2 The application for permit was lodged with Council on 18 December 2003. Following the giving of notice of the application, 40 objections were received. The grounds of objection can be summarised as:

* Patron behaviour, leading to an increase in violence and crime,

* Increase in pedestrian and vehicle traffic in area,

* Loss of general amenity to nearby residential properties,

* Entertainment use not consistent with the character of the business in the surrounds,

* Oversupply of bar nightclubs and restaurant uses in area,

3 The application was not referred to any other authorities.

4 The application for review was lodged with the Tribunal on 23 March 2004.

5 Council formally considered the application at its meeting held on 21 June 2004, and resolved that, had the application for review not been lodged, it would have refused the application on the following grounds.

"1. The proposal will result in an unacceptable loss of amenity to nearby residential uses, as a result of unacceptable noise from the premises and patron activity, the entry/exit point serving the use, being in a residential street and its close proximity to a Residential Zone.

2. The level of car parking dispensation sought is inappropriate and insufficient car parking is available to the immediate environs to serve the proposed use.

3. Activities associated with the use of the principle parking areas available, will result in an unacceptable and inappropriate impact on adjoining residential use.

4. The proposal is inconsistent with Clause 22.10 (Entertainment Uses Policy), Clause 22.13 (Parking Policy) and Clause 22.09 (Retail Centres Policy) of the Stonnington Planning Scheme."

6 A copy of Council's officer's report was provided to the Tribunal.

7 Those parties, or their representatives, who attended the hearing, as well as the persons called to give evidence, tabled and spoke to written submissions or witness statements. These, together with the plans, photographs and other material tabled in the course of the hearing, have been attached to the Tribunal's file.

8 The following persons gave expert evidence for the applicant:

* Mr D J Robertson of TraffixGroup, traffic engineer, and

No expert evidence was called by Council or the respondents.

9 The hearing occupied 3 days, commencing on 1 July 2004 and being adjourned to the later 2 days. In the course of and following the hearing, I inspected the subject land, the Lincoln Street car park, the residential area of Duke Street and the neighbourhood at large.

10 At the commencement of the hearing, Ms M Thonard was joined as a party, as a respondent objector.

11 The following description of the site and the locality, taken from Mr Dietrich's written submission is useful:

"The subject land is located on the south-eastern corner of Chapel and Duke Streets, Windsor. The site is located on the upper level of properties 116 to 122 Chapel Street, Windsor. The site has a frontage on Chapel Street of 23.5 metres, a depth of 36 metres and a total floor area (at upper level) of 846 sq metres. The site backs onto a Council laneway.

The subject site is occupied by a two-storey building, known as 'Dominant House'. The building was constructed c.1950 and has windows at the upper level running the full length of the building on three sides, reflecting its industrial origins. Public access to the upper level is via an entry foyer located on Duke Street, approximately 26 metres from the corner of Chapel Street, and an internal stairway. At the south-east corner of the site there is a timber 'flyover' across the Council laneway linking the subject site and No. 2 Duke Street at the first floor level. This flyover is a remnant of the former use of the buildings as textile manufacturing facilities. The structure appears to be at least 20 years old, is no longer used and forms no part of this application.

The ground level of the subject site currently accommodates various retail and commercial uses.

The ground floor of the subject site is currently occupied by the 'House of Wax' retail store (permit recently issued for an internet café with an 11:00pm licence), 'New Wind' restaurant, 'Creamy Velvet' clothes store and 'The Social' bar (3:00am licence).

Features of adjoining land and properties nearby are as follows:

North: The 'Flying Horse' café currently occupies 124 Chapel Street on the northern corner of Duke Street. To the rear and above the site is a single residential dwelling accessed off Duke Street. The land is zoned Business 1.

To the northeast of the site, No.'s 9 & 11 Duke Street are used for commercial purposes (offices) and are zoned Business 1. Beyond these properties, Duke Street is zoned Residential 1. The first 'dwelling' has been converted for use as an office. Further along Duke Street are dwellings used for residential purposes.

