MORNINGTON Peninsula Shire councillors will be asked if they want to continue legal action against an award-winning business that, although preparing and regularly serving food, claims it is not a restaurant.
Green Olive of Red Hill in 2008 was given a permit for “primary produce sales” and “manufacturing sales” after presenting plans that showed a small sales counter and tasting area in an existing shed.
Council officers say Green Olive now offers “a substantive menu of food and drink” prepared by two chefs in a commercial-sized kitchen served in an area equipped with 80 chairs.
It also runs cooking classes, has a large dry store and has “drastically modified” the internal layout of the endorsed plans.
Last year Green Olive won the “excellence in food tourism” section of the Victorian Tourism Awards and a silver medal at the Australian Tourism Awards.
However, Green Olive operates on a 10-hectare block of land and under the peninsula’s Green Wedge regulations a restaurant cannot be considered on land of less than 40ha.
Greg O’Donohue, who runs Green Olive with his wife Sue on Mornington-Flinders Rd, Main Ridge, last Thursday said “we don’t run a restaurant”.
Before discontinuing a phone call from The News, Mr O’Donohue said the shire had previously threatened to take the issue to the Victorian Civil and Administrative Tribunal (VCAT) “but they seem to back off when they see our legal advice”.
“It seems all quiet at the moment,” Mr O’Donohue said.
The shire’s claim of non-compliance by Green Olive appears to revolve around the definition of what constitutes a restaurant.
At a 1 June briefing, councillors were told that complaints about the use of the land were first made in 2011.
“After considering the relevant factors … it was determined that the land was being used as a restaurant and the owners were asked to comply with their planning permit and/or planning scheme,” the briefing was told.
The issue remained unresolved after several other meetings and in 2013 the council “sought high-level legal advice that confirmed our belief”.
Lawyers representing the council and Green Olive were also unable to reach an agreement and in August 2014 the council engaged Susan Brennan SC about obtaining an enforcement order from VCAT.
Instead of acting immediately, the council again wrote to the O’Donohues seeking more information “to allow council to better understand the land use”.
The response, given to the council on 9 April “was deemed insufficient” and officers are now recommending that a non-compliance order be sought from VCAT.
They say the matter should be pursued because of evidence of breaches of the planning scheme, which the shire has a statutory obligation to enforce (“and there is a potential for criticism should we not act”).
Risks of not taking action include the “perception” of a business being granted an “unfair advantage”.
The officers also warn that the council could attract “negative publicity” by forcing a change “to a successful business with tourism links and high public profile”.
The officers acknowledge Green Olive is “successful and very popular” but say any potential losses “would only result due to [its] failure to act in accordance with the approved permit and/or scheme”.
On Friday the shire’s environment protection and community safety manager Claire Smith said discussions were being held with the operators of Green Olive “over alleged non-compliance with planning permit conditions”.
“No formal enforcement activities have been undertaken at this stage,” Ms Smith said.
The Green Olive website makes plenty of references to food and wine served at its “farm shop” as well as the following: “On a visit to our Farm Shop and Restaurant at Red Hill, Mornington Peninsula you can enjoy coffee from beans roasted on site, savour the smell of our herbs and spices as they roast, enjoy our homemade sausages or tapas dishes and even take a small taste of our farm home with you.”
The popular tripadvisor website says it is “#2 of 6 restaurants” in Main Ridge.
The visitmorningtonpeninsula website, the “official” website of the Mornington Peninsula, carries the following first-person description: “At Green Olive at Red Hill. … Our restaurant is located in the middle of our farm so we have plenty of outdoor space for the children to run around, away from the busy roads.”
When is a restaurant not a restaurant? In this case that’s a question lawyers may be dining out on for some time come.