VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1440/2023
Permit Application no. MPS/2022/934 	

CATCHWORDS	
Section 82 of the Planning and Environment Act 1987 (Vic); Merri-bek Planning Scheme; Industrial 3 Zone; Multi-level mixed-use development; Food and drink premises; Restaurants; Parking; Patron behaviour; Noise; Overlooking; Overshadowing; Privacy.	

ApplicantS	Damian Kyloh & Rhonda Gocher	

Responsible Authority	Merri-bek City Council	
Respondent	Weston 1-5 Pty Ltd ATFC Weston Unit Trust	

SUBJECT LAND	1-5 Weston Street
BRUNSWICK VIC 3056	

HEARING TYPE	Hearing	

DATE OF HEARING	18 April 2024	

DATE OF ORDER	3 May 2024	

CITATION	Kyloh v Merri-bek CC [2024] VCAT 398	
Order
Permit granted
1	In application P1440/2023 the decision of the responsible authority is varied. 
2	In planning permit application MPS/2022/934 a permit is granted and directed to be issued for the land at 1-5 Weston Street, Brunswick, in accordance with the endorsed plans and the conditions set out in the Notice of Decision to Grant a Planning Permit dated 23 October 2023, with the following modifications:
•	In Condition 1, add the following part:
j)	Details of security or other external lighting including adjacent to the laneway abutting the western site boundary, which must be directed and baffled to minimise impacts on the amenity of nearby dwellings.
•	In Condition 7, add the following sentence:
After 9.00pm on any night, public access to and egress from Tenancies 8 and 9 via the doors to the laneway are not permitted and bi-fold windows in the same tenancies must be fully closed.
•	In Condition 14, add the following:
The Venue and Patron Management Plan must contain (but is not limited to) the following matters:
•	Details of how the venue will manage patrons entering and leaving the venue. 
•	Locations of signage to remind patrons to exit the site in a quiet and orderly manner. 
•	Security arrangements such as the number of staff, where they will be located, and how long they will stay at the venue after closing time. 
•	Management of outdoor areas. 
•	Details of smoking areas, whether provided on-site or off-site, and where the designated area will be. 
•	Details of measures to limit any impacts of pedestrian use of the laneway to the west of the land.
•	For Tenancies 8 and 9, public access via the doors to the laneway, and the use of bi-fold windows, limited in accordance with condition 7 in this permit.

Margaret Baird
Senior Member			

Appearances
For applicants	Damian Kyloh & Rhonda Gocher	
For responsible authority	Ariadne Hasiotis, senior urban planner	
For respondent	Nathan Li, town planner, PlaceX	

Information
Description of proposal	Construction of a multi-storey building (six floors when including mezzanine storage and basement services).  The ground level would comprise 10 food and drink tenancies.  Upper floors would contain three restaurant tenancies and co-working office floor space.  The top (roof) floor would contain a food and drink premise (intended as a bar) with a maximum patron cap of 262 patrons.  Ground level car parking (20 car spaces) would be provided via Edward Street.  Bicycle parking is proposed.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 (Vic) – to review the decision to grant a permit.	
Planning scheme	Merri-bek Planning Scheme (‘scheme’).	
Zone and overlays	Industrial 3 Zone (‘IN3Z’).  
Development Contributions Plan Overlay.	
Permit requirements	Clause 33.03-1 to use the land for offices and retail premises (food and drink, restaurant and bar).
Clause 33.03-4 to construct a building and carry out works.
Clause 52.06-3 to reduce the car parking requirement for office, food and drink premises, restaurant and bar.  	
Key scheme policies and provisions	Clauses 02.03-6, 15.01-1L, 15.01-2L, 17.01-1L, 17.01-1L-02, 18.02-2L, 18.02-4L, 33, 52.06,  52.34, 65, 71, 72, 73 and 74.	
Land description	The subject land has frontages to Weston Street and Edward Street.  It is 1,887m2 in area, in an ‘L’ shape.  The narrower frontage, to Edward Street, provides vehicle access and parking.  There appears to be a mix of office and factory use currently or previously associated with the land.  The existing buildings are two storeys.	
Tribunal inspection	Prior to the hearing (unaccompanied) as parties were advised at the start of the hearing.   	

  Reasons
Introduction
1	Several residents of Edward Street, Brunswick, oppose a planning permit being issued for a mix-used project at Nos. 1-5 Weston Street (‘the subject land’).  Damian Kyloh & Rhonda Gocher (‘applicants’) have applied to the Tribunal seeking review of a decision made by the Merri-bek City Council (‘Council’) to issue a Notice of Decision to Grant a Planning Permit for the proposal (‘Notice’).  
2	Figure 1 shows a row of townhouses in Edward Street relative to the subject land.  The row of townhouses includes the applicants’ properties.  

