VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11539/2021
Permit Application no.PL05/0626.02 	

Applicant	Ross Calia	

Responsible Authority	Yarra City Council	

SUBJECT LAND	621 Brunswick Street,
FITZROY NORTH VIC 3068	

HEARING TYPE	Hearing 	

DATE OF HEARING	22 April 2022	

DATE OF ORDER	26 April 2022	

CITATION	Calia v Yarra CC [2022] VCAT 445   	
Order
Conditions changed
1	The decision of the responsible authority is varied.  
2	The Tribunal directs that planning permit PL05/0626.02 must contain the conditions set out in planning permit PL05/0626.02 issued by the responsible authority on 31 August 2021, with the following modifications:
(a)	Condition 4 is amended to read:
The use must operate between the hours of 7.00am – 11.00pm Monday to Saturday and between 7.30am – 10.00pm Sunday (with business operators allowed on the premises outside of these hours).	
(b)	Condition 10 is amended to read:
Speakers associated with the permitted use must not be located outside the building.
3	The responsible authority is directed to issue a modified planning permit in accordance with this order. 

Peter Gaschk
Member			

Appearances
For applicant	Ross Calia in person	
For responsible authority	Tamara Orrlov, Planning Consultant	

Information
Description of proposal	The applicant seeks to amend permit conditions 4 and 10 of PL05/0626.02, issued by the responsible authority on 31 August 2021.
The two conditions under review relate specifically to the hours of operation and the need for music to be played within the premises at a background level only.  Speakers are also not permitted external to the building on the review site.	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 – to review conditions 4 and 10 contained in permit PL05/0626.02.	
Planning scheme	Yarra Planning Scheme (the Scheme) 	
Zone and overlays	Neighbourhood Residential Zone, Schedule 1 (NRZ1)
Heritage Overlay, Schedule 327 (HO327)
Development Contributions Plan Overlay (DCPO)	
Permit requirements	Clause 32.09-2: A planning permit is required to use the land as an Arts and Crafts studio as it is a Section 2 use.
S.72 of the Act states:
(1) A person who is entitled to use or develop land in accordance with a permit may apply to the responsible authority for an amendment to the permit.	
Relevant scheme policies and provisions	Clauses 13.05-1S, 13.07-1S, 17.02-1S, 17.02-25, 18.02-2S, 19.02-3S, 21.04-2, 21.06, 21.08-8, 22.01, 22.05, 32.09, 65, 71.02 and 73.03.   	
Land description	The review site is located on the north-west corner of Brunswick and Church Streets in North Fitzroy.  The site sits opposite the Edinburgh Gardens, with an interface to Brunswick Street, which is designated in a Transport Zone Schedule 2 (principal road network).  This road includes tram lines, along with one lane of traffic in each direction, and parking at the verges on both sides of the street.
The site is rectangular, having a frontage to Brunswick Street of 5.2m.  The length of the site is estimated to be around 13m, with a main floor area of approximately 65sqm, including a small office and amenities area.  The site is developed over 100 percent of its area.
The subject building is at the southern end of a run of two-storey Victorian Terraces that overlook Edinburgh Gardens to the east.  The site itself is a Victorian Terrace, with a modified ground floor façade and canopy – and has a shopfront with no building setback.  The building is constructed boundary to boundary, with no open space or parking provided.
A previous planning approval for further development of the site has resulted in a dwelling to the rear, that extends over the shopfront (No 61 Church Street), and a further dwelling to the west of this (No 59 Church Street).  As such, the site is essentially a commercial shopfront – with restricted prospect of returning to residential use (due to size, lack of open space, few windows, boundary construction, development above etc).
The surrounding land is predominantly residential in nature.  However, there are some distinct commercial uses along this section of Brunswick Street.  Including a hotel, converted buildings on street corners and mid block residential buildings fronting Brunswick Street. The built form comprises a mix of single and double storey buildings.	
Tribunal inspection	Not undertaken.   	

