1. The decision of the responsible authority is varied.
2. Planning Permit No. GE/PP-24116/2011 is amended and an amended permit is directed to be issued for the land at 41 Sussex Road, Caulfield South. The permit is amended as follows:
   1. Condition 5 is amended as follows:

5(a) No live or amplified music is to be played external to the clubrooms (within the outdoor areas of the subject site).

(b) The use and development must be managed so that the amenity of the area is not detrimentally affected through the emission of noise, vibration or unreasonable patron behaviour.

(c) Noise levels emanating from the premises must not exceed those required to be met under State Environment Protection Policy (Control of Music Noise from Public Premises), No. N-2.

1. Condition 7 is amended to read:
   1. Liquor may only be consumed outside the clubrooms (within the subject site) between the hours of:

Monday - Saturday (excluding Good Friday and Anzac Day)

1. The responsible authority is directed to issue a modified permit in accordance with this order.

Mr Anthony De Pasquale, town planner, Glossop Planning Pty Ltd

To amend condition 5 of planning permit GE/PP-24116/2011to limit amplified music to inside the clubrooms.

To amend condition 7 to clarify hours for the consumption of liquor outside the clubrooms.

Application under section 82 of the Planning and Environment Act 1987

Clauses 10.04, 11.03, 13.04, 19.02, 21.01, 21.02, 21.03, 21.09, 21.13 and 65

The review site is located within Princes Park which is at the north end of Sussex Road and approximately 180 metres to the east of Hawthorn Road. The site comprises a clubhouse and two bowling greens. A car park is located to the east of the clubrooms.

The land is flat and is not constrained by any special features or encumbrances.

Land to the north and east is used for recreation purposes. Land to the south and west generally abutting Brooklyn Avenue is occupied by dwellings.

Becton Living East Malvern Pty Ltd v Stonnington CC [2008] VCAT 1195

McKend & Ors v Port Phillip CC [2012] VCAT 910

Victorian National Parks Association Inc and Mineral Policy Institute v Southern Grampians SC & Ors [2004] VCAT 20

Bestway Group Pty Ltd v Monash CC (Red Dot) [2008] VCAT 860

1. The Armadale Bowls Club is located at the southern end of Princes Park. The club comprises a clubroom and two bowling greens with an associated car park. This particular club has occupied the premises since 2000, however the land has been continuously used as a bowling club since the 1980's without any planning permission or constraints on the use of the land. The club has a licensed capacity of 200 patrons and can serve liquor within the clubrooms Monday to Saturday between 10am and 12 midnight and on Sundays.
2. Up to January 2012 liquor could only be consumed within the clubrooms of the bowling club. In January 2012, Glen Eira City Council determined to grant planning permit GE/PP-24116/2011. The permit increased the area within which liquor can be consumed to the whole of the land occupied by the bowling club between 7am and 11pm Monday-Saturday and 10am-11pm Sunday.
3. Condition 5 of the permit provides that:

1. Condition 7 of the permit specifies the hours within which liquor may be consumed outside the clubrooms. The hours specified in the permit are not consistent with the liquor licence.
2. The responsible authority and the bowls club concede that the wording of condition 5 is poorly drafted and creates ambiguity regarding the areas of the bowls club to which it applies. In December 2012 the Council determined to amend condition 5 to:

No live or amplified music is to be played external to the clubrooms (within the outdoor areas of the subject site).

1. Council also determined to amend condition 7 to reduce the hours that liquor can be consumed between Monday to Friday and on any Anzac Day falling on a Monday to Friday. The change would require the consumption of liquor to cease after 11pm. The hours proposed to be included in condition 7 would be consistent with the current liquor licence.
2. Mr Gelperowicz resides at No.1/13 Brooklyn Avenue, to the southwest of the bowls club. He submits that he has been adversely affected by social functions held at the bowls club, including the consumption of liquor. He opposes amending the permit as he submits condition 5 prohibits live and amplified music within the clubrooms. He submits that live music associated with social functions held at the club regularly exceeds reasonable noise levels and it has adversely affected the amenity of dwellings nearby the club. He also submits that the frequent number of social functions being held at the club constitutes a change of land use.
3. The key issues that I must determine in this matter are:
   • What is the scope of my discretion in this review?
   • What is the effect of the present wording of condition 5?
   • Is it reasonable that live and amplified music be played within the clubrooms?
   • Would the amendments to conditions 5 and 7 impose adverse amenity impacts on neighbours?
4. I must decide whether the permit should be amended and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Stonnington Planning Scheme, I have decided to amend conditions 5 and 7 of Permit GE/PP-24116/2011. My reasons follow.

