With respect to planning permit application no. P04/1417, the Responsible Authority's decision is varied.

A permit is granted for the use of the land as a restaurant; an on-premises licence; construction of alterations and extensions to the existing building, a shed, deck and associated works; an advertising sign and reduction in parking in accordance with the endorsed plans at 284 Main Creek Road Main Ridge.

The permit must contain the conditions set out in the Notice of Decision to Grant a Permit issued by the Responsible Authority on 23 December 2004 but with the following variations:

(i)

Condition 1(a) to be modified to read as follows:

(a)

The licensed area where liquor may be served to restaurant patrons must be marked on the plan and limited to the internal dining area; the deck and the paved area in between the restaurant and the deck.

(ii)

Condition 1(d) to be modified to read as follows:

(d) A reduction in the size of the entry foyer and art gallery area so that the northern wall does not extend beyond the southern end of the east facing garage door;

(iii)

Condition 1(e) to be modified to read as follows:

(e) The business sign measuring not more than 2 metres by 1 metre and located centrally along the frontage;

(iv)

In condition 1(f), replace "5 metres" with "3 metres".

(v)

Condition 1(h) to be modified to read as follows:

(h) The provision of a screen along the northern end of the elevated deck to prevent direct views to the property to the north with such screen to be solid with no gaps, coloured in muted tones and not less than 2 metres high above the deck's floor level;

(vi)

Condition 1 (k) to be modified to read as follows:

(k) A reduction in the amount of car parking provided so that not less than 25 spaces are provided for the restaurant use and the car parking area along the southern boundary does not extend further west beyond the existing vineyard.

(viii)

Condition 7 is modified to read as follows:

7. Except with the further consent of the Responsible Authority:

(a) The internal dining area to the restaurant must only be open to the public during the following hours:

Monday to Sunday: 8 am to 9 pm

Friday and Saturday: 8 am to 11 pm

(b)

The external dining areas to the restaurant must only be open to the public during the following hours:

(ix)

Condition 20 is modified to read as follows:

20. Except with the further consent of the Responsible Authority, the shed hereby approved must only be used for storage and production associated with the winery and must not be used for cellar door sales.

(x)

The following new conditions 22 and 23 are to be added:

22. The restaurant must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry or Winery.

23. The permission for the sign will expire 15 years from the date of this permit.

The Responsible Authority is directed to issue a permit in accordance with this order.

1 This matter involves 2 applications, one against the council's decision to grant a permit with respect to planning permit application no. P04/1417[1]; the other against a number of the conditions that the council has decided to include on the permit[2].

2 In summary, the permit application sought permission to use the land as a restaurant; to construct new buildings and works and for an on-premises licence at 284 Main Creek Road, Main Ridge. The council has approved the application and issued a Notice of Decision to Grant a Permit [NOD] subject to 21 conditions.

3 At the hearing, Mr Nicol, Ms Vidoni and Mr Twite tabled and spoke to written submissions to which they added further oral argument. I was also presented with an array of other material including photographs of the subject site and surrounding area; various plans, maps and diagrams as well as copies of documents such as permits and licences that have been issued for activities on the site, copies of tribunal decisions and letters from persons who have dined on the property in the past. The submissions and other material have provide me with a good understanding of the site and locality, the proposal and the crux of the issues that have led to these applications being made.

4 The subject site is located on the west side of Main Creek Road, Main Ridge, about 500 metres north of Bright Lane. It comprises an irregular shaped lot with a frontage of about 78 metres, a depth of about 720 metres along its northern boundary and an overall area of about 10.3 hectares. The site is set on sloping terrain, falling from its frontage down to its rear boundary. Splitters Creeks runs through the western end of the site, near the rear boundary.

5 Existing features on the site include:

•

A rectangular shaped single storey building setback about 5 metres from the site's Main Creek Road frontage that has been used for a winery, cellar door sales and dining;

•

An elevated timber deck to the rear or west of the building referred to above that has been used as additional seating/dining area;

•

A small vineyard that I would estimate covers about 10-15 per cent of the site;

•

A reasonably large area of open pasture separating the vineyard from an area towards the rear of the site where a number of cabins, a shelter and a dam that has been stocked with trout[3] for fly fishing exist.

6 The site was previously known as the Ryland River Estate and has been used for the purpose of a vineyard, winery, associated cellar door sales as well as fly fishing and camping. It is now known as the Peridot Lake Estate. It seems that the site has been used for some form of dining in the past, although it is unclear as to whether such activity was ancillary to the winery operation or the scale of the use was such that a restaurant commenced unlawfully.

