VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference Nos. P1774/2020 & P58/2021
Permit Application no. GE/CP-3365/2020	
 
p1774/2020		

Applicant	Bruce Dowel and others	
RESPONDENT	Splinter Society Architecture 	

P58/2021		

Applicant	Splinter Society Architecture	

RespONSIBLE AUTHORITY	Glen Eira City Council	

SUBJECT LAND
	483 North Road ORMOND VIC 3204	

HEARING TYPE	Hearing	

DATEs OF HEARING	30 July 2021, 9 August 2021 and 16 March 2022	
Date of Practice Day Hearing	4 October 2021	

DATE OF ORDER	21 March 2022	

CITATION	Dowel v Glen Eira CC [2022] VCAT 303	

Order
1	In applications P1774/2020 and P58/2021 the decision of the responsible authority to grant a planning permit in permit application GE/CP-3365/2020 is set aside.
2	Permit application GE/CP-3365/2020 is remitted to the responsible authority to reconsider the application in accordance with the following recommendations:
(a)	Consider whether the permit application description and information accurately describe what is being sought by the permit applicant.
(b)	Consider whether further information is required before the responsible authority decides the application, including information regarding:
i	clause 53.06 – Live Music Entertainment Venues of the Glen Eira Planning Scheme;
ii	details of the proposed use of the ‘multi-purpose entertainment’ and ‘function’ spaces;
iii	the nature of the packaged liquor sales proposed.
(c)	Consider whether the application plans accurately reflect the existing and proposed use and development of the land, having regard to the endorsed permit plans for permit GE/PP-19073/2006/C that permits the sale and consumption of liquor in association with the existing food and drink premises and the sale of packaged liquor for consumption off the premises.
(d)	Consider whether the land that is the subject of the permit application includes the land in the road reserve on which the outdoor (kerbside) seating area is proposed, and if so whether the description of the land in the permit application requires amendment, or whether the proposed outdoor (kerbside) seating area is a matter to be dealt with through a licence agreement with the Council separately to the permit application.
(e)	Consider whether the proposal triggers a permit requirement to reduce the number of car parking spaces to be provided under clause 52.06 – Car Parking of the Glen Eira Planning Scheme.
(f)	Consider whether any existing use rights on which the permit application relies have been properly established.
(g)	Consider whether the proposal breaches the covenant that applies to the land.

Sarah McDonald
Member			

Appearances – 16 March 2022 Hearing
For Bruce Dowel & others	Bruce Dowel, in person.	
For Splinter Society Architecture Pty Ltd	Chris Stanley.	
For Glen Eira City Council	Stuart Taylor, senior urban planner, 
Glen Eira City Council.	

Information
Description of proposal	Alterations to the existing building, amendment to venue capacity, alteration to operating hours and extension of liquor licence ‘red line’ area.
The proposed increase in liquor licence red line plan area includes a function space on the first floor towards the front of the site, and the area at ground floor outside the site along Newham Grove and North Road.  The application plans also propose fixed furniture on the footpath along Newham Grove for an outdoor (kerbside) seating area.	
Nature of proceeding	Application P1774/2020
Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.
Application P58/2021
Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the permit. 	
Planning scheme	Glen Eira Planning Scheme.	
Zone and overlays	Commercial 1 Zone (C1Z); Heritage Overlay– Schedule 75 (Ormond Precinct environs); Parking Overlay–Schedule  2 (Student Housing in Specific Areas: Precinct 2-2).	
Permit requirements	Clause 34.01 (C1Z): To construct a building and construct or carry out works.
Clause 43.01 (Heritage Overlay): To construct and carry out works including for part demolition and to display signage.
Clause 52.27 (Licensed Premises): To use land to sell or consume liquor, because:
•	the hours of trading allowed under a licence are to be extended;
•	the number of patrons allowed under a licence is to be increased; and
•	the area that liquor is allowed to be consumed or supplied under a licence is to be increased.	
Subject land	The subject land is located on the northern side of North Road, Ormond, on the corner of Newham Grove.	

