VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1397/2020
Permit Application no. WH/2020/146	

APPLICANT	Eastern Venue Pty Ltd	
responsible authority	Whitehorse City Council	
SUBJECT LAND	11 Cottage Street, Blackburn	
HEARING TYPE	Hearing	
DATE OF HEARING	7 June 2021	
DATE OF ORDER	23 June 2021	
CITATION	Eastern Venue Pty Ltd v Whitehorse CC [2021] VCAT 648   	

order
1	In application P1397/2020 the decision of the responsible authority is affirmed.
2	In planning permit application WH/2020/146 no permit is granted.

Tracey Bilston-McGillen
Member			

Appearances
For applicant	Mr Reto Hoffman, solicitor, Rigby Cooke.  He called the following witnesses:
Ms Sandra Rigo, town planning consultant, Hansen.
Mr Valentine Gnanokone, traffic engineer, One Mile Grid.	
For responsible authority	Mr Gintaras Simkus, town planning consultant, Direct Planning.	

Information
Description of proposal	Change of use to a function centre (place of assembly) and a cocktail bar, alterations to existing building, reduction of car parking requirements and the sale and consumption of liquor.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Whitehorse planning scheme.	
Zone and overlays	Industrial 1 Zone (INZ1).	
Permit requirements	Clause 33.01-1 A permit is required for the use Place of Assembly (function centre).
Clause 33.01-4 a permit is required for buildings and works.
Clause 52.06 a permit is required to reduce the number of car parking spaces required under clause 52.06-5.
Clause 52.27 a permit is required to sell and consume liquor.
Clause 52.34 a permit is required to reduce the required number of bicycle parking spaces.	
Key scheme policies and provisions	Clauses 11, 13, 15, 17, 18, 21.05, 21.07, 22.16, 52.06, 52.27, 52.34 and 65.  	
Land description	The site is located on the east side of Cottage Street.  It is rectangular in shape with a frontage to Cottage Street of 12.5 metres, a depth of 36.58 metres and a site area of 457 square metres.  A laneway exists to the rear of the site and can be accessed from the rear of the building.
The site is developed with a brick warehouse.  The building is setback approximately 6.4 metres from the frontage of the site and the front half of the building is setback 1 metre from the side boundaries.  The remaining building is located to the side boundaries.
A crossover spans the entire width of the site providing access to two onsite parking spaces.  	

Reasons
1	Eastern Venue Pty Ltd (the applicant) applied to the Whitehorse Council (Council) to use the site as a place of assembly (function centre) and a cocktail bar, alterations to the existing building, reduction of car parking and sale and consumption of liquor at 11 Cottage Street, Blackburn.  Council refused to grant a planning permit on the following grounds:
[1]	The use of the land for a function centre (place of assembly) and cocktail bar is contrary to the objective and strategies contained in Clause 13.07-1S (Land use compatibility) that seeks to protect existing industrial uses from encroachment by use or development that would compromise the ability to function effectively. 
[2]	The use of the land for a function centre (place of assembly) and cocktail bar does not advance Clause 17.03-1S (Industrial land supply) which seeks to avoid non-industrial land uses establishing that that will prejudice future industrial uses. 
[3]	The use of the land for a function centre (place of assembly) and cocktail bar is inconsistent with the purpose of the Industrial 1 Zone at Clause 33.01, which seeks to provide for manufacturing, the storage and distribution of goods and associated uses. 
[4]	The use of the land for a function centre (place of assembly) and bar fails to meet Clause 21.07 (Economic development) and Clause 22.16 (Industrial Areas Design Guidelines) as it does not maintain an industrial focus. 
[5]	The site is only able to accommodate 2 car parking spaces with all other parking demand to be found in off-site locations. The proposal fails to provide the appropriate number of car parking spaces, therefore affects the amenity of the locality, reduces opportunity for other nearby uses and fails to create a safe environment, contrary to the purpose at Clause 52.06 (Car parking).
2	The applicant lodged an application for review against the decision of the Council submitting that the proposed use is an acceptable response having regard to the planning scheme, the physical context, the use will not have an adverse impact on the amenity or operation of existing or future uses in the surrounding area.