7 A number of permits have been issued over a period of about 15 years or so allowing for both the use and development the site for various purposes. These include a permit[4] that allowed the existing shed at the front of the site to be used for the purpose of processing and bottling of wine; and another permit [5] that allowed the use and development of the land for the purpose of fly fishing and camping. In relation to these functions, I note that:

•

a "Vignerons Licence" [6] has been issued to the permit applicant that requires, amongst other things, that 70 per cent of the wine that may be supplied on the site must be from fruit grown or pressed by the licensee;

•

"Aquaculture Licence"[7] has also been issued to the applicant under the Fisheries Act 1995 allowing rainbow trout, Atlantic salmon and brown trout to be held and cultured on the site (ie: within the dam), and

•

Certificate of Registration[8] under the Food Act 1984 for the use of the land for a "winery".

8 Contextually the site is located within a rural area where there is a variety of lot sizes; generally of a size that is similar to the subject site or smaller. Properties in the area are used for a rural, rural residential and some commercial purposes, generally related to either rural and/or tourism related activities such as vineyards, wineries, taverns, cafes and tourist accommodation.

9 Ms Vidoni occupies the property immediately to the north of the site at 280 Main Creek Road, known as the Vidoni Estate Winery. This property shares a common side boundary with the subject site. Buildings on the Vidoni property include a dwelling, setback about 50 metres from Main Creek Road, and a reasonably large outbuilding located to the northwest of the elevated deck, near the common boundary. A row of conifers exists near the common boundary with the site, between the house oo the Vidoni property and the outbuilding.

10 The permit application seeks permission for several things.

11 First, permission is being sought to use the building on the site and the adjacent outdoor areas, including the elevated deck, for the purpose of a restaurant. The overall seating capacity was originally proposed to be 100 persons. Condition 6, which is one of the conditions in dispute, seeks to limit the number of patrons within the restaurant to 60. During the course of the hearing, Mr Twite advised that the permit applicant no longer wishes to contest this condition and would accept the maximum number of patrons being set at this number.

12 It is proposed that this use would operate in conjunction with the vineyard and the fly fishing/accommodation with wine produced on site and fish stocked in the dam to be served to customers.

13 Second, permission is also being sought for a number of buildings and works. These include:

• the construction of an extension to the front of the existing building, essentially within the front setback area, to provide a space that provides an entrance to the restaurant and for an art gallery/display area;

• the construction of the elevated deck including shade sails;

• the provision of shade sails to cover an external machinery and work area to the north of the restaurant building;

• the construction of a new outbuilding with a floor area of about 162 square metres that is to be located on the common boundary with the property to the north, and

• the formalisation of car parking areas adjacent to the existing building and extending along the south side boundary.

14 An on-premises licence is also sought as part of the restaurant use. The hours of operation, as proposed by the permit applicant, are to be 7 am to 11pm on any day other than Sundays, Good Friday and Anzac Day. On those days the hours would be 10am to 11pm.

15 The application plans also show that it is proposed to display an advertising sign with an area of 2 square metres at the front of the property. No further detail has been provided; however, condition 1 (e) requires further details to the council's satisfaction.

16 Under the planning scheme, the subject site is located within Green Wedge Zone, the provisions for which are found at Clause 35.04. Under the zone provisions, restaurant is a Section 2 or permit required use provided that the following conditions are met:

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

The number of patrons present must not exceed the number specified in a schedule to the zone or 150 patrons, whichever is the lesser.

17 Further, a permit is required under Clause 34.05-4 for the construction of buildings and works associated with a use that is within Section 2 of the zone. Decision guidelines at Clause 34.05-5 require a range of general, rural, environmental as well as design and siting issues to be considered.

18 The land is either totally covered or partly covered by several overlay controls as follows:

• Environmental Significance Overlay [ESO] - Schedules 10 [Upland Basalt Slopes], 17 [Streamlines] and 28 [Mornington Peninsula Bushland], and

• Significant Landscape Overlay [SLO] - Schedules 1 [Ridge and Escarpment Areas]; and 6 [National Trust Classified Landscapes].

