REPORT TO Development Assessments Committee ITEM NO. 2.1.1 T… · 2013. 5. 1. · Mornington Peninsula Shire Council 1 REPORT TO Development Assessments Committee ITEM NO. 2.1.1

Mornington Peninsula Shire Council 1

REPORT TO Development Assessments Committee ITEM NO. 2.1.1

MEETING DATE Monday, 31 January, 2011

SUBJECT Application to Amend Planning Permit P97/1029.02 – T’Gallant Cellar Door and Restaurant, 1385 Mornington-Flinders Road, Main Ridge

PREPARED BY Sotirios Katakouzinos, Project Coordinator – Integrated Planning

AUTHORISED BY Manager – Statutory Planning

ATTACHMENT(S) YES

Application No. P97/1029.02 Proposal Increased seating, buildings and works, road access. Melway Reference 190E12 Zoning Green Wedge Zone – Schedule 1 Applicant Foster’s Group Ltd Date Received 17 September, 2010 EXECUTIVE SUMMARY Proposal Amend Planning Permit P97/1029 issued on 7 October, 1997 to obtain

approval to include additional restaurant patrons, reduced car parking requirements, external intersection works, alteration to liquor licence service area and building alterations.

Zoning and Overlays • Green Wedge Zone – Schedule 1 (GWZ1), abuts Road Zone – Schedule 1 (RDZ1);

• Significant Landscape Overlay (SLO) – Schedules 1, 3 and 6; • Environmental Significance Overlay (ESO) – Schedules 10, 17, 28; • Vegetation Protection Overlay – Schedule 2 (VPO2); and • Erosion Management Overlay – Schedule 1 (EMO1).

Permit Triggers • Clause 35.04 (GWZ); • Clause 42.01 (ESO); • Clause 42.03 (SLO); • Clause 44.01 (EMO); • Clause 52.06 (Car Parking); • Clause 52.27 (Licensed Premises); • Clause 52.29 (Land Adjacent to Road Zone); • Clause 52.34 (Bicycle Parking); • Clause 57 (Metropolitan Green Wedge Land); and • Clauses 63.05 and 63.08 (Existing Uses).

Development Assessments Committee Meeting – Monday, 31 January, 2011 Application to Amend Planning Permit P97/1029.02 – T’Gallant Cellar Door and Restaurant, 1385 Mornington-Flinders Road, Main Ridge ITEM NO. 2.1.1


EXECUTIVE SUMMARY (CONT’D) Advertising The amendment application was advertised by notices sent to adjoining

property owners and occupiers, notices erected on the site and a notice in the local newspaper. The advertising period concluded on 14 December, 2010.

Submissions Four written objections have been received and are summarised in the report. Copies of the objections included in Confidential Attachment 2.

Consultation No Planning Application Conference held on this application. Key Issues Compliance with Planning Scheme, amenity, environmental impact and

traffic management. Recommendation The application to amend the planning permit is refused.

OFFICER DIRECT OR INDIRECT INTEREST No person involved in the preparation of this report has a direct or indirect interest requiring disclosure. BACKGROUND The Council unanimously adopted the following recommendation at the Development Assessments Committee Meeting held on 17 August, 2009: “ That the Council notifies the Principal Registrar of the Victorian Civil and Administrative

Tribunal that in relation to Planning Application P97/1029.01 and Application for Review P1006/2009 that Council would refuse the amendment of the planning permit in manner sought by the Applicant on the basis that: • The proposal fails to address the requirements of the Planning Scheme in relation to

Wastewater Management. A Land Capability Assessment which clearly demonstrates that the land is capable of taking the treated wastewater has not been provided;

• The proposal fails to properly assess its car parking needs and adequately provide for

onsite car parking. The proposal will result in a continuation of dangerous parking on the Mornington-Flinders Road during busy times;

• The proposal fails to adequately address the Noise Management issues which have been

identified. It does not provide Council with confidence that noise escape and loss of amenity will not continue to be an issue. The design and construction of the development should be amended to ensure that noise generated by the uses is retained within the site; and

• The proposal is contrary to the provisions of the Green Wedge Zone, Clause 57 and the

planning policies and provisions identified in this report and the report of 20 April, 2009.”



BACKGROUND (CONT’D) In turn, when the matter was reviewed by the Victorian Civil and Administrative Tribunal (VCAT) in Fosters Group Ltd v Mornington Peninsula SC (Red Dot) [2010] VCAT 104, VCAT decided at paragraphs 173-175 of the decision: “ Conclusions about Planning Merits

173. We are not persuaded that the proposal, due to its scale and intensity, could comfortably co-exist with the rural character and activities of this locality.

174. A facility accommodating up to 274 patrons, with provision for functions/celebrations,

serving of alcohol and the playing of amplified music is a marked departure from the hobby farms, rural residential living and agricultural land uses that prevail in the surrounding area. That is not to say that a restaurant and/or function centre is not permissible on land within the GWZ. These uses are clearly contemplated by the provisions of the GWZ, albeit with restrictions on land size and patron numbers. Each case must, however, be assessed on its merits. The context of properties within the GWZ can vary from site to site. Some sites may well lend themselves to a greater intensity of use than others. Some sites with existing use rights may well be able to have their permits amended to a greater extent than others. But in this location, the rural context demands a more moderate scale of operation than is proposed. The proposal as it currently stands will detract from the character of this area, with consequential adverse impacts on the amenity of the neighbouring and nearby properties.

175. We therefore conclude that the permit should not be amended to allow an increase in

patron numbers for the restaurant to 274 or the proposed buildings and works and consequential changes to car parking and road access.”

VCAT also made a number of declarations pursuant to Section 149B of the Planning and Environment Act 1987. It is worth repeating these here as they will assist Council in deciding upon the current planning permit amendment application. VCAT’s declarations are: “ • Permit TP97/1029 for restaurant use can be amended to increase patron numbers from

60 to 274 under a Section 72 Application; • The permit cannot be amended to include the new use of a function centre; • The use of function centre could be considered as an alternative, but not additional, use

pursuant to a permit application under Clause 63.08 of the Mornington Peninsula Planning Scheme;

• There is no difference in the way that a permit can be amended lawfully under either

Sections 72, 87 or 87A of the Planning and Environment Act 1987, in terms of the type of amendments that may be made;

• The permit can be amended to include permission to waive or to vary car parking under

Clause 52.06 of the Mornington Peninsula Planning Scheme; and • The permit can be amended to create or alter access to a road in a Road Zone Category 1

under Clause 52.29 of the Mornington Peninsula Planning Scheme.”



BACKGROUND (CONT’D)

Figure 1 – Locality Plan and Subject Site See Attachment 1 for the Locality Plan. OBJECTIONS Four written objections were received. None are adjoining land owners or occupiers. The grounds of objection can be summarised as follows: 1. Support the current 60 seat limit remaining. 2. Proposal is inconsistent with Green Wedge rules. 3. A new application for the same proposal would be rejected in the GWZ. 4. T’Gallant no longer produces wine on the property, thus the connection between the restaurant

and the land is lost. 5. The proposed wastewater treatment plant is designed for the numbers in the planning

application and not the actual numbers experienced on site, therefore it will not be suitable. 6. Lack of on site parking and overflow of vehicles onto roadside verge and roadside.