South: Immediately adjoining the subject site to the south, at 114 Chapel Street, is a comic book shop. Further to the south of this shop, fronting Chapel Street, are buildings currently used for a mixture of commercial uses, typical of the Chapel Street locality.

East: To the rear of the site is a laneway providing vehicular and pedestrian access to the Lincoln Place carpark. Beyond the laneway and further to the east are properties at No. 2 - 4 Duke Street. Vehicular access to No. 2 is from the laneway. No. 2, a two-storey building, appears to have been constructed in the 1950's and has been refurbished with a glass front façade. A leather manufacturer occupies the building, which is zoned Business 1. No. 4 is also a two-storey building, constructed c.1970 and zoned both Business 1 and Residential 1. An office, hairdresser and a vacant shop occupy the ground floor. There is an office space upstairs. The remainder of Duke Street to the east is zoned Residential 1 and is typically occupied by smaller, semi-detached dwellings. The closest residential dwellings are located in Lincoln Place which area accessed from the car park, located approximately 10 metres from the site.

West: To the west of the site, on the opposite side of Chapel Street, are commercial businesses.

* 109 Chapel Street is occupied by 'Priceline' retail outlet.

* 113 Chapel Street by 'Value King' retail outlet.

* 115 Chapel Street is occupied by 'Paterson's Cakes' retail outlet.

Above these premises are offices and retail sales, either associated with or independent of the ground floor business.

There are no restrictive covenants applicable to the site."

12 The following description of the proposal is taken from Mr Dietrich's written submission:

"The plans that form the basis of this consideration were prepared by Beers Design and are known as Project No. 0304 Drawing No. WD00 dated 06.10.03, WD01-G and WD02 dated 06.10.03 and WD03 and WD04, dated 30.11.03.

1. The applicant seeks approval for the use of the first floor as a Tavern with an on premise liquor licence. The application also includes a waiver from the requirement to provide any on-site car parking.

3. The ground floor plan includes a delivery bay (accessible via the existing roller door located adjacent to the right-of-way), and a new stairwell sited in the south-east corner of the building (for staff, goods and disabled use only).

4. The first floor plan consists of bar lounge area, a dance floor, stage area, staff rest lounge and toilets.

5. The proposed hours of operation are 6pm to 3am the following day, 7 days a week.

6. The maximum patron number as stated by the applicant is 300.

8. An internal acoustic wall is proposed that will isolate activities from the outer building shell.

9. The stage and 'active' areas of the use will be oriented towards the north west corner (Chapel/Duke Street corner) of the site.

10. The eastern side will be occupied by toilets and a staff area.

11. An office, toilets and storage/delivery area will be located on the ground floor, with vehicular access off the laneway.

12. Access and facilities for the disabled is provided (stairlift and disabled toilets).

13. A third fire exit stairway will remain, accessing onto the laneway.

A traffic engineering assessment, prepared by TraffixGroup and dated November 2003, was submitted in support of the application.

An acoustic report prepared by Acoustic Consulting Australia Pty Ltd and dated 20 November 2003 was also submitted in support of the application.

13 The subject land is zoned Business 1 under the Stonnington Planning Scheme. The purposes of the Business 1 Zone, in addition to implementing State and Local Planning Policy, including the MSS is:

"To encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses."

14 Within the Business 1 Zone, a permit is required:

* Under Clause 34.01-1 - section 2 for use of the land as a tavern.

* Under Clause 52.06 (car parking provisions) on the commencement of a new use to waive the number of car parking spaces required in the car parking table to Clause 52.06-5. Under the table a tavern requires 60 car spaces for each 100 square metres of bar floor available to the public and 30 car spaces for each 100 square metres of lounge floor area available to the public.

* Under Clause 52.27 (licensed premises) for the use of land for the sale or consumption of liquor on the premises.

