Before the use starts, a noise and amenity plan to the satisfaction of the responsible authority must be submitted to and approved by the authority. When approved, the plan will be endorsed and will then form part of the permit. All activities forming part of the use must comply with the endorsed plan. The plan must include:

(a) The identification of all noise sources associated with the licensed premises (including, but not limited to, music noise, other external areas allocated for smokers, entries and exists to the premises and courtyards).

(b) Standard procedures to be undertaken by staff in the event of complaints by a member of the public, the Victorian Police, an authorised officer of the Responsible Authority or an officer of the liquor licensing authority.

3. The maximum number of patrons permitted on the premises is limited to the following:

a.

Monday to Friday (between 7.00am - 6.00pm) 189

b.

Monday to Friday (between 6.00pm - 3.00am) 375

c.

Saturday and Sunday (between 7.00am - 3.00am) 375

d.

Public Holidays (between 7.00am - 3.00am) 375

e.

The maximum number of patrons on the ground floor must not exceed 202.

f.

The maximum number of patrons on the first floor must not exceed 173.

The courtyard must not be used for live music and no music other than of a type and volume appropriate to background music may be emitted from external speakers in the courtyard. Background music is defined as any music be played at a level that enables patrons to conduct a conversation at a distance of 600 millimetres without having to raise their voice to a substantial degree. It is not background music if it is played at a level which requires patrons to shout, or use a stage voice such as that used by an actor in the theatre, in order to carry out a conversation at such a distance.

The collection of rubbish from the premises (other than normal Council collection) shall be conducted between the hours of 5.00am to 8.00pm Monday to Saturday and 9.00am to 8.00pm Sunday.

The Responsible Authority is directed to issue a modified permit in accordance with this order under the provisions of Section 85(1)(e) of the Planning and Environment Act 1987.

Mr Gary Testro, Solicitor. Evidence was provided by:

1 This is a dispute between the owner of the site at 179 Chapel Street, Windsor Mr Fink and the Stonington City Council regarding conditions of Planning Permit 788/05 issued on 8 November 2005. The conditions of the permit in dispute are:

1 Before the use starts, a Noise and Amenity Action Plan must be submitted to and approved by the Responsible Authority. At a minimum the Action Plan must address the following:

a.

The identification of all noise sources associated with the licensed premises (including, but not limited to, music noise, other external areas allocated for smokers, entries and exists to the premises and courtyards).

b.

Hours of operation for all parts of the premises.

c.

Details of the provision of music including the frequency and hours of entertainment provided by live bands and DJs.

d.

The identification of noise sensitive areas including residential areas and accommodation in close proximity to the licensed premises.

e.

Measure to be undertaken to address all noise sources identified, including on and off site noise attenuation measures.

f.

Details of staffing arrangements including numbers and working hours of all security staff.

g.

Standard procedures to be undertaken by staff in the event of complaints by a member of the public, the Victorian Police, an authorised officer of the Responsible Authority or an officer of the liquor licensing authority.

h.

Location of lighting within the boundaries of the site, security lighting outside the licensed premises and any overspill of lighting.

i.

Location and operation of air conditioning, exhaust fan systems and security alarms.

j.

Details of waste management plan including storage and hours of collection for general rubbish and bottles associated with licensed premises.

k.

Details of any measure to work with neighbours or other resident in the immediate area to address complaints and general operation issues.

l.

Any other measures to be undertaken to ensure minimal amenity impacts from the proposed licensed premises.

4. The maximum number of patrons permitted on the premises is limited to the following:

a.

Monday to Friday (between 7.00am - 6.00pm) 189 (Not in dispute).

b.

Monday to Friday (between 6.00pm - 3.00am) 300

c.

Saturday and Sunday (between 7.00am - 3.00am) 300

d.

Public Holidays (between 7.00am - 3.00am) 300

e.

The maximum number of patrons on the ground floor must not exceed 170.

f.

The maximum number of patrons on the first floor must not exceed 130.

5. The courtyard must not be used for live music and no external speakers will be located within the courtyard.

7. The collection of rubbish from the premises (other than normal Council collection) shall be conducted between the hours of 8.00am to 6.00pm Monday to Fridays.

2 At the commencement the hearing, Mr Rantino asked for a ruling on a legal point. As I am not a legal member, the parties must agree to the question of law being determined by myself as the presiding member. Mr Rantino objected to this and requested that a legal member hear arguments and make a determination on the question.

3 Member Martin then joined me for the next part of the hearing to receive submissions on this point of law. He then reserved his decision on this legal point and departed. I then conducted the rest of the hearing in the ordinary way. The legal point is outlined by Member Martin as:

•

pursuant to the relevant planning permit No. 0788/05 ("Permit"), the Applicant intends (amongst other features of the proposal) to convert an existing upper level roof area of the hotel at 179 Chapel Street Windsor ("hotel") into an upper deck area where alcohol will be consumed. Condition 1 of the Permit requires the Applicant to prepare a Noise and Amenity Action Plan (which is opposed by the Applicant);

•

with Condition 1 being one of the contested conditions in this conditions appeal, Council is seeking to defend Condition 1 in part by relying on its Licensed Premises Policy at Clause 22.10 of the Planning Scheme;

•

it is common ground that Clause 22.10 only applies here if "a permit is required pursuant to Clause 52.27";

•

the Council's position is that there is a Clause 52.27 permit trigger here, while the Applicant takes the reverse position;

•

the Applicant relies on the fact that the plan accompanying the existing Liquor Licence No. 31904867 ("Licence") shows the whole of the perimeter of the upper level of the hotel as being the "licensed area". By contrast Mr Rantino for Council relied on the fact that this "deck conversion" will add to the useable floor area of the hotel by about 48 metres.

