Diamond Waters Nominees v Melbourne CC [2008] VCAT 35

With respect to permit application TP-2006-1085, the Responsible Authority's decision to refuse to grant a permit is set aside.

A permit is granted for alterations and additions to an existing residential hotel within a Heritage Overlay and Design and Development Overlay; and the waiving of the car parking required for the additional floor area at 1-23 Millswyn Street South Yarra generally in accordance with the endorsed plans and subject to the following conditions:

1. Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans substituted by the Tribunal but modified to show:
   • (a) The southern balcony and associated roof area at the western end of the caretaker's residence removed and the western wall of the southern bedroom without any windows. Eaves overhanging the western wall may be included.
   • (b) The northern balcony and associated roof area at the western end of the caretaker's residence removed. If it is necessary to maintain emergency access to the rear stairway from the caretaker's residence, a small balcony area and associated roof area may be provided for the northern bedroom to connect a sliding bedroom door to a stairway door.
   • (c) The provision of a northern balcony from the living area of the caretaker's residence with dimensions of approximately 2.0 x 4.955 metres and screening along its northern side to a height of 1.7 metres. It may be an open balcony to the sky or include openable glazing providing the screening is permanent.
   • (d) The replacement of the communal open corridor with private northern balconies adjacent to rooms 37, 38 and 39 on the first floor and rooms 65, 66, 67, 68 and 69 on the second floor; and any associated changes to the design of the northern doors to each room.
   • (e) The provision of glass doors/windows and private separated balconies for rooms 74-78 along the eastern side of the fourth floor addition.
   • (f) The replacement of the fourth floor communal balcony area between the 1890s building and the addition with a non-accessible roofed area.
   • (g) The width and length of the plant area on the fourth floor provided on the floor plans and the height and details of the materials and finishes of any screening walls/roof provided on the elevations.
   • (h) The lift over-run above the fourth floor level to have a maximum height of 2 metres above the proposed roof; reduced in area to 2.0m by 2.5 metres; and the details of the materials and finishes of the walls/roof provided on the elevations.
   • (i) The removal of the outside seating area adjacent to Millswyn Street shown on the ground floor plan.
2. The development as shown on the endorsed plans must not be altered or modified without the prior consent of the Responsible Authority.
3. A schedule of all external materials and finishes must be submitted to the satisfaction of the Responsible Authority prior to the commencement of any buildings and works on the land. The schedule must show the materials, colours and finishes of all external walls, roof, fascias, window frames, glazing types, doors, fences and paving, outbuildings and structures.
4. Alcohol shall only be consumed inside the subject building, and not on the open balconies or any part of the car park of the premises.
5. The use of the pool must cease at 10.00pm each day and is restricted to hotel guests and the resident caretaker to the satisfaction of the Responsible Authority.
6. The caretaker's residence must not be used as a hotel room to the satisfaction of the Responsible Authority.
7. The development must be managed so that the amenity of the area is not detrimentally affected through the:
   • (a) transport of materials, goods or commodities to or from the land;
   • (b) appearance of any building, works or materials;
   • (c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; and
   • (d) presence of vermin.

1. The emission of noise or any other emission to the environment derived from activities within the site must comply with the standards contained in the relevant State Environment Protection Policy or polices, to the satisfaction of the Responsible Authority.
2. This permit will expire if one of the following circumstances applies:
   • (a) the development is not started within two years of the date of this permit.
   • (b) the development is not completed within four years of the date of this permit.

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

The Responsible Authority is ordered to issue a permit in accordance with this determination pursuant to section 85(1)(b) of the Planning and Environment Act 1987.

Mr I Pitt, senior counsel instructed by Best Hooper solicitors

Mr Pitt called the following witnesses who provided expert evidence and were made available for cross-examination:

Mr H Jackson of counsel instructed by Hardys lawyers appeared for R & M Fenwick, RM Hornung, I & M Guliano, T Dwyer, I & J Tuck, R Cuzzilla, D & R Pitt, A Grayden, P Dethridge and P Millington

Mr Jackson called Mr R Milner of Coomes Consulting, who provided expert town planning evidence and was made available for cross-examination.

