Respondents Melbourne City Council and Nebi Yilmaz and Ors.

Respondents Fredrick & Sophie Tribel and Queen Victoria Market Pty Ltd

Dates of Hearing 7th July, 8th October and 22nd November 1999

Subject Land Shops 20 and 21, Shed F. Queen Victoria Market, 513 Elizabeth Street, Melbourne

Applications for Review 1999/019912 and 1999/022548

The order of the Tribunal is that no permit is granted in relation to permit Application No. TP98/1373.

The Tribunal's order is that no enforcement order is made.

Mr John Rantino, Solicitor of Messrs Maddock Lonie and Chisholm, appeared for the Council and Queen Victoria Market Pty Ltd, on all days of hearing.

Mr How Ng, Town Planner of H. & G. Town Planning Pty Ltd, appeared for Mr Nebi Yilmaz and ors. on all hearing days.

On the first day of hearing, Mr Tribel appeared on behalf of himself and Ms Tribel. On the second Mr Rantino made submissions on their behalf. On the third day, Ms Tribel appeared on their behalf.

1. These three applications before the Tribunal relate to the placement of café tables and chairs in a pedestrian walkway abutting a café/take-away food premises in Queen Victoria Market.

2. Application for Review 1999/19912 is a proceeding initiated by persons who operate businesses from nearby stalls or shops within the market. They seek a review of the Responsible Authority's decision, in relation to Permit Application No. TP98/1373, to grant a permit for the placement of the tables and chairs, and handrails enclosing the seating area, outside the existing shop. That application for review is brought under Section 82 of the Planning and Environment Act 1987.

3. Application for Review 1999/22548 is a review brought under Section 80 of that Act. The permit applicant is seeking modification of one of the conditions included in the Notice of Decision to Grant a Permit which would otherwise require the reduction of the extent to which the area devoted to tables and chairs protrudes into the walkway from 2m to 0.9m.

4. Application for Review 1999/46814 is a proceeding brought by the same group of objectors under Section 114 of the Act. An enforcement order is sought requiring that the respondents cease the use of the subject land for the purpose of a kerbside café, and remove the tables, chairs and associated handrails, unless a permit is granted under the Melbourne Planning Scheme.

5. The subject site comprises land immediately abutting Shop 20/21 F Shed Queen Victoria Market. Shop 20/21 occupies a corner site at the intersection of two pedestrian walkways through the market area. The shop is located to the south-west of the intersection. We were advised that the northern pedestrian accessway functions as a roadway prior to 8.00 a.m. on market days. The accessway to the east appears to be for pedestrian use only at all times.

6. Shop 20/21 is indeed a "shop" rather than a market stall. It is one of a limited number of lockable buildings included on the wider market site. The permit applicants operate a café/take-away food premises from Shop 20/21.

7. The business has been in operation since before the issue of a planning permit by the Melbourne City Council for a kerbside café in 1991. The planning permit number was DP 91/0159.

8. When the permit was granted, the permit applicant appealed against two of its conditions. The conditions appealed against were as follows:

No more than five tables and 20 chairs are to be used and they are to be placed so as not to obstruct pedestrian traffic to the satisfaction of the Responsible Authority.

No tables or chairs should be placed in front of the shop."

9. The Tribunal in its determination of 29 January 1992 in Tribel v City of Melbourne, (Appeal 1991/33572, unreported) modified the conditions to read as follows:

The area to be occupied by the kerbside café hereby approved shall be delineated by white lines painted on the ground at the permit holder's cost and shall:

- at the front (north side) of the premises not extend more than 900mm from the face of the premises, and

- at the side (the east) of the premises the delineation of the area shall ensure that there is a pedestrian walkway with a minimum width of 1.5m,

The number of tables and chairs within the areas delineated in accordance with this permit for the purpose of the kerbside café, shall be such that when occupied no part of any table or chair extends beyond the boundaries of the delineated area, to the satisfaction of the Responsible Authority."

10. While the Tribunal gave oral reasons for its determination in that case, the following written summary of the oral reasons accompanied the written determination:

"In summary the Tribunal concluded that it was not unreasonable for the applicant to have tables and chairs at the front of his premises provided they are behind the white line which defines the limit to which other stall holders are permitted to place goods outside their premises, and that at the side of the applicant's premises the number of tables and chairs should be dictated by the need to ensure that when occupied no part of any table or chair intrudes into a clear walkway with a minimum of 1.5m."