4 In summary, Member Martins findings are as follows:

•

I accept that neither the second nor the third bullet points in Clause 52.27 are applicable here;

•

however I accept that a permit is required here under Clause 52.27 due to "A licence being required" for the proposed roof deck conversion under the first bullet point of that clause; and

•

accordingly my ruling is that Mr Rantino is entitled to rely on Clause 22.10 in putting forward his submissions to the Tribunal and Member Bilston-McGillen can take Clause 22.10 into account in making her overall assessment whether or not the contentious Condition 1 in the Permit should be deleted.

5 See the Appendix to this decision where Member Martin's legal ruling is set out in full.

6 As I advised all parties at the hearing, I have made my decision taking into account the legal ruling which confirms that I can take into account clause 22.10 of the planning scheme when considering the appropriateness of condition 1 of the Permit.

•

Construction of a 48 square metre courtyard at first floor level.

•

Increase in the lounge area at first floor level from 70 square metres to 90 square metres.

•

Increase in the maximum number of patrons at the first floor level from 100 to 175 between 6.00pm and 3.00am.

•

Decrease in the ground floor are from 192 square metres to 172 square metres.

•

Increase in the maximum number of patrons overall from 300 to 375.

8 The subject site is located within a Business 1 zone, clause 34.01 of the Stonnington Planning Scheme. A hotel is a Section 2 use within the zone. I note that the permit has been issued for the Use and Development of the land for a Hotel. Having regard to clause 34.01-1, a permit is required to intensify the existing use, which in effect is required to change the use of the roof to "Hotel" use. Having regard to clause 34.01-4 a permit is required to construct a building or construct or carry out works. Mr Rantino also highlighted a purpose of the zone which is:

•

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

9 The site is also subject to a Heritage Overlay, Schedule HO126, clause 43.01 of the planning scheme. A permit is required to demolish or remove a building, externally alter a building by structural work or in any other way, construct a building and construct or carry out works.

10 Clause 52.06 of the scheme relates to the provision of car parking and states at 52.06-1 that the floor area of an existing use must not be increased until the required spaces have been provided on the land or a planning permit has been granted to reduce or waive the required number of spaces. In relation to the increase 48 square metres, the proposal generated a requirement of 15 car spaces. I was advised by Mr Rantino, that Council agreed with the waiving of these car spaces and did not take issue with the provisions of clause 52.06.

11 Having regard to clause 52.27 Licensed Premises, a permit is required to use land to sell or consume liquor if a licence is required under the Liquor Reform Act 1998 or if a different licence, or class of licence is required from that which is in force or where the trading ours allowed under a licence are to be extended. As determined by Member Martin, a permit is required in relation to the proposed new roof deck under this clause, under the first dot point "A licence is required under the Liquor Control Reform Act 1998".

12 Mr Rantino highlighted clause 63 of the planning scheme, Existing Uses and advised that the land has existing use rights as a hotel.

13 Mr Rantino also noted that section 62(1)(a) of the Planning & Environment Act 1987 requires that a responsible authority must include any condition which the planning scheme requires be included and that section 62(2) provides that a responsible authority may include any other condition that it thinks fit.

14 A number of state and local planning policies were highlighted for my consideration[1]. In summary, the state planning policy framework highlighted that the subject site is within a Principal Activity Centre and is a location that seeks to ensure a mix of activities that generate high number of trips including business, retail services and entertainment as well as having the potential to grow and support intensive housing developments without conflicting surrounding land-uses.

15 Council's Municipal Strategic Statement is at clause 21 of the scheme[2]. A number of specific clauses were noted with clause 21.10 Identity of Commercial Areas, Their Focus and Residential Interface being highlighted by both Mr Rantino and Mr Dietrich with the following detailed strategy highlighted for my consideration:

Encourage activities and uses consistent with the 'Student Quarter' identity such as speciality clothes, books, hobbies and household goods retailers, outdoor eating, meeting places, plus media information technology uses in ground floor premises and student accommodation on upper floors of Chapel Street buildings away from the core.

16 A number of local planning policies were noted[3], but the most contentious policy is clause 22.10 the Licensed Premises Policy. The policy relates:

This policy relates to the key focus area of economic development and applies to the consideration of all applications for new licensed premises and for the expansion of the licensed area or the extension of the trading hours of existing licensed premises, where a permit is required pursuant to Clause 52.27.

The policy sets the objective to manage any conflicts between licensed premises and other uses and it is policy that licensed premises comply with any specified standards such as State Environment Protection Policies. The application requirements include specified information to be supplied where appropriate. This includes the submission of a Noise and Amenity Action plan, in relation to which I was advised, that this policy was not part of the Planning Scheme when the Application was lodged. During the processing of the application the policy at clause 22.10 was adopted. I was further advised however that after the adoption of clause 22.10, the Responsible Authority did not request the lodgement of a Noise and Amenity Action Plan. The Decision guidelines of clause 22.10 also refer to the adequacy of the measures proposed in the Noise and Amenity Action Plan which is the requirement of condition 1.

