1. Before development starts amended plans must be submitted to and approved by the responsible authority. Such plans are to be drawn to scale with dimensions and three copies are to be provided. When approved, these plans will be endorsed as evidence of their approval and they will thereby become the endorsed plans in relation to this permit. Such plans are to be in accordance with the application plans but modified as follows:

1. the first floor plan is to be amended to delete internal designations as to the use of areas relevant to the originally proposed place of assembly ("gay sauna") use; 2. deletion of the partitions creating cubicles;

1. deletion of the partitions creating the Vic health, massage and solarium rooms so that those four rooms instead remain as the three rooms in that location that currently exist on the land;

1. deletion of the lockers; 2. deletion of the lift; 3. deletion of the steam room; 4. deletion of the sauna and spa; 5. indication of the areas where 3 am trading allowed by this permit namely the ground floor lounge area shown on the application plan as "MAIN LOUNGE", but depicting the new dimensions of that area; 6. deletion of the notations "T.V. ROOM" and "LOUNGE" in the rooms at or near the north-east corner at first floor level; 7. amendment of ground floor in relation to the beer garden area so that the reduction of the beer garden and the increase in adjacent built area is not a reduction from 115 square metres to 58 square metres, but rather a reduction of the beer garden from 115 square metres to approximately 86 square metres; 8. indication of new building works and new areas differentiated from the existing; and

1. a schedule of new external materials, finishes and colours. 2. The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority. 3. Once the development has started it must be continued and completed to the satisfaction of the responsible authority. 4. All external materials finishes and paint colours are to be to the satisfaction of the responsible authority and must accord with those endorsed under condition 1. 5. The walls on or facing the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the responsible authority. 6. No equipment, services and architectural features other than those shown on the endorsed plan is permitted above the roof level of the building unless otherwise agreed to in writing by the responsible authority. 7. The extended operating and licensing hours for the hotel are limited to the following:

These extended hours of operation relate to the main lounge area and bar servicing that area only.

On Friday and Saturday nights no additional patrons are permitted to enter the hotel premises (ground floor) after 2.30 am the following day.

1. Prior to commenced of the extended hotel hours allowed by this permit, the permit operator must install and maintain a Noise Limiter ("the Device"), set at a level by a qualified acoustic engineer, to ensure the escape of amplified music does not exceed the requirements of SEPP N-2.
2. Note: This condition applies only in relation to the extended trading hours.

1. Within 14 days of the installation of the noise limiter a report prepared by a suitably qualified Acoustic Consultant must be submitted to the responsible authority and must confirm that a Noise Monitor and Limiter ("the Device") is operating and has each of the following characteristics which are also operating: 2. the device limits internal noise levels so as to ensure compliance with the music noise limits according to State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2 (SEPP N-2),

1. the device is a limiter suitable for interfacing with a Permanently Installed Sound System which will include any amplification equipment and loudspeakers,

1. the device monitors noise levels at frequencies between 50Hz and 100Hz and is wired so as to ensure that the limiter governs all power points potentially accessible for amplification, 2. the device controls are in a locked metal case that is not accessible by personnel other than a qualified acoustic engineer or technician nominated by the owner of the land and notified to the responsible authority, 3. the device is installed to control all amplification equipment and associated loudspeakers, 4. the device is set in such a way that the power to the amplification equipment is disconnected for 15 seconds if the sound level generated by the amplification equipment exceeds for one second the maximum sound level for which the monitor is set, 5. the monitor level component of the device includes a calibratable frequency discrimination sound analyser with an internal microphone incorporated in its own tamper-proof enclosure (beyond the normal reach of a person) with such a sound analyser to indicate by green, amber and red illuminated halogen lamps the approach and exceeding of the set maximum noise level. Such lamps to be in the clear view of the staff and any disc jockey in the room, and 6. the device must prevent a relevant noise level referred to in these conditions being exceeded.
2. Note: This condition applies only in relation to the extended trading hours.

Amplified music Amplified music is not permitted to be played other than through the Permanently Installed Sound System and when the device is installed and operating to ensure compliance with State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2 (SEPP-N2).