3	The parties put to me that there are two key issues for consideration, and I agree, they include:
i	Is the proposed function centre and cocktail bar and appropriate use in the INZ1 zone?
ii	Is there sufficient car parking?
4	Having regard to the submissions, the evidence and the provisions of the planning scheme I have decided to affirm the decision of the Council and order that no permit be granted.  My reasons follow.
Proposed land use
5	The application proposes buildings and works to the existing building allowing for the use of the function centre and cocktail bar.  The buildings and works include an increase in the height of the building form from 5.45 metres to 8.35 metres to accommodate a mezzanine floor.  The site provides two car spaces in the front setback.  The proposed hours of use and number of patrons are detailed as:
Cocktail Bar – Hours of Operation and Patron Numbers
•	Friday, 5.00pm to 12.30 am. Maximum patron Numbers, 280. 
•	Sunday, 12.00pm to 8.00pm. Maximum patron Numbers, 280 
Function Centre – Hours of Operation and Patron Numbers 
•	Monday to Friday 7.00am to 5.00pm. Maximum of 50 patrons. Maximum 20 times in a year, maximum of 4 hours in duration. 
•	Monday to Friday 5.00pm to 12.30am. Maximum 280 patrons. 
•	Saturday and Sunday 7.00pm to 12.30am. Maximum 280 patrons

Figure 1: Review site.

6	The review site is zoned IN1.  A permit is required to use the land for a place of assembly (function centre) and for buildings and works.  The purpose of the IN1 is:
To implement the Municipal Planning Strategy and Planning Policy Framework. 
To provide for manufacturing industry, the storage and distribution of goods and associated uses in a manner which does not affect the safety and amenity of local communities.

Figure 2: Zoning map of review site and surrounds.