Figure 1 – Subject land (red outline).  I have added a star.  I have outlined the Edward Street townhouses in yellow.  Image source: Urban Context report, June 2023, page 9.

3	Additional dwellings are in this locale. They include residences further to the south of Edward Street townhouses, to the west of the subject land (Sydney Road shop-top dwellings) and multi-storey apartments in Dods Street to the north of the Edward Street public car park.
4	The applicants submit the permit application should be refused because, among a range of issues, the land uses do not accord with the purpose of the IN3Z and scheme policy.  
5	Particular concerns are the impacts of anti-social behaviour and noise, as well as a loss in privacy, overlooking.  The applicants submit there will be significant detriment to the amenity of nearby residents and the broader community.  A reduction in parking is not supportable on the information relied on and is not appropriate.  They have also criticised the permit application process.  
6	The Council and respondent challenge these, and all, grounds relied on by the applicants.  In short, they submit the proposal is an appropriate planning outcome when balancing the various competing planning scheme objectives and strategies.  The proposal has policy support with respect to the proposed land uses.  Measures have been adopted to minimise the potential for adverse amenity impacts on residential uses, including through permit conditions in the Notice.  A reduction in car parking aligns with a previous permit for the subject land and is supported by the policy directions in the scheme.
Procedural matters
7	First, an email filed before the hearing by Mr Kyloh and a section of Mr Li’s written submission contained references to discussions or material that were cited in the context of a compulsory conference.  I raised this with the parties at the start of the hearing, given the confidentiality of a compulsory conference.  The parties all agreed to those matters being referred to and ventilated at the hearing.
8	Second, by the applicants have complained about the advertising of the permit application, as well as the Council’s processing of the permit application and decision-making.  They submit many people who are directly affected by the proposal (such as people living in dwellings in Edward Street and apartments in Dods Street) were not given notice of the permit application.  The applicants say they have a petition with nearly 200 signatures of people who would have objected if they had known about the permit application.  The applicants submit these people have been denied the opportunity to participate.  Further, the decision on the permit application was not made by the full Council and that has also raised their concerns about process.  
9	Ms Hasiotis explained the notice directed through the Council’s processing of the permit application.  She submits it complied with the obligations of the Planning and Environment Act 1987 (Vic).
10	At the hearing, I responded to these concerns and related submissions made by the applicants.  I explained my role and the limits of my scope.  Among my remarks were:
•	There is no evidence or specific submissions that the extent of direct notice that occurred did not satisfy the relevant sections of the Planning and Environment Act 1987 (Vic).
•	There is no evidence that signs required to be placed on the land to alert the public of the permit application were not erected.  
•	The Council’s decision-making delegations to its officers are a matter for it, not for me to pursue or review in this proceeding.  
•	There is no evidence that the extent of opposition to the permit application cited by the applicants would have a significant social or other effect in the terms contained by the Planning and Environment Act 1987 (Vic).  The number of objectors is not, by itself, determinative nor establishes a social effect.
•	The Tribunal’s task is to assess the permit application afresh.  A decision is based on the matters that the scheme and the Planning and Environment Act 1987 (Vic) require me to consider, assess and determine.
DECISION MAKING CONTEXT
11	I must decide whether the proposal represents an acceptable outcome having regard to the relevant provisions and policies contained in the scheme.  I am not tasked to find if there are alternative or better solutions, nor is an ideal outcome required.
12	Clause 71.02-3 explains the task of ‘Integrated decision making’.  This clause includes that the Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision making.  
13	Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.  
STRATEGIC CONTEXT
Policy
14	The subject land is part of a Core Industry and Employment Area, and an Employment Area.  These roles are defined by clause 02.03-6 (Economic Development) and clause 02.04 (Strategic Framework Plans).  Clauses 17.01-1L-01 and 17.01-1L-02 contain and set the objectives and policies for these areas. 
15	The objective in clause 17.01-01 for the Core Industry and Employment Areas is:
To support the continued operation of existing industry and encourage new industry and complementary employment uses to locate within Core Industry and Employment Areas.
16	Strategies include: 
Support the transition to a broader range of employment generating uses in Core Industry and Employment Areas, including a mix of industry and office-based uses and other compatible employment uses, as permitted within the relevant zone. 
Discourage large scale retail (e.g. supermarkets greater than 1800 square metres) uses, other than restricted retail uses from locating in Core Industry and Employment Areas. 
17	The objective in clause 17.01-02 for the Employment Areas is:
To support the continued operation of existing industry and encourage new industry and complementary employment uses to locate within Core Industry and Employment Areas.
18	Strategies include: 
Facilitate the transition of Employment Areas to accommodate a broader range of employment generating uses, including a mix of industry and office-based uses and other compatible employment uses. 
Prioritise employment uses over residential uses either by: 
•	Ensuring the amount of employment floor space in a mixed-use development is at least equivalent to the amount of all proposed ground and first floor building areas (inclusive of car parking, other services and circulation space).
•	Allocating a proportion of the site to employment uses and including the area in a zone that prohibits residential use where rezoning of a large site is proposed.
Encourage flexible floor plate layouts and increased floor to ceiling heights at ground and first floor to facilitate a variety of employment uses over time. 
Encourage building design and site layouts of industrial and commercial uses in Employment Areas to minimise the potential for adverse amenity and environmental impacts on residential uses. 
Design and layout new residential and mixed-use development to incorporate design and noise attenuation measures to protect residents from noise from nearby businesses, such as locating bedrooms away from noise sources and using acoustic measures
Support the mixed-use nature of the precinct and surrounding areas while giving priority to employment uses. 
19	Properties to the west of the subject land, including the Edward Street townhouses, are part of the designated Brunswick Major Activity Centre.  
20	Clause 02.03-1 addresses activity centres.  That clause states the role and function of the Brunswick Major Activity Centre is to:
Provide a broad mix of retail uses, commercial and cultural activity, employment options, administrative and civic centre functions, government investment and regional facilities. 
Accommodate substantial residential/mixed-use growth and change to create a new character of increased density and scale of built form. 
Zoning
21	The schedule to clause 74.01 (Application of zones, overlays and provisions) states that the Industrial 1 and 3 Zones are applied to the majority of land in the Core Industry and Employment Areas to support industry and complimentary businesses and prohibit residential uses.
22	The subject land is located in the IN3Z, shown in Figure 2.  The land’s zoning reflects the strategic role identified above.  

