1. The following persons are joined as parties pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998: D & A & M Ashton, J & D Balcombe, L & Z & Z Bodvai, K Burrows, J Chiodo, J & R Cleary, B Crawford, J Davidson, P & L Donegan, J Dwyer, L & N Evans, P Johnson, T Keene, R & B Killmier, J & L McKernan, L Peacock, D & R Reeves, P & D Robinson, R Rumpf, J Speer, B Stewart and L Warfe.
2. The decision of the Responsible Authority is affirmed.
3. The amendments to Planning Permit No. P05/1808 are refused. An amended permit must not be issued.

Mr Paul Chiappi of Counsel instructed by Alesci Lawyers.

• Mr D Growcott, acoustic engineer of Watson Moss Growcott.

• the Mornington Ratepayers and Residents Association Inc (McCrae Action Group).
• D & A & M Ashton, J & D Balcombe, K Burrows, J Chiodo, J & R Cleary, J Dwyer, L & Z & Z Bodvai, P & L Donegan, P Johnson, D & R Reeves, J & I Williams, B Crawford, J Davidson, L & N Evans, G Howard, J & L McKernan, T Keene, B Killmier, L Peacock, R Rumpf, J Speer, A Sheehan, B Stewart, L Warfe and M Wilson.

Mr D Barrett on behalf of himself, Mrs L Barrett and Body Corporate 515887 (40 Burrell Street McCrae).

Amendment of Planning Permit No. P05/1808 to allow the use of the land for the purpose of a tavern with a general liquor licence, a reduction of the car parking requirements and the construction of associated works. The application proposes amendments to the permit preamble and various conditions to reflect the proposed use and its operational characteristics. Details of the amendments sought are provided in Appendix A.

Section 77 Planning and Environment Act 1987.

cl 34.01-1 (use of land as a tavern in Business 1 Zone).

cl 34.01-4 (construction of buildings and works in Business 1 Zone).

cl 52.06-1 (reduction of the car parking requirement).

cl 52.27 (sale or consumption of liquor under a different liquor licence to that which currently exists).

The review site is located on the southern side of Point Nepean Road in McCrae, between Bartels Street and Beverley Road. The land supports a single storey commercial premises, (historically the McCrae General Store), that is currently used as a restaurant. At the rear of the building is an informal car parking area, accessed via a driveway that extends along the eastern side of the property. The site forms part of the McCrae shopping village - a small neighbourhood centre comprising of restaurants, medical centres, office, disused mini golf course and dwellings. Access to the commercial centre is generally from a service road off Point Nepean Road.

To the east of the site are three dwellings. A permit has been issued that allows the use of two of these dwellings as restaurants with a combined capacity of 132 seats and provision of 19 on-site car spaces. The remaining dwelling is located on the corner of Beverley Road and is not proposed to be re-developed.

To the west is a single storey restaurant while to the north, on the opposite side of Point Nepean Road is the McCrae foreshore area and associated beach. Within this area are the Eastern Lighthouse, the McCrae Yacht Club, a surf club, public toilets, car parking and a walking/cycling trail.

Adjoining the review site to the south is a multi-unit residential development comprising five two-storey dwellings. Dwelling 5 within this development shares a common boundary with the review site and has its secluded private open space area, first floor balcony and a number of habitable room windows adjacent to this interface. To the south-east is another residential property. Land to the south-west of the site is a vacant, unconstructed Council-owned property that is used as a public car park.

Alesci Lawyers v Mornington Peninsula SC [2009] VCAT 1110

Lighthouse Enterprises McCrae Pty Ltd v Mornington Peninsula SC [2008] VCAT 237

1. This application proposes the establishment of a tavern in a small commercial centre in McCrae. We have not been persuaded that this location, given its direct interface with a residential area, is an appropriate one for a tavern. The likely impacts of the use, principally noise and disturbance arising from patrons, will result in an unacceptable impact on the amenity of the adjoining residential area.
2. We have also not been persuaded that a General Licence is an appropriate liquor licence as we are of the opinion that the likely patronage and pattern of use will result in activity well beyond that currently being experienced, to the detriment of the local residents.
3. During the course of the hearing the parties expressed uncertainty about the future car parking and access arrangements for this commercial centre. We were advised that the site has been the subject of two previous Tribunal determinations[1] and is the subject of a current application for a mixed-use multi-level development. We agree with the views expressed in the more recent Tribunal case[2] that a co-ordinated approach should be adopted to address the parking and access requirements of the centre, rather than an ad-hoc, piecemeal approach utilising permit conditions. Such an approach should necessarily involve consultation and involvement of all relevant stakeholders including the adjoining residents and owners of properties within the Business 1 Zone.