19 A permit is required under ESO10, ESO28, SLO1 and SLO6[9] to construct a building and to carry out works. Consideration needs to be given to various decision guidelines set out within the main overlay control itself as well as any further requirements set out in the applicable schedules including what is significant under the schedule and the objectives to be achieved. I do not propose to recite all of the provisions relating to these overlay controls as I do not believe that it would serve any useful purpose given the nature of the matters in dispute. Suffice to say that the salient matters were set out in extensive detail in Mr Nicol's submission and I have had regard to these matters in coming to my decision.

20 Other relevant clauses within the scheme are:

• Clause 52.05 which sets out requirements for outdoor advertising;

• Clause 52.06 which sets out the requirements for car parking;

• Clause 52.27 which relates to applications seeking a new liquor licence, and

• Clause 65 which sets out general decision guidelines to be considered.

21 The purpose of the zone and overlay controls as well as the various decision guidelines set out in the various controls that trigger the need for a permit require that consideration be given to a range of matters including the provisions of the planning scheme's State Planning Policy Framework [SPPF]; the Local Planning Policy Framework [LPPF] including the Municipal Strategic Statement [MSS] and Local policies.

22 There are many policies, objectives and strategies within the planning scheme's policy frameworks that are of relevance, albeit to varying degrees, to the consideration of the merits of this proposal. Those that I consider to be particularly relevant to the key issues requiring consideration in this matter are:

• Clause 15.05: Noise abatement

• Clause 17.04: Tourism

• Clause 17.05: Agriculture

• Clause 21.03: Mornington Peninsula - Regional Role and Local Vision

• Clause 21.09: Planning for Rural Areas

• Clause 22.06 Development on Highways, Main Roads and Tourist Routes

• Clause 22.07 Commercial and Industrial Uses in Rural Areas.

23 Mr Nicol went to some trouble to set out the relevant parts of these policies in some detail in his submissions. Again, I do not propose to set these policies out in this document; suffice to say that they have been considered and will be referred to as appropriate later in these reasons.

24 The permit application was lodged with the council on 27 July 2004 after which further information was requested. Notice of the application was given and in response, 2 objections were submitted to the council. The objection lodged on behalf of Ms Vidoni raised concerns about the proximity of the extension to the existing building to the site's frontage; the visual impact of the shade sails; the siting of the proposed outbuilding on the common boundary and the potential for overlooking. From the elevated deck. Concerns were also raised about amenity impacts in relation to the proposed hours of operation.

25 The council subsequently decided to approve the application and issued a Notice of Decision to Grant a Permit [NOD] on 23 December 2004. The NOD is subject to 21 conditions.

26 Application no. P111/2005 was subsequently lodged by Ms Vidoni. The application is brought under Section 82 of the Planning and Environment Act 1987 against the council's decision to grant a permit. The application is accompanied by a lengthy document that sets out the concerns with the proposal. I do not propose to recite them in this document; rather, I will deal with the matters that were pursued at the hearing.

27 Application No. P262/2005 was lodged by the permit applicant against several conditions imposed by the council. The conditions in dispute are nos. 1(f), 5, 6, 7 and 20. As previously noted. Condition 6 is no longer in dispute.

28 After having considered the submissions and other material presented by the parties; the details of the proposal and the relevant matters to be considered under the planning scheme and legislation, it seems to me that the key issues in this matter are:

• Is the use of the site for a restaurant supported by the purpose of the zone and the planning scheme's policies?

• Would the proposed use result in unreasonable impacts on amenity, particularly that of the neighbouring property to the north?

• Is the proposed development acceptable having regard to the environmental and landscape values of the locality and their impact on amenity of the neighbouring property to the north?

29 Before turning to these issues, it is clear from Ms Vidoni's submission that she is dissatisfied with the way that the council has handled the permit application and her complaints about the way that the site has been used in the past. I could sense her frustration during the hearing. In particular, I note her concerns about the lawfulness of the buildings and works and the commencement of the restaurant use without a permit. Ms Vidoni also queried whether the true identity of the permit applicant has been established.

30 In relation to these matters, I am not in a position to determine whether the council has acted reasonably or not in their dealings with her. But in any event, they are not matters that are relevant to what I have to decide. Ms Vidoni's application has provided her with the opportunity for the merits of this proposal to be reviewed by the tribunal afresh or de novo. This is what I have done. In relation to the identity of the permit applicant, like most cases of this type, any permit issued would run with the site, not the individual who applies for the permit.