17 I inspected the site and locality after the hearing. Documents submitted at the hearing have been retained on the Tribunal files.

18 The subject site is located on the south west corner of Chapel and High Streets Window. The hotel currently known as The Duke of Windsor has been operating since 1985.

19 The hotel building sits on an irregular shaped title, with frontage to High and Chapel Streets. A right of way approximately 3.2 metres in width adjoins the building and is located off High Street.

20 The subject site is located within the Prahran/South Yarra/Windsor Principal Activity Centre. Chapel Street is also a designated tourist precinct and an entertainment precinct of regional significance.

21 Mr Dietrich detailed the many entertainment uses that exist within close proximity to the subject site including bars, hotels, night clubs and restaurants.

22 Swinburne University is located on High Street and there is limited residential buildings within close proximity (say 150 metres). It is difficult to know the extent of 'shop top housing' but all parties agreed that there would be limited 'shop top housing' within close proximity to the subject site.

23 In summary, the subject site is located in a very busy location. Both High and Chapel Streets are primary roads catering to trams, buses and cars.

24 This is an application for review against conditions 1, 3, 4 and 7. I will therefore address each the appropriateness or otherwise of each condition individually.

25 Condition 1 requires the preparation of a Noise and Amenity Action Plan which requires the submission of information such as the identification of noise sources, details of waste management, measures to be undertaken to address music sources and location of plant and equipment (this list not being exhaustive).

26 Mr Testro argued that the condition should be deleted. He argued this case on several points. Mr Testro firstly argued that the policy at clause 22.10 which requires the Noise and Amenity Action Plan is not applicable due to the trigger of clause 52.27 not applying. Given the determination of Member Martin on this legal point, I will not address this argument other than to acknowledge the determination of the legal point which allows me to consider clause 22.10.

27 In the event of the legal ruling allowing me to take into account clause 22.10, Mr Testro argued that the Noise and Amenity Plan is listed under application requirements but only as a 'should include the following information, as appropriate', basis. Mr Testro therefore argued that this Plan is not a mandatory document. I note that the decision guidelines do not say 'where appropriate' but do say 'should be considered' and reads Before deciding on an application, the following matters should be considered in addition to the decision guidelines at Clause 65 and the fifth last dot point reading The adequacy measures proposed in the Noise and Amenity Action Plan. I was advised that this plan was not part of the planning application information, so I am left wondering if Council has made a decision on the matter irrespective of what this 'plan' may detail. This in turn raises uncertainty regarding the purpose of requiring a plan after a permit has been issued.

28 Both Mr Testro and Mr Dietrich in his evidence questioned what is to be achieved with the submission of a Noise and Amenity Plan when the information required is a duplication of planning controls on the permit. The example, amongst many examples given by Mr Dietrich is 1(b) Hours of operation for all parts of the premises as condition 2 of the permit reads The use hereby permitted shall operate only between the hours of 7.00am and 3.00am (the following day) without the prior consent of the Responsible Authority.

29 Mr Rantino on the other hand argued that the test as to the validity of the contested conditions is whether each condition reasonably relates to the implementation of planning policy and to the permission being granted. Mr Rantino argued that the Noise and Amenity Action Plan is required as there are potential changes to the type of clientele and given that there is an open courtyard, the impact on the surrounding residential properties is to be minimised and addressed by measures within the Noise and Amenity Action Plan. Mr Rantino highlighted that State and local planning policy also encourages shop top dwellings and student accommodation within the same area and that the Noise and Amenity Action Plan is a logical tool to assist in managing any potential conflict between residential uses and hotel uses. I agree with Mr Rantino on this point, that a Noise and Amenity Action Plan can address issues of amenity impact, but when I consider the detail of what the plan requires and what the conditions on permit are, I do not agree that condition 1 should remain in its current form.

30 Management/Operational or Noise and Amenity Action Plans are a useful tool when considering uses that may have a conflict with other uses in close proximity. Many shopping centres are required to prepare a management plan to address issues with surrounding residential developments. The failing of condition 1 of the permit is that firstly, given the wording of clause 22.10 and the requirement of the decision guidelines to consider the adequacy of measures proposed in the 'plan', it is difficult to understand how the Responsible Authority both at planning officer level and Councillors considered the 'measures of the plan', in the absence of it.

31 Secondly I agree with the arguments of Mr Testro and Mr Dietrich that the plan requires information that is abundantly clear as conditions of permit. I make the following findings on the requirements of condition 1:

a

The identification of all noise sources associated with the licensed premises (including, but not limited to, music noise, other external areas allocated for smokers, entries and exists to the premises and courtyards). This would assist the Responsible Authority in understanding more clearly the operation of the Hotel and I consider it to be a reasonable condition.

b

Hours of operation for all parts of the premises. The hours are specified clearly in condition 2 of the permit.

c

Details of the provision of music including the frequency and hours of entertainment provided by live bands and DJs. Condition 4 as detailed below restricts the use of the courtyard to background music only. Other than that identified possible source of noise complaint (the most sensitive area because it is external to the building), it is difficult to understand what the Responsible Authority is seeking to achieve by this condition. This is an existing Hotel that has operated with bands and live music for many years. I do not agree with the arguments of the Responsible Authority that this condition is necessary.