7	On my inspection, I observed a street that is largely occupied by industrial uses including a number of automotive uses.  It is a street that displays the characteristics of an industrial area with parking ‘all over the place’ in the front setbacks of buildings and on the street and a street that does not appear particularly inviting.  I also inspected the surrounding streets within the IN1 area and observed that they also accommodate industrial uses, with some properties appearing as large industrial uses or ‘not fine grain’ industrial uses.  It was put to me that the street accommodates a number of non-industrial uses, and whilst this may be correct, it is my view that they represent the minority of uses.  
8	In making a decision, I am to be guided by the planning scheme.  In this case, the zone is IN1 where the purpose is to provide for manufacturing industry, the storage and distribution of goods and associated uses in a manner which does not affect the safety and amenity of local communities.  Whilst the land use ‘place of assembly’ is a section 2 permit required use, it is noted that the purpose of the zone does not include place of assembly, but it was put to me that the use comes under the umbrella term ‘associated uses’.  
9	I also turn to planning policy for guidance.  At a State Planning Policy level (SPPF), clause 13.07-1S (Land Use Compatibility) seeks to facilitate appropriate development outcomes that ensure land use or development is compatible with adjoining and nearby land uses.  Clause 17 (Economic Development) supports new commercial services to meet community need and at clause 17.03-1S (Industrial land supply) protect and carefully plan existing industrial areas to, where possible, facilitate further industrial development.  Policy also seeks to avoid approving non-industrial land uses that will prejudice the availability of land in identified industrial areas for future industrial use.
10	At the Local Planning Policy level (LPPF), there is an Economic Development policy at clause 21.07 that offers little guidance on the industrial site in question other than to facilitate the on-going development and refurbishment of industrial estates and direct industrial uses into appropriate locations.  Clause 22.16 (Industrial Areas Design Guidelines) applies built form and urban design guidelines to emphasise the importance of developing new forms of industrial development to complement existing industrial uses and protecting the industry base for the prosperity of the municipality. This policy provides direction for the design and development of industrial areas. 
11	I was also referred to the Whitehorse Industrial Strategy 2011 that broadly acknowledges the changing landscape for industries and mentions the possibility of rezoning some of the older buildings around the Blackburn Neighbourhood Activity Centre to Industrial 3 zone to encourage office-related uses.
12	The applicant and Ms Rigo in her evidence, put to me that the proposed use of the site for the function centre and cocktail bar is appropriate for the following reasons:
•	The proposed use supports the re-use and redevelopment of an existing factory/warehouse building, noting there are policy objectives to promote urban renewal and redevelopment opportunities.  In any case, the existing building is readily available but could easily be converted back to an industrial use.
•	The review site is highly accessible, being located within the PTTN, within close proximity to Blackburn Railway Station, pedestrian and cycling infrastructure, and bus routes along Whitehorse Road and Central Road. 
•	There is a practical logic to locating potentially noise and crowd generating uses such as function centres within industrial zones, which are typically separated from residential land uses, especially as residential land use intensifies in and around activity centres with associated expectations of amenity. 
•	Whilst not providing for manufacturing industry or associated industrial uses, approval of this proposal would not, adversely affect these uses nor threaten the integrity of this industrial area and thus on balance, has strategic planning policy support.
•	The Industrial 1 Zone provides for a range of non-industrial uses to be considered on their merits, evident in various land uses in Cottage St, for example, fitness centres, a flying trapeze school and special education (Melbourne Guild of Fine Woodworking). 
•	The potential for conflict between the existing industrial uses and the proposed use will be minimal given there is little overlap between their respective hours of operation, and conditions limiting the use during weekdays are reasonable and enforceable. 
•	The proposed additions to the existing warehouse is consistent with the form and scale of buildings in the vicinity of the review site and will have minimal visual impact upon the existing streetscape, and will retain a ‘warehouse’ character.
13	In summary, the applicant submitted that the proposed use of a function centre and cocktail bar is an appropriate use as there are other non-industrial uses that currently exist in the street and zone, the use would not have an impact on the industrial uses that continue to operate in the zone, is well located in terms of access to public transport, is able to reuse a building and the zoning provides for non-industrial uses.
14	Based on my site inspection and the submissions of Council, I am persuaded by Council that the proposed use of a function centre and cocktail bar, whilst a section 2 permit required use in the zone, does not have strategic support as put by Ms Rigo in her evidence and is not an appropriate use for the site.  A review of planning policies does not persuade me that a function centre and cocktail bar is an appropriate use in this zone, in this location.
15	I am not persuaded the proposed use of a function centre and cocktail bar is appropriate on this site for the reasons that follow.
i	I was referred to a number of function centres located in industrial zones.  Many of the examples that I was referred to, were located in Industrial 3 zones (IN3).  There is a key difference between the zones.  The purpose of IN3 is:
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.
The purpose of the IN3 is a stark contrast to the purpose of an IN1 zone.  An IN3 zone allows limited retail opportunities and a broader range of uses, the IN1 does not.  
ii	Clause 17.03-1A sets the objective ‘to ensure availability of land for industry’.  It was contended that this strategy is not about avoiding non-industrial uses generally but those that will ‘prejudice the availability of land….. for future industrial use’.  The applicant further submitted that it would be wrong to interpret the strategy as a blanket avoidance strategy for non-industrial uses as if that were the case, then non-industrial uses would be prohibited under the zone.  It was put that the proposed use would not prejudice the availability of land in Cottage Street or the broader precinct for industrial uses in the future. The use will, in the main, operate outside of business hours for industrial uses and have reduced operations during business hours.  The applicant submitted that the use seeks to serve or complement the industrial area, providing a venue for local industry functions and events such as Christmas parties and seminars.  I am not persuaded by this submission.  The scale of the use is not insignificant.  It provides for up to 50 people during business hours, 150 people associated with the cocktail bar and up to 280 people for functions.  
