Extension of the current trading hours and liquor licence trading hours to 24 hours, 7 days a week in the gaming room of the Village Belle Hotel at 202 Barkly Street, St Kilda.

1. The use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

2. The various activities forming parts of the use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3. The amenity of the area must not be detrimentally affected by the use t through the:

a) Transport of materials, goods or commodities to or from the land;

c) Emission of noise, artificial light, vibration, smell, fumes, smoke, steam, soot, ash, dust, waste water, waste products, grit or oil;

4. Without further consent of the Responsible Authority no form of public address system or sound amplification equipment shall be used on the premises so as to be audible outside the premises.

5. This permit will expire if one of the following circumstances applies:

a) The use is not started within 2 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.

6. Between 3.00am and 7.00am, not more than 40 patrons shall be in the gaming room at any time.

7. There shall be no entry/exit to or from the hotel from Smith Street between the following times:

_____________________________

For the Applicant for Review: Mr Stuart Morris QC, instructed by Williams Winter & Higgs, Solicitors.

Mr Steven Hunt, Traffic Engineer, Grogan Richards Pty Ltd.

Mr Colin Bowden, Town Planning Consultant, Bowden Verhoeven.

Mr Michael Scully, Solicitor, Williams Winter and Higgs.

Mr Peter Mahon, Private Investigator, Manport Satellite Communications.

For the Responsible Authority: Mr David Vorchheimer, Planning Advocate, Port Phillip City Council.

For the Respondent/Objectors: Ms Felicity Cook appeared in person and presented a written submission on behalf of objectors.

1. This is an application under s.77 of the Planning and Environment Act 1987 to review a decision by the Port Phillip City Council to refuse to grant a permit in Application No. 0635/99/M for the land at 202 Barkly Street, St Kilda, to extend the current trading hours and liquor licence trading hours to 24 hours, seven days a week in the gaming room of the Village Belle Hotel.

2. The Tribunal finds the following description of the site and locality, taken from Mr Vorchheimer's written submission to be an appropriate one:

"The subject site is located on the north-eastern corner of Barkly and Smith Streets in St Kilda. The site is currently occupied by a two storeyed, masonry building constructed in 1855, and is generally used for the purpose of a public bar with gaming facilities.

As the hotel has occupied the site for a considerable length of time, no planning permit exists for the use of the site. Instead, the operating hours are governed by condition of the liquor licence. Under the current liquor licence, the hotel is authorised to sell liquor for consumption on the licensed premises as follows:

* At any time to a resident or guest of a resident;

* Good Friday and Anzac day between 12 noon and 12 midnight;

* Monday to Wednesday between 7am and 1am the following morning, and

* Thursday to Saturday between 7am and 3am the following morning.

Two `bottleshops' currently exist at the Village Belle Hotel, one facing Barkly Street and the other at the rear of the subject site, along Smith Street. The bottleshops, which have an off-premises liquor, licence, and are authorised to operate generally between 7am and 11pm every day.

Surrounding land is generally used and developed for a mixture of residential and commercial purposes. Residential properties abut the subject site to the rear, both along Smith Street and Foster Avenue, whilst commercial uses exist both along Acland and Barkly Streets.

A number of premises within the Acland Street shopping strip currently have a 24-hour liquor licence. However, it is noted that these licenced premises do not abut and/or are not in close proximity to residential properties.

Although a number of licensed premises currently exist in Barkly Street, none of these properties have a 24 hour licence or abut residential properties".

3. The Tribunal adopts the following description of the proposal, taken from Mr Vorchheimer's written submission:

"Planning Application 635/99/m was received by Council on 31 May 1999. The application was accompanied by floor plans, and a statement outlining the extent of the application.

The application proposed to extend the current trading hours and liquor licence trading hours to 24 hours, 7 days a week in the gaming room, at the Village Belle Hotel, at 202 Barkly Street, St Kilda.

The application essentially seeks approval for the extension of trading hours for the gaming room between the following times:

* 12am (midnight) Sunday evening and 7am Monday mornings;

* 1am and 7am Tuesday, Wednesday and Thursday mornings; and

The trading hours for all other parts of the premises other than the gaming room will remain unaltered.