1. Not all of the persons represented by Dr Nelsen had lodged an objection to the application and/or a statement of grounds with the Tribunal[3]. An application was made by Dr Nelsen pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 to have these persons joined as parties the proceeding. Application was also made to join Mr Barry and Mrs Dee Robinson as parties.
2. There being no objection from Mr Chiappi, Mr Beazley or Mr & Mrs Barrett, we joined these persons as parties to the proceeding.

1. Thomas Anderson Design Pty Ltd applied to the Mornington Peninsula Shire Council for an amendment to planning permit P05/1808, issued for land at 675-677 Point Nepean Road McCrae on 16 March 2006 (and subsequently amended on 14 August 2006, 28 November 2007 and 8 May 2009). In essence, the purpose of the amendment is to allow the use of the land for the purpose of a tavern and for the sale and consumption of liquor under a General Liquor Licence. Permission is also sought to reduce the associated car parking requirements. The Council refused the application on the following grounds:
   • (1) The proposed tavern is a 'new use' which should be considered under a new planning application, not by amending an existing permit. The tavern use has different and more onerous requirements under the Planning Scheme. It is inappropriate and bad planning practice to amend a permit to allow for a completely new land use.
   • (2) A General Liquor Licence is an inappropriate licence for a licensed tavern as it allows for the consumption of liquor off the premises, whereas the purpose of a tavern is to allow only for the on-premises consumption of liquor.
   • (3) McCrae Village is a small neighbourhood centre that is not considered appropriate for the use of a tavern.
   • (4) There is insufficient parking provided on-site for needs of staff and patrons of the tavern.
   • (5) The tavern use will result in a substantial and significant loss of residential amenity to the residents adjoining and neighbouring the subject site.
   • (6) The option to enhance access between the Bartels Street car park owned by Council and the commercial land uses fronting Point Nepean Road should be retained and preserved, consistent with the Local Planning Policy Framework and Clause 22.02.
   • (7) The requirement to enter into an Agreement pursuant to Section 173 of the Planning and Environment Act 1987 is a valid requirement and the owner is obliged to enter into the Agreement having acted on and obtained the benefit of the existing planning permit.
   • (8) The need to construct the car park at the rear of the site to a properly sealed impervious and properly drained standard is appropriate on this site and will assist in obtaining the most efficient and effective parking use of the area.
2. The applicant has applied to the Tribunal for a review of this decision.
3. Objectors to the application support Council's refusal.
4. At the outset, Mr Beazley advised us that the Council was not pursuing the first two grounds of refusal. We have therefore not considered the merits or otherwise of these matters.
5. Having regard to the submissions of the parties, the relevant planning policies, provisions and guidelines of the Mornington Peninsula Planning Scheme and the context of the review site, we must decide whether the proposed amendment to the permit represents an acceptable planning outcome.
6. We have determined that the key issues in the consideration of this matter are whether:

1. a tavern is an appropriate land use in this location; 2. the likely acoustic impacts of the proposed use are acceptable;

1. the sale and consumption of liquor under a General Licence is appropriate in the circumstances of this case;

1. McCrae Village is classified as a Neighbourhood Activity Centre under Melbourne 2030. The Planning Scheme[4] identifies such centres as having a mix of uses to meet local convenience needs; being accessible by walking, cycling and public transport; and being an important community focal point.
2. The Municipal Strategic Statement[5] expands upon this classification within the local context of the municipality by specifying a hierarchy of Neighbourhood Activity Centres ranging from Large Township Centres with a leaseable floor area of 10000m²-25000m² and serving a population in excess of 10 000 people through to Convenience Centres with a floor area of less than 1000m².
3. Within this hierarchy, McCrae Village is classified as a Convenience Centre, being the lowest order centre, and described as:

These generally serve neighbourhoods within settlements. They have a LFA that is less than 1,000 square metres. The commercial land uses typically include a convenience shop/general store, with some other retail premises and no office based services or restricted retail premises.