1. Prior to the commencement of the extended hours allowed by this permit, a management plan for the ground floor hotel must be prepared and submitted to the responsible authority. The plan must be to the satisfaction of the responsible authority and will then be endorsed under this permit. The management plan must detail how the venue will limit off site amenity impacts from its patrons that might otherwise arise due to such extension of hours and should include but not be limited to the following:

1. processes and actions with regard to assisting patrons obtaining transport from the venue, with particular reference to public transport and the management of taxi pick-ups; 2. details as to the provision of professional security staff;

1. the enabling of appropriate action from external security persons in relation to external patron behaviour including loitering, excessive noise, wilful damage, vandalism and inappropriate behaviour;

1. the enabling of appropriate action with regard to ensuring quiet patron departure; and 2. the indication of a contact phone number(s) for residents to call to register complaints regarding the operation and patrons from the hotel to be available during the extended hours and a permanent register of calls to this number to be maintained which register must be available for inspection by the responsible authority.
2. Bottles must not be emptied into any outside refuse bins during the extended hours.
3. The amenity of the area must not be detrimentally affected during or by the extended hours through the:
   1. transport of materials, goods or commodities to or from the land;
   2. appearance of any building, works or materials;
   3. emission of noise, artificial light, vibration, smell, fumes, smoke, steam, waste water, waste products, grit or oil; or
   4. presence of vermin.
4. Any new plant and equipment proposed on the roof of the building must be screened in a manner to complement the appearance of the building to the satisfaction of the responsible authority.
5. Outdoor lighting occasioned by this permit must be designed, baffled and located to the satisfaction of the responsible authority to prevent any adverse effect on adjoining land.
6. During the construction of the buildings and works allowed by this permit, the laneway(s) adjacent to the subject land must be kept free of parked or standing vehicles or any other obstruction, including building materials, equipment so as to maintain free vehicular passage to abutting benefiting properties at all times, unless with the written consent of the responsible authority.
7. This permit will expire if one of the following circumstances applies:
   1. The development is not started within 2 years of the date of this permit.
   2. The development is not commenced within 2 years of the date of commencement.

The responsible authority may extend the period referred to if a request is made in writing before the permit expires or within three months afterwards.

1. The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

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Mr. Phillip Beard, town planner of the City of Port Phillip, appeared for the responsible authority. He presented written and oral submissions.

Mr. J. Brett, barrister and applicant objector, appeared in person. He presented written and oral submissions. He called several witnesses namely Sarah Stephen, Peter Monahan, Sties Persson and Graeme Burt. Mr. Brett also gave evidence himself, and made himself available for cross-examination. All of his witnesses, including himself, but excluding Mr. Burt, gave oral evidence in which they adopted written witness statements. Mr. Burt gave oral evidence.

Mr. Adrian Finanzio, barrister, appeared on the instructions of Bazzani Scully Brand Solicitors for Chris & Will Van Der Linden Pty Ltd. He presented written and oral submissions and called Adam Cavanagh, traffic engineer, as an expert witness. Mr. Cavanagh gave oral evidence, adopted a written report and was cross-examined. Mr. Finanzio tendered the written reports or witness statements of several other expert witnesses by consent in circumstances where no other party wished to cross-examine such witnesses. These statements or reports were from Professor Christopher Kincaid Fairley, Professor Gary Wayne Dowsett, Kel Twite, town planner, and Christophe Delaird, acoustic consultant.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Prior to the hearing the presiding member inspected the site externally and the locality. It became unnecessary for there to be a further inspection.

Application under s.82 of the Planning and Environment Act 1987 (PE Act) for review of a decision of the Responsible Authority to grant a permit.

Application under s.80 PE Act for review of conditions in a Notice of Decision to grant a permit.

Alterations and extensions to an existing hotel building, extended hotel trading hours in relation to part of the ground floor pursuant to cl.52.27 of the Port Phillip Planning Scheme and a waiver of car parking requirement.