Mr W Cook appeared on behalf of himself and G & M Clarkson

Mr Prent appeared on behalf of himself and Mrs Prent (only attended on 14 January).

Mr Koodak appeared in person (only attended on 14 January).

1. This is an application to review the decision by Melbourne City Council ('the Council') to refuse to grant a permit for alterations and a fourth storey addition to the existing residential hotel situated at 1-23 Millswyn Street, South Yarra.
2. The residential hotel consists of an 1890s building fronting Toorak Road and an attached three storey L shaped building at the rear with frontage to Millswyn Street that was built in 1964. Mr Pitt advised the existing motel/hotel use began in the 1890s building in 1953.
3. The residential hotel is located within a residential area of South Yarra that is situated between Toorak Road (and Fawkner Park) and Domain Road (and the Botanical Gardens). The Council and the objectors are concerned that the proposal will result in an intensification of amenity issues associated with the existing use (including car parking provision); and is contrary to the policy directions for minimal change and retention of the low scale built form character.

1. At the commencement of the hearing, Mr Pitt sought leave to substitute amended plans that had been circulated in accordance with the Tribunal's practice note requirements. None of the parties objected to this and we granted leave[1].
2. Mr Pitt also provided a set of photomontages of the proposal at the commencement of the hearing, together with a statement explaining how they had been prepared by Orbit Solutions.
3. We advised the parties that we had inspected the site and surrounds prior to the hearing and were familiar with neighbourhood.

1. The review site is located on the northwest corner of Toorak Road and Millswyn Street in South Yarra. It contains two buildings that are attached and the entire site is used for the purpose of a residential hotel with a total of 25 car spaces provided in various locations around the site.
2. To the south of the site, on the opposite side of Toorak Road, is Fawkner Park. To the east, north and west is a residential area that contains a mix of building styles of varying eras ranging from single fronted dwellings to four storey apartment buildings.

1. It is proposed to reconfigure the internal layout of the 1960s section of the existing hotel fronting Millswyn Street to provide a larger kitchen/storage area and some larger guest rooms. It is also proposed to construct a new fourth level on the Millswyn Street section of the building containing 7 hotel rooms, a caretaker's residence, a pool, gymnasium and communal outdoor balcony area. As a result of all of these works, there will be no increase in the number of hotel rooms or car parking spaces; hence the existing 79 rooms and 25 car spaces will remain.

1. The site is contained within a Residential 1 Zone pursuant to the Melbourne Planning Scheme ('the Planning Scheme'). It is also affected by a Heritage Overlay (HO6 - South Yarra precinct) and the Design and Development Overlay Schedule 15 (Royal Botanic Gardens). As a result, a permit is required to:
   1. Undertake building and works under the Heritage Overlay HO6;
   2. Construct a building and carry out works under the Design and Development Overlay Schedule 15 ('DDO15');
   3. Undertake alterations and additions to an existing use under clause 63 of the Planning Scheme; and
   4. Waive the car parking required for the extended floor area of the existing use under clause 52.06 of the Planning Scheme.
2. Residential buildings of four or more storeys must be considered having regard to the Design Guidelines for Higher Density Residential Developments rather than clause 55.
3. DDO15 is concerned with the preservation of the landscape qualities and amenity of the Royal Botanical Gardens; ensuring buildings are compatible with the existing scale and character of buildings in the area; and protecting the residential amenity of the area. The overlay specifies a maximum building height on this site of 12 metres as measured at its Millswyn Street frontage and this is complied with.
4. The relevant State planning policies encourage urban consolidation particularly in established areas; the protection and enhancement of heritage areas; and the provision of appropriate car parking for new development.
5. The Municipal Strategic Statement ('the MSS') comments:

South Yarra has many important heritage assets including buildings, streetscapes, parklands and institutions that are worthy of protection. The existing residential area of South Yarra is well established and has limited capacity for growth ...

