Agenda of Planning Committee - Thursday, 29 August 2024

Planning Committee

29 August 2024

6.1	345 Barkly Street ELWOOD PDPL/00307/2022
location/address:	345 Barkly Street Elwood
Executive Member:	Brian Tee, General Manager, City Growth and Development
PREPARED BY:	PAUL WOOD, MANAGER CITY DEVELOPMENT DARREN Camilleri, Planning Coordinator Canal Ward Matthew Schreuder, Principal Planner

1. PURPOSE

1.1 To consider and determine Planning Permit Application PDPL/00307/2022 for the use of the land to sell or consume liquor and buildings and works in a Heritage Overlay, Special Building Overlay and for buildings and works for a section two (permit required use).

2. EXECUTIVE SUMMARY

Ward:	Canal Ward
Trigger for determination BY Committee:	More than 16 objections
ApplicATION NO:	PDPL/00307/2022
Applicant:	Jerry’s Group Pty Ltd.
Existing use:	Café/Restaurant
Abutting uses:	Residential
Zoning:	Neighbourhood Residential Zone – Schedule 5 (NRZ5)
Overlays:	Heritage Overlay – Schedule 409 (Jerry’s Milk Bar), Special Building Overlay – Schedule 1 (Melbourne Water Main Drain)
Statutory time remaining As at daTE of COUNCIL DECISION	Expired

2.1 The application seeks approval for the use of the land to sell or consume liquor, and buildings and works related to fencing and roofing within the rear courtyard.

2.2 The site is located on the southwest corner of the intersection of Barkly Street and Meredith Street, Elwood.

2.3 The site contains a two-storey building used for many years as a food and drink premises called ‘Jerry’s’. The building is constructed along the frontage to Barkly Street, the northern side boundary to Meredith Street, as well as the shared southern boundary to 347 Barkly Street. To the rear of the building is a covered area that contains seating for patrons. A service area is also located within the rear yard.

2.4 The site has a frontage to Barkly Street of 6.3 metres and a side abuttal to Meredith Street of 36.8 metres. The site area is 222 square metres.

2.5 The site is located within an established residential area and has two residential property abuttals.

2.6 A permit is required pursuant to Clause 52.27 (Licenced Premises) of the Port Phillip Planning Scheme for the sale or consumption of liquor.

2.7 The proposed hours for the sale of liquor are:

· 9am – 6pm Monday to Wednesday (excluding ANZAC Day and Good Friday)

· 9am – 11pm Thursday to Sunday (excluding ANZAC Day and Good Friday)

· With the following exceptions:

o Rear courtyard and Barkly Street footpath trading: No later than 10pm Thursday – Sunday

o Meredith Street footpath Trading: No later than 6 pm on all days.

2.8 The application includes buildings and works that primarily relate to noise attenuation measures recommended by an acoustic report submitted with the application. The works include:

· Provision of screening along the fence of the rear courtyard

· Extension of the roof over the entire courtyard.

· Construction of a side fence along Meredith Street. The side fence has been constructed. Therefore, the application seeks retrospective approval.

2.9 A permit is required for buildings and works pursuant to Clause 32.09-10 Neighbourhood Residential Zone, 43.01-1 Heritage Overlay and 44.05-2 Special Building Overlay.

2.10 The application was advertised and received 21 objections. Key concerns include:

· The location is not appropriate for the use.

· Excessive noise.

· The hours of operation are not acceptable.

· Insufficient parking in the area.

· The proposal will impact road safety.

· Deliveries and rubbish collection will impact on the amenity of the area.

· The footpath is too narrow to allow outdoor seating.

2.11 A consultation meeting was held on 24 July 2023. The meeting was attended by a Ward Councillor, the Applicant, objectors and planning officers.

2.12 In responding to objector concerns, amended plans, submitted under Section 57a of the Planning and Environment Act 1987 were received on 16 April 2024. Further amended plans were received following a Council request for further information on 12 June 2024. The amended plans include an acoustic report, development plans incorporating noise attenuation, a planning report, and a venue and patron management plan. The amendment reduces the hours for sale and consumption of liquor on Meredith Street and Barkly Street. The amended plans were also subject to public notification and all previous objectors were notified.