OBJECTIONS (CONT’D) 7. Leasing of 40 hectares does not qualify as satisfying the 40 hectare requirement in the Planning

Scheme. 8. Patronage exceeds 300 persons during busy days of summer. 9. Land Capability Study is required for wastewater treatment element. 10. Contamination of Manton Creek by inappropriately designed wastewater system. 11. Impact of precedent if approved. 12. Noise disturbance from outdoor restaurant and liquor area. 13. Breaches of current planning permit. 14. Functions and noise associated with extended trading hours. PLANNING SCHEME PROVISIONS Both Clause 57.01-3 and Clause 63 require any assessment of this application to be undertaken by looking at the existing restaurant use of the site, as a use of the land, which is now prohibited by the Planning Scheme. Assessment Under Clause 63 Planning Schemes are subordinate legislation and control the use and development of land. They are created under planning legislation enacted by Parliament. Planning permits are a form of consent granted under a Planning Scheme and planning legislation. Therefore a planning permit cannot grant permission that is broader or inconsistent with the Planning Scheme. A Planning Scheme cannot go beyond the powers it is granted as a subordinate instrument of the planning legislation. As Planning Schemes change over time to reflect the policies of Government, many uses which commenced lawfully, may be as a consequence of changes in policy, become uses which are prohibited or subject to new constraints. In Victoria, limited legislative protection is granted to lawfully established existing uses, which become non-conforming with changed Planning Schemes. This protection is expressed through Section 6(3) of the Planning and Environment Act 1987 (the Act). Clause 63 of all Victorian Planning Schemes also contains provisions which apply to existing uses. The restaurant use established at the subject site is now prohibited by the Planning Scheme. This is by virtue of the site being less than 40 hectares required under the GWZ and Clause 57 of the Planning Scheme. The restaurant use commenced lawfully under Planning Permit TP97/1029, issued on 7 October, 1997. Planning Permit TP97/1029 described what it allowed as: “ Use of an existing building as a restaurant in association with wine tasting and cellar door

sales in accordance with the endorsed plans.”



PLANNING SCHEME PROVISIONS (CONT’D) Assessment Under Clause 63 (Cont’d) The permit was issued under the Flinders Planning Scheme. The Flinders Planning Scheme was replaced by the Mornington Peninsula Planning Scheme on 6 May, 1999. Although the new Planning Scheme changed the zoning of the subject land, it did not change the need for a planning permit to conduct a restaurant use on the subject land. Thus the planning permit remained current, until the Planning Scheme was amended to prohibit the use of the subject land for the purposes of a restaurant. Amendment VC22 to the Planning Scheme was gazetted on 24 November, 2003 and introduced the GWZ. It provided that a restaurant use was subject to a planning permit and must meet the following conditions: “ Must be used in conjunction with agriculture, outdoor recreation facility, rural industry, or

winery:

• The number of patrons present must not exceed: – The number specified in a schedule to the Zone; and

– If no number is specified, 150 patrons.

• If used in conjunction with function centre, the total number of patrons present at any

time must not exceed:

– The number specified in a schedule to the Zone; and – If no number is specified, 150 patrons.”

It is important to understand that Parliament, in approving the amendment to the Planning Scheme, contemplated that any restaurant which sought to operate with a number greater than 150 could only do so if a schedule allowed a greater number. Such a change to a schedule could only be undertaken through the Planning Scheme Amendment process, which ultimately concludes with approval of the amendment by Parliament. Amendment VC22 did not prohibit the restaurant use on the subject land as the restaurant use was occurring in conjunction with use of the land for wine tasting and cellar door sales. The land was also being used as a winery under Planning Permit P95/1376 which had been issued on 21 August, 1995. Amendment VC43 to the Planning Scheme was gazetted on 31 October, 2006. It introduced a minimum lot size of 40 hectares for certain uses in the GWZ, including a restaurant and function centre. Therefore, the use of the subject land for a restaurant became prohibited with the gazettal of Amendment VC43 on 31 October, 2006. This is the date when the restaurant use could only continue on the land under the ambit afforded by Section 6(3) of the Act and Clause 63 of the Planning Scheme.



PLANNING SCHEME PROVISIONS (CONT’D) What was the Purpose of this Change in Government Policy and Planning Scheme Provisions? The approved documentation for the amendment states that the amendment is required to: “ Ensure the nature and scale of uses in Green Wedge areas do not conflict with Green Wedge

Policy by:

• Ensuring that the use of land for function centre, group accommodation, research and development centre, research centre, residential building, residential hotel and restaurant is of a scale appropriate to Green Wedge areas and that these uses have an essential association and a genuine, close and continuing functional relationship to the non-urban use of the land.”

The documentation also states under the heading ‘Environmental, Social and Economic Effects’: “ The amendment will have positive environmental, social and economic effects by helping to

protect the landscape, agricultural, tourism and recreational elements of Green Wedge areas. The amendment will assist in preserving the diversity and liveability of Melbourne by protecting the city’s rural environment and supporting policies for a more compact city. In addition, by placing stronger, more consistent controls on use and development in Green Wedges, Amendment VC43 provides greater environmental, social and economic certainty for Green Wedge land.”

Notably from 31 October, 2006, the T’Gallant Restaurant (and others in similar situations) were now contrary to Government policy expressed through the Victoria Planning Provisions. They could only continue to operate under the protection of Section 6(3) of the Act and Clause 63 of the Planning Scheme, if the requirements of these provisions were met. Planning Permit TP97/1029 no longer formed the basis for using the land. Clause 63.01 of the Planning Scheme (Existing Use Provisions) states: “ An existing use right is established in relation to use of land under this scheme if any of the

following apply:

• The use was lawfully carried out immediately before the approval date; • A permit for the use had been granted immediately before the approval date and the use

commences before the permit expires; • A permit for the use has been granted under Clause 63.08 and the use commences before

the permit expires; • Proof of continuous use for 15 years is established under Clause 63.11; or • The use is a lawful continuation by a utility service provider or other private body of a

use previously carried on by a Minister, Government department or public authority, even where the continuation of the use is no longer for a public purpose.”



PLANNING SCHEME PROVISIONS (CONT’D) What was the Purpose of this Change in Government Policy and Planning Scheme Provisions? (Cont’d) Approval date is a defined term in Clause 72 of the Planning Scheme: “ The date this Scheme began, or the date of notice in the Victoria Government Gazette of

approval of an amendment to this Scheme.” Thus 31 October, 2006 is the relevant approval date for which the T’Gallant restaurant was lawfully carried out. Satisfying the first dot point appears on the surface to be adequate. The restaurant use is the approved restaurant use, which has a limit of 60 seats and other conditions attached to it. Turning to Clause 63.05, which deals with uses that are now prohibited, or subject to a planning permit, three tests need to be satisfied for an existing use to continue. Clause 63.05 states: “ 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; and

• 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.” The first dot point simply means that all buildings and works undertaken on the land that is used for an existing use, which does not conform to the Planning Scheme, are subject to a planning permit. The second dot point means that conditions that restricted a use, whether contained in a planning permit, or in the Planning Scheme, continue to apply, even though the planning permit or Planning Scheme under which the use was established no longer is the legal instrument under which the use can continue. The endorsed plans under the planning permit can also describe the extent of any restrictions. The third dot point is a significant test. Bearing in mind that a change to the Planning Scheme which results in a use no longer conforming with the Planning Scheme, usually arises where Government policy deems the subject use to be detrimental to the amenity of the area, then it is appropriate to see that the flexibility to allow for a change in activities is moderated by the amenity test. Amendment VC43 certainly seeks to reduce conflicts between potentially incompatible land uses in the Green Wedge. The conflicts often arise from detrimental amenity impacts. It follows that in assessing the planning merits of this planning application, Council must decide whether the use being changed is consistent with Government policy as expressed in the Planning Scheme.