Figure 2 – Subject land (outlined).  Image source: Planning Property Report.

23	The purpose of the IN3Z is:
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To provide for industries and associated uses in specific areas where special consideration of the nature and impacts of industrial uses is required or to avoid inter-industry conflict.
To provide a buffer between the Industrial 1 Zone or Industrial 2 Zone and local communities, which allows for industries and associated uses compatible with the nearby community.
To allow limited retail opportunities including convenience shops, small scale supermarkets and associated shops in appropriate locations.
To ensure that uses do not affect the safety and amenity of adjacent, more sensitive land uses.
24	Clause 33.03 decision guidelines require that before deciding on an application, in addition to the decision guidelines in clause 65, the responsible authority (and Tribunal on review) must consider, as appropriate:
•	The Municipal Planning Strategy and the Planning Policy Framework.
•	Any natural or cultural values on or near the land.
•	Streetscape character.
•	Built form.
•	Landscape treatment.
•	Interface with non-industrial areas.
•	Parking and site access.
•	Loading and service areas.
•	Outdoor storage.
•	Lighting.
•	Stormwater discharge.
•	The effect on nearby industries.
•	The effect of nearby industries.
25	The applicants’ dwellings are in the Commercial 1 Zone (‘C1Z’) as they are part of the Brunswick Major Activity Centre.  The schedule to clause 74.01 states the Commercial 1 and 2 Zones, Mixed Use Zone and Design and Development Overlay are applied to the Brunswick Activity Centre to ensure appropriate built form, public realm and improved amenity outcomes.  The suite of policies applying to the Brunswick Activity Centre also differs to that applying to the subject land.
26	The interface condition and proximity of dwellings to the subject land are relevant and must be considered in assessing the permit application.  Compliance with State policies, including the most recent Environment Protection Agency noise protocols (Publication 1826), is part of this assessment and consideration.   
27	The applicants have relied on two Tribunal decisions in emphasising the relevance and weight to residential amenity in this case.  I observe, as they have, that these cases were decided in circumstances that are not the same as applies in the current proceeding.  Notwithstanding, I agree that part of the purpose of clause 33.03 is to ensure that uses do not affect the safety and amenity of adjacent, more sensitive land uses.  Strategies for Employment Areas, to which I have referred above, also seek to minimise the potential for adverse amenity and environmental impacts on residential uses.  Land use compatibility is a relevant matter, with parts of clause 13.07 relevant as well.  However, contextually, the interface of this part of the IN3Z is with land in a C1Z that is a designated major activity centre and has an intended role and function – a broad mix of activity and uses, intensification and growth. 
Permit history
28	As set out in the Council’s submission:
•	MPS/2018/518 proposed the use and development of the subject land for a cinema, retail premises and reduction in car parking requirements to zero.  This application was supported by Council, however, Council’s decision was set aside by the Tribunal on 12 August 2019 via a consent order between all affected parties.
•	Planning Permit MPS/2020/67 was issued on 16 March 2021 which allowed for buildings and works to the existing building, including the addition of a roof top area and the use of the land for offices, restaurant, display of signage and a reduction to the standard car parking requirement, in accordance with the endorsed plans.  This permit expired as of 16 March 2023.  Permit MPS/2020/67 included a condition limiting the maximum number of patrons for the restaurant use to 262.
29	It is relevant that approval for a mixed-use project was granted in a planning context that was said by the Council to be similar as today.  That is not determinative to the current case, noting among other things that former permit sought changes to the existing building, not a new building of the form now being proposed.  I am not bound to approve the current permit application because elements of it are similar or the same as the previously approved mixed-use proposal.  I am required to assess the permit application before me, afresh, and whether it achieves an acceptable outcome in the current physical and planning contexts.  
proposed Use of the land
30	The applicants raise three key matters relating to the proposed use of the land:
•	The large scale of the retail uses, which they say does not comply with clause 33.03 which refers to ‘limited retail opportunities’.  Allowing such a large scale of uses such as bars and restaurants undermines the key objectives of the zone and strategy.
•	14 new food outlets and another bar are not in the best interests of the community. The diversity and ‘charm’ of the suburb will be further eroded by such a low end development.
•	The permit application material makes clear that a bar is proposed, but there is no application for a liquor license.  Restaurants operating in the area past midnight typically have that approval.  Approval of the current application effectively pre-empts an application for a liquor licence – it leads to the expectation that a licence will follow.  It also limits the ability for the Council to have a conversation with the community about integrated decision making measures that could alleviate the applicants’ amenity concerns with the premises.  Absent this opportunity, the applicants request that, should a permit issue, a permit:
o	limits/restricts the consumption of alcohol in the outdoor bar. 
o	reduces patron numbers to reduce the potential amenity impacts.
31	The purpose of clause 33.03 does not define ‘limited’.  
32	Understood in the context of planning schemes and the land uses that can be located in an IN3Z, ‘limited’ includes restrictions on the type of retail opportunities (ie. not all retailing is allowed).  There has also been a decision to limit the size of some land uses (such as small supermarkets).  
