VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1716/2022
Permit Application no.PP22/0674 	
CATCHWORDS	
Application under section 82 of the Planning and Environment Act 1987 (Vic) – Review the decision to grant a permit – Boroondara Planning Scheme – Clause 52.27: To use land to sell or consume liquor where a licence is required under the Liquor Control Reform Act 1998 (Vic) – Commercial 1 Zone – Appropriate location – Predominant activity for the preparation and serving of meals – Noise impacts.	

Applicant	Bryce Iseppi	

Responsible Authority	Boroondara City Council	
Respondent	Kilby Mylkbar Pty Ltd	

SUBJECT LAND	Shop 6/54-58 Kilby Road and adjacent land in the road reserve of Belford Road, Kew East.	

HEARING TYPE	Hearing	

DATEs OF HEARINGs	29 August 2023 & 12 September 2023	

DATE OF ORDER	27 November 2023	

CITATION	Iseppi v Boroondara CC [2023] VCAT 1304	

Order
Amend permit application
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended by amending the address of the land to:
Shop 6/54-58 Kilby Road and adjacent land in the road reserve of Belford Road, Kew East VIC 3102.
Permit granted
2	In application P1716/2022 the decision of the responsible authority is varied. 
3	In planning permit application PP22/0674 a permit is granted and directed to be issued for the land at Shop 6/54-58 Kilby Road and adjacent land in the road reserve of Belford Road, Kew East VIC 3102, in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:

•	Use of the land to sell or consume liquor where a licence is required under the Liquor Control Reform Act 1998 (Vic), under clause 52.27 of the Boroondara Planning Scheme, for a ‘General Licence’ associated with an existing food and drink premises.

Sarah McDonald
Member			

Appearances
For applicant	James Livingston, planning advocate, 
JLP Planning	
For responsible authority	Elizabeth Spanjer, senior statutory planner, Boroondara City Council	
For respondent	Emily Marson, lawyer, Best Hooper Lawyers	

Information
Description of proposal	Use of the land for the sale and consumption of liquor (General Licence) associated with an existing food and drink premises.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Boroondara Planning Scheme.	
Zone and overlays	Commercial 1 Zone (C1Z);
Heritage Overlay (HO831).	
Permit requirements	Clause 52.27: To use land to sell or consume liquor where a licence is required under the Liquor Control Reform Act 1998 (Vic).	
Land description	The review site is a cafe premises in a larger building comprising multiple commercial premises.  The building is in a small commercial area on the south-western corner of Kilby Road (to the north) and Belford Road (to the east).  The premises that the application relates to is on the southern side of the building and faces Belford Road.  The southern side of the premises adjoins Wade Lane, which is a short no-through laneway that extends along the southern side of the commercial properties.
The premises is currently used as a café.
The review site also includes the part of the footpath along Belford Road that accommodates an outdoor dining area associated with the café premises.
The area to the east, west and south of the commercial area is residential.  The land to the north of Kilby Road is the eastern freeway.	
Tribunal inspection	The review site and surrounding area were viewed by the Tribunal before the hearing.	