Business 1 Zone under the Port Phillip Planning Scheme

1. The Greyhound Hotel is situated on the review site at the south-western corner of the intersection of Blessington Street with Brighton Road in St. Kilda. That site is known as 1 Brighton Road. There is a two storey art deco hotel building on the site although the building does not occupy the entire site at ground floor or first floor level. There is an active hotel business conducted on the site. Apart from the ordinary bar trade and meals business of an hotel, this one seeks to attract patronage by various forms of entertainment on various nights of the week. This includes music performances, trivial pursuit nights and a night when some attraction to homosexual men is advertised.
2. The original permit application sought several minor planning permissions referred to above and below in this document. However, the main original application was for permission to use the first floor as a place of assembly namely a "gay sauna". Mr. Finanzio, barrister, who appeared for the permit applicant explained that the proposal involved the use of the first floor as such a place of assembly, as distinct from the ground floor where the existing hotel business would continue. The originally proposed new use would have included a lounge, TV room, steam room, spa, sauna, safe sex counselling room, solarium, massage room, lockers and a substantial new room at first floor level divided by petitions into approximately 30 cubicles.
3. Before lunch on the second day of the hearing Mr. Finanzio on behalf of his client (the company) applied to amend its permit application. This amendment was to delete the application for permission to use the first floor for purposes of such a place of assembly. The result of that would be that the use of the hotel at both levels would continue to be for the purposes of the existing hotel. Hand in hand with the amendment sought, amendments to the plans were indicated to delete the place of assembly facilities. This amendment was granted by consent.
4. The amendment also deleted from the case by far the most important concern about it, so far as the objector, Mr. Brett, was concerned.
5. The responsible authority had determined to grant a permit and issued a Notice of Decision to Grant a Permit dated 14 June 2007. The company had applied, under s.80 of the Planning and Environment Act 1987 (PE Act) for a review of several of the conditions. However, it is fair to say that the conditions review concerned minor matters the scope of which were substantially further reduced, so far as the responsible authority is concerned, by its concession on most points raised.
6. The deletion of the place of assembly left only three relatively minor matters for determination, apart from the conditions review. The company continues to seek planning permission for development in the form of the building extensions depicted in the plans, although with the place of assembly facilities deleted. There is a quite minor extension proposed at ground floor level where the building would take in a portion of a beer garden. At first floor level there would be a greater extension to include a new area of approximately 206 square metres which basically represents the area where the cubicles had been proposed.
7. Planning permission for these building works is required because the zone provisions in relation to a section 2 use in the relevant table of uses requires permission for buildings or works for such a purpose. Hotel is a section 2 use, and so planning permission is required pursuant to that provision for such building works. Permission would be required for these building works, whether or not they increased the floor area available. Such a regulating requirement is not principally in the planning scheme to control floor area or, for example, patron numbers. Volume, bulk, built form, appearance, affect on neighbouring buildings and the like are more to the point.
8. Planning permission for new buildings or works is also required pursuant to the existing use provisions contained in cl.63 of the planning scheme. This is because a proviso to one of the provisions applies to the continuation of an existing use right. Such rights continue providing such provisos are complied with and one of them is that there should not be new buildings or works without planning permission. However, such a requirement is not principally imposed for the purposes of limiting floor area or patron numbers. Such permission would still be required for building work even if they had the effect of reducing floor area available to the public and/or patron numbers.
9. This hotel enjoys existing use rights pursuant to cl.63 of the planning scheme and the relevant portions of s.6 of the PE Act. These rights allow the lawful use of the land as a hotel without imposing limits on patron numbers.
10. In fact, there is a limit on patron numbers, although it is not imposed under the planning laws. Liquor licensing requirements have imposed a limit of 200. That limitation applies unless and until it is varied, but such variation would be a liquor licensing matter rather than a planning one.
11. The second planning permission still sought and required arises in relation to cl.52.27 of the Port Phillip planning scheme. It provides that a planning permit is required to use land to sell or consume liquor if the hours of trading allowed by a liquor license are to be extended. Permission under that provision is sought because the company wishes to extend its trading hours on Friday nights (actually early Saturday mornings) from 1 am to 3 am. It has such 3 am closing at present for Saturday night running into Sunday morning. The company also seeks an extension of its present closing time on Sunday night from 11 pm to 1 am the following Sunday morning. These hours do not apply to the whole of the hotel premises, but relate to a specified area denoted as "main lounge" which contains a stage and which is located on the ground floor on the southern side of the building set back from Brighton Road and adjacent to other business premises in the Business 1 zone.
12. The grant of a planning permission under cl.52.27 of the planning scheme in relation to these two proposed extensions of trading hours does not mean that such extended hours will in fact be available to the hotel. The company must still apply to the Liquor Licensing authority under the Liquor Control Act to obtain licensing arrangements that allow the extended hours by means of a new licence or by amendments to the existing licence or licences. We have occasion to consider the matter only in relation to planning matters.
13. The third permission sought is for a waiver of car parking requirements that would otherwise apply pursuant to cl.52.05 of the planning scheme. As a long established hotel with the existing use rights, this hotel does not at present have any requirement to provide car parking. Its site is such that it cannot provide on-site parking. The current question only arises because the proposed building alterations will create an increase in floor area. Clause 52.06-1 provides, amongst other things, that:

A new use must not commence or the floor area of an existing use must not be increased until the required car spaces have been provided on the land.