As South Yarra is an area of stability with minimal potential for new development, residential amenity has been maintained and the area's historic character and features have been preserved.[2]

1. There are two local planning policies in the Planning Scheme that are relevant to this proposal, being Heritage Places outside of the Capital City Zone and Urban Design outside of the Capital City Zone. We have considered these policies and, where relevant, their content is discussed in the reasons for our decision.

1. The starting point for considering this proposal is to understand why a permit is required, as our decision on the planning merits of this matter are limited to the reasons why a permit is required. We wish to point this out as both the Council and some of the objectors made submissions to us about matters which go beyond the reasons why a permit is required.
2. The review site is zoned Residential 1 and a residential hotel would normally be a land use that would require planning permission in this zone. However, the buildings on this site have been used to provide motel/hotel accommodation since 1953 and, as such, the site enjoys what is described in planning terms as "existing use rights". This means the existing activities on the land and the layout of the existing buildings and car parking have the right to continue to operate without any necessity to comply with the planning controls and policies that apply today. This also means the existing hotel use of the land and the existing activities that occur on the land are not before us for consideration. This includes the use of the airspace above the existing building for the purpose of a residential hotel (as this use is existing); the operation of the dining room; and the garbage storage and collection arrangements.
3. The proposed building alterations and additions to the hotel to provide improved kitchen/storage facilities; an altered hotel room configuration; and an additional storey to the existing building to provide new hotel rooms, a caretaker's dwelling, pool and gym all require a planning permit under the provisions of the Planning Scheme (as set out in paragraph 10). Our decision is based upon the planning merits of these building alterations and additions and any car parking and amenity issues that arise from these building works.
4. None of the parties raised any particular concerns about the small addition proposed at the northern end of the existing building fronting Millswyn Street. Rather, the concerns focus upon the proposed fourth level addition and the associated changes to the existing hotel rooms within the building. Having regard to the requirements of the applicable planning controls and policies in the Planning Scheme and the submissions of the parties, we find the key issues to be determined are:
   • The appropriateness of the proposed addition to the character of the area;
   • The appropriateness of the proposed addition to the significance of the heritage precinct;
   • The impact of the proposal upon the car parking provision; and
   • The amenity impacts of the proposal upon surrounding residential properties.

1. Mr Milner emphasised the sections of the Local Planning Policy Framework ('the LPPF') in the Planning Scheme that seek to maintain this area of South Yarra as low scale heritage streetscapes and buildings[3]; and expressed the view the policies seek to temper the degree of change in this area. Mr Bastone agreed but emphasised the policies do not prevent change from occurring. We agree the LPPF acknowledges there is some capacity for change in this area, and find the proposed alterations and addition to the existing building on this site is one such example of the potential for change.
2. Design and Development Overlay Schedule 15 provides for a maximum building height of 12 metres, excluding architectural features and building services. The proposed addition reaches a maximum height of 11.75 metres. We agree with the parties that the fact the overlay provides for a 12 metre height does not mean such a height is automatically permissible. The objectives of the overlay include ensuring compatibility with the existing scale and character of buildings in the area and protecting the residential amenity of the area. The proposal must satisfy these objectives.
3. Mr Milner and Mr Bastone agreed Millswyn Street contains an eclectic mix of architectural styles, building heights generally in the order of 1 to 3 storeys and a significant number of apartment buildings. Mr Bastone pointed out two of the apartment buildings are 4 storeys in height. They also agreed the built form themes in the street include high site coverage, shallow front setbacks and narrow gaps between buildings. We find the building forms in the street are robust, providing the street with a solid and consistent built form appearance that is tempered in the warmer months of the year by the mature street trees.
4. Mr Milner argued the existing residential hotel is different to the existing built form rhythm (an anomaly in Millswyn Street) because it has a long frontage to the street and is quite exposed. We disagree because we are of the view this building is in keeping with the existing solid and consistent built form appearance of the balance of the buildings in the street.

