VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P1258/2019
Permit Application no. P01/0578	
CATCHWORDS	
Mornington Peninsula Planning Scheme; section 80 of the Planning and Environment Act 1987; existing planning permit for liquor licence; proposed changes to permit including extension of hours to serve liquor outdoors; Tribunal hearing and inspection.     	

APPLICANT	Counting House Mornington Pty Ltd	
responsible authority	Mornington Peninsula Shire Council	
SUBJECT LAND	787 Esplanade
MORNINGTON VIC 3931	
WHERE HELD	Melbourne	
BEFORE	Philip Martin, Senior Member 	
HEARING TYPE	Hearing	
DATE OF HEARING	8 & 28 January 2020	
DATE OF ORDER	17 March 2020	
CITATION	Counting House Mornington Pty Ltd v Mornington Peninsula SC [2020] VCAT 152	

Order

1	The decision of the responsible authority is varied.
2	The Tribunal directs that Permit No. P01/0578 must contain the conditions set out in that permit, but with the following modifications:
(a)	With condition 3, wherever the text ‘10.00pm’ appears in that part of the text underneath which is relevant to the heading ‘External to the premises (including outdoor seating area)’, delete same and substitute ‘10.30pm’ in each case.
(b)	With condition 4, delete ‘10.00pm’ and substitute ‘10.30pm’.
(c)	Condition 11 is by consent varied to read as follows:
Live music may only be played within the main building and must not exceed 45dB(A) as described in Section 29A of SEPP N-2 from the habitable rooms, with windows closed, of any nearby dwellings. Amplified music (including loudspeaker, amplifier, relay or other audio equipment) from the front and side decks must not exceed background levels. No live music, loudspeaker, amplifier, relay or other audio equipment can be installed, used or played within the footpath adjacent to the land.

Philip Martin
Senior Member 			

Appearances
For applicant	Mr Michael Dietrich (consultant planner)	
For responsible authority	Mr John Rantino (solicitor).  He called sworn lay evidence from Sargant Jeremy Michael of the Victorian Police.	

Information
Description of proposal	Proposed amendments to certain permit conditions.	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the permit.	
Planning scheme	Mornington Peninsula Planning Scheme.	
Land description	The subject land is improved by a café/restaurant known as the ‘Counting House’.	
Tribunal inspection	The Tribunal inspected the site and surrounds after the hearing.   	