d

The identification of noise sensitive areas including residential areas and accommodation in close proximity to the licensed premises. The concern of the Responsible Authority is addressed by the requirements of condition 1. What purpose does is it achieve by producing a map detailing the pink residential zoning and a residential development which is likely to constantly change? I also note that the site is a Business 1 zone and is within a principal activity zone. If the concern is the impact the noise sources, then the condition should relate to being able to 'measure the noise source/concern' such as the compliance required to EPA controls in condition 8.

e

Measure to be undertaken to address all noise sources identified, including on and off site noise attenuation measures. Condition 8 states that the emission of noise must satisfy the State Environment Protection Policies.

f

Details of staffing arrangements including numbers and working hours of all security staff. I am curious as to why the Responsible Authority requires the provision of the details of all staffing numbers in an industry where casual employment is the norm. What is to be achieved by this condition?

g

Standard procedures to be undertaken by staff in the event of complaints by a member of the public, the Victorian Police, an authorised officer of the Responsible Authority or an officer of the liquor licensing authority. This would be a useful tool in making it clear as to the Responsible Authority and the Hotel owner what procedures are in place.

h

Location of lighting within the boundaries of the site, security lighting outside the licensed premises and any overspill of lighting. This should have been a requirement to be detailed on the development plans.

i

Location and operation of air conditioning, exhaust fan systems and security alarms. Again, this should have been a requirement to be detailed on the development plans.

j

Details of waste management plan including storage and hours of collection for general rubbish and bottles associated with licensed premises. This is a requirement of condition 7 and 9.

k

Details of any measure to work with neighbours or other resident in the immediate area to address complaints and general operation issues and;

l

Any other measures to be undertaken to ensure minimal amenity impacts from the proposed licensed premises. In relation to conditions 1(k) and 1(l), given that the Hotel is not within a Residential zone, has been an existing Hotel for many years and is located within a Business 1 zone and a principal activity centre, I do not consider this requirement necessary. Condition 1(g) requires a procedure to be established when complaints are received and this should be necessary to address the Responsible Authority's concerns.

32 In the consideration of future applications where clause 22.10 applies, particularly with hotel uses within or adjoining residential uses, the Noise and Amenity Action Plan is a more useful document to be lodged during the consideration of the matter and indeed the decision guidelines require it to be considered in making a decision. The Responsible Authority should also be willing to vary the requirements of the Action Plan to tailor it to the situation and make it a more worthwhile document. This would also give greater weight to the intent and requirement for the document if questioned.

33 In conclusion, if the concern is the impact that the use may have on surrounding residential properties, then it is appropriate to limit the requirements of the Noise and Amenity Plan to addressing the concerns and not duplicate what information is already provided in the form of permit conditions. I will order that Condition 1 be amended read as follows:

Before the use starts, a noise and amenity plan to the satisfaction of the responsible authority must be submitted to and approved by the authority. When approved, the plan will be endorsed and will then form part of the permit. All activities forming part of the use must comply with the endorsed plan. The plan must include:

(a) The identification of all noise sources associated with the licensed premises (including, but not limited to, music noise, other external areas allocated for smokers, entries and exists to the premises and courtyards).

(b) Standard procedures to be undertaken by staff in the event of complaints by a member of the public, the Victorian Police, an authorised officer of the Responsible Authority or an officer of the liquor licensing authority.

34 The applicant requested that the overall maximum number of patrons is increased from 300 to 375, that the patrons permitted at the ground floor is 200 (which is the existing condition of Permit 918/02) and the first floor be increased to 175. Condition 3 requires that the maximum number of patrons of the premise is as follows:

3. The maximum number of patrons permitted on the premises is limited to the following:

a.

Monday to Friday (between 7.00am - 6.00pm) 189 (Not in dispute).

b.

Monday to Friday (between 6.00pm - 3.00am) 300

c.

Saturday and Sunday (between 7.00am - 3.00am) 300

d.

Public Holidays (between 7.00am - 3.00am) 300

e.

The maximum number of patrons on the ground floor must not exceed 170.

f.

The maximum number of patrons on the first floor must not exceed 130.

35 Mr Testro called evidence from Mr Flanagan a Building Surveyor who, having regard to the Building Code of Australia regulations, provided his expert opinion as to what number of patrons could be accommodated within the building. In Mr Flanagan's evidence, he advised that a total of 400 persons including 227 at ground floor and 173 persons at the first floor could be accommodated.

36 The numbers presented by Mr Flanagan were not in dispute by the Responsible Authority. However, Mr Rantino highlighted under cross examination, that a building surveyor does not have regard to amenity issues such as noise from patrons leaving the premises, as the calculation is purely a mathematical exercise.

37 I also accept Mr Flanagan's evidence in determining how many patrons could be accommodated on site. However, I agree with Mr Rantino that the assessment of patron numbers under the umbrella of planning considerations, must have regard to such issues as the impact on the amenity of adjoining properties.

38 I was advised at the hearing that the Council Officer recommended a total of 375 patrons including 200 at the ground floor (which is an existing condition) and 175 at the first floor be permitted. Mr Rantino advised that Council minutes did not explain the reason for the variation but in arguing his case for the imposed condition argued that:

•

The imposed condition reasonably relates to the implementation of Council's Licensed Premises Policy at clause 22.10.

•

The courtyard should be discounted from the floor area calculation in assessing the maximum number of persons to be accommodated at the first floor. Whilst the courtyard adds floor area, it does not necessarily follow that there will be an increase in patron capacity particularly where the courtyard is open or an uncovered area. In these cases the patronage of the courtyard is to be closely linked to weather conditions. It is possible that during good weather, there is a danger that all 173 patrons could congregate in the one area.

