Thomas Anderson Design Pty Ltd v Mornington Peninsula SC [2009] VCAT 2325

Thomas Anderson Design Pty Ltd v Mornington Peninsula SC [2009] VCAT 2325 - VCAT 2009 case summary — Zoe

[23]

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.
The applicant has applied to the Tribunal for a review of this decision.
Objectors to the application support Council's refusal.
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.
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.
We have determined that the key issues in the consideration of this matter are whether:

[35]

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.
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.
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.
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.
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.
For these reasons, we have not been satisfied that a tavern represents an appropriate use for the proposed site.

[37]

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.
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.
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.
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.
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].
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.
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.
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.
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.

[40]

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.
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.
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.
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.
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.
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.
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.
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.

[41]

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.
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.
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.
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.
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.
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.
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.

At a glance

Court

Decision date

Source

Judgment (68 paragraphs)

Thomas Anderson Design Pty Ltd v Mornington Peninsula SC [2009] VCAT 2325 (30 October 2009)

Parties

Legislation Cited (1)