Reasons
What is this proceeding about?
1	Kilby Mylkbar Pty Ltd (‘Kilby Mylkbar’) operates a café from a commercial premises at 6/54-58 Kilby Road, Kew East (‘premises’).  The premises faces Belford Road.
2	Kilby Mylkbar is seeking a permit to allow the sale and consumption of alcohol (‘proposal’) associated with the existing café/‘food and drink premises’.  It is seeking the permit for inside the premises as well as the outdoor dining area on the footpath in front of the land (‘review site’) along Belford Road.  It is seeking a ‘General’ licence’ so that it can also sell packaged liquor to be taken away for consumption off the premises.  Kilby Mylkbar says that the packaged liquor will be predominantly wine, and that it is intended to install limited shelving within the premises for the packaged liquor sales.
3	The Council has decided to grant a permit for the proposal, subject to permit conditions.  These permit conditions include, among others:
•	requiring the predominant activity carried out on the premises to be the preparation and serving of meals for consumption on the premises (condition 3);
•	requiring a minimum of 75 percent of patrons to be seated (condition 4);
•	limiting the number of people who may be inside the premises and the outdoor dining area (conditions 14 and 15); and
•	limiting the hours during which alcohol may be served and consumed (conditions 16 and 17).
4	Kilby Mylkbar has already obtained a liquor licence for the proposal that is conditional on a planning permit being granted.  The liquor licence applies different limits on the number of patrons and the trading hours than those proposed in the planning permit.
5	Mr Iseppi lives in an apartment adjacent to the review site.  He objected to the planning permit application and has sought this review of the Council’s decision to grant the permit.
6	Mr Iseppi says that a permit should not be granted.  He argues that the proposal is a wine bar that will not serve the local community, and that the permit conditions are ineffectual for controlling the use.
7	I must decide whether a permit should be granted and if so, what conditions should apply to the permit.
8	The key issues to be decided are:
•	Is this an appropriate location for a licensed premises?
•	Are the permit conditions appropriate to manage the proposal so that the predominant activity is the preparation and serving of meals?
•	Will any noise impact on the amenity of Mr Iseppi’s dwelling be acceptable?
9	I have decided to vary the Council’s decision and direct that a permit be issued subject to conditions.  My reasons follow.
Procedural issues & rulings 
10	Kilby Mylkbar Pty Ltd is seeking for alcohol to be sold for consumption in the outdoor dining area along Belford Road, in addition to inside the premises.  Several procedural issues regarding the land the application relates to and whether the proposal for the outdoor dining area is exempt from needing a permit under the provisions of the Boroondara Planning Scheme (‘Scheme’) were addressed through the hearings, a Practice Day Hearing on 17 November 2023, and the parties’ submissions.
11	After considering submissions of the parties, I find that the proposal as it relates to the outdoor dining area is not exempt from needing a permit under the ‘Uses not requiring a permit’ provisions at clause 62.01 of the Scheme.  The relevant exemption is for ‘The use of land in a road if the use is associated with the use of adjoining land and is authorised by the Council under a local law’.  Mr Iseppi’s representative concedes that this exemption does not apply.  This is because the footpath trading permit issued by the Council for the outdoor dining area does not authorise the sale and consumption of alcohol in this area.
12	I also find that the proposal is not exempt from needing a permit under the ‘Coronavirus (covid-19) pandemic and recovery exemptions’ at clause 52.18.  The exemptions provided by this clause relate to existing food and drink premises.  As the existing food and drink premises does not currently have a General licence, the proposal for the General licence for the outdoor dining area does not benefit from the exemption.  At the Practice Day Hearing, Kilby Mylkbar confirmed that it did not seek to rely on the exemptions under clause 52.18 and confirmed its application to amend the permit application to include the road reserve as part of the land to which the permit application relates and for the sale and consumption of liquor in this area.
13	The permit application has been amended accordingly.
What is the relevant planning framework?
14	The use of the review site as a food and drink premises does not require a planning permit under the provisions of the Commercial 1 Zone (‘C1Z’) that applies to the review site under the Scheme.
15	The proposal only requires a permit under the ‘Licensed Premises’ provisions at clause 52.27 of the Scheme.  The exercise of discretion relates solely to the consideration of the provisions of clause 52.27.
16	The purpose of the Licensed Premises provisions is:
To ensure that licensed premises are situated in appropriate locations.
To ensure that the impact of the licensed premises on the amenity of the surrounding area is considered.
17	The decision guidelines at clause 52.27 require consideration of the following:
•	The Municipal Planning Strategy and the Planning Policy Framework.
•	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 the surrounding area.
•	The cumulative impact of any existing licensed premises and the proposed licensed premises on the amenity of the surrounding area.
Is this an appropriate location for a licensed premises?