2.13 In summary, the proposal is considered acceptable for the following reasons:

· Subject to conditions, the sale or consumption of liquor, will not have an unreasonable amenity impact on the surrounding area.

· The proposal supports the economic viability of an existing local business.

· The proposed buildings and works will not have an impact on the heritage significance of the heritage place.

· The buildings and works do not conflict with the objectives of the Special Building Overlay relating to flooding impacts.

3. RECOMMENDATION

PART A

3.1 That the Responsible Authority, having caused the application to be advertised and having received and noted the objections, issue a Notice of Decision to Grant a Planning Permit.

3.2 That a Notice of Decision to Grant a Planning Permit be issued subject to the following permissions:

Planning Scheme Clause No.	Description of what is allowed
Clause 32.09-10	To construct a building or construct or carry out works for a use in Section 2 of Clause 32.09-2
Clause 43.01-1	To construct a building or to construct or carry out works
Clause 44.05-2	To construct a building or to construct or carry out works
Clause 52.27	To use the land to sell or consume liquor

3.3 That the decision be issued subject to the following conditions:

Layout not altered

1 The layout and description of the use as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

Venue and Patron Management Plan

2 Before the use starts (to sell or consume liquor), an amended Venue and Patron Management Plan must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and must be generally in accordance with the ‘Serving of Alcohol Venue and Patron Management Plan’ prepared by Clause 1 Planning and received 16 April 2024, but further modified to show:

a) The hours for the sale or consumption of liquor in accordance with Condition 3.

b) The number of patrons in accordance with Condition 4.

The use must be carried out in accordance with the approved plan to the satisfaction of the Responsible Authority and must not be altered or modified without the prior written consent of the Responsible Authority.

Licensed premises - hours of operation

3 The sale or consumption of liquor must only operate between the following times:

Internal areas

a) 9am and 6pm Monday to Wednesday

b) 9am an 10pm Thursday to Sunday

Covered rear courtyard

c) 7am and 10pm Thursday to Saturday

d) 7am and 6pm Sunday to Wednesday

Barkly Street footpath trading area

e) 7am and 9pm Thursday to Saturday

f) 7am and 6pm Sunday to Wednesday

Meredith Street footpath trading area

g) 7am and 6pm Monday to Sunday

Except with the prior written consent of the Responsible Authority.

Limit on number of patrons

4 No more than 100 patrons may be present on the land at any one time in association with the sale and consumption of liquor, except with the prior written consent of the responsible authority.

Provision of seating

5 Tables and chairs must be placed in position on the licenced premises so as to be available for at least 75 per cent of the patrons attending the premises at any one time.

Acoustic attenuation

6 The provisions, recommendations and requirements of the endorsed Acoustic Report must be implemented and thereafter complied with at all time to the satisfaction of the Responsible Authority and must not be varied except with the prior written consent of the Responsible Authority.

7 At all times noise emanating from the land must comply with the requirements of the Environment Protection Regulations 2021 (as amended from time to time) as measured in accordance with the Noise Protocol to the satisfaction of the responsible authority.

Noise Protocol means the Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues, published by the Environment Protection Authority on its website, as in force from time to time.The entrance door to the front of the building and the rear courtyard must remained closed other than when patrons are entering or exiting the site, on any day after 6pm.

Time for starting and completion

8 This permit will expire if one of the following circumstances applies:

a) The development is not started within two years of the date of this permit.

b) The development is not completed within four years of the date of this permit.

c) The use of the land for the sale or consumption of liquor is not started within two years of the completion of development.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

PART b

3.4 That the planning committee authorise the Manager City Development to instruct Council’s Statutory Planners and/or Council’s solicitors in any VCAT Application for Review should one be lodged.

4. RELEVANT BACKGROUND

4.1 Jerry’s has been operating on this site for many years. Application PDCC/00007/2024 confirmed existing use rights at the site as a food and drink premises.

5. PROPOSAL

5.1 The application seeks approval for the use of the land for the sale or consumption of liquor and buildings and works associated with an existing food and drink premises at the site.

5.2 The plans and documents which are the subject of this report are those received, and date stamped by Council 12 June 2024 and 3 July 2024.