Reasons
1	Splinter Society Architecture Pty Ltd sought a planning permit for ‘Minor alterations to existing building, amendment to venue capacity, alteration to operating hours and extension of red line area’ (the proposal) for the land at 483 North Road, Ormond (the review site).
2	Glen Eira City Council (the Council) issued a Notice of Decision to Grant a Planning Permit (the NOD) for the proposal.  The NOD describes what the permit will allow as follows:
Buildings and works including part demolition, display of business identification signage and alteration to existing liquor licence to allow for an increase in patron numbers, alteration of hours and increase in area where liquor can be served and consumed in Commercial 1 Zone and Heritage Overlay in accordance with the endorsed plans.
3	The NOD was issued subject to proposed permit conditions.
4	Bruce Dowel objected to the permit application and is a joint applicant (the section 82 review applicants) with 24 other objectors who have sought the review under section 82 of the Planning and Environment Act 1987 (the PE Act) of the Council’s decision to grant a permit.
5	Splinter Society Architecture Pty Ltd (the section 80 review applicant) has sought the review under section 80 of the PE Act of the permit conditions contained in the NOD.  The conditions that are the subject of this review are, in summary:
i	Condition 1(a) that requires amended plans showing the removal of fixed on-street furniture from the plans.
ii	Condition 1(b) that requires amended plans showing the ‘red line’ (liquor licence) area to remove the area external to the venue along North Road and Newham Grove.
iii	Condition 4 that restricts the maximum patron numbers to 128.
6	The two applications for review were heard together.  Over the course of the first two hearing days (on 30 July and 9 August 2021) I sought clarification of various matters relating to the existing and proposed use of the land and the permit application.  The parties responded to my queries in oral submissions as well as providing further information and documents regarding the current permit application and the existing permit that applies to the land.  The existing permit permits the use of the review site as follows:
The sale and consumption of liquor in association with the existing food and drink premises and the sale of packaged liquor for consumption off the premises in accordance with the endorsed plans.
7	The Council and the section 80 review applicant confirmed that the current permit application was for a ‘new’ permit, not an amendment to the existing permit.
8	Prior to the completion of the section 80 review applicant’s submissions and it calling its witness, Dr Zalewski, to give evidence, the hearing was adjourned at the request of the section 80 review applicant.  The hearing was adjourned to provide the section 80 review applicant with the opportunity to consider and address the matters raised by the Tribunal in relation to the permit application and the further information provided through the course of the hearing.
9	By agreement of the parties the matter proceeded to a ‘Compulsory Conference’ in October 2021, however the issues in dispute were not resolved and the applications for review were listed for a further two hearing days (on 16 and 17 March 2022).
10	Prior to that hearing, Mr Dowel raised a possible ‘threshold’ issue regarding a covenant that applies to the land.  The section 80 review applicant subsequently requested that the Tribunal be constituted with a legal member, and then an adjournment of the hearing.
11	The Tribunal (by Order dated 8 March 2022) refused the adjournment of the hearing and advised the parties they would be required to address specified matters at the commencement of the hearing on 16 March 2022.  These matters included, in summary, clarifying the parties’ position regarding a potential conflict of interest previously raised by Member McDonald, the matter raised by Mr Dowel regarding the covenant, the request for reconstitution of the Tribunal, and the various matters regarding the application and information previously raised by the Tribunal.  That Order also included that parties would be required to address whether, given the range and nature of matters raised by the Tribunal in its Order dated 9 August 2021 and at the Practice Day Hearing on 4 October 2021, the decision of the responsible authority should be set aside and the matter be remitted to the Council for reconsideration under section 51(2)(d) of the Victorian and Civil and Administrative Tribunal Act 1998 (the VCAT Act).
12	In correspondence of 11 March 2022 the section 80 review applicant outlined its position that the matter should be remitted to the Council for reconsideration pursuant to section 51(2)(d) of the VCAT Act.
13	At the commencement of the hearing on 16 March 2022 the section 80 review applicant confirmed its request to have the decision of the Council set aside and the application for permit remitted to the Council for reconsideration.
14	After hearing from all of the parties on this matter I determined, pursuant to section 51(2)(d) of the VCAT Act, to:
i	set aside the decision of the Council, as the responsible authority, to grant a planning permit in permit application GE/CP-3365/2020; and
ii	remit the permit application to the Council, to reconsider the application in accordance with the Tribunal’s recommendations (as contained in this Order).
15	The recommendations included in this Order reflect the matters raised by the Tribunal through the course of the hearing.

Sarah McDonald
Member