18	Mr Iseppi opposes the proposal from a strategic point of view.  He submits that the premises is in the lowest level Activity Centre in the municipality, where the objectives are to provide services that benefit the immediate community.  He argues that while the proposal may cater for local residents it is more likely to have broader appeal.  Mr Iseppi says the use is unacceptable here but would be appropriate in a higher order Activity Centre.
19	The premises is in a ‘Local Centre’ under the ‘Activity centres network framework plan’ at clause 02.04-2.  This is the lowest level activity centre of the three categories of activity centres under that plan.
20	The ‘Activity centres’ policy at clause 11.03-1S encourages the concentration of retail, commercial and entertainment uses and development within accessible locations including activity centres.  The local ‘Neighbourhood Centres, local centres, commercial corridors’ policy at clause 11.03-1L-04 seeks, among other things:
•	to facilitate a mix of uses to ensure local centres remain sustainable and multi-functional destinations; and
•	ensure the scale of commercial development reflects the centre’s role and function within the City’s hierarchy of centres.
21	The ‘Diversified economy’ and ‘Business’ policies (clauses 17.01-1S and 17.02-1S) call for activity that strengthens and diversifies the economy.
22	These policies reflect the purpose of the C1Z, which includes–
To create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses.
23	I am satisfied that the proposal is consistent with these policies and the C1Z purpose.  This is because:
i	The proposal will enhance the existing food and drink premises by adding to its service offer and extending its hours of operation.
ii	The proposal will increase and diversify the retail/commercial offer within this local centre, supporting it being a multi-functional destination.
iii	The scale and intensity of the proposal is very modest, and proportional to the scale of this local centre, consistent with its role and function within the City’s hierarchy of centres.
24	Even if patrons are attracted from a broader area than the immediately surrounding area, I am satisfied that the nature and scale of the proposal is consistent with the role and function of this local centre.
25	For these reasons I find that the location is appropriate for a licensed premises, subject to any amenity impacts being acceptable.
Are the permit conditions appropriate to manage the proposal so that the predominant activity is the preparation and serving of meals?
26	Mr Iseppi submits that while the existing use is a café, what is proposed is a wine bar.  He argues that the proposal is based on a false characterisation of the serving of food being an integral part of the business and the sale of alcohol being an adjunct.  Mr Iseppi argues that the proposal is a wine bar.  He does not agree that the permit conditions will ensure that the premises will not act as such.
27	The application that is before me for my consideration is for the use of the review site for the sale and consumption of liquor (General licence) associated with an existing food and drink premises.  There is no dispute that the existing café is a ‘food and drink premises’.  A food and drink premises is defined in the Scheme as ‘Land used to prepare and sell food and drink for immediate consumption on, or off, the premises’.  It includes different types of food and drink premises, including ‘bar’ and ‘restaurant’.  These types of food and drink premises are defined in the scheme as follows:
Bar	Land used to sell liquor for consumption on the premises. It may include accommodation, food for consumption on the premises, entertainment, dancing, amusement machines, and gambling.
Restaurant	Land used to prepare and sell food and drink, for consumption on the premises. It may include:
a)	entertainment and dancing; and
b)	the supply of liquor other than in association with the serving of meals, provided that tables and chairs are set out for at least 75% of patrons present on the premises at any one time.
It does not include the sale of packaged liquor.
[Tribunal’s emphasis]
28	The Council has included condition 3 in the proposed permit which requires the following:
The predominant activity carried out on the licensed premises must be the preparation and serving of meals for consumption on the licensed premises.
29	Condition 4 of the proposed permit requires the following:
Tables and chairs must be placed in position on the licensed premises so as to be available for at least 75% of the patrons attending the premises at any one time, to the satisfaction of the Responsible Authority
30	Mr Iseppi’s concerns relate to whether the use will be able to operate in accordance with condition 3.  He submits that the premises are very small, with a tiny serving area, and no provision for the preparation or cooking of food on the premises.  Mr Iseppi says the existing use is a coffee shop, and that the food component of the existing use is presently ancillary.  He also says that the lease for the premises prohibits the leaseholder installing exhaust fans and preparing food on the premises.
31	I am not persuaded by Mr Iseppi’s submissions.  This is because:
i	The requirement under condition 3 of the proposed permit for the predominant activity to be for the preparation and serving of meals for consumption on the premises precludes the use being only for selling liquor for consumption on or off the premises.
ii	Kilby Mylkbar has not sought a review of condition 3 of the proposed permit.  It submits that it is willing to comply with both conditions 3 and 4.
iii	I am satisfied that the requirement under condition 4 that tables and chairs must be available for at least 75% of the patrons supports the intention that the predominant activity is to be the preparation and serving of meals for consumption on the premises.  