11. Permit DP91/0159 as modified by the Tribunal in 1992 contained two further conditions, which, due to inaction on the part of the permit holder, caused the permit to expire. Condition 1 of the permit required details of the "street furniture" to be submitted to the Council; and Condition 2 stated that the permit would cease within one year of the date of issue of the permit, unless it was extended by the Council upon the request of the permit applicant. The officer's report in relation to the present permit application indicates that details of the street furniture were never submitted to the Council; and no formal request was ever received by the Council to extend the life of the permit.

12. The fenced area occupied by the tables and chairs sits within a defined area licensed to the Tribels (or, strictly speaking, Mr Tribel) for this purpose by Queen Victoria Market Pty Ltd, the role of which is referred to later in these reasons. The licensed area extends some 2m to the north of the northern face of the shop and 2.3m to the east of its eastern elevation. The licence was granted to the Tribels on 11 March 1998. The licence was for five years from 29 February 1996. We were told that in or around late November 1997, holes were drilled in the ground to receive supports for the metal barriers placed around the tables and chairs to separate them from the walkway. The holes were drilled by Queen Victoria Market Pty Ltd.

13. The objectors operate businesses from stalls or shops in the immediate vicinity. One at least operates a stall in E Shed to the immediate north of the right-of-way which runs along the northern side of the subject shops, and Mr Yilmaz operates a business from a lock-up shop across the eastern laneway.

14. Material presented to us at the hearing of the application for review indicates that there is a door and window on the western elevation of the Yilmaz lock-up shop. Those fixtures were installed, we were told, in 1997. Photos provided to us indicate that Mr Yilmaz, on a daily basis, puts out a display case of goods mounted on a trolley in the eastern pedestrian walkway. That door and window were not in place, it seems, at the time of the 1992 Tribunal decision, nor was it the practice to display goods on a trolley external to the Yilmaz shop.

Processing of Current Application by Responsible Authority

15. The current application for Planning Permit TP98/1373 was lodged with the Responsible Authority on 15 December 1998. It seeks to legalise the existing situation in terms of extension of the café use onto the surrounding laneways.

16. Upon receipt of the permit application, the Responsible Authority required it to be advertised, and in response an objection in the form of a petition signed by a large number of surrounding stall holders and shopkeepers was received. The grounds of objection were summarised in the Council Officer's report to the Responsible Authority as follows:

"* The placement of tables and chairs in the laneway further narrows an already narrow lane, thereby restricting pedestrian access down F Shed and a consequent loss of trade.

There is a physical danger of an accident waiting to happen due to the obstruction of the laneway by the tables and chairs. Prompt access would be denied."

17. In accordance with the officer's recommendation, the Responsible Authority determined to issue a Notice of Decision to Grant a Permit. The notice was issued on 25 February 1999. The notice proposes to allow any person relying on the permit that is issued "To place chairs and tables (kerbside café), plus associated handrails, outside the existing premises."

18. Condition 1 of the notice appears to be the only condition which the applicants for permit seek to have reviewed. Its terms are as follows:

"Prior to the commencement of the use hereby permitted the applicant shall submit to the Responsible Authority three copies of plans drawn to scale generally in accordance with the plans accompanying the application but amended to show:

* A reduction in the seating area at the front (north side) of the premises to a maximum width of 900mm from the face of the building.

These amended plans shall be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plans of this permit."

19. Condition 4 on the Notice of Decision requires the tables and chairs and all associated equipment to be removed from the footpath by 11.00 p.m. each day and not be placed in position before 8.30 a.m. daily.

20. The Tribels' grounds for their application for review of Conditions 1 and 4 are:

21. The objectors' appeal against the grant of the permit is based on the following grounds:

"The tables and chairs to be allowed on the east side are excessive. They would block pedestrian traffic and service vehicles and are detrimental to the proper functioning of the market."

22. The enforcement order application (Application 1999/46814) by the objectors was lodged with the Tribunal on 21 June 1999. The order originally sought by the objectors was "to have the use ceased and tables and chairs removed unless a permit has been granted therefor."