33	Policy that I have set out earlier shows a clear direction to accommodate a broader range of employment generating uses, including a mix of industry and office-based uses and other compatible employment uses.  Direction is given with respect to the amount of employment uses in mixed-use development and employment uses are prioritised in various contexts. 
34	The proposal includes a sizeable quantum of food and drink premises (under which a ‘bar’ is nested in clause 73.03) mostly of which are small tenancies.  The restaurants and intended bar are larger.  However, the proposal also includes co-working office space.  As a mixed-use commercial development, the proposal can be regarded as accommodating employment generating land uses.  This is not an industrial area that is akin to the Truganina Business Activity Centre decision to which I was referred.  That decision explains the planning context for an area in the City of Wyndham, where the Tribunal referred to a Precinct Structure Plan (‘PSP’) as the key document that guides decision making on this land.  Among its findings, the Tribunal said:
… PSP seeks to provide for high density employment but with servicing facilities nearby, in the business area identified within the TSCPSP.
I find that the strategic context is seeking this area be developed for industrial/employment types uses. Restaurants and take-away food premises are encouraged but this encouragement is qualified to be in order to serve the in-centre population. This is a specific direction to the use of land for restaurants and take-away food premises.
This use is proposed to operate 12 noon to 9:30pm, Tuesday to Sunday. The vast majority of these hours are outside what might be considered standard business hours. The layout also includes a children’s play room.
I find that these aspects of the proposed use are likely to mean the restaurant is not proposed for use primarily by the ‘in centre’ population, either solely, or to a significant extent
The gradual introduction of uses that are not specifically envisaged by the PSP can serve to erode the strategic vision for the area. ….  , this proposal facilitates such an outcome which is contrary to the PSP and scheme policy aimed at protecting industrial land from incursion by non-industrial uses.
35	The strategic context was evidently very different to that before me.  
36	Relevantly, the respondent has also referred to the retail nature of Sydney Road and Barkly Square shopping centre, and current land uses in the IN3Z.  The eastern sides and Weston and Edward Streets are light industrial in nature, being characterised with warehouses and commercial buildings.  Other uses, such as food and drink premises, offices and fitness studios, are also present.  
37	I appreciate that the extent of proposed food and drink premises is not small, but in the context of this site, the confined area of the IN3Z in this location, and the scheme’s directions, I am not persuaded the scale of the uses is unacceptable nor that employment uses are insufficient.  I am satisfied in this specific context that the proposal is compatible, even at the scale proposed.
38	I do not find that the area’s charm and character will be eroded by the approval of the proposed food and drink premises.  The strategic directions to which I have referred are seeking vibrancy and activity, to which the proposal would positively contribute.  In this context, I do not agree with the objection that the food and drink premises offer no community benefit.  That remains my finding even though there are other food and drink premises in the area and on Sydney Road, as was highlighted in original objections made to the Council.
39	I further observe that this IN3Z area has a transitional role to a broader range of employment generating land uses including a mix of industry and office-based uses and other compatible employment uses, as permitted within the relevant zone.  Food and drink premises are currently permitted within the zone.
40	The applicants have pointed out a lack of late night licensed premises in the immediate area.  An assessment of impacts from a proposed food and drink premises, and any application for a liquor licence, is required based on the considerations set out in the scheme.  Permit application MPS/2022/934 does not include an application under clause 52.27 (licensed premises) and thus it is not appropriate for me to address that specific matter.
41	I appreciate the reasons why the applicants state the lack of a permit application under clause 52.27 is a concern to them.  However, a permit application is not obliged to be made and can be considered on its merits.  For example, a food and drink premises without alcohol may be granted different hours of operation than a premise granted a liquor licence under clause 52.27.  The decision guidelines in clause 52.27 have many matters to consider which are not before me in this proceeding.
42	Absent any application and assessment under clause 52.27, it is not open to me (if a permit is granted) to restrict the consumption of alcohol in the outdoor bar.  If any application is made, it would need to be assessed and determined.  
43	Patron numbers are relevant in the current application, a matter that links with the size of the premises.  The roof top facility has been the focus of the applicants’ submissions, noting the Notice only seeks to limit patron numbers for this area and no other parts of the building.  The Notice also seeks to limit hours of operation for all food and drink premises.  I address these matters later in these reasons.
44	For completeness, I note Ms Gocher’s letter of objection to the Council was critical of the lack of housing in the proposed development.  The zoning of the land, as IN3Z, prohibits accommodation, other than a caretaker’s house.  New dwellings are not permitted in this location under the provisions of clause 33.03.
OVERALL BUILT FORM
45	While described as six storeys, the building contains four main levels including the roof top.  
46	The applicants have referred to impacts on solar access and daylight, which I address below.  Otherwise, the built form and design outcomes were not part of the applicants’ grounds of review or original objections to the Council.  The ability to see the building from dwellings in Edward Street has been cited as an issue at the hearing, primarily linked with overlooking and privacy impacts.  
47	The development is focused to the rear portion of the subject land, as appreciated in the Design Response Plan, partly reproduced in Figure 3.

