following the approach advocated by Mr Larkins, he submitted (with the support of Council) that a temporary 'Tavern (Pop-up Bar)' does meet the test of being 'associated with the public land use here' because:
The purposes of the PPRZ overtly anticipate possible commercial uses such as this.
In both its physical set-up and the main patrons it would be seeking to attract, the facility would be oriented to the beach and beach-goers.
Subject to liquor licensing requirements, the facility would be open to all of the public.
The time of year and time of day that the facility would operate is consistent with the main pattern for when beach-goers typically visit the beach most.
Council's support for the proposal includes having a permit condition which sets a lower cap on the number of patrons who can attend at the 'Tavern (Pop-up Bar)' at any one time, being 96 patrons. This condition is not contested by the Permit Applicant.
Pursuant to Clause 52.06 of the Planning Scheme, the proposal prima facie requires 38 on-site parking spaces to be provided. However, Clause 52.06 also provides factors to be considered for a potential reduction or waiver of such required on-site parking provision.
I am satisfied that a full waiver is acceptable here, for the following reasons.
Support for a full waiver in this type of foreshore location comes from St John Sutton v Surf Coast SC[2008] VCAT 827, where the Tribunal's conclusion on this issue at [10] was:
Whilst located somewhat back from the beach, it would be easy for beach-goers to walk from the sand up to the facility.
This would hardly be the first licensed facility located near the foreshore, noting that the abutting Torquay Anglers Club is licensed to serve alcohol.
Mr Larkins also highlighted that Council had some time earlier obtained legal advice about this particular issue. This advice was that a 'Tavern (Pop-up Bar)' would be a permissive, not a prohibited, use.
By contrast, the Applicant for Review advocated a very different approach, as follows. Mr O'Farrell essentially disregarded the purposes of the PPRZ and instead urged the Tribunal to regard the designated "public land use" as being that purpose nominated under the CLRA for this coastal reserve area (being "the Protection of the Coastline" as per the gazettal notice dated 17 March 1981). Following this approach and to para-phrase, the proposed temporary 'Tavern (Pop-up Bar)' is only a permissive use if it can be said to be 'in association with coastline protection'.
Mr O'Farrell advocated that in practice this creates a more restricted situation where any one proposed use in this location must demonstrably advance the environmental protection of the relevant coastal reserve area, eg coastline protection works. He argued that a commercial use such as this is quite incompatible with and fails this more restricted test, so as to make the proposal a prohibited use. He argued that the facts here are analogous with those before the Supreme Court in Leahy v City of Camberwell[1973] VicRp 57; [1973] VR 589, where Justice Adam found that the proposed use of crown land for a tennis court would be inconsistent with the purpose for which that land had been reserved, being 'open space - public existing'.