23. By letter of 15 October 1999, Mr Ng, on behalf of the objectors, sought a modification of the application, following discussions which had occurred during the initial days of hearing. The objectors now sought:

"To have the use ceased and tables and chairs and other fixtures removed, and the guardrails removed and the ground made good, unless a permit has been granted therefor under the Melbourne Planning Scheme."

24. At the same time Mr Ng sought to have the particulars of the alleged breach of the Planning Scheme amended. The alleged contravention against which the objectors sought the enforcement order had earlier not been clearly identified. The new particulars were:

"A permit is required for the development and use of the land for a kerbside café and one has not been granted by the City of Melbourne under the Melbourne Planning Scheme."

26. It seems that the three proceedings before us arise essentially from a dispute between the Tribels and other shopkeepers and stall holders about congestion in the laneways immediately surrounding Shop 20/21, allegedly caused by the permit applicants placing tables and chairs outside their premises. It is asserted that the Tribels' business occupies an unreasonably large part of the abutting laneways.

27. The subject of the current application for permit was described on the application form as follows:

28. The proposal essentially involves the placement of the tables and chairs owned by the Tribels within the abutting laneways on each market day. They are removed at night. Eight removable metal barriers, also owned by the Tribels, are put in place and removed at the same time. Each barrier is kept in place by slotting either end into a hole drilled in the ground - two holes have been drilled for each barrier. The holes are fitted with metal sleeves.

29. The proceedings as they unfolded before us, however, principally focused on the matter of whether or not the proposal needs planning permission. Mr Ng and Mr Rantino argued this question. As we explain later, our conclusions on this question dispose of the proceedings. We do not therefore find it necessary to discuss planning merits questions. Consequently, we do not propose to refer to certain submissions made by Ms Tribel, to a petition she caused to be filed after the hearing in accordance with the Tribunal's directions, to certain submissions Mr Ng made in relation to the petition (also in accordance with the Tribunal's directions), or to the evidence of Mr D. Sarantopolous (a witness called by Mr Ng).

30. Somewhat unusually, the Responsible Authority submitted on the first day of hearing that, despite the fact that the Responsible Authority had received and processed a planning permit application for the outdoor seating and the associated barriers, no planning permission was in fact required. The hearing was adjourned to enable the objectors to consider that proposition put forward by the Responsible Authority and the matter was rescheduled for 8 October 1999. It was later adjourned again to 22 November 1999.

31. The argument which has been put forward on behalf of the Responsible Authority is broadly that no planning permission is required for either the use or development of the land. Mr Rantino relied on a multi-branched argument: the use and development were lawfully established at the approval date of the current Planning Scheme; the use was now as of right under the Planning Scheme; and the only works which the proposal involves (the construction of the holes to receive the barriers) were lawfully undertaken without the need for planning permission in 1997. He also argued that the new Scheme does not require permission for the making of the holes.

32. We turn first to the arguments concerning the need for permission for the use of the land.

33. Mr Rantino argued that the particular use proposed, that of a "café", is part of the use of the market site as a whole for the purpose of a "market". Mr Rantino's submission was that the laneway area in question does not constitute a separate and distinct planning unit for the purposes of the Planning Scheme. He said, if it were, all individual stalls and other laneways within the market would also be separate and distinct land units and this would make a nonsense of the land use category "market" contained within the current Planning Scheme.

34. "Market" is defined in the Melbourne Planning Scheme and the Victoria Planning Provisions as follows:

"Market - land used to sell goods, including foodstuffs, from stalls.

Includes community market, trash and treasure market.

35. Mr Rantino said that, in the case of the Tribels' licensed area, the take-away food/café activities conducted within that part of the market - and they are only conducted at times when the market is open - are either a component activity of the market use of the market site or ancillary to the market use of the market site.

36. In relation to this part of his argument, Mr Rantino pointed to the fact that the Queen Victoria Market site as a whole is currently leased by the City of Melbourne to Queen Victoria Market Pty Ltd - which is a company wholly owned by the City of Melbourne. It happens, he said, that the manner in which Queen Victoria Market Pty Ltd operates is by issuing licences to stall holders and shopkeepers. Licences may or may not include the footpaths immediately in front of those stalls or shops.