•

With regards to the courtyard usage, it was argued that in making a decision, I should have regard to the worst case scenario. Mr Rantino referred to Callis & Forrest Pty Ltd v Stonnington City Council & Ors [2002] VCAT 484, where Member Davies referred to a Member Liston decision which reads:

56. In his findings with respect to the change of use of "The Greek Deli" Member Liston observed that:

"...it must be accepted that once a permit is issued the character of the activity on the land could change significantly albeit with the restrictions inherent in the permit in relation to the number of patrons etc....

It is often a useful technique in the case of entertainment uses to try and anticipate the worst case, and when issuing a permit seek to address the possible consequences of the worst case in the permitted development and in the conditions which control its use"

39 Mr Rantino then expanded the above argument to submit that whilst the nearest residential properties may be 67 metres from the site, consideration must still be given to the impact of the proposal on their amenity.

40 With regards to the worst case scenario concept, Mr Testro highlighted that shopping centres are never required to provide car parking to the worst case scenario such as Christmas time, as these worst case scenario's are limited in times and that planning should not be 'worst case'.

41 Mr Dietrich quite simply submitted that what is being argued is the impact of an increase of 75 patrons in an area that hosts 24 Hour nightclubs and is a regional entertainment precinct.

42 Mr Rantino and Mr Dietrich both provided their interpretation of how planning policy applies to the consideration of the increase of patrons. I agree with Mr Rantino that on one hand planning policy encourages commercial uses and indeed the purpose of the zone is To encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses. Mr Rantino and Mr Dietrich differed in their interpretation of the purpose of the zone and what weight complementary uses should be given. I was also advised that planning policy also encourages intensive housing in activity centres which can cause conflict with business and other commercial or entertainment uses and the like. The issue in my mind, is not what policy is given priority but striking a balance. Clearly the intent of an activity centre is to ensure a mix of uses including business, retail, services and entertainment, as well as supporting intensive housing developments, the issue is striking a balance between the policies that apply to the site.

43 I asked Mr Flanagan how the numbers would vary if the courtyard was deleted from calculations and was advised that it would reduce the maximum number by 48 patrons.

44 Whilst I appreciate the arguments presented by Mr Rantino, I agree with Mr Dietrich that condition 3 should be amended to allow for 375 patrons for the following reasons:

i

What is to be considered is not a new use for 375 patrons but the increase of 75 patrons. Whilst acknowledging the decision presented by Mr Rantino Callis & Forrest Pty Ltd v Stonnington City Council & Ors [2002] VCAT 484, it is necessary to highlight that the primary difference with that particular case and this one, is that Member Davies was considering a change of use. This case is not a change of use but a change in the patron numbers, which I consider to be a significant enough difference to draw a differing conclusion. I do not agree that I should assume the worst case scenario of 173 patrons all congregating onto the deck and that the total of 375 patrons would cause an unreasonable loss of amenity to surrounding properties.

ii

The subject site is located in an extremely busy location. It is within a principal activity centre and an entertainment region that host many uses with hours extending beyond the site.

iii

There are limited residential properties surrounding the subject site and whilst these properties are to be afforded a reasonable level of amenity, they cannot expect the same level of protection as a Residential 1 zoning does.

45 I am persuaded by the applicant's case that the condition should be amended to allow a total of 375 patrons including 173 at the first floor (this number derived by Mr Flanagan) and 202 on the ground floor.

46 I will order that the Condition 3 be amended to reflect the increase in numbers requested by the applicant.

4. The courtyard must not be used for live music and no external speakers will be located within the courtyard.

48 It was agreed by both parties that it would be inappropriate to allow live music in the courtyard. Mr Testro argued that the condition should be amended to allow for background music and read:

The courtyard must not be used for live music and no music other than of a type and volume appropriate to background music may be emitted from external speakers in the courtyard.

49 When I enquired as to how you measure background music, he referred me to Whiting v Hosier Bar Pty Ltd [2005] VCAT 814 where Justice Morris stated at paragraph 13:

In my opinion, an appropriate practical definition of the words "background music levels", where used in a liquor licence for a bar, is that the music must be played at a level that enables patrons to conduct a conversation at a distance of 600 millimetres without having to raise their voice to a substantial degree. Music could not be regarded as background music if it was played at a level which required patrons to shout, or use a stage voice such as that used by an actor in the theatre, in order to carry out a conversation at such a distance. I appreciate that this definition also uses an indefinite word, namely "substantial", but I see no other alternative. However, it is possible for ordinary persons to assess whether they are able to carry out a conversation, at a distance of 600 millimetres, without raising their voices to a substantial degree; so this definition is workable in practice.

50 Mr Dietrich further argued that the condition on the permit ignores that the first floor courtyard is an enclosed space (minus a roof but with walls) and is well separated from any sensitive use.

51 Mr Rantino on the other hand argued that the condition is appropriate as the potential for noise spill given the fact that the courtyard is not a roofed area and no noise attenuation measures are proposed, is greater than the existing potential for noise spill from the premises.