15 The land is not subject to any Overlays, but there is an exhibited amendment to the Planning Scheme C18 proposing a Special Building Overlay. Council commented that as the proposed use is located on the first floor of an existing building and no external works are proposed, the SBO is not an issue in this application.

16 Clause 65 of the Scheme sets out decision guidelines that must be considered as appropriate before deciding on any permit application.

17 Other relevant policies, strategies and controls referred to by the parties and relevant to the application are as follows:

The State Planning Policy framework seeks to ensure that the objectives of planning in Victoria are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development.

Clause 17 of the SPPF relates to economic development. The main objective of this clause is to encourage the concentration of major retail, commercial, administrative, entertainment and cultural developments into activity centres which provide for a variety of land uses and are highly accessible to the community.

The Melbourne 2030 Implementation Plan 4 for Activity Centres promotes existing uses in designated activity centres with a strong sense of identity. Whilst the growth of activity centres is encouraged, the protection of established residential area is of equal importance.

* Clause 18.02: Car Parking and Public Transport Access to Development.

* Clause 21.10: Identity of Commercial Areas - Focus and Residential Interface.

CURRENT AMENITY IN DUKE STREET AND SURROUNDING RESIDENTIAL STREETS

18 The respondent/objectors made submissions about the current levels of amenity experienced by them in Duke Street, the Lincoln Street car park and the laneway behind the premises and surrounding area.

19 The Lincoln Street car park with 74 spaces is quieter in the colder months but in summer and the warmer months the submissions were that people congregated there, particularly on Friday, Saturday and Sunday nights, to "party", "shoot up" and it is noisy. They said the lane from Duke Street to the car park provides an opportunity to loiter, urinate and is currently not lit.

20 The Lincoln Street car park was at present underutilised and they feared with the tavern operating, leaving aside patron noise, traffic would:

* exit to Chapel Street via the laneway and Duke Street

* cruise Duke Street and other streets in the residential area looking for parking close to the venue,

21 Whilst there is restricted parking on the north side of Duke Street, residents in Duke Street have trouble parking their cars in the evenings and some choose not to go out in the peak evenings on Friday and Saturday nights. Their experience is that cars cruise the residential street constantly looking for parking with the consequential amenity impacts. They fear that when public transport ceases after midnight (except for the Nightrider bus), patrons will rely on cars and taxis, and there will be a bank up of taxis in Duke Street, there being limited opportunities for taxis to pickup passengers in Chapel Street.

22 Loud music ("booming" being the adjective used) from cruising car stereos and radios is a cause of serious disturbance to a number of residents in the early hours of the morning, particularly when the cars slow or stop for some minutes to park.

23 Sleep is frequently disturbed by shouting, yelling, bottle smashing, on occasions fireworks, and fights. Vandalism occurs and some residents have had car windows smashed. Many noisy drunks are experienced.

24 They experience the base beat from live bands in other venues in the area.

25 Some residents fear for their personal safety when they go out at night and restrict their outings accordingly.

26 A small number of the respondents live close to the premises wholly of partly in the Business 1 Zone and agreed that they could not expect the degree of amenity expected for residential areas and had learnt to live with the current noise levels, but expected the impacts of the proposal would be unacceptable.

27 Some residents were often woken by rubbish collections early in the morning.

28 Mr Huxford was perhaps the most explicit in his statement of the intensity of the current adverse amenity impacts. He is an academic, who needs sleep and quiet at night, but he is constantly woken on Thursday, Friday and Saturday nights by the behaviour described above. He does not expect to sleep on those nights before 3.30am and his quality of life was seriously affected. His house is a weatherboard cottage with poor sound attenuation qualities, and he is disturbed even though he sleeps in a room at its rear.

29 Except for the residents in the Business Zone, all lived in the Residential Zone part of Duke Street which commences about 30 - 40 metres from Chapel Street (described by Mr Scally as the "hinterland" following Senior Member Monk's example in the Pugg Mahones decision discussed below).