31 I now turn to the key issues.

32 In relation to the first matter, it seems to me that Ms Vidoni's concern is that the proposal seeks permission for a restaurant that would, purportedly, operate in association with other uses on the site; namely, the vineyard, winery and the fly fishing. Ms Vidoni asserted that the vines on the land are in poor condition and have not produced a crop nor has there been any fly fishing activity on the land for many years. I think the thrust of Ms Vidoni's submission was that given the previous use of the site [or lack thereof] it would be inappropriate for the proposal to be considered in the light that the proposed restaurant would operate in conjunction with other uses.

33 In relation to these concerns, the first point to be made is that permit application must be considered on the basis of what has been put forward in the application, not what has happened in the past. In this case, the applicant has put the proposal forward on the basis that the restaurant would operate in association with the winery and the trout fishing facilities. The merits of the proposal must be considered on this basis.

34 Indeed, it is the only basis upon which the proposal can be considered. The provisions for the Green Wedge zone are clear in that a permit can only be issued for a "restaurant" if the use operates in conjunction with agriculture, outdoor recreation facility, rural industry or winery. If a permit is to be issued for a use like this, I think it would be appropriate to include a condition on such permit along the lines of that specified in the planning scheme.

35 If the restaurant is not linked to one of these uses, the use would be prohibited and a permit cannot be granted for it. Further, if a permit is granted and the restaurant does not operate in conjunction with the other required uses, then the permit would not, in my view, authorise the restaurant use. The use would be unlawful.

36 In any event, I was not persuaded that the restaurant could not be operated in conjunction with one of the other required uses. For example, Mr Twite tabled a copy of a vignerons licence that allows for the sale of wine etc. Vines have been planted on the site. It may be that the vines have been neglected in the past; however, Mr Twite indicated that the applicant intends to improve their condition and possibly to extend the area planted with vines over the vacant pasture. Further, wine was produced on site in 2004, although not in great quantities. It is expected that about 5 tonne of grapes will be pressed this year. Mr Twite presented a valid aquaculture permit that allows the dam to be stocked with various forms of fish. He also said that the dam has been stocked with about 1000 trout. Cabins already exist on the site.

37 Putting aside how the site may have been used in the past, what this demonstrates to me is that the proposed restaurant could operate in conjunction with a winery and a form of outdoor recreation facility; namely, the dam which allows for fishing, an activity that is consistent with leisure and recreation.

38 Even if it can be established that the proposed restaurant would operate in conjunction with one of the other required uses, that does not mean that the use is acceptable. The proposal must be considered on its merits having regard to the various matters raised in the decision guidelines. This includes the purpose of the zone and the planning scheme's policies.

39 The purpose of the Green Wedge zone includes the protection and conservation of green wedge land for, amongst other things, its agricultural, environmental, landscape, recreational and tourism opportunities. Further, the purpose of the zone encourages use and development that is consistent with sustainable land management and conserves and enhances the character of open rural and scenic non-urban landscapes.

40 With respect to planning policy, I note that the MSS states, at Clause 21.03-3:

......However, in the context of the Peninsula's other planning priorities, agriculture is seen as a use which can foster sustainable land management practices and can be conducted without detriment to the natural and modified landscapes of the peninsula. In this context, diverse rural activities, including vineyards and wineries, are considered one of the Peninsula's main strengths.

41 Further, the MSS also acknowledges that the value of agricultural areas like this does not only lie in their capacity to generate produce, but also in their attraction to tourists. The MSS also states, at clause 21.02, that vineyards are an increasingly important industry on the Peninsula and that these wineries attract about 150,000 visitors each year to the region.

42 The local policy at clause 22.07 contemplates that there will be circumstances where commercial uses may be established in areas that are primarily designated for rural use. Objectives of this policy include:

• To maintain permanent non-urban areas of high landscape value for a variety of recreational activities and experiences and to support sustainable agricultural uses of rural land.

• To prevent the establishment of use and development which would reduce the distinctive character of the Peninsula's rural landscapes.

• To give an emphasis to outdoor and unstructured recreation, especially recreational activities that promote the understanding of, cultivate an interest in or are directly associated with rural pursuits the land or coastal environments in their natural state.

• To encourage tourism and recreation uses that minimise the adverse impacts on the amenity of local residents.

43 At clause 22.07-3, the policy goes on to say that "Applications for commercial uses in rural areas should be limited to those which demonstrate a direct link to rural activities....."