37. Mr Ng sought to argue that the use of the subject land by the Tribels is separate from the market and is an innominate use within the zone - being a "kerbside café". Such a use had been recognised under the former Melbourne Planning Scheme, he said, and particular provisions were included at Clause 216A. The definition of "kerbside café" under that Scheme had been:

"A kerbside café is the use of any public place for the arrangement of tables and chairs used for the consumption of food and refreshments in association with a lawfully existing restaurant, café or shop. Public place includes and applies to:-

* Any park, garden reserve or other place of public recreation or resort.

* Any vacant land or vacant space adjoining any road.

* Any open space to which the public whether upon or without payment of admittance have or are permitted to have access, but does not include a shopping arcade."

38. Mr Ng noted that the definition of "road" under the Planning and Environment Act 1987, which is:

"Road includes highway, street, lane, footway, square, court, alley or right of way, whether a thoroughfare or not and whether accessible to the public generally or not"

includes a lane and footway. He contended that the outdoor seating, by being located on such a road, met the definition of kerbside café.

39. Mr Ng went on to say that the innominate use "kerbside café" should be preferred to other similar uses for which definitions are included in the present Planning Scheme, principally for the reason that no food is prepared on the pavement area, but rather in the adjoining Shop 20/21. He noted that "take-away food premises" are defined as:

"Land used to prepare and sell food and drink for immediate consumption off the premises."

and that the wider use group "food and drink premises" is defined as:

"Land used to prepare and sell food and drink for immediate consumption on, or off, the premises."

40. In relation to this issue of the correct characterisation of the activities in the laneway, we are persuaded by the Responsible Authority's submissions that it forms part of the market use. Just as Mr Byard, then Senior Member of the Administrative Appeals Tribunal, in Shire of Mornington v BP Australia Ltd and M. Hoban (Appeal 1991/28083, unreported), in discussing the types of goods which might be retailed from a petrol filling station, saw the offices on the sixth floor of Myer Emporium as ancillary to the use of the Myer land as a department store or shop, we believe that the "café" is part of or ancillary to the use of the land as a market (see also J. Mollica v Shire of Bulla, D. Allan and M. Imprie 9 AATR 157, 166-170). We regard the Tribels' business as one which is incidental to the main market business of selling unprepared food stuffs and other goods, but nonetheless an integral part of the operation of the market.

41. We would observe also that even, if we had not so found, we would not have viewed the activities as a "kerbside café", as was urged upon us by Mr Ng. This is because the public place upon which the activity occurs does not appear to us to be a "road" within the meaning of the definition of "kerbside café" in the former Planning Scheme. A pedestrian pathway is not necessarily a road - it may be one. In the case of the market, we regard the accessways as not being roads within the ordinary meaning of that word. The pedestrian ways are set up as a matter of convenience between the shops and stalls by the landowner, and as such form part of a wider area of land to which the public has access, which area could not on any view be regarded as a road. In any case the "public place" to which the definition of kerbside café refers, is not a road as such, but "vacant land or vacant space adjoining any road". Therefore, even if the pedestrian pathway were viewed as a road, the café in question would have to be regarded as being conducted on the road itself not on adjoining vacant land or space.

42. As regards alleged existing use rights, Mr Rantino noted that the Queen Victoria Market was lawfully operating as a market well before planning controls began, and certainly before the current Melbourne Planning Scheme came into operation. He said, therefore, that no matter what the current Planning Scheme, introduced on 4 March 1999, says about the use of land as a market, the Scheme does not and cannot prevent the continuation of a lawfully existing use. Mr Rantino was here referring to the provisions of Section 6(3) of the Act and Clause 63 of the current Planning Scheme. Therefore no use permit is needed, he said, for a market use within the market area including for the activities on the Tribels' licensed area.

43. Mr Rantino said that, even if existing use rights were not to apply, the use of land as a market falls within the "retail premises" use group of land uses in the current Planning Scheme, and the use of land for a retail premises (other than adult sex bookshop, department store, hotel, supermarket and tavern) is a Section 1 or "as of right" land use within the relevant Capital City 1 Zone.

