Item 9.1 of last Tuesday night’s agenda concerned the amended permit application for a Tavern in Centre Road. Please note:

  • We are not questioning the right of anyone to submit an application
  • We are not questioning the right of any commercial enterprise to grow its business

What we are questioning is the woeful decision making capacity of this planning department and councillors; the continued shonky reports that fail to come up under scrutiny and finally the clear bias evident in the report. We are also highly critical of the inconsistency trotted out by Lipshutz and some others.

In July 2011 (that is LESS THAN 2 YEARS AGO) Lipshutz and Hyams moved the motion to accept the conversion of a ‘café’ to a ‘tavern’ that extended the hours of opening, waived car parking, and included a liquor license for footpath trading. The motion was carried unanimously. At the time objectors also claimed that the premises had been operating ‘without a permit’. Now there’s another application to extend existing hours to 3am, include live music and increase seating from 24 to 64 plus an increase of staff. All well and good, EXCEPT that the current officer’s report just happens to state – “The site context has not changed significantly from the time the previous approval was granted in that the residential properties to the north are still separated from the subject site by an Australia Post dispatch facility and a petrol station that is open 24 hours a day.”

In other words the surrounding environment, which has not changed, was good enough for the planning department to impose limits on numbers, hours, music and staff back in 2009, but not today when these exact some conditions persist! So, if nothing much has changed then how can something be regarded as having an adverse impact in 2011 and 21 months later suddenly be deemed as appropriate for a threefold increase in clientele, staff, and hours of operation? Did Ron Torres just happen to conveniently forget what he wrote at that time and now just regurgitates what happens to suit the decision for the go ahead?

We’ve drawn up a table that compares the officer’s report from 2011 and 2013. There’s much, much more that was in the 2011 report that has suddenly disappeared from the current version. What is repeated is merely all those points that would provide support for the current application. If that’s not ‘doctoring’ a document, then we certainly don’t know what is.

July 19th 2011 Minutes

April 9th 2013 Minutes

28 properties notified; 48 notices sent (owners and occupiers) 6 properties notified; 29 notices sent (owners and occupiers)
N/A Since then, the business has continued to grow and the restrictions on their current planning permit have become onerous.
The current approved hours of operation are considered to be low impact in terms of causing significant noise that would affect the amenity of the local area. The current approved hours of operation are considered to be relatively “low impact” in terms of potential to cause significant noise that would unreasonably affect the amenity of the local area.
The focus of this application is on the 3 additional hours Monday to Thursday (11pm closing) and the 2 additional hours on Friday and Saturday (1am next day closing). The focus of this application is on: the 3 additional hours on Monday to Thursday (closing at 1am); the 3 additional hours on Friday and Saturday (closing at 3am); the 2 additional hours on Sunday (closing at 1am); andthe associated additional live music performances.
Noise from patrons leaving after 8pm weeknights and after 11pm Friday and Saturday would potentially disrupt the amenity of local residents. MISSING
It is considered that a reasonable closing time for Monday to Thursday would be 10pm. An additional 2 hours on weeknights is unlikely to significantly increase detriment to the amenity of the nearby residential area if it is combined with conditions that limit noise levels in accordance with EPA guidelines and a requirement to limit live music to Friday, Saturday and Sunday and to prohibit the sale and consumption of liquor on the footpath. The proposed closing time for Sunday to Thursday of 1am the following day is considered excessive for a weeknight. A more reasonable closing time for weeknights (Sunday to Thursday) would be 11pm. This is a reasonable compromise to what is being sought in light of the context. An additional 1 hour on weeknights (as recommended in the appendix to this report) is unlikely to significantly increase detriment to the amenity of the nearby residential area if it is combined with current permit conditions that limit noise levels in accordance with EPA guidelines.
For Friday and Saturday nights, it is considered that a closing time of 1am the following day is likely to cause disruptive late night noise and a closing time of midnight is recommended. Additionally, live music performances on Friday, Saturday and Sunday will be required to be finished at least 1 hour before the closing time to further ensure that the impact on the nearby residential area is moderated. For Friday and Saturday nights a closing time of 3am the following day as proposed is likely to cause unreasonable disruptive noise in the early hours of the morning to local residents. A closing time of 1am is recommended as a condition in the appendix as 1 additional hour on weekends is considered reasonable and will have minimal additional amenity impacts.The current permit restricts live music
Recommended conditions will prevent live music in the rear courtyard. No dance floor will be allowed. The current permit does not allow live music performances within the rear courtyard  yet the proposal seeks to allow them between 12 noon and 7pm. This is considered reasonable as the courtyard is adjacent to commercial car parking areas which provide a buffer of over 30 metres to nearby residential land located to the north, and after 7pm the live performances will be restricted to inside the venue.
Patron numbers are proposed to increase from 24 to 64, with one additional staff member (4 in total). The increases would allow the business to fully reach its  potential and have the ability to conduct more viable private functions. The additional staff member will contribute to the efficiency and general operation of the venue. The proposed increases are considered reasonable.
The impacts on the amenity of the area from additional night time parking and traffic would be noticeable to the local residents. Council’s Transport Planning Department do not object to the proposed extension of trading hours.ANDGiven the above, the increased impacts on the amenity of the area from additional night time parking and traffic will not be unreasonable.
Council’s Transport Planners have confirmed that Centre Road can accommodate the additional parking that is likely to be generated by the use. The amount of additional parking will be kept to a small increase by applying a condition to restrict the maximum number of patrons to twenty four (24) at any one time. This figure matches the number of patron seats applied for. Staff numbers will be kept at the current level of three (3). Patron numbers are proposed to increase from 24 to 64, with one additional staff member (4 in total). The increases would allow the business to fully reach its potential and have the ability to conduct more viable private functions. The additional staff member will contribute to the efficiency and general operation of thevenue. The proposed increases are considered reasonable.
Victoria police

  • • Caulfield Police have confirmed that Roo Baa has been operating within its current liquor licence hours without significant disruption to the local area.However, concern was expressed that noise from live music might impact the nearby residential area. The Police confirmed that they can issue fines for breaches of noise restrictions.
Victoria policeCaulfield Police have confirmed that Roo Baa has been operating within its current liquor licence hours without significant disruption to the local area. Support the proposed increase in patron numbers and increased hours of operation. Support live music performances on all days subject to it finishing by 11pm

Sunday to Thursday and 1am the following day on Friday and Saturday.