Where the floor area occupied by an existing use is increased, the parking requirement only applies to the floor area of any extensions of the use or site area provided the existing number of car spaces is not reduced.

1. Clause 52.06-5 contains a table specifying the standard requirement in relation to various land uses. These requirements are not mandatory in the sense that they can be reduced or waived by the responsible authority, or by the Tribunal on review, if it is thought appropriate to grant permission for such waiver. There are various criteria to be taken into consideration in this respect.
2. Hotel is a use in the table in that clause and the car parking provision in relation to a hotel, unless reduced or waived pursuant to such permission, is 60 spaces per 100 square metres of bar floor area available to the public and 30 car spaces per 100 square metres of lounge floor area available to the public.
3. Of course, a mere increase in floor area of the hotel does not attract either of these requirements if the new spaces are not used for a bar or a lounge is open to the public.
4. It is not really apparent at this stage what use is to be made, if any, of the new floor area at first floor level which had been intended to be occupied as part of the space devoted to the originally intended place of assembly use. The question of waiver does not really arise unless and until it is proposed to use some or all of this new area for a bar available to the public or a lounge available to the public. The area can be used for other hotel purposes. Although, the requirement does not arise at this stage we have considered the merits of whether it might appropriately be waived if that becomes relevant.
5. We note in this respect that licensing requirements will require licensing of any such new area intended to be used as a bar open to the public or a lounge open to the public. Licensing requirements would involve consideration of questions of parking, patron numbers and possible amenity affects.
6. Thus we are called upon to consider a minor extension of hours, a quite minor extension to the building, dispensation of parking requirements and conditions.

1. The proposed building works are innocuous so far as considerations of visual impact on the surrounding world are concerned. They are to the rear of the site and will not intrude unduly, indeed they will intrude hardly at all, on views of the building from the public realm, particularly Blessington Street and Brighton Road. Their impact on adjoining buildings on the adjoining Business 1 zone land to the south and Residential 1 zone land to the west is very minor, particularly having regard to the proposed design and absence of windows in those directions. We find no reason to refuse permission for the building extensions sought.

Extension of hours and cl.52.27 of the planning scheme

1. Mr. Brett has been involved in other cases concerning the Greyhound Hotel. He resides in Blessington street in a house situated in the Residential 1 zone that adjoins the Business 1 zone upon which the hotel stands. His previous cases have involved questions of hours of operation. At some previous date the hotel apparently sought permission under licquor control legislation for late closing (3 am in relation to a portion of the premises) 7 days a week. The case was resolved by agreement whereby 3 am was agreed in relation to Saturday night trading, but not for other nights. This was an agreement between Mr. Brett and the company (or its predecessor) and the agreed arrangement was given effect to by the Liquor Licensing Commission.
2. This was an agreement that was acceptable to both sides. It does not mean that the Liquor Licensing Commission would necessarily have refused to extend hours on other nights.
3. Of course we are not the Liquor Licensing authority, and we view the matter from a planning perspective. The 3 am closing in relation to Saturday night trading has been in operation for some time. No complaints have been made. No evidence of any difficulties has been given that persuades us that there is reason to refuse the 2 hour extension to 3 am in relation to Friday night trading or the 2 hour extension to 1 am in relation to Sunday trading. We have come to this view having regard to the absence of complaints and the absence of evidence of problems attributable to the late closing on Saturday nights, but also on the basis of our assessment of the context and the situation. The hotel is oriented to Brighton Road and presents its back to the residential land to the west of the Business 1 zone. We accept that various patrons are likely to come from various directions and by various means of transportation including walking, public transport, taxis, perhaps bicycles, and by motorcar. The evidence indicates the availability of car parking in various places nearby including Brighton Road and Carlisle Street, but also including Blessington Street and other residential streets. Late night and early morning parking demand in streets that serve retail and other business premises such as in Brighton Road and Carlisle Street are likely to leave many vacancies. The peak for business and retailing use is during office hours. The same is true in relation to municipal purposes. The St. Kilda town hall and municipal offices occupy a substantial site on the south-east corner of the intersection of Carlisle Street and Brighton Road. Like business premises, these impose parking demand during office hours, but not during peak parking demand generated by late night entertainment. The same is true in relation to the Uniting Church on the south-west corner of the intersection of Chapel Street with Carlisle Street and the municipal library on the north side of Carlisle Street between Chapel Street and Brighton Road. Peak parking of nearby residents and the visitors to residents was not during office hours. It is likely to be after office hours, and particularly after ordinary entertainment time so as to peak late at night.
4. An extension of two hours in closing times would still be subject to a restriction in that new customers cannot be admitted in the last half hour before closing. Few patrons are likely to arrive during the 90 minute between 1.00 am and 2.30 am. If they did there is likely to be plenty of parking in the non-peak commercial and municipal frontages, or even where hotel patrons have departed.
5. We find no reason to refuse permission under cl.52.27 in all the circumstances, including lack of problems generally, and the particular improbability of parking problems causing amenity detriments to the residential area in particular.
6. We have not forgotten that the extension of hours sought will still be dependant on liquor licensing controls which include amenity considerations including parking.