52 I am satisfied that the amended condition proposed by Mr Testro is appropriate having regard to the location of the courtyard and the limitation to background noise. On my inspection, there were three notable aspects of the courtyard. Firstly the size. It is only 48 square metres, therefore it is limited as to how many people could be accommodated within the space. Secondly, whilst it does not have a roof, the walls are significantly high enough to present an enclosed feeling to the space. Thirdly, the location of the courtyard and hotel in general. This is not a quiet location. On my inspection there was significant background noise largely generated by traffic and general people movement. I am satisfied that limiting the music in the courtyard to background noise is reasonable and will not cause a loss of amenity to any surrounding property.

53 I will order that condition 4 be amended to read:

The courtyard must not be used for live music and no music other than of a type and volume appropriate to background music may be emitted from external speakers in the courtyard. Background music is defined as any music be played at a level that enables patrons to conduct a conversation at a distance of 600 millimetres without having to raise their voice to a substantial degree. It is not background music if it is played at a level which requires patrons to shout, or use a stage voice such as that used by an actor in the theatre, in order to carry out a conversation at such a distance.

54 Condition 7 imposes restrictions on the collection of rubbish and reads:

7. The collection of rubbish from the premises (other than normal Council collection) shall be conducted between the hours of 8.00am to 6.00pm Monday to Fridays.

55 Mr Rantino argued that it is basically irrelevant and confusing what hours the condition imposes on the site, as rubbish collection is controlled by a Council By-Law Part 9 Sanitation, Rubbish Collection 921 (12)(b)(ii) which restricts non Council (or non Council approved) rubbish collection to the hours of 7.00am and 4.00pm on Monday to Friday (inclusive) and 9.00am and 1.00pm on Saturday.

56 Mr Testro requested that the condition be amended to allow rubbish collection each day between the hours of 5am and 8pm each day of the week. Mr Testro further argued that the times as described in the local By-Law detailed by Mr Rantino and noted above do not apply to the Council or a person authorized by the Council Bylaw (12)(a)(v). Therefore a condition with hours extending beyond the By-Law provide an opportunity for the owner to negotiate with Council under By-Law (12)(1)(v) to be an 'authorized person' and have extended rubbish collection hours.

57 I am convinced by Mr Testro that the hours can be different to those in the By-Law for the purposes of giving the owner/operator of the site the opportunity to negotiate extended rubbish collection hours by being an 'authorized' person. Given that the site is on two main roads carrying cars, trams, buses and being subject to clearway restrictions, enabling collection times outside the main peak hours would minimise the disruption to the operation of the roads and the general area.

58 I also note again, that this site is not in a prime residential area but is within a Business 1 zone, surrounded by business or public use zones, is within a principal activity centre and has 24 hour operating night clubs within close proximity. I therefore do not believe that the hours 5am to 8pm on a Monday to Saturday to be unreasonable, given that in my experience, many suburban streets the collection of rubbish by the Responsible Authority occurs before 6.00am. I will restrict collection on a Sunday noting that the Council Bylaw does not allow any collection on a Sunday, to 9.00am to 8.00pm on a Sunday.

59 I therefore agree with Mr Testro and will order that condition 7 be amended to read:

The collection of rubbish from the premises (other than normal Council collection) shall be conducted between the hours of 5.00am to 8.00pm each day.

60 This application for review is not about a new use or new operation of the site as a Hotel. It is about an increase in 75 patrons and how this impacts on the surrounding area. The Responsible Authority required a Noise and Amenity Action Plan as a condition of the permit. See Member Martin's legal ruling regarding Condition 1 at the Appendix to this decision. Whilst this may be appropriate in other cases, in this case much of the information required was already contained as conditions of permit, therefore it is appropriate to amend the requirements for the Noise and Amenity Action Plan.

61 I am convinced by the Applicant's case that the proposed number of patrons are reasonable given that the evidence of Mr Flanagan, the location, the zoning and the level of activity within the surrounding area.

62 The courtyard music is limited to background music, which is again reasonable given the size of the courtyard, the location of the courtyard and the general location of the site.

63 The rubbish collection, whilst the hours to be contained on the permit are outside the Council Bylaw, it will enable the owner of the property to negotiate with Council to become an authorised person to remove rubbish.

64 For the reasons set out above, I will order that the decision of the Responsible Authority is varied and conditions 1, 3, 4 and 7 are modified as detailed above.

In this matter P3097/2005 being dealt with by Member Bilston-McGillen, I was asked early in the hearing to join her to deal with a legal point requiring a ruling by a Legal Member. Accordingly, I heard submissions from Mr Rantino then Mr Testro regarding same and reserved my decision. My ruling is set out below.

The legal point can be summarised as follows:

•

pursuant to the relevant planning permit No. 0788/05 ("Permit"), the Applicant intends (amongst other features of the proposal) to convert an existing upper level roof area of the hotel at 179 Chapel Street Windsor ("hotel") into an upper deck area where alcohol will be consumed. Condition 1 of the Permit requires the Applicant to prepare a Noise and Amenity Action Plan (which is opposed by the Applicant);

•

with Condition 1 being one of the contested conditions in this conditions appeal, Council is seeking to defend Condition 1 in part by relying on its Licensed Premises Policy at Clause 22.10 of the Planning Scheme;

•

it is common ground that Clause 22.10 only applies here if "a permit is required pursuant to Clause 52.27";

•

the Council's position is that there is a Clause 52.27 permit trigger here, while the Applicant takes the reverse position;

•

the Applicant relies on the fact that the plan accompanying the existing Liquor Licence No. 31904867 ("Licence") shows the whole of the perimeter of the upper level of the hotel as being the "licensed area". By contrast Mr Rantino for Council relied on the fact that this "deck conversion" will add to the useable floor area of the hotel by about 48 metres.

