Notice Paper Monday 24 June 2013 at 7: 00 p m. Council Chamber, Stonnington City Centre
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planning application 0261/11 - 428 - 430 malvern road, prahran – amendment to existing permit to extend trading hours and increase patron numbers(Planning Appeals Coordinator: Gareth Gale) (General Manager: Stuart Draffin) PURPOSE For Council to consider a S.72 amendment application to a Planning Permit to allow for an increase in the licensed restaurant trading hours from 11pm to 12am the following day, an increase patron numbers and an increase in the licensed area at 428-430 Malvern Road, Prahran. Executive Summary
BACKGROUND The Proposal The information that forms part of the basis of Council's consideration was prepared by ACRD and are known as drawing numbers D-004 Rev J and D-005 Rev K and a statement prepared by the applicant explaining the reasons sought for extension to the trading hours and increase in patron numbers. The plans and statement are Council date received 4 October and 16 November 2012. Key features of the proposal are:
Amendments to the plans:
Discussions have been held with the applicant over the course of the application whereby the following amendments to the permit have been agreed on a ‘without prejudice’ basis. These agreed amendments are highlighted as the underlined sentences below and form the basis of this assessment:
Based on the changes offered by the permit applicant, the following amendments to the permit would be required: Change existing Permit preamble from: Use of the site as a restaurant with associated restaurant/cafe liquor licence, buildings and works and advertising signage in a Business 2 Zone and create or alter access to a road in a Road Zone Category 1 To: Use of the site as a restaurant with associated restaurant/cafe liquor licence (including licensed footpath trading), buildings and works and advertising signage in a Business 2 Zone and create or alter access to a road in a Road Zone Category 1 Condition 2 to be amended from: A maximum of 90 seats must be provided to the satisfaction of the Responsible Authority To: Other than allowed by condition 5, no more than a maximum number of 120 patrons must be on the premises at any one time (of which includes a maximum of 20 patrons on the footpath trading area) to the satisfaction of the Responsible Authority. Amend condition 3 to be amended from: The use hereby permitted must operate only between the hours of 7am to 11pm Monday to Sunday To: Other than that allowed by condition 5, the use and liquor hereby permitted must only operate between the hours of 7am to 11pm Monday to Sunday. Add new condition 4 as follows: Tables and chairs must be placed in position on the licensed premises so as to be available for at least 75% of the patrons attending the premises at any one time, to the satisfaction of the Responsible Authority. Add new condition 5 as follows: Unless otherwise agreed in writing by the Responsible Authority, the venue may hold a maximum number of 24 functions per year. These must only operate between the hours of 7pm – 12am and provide for a maximum number of 150 patrons. The owner/operator must keep a record of these events and be produced at the request of the Responsible Authority. Add new condition 6 as follows: Without the prior written consent of the Responsible Authority, the sale and consumption of liquor shall only occur within the footpath trading area between the hours of 7am and 9pm. Add new condition 7 to read as follows: The predominant activity carried out at all times on the licensed premises must be the preparation and serving of meals for consumption on the licensed premises to the satisfaction of the Responsible Authority. Add new condition 8 to read as follows: Prior to the amended permit taking effect, an Event Information Sheet must be submitted to and approved by the Responsible Authority. When approved, the Event Information Sheet will be endorsed to form part of the permit. The Event Information Sheet must be provided on the website and to all customers who book an event and must include recommendations designed to reduce the use of cars and promote the use of alternative travel methods when an event is being held. These should include (but is not limited to) informing customers who book events of the following:
To the satisfaction of the Responsible Authority. Re-number the remaining conditions accordingly. Site and Surrounds The subject site is located on the south side of Malvern Road, approximately 200 metres west of Williams Road, South Yarra. The land is rectangular in shape, with a frontage to Malvern Road of approximately 13 metres, a depth of approximately 29 metres, with a total site area of approximately 377m. The site is currently occupied by Hobba Eatery which was approved under the existing amended Planning Permit 261/11. This section of Malvern Road is a commercial strip containing various built forms ranging in scale and style. Predominantly the streetscape is made up of premises used for car rental offices, car sales yards, retail and warehouse uses, mechanics and panel beating services. There is a police station two lots to the west. Directly north, on the opposite side of Malvern Road, is a Beaurepaires tyre outlet. The site itself is located within a (large) Neighbourhood Activity Centre and Group 3 retail centre, but is located within immediate proximity to the Prahran and South Yarra Principal Activity Centre and more specifically Chapel Street which offers a broad range of services. The site is located approximately 560m east of Chapel Street, South Yarra and is approximately 230m from the Activity Centre boundary. The site is well serviced by the Principal Public Transport Network, including tram services immediately accessible on Malvern Road and Chapel Street, and Hawksburn Train Station approximately 382m walk north of the site. Previous Planning Application(s) A search of Council records indicates the following relevant planning applications:
The Title The site is described as Lot 1 on Title plan 218528D (Certificate of Title Volume 09815 Folio 146) and no covenants or easements affect the land. Planning Controls The following controls/permit triggers are considerations for this application: Particular Provisions Clause 52.06 – Car Parking Pursuant to Clause 52.06-1, before an existing use is increased by the measure specified in Column C of Table 1 in Clause 52.06-5 for that use (patrons is listed in Column C for a restaurant use), the number of car parking spaces required under Clause 52.06-5 must be provided to the satisfaction of the responsible authority A permit may be granted to reduce or to waive the number of car spaces required by the table. Pursuant to Clause 52.06-5 a restaurant requires a rate of 0.4 car spaces to each patron permitted. The proposal to allow for an increase of 60 patrons generates a parking requirement of 24 car parking spaces.
A permit is required if:
New Commercial 1 Zone effective 1 July 2013 It is noted that on 1 July 2013, the Restaurant use will become ‘as of right' in the Commercial 1 Zone. Relevant Planning Policies The State Planning Policy Framework: Clause 11.01 Activity Centres Clause 15.01-1 Urban Design Clause 17.01 Economic Development Local Planning Policy Framework: Clause 22.02 Urban Design Policy Clause 22.06 Residential Character, Amenity and Interface Policy Clause 22.09 Retail Centres Policy Clause 22.10 Licensed Premises Policy Clause 22.13 Parking Policy Advertising The application has been advertised pursuant to Section 52 of the Planning and Environment Act 1987 by sending notices to the owners and occupiers of adjoining land and by placing 1 sign on the site. The public notification of the application has been completed satisfactorily. The site is located in South Ward and objections from 19 different properties have been received. The objections are summarised as follows:
A Consultative Meeting was held on 20 February 2013. The meeting was attended by all three South Ward Councillor’s, representatives of the applicant, objectors and a Council planning officer. In response to objector and officer concern, the following changes were agreed upon:
As a result of the agreed changes, the report will be framed to discuss their appropriateness (as distinct from the proposal which was advertised). Referrals Traffic and Parking Unit
KEY ISSUES Amendment to Liquor Licence The current use of the land as a restaurant is consistent with the strategic direction for this location and policy under Clause 22.09 Retail Centres Policy. Hawksburn (and other Group 3 centres) seek to cater for neighbourhood and specialty retail, office and service activities and needs. Specifically, the centre encourages predominantly retail and limited further entertainment uses, with a food shopping character, plus a wider mix of office and service uses at the western end, in Hawksburn. In this context, the existing restaurant use is considered to be a complementary use and is consistent with the objectives of Clause 22.09 and the Business 2 Zone. The existing permit allows seating for 90 patrons. The proposed amendment to the existing permit is to allow for 120 patrons, resulting in an overall increase of 30 patrons. Part of the proposal involves extending the current restaurant internal floor area to create a new private dining room which will provide seating for 20 patrons. In addition, seating for 20 patrons is proposed on the footpath to the front of the site. With these additional areas, the increase in patrons can be readily catered for. Normal opening hours of the restaurant would stay the same as the existing operating hours and not trade after 11pm in accordance with Council’s Licensed Premises Policy. The proposed extension of licensed and trading hours to 12am is limited to functions only. It is proposed to hold up to 24 events per year (average of 2 per month) and these will occur primarily on a Thursday, Friday or Saturday. During an event patron numbers will increase to 150. Given this increase will be limited for up to 24 days of the year the additional patron numbers would not be unreasonable and unlikely to result in a noticeable impact on the reasonable amenity expectations of neighbouring residents. Amenity It is considered that the proposed amendment to the Permit extending the licensed area and increasing the number of patrons is acceptable having regard to amenity. The residential interface with the subject site is to the south along Francis and Dixon Streets. It is important to note that the residents that live within this