The applicant has submitted that the Smith Street entry/exit to the gaming areas within the premises are to be closed at 12am (midnight) Sundays, 1am Tuesday, Wednesday and Thursday and 3am Saturdays and Sundays (as per the existing hours of operation). After these times patrons would be required to enter and exit the premises via the Barkly Street entrance".

4. The land is zoned Business 1 and is contained within Heritage Overlay No. 33, under the Port Phillip Planning Scheme. Pursuant to Clause 52.27 (Licensed Premises) a permit is required to use land to sell or consume liquor if the hours of trading under any licence are to be extended.

5. Clause 65 of the scheme provides that, before deciding on an application, the Responsible Authority must consider: the state and local planning policy framework, the matters set out at s.60 of the Planning and Environment Act 1987, and any effect on the amenity of the area. The Municipal Strategic Statement at Clause 21 and the Local Planning Policies in relation to St Kilda and gaming, contained in Clause 22 of the scheme are relevant to the proposal.

"Council's Municipal Strategic Statement (MSS) establishes the strategic planning policies and objectives which underpin the land-use and development provisions of the Port Phillip Planning Scheme.

The objectives for Tourism pursuant to Clause 21.02-5 include:

* A balance between the needs of local residents and businesses and the needs of visitors to Port Phillip.

* By encouraging appropriate new attractions in suitable areas and by protecting residential areas from the negative impacts of tourism such as traffic and parking congestion.

The objectives for Commercial Land Use pursuant to Clause 21.02-7 seek to create the maintain viable commercial precincts which:

* Co-exist harmoniously with residential and other land-use precincts nearby.

* Offer a high level of amenity and adequate services and facilities for workers.

The objectives for Retail Land use pursuant to Clause 21.02-7, include:

* A high level of physical and visual amenity which reflects each centre's local character and heritage and offers comfort and convenience to users and traders.

* By not supporting land uses in retail centres which may adversely affect the range of community services and residential opportunities available in these areas.

The Local Planning Policy for St Kilda Hill, St Kilda Central and St Kilda South as identified at Clause 22.05 of the Planning Scheme applies to the subject site. The site falls within Area 3 - Retail Centres of Acland Street, Fitzroy Street and Brighton Road.

The main issues facing the neighbourhood include:

* The need to balance the needs of residents in the area for local shopping facilities, on street parking and peace and quiet with the demands of visitors and tourists to the area, who desire entertainment and tourist activities.

* To ensure that the existing retail role and function of the Acland Street Centre is maintained by encouraging a new range of retail and associated uses to serve the local community, works and visitors to the area and limiting the establishment of new eating premises;

* To ensure that new use and development provides adequate car parking and does not cause nuisance or loss of amenity to nearby residential areas.

Pursuant to Clause 22.07 - Gaming, the policy basis for gaming in the City of Port Phillip is as follows:

"The Municipal Strategic Statement (MSS) does not specifically refer to the use of land for gaming. However, it does support and encourage the development of local neighbourhood shopping centres as "urban villages" to ensure that the are economically viable, socially vibrant and cater for the local shopping needs of the city's residents, workers and visitors. In addition, the MSS identifies the need to protect the amenity of residential neighbourhoods from inappropriate new development.

The objectives have been further developed in land use policies for each of the local centres. Gaming is not specifically mentioned in any of these local policies and it is important that the use of land for gaming does not undermine the important strategic objectives of supporting and developing our important urban villages and does not impact upon the amenity of our residential areas".

Pursuant to Clause 22.07 - Gaming, of the Port Phillip Planing Scheme, the objectives in relation to gaming in the City of Port Phillip are:

* To ensure that the amenity, social and economic impacts of gaming are considered when deciding an application;

* To minimise the impact of gaming uses upon the amenity of residents in areas surrounding the premises; and

* To ensure that adequate car parking is provided.

Before deciding on an application the Responsible Authority will consider, as appropriate:

* Whether the proposed use or development will have an impact upon the amenity of residential uses as a result of traffic and parking, crowd or patron related noise, hours of operation, and/or an increase in the intensity of the use due to an increase in patron numbers.

* Whether the proposed use will have a detrimental impact upon the economic viability of a neighbourhood shopping centre; and

* Whether the proposed use will have any social impacts.