PLANNING SCHEME PROVISIONS (CONT’D) What was the Purpose of this Change in Government Policy and Planning Scheme Provisions? (Cont’d) An overarching principle of non-conforming uses, or uses that are reliant on existing use protection, is that eventually over time the use of the land should be brought into conformity with the Planning Scheme. The expectation and aspirations of the community, as expressed through Government policy and through the Planning Scheme will be realised, while the former non-conforming use of the land makes the eventual transition into a conforming use. This planning application seeks to not only continue with the existing non-conforming use, but to extend the intensity of that use to a level which is otherwise prohibited by the Planning Scheme. Since 23 May, 2005, changes to Section 72 of the Act now allow: “ 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.” The Applicant has applied under this Section of the Act to amend the 1997 permit for the restaurant use. It is worth noting that Deputy President Gibson has made a declaration that there is no legal barrier to amending the existing planning permit to allow for numbers exceeding those specified in the Planning Scheme. Arguably this is a shortfall in the legislation, where such a constraint is not made explicit. This barrier however applies in other cases such as under Clause 63.07 (Compliance with Codes of Practice for Existing Uses) where: “ A use for which an existing use right is established must comply with any relevant Code of

Practice incorporated in this Scheme if either:

• The instrument of approval of the Code of Practice has been ratified by Parliament in accordance with Section 55 of the Conservation Forests and Lands Act 1987; and/or

• The Code of Practice is approved or ratified by Parliament under an Act.”

This means that existing use rights may be removed by a Code of Practice adopted in a Planning Scheme, provided the Code of Practice has been ratified by Parliament. What is the Ambit of the Currently Approved Restaurant Use? The area defined and shown as the restaurant area on the endorsed plans has been expanded. The expanded area was inspected by Council officers and comprises an area adjacent to the cellar door. A visual inspection of the premises indicates that what is on Council endorsed plans for the restaurant use, does not accord with what is occurring on the subject site. Condition 10 of Planning Permit P00/2232 states:

“ Unless with the permission of the Responsible Authority, not more than 60 seats must be

provided for patrons of the approved restaurant use. This includes any seating provided outdoors. After 5:00 p.m. no more than 60 seats must be provided to patrons of the restaurant.”



PLANNING SCHEME PROVISIONS (CONT’D) What is the Ambit of the Currently Approved Restaurant Use? (Cont’d) The plan endorsed on 10 July, 2002 shows an existing restaurant area dimensioned 8 metres by 14 metres, and a separate covered outdoor area dimensioned at 9 metres by 9 metres. The plan contains the following relevant notes which read: “ ● Combined restaurant and covered outdoor seating retained at 60 maximum for extended

hours of operation;

• Wine tasting area and restaurant to remain open concurrently at extended hours to retain direct link;

• Restaurant to continue to only sell its own product wines; and • Restaurant building floor area approximately 120 square metres to remain.”

Condition 10 was included in the permit after being reviewed by VCAT (P50504/2001). VCAT’s decision provides useful contextual remarks. At paragraph 35, VCAT: “ … considers that the restaurant has strong and demonstrable links to the wine production on the site, not only from the tasting of its wines and sales of its wines available on the site but also due to the availability of wine produced from grapes grown on the property (or in the area) to restaurant patrons.” At paragraphs 41 and 42: “ 41. Council is concerned that the proposal for 60 seats during the extended hours amounts to

‘incrementalisim’ and the transformation of the wine tasting and snacks adjunct into a day time restaurant and thence into a rural restaurant with commercial operating hours.”

42. Nevertheless that basic linkage has been shown and the Tribunal notes that the Applicant

requires the additional seating ‘as it is not economical or appropriate to manage less than 60 seats at night’ and unless unacceptable loss of rural amenity is to result, the application should be granted. Loss of rural amenity has not been demonstrated.”

In granting the sought after 60 seats, VCAT was not satisfied that a loss of rural amenity had been demonstrated. VCAT made the point that the approval should not be granted if an unacceptable loss of rural amenity would result. What is the Current Situation? T’Gallant provided a useful guide to how it manages its restaurant and cellar door space from its own information brochure, accessed from its website: • ‘La Baracca Trattoria’ (‘The Shed’) offers the following numbers:

– Cocktail: 180; – Banquet: 90; and

– Long Table: 80.



PLANNING SCHEME PROVISIONS (CONT’D) What is the Current Situation? (Cont’d) • ‘Spuntino Bar’ is marketed as providing undercover informal dining:

– Cocktail: 100; and – Banquet: 90.

• ‘Chamber One’ is defined as a purpose built meeting place with fixed plasma screen, suitable for meetings or conferences:

– Cocktail: 70; – Banquet: 60; – Theatre: 60; and – Classroom: 50.

• T’Gallant Cellar Door:

– Cocktail: 60; – Banquet: 40; and – Long Table: 30.

The scale and intensity of use contemplated by VCAT in 2002, and allowed under the relevant planning permits, is certainly not the same as is currently occurring on the land. It is arguable that the conferences and functions at the site have not been occasional or ancillary to the restaurant use. The owner has actively marketed the premises with conference and wedding market segment in mind. A more recent viewing of the website shows numbers have been reduced to 60. The proposal, as described at page 16 of the supporting documentation by Watsons (see Attachment 6), sets out the amendments to permit TP97/1029: 1. Permit restaurant use with maximum permitted restaurant seating to 150 patrons for daytime use

and 110 patrons for night time use. 2. Impose a patron limit of 40 patrons at any one time within the wine sales and tasting area and

limited to daytime use. 3. Require the use of outdoor areas to cease at 8:00 p.m. 4. Permit onsite car parking for 117 spaces and improve the function of the car parking areas and

internal access areas.



PLANNING SCHEME PROVISIONS (CONT’D) What is the Current Situation? (Cont’d) 5. Undertake upgrades to Mornington-Flinders Road to improve safety and the function of

Mornington-Flinders Road. 6. Undertake minor building additions and the internal re-arrangement of areas within the existing

building complex, including the inclusion of adequate and easily accessible toilets. 7. Upgrade the wastewater disposal system on the site. 8. Alter the approved area for the service and consumption of liquor on the site. On policy grounds the proposed increase in seating from 60 seats to 150 seats is not supported. The Green Wedge provisions contained in both Clause 35.04 and Clause 57 are clearly intended to cap patron numbers for any site to not more than 150. In Jinalec Park PL v Mornington Peninsula SC [2007] VCAT 1238, Deputy President Gibson examined the history of Clause 64.02 – Land Used in Conjunction with Another Use. At paragraphs 11, 12, and 13 VCAT provides the following background:

“ 11. Conditions requiring that certain uses of land must be used in conjunction with other

uses of the land have been included in the Victoria Planning Provisions since their introduction. Clause 64.02 was introduced into the Victoria Planning Provisions and all Planning Schemes in Victoria by Amendment VC43 on 31 October 2006. In addition to the introduction of Clause 64.02, Amendment VC43 made certain other changes to the Green Wedge provisions. The explanatory report for Amendment VC43 describes what the amendment does in the following terms (so far as relevant):

• Making changes to the Green Wedge provisions by:

– Amending the GWZ, the GWZ and the Rural Conservation Zone (in

metropolitan Melbourne) to introduce a new provision regarding long term leases/licenses of land for Accommodation (Clauses 35.04, 35.05 and 35.06);

– Introducing a minimum lot size for certain uses in the GWZ, Green Wedge A

Zone and Rural Conservation Zone in metropolitan Melbourne (Clauses 35.04, 35.05 and 35.06); and

– Introducing a condition in the table of uses to the GWZ, that Materials

recycling and Refuse transfer station ‘must not include the recycling, storage, collection or selling of used or scrap construction and demolition materials’ (Clause 35.04).