30 All the residents feared the introduction of a 300 person tavern with no food, but with music and dancing, its entry on to Duke Street and trading to 3am. They expect it will create a series of traffic, noise and patron behaviour amenity problems and some expressed the sentiment they will be forced to move out of the area.

31 Some were concerned about the creeping increase in the number of late night licensed premises in the area (see below) and considered their amenity had been progressively damaged over the last decade.

32 I find there has been a proliferation of licensed premises in the area. Set out below is a table of the licensed premises in Chapel Street in the vicinity including some north of High Street? Several trade to 3am or later. All are on-premises licences unless specified below.

Trading Name Premises Off Premises/ Closing Times

Norsiah Restaurant 188 Chapel St Restaurant 11.30 pm

33 The submissions of the respondents is essentially uncontested, were consistent with my inspections, and I find they represent the state of the amenity of the area at present.

34 Evidence was given behalf of the applicant by Mr David Dolley, an acoustic engineer, on as to the sound attenuation measures proposed for the premises. He noted the existing building on the envelope includes thick masonry walls with heavy duty sliding windows and a roof system is of gable configuration with light weight cladding externally and internally.

35 He noted several doors to the exterior must be specifically considered for sound attenuation, that mechanical ventilation and natural ventilation penetrations in the roof must also be acoustically treated, but that the floor of the upper level was a 400 mm thick concrete slab which had a high sound attenuation effect.

36 He referred to the application plans which showed the existing entry with double doors to Duke Street with stairways upwards to the first floor. There was also a fire escape egress only stairway to the laneway at the south eastern corner. He noted that the proposal involved constructing an internal acoustic wall and ceiling inside the windows of the first floor along the eastern, southern and western boundaries and a concrete block internal wall separating the licensed area from proposed unoccupied space on the north side of the building. The roof system above the entertainment and lounge area would include a substantial air cavity in the roof space as well as an acoustic barrier system comprising two layers of 16mm plaster board with a 100mm thick, 48 kg/m3 density acoustic installation overlay. Sound lock entry and exit points would be required at a number of locations. He indicated that mechanical ventilation systems must be designed to control the escape of music noise.

It is concluded that music noise can be adequately controlled by implementing the correct acoustic system for external walls, doors, roof and mechanical systems.

It is concluded that compliance with the M-2 policy is achievable provided that music levels are controlled to predetermine limits within the venue and that the appropriate acoustic designs are implemented.

A permanent sound monitor device will be required within the main entertainment area. This device must be calibrated to ensure that internal music and amplified speech levels are maintained below predetermined thresholds that are consistent with external compliance. Off the shelf units are available and commonly in use.

38 He also commented on the noise requirements for mechanical plant and concluded that, based on experience, he expected that compliance with the N-1 State Environment Protection Policy is practically achievable provided the appropriate design advice is incorporated into the plan installation design.

39 No other acoustic evidence was brought. Mr Scally proposed a set of draft conditions of a kind frequently used for entertainment premises, which required the carrying out of the works proposed by Mr Dolly, an acoustic report prior to commencement of use to certify that the State Environment Protection Policies N-1 and N-2 were complied with when music is playing, that before the use commences the works must be completed and approved, the airlock doors not be allowed to remain open and that noise limitation and sound attenuation equipment for amplified music to be installed and calibrated by a qualified acoustic engineer.

40 On the basis of this evidence I am satisfied that the impact of music noise will be substantially contained within the premises, subject to a qualification about the `base beat" commonly experienced by residents adjacent to late night venues.

41 As the proposal is a new use, a permit for waiver of car parking is required.

42 Mr Bowden's submission for Council was that under clause 52.06 (car parking provisions) of the scheme a permit was required to waive the number of car spaces required for the commencement of the proposed new use. He said that the table to clause 52.06-5 indicated that a tavern requires 60 car spaces for each 100m2 of bar floor area available to the public and 30 car spaces for each 100m2 of lounge floor area available to the public, resulting in a requirement of 126 car spaces for this use. Council's position was that the level of car parking dispensation sought is inappropriate, insufficient parking is available in the immediate environs to serve the proposed use and that activities associated with the use of the principal parking areas available will result in unacceptable and inappropriate impacts on adjoining residential use.