Pursuant to s.40 of the Liquor Control Reform Act 1998, the Council of the municipal district in which the premises are situated may object to the grant or variation of a licence in respect of those premises, on the ground:

"that the grant, variation or relocation would detract from the amenity of the area in which the premises are situated".

6. The subject application for permit No. 635/99/M was lodged with the Responsible Authority on 31 May 1999. Following the giving of notice of the application, 40 objections were received. The grounds for objections were summarised by Mr Vorchheimer as follows:

* Increased noise levels from hotel guests entering and leaving the facility at undesirable hours;

* Increased noise and activity levels by traders delivering or receiving goods associated with the facility;

* Increased traffic congestion and parking problems;

* Hotel and gaming room are located in a residential area with parking limited already. The proposal will cause increased traffic up Smith Street and into Foster Street at all hours with corresponding noise problems;

* Noise of the people parking their cars, slamming doors, idling of engines and drunken conversation;

* Increase in crime as a result (ie. damage to cars and property); and

* Aggressive/abusive behaviour increasing and loss of security.

7. In response to the objections the Applicant's submitted further particulars in support of the application on 19 August 1999, including a Traffic Engineering Report and a Security Investigation/Surveillance Report. The Applicant noted that it was intended to install security cameras to the exterior of the building to ensure coverage of both the Smith and Barkly Street entrances. The Council submission noted that alterations to the exterior of the building would require separate planning approval, pursuant to the Heritage Overlay Controls. At its meeting on 5 October 1999, the Council's delegate resolved to refuse to grant a permit on the following grounds:

"1. The proposed extended trading hours will be detrimental to the amenity of the adjoining residential area.

2. The proposed extended liquor licence trading hours will be detrimental to the amenity of the adjoining residential area".

8. The subject application for review was lodged on 22 October 1999. Stated grounds for review were that:

"1. The proposed extension of hours would be consistent with the orderly and proper planning of the area.

2. The proposed extension of hours is appropriate for the use of the land and will not have any adverse amenity impact on the adjoining residential area

3. The proposed extended Liquor Licence trading hours will not have any adverse amenity impact on the adjoining residential area.

4. The Applicant reserves the right to lodge further grounds as may be appropriate after perusal of the Application file of the Responsible Authority".

9. Subsequent to the hearing the Tribunal inspected the subject site and the surrounding area.

10. The principle issue for consideration in this matter is whether the extension of the hours of trading and liquor license trading hours for the gaming room for the Village Belle Hotel will adversely affect the amenity of residents in the nearby residential areas. A prior question, but one which Counsel for the Applicant requested the Tribunal to regard as secondary to a decision on the merits of the application, is whether a permit is required pursuant to Clause 52.27 having regard to the provisions of section 6(3)(b) of the Planning and Environment Act 1987.

11. The applicant's family has operated the Village Belle Hotel since April 1946. The use is long established and the existing hotel is said to enjoy existing use rights. The gaming facility was established in 1995 as an as-or-right use given that the gaming room did not exceed 25% of the floor area available to the public.

12. In addition to the gaming room, the ground floor of the hotel offers a bistro, saloon bar, public bar with TAB wagering facilities, the Doulton Bar, which is used for live entertainment, a walk-in bottle shop on Barkly Street and a drive-in bottle shop on Smith Street. The first floor is devoted to accommodation with flats for the owners and other rooms. At the time of the hearing internal alterations were in progress to renovate and enlarge the Doulton Room. Entry to the premises is available from Barkly Street through the public and saloon bars and from Smith Street through the Bistro.

13. The Applicant contends that as they enjoyed existing use rights, there being no proposed change in the use, merely a change of hours of operation, no permit was therefore required under Clause 52.27.

These provisions apply to premises licensed, or to be licensed, under the Liquor Control Act 1987.

A permit is required to use land to sell or consume liquor if any of the following apply:

* A licence is required under the Liquor Control Act 1987.

* A different licence or class of licence is required from that which is in force.

* The hours of trading allowed under any licence are to be extended_._

This does not apply if any of the following apply:

* To a licence to sell only packaged liquor for consumption elsewhere.

* If the schedule to this clause specifies that a permit is not required to use land to sell or consume liquor under a particular type of licence.

The schedule to this clause may specify that a permit may not be granted to use land to sell or consume liquor under a particular type of licence.

