The Glen Centre Hawthorn Pty Ltd v Boroondara CC [2007] VCAT 596

It is the order of the Tribunal that the decision of the Responsible Authority in permit application No PP06/00090 is set aside. A permit is granted and directed to be issued pursuant to Section 85(1) (b) of the Planning and Environment Act 1987 for the land at 673-681 Glenferrie Road, Hawthorn.

Development of the land for 3 restaurants and associated works, waiver of car parking, sale and consumption of liquor and display of advertising signage in accordance with the endorsed plans.

1 Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The Plans must be drawn to scale with dimensions and (3) copies provided, substantially in accordance with the amended plans circulated on 21 September 2006 but modified to show:

(a)

The plans annotated to accurately reflect the intended use of all ground and first floor tenancies.

(b)

The location of a loading bay and a suitably screened bin store area within the site boundaries for the use of all tenancies in the place of the kiosk substation.

(c)

The entrance to tenancy 15 redesigned so as to only obtain access from the internal arcade walkway.

(d)

The west facing doors for tenancy 15 to be replaced with windows. These windows can be openable but must have sills high enough off floor level to prevent their use as doors.

(e)

Deletion of the northern and southern upper floor decks and associated access points.

(f)

The replacement of the roller shutter security door to the Glenferrie Road arcade entrance with toughened glass doors or as otherwise allowed by the Responsible Authority.

(g)

The provision of at least four (4) bicycle parking spaces.

(h)

The internal layout of each licensed premises.

2 The layout of the site and the size, levels, design and location of buildings and works and the description of the use(s) shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

3 Tables and chairs must be placed in position on the licensed premises (being the proposed food and drink premises in tenancies 7, 14 and 15) so as to be available for at least 75% of the patrons attending the premises at any one time to the satisfaction of the Responsible Authority.

4 The predominant activity carried out on the licensed premises must be the preparation and serving of meals for consumption on the licensed premises to the satisfaction of the Responsible Authority.

5 Prior to the endorsement of the plans in Condition 1, a waste management plan must be submitted to the Responsible Authority for approval. Such plan must provide details of a regular garbage collection service to each of the uses on the subject land, including information regarding the type of bins, size/type of trucks, means of accessing bins and frequency of refuse collection, to the satisfaction of the Responsible Authority. Once approved, such plan must be implemented to the satisfaction of the Responsible Authority.

6

(i) Collection of waste must be conducted so as not to cause any disturbance to nearby residential properties, and may only occur between the hours of 7.00am and 8.00pm Monday - Saturday and 9.00am to 8.00pm Sundays and Public Holidays, to the satisfaction of the Responsible Authority.

(ii) No glass bottles are to be disposed of externally between the hours of 7.00pm and 8.00am Monday - Saturday and 8.00pm and 9.00am Sundays and Public Holidays, to the satisfaction of the Responsible Authority.

7 Loading and unloading of vehicles servicing the restaurant/café uses must only be undertaken between the hours of 7.00am to 7.00pm Monday - Saturday, and 9.00am to 5.00pm Sundays and Public Holidays, to the satisfaction of the Responsible Authority. These times do not include newspaper delivery. Any loading or unloading must at all times leave clear space for safe pedestrian access to and from the arcade.

8 Patron numbers for the restaurant uses are to be limited to the following:

Tenancy 7: 20 patrons;

Tenancy 14: 40 patrons; and

Tenancy 15: 100 patrons.

9 The Restaurant use in tenancy 15 approved under this permit must operate only within the hours of:

Monday to Saturday (except Public Holidays) - 7am to 1am the following day

Sundays and Public Holidays - 7am to 11pm

10 The Restaurant uses in tenancies 7 and 14 approved under this permit must operate only within the hours of:

Monday to Saturday (except Public Holidays) - 7am to 11pm

Sundays and Public Holidays - 7am to 11pm

11 The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the completion of the development approved under this permit.

12 Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

13 No plant, equipment, air-conditioning or cooling units, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of or external to the approved building/s without the prior written consent of the Responsible Authority.

14 All bins and receptacles used for the collection and storage of garbage, bottles and other wastes must be kept in a storage area shown on the endorsed plans to the satisfaction of the Responsible Authority. This storage area must be:

(a)

properly paved and drained to a legal point of discharge;

(b)

screened from view with a suitably designed enclosure;

(c)

supplied with adequate hot and cold water; and

(d)

maintained to a clean and tidy condition free from offensive odours;

to the satisfaction of the Responsible Authority.