The relevant part of Clause 52.27 is set out below.

These provisions apply to premises licensed, or to be licensed, under the Liquor Control Reform Act 1998.

A permit is required to use land to sell or consume liquor if any of the following apply:

•

A licence is required under the Liquor Control Reform Act 1998;

•

A different licence, or class of licence is required from that which is in force;

•

The hours of trading allowed under any licence are to be extended.

I will not repeat the submissions of the parties in detail but more concentrate on the key issues. Suffice to say that:

•

Mr Rantino relied on several other cases where a non-legal Planning List Member had been dealing with an extension of a licensed area and simply "took as read" the applicability of Clause 52.27 (although he conceded no legal Member had properly analysed the situation). See Daina Pty Ltd v Melbourne CC [2002] VCAT 1224 and Elzen v Maribyrnong CC [2004] VCAT 1104;

•

while conceding that the accompanying plan for the existing Licence shows the whole of the perimeter of the upper level as being the licensed area, Mr Rantino relied on the fact that the relevant section of the upper level is currently simply a roof area. Following Mr Rantino's submissions, the proposed "deck conversion" constitutes either a brand new licensed area point for the purposes of the first bullet point in Clause 52.27, or otherwise a "different licence" for the purposes of the second bullet point;

•

Mr Rantino also urged me to take a expansive view of the scope of Clause 52.27, in terms of what he put to me are the public policy benefits of Clause 52.27 (and in turn Clause 22.10) having a broader rather than a narrower application. He also relied on the fact that Section 29(2)(b) of the Liquor Control Reform Act 1998 ("Act") expressly refers to a "variation of the size or perimeter of the licensed premises" (my emphasis) as one of the possible types of variation of a licence;

•

in response, Mr Testro urged me to give weight to the accompanying plan for the Licence showing all of the perimeter of the upper level as the "licensed area". Following Mr Testro's submissions, what follows is that the relevant roof area already constitutes a licensed area, and the Applicant is simply varying this existing licensed situation by creating the new roof deck. In other words, following this submission the first Clause 52.27 bullet point is irrelevant because this is not a new licensed area, and the second bullet point is irrelevant because it is the same Licence No. 31904867 being varied (not a brand new licence with a different number). In relation to Section 29(2)(b), Mr Testro relied on the different language involved in that this sub-section uses the term "variation of the size or perimeter" whereas Clause 52.27 uses the term "different licence".

I see the two key issues here to be:

•

whether the creation of the proposed deck area requires a permit under Clause 52.27 because it constitutes a brand new area requiring licensing for the purposes of the first bullet point of that clause; or alternatively

•

whether the creation of the proposed deck area changes the situation such that there is a "different licence" for the purposes of the second bullet point of Clause 52.27.

I note that the definition of "Licensed premises" in Section 3 of the Liquor Control Reform Act 1998 reads as follows:

"licensed premises" means the premises in respect of which the licence (other than a pre-retail licence) or BYO permit is granted but does not include premises referred to in section 13(1)(b) (vigneron's licence).

Does Creation of Roof Deck Trigger Second Bullet Point of Clause 52.27?

Having considered the relevant statutory provisions and the submissions of the parties, my finding is that the creation of the proposed roof deck will not create a permit trigger under the second bullet point of Clause 52.27. I rely on the following points in reaching this conclusion.

First, while I can see arguments both ways, I find more persuasive Mr Testro's submission that the words "different licence" in the second bullet point means a different licence with a new licence number (as opposed to a variation of the same licence with the same licence number). In this regard, it is important that Clause 52.27 does not use the same language as Section 29(2)(b) (ie "different licence" compared to "variation of a condition of the licence"). The draftsperson could have included in the second bullet point of Clause 52.27 the words "varied licence" or "modified licence" but did not do so.

Second, Mr Rantino sought to rely upon the fact that the second bullet point refers to both a "different licence" and also "class of licence" being required, in urging me to take a broad view of the operation of the second bullet point. However I do not see that this fundamentally makes any impact upon my analysis set out the above paragraph, particularly as the Act refers to different "categories" rather than "classes" of licence.

Third, in reviewing Mr Rantino's line of thinking, there is a discrepancy in terms of how one views the second bullet point compared to the third. The third bullet point expressly makes any extension of the operating hours of a licence a Clause 52.27 a permit trigger. However, if one follows Mr Rantino's broad view of the second bullet point (ie that a modification of an existing licence constitutes a different licence), then there would be no need for the third bullet point, since the extension of operating hours would already come within the scope of the second bullet point. Accordingly, following the legal maxim (as I dust off my Osborn's Concise Law Dictionary 7th Edition ) of "expressio unius personae vel rei, est exclusio alterius" [the express mention of one person or thing is the exclusion of another], the express mention of extending operating hours in the third bullet point goes against Mr Rantino's "catch all" interpretation of the words "different licence" in the second bullet point.

Does creation of Roof Deck Trigger First Bullet Point of Clause 52.27?

I now turn to the aspect on which this legal ruling turns, being whether the creation of the new roof deck creates a permit trigger under the first bullet point of Clause 52.27, on the basis that the new deck constitutes a brand new area requiring licensing beyond the scope of the existing Licence.

