Nicholas Tweedie, Barrister instructed and assisted by Chris Taylor, Lawyer of Property Partners.

Mr Tweedie and Mr Taylor called expert evidence from Colleen Peterson (town planner) of Ratio Consultants, Jason Walsh (traffic engineer) of Traffix Group, and Darren Liu (acoustic engineer) of Acoustic Control.

Increase in the patron numbers of the existing Greyhound Hotel from 400 to 500, without providing any car parking on site.

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

Clause 52.06-3 to reduce the number of car parking spaces required under Clause 52.06-5.

Clause 52.27 to sell or consume liquor if the number of patrons allowed under a license is to increase.

Clauses 10, 11, 17, 18, 21, 34.01, 52.06, 52.27 and 65.

The subject land is located on the south-west corner of Brighton Road and Blessington Street, St Kilda. It has frontages to Brighton Road of about 29 m and to Blessington Street of about 31 m, and an area of about 900 sq m. There is a ROW about 3 m wide on the south-western boundary. The two-storey Greyhound Hotel occupies the land. The hotel was originally constructed in the 1880s and modernised in the 1930s. There is no on site car parking. Alterations and extensions to the hotel, authorised by a permit granted in 2007 at the direction of the Tribunal, are completed. The hotel consists of (on the ground floor) a public bar, kitchen, main lounge/entertainment area, office, store rooms and a beer garden and (on the first floor) four lounges, store rooms, staff rooms, bar, outdoor terrace and balcony.[1]

The Tribunal inspected the site and surrounding area prior to the hearing, on 9 September 2013, conducted an accompanied inspection within the premises on 12 September 2013, and inspected the surrounding area during the operation of the premises late at night on 27 September 2013.

CWK Hotels Pty Ltd v Port Phillip CC [2011] VCAT 701.

1. The Greyhound Hotel is an existing facility at 1 Brighton Road, St Kilda (the 'review site'). It is located on Brighton Road (St Kilda Road) and near to the intersection of Carlisle Street, surrounded by mostly residential land uses to the west and south, and the St Kilda Town Hall to the east on the opposite side of Brighton Road.
2. The Greyhound Hotel presently has a liquor license which allows up to 400 patrons on the premises at any one time, and trading until 1.00am in the beer garden (11.00pm on Sundays) and either 1.00am or 3.00pm on various days in the remainder of the premises.
3. CWK Hotels Pty Ltd (the 'Applicant for Review') has lodged an Application to review the failure of the Port Phillip City Council to grant a permit within the prescribed time. The permit relates to a proposed increase in patron numbers to 500 people, and an associated approval to waive the additional car parking requirements.
4. The grant of a permit is being opposed by Port Phillip City Council. They raise concerns in relation to the amenity impact of adjacent residential properties, the waiving of car parking, and the lack of plans to manage taxis and waste. The proposal is also being opposed by two other parties, one a resident who mainly raises concerns regarding noise from the venue, and another who operates an adjacent rooming house and raises concerns regarding amenity impacts.
5. The key issues or questions for determination are:

1. Is it appropriate to waive the car parking requirement? 2. Will the surrounding community experience unreasonable levels of amenity impacts?

1. Are there any other reasons to oppose the grant of a permit?
2. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Port Phillip Planning Scheme, I have decided to set aside the Council's decision, and direct the grant of a permit subject to conditions. My reasons follow.

Is it appropriate to waive the car parking requirement?

1. The review site does not provide any car parking, and so it is sought to waive in its entirety the statutory requirement for 40 car parking spaces associated with the additional 100 patrons.
2. Ms Davidov submitted that this is an area surrounded by a residential neighbourhood which is experiencing a high level of car parking. As a result, the amenity of the nearby residential area will be compromised by the additional car parking associated with the anticipated additional 100 patrons. In support of this submission, Ms Davidov drew the Tribunal's attention to the lack of public transport options at around closing time of the venue, and the Applicant's own request that spaces on street be marked for the exclusive use of staff, highlighting a potential safety issue.