Figure 3 – Extract from Design Response Plan P007. I have marked Edward Street dwellings.

48	The images, in Figure 4 below, also extracted from the ‘decision’ plans, are several impressions of the development included in those plans.
  
Figure 4 – Development 3D renders, Plan P025.  View from Weston St (left) and Edward St (right).

49	There is no Design and Development Overlay nor policy that provides specific controls or policy guidance with respect to the preferred scale of development in this location.  
50	There are a mix of building types and forms in the area at primarily one and two storeys.  This can be expected to evolve over time, as has occurred in other locations (noting higher apartment forms such as in Dods Street toward the Sydney Road corridor).  I am satisfied that the proposal represents an acceptable response with respect to all its streetscape relationships. 
51	As relevant to applicable policy, I accept the Council’s submission that the design response incorporates higher floor to ceiling heights that allows for the flexible reuse of the building across the ground, first and second storeys, facilitating a variety of employment uses over time. 
52	The scheme seeks to ensure design of facilities such as that proposed are sensitive to, and cognisant of, land uses such as dwellings.  This includes the way in which premises are laid out and the inclusion of noise attenuation.  
53	I find the respondent’s submission relevant in this regard, including details how the north-west portion of the building, which is the most visible interface with the nearby residential sites in the C1Z, has been specifically designed to address the sensitivities.  The submission recites the following:
•	The north-western corner of the proposed building is the most visible interface to the nearby residential sites. This building corner has been specifically designed to address this sensitive interface: 
•	Rounded corner to achieve a softened built form with visual interest. 
•	Restaurant level with external planter boxes, to be planted with Chinese Star Jasmine which could reach a mature height of 0.5 metre and a spread of 2 metres. 
•	The office and roof top levels are further recessed from the levels below. 
•	Office level with spandrel glass in zig-zag form with climber landscaping. The spandrel glass has been specifically designed to filter northern sunlight to the office to regulate heat gain. 
•	Roof top level with a balustrade of 2.5 metres high with landscaping, including 10 Dwarf White Crepe Myrtles which can reach a mature height of 3.5 metres and spread of 3.5 metres. 
•	Kitchen exhausts will be located on the roof, with no emission to the streets or laneway. 
54	Further details of the landscape treatment, including in the modified open car park fronting Edward Street, are documented in the plans. 
55	Having regard to the decision guidelines in clause 33.03, the purpose of that clause, and relevant policies and strategies, I find the proposed built form and design outcome is acceptable. 
AMENITY 
56	The applicants have multiple objections with respect to the impact of the proposal on their amenity and the amenity of the wider community.   These are:
•	Overlooking and loss of privacy;
•	Impacts on solar access and daylight;
•	Noise;
•	Use of the laneway including:
o	rubbish;
o	property damage;
o	anti-social behaviour including noise; and
•	Anti-social patron behaviour and disturbance in the area more generally.
57	These are all relevant considerations having regard to the scheme’s provisions and policies, to which I have referred earlier.  Matters to which the applicants refer influence this – such as access and likely use of the laneway by future patrons, the extent to which music is proposed, and hours of operation.
58	The scheme’s aims are to plan for, and manage, amenity and safety.  This is, as I have said, within a context where this area and the adjacent area is earmarked for greater intensity and development.  
59	For reasons I set out below, I do not agree with objections that the proposal has failed to consider, and respect, dwellings to the west of the lane including those in Edward Street, or the wider area.
Overlooking and privacy
60	The applicants oppose the proposal because of the extent to which they say they will be overlooked and their privacy affected.  Among the submissions are:
We maintain that we will be able to see the building from our bedroom and bathroom windows at the rear of our buildings, and if we can see it, people inside it can see us. We agree that the private open space will not be visible from the development.
61	Screening to a height of 3 metres above finished floor level was requested for all windows that face toward their Edwards Street dwellings, if a permit is granted.
62	Submissions by the Council and respondent address overlooking in detail.  I do not recite these.  There is no specific standard in this case to be applied.  If the overlooking provisions of clauses 54 or 55 (‘Rescode’) are applied (being Standards A15  and B22), the proposal would exceed compliance with the numerical measure.  These standards are based on a dimension of nine metres.  
63	It is true that inter-viewing does not stop at nine metres.  But it is the standard applied by the scheme for residential areas and has been used as a guide by the Council and respondent in the current case.  
64	There are no specific reasons to lead me to conclude that additional screening, other changes to the proposed building, or refusal of a permit are warranted.  Relevantly:
•	The habitable room windows and secluded private open space areas associated with the applicants’ properties are well over 20 metres away from the closest point of the development.  
•	A line of sight to many of the western windows and private open spaces for Edward Street terraces would be intercepted by other development, such as the two storey dwellings to the south of the Edward Street terrace row. 
•	The respondent has explained in detail how the design adopts edge treatments to limit overlooking (refer also to Figure 5):
o	spandrel glass and solid panels for mezzanine, restaurant and office windows;
o	an awning around the building at office levels that obstructs downward views;
o	planter boxes along the edge of the roof deck with small trees.

Figure 5 – Extract from Design Response Plan P007.