15 The amenity of the area must not be adversely affected by the use or development as a result of:

(a)

transport of materials, goods or commodities to or from the land;

(b)

appearance of any building, works, stored goods, service yard areas or materials;

(c)

emission of noise, artificial light, vibration, smell, fumes, smoke, steam, soot, ash, dust, waster water, waste products or oil; or

(d)

the presence of vermin;

to the satisfaction of the Responsible Authority.

16

(i) Noise from the premises must not exceed limits prescribed by the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1, to the satisfaction of the Responsible Authority.

(ii) Music and entertainment noise from the premises must not exceed limits prescribed under State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2, to the satisfaction of the Responsible Authority.

(iii) Noise from patrons within the building must not be audible from appoint within 10 metres of a bedroom window at the nearest residential premises within a Residential 1 Zone.

17 Prior to the commencement of the development and in the event that the operator of the restaurants seeks to play music (live or amplified), a report from an acoustic consultant must be provided to the satisfaction of the Responsible Authority. The report must provide recommendations to ensure that the operation of tenancies 7, 14 and 15 as shown on the endorsed plans will:

(ii) Operate in such a manner that no patron noise will be audible at a point within 10 metres of a bedroom window at the nearest residential premises within a Residential 1 Zone.

The recommendations of the acoustic report must be implemented prior to the commencement of the music being played in the premises.

18 No external sound amplification equipment or loudspeakers are to be used for the purpose of announcements, broadcasts, playing of music or similar purposes, to the satisfaction of the Responsible Authority.

19 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

20 Any further works along the northern section of existing building shall require a separate application from Melbourne Water.

21 The location, layout, dimensions and features of the approved sign/s (including the design, colours, materials and sign type) shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

22 All signs must be constructed and maintained to the satisfaction of the Responsible Authority.

23 No flashing, intermittent or changing colour light is permitted to be displayed.

24 Prior to the erection of the approved sign/s, all existing signs on the subject land must be removed to provide for the overall improvement of appearance to the subject premises, to the satisfaction of the Responsible Authority.

25 The intensity of lighting associated with the illumination of the advertising sign(s) must be limited so as not to cause glare or be a distraction to motorists in adjoining streets or cause a loss of amenity in the surrounding area to the satisfaction of the Responsible Authority.

(a)

Dazzle or distract drives due to its colouring;

(b)

Be able to be mistaken for a traffic signal because it has, for example, red circles, octagons, crosses or triangles;

(c)

Be able to be mistaken as an instruction to drivers.

27 Without the written consent of the Responsible Authority, this permit as it relates to advertising signs will lapse unless the approved sign/s is/are displayed within a period of 2 years from the date of this permit.

28 The Responsible Authority may extend the times referred to if a request is made in writing before the permit lapses or within three (3) months afterwards.

29 Subject to the display of the approved sign/s before the permit lapses, this permit as it relates to advertising signs expires 15 years from the date this permit was issued.

(a)

The development does not start within two (2) years of the issue date of this Permit; or

(b)

The development is not completed within four (4) years of the issue date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

Ms Susan Brennan, of Counsel instructed by Ms Emma Young of Young & Lindsey lawyers. They called written and oral evidence from Mr William Bromhead, Town Planner of Contour Consultants Australia; Mr Jason Walsh, Traffic Engineer of Grogan Richards Consulting Engineers; Mr Douglas Growcott, Acoustic Consultant of Watson Moss Growcott acoustics Pty Ltd.

Mr Terry Montebello, Solicitor of Maddocks Lawyers.

No attendance but a letter was received indicating no objection to the development.

Mr John Larkins for the Grace Park Residents Association, Mr Michael and Mrs Deborah Sweeney, Mr Rob and Mrs Kaye Perkins, Ben & Kizarne Morrissey, Peter & Dorothy Sutherland. Mr Larkins called evidence from local residents and business operators - Mr Rob Perkins, Mr Michael Sweeney, Mr Greg Angove and Mr Ian Dobson.

Mr Nigel Hannam, Mr Ben Morrissey, Mrs Margaret Wilson, Mr Ken Millross Mr Rowan McIntosh, Mr Michael Brown, Mr Peter Hardy and Mrs Delwyn Poyser

1 The Glen Centre Hawthorn Pty Ltd sought to review Boroondara City Council's refusal of its permit application for use and development of the land for a tavern, shops, waiver of car parking, sale and consumption of liquor and display of advertising signage. Six grounds of refusal were given concerning inappropriate intensification of use, unacceptable detriment to the amenity of the surrounding area, unacceptable detriment to residents as a result of noise from the tavern, inadequate bicycle parking, risk to pedestrians from traffic using the rear laneway and the adverse impact of the Glenferrie Road roller shutter door on the appearance and character of the shopping strip.