1. Traffic and car parking evidence was provided by Mr Walsh. It is his evidence that, based on surveys of this actual venue and the existing mode of transport used by patrons and staff, that the additional 100 patrons will equate to a demand for 16 additional car parking spaces. It is noted that his survey identified that the most common form of travel for people was via taxi, and the expectation is that this will continue in the future.
2. Mr Walsh presented a car parking survey of the surrounding streets, which found that after 10.00pm on the surveyed Saturday, there were a minimum of 82 car parking spaces available within walking distance of the review site. While some of these spaces were adjacent to residences, others were not. For example, the surveyed area includes Dickens Street, which is located to the south of the St Kilda Town Hall and is not a residential street. Dickens Street has a surveyed vacancy of at least 24 car parking spaces after 10.00pm on the surveyed Saturday night. An earlier survey by a different traffic firm confirmed a similar level of vacancy, as did my own late night inspection. As such, there remains available in this neighbourhood, and adjacent to non-residential properties, more than sufficient on-street car parking for the proposed increase in capacity at the review site, and the anticipated additional demand for 16 car parking spaces.
3. This is a site that enjoys existing use rights as a Hotel. It has historically been developed in a way such that it does not provide any off-street car parking. That arrangement will continue into the foreseeable future. For venues such as this, it is appropriate that car parking continue to be provided on-street, so long as there remains capacity to do so, and so long as it can be conducted in a manner which minimises the amenity impact to the nearby residential properties. As I am satisfied in relation to both of these matters, I find that it is appropriate to grant the waiver of car parking associated with the increase in patron numbers.

Will the surrounding community experience unreasonable levels of amenity impacts?

1. Ms Davidov for the Council conceded that the review site is not burdened with a potential cumulative impact concern, due to the relative location of surrounding licensed premises. However she submitted that the additional 100 patrons have the potential to create adverse amenity impacts as a result of the noise associated with patrons outside of the venue. This is a concern especially as patrons come and go from the venue, and congregate around the venue, potentially adjacent to residential properties. Ms Davidov referred the Tribunal to the behaviour of people when they are intoxicated, their loud voices, and potential to create disturbance for residents.
2. In terms of the scale of the amenity impacts, Ms Davidov submitted that the additional 100 patron limit will 'tip the balance' in terms of the amount of amenity impacts being experienced by residents, that is acceptable in this interface location. Ms Davidov also referred to the lack of a staggered closing as a concern that potentially 500 people could spill in the surrounding area at closing time.