iv	It is true that the kitchen area is small, but this does not mean that the use cannot be operated in accordance with condition 3.  The premises itself is small, and the maximum number of patrons is to be limited.  The small kitchen is comparative to the scale of the premises and the number of patrons to be permitted on the premises. 
v	Whether the current set up of the kitchen and the premises supports the cooking of meals, does not mean that the operator cannot comply with condition 3.  The condition requires the predominant activity to be the ‘preparation and serving of meals’, it does not prescribe the types of meals to be prepared or the equipment required to do so.  Whether Kilby Mylkbar needs to modify the facilities in the kitchen or premises to enable it to comply with condition 3, does not preclude it from being able to comply.  If Kilby Mylkbar needs to obtain other permissions or permits to modify the facilities to enable it to comply with condition 3, that is a matter for them to resolve before they commence the use.
vi	Kilby Mylkbar has explained that the reasons for a General Licence being sought is to enable the sale of liquor for consumption off the premises, rather than to enable the premises to operate as a bar.  Based on the plans provided, I am satisfied that the area of the premises to be set aside for storing the packaged liquor for sale is to be very limited.
vii	In the context of the modest size of the premises, the limited number of patrons to be accommodated, and the reason for the General Licence being sought, I am persuaded by Kilby Mylkbar that the conditions will constrain the way in which the premises is able to be used such that it will not be a ‘vertical drinking establishment’.
32	For these reasons, I find that the permit conditions are appropriate to manage the proposal so that the predominant activity is the preparation and serving of meals for consumption on the premises.
Will any noise impact on the amenity of Mr Iseppi’s dwelling be acceptable?
33	Mr Iseppi submits that it is inevitable that the proposal will introduce a significant increase in noise to the area.  His concerns include the coming and going of patrons, laugher and talking from the premises and the outdoor areas (the outdoor dining area and the service yard to the rear of the premises).  He says this is an extremely quiet area after 5.00pm, with no uses operating beyond normal business hours in the C1Z, and the surrounding land being a Neighbourhood Residential Zone (‘NRZ’).
34	I am not persuaded by Mr Iseppi’s submissions.  This is because:
i	Mr Iseppi’s dwelling is within the C1Z.  In the context of the purpose of the C1Z and the range of uses possible within this zone, the amenity expectations of residents living in or near to a C1Z is necessarily tempered.
ii	The scale of the proposal is very modest, with a maximum of 31 patrons proposed, of which only eight are to be permitted in the outdoor dining area.
iii	The premises and outdoor dining area is not directly adjoining Mr Iseppi’s dwelling.  His dwelling is some 20 metres from the outdoor dining area and is buffered from that area by the building within which the premises is located and the solid wall of his building along the adjacent boundary with the service yard at the rear of the premises.
iv	The proposed permit includes conditions to protect the amenity of the area including:
•	condition 5, which requires the amenity of the area not to be adversely affected;
•	conditions 6, 7 and 8, which preclude external audio equipment and amplified live music, and restrict music to background music;
•	condition 9, which requires signage adjacent to the entry/exit point advising patrons to leave quietly;
•	condition 10, which prevents emptying of bottles into garbage bins or bags outside after 7.00pm and before 9.00am;
•	conditions 11, 12 and 13, which constrain noise emissions in accordance with the relevant noise limits, require a ‘Noise and Amenity Action Plan’ (‘NAAP’), and require noise testing to be carried out;
•	conditions 14 and 15, which limit the total number of patrons on the premises and the outdoor dining area to a maximum of 31, and limit the number of patrons in the outdoor dining area to a maximum of eight; and
•	conditions 16 and 17, which limit the hours of operation for the seating inside the premises and the outdoor dining area.
v	For reasons I discuss later, I will reduce the maximum number of patrons to be permitted inside the premises to 20, and an overall maximum of 28.  This will further reduce the scale and intensity of the use.
35	I am satisfied that, subject to some changes, these conditions will sufficiently constrain the proposal to ensure any potential amenity impacts on Mr Iseppi’s dwelling, and other nearby dwellings in the adjacent NRZ, will be acceptable.  I discuss some of the changes to the permit conditions later in these reasons.
36	For these reasons I find that any noise impact on the amenity of Mr Iseppi’s dwelling, and other nearby residential properties, will be acceptable.
Are there any other issues?
Will the cumulative impact of the proposal on the amenity of the area be acceptable?
37	The decision guidelines at clause 52.27 require consideration of the cumulative impact of any existing licensed premises and the proposed licensed premises on the amenity of the surrounding area.
38	On the information before me, including the Planning Practice Note PPN61: Licensed premises: Assessing cumulative impact, I am satisfied that there are no existing licensed premises within 500 metres of the review site.  In this context, I am satisfied that the introduction of the proposed licensed premises within this C1Z and activity centre, will not have an unacceptable cumulative impact on the amenity of the area.
Can the permit be acted upon?