1. Mr Milner expressed the view the proposed addition is monolithic and adds to the building bulk. He suggested the addition's Millswyn Street elevation should be setback from the northern end of the existing building to reduce this monolithic form. The addition is setback 1.32 metres from the existing Millswyn Street façade with piers and the roof extending over the proposed balconies to match the existing façade. There are five hotel rooms proposed along the new façade, with glass windows and sliding doors (although not detailed on the plans) leading onto what are proposed to be narrow private balconies (although not detailed on the plans). The predominantly glass façade is consistent with the extensive glass windows found in the Millswyn Street façade of the existing building. We agree with Mr Bick's evidence that the addition is a simple form that is respectful of the existing building. The incorporation of the roof over the proposed private balconies will create a shadowed façade for the majority of the day which will assist to lessen the visibility of the new level, as the extensive glass windows of the existing lower levels will remain the dominant visible element in the streetscape.

1. Mr Milner stated the Guidelines for Higher Density Residential Development ('the design guidelines') encourage all roof elements including plant, lift over-runs and building services to be integrated into the building form or roof design rather than sitting proud upon the roof. He submitted the building services will be evident in this proposal.
2. The existing lift over-run is a reasonably large structure on top of the Millswyn Street façade and is quite visible from Millswyn Street. We note there is also a stairwell and other plant/service structures sitting on top of the rear section of the building in full view of the neighbouring properties. The objective for roof forms in the design guidelines is to treat roof spaces and forms as a considered aspect of the overall building design and one of the design suggestions is to incorporate plant and lift over-runs as an integral part of a roof design. This suggestion is then explained that such services should be carefully designed to avoid visibility from surrounding spaces and buildings or incorporated into the roof.
3. The existing situation is that much of the plant and services of the hotel are evident from surrounding spaces and buildings, and we find this proposal will improve this situation. A single plant area is nominated between the 1890s building and the proposed fourth floor addition and it will be setback over 8 metres from existing Millswyn Street façade. As such, any views of the plant structure will be restricted due to the roof forms of the 1890s building and the proposed addition and the proposed setback from the existing façade. Mr Pitt advised the lift over-run will have a maximum height of 2 metres above the roof of the proposed addition and will be restricted in area to 2 metres by 2.5 metres. The location of the lift is existing in the building and, as such, the location of the lift overrun cannot be altered. We are of the opinion the restriction in its height and area is a considered aspect of the proposed design and is an appropriate design response. In our opinion, the fact that it may be visible in part from surrounding spaces or buildings is not sufficient reason to refuse this proposal.