1. The test that I need to apply is not whether the proposal to increase the patron limit will increase the detriment to surrounding land owners, including residents, but rather whether any increase in detriment will be unreasonable or inappropriate. In the assessment to be undertaken in relation to the review site, this requires a balancing of the amenity benefits and disbenefits associated with the proposal that is before me.
2. I will begin with the benefits. There are three ways in which the proposal that is before me will actually provide a reduction in amenity impact to the nearby residential properties. Firstly, as part of the approval the Applicant for Review has conceded that patron noise from the ground level 'beer garden' is the main cause of acoustic impact to the nearby properties. Under the current approvals that apply to the land, this 'beer garden' is permitted to be used until the closing time of 3.00am as a smokers area, but alcohol is not permitted to be served after 11.00pm. In recognition of the noise impacts that are being caused by the use of the 'beer garden' after 11.00pm, the Applicant has offered, as part of this proposal, to close entirely the 'beer garden' at 11.00pm, and create a new smokers area in the northern corner of the building. I consider that this will provide a significant benefit to the nearby residences.
3. Secondly, as part of the proposed increase in patron numbers, the Applicant for Review is willing to stop the current practice of crushing bottles during the operation of the venue late at night. Acoustic evidence was given that the crushing of bottles, and the associated compressor, is the loudest plant or equipment operating at the venue of an evening. The transfer of this activity to a daytime, when the residents are not trying to sleep and a number of surrounding residences might be vacant, will be a significant benefit.
4. Thirdly, the proposed increase in capacity in the venue will act to limit the queuing that presently occurs outside the venue. It was recognised that, aside from the 'beer garden', the main acoustic impact from patrons to the venue is when they are outside the venue, either coming or going, or congregating in groups. The increased capacity will allow for people from the queue to enter the premises in a more timely manner, and thus reduce the time available for people to be outside the venue creating noise impacts for the neighbours. I recognise that this is a relatively small benefit, but is one to be considered in the overall balance.
5. These benefits needs to be weighed against the disbenefits associated with the proposal. It is the evidence of Mr Liu that there will be no additional noise impacts from the internal parts of the venue itself as a result of having 100 additional patrons. Therefore the amenity impacts will come as a result of having an increased amount of patrons accessing the site. Some of these patrons will seek a car park in the nearby residential area, despite the availability of car parking elsewhere. Such traffic and parking saturation will cause some level of amenity impact on the broader neighbourhood. Further, patrons when accessing their vehicles within this residential neighbourhood will likely cause noise impacts from their loud behaviour, particularly at the end of a night out. Other patrons who don't park in the residential neighbourhood may also walk through this area, particularly to access some venues in Acland Street. However I accept the evidence of Ms Peterson that this is likely to be a relatively rare occurrence.
6. As a result, I consider that the suite of changes that are before me are likely to create a net benefit in amenity terms to the surrounding residents, or at the least create a neutral impact. The types of amenity benefits and disbenefits involved are likely to create the strongest overall benefit for the residents located closest to the review site, who will receive the most benefit from the earlier closing time of the 'beer garden' and the non-operation of the bottle crusher during the night time period. Whereas the residents located further away from the review site, who are not impacted by the 'beer garden' and bottle crusher, will likely experience a slight reduction in amenity due to the increased number of patrons seeking car parking, and creating noise in accessing their vehicles. However overall I find, having regard to the analysis conducted above, that there will be an increase in amenity to this neighbourhood as a result of the proposal that is before me.
7. I must note that the analysis I have undertaken here is not intended to be a net community benefit analysis, but rather just one that considers whether there is a net 'amenity' impact to the nearby residences. If I were to conduct a net community benefit, I would also need to consider the increased employment of ten people as a result of the increased patron limit. The Applicant also informed me that people who queue to enter the venue, which occurs along busy Brighton Road, are currently subject to taunts and abuse from passing motorists and pedestrians due to their lifestyle choices. The reduction of this queue as a result of the increase in patron limits will allow for a safer environment. Finally, there will be an opportunity for additional people from the community to enjoy the venue, which everyone appearing before me agrees is well run and a safe venue for its patrons.
8. I therefore find that there will also be a net community benefit from this proposal.

Are there any other reasons to oppose the grant of a permit?

1. Ms Davidov for the Council submitted that it was inappropriate, from a policy perspective, for an entertainment venue of this scale to be located outside of a designated activity centre. In support of this submission Ms Davidov took the Tribunal to a number of policy statements from the Port Phillip Planning Scheme.
2. While I accept the Council's arguments on this policy position on face value, this is not an application for a new use, or a new venue. The Greyhound Hotel has existed on this site for over 100 years, and shows no signs of disappearing in the foreseeable future. It enjoys existing use rights, and therefore can continue to operate in this interface location.
3. The policy argument put by Council would be more relevant to an application for a new venue. However in the context of a proposal to increase patron numbers, the real test is not whether the venue is ideally suited from a policy perspective, but rather whether the off-site impacts of the development can be managed, and whether a net community benefit is achieved. In terms of both of these considerations, I have found that the balances weigh in favour of the proposed increase in patron numbers. I therefore find that the proposal is supported by policy, including the following:

Pressure for licensed premises and gaming venues is also growing. Both have an important entertainment role in the municipality, however they need to be appropriately sited and managed to ensure that their social impacts on the community are minimised. These impacts can include increased late night patronage, parking congestion and reduced amenity to nearby residential land uses due to noise and antisocial patron behaviour.

