1. The application seeks to allow licensed hours to extend to 3am the following day on Wednesday, 5am the following day for Friday and Saturday and 3 am the following day on Sunday. These changes amount to an extension of 2 hours over that which currently applies. Public holidays hours (except ANZAC Day and Good Friday) are also sought to be extended from 7am the previous day to 5am on the public holiday.
2. The changes in hours are to be in conjunction with an increase in the maximum number of patrons on the premises from 100 to 190.

1. This is an application for amendment to an existing permit. Section 73 of the Planning and Environment Act 1987 requires that such an application is to be treated in the same manner as if it were an application for a new permit. Thus, amongst other requirements those matters required to be considered under s.60 of the Act for a new permit are also to be considered for an amendment to an existing permit.
2. Thus it is that in addition to the permit trigger under Clause 52.27 by way of the fact that the hours of trading are to be extended,[2] the application triggers the requirements of Clause 34.01-2, by way of the use as a tavern being a section 2 use under the Business 1 Zone.[3]
3. Both permit triggers call for a consideration of what the use, or in this case what the amendments to the use will have on the amenity of the neighbourhood. It is the principal issue in this matter, although its consideration is in many parts. Notwithstanding that there are two permit triggers, for the purposes of these reasons, it is perhaps most convenient to focus on the matters under Clause 52.27. Addressing these requirements for the purposes of this proceeding addresses those under Clause 34.01-2.
4. The purposes of Clause 52.27 are:

To ensure that licensed premises are situated in appropriate locations.

To ensure that the impact of the licensed premises on the amenity of the surrounding area is considered.

1. Relevantly three of the five decision guidelines contained under Clause 52.27 go to the heart of this proceeding:

The impact of the hours of operation on the amenity of the surrounding area.

The impact of the number of patrons on the amenity of surrounding area.

The cumulative impact of any existing and the proposed liquor licence, the hours of operation and number of patrons, on the amenity of the area.

State and Local Planning Policy Frameworks are also to be considered, as appropriate, along with the decision guidelines of Clause 65. The latter reiterate a focus on the orderly planning of the area, in this case are the changes appropriate to the context of the venue and the effect on the amenity of the area.

1. It is relevant therefore to first set out the physical as well as planning context of the venue's location.

1. Heavens Door is located a short distance from the corner of Chapel Street and Commercial Road. Mr Gul's submissions set out much of the detail of this location, which I supplemented with an accompanied inspection of the venue and unaccompanied inspection of the venue and its surrounds on two occasions; one being immediately after the venue inspection and the other on a Saturday evening between the hours of 11:00pm and midnight.
2. The venue is clearly located in an area of mixed use. There are a number of offices, shops and other commercial premises along both sides of Commercial Road, including the Prahran Market. There are also a number of restaurants and bars including the Market Hotel (next door to the west), the Exchange Hotel (further to the west), Blue Salt (next door to the east), Heaven@151 and Priscila's@153.
3. A former venue, 'Evolution Nightclub', operated immediately opposite. This venue had a 24 hour licence with conditions allowing up to 500 patrons between 8pm and 7am. Mr Bryant submits and the Council generally agrees that this venue was the subject of considerable complaints about noise and anti-social patron behaviour. The Council acknowledges that since its closing, the number of complaints about noise and behaviour has decreased.
4. The redevelopment of the Evolution site is for a multi storey building containing retail at ground level, offices and studio apartments in two podium levels and a further six levels of apartments above (with a roof top terrace). Plans tendered by the Council show the studio apartments and apartments up to Level 2 front onto Commercial Road. Thereafter, upper levels of apartments are setback more than 15m from Commercial Road.
5. Obliquely to the south-east of the subject site on what is known as the Bob Jane T-mart site, is a recently constructed multi-storey residential hotel. This building contains restaurants, a café, bar and reception at ground level, with five levels of rooms above. The bar is to be open until 3am, the café until 11pm and restaurant until 1am.
6. Heavens Door backs onto another accommodation building, Oakford (Quest) Apartments. Beyond the Quest Apartments is a medium density residential development, Balmoral Place. These residential/accommodation uses are located in a Business 2 Zone.
7. The venue's location is serviced by tram routes on Commercial Road and Chapel Street, with Prahran and South Yarra Stations accessible by foot or by tram.