5.3 The application proposes the sale or consumption of liquor during the following hours:

· 9am – 6pm Monday to Wednesday

· 9am – 11pm Thursday to Sunday

· With the following exceptions:

o Rear Courtyard and Barkly Street: no later than 10pm Thursday to Sunday

o Meredith Street footpath trading: No later than 6pm on all days

5.4 There will be seating for 76 patrons with 16 in the front section of the building, 40 in the rear covered area, 8 on Meredith Street and 12 on Barkly Street. There will be a maximum of 100 patrons on site at any one time.

Figure 1 - Proposed red line plan with street trading areas.

5.5 The application proposes buildings and works comprising the construction of a side fence along Meredith Street, the provision of screening along all boundaries of the rear outdoor seating area and the extension of the roof to the outdoor area. The fence along Meredith Street has already been constructed and the application is seeking retrospective approval. There are no buildings and works proposed to the existing building. Refer Attachment 2 – Plans.

Figure 2 - Fence on Meredith Street, screening and additional roof over rear courtyard.

Figure 3 - Proposed screening and additional roof along southern boundary facing 347 Barkly Street.

Figure 4- Proposed rear screening.

Figure 5 - Aerial photograph of subject site. Source: Application Documents.

Figure 6 - Photo of subject site. Barkly Street frontage with street trading area. Source: Council planner

6. SUBJECT SITE AND SURROUNDS

	Description of Site and Surrounds
Site Area	The site is rectangular in shape with a frontage to Barkly Street of approximately 6.3 metres and a side abuttal to Meredith Street of 36.8 metres. The site has an area of 222 square metres.
Existing building and site conditions	The site currently contains a two-storey red brick building, with a zero setback from the site frontage and the northern Meredith Street abuttal. The building is constructed as double storey for 12 metres into the site from the frontage with a single storey section extending another 5.5 metres. The building comprises an existing food and drink premises with seating within the front of the building and a service counter, store and kitchen. The upper level of the building contains an office and storage area. To the rear of the building there is a partially covered courtyard with additional seating. A bin storage area is located at the western most end of the site.
Surrounds neighbourhood character	The surrounding area is an established residential area comprising of predominately single storey dwellings. To the south is 347 Barkly Street which comprises a single storey brick dwelling. The dwelling shares a party wall with the subject site along its northern boundary for a distance of 20.5 metres. The site has an area of secluded private open space at the rear with an area of approximately 52 square metres. Figure 7 - Aerial photography showing 347 Barkly Street identified with a red marker to the south of the subject site identified with a green marker. Source: Nearmap 23 July 2024. To the west of the site is 27 Meredith Street which contains a two-storey dwelling. The dwelling shares a section of the common boundary with the subject site adjacent to the driveway and garage. Figure 8 - 27 Meredith Street identified with a green marker to the west of the subject siteidentified with a red marker. Source: Nearmap 23 July 2024. Dwellings are located north of the site on the opposite side of Meredith Street. The dwelling at 343 Barkly Street is immediately opposite the site. The property has a high fence enclosing the rear secluded private open space. Other dwellings fronting Meredith Street have their secluded private open space to the rear of the properties. Figure 9 - Properties to the north of the subject site identified with a green marker. Source: Nearmap 23 July 2024 To the east of the site is the continuation of Meredith Street and residential properties located on the opposite corners of the intersection. Figure 10 - properties to the east of the subject site identified with a green marker. Source: Nearmap 23 July 2024.

7. Permit Triggers

7.1 The following zone and overlay controls apply to the site, with planning permission required as described.

Zone or Overlay	Why is a permit required?
Clause 32.09-10 Neighbourhood Residential Zone	Pursuant to Clause 32.09-10 a permit is required to construct a building or construct or carry out works for a use in Section 2 of Clause 32.09-2. While the use is listed as a Section 2 use, it is noted that the land benefits from an existing use right as a food a drink premises. Clause 63.05 addresses existing use rights and notes: A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided: · No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme. · Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use. · The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.
Clause 43.01-1 Heritage overlay	Pursuant to Clause 43.01-1 a permit is required to construct a building or construct or carry out works.
Clause 44.05-2 Special Building Overlay	Pursuant to Clause 44.05-2 a permit is required to construct a building or to construct or carry out works.
Clause 52.27 Licenced premises	Pursuant to Clause 52.27 a permit is required to use the land to sell or consume liquor.

