Pub’s beer garden fight over flood refusal

A more than 150-year-old pub has taken its beer garden plans to the Supreme Court after a proposal was knocked back due to the risk of flooding from climate change.

AVC Operations, the proprietor of the Anglers Tavern in Melbourne’s inner west, launched an appeal seeking a judicial review of an earlier tribunal decision to reject the proposed expansion.

The case appeared in the Victorian Supreme Court on Tuesday for the first of a two-day trial before Justice Claire Harris.

Situated on the banks of the Maribyrnong River, the Anglers Tavern reopened last month after the venue was inundated during the Victorian floods almost two years earlier.

The stalwart local watering hole became submerged after a deluge of rain destroyed dozens of homes and businesses in October 2022.

While closed and undergoing renovations, the pub sought approval from the Maribyrnong City Council to extend its beer garden out over a car park, potentially increasing patron numbers by up to 650 people.

The planning permit was rejected, leading to a challenge in the Victorian Civil and Administrative Tribunal (VCAT) which was refused on the grounds it would place additional patronage at risk of flood.

“We are not satisfied that the FRMP (flood risk management plan) … justifies a development that increases density and the population at risk in the flood plain,” the tribunal found.

In court, Barrister Adrian Finanzio SC, for AVC Operations, said the pub’s central argument that a flood management plan would improve safety had been “ignored”.

“Approving the proposed development would afford an opportunity to introduce a level of control, related to flood risk, which would not otherwise be possible,” he said.

“There’s no acknowledgment the risk might be minimised rather than exacerbated by the development.”

Mr Finanzio argued the previous judgment by VCAT was an error of law and Melbourne Water, who opposes the proposal, had not “grappled” with the existing risk to patrons.

He said the evidence was there was a 12 to 18 hour window after heavy rains before a flood could occur, allowing ample time for patrons to be evacuated.

The court was told under current regulations aimed at addressing the risk of climate change, the pub in its current state would not be appropriate if the land was vacant.

Counsel for Maribyrnong City Council Barnaby Chessell SC said the proposal was objected to as it posed an unacceptable risk to safety and causing further flood damage.

He argued the tribunal correctly recognised the expansion of the beer garden would likely lead to a significant increase to the maximum patronage of the venue.

“The applicant’s case was put on the basis that the flood management plan would ameliorate risk … a finding the tribunal did not accept,” the barrister said.

“If a plan of this type is not considered to be an effective means of managing risk then it follows that the benefits to which the applicant points are wholly illusory.”

The hearing continues.