43 He referred to the local policy in clause 22.13 (parking policy) and advised that no car spaces are to be provided on the site. He submitted that the proposal generates a high demand for parking at a time when on street parking is heavily utilised, in particular by residents in residential streets, it often being their sole source of parking. He noted the parking of 25 spaces generated by the previous use was for a business which operated in core business hours, not outside those hours

44 He submitted that whilst proximity to public transport could be taken into account to reduce the parking requirement, public transport did not operate after 1am (except for the Night Rider service) and a demand for private vehicles or taxis was thereby created. He submitted the only way to access Duke Street to pick up patrons from the site was via the east past the residential properties.

45 He did not refer to one purpose of clause 52.06 being to ensure that the design and location of car parking areas "does not adversely affect the amenity of the locality ....", and an objective of clause 22.13 (parking policy) being "to maintain the amenity of residential and commercial areas".

46 The only expert evidence on parking and traffic by Mr Donald Robertson of Traffix Group who described the road network and public transport to the site, which was consistent with the other submissions that it operated until about 1am with the exception of the Night Rider bus which operated till 4.13am on Fridays and Saturdays.

47 His Group had made two surveys on 14 November 2003 and 11 June 2004.

48 His assessment of supply relied on on-street parking and 3 off-street car parks being the Lincoln Place car park, the McIlwrick Street car park (south of McIlwrick Street about 200 m south of the site) and the Bowling Green car park (about 150 m south east behind the frontages on the other side of Chapel Street). He was satisfied that on the basis of a full house of 300 patrons there is sufficient parking available within the locality to support the likely demand of 90 spaces associated with the proposed use. His conclusions were:

Having perused relevant documents and plans, visited the site and undertaken car parking assessments, I am of the opinion that:

1. The anticipated peak parking demand generated by the proposed development is 90 spaces.

2. Car parking surveys undertaken on Friday 14 November 2003 and Friday 11 June 2004 indicate that there is sufficient parking available within the locality to support the likely parking demand, without adversely affecting the availability of parking for others, including residents in the locality.

3. The site's proximity to public transport serviced and other venues increases the likelihood that patrons will arrive either on foot from other venues or by public transport and leave by taxi or public transport if the serviced are operating at the time.

4. There are no traffic engineering reasons to suggest why a town planning permit should not be issued for the proposed tavern development at Level 1, 116-122 chapel Street, Windsor.

49 I accept his evidence on the basis of parking demand and supply alone leaving aside the issue of amenity impacts which are discussed below, and with the qualification that I have some doubt as to Mr Scally's submissions that there is adequate space for hailing taxis in Chapel Street and I find that taxis will probably make use of Duke and other residential streets to pick up patrons in duke Street.

50 Mr Robertson also produced diagrams showing acceptable turning circles for a vehicles entering Duke Street from the laneway behind the premises and vice versa was feasible. I accept that evidence.

51 Having considered the acoustic and expert traffic evidence, the key issue is the consideration of the amenity impacts of the proposal in the light of current planning policy under the scheme.

"The proposed use of the premises at first floor 118-122 Chapel Street, Windsor, as a tavern is considered to be appropriate and worthy of Council support for the following reasons:

* The use is located within a high profile retail that is dynamic, active, vibrant and recognised for the variety of commercial functions including entertainment uses on offer. Activity typically occurs during the day and late into the night. It is submitted that such activity is consistent with State and Local Policy objectives to provide for maintaining vibrant and viable regional centres.

* The use will provide an entertainment use within a vacant first floor area, without the loss of any existing ground level retail use, thus reinforcing the retail centre hierarchy.

* The site is located in a Business 1 Zone and it is the purposes of this zone that should be given the appropriate weight.