44 It is clear that the subject site has been used for various purposes in the past including wine production, cellar door sales, dining and trout fishing. Some of these activities, such as the dining associated with the café, may be regarded as ancillary to the winery bearing in mind that the definition for this use notes that it may include " ....the preparation and sale of food and drink for consumption on the premises."

45 On reviewing the planning scheme's strategies and policies, I am generally satisfied that these provide support for the proposed restaurant use. It is clear that the planning scheme policies do not support the wide spread establishment of commercial uses within areas zoned for what are essentially rural and green wedge purposes.

46 However, the proposed use is one that must be operate in conjunction with another that is acceptable within the zone. This is not a case where an independent commercial use may be established. Rather, it must be operated in conjunction with at least one other use that is linked to agriculture, primary production or recreation and leisure. The vineyard will continue. Wine pressed on the site will be sold and served in the restaurant. Fish from the dam will also be served within the restaurant, something which is promoted in a local tourist magazine tabled at the hearing and on the internet.[10] I think that there is a clear link between the proposed restaurant and the other activities on the site.

47 A question arises as to whether the overall scale of what is being proposed greatly exceeds that of the other uses that it must operate in conjunction with. With a capacity of 100 persons, it would be fair to say that the proposed restaurant would have been a significant use in its own right, compared to the other activities on the site. However, the applicant has accepted a condition that almost halves this figure and, in my view, brings the proposed restaurant down to a more modest scale.

48 The planning scheme clearly recognises the important role that tourism and tourist related activities play in supporting the Mornington Peninsula's economy. The proposed use would not undermine the use of the site for agriculture, wine production, leisure and recreation. All these activities would continue. This proposed restaurant would, in my view, add to the overall tourist experience on this site. I agree with the council that with a seating capacity of 60 patrons, the use is a reasonable one in the circumstances.

49 The reduction in patron numbers also reduces the on site parking requirement. The number of spaces shown on the plans seems to be excessive bearing in mind the reduction in patron numbers. I consider a parking ratio of 0.4 spaces per patron to be a reasonable car parking rate to apply in a case like this. This would necessitate at least 25 spaces being provided. This modification to the plans can be implemented by permit conditions.

50 Further, I see no reason why a use of this type that is acceptable in principle, should not have the benefit of an on-premises licence.

51 Whilst the proposed use is acceptable in principle, the next issue to be determined is whether it would have unreasonable impacts on the amenity of Ms Vidoni's property. In this regard I note that particular concerns raised related to the potential for overlooking from the elevated deck and noise.

52 It seems that the deck in question was constructed without a planning permit and retrospective approval is being sought. In cases like this, it is clear that discretion exists for a permit to be granted retrospectively; however, the existence of the deck should not in itself justify approval being granted. Rather, the approach to be taken is that the building works should be assessed as though it is not there, although its existence provides the obvious advantage of allowing the impacts to be more easily assessed.

53 I have the benefit of plans which show the details of the deck and photographs that clearly demonstrate the visual impact and juxtaposition with the neighbouring property to the north.

54 In my view, the deck presents itself as a relatively lightweight structure that sits comfortably within the landscape. I think this is clearly shown in Figure 12 of Mr Twite's submission. Whilst it is elevated, this is due to the mildly sloping nature of the terrain. In general terms, I do not think that it is an overbearing structure or one that sits uncomfortably within the rural/landscape setting of the area even when the addition of shade sails as proposed.

55 In relation to concerns about overlooking, I note Mr Twite's submission that the permit conditions seek to "further screen potential for overlooking"[11]. I was left with the impression that there is a condition on the permit that requires some form of screen to be erected on the northern side of the boundary; however, on reviewing the conditions, I do not see one that requires this. Nonetheless, it was suggested at the hearing that condition 1(h) could be modified to require such a screen along the northern edge of the deck to prevent direct views towards Ms Vidoni's property. I think this measure would be reasonable and the condition can be amended accordingly.

56 Ms Vidoni suggested that the screen should extend around to cover the northern third of the western edge of the deck; however, I do not consider this necessary. The views towards the northwest are largely impeded by existing vegetation that has been planted near the common boundary between the 2 properties in question. Further, the distance is considerable. In my view, the additional screening along the front of the deck is not justified in this context.

57 Concerns about the structural stability of the deck and whether a building approval has been issues are not matters that are relevant to the consideration of the planning merits. If a building approval is required for the deck, then this will need to be obtained. Before such approval is granted, the authority to which the application is made will need to be satisfied that it should be approved. That is a matter for the building surveyor concerned.

