The decision of the Responsible Authority is varied. A permit is granted and directed to be issued for the land at 1-23 Millswyn Street, South Yarra.

Amendment of the condition of the "On Premises" liquor licence to allow alcohol to be served in the Dining Room to persons other than guests of the motel.

1. Prior to the commencement of the use hereby permitted, the applicant shall prepare and submit to the Responsible Authority an Operational Management Plan. The Operational Management Plan will include (but not necessarily be limited to):

(a) General rubbish storage and removal arrangements including hours of pick-up.

(b) Details of staff training including the responsible serving of alcohol and the management of noise from buses.

(c) The management of staff parking and guest parking.

The Operational Management Plan shall be to the satisfaction of the Responsible Authority.

2. The premises will be operated and managed in accordance with conditions and provisions of its approved Operation Management Plan.

3. The use of any land or building or part thereof as shown on the endorsed plan shall not be altered or modified without the prior consent of the Responsible Authority.

4. Alcohol shall only be supplied within the following hours to the satisfaction of the Responsible Authority:

Monday-Saturday (excluding Anzac Day & Good Friday) 7.00am. to 1.00am

5. Access to the restaurant shall not be permitted after 10.00pm by persons other than residents of the establishment or their guests for the time being to the satisfaction of the Responsible Authority.

6. The maximum number of patrons in the restaurant shall not exceed 50 people.

7. 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.

8. Tables and chairs must be set out for the use of at least 80 percent of the floor area of the dining room at all times.

9. The kitchen will be open and substantial food prepared on site and available at all times the restaurant is open.

10. The amenity of persons living in proximity to the site must not be detrimentally affected by reason of emission of noise from the premises.

11. No live music or entertainment is permitted on the premises without the further permission of the Responsible Authority.

12. No amplified music is permitted on the premises without the written consent of the Responsible Authority.

14. The maximum noise level emitted from the premises must not exceed the permissible noise levels specified in the State Government Protection Policy N-2 (Control of Music Noise from Public Premises).

15. All garbage and other waste material must be stored in an area set aside for such purpose to the satisfaction of the Responsible Authority. No garbage bin or waste materials generated by the permitted use shall be deposited or stored on public streets and bins must be returned to the garbage storage area as soon as practicable after garbage collection.

16. No bottles or other waste materials shall be removed from the site between the hours of 9:00pm on any day and. 7:00am the following morning.

17. A designated manager must be in charge of the premises at all times when the premises are open for business.

18. No sexually explicit entertainment shall be provided on the premises. Sexually explicit entertainment is that provided by a person or persons, who are nude, displaying sexual organs or are topless females. Entertainment includes 'table top' dancing, 'lap' dancing, topless bar serving, live strip-tease shows and equivalents.

19. All persons engaged in the serving of liquor must undertake a responsible serving of alcohol course provided by or approved by Liquor Licensing within three months of the issue of the permit.

20. Prominent notices must be erected at all entry and exit points of the premises to the satisfaction of the Responsible Authority, requesting patrons to be quiet when entering and leaving the premises so as not to disturb the surrounding residential properties.

21. The time for the commencement of the use hereby authorised is, pursuant to Section 68(2) of the Planning and Environment Act 1987, specified as 2 years from the date of issue of this permit.

The time within which the use is to be commenced may on application made before or within 3 months after the expiry date of this permit be extended by the Responsible Authority.

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For the Applicant for Review: Mr Lewis Sayer, Planning Consultant,

For the Responsible Authority: Ms Susie Saraiva, Development Planner, Melbourne City Council

For the Respondent Permit Applicant: Mr K Liversidge of Counsel

Mr Liversidge called Mr G I Robertson, the Manager of the motel and a Director of Diamond Waters Pty Ltd to give evidence

1. This was an application under Section 82 of the Planning and Environment Act 1987 to review a decision by the City of Melbourne to grant a permit (in Application No. TP02/716) for the land at 1-23 Millswyn Street, South Yarra to amend a condition of the "On premises" liquor licence.