65	The Council and respondent refer to one property, at No. 9/160 Sydney Road, that has habitable room windows or secluded private open space within nine metres of new windows on the subject land.  The proposed north-west facing windows serve the mezzanine level (storage) and first floor (restaurant).  They are new non-habitable room windows.  The outcome or potential impact is not, therefore, unacceptable at this interface. 
66	I find the proposal will not result in an unacceptable loss of privacy or overlooking to the applicants’ properties or other properties.  Additional permit conditions are therefore not required to modify the development to address the applicants’ grounds.
Overshadowing and solar access
67	Overshadowing has been cited as an unacceptable outcome for the applicants’ properties.  
68	Edward Street dwellings are to the north-west of the subject land and will not be subject to unreasonable overshadowing for this reason.  
69	The Council’s submission addresses shadowing based on the hourly shadow diagrams included in the decision plans.  These are drawn between 9am and 3pm at the September equinox.  I accept that shadows are different at other times of day and times of the year.  The diagrams use the standard applied in the case of a permit application assessed under clauses 54 and 55 (being Standards A14 and B21 relating to overshadowing of existing secluded private open space) as a guide.
70	The Council states, and I agree, the diagrams show that there are no shadow impacts cast by the proposed development to the townhouses fronting Edward Street, which are located north-west of the subject site. While shadows are cast by the proposal to the properties on the western side of the lane (Nos. 140 to 154 Sydney Road) between the hours of 9am and 11am, these shadows are cast onto the rear parts of the lots containing car parking areas and built form and not the private open space of the ‘shop-top’ dwellings above the commercial spaces in this strip. I agree with the Council and respondent that this is not an unreasonable outcome or effect. 
Loss of daylight
71	The development may result in some change to daylight conditions at certain times but, at the distances involved there is no prospect that the Edward Street dwellings would not retain reasonable access to daylight as a consequence of the proposed development.  The development is well to the south-east of the applicants’ dwellings.
Noise from the proposed premises
72	The applicants are particularly concerned about noise emissions from the proposed development.  They maintain that the noise emanating from the roof top bar will be excessive and disruptive, not only for the houses on Edward Street but on Dods Street and in other locations as well. 
73	The Council and respondent have referred to the acoustic assessment provided with the permit application.  It was one of the advertised documents. I do not recite all of the material within that document.  The assessment is focused on the nearest dwellings, including Nos. 4-10 Edward Street.
74	The assessment, which the Council and respondent both rely on, considered the following potential noise impacts of the proposal to the nearby sensitive residential uses: 
•	Patron noise. 
•	Music noise.
•	Mechanical plant noise.
•	Deliveries and waste collection.
75	As the respondent’s submission sets out, the acoustic assessment concludes that the proposal would be acceptable, subject to the inclusion of a noise barrier of a minimum height of 2.5 metres around the proposed roof top area.  The additional specifications of the noise barrier are: 
The noise barrier should be of solid construction with no gaps been panels or between the base of the noise barrier and the floor below. Acoustically acceptable materials include: - Minimum 10 mm thick solid Perspex or polycarbonate; 
•	1.6 mm thick steel; 
•	9 mm thick fibre cement sheet; 
•	Or any other suitable material with a minimum mass of 12 kg/m2. 
76	Additional acoustic recommendations to be implemented as cited by the respondent are: 
•	Maximum of three speakers installed in the outdoor roof top area. 
•	Live music is not played in the outdoor area. 
•	No music with high bass content plated during EPA Noise Protocol Part II ‘Night’ period. 
•	Music volume should be monitored by staff to ensure that the music levels measured at the centre of the roof top bar area do not exceed 74 dB(A). 
77	The respondent and Council refer to conditions in the Notice addressing noise management including: 
•	Condition 9: The acoustic report to be endorsed to form part of the permit. 
•	Condition 10: All recommendations in the report to be implemented prior to the commencement of the use. 
•	Condition 11: A post-commencement acoustic report to be submitted to the Council within three months of the commencement of the use, for confirmation of implementation of the recommendations, with further noise testing to ensure compliance with the relevant regulations. 
•	Condition 12: All recommendations in the post-commencement acoustic report to be implemented – prior to which any non-compliant activities are not permitted to operate. 
•	Condition 13: Ongoing requirement of noise levels to comply with the Environment Protection Regulations under the Environment Protection Act 2017 (Vic) and the most recent noise standards. 
78	All of the conditions in the Notice are accepted by the respondent.
