A bid by fast-food giant McDonald's to allow its Malvern East store trade around the clock has been rejected - because it could interfere with neighbours' sleep.
The store, on the corner of Waverley and Burke Roads, has been a contentious addition to the neighbourhood since it opened three years ago. A condition of the store opening was that its trading hours be limited to 6am to 11pm.
The Victorian Civil and Administrative Tribunal found that even with the drive-through closed between 11pm and 6am, the amenity issues of local residents still outweighed social benefits from McDonald's being open.
Stonnington City Council, 37 residents and a residents' lobby group objected to the proposal. The council's grounds included that the increased "pedestrian movement ... during normal sleeping hours" would attract "discourteous behaviour" at these times.
The council also opposed the bid because of the store's illuminated signs, which would "result in unreasonable light spill on the neighbouring residences", and the closure of the car park would increase the number of cars parked in neighbouring streets.
Lawyers for McDonald's told the tribunal that it expected an average of between 60 and 80 orders each night between 11pm and 6am. They said that closing the car park would make no difference to neighbours.
McDonald's also submitted that 63 per cent of the store's customers live within three kilometres, because it was not located on a busier road, such as Dandenong Road, which it had been trying to do for 20 years.
In his judgment, VCAT senior member Laurie Hewet said the resulting impacts on the neighbourhood were not acceptable.
"My concerns about this proposal relate specifically to the transferral of noise (specifically patron noise) and activity from within the site to the public domain where the site does have sensitive residential interfaces," he said.
"The prospect of patron behaviour giving rise to sleep disturbance troubles me for a number of reasons ... it is important to recognise that rowdy patron behaviour does not have to be aggressive, violent or unruly.
"It may arise as a consequence of inconsiderate actions, such as leaving the car running, and the music playing. It could arise out of jocular behaviour. It just needs to be loud and it needs to occur in the vicinity of dwellings."
Mr Hewet said that because McDonald's planned to close its cark park after 11pm and because there were houses nearby, that was "precisely where" any sleep-disturbing behaviour would occur.
He also found that the business was not zoned for 24-hour operation.
Andrew Dixon, a spokesman for resident group 100 Waverley Road Action Group, said this morning that McDonald's may appeal the decision, and accused the company of changing its stance.
He said that McDonald's argued this year that its standard operating model for stores was to open 24 hours, but that had not been the argument when the original case for McDonald's to open on the Waverley Road site was heard in 2009.
Mr Dixon said that the store was directly next to an apartment and retail development, and houses were across the road.
"That part of the road is as dead as a dodo after 10 at night, nothing happens in that area," he said. "It's a very, very quiet residential area."
A McDonald's spokeswoman said in a statement that: "We're currently reviewing the determination and considering what our next steps will be, if any."