1. The venue is located in a Business 1 Zone, the purposes of which include the intensive development of 'business centres for retailing and other complementary commercial, entertainment and community uses'. The site is also located in the Chapel Street Principal Activity Centre.[4] Principal Activity Centres are to accommodate 'ongoing investment and change in retail, office, service and residential markets'.[5] It is fair to summarise State Policy in respect to this venue's location as being that subject to acceptably addressing amenity effects, entertainment venues such as this are to be encouraged in such locations as part of the mix of uses.
2. Stonnington's Municipal Strategic Statement recognises the role of the Chapel Street Principal Activity Centre's in providing entertainment venues to more than the local population. It would be fair to say that the Council agrees that Heavens Door is one of several venues in this area of the Activity Centre that together form a special entertainment precinct for gay men and is part of the Chapel Street entertainment precinct. Its ongoing use in this respect is not in dispute.
3. What is of concern to the Council is the impact to the amenity of the neighbourhood from the changes being sought by Heavenly Ten. Principally the Council points to the existing and newly developing residential and accommodation uses in the precinct. While the Council recognises the role of the precinct as providing entertainment, it also points to an emerging role of this part of Commercial Road in providing such uses; uses that are also encouraged by policy for a Principal Activity Centre.
4. Local planning policy seeks to strike a balance between the potentially conflicting entertainment and residential land uses.[6] Strategies principally focus on discouraging a predominance of restaurants and licensed venues at any one location. Local policy seeks to balance Chapel Street's role as a regional entertainment destination with retail and other uses in order to protect the amenity of surrounding residential areas.[7] The main applicable policy instrument that draws these threads together is Clause 22.10 of the Planning Scheme - the local policy for licensed premises.

1. A range of objectives and policy are set out under Clause 22.10. The objectives restate essentially that which I have set out earlier about balancing use with amenity impacts. The objectives are:

To effectively manage the amenity conflicts between licensed premises and other uses.

To manage the impacts of licensed premises on the diversity of uses and economic viability of activity centres.

To encourage daytime uses and active frontages within activity centres.

To provide reasonable commercial opportunities for the trading of licensed premises.

1. While there are a range of policy considerations, those most relevant to this matter are:

The operation of licensed premises should have no unreasonable impact on the amenity of surrounding uses, in relation to noise, hours of operation and car parking demand.

Noise emissions from licensed premises should comply with the standards specified in the State Environment Protection Policies.

On-site noise attenuation measures be implemented where amenity impacts on surrounding uses may result from licensed premises.

The location of the licensed premises, its use, nature of surrounding uses and hours of operation, its zoning and the zoning of surrounding land be considered in the determination of the hours of operation of the licensed premises.

The preferred location for trading after 11:00pm is in principal and major activity centres, subject to compliance with all other aspects of this policy.

Trading after 11:00pm is discouraged for licensed premises adjacent to a residential zone/use unless the responsible authority is satisfied that the use will not adversely affect the amenity of the area.

Licensed premises should not be concentrated to the extent that there is an adverse cumulative effect on the area.

Licensed premises should be located so as to discourage patrons parking in a Residential 1 Zone.

Licensed premises should operate in a manner that provides for the safety of patrons, the general public and nearby owners and occupiers of land.

1. The above local policy requirements are not a set of rules. They provide guidance in achieving certain planning outcomes, principal amongst them strategic, orderly planning. In having regard to these policies and the site's context, it is my finding that at first instance, the proposed intensification of the venue's operations is generally consistent with such policy objectives.
2. With respect to the venue's location, it is first and foremost located in a Principal Activity Centre, where policy directs venues that wish to trade after 11pm. While it nevertheless does abut some existing or proposed residential / accommodation uses, it does not abut any Residential 1 Zone. It is bounded by either Business 1 or Business 2 Zones. The level of amenity expectations for users of such accommodation or residents has to be tempered by the likelihood of other uses in such zones. The converse is also true. It is a balancing act but one that must recognise that residential zone amenity is not what is being sought.
3. Council acknowledges that with certain actions taken in line with the recommendations of the acoustic assessment, music noise will not be an issue for this venue. Effectively this dispenses with this as an issue of impact to neighbourhood amenity.
4. Council is also concerned about patron noise from the venue's internal courtyard affecting the Quest Apartments. For reasons that I will set out later in these reasons, I am satisfied that this is not an issue that warrants refusal of the amendments.
5. As to issues of patron impacts on neighbourhood amenity when arriving or departing the venue, I note that the site is favourably located to two large public car parks, one of which is but for one small area, not abutting any ground level residential use.
6. There is public transport generally available, albeit it will be limited over some periods, to assist in the dispersal of patrons. A safe taxi rank is also near the venue, but away from residential areas.
7. As I discuss in some more detail later, patrons leaving the venue for another will gravitate to Chapel Street (or the adjoining Market Hotel) without having to pass through residential areas.
8. All these factors lead toward a favourable consideration of the application for amended conditions. Indeed much of the Council's submission does not dispute the location and the manner in which the venue currently operates. There remains however the factor of cumulative impact to amenity, which is central to the Council's reasons for refusal and to which I will now turn.