1. The implementation strategies in the MSS for this area state, amongst others:
   • Protect heritage places including buildings, structures, streetscapes, historic subdivision patterns and street layout, landscape features and indigenous sites in St Kilda Road and South Yarra.
   • Ensure the development is sympathetic to the heritage values of adjacent heritage areas and places.
2. The South Yarra heritage precinct (HO6) is a large area which Mr Bick explained contains a very heterogeneous building stock that contributes to the heritage significance, as well as a number of buildings that have no heritage value and are neutral in terms of impact or that detract from the heritage significance.
3. Mr Bick advised the site contains one of the heritage precinct's important buildings, being the 1890s building fronting Toorak Road. He described the 1960s addition in Millswyn Street as part of the eclectic mix of building forms that comprise part of the history of South Yarra. It contains simple detailing with a compatible height to adjacent buildings on both sides of this end of Millswyn Street. Mr Bick pointed out the southern end of Millswyn Street does not contain any significant buildings (other than the 1890s building) until numbers 36 and 43 which are graded C and D.
4. Mr Bick supports the addition because it is separated from the 1890s building; it is only a little higher than the ridge of the 1890s building; views of it will be compatible with surrounding building heights; and its appearance is simple and respectful of the existing 1960s building on Millswyn Street.
5. Mr Jackson questioned whether the addition should enhance the heritage precinct but Mr Bick explained proposals either add to a heritage place's significance, have no impact or detract from the significance. In his opinion the 1960s building has no positive or negative impact, it simply exists in a neutral way within the precinct. Similarly, Mr Bick considers the proposal neither enhances or detracts from the significance of the heritage precinct; it is neutral in impact.
6. The purpose of the Heritage Overlay includes conserving and enhancing heritage places and the decision guidelines talk about whether a proposal will adversely affect the significance of a heritage place. The objectives of the Heritage Places local planning policy seek to conserve all parts of buildings that contribute to the heritage significance; and to ensure external alterations make a positive contribution to the built form and amenity of the area. In regard to the achievement of this objective, we note the policy guidelines go on to require additions to be respectful of streetscapes, and the character and scale of adjoining buildings.
7. We find the applicable test in the Heritage Overlay is whether the addition has an adverse affect on the significance of the heritage place and we accept Mr Bick's evidence that its affect is neutral. We also find the addition is respectful of the streetscape as its design is simple and respectful of the existing 1960s building, and it is of a similar scale of adjoining buildings for the reasons explained in the previous section about the character of the area.

1. The Planning Scheme states the floor area of an existing use must not be increased until the required number of car spaces have been provided on the land; and the parking requirement only applies to the floor area of any extension as the existing number of car spaces is not reduced.
2. The car parking table in the Planning Scheme specifies car parking requirements for a motel and a residential building, which both require the provision of 1 car space per unit/lodging room, and a motel is also required to provide 1 car space to the caretaker's dwelling. Mr Cook submitted the increased size of some of the hotel rooms meant there would be an increase in the number of beds and, hence, the number of patrons. We are of the view the potential number of beds is not an appropriate method to calculate the car parking given the requirements in the Planning Scheme for a residential hotel or motel refer to the number of rooms rather than the number of beds. The submissions put to us generally agreed the proposed addition generates a requirement for 8 car spaces for the 7 hotel rooms and caretaker's dwelling, and we accept this.
3. The site provides 25 car spaces, 2 of which are allocated for staff under an endorsed management plan applying to an earlier permit for this site. There is no room on the site for any new car parking, which means this proposal is seeking planning permission to waive the required 8 car spaces.
4. Mr Jackson submitted there is an absence of evidence to justify the waiver and, as there is no room for additional car spaces, the proposal should be refused. He stated an argument that there is no need for additional car parking because there is no net increase in room numbers is flawed. The Planning Scheme requires car parking to be provided for additional floor area; and it requires the car parking table to be utilised to determine the number of car spaces. As the existing use of the land is specified in the table (whether a motel or residential building), this is the manner by which the required number of spaces should be determined. Mr Jackson also pointed out the Council opposes the waiving of the car spaces because the existing car parking (on and off the site) is inadequate to provide for the existing use.
5. The Planning Scheme states a permit may be granted to reduce or to waive the number of car spaces required in the car parking table. It goes on to require the applicant to satisfy the Council (and, upon review, this Tribunal) that the waiving of the car parking is justified due to:
   • Any relevant parking precinct plan.
   • The availability of car parking in the locality.
   • The availability of public transport in the locality.
   • Any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces.
   • Any car parking deficiency or surplus associated with the existing use of the land.
   • Any credit which should be allowed for a car parking demand deemed to have been provided in association with a use which existed before the change of parking requirement.
   • Local traffic management.
   • Local amenity including pedestrian amenity.
   • An empirical assessment of car parking demand.
   • Any other relevant consideration.
6. Mr Pitt argued the car parking table requires additional car parking based on the number of rooms. As there are no more rooms being created there is no intensification of the existing use and it is not reasonable to require more car parking to be provided for the existing use. In light of the above matters that can be utilised to justify the waiving of car parking we note it includes any car parking deficiency associated with the existing use of the land. As we have already stated the existing use of the land, including the number of rooms, has existing use rights. Whilst the overall floor area is increasing, it is the number of rooms that is the method for calculating what additional car parking is required. Therefore, as the number of rooms is not increasing, we are of the opinion it is not necessary to require additional car parking to be provided.