1. The Policy Frameworks of the Planning Scheme do not identify a vision the future development and use of the McCrae Village. The general convenience role which this centre historically served has been substantially eroded in recent times with the opening of the McCrae Plaza further to the west along Point Nepean Road. That centre has a supermarket as an anchor and supports a further 16 retail tenancies, some of which are presently vacant. It seems to us that it is this larger centre, rather than the McCrae Village, which satisfies the majority of the convenience needs of the McCrae community.

1. The purpose of the Business 1 Zone includes reference to encouraging the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses. Given the uses within the McCrae Village, including four existing restaurants (and planning permission allowing a further two on land to the east of the review site)[6], the centre appears to be adopting a new role as a focal point for eating establishments.
2. In principle, use of land within a Business 1 Zone for a tavern is appropriate as it is consistent with the purpose of the zone and broadly consistent with activity centre policy. While acknowledging that the purpose of the zone encourages intensive development, however, not all Business 1 Zones are the same. They vary in size, built form, land use composition and, importantly, context.
3. Similarly, a tavern is a section 2 permit required use which suggests it is a use that may create impacts upon surrounding areas and the appropriateness of these impacts must be considered before deciding to grant a permit.

1. In this instance, the context of the review site, being within a small commercial centre at the interface with a residential area, is a significant constraint on the use, to the extent that we are not persuaded that a tavern would represent an appropriate planning outcome in this circumstance.
2. As a consequence of the residential interface, any development and use on this site has the potential to directly, and significantly, impact on the amenity of the neighbouring properties.
3. In examining these potential amenity impacts, it is important to note the difference in the operational characteristics of a tavern as compared to a restaurant, as currently exists on the land.
4. Clause 74 of the Planning Scheme provides the following definitions:

Land used to prepare and sell food and drink, for consumption on the premises. It may include:

1. entertainment and dancing; and
2. the supply of liquor other than in association with the serving of meals, provided that tables and chairs are set out for at least 75% of patrons present on the premises at any one time.

Land used to sell liquor for consumption on the premises. It may include accommodation, food for consumption on the premises, entertainment, dancing, amusement machines, and gambling.

1. The primary activity associated with a restaurant use is the preparation and sale of food and drink whereas the primary activity associated with a tavern is the sale of liquor. Consequently, the amenity impacts of these uses are sufficiently different to warrant different assessments under the provisions of the Planning Scheme - as evidenced by the need for planning permission for a tavern. This is in contrast to a restaurant use which is included in Section 1 and is exempt from planning permission.
2. Mr Chiappi explained that the principal reason for requesting the amendment to the permit is to allow the premises to have music beyond 11.00pm and also to provide patrons with the option of purchasing liquor (such as a bottle of wine) to consume at home or elsewhere off the premises. Mr Chiappi submitted that the owner is intending to continue operating the restaurant as occurs at present, and that it will not transform into a 'troublesome nightspot'.
3. While acknowledging the intentions of the owner in this respect, we note that a permit generally runs with the land, not an individual. In the event that the amendments are approved there would be nothing to prevent a future owner or operator using the land as a tavern, where the primary activity is the sale and consumption of liquor. We therefore place no weight on the submission that the nature of the use would not alter if permission was granted for a tavern use.
4. Indeed, despite Mr Chiappi's explanation, we note the proposed amendments to the permit include a condition that requires the predominant activity prior to 9.00pm to be the preparation and serving of meals for consumption on the premises. Accordingly, during the later evening and night-time hours, the premises may be used by patrons exclusively for the consumption of liquor. In our view, an operation of this nature is more akin to a tavern than a restaurant.