15. A copy of Licence No. 31915698 under which the Village Belle Hotel currently operates was provided to the Tribunal. This is a general licence under the Liquor Control Reform Act 1998. The licence states:

This licence is a General Licence and authorises the Licensee to supply liquor on the licensed premises for consumption on and off the licensed premises during the trading hours specified below.

At any time to a resident or guest of a resident for consumption on the licensed premises.

Good Friday & Anzac Day Between 12 noon and 12 midnight.

Monday to Wednesday, inclusive between 7 a.m. and 1 a.m. the following morning.

Thursday to Saturday, inclusive between 7 a.m. and 3 a.m. the following morning.

16. The Applicant sought to take issue with the reference in Clause 52.27 to the Liquor Control Act 1987, putting to the Tribunal that the Village Belle Hotel has at no time since the commencement of the planning scheme been licensed under the Liquor Control Act 1987.

17. The relevant planning scheme came into force on 29 October 1998. The Liquor Control Reform Act 1998 came into force on 17 February 1999. Upon the coming in of the Liquor Control Reform Act 1998 it repealed the Liquor Control Act 1987.

18. At the time of the coming into force of the new format Planning Scheme and Clause 52.27 the Liquor Control Act 1987 was still in force. Section 31(1)(b) Interpretation of Legislation Act 1984 provides that a reference in a subordinate instrument to any Act shall, unless the contrary intention appears, be construed, if the Act in question has been remade or re-enacted (with or without modification), as a reference to the Act as remade or re-enacted and in force for the time being.

19. The Tribunal does not accept the Applicant's view that whilst it could be said that the Liquor Control Reform Act 1998 replaced the Liquor Control Act 1987 it could not be said that it had remade or re-enacted the earlier Act. In this respect the Tribunal was referred to an earlier decision of the former Administrative Appeals Tribunal in Richmond Henty Hotel Pty Ltd v City of Portland (1989) 4 AATR 15 where it considered the Liquor Control Act 1987 was not a remake of the Liquor Control Act 1968.

20. The 1998 Act is the only Act which controls the licensing of the sale and consumption of liquor in Victoria, the 1987 Act was also the only Act which controlled the licensing of the sale and consumption of liquor in Victoria. Clause 52.27 specifically relates to the "use of land to sell or consume liquor", it is considered that the intent of the drafters of Clause 52.27 was in relation to licensed premises that allowed the sale or consumption of liquor in Victoria. The Tribunal does not consider there is any inference to be drawn that the intent of the drafters was to exempt from consideration those places that have a licence under the 1998 Act. This argument is not accepted. The Tribunal considers the Liquor Control Reform Act 1998 is a remake of the 1987 Act with modification.

21. The second and main contention raised by the Applicant is the existing use rights argument. In this respect the Applicant relies on s6 (3)(b) Planning and Environment Act 1987 that provides:

Subject to subsections (4) and (4A), nothing in any planning scheme or amendment shall -

(b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation;

22. Reliance is placed on the word purpose. The purpose it is said for which the Village Belle building was being lawfully used at all relevant times was and can only be that of "Hotel", hence nothing in Clause 52.27 can prevent the use for such purpose continuing, this is so regardless of the hours of operation.

23. In this respect the Responsible Authority referred the Tribunal to its reliance on the ordinary meaning of the word prevent which it said means "hinder, stop, to keep from occurring", and relied on the words of Lord Atkinson in Tennants (Lancashire) Ltd v Wilson (CS) & Co Ltd [1917] AC at 518:

"Preventing" delivery, means in my view, rendering delivery impossible; and "hindering" delivery, means something less than this, namely rendering delivery more or less difficult, but not impossible.

24. The Tribunal does not consider Clause 52.27 in any way prevents the use of the Village Belle as a Hotel.

25. The existing use provisions contained in the Act are brought into the Planning Scheme in Clause 63, this clause provides "that an existing use right is established in relation to use of land under this scheme if any of the following apply:

The use was lawfully carried out immediately before the approval date.

A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:

* Any condition or restriction to which the use was subject and which applies to the use in Section 2 of the zone continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.