Reasons
What does this proceeding involve?
1	This proceeding involves the existing premises known as the ‘Counting House’, located at 787 The Esplanade in Mornington. That is, the site is just around the corner of the bottom end of the main shopping strip in Mornington and is zoned Commercial 1. This is a period building which at least more recently has been utilised (in planning terms) for a ‘Food and drink premises.’ The premises has for some time had the benefit of an existing liquor licence No. P01/0578 (Permit), which authorises “The use of a licensed premises (on premises liquor licence)” and is subject to various permit conditions. The premises is liquor licensed as a “Restaurant and café” – see its Liquor licence No. 32261107.  The site forms part of the Major Activity Centre for this location.
2	Alongside the subject land, on the one side is the Mornington Museum. On the other side, there has recently been constructed a multi storey apartment building with ground floor commercial uses. With the benefit of my site inspection, it appears this new building is essentially built and occupants are beginning to move in.  One lot further away again is another commercial site where a planning permit has been granted for another multi storey building, which I understand is in the process of being pre-sold.  There is an attractive public park on the opposite side of the street from the subject land and these adjacent sites, closer to the coast.  The pier and coast lies further downhill again.
3	Several amendments have been made to the Permit. Notably, I understand that where the permit holder most recently applied for a series of amendments, in fact some were granted and in recent months an updated Permit issued.  Hence there is only a much narrower range of planning dispute still on foot.
4	In terms of what proposed changes are left and still contentious, as at the beginning of the hearing, the dispute was down to the following aspects:
•	In terms of the ability for the liquor licence to operate with the café/restaurant’s external areas (outdoor seating area), it is proposed that Condition 3 be amended as follows.  The Monday to Sunday starting time to serve alcohol would be 7.00am rather than 10.00am, and the finishing time would be 12.00 midnight rather than 10.00pm. 
•	Similarly, on Anzac Day and Good Friday, it is proposed that the closing time for the serving of external liquor be 12.00 midnight rather than 10.00pm;
•	It is proposed that condition 4 be deleted. Condition 4 currently reads “Not withstanding the above, no alcohol may be consumed on the footpath area adjoining the restaurant after 10.00pm on any day.”
•	It is proposed that condition 11 be deleted. Condition 11 currently reads “Music must not be audible outside the premises”.
5	This remaining dispute has come before me at the Tribunal, with the initial hearing being a half day hearing on 8 January 2020. Over this half day, I heard the submissions of Mr Rantino for Council, plus Mr Rantino called sworn evidence from the following Police Officer – Sargant Jeremy Michael from the local police station. He provided sworn evidence about both the proposal, and about his experience with dealing with licenced premises in this Mornington activity centre. 
6	As we ran out of time to complete the whole hearing process, a fresh half day hearing was scheduled for 28 January 2020.  I invited the parties to use the intervening period to consider whether they could agree on a revised version of Condition 11.
7	At this fresh hearing, Mr Dietrich was able to make his submissions, and we had the usual final discussion.  It was agreed that for the avoidance of any uncertainty, further relevant planning permit information would be prepared and sent in to me.  I have since received this information and both parties have acknowledged it.  I have taken this further information into account in my findings below.
8	Some time after the hearing, I drove down to Mornington, passed along the length of main street (both ways) and parked near the review site.  I then spent some time walking around the review site, the above-discussed adjacent features and this bottom end of main street.  
9	I note for the record that in the course of his presentation on the final hearing day, Mr Dietrich for the applicant confirmed the following. In relation to condition 3, he confirmed that the permit holder is no longer seeking to change the Monday to Sunday liquor opening hours from 10.00am to 7.00am. Rather, he confirmed it is now only proposed to change the closing time Monday – Sunday and ANZAC Day/Good Friday from 10.00pm to 12.00 midnight. He also acknowledged that if condition 4 is made consistent with any changes made to condition 3, this makes it less important whether condition 4 stays or not.
10	Otherwise, he updated the Tribunal that parties had been in private discussions regarding an alternative condition 11, during the intervening period between the first and the second hearing. I had made a comment at the end of the first hearing encouraging this possibility. 
11	Mr Dietrich tabled the proposed alternative condition 11. After reading condition 11, I indicated that I was content with it. Accordingly, what became clear was that the balance of the discussion at the further hearing day only needed in substance to focus on whether or not condition 3 should be changed to allow the outside provision of liquor up until 12.00 midnight rather than 10.00pm, both Monday to Sunday and also on Anzac Day and Good Friday.
12	I have set out below my overall finding on the remaining ‘live dispute’ by the time the overall hearing process ending on the second hearing day.
Findings of Tribunal on proposed amendment to condition 3
13	There seems two key issues here.
14	The first is whether it is acceptable that some form of extension of the evening deadline in Condition 3 (for the external provision and consumption of alcohol) be allowed, where the current deadline is 10.00 pm.
15	If so, the second key issue is whether that extension should be until 12 midnight, or something less than that.
Should some extent of evening external alcohol consumption extension be granted?
16	For the reasons set out below, my finding is that the answer to the above question is ‘yes’.
17	It is a major plus for the proposed extension that the subject land is zoned Commercial 1 and lies within the ‘Retail Core’ section of this Mornington Major Activity Centre, as per Clause 22.18 of the Planning Scheme at page 3 of 6.  This MAC is a vibrant location.  Some degree of activity and noise well into the evening should hardly come as a surprise in this location.  Indeed I would expect that many people would regard such activity as a positive feature and a sign of the commercial health of this shopping strip.
18	My site inspection confirmed that many other businesses along main street have outside seating.  It was self-evident from the hearing that there are already various other businesses operating along main street that have liquor licensing/planning permission to be able to serve alcohol outside after 10.00 pm.  
19	In this type of main street/MAC location, I see a respectable case that evening diners coming to have their meal at the review site (particularly during the daylight savings period) might benefit from being able to finish their outdoor meal (including any associated alcohol) later than 10.00 pm. 
20	It was conceded by both Mr Rantino and the Victoria Police that there have been no specific complaints about the Counting House, with its service of alcohol to customers.