1. The proposed change of use represents a fundamental change to the activities conducted on the land and in the patrons who attend the premises. The current activities are focused on the preparation and consumption of food where, in the majority of cases, liquor would be consumed as an incidental part of having a meal. Patrons attending the premises for the sole purpose of consuming liquor are likely to be in the minority. By its very nature, a tavern is the complete reverse of this. The majority of patrons would be attending for the purpose of consuming liquor rather than a meal. This raises issues of patron behaviour and also of expectations in respect of the form of entertainment provided on the premises. In our view, by its very nature, a venue which caters primarily for the consumption of liquor carries with it the potential for the generation of noise and disturbance that would adversely effect the adjoining properties and surrounding area.
2. Potential amenity impacts of a tavern use include patron behaviour in and away from the premises, noise, use of the on-site car park and bottle collections at the rear of the site. We recognise that venue management plans are frequently proposed as a means of managing amenity impacts. Such plans, however, have their limitations as they relate to activity on the land and do not (and in most cases, cannot) extend beyond the site boundaries to manage the behaviour of patrons once off the premises.
3. We acknowledge and accept that residents living in locations that adjoin or are proximate to activity centres and Business zoned land cannot reasonably expect a level of amenity that is commensurate with that experienced within a homogenous residential environment. By necessity there is a level of dis-amenity which must be accepted as a trade-off for the convenience associated with residing in proximity to services within these centres. This is not to say, however, that there are no limits to the impacts on their amenity that residents can reasonably be expected to tolerate.
4. In this instance, we consider that the impacts of the activities associated with a tavern use in this location go beyond what can be considered reasonable. The late night operation, in conjunction with the availability of liquor which can be purchased and consumed off the premises, introduces the potential for disturbance to occur early into the morning hours. We do not consider it reasonable to expect residents to put up with this level of impact on their amenity. The interface with the residential area is simply not sufficiently robust to moderate the likely impacts to an acceptable level.
5. Mr Chiappi emphasised that the current operation has not resulted in any recorded complaints. This is perhaps unsurprising given that the predominant use of the land is the preparation and serving of meals, and that the sale and consumption of liquor is not the dominant activity on the land. Neither is liquor available for purchase for consumption off-site. If anything, the absence of any complaints can be taken was evidence that a restaurant use with an on-premises licence represents an appropriate commercial use in this location. The absence of complaints does not support the proposed conversion of the premises to a tavern, as this is a different use with different operational characteristics and impacts as compared to those of a restaurant. For example, the nature of a restaurant is patrons staying at a venue and enjoying a meal with perhaps tables turning over twice, whereas a tavern may have people arriving and leaving more frequently and/or all arriving and leaving at the same time.
6. For these reasons, we have not been satisfied that a tavern represents an appropriate use for the proposed site.

ARE THE ACOUSTIC IMPACTS OF THE PROPOSED USE ACCEPTABLE?