In this regard, Mr Testro relied on the fact that the plan accompanying the Licence shows (using the red colouring) all of the perimeter of the upper level of the hotel as licenced (bearing in mind that there is a notation at the bottom of the plan stating "Licensed Area equals Red Line"). Mr Testro relied on this in effectively putting to me that "the horse had bolted" with the roof area being licensed, whether Council liked it or not. However in response to my questions, Mr Testro did concede that to his client's knowledge, no patrons had actually been using the roof area as an area for drinking activities.

In response, Mr Rantino relied on the fact that the proposed deck conversion would in practice add 48 square metres to the total floor area of the hotel, and urged me to give priority to "additional floor area" rather than the fact that the red line on the accompanying plan runs around the full perimeter of the upper level of the hotel. Mr Rantino also put to me that his "additional floor area" approach was more sensible and worthy from a public policy point of view, and in terms of trying to achieve what Mr Rantino considered to be the practical intent behind Clause 52.27.

Near the end of the discussion I put the following query to Mr Testro. The situation we have here is that the proportion of the overall upper level of the hotel being converted from roof to deck represents only a minority of the whole upper level. However, if one takes Mr Testro's narrow view of the first and second bullet points to a more extreme situation, if hypothetically the proposed conversion from roof to deck involved the majority of the upper level, there would still be no permit trigger under Clause 52.27 if the accompanying plan showed the full perimeter of the upper level as being the licensed area. This would seem a strange result. In response, Mr Testro submitted that this is a "question of degree" and in my hypothetical situation, the large amount of roof area being converted would trigger a permit requirement under Clause 52.27 (ie it comes down to the facts of each case).

Having considered the relevant statutory provisions and the submissions of Mr Testro and Mr Rantino, I find Mr Rantino's case more compelling and my finding is that the proposed roof deck conversion does constitute a new licensed area for the purposes of the first bullet point of Clause 52.27.

I acknowledge that the situation might be different where the plans accompanying the Licence are minimalist and do not identify the contentious area as being a "roof" (ie where there is no distinguishing information on the plans about the nature and operation of the upper level). However in this case it is critical that, notwithstanding the "red line" running around the full perimeter of the upper level on the accompanying plans, those plans not only identify the area in question as being a "roof", but this section of the plans also make it clear that there is some degree of pitch to the roof. In my view it follows that:

•

in this situation it goes against common sense to regard the roof area as being licensed for actual use for drinking activities (as reinforced by the fact that Mr Testro conceded there is no known history of patrons actually drinking on the roof area in question). In other words, where the accompanying plans include additional information about the distinguishing features of the upper level, in my view it is sensible to take a "three dimensional" approach to the extent of the existing licensed area, rather than Mr Testro's preferred two-dimensional approach. This "three dimensional approach" is consistent with the definition of "licensed premises", which does not rely on the "red line on the plans" but refers to the actual premises in respect of which the licence has been granted ;

•

while on a strict analysis the proposed new deck floor tiles probably come within the existing licensed area and any thirsty and adventurous ants (moving around these tiles presumably at the same height as the previous roof) could drink any spilt alcohol within the scope of the existing licensed area, in my view the situation changes where persons start using the new deck and drinking alcohol at a height well above the previous roof level. In other words, from a three dimensional perspective, the key factor is that the consumption of alcohol on the new deck will involve people walking around and drinking above the height of the old roofline (thereby triggering the first bullet point in Clause 52.27). .

I also give weight to the following factors which go against the Applicant:

•

in responding to my alternative hypothetical example outlined above, Mr Testro sought to assure me that in the type of circumstances as exist here but where a majority of an upper level is being converted from room to a deck, this could be distinguished on the facts and Clause 52.27 would be applicable. With respect, I do not accept that Mr Testro's line of thinking applies in some circumstances but not others. I see Mr Testro's position as being an "all or nothing" one, which undermines the weight of his submission;

•

where there are real competing arguments about the scope of the application of Clause 52.27, I agree with Mr Rantino that one practical factor is the public policy benefits of the greater scrutiny of applications that arises from a broader interpretation of Clause 52.27 compared to a narrow interpretation. While this has been more a background factor, I think it is a fair point.

In summary, my findings are that:

•

I accept that neither the second nor the third bullet points in Clause 52.27 are applicable here;

•

however I accept that a permit is required here under Clause 52.27 due to "A licence being required" for the proposed roof deck conversion under the first bullet point of that clause; and

•

accordingly my ruling is that Mr Rantino is entitled to rely on Clause 22.10 in putting forward his submissions to the Tribunal and Member Bilston-McGillen can take Clause 22.10 into account in making her overall assessment whether or not the contentious Condition 1 in the Permit should be deleted.

[1] Relevant State Planning Policies include Clauses 12.01 'A more compact city', 12.05 'A great place to be', 14, 17 Activity centres, 18.02 Carparking and public transport access to development and 18.03 Bicycle Transport and 19.03 Design and Built form.

[2] The following clauses of the Municipal Strategic Statement were highlighted, 21.01, 21.02, 21.03, 21.06,21.09 and 21.10.

[3] The following local planning policies were noted, 22.02 Urban Design, 22.04 Heritage, 22.09 Retail Centres, 22.10 Entertainment Uses, 22.12 Traffic and 22.13 Parking Policy.