Ms Kate Kraft, Town Planner of the City of Port Phillip appeared for the Responsible Authority.

Ms Rosemary Tovey, the Applicant for Review, appeared in person.

Application under Section 82 of the Planning and Environment Act 1987 ("P & E Act") for review of a decision to grant a permit.

Alterations to shop front and permission for on premises liquor licence.

Business 1 Zone and subject to a design and development overlay and a heritage overlay under the Port Phillip Planning Scheme.

3. No provision for car parking for patrons or occupiers.

1. This application for review is brought by Ms Rosemary Tovey. She has applied under Section 82 of the P & E Act for a review of the decision of the Responsible Authority to grant a permit. She has also paid the relevant lodgement fee.

2. She is associated with Mr Robert Piaggio and with N J & M P Durston. They have lodged two further applications for review, but have not paid the fee. Ms Tovey put their position in terms of them being co-applicants with her, but they do not appear on her application for review and they have expressed their grounds in different words. I have regarded the proceeding as the application by Ms Tovey.

3. I note that the Durston grounds are simply expressed as "car parking & traffic congestion".

4. The application of Mr Piaggio appears to be in the same handwriting as that of Ms Tovey. His grounds are given as:

"Traffic hazard and congestion, particularly the intersection:

5. It can be seen that the main ground relied upon is in relation to parking and/or traffic considerations. Ms Tovey made reference to adverse impact on the street without indicating what that adverse impact would be, unless it is traffic congestion and parking. Mr Piaggio makes some specific reference to noise and a very general ground referring to amenity of the area without any indication of the nature of the alleged detrimental impact to that amenity.

6. The permit application giving rise to the proceeding expressed the proposal in the following terms:

"To use existing accommodation on 2nd. To use ground floor as pizza, take away and bar waiting area."

7. The accompanying plans show a bar and servery with dining tables and chairs to be provided in the premises which was previously used as a milk bar at some time in the past. The plans also show an intention to make an alteration to the front of the premises to Fitzroy Street. At present there are shop windows with a central door at the property line. The alteration would involve replacement of that shop front with a balustrade on either side of a central entry, but with the actual enclosure of the premises being by means of new timber folding doors set back approximately 3 metres from the street property line.

8. A careful examination of the relevant planning scheme was carried out in the course of the hearing to determine specifically what planning permission, or permissions, would be required under the planning scheme for this proposal.

9. The Responsible Authority took the view that the correct designation of the proposed use, having regard to there being provision for a pizza take away facility together with dining in arrangements, was that it would be convenience restaurant in accordance with the definition of that use in the planning scheme. The definition of convenience restaurant in the planning scheme is in the following terms:

"Land use to prepare and sell food and drink for immediate consumption, where substantial provision is made for consumption both on and off the premises."

10. Having regard to that definition I think that the designation or characterisation of the proposed made by the Responsible Authority is correct.

11. This land is in a Business 1 Zone. Convenience restaurant is a use which, under the provision applicable to that zone, does not require planning permission.

12. Furthermore, although there are circumstances under which the zone controls require permission for buildings and works, this proposal, with its limited alterations to the shop front area, does not require permission under those provisions.

13. There are two overlays applying to the land. One is a heritage overlay. Under that control permission is required for the alterations to the shop front. No permission is required for the internal alterations such as the construction of the proposed bar and servery. Clearly there is need here for only a very limited permission. The Responsible Authority has determined that it should be granted and the grounds of review do not challenge that proposition.

14. The other overlay is a design and development overlay. That control imposes provisions in relation to various things such as height of buildings, setbacks, preservations of views of the bay and foreshore area and protection of such areas from overshadowing and the like. Under that control permission is required for the alteration to the shop front, but again not for the internal alterations. Again this is a very limited requirement.

15. The only other provision in relation to which planning permission is required is Clause 52.27. That control relates to licensed premises. A permit is required under that Clause to use land to sell or consume liquor where a licence is required under the Liquor Control Reform Act 1998.

16. Having regard to the proposed bar, an on premises licence is required under the liquor legislation, thus planning permission is also required. However, the control in Clause 52.27 does not specify purposes, application requirements for relevant consideration.

17. It can be seen from all this that the scope of planning permission required for this proposal is really quite limited. In fact it is more limited than was originally appreciated by the Responsible Authority. It initially took the view that permission was also required under the car parking control in Clause 52.06. That Clause of the Planning Scheme contains a table which sets out the standard requirements for various specified purposes for which land can be used. Parking must be provided in accordance with that table unless planning permission is granted for a lesser provision. A reduction can be allowed, having regard to various specified considerations.

18. The requirement can be reduced or waived altogether pursuant to these provisions.

19. The Responsible Authority took it that the table and its standard requirements applied to the use of this land as a convenience restaurant. It considered it as a restaurant for which 0.6 car spaces are required for each seat available to the public. It ultimately formed the view, having regard to all the relevant circumstances and the considerations in favour of reducing or waiving the requirement, that no car parking requirement should be imposed in relation to the use of this land as a convenience restaurant.

20. Nevertheless, thinking that permission under Clause 52.06 was required, it included reference to this parking requirement, and to the need for permission to reduce the requirement, as part of the purposes for which permission was being sought in the notice that was given of the application under Section 52 P & E Act.

21. Subsequently it became aware of my decision in Port Phillip City Council v Fernando & Others planning application for review P000512/2002 heard on the 3 June 2002 and in relation to which a decision was given on 6 June 2002. In that case I noted that convenience restaurant is a separate and different "use" compared with "restaurant". It has a separate and distinct definition under the planning scheme. Furthermore, the table in Clause 52.06 applies to restaurant, but not to convenience restaurant. In the absence of that use being included in the table, parking is covered by the paragraph in Clause 52.06-1 which reads:

"Where a use is not specified in the Table to Clause 52.06-5 an adequate number of car spaces must be provided to the satisfaction of the responsible authority."