Reasons
What is this proceeding about?
1	This is an application for review under s.80 of the Planning and Environment Act, 1987 (the Act).  It is a review by the permit holder Ross Calia (the applicant) against conditions placed on Amended Planning Permit PL05/0626.02 (the amended permit), issued by the responsible authority on 31 August 2021.
2	The permit relates to land at 621 Brunswick Street Fitzroy North (the review site). The permit has been issued by the responsible authority to allow a change of use of the ground floor to an arts and crafts centre of the subject building on the review site.  The change in use has been accompanied by various conditions on the amended permit.  Relevantly to this review, conditions that restrict the hours of operation, and restrict music to background levels.
3	The applicant seeks to amend conditions 4 and 10 of PL05/0626.02. These conditions state:
Condition 4. The use must operate between the hours of 7.00am – 9.00pm Monday to Saturday and between 7.30am – 8.00pm Sunday (with business operators allowed on the premises outside of these hours).
Condition 10. No music other than light background music shall be played within the premises. Speakers must not be located outside the building.
4	The applicant seeks an amendment to condition 4 so that trading hours are extended by a further two hours into the evening between Monday - Saturday and on Sunday.  Amended hours sought are: 7.00am – 11.00pm, Monday - Saturday, and 7.30am – 10.00pm on Sunday.
5	The applicant also seeks to delete part of condition 10, on the basis it is not relevant and other conditions at 8 and 9 of the permit addresses the issue of noise and amenity controls on the site.
6	Council opposes the removal of these conditions on the basis that the use is non-residential and seeks to operate within a Neighbourhood Residential Zone, where it says there is potential to significantly impact residential amenity during night-time hours.
What are the key issues?
7	This application for review relates to proposed changes to conditions on an existing permit.  The issue before the Tribunal specifically relates to the potential for adverse noise and amenity impacts within a Neighbourhood Residential Zone, above that of a standard residential use - emanating from a non-residential use.  
8	Having considered the submissions and supporting material and photographs from the parties, I consider the key issue to determine is whether the proposed amendments to the permit will result in a satisfactory amenity outcome on and immediately around the review site.
9	I have determined that the proposed amendments sought by the applicant to conditions 4 and 10 on PL05/0626.02 are satisfactory.  Subject to a further variation to condition 10, that will ensure there is no music associated with the permitted use played from any external speakers on the subject building.
10	I provided reasons for my decision orally at the hearing and do not intend to reiterate these reasons in full here.
11	The council sought to rely on the purposes of the NRZ and local policy provisions at clauses 22.01 and 22.05 of the Scheme.
12	Though I accept the zone purposes and policy provisions are a relevant consideration, I find the location of the subject premises on the edge of the NRZ, provides the premises with a degree of robustness that would support a further modest extension to operating hours for the permitted use.
13	I make this finding noting: 
•	The site has been operating as a permitted commercial use since at least 2005.
•	The proposed extension of hours would not permit the use to operate beyond 11.00pm Monday to Saturday and up to 10.00pm on Sunday.  
•	The site directly abuts a main road that accommodates trams, buses and other vehicles that create an additional level of activity and noise levels that would not normally be evident from within a NRZ area.  
•	That while the site abuts other residential uses, including a residence at first floor level, the surrounding area also contains other converted and as of right commercial uses, that have introduced a level of commercial/business uses and mixed use activity into this immediate neighbourhood.
•	The site is opposite Edinburgh Gardens that includes meeting rooms that enables opportunities for additional late night functions in the area.
14	Part of condition 10 of the permit specifies that no music, other than light background music, shall be played within the premises.  I agree with the applicant that this part of the condition, as currently worded, presents some uncertainty in respect to what would constitute light background music.  The applicant confirmed that he did not intend, or require, any external speakers to play music outside the premises.
15	I find that conditions 8 and 9 of the amended permit would adequately address issues around amenity and noise arising from the permitted use.  The applicant supports the retention of that part of condition 10 that seeks to restrict the use of external speakers placed outside the subject building.  I support this.  However, I have modified the wording to clarify the speakers are directly associated with the permitted use.
Conclusion
16	As summarised above and for the reasons I gave orally, I direct the responsible authority to issue a modified permit PL050626.02 with the following condition changes:
•	 Condition 4 is amended to read:
The use must operate between the hours of 7.00am – 11.00pm Monday to Saturday and between 7.30am – 10.00pm Sunday (with business operators allowed on the premises outside of these hours).	
•	Condition 10 is amended to read:
Speakers associated with the permitted use must not be located outside the building.

Peter Gaschk
Member