8. PLANNING SCHEME PROVISIONS

8.1 Municipal Planning Strategy (MPS)

Clause 02: Municipal Planning Strategy

02.02 – Vision

Planning Policy Framework (PPF)

The following planning policies are relevant to this application:

Clause 11 Settlement

Clause 13 Environmental risks and amenity

13.05-1S Noise management

13.07-1S Land use compatibility

13.07-1L-03 Interfaces and amenity

13.07-1L-04 Tourism, entertainment uses and licenced premises

Clause 15 Built Environment and Heritage

15.03-1S Heritage Conservation

15.03-1L Heritage Policy

Clause 17 Economic Development

17.01-1R and 1S Diversified Economy

17.02-1S Business

8.2 Other relevant provisions

Clause 52.27 Licenced Premises

Clause 63 Existing Uses

Clause 65 Decision Guidelines

8.3 Relevant Planning Scheme Amendments

None

9. REFERRALS

9.1 Internal referrals

The application was referred to Council’s Heritage Advisor and Council’s Safety and Amenity unit. Below is a summary of their response.

Heritage Advisor

No objection to the proposed works given the works to the rear do not impact the heritage building.

Safety and Amenity

The application was referred to Councils Safety and Amenity department in relation to the proposed liquor consumption in the street trading areas. The following advice was provided:

· A footpath trading permit currently allows for 20 seated patrons (12 on Barkly Street and 8 on the Meredith Street). The amount of space available on the footpath as well as the clearance required for pedestrians were considerations in the granting of the current footpath trading permit.

· Meredith Street trading hours to 6:00pm on all days supported.

· Barkly Street trading hours should be reduced to cease at 9:00pm rather than 10 pm Thursday – Saturday

It is considered reasonable to require the hours of operation on the footpath to align with the street trading requirements.

9.2 External referrals

The application was required to be referred externally to Melbourne Water as a determining authority pursuant to Section 55 of the Planning and Environment Act 1987 and the provisions of Clause 66. Melbourne Water does not object to the application and no conditions were imposed.

10. PUBLIC NOTIFICATION/OBJECTIONS

10.1 The application was notified in accordance with Section 52 of the Planning and Environment Act 1987 by ordinary mail to the owners and occupiers of surrounding properties (39 letters) and the display of two notices of the proposal on the site

10.2 21 objections and 2 letters of support have been received. The concerns raised are summarised below (officer comment will follow in italics where the concern has not been addressed in Section 11):

· The location is not appropriate for the use.

· Excessive noise.

· The hours of operation are not acceptable.

· Insufficient parking in the area.

Car parking requirements are set out in clause 52.06 of the Planning Scheme. The Clause applies to:

- A new use; or

- An increase in the floor area or site area of an existing use; or

- An increase to an existing use by the measure specified in Column C of Table 1 in Clause 52.06-5 for that use.

As the application is not proposing to increase the leasable floor area of the existing use and does not change the characterisation of the current use, car parking requirements of Clause 52.06 are not a consideration of this application. However, ‘Planning Practice Note 61 Licenced premises: assessing cumulative impact’ notes that car parking (or lack thereof) is a consideration in relation to potential amenity impacts related to patron dispersal patterns. As no change is proposed, the patron dispersal patterns will also likely remain unchanged. The restriction on hours of operation and incorporation of a venue and patron management plan will ensure amenity impacts related to patron dispersal are acceptable.

· The proposal will impact road safety.

The serving of alcohol at the site will not impact upon the safety of the surrounding local road network. There will be no appreciable change to the volume of traffic generated by the proposal.

· Deliveries and rubbish collection will impact on the amenity of the area.

Deliveries and collection are not proposed to be changed. At present, there is no planning permit and associated conditions to regulate impacts related to waste. Should a permit be issued, a condition of the recommendation will require compliance with the venue and patron management plan. This plan notes:

‘Waste management procedures will continue to be carried out in the manner established under the existing use on site, including:

· Collection of waste by private contractors

· Frequency of collection as required

· Collection times must be between 8am – 5pm Monday-Friday

· Depositing of waste into the bin store must not be take place after 9pm

· Bins store must be kept clean and odour-free’

In addition, a condition of the recommendation regulates bottle bagging hours to be restricted to operation times and must not be emptied into the external refuse bins after 6pm or before 9am Sunday to Thursday or after 8 pm or before 8am on Friday and Saturday.