• Introducing a new provision in Clause 64.02 – Land used in conjunction with

another use, to clarify the term ‘in conjunction with’ regarding the association between two uses.

12. In the context of strategic assessment of Amendment VC43, the explanatory report

provides as follows (so far as relevant).”



PLANNING SCHEME PROVISIONS (CONT’D) What is the Current Situation? (Cont’d) Why the Amendment is Required? The amendment is required to: “ • Ensure the nature and scale of uses in Green Wedge areas do not conflict with Green

Wedge policy by:

– Ensuring that the use of land for function centre, group accommodation, research and development centre, research centre, residential building, residential hotel and restaurant is of a scale appropriate to Green Wedge areas and that these uses have an essential association and a genuine, close and continuing functional relationship to the non-urban use of the land; and

– Restricting the use of land for material recycling and refuse transfer station to

composting and the like.

13. It is relevant to note that the strategic assessment of the amendment focuses on Green Wedge areas in the context of ensuring that the nature and scale of uses in Green Wedge areas do not conflict with Green Wedge Policy, although Clause 64.02 is not confined in its operation to Green Wedge areas. As seen from the table in Appendix A, it also applies to other uses and in other Zones.”

VCAT also examined the issue of scale and at paragraphs 64 to 74. At paragraph 68, VCAT stated: “ I consider that the disproportion between the scale of the secondary use compared to the scale

of the primary use in some of the cases decided prior to the Amendment VC43 was part of the ‘mischief’ the amendment was attempting to redress.”

COMMENTS OF STRATEGIC PLANNING UNIT Issues

Consideration of the Planning Scheme’s State and Local Planning Policy Framework (LPPF) together with the Shire’s Strategic Work Program raises the following key strategic issues.

What is the Relevant Planning Scheme Policy?

The most relevant provisions of the State Planning Policy Framework (SPPF) are considered to be:

• 10.02 Goal:

The SPPF seeks to ensure that the objectives of planning in Victoria (as set out in Section 4 of the Planning and Environment Act 1987) are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development.

Development Assessments Committee Meeting – Monday, 31 January, 2011 Application to Amend Planning Permit P97/1029.02 – T’Gallant Cellar Door and Restaurant, 1385 Mornington–Flinders Road, Main Ridge ITEM NO. 2.1.1


COMMENTS OF STRATEGIC PLANNING UNIT (CONT’D)

Issues (Cont’d) What is the Relevant Planning Scheme Policy? (Cont’d) • 10.02 Goal: (Cont’d)

The objectives of planning in Victoria are: a. To provide for the fair, orderly, economic and sustainable use, and development of land. b. To provide for the protection of natural and man-made resources and the maintenance of

ecological processes and genetic diversity. c. To secure a pleasant, efficient and safe working, living and recreational environment for

all Victorians and visitors to Victoria. d. To conserve and enhance those buildings, areas or other places which are of scientific,

aesthetic, architectural or historical interest, or otherwise of special cultural value. e. To protect public utilities and other facilities for the benefit of the community.

f. To facilitate development in accordance with the objectives set out in paragraphs a, b, c, d

and e.

g. To balance the present and future interests of all Victorians. • 11.01-2 Activity Centre Planning Objective:

To encourage the concentration of major retail, residential, commercial, administrative, entertainment and cultural developments into activity centres which provide a variety of land uses and are highly accessible to the community.

• 11.04-6 Green Wedges Objective:

To protect the Green Wedges of Metropolitan Melbourne from inappropriate development.

• 11.04-6 Green Wedges Strategies: – Ensure strategic planning and land management of each Green Wedge area to promote

and encourage its key features and related values; – Support development in the Green Wedge that provides for environmental, economic and

social benefits; – Consolidate new residential development within existing settlements and in locations

where planned services are available and Green Wedge area values can be protected; – Plan and protect major transport facilities that serve the wider Victorian community, such

as airports and ports with their associated access corridors;



COMMENTS OF STRATEGIC PLANNING UNIT (CONT’D)

Issues (Cont’d) What is the Relevant Planning Scheme Policy? (Cont’d) • 11.04-6 Green Wedges Strategies: (Cont’d)

– Protecting important productive agricultural areas such as Werribee South, the

Maribyrnong River flats, the Yarra Valley, Westernport and the Mornington Peninsula; and

– Protect areas of environmental, landscape and scenic value.

• Policy Guidelines. Planning must consider as relevant:

– Growth Area Framework Plans (Department of Sustainability and Environment 2006); – Melbourne 2030 (Department of Sustainability and Environment, 2002); and – Upper Yarra Valley and Dandenong Ranges Region – Regional Strategy Plan (1996).

• 17.03-1 Facilitating Tourism Objective:

To encourage tourism development to maximise the employment and long-term economic, social and cultural benefits of developing the State as a competitive domestic and international tourist destination.

• 17.03-1 Facilitating Tourism Strategies

– Encourage the development of a range of well designed and sited tourist facilities,

including integrated resorts, motel accommodation and smaller scale operations such as host farm, bed and breakfast and retail opportunities; and

– Seek to ensure that tourism facilities have access to suitable transport and be compatible

with and build upon the assets and qualities of surrounding urban or rural activities and cultural and natural attractions.

Policy Guidelines Planning must consider as relevant: • Planning and Building Tourism from Concept to Reality: Guidelines for Planning and

Developing Tourism Projects in Victoria (Tourism Victoria, 2000), in considering applications for tourist development; and

• Any relevant Regional Tourism Development Strategy. The relevant provisions of the Municipal Strategic Statement (MSS) can be extracted as: • Clause 21.09-3 maintaining and enhancing landscape, cultural and recreational values.



COMMENTS OF STRATEGIC PLANNING UNIT (CONT’D) Policy Guidelines (Cont’d) Objective 1 To maintain the recreational role of the Peninsula by protecting the qualities of its landscapes, natural environment and cultural heritage. Strategies • Give emphasis to outdoor and unstructured recreation, especially recreational activities that

promote understanding of, cultivate interest in, or are directly associated with rural pursuits, the land or coastal environments in their natural state;

• Promote appropriate recreational activities in non-urban areas particularly activities that are linked with the existing historic, agricultural, environmental and landscape features of the Peninsula;

• Encourage the provision of facilities which support the recreational role of the Peninsula, improve the ability to meet the demands of visitors and reduce the impact of recreational use on environmental systems and township areas;

• Encourage the provision of services and facilities for outdoor and unstructured recreation, including short term and home hosted accommodation, of a kind, scale and location appropriate to the natural and rural environment and the special role, heritage and character of the Peninsula;

• Acknowledge the role of State significant tourist and recreational facilities as an important part of the economic development of the Peninsula; and

• Ensure that the roads of the Peninsula are protected from inappropriate development and are maintained as a major landscape and recreational resource.