1. Mr Growcott's evidence was that the acoustic impacts of the proposal could be managed to ensure they do not unreasonably affect the amenity of the adjoining residential area.
2. We accept that music noise from the premises can be made to comply with State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2 by a combination of physical measures, such as automatic door closers on the doors that provide access to the rear car park, and technological means, such as noise limiters.
3. The noise impacts arising from patrons and patron behaviour are more problematic as there is no standard or accepted means by which such impacts can be assessed. Mr Growcott is of the view that the use of the methodology described in SEPP N-1 is suitable for such an assessment. This is done in the knowledge that SEPP N-1 does not apply to McCrae as it is outside the metropolitan area, to the assessment of individual voices, to noise from crowds, or to hotel patron noise.
4. We have some reservations about the appropriateness of this methodology in the circumstances of this particular case. The noise design objective is derived from the zoning of the land. It is not based on the actual measured ambient noise level at the residential interface. In this regard, it is observed that SEPP N-1 applies to the metropolitan area and not to a quiet seaside context such as that of the review site. Even in its application as intended, that is to regulate noise from commerce, industry and trade, the SEPP N-1 does not apply to this non-metropolitan area. Consequently, we are not persuaded by Mr Growcott's evidence that in a location such as this, the adopted noise design objective is appropriate.
5. A further consideration in this respect is that, as noted in Mr Growcott's evidence, the SEPP N-1 night-time noise limits are specifically chosen for the protection of sleeping areas from noise of a constant character (ie a constant industrial or plant equipment noise). The specified limits do not take into account 'spikes' in the noise level arising from activities such as slamming of car doors, revving of motors, laughter or raised voices associated with patron use of the car park[7].
6. Mr Growcott's assessment was confined to the acoustic impacts upon the residential property adjoining the review site to the south (Dwelling 5). In response to questions, Mr Growcott stated that he was not aware of the permit that had been issued by the Council for the combined 132 seat restaurants on the adjoining properties to the east, nor the fact that this approval requires the provision of 19 car spaces at the rear of those properties. If acted upon, this permit would effectively result in the combined car parks extending across the rear of three properties (including this site) with potential shared use of the car parking spaces by patrons of all three premises. The potential acoustic impacts of such an outcome had not been considered.
7. Mr Growcott similarly had not considered the effect of Condition No. 3 of the subject permit which could result in the creation of an accessway connecting the review site with the Bartels Street car park. Hence we have no acoustic evidence about the potential acoustic impacts of such a scheme, the nature of the interfaces along the length of the potential accessway or the measures that may be required to manage any impacts arising from the activity within the accessway and car parking areas. Mr Growcott conceded that the management of impacts arising from patron behaviour beyond the boundaries of the review site would be difficult to manage.
8. Mr Growcott recommended an acoustic fence replace the existing boundary fence with Dwelling 5 but conceded it will provide the adjoining residential property with minimal acoustic protection. The bedrooms of this dwelling are at the upper level and are directly exposed to the car park on the review site. These windows are located above the height of the fence. During cross-examination, Mr Growcott stated the benefit of the fence would be confined to ameliorating noise from any vehicles parked directly against it and would not shield the bedrooms from noise arising from activity further north within balance of the car park area on the review site. Again, this evidence did not consider the cumulative impact of a car parking extending across the rear of this site and the two restaurant car parks required to the east with shared access to the review site.
9. On the evidence before us we are not satisfied that the patron noise associated with the use will be able to be managed to ensure that unreasonable acoustic impacts on the adjoining residential area do not eventuate.

1. The existing restaurant use currently has an on-premises licence which authorises the licensee to supply liquor for consumption on the premises (and on the footpath outside the premises) during the trading hours, namely:

Good Friday & ANZAC Day: between 12 noon and 11.59pm

1. The other restaurants in the McCrae Village also operate under an on-premises licence and are authorised to supply liquor up until 11.00pm. No business within this commercial area operates under a General Licence.
2. The amendment proposes a change in the liquor licence to a General Licence that would allow the sale of liquor for consumption both on and off the premises. Patrons would therefore not be restricted to consuming liquor within the licensed areas of the premises, but could also purchase liquor for consumption off-site.
3. Clause 52.27 specifies the following decision guidelines which must be considered, as appropriate, before deciding on an application to use land for the sale and consumption of liquor under a different licence to that which is currently in place:
   • The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
   • The impact of the sale or consumption of liquor permitted by the liquor licence on the amenity of the surrounding area.
   • The impact of the hours of operation on the amenity of the surrounding area.
   • The impact of the number of patrons on the amenity of surrounding area.
   • The cumulative impact of any existing and the proposed liquor licence, the hours of operation and number of patrons, on the amenity of the area.
4. Both the Council and the residents submitted that this small scale commercial strip and adjoining residential area would be detrimentally affected by the grant of a General Liquor Licence. The principal concern of the Council is that the premises would become a de-facto bottle shop with a likely increase in the number of patrons attending the site for the sole purpose of purchasing liquor for consumption elsewhere. The primary amenity impact of this activity was submitted as being disturbance associated with noise and traffic arising from persons attending the site for short periods of time. It was further submitted that this impact would occur late into the night, given the operating hours of the establishment.
5. The residents expressed concerns similar to those of the Council but also referred to the likely (inappropriate) behaviour of patrons arising from the consumption of liquor.
6. We share the concerns of Council and the residents. Notwithstanding the best intentions of the current owner/operator, the reality is that under the proposed amendments, patrons could legitimately attend the premises for the sole purpose of consuming liquor. This is particularly so given the absence of a similar facility within the local area. Patrons from other restaurants in the area could also attend the site after completing their meal to continue socialising over a drink in an environment which also provides entertainment.
7. The later closing time of the premises also provides a venue for persons to purchase alcohol for consumption elsewhere, particularly after 11.00pm once the McCrae bottleshop at the McCrae Plaza has closed[8]. The disturbance resulting from short visits to the site by these customers also present the potential to adversely impact on the residential area during this late night-time period, primarily by way of noise associated with the use of the rear car park.
8. These impacts are likely to be compounded by the proposed access and car parking arrangements envisaged by Condition 3 of the permit which requires the creation of driveway extending from the rear of the review site to the Bartels Street car park - directly adjoining the residential properties. This configuration will bring further late night activity, such as movement of both vehicles and pedestrians, to this sensitive interface. Disturbance can arise from vehicle noise as cars are driven along the driveway and also from conversation/laughter of patrons as they make their way back to their vehicles. The consumption of alcohol by some of these patrons would also have the likely effect of amplifying the volume of this noise, resulting in a greater likelihood of disturbance to the neighbouring residential properties.