* The proposed operating conditions sought are consistent with local policy expectations, surrounding conditions and other similar premises in the area.

* The use will not result in any unreasonable amenity impacts.

53 Mr Scally submitted that clause 22.09 (retail centres policy) supported this type of use at first floor level and it rather focussed on impacts on street level retail use. Clause 22.09-1 does identify this part of Chapel Street as a "group 3" centre. However I do not agree with Mr Scally's submission. Whilst Mr Dietrich is correct in that service activity including entertainment is clearly envisaged in a group 3 centre and that the proposed tavern use will enhance the economic viability of the existing group 3 neighbourhood centre, clause 22.09-3 contemplates some limitations and requires that proposals be considered on the basis that (amongst other things):

* These centres cater for neighbourhood and specialty retail, office and service activities and needs.

* The proposal retains the individual character of the centres whilst complementing the area as a whole that is:

o Predominantly retail and some entertainment uses, with a wider mix of office service uses at the southern end, in Windsor...

54 I conclude that clause 22.09 encourages in this locality predominantly retail with a wider mix of office and service uses, but only "some" entertainment uses. The already large number of licence premises and entertainment uses at the southern end of Chapel Street in Windsor has reached the point where they cannot be described as merely "some" entertainment uses, but I find that rather the number has become a dominant feature, contrary to the policy.

55 Clause 22.10 (entertainment uses policy) of the scheme was also discussed by Mr Dietrich and Mr Scally. The strategies for group 3 state in clause 22.10-3 that:

* New entertainment uses and the expansion of existing entertainment uses be discouraged unless the applicant demonstrates satisfactorily that ...

s The use will not adversely affect the predominantly retail function of a group 3 centre if it is located at ground level,

s The size of the use, type of activity, the location of eating and entertainment areas, associated traffic and the location of parking are consistent with maintaining the reasonable amenity of nearby residential areas.

s The operating hours are consistent with maintaining residential area and generally not later than 12.30am."

and Mr Scally submitted that despite this, the proposal was consistent with Clause 22.10 on the basis that the Windsor end of Chapel Street has a "student quarter" theme referred to in clause 21.10. Mr Dietrich said the tavern is appropriately located at the south end of Chapel Street and at first floor level, retaining existing retail activity at ground floor and will not involve the removal of any existing shop use. It will promote the uniqueness of the "student quarter" providing an appropriate entertainment venue with particular music focus furthering the cultural educational and tourism objectives of the local policies, and will incorporate acoustic protection and fill the void left by the closure of "The Continental" venue in Greville Street, and the venue has the potential to develop links with nearby Swinburne University. He also asserted the proposed use is appropriately removed from the nearest residential area and can demonstrate no unreasonable amenity impacts.

56 Mr Scally submissions supported this evidence and identified that amenity impacts and patron behaviour was the key issue. He relied on Mr Dietrich's comment about off-site amenity impacts as follows:

"It is evident that there are few sensitive uses within close proximity to the site. The nearest residential ones are some 30m away to the east in Duke Street, with possible additional residential uses above commercial premises in Chapel Street. Significantly, any nearby residential area in Chapel Street are within the Business 1 Zone. Therefore, they would fully appreciate their location within a designated activity centre where several late night food and entertainment premises operate. As such there must be an expectation that a certain amount of late night activity will occur which is the inevitable compromise that must be accepted when choosing to live in such a vibrant precinct."

57 However I find that the intent of this policy is to discourage further entertainment uses within this area after 12.30 pm and to that extent the proposal is inconsistent with the policy, although, there is of course discretion under the scheme depending on the nature of the proposal and its impacts on the community.

58 Clause 22.10 (entertainment uses) seeks to manage entertainment uses in the commercial areas and to protect the amenity of residential areas from their impacts. The objectives reflect this policy basis. The policy in clause 22.10-3 makes significant distinctions between the group 1 commercial centre - Chapel Street - Toorak Road from the group 3 commercial centre in Windsor in which this site is situated as follows:

* Firstly the group 1 policies designate a location for entertainment uses operating after 3am whereas the group 3 policy does not.