· The footpath is too narrow to allow outdoor seating.

The existing use benefits from an existing footpath trading permit for Barkly Street and Meredith Street. The proposed seating arrangement is consistent with the Street Trading permit that has considered the space to appropriately cater for outdoor seating.

10.3 A consultation meeting was held on 24 July 2023. The meeting was attended by a Ward councillor, applicants, objectors and planning officers.

10.4 Amended plans were submitted 16 April 2024 and 12 June 2024 in response to objections received. The plans included an acoustic report, development plans incorporating noise attenuation measures, a planning report and a patron management plan.

10.5 Notice was given of the amended proposal in accordance with Section 52 of the Planning and Environment Act 1987 by way of ordinary mail to the owners and occupiers of the two adjoining properties to the south and west of the site. The amended plans were also circulated to all objectors to ensure they were informed of the changes to the application.

10.6 At the time of writing this report, no further objections had been received.

10.7 The objections did not raise any matter of significant social effect under Section 60 (1B) of the Planning and Environment Act 1987.

11. OFFICER’S ASSESSMENT

11.1 In considering the proposal, regard has been given to the MPS and PPF, the objections received and the merits of the application.

11.2 The key issues that require assessment are:

· Control of the use of the land

· Is the proposal an acceptable response to the relevant planning provisions?

· Are the off-site amenity impacts acceptable?

· Are the buildings and works acceptable?

Control of the use of the land

11.3 The venue has long been established as a food and drink premises.

11.4 By way of separate application, the land owner as demonstrated that the use of the land has continued for a period of at least 15 years as a food a drinks premises. Council has issued a Certificate of Compliance confirming this use.

11.5 This is a broad right with no restrictions on how the food or drink premises operates (ie. hours of operation, patron numbers, waste management and the likes).

11.6 Council’s consideration for this application cannot fetter the right that exists.

11.7 Council’s scope of consideration in relation to use relates solely to the acceptability of the sale and consumption of liquor and whether any restrictions should be applied to this component of use.

Is the proposal an acceptable response to the relevant planning provisions?

11.8 The proposal is considered an acceptable response to the Planning Policy Framework. The application is supported by Councils vision as outlined in Clause 02.02 of the Municipal Planning Strategy that states Port Phillip will be a city that ‘is creative and prosperous with a dynamic economy that connects and grows business…’.

11.9 Clause 11 ‘Settlement’ recognises plannings role in contributing towards economic viability as well noting that planning is to prevent ‘amenity problems created by siting incompatible land uses together’. The introduction of a liquor licence at the site will support the ongoing viability of the business. The serving of alcohol aligns with the typical expectations of a food and drink premises that provides for serving of meals throughout the day and evening. Amenity impacts associated with the proposal are assessed in this report.

11.10 Clause 13.05-1S ‘Noise management’ seeks to assist in the management of noise effects on sensitive land uses through adopting strategies to minimise the impact on human health from noise exposure to occupants of sensitive land uses.

11.11 Clause 13.07-1S ‘Land use compatibility’ has strategies which aim to ensure that use of land is compatible with adjoining and nearby land uses. It seeks to avoid or otherwise minimise adverse off-site impacts from commercial, industrial and other land uses through land use separation, siting, building design and operational measures. As the site is located within a residential area it is important to consider the potential impact of the sale or consumption of liquor. Subject to conditions, noise impacts are considered acceptable. A noise impact assessment is contained further below.

11.12 Noise attenuation measures and conditions of permit will also ensure that the proposal is consistent with Clause 13.07-1L -04 Tourism, entertainment uses and licenced premises that seeks to minimise possible amenity impacts from licenced premises on the amenity of surrounding land uses.

Are the off-site amenity impacts acceptable?

11.13 Subject to conditions, off-site amenity impacts are considered acceptable. The non-residential nature of the site has been ongoing for many years. In considering the suitability of the proposal it is important to recognise the established existing use rights of the business. When considering amenity impacts, the key considerations relate to the change from a food and drink premises that does not serve liquor, to a food and drink premises that serves liquor.

11.14 A planning permit to allow the sale or consumption of liquor enables inclusion of conditions as they are related to impacts of serving of liquor. This has potential to reduce amenity impacts relative to the unrestricted use of the site that currently exists.