The most relevant Local Policy is Clause 22.07 Commercial and Industrial Uses in Rural Areas. Its objectives are: • To maintain permanent non-urban areas of high landscape value for a variety of recreational

activities and experiences and to support sustainable agricultural use of rural land;

• To prevent the establishment of use and development which would reduce the distinctive character of the Peninsula’s rural landscapes;

• To give emphasis to outdoor and unstructured recreation, especially recreational activities that promote understanding of, cultivate an interest in or are directly associated with rural pursuits the land or coastal environments in their natural state;

• To encourage tourism and recreation uses that minimize the adverse impacts on the amenity of local residents;

• To ensure that the roads of the Peninsula are protected from inappropriate development and are maintained as a major landscape and recreational resource; and

• To encourage the provisions of facilities which support the recreational role of the Peninsula.



COMMENTS OF STRATEGIC PLANNING UNIT (CONT’D) Policy Guidelines (Cont’d) Strategies (Cont’d) The most relevant aspects of this Local Policy from Clause 22.07-3 are: • Applications must be compatible and integrated with the primary land use on the site and that of

surrounding land. Large scale proposals, including restaurants for 40 or more persons or galleries or similar uses with a floor area greater than 100 square metres must be supported by site analysis and Design Response Plans. Restaurant proposals should demonstrate a clear link to the production of food or wine on the property, be associated with a significant recreational site or established tourism node or contribute to the conservation of buildings with heritage value; and

• Proposals for commercial and industrial development should be sited on lots with at least the minimum area required for the Zone, unless it is clearly demonstrated that the proposed use will have no significant negative impact on the landscape character of the area, the amenity of adjoining land owners or on the agricultural use of rural land. The Responsible Authority must consider whether the site has sufficient area and dimensions to provide and maintain a suitable buffer area.

It is relevant to note that Local Policy 22.05 – Advertising Signs, includes the following objective: “ To ensure that advertising signs do not detract from the amenity and streetscape /landscape

character of the surrounding area, particularly in sensitive and strategic landscape areas, residential areas and along main roads.”

Under the GWZ, a restaurant would be prohibited because of the under-sized land. It is considered that the landscape character of the Green Wedge is typified by the relative absence of signs and in particular the absence of illuminated signs and that this character should be reinforced by discouraging night time operations which would inevitably require such signs. Furthermore, the day time only operation of winery cellar door tastings and sales and restaurants is more consistent with the Policy Framework than night time operations in the sense that: • Visitors are significantly better able to appreciate the surrounding rural landscape;

• There is likely to be less adverse effects on the functioning of activity centres as restaurants in

these locations are more likely to focus on night time operations and have better and safer transport access; and

• There is greater opportunity to build the tourist economy when tourist facilities are open similar hours. For example, someone tasting wine at one winery could then move onto tastings at a nearby winery. Cellar door sales are commonly associated with daytime operations.



COMMENTS OF STRATEGIC PLANNING UNIT (CONT’D) Is the Proposed Intensification of the Use Sufficiently Consistent with the Existing Planning Policy Framework of the Planning Scheme to Warrant an Approval? The application of the GWZ is a key implementation measure for both State and Local Policy. The existing permitted use of the land (approved prior to the introduction of the GWZ) does not comply with the current Zone provisions to the extent that it provides for a restaurant on land of less 40 hectares. It is also understood that T’Gallant has significantly exceeded the 60 patron limit included in the existing permit. Whilst it may be technically possible for Planning Permit TP97/1079 to be amended to provide for this intensified use beyond the scope of that permissible within the use table of the GWZ, there are a number of concerns regarding any such approval. Given the application must be considered on its merits, a key factor is whether T’Gallant has been able to operate at this intensity without adverse impact on the surrounding rural ‘neighbourhood’. The purpose of the minimum site area requirement is in part to ensure commercial activities are well separated from adjoining properties – whether they are used for agriculture and/or rural living. The ‘track record’ of T’Gallant, particularly in terms of night time operation needs to be carefully considered.

While the Green Wedge Management Plan is still to be completed, it is reasonable to suggest that the second purpose of the minimum site area requirement in the GWZ is to ensure that commercial activities are at a scale and intensity that does not dominate the landscape and provides sufficient land for agriculture or conservation to be the dominant use. In effect, the commercial use should be used to ‘subsidise’ core Green Wedge activities – and therefore it is important that the largest commercial activities are linked to the ongoing management/maintenance of the largest sites. In this context, Council’s consideration of an appropriate policy for the ongoing operation of existing restaurants has recognised some need to allow for expansion, but not to the extent of a major transformation. The current thinking by the Strategic Planning Unit is a category system along the following lines:

• Existing wineries on 10 hectares or less – ancillary finger food only/day time operation/seating

for no more than 20/no separate kitchen;

• Existing restaurant on less than 20 hectares – seating for no more than 60-70 patrons/day time operation;

• Existing restaurant on greater than 20 hectares – seating for no more than 60-70 patrons/possible limited night time operation; or

• Existing restaurant on a site greater than 40 hectares – seating for up to 150 patrons – possible night time operation.

T’Gallant’s existing approval (of 60 patrons) would be consistent with this kind of approach i.e. providing for a tour bus load – and while a small increase up to 70 seats could be considered, it is not clear what justification is provided to go to the large scale of operation that is proposed – apart from an attempt to ‘grow the brand’.



COMMENTS OF STRATEGIC PLANNING UNIT (CONT’D) Is the Proposed Intensification of the Use Sufficiently Consistent with the Existing Planning Policy Framework of the Planning Scheme to Warrant an Approval? (Cont’d) The Applicants argue that:

• There is an expressed need for a restaurant with this capacity as demonstrated by its past

patronage; and

• T’Gallant has Regional, State, National and International recognition (page 6 of Watson’s supporting information).

The fact that the ‘demonstration’ of demand has been based on breaches of the existing permit conditions puts in some doubt the commitment to the proposed permit conditions. In any event, the fact that there is demand does not mean that it should be ‘captured’ by T’Gallant. The Green Wedge strategy in fact assumes that other larger sites which support more ‘core’ Green Wedge activities should have the opportunity to tap into this market. In addition, while T’Gallant has market recognition this is not necessarily dependent on the seating capacity of the restaurant – presumably it also has something to do with the quality of the wine. To use the discretion identified by VCAT to approve a virtual transformation of the use (from a medium scale activity to a large scale activity) would provide an unfair advantage for T’Gallant over the establishment of new uses which are compliant with the Zone provisions and it is considered that this would be inconsistent with the fairness advocated in Objective a) of the Objectives of Planning in Victoria (see Clause 10.02 of SPPF). There is considered to be no justification for such unfairness given that there is no underlying community need to support the expansion of the restaurant on this land as opposed to the establishment or expansion of a restaurant on other land in the GWZ. For example, there is no associated use having any unique regional agricultural or recreational significance (e.g. major golf course) for which there could be an associated community benefit. There would be a weakening of the Strategic Policy outcomes that the 40 hectare/150 patron provisions would normally bring, that is: • A rationing of the size of restaurants in the GWZ to protect the more efficient settlement pattern

supported by other policy in the Planning Scheme that directs restaurants to activity centres; and

• Better landscape and amenity protection within the GWZ through greater opportunities a 40 hectare lot would offer for both the prevention of potential off-site impacts and for visitors to enjoy the Green Wedge landscape (e.g. a walk through the property in association with their visit for dining or wine tasting purposes).