iii	This is a site that proposes a use in an industrial area that, despite some level of non-industrial uses, remains primarily industrial uses.  The street is not an attractive street with buildings appearing as industrial and unkept.  I am not persuaded that the use that proposes to allow up to 280 patrons (with 2 car spaces on site) would not be a potential conflict to existing industrial uses.  As I have stated, the zoning appears to accommodate light industrial uses including, within the surrounding streets, some larger factory uses.  Even the suggestion of limiting day time functions to 50 people 20 times per year, is almost one per week that would potentially impact on adjoining and surrounding uses.  Light industrial uses must be permitted to operate without concern that an adjoining or nearby use may impact on their operations for example the potential for noise complaints from the function centre regarding the industrial activities was not addressed.  What happens in the scenario that an as-of-right industrial uses commences with noisy equipment?  What happens to the concern of noise to the function centre when it is operating?  Under the proposal, this could occur approximately once per week.  I was not satisfied that this issue had been adequately canvassed or addressed.
iv	I find that there is nowhere in the policy framework that suggests that Council has nominated this industrial area as one for change, or one that will transform to non-industrial uses.  
v	Addressing the issue of hours of operation.  As submitted above, it was put to me that the use could co-inside with industrial uses because the operating hours differ.  I am not persuaded that moving forward this may always be the case.  There is no prohibition of industries working what was called ‘traditional industry hours’ of early morning to early afternoon and finishing by lunchtime Saturday.  The industrial uses can operate at any time.  Whilst they are likely not to operate in the evening, the proposed use seeks to have a number of functions (maximum of 50 patrons, maximum of 20 times a year, maximum of 4 hours in duration for each function) that would operate at the same time.  I am concerned about the potential for conflict between a lunchtime function and an existing industrial use.  
vi	I am also concerned with the proposed cocktail bar use and that it may morph into a significant part of the use.  It was put to me that this use on a Friday evening and Sunday afternoon with up to 150 patrons would only operate at a time when there is no function.  Again, I have reservations about permitting a cocktail bar in a IN1 zone with up to 150 patrons.  The purpose of this zone is to provide for manufacturing industry, the storage and distribution of goods and associated uses in a manner which does not affect the safety and amenity of local communities.  I am not persuaded that the proposes uses fall into the category ‘associated uses in a manner that does not affect the safety and amenity of local communities’.
vii	It may be that the site and location should be rezoned from IN1 but that is not a matter for this Tribunal.  I must make a decision based on the planning scheme as it stands today (noting there is no seriously entertained document rezoning the land).  
viii	I am aware of a number of function type uses that operate in industrial zones including breweries or gin distilleries that effectively provide two functions. This is not the case here.  This application is for a function centre and a cocktail bar on a Friday night and Sunday afternoon (when there are no functions).  I also note that Ms Rigo in her planning evidence submitted a number of examples of function centres in industrial zones, but it is fair to say that the majority of those examples were in Industrial 3 zones, were much larger in size and provided car parking on site.
ix	Ms Rigo in her statement of evidence states that “there is a practical logic to locating potentially noise and crowd generating uses such as function centres within industrial zones”.  I am not convinced by this statement and in any event, any proposal needs to be considered on a case by case basis.  It also may depend on the type of industrial zone, schedule 1 or 3 as to the appropriateness of the site.  The review site is located in an old, tired IN1 area.  It is not an attractive area and one that could benefit from some redevelopment to improve the streetscape and visual amenity of the area.  As I have indicated above, I was referred to a number of function centres that were located in industrial zones, but the majority are large with ample car parking and within IN3 zones.  I did not find the comparisons helpful.  
x	The applicant highlighted the PACE development that was under construction. It is a series of apartment buildings with retail and supermarket component.  I agree that this development serves to highlight that the area is in transition, but this building is in a different zone, fronts Maroondah Highway and is a large consolidated site.  
16	As it is proposed, it is my view that the proposed function centre and cocktail bar is not supported by the zone and is not supported by the planning policy framework.  The review site is located in an IN1 area.  I do not agree that the industrial street or location is transitioning into anything other than an industrial area.  There is no policy or rezoning strategy for the area.  The area surrounding it closer to Maroondah Highway is transitioning with the development of the PACE mixed use development, but that zone is commercial and a very different context.  
Car parking
17	Council refused the proposed use and development on the ground that the proposal fails to provide the appropriate number of car parking spaces which therefore affects the amenity of the locality, reduces the opportunity for other nearby uses and fails to create a safe environment, contrary to the purpose at Clause 52.06 (Car parking).  Council’s traffic engineering department had no objection to the reduction in the car parking and there was traffic evidence that the proposed use was appropriate subject to conditions regarding hours of operation and number of guests and that the demand for car parking could be met with on-street car parking.
18	As I have refused the proposed development for other reasons, I do not make any findings regarding the provision of car parking but make the observation that in general, the comparisons of other function centres in industrial zones were larger sites and all provided ample on-site parking.  They appeared not to rely on on-street parking such as the proposed does.
Built form
19	The proposal included some limited buildings and works including the installation of a mezzanine floor.  I would not have refused the proposed development for reasons of the proposed buildings and works.  

Conclusion
20	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Tracey Bilston-McGillen
Member