No issues with live music performances being conducted in the courtyard between 12 noon and 7pm.

 The sale and consumption of alcohol in the footpath seating area should be prohibited after 9pm to minimise the effect on residents directly across the road.

 Restricting staff numbers is not beneficial to the proper running of the venue and

do not support a restriction placed on staff numbers.

So how did councillors handle all this? – especially those who were party to the original permit? Here’s what happened –

MAGEE: moved that a permit be granted for 12 months only. Delahunty seconded. Magee went on to say that ‘this gives the operator what they are wanting’ and since there have been complaints from people and ‘council has some concerns‘ the permit is only for 12 months and the applicant has to then come back and reapply. The objective is for the applicant to ‘show us’ that ‘you can adhere to this permit’ and then council would issue the extension of the permit.

DELAHUNTY: said that this motion would ‘strike a balance’ between business and community ‘wants’. Said that it’s in everyone’s best interests to have ‘private business’ in the city but ‘they must be good neighbours’   so the motion is trying to ‘strike a balance’ between these two things. Looked forward to a year down the track and that the applicants can ‘show they’ve been well behaved’.

LIPSHUTZ: at first he was going to support it but ‘I’ve changed my mind’.  He’s got emails from people complaining and that recently officers had discovered that there were more people on the premises than allowed and that ‘bands were playing’ so they ‘had breached their license‘. So, when people come and ‘seek the indulgence of council’ you have to come with ‘clean hands’ and not treat both residents and council ‘with contempt’. Magee’s motion does ‘put them on notice’ that they have to ‘do the right thing’ but ‘they shouldn’t be allowed to get away with more’. It’s only ‘when you can show you’re a good neighbour’ that you should come to council instead of ‘asking for more’.

PILLING: supports the motion. Outlined where residential and commercial properties are. The motion ‘does strike a balance’ and he thinks the times are ‘reasonable’ and a good ‘alternative’ and ‘respects the wishes of residents’.

SOUNNESS: was at the planning conference and noted that ‘there comes a point when a development has reached its capacity’ and more makes it an ‘over development’. With this application there can’t be more space since the building isn’t big enough. Thought that the development was ‘overly ambitious’ and that there had been issues about ‘management’ of the place. So even though Magee’s motion takes this ‘down the right path’ it doesn’t take it ‘far enough’.

HYAMS: said it was a ‘strange planning conference’ in that there were opposite views expressed. People from ‘500 metres away’ said they could hear the music but patrons said that they ‘go there’ so they can actually talk with each other ‘above the music’ so ‘it’s not that loud’. Said the police were happy for the extended hours and that officers on the occasions they went there ‘reported’ that the tavern was ‘conforming’ to the permit. But then Lipshutz has said that ‘on one occasion they weren’t’. So he’s ‘happy’ with the ‘sunset clause’ and that the place will be ‘monitored’ and ‘if we’re happy’ then they ‘can go ahead’. Said that at the planning conference objectors said that people were urinating outside but this was denied by applicant. So there is a need for more staff to supervise this outside.

MAGEE; said that council ‘want to see business succeed’ and for residents to ‘live in peace and quiet’. The applicant has now got 12 months to show that ‘they are good operators of the business’. The tavern is a ‘bit of an icon’ in Bentleigh and gives the area ‘its bit of uniqueness’. It’s never ‘raised its head before as a concern with me’. He had walked past there recently and all was well. Hoped that ‘the business will succeed’ and that surrounding people ‘will accept it’.

MOTION PUT AND CARRIED. VOTING AGAINST – LIPSHUTZ & SOUNNESS

COMMENT: This is not the first time that breaches of conditions have occurred on numerous permits and not the first time that nothing much has been done about it by council. In the past Lipshutz and his cohorts have seen fit to ignore such breaches and to vote in favour of the permits. All that has been said by them is that council will be ‘vigilant’ and will come down on them ‘like a ton of bricks’ if the new permits are abused. How hypocritical then of Lipshutz to now get on his high horse and say that this application should be refused because the applicants have treated council with ‘contempt’. If Lipshutz is to stand on his record then the public has a right to demand consistency.

We draw readers’ attention to his stance on the extended 1A Albany Court decision (as just one example!) which involved a synagogue that had continually breached its conditions and which the VCAT member made absolutely clear that council had done nothing to ensure compliance. See https://gleneira.wordpress.com/2012/06/05/vcat-more-council-failures/. This is not an isolated example.

How many more times will we hear about council not informing all relevant parties on VCAT hearings as in the above judgement? How many more times will some applications get up because of what can only be reasonably perceived to be clear, vested interests and despite the fact that they have treated the permit conditions with ‘contempt’? How many more times will this planning department be permitted to produce reports that are short on argument, detail, and full justification for their recommendations?

This entire application history epitomises the failures of this council to embark on any decision making that is consistent, transparent, and protects residential amenity.

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