It is noted that the Applicant (page 7 of the Watson’s supporting information) states:

“ The success of the T’Gallant wine and food brand has led to increasing demand from visitors to

gain a greater understanding of the T’Gallant brand. Visitors to the site are looking for a broader experience than simply wine tastings, sales and a meal. Thus far, T’Gallant has responded to this demand in a limited manner but sees that this must be addressed in the future.”



COMMENTS OF STRATEGIC PLANNING UNIT (CONT’D) Is the Proposed Intensification of the Use Sufficiently Consistent with the Existing Planning Policy Framework of the Planning Scheme to Warrant an Approval? (Cont’d) The Green Wedge Management Plan in fact supports consideration of provision for special events, but this is regarded as a different issue to the ongoing operation of the site. Better opportunities a 40 hectare lot would offer, for the establishment of stronger linkages between the restaurant and the agricultural use that it is in conjunction with, including the opportunity: … “To encourage sustainable farming activities and provide opportunity for a variety of productive agricultural uses.” (one of the purposes of the GWZ) and to “… be compatible with and build upon the assets and qualities of surrounding urban or rural activities and cultural and natural attractions” (see second Strategy of SPPF 17.03-1 Facilitating Tourism). Would Approval of the Application Unreasonably Prejudice the Potential Outcome of the Green Wedge Management and Implementation Plan that is Currently Under Preparation?

At the Council meeting on 20 December, 2010 Council resolved to support the following draft action for exhibition as part of the Green Wedge Plan. Whilst the Planning Scheme Amendment is yet to be drafted it would seem likely that the scale of the current proposal – an expansion from 60 patrons to potentially 190 or more on a land area of approximately 15 hectares, as the first of its type, may well be inconsistent with any such amendment and that, if successful, other land owners may seek similar treatment in the Green Wedge Plan and so make it difficult to achieve general community ‘ownership’ of any such amendment.

14 PSR Exhibit Planning Scheme Amendment to provide

framework for consideration of applications for extensions/alterations to existing restaurants in the Green Wedge. The scale of operation should be in proportion to the size of the property and the extent of agricultural or conservation activity on the land. The amendment should establish categories based on the maximum number of patrons at any one time and hours of operation, and designate the category of each existing premises. Premises may expand within a category but not exceed the limits of that category.

2011-2012 INT/OP

STRATEGIC PLANNING UNIT RECOMMENDATION

In summary, the Strategic Planning Unit comments on the application are constrained to an assessment of the proposed land use (not the development component) and it is considered that the proposed use is inconsistent with the State and Local Planning Policy Framework. The Strategic Planning Unit recommends that these comments should be considered in conjunction with other matters (e.g. matters such as buildings and works, traffic and wastewater that have not been examined in the assessment by the Unit) to determine whether the proposal can demonstrate a net community benefit and sustainable development as sought in Clause 10.02 of the SPPF. Having said that there are however some issues raised that warrant a more holistic assessment as part of the Green Wedge Plan and any associated Planning Scheme Amendment. The Applicant is encouraged to participate in that process.



STRATEGIC PLANNING UNIT RECOMMENDATION (CONT’D) Another concern, albeit of a more statutory nature, is whether the proposed change to the preamble for the ‘restaurant and sale and consumption of liquor’ is by itself appropriate and sufficient to cover the proposed wine tasting and sales activity. The sale and consumption of liquor permit requirement under Clause 52.27 should perhaps be seen similar to advertising sign or car parking provisions rather than given status in its own right as a type of land use such as would normally be given in the context of a Zone Use Table. There may be an argument that it should complement a specified land use activity such as a restaurant, bottle shop or a winery. In this case, no winery or bottle shop are proposed. Comments of VicRoads The application was referred to VicRoads for comment in accordance with Section 55 of the Planning and Environment Act 1987. An inspection of the site was conducted by VicRoads officers in conjunction with Council officers on Wednesday, 12 January, 2011. VicRoads comments have not yet been received at the time of writing this report. CONSIDERATION The proposed amendment to the planning permit should be refused for a number of reasons set out in this report. Primarily, what is proposed by the Applicant remains a significant departure from the established State and Local Planning Policy for the Green Wedge. The policy as expressed in the mandatory 40 hectare and 150 patron requirements does not refer to land under management but lot size and patron limitations on the land. The recommendation to refuse the application is not in any way based on any judgement about the value of the T’Gallant business as a tourist destination, an employer or a contributor to the local economy. The recommendation is based upon a considered assessment of the conflicting nature of the proposal with the aims and objectives of the Green Wedge. The proposal has several shortcomings in the areas of traffic management, parking, impact on amenity and land management. The proposed dual access points to Mornington-Flinders Road are not supported by Council officers as an optimal solution. However, the southern egress point has an improved sight distance and sightline to the north compared to the northern access point. At the time of writing this report a joint site meeting had been held with VicRoads officers and Council Engineers to assess the proposed access arrangements and make recommendations to Council. Further details will be circulated prior to the Council meeting. Some observations include the potential for some native vegetation as well as non-native vegetation to be materially impacted by any necessary works. No parking should be allowed along either side of Mornington-Flinders Road from the Shands Road intersection to beyond the northern bend in Mornington-Flinders Road. Parking on the road reserve should also be prohibited and physical barriers installed to prevent such parking. The proposal to vary the car parking requirement is therefore not supported as any shortfall in car parking will result in patrons search for street parking which is considered an unsafe proposition. It would be better if a patron figure of the size being requested is approved, that such approved be based upon a trial period of 12 months whereby a lesser patron number is initially approved, to match the required number of car spaces, and if it is then demonstrated to the satisfaction of the Responsible Authority that there are surplus car parking spaces available on the site, then a commensurate increase in the number of patrons can be approved under the permit condition.



