But our frequent inspections reveal that on Thursday, Friday and Saturday nights, adding another late night tavern to the buzz that is already occurring in Chapel Street would make little difference, even until 1.00 am.

We see behavioural impacts resulting from licensed premises along Chapel Street as a precinct wide issue by now, requiring a centre-based approach and a precinct wide solution. We urge state government budgetary support for policing and local council support for operations such as roving street patrols and clean-up as well as enforcement of its footpath trading restrictions.

As for the impact of ground floor bars, which generally only open after 5.00pm, on the viability of this activity centre (where policy seeks ground floor uses that contribute to a vibrant street life) we have decided that this tavern has not yet tipped the balance against a permit but have required it to be open from noon.

In the light of strong government policy increasing residential densities in and around activity centres, there is inevitable conflict between late night uses and residents wishing to sleep. We have approached this case on a site specific basis dealing with 'shop top' Chapel Street residents, nearby rear residents and residents of the neighbourhood.

Having considered all submissions and evidence presented with regard to the amenity impacts and in the context of applicable policies and provisions of the Stonnington Planning Scheme, we have decided to permit a tavern in a modified form to that sought, i.e. a tavern without a beer garden that must be open from noon daily, required to close at 11.00pm from Sunday to Wednesday and with a 200 patron limit.

Planning and Environment; Tavern with on-premises liquor licence 10.00am - 1.00am seven days per week; Business 1 zone; Large Neighbourhood Activity Centre; Strip extension of Principal activity centre; Shopping precinct; Tourist and entertainment precinct; $4 pizzas business plan; Bars generally operate after 5.00pm; Impact on shopping precinct and viability of activity centre; Planning policy for this precinct; Abutting Residential 1 zone to the rear; Abutting residential uses in Business 1 zone; Waiver of car parking; Dual use of loading bay and smoking area and beer garden; State Government Policy increasing residential densities in and around activity centres; Conflict between late night uses within an activity centre and residential amenity within and abutting an activity centre; Precinct wide impacts of late night activity; Precinct wide solution.

Athina Windsor Nominees Pty Ltd v Stonnington CC (includes Summary) (Red Dot) [2011] VCAT 121

1. There being no objection, plans identified as Dwg no. A01 Sheet 1of 2, Dwg no. A02 Sheet 2 of 2 both dated January 2010 and Dwg no. A01 Sheet No. 1 of 1 dated March 2010 are substituted for the plans which were lodged with the application.
2. The decision of the responsible authority in relation to permit application no. 0524/09 is set aside.
3. A permit is granted in relation to land at 67 and 67A Chapel Street, Windsor. The permit will allow use and development of the subject land as a Tavern for 200 patrons, the sale and consumption of liquor on the premises and the reduction of car parking generally in accordance with the endorsed plans and subject to the conditions contained in Appendix 1 to these reasons.

Mr Stephen Jones of Counsel occasionally with Mr Brian Bourke of Counsel instructed by Koutsantoni & Associates, Solicitors. Mr Jones called Mr Robert Burton, Acoustic Engineer of the Burton Acoustic Group; Mr Tony Zalewski, Security Consultant; Mr Donald Robertson, Traffic Engineer of Traffix Group; Mr Bill Horman, Advisor to the Liquor Industry, Mr Damien Teh-White, resident layperson and Mr Alan Henderson of Staley's Hardware, shopkeeper layperson.

Ms Sarah Porritt of Counsel instructed by Bazzani Scully Brand Lawyers. Ms Porritt called Inspector Adrian White, Mr Matthew Townsend, Ms Rosemary Kaufman, Mr Benjamin Turner, Mr David Rosenberg, Mr Stuart Rosenberg and Ms Cathy Roberts to give lay evidence.

Mr Les Kaufman for himself, Rosemary Kaufman, Trent Kaufman and Sarah Kaufman. Mr Kaufman also read a submission from Mark & Marlene Fry.

Use and development of Tavern for 249 patrons operating between 10.00am - 1.00am the following day, seven days per week, with an on-premises liquor licence and the reduction/waiver of car parking.

Application under Section 79 of the Planning and Environment Act 1987.

Business 1 Zone; Heritage Overlay; Special Building Overlay; Abutting Road Zone (Category 1) and Residential 1 Zone.

Clauses 34.01-1 (Use as Tavern), 34.01-4 (Buildings and Works to the rear courtyard); 52.06-1 (Parking reduction/waiver) & 52.27 (Sale and consumption of liquor).

Clauses 11, 12, 14, 15.08, 15.10, 15.11, 17.01, 17.02, 18.02, 19.03, 21, 22.12, 22.16, 52.07 and 65.

Shop with an 8 metre frontage, 46 metre depth and 368m2 floor area in the Business 1 zone of the Windsor shopping centre backing onto Bowling Green Street and the Melbourne Bowling Club, both in a residential zone. The general area boasts a mix of premises including vintage, bohemian and second hand shops, many licensed cafes, restaurants and bars.

Objectors are shopkeepers in the same Business 1 zone, shop top residents, abutting rear ground floor residents in the same Business 1 zone, nearby apartment dwellers in the same Business 1 zone and residents from the more distant residential area.

4, 5, 12, 15, 16, 17, 23 & 24 December 2010 and 19 & 29 January 2011 unaccompanied by representatives of the parties.

Bambou Restaurant v Stonnington CC [2010] VCAT 1758 (25 October 2010); Red Vault Pty Ltd v Stonnington CC [2006] VCAT 392 ; Fink v Stonnington CC [2006] VCAT 349; Hubbard & Ors v Boroondara CC & Ors [1997] VICCAT 199 (24 March 1997) AAT (Vic).

1. Mr Taiaroa is a proprietor of the following taverns: Mothers Milk, Wonderland, Lalaland and Holy Grail on Chapel Street between Dandenong Road and High Street together with Electric Lady Lounge, Blue Bar and Marmalade Bar on or just off Chapel Street between High Street and Commercial Road.
2. With respect to Holy Grail, Mr Taiaroa has taken over and renovated premises formerly operated under a planning permit[2] for on-premises consumption of liquor in association with a part arts and crafts shop and part café within the Windsor precinct of Chapel Street. Shop and café need no planning permission in this Business 1 zone.
3. Mr Taiaroa now applies for planning permission to operate a Tavern holding 249 patrons between 10.00am - 1.00am the following day, seven days per week. As council failed to make a decision within time limits, the operator has lodged this review, with objectors opposing a permit for a tavern. Council advises that if it could, it would have refused permission.
4. The first key issue for determination given the Business 1 zoning is the addition of another tavern into this Windsor end of Chapel Street from the perspective of orderly and proper planning for the Windsor precinct as a whole.
5. The second key issue for determination is that of land use conflicts; the addition of another tavern in this location vis-à-vis amenity impacts experienced by nearby residents, whether 'shop top' Chapel Street residents, nearby rear residents or residents of the neighbourhood.
6. A subsidiary consideration is noise transmission from the proposed rear smoking area/beer garden and traffic impacts flowing from the reduction in onsite parking and shared use of the loading bay/single car space with the beer garden.
7. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.
8. To answer this question we distinguish between Chapel Street at day and at night; and between shop top residents along the Chapel Street Business 1 zone spine, rear residents still in the Business 1 zone and nearby residents in a residential zone.
9. Having considered all submissions and evidence presented with regard to the amenity impacts and in the context of applicable policies and provisions of the Stonnington Planning Scheme, we have decided to permit a tavern in a modified form to that sought, i.e. a tavern without a beer garden that must be open from noon daily, required to close at 11.00pm from Sunday to Wednesday and with a 200 patron limit. Our reasons follow.