1. Both Council and the residents submitted that there is inadequate car parking available to cater for the demand that will be generated by the proposed tavern use.
2. In response, Mr Chiappi drew reference to the existing approval for this site which attracts a standard parking requirement of 77 spaces when the rate of 0.6 space per seat is applied to a 128 seat restaurant use. He submitted this permit which allows the restaurant to operate with nine on-site spaces, demonstrates Council's acceptance that adequate capacity exists in the surrounding area to accommodate the additional car spaces. Mr Chiappi then referred to Mr Beazley's submission that the tavern use generates a standard parking requirement of 90 car spaces and submitted that the difference of 13 car spaces was insignificant.
3. It is common ground that the nine spaces required to be sited at the rear of the property have not been provided. In accordance with Condition No. 21, the car parking area must constructed by no later than 8 November 2009[9]. It is clear to us this car park was intended by the Council to be used by patrons but Mr Chiappi submitted that the existing car park is used by staff and for deliveries and only occasionally by customers.
4. Our consideration of this issue has not been assisted by the fact that no expert traffic engineering evidence was called by any of the parties. Nor was any current empirical data presented to demonstrate the capacity and usage of existing public car parking in the vicinity of the site. Mr Barrett stated the Bartels Street car park is heavily used during summer but is effectively an open space area during the remaining months of the year.
5. Mr Chiappi instead referred to the Parking Assessment Report (dated 3 September 2008) which accompanied the planning application for the adjoining proposed restaurant premises at 671-673 Point Nepean Road. That assessment found that in excess of 150 car spaces existed in the surrounding area to satisfy the demand of patrons associated with this restaurant premises. It appears that Council accepted the findings of this assessment as it proceeded to issue a permit for a reduction of the car parking requirement.
6. Based on the material before us, it appears that any additional parking demand generated by a tavern use on the review site could be accommodated by the surrounding area. Certainly, no evidence to the contrary was presented by either Council or the residents.
7. We accept that a high demand for the available parking exists during the peak summer season. This is a common, and expected, occurrence along the foreshore areas of the Mornington Peninsula, given its popularity as a holiday destination. We do not consider it reasonable to constrain further development in the commercial area on the basis that a deficiency of parking will occur at these times given it is confined to the summer months. This level of demand will not be experienced for the greater part of the year and should therefore not form a basis for the assessment of parking availability.

1. We are not satisfied that a tavern use and its operation with a General Licence is appropriate on the review site. Given the small scale nature of the commercial centre, and its direct interface with a residential area, the noise and patron behaviour impacts associated with a tavern use will have a noticeable and detrimental effect on the neighbouring residents' amenity. We will therefore affirm Council's decision and direct that Planning Permit No. P05/1808 must not be amended.

Variation of the car parking and loading bay requirements for a restaurant, on premises liquor licence, outdoor seating and associated works in accordance with the endorsed plans.