1. Mr Gelperowicz submitted that the clubrooms are being used for many social functions that are unrelated to the use of the land for a bowls club. He considers that the use of the land has changed and it no longer comprises a restricted recreation facility. Mr Gelperowicz intended to table at the hearing a list of the functions held at the premises to demonstrate that the clubrooms is being used as a function centre or disco.
2. The application for review before me is whether conditions 5 and 7 of Permit GE/PP-24116/2011 should be amended. The application for review has been lodged pursuant to s82 of the Planning and Environment Act 1987. An application under that provision of the Act requires the Tribunal to determine the merits of the amendment to the permit; that being whether it is appropriate to allow live or amplified music on the premises and to modify the hours within which liquor may be served.
3. A review must be limited to the matters for which discretion has been conferred and hence the matters that are contested. A review regarding an amendment to a permit does not provide the opportunity to recontest the grant of the entire permit or to introduce matters unrelated to the conditions under review. The review must be confined to the changes sought. An amendment to a permit does not provide the opportunity to contest all of the matters set out in clause 65 decision guidelines or s60 and s64 of the Planning and Environment Act 1987. Hence this review is confined to the amendments proposed to condition 5 and condition 7, that is the playing of music on the premises.
4. I consider that the matter of the whether the use of the land for social functions constitutes a change of land use is not before me. I do not have the discretion under this review to consider submissions regarding whether the use of the land for social functions constitutes the use of the land for a place of assembly or some other categorisation of the use that is different to its ongoing use as a restricted recreation facility. I did not allow submissions to be made regarding existing use rights. A review seeking a determination on whether use of the bowling club for social functions constitutes a new use would have to be the subject of a declaration lodged under s149 of the Planning and Environment Act 1987. Such an application would identify the issue to be resolved, hence providing the club and the council with the opportunity to properly prepare their cases. I make no findings in respect of the categorisation of the use of the land for social functions.
5. Mr Gelperowicz also submitted that the volume of music and the behaviour of the patrons attending the social functions adversely affects the amenity of local residents. He sought to table photographs to support his assertions. I advised that these matters were also not before me in this review as it is not seeking an enforcement order under s114 of the Planning and Environment Act 1987.
6. Consequently the matter before me is the interpretation of the existing condition 5 and whether the amended conditions are appropriate. I turn to these matters below.

What is the effect of the present wording of condition 5?

1. Condition 5 of the permit provides that no amplified music is permitted on the premises. The responsible authority conceded that the wording is 'ambiguous'. Council submitted that it was intended to mean that no live or amplified music is to take place within the expanded licence area, that being the bowling greens and curtilages external to the clubrooms. The permit applicant and the responsible authority submitted that the condition was not intended to prevent live music or amplified music being played within the clubrooms as that activity is allowed as part of the club's continuing use rights. Mr Gelperowicz submitted that the condition should be read to include the clubrooms.
2. I concur with Mr Gelperowicz. Whilst the permission allows the variation of the liquor licence to increase the area to include land outside the clubrooms, the land to which the permit applies is the whole of the land occupied by the bowling club. Condition 5 refers to 'the premises'. The term premises is defined in the following manner:

The subject of a conveyance or bequest, the house lands or tenements aforementioned[2].

any place or land exclusively used or occupied by any person or business for whatever purpose[3].