26. There is nothing in Clause 52.27 that in the Tribunal's view results in a conflict with the provisions of Clause 63 as contained within the planning scheme. Nor is there in Clause 52.27 a conflict with the provisions of s6 (3) (b) Planning and Environment Act 1987.

27. There is nothing within Clause 52.27, which in the Tribunal's view renders the clause inoperative in its application to the Village Belle Hotel.

28. There has been no issue raised that the use of the Village Belle was prior to the approval date not being carried on as a Hotel. Nor any contention that it has not operated continuously and lawfully since that date. It is the Tribunal's view that if there is nothing in Clause 52.27 that prevents the operation of the Village Belle as an Hotel then the provisions of Clause 52.27 apply to the Village Belle. The Village Belle falling within the scope of the provision being a licensed premise.

29. Is it to be considered that the current licence that restricts trading hours is part of the existing use right? It is submitted that this is what the Responsible Authority is attempting to argue that the characterisation of the use of the land is a hotel trading during the hours specified in the existing liquor licence. In rejecting this argument the Applicant relies on the authorities of Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, at 535 and Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305. Characterisation of the use is not to be so narrowly defined nor so widely defined as to result in a right that was either valueless or not what was originally commenced.

30. Neither it was said was an intensification of the use a change of purpose_, Rockdale Municipal Council v Clark_ (1982) 47 LGRA 159. The changing hours should be viewed as an intensification of the use. An existing use may intensify without losing existing use rights.

31. Tribunal members in a number of recent decisions have expressed the view that Clause 52.27 although referring to "use", is not a "use" provision within the planning scheme, but rather a restriction similar to other provisions in the planning scheme such as car parking or illumination of tennis courts.

32. In Kazer Pty Ltd v City of Port Phillip (1999/025466) the Tribunal stated:

"in our view the sale and consumption of liquor as referred to in clause 52.27 is not a land use, in the same sense as a restaurant, but rather an activity conducted on land, within the context of another land use. As such, it is a matter regulated by the Planning Scheme in the same way as the Planning Scheme regulates matters such as the provision of car parking, the illumination of tennis courts, and at one time regulated the hours of shops."

and in The Ashley Hotel Pty Ltd v City of Banyule (1999/047411_):_

"We would observe, however, that in our view the sale of liquor as referred to in clause 52.27 seems not to be a use of land under the Scheme (despite the deployment of the word "use" within the clause) but rather another activity or matter regulated by the Planning Scheme, in the same way as car parking provision and the illumination of tennis courts are regulated. If this is correct the existing use rights of the Scheme would not protect the hotel or other premises where liquor is to be sold or consumed from the need to obtain this additional permission."

33. The Tribunal is of the view compliance with Clause 52.27 under the Planning Scheme imposes merely a restriction on premises that are licensed or seeking to be licensed in that a permit is required if any changes are contemplated as set out in Clause 52.27. Clause 52.27 applies to the Village Belle Hotel as it intends to extend the hours of trading allowed under its licence this being one of the changes contemplated under the clause. The required compliance with Clause 52.27 in no way interferes with the existing use rights of the Village Belle as a Hotel. Consequently the Tribunal will consider the matter in relation to the planning issues raised in the application for review.

34. The Council contended that extension of the current trading and liquor licence trading hours to 24 hours, 7 days a week in the gaming room, would be detrimental to the amenity of adjoining residential areas, due to the potential to generate increased pedestrian and vehicular traffic as well as noise from patrons entering and leaving the premises. Accordingly, the Council was of the view that the proposal was contrary to the provisions of the planning scheme, particularly in regard to the effect of commercial development on the amenity of residential areas and the provisions of the MSS requiring a balance to be struck between the needs of residents and business. Furthermore, Council claimed that the proposal does not align with the St Kilda Hill, St Kilda Central and St Kilda South neighbourhood policy (Clause 22.05) which calls for the need to balance the needs of residents for on-street parking, peace and quiet with the demands of visitors and tourists for entertainment and tourist activities.

35. For similar reasons, that is noise, increased traffic flows and parking pressure, the Council maintained that the extension of hours proposed was in conflict with the objectives and guidelines for gaming contained in Clause 22.07 and was inappropriate having regard to the location of the premises and the nature of the locality.