39	Mr Iseppi questions whether the permit can be acted upon.  His submissions raise concerns regarding access to the toilet relied on by other tenancies in the building, access to the toilet being across the service yard that is also used for bins and storage, and how issues such as smoking are to be resolved and whether this is going to occur in the service yard.
40	Mr Iseppi also submits that issuing a permit that allows tables and chairs in the outdoor dining area ‘well into the night’ directly conflicts with its dual role where dwellings with access from Wade Lane place their bins for the Council garbage collection.
41	None of these matters relate to the sale and consumption of alcohol as proposed in the application.  While some of these matters may be relevant to the use of the premises as a food and drink premises that use does not require a permit under the C1Z and is not a matter for my consideration under this application.
42	Furthermore, the plan for the proposal does not include the service yard within the ‘red line’ area within which liquor is proposed to be sold and consumed.
43	In relation to the potential for conflict between the outdoor dining area and residents placing their garbage bins along Belford Road for collection, this potential conflict already exists as the outdoor dining area is already permitted under the Council’s Local Law.
What conditions are appropriate?
44	The Notice of Decision to Grant a Permit includes a range of conditions regarding how the use is to operate.
Conditions 14, 15, 16, and 17 – Secondary consent
45	The current drafting of conditions 14, 15, 16, and 17 would allow the Council, as the responsible authority, to consent to different patron numbers and different hours of operation without the need to amend the permit under the provisions of the Planning and Environment Act 1987 (Vic).  This is commonly known as a ‘secondary consent’ amendment.
46	Mr Iseppi is opposed to conditions 14, 15, 16, and 17 allowing these limits on patron numbers and hours of operation to be increased by the prior written consent of the Council.
47	I am satisfied that it may be appropriate from time to time to allow more patrons or different hours of operation for the sale and consumption of liquor on the premises and in the outdoor dining area.  It will be at the discretion of the Council as to the extent of any changes that may be appropriate to be approved by secondary consent.
48	However, given the proximity of the premises to residential properties, particularly those in the NRZ, I do not consider it appropriate for the number of patrons and hours of operation for the outdoor dining area and sale of liquor for consumption off the premises on an ongoing basis to be varied through a secondary consent process.  I will amend the permit conditions to limit the potential for the Council to consent to different patron numbers and hours of operation for the outdoor dining area and sale of liquor for consumption off the premises to individual events/dates.
Condition 14 – Number of patrons
49	Mr Iseppi takes issue with the limit on the maximum number of patrons under condition 14 being different to that approved under the liquor licence that has already been issued.  The proposal is for a total of 31 patrons, of which 23 are to be accommodated within the premises and eight in the outdoor dining area.
50	The liquor licence specifies a maximum capacity of 20 patrons.  However, the ‘Liquor Control Victoria Statement of Reasons for the Decision’ includes the following explanation of how the liquor licence applies to the outdoor dining area:
…the footpath thoroughfare is public land, and thus is matter for Council, and the Applicant is required to have the relevant permits to use this area. There is no provision in the Act for the Commission to authorise this area for a General Licence and therefore, no patron capacity has been endorsed for this area. However, the supply of liquor to this area is through the General Licence’s ability to supply liquor off of the licensed premises. …
[Tribunal’s emphasis]
51	I understand this to mean that the maximum capacity of 20 patrons under the liquor licence only applies to inside the premises, and not the outdoor dining area.
52	If the permit is issued for an inside capacity of 23 patrons, it would be in conflict with the liquor licence maximum capacity of 20 patrons.  I will amend the permit to align with the liquor licence for the maximum number of patrons inside the premises, and the consequential amendment to the total number of patrons across the inside premises and the outdoor dining area.
Condition 12 – Noise and Amenity Action Plan
53	Condition 12 requires that the NAAP prepared by Kilby Mylkbar to be updated and approved by the Council.  The condition sets out a number of things the NAAP must address as a minimum.
54	Mr Iseppi submits that the NAAP does not provide any real information over and above the vague assurances contained in the application material.  Among other things, he argues that it does not deal with access through the service yard, does not address the issue of dealing with noise sensitive areas or how these interfaces might be managed, what staff will do, the procedures for dealing with complaints, or lighting.
55	I have made some changes to the detailed wording of condition 12 to ensure it is clear as to what information should be included in the amended NAAP.
Conclusion
56	For the reasons given above, the decision of the responsible authority is varied.  A permit is granted subject to conditions.
57	The conditions contained in this Order reflect those proposed by the responsible authority, the submissions of the parties, and the further consideration of the Tribunal.  As a result of some of the changes to the permit conditions, the numbering of some conditions has changed.