79	I am persuaded the permit application has considered noise emissions and has sought to appropriately manage potential noise impacts for existing residents.  Noise can be contained in accordance with State policies.  This does not mean that noise will never be heard nor that the uses on the land would be inaudible from existing dwellings.  Rather, the standards applied across Victoria are able to be satisfied.
80	The applicants referred to noise being experienced by residents of Dods Street who will also be exposed to noise from the proposal development.  I appreciate that those apartments are exposed to the south, as they face an open car park.  They are multi-level and therefore many apartments are elevated.  However, they would be over 100 metres from the part of the development with the proposed food and drink premises.  Even though noise can travel, compliance at the closest dwellings indicates compliance is likely at distances of over 100 metres.  There is the opportunity through the post-commencement acoustic report to ensure and verify that this is the case.
81	The applicants are sceptical about the ability to enforce the permit conditions.  For example, they ask how will it be known that the speakers are positioned as required by the acoustic report?  Ultimately, it is necessary for all permit conditions to be complied with or enforcement action can be pursued by the Council or others.  Actions can also be taken under other State legislation.  Based on the information before me, and accepted by the Council, the most recent Environment Protection Agency noise protocols (Publication 1826) can be achieved and there is no contrary assessment.
Use of the laneway
82	I accept the applicants’ submission that the laneway to the west of the subject land and abutting several dwellings will be used to access the proposed development and leave the site.  The layout has the main entry and exit from Weston Street while two tenancies (8 and 9) have doors and bi-fold windows along the lane.
83	I understand concerns by residents about noise, rubbish, property damage, vandalism and anti-social behaviour including noise.  The lane is a public space, not part of the subject land, and some or all of these activities may already occur, absent the proposed development.  
84	The proposed development offers some additional activity along the lane which can assist to discourage some of these behaviours.  Windows overlooking the lane and some pedestrian access at ground level are examples.  
85	Hours of operation and the Venue and Patron Management Plan are further management tools, which are enforceable.  
86	The roof top food and drink premise is proposed with the following operational hours based on the Notice: 
•	Monday to Friday: 11am to 11pm. 
•	Saturday: 10am to 2am. 
•	Sunday: 10am to 9pm.
87	Other food and drink premises are proposed with the following operational hours based on the Notice: 
•	Monday to Sunday: 11am to 11pm.
88	While the hours for the roof top premise may be longer than currently occurs by businesses in the area as stated by the applicants, I have not been persuaded that the proposed hours are unacceptable in the physical and planning contexts that apply to the subject land and nearby dwellings.
89	Based on some discussions at the hearing, the respondent agreed to some (baffled) lighting associated with the lane and possible closure of the doors and bi-fold windows for the two tenancies.  The latter has the potential to assist to focus people movement and noise emissions away from the Edward Steet properties into the evening and night.   I have considered submissions about the possible closure of doors and bi-fold windows for the two tenancies fronting the lane.  I find 9pm is reasonable mindful that there are a range of other uses in the area that generate activity and people movement.
90	If an application for a liquor licence is made, patron behaviour would be expected to be the subject of further assessment and consideration.
Patron behaviour and disturbance
91	The applicants submit the proposal will adversely impact residential amenity.  In addition to noise, they submit patrons are likely to linger before and after operating hours and smoke, eat and drink outside the venue, including in the car park on Edward Street. This will increase the presence of rubbish such as discarded cans, bottles and cigarette butts in the neighbourhood.
92	The proposal comprises mostly small tenancies, three restaurants and the largest single premise being the roof top.  The subject land is not in or directly proximate to any residential zone such as a Neighbourhood Residential Zone or General Residential Zone.  It is in an area where this type of activity is present, notably along Sydney Road, and in an area with excellent transport access.  There is no current application for a liquor licence.  Based on the permit application before me, the proposal would not result in unreasonable impacts on the amenity of nearby residential areas or residents in the commercial zones.
93	The size of the roof top space would readily accommodate the maximum of 262 patrons, without people needing to spill into other spaces.
CAR PARKING
94	The applicants oppose the reduction in parking sought under clause 52.06.  The plans provide for 20 on-site car spaces, in a location already used for parking.  The proposal includes 20 bicycle spaces in the car park which are additional to 50 staff bicycle spaces in the basement.  One accessible space and an electrical charging station are also provided in the design.
95	A reduction of 72 spaces is required, as set out in the following extract from the Council’s submission.