2. At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (`VCAT Act'), Mr Liversidge requested the Tribunal to amend the application for permit by substituting the name of the operator, Diamond Water Nominees Pty Ltd, for that of Mr Graeme Williams, which appeared on the original application. There was no objection to the substitution and the Tribunal agreed to make the amendment in the manner requested.

3. The subject site is located on the north west corner of Millswyn Street and Toorak Road, South Yarra.

4. I find the following description of the site and locality, taken from Ms Saraiva's written submission, to be an appropriate one:

s The site is currently occupied by the Albany Motor Inn and has been occupied continuously since the 1960s as a motel with 85 guestrooms and a dining room for guests.

s 60 Toorak Road West comprises a three storey residential building and abuts the subject site to the west. To the north, adjacent the rear car park is also a three storey block of apartments. Land to the east of the site facing Millswyn Street consists of a three storey dwelling and a three storey block of apartments.

s The Albany Motor Inn is located opposite Fawkner Park along the Toorak Road frontage. The Toorak Road frontage of Fawkner Park is occupied by Fawkner Park Community Centre and Kindergarten and the South Yarra Tennis Courts.

s On street parking exists along both sides of Millswyn Street and Toorak Road. Opposite the Albany Motel along Millswyn Street, on street parking is reserved for residential permit parking only.

s Adjacent the Albany Motel along Millswyn Street is a no parking zone and 2 hour parking until 11 pm.

5. Ms Saraiva described the proposal in the following terms:

s The application proposes to be able to serve liquor to both house guests and other patrons of its Dining Room who are not residents in the motel or their guests for the time being. This is prevented by Condition 4 of the current Planning Permit TP01/356.

s The on-premises licence is sought to continue to operate in the Motel Resident Accommodation areas and Dining/Reception for patrons and their guests at anytime.

s In the Ground Floor Dining Room, details of the proposed licence operation are as follows:

Anzac Day & Good Friday: Noon - lam the following day

These hours are consistent with the current Planning Permit No. TP01/356 (dated 25 July 2001).

s No live entertainment or amplified music is permitted, or proposed on the premises.

6. The relevant planning controls were fully set out at pages 4 - 7 of the Responsible Authority's submission, which I adopt for the purposes of this determination.

7. The subject application for permit No TP02/716 was lodged with the Responsible Authority on 19 July 2002. Following the giving of notice of the application, 45 objections were received. The grounds for objection were summarised by Ms Saraiva as follows:

8. On 2 April 2003 the Council's delegate resolved to issue a notice of decision to grant a permit:

9. The subject application for review was lodged on 28 April 2003. The stated grounds for review were that:

s Extension of business activity is inappropriate for a Residential 1 zone, resulting in further loss of amenity for these objectors.

Any change to current use undertaken by the lessees of the Albany is inappropriate for a Residential 1 zone and will result in further loss of amenity for residents in Millswyn and adjacent streets.

s Failure to ensure additional on-site parking.

Increased pressure on on-street parking (i.e., no indication of the provision of additional parking), the Responsible Authority's Notice of Decision to Grant a Permit mentions an intention to improve the visual appearance of the chained-off parking area on Toorak Road. Increased vehicle traffic in the immediate vicinity of the Albany Motor Inn, particularly around the entrances & exit on Millswyn Street.

s Potential for increased incidences of anti-social behaviour, particularly increased noise, due to an extension of the Liquor License to serve members of the public in addition to motel guests. The Conditions in the Responsible Authority's Notice of Decision to Grant a Permit proposed to restrict access to the restaurant appear unenforceable by the Applicant.

10. The Applicant for Permit responded to the Application for Review by stating the following grounds in support of the Notice of Determination:

s The proposed amendment to the existing conditions will not result in an extension of business activity and will not result in a loss of amenity for residents in Millswyn and adjoining streets.

s The proposed amendment to the existing conditions will not result in an extension of business activity and will not result in an increase in on-site car parking requirements.

s The proposed amendment to the existing conditions will not result in an extension of business activity and will not result in an increased potential for increases in incidents of anti-social behaviour, in particular noise.

s The proposed conditions to restrict access to the restaurant are intended to safeguard the amenity of residents, whilst being reasonable and enforceable.