22. No planning permit is required in relation to that provision. It is merely a matter of the Responsible Authority deciding what an adequate number would be. Someone proposing to use the land for a purpose not in the table, who is dissatisfied with the decision of the Responsible Authority on that point, may apply for a review of its requirement under section 149 P & E Act. However, the scope of section 149 does not extend to third party objectors like Ms Tovey.

23. In this case the Responsible Authority has effectively decided that an adequate number of car parking spaces in this instance is zero. It is not surprising that the permit applicant, Mr Higgins, has not sought to review that decision. As I have said, section 149 does not admit Ms Tovey in relation to that question.

24. The result is that her grounds in relation to traffic and parking cannot be based on the requirement of planning permission under Clause 52.06, because no such permission is required.

25. The provisions that do give rise to the need for planning permission were examined to determine whether arguments in relation to traffic or parking could be substantiated in relation to them. Consideration was also given to whether other amenity consideration might be relevant to them.

26. It is clear enough that the two requirements for permission for buildings and works under the Heritage Overlay and the Design and Development Overlay cannot sustain such arguments.

27. So far as the other permission required is concerned, namely that under Clause 52.27, only grounds relevant to that provision can be advanced. It appears that some amenity arguments might be advanced, for example in relation to what conditions restricting hours of operation should be imposed. The notice of decision to grant a permit of the Responsible Authority imposes Condition 3 in relation to this. It says that the use may operate only between 8.00am on one day, and 1.00am on the following day, every day of the year.

28. No doubt theoretically it is possible to argue that permission should be refused altogether under Clause 52.27. That would not prevent the land being used as a convenience restaurant and it would not prevent the works to the shop front area. It would prevent the obtaining of a liquor licence for the bar. However, having regard to the zoning of the land in a Business 1 Zone, and to the nature and use of the area, it is very hard to see how permission under Clause 52.27 could be refused completely. I am not purporting to finally decide that question here and now. It may be that there are other relevant arguments that were not put at the hearing on the 8 November 2002. Nevertheless it does seem more probable that the relevant scope here would be to impose some restrictive conditions rather than to refuse permission altogether. After all, this part of Fitzroy Street is a busy, lively, cosmopolitan tourist and entertainment area operating at most hours of the day and night. It is an area where there are many food premises, eating premises and entertainment premises including places where liquor can be brought or consumed.

29. Ms Tovey is concerned about the residential amenity of people who, like herself, reside in the locality. She points to the various local policy provisions, including the Municipal Strategic Statement of the City of Port Phillip. However, it has to be appreciated that, even if local policies encouraged residential use in a Business 1 Zone, residents in such a zone come there on the terms that the land is Business 1 land to be used for business purposes. Anyone coming to reside in a residence, for example above shop, in Fitzroy Street, must also appreciate that this a particular type of business zone. It is a particularly active one, both day and night. Residents coming into the area to live do so on terms of it being such an area. They cannot expect to have the sort of pristine residential amenity that might apply in the middle of a Residential 1 Zone elsewhere in the municipality or the metropolis.

30. Having regard to the limited planning permissions involved, and the limited scope objection this provides, Ms Tovey expressed some disappointment that her grounds of opposition have been substantially, if not more or less completely, cut from under her. She said that she wished to consider her position and to consult with Mr Piaggio and Mr and Mrs Durston before making final decision, but in the circumstances she may be compelled to the position that this case is not worth pursuing in the circumstances.

31. There is one aspect of the case that should be tidied up in any event. The words in the Notice of Decision are in the following terms:

"Car parking dispensation for a 20 seat convenience restaurant including an on-premises liquor licence to serve liquor between the hours of 8.00am and 1.00am everyday and alterations to the ground level shop front in accordance with the endorsed plans and subject to the following conditions."

32. Having regard to the limited planning permission in fact found to be needed, the references to car parking and convenience restaurant need to be deleted. The only permission is for the alterations to the ground level shop front in accordance with the endorsed plan, and permission for an on-premises liquor licence.

33. The other aspect of tidying up is in relation to the proposed conditions. Some of the conditions as set out in the Notice of Decision to Grant a Permit are based on the proposition that the car parking dispensation is relevant and required. As it is not relevant or required, those conditions should be deleted. They are Conditions 1(c) and 4.

34. Conditions 10 and 11 are something of a problem for other reasons. Whilst I understand what Condition 10 is driving at, I do not think that it is expressed in a way that makes good sense or that is valid or enforceable. Likewise with Condition 11, one can see the idea behind it, but it is difficult to see how it could be justified in terms of the permission being granted. The intentions of Conditions 10 and 11 might be included in notes rather than as conditions.

35. I indicated that I would adjourn this matter to give Ms Tovey an opportunity to consider her position. It may be that she will advise that she does not wish to pursue this case in the circumstances. In that event I will grant her application for review to the extent of correcting the words of permission and to delete Conditions 1(c), 4, 10 and 11.

36. I extend this opportunity for consideration of whether the matter should proceed further on the basis that a sensible and responsible decision will be made in that respect. It would not be appropriate to insist that the matter go on for hearing unless there is a genuine case to be argued. Ms Kraft suggested that, in the event of the matter proceeding further, this would be an appropriate case for reference to mediation. That appears to be a sensible suggestion in the circumstances. However, that would only become relevant if the matter was to proceed further.