36. Ms Cook on behalf of resident objectors, provided more specific examples of the behavioural problems experienced by residents living in what she described as the quiet residential areas of Smith Street and other nearby streets close to the Village Belle Hotel at the corner of Acland, Barkly and Smith Streets. As Smith Street is a one-way street with entry from Barkly Street, the location of the drive-in bottle shop on that frontage generated significant traffic noise compounded by loud music from car radios, shouting, noisy engines and fast driving. The movement of pedestrians from entertainment venues through and into the residential areas was described as including drunken fights, loud abusive language, property vandalism and damage to cars. Ms Cook acknowledged that residents could not attribute all damage to hotel patrons, but they were concerned with any development that had the potential to increase flows of possibly intoxicated people through their streets at all hours.

37. The submission noted that the hotel provided no on-site parking for patrons and that most residents in Smith Street did not have access to off-street parking. Residents claimed to have experienced difficulty in finding a parking space in the evening, particularly towards the end of the week.

38. The City of Port Phillip Community profile describes St Kilda Hill and St Kilda South as being part of St Kilda's café, leisure and entertainment precinct that has become a highly attractive residential location for young adults and people in their 30s and 40s from around Melbourne seeking accommodation close to entertainment. This change has been accompanied by a decrease in ethnic diversity and an increase in the number of people who might be broadly categorised as being `upwardly mobile'.

39. The Tribunal accepts that the behaviours complained of by residents are relevant to the assessment of impacts on residential amenity. However, we note that they are part of the existing situation and to some extent an inevitable consequence of residing in close proximity to a vibrant retail, café, leisure and entertainment precinct operating under a pattern of extended trading hours.

40. The Tribunal is required to make the nice distinction as to whether the extension of hours and liquor licence trading hours in the gaming room, of itself, in combination with the existing pattern of use, will result in adverse impacts on the amenity of residents.

41. The evidence of Mr Hunt in relation to traffic and parking showed that:

* Peak hour traffic volumes on Barkly Street and Smith Street occurred between 10.30pm and 11.30pm on a Friday night with a two-way flow of 650 vehicles on Barkly Street and a one-way flow of 43 vehicles on Smith Street. The traffic volumes were slightly less on the Saturday night with the peak hour between 11.15pm and 12.15am with 580 vehicles two-way on Barkly Street and 39 vehicles one-way on Smith Street.

* The on-street parking supply in the vicinity of the site is well utilised on Friday and Saturday nights, but tapers off from around midnight. Very few vehicles were parked in the Coles off-street car park during the survey period. Mr Hunt's report indicated that on the basis of the survey conducted, the number of spaces available for on-street parking between 2am and 3am in Barkly Street, between Carlisle and Smith Streets varied between 23 and 26 on a Friday night and between 16 and 31 on a Saturday night. In Acland Street between Barkly and Carlisle Streets, there was a range of between 27 and 40 spaces on a Friday night and between 9 and 30 spaces on a Saturday night.

* A survey to determine the travel characteristics of gaming room patrons conducted between 6.30pm and 3.30am on the last two weekends in July, 1999 indicated that the proportion that drove ranged from 0% to 36%, with those who arrived by taxi, public transport or on foot ranging from 48% to 100%. Mr Hunt indicated that for planning purposes it was safe to assume that 30% of patrons would arrive by car.

* Based on surveys conducted at 2 other hotels with 24 hour gaming facilities at Swan Street, Richmond and Chapel Street, Prahran, Mr Hunt estimated that if the patron numbers and movements at the Village Belle Hotel after 1am were in the same proportion to the number of gaming machines as at the hotels surveyed, the number of patrons present between 1am and 2am would be 16, declining to 11 by 4am and 3 by 6am. Assuming that 30% of patrons arrive by car, this equates to a peak parking demand of 4 spaces after 3am.

* In addition to the on-street parking available in Barkly and Acland Streets, the parking surveys indicated there were limited spaces available in Smith Street upon both the Friday and Saturday nights. Mr Hunt indicated that there were was scope to extend the permit zone conditions for residents should Council decide this step was warranted.

* Mr Hunt concluded that the proposed extension of hours of the gaming room would have minimal impact on traffic and car parking activity in the area of the site.

