* Replacing condition 3 with the following condition requirement:

Prior to the commencement of the permitted use noise attenuation measures must be constructed to achieve the noise attenuation required by Table 4 in Report No. 99204B of Marshall Day Acoustics, and on completion of this construction a report prepared by a suitably qualified acoustics consultant must be submitted to the Responsible Authority demonstrating to its satisfaction that the required level of noise attenuation has been achieved by the measures included.

* Replacing condition 6 with the following condition:

Music noise levels generated by the permitted use must not exceed the requirements of the State Environment Protection Policy (control of music noise from public premises) N2 except for apartment 1 where the music noise levels, measured within the apartment with its windows shut, must not exceed the background noise level set out in Table 1 of Report No. 99204B of Marshall Day Acoustics.

The maximum number of patrons on the premises at any one time must not exceed 90 (ninety) persons.

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

Mr Martyn Williams, Town Planner, appeared on behalf of the Responsible Authority, Melbourne City Council.

Mr John Cicero, Solicitor, appeared on behalf of the Applicants for Review.

Mr. Gary Glover, Barrister, appeared on behalf of the Respondent/Permit Applicant. Mr Glover called Mr Peter Tsitas as a witness in support of his submissions.

1. This is an application to review the decision of the Responsible Authority to allow ground floor tenancy in the building at 300 King Street, Melbourne to be used as a bar with a frontage onto Eagle Lane to the rear of the subject building. The parties in the appeal made both written and verbal submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject premises, neighbouring dwellings within the same building, and the locality generally.

2. The Tribunal gave oral reasons for its decision to make minor variations to the decision of the Responsible Authority, at the resumption of the hearing on Wednesday 13th September 2000. A summary of the Tribunal's conclusions are set out below.

3. Residential uses, and entertainment uses such as the proposed bar are both uses which are actively encouraged within the Central City Zone.

4. The interests of such users can be in conflict. The operation of the bar might have an adverse effect on the amenity of a nearby residential use, while the existence of the nearby residential use may restrain the viable operation of the bar.

5. Planning decisions often involve striking the balance between competing interests and policy considerations such as those created in this particular case. However, what is unusual in this case is the explicit policy direction provided in the Municipal Strategic Statement in relation to the question of how this balance must be struck. Paraphrased the policy is that the accommodation of residential amenity must not compromise the other functions of the central city area.

6. I do not think that this policy position means that residential amenity is sacrificed at the alter of the more commercial uses of the central city area. Rather I think the policy implies that the level of amenity to be expected by a residential use is not that which would be found in a conventional residential area, and that in dealing with the complex issues which categorise a proper decision should seek to find accommodation between the needs of both uses.

7. Eagle Lane is presently only a service lane. However, notwithstanding the fact that the site is towards the periphery of the central city area, other lanes in the immediate vicinity are actively used for uses which include cafes and bars, there is no reason to suggest that this lane should not develop in that way. Indeed, the security of the land could be improved if it has a use which operates outside conventional business hours.

8. The fact that the premises for the proposed bar share the same building as a number of other premises used for residential purposes does raise a number of problems about the co-existence of these uses but this particular conjunction of uses in the same building does occur elsewhere within the city and appears to operate reasonably satisfactorily.

9. In this particular case there have been two approaches to the issue of the co-existence of these uses which I believe are meritorious i.e:

* The Responsible Authority's approach to limiting the scope and intensity of the use by imposing permit conditions relating to the hours of use, and the provision of entertainment, and

* The Marshall Day Acoustics Consultants' approach to the application of State Environment Protection Policy N2 as it relates to the dwellings in the same building which share a wall and the ceiling with the proposed premises.

10. The Marshall Day approach is that background noise levels should be achieved in these dwellings with the windows shut. A very stringent requirement. The effect of this is that the bar as it relates to these dwellings in the same building is the same as a bar close by in the laneway. Conceived of in this way it is now apparent that the use of the premises for the purposes of a bar fronting onto Eagle Lane is a reasonable use of the premises, and the issue to be resolved is the adequate protection of the amenity of these nearby residences, in the context of the central city environment.

11. The Responsible Authority's conditions provide that acoustic attenuation measures recommended by Marshall Day should be employed in the construction of the bar. This is appropriate, but I believe that this condition should be extended to require that the effectiveness of the works and achieving the attenuation recommended by Marshall Day Acoustics be measured before the premises is occupied for use as a bar. Moreover, the condition which applies to SEPP N2 should also be modified to introduce the Marshall Day criteria in relation to dwelling 1. Such a modification of the conditions is required to ensure that noise levels within the bar are generally consistent with the design levels used by Marshall Day in arriving at the degree of attenuation required. In addition to the above during the course of the hearing Mr Glover accepted a new condition restricting the number of patrons to 90 persons.