2 Neighbours and other parties were primarily concerned about:

i

Patron and music noise from the tavern and licensed restaurants.

ii

Inclusion of two first floor decks.

iii

Traffic and access issues and particularly pedestrian movement across laneway and sole access to tenancy 15 from the laneway.

3 We note at the outset that the tavern component of the proposal has now been deleted. As amended this proposal has the effect of further refurbishing and rearranging the layout and tenancies within the internal arcade, coverts three shops (tenancies) into licensed restaurants (2 trading until 11pm and the other trading until 1am the following day), construction of two first floor open air decks to service the cabaret restaurant use, construction of a ground floor electricity sub station in the south western corner of the site, provision of a perforated metal security roller door to the Glenferrie Road arcade entrance way and waiver in car parking to be provided.

Planning provisions, hearing, inspection and documents

4 The site is zoned Business 1 and a Special Building overlay also applies.[1] A number of state and local planning policies were highlighted for our consideration[2].

5 The hearing spanned three and a half days - Monday 12th, Tuesday 13th, Wednesday 14th, and Tuesday 20th February 2007. We inspected the site and the locality on the morning of the second day of the hearing and as suggested by residents have also inspected the area late on a Tuesday evening.

6 Photos and other documents submitted at the hearing have been retained on Tribunal files.

7 There can be no doubt that the refurbishment of the arcade and its use for shop/restaurant purposes has a very high degree of strategic policy support under the Business 1 zone and Melbourne 2030. In particular, the Business 1 zone objectives encourage a range of intensive commercial, entertainment and other activities. Glenferrie Road is a vibrant strip shopping centre and categorised as a Major Activity Centre under Melbourne 2030. Local policy at Clause 21.08 (Commercial Sector) makes reference to Boroondara's 39 shopping centres and identifies Glenferrie as one of three primary centres in the municipality. Clause 22.10 (Retail centres Policy) further reinforces the pre-eminence of Glenferrie Road as a primary centre.

8 It was agreed by all parties that a permit issued in September 2006 - PP06/00688 ('the September 2006 permit') already allows certain buildings and works to the arcade and that these buildings and works can and have occurred whether or not a permit is granted in the case now being considered by the Tribunal.

9 The parties before us at the hearing all agreed that the evidence points to there being some form of existing use rights for the use of the upper level of the arcade by the Lido Restaurant for about 22 years. There was also some degree of consensus that we do not need to clarify the precise extent of these existing use rights. In particular, Ms Brennan was content for the Tribunal to assume the future use of the main upstairs area would be a restaurant use, bearing in mind that "restaurant" is an as-of-right use given the Business 1 zoning.

10 If we assume that the main upstairs area will merely be used for restaurant purposes, then the landmark Ryan v Port Phillip CC [2006] VCAT 1923 smoking decision tells us that a restaurant does not require any outside smoking area on the site - patrons can just smoke on the footpath (which is apparently what has happened over time with the day to day operation of the Lido restaurant). There are previous Tribunal decisions we can rely on, in taking the view that we can still impose permit conditions affecting the use in question, where the proposed buildings and works raise "use" issues and concerns. For example, see St Catherine's v City of Prahran [Appeal Number P82/1799). In addition, paragraphs 45 & 46 of the Ryan decision constitutes authority that where liquor licensing approval is needed, the Tribunal again has a broad discretion to impose conditions.

11 Although a relatively minor point, but we note proposed signage was not a contentious issue between the parties. We have separately considered signage and support what is shown on the plans. One thing we did notice during our site inspection is that the sign on the front of the building incorporates the American spelling of 'Center' rather than the Australian spelling of 'Centre'. We do not know whether this is deliberate or a mistake made by the sign installers, since all the documentation we have seen refers to 'Centre'.

12 We have already noted the strong policy support for an intensification of activity within the Glenferrie Activity Centre. But such support does not mean that all development can proceed without considering the specific site context and assessing any possible off site impacts, particularly any negative off site impacts along the boundaries of the activity centre where often incompatible uses are located in close proximity to one another. In this particular case there are several potential negative impacts we need to assess; notably the potential amenity impacts of the balconies/shop 15 restaurant on the nearby residents to the west and north west, the proposed utilisation of the rear laneway for the shop 15 entrance, and loading and unloading along the laneway.

13 The only independent professional planning evidence was given by Mr Bromhead. We do not intend to comment upon every single point he raised but for the most part we agree with his evidence as succinctly summarised in paragraph 82 of his written statement.