42. The Tribunal was provided with surveillance information relating to the behaviour of patrons at the subject property and five other hotels with 24-hour gaming venues. The hotels involved were nominated by Mr Scully of Williams, Winter and Higgs in commissioning this survey on behalf of the applicant. In addition to undertaking the surveillance, the security firm made inquiries of relevant municipalities and local police in regard to the effect of the introduction of 24-hour gaming in each venue. In the hotels surveyed, there were no observed problems caused by the behaviour of patrons inside or on leaving the premises, or adverse reports of such incidents to the authorities.

43. Mr Telford, a Director of Barjen Pty Ltd and license nominee of the Village Belle Hotel, who lives on the site, described his family's association with the hotel since 1946. He stated that:

* He was not aware of any complaints having been made about the hotel;

* The company do not employ security staff and have never had the need for them;

* Gaming patrons are quiet and well behaved; and

* Liquor sales in the gaming room are significantly lower than elsewhere in the hotel.

44. Mr Telford stated that the proposal to seek 24 hour trading in the gaming room came as a result of demands from patrons, particularly shift workers associated with the entertainment industry. He noted that the number of requests had increased since the opening of the Coles Supermarket in Barkly Street. The company hoped people coming earlier and staying longer would justify the additional hours.

45. In relation to demand, Mr Telford related how gaming room patrons disliked having to leave the premises at a particular closing time. He observed that whether they were on a winning or losing streak, they wish to be able to continue. The compulsion to gamble and to continue until the luck and/or the money runs out is a problem for society in general, rather than being an issue of a local and immediate nature. As such, it is beyond the scope of the Tribunal.

46. The Tribunal was provided with details of the significant number of enterprises, including cafes, bars and restaurants, takeaway food premises, supermarket and convenience store, in the immediate vicinity of the hotel that operate until the early hours of the morning, or on a 24 hour basis. The Tribunal agrees that the broad range of activities described by Mr Bowden take place and as a consequence the area is perceived as being a visitor location that is diverse, vibrant and highly accessible, with a cosmopolitan atmosphere.

47. The residents of Smith, Blessington and Foster Streets represented by Ms Cook, clearly value the residential amenity they enjoy at present, albeit with a degree of disturbance and inconvenience on occasions. However, an important part of the particular bundle of attributes that constitute their amenity, is the proximity to the shops, cafes, entertainment venues, bustle and buzz that comes from living close to Barkly, Acland and Fitzroy Streets, St Kilda.

48. Concern was expressed that to allow 24 hour trading in the gaming room would simply mean that at the time when the remaining bars in the hotel closed, those people would simply move across to the gaming room and treat it like any other bar. The surveys of other hotels with 24 hour gaming undertaken by Mr Hunt's firm did not support this concern. In our view, that outcome lends some credence to the argument that gaming facilities attract a discreet clientele of their own. The Tribunal accepts Mr Hunt's opinion in regard to the effect of the extension of trading hours on traffic:

"There is expected to be a reduced concentration of activity at 3am, which is when the venue currently closes and all patrons are required to leave. The extended operating period is expected to encourage departures to occur progressively after 3am. Outward flows of between 3 and 11 patrons or 1 to 4 vehicles per hour can be expected".

49. We note that the proposal does not involve any increase in the size of the gaming room or in the number of the gaming machines on the premises. We have found that the number of patrons likely to be attracted to the facility will be relatively few and that those numbers will thin progressively after 3am. We have further found that given the high percentage of people who walk to the venue, the number of car movements likely to be generated will be small and more evenly distributed over time.

50. We accept the resident's contention that excessive noise and anti-social behaviour is sometimes generated by patrons leaving the drive-in bottle shop and departing the area along Smith Street. However, given the mix of extended hours trading venues that operate in the vicinity of the Village Belle Hotel, it is more difficult to directly attribute rowdy and inappropriate behaviour by pedestrians to patrons of the hotel rather than the other hospitality related venues. Indeed Ms Cook conceded that this association was difficult to prove.

51. Given the foregoing, we are of the view that the extension of trading hours in the gaming room of the Village Belle Hotel to a 24-hour operation is unlikely to result in any adverse change to the residential amenity of the surrounding area. Accordingly, we have concluded that the application for review is allowed and the decision of the Responsible Authority is set aside. A permit is granted and directed to be issued subject to conditions.