1. The first definition is derived from its use in deeds of conveyance. The land was described, usually in great detail, and the term was used to replace the need to repeat the lengthy description. The term means the equivalent of an aforesaid description of the land and refers to the entirety of the land.
2. The second definition identifies premises as a discrete property that is clearly distinguishable from other land parcels by being exclusively occupied by one party.
3. The land to which this permit applies is identified as no.41 Sussex Road, being all the land occupied by the club. The land is exclusively occupied by the Bowls Club and is clearly under their sole control and occupation. In my view the permit applies to the whole of the land.
4. The responsible authority and the permit applicant submit that the club has operated continuously since the 1980's. The activities within the clubrooms have never been constrained by a permit condition. They say that pursuant to clause 63(3) of the planning scheme the existing activities that have been lawfully established cannot be constrained provided that any restrictions are complied with and the amenity of the area is not further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use rights.
5. However planning permission is required for the sale and consumption of liquor and that permission has been granted for the whole of the land. That planning permission does not derive from it being an existing use or an as of right use in the Public Park and Recreation zone. In my view, planning discretion has to be exercised regarding the sale and consumption of liquor, and that discretion requires judgements to be made in respect of the scope of the activity (hours, management) and the parts of the land to which the permission is to be applied. The condition clearly says that a judgement has been made that no live music is to played within the clubrooms as part of the sale and consumption of liquor. In my view whilst it might have been the intention of the responsible authority that permit condition 5 apply only to the extended licence area, I am satisfied that the wording of the permit condition actually applies to all the land, including the clubroom.
6. I note that the responsible authority concurs with this finding, notwithstanding their submissions that this was not the intent of the condition. I turn below to the matter of whether the condition should be amended as proposed by the responsible authority and permit applicant.

Is it reasonable that live and amplified music be played within the clubrooms?

1. It is proposed that the condition be amended to ensure that no music is to be played outside the clubrooms, but that music can be played within the clubrooms. Mr Gelperowicz opposed this amendment on the basis that music played within the clubrooms causes adverse amenity outcomes for local residents through excessive noise. The disturbance is made worse because it extends until the early hours of the morning, particularly at weekends.
2. The land is defined in the planning scheme as a restricted recreation premises. Such use is defined as:

Land used by members of a club or group, members' guests, or by the public on payment of a fee, for leisure, recreation, or sport, such as a bowling or tennis club, gymnasium and fitness centre. It may include food and drink for consumption on the premises and gaming[4].

1. A bowling club clearly falls within this land use definition. The definition also clearly contemplates the consumption of food and drink on the premises.
2. A planning permit and liquor licence have been granted for the consumption of alcohol on the land. In combination the bowling club can provide food and drinks, including liquor, for consumption on the land.
3. I think it reasonable that a premises that serves food and drinks, including liquor, should be able to enhance the ambience of the venue with music. A bowling club has an important role of bringing people together. Whilst this is mainly done through bowls events, from time to time it would be reasonable that the venue provides other events to enhance people's involvement in the club and their opportunity to socially mix with members and relatives. These events are likely to include entertainment comprising live or recorded music. The clubrooms are well appointed and other people in the community can also benefit from holding celebrations and special events to enhance their interactions with family, friends and people in their local community. Food, drink and music are the usual ingredients that underpin many social occasions and I think there is a reasonable expectation that they would comprise part of a social occasion.
4. Hence in my view it is reasonable that a venue serving meals and liquor also provides music to enhance the dining and entertainment experience of the members of the bowls club and their guests.
5. I must also give weight to the existing use rights of the club. It is not disputed that they have been operating for many years. No planning permits have constrained these existing use rights, save for this permit issued for the sale and consumption of liquor. Photographs tabled at the hearing show speakers built into the premises. I think these speakers have been installed for some time, and it is reasonable for me to conclude that amplified presentations have been held over some time. I also think it likely that the speakers have been used to play music from time to time. It is my view that it is likely that music has been played within the clubrooms for some time, and that playing live or amplified music reasonably accompanies serving food and liquor.

Would the amendments to conditions 5 and 7 impose adverse amenity impacts on neighbours?