44. An alternative argument advanced by Mr Rantino was that, if the activities on the licensed area were not part of the market use or ancillary to it, the proper characterisation of the use of the pavement outside Shop 20/21 when the Melbourne Planning Scheme was introduced was as a "café" and not "kerbside café". Café was defined under the 1991 planning controls - at the time the use commenced - as follows:

"Premises in which refreshments or meals are served to the public for gain, but where alcohol is not consumed, dancing is not performed and live entertainment may be provided by only one person."

45. Mr Rantino noted that the "kerbside café" definition was not introduced into the Planning Scheme until 1992 - after the earlier Tribunal hearing.

46. Café, when the Tribels began using the licensed area, was a Section 1 or "as of right" use in the relevant Land Use Control Area C of the Local Section of the Melbourne Planning Scheme Part 2 (Clause 207-1.1). The area had continuously been used for that purpose since before the introduction of the current Planning Scheme, Mr Rantino said. No-one disputed this fact.

47. Mr Rantino then said that, further or in the alternative, if the use was not a lawfully established use at the time of the introduction of the current Melbourne Planning Scheme for the purpose of a "café", the proper characterisation of the use under the current Scheme was as a "convenience restaurant". That use is defined under the present Scheme as follows:

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

48. That particular use is nested within the general use group of "food and drink premises", which in turn are included within the "retail premises" group, which as earlier noted is Section 1 or "as of right" within the relevant Capital City 1 Zone (see Clause 37.04).

49. Mr Rantino's arguments suggest therefore, no matter which way the activities conducted by the Tribels are approached - either via existing use provisions or via current Scheme provisions and definitions - no planning permit is required for the use. We prefer to rely on the approach that the use was lawfully established as part of the market use at the approval date of the Scheme and is protected by existing use rights to the extent that such protection is required given the use is now "as of right" within the zone. If we are wrong in this, however, the use, we believe, was first lawfully established as a separate use as a café - and it did not and does not now need planning permission. In relation to the view that the use was a café, we do not rely (as Mr Rantino did) on the then Scheme definition, as the correct way to characterise a use for the purposes of defining existing use rights is according to ordinary terminology (see Shire of Perth v O'Keefe and Anor [1964] HCA 37; (1964) 110 CLR 529 at 535).

50. Of course, the absence of a requirement for planning permission for the use of the land is not the end of the matter. Planning permission can be required for development of land. This matter was raised by us during the hearing. It led Mr Ng to seek the amendments to the enforcement order application earlier described. It was also the cause of the reconvening of the hearing in November 1999.

51. Before turning to the matter of development, we should say, that in examining the matter of the need for permission for the use of the land, we have referred only to the relevant zone controls of the current Melbourne Planning Scheme, and not to any overlay controls. While the subject land is also affected by overlay controls, those controls only require planning permission for development and not for use.

52. So far as development is concerned, Mr Rantino suggested that the only matter which might require planning permission was the drilling of the holes in the ground to accept the barrier supports. He submitted that the temporary placement of tables and chairs, and of the removable barriers themselves, should not be viewed as falling within the definitions of "works" as there was no change to the natural or existing condition of the land as referred to in the relevant definition in the Planning and Environment Act.

" "works" includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil."

54. He went on to say that "land" in turn is defined in the Act to include structures permanently fixed to the land. Thus there was the same result that the only permanent fixtures requiring permission were the holes.

56. Mr Rantino then went on to note that, at the time the drilling of the holes occurred in late November 1997, the then Planning Scheme at Clause 211 provided that "a permit is required to construct a building or construct or carry out works except as exempted in this Part [Local Section Part 2]".

57. Mr Rantino next referred to the exemptions then specified in Clause 11-1 of the Planning Scheme (in the Metropolitan Regional Section). One of the exemptions from the need for planning permission was for the construction of a fence, unless there was specific requirement for a permit for same elsewhere in the Scheme.

58. Mr Rantino then submitted that the creation of the holes was part of the construction of a fence. He argued that, as "fence" was not defined in the Scheme, it ought to be given its ordinary meaning. The ordinary definition he relied upon is that in the Macquarie Dictionary:

"1. An enclosure or barrier, usu. of wire and wood, as around or along a field, garden etc."