96	The permit application exceeds the minimum bicycle requirement at clause 52.34.
97	An application to reduce the car parking requirements of clause 52.06 must be assessed under the decision guidelines in clause 52.06-7.  A report was provided with the permit application making this assessment, and was part of the advertised material.
98	The applicants refer to a Council approval allowing a waiver of 67 car parking spaces for staff and patrons at businesses in the building.  They say the permit applicant has used traffic data which is years old, as well as relying on what they refer to as a current planning permit but which is actually out of date, having been granted more than two years ago.  They also challenge the car ownership rates in that report, as their research shows the rates are increasing in Brunswick, not falling.
99	The applicants submit the parking situation for local residents is already difficult as they often find themselves having to drive much further down Edward Street to find a park for more than two hours - resident permits do not enable them to park freely in the car park across the road.  There are residents with young children and babies, and elderly residents as well.  Given the parking shortage on the street, the applicants ask where does the Council believe the cars will go? 
100	The respondent accepts the traffic surveys in the report submitted with the permit application were old, pre-dating COVID restrictions.  They were used to support the previous permit and the reduction sought in that permit application.  New data in 2021-2022 would still have been affected by these impacts.  
101	When considering the decision guidelines, the Council and respondent agree that the subject has excellent public transport access and that many patrons would be expected to make use of those services, in addition to walking to the proposed premises.  Some may cycle with on-site bicycle parking proposed.  The demand for parking is not expected to match the standard rate set out in clause 52.06.  In addition, there are several large public car parks in the immediate area, such as the Council car park in Edward Street and Barkly Square.  Importantly, there is very strong policy support for sustainable transport (clause 18.02-4L).  The land forms part of the Principal Public Transport Network Area.
102	I have not been persuaded that the concerns raised by the applicants warrant refusal of permission for a reduction in parking or the proposal overall.  In the circumstances of this location, having regard to the decision guidelines in clause 52.06, and the strong policy directions of the scheme relating to sustainable transport, I find the proposed reduction in parking is acceptable.
NET COMMUNITY BENEFIT
103	The proposal will bring change to this location.  Having considered the grounds and concerns identified and explained by the applicants, I have found the proposal is acceptable when assessed under the relevant provisions and policies in the scheme.  A net community benefit would be achieved, with potential impacts able to be managed through the permit conditions in the Notice.
104	As indicated earlier in these reasons, I have accepted several suggestions raised at the hearing, and not opposed by the respondent, to specify the elements in a Venue and Patron Management Plan and to respond to concerns about the laneway interface.  I have not adopted the additional permit conditions requested by applicants for the reasons given.
Conclusion
105	For the reasons set out above, the decision of the responsible authority is varied.  A permit is granted subject to modified conditions, as set out in my order.

Margaret Baird
Senior Member