1. Aside from use and development permission as a tavern, separate permission is required under clause 52.27 to use land to sell or consume liquor if any of the following apply:
   1. A licence is required under the Liquor Control Reform Act 1998.
   2. A different licence, or category of licence is required from that which is in force.
   3. The hours of trading allowed under any licence are to be extended.
   4. The number of patrons allowed under any licence is to be increased.
2. Prior to this hearing the operator made internal alterations to the premises and floor plan, including raising the entry floor level relative to the street to create an elevated front deck; and altering the façade by construction of bi-fold doors. The changes allow about 90 patrons to be seated in Holy Grail.
3. At first we were under the impression that this case only involved permission for trading an extra two hours per night, from 11.00pm until 1.00am, because the on-premises liquor licence and its accompanying 'red line plan' contains no limit on patron numbers[3]. But the planning permit for on-premises consumption of liquor in association with a part use of the premises as a café only permits 27 seats. Pursuant to the definition of 'restaurant' with its 75/25 percent component, seven more seats can be provided for patrons who only wish to consume liquor, bringing the current patron limit to 34. Thus permission is also required for increasing the number of patrons from 34 to 249 (excluding the footpath). In addition, clause 52.27 permission is required for a new licence to extend the 'red line' to the rear smoking/beer garden[4].
4. The 249 patron number was calculated at 0.75m2 per person resulting in 77 patrons in the elevated front deck and 172 inside (excluding the smoking/beer garden). Mr Horman[5] originally indicated internal seating for 219 patrons on his layout plan, to maximise the number of seats available for patrons[6], but amended his plan during the hearing down to 129 seats by deleting stools and converting part of a VIP room to an office.
5. Although Permit No. 636/08 restricts changes to the floor plan without secondary council consent, a permit for buildings and works altering the former shop façade by construction of bi-fold doors was granted by council on 23 March 2010[7]. This permit was required pursuant to clause 43.01-1 because of the site's heritage overlay. No permit was required pursuant to clause 34.01-4 for internal rearrangement[8] or for alteration to an existing building façade because at least 80 per cent of the building facade at ground floor level was maintained as an entry or window with clear glazing.

1. Transformations in built form, planning and local laws have changed lifestyle patterns. One transformation is the result of smoking laws, sending patrons who smoke outside a building. A second transformation is footpath trading licensed by council; leaving 1.5 metres clear for pedestrian traffic.
2. A built form transformation is the result of folding façade doors or windows opening out onto footpaths and large external heaters and awnings enabling patrons to eat and drink on the footpath, at its shopfront, on external decks or beer gardens. The outside has become an extension of the inside. Most Chapel Street restaurants and bars take advantage of this new built form phenomenon. This results in vibrant activity centres with consequential noise transmission and blocked footpaths to which we refer to later.
3. Another transformation is the conversion of Activity Centres to include multi level shop top dwellings, housing singles or small families in compact dwellings near public transport, shopping and other services.
4. The final transformation is a consequence of higher density, compact dwellings - all the more necessary when living quarters are dense and modest: boasting tiny galley kitchens, rooms with borrowed lighting and no secluded private open space. People's kitchens and dining rooms have become cafes and restaurants; people's living rooms have become bars. We also refer to conversion of the humble footpath to communal open space. All these are places to which residents can go to have a latte, beer or cocktail, eat their dinner, relax, meet people and socialise.

At the legislative level - Planning and Environment Act 1987

1. Pursuant to the Planning and Environment Act 1987, s.4(1) objectives of planning in Victoria are, inter alia, to provide for the fair, orderly, economic and sustainable use and development of land and to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and its visitors.
2. Pursuant to s.4(2) of the Act, the objectives of the planning framework are inter alia, to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land.

At the State policy level - Stonnington Planning Scheme

1. Planning must anticipate and respond to the needs of existing and future communities through provision of zoned and serviced land for housing, employment, recreation and open space, commercial and community facilities and infrastructure, as well as to prevent environmental problems created by siting incompatible land uses close together[9].
2. Activity centres such as Chapel Street should be a focus for business, shopping, working, leisure and community facilities and provide different types of housing, including forms of higher density housing[10].
3. A diversity of housing types at higher densities is encouraged in and around activity centres in line with Melbourne 2030: A planning update Melbourne @ 5 million[11]. The mix of uses in activity centres should be broadened to include a range of services over longer hours appropriate to the type of centre and needs of the population served; to provide a focus for business, shopping, working, leisure and community facilities and to encourage economic activity and business synergies[12].
4. As for noise emissions, clause 13.04-1 seeks to ensure that development is not prejudiced and community amenity is not reduced by using a range of building design and land use separation techniques as appropriate to the land use functions and character of the area.
5. The public realm, which includes main pedestrian spaces, streets and walkways, should be protected and enhanced and new development should create urban environments that enhance personal safety and property security and where people feel safe to live, work and move in at any time[13].
6. Planning should provide for a strong and innovative economy, where all sectors of the economy are critical to economic prosperity. Planning is to contribute to the economic well-being of communities and the State as a whole by supporting and fostering economic growth and development by providing land, facilitating decisions, and resolving land use conflicts, so that each district may build on its strengths and achieve its economic potential[14].
7. Planning should also encourage development which meets the communities' needs for retail, entertainment, office and other commercial services and provides net community benefit in relation to accessibility, efficient infrastructure use and the aggregation and sustainability of commercial facilities[15].

1. The starting point for assessing this proposal is to look at the purpose of the Business 1 zone, which is 'to encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses'. Key words are intensive and retailing followed by other complementary. This demonstrates that the primary purpose is retailing, with other commercial, entertainment or community uses complementary to that primary purpose.
2. Shops, dwellings above the ground floor, offices above the ground floor [16] and food and drink premises (other than hotel, restaurant and tavern) are all uses requiring no planning permission in any Business 1 zone. Restaurants require no planning permission[17].
3. Thus cafes, restaurants and shops perform the primary purpose in this zone, as do shop top offices and dwellings.
4. Taverns do require planning permission. Taverns, commonly referred to as bars, are defined as:

land used to sell liquor for consumption on the premises.

land used to prepare and sell food and drink, for consumption on the premises. It may include the supply of liquor other than in association with the serving of meals, provided that tables and chairs are set out for at least 75% of patrons present on the premises at any one time[18].

1. All this tells us much about the decision making context of this case, which is that shops, cafes and restaurants, but not bars, can trade intensively and without restriction on this site, in this precinct and indeed along the whole of Chapel Street, except for any liquor permission required under clause 52.27.
2. All this also tells us that dwellings above-ground are encouraged in this zone. The policy context behind this is, as per clause 11.01-2, to generate a synergy between the two uses so that a greater number of people use conveniently located goods and services and reduce vehicle trips by using public transport found in Business 1 zones; while shops and business benefit from increased numbers of nearby residents.
3. While objectors may assume that shops or especially daily needs shops should be the primary use, there is no limit in the schedule to the Business 1 zone in this Windsor section of Chapel Street (or indeed any other precinct) to constrain the number of restaurants from establishing and those restaurants may supply liquor without food to 25% of their patrons.

1. Amendment C78 to the Stonnington Planning Scheme came into operation on 5 November 2010, shortly before this hearing commenced. The amendment changes the Local Planning Policy Framework at clause 21.04 to introduce land use and amenity objectives and to introduce a new interim local policy at clause 22.19 to guide land use, development and built form for the Prahran/South Yarra and Windsor Activity Centre (under a DDO7) until 31 October 2012.

1. Clause 21.04-1 recognises that:
   1. The effects of competition and changing shopping patterns are a continual challenge to the economic viability of activity centres;
   2. Licensed premises and other entertainment uses can have a negative impact on retail viability due to their late hours of operation, noise, traffic and parking congestion; and
   3. It is important to maintain a balance and mix of uses in activity centres.
2. Predominance of uses such as restaurants and licensed premises in activity centres is discouraged. Clause 21.04 directs us to use the Retail Centres Policy (clause 22.09) in the consideration of planning applications and the Licensed Premises Policy (clause 22.10) to manage licensed premises.
3. A recognised challenge is that larger commercial areas and their entertainment venues have generated negative impacts on surrounding residential areas and these have been difficult to control. Licensed premises are discouraged from locating close to residential zones and licensed premises which trade after 11.00pm are encouraged to locate at appropriate locations in principal and major activity centres. This policy is repeated in clause 22.10-3.
4. It is critical to note that the gazettal of Amendment C78 on 5 November 2010 introduced a hierarchical difference between the Chapel Street Windsor precinct and the balance of Chapel Street. At clause 21.04-2 Windsor is classified as a Group 3 Large Neighborhood Activity Centre, a 'larger local centre catering for everyday needs and wider specialty markets' in contradistinction to the remainder of Chapel Street that is classified as a Group 1 Principal Activity Centre: a regional centre with both local and regional roles and complementary entertainment uses. This is reflected in the Map attached to clause 21.01, also gazetted in Amendment C78, tying clauses 21.01, 21.04 and 22.10-3 together.
5. We note that whereas clause 22.19 introduced in Amendment C78 is interim, expiring on 31 October 2012, the amendments to clause 21.04 are permanent.
6. It is also worth noting that footpaths come in for a mention. They are seen as providing a community focus and enhancing a shopping centre's vibrancy consistent with local laws[19].