58 The other concern relates to noise, generally associated with late night activity and the impact that it would have on the residential amenity of Ms Vidoni's property.

59 In supporting the proposal, the council has included a condition that seeks to restrict the hours during which the proposed restaurant would be open to the public. Essentially, condition 7 on the NOD sets opening hours at 11 am on all days, with closing hours set at 9pm Monday to Thursday and 10 pm on Fridays and Saturdays during the summer months. The closing times at other times of the year are 6pm Monday to Thursday and 9pm Friday and Saturday.

60 Mr Nicol explained that the condition allowa the restaurant to be open at times when patrons would be able to appreciate the ambience of the rural setting which involves the winery and fishing. Further, the closing time would ensure that patrons dining "al fresco" on the deck would not degrade the peace and quiet enjoyed by neighbouring residents. Ms Vidoni supported the inclusion of a condition restricting the operating hours so that the amenity of her property is not adversely affected by noise.

61 The permit applicant seeks opening hours that are in line with those currently set out in the Vignerons Licence which allows trading between 7 am to 11pm Monday to Saturday with 10am to 11 pm on Sundays. Mr Twite disputed the council's assertion that patrons would not be able to appreciate the ambience of the use at night, stating that it is common for grapes to be harvested at night and for fly fishing to occur at either end of the day, at both dawn and dusk.

62 Mr Twite suggested that it would be appropriate to have a consistent closing time for dining within the restaurant building of 11pm as the use of this area would not cause unreasonable noise; however, he went on to say that it would be sensible to restrict the hours during which the deck could be used to daylight hours; with flexibility to allow for outside dining during later hours during daylight saving. Mr Twite also produced a letter from an acoustic consultant advising that based on noise measurements taken when the restaurant was at 90 per cent capacity, noise levels would comply with those set out in the EPA's N3/89 policy which sets night time noise limits at 32dB (A). Noise was measured at 30dB (A) at the property boundary.

63 On these matters, I find it somewhat artificial for the council to be effectively arguing that the restaurant should generally be open when patrons are able to appreciate the ambience of the rural setting and the activities on the land. Similarly, I think Mr Twite was drawing a long bow when he suggested that I should take into account that harvesting can occur at night. The vineyard on this land is relatively small and I have great doubt that there would be any real need to harvest grapes at night, a proposition that is more likely where much larger crops are involved. I am also somewhat reluctant to place a great deal of reliance on the letter of advice from the acoustic consultant, who was not called to give evidence, as there is a lack of information provided as to the actual number of people present[12], and whether music was being played and if so, what did it consist of. I also do not accept that the hours set out in the Vignerons Licence can simply translate to another type of use.

64 Whilst there is policy to support the proposed use, the planning scheme also requires amenity impacts to be taken into account. Noise from the restaurant building is one issue. But late night activity associated with people and car movement within and outside the site can also have an impact. The dwellings on the 2 immediately adjoining properties are relatively close to the common boundary to this site. Whilst Mr Twite presented copies of licences for restaurants on other properties in the Peninsula that generally allow 11pm closing, the issue is whether the context is the same as what I have before me. Further, I note the concern raised by Senior Member Monk in Feace Pty Ltd v Mornington Peninsula SC [2002] VCAT 1662 where, at paragraph 55, she expressed concern about the impact that a restaurant could have on a neighbouring dwelling located about 40 metres away. The distance in this case is similar.

65 I am concerned about the potential amenity impacts on Ms Vidoni's property and that of other neighbouring properties. The greatest impact is likely to be at night. Based on what I have before me, I am unable to agree with Mr Twite's submission that the internal dining area of the restaurant should be allowed to operate until 11 pm; 6 days per week. It is reasonable to allow 11pm closing on the typically busier nights, Friday and Saturday, however, on the other nights I consider that 9.pm closing is warranted at this stage. It may be that a case can be made for later opening hours; however, I am not satisfied that the information provided in support of this proposal justifies hours beyond those that I have set out above.

66 I do not accept that 11am opening is reasonable as the main impacts associated with this use would be at night. I consider that 8am opening would be reasonable which would allow the restaurant to cater for breakfast.

67 In relation to the dining on the outdoor deck, I agree with Mr Twite that the hours should be more restricted. Essentially, dining on the deck may commence at 8am, ceasing at 9pm during the daylight saving period, and 7pm during the other times of the year.