14 The use of the existing upstairs area as a tavern, the provision of two external smoking decks for patrons of the tavern and the associated noise and comings and goings of patrons in the public carpark to the west of the site were clearly the most contentious issues for neighbours. It is also clear that deletion of the tavern component very effectively addressed the main point of objection by neighbours and Council and largely 'took the wind out their sails' in their opposition to the original application. Not unreasonably, neighbours and Council voiced concerns to us about the motivation for deleting the tavern component when in all other respects the proposed buildings and works remain the same. Indeed it the buildings and works associated with the existing first floor restaurant (and its conversion to the now deleted tavern) that causes us most concern in terms of adverse impacts on residential amenity. The proposal to provide direct access to the laneway and carpark from the licensed restaurant in Shop 15 also causes us concern, again for reasons relating to adverse impacts of residential amenity.

15 At the outset we wish to make it clear that the only reason we are considering the veracity of establishing three restaurants in 'Shops' 7, 14 and 15 is because approvals are required for the sale and consumption of liquor in these restaurants. Any number of unlicensed restaurants could establish in the various 'shops' or tenancies without requiring planning approval. With the exception of the proposed entrance arrangements to the arcade from Glenferrie Road, we have no issue with the vast majority of buildings and works and we recognise that the September 2006 permit authorises most of these changes to the building fabric. We will later discuss the specific aspects of the buildings and works with which we take exception.

16 We have no issue with licensed restaurants being established in shops 7 and 14 and with them trading till 11pm. We also understand from submissions made by neighbours that the operation of these two restaurants until 11 pm, while causing some disquiet, was not the central issue of concern. We find that a restaurant trading till 1.00 am in shop 15 is acceptable given the Business 1 Zone and the particular site context. However our support is conditional on there being no direct access to the laneway at the rear (ie. access is from the arcade as was shown on plans associated with the September 2006 permit). We do not oppose openable windows to the laneway but require the ground floor sills to be of sufficient height above ground level (minimum 1 metre) to prevent direct access between shop 15 and the laneway. We also require such windows to be closed at 11 pm so as to minimise any noise transmission from inside the restaurant and to discourage people from standing in the laneway and communicating with people inside the restaurant. In our view the 1.00 am trading may well discourage loutish behaviour in the car park given the potential surveillance by people within the restaurant into the carpark.

17 We now turn to discuss the proposal to construct two first floor balconies - one on the north side and one on the south side of the existing building to provide open outdoor areas for the convenience of patrons attending the existing restaurant. We have already discussed use of the existing upstairs space as a restaurant and Tribunal decisions which differentiate between restaurant and tavern activities in terms of whether outdoor smoking areas are a necessity as a result of new smoke free legislation. While we accept that there may well be a difference in the flow of patrons to outdoor smoking areas in a 'normal' restaurant compared to a cabaret style restaurant (one has a more evenly spread of patron movement while the other tends to have a concentrated flow between floor shows), it is our view that the existing use can continue operating as it does now - with smokers exiting the building. If on the other hand, the tavern component of the proposal was still 'live' then having regard to previous Tribunal decisions, it would be necessary to contemplate the provision of designated outdoor smoking areas.

18 Apart from not being satisfied that there is any need to provide balconies if the existing use is to continue unchanged, we also major reservations about whether such balconies, and particularly the northern balcony, can operate without unacceptable amenity impacts on residential neighbours. Put plainly we are not convinced on the basis of the evidence given by Mr Growcott that there will not be incidents on the balconies causing sleep disturbance to residents. Avoiding adverse noise impacts depends too much on ensuring the good behaviour of patrons. While some might think VCAT members live life divorced from reality, it strains credibility to expect such exemplary patron behaviour. While the additional sound proofing measures to the northern balcony suggested by Mr Growcott would reduce the problem, it is evident to us that there will still be major risks of 'incidents' that result in disturbing and unacceptable noise impacts to residents.

19 Although neighbours made submissions to us about traffic movement and pedestrian safety issues with the laneway and the failure to provide any on-site loading and unloading area, we are satisfied that the operation of the laneway will continue much as it does at present and that our decision to remove direct access from shop 15 will prevent any significant change to the existing circumstances. We consider that the laneway with a width of around 6 metres and relatively minor traffic is operating satisfactorily. To that extent we accept the evidence of the Mr Walsh and note that no other expert was called to present a different opinion. We also note that Council that did not appear to have any serious concerns with the traffic and parking implications of approving the development, although we are somewhat surprised that Council did not accept the permit applicant's offer to upgrade the laneway (although this is of less relevance given that we are not allowing direct access from Shop 15 to the laneway).