1. Drilling down, clause 22.09-1 Retail Centres Policy repeats the Group 3 Windsor Large Neighborhood Activity Centre hierarchy. It is policy[20] in the Windsor Group 3 centre to consider proposals on the basis that they retain the individual character of the centre while complementing the area as a whole, i.e. predominantly retail and some entertainment uses, with a wider mix of office and service uses at the southern end.
2. Clause 22.09 encourages a diversity of businesses, goods and services that will enhance economic viability, including a variety of entertainment uses mainly in the Group 1 centres (Chapel Street north of High Street). However, a balance between retail and entertainment uses is sought along with the protection of the amenity of any surrounding residential areas.
3. Clause 22.09-1 refers back to clause 21.01 of the Municipal Strategic Statement encouraging residential development, including shop tops, to locate in retail areas.

1. This is an interim Policy expiring on 31 October 2012 seeking to:

retain the Windsor precinct as a distinctive, community orientated, low rise, urban village that is energised by its low scale fine grain heritage forms and the interaction and diversity of creative, educational, residential and community uses.

The Planning Minister at the time explained its urgent introduction into the planning scheme to map out a strategic urban design and activity vision for the activity centres pending a formal exhibition process and based upon the Chapel Vision Structure Plan which was developed through a community consultation process[21].

ground floor uses that contribute to a vibrant street life, provide a safe environment and which minimise the potential for conflict and the over-privatisation of the footpath; support the provision of further and a greater range of housing opportunities, including higher density housing; and support uses that activate building frontages......

1. As for amenity, the policy calls for consideration of the potential impacts of late night venues on residential uses including amenity, wellbeing, social and cumulative impacts and to ensure that the potential impacts are not unreasonable. Entertainment uses are required to contribute to improved management of arrival and discharge of customers from venues and the Activity Centre.

Clause 22.10 Licensed Premises Policy[22]

1. The policy acknowledges the importance of licensed premises in contributing to the vibrancy and economic strength of the municipality, whilst simultaneously recognising their negative impacts which may affect that very vibrancy.
2. Firstly, licensed premises should have no unreasonable impact on the amenity of surrounding uses, in relation to noise, hours of operation and car parking demand.
3. Secondly, the location of the licensed premises, its use, nature of surrounding uses and hours of operation, its zoning and the zoning of surrounding land must all be considered in the determination of the hours of operation of the licensed premises.
4. Thirdly, the preferred location for premises trading after 11:00pm is in Principal and Major Activity Centres, subject to compliance with all other aspects of this policy. The Windsor precinct is not categorised as a Principal or Major Activity Centre. Rather, pursuant to clauses 21.01 & 21.04 it is a Large Neighborhood Activity Centre.
5. Fourthly, trading after 11.00pm is discouraged for licensed premises adjacent to a residential zone/use unless the responsible authority is satisfied that the use will not adversely affect the amenity of the area.
6. Fifthly, licensed premises should not be concentrated to the extent that there is an adverse cumulative effect on the area.
7. Sixthly, day-time uses and active frontages are encouraged within activity centres.
8. Finally, licensed premises should operate in a manner that provides for the safety of patrons, the general public and nearby owners and occupiers of land.

1. For the sake of completeness, we note that Amendment C129 was placed on public exhibition on 16 December 2010 shortly after this hearing finished. It proposes changes to policy at clause 22.10 Licensed Premises Policy referencing council's licensed venues Research Paper[23]. The Explanatory Report is fulsome, lengthy and speaks for itself. We are sure it will engender much debate through the amendment process.

1. Taverns are generally late night creatures and the Holy Grail seeks to trade until 1.00am daily. What activities, including evening or late night activities, now occur within this area that influences our decision making?
2. Chapel Street is many things to many people and always described as vibrant. At a metropolitan or regional level, Chapel Street is a tourist destination, a magnet for young and old alike, out to shop or to socialise, have a good time and meet people. People trawl along Chapel Street on the lookout for other people, to see and be seen, moving between its many and varied bars, restaurants and nightclubs.
3. At a local level, Chapel Street plays an equally important role for its local residents, providing daily or high end shopping facilities and food and drink premises enabling people to socialise, relax and have a good time. Locals include the many people accommodated in the higher density apartments and other forms of housing specifically encouraged by the planning scheme to locate in and around the Chapel Street spine and Activity Centre.
4. There is a difference between daytime and night time activities, with different sections of Chapel Street trading in different order goods or food and drink premises during the day. The South Yarra precinct specialises in high end fashion, while the Prahran precinct trades in daily needs and services, with both precincts interspersed with restaurants and bars. The Windsor precinct has always been more 'grungy' than the other precincts, specialising in second hand, bohemian and vintage goods with restaurants and bars interspersed.
5. At night shops close leaving licensed restaurants, bars and nightclubs to take over. A very significant number of restaurants trade all day including into the evening and early night, although there is a difference between weekends and weekdays. Most restaurants and bars close by 11.00pm Sunday to Wednesday nights, with 'the action' on Thursday to Saturday nights.
6. Bars or taverns, however, generally[24] only get going from the late afternoon operating into the early hours of the morning. Nightclubs operate from late night into the morning, depending on their permits, with most nightclubs situated above ground floor level[25].
7. Objectors and supporters in this case attest to the Windsor end of Chapel Street changing within the last five years. Chapel Street Windsor clearly 'pumps' on Friday and Saturday nights and 'buzzes' on a Thursday night, together with, and indistinguishable from, the remainder of Chapel Street. We were told the action has moved to this Windsor end with an increasing number of bars and restaurants establishing as a result of lower rents than the Prahran or South Yarra precincts.

1. Given the strength of opposition to this additional bar, the Tribunal inspected the site and its surrounds on many occasions. One inspection on the warm Saturday night of 4th December 2010, between 9.30pm - 1.00am, revealed the unmistakable fact that on a Saturday night the whole of Chapel Street (from Toorak Road to Dandenong Road) 'pumps', and we assume it is similar on Friday nights. We also consistently observed considerable activity on Thursday nights.
2. This leads us to the conclusion that nothing we decide in this particular case will change this character of Chapel Street on Friday and Saturday nights. Much the same goes for Thursday nights, although activity on that night is of a lesser intensity. At night, as observed by the Tribunal in the 2010 case of Bambou[26], we could not draw a distinction between the different precincts of Chapel Street. They blended together as a single entertainment precinct.
3. There are a very significant number of licensed restaurants and taverns in this Windsor neighbourhood centre that operate into the night. Killing Time, Mothers Milk, Wonderland, Railway Hotel, Union Hotel, The Swan Hotel and The Social, as well as Holy Grail, are bars. Dino's, Taco Bill, Yellow Bird, Orange, Tyranny of Distance, Destino Latin Bar, Topelz's, Mama Ganoush and Tusk are restaurants serving food with liquor. Railway Hotel and Union Hotel also serve pub meals.
4. On the night of Saturday 4 December and subsequent Saturday nights, the Tribunal observed and heard what residents complained of - loud voices accompanied by shrieks of laughter expressed by people just having a good time, crowded footpaths with pedestrians negotiating their way through throngs of patrons, beer bottles left on footpaths, broken glass in or near gutters, rubbish strewn footpaths, traffic crawling along Chapel Street with music blaring from rolled down windows etcetera.
5. Other nights of the week, however, result in a different experience. By 11.00pm on a Sunday night before a workday the next day, far fewer restaurants and bars are open along the length of Chapel Street. The same applies by 11.00pm on a Monday, Tuesday and Wednesday night. The action starts again on a Thursday night, with the length of Chapel Street 'buzzing'.

1. We inspected Tyranny of Distance, a licensed café serving breakfast, lunch and dinner, in Union Street behind Chapel Street. It is in a Business 1 zone, abuts a Business 2 zone and is diagonally opposite Melbourne Bowling Club which is in a Residential zone. No planning permission is required for such a restaurant use in this zone. We could not hear any background music, but we could clearly hear their patron noise 150 metres away on the balconies of the Maddock Street apartments, admittedly improving with residents' doors closed.
2. The Melbourne Bowling Club also hires out its clubhouse for functions, and we heard one function with live amplified music clearly audible in the Maddock Street apartments and at Mr Stuart Rosenberg's dwelling opposite in Bowling Green Street.