68 To some extent, deciding on reasonable hours requires the exercise of judgement based on the information available. I consider that the hours that I have set out above represent a reasonable balance in the circumstances. I will amend condition 7 to reflect these hours.

69 In relation to condition 5, I agree that its requirements are overly restrictive I think that the condition should be deleted. If the use operates so that it is more akin to a "casual bar" as suggested by Mr Nicol, then the reality is that it would be different use with no permit. This is an application that seeks permission for a restaurant and it must operate in this way. The applicant cannot change the use lawfully without a permit. I do not consider the revised condition set out by Mr Twite to be necessary.

70 On the basis of the reduced number of patrons now proposed, the screening to prevent direct overlooking to the north and the modified hours of opening, I find that the impacts of the restaurant would not be unreasonable.

71 Next I turn to the issue of whether the various development proposals would have an unreasonable impact on amenity.

72 I have already dealt with the deck and do not propose to revisit this issue.

73 It would be fair to say that the main issue of concern to Ms Vidoni related to the impact of the proposed outbuilding that was to be constructed on the common boundary with her property. Condition 1(f) requires that this building be setback not less than 5 metres from the boundary. Mr Nicol explained that the council considers that this setback is warranted to allow for screen planting.

74 Mr Twite indicated that the permit applicant is willing to provide for 3 metre setback to allow for the screen planting sought by the council.

75 I consider the 3 metre setback to be reasonable in the circumstances. I would think that reasonable screen planting could be established in this area. Accordingly, I will amend condition 1(f) so that it specifies that the building be setback 3 metres off the boundary.

76 Ms Vidoni also has concerns about the use of this building and, in particular, the potential need for effluent to be disposed of.

77 The proposed building is to be used as part of the winery, both for storage and possibly some production. It includes a toilet and shower. The issue raised by Ms Vidoni is valid; however, the council, which is responsible for approving effluent disposal systems, did not raise any concerns about this aspect of the proposal. I see no reason why it cannot be resolved by way of a permit condition that requires the disposal of effluent to be undertaken to the satisfaction of the Responsible Authority. Condition 9 on the NOD deals with this very issue and represents a satisfactory response to this concern.

78 Whilst still on this building, I note that condition 20 restricts its use to storage of equipment associated with the agricultural use on the site. I agree with Mr Twite that it is overly restrictive. I do not see why this building should not be used for storage and production of wine. The general wording for a replacement condition, as suggested at the end of the hearing, would allow this building to be used for both storage and production purposes; however, not for cellar door sales. I think this is reasonable.

79 I have come to the conclusion that a permit should be granted to allow the proposed restaurant use. In overall terms I am satisfied that the proposed use is acceptable having regard to the purpose of the zone, planning policy and the context of the site. I am also of the view that the amenity impacts will not be unreasonable having regard to the conditions that I propose.

80 Further, I am also of the view that the development proposed would not have unreasonable impacts on the rural landscape or scenic qualities of the area. The shed building in particular, is not dissimilar to the type of outbuilding that one might reasonably expect within a rural setting.

81 Whilst I agree wit the council's decision to grant a permit, I consider that the permit conditions should be varied. I have settled the final form of the permit conditions in dispute taking into account the submissions and my findings as set out in these reasons.

82 Further, Mr Nicol and Mr Twite agreed that a number of the other conditions require modification to make their meaning clearer. These were conditions 1(a), 1(d), 1 (e) and 1(k). I have revised the wording of these conditions generally as discussed at the hearing.

83 As already indicated that I believe that an additional condition should be included that makes it clear that the restaurant must operate in conjunction with one of the uses specified in the zone control.

84 I have also included a condition that sets an expiry date for the sign in accordance with the provisions of clause 52.05-1.

[1] Application for Review No. P111/2005

[2] Application for Review No. P262/2005

[3] According to the applicant, the dam has been stocked with about 1000 trout

[6] Licence No. 32420476 issued pursuant to the Liquor Control Reform Act 1998

[7] Licence Number PLS 37 issued on 1 November 2004

[9] This type of abbreviation refers to the overlay and schedule number

[10] Holiday Magazine - Mornington Peninsula and The Bays, page 8 and www.visitor.com.au

[11] SJB Planning Submission, paragraph 53

[12] For example, does 90 per cent mean 90 people of the 100 patron capacity originally sought?