CONSIDERATION (CONT’D) A total 117 car parking spaces are proposed to be provided onsite, to both the north and south of the main building. At a rate of 0.6 car spaces per seat or person, this would provide enough car parking for 195 persons. T’Gallant is proposing a total of 190 patrons and 20 staff. Acknowledging that each staff member is likely to arrive by their own vehicle, this leaves 97 car spaces available for patrons, which equates to 162 patrons at the 0.6 rate. The Traffix Group Report (see Attachment 5) notes at page 12 that at 1:30 p.m. on Sunday, 14 September, 2008, the peak number of patrons and parked cars onsite was observed, being 265 patrons and 124 cars. The operators of this site have failed to observe the limitations on numbers provided for in the restaurant permit issued at the direction of a previous Tribunal. The prospect that the limitations imposed in any amended permit would be observed needs to be supported by a suitable commitment by the owners and operators to VCAT and the Responsible Authority, (as well as to the community). This is certainly a case where a performance bond is warranted and should be required as part of any conditions included in the granting of an amended permit. The performance bond must be of a non-revocable nature such as a bank guarantee or cash payment to the Responsible Authority for a period of at least three years and the amount should be not less than $60,000. The Traffix Group Report at pages 17-18 sets out details from the Venue Operations Management Plan (see Attachment 7) which Fosters Group has developed for the site in relation to car parking and provides the following: “ ● Staff may only enter and leave the site by the main (northern) access. The southern

access is reserved for vineyard staff and delivery/pick ups. The southern access gate must be closed on weekends and public holidays;

• Staff must only park in the staff parking areas adjoining the vineyard machinery shed; • All staff must observe ‘No Talking’ when returning to cars and leaving premises after

dark. Cars must be driven from venue in a manner that minimises noise to our fantastic neighbours;

• Maximum car parking capacity is 117 cars (staff and patrons) in across both front and

rear car parks; • For evening dinner service, patrons are only permitted to park in the northern (main) car

park; • On summer weekends, Public Holidays or when large patron numbers are anticipated,

managers are responsible to rope off the areas of the southern car park available to patrons and this area is not to be increased;

• Any vehicle over 10 seats are to be directed to the rear car park to specifically designated

bus parking bay; and • Once the designated car parks are full – the venue is full. No Exceptions.”

Overall what is proposed seems reasonable. On closer examination, and given the reluctance of the owners to adhere to the existing permit conditions, what is proposed does not provide enough certainty and allows too much flexibility for the restaurant use to continue without an essential and transparent relationship with the agriculture on the land.



CONSIDERATION (CONT’D) For example, if the last point is achieved and the designated car parks are full, does this mean the venue is full? What happens if I have a booking and the car park is already full or half my party is already seated? The car parks may be full, but there may also be 234 patrons on the site instead of 190. Which number is to be relied upon and which one will be observed by the permit holder? Another dot point refers to patrons only parking in the northern car park for evening dinner services (this car park can cater for 53 car spaces). During the evening period 110 patrons will be catered for in the various eating areas. At a rate of 0.6 spaces per seat, 66 car spaces should be provided, thus a reduction of 13 spaces is proposed. On the other hand 53 car spaces caters for 88 persons, therefore it is better to provide an evening patron cap of 88 persons if only the northern car park is available.

Figure 2 – Proposed Access Arrangements and Car Parking Distribution. The site has also been poorly managed in respect of environmental impacts with reliance on inadequate toilet facilities for the numbers of patrons that have visited the site, a current wastewater system which is inappropriate for numbers of patrons (even at the relatively reduced scale of operations in recent times). This is evident by the need to use temporary toilet facilities for a number of years. The proposal to install a new wastewater system is appropriate, but should not be used as a bargaining chip to achieve a greater intensity of use for a restaurant and cellar door which are now detached from the original winery. CHANGES TO THE PERMIT Permit Preamble The current permit preamble reads: “ Use of an existing building as a restaurant in association with wine tasting and cellar door

sales in accordance with the endorsed plans.”



CHANGES TO THE PERMIT (CONT’D) Permit Preamble (Cont’d) The Applicant proposes the permit preamble to be amended to read: “ The use of the land for a restaurant and for the sale and consumption of liquor , reduction of the

associated car parking requirements, alteration of access to a road in a Road Zone Category 1 and construction of buildings and works in accordance with the endorsed plans.”

The changes being sought are significant and are not supported. The detachment of the restaurant from being in association with wine tasting and cellar door sales is essential to the nature and purpose of the existing restaurant. Its whole reason for existing in the Green Wedge, and previously gaining planning approval, is that association. Is the association important? The association was important when it was originally granted a permit as a restaurant serving food in association with wine tasting or cellar door sales. Conditions 6 and 7 testify to the fact that this was to be an ancillary activity to the wine tasting. See Attachment 9 for the Draft Permit Preamble. By converting this permit to simply allowing a restaurant, creates a break from that essential association which the State Government has made as explicit policy in the Green Wedge. It potentially creates the situation for a future operator of the restaurant to have no association with the land. This would not differ from say, having a McDonalds or KFC restaurant in the Green Wedge? The Applicant offers to pacify any such concerns by proposing new Condition 20 which reads: “ Number of Restaurant Seats:

20. For so long as the number of seats available in the restaurant exceeds 60:

i. The land must also be used for agriculture, which must, to the satisfaction of the Responsible Authority, include but not necessarily be limited to a productive vineyard on the land with a minimum area of 8 hectares;

ii. The majority of the wine range offered for sale on the land must comprise wines made from grapes sourced predominantly from the Mornington Peninsula; and

iii. The wine range offered for sale on the land must include at least one wine made predominantly from grapes grown on the land;

except with the written consent of the Responsible Authority.”

The proposed condition is unsatisfactory to the extent it try to create the nexus with the land only when the restaurant seating exceeds 60 seats. Yet this nexus is already required in the existing permit, which by the way is limited to 60 seats by VCAT. How does one define a productive vineyard of 8 hectares? Does the 8 hectares include only the area under vine and not include the shedding for the machinery, the dam, the creek corridor etc.? Who decides whether it is productive? The Applicant then seeks to limit this vineyard’s contribution to the wine on offer in the restaurant to one solitary wine made predominantly from grapes grown on the land. Is a vineyard that only produces one solitary wine considered to be a productive vineyard by any reasonable vigneron’s or shareholder’s expectations?



CHANGES TO THE PERMIT (CONT’D) Permit Preamble (Cont’d) Proposed Condition 20 (ii) is tailored to the Foster Group situation today on the Mornington Peninsula. Other wineries may also be operating in similar circumstances where grapes are sourced from a number of contract suppliers and vineyards. Unfortunately, the Planning Scheme and the Green Wedge provisions as they are expressed today, do not allow for innovative interpretations, such as replacing the 40 hectares land size for a restaurant with 40 hectares on separate titles, in separate locations and separate ownership, but possibly under one management (contractual or otherwise). Fairness and equity demand that the provisions be applied on a uniform basis instead of searching for an alternative arrangement which may seem to address the objectives of these provisions, but ultimately create other problems of enforcement and relevance as circumstances change. And this is one of the essential conflict points between what is proposed, and sought to be addressed by the proposed permit conditions, and the concern that such a precedent may create a two laws scenario (new restaurants in the Green Wedge must comply, existing restaurants need not comply if the merits on the day are deemed worthy). Other Permit Conditions Proposed Condition 25 seeks to direct the cancellation of a host of planning permits. The proposed condition reads: “ 25. The following permits must be cancelled immediately after all buildings and works shown

on the endorsed plans are completed to the satisfaction of the Responsible Authority:

• Permit P1376/95; • Permit P98/1005; • Permit P00/2232; • Permit P00/650; and • Permit P03/2141.”



CHANGES TO THE PERMIT (CONT’D) Other Permit Conditions (Cont’d) The various permits allow a range of uses and development as set out below with comments provided on the proposed changes.

Permit No. Date of Issue

Use and Development

Allowed

Comments

P95/1376 21 August, 1995

Winery and cellar door sales.