* Both uses discourage operating hours not later than 12.30am but the group 1 policy has the proviso for operating after that time "unless the responsible authority is satisfied that the applicant can demonstrate minimal detriment to nearby residential amenity". No such proviso exists in the group 3 policy. In the group 3 policy the new entertainment uses are discouraged if (amongst other things):

* The size of the use, type of activity, the location of eating and entertainment areas, associated traffic and the location of parking are consistent with maintaining the reasonable amenity of nearby residential areas.

* The references to minimal detriment to amenity in the group 1 policy only apply in respect of operating after 12.30am.

* I conclude the policy for group 3 places a higher value on residential amenity than group 1 and envisages earlier 12.30 closing times.

59 Mr Scally's supplementary submissions referred to a number of VCAT decisions.

* Daleford Court Pty Ltd v Stonnington City Council (P1880/2002 - dated 19 May 2003 re 321 - 323 Chapel Street, Prahran. He quoted Member Read's observations of patron behaviour late at night, referred to the security plan and cited the approval of the use of the premises at the basement for the purposes of a tavern, car parking waiver and necessary buildings and works. The permit was subject to extensive conditions and trading hours were to 3am Sunday to Wednesday and to 5am Thursday to Saturday. Patron numbers were limited to 250 patrons after 6pm.

My comment on this case in its application to the matter before me is that these premises were in group 1, not group 3 and Member Read made specific observations and findings as to the impact on amenity in the context of the group 1 policy. This matter should be decided in the context of the group 3 policies having regard to the actual evidence of the existing level of amenity in the area and the likely impacts of the proposed use.

* Tairoa v Stonnington City Council [2000/86094] dated 23 March 2001. This proposal was for 143 Chapel Street, Windsor for the use of a tavern and a waiver of car parking. The hours sought were to 1 am and the patron numbers were fixed at 85 patrons. Member Hewet recognised the link to Swinburne University but he did make an amenity assessment of the proposed use and considered the amenity impact concerns raised by nearby residents living within or close to a Business 1 Zone. I agree with the proposition stated by him at paragraphs 53 - 54 that such residents cannot have the same amenity expectations of residents living in a residential zone isolated from commercial activities. He was satisfied that the proposed use would not lead to unreasonable amenity impacts on the above residents.

However I note that the proposed use is much smaller and does not involve a side entrance to a residential street.

I also considered the other cases cited but it is not necessary to comment on them as they add little to the argument.

* Renburgh Pty Ltd v Stonnington City Council [2004] VCAT 681 (14 April 2004)

* Tovey v Port Phillip City Council [2002] VCAT 1504 (15 November 2002)

* Valanya Pty Ltd v Yarra City Council [2003] VCAT 288 (11 March 2002) and

* Andrews v Stonnington City Council (2000/95943 - 19 April 2001)

60 However also discussed was the recent decision of Pugg Mahones (Carlton) Pty Ltd v Melbourne City Council [2002] VCAT 470 (17 July 2002) decided by Senior Member Monk. This involved the proposed extension to 5am of trading hours for the Pugg Mahones hotel at 171 - 175 Elgin Street, Carlton and involved acoustic issues and live and amplified music entertainment in premises close to the interface between a Business 1 Zone and Residential 1 Zone land north of the Business 1 Zone strip in Elgin Street.

61 Mrs Monk considered the question of at what point can the level of disamenity be found to be no longer reasonable, and it was submitted to her that with careful management this hotel could be operated to 3 am on Thursday to Saturday nights in a manner that did not unreasonably affect the amenity of residents at the interface of this commercial precinct. Such management would include:

* not allowing entry into the premises during the last hour of operation;

* concluding entertainment 30 minutes before closing time;

* pro-active crowd controllers outside the premises.