1. Ms Davidov raised concern with the increased waste as a result of the proposed increase in patron numbers, and the failure of the Applicant to address this matter as part of their planning permit application. At present waste is stored on site and collected directly from Blessington Street. I have no reason to doubt that this present arrangement can continue to occur, with the potential for an increased number of collections to occur during the day, to deal with the increased patronage and waste. To ensure that this is done in an appropriate manner, a condition of the permit will require the waste management, including the collection times, to be done to the satisfaction of the responsible authority.
2. Ms Davidov also raised concern with the collection of patrons by taxis on site, and how this will be managed in the future as a result of the increased patronage. Mr Walsh gave evidence that currently taxis queue in the parking lane along Birghton Road adjacent to the review site, and in his opinion this works well from both a traffic and a patron perspective. Based on my own observations, I can see no reason why this informal arrangement cannot continue to work well into the future with an increased patronage. If for some reason a higher level of management is required, then an opportunity is available for Council, the operator and VicRoads to work towards a more formal taxi rank arrangement servicing the review site. I have not been persuaded that such a higher level of management is appropriate at this point in time.
3. During the course of the hearing it became evident that a bedroom window in the adjacent rooming house was located closer to the review site than was known to the Applicant for Review. As a result, SEPP N-2 is not achieved in respect of the current operation of the land. Mr Liu gave evidence as to the options that are available to the Applicant for Review to achieve compliance. I don't consider this is a matter that I need to address, as it is not directly related to the proposal before me to increase patron numbers. Rather the issue that was highlighted during the course of the hearing is a matter of compliance with the current legislation and planning permit conditions. I am confident that the Applicant for Review and Council can together ensure that actions be undertaken to ensure compliance with SEPP N-2 in the future.

1. The Port Phillip City Council seeks to have a suite of conditions applied to this permit that basically repeats all of the requirements set out in an earlier permit that applies to the land. I see no reason for this approach. What is before is a discreet proposal to increase patron numbers by 100 people. The permit that will result from this approval will contain conditions relating to that proposal, and will only be enforceable if the venue decides to proceed with the increase in patron numbers. If they do proceed, then they will be required to comply with all approvals that apply to the land, including past planning permits. This is not an unusual situation, and in my view is neither confusing or misleading for any of the parties involved. I will therefore not be adopting the Council's approach of issuing an 'omnibus' permit in this matter.

1. For the forgoing reasons the decision of the Responsible Authority will be set aside.

The use of the land to sell or consume liquor, under clause 52.27 of the Port Phillip Planning Scheme, where the number of patrons allowed under a liquor licence for the premises is to be increased to 500, and a waiver of car parking requirements associated with that increase.

1. Without the further written consent of the Responsible Authority, no more than 500 patrons are allowed within the premises, and the number of patrons allowed within the external area (Beer Garden) is to be no more than 77 patrons.
2. Without the further written consent of the Responsible Authority, the use of the external area (Beer Garden) must cease at 11pm.
3. Prior to any increase in patron numbers allowed by this permit commencing, the Applicant must provide on the premises an alternative smoking area for the use of patrons to the satisfaction of the responsible authority. That alternative smoking area must, as a minimum, be available to be used by patrons at times when the venue is operating and the external area (Beer Garden) is closed pursuant to condition 2.
4. Prior to any increase in patron numbers allowed by this permit commencing, the permit operator must prepare and submit to the responsible authority an amended management plan in accordance with the requirements of condition of planning permit 42/2007. The plan must be to the satisfaction of the responsible authority and once approved it will be endorsed and form part of this permit, and part of permit planning permit 42/2007. The amended management plan must be in accordance with the requirements of condition of permit 42/2007, but must include any additional management measures which are necessary or appropriate as a consequence of the increase of patrons allowed under this permit in order to minimise any offsite amenity impacts of the venue or its patrons.
5. Prior to any increase in patron numbers allowed by this permit commencing, a sign must be erected near the entrance/exit requesting that patrons leave the building in a quiet and orderly manner so as not to disturb the peace and quiet of the neighbourhood to the satisfaction of the Responsible Authority.
6. An adequate waste management arrangement, including collection times, must be provided for the premises, to the satisfaction of the Responsible Authority.
7. Bottles must not be crushed on the premises or emptied into the external refuse bins outside the premises, after 10pm or before 8am Monday to Saturday or after 10pm or before 10am on Sunday, except with further written consent of the Responsible Authority.
8. Before the increase in patron number starts, five circular stainless steel bike racks must be installed at the cost of the applicant/owner on the adjacent public footpath in a location to the satisfaction of the Responsible Authority. Once the racks have been installed they will become a Council asset and the developer will have no further ongoing obligations or responsibilities regarding the racks.

[1] This is an edited version of the site description given in the previous decision of CWK Hotels Pty Ltd v Port Phillip CC [2011] VCAT 701.

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