Sarah McDonald
Member			

Appendix A – Permit Conditions

Permit Application No	PP22/0674	
Land	Shop 6/54-58 Kilby Road and adjacent land in the road reserve of Belford Road
KEW EAST VIC 3102	

What the permit allowS	
In accordance with the endorsed plans:
•	Use of the land to sell or consume liquor where a licence is required under the Liquor Control Reform Act 1998 (Vic), under clause 52.27 of the Boroondara Planning Scheme, for a ‘General Licence’ associated with an existing food and drink premises.	

Conditions
Amended Plans Required
1	Before the use commences, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions, and be substantially in accordance with the advertised plans, and modified to show/include:
(a)	the changes contained on the “Discussion Plan” sent to Council on 29 November 2022, including:
i	The location of packaged liquor display;
(b)	updated hours of operation (liquor license) in accordance with conditions 15 and 16 notated on the ‘Redline Plan’ of this permit; and
(c)	a Noise and Amenity Action Plan in accordance with Condition 12 of this permit.
Layout and uses not to be altered
2	The layout of the site, including the size of the spaces to which this permit applies, and the description of the use(s) on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.
Licensed premises
3	The predominant activity carried out on the licensed premises must be the preparation and serving of meals for consumption on the licensed premises, to the satisfaction of the Responsible Authority.
4	Tables and chairs must be placed in position on the licensed premises so as to be available for at least 75% of the patrons attending the premises at any one time, to the satisfaction of the Responsible Authority.
Amenity of area
5	The amenity of the area must not be adversely affected by the use and development as a result of the:
(a)	transport of materials, goods or commodities to or from the land; and/or
(b)	appearance of any building, works, stored goods or materials; and/or
(c)	emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, ash, dust, waste water, waste products, grit or oil; and/or
(d)	the presence of vermin;
or in any other way, to the satisfaction of the Responsible Authority.
No external audio equipment
6	No external sound amplification equipment or loudspeakers are to be used for the purpose of announcements, broadcasts, playing of music or similar purposes, to the satisfaction of the Responsible Authority.
No amplified live music
7	No amplified live music or entertainment is permitted on the premises without the prior written consent of the Responsible Authority.
Background Music 
8	The provision of entertainment on the premises must be limited to background music, to the satisfaction of the Responsible Authority.
Leave quietly sign
9	A sign must be attached to an internal wall in a prominent position adjacent to the entry/exit points to advise patrons to leave the premises in a quiet and orderly fashion.  The sign must be to the satisfaction of the Responsible Authority.
Disposal of bottles
10	No emptying of bottles into garbage bins or bags outside the building is permitted after 7.00pm on any night or before 9.00am on any day, to the satisfaction of the Responsible Authority.
Noise levels
11	Noise levels emanating from the premises must not exceed the relevant levels prescribed by the ‘Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues - Publication 1826.4’, or any successive relevant legislation, to the satisfaction of the Responsible Authority.
Noise and Amenity Action Plan
12	Before the use for the sale and consumption of liquor starts, a Noise and Amenity Action Plan (NAAP) must be submitted to and approved by the Responsible Authority.  At a minimum the NAAP must address the following regarding the sale and consumption of liquor (General Licence) associated with an existing food and drink premises:
(a)	the hours of operation for all parts of the premises to reflect those permitted by this permit;
(b)	details of the management of the sale of packaged liquor for consumption off the premises;
(c)	identification of noise sensitive areas, including residential areas and accommodation in close proximity to the licensed premises;