1. As has been set out earlier, local policy and Clause 52.27 make reference to, and require consideration of the cumulative impact on neighbourhood from licensed venues, their hours of operation and their patron numbers. Mr Bryant refers to the Swancom decision[8] and distinguishes this venue's setting from that of the subject site under that proceeding.
2. I have had regard to the Swancom decision. It provides a useful summary of where 'things are at' in respect to the planning assessment of licensed venues. Amongst other things, the tribunal in Swancom highlight the lack of benchmarks or other guidance in assessing what is or is not an acceptable 'cumulative impact'.[9] Through a consideration of policy, various government reports and social planning evidence, that tribunal prepared its own assessment methodology.[10] I will not repeat it here. There is however a convenient summary, which states:

...the three key considerations are the density of licensed premises in an area, the mix and type of licensed premises, and existing amenity levels. The level of detail of the assessment of cumulative impact on amenity should be proportionate to the level of concern raised by these considerations. For many applications, an initial review of these three considerations will lead to a straightforward outcome that cumulative impact is not of significant concern for that application. There will however be other cases where the location of the licensed premises, by reference to these three considerations, clearly triggers the need for a more detailed assessment.[11]

1. Having reflected on the detail of the Swancom reasons, and in the absence of any other guidance on benchmarks of acceptability, I find the three key considerations set out above to be a useful framework on which to consider this matter. Accordingly I have undertaken a review of the cumulative impacts in line with the key considerations of:
   • the density (or number), mix and type of licensed premises in the area; and
   • existing amenity levels;

in conjunction with a consideration of how the changes to the planning permit conditions may then add or not add to the potential for unacceptable amenity impact.

1. The Council's submissions highlight the number of bars and nightclubs in proximity to Heavens Door. An incomplete summary of these is set out in the table below, along with their licensed trading hours and maximum patron numbers (whether by licence or permit) where available. I say incomplete, as my attention was also drawn to a number of licensed restaurants in the vicinity of the venue for which no data has been provided.[12] In any event, I consider the nature of these restaurants to be sufficiently different to those of bars and nightclubs to be categorised separately in respect to cumulative impact issues.

Hours (excluding ANZAC Day & Good Friday)[13]

Bistro lounge, Cocktail lounge and public bar - Mon to Sun: 7am to 3am.

Remaining areas: Sun 7am to 12 midnight; Mon to Sat 7am to 11pm.

[In practice a 24 hr venue from 7am Thur to 7am Sun]

1. In this summary I have not included the proposed bar (tavern), café or restaurant for the hotel on the Bob Jane site. The operations of restaurants, café's and bars within a residential hotel are, in my view, quite distinct from that of a nightclub or stand alone bar/tavern/drinking venue. While the general public can frequent such venues within a residential hotel, their primary function is to service hotel guests. It is reasonable to less boisterous and more socially acceptable behaviour in such venues. Further, in being guests of the hotel, at nights end, patrons will generally return to their rooms and not spill out onto the street.
2. Further, while the patron numbers for Blue Salt, Heaven@151 and Priscilla's@153 are not available, the following facts are relevant. All these venues are of a similar size to Heavens Door. One would not expect the same level of patron numbers as the Exchange and Market hotels. Instead their patronage will be more akin to Heavens Door.
3. Heaven@151 is a restaurant, being required under the conditions of its liquor licence to provide seating and tables for 75% of patrons. The playing of live or recorded music is not permitted at this venue except under certain occasional circumstances. The type of patronage and activity associated with this venue will be different to that of Heaven Door and other bars and nightclubs. As I have set out earlier, I would expect that its influence on cumulative impacts, particularly in the later hours is not substantive in this matter.
4. In the Swancom reasons evidence was discussed that vertical bars, where patrons do little more than stand and drink, are a very high risk for late night drunkenness and anti-social behaviour by patrons. In this location, only two such venues are potentially present, these being the Market and Exchange hotels. Even then, there is some evidence that the Market Hotel provides, as times various other forms of entertainment. No evidence was advanced by the Council however that either of these venues are significant sources of such adverse impacts.
5. Mr Frewin's evidence is that Heavens Door operates not only as a bar but provides for dancing, live music and other entertainment, such as Drag Queen shows. It is not, in simple terms, a vertical bar, where the main objective is to drink. Such a distinction in the type of bar and activity is a relevant factor in considering the mix and type of venues in the area and the potential for cumulative impact.