1. The determinative matter before me is whether permission should be granted to play live or amplified music within the clubrooms and to continue to prohibit playing music outside the clubrooms.
2. Mr Gelperowicz resides approximately to the south and southwest of the review site, separated by approximately 50 metres from the entry to the clubrooms. Other dwellings are as close as 20 metres to the clubrooms. The dwellings and the clubrooms are located within a long established residential precinct. The clubrooms and the dwellings are remote from land uses that could generate high levels of noise such as main roads, industry or commercial centres, particularly those with entertainment venues. Their proximity to a large recreation reserve enhances a general amenity that has low ambient noise level and limited exposure to high noise levels.
3. The clubrooms face west, and the bowling greens abut some dwellings. A decked area is located on the north side of the clubrooms.
4. All parties agreed that music should not be played outside the clubrooms. There is no application from the permit applicant for permit condition 5 to allow this. I think this is appropriate as dwellings abut the greens and their surrounds. Music played in these areas would be intrusive to the dwellings, particularly as the background ambient noise levels are usually very low.
5. The permit applicant observed that access between the clubrooms, the decked area to the north and the bowling greens to the west is through airlocks. The external doors are self closing and hence remain closed at all times except when opened to enable a person to pass through. There are no retractable windows that enable the wall to be opened so as to integrate the indoor and outdoor dining areas.
6. The permit applicant advised that the club has acted to protect the amenity of neighbours. Safeguards are now included in the agreement to hire the venue and include:
   • no alternate speakers or audio systems are to be used
   • a security person is present at all times when functions occur
   • functions are to finish by 11pm
   • the clubrooms are not to be hired to groups for people under the age of 25 years
   • people operating functions are required to ensure that the door between the clubroom and the smoking area is closed at all times.
   • no access is allowed onto the bowling greens during a function.
7. In addition, the club is required by environmental legislation and by the conditions of the liquor licence to comply with State Environment Protection Policy (Control of music noise from public premises) N-2 (SEPP N-2).
8. I accept that playing music within the clubrooms is a reasonable activity as it would be an adjunct to the primary land use; that is, a restricted recreation facility and an adjunct to serving food and liquor. I also accept the submissions of the applicants for review that dwellings are sufficiently proximate to the clubrooms and the background noise at night sufficiently low that loud music could cause adverse amenity impacts.
9. Music within the clubrooms should be carefully managed with a careful ear for their neighbours. I am satisfied that the club has recently instigated a range of measures to limit noise, but it should be continually vigilant to ensure that occasional events do not adversely affect its neighbours. Whilst the club venue hire policy restricts hiring the venue to people younger than 25 years old, I am confident that people older than 25 years still enjoy music, and on special occasions enjoy it being played loudly.
10. The permit applicant proposed that a note could be included on the permit that the venue comply with SEPP N-2. I consider that in light of the long standing concerns of the neighbours and the finding that this amendment is more than simply clarifying the current permission, this requirement should be included as a condition. I consider that a further provision requiring that the club not adversely affect the amenity of the area should also be included in the amended permit. I consider that these conditions reasonably arise from the permission that liquor be served throughout the premises, as the serving of liquor is often accompanied by music.
11. Finally the proposed amendments to condition 7 diminish the hours of liquor consumption outside the clubrooms. Presently Condition 7 provides that serving liquor may be consumed outside the clubrooms on Monday to Saturday nights to 'any time'. This is to be limited to 11pm. I expect that this restriction will encourage people to remain within the clubrooms, and it aligns the planning permission with the liquor licence.
12. I accept Mr Gelperowicz's submissions that this time limit would not apply to playing music within the clubrooms. I expect that the requirement to comply with SEPP N-2, as well as the measures put in place by the club should ensure that neighbours enjoy reasonable amenity.
13. This case raises the reasonable amenity expectations of people living in a quiet residential neighbourhood. I accept that residential areas can experience noise from domestic power tools and machinery (mowers, saws, grinders etc) and from occasional social functions, parties or residents playing DVD's, television or music loudly. However, such noise is usually only occasional, largely confined to the daytime or the early evening, and ceases after 10pm when most people prefer to sleep. Frequent loud music and social events, late in the night are likely to be contrary to reasonable amenity expectations, particularly given the context of this site. It is within a recreation reserve, in a quiet neighbourhood. It is not within a commercial entertainment precinct. It would be contrary to other laws (the law of nuisance) if such activities were allowed to continue at such levels, duration or frequency so as to amount to a nuisance. I think Mr Gelperowicz and his neighbours may have a strong basis for further proceedings before the Tribunal if the bowling club frequently allows its clubroom to be used by groups not associated with the primary activities of the club and those groups to generate music that is excessively loud and played late into the night. It must ensure that its activities respect its quiet residential context and the reasonable amenity expectations of its neighbours.

1. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be affirmed and Permit GE/PP-24116/2011 be amended.
2. The amended conditions have regard to the submissions of the parties, and the matters that arise from my reasons.

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

[2] The Shorter Oxford English Dictionary on Historic Principles.

[3] Butterworths Australian Legal Dictionary