1. Daytime inspections saw Windsor busier on a Friday than a Monday, for example. We saw that nearly all bars between Dandenong Road and High Street are closed until 5.00pm[27] although old fashioned pubs serving bar meals (Railway Hotel, Swan Hotel and Union Hotel) are open. Although Holy Grail was open, it was very dimly lit and not patronised as in the evenings. Some restaurants and take-away food premises at the southern end of Windsor, such as Taco Bills, Topelz, Mama Ganoush and Papalinos, were also closed until 5.00pm.
2. On the other hand, restaurants such as Orange, Yellow Bird, Tusk, Dino's, Destino Latin Bar and Vodka Borscht & Tears were thriving.
3. On a Friday lunch time before Christmas, the Swan Hotel had poor and raucous patron behaviour on its Chapel Street pavement tables and benches, with loud patrons swearing and spilling out of their licensed trading area onto the roadway and blocking the pedestrian section of the footpath, although better footpath trading behaviour was observed on a Saturday night when women were present.

1. After Holy Grail was criticised for loading their support petition with their employees' friends and relatives, two unrelated supporters gave lay evidence to us. Mr Teh-White lives in Elm Place and his children attend St Michael's school. His family walks Chapel Street Windsor and regularly eats in its restaurants. He wines and dines clients here and drinks at Mr Taiaroa's bars. He loves Windsor's retro culture and has not experienced the violence, blood stains, litter, crowded footpaths attested to by other witnesses, nor has he ever felt threatened. Mr Teh-White admits he can afford to live off the Chapel Street spine and not suffer its inevitable noise impacts. He also lives in a dead-end street which is not a thoroughfare for alcohol affected patrons. Mr Teh-White was under the impression that Holy Grail was seeking a restaurant licence, not a tavern licence.
2. Mr Alan Henderson of Staley's Hardware Windsor now lives in Ashburton, but in the 1990's lived with his family on top of his former Chapel Street shop. He has worked at Staley's Hardware for more than 25 years and witnessed changes from empty shops to a vibrant precinct, which he lauds. His shop top tenant sleeps in the middle of the upstairs dwelling and does not complain. He has changed his stock from DIY to residents' needs, serving the many small apartments that have been built in and around this activity centre.
3. Mr Henderson acknowledges that 'one third of Chapel Street Windsor selling liquor' is probably not a diverse precinct and half a street of closed shops would be bad for business. He was under the impression that the permit applicant was already permitted 249 patrons and only sought an extra two hours (11.00pm - 1.00am daily) of trading.

1. Objectors fall into three categories - shop top residents who experience immediate impacts along the Chapel Street spine; rear Chapel Street residents; and those who are more removed but experience the 'morning after' effect of late night venues.
2. Consistently, we were told of Chapel Street attracting a drinking culture with people attracted into the area late at night, possibly pre-loaded[28], either exuberant or drunk, with consequential rowdy or abusive behaviour and no concern for residents.
3. Ms Cathy Roberts described having to avoid certain sections of Chapel Street on her walk to Prahran market. Mrs Kaufman described feeling unsafe walking the streets after day trading has ended and Mr Turner described manoeuvring between patrons who block footpaths outside bars and restaurants.
4. Inspector White attested to the difficulty he faced getting enough police officers for Chapel Street patrols. He also feared cuts to the number of his patrol officers.

1. Objectors such as Mr Matthew Townsend and Ms Roberts attest to a change in the area over the last five years. What was a predominantly a retro or bohemian shopping centre has changed to a late night area attracting patrons who indulge in anti-social behaviour such as urinating and vomiting in the street, littering, shouting and alcohol fuelled violence.
2. Mr Townsend submitted that impacts from the agglomeration of late night bars and nightclubs along and near Chapel Street have reached such a level as to justify refusing the current application in order to prevent the 'already full glass overflowing'.

Experiences of Chapel Street spine proprietors and residents

1. Mr David Rosenberg, proprietor of Rosenberg's Shoes which is next door to Holy Grail, gave evidence of increased litter and urinating within his recessed heritage shop front, a daytime bashing inflicted upon his shop tenant next door as well as blood filled syringes from drug related activity in his rear toilet, prompting him to erect a paling fence between his rear car park and shop.
2. Because Holy Grail is open before 11.00 pm, we were able to hear and observe the noise and activity that emanated from their footpath trading tables and their elevated and open front deck towards Ms Helen Round's dwelling above her shop diagonally opposite. If Ms Round would close her window and be without ventilation, it would greatly decrease noise into her front bedroom, except that her window mounted air conditioner has gaps allowing noise entry. Ms Round would be less disturbed if she slept other than in the front bedroom, but she has few options. Her upstairs living room is small and windowless. Her daughter sleeps in the rear bedroom.
3. Because Holy Grail closes at 11.00pm, consistent with its liquor licence, in theory its operation should not bother Ms Round after 11.00pm, except that she complained of patrons lingering and causing loud noise. She and other shop top dwellers would still experience the Chapel Street buzz of trams, cars, hoons, taxis, occasional sirens (ambulance or police) and people trawling up and down Chapel Street, bar-or-nightclub-hopping.
4. Ms Round gave us a plan of this section of the Chapel Street spine showing a surprising number of eleven shop top residents in the same block as Holy Grail and thirteen in the block opposite (between McIlwrick and James Streets).
5. The question we need to ask ourselves is whether shop top dwellings justify curtailing late night activity in activity centres to allow people to sleep, or whether such curtailment is an unreasonable impost on businesses along the spine of this activity centre?
6. Holy Grail's 11.00pm closure clearly results in an improvement in amenity to Ms Round from what would otherwise be very invasive noise associated with extended trading hours. At the same time it must be said that any café or restaurant can trade without a planning permit and a liquor licence on this site would likely be granted until at least 11.00pm and possibly 1.00am on Friday and Saturday nights.
7. Balancing the many policies for Chapel Street, we have come to the conclusion that Ms Round's particular circumstances cannot dictate an imposition on what is otherwise a normal, regular and to-be-expected Chapel Street activity. We discuss this later.

1. Some objectors live around the corner in the four storey Maddock Street apartments, but their balconies and windows face Holy Grail's proposed rear smoking area/beer garden. Basement vehicle entry to these apartments is accessed off Bowling Green Street which is also the rear boundary of the Holy Grail site. The Maddock Street apartments contain a restaurant on the ground floor, licensed to 11.00pm weekdays and to midnight on Saturdays.
2. Mr Ben Turner lives on the first floor of the Maddock Street apartments, with clear views through to the rear of Holy Grail and its proposed smoking area/beer garden. He already experiences late night noise from the smoking area at the side of Taco Bill's, from Tyranny of Distance café and from any function held at the Melbourne Bowling Club. Despite the distance from Tyranny of Distance, his experience is the result of the businesses' bi-fold windows or doors together with outdoor heaters, which convert an often inhospitable Melbourne outdoors into an extension of the inside.
3. Mr Turner pointed out that his well fitted one-bedroom unit (with borrowed lighting into that bedroom) is so small that his window cum balcony is an integral extension of his living room/dining/ kitchen, allowing ventilation and light into what would otherwise be a small box. Consequently, he has renovated his balcony to include decking and a barbecue, has screened his air conditioning unit and planted a truly magnificent vertical wall garden. There are other similar small balcony apartments in the apartment block.
4. The Kaufmans live on the top level of the apartment block, but unlike Mr Turner, have a large apartment with stunning views of the city skyline. From their balcony and upper deck with pool, they too experience noise down Bowling Green Street from Tyranny of Distance as well as amplified music emanating from the Melbourne Bowling Club. We heard, as they would, the whistles and sounds of approaching and departing trains but agree with them that those noises were not invasive. Trains run more smoothly now compared to the noisy rattlers that once traversed the tracks below. Chapel Street noise around the corner was also much less obvious.
5. Mrs Kaufman attested to being woken by noise at 4.30am from private rubbish collectors at Holy Grail as their bottles crashed into bins (although this can be addressed by permit conditions) and of being forced to walk along the road pavement because of Wonderland's patrons blocking the Maddock Street footpath (although this can be cured by council enforcing its own footpath trading licences).
6. Wonderland used to be known as the Red Vault wine bar. On 31 March 2006 the Tribunal approved a 'tavern' operating until 11.00pm Sunday to Thursday and until 1.00am Friday and Saturday nights on the basis of it being a wine bar as distinct from a late night venue:

The emphasis is to be on the serving of premium wines in a sophisticated and well appointed setting[29].