The winery has ceased more than two years ago and there are no existing use rights for the winery. The cellar door currently operates. It appears that based on VCAT’s comments, the Applicant believes that there is no longer a need for a planning permit for a cellar door use but rather a permit is required under Clause 52.27 for the sale and consumption of liquor. With respect to VCAT, this is not necessarily the case. A cellar door is an unspecified use and would still require planning permission as a land use, not because of the sale of liquor, but because of the sale of any produce or goods or services that is occurring on the land. If this is not the case then this land use would be a prohibited land use in the Green Wedge. If this permit is to be cancelled then the permit that is to be amended under this application must also allow for the cellar door sales. Otherwise the cellar door sales may be able to claim existing use rights and continue to operate with any restraint of conditions.

TP97/1029 7 October, 1999

Use of an existing building as a restaurant in association with wine tasting and cellar door sales in accordance with the endorsed plans.

Current application proposes to amend this permit.

P98/1005 1 October, 1998

Alterations and change of use to existing building for wine tasting and restaurant

This permit could be cancelled.

P99/0247 4 March, 1999

Development of a canopy in accordance with the endorsed plans.

This permit could be cancelled as the Amended Permit P97/1029 will cover the new development and works.



CHANGES TO THE PERMIT (CONT’D) Other Permit Conditions (Cont’d)

Permit No. Date of Issue

Use and Development

Allowed

Comments

P00/650 29 May, 2000

Development of building additions in accordance with the endorsed plans.


P01/0192 16 March, 2001

Erection of a machinery shed.

P00/2232# 21 March, 2002 (amended 14 November, 2003)

Extension to trading hours for the existing restaurant and cellar door sales operating in accordance with the endorsed plans.

This permit could be cancelled as the Amended Permit P97/1029 will cover the new development and works and the restaurant and cellar door sales (provided cellar door sales is included in the amended permit).

P03/2141 22 January, 2004

Alterations to courtyard area of existing restaurant in accordance with the endorsed plans.


# This permit was issued at the direction of VCAT Proposed Condition 26 seeks to provide for the expiry of this permit. The proposed condition reads: “ 26. This permit will expire if one of the following circumstances applies:

• The development or uses are not started within two years of the date of this permit; and/or

• The development is not completed within four years of the date of this permit.”

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards. This condition, while normally a standard inclusion in any new permit, is not appropriate here for a number of reasons: • The uses are currently operating and the permit is existing;

• The development (buildings and works) authorised under this permit are primarily essential for

the successful operation of the said existing uses;

• If the permit expires, then there are no permit conditions capable of being enforced;



CHANGES TO THE PERMIT (CONT’D) Other Permit Conditions (Cont’d)

• The condition would allow the Applicant to continue the restaurant and cellar door uses at their

greater intensity but create a four year window for the necessary works to be completed; and • There is no obligation anywhere in the permit which requires the owner to undertake all the car

parking, wastewater, access and egress and other works prior to the use of the land intensifying. In fact, the permit conditions (as proposed by the Applicant) leave the door ajar for the owner to immediately operate at the greater intensity of patron numbers without any obligation to undertake any of the ameliorative works.

Proposed Condition 19 seeks to provide for the number of patrons on the land. The proposed condition reads: “ Number of Patrons

19. Except with the prior written consent of the Responsible Authority, the number of patrons permitted on the land at any one time must not exceed:

• 110 after 5:00 p.m.; and • 190 at all other times;

with no more than 150 patrons being seated at tables at any one time and no more than 10 patrons in the smokers’ area at any one time.”

This condition is problematic in that it: • Seeks to create a secondary consent mechanism for patron numbers to be potentially increased

at a later stage without following the planning permit amendment process now provided for in the Planning and Environment Act 1987 and involving third party appeal rights; and

• Allows for the immediate increase in patron and seat numbers without requiring any of the

necessary car parking, access, wastewater or other buildings or works to be undertaken to the satisfaction of the Responsible Authority.

Whilst the above is not intended to be an exhaustive critique of the proposed conditions, it provides an indication that what is proposed remains an unsuitable proposal in a number of areas and still demonstrates a lack of willingness by the Applicant/owner to improve this popular but non-compliant facility. The proposed amendment to the permit is not supported and should be refused upon the following grounds set out in the recommendation.



RECOMMENDATION

That Council, having considered all relevant matters and submissions as required under the Planning and Environment Act 1987 and the Mornington Peninsula Planning Scheme that in relation to Planning Application P97/1029.02 – T’Gallant Cellar Door and Restaurant, 1385 Mornington-Flinders Road, Main Ridge refuses the amendment of the planning permit in manner sought by the Applicant on the grounds that: 1. The proposal is contrary to the provisions of the Green Wedge Zone, Clause 57 and

the planning policies and provisions identified in this report. 2. The proposal fails to properly assess its car parking needs and adequately provide

for onsite car parking. The proposal will result in a continuation of dangerous parking on the Mornington-Flinders Road during peak times.

3. The permit conditions proposed by the Applicant fail to adequately provide

certainty that the necessary buildings and works for the increased intensity of use will be provided in a timely manner and before the uses intensify.

4. The operation of the uses over a number of years continues to raise concerns with

Council about the likelihood that proposed permit conditions will be complied with, and patron caps will be observed. The fact that the ‘demonstration’ of demand has been based on breaches of the existing permit conditions puts in some doubt the commitment to the proposed permit conditions.

5. To use the discretion identified by the Victorian Civil and Administrative Tribunal

to approve a virtual transformation of the use (from a medium scale activity to a large scale activity) would provide an unfair advantage for T’Gallant over the establishment of new uses which are compliant with the Zone provisions and it is considered that this would be inconsistent with the fairness advocated in Objective a) of the Objectives of Planning in Victoria (see Clause 10.02 of the State Planning Policy Framework).

6. The proposed change to the preamble for the ‘restaurant and sale and consumption

of liquor’ is by itself inappropriate and insufficient to cover the existing wine tasting and sales activity. The sale and consumption of liquor permit requirement under Clause 52.27 should be seen similar to advertising sign or car parking provisions rather than given status in its own right as a type of land use such as would normally be given in the context of a Zone Use Table. It should complement a specified land use activity such as a restaurant, bottle shop or a winery. In this case, no winery or bottle shops are proposed, with the former having ceased more than two years ago and the latter being prohibited in the Green Wedge Zone.

7. The detachment of the restaurant from being in association with wine tasting and

cellar door sales is opposed as this association is essential to the nature and purpose of the existing restaurant. Its whole reason for existing in the Green Wedge, and previously gaining planning approval, is that association.

8. The proposed changes will significantly impact upon the Green Wedge amenity

which is a valuable characteristic of the area. The increased night time activity in particular is not supported and is contrary to the Local Planning Policy identified in the report.



RECOMMENDATION (CONT’D) 9. The intensification of the restaurant use is disproportionate to the scale and viability

of the vineyard on the land. The restaurant does not primarily facilitate the sale of wine produced from grapes on the land.

10. The proposal will create an undesirable precedent which disregards the clear and

unambiguous Green Wedge Policies of the Government and the Green Wedge stakeholders.

Development Assessments Committee Meeting – Monday, 31 January, 2011 Application for Planning Permit – 145 Whites Road, Arthurs Seat ITEM NO. 2.1.2


Documents

REPORT TO Development Assessments Committee ITEM NO. 2.1.1 T… · 2013. 5. 1. · Mornington Peninsula Shire Council 1 REPORT TO Development Assessments Committee ITEM NO. 2.1.1