(d)	details of staffing arrangements, including numbers of staff, working hours, and responsibilities regarding ensuring compliance with this permit and implementation of the NAAP;
(e)	the methods and procedures for recording and responding to complaints, including standard procedures to be undertaken by staff in the event of complaints by a member of the public, the Victorian Police, an authorised officer of the Responsible Authority, or an officer of the liquor licensing authority;
(f)	details of any measures to work with neighbours or other residents in the immediate area to address complaints and general operation issues;
(g)	details of methods for moving patrons from the outdoor dining area to inside the premises by the time the hours of operation for the outdoor dining area as permitted by this permit concludes;
(h)	details of measures to ensure that patrons leave the licensed premises in an orderly manner with due regard to any noise sensitive areas identified in the NAAP;
(i)	details of the ‘Leave quietly sign’ required under condition 9 of this permit, including the dimensions and content of the sign;
(j)	the location of and how patrons will access the communal bathrooms in a manner that does not detract from the amenity of noise sensitive areas identified in the NAAP;
(k)	details of waste management, including storage and hours for disposal and collection of bottles;
(l)	location of external lighting on the licensed premises, security lighting outside the licensed premises, and any overspill of lighting;
(m)	any other measures to be undertaken to ensure minimal amenity impacts on any noise sensitive areas and accommodation identified in the NAAP; and
(n)	any other matters addressed in the conditions of this permit.
Once endorsed, the NAAP will form part of this permit and must be implemented to the satisfaction of the Responsible Authority.
Testing of noise emissions
13	At the request of the Responsible Authority, the owner or occupier must, within 30 days, supply an assessment by a qualified acoustic consultant of noise levels emitted from the site with readings taken at times and locations specified by the Responsible Authority.  
The cost of the assessment is to be borne by the owner or occupier.  If necessary, additional noise control features must be installed in consultation with an acoustic engineer, or activities and noise sources on the premises regulated at the direction of and to the satisfaction of the Responsible Authority.
The frequency of this request will be at the discretion of the Responsible Authority.
Number of patrons restricted 
14	No more than 28 patrons are permitted on the premises, including the outdoor dining area, at any time without the prior written consent of the Responsible Authority, as follows:
(a)	The maximum number of patrons permitted indoors on the premises at any one time is 20, except with the prior written consent of the Responsible Authority.
(b)	The maximum number of patrons permitted in the outdoor dining area at any one time is eight (8), except with the prior written consent of the Responsible Authority for individual events/dates.
Hours of operation – indoors on the premises
15	The use allowed under this permit for the sale and consumption of liquor indoors on the premises must operate only during the following hours, except with the prior written consent of the Responsible Authority:
(a)	Sunday - Thursday: 12pm (noon) to 8pm. 
(b)	Friday - Saturday: 12pm (noon) to 10 pm. 
Hours of operation – outdoor dining area and sale of packaged liquor
16	The use allowed under this permit for the sale and consumption of liquor in the outdoor dining area and for the sale of packaged liquor for consumption of the premises must operate only during the following hours, except with the prior written consent of the Responsible Authority for individual events/dates:
(a)	Sunday - Thursday: 12pm (noon) to 8pm.
(b)	Friday - Saturday: 12pm (noon) to 9pm. 
Expiry of permit for use
17	This permit as it relates to use will expire if the use does not commence within two (2) years after the issue date of this permit.
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the period referred to in this condition.

– End of conditions –