Only eight months later, Wonderland obtained a new permit from Stonnington council extending its trading hours to 1.00am seven days per week On 27 July 2009 it obtained a permit to convert its Maddock Street walls to folding doors and on 16 February 2010 it obtained another permit to erect retractable awnings along its entire Maddock Street sideage coinciding with its footpath trading licence. This explains Ms Kaufman's difficulties with negotiating her way along the Maddock Street footpath.

1. As for Wonderland's footpath trading, its licence permits it 21m2 on both Chapel and Maddock Streets extending along its entire sideage. We marvel at council's propensity to licence its footpaths but its reluctance to supervise and enforce footpath trading.
2. We also marvel at the subsequent permit issued by council which enlarged the original VCAT permission, despite council's attitude to late night venues.
3. Mr Stuart Rosenberg of Rosenberg's Shoe Store lives in a single storey detached dwelling to the rear of the shop. It was built around the 1930's and fronts Bowling Green Street. It commences 12 metres from the rear of Holy Grail. A bedroom window faces the proposed beer garden/smoking area. It is the most affected of all the nearby residential premises. Two other residents live in other dwellings at the rear and above Rosenberg's shoe shop.
4. On the night of our inspection, we experienced the shrieking of exuberant, possibly drunk patrons coming from the outdoor eating/smoking area at the side of Taco Bill's restaurant abutting Holy Grail.
5. The question we need to ask ourselves is whether, if we permit Holy Grail to trade as a tavern, that trade should extend into its rear loading area/car space given the noise already experienced as a result of existing lawful operators. We address this next.

ANALYSIS - REAR SMOKING AREA/BEER GARDEN IMPACT ON RESIDENTS

1. The purpose behind clause 52.27 of the planning scheme separating liquor from as-of-right or permissible land uses is to ensure that licensed premises are situated in appropriate locations and that the impact, including cumulative impact, of the licensed premises, hours of operation and number of patrons, on the amenity of the surrounding area is considered.
2. We note that SEPP N-1 and SEPP N-2 do not deal with patron noise, only music and equipment noise. According to Mr Burton's expert evidence, the existing background noise levels in Bowling Green Street was measured at 41dB(A). Averaged patron noise level measured at similar beer gardens is 75dB(A), with 98dB(A) from raised or rowdy voices resulting in sleep disturbance.
3. Given the clear detriment to amenity already experienced by Maddock Street and Bowling Green Street residents from Tyranny of Distance, Taco Bill's and the Bowling Club, we consider that it would be unreasonable to introduce late night noise from up to an additional sixty patrons any closer to their dwellings (12 metres to Mr Stuart Rosenberg and Mr David Rosenberg's tenants and 50 metres to the Maddock Street apartments).
4. We form this opinion despite Mr Burton's evidence that noise levels in the beer garden can be brought down to an acceptable level - 46dB(A)[31] - by the incorporation of various acoustic treatments[32].
5. People are entitled to a night's sleep even if they do live in a Business 1 zone within an activity centre, otherwise the government's strategic push to increase residential densities in and around activity centres would fail abysmally.
6. We also see no imperative for the smoking area given that Holy Grail's patrons can smoke on the Chapel Street footpath and given that its elevated open-to-air shopfront (the result of fold-back doors) also qualifies as a smoking area under the Tobacco Act 1987.
7. Refusing permission to convert the rear loading bay/car park into a beer garden would also preserve it for parking and loading purposes. We consider that Holy Grail should provide on-site parking to the greatest extent possible rather than delete the little they contribute to the area.

1. We start with the rhetorical question: Is there not a reasonable expectation to locate a tavern at 67 Chapel Street Windsor? After all, if you can't locate a tavern here, where can you locate one?
2. Pursuant to clause 22.10-5, a swathe of decision guidelines must be applied in determining whether to grant a permit. These include:
   1. the zoning of the land and surrounding land;
   2. the location of the proposed licensed premises, nature of its use, and proposed hours of operation;
   3. the nature of surrounding uses and their hours of operation;
   4. the potential effect of the use on the amenity of the surrounding area;
   5. the proximity of the proposed licensed premises to residential uses and accommodation;
   6. if adjacent to a residential zone/use, the impact of the licensed premises after 11:00pm caused by the operation of the use including noise emissions, patrons leaving the premises and the availability and location of car parking;
   7. the impact of the proposed licensed premises on the mix of uses located within the activity centre and the vitality and viability of the activity centre during the day and at night;
   8. the impact of the proposed licensed premises on the activity centre; the adequacy of management of the licensed premises including security; adequacy of measures proposed in the Noise and Amenity Action Plan;
   9. the availability and location of sufficient car parking for the use;
   10. the impact of the proposed licensed premises on the local traffic network and car parking availability in the area;
   11. the views of the Victoria Police and any other relevant matter.
3. If the application is to expand the licensed area or extend the trading hours of existing licensed premises decision guidelines include the adequacy of existing management of the licensed premises having regard to the views of the Victoria Police; relevant information available to the responsible authority including records of attendances, complaints and/or problems with the premises, and breaches of planning permit or liquor licence conditions and conditions of the existing liquor licence or planning permit controlling noise, security, patron numbers and hours of operation.
4. We take all of the above into account because of the fact that the Holy Grail is already in operation even though its limited gallery and café planning permit is a significant constraint on its current operation.

1. Inspector White, who polices activity in licensed premises in Stonnington, opposed this application on the basis that adding another large tavern to the proliferation already established would add to alcohol fuelled violence in the precinct. He advised that he had inadequate resources to police the existing activity and Chapel Street already used more resources on a Saturday night than any other area in the municipality.
2. Ultimately, concerns about saturation relate to larger bars and nightclubs with very late night trading hours (after 1.00am), high reliance on vertical drinking, overcrowding, high noise levels and low light levels.
3. Compared with the likes of Killing Time, Mother's Milk, Wonderland or other boutique bars, Holy Grail's proposed 249 patron size[33] is characterised as a large tavern. However we have approached this case on a site context basis on the understanding that permit conditions would constrain the operation of this tavern. Accordingly, we do not need to address the saturation argument. We are satisfied that permit conditions would ensure it not become an 'alcohol fuelled violence' risk venue.

Reasonable amenity expectations of residents within or abutting an Activity Centre

1. One critical issue in this case is the conflict between prima facie reasonable locations for taverns or bars and reasonable expectations of residents encouraged to live in and around an Activity Centre.
2. It is trite and oft repeated that residents who live in or adjacent to an Activity Centre cannot expect the same amenity as that experienced by residents in the quiet heart of a residential zone: Indeed, they must expect a much lower level of residential amenity.
3. What does this mean in this case? It must mean that residents experience hustle and bustle including noise all day and into the night. Examples are the tram along Chapel Street, the train through Windsor Station, fire trucks leaving Windsor Fire Station, cars along Chapel Street and in council's car park behind the subject site, customers shopping along Chapel Street and patrons enjoying the entertainment precinct for which Chapel Street is famous. It also means that if trading hours change and expand into evenings and weekends, they must experience extended trading hours. All this makes for a vibrant activity centre.
4. Advantages enjoyed by these residents are the ability to walk to shops, schools, services, cafes, restaurants and bars, hop on convenient and multi directional public transport, and enjoy vibrant street life.
5. Amongst other reasons such as halting urban sprawl and increasing use of public transport, consistent government policy over the last decade has been to encourage shop top housing and higher residential density in and around Activity Centres. This provides a synergy between customers for activity centres and, for the residents, easy access to shops, cafes, restaurants, services and transport.
6. Added to the above mix is the expectation by licensees that if they cannot conduct business within an Activity Centre, and more particularly in the renowned Chapel Street Tourist and Entertainment Precinct, where can they locate?
7. In this case evidence presented to us on the impacts from late night activities extended to residents saying it was neither safe nor pleasant walking their neighbourhood streets late at nights and early mornings.
8. To answer this question, we need to distinguish between 11.00pm and 1.00am closing.

1. Our frequent inspections reveal that on Thursday, Friday and Saturday nights, adding another late night tavern to the buzz that is already occurring in Chapel Street would make little difference, even until 1.00 am. Firstly, any café or restaurant can trade without a planning permit and a liquor licence would likely be granted until 1.00am on Friday and Saturday nights. Secondly, the proliferation of existing late night venues that are open until 1.00am or later already generates noisy people travelling along Chapel Street in this vicinity until the wee hours of the morning. Even Ms Round reasonably acceded to Holy Grail trading until 1.00am Friday and Saturday nights in the event we were persuaded to grant a permit.
2. Council's own Research Paper[34] reports that:

Research conducted for council by SGS Economics found at peak times approximately 100,000 people per night come to this precinct.