1. A number of amenity concerns were raised and we cannot consider all of them as some relate to activities associated with the existing residential hotel use such as the operation of the dining room; the existing foyer style seating areas on levels 1 and 2; the storage of goods along each of the hotel's open air corridors; and the garbage storage and collection arrangements. Ms Higginson and Mr Koodak mentioned the noise generated from patrons utilising the open corridors running around each level of the existing building. This is an existing built form condition and an existing activity of the hotel; therefore we consider it is not an amenity issue arising as a direct result of this proposal. However, we find a benefit of this proposal is the amalgamation of some of the existing rooms, which will, in turn, reduce the number of hotel patrons utilising these corridors. We agree with Mr Pitt's suggestion that the northern corridor should be converted into balconies for these rooms and this may necessitate some changes to the design/location of the northern doors. Whilst this will not be of direct benefit to Mr Koodak and Ms Higginson (as their properties are on the southern side), it will create amenity benefits for the apartment building to the north where Mr Burgoyne and Mr Prent have apartments.
2. We are of the opinion the amenity issues that arise as a result of the proposed addition relate to visual bulk, overlooking, overshadowing and noise from the use of the additional floor level.

1. Mr Koodak lives to the southwest of the review site on the second level of an apartment building. He has a balcony facing north and is concerned about additional shadow affecting his balcony. Shadow diagrams have been prepared indicating the extent of the shadow cast down to the ground level for the existing building and the proposed addition. As the shadow depicted is to the ground level, it means apartments situated above the ground will be affected by less shadow from the proposed addition. Further to which, the additional shadow is cast at 9.00am but by 11.00am it is no longer affecting the land containing Mr Koodak's apartment. We consider that any overshadowing impact, if indeed there is any at all given his apartment is situated on the second level, is reasonable.

1. Mr Prent owns an apartment on the top floor of the existing apartment building to the north and expressed concern about a loss of blue sky visible from his dining room. He acknowledged during the hearing this concern may not be reasonable and we agree. This is an inner city location and the character of the area includes high site coverages and buildings in the order of 3-4 storeys. As such, we find it is unreasonable to expect that views of the sky will be retained. From a planning perspective, it is important to ensure there are adequate levels of daylight maintained and we are satisfied this proposal will not have a detrimental impact upon the amount of daylight available to these apartments.
2. Ms Higginson lives to the west of the review site in a single fronted house with a recently completed rear extension that contains a double storey space. She explained her property is situated about 1-1.5 metres below the ground level of the hotel site, and the design of the extension has sought to provide some privacy to the rear of the house and the rear courtyard from Mr Koodak's apartment building whilst also maintaining sufficient windows and daylight into the house from the east (where the residential hotel is). The result is an existing view of the rear section of the hotel building and existing overlooking from the open corridors of the hotel into her courtyard and the rear of her house. Ms Higginson accepts and lives with these existing conditions, her concern is that she does not want either the visual bulk or overlooking made worse by the proposed addition.
3. The proposal is to introduce new balconies in the fourth floor addition on either side of the existing rear stairway setback about 4 metres from the common boundary. The balconies will be accessible via the stairwell and the bedrooms of the caretaker's dwelling. Mr Bastone and Mr Pitt agreed the balconies would require screening to a height of 1.7 metres. Mr Bastone also gave evidence the balconies are not principal private open space and an additional balcony should be provided on the northern side of the caretaker's dwelling, adjacent to the proposed living area.
4. In our opinion, a northern balcony accessible from the caretaker's living area is a better design outcome and the balconies adjacent to the bedrooms should be removed. If it is necessary to maintain emergency access to the rear stairway from this apartment, we would allow a small balcony area for the northern bedroom to connect a sliding bedroom door to a stairway door. We consider the southern balcony should be entirely removed and the western wall of this bedroom should not include a window, as a bedroom window is proposed in the southern wall. This will benefit Ms Higginson's property as the additional floor level will then be setback about 3.79 metres from the existing rear façade of the building, limiting any views of the addition and preventing any additional overlooking.
5. Ms Higginson asked us to require screening of the windows of hotel rooms 72 and 73 in the eastern end of the addition; however we do not consider this is necessary as these windows are situated over 22 metres away from her back boundary and, at that distance, will not result in any unreasonable direct overlooking.