11.15 The proposal requires planning permission pursuant to Clause 52.27 ‘Licensed Premises’. Amenity impacts are required to be assessed under the provisions of this clause. Before deciding on an application under Clause 52.27, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

· The Municipal Planning Strategy and the Planning Policy Framework.

· The impact of the sale or consumption of liquor permitted by the liquor licence on the amenity of the surrounding area.

· The impact of the hours of operation on the amenity of the surrounding area.

· The impact of the number of patrons on the amenity of the surrounding area.

· The cumulative impact of any existing licensed premises and the proposed licensed premises on the amenity of the surrounding area.

Surrounding amenity impacts

11.16 A key amenity impact to consider is noise. This is particularly important given the surrounding residential context. Noise impacts would come from two primary sources - music noise and patron noise. These are assessed below.

Music Noise

11.17 As noted in Planning Practice Note 61 ‘Licences premises assessing cumulative impact’ the way music is played and the hours it is played can influence the level and type of alcohol consumption and potential to impact local amenity. Live music can typically result in greater off-site amenity impacts than background music. The venue will not include any live music. Music played will be at background levels in the building and rear courtyard.

11.18 The submitted acoustic report by Enfield Acoustics (‘acoustic report’) assessed the impacts of background level music on the closest residential properties. The acoustic report concludes that subject to their recommendations for acoustic treatments, background music would be acceptable.

11.19 To ‘mitigate against any risk of adverse music noise impacts and to implement correct managerial controls’, the report also recommends that the rear courtyard amplification system is calibrated by a suitably qualified acoustic consultant to comply with the Environmental Protection Regulations 2021 (EP Regulations) and Publication 1826: Noise Limit and Assessment Protocol for the control of noise from commercial, industrial and trade premises and entertainment venues, published by the Environment Protection Authority (Noise Protocol). The recommendation includes a condition to implement the acoustic recommendations that are contained within the Acoustic Report.

11.20 In addition, a condition in the recommendation requires ongoing compliance with the Noise Protocol.

Patron noise

11.21 The acoustic report completed patron noise testing on site and computer modelling to assess noise impacts to the closest residential properties. This included analysis of the proposed hours and number of patrons within the rear courtyard and on Barkly and Meredith Street.

11.22 The application states that a maximum of 100 patrons would be on site. The provided redline plan indicates the following seating arrangement:

· Footpath trading area – 20 seats

· Internal café seating – 16 seats

· Covered area – 30 seats

· Uncovered area – 10 seats

· Total seats – 76 patrons

11.23 As the EPA Noise protocol does not control patron noise, the report uses noise targets from City of Yarra ‘Guidelines – Managing Noise Impacts in Urban Development’. While these targets do not apply to City of Port Phillip, in the absence of patron noise targets, the acoustic report uses these as an example of what would be considered reasonable.

11.24 The acoustic report concludes that subject to construction requirements related to the type, height and material of acoustic fencing/roofing/screening, patron noise from the courtyard would be acceptable. A condition of the officer recommendation requires that prior to the sale and consumption of liquor, written notification from a suitably qualified acoustic consultant must be provided confirming that the construction complies with the acoustic report specifications.

11.25 In relation to noise impacts from patrons at tables and chairs on Meredith Street and Barkly Street the acoustic report concludes that impacts would be acceptable. This is subject to Meredith Street trading closing no later than 6pm with maximum 8 patrons and Barkly Street trading closing no later than 9pm with a maximum 12 patrons (consistent with the street trading requirements).

11.26 When considering the type of use, the nature of the existing business, and other management conditions proposed, it is considered that the acoustic report findings, except for opening hours to 11pm, are appropriate.

11.27 While the 7am opening time reflects the existing morning coffee/breakfast trade and is considered reasonable, allowing the use to operate until 11pm from Thursday to Sunday is considered too late. This is because of the residential nature of the surrounding area. The introduction of the liquor licence increases the likelihood of additional noise from patrons. A condition reducing the closing time to 10pm from Thursday to Sunday is considered appropriate as well as reducing the trading for the Barkly Street area to 6pm on a Sunday. This is included in the officer recommendation.