1. As for alcohol-fuelled violence and vandalism, we sympathise with the budgetary constraints of Victoria Police, but see the solution in a precinct wide police operation rather than preventing more taverns from trading along Chapel Street on Thursday, Friday and Saturday nights. Budgetary considerations should come out of State revenue: It is partly towards policing that residents of these areas pay their taxes. There is no excuse for police not getting this much-needed support from the government.
2. As for litter, vomit, trash and vandalism, we sympathise with residents in and around this activity centre, but say that it is partly towards this that tavern proprietors and residents of these areas pay their rates. Council needs to clean up the streets before 6.00am Friday, Saturday and Sunday mornings, so that early morning locals can enjoy the area into which they have been encouraged to move. There is no excuse for council not providing this much-needed service to its residents.
3. There may even be cause to impose a special rate upon all, or perhaps only certain, licensed premises to pay for roving patrols to police the neighbourhood and for clean-up operations. In short, any solution (aside from educating the young about alcohol) must be precinct wide or centre-based, following the principle established by Member Liston, as he then was, in Fiorelli[35]__.
4. As for congested footpaths and pedestrians' difficulty manoeuvring between footpath trading patrons, we say that from the monies charged by council for footpath trading licences, council should appoint an enforcement officer to monitor that patrons do not spill beyond the authorised area and that all other footpath trading code permit conditions are complied with.
5. We would allow a tavern to trade until 1.00am in the morning after Thursday, Friday and Saturday nights. Shop top residents along the Chapel Street spine can reasonably expect no less. It may mean that people like Ms Round have to sleep behind the front room facing Chapel Street on Thursday, Friday and Saturday nights or install double glazing, tight window seals or alternative remedies; but shop top residents cannot expect to constrain late night activity along Chapel Street. We say that despite the fact that the preferred location for licensed premises trading after 11.00pm is in the Principal and Major Activity Centres - not Large Neighbourhood Activity Centres.
6. This does not negate the need to impose conditions limiting impacts generated by licensed premises during trading and we will do so.

1. Our inspections revealed that by 11.00pm on a Sunday night before a workday the next day, far fewer restaurants and bars are open along the length of Chapel Street. The same generally applies by 11.00pm on a Monday, Tuesday and Wednesday night. This is consistent with the policy at clause 22.10 and also supports policy at clauses 21.04, 22.19 and 21.10 to restrict late night venues (after 11.00pm) to the Principal or Major Activity centres (which excludes Windsor).
2. From Sundays to Wednesdays we see no justification to depart from that policy and expand the late night activity of this shopping centre beyond that which is currently its custom or practice. This will prevent the precinct from turning into what residents, business proprietors and police fear - 'another King Street' - or a free-for-all late at night.
3. The effect of this would also be to enable residents living in the activity centres' Business 1 zone to get a night's sleep after 11.00pm closing.
4. We will restrict Holy Grail's trading until 11.00pm Sunday to Wednesday nights and, after this hard fought case, we expect the responsible authority not to enlarge our permission, unlike what occurred in Red Vault.

1. As reported in Mr Burton's statement of evidence, background noise levels in Chapel Street near the front of the premises were measured at 50 dB(A). When background music[36] is added to patron noise, Mr Burton estimated noise levels at 80dB(A).
2. To make background music levels comply with SEPP N-2, Mr Burton advised that a rear airlock and front laminated glass partition must be combined with the existing roof/ceiling. A permit condition will require this to be shown on endorsed plans.

1. We concur with the evidence of Mr Robertson that on a precinct wide basis, spare parking capacity is available in this area at all times, predominantly from the nearby Windsor public car park opposite the railway station. Our Saturday night inspection confirmed that the car park was mostly empty. It is therefore not critical that there is saturated parking along Chapel Street. Further, many patrons rely on taxis for transport because of drink-driving laws.
2. Maddock Street residents feared a fenced smoking area/beer garden would result in Holy Grail's delivery vehicles blocking access to their basement car park via narrow Bowling Green Street. As we noted earlier, we consider it equitable that the existing rear car park should be retained for loading and parking.

1. There was also a suggestion that the unlawful conversion from the arts and crafts gallery/café to a tavern, generating an increase in patrons from 34 to around 90 militated against the grant of a permit for an operation that needs close monitoring by management to prevent off-site impacts. Although we are unimpressed by these actions by the operator, the unlawful conversion has allowed us to better appreciate the impact of the use on the activity centre and its residents.

1. We need to ask ourselves whether permission should be refused because this additional tavern will be detrimental to the operation of the Windsor neighbourhood shopping centre which extends between Dandenong Road and High Street.
2. Notwithstanding that at night we cannot distinguish between the three different precincts of Chapel Street unlike daytime when the differences are obvious, we approach this question in the light of the planning scheme's express desire to retain the Windsor precinct as a Group 3 'Large Neighbourhood Activity Centre'.
3. It was submitted that the addition of another bar into this Windsor precinct would be detrimental to the success and functioning of the shopping centre, given that its primary purpose is retailing, with other commercial entertainment or community uses as complementary. However, conversion of shops to licensed restaurants is as-of-right and can alter the character and focus of the centre[37].
4. Loss of daily needs shops is thus not protected by the planning scheme and it is not our place to interfere with market forces.
5. Our inspections also revealed that licensed cafes and restaurants trading breakfast, lunch, dinner and supper constitute a major part of the vibrancy and vitality of Windsor, because they serve local residents as well as visitors to the area, and students and staff of Swinburne University.
6. Furthermore, in their desire to attract and keep customers, it is in the interests of these café's and restaurants that surrounding footpaths are kept free from vomit, urine and litter from night-before effects.

Detriment to the amenity of the shopping centre - licensed businesses

1. Evidence was provided about a very substantial number of premises licensed in one form or another in this Windsor precinct between Dandenong Road and High Street. Existing premises number 53 with two more licensed premises opening at 98 & 100 Chapel Street. Double fronted 100 Chapel Street is mooted to become a Coles Liquorland bottle shop while 98 Chapel Street has a recent planning permit[38] for as-of-right restaurant with restaurant/café liquor licence for a maximum of 200 patrons operating 7.00am - 1.00am the following day, seven days per week[39].
2. On reflection, we think the issue is not the number of licensed premises, but the type of licensed premises. We perceive licensed cafés and restaurants differently to taverns and nightclubs, and this probably relates to the risk factors discussed in the alcohol fuelled violence literature - vertical drinking, crowded premises, late night venues, young crowds participating in crowd surfing, moshing, slam dancing, abusive or aggressive behaviour, pushing and shoving etcetera, both in venues and on footpaths.