21	When I walked around the Counting House during my site inspection, a key feature I noticed was that its internal layout is as follows. Rather than being a building with one large ‘open plan’ area, the layout of the review site consists of several more confined areas.  I accept that this more restricted layout lends itself to dining or small discrete groups doing ‘vertical drinking’,  rather than large groups engaging in raucous ‘vertical’ consumption of alcohol.  It was also very evident that there are lots of tables and chairs filling up most of the available floor space and the ‘bar’ area is quite petite. 
Should any extension of time for the outside consumption of alcohol be until 12 midnight?
22	I rely on the following points in finding that amending Condition 3 to change the outdoor ‘finishing time’ to 12 midnight would be an unacceptable planning outcome.
23	First, it needs to be kept in mind that this premises operates under its Liquor licence as a ‘Restaurant and café’, not as a bar, tavern or nightclub. Hence the core of the operations of the Counting House is from this perspective the provision of meals/food, with which some clients might enjoy drinking alcohol whilst sitting outside (not the other way around).  
24	Following this line of thinking, to justify longer hours for the outside consumption of alcohol in the evening, the permit applicant needs to provide a convincing case that persons going to this café/restaurant would benefit from being able to sit outside and drink alcohol with their meal beyond 10.00 pm.  
25	I am really struggling with the suggestion that there will be potential patrons of the Counting House who would like to have a mid-evening meal, and still be finishing that meal and alcohol outside, right up to midnight.  Some fatal problems I see with this proposition are that:
•	Surely most people would be so hungry for their evening meal that he or she would arrive at Counting House over a period of say 6.30-9.30 pm or thereabouts.  Apart from the odd exception, I see little credibility in any suggestion that customers can be expected with any regularity to arrive as late as 10.00 pm, 10.30 pm or 11 pm for a proper evening meal.
•	Above and beyond ‘customer demand’, there seems major doubt whether any normal restaurant would be prepared to keep its kitchen open late enough, to be able to offer meals as late as the times I have just set out above.  Running a restaurant kitchen presumably involves significant wage expenses.  Surely for any of us, the typical experience here is that going out in the evening to a restaurant (as opposed to dropping in to KFC or McDonalds) involves getting to the restaurant earlier rather than later in the evening, whilst the kitchen can reasonably be expected to remain open.  After a certain point in the evening, surely most restaurants of the type in question here will simply advise any new customers coming in that the kitchen is now closed.  
•	Whilst acknowledging that this is an upmarket restaurant experience (not scoffing down a whopper, fries and coke under fluorescent lights at the nearest Hungry Jacks), common sense still indicates that there is only so long a typical customer needs (eating outside) to finish eating their evening meal and associated alcohol.  
26	Second, my findings set out above are reinforced by the more weather-exposed nature of a patron eating and drinking outside.  Even with daylight saving at the longest time of year, it starts getting quite dark by say 9.30 pm.  In the middle of winter it would be 5 pm.  Either way, common sense suggests that for most of the year, many people will not necessarily be wanting to eat and drink outside in an ‘after dark’ situation, when the outside temperature will be dropping and may well be quite cold.  
27	Third, I agree with Council that it is a significant constraint that the new apartment building alongside the review site sits quite close to the relevant outdoor deck and footpath eating area of the Counting House.  The ‘pinch point’ here seems the two closest apartments, which sit alongside and somewhat above these areas.
28	Whilst acknowledging that either or both of these apartments may or may not be occupied at this point, it would be artificial and inappropriate for the Tribunal to disregard the amenity considerations with any existing (or the future) occupants of these two apartments.  
29	In terms of the ‘reasonable amenity expectations’ for such occupants, I accept such expectations need to be tempered, given the MAC location and Commercial 1 zoning which these occupants have/will have chosen to live with.   For example, I am somewhat less concerned about these occupants using their adjacent decks and potentially experiencing some degree of real noise from outdoor patrons of the Counting House, as (within reasonable limits) this arguably ‘goes with the territory’.  However there comes a point in the evening when it still seems reasonable to give considerable weight to the need of these adjacent apartment occupants to be able to sleep without excessive risks of noise disturbance.  
30	I acknowledge that some other new apartment towers in this main street include a combination of a ground level restaurant/café or possibly bar and multiple apartments up above. However in these situations, the commercial noises are being generated underneath the apartments, on the same property, rather than being generated by a neighbouring property.  In this ‘underneath’ situation, it seems easier to take the view that a person who has chosen to live in one of the apartments above has to accept a certain degree of noise from the ground level commercial operation underneath their own building.
31	Fifth, it is reasonable that I give a mild degree of weight to the inherent ‘patron behaviour and noise’ concerns raised by Sargant Michael in his sworn evidence.  However I give this no more than mild weight as it is common ground that the police have not received any specific complaints about this particular premises. 
32	Finally, if one looks at other licensed cafes/restaurants already operating along main street, as opposed to any bars/taverns/nightclubs along main street, I am struggling to see any existing pattern of the outdoor service of liquor until midnight.  I acknowledge that if you take a ‘one size fits all’ approach to considering the existing liquor licensing along main street, some premises have planning permission to serve liquor until midnight or in some cases even later again.  However I would regard any such generic assessment as an inappropriately blunt exercise.  The real question here seems what is a reasonable outcome for a licensed ‘Restaurant and café’  wishing to serve alcohol outdoors until later in the evening.    
Conclusion
33	For better or worse, a judgement call needs to be made here, balancing up the positive versus the negative aspects of the proposal, as I have discussed above.
34	In this spirit, my finding is that it is acceptable that there be modest increase in the Condition 3 closing times until 10.30 pm (with a corresponding  change to Condition 4).  I see a revised outdoor alcohol consumption finishing time under Condition 3 of 10.30 pm as consistent with:
•	The fact that, from a liquor licensing perspective, this premises operates as a ‘Restaurant and café’ rather than a bar, tavern or nightclub.
•	How restaurant kitchens typically operate.
•	The weather constraints associated with eating and drinking outdoors, particularly during the colder times of year.
•	The points I have made above about the range of licensed times for the provision of alcohol along main street. 
35	If this business is wanting a more dramatic shift to considerably later evening hours to serve alcohol outside, it seems fair to ask the question whether the basic nature of the use would (from a liquor licensing perspective) need to expand to something beyond the current more constrained use of ‘Restaurant and café’.
36	I am content to implement the new Condition 11 which the parties have themselves generated.  

Philip Martin
Senior Member