11. Subsequent to the hearing the Tribunal inspected the subject site as well as the surrounding area in Millswyn Street and Toorak Road in the vicinity of Millswyn Street.

12. The applicants for permit are seeking a variation to the existing "On premises" liquor licence TP01/356 with respect to Condition 4 which states:

"Alcohol shall only be provided for consumption on the premises to persons who are resident in the establishment and their guests for the time being to the satisfaction of the Responsible Authority."

13. The desire to lift the restriction imposed by this condition has been brought about by an apparent demand from the residents of the local area wishing to attend the motel dining room for a meal and by the upgrade of the facility now underway to bring the motel to a condition and standard of operation in keeping with the surrounding area.

14. The understandable concerns of residents, as represented by Mr and Mrs Fenwick, were that opening the restaurant to people other than motel guests would adversely affect the amenity of the immediate area, particularly from noise generated by the venue, increase the incidence of unruly behaviour and adversely affect the availability of car parking.

15. Mr Robertson stated that the applicant in upgrading the motel was reducing the number of rooms from 82 to 70 to accommodate a potential maximum number of 140 guests. As some rooms are situated above the dining room, the management are concerned to maintain the internal amenity of the premises to ensure that guests have an enjoyable stay.

16. In relation to concerns raised by the applicant for review regarding the ability of the motel to control access to the restaurant by persons other than residents after 10.00 pm, Mr Robertson stated that the motel has a duty to protect guests and to provide a safe environment by checking all people who enter the motel through the reception area. The reception area is staffed 24 hours a day and is situated directly abutting the entrance to the dining room. Mr Robertson noted that to admit too many people from outside would prevent the motel from offering an appropriate level of service to their resident guests.

17. As a result of discussions between the parties prior to the issue of the notice of decision, it was agreed that live music and entertainment would not be provided at the restaurant and that amplified music would be subject to the consent of the Responsible Authority. When taken together with the standard condition regarding State Government Protection Policy N-2 (control of music noise from public premises), I am satisfied that these arrangements will satisfactorily address issues associated with noise generated by the venue subject to slight variations to the expression of the conditions.

18. There is no intention that the hours of operation should be changed as a consequence of the variation proposed in the permit. The existing non-premises licence has operated satisfactorily, apparently without complaints to the police, since it was issued. The limitation on admission to the restaurant beyond 10.00 pm will remove any likelihood that the venue could be used as a second location for those wishing to "kick on" from another premises. Rather, the intention is to provide a more civilised environment where people living in close proximity to the venue can enjoy a meal without adversely affecting others.

19. Conditions of the proposed permit provide for limitations on the hours when waste can be collected from the site. They also provide for the display of signage at the entry and exit to the premises requesting patrons to be considerate of the residents in the surrounding area.

20. In relation to car parking, there is no intention to increase the size of the existing restaurant. The motel is situated in close proximity to excellent public transport and on-street car parking is available in Millswyn Street and in Toorak Road. Although the proposed change in the licence conditions may result in some additional patrons arriving by car, any such effect is likely to be offset by the reduced number of rooms in the motel as a result of the upgrade. In all the circumstances I am of the view that there is no need for any new or additional arrangements to be made in relation to car parking.

21. In order to provide a higher level of assurance to residents regarding the scale of the restaurant activities, an additional condition will be added to the permit stating that the maximum number of patrons in the restaurant shall not exceed 50 people. In addition, Condition 2 on the existing permit TP01/356 will be substituted for the proposed Condition No. 6 on the notice of decision to more explicitly state that 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.

22. Having had regard to the foregoing matters I have concluded that the decision of the Responsible Authority to modify the conditions of permit is appropriate in that it will enable the motel to respond to an identified local need in a sensible manner. I have found that the decision is consistent with the Local Policy for Discretionary Uses set out at Clause 22.14 of the Planning Scheme. The residential amenity of the area will not be adversely affected by: significant changes to traffic conditions or car parking demand; the emission of light or odours from the site; or, disturbance associated with the restaurant's operation. The proposed use should prove a benefit and convenience to local residents and enable the better use of an existing building constructed for the purpose.

23. Accordingly I will direct that a permit issue.

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