1. Commentary from both parties about the existing amenity conditions highlighted that the main source of complaints about noise and patron behaviour arose from the now closed Evolutions Nightclub. Mr Frewin's evidence as to the generally low level of complaints about his venue was not challenged, nor was any evidence or submissions made by Council specifically against Heavens Door operations from the recent past. Past issues and complaints recorded against this venue (from 2005 to 2007) have been few in number. They arose largely from queuing conflicts and noise complaints from the adjoining Quest Apartments.[14] These are said by Mr Frewin to have been resolved. Such statements were not challenged by the Council.
2. As was noted in Swancom, a tribunal should be cautious in drawing conclusions from site inspections.[15] Inspections should be used to understand the evidence and issues raised in the proceeding. Unexpected or new issues arising from the inspection on which the Tribunal intends to rely on in its decision should be aired with the parties so that they may be afforded the opportunity to respond.
3. My unaccompanied inspection on the Saturday evening was undertaken with the express purpose of observing the venue's operation and the activity of patrons around the site. My observations are that there was no behaviour or activity that is askance with that described in the proceedings. While patrons were arriving, queuing or leaving the venue, they did so in a manner that was not detrimental to the amenity of the area nor adjoining residences in side streets. In fact it is my observation that the 'vibe' of Commercial Street is of a lower intensity than that I observed along Chapel Street over the same period. I also observed that there was ample parking to be found in the two public car parks in proximity to the venue.
4. My other observation is that the recommended inclusion of air lock doors to reduce escape of music noise is supported by the site inspection. The constant opening of the door for arriving or departing patrons is a potential source of annoyance and amenity impact to the accommodation and proposed residential uses across the road from the venue. For similar reasons the decision by Heavenly Ten not to pursue a later closing time for the front bi-fold doors is sensible.

The cumulative impacts from increased patron numbers

1. The Council contends that the increase in patron numbers, being almost a doubling in size 'incrementally intensifies this [entertainment] strip to the detriment of the future residents in the area'.[16] It is argued that the new developments adjacent the site in combination with other existing residential land uses (as I have set out earlier) and residential developments in Grattan Street result in this area emerging as one where residential use is intensifying. Council considers that any further intensification of entertainment venues is better placed along the Chapel Street spine.
2. In essence it is suggested that in the balance between Principal Activity Centre policy, residential use is predominating over entertainment uses.
3. In light of this emerging character, the Council argues that having an additional 90 patrons attend the venue is cause for concern due to:
   • Increased queuing in the street generating noise and possible behavioural issues (while acknowledging that the venue is generally well managed);
   • An additional 90 patrons will circulate in the local street network when arriving or departing the venue, generating noise and other impacts to neighbours; and
   • Additional patrons in the venue's rear courtyard will increase patron noise impacts to the adjoining Quest Apartments.
4. Mr Frewin contends that by allowing an increase in numbers, patron queuing will be reduced. There is some merit to this argument.
5. I am told that currently queuing is undertaken with the permission of the Council (a separate queuing permit has been issued under the Stonnington Footpath Trading Code). This queuing is managed by a licensed crowd controller at the front of the premises. No alcohol is allowed to be consumed while patrons are in the queue. Under cross examination Mr Frewin highlighted that queuing occurred from around 11pm to 2am, with queue sizes stretching for up to 80 to 100 people.
6. It occurs to me that in issuing the queuing permits, the Council does not have a problem with this activity provided it is managed appropriately. As set out earlier, Mr Frewin's statement that previous issues about queuing have been resolved are unchallenged. It seems also that by allowing more patrons into the venue would assist in reducing the number of patrons actually queuing. This is a venue which caters for a particular patronage, much of which is drawn from the local area, not one that is attracting swags of uncontrollable numbers. If, by all other factors the number of patrons inside the venue does not result in adverse amenity impacts, then the reduction in queue length or time spent in a queue would seem a sensible outcome.