59. Mr Rantino also referred to the consideration of what constituted a fence for the purpose of planning permission by Batt J. in City of Greater Geelong v Herd and Others (1997) 20 AATR 293. His Honour found:

"To my mind, the two essential features are the function of enclosing or barring and location along or serving to define a boundary ... lest it be misunderstood I hasten to say that the boundary need not be that of a total property or parcel of land, but can be the boundary of some lesser unit. However, it must be, in my view, the boundary of something that has or at any rate once had physical unity. Thus one can have within a domestic property a fence along the boundary of a vegetable patch, a tennis court, a swimming pool or a chicken coop, to take a few examples."

60. Mr Rantino said that the Tribels' barriers served to enclose the area of the café, with its tables and chairs, from the pathways of the market. The barriers also served to define the boundary of the café's area within the market. They satisfied the definition of a fence, he submitted. Thus, the drilling of the holes was also exempt from the need for planning permission, at the time when the works were undertaken.

61. Mr Rantino then pointed to the provisions of Section 6(3)(e) of the Planning and Environment Act, which ensure the continued legality of works constructed before the introduction of a new planning scheme. They provide that nothing in a planning scheme shall require the removal or alteration of any lawfully constructed building or works.

62. Mr Rantino also dealt with Clause 218 of the former Planning Scheme, which was operative at the time the holes were drilled. That clause related to notable buildings and heritage precincts in the City, including Victoria Market. It was Mr Rantino's submission that the operative provision (Clause 218-1) introduced the need for permission only for alterations to buildings and that no such alteration was involved here.

63. Mr Ng replied to the submissions concerning the need for permission for development. He argued that it was "stretching the bow too far" to link the holes in the ground to the construction of a fence, and therefore to exempt works. He said the barriers are not a fence in as much as they do not keep people out or in but people might move between the café and the walkway. The essential nature of a fence, therefore, as described in Herd, was not met. He also noted that Clause 218-2, also operative at the time, regulated consideration of applications to construct a building or works in a heritage precinct.

64. With respect to these arguments, we are again persuaded to adopt Mr Rantino's view. We agree with his submission that the drilling of the holes amounted to the construction of a fence and thus was exempt from the need for planning permission. While we acknowledge Mr Ng's submission that the Herd definition embraces a concept of enclosure, and that the barriers when in place do not totally preclude movement between the café area and the adjoining walkway, we are of the view that such enclosure need not be absolute in a physical sense. It is often possible for a person to pass through a fence, either by a gate or gaps, or simply by climbing over. Enclosure may, we think, be effected by a non-continuous barrier where it is associated with social or functional exclusion. We believe that occurs in this case.

65. It seems to us that, to establish whether the construction of a fence was exempt from the controls in the former Melbourne Planning Scheme, it is necessary to consider the interaction of Clause 11-1 in the Metropolitan Regional Section, and Clauses 211, 203A and 218 in Part 2 of the Local Section (relating to the Central City Development Area). Clause 11-1 provided that nay control in the Scheme over the construction of a building or the construction or carrying out of works did not include (inter alia) "a fence"; it provided also that the exemption did not apply if a permit was "specifically required" for any of the specified matters and things. Clause 211 provided, as we know, that a permit was required to construct a building or to construct or carry out works except as exempted in Part 2 of the Local Section. Clause 203A exempted a large range of matters (none of which seems relevant here) from the general buildings, works and sign controls in Part 2 of the Local Section. Clause 218, which we discuss briefly in the next paragraph, imposed certain controls in relation to notable buildings and heritage precincts. While the interaction of the Local Section controls is complex, our understanding is that none of them imposed a specific requirement for a permit for the construction of a fence, and that the construction of a fence was consequently exempt by virtue of Clause 11-1.

66. Mr Ng was correct in saying that Clause 218-2 of the Melbourne Planning Scheme, at the time the holes were drilled, did refer to both buildings and works. However, that reference was made in a sub-clause which dealt with the matters that were to be taken into account when applications were made. This is to be distinguished from a clause requiring that applications be made. In the case of Clause 218-1, a permit was required to externally alter a building and no reference was made to works.

67. While Mr Rantino went on in his written submissions to deal with current controls relating to development of land, in case we were not persuaded that the works were lawfully established, we do not find it necessary to consider those submissions, given that we believe the works were lawfully established.

68. In these circumstances we believe it appropriate to direct that no permit be granted, as none is required. That would, of course, dispose of the conditions matter.

69. There is evidently no cause for the making of an enforcement order.