1. Mr Prent expressed concern about the potential noise levels from 40-50 people using the pool proposed on the northern side of the new fourth floor, and Mr Burgoyne requested the pool be completely sound proofed. We are sceptical about the likelihood of 40-50 people using the pool at the one time. It is not a large pool and will provide an additional amenity for hotel patrons. In our opinion, the pool and proposed gym are reasonable additions to the hotel. The hours of the pool should be restricted and we agree with Mr Pitt that a 10.00pm closure of the pool is appropriate given any noise impacts during the day/evening will be limited by a wall with glass along its northern side (as it is only open to the roof). We do not consider it necessary to limit the hours of use of the gym as this is an enclosed room within the proposed addition.
2. The objectors raised concern about noise from the proposed hotel room balconies and the proposed communal balcony area, all situated adjacent to Millswyn Street. We consider any noise from the hotel room balconies is unlikely to cause an unreasonable disturbance to surrounding properties and will provide good internal amenity for these rooms. We hold a different view in regard to the provision of a communal balcony area. Mr Pitt pointed out the entire roof of the building is accessible now, but what is proposed here is to provide a designated communal outdoor roof space where hotel patrons may congregate. In our opinion, such a space has the potential to cause unreasonable noise impacts to the surrounding residences in Millswyn Street as well as to other guests of the hotel; therefore we will require this communal balcony area to be deleted and consist of roofed area only.
3. Mr Jackson advised his clients have concerns about the noise associated with the outdoor seating area along Millswyn Street and requested these details be removed from any plans to be endorsed as its legality is questionable. We agree with this request.
4. Mr Jackson also sought the inclusion of a condition that alcohol not be consumed on the balconies of the new hotel rooms in accordance with the condition imposed on the 2003 permit for the serving of alcohol in the dining room to persons other than hotel guests. We consider this to be appropriate and have included the same condition in our order.
5. The Council sought a permit condition requiring a management plan for the arrival/departure of guests, staff management training, control of noise emissions, management of car parking and onsite signage to facilitate these management matters. An endorsed management plan about the restaurant and liquor consumption already exists under the 2003 permit; and we are of the opinion no further management plan is necessary as the off-site amenity impacts resulting from this proposal have been adequately dealt with through our considerations and intended conditions.

1. Our consideration of this proposal is limited to the reasons why a permit is required, namely for the proposed alterations and addition to the existing hotel. As such, it is not within our jurisdiction to require any modifications to the existing buildings or activities on the site. The small addition at the northern end of the building is acceptable. The new floor level is appropriate having regard to the relevant planning policies and controls subject to some minor design changes. We consider the waiving of the car parking required by the additional floor area is appropriate given there is no increase in hotel rooms. We have considered the amenity impacts associated with the proposal and imposed various conditions to ensure a reasonable level of amenity is maintained to surrounding residential properties.

For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is set aside. It is ordered that a permit be issued subject to conditions.

[1] Pursuant to clause 64 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998

[2] Clause 21.08-4 of the Municipal Strategic Statement

[3] Refer to figure 15 of clause 21.08-4