20 We agree that the loading and unloading of goods late at night or early in the morning can have adverse noise impacts for residential neighbours. The disposal of bottles can also be major problem. In principle we have no objection to the rear laneway being utilised by delivery vehicles and note that laneways at the rear of shops are commonly used for such purposes. In this case the laneway is much wider than is often found at the rear of shops, adjoins an open carpark and deliveries can take place without major disruption to passing traffic. We also not that there is a loading/bin storage area on the southern end of the building accessed from an easement along part of the southern boundary. We therefore do not agree that loading/unloading arrangements are inadequate and will not require further changes to the layout of the site. However we will include conditions restricting the hours for delivery of goods and on the disposal of bottles out of hours. We take the same view about rubbish collection and again note that bin collection along rear laneways is common and already occurs in this part of the Glenferrie Road shopping centre. While residents may not welcome viewing the unsightly aspects of commercial activity, they have to recognise that they live at an interface between commercial and residential areas and that there will be impacts that would not be acceptable in a homogenous residential area.

21 We do not support the provision of a metal front roller door on the Glenferrie Road frontage and note Mr Bromhead's lukewarm support for this element of the proposal (see paragraph 71 of his evidence statement). While there was a suggestion by the permit applicant that it would be impractical to provide a sliding glass door for security purposes, we remain unconvinced that perforated roller shutter door offers the only solution. We agree with Council that a shutter door would be detrimental to the character and appearance of the shopping centre and have observed the detrimental visual effect of such shutters in centres such as Footscray, Sunshine and Frankston. Our requirement for a different access arrangement for the restaurant in Shop 15 may also affect the management of late night access into the arcade.

22 We have already noted that neighbours and Council are concerned about the motivation for deleting the tavern use so late in the application process. While not calling into question the reason given to use for the application being amended to delete the tavern component, we are nevertheless of the opinion that the whole development application process has been handled in a rather piecemeal and ad hoc fashion. Apart from preventing a global assessment of what is proposed for the site, it has caused much uncertainty and angst in the community as to what is actually proposed and therefore what aspects of the proposal they should be concerned about. As already noted, the late deletion of the tavern component has clearly created suspicion amongst the community as to the true intentions of the land owner. On our assessment there would have been much less opposition to the proposal if the tavern had never been included as part of the original application. Although the Lido club has now closed, we were told that residents did not object to that activity continuing as it has for at least the past 22 years.

23 We agree with Ms Brennan that this proposal should not be penalised because of existing problems caused by apparent lax situation with the operation of 'Room Nightclub' and resultant loutish behaviour in the Council car park. Based on what we have heard and seen we are surprised that Council has not taken any particular enforcement action in relation to areas of non-compliance in the operation of existing venues. While not directly related to this application, it is obvious that the existing unsatisfactory situation has generated objections to any proposal that might, even in some small way, replicate or exacerbate what are major adverse impacts for neighbours, particularly residential neighbours to the north and west. We would therefore encourage Council to use its best endeavours to ensure that permit conditions on existing venues are being met.

24 We therefore support the idea that any use of the site for a tavern or nightclub needs to be dealt with on a holistic rather than a piecemeal basis and that buildings and works associated with such uses must be considered in a comprehensive manner. For example if the balconies are required for a tavern use then it needs to be clear how the balconies will be used (for the serving of alcohol, as smoking areas, for the serving of meals or for any of these together) rather than the balconies being proposed "in a vacuum".

25 It is uncertain whether any existing use rights beyond "restaurant" which the upper level has the benefit of (eg due to the long running Lido cabaret restaurant) would physically extend to any new balconies. For example, if the Lido use constituted both a "restaurant" and a "cabaret" use, then there seems a real argument that if the Lido re-opened, then new planning approval would be needed for the "cabaret" aspect if it was proposed that Lido patrons could use a new upper level balcony. Because we are deleting the balconies we have not had to decide what conditions should be imposed on their use, although there seems to be a strong case for reasons of residential amenity that if balconies are built in the future, that there should be restrictions on how they are used.

26 For the above reasons we will set aside Council's decision and direct that a permit issue for a modified proposal and subject to the conditions as set out in our order.

[1] Clause 32.01-4 requires a permit for construction of two or more dwellings on a lot.

[2] Relevant provisions include Clauses 11, 12, 14, 15.12, 16.02, 21.02, 21.05, 21.06, 21.07, 21.12, 22.07, 55(ResCode) and 65.