The change of use from a restaurant to a tavern, outdoor seating, car parking variation, general liquor licence and associated works in accordance with the endorsed plans.

(2) Amendment of various conditions (including conditions 1, 5, 8 and 21) to replace the word "restaurant" with the word "tavern".

(3) Amendment of Condition No. 3 to replace the words:

Prior the restaurant/cafe use extending to more than eighty (80) seats, or an approval is granted for any future use or development which generates additional carparking under Clause 52.05 [sic] of the Planning Scheme the owner must ...

Prior to the tavern extending to more than eighty (80) patrons the owner must ...

Unless the owner has satisfied the requirements of Conditions 3(A) to (E) inclusive by 1 April 2009, to the satisfaction of the Responsible Authority, the owner must reduce the seating in the restaurant to not more than sixty (60) seats to the satisfaction of the Responsible Authority by 1 April 2009.

and its replacement with a new condition which reads:

The access way to the rear car park on the subject land is to be kept available for staff and patrons of the premises at all times and kept free of any obstructions to the satisfaction of the Responsible Authority.

The predominant activity carried on the [sic] premises must be the preparation and serving of meals for consumption on the premises. The use of the premises is not to be converted to a bar at any stage.

The predominant activity carried out on the premises must be the preparation and serving of meals for consumption on the premises between the following hours:

- Monday to Sunday: 7.30am to 9.00pm

- Good Friday and ANZAC Day: 12 noon to 9.00pm

Unless with the consent of the Responsible Authority.

Within six (6) months of the date of the amended permit, the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must to the satisfaction of the Responsible Authority be:

Prior to the tavern use extending to more than 80 patrons, the area set aside for the parking of vehicles and access lanes as shown on the endorsed plans must to the satisfaction of the Responsible Authority be:

Before the restaurant use commences the owner must enter into an agreement pursuant to Section 173 of the Planning and Environment Act 1987. The purpose of the Agreement is to ensure that:

1. the existing access way between properties at 673 Point Nepean Road, McCrae and 675 Point Nepean Road, McCrae is maintained;
2. if the shared access way cannot be maintained the property at 675 Point Nepean Road, McCrae must maintain a 3.0 metre wide vehicular access from Point Nepean Road unless alternative vehicular access is provided;

1. the owner agrees to contribute towards the cost of fully constructing the Bartels Street car park; and

1. the owner facilitates the creation of a service lane between the council car park in Bartels Street and 675-677 Point Nepean Road, McCrae in accordance with Condition 3 of Planning Permit P05/1808.

The costs in preparation and registration of such agreement are to be met by the owner and should be paid prior to the registration of the Agreement.

[1] Alesci Lawyers v Mornington Peninsula SC [2009] VCAT 1110; and Lighthouse Enterprises McCrae Pty Ltd v Mornington Peninsula SC [2008] VCAT 237

[2] Alesci Lawyers v Mornington Peninsula SC [2009] VCAT 1110, paragraphs 68 - 72

[3] D & A & M Ashton, J & D Balcombe, L & Z & Z Bodvai, K Burrows, J Chiodo, J & R Cleary, B Crawford, J Davidson, P & L Donegan, J Dwyer, L & N Evans, P Johnson, T Keene, R & B Killmier, J & L McKernan, L Peacock, D & R Reeves, P & D Robinson, R Rumpf, J Speer, B Stewart and L Warfe.

[6] The use of land as a restaurant in the Business 1 Zone does not require planning permission.

[7] Mr Growcott's evidence indicates more than two events per night with noise levels above 75-80dB(A) outside habitable room windows that are open can cause sleep disturbance.

[8] The McCrae Bottleshop operates under Liquor Licence 32001222, a copy of which was tabled at the hearing. The Licence specifies operating hours of 9am - 11pm on any day other than Sunday, Good Friday, ANZAC Day or Christmas Day; 10am - 11pm on Sunday; and 12 noon - 11pm on ANZAC Day.

[9] Condition 21 states that the car park must be constructed within 6 months of the date of the amended permit (issued 8 May 2009). The 6 month period therefore expires on 8 November 2009.