1. The standard parking requirement in the table in cl.52.06 is the starting point for a consideration of parking in relation to the uses specified in the table, but not the finishing point. Of course, unless there is reason to depart from the starting point, it will also be the finishing point. The table caters for all circumstances, including greenfield sites in the circumstances where there is no public transport and where other considerations relevant to reducing or waiving requirements are not applicable.
2. Mr. Brett repeatedly said that there is no reasonable basis for a reduction or waiver in this case. He said that the company had simply asked for what it wanted on the assumption that there was no reason why it should not be granted.
3. In saying this he overlooked the evidence and submissions advanced in relation to the considerations whereby reduction or waiver might be granted. Clause 52.06-1 in fact contemplates reduction or waiver in suitable circumstances, and specifies a series of considerations to be taken into account in deciding whether to grant such reduction and waiver. Some of those considerations, like a relevant parking precinct plan, do not apply here. Others are relevant and, indeed, significant. These include the availability of car parking in the locality. In that respect the availability of on-street parking in various places at various times, including when peaks will occur, is relevant. Some fairly detailed survey evidence gives indication as to availability, and over a wider area than just the immediate Blessington Street environment. We have more evidence than the quite limited survey of Mr. Burt and blanket assertions as to parking being "at a premium".
4. Also relevant is the availability of public transport. There is excellent public transport in relation to this site. Public transport includes the double tram lines in both Brighton Road and Carlisle Street in addition to the railway within walking distance to the east. There may also be bus routes. Some of it becomes less available late at night or rather in the early hours of the morning. Nevertheless, taxis and night rider buses are still relevant. But there is an increasing trend for responsible people attending late night entertainment where liquor is available to rely on public transport or taxis or sometimes a sharing of vehicles. This reduces parking demand.
5. This is not a greenfield site or locality. It is not a place poorly served by public transport and it is not a place remote from its customers, or at least it is in the nature of a "corner pub" so that some at least of its customers can be expected to come by foot. Empirical assessment of actual parking demand in relation to similar situations and other relevant considerations are also included in the list. Mr. Finanzio points to and relies upon the limitation of the number of patrons imposed by the liquor licensing provisions. This cannot be varied without the say so of the liquor authority who will take account of parking before increasing patron numbers, whatever be the floor area or any increase in floor area, or even any increase in floor area open to the public. It does not follow, as Mr. Brett seemed to want to argue, that an increase in floor area will occasion an increase in actual patronage, as compared to a limit on the total number of patrons allowed on peak occasions, or that increased parking demand would be generated.
6. Whilst it seems to us that the occasion for waiver might really arise when the occasion for a parking requirement arises, we see no reason in principle why waiver should not be granted in the circumstances of this case. If the situation had arisen at this stage, we would grant permission for waiver for the relatively minor increases in relation to this long existing establishment.

1. As we have said, the controversy about conditions was minor as between the responsible authority and the company. To the extent there was this agreement it has been almost completely resolved. We need to consider whether a one year limitation on commencement of development as imposed by the responsible authority is warranted where the company wants a two year limit in that respect. We consider one year to be unduly restrictive in the circumstances and two years to be more appropriate.
2. Mr. Brett's review as an objector under s.82 of the PE Act of the decision to grant permission at all puts the question of conditions in issue. Quite a number of conditions are no longer relevant, having regard to the amendment to the permit application which has deleted the place of assembly permission originally sought. Conditions also need to account for consequential changes to the plans. Accordingly, we make a number of modifications to the conditions set out in the Notice of Decision to Grant a Permit, both in relation to the words of permission, and in relation to the conditions. We have also considered ourselves free to rearrange or alter English expression and setting out of conditions. We have deleted some notes that appeared at the foot of the conditions in the Notice of Decision to Grant a Permit on the basis that they are not part of the permit and not part of our decision.

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