Detriment to the amenity of the shopping centre - late night businesses

1. It is a major thrust of the Business 1 zone that shops, cafes and restaurants - but not bars - can trade intensively and without restriction except for any liquor permission required under clause 52.27. Entertainment uses and bars or taverns are clearly complementary, not primary uses in this zone.
2. Clause 21.04 stresses the importance of maintaining a balance and mix of uses in activity centres.
3. Clause 22.09-1 says proposals in this Group 3 Windsor Large Neighborhood Activity Centre should be considered on the basis that they retain the individual character of the centre while complementing the area as a whole - predominantly retail and some entertainment uses, with a wider mix of office and service uses at the southern end. Entertainment uses are mainly considered for the Group 1 centres (Chapel Street north of High Street).
4. It is a major thrust of clause 22.19 Windsor Activity Centre Policy to encourage ground floor uses that contribute to a vibrant street life.
5. We therefore examine this proposal against its zoning context and policy. This is where Bambou[40] comes in. The 280-patron Bambou tavern on Chapel Street abuts no nearby dwellings[41]. An entry door and service window at the rear of the premises is designed to service Swinburne University. Although Senior Member Liston ultimately rejected council's saturation policy, the extensive number of conditions he imposed reflects Bambou's represented business plan. The permit requires a full a la carte dining menu available 6.00 pm to l0.00 pm Sunday to Thursday and 6.00 pm to 11.00 pm Friday and Saturday for a minimum of 110 patrons for which permanent tables and chairs must be provided for the purpose of dining and the consumption of food. A limited dining menu, with substantial food, must be provided after 6.00 pm until 30 minutes before closing every day. Other permanent seating (eg. couches, banquettes, high bars and stools inside the premises) must be provided for a minimum of 40 patrons during operating hours. The premises will open 7.00 am to 1.00 am the following day, Monday to Sunday with no liquor consumption until 9.00am. The bi fold doors at the front of the premises, the entry door (presumably except when patrons are coming and going) and all windows fronting Chapel Street must be closed at 11.00 pm each day.
6. What is proposed in the current application is a very different type of 'tavern'. Mr Taiaroa did not want to adopt the Bambou hybrid business model with a focus on food. Holy Grail's 8-metre frontage and 249 patron number (excluding footpath trading numbers) is characterised as a large tavern when compared with the likes of Mother's Milk, Wonderland or other boutique bars. Its business model is drinks, tapas, nibbles and $4.00 pizzas baked fresh on the premises (with the ability to order finger food for functions). Its tiny 6.8m2 kitchen confines its use to a tavern in relation to food offerings. Bambou's business model, on the other hand, sees it trading all day with breakfast, lunch and dinner and even with 'substantial food' after 11.00pm.
7. Our inspection revealed all ground floor[42] bars between Dandenong Road and High Street Windsor closed until 5.00pm (Killing Time, Mothers Milk, Wonderland, Lalaland, and The Social) with Holy Grail very dimly lit and not patronised as in the evenings. Some restaurants and take-away at this southern end of Windsor - such as Topelz, Mama Ganoush and Papalinos - were also closed until 5.00pm.
8. Notwithstanding Mr Taiaroa's application for permit hours of 10.00am - 1.00am we expressed our preference at the hearing for the Bambou business model. Our concern is that premises only operating after 5.00pm with closed shops and facades are detrimental to the operation of any shopping centre - no less the Windsor precinct which needs active businesses for support.
9. Unlike shops which generate a synergy and competition, and café/restaurants with footpath trading which provide vibrancy, taverns effectively operating from 5.00pm make no contribution to the daytime retail function of the shopping centre. Recently gazetted clause 22.19 encourages ground floor uses that contribute to a vibrant street life.
10. Mr Taiaroa advised he was prepared to accept a permit condition requiring him to open Holy Grail from noon daily and would be open from 10.00am on Cup Day and other festive occasions.
11. In contrast to closed shops in the block between Dandenong Road and Maddock Street, in this block (on the west side of Chapel Street) between Maddock Street and Union Street premises include a newsagent, convenience store, dry cleaner, tobacco shop, 2 hairdressers, a cd/video shop, fish & chips, a shoe store, a post office, an op shop, clothing store and 20th century furniture store. There are four premises (Wonderland, Holy Grail, Taco Bills & Buddhas Belly) that are licensed restaurants/bars.
12. In light of Mr Taiaroa's concession, we have decided that this additional tavern does not tip the balance against the grant of a permit for a tavern in this Windsor precinct. We cannot find that there is a concentration of licensed premises to the extent that there is an adverse cumulative effect on the area. Nor would the proposal affect the vibrancy of the street in the daytime.

1. In the final analysis, we have decided to grant a permit given our imposition of conditions modifying the operation of the proposed tavern to accommodate the conflicts it generates. Conditions include:
   1. limiting hours of operation to 1.00am Thursday to Saturday nights inclusive and to only 11.00pm Sunday to Wednesday nights inclusive;
   2. reducing the number of patrons from 249 to 200;
   3. deleting VIP rooms;
   4. requiring the tavern to be open for business from noon Monday to Saturday inclusive;
   5. deleting the beer garden;
   6. constructing internal acoustic measures.
2. We have decided to limit the number of patrons to 200 to prevent the bar being 'large' which is said to contribute to alcohol-fuelled violence, to provide considerable seating and to delete the VIP rooms so that all activity can be supervised in the open as occurs with Mr Taiaroa's other bars. Our conditions are designed to ensure that this tavern will not contribute to alcohol-fuelled violence. Consequently, we have deleted some other conditions (such as roving patrols and closing bi fold windows and doors after 11.00pm) which may apply to nightclubs and larger taverns.
3. The decision of the responsible authority will be set aside and a permit shall issue subject to conditions.

The permit allows use and development of the subject land as a Tavern for 200 patrons, the sale and consumption of liquor on the premises and the reduction of car parking in accordance with the endorsed plans and subject to the following conditions.

1. Within thirty (30) days of the date of this permit, amended plans (in triplicate) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The amended plans must be drawn to scale and fully dimensioned. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans identified as Dwg no. A01 Sheet 1 of 2, Dwg no. A02 Sheet 2 of 2 both dated January 2010 and Dwg no. A01 Sheet No. 1 of 1 dated March 2010 but modified to show:
   • (a) Deletion of all VIP rooms and the provision of seating for 50 patrons in the front timber deck, 50 patrons along both sides of the central servery and northern wall, 20 patrons on couches along the southern wall of the central servery, and open seating for another at least 30 patrons in the remainder of the rear area, generally as depicted on the indicative plan attached as Appendix C to the report by Mr Bill Horman tendered to the VCAT hearing and identified as Drawing No. A21 Sheet No. 1 of 1 dated November 2010;
   • (b) Provision of an office for administrative purposes and viewing by police of CCTV tapes;
   • (c) Nomination of the front deck as a smoking area;
   • (d) Deletion of acoustic treatments including roof overhang above in the rear courtyard;
   • (e) Notation on the plan of the rear courtyard only for parking and loading purposes and provision for bin wash/storage area and bin pick-up area;
   • (f) Provision of a rear airlock (with 40mm solid core timber doors, Raven RP 24 acoustic stops and RP 38 automatic threshold seals to both doors which must also be provided with self closers) and a front laminated glass partition between the front timber deck and the central servery;

all to the satisfaction of the responsible authority.

1. The use and development allowed by this permit and shown on plans endorsed to this permit must not be amended.
2. No more than 200 patrons may be accommodated on the premises at any one time.
3. The premises may only be open between the following hours:

Sunday, Monday, Tuesday and Wednesday: 10.00am to 11.00pm.

Thursday, Friday and Saturday: 10.00am until 1.00am the following day.

1. The premises must be open to the public from noon on each day Monday to Saturday inclusive.
2. Within thirty (30) days of the date of this permit, the Licensee must install and maintain a surveillance recording system able to clearly identify individuals, which shows time and date and provides continuous images of all entrances and exits, bars and floor areas, including affixing video surveillance cameras outside in the front of the premises in Chapel Street, the inside front elevated terrace section, over the bar servery, in the area leading to the rear doors and in the rear of the premises facing Bowling Green Street. A copy of the recorded images must be available upon request for immediate viewing or removal by Victoria Police, an officer of the Council or a person authorised in writing by the Director of Liquor Licensing, or otherwise retained for at least one (1) month. The positioning of cameras is to be to the satisfaction of the Licensing Inspector.
3. Within thirty (30) days of the date of this permit, an amended Waste Management Plan must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The Waste Management Plan must provide for, but not be limited to the following requirements:
   • (a) Bottles must be bagged inside the premises during operation times and must not be emptied into the external refuse bins after 9.00pm or before 7.00am Monday to Saturdays and after 9.00pm or before 10.00am on Sundays.
   • (b) Address how the proposal is going to achieve waste reduction and diversion targets;
   • (c) Provide details of collection times for waste and how this complies with the City of Stonnington's Local Law and Environment Protection Authority Guidelines;
   • (d) All waste must be collected from bins stored at the rear of the subject land;
   • (e) Bottle crushing must not be carried out on the subject land.
4. Waste must be stored and collected in accordance with the provisions of the endorsed Waste Management Plan and to the satisfaction of the Responsible Authority.
5. The collection of rubbish from the premises (other than normal Council collection) must be conducted between the hours of 7.00am and 5.00pm Monday to Saturdays, with no collections on Sundays and Public Holidays to the satisfaction of the Responsible Authority.
6. All garbage and recycling bins must be stored in the area nominated on the endorsed plans when they are not out for collection, to the satisfaction of the Responsible Authority.
7. Bowling Green Street must not be used for the storage of rubbish bins.
8. Except for background music, no other music or live entertainment shall be permitted on the premises at any time.
9. During the hours of operation, the rear acoustic door and roller shutter door must be kept closed and patrons must not be allowed access to the rear yard.
10. Internal music noise levels must be controlled and limited by an octave band music noise limiter and/or compressor and set to ensure compliance with SEPP N-2. A music noise monitoring device is not acceptable. The settings of this device must be adjusted at the reasonable request of the Responsible Authority.
11. Noise emanating from the use hereby permitted must comply with SEPP N-l Control of Noise from Commerce, Industry and Trade and SEPP N-2 Control of Music Noise from Public Premises to the satisfaction of the Responsible Authority.
12. Within thirty (30) days of the date of this permit, compliance noise measurements of patron noise must be conducted outside the following premises at 67 & 67A Chapel Street Windsor: 78 Chapel Street, 11 Bowling Green Street, Flat 6/2 Maddock Street and Flat 19/2 Maddock Street.