1. Similar to the increase in patron numbers, the Council argues that the changes in early hours trading will also be a potential source of increased amenity impact. Council raises concerns that in conjunction with the increased patron numbers the longer hours of patronage in the venue's rear courtyard will be a source of noise impact to the Quest Apartments. It is submitted that later trading times will also mean more patrons arriving or departing the venue and circulating within the adjoining street network at a later times.
2. The Council also notes that under Victoria's Alcohol Action Plan 2008-2013,[17] a 1a.m. freeze exists on new licences in response to various data including the prevalence of alcohol fuelled violence after 1am. While the Council acknowledges that this application was made before this freeze and so is exempt from it, it submits that significant weight should be given to this government policy in this planning application.
3. Mr Frewin gave evidence that many of his patrons are involved in the liquor and hospitality industry and so cannot frequent his venue until late in the night. The current closing times are said to be curtailing his patron's enjoyment of the venue because, put simply, it closes too soon after they get there after work. Other patrons he describes simply as 'night owls' who want to enjoy a late night out. Patrons who leave his venue often then gravitate to the adjoining Market Hotel, with its 24 hours operation.
4. Mr Frewin believe that the Victoria Police did not object to the application for the extension of hours after it was amended from 7am to 5am.
5. The Council officer's report is contrary to this belief. I note that while Victoria Police had previously objected they did not attend the hearing to further this objection. Further Mr Gul did not challenge this evidence nor make any submissions that the previously recorded 'vehement opposition' of the Victoria Police continued.
6. Other, nearby venues have a range of closing times. The restaurants generally close earlier than Heavens Door does now, resulting in a dispersal of their respective patrons early in the piece. Priscilla's and the Exchange Hotel have the same current closing time as Heavens Door on various days, particularly the peak weekend time. From the evidence I have previously considered as to complaints and the current amenity impacts, it would appear that this coincidental closing has not caused nuisances of a scale so great as to warrant bringing it to my attention or to use it as reasons for refusing the extension in hours. Instead Council's grounds seem to be more based on perceptions of what may occur and a hesitancy to extend hours under the current licensing freeze.

1. In addition to various policies and requirements under Clause 52.27, the Council has also referred to the Chapel Vision Structure Plan[18] in these proceedings. Amongst other matters that are dealt with in this structure, the vibrancy of Chapel Street as an entertainment destination is seen as a positive for the precinct. Its continuation is supported, albeit on the basis that adverse amenity impacts can be managed. Of particular interest is that the structure plan expresses a vision to consolidate the northern end of Chapel street, which includes the area of Heavens Door, to have a boutique fashion and entertainment focus. It would seem that to do so requires some flexibility to ensure the viability of such venues.
2. I recognise that there has been of more recent times a focus on alcohol fuelled street violence and other misbehaviour. Answers are being sought to address and curb such behaviour. Indeed mention has been made in these proceedings of the current embargo on extending hours under the liquor licensing regime.
3. The various objectives under Clause 52.27, State and Local policies seek to achieve a balance between a mix of uses and the achieving appropriate levels of amenity. It is improtant to recognise that not every application for an extension in hours or increase in patron numbers will upset this balancing and result in an unacceptable loss in amenity. Venue types, mix, numbers/density and existing amenity conditions are relevant and need to be weighed up. In considering these matters in this application I have found that the Council's concerns about adverse amenity impacts are not supported for a number of reasons.
4. It follows from my findings that the variations sought in respect to patron numbers and extension of operating hours is acceptable on planning grounds and I will direct the amendment of the planning permit accordingly.

[1] Internal rearrangement of the venue is also proposed, for which plans were included in the application. However planning permission is not required for these internal works under the Business 1 Zoning or Heritage Overlay controls applicable to this site.

[2] I am aware of the view expressed in other tribunal proceedings that arguably trigger a permit trigger may now exist under Clause 52.27 by way of an increase in patron numbers. However Council did not raise or pursue this as an issue. In nay event, the issue of increased patron numbers arises from a consideration of various decision guidelines and policies as et out in these reasons.

[4] Clause 21.01 of the Planning Scheme.

[8] Swancom Pty Ltd v Yarra CC (includes summary) (Red Dot) [2009] VCAT 923 (10 June 2009).

[9] Ibid at [53] to [56] and again at [68].

[12] Two other venues, 'Love Machine' and '161 High Street' are referred to be Mr Frewin. The former is a bar located on Malvern Road, that is east of the Chapel Street/ Commercial Road intersection. The other is in High street. Both I find to be sufficiently removed from this precinct to be not considered further.