62 However the evidence of the resident objectors was referred to by Ms Monk in paragraph 41 which reads as follows:

Mr Steane's observations of over 5 nights with only one being a Saturday night must be weighed against the testimony of the resident objectors. I have to say that I found the consistency of their statements in relation to yelling on the street and to fighting, vomiting and urinating in front of dwellings, to be persuasive and not entirely at odds, in any case, with Mr Steane's evidence. I find also that the fact that Mr Evans is a company executive with BHP Billiton and Mr Brandi is a Senior Constable of Police at Melbourne City Police assists me in accepting the credibility of their observations. In the case of Mr Evans, this included a fight at his doorstep in January this year when he was told to "get back inside or you're next". In the case of Mr Brandi, a diary kept by him in recent weeks makes frequent references to yelling and screaming after 11.00 pm. He had also observed yelling from the hotel itself. It was his submission also that in summer, when bedroom windows are open, the noise from such on-street activity is even more audible.

63 Ms Monk's conclusions were stated at paragraphs 45 and 46 as follows:

Should these premises be granted a permit to operate till 3.00 am on Thursday and Friday nights it can be reasonably anticipated that more persons will arrive later because they can stay longer. This premises is licensed to accommodate up to 500 persons at the one time and may well do so; if it adopts a late night entertainment role.

With the best will in the world on the part of the management and even with proactive security, a taxi rank, graduated music and entry times and staff assigned to mopping up duties, I cannot be persuaded that there would be other than a significant reduction in the amenity of persons residing within say 100 metres of this site. For this activity to be occurring at and beyond 3.00 am is, I find, an unacceptable outcome having regard to the objectives of the Local Planning Policy for entertainment facilities to develop in areas where they will cause least detriment to the residential area. Put simply, its position at the outer edge, or residential interface of this commercial precinct is not a suitable location for such a late night venue.

64 My assessment of the impact on the amenity likely to occur as a result of the proposed use is similar to that formed by Ms Monk. The submissions of the resident objectors whether they live in the Business Zone or, like most, in the Residential 1 Zone is that they already suffer a fairly high level of disamenity as a consequence of other entertainment venues in the area. They are certainly not enjoying the level of amenity that a resident in a Residential 1 Zone distant from commercial areas would expect. The proposal involves a 300 patron live music operation with a side entrance on to Duke Street close to the residential zone. Experience can only indicate that patrons will be attracted to congregate in Duke Street, to enter and leave the premises via Duke Street and to use the Lincoln Street car park. It is only reasonable to expect that some of the traffic and taxis attempting the access the premises will use the residential side streets and there will be further congregation of patrons in the Lincoln Street car park. Whilst I am generally satisfied that the acoustic measures will be satisfactory it is always difficult to eliminate the "base beat" which the residents are already experiencing. I find the evidence of disamenity in the Pugg Mahones case of some similarity to the evidence of disamenity already being experienced by the residents in this matter and that the proposal would cause additional amenity impacts, which when added to the present unsatisfactory level of impact, would be unacceptable.

65 I consider that one indication of the level of disamenity that might be expected is indicated by the number of conditions that the applicant has proposed. That level of conditioning on a permit is that expected of a live music night club. Whilst the applicant here proposes Jazz/Blues and intends to replace the "continental" venue there is no condition proposed which will control or regulate the type of music played in the future and the applicant would be free to play whatever music he likes whether heavy metal grunge or Jazz/Blues. No one can predict what type of patron will be attracted or what type of music will be played. Premises of this size will inevitably cause quite severe additional unacceptable disamenity impacts by patrons entering the premises, leaving the premises and these amenity impacts will spread to the surrounding streets, Duke Street, the Lincoln Street car park. The combined effect of the existing impacts and what is likely to occur produced an outcome which is inconsistent with the policies to protect the residential amenity and giving the group 3 areas a higher amenity protection value than the group 1 areas

66 For the above reasons the application is refused and no permit will issue.