locality have an abuttal to a Business Zone and large retail centre fronting a main road, and thus cannot expect the same level of amenity as within an established residential neighbourhood with no commercial land use abuttals. The key amenity specific concerns raised by objectors to the proposal relate to noise, hours and the associated noise from amplified music and antisocial behaviour / loitering from patrons associated with the events and litter/rubbish issues. Each of these amenity concerns are considered below: With regard to noise, the existing hours of operation (7am to 11pm) will remain as existing. Only during events will the hours be extended to 12am and this would occur infrequently for a maximum of 24 events per year. Noise associated with the use is contained within the building as the footpath will only be licensed until 9pm. Further, there are existing noise specific conditions on the current permit which will remain in force. These conditions are enforceable under the planning permit, are also on the liquor license and are controlled through environmental health legislation. Whilst Clause 22.10 discourages trading beyond 11pm adjacent to Residential Zones, the new dining area (and indeed the balance of the restaurant) does not extend to the rear of the building - being the southern interface with the Residential 1 Zoned properties. This will ensure that a noise buffer is maintained between the two uses. It is therefore considered that the proposed amendment to permit will not result in unreasonable noise effects on neighbouring residential properties. The current endorsed plan does not show the full site boundary and hence a revised plan will be required by condition. In terms of antisocial behaviour, it is considered that the amendment would not give rise to anti-social related issues. The amendment sought is to the existing restaurant / cafe licence and is not associated with a bar or tavern with loud music or intoxicated persons queuing outside the building being more of an issue. Further, there is no incentive for patrons to loiter toward the side streets of Francis and Dixon Streets, adjacent to surrounding residential properties. Public transport links are off Malvern Road and to Hawksburn station to the north. The only customer access to and from the building is from the front off Malvern Road and sufficient toilet facilities are provided on site. It is therefore considered that the amendment to the permit will not result in anti-social behaviour effects on the surrounding area. In terms of litter and rubbish, it is noteworthy that the previous amendment required a new condition (condition 9) to be included on the permit which required the submission of a Waste Management Plan. The Waste Management Plan was submitted to Council and endorsed on 16 March 2012. It is considered that the Waste Management Plan in place is appropriate for the use and the amendment to the permit will not give rise to any new concerns with litter or waste. The peak operating times for the restaurant are around general meal times being breakfast, lunch and dinner. The evening use of the site is not likely to impact on any surrounding residential amenity, as the level of noise emitted from the premises would be minimal subject to the internal layout, which is orientated towards Malvern Road, and nature of the ‘restaurant use’ unlike a bar or tavern which would generate constant loud amplified music and the congregation of people outside the venue. Conditions of the existing permit and other legislation such as environmental health ensure there is no unreasonable emission of noise, smell, fumes, or waste that would adversely impact upon surrounding residential buildings or adjoining tenancies. The location of the site lends itself to a commercial use that operates during the evening and not extending into ‘late night’ trade. The primary purpose of activities carried out in association with a restaurant use is the serving of food and drinks and consumption of liquor in association with meals. Overall, it is considered that the hours of operation are appropriate with regard to the surrounding mixed use area and the purpose of the Zone and Group 3 Centre, and can be suitably controlled by way of conditions on any amended permit granted. Having particular regard to the decision guidelines of Clauses 34.02-1 and 52.27 and subject to the relevant permit conditions, the proposed amendment will not result in an adverse impact on the amenity of the area and is therefore considered acceptable. Car Parking and Traffic Pursuant to Clause 52.06-5, a restaurant requires a rate of 0.4 car spaces to patron. Thus the amended proposal would result in a requirement for 24 car spaces, of which none are proposed. Notwithstanding, car parking consent has already been granted for the restaurant use under the existing approval. It is noteworthy that the parking requirements for a restaurant use under Clause 52.06 have changed from a rate of 0.6 car spaces to each seat, to 0.4 car spaces per patron permitted. Therefore the restaurant use for 90 seats had a requirement for 54 car spaces (0.6 x 90 = 54). Now the restaurant use for 120 patrons (normal numbers) has a requirement of 48 spaces (0.4 x 120) and for 150 patrons (events) a requirement of 60 spaces. Further, the applicable restaurant car parking rate is often used for an empirical assessment. Car parking consent was considered acceptable with previous applications for this site for the following reasons:
The proposal to extend the increase patrons numbers is considered acceptable also having regard to the above. In addition to the above points, the site is 382m walk from Hawksburn station and parking is available on Malvern Road for evening trade. In addition to the above, the nature of the use is one where those patrons who choose to consume alcohol are unlikely to drive and more likely to catch a taxi of utilise public transport. That said, it is considered that a reasonable proportion of the patrons visiting the site are of local origin. The proposed amendment to the existing permit is unlikely to result in a noticeable change in the existing parking situation in the immediate locality. As highlighted previously, it is considered that restaurant management can take measures when booking events that encourage attendees of the events to consider alternative modes of transport such as utilising public transport or getting taxis, arranging a mini bus, car pooling etc. to mitigate any increase in car numbers. These initiatives can be secured by way of permit condition. Given the sites locality in a Large Neighbourhood Activity Centre fronting a main road and a Business 2 Zone, the nature of the existing use and the proposed amendments are considered appropriate in this location. Human Rights Consideration This application has been assessed in accordance with the requirements of the Planning and Environment Act 1987 (including the Stonnington Planning Scheme), reviewed by the State Government and which complies with the Victorian Charter of Human Rights and Responsibilities Act 2006. CONCLUSION Having assessed the application against the relevant planning controls, it is recommended that the proposal be supported / refused for the following reasons (include most relevant only):
RECOMMENDATION That a Notice of Decision to Grant an Amended Planning Permit No: 261/11 for the land located at 428-430 Malvern Road, Prahran be issued under the Stonnington Planning Scheme for a S72 Amendment to approved Planning Permit and/or Plans – to amend the permit preamble and conditions of the permit to increase the area where liquor is allowed to be supplied or consumed, licensed footpath trading, increase patron numbers and associated car parking dispensation, and extension to hours of operation subject to the following amendments to plans and permit: Changes to the plans:
Change existing Permit preamble to: Use of the site as a restaurant with associated restaurant/cafe liquor licence (including licensed footpath trading), buildings and works and advertising signage in a Business 2 Zone and create or alter access to a road in a Road Zone Category 1 Condition 2 to be amended to: Other than allowed by condition 5, no more than a maximum of 120 patrons must be on the premises at any one time (of which includes a maximum of 20 patrons on the footpath trading area) to the satisfaction of the Responsible Authority. Condition 3 to be amended to: Other than that allowed by condition 5, the use and liquor hereby permitted must only operate between the hours of 7am to 11pm Monday to Sunday. Add new condition 4 as follows: Tables and chairs must be placed in position on the licensed premises so as to be available for at least 75% of the patrons attending the premises at any one time, to the satisfaction of the Responsible Authority. Add new condition 5 as follows: Unless otherwise agreed in writing by the Responsible Authority, the venue may hold a maximum number of 24 functions per year. These must only operate between the hours of 7pm – 12am and provide for a maximum number of 150 patrons. The owner/operator must keep a record of these events and be produced at the request of the Responsible Authority. Add new condition 6 as follows: The sale and consumption of liquor shall only occur within the footpath trading area between the hours of 7am and 9pm. Add new condition 7 as follows: The predominant activity carried out at all times on the licensed premises must be the preparation and serving of meals for consumption on the licensed premises to the satisfaction of the Responsible Authority. Add new condition 8 to read as follows: Prior to the amended permit taking effect, an Event Information Sheet must be submitted to and approved by the Responsible Authority. When approved, the Event Information Sheet will be endorsed to form part of the permit. The Event Information Sheet must be provided on the website and to all customers who book an event and must include recommendations designed to reduce the use of cars and promote the use of alternative travel methods when an event is being held. These should include (but is not limited to) informing customers who book events of the following:
To the satisfaction of the Responsible Authority. Add new condition 9 to read as follows: Prior to the amended permit taking effect, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plan Council date stamped 4 October 2012 (advertised material) but modified to show the full site and building footprint, particularly to the rear (south). Re-number the remaining conditions accordingly. |