The measurements must be both on a dB(A) Leq and dB(A) L max basis and must be carried out on three (3) occasions within a 30 day period. Measurements must be conducted on a Saturday night and between 12 midnight and 1.00am the following morning at the permit holder's expense and without notice.

The dB(A) Leq noise levels should be 5 dB(A) or less above the prevailing dB(A) L90 value. The dB(A) L max levels must be less that 65 dB(A). If noise levels exceed these volumes, a report must address means of reduction ('the amelioration works').

The amelioration works must be implemented within one (1) month of the date of the report, to the satisfaction of the responsible authority. Following completion of the amelioration works, further testing must be undertaken to ensure compliance with the noise levels above, with such testing to be done within one (1) month of completion of the works in accordance with the parameters above.

If compliance with the noise levels as set out above is not achieved, the use must cease operation at 11.00pm nightly until compliance is achieved.

1. Within thirty (30) days of the date of this permit, a Commissioning Report, prepared by an appropriately qualified acoustic consultant must be submitted to the Responsible Authority. The Report must generally be in accordance with the report prepared by Burton Acoustic Group in the witness statement of Robert Stephen Burton dated 15 November 2010, but modified to accord with the plan modifications required by condition 1, and also detailing the required works to ensure compliance with SEPP N-2 including a consideration of the octave band music noise limiter and/or compressor that is required be provided. Any limiter or compressor must modify the 'doof doof' beat. When approved, the Commissioning Report will be endorsed and will then form part of the permit.

Any required works must be implemented within one (1) month of the date of the report, to the satisfaction of the responsible authority.

Following completion of the required works, further testing must be undertaken to ensure compliance with the noise levels above, with such testing to be done within one (1) month of completion of the works in accordance with the parameters above.

If compliance with the noise levels as set out above is not achieved, the use must cease operation at 11.00pm nightly until compliance is achieved.

1. Within thirty (30) days of the date of this permit, a Venue Management Plan must be submitted to and approved by the responsible authority. The Venue Management Plan must set out the measures to be implemented by the owner and or licensee to assist in the orderly management of the permitted Tavern to limit any impacts of the use on the amenity of the locality and to control patron behaviour. The plan must include measures in relation to:
   1. The location of tables, chairs and other seating within the premises in accordance with the plan endorsed under condition 1;
   2. The ratio of staff to patrons including footpath trading patrons;
   3. Details of crowd control management of patron interaction with passers-by;
   4. Details of crowd control involvement in queue management and queue location;
   5. Details of clean-up of neighbouring shops from litter, vomit, urine and cigarette butts;
   6. The measures to be taken by management and staff to ensure patrons depart the premises and the surrounding area in an orderly and quiet manner;
   7. No alcohol to be consumed in the footpath trading area after 11.00pm;
   8. Security;
   9. Communication with neighbours as required by condition 15;
   10. Noisy and other anti-social behaviour;
   11. The maintenance of the building including removal of graffiti;
   12. The participation of the operator of the premises in the existing Liquor Accords in the City of Stonnington;

The Venue Management Plan must be reviewed in collaboration with the Victoria Police and the City of Stonnington on an annual basis. Any amendment of the Venue Management Plan must be submitted to and approved by the Responsible Authority. The permitted use must be conducted in accordance with the provisions of the Venue Management Plan to the satisfaction of the responsible authority.

1. The management of the premises must ensure that any nearby resident is given a telephone number to call to register complaints regarding the operation of the premises ("the hotline"). The hotline must be staffed at all times. A permanent register of all telephone calls to the hotline shall be recorded and retained for inspection by the Responsible Authority.
2. The use hereby permitted must at all times be conducted in a manner which ensures that the residential amenity of nearby properties is not detrimentally affected to the satisfaction of the Responsible Authority.
3. In the event that any disturbance within the premises, or in the vicinity of the premises, cannot be promptly controlled by the management of the premises, the management must without delay telephone the Victoria Police for assistance.
4. The Licensee shall not allow any advertising or promotion of liquor at the premises at any time.
5. Bar snacks and some food must be available for patrons at all times.
6. Within thirty (30) days of the date of this permit, access for persons with disabilities must be provided in compliance with all relevant Australian Standards and the Disability Discrimination Act 1992 and such access to the publicly accessible parts of the building must be maintained at all times the building is occupied or in use.
7. This permit will expire if one of the following circumstances applies:
   • The development is not started within two years of the date of this permit.
   • The development is not completed within four years of the date of this permit.
   • The use is not commenced within five years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[2] Permit No. 636/08 (Amended) dated 18 September 2008.

[3] An omission which council is trying to rectify as per its 10 August 2010 letter to the Director of Liquor Licensing.

[4] Applying Fink v Stonnington CC [2006] VCAT 349 (8 March 2006).

[5] A retired police officer advising the applicant.

[6] Seating for patrons is also referred to as 'horizontal drinking' as opposed to 'vertical drinking' where patrons stand, which runs a higher risk of alcohol fuelled violence.

[8] Because no maximum leasable floor area is specified in the schedule to this zone.

[11] Department of Planning and Community Development, 2008.

[13] Clause 15.01-2 built environment principles.

[16] Provided the combined leasable floor area for all offices must not exceed any amount specified in the schedule.

[17] Provided they are not on land specified in the schedule to this zone. No land is specified in the schedule.

[21] Ministerial Reasons for Decision to exercise powers of intervention, Stonnington Planning Scheme Amendment C78 dated 29 October 2010.

[22] This clause sets out a swathe of information to be supplied with an application for use involving liquor as well as a swathe of decision guidelines to be applied in decision making.

[23] Late night liquor licence trading in the Chapel Street Precinct: Measuring the Saturation levels Research Paper April 2010 .

[24] Notable exceptions are hotels such as the Swan, Union and Railway hotels.

[25] Chasers being an historic exception from its Empire Ballroom days.

[26] Bambou Restaurant v Stonnington CC [2010] VCAT 1758 (25 October 2010) per Senior Member Liston.

[27] We refer to Killing Time, Mothers Milk, Wonderland, Lalaland and The Social.

[28] Having consumed alcohol at home or in cars beforehand.

[29] Red Vault Pty Ltd v Stonnington CC [2006] VCAT 392 per Member Eccles @ para 5.

[30] Planning permit no. 0769/06 issued 23 November 2006.

[31] 5 dB(A) above background noise levels only results in marginal annoyance.

[32] Acoustically treat the beer garden with 3.6 metre-high masonry walls, 75mm thick fibreglass insulation lined inside-northern-wall, 75mm thick fibreglass insulation lined underside of the partial roofing (both retained with perforated metal) and solid rear gates with rebated edge seals.

[33] Excluding 36 footpath trading patrons.

[34] Late night liquor licence trading in the Chapel Street Precinct: Measuring the Saturation levels Research Paper April 2010

[35] Hubbard & Ors v Boroondara CC (1996/46940 & Ors) [1997] VICCAT 199 (24 March 1997)

[36] As defined in Whiting v Hosier Bar PL [2005] VCAT 814 (3 May 2005). Any music must be played at a level that enables patrons to conduct a conversation at a distance of 600 millimetres without having to raise their voice to a substantial degree. Music could not be regarded as background music if it is played at a level which requires patrons to shout, or use a stage voice such as that used by an actor in the theatre, in order to carry out a conversation at such a distance.

This definition does not deal with bass levels, but a limiter would prevent amplification of the 'doof doof' beat.

[37] We note that council could put a ceiling on the number of restaurants by including sites in its schedule to the Business 1 zone.

[38] No. 0427/10 dated 1 November 2010.

[39] Only background music is permitted and barriers within the frontage of the site must be maintained to prevent disruption of the footpath area.

[40] [2010] VCAT 1758

[41] The closest was 84 metres away in Victoria Street off Chapel Street. See Bambou under 'Information'.

[42] The same applies for Hoo Haa but that is above ground floor.