Amenity impacts related to sale or consumption of liquor and the type of use

11.28 The primary function of the business is the provision of meals to seated customers. The application to allow the provision of alcohol does not intend to change the way the site is used. It is well established that the type of use can significantly impact likelihood of intoxicated patrons. For example, a ‘bar’ that incorporates little seating and does not provide meals is more likely to result in excessive drinking and greater noise and behaviour impacts. Premises that serve meals with a high seating ratio is likely to have less excessive drinking and associated amenity impacts. Conditions of the recommendation will require that the primary use of the business remains akin to a restaurant and not a bar by requiring provision of meals remaining the primary function of the business and that tables and chairs are set out for at least 75% of patrons present on the premises at any one time.

Venue and patron management plan (VPMP)

11.29 The applicant has provided a VPMP which outlines measures to mitigate amenity impacts. The plan includes:

· Up to eight staff would be working at the site with a manager present at all times.

· All staff will have Responsible Serving of Alcohol Accreditation.

· Signage at entries and exists to remind patrons to respect local residents when leaving the site.

· Requirement for a complaint register recording complaints and actions undertaken to address the complaint. The register would be required to be made available to Council upon request.

11.30 A condition of the officer recommendation requires submission of an amended VPMP that is consistent with conditions in the officer recommendation in relation to hours of operation and patron numbers.

11.31 No security would be employed. This is considered acceptable as this is not typically required for café/restaurants, particularly given the restricted hours in the recommendation.

Cumulative Impact Assessment

11.32 Council is required to consider the cumulative impact of any existing licensed premises in the areas and the proposed licensed premises.

11.33 Planning Practice Note 61 - Assessing Cumulative Impact (PPN61) provides guidance on cumulative impact assessments. PPN61 states that the guidelines may be used for any planning application that would benefit from their use; however, they should be used for all applications for a new or expanded licensed premises that:

1. will be licensed and open after 11pm; and

2. is in an area where there is a cluster of licensed premises

11.34 A cluster is defined as three or more licensed premises (including the proposed premises) within a radius of 100 metres from the subject land, or 15 or more licensed premises (including the proposed premises) within a radius of 500 metres from the subject land.

There are no licenced premises within a 100m radius of the subject site.

11.35 Within a 500m radius, there are 3 licenced premises, comprised of:

· 1 restaurant and café – Riva St Kilda

· 1 limited licence – Starwall Holdings

· 1 on-premises licence – St Kilda Marina

11.36 Therefore, the site is not located within a cluster of licensed premises. The premises also would not be open after 11pm and therefore it is considered that a cumulative impact of the three nearby licence premises is negligible.

Are the buildings and works acceptable?

11.37 The proposed works will not impact the heritage significance of the subject site and is an acceptable response to the Heritage Overlay.

11.38 The application seeks minor buildings and works which will have limited impact on the appearance of the site, and no impact on any of the features of the original heritage building. All the works proposed are related to the existing covered rear courtyard and Meredith Street boundary fence. The application was referred to Councils Heritage Advisor who did not object to the proposal.

11.39 The fence is acceptable in relation to the Special Building Overlay. The application was referred to Melbourne Water as the relevant floodplain management authority who did not object to the proposal.

12. COVENANTS

12.1 There is no restrictive covenant on the titles for the subject site known as Lot 1 of Title Plan 583458G.

13. OFFICER MATERIAL OR GENERAL INTEREST

13.1 No officers involved in the preparation of this report have any material or general interest in the matter.

14. OPTIONS

14.1 Approve as recommended

14.2 Approve with changed or additional conditions

14.3 Refuse - on key issues

15. CONCLUSION

15.1 The application is an acceptable response to objectives and decision guidelines of the relevant provisions of the planning scheme. The proposal will support an existing established business. Subject to conditions outlined in the recommendation, the use will not result in an unreasonable impact on the surrounding residential area.

15.2 It is recommended that Council issues a Notice of Decision to Grant a Planning Permit

ATTACHMENTS

1. Objectors Map⇩

2. Plans⇩

3. Planning report⇩

4. Acoustic Report⇩

5. Patron management plan⇩

6.2	Statutory Planning Delegated Decisions - July 2024
Executive Member:	Brian Tee, General Manager, City Growth and Development
PREPARED BY:	Paul Wood, Manager City Development