The decision of the responsible authority is set aside. A permit is granted and directed to be issued for the land at 84 Barkers Road, Hawthorn.

1. The sale and consumption of liquor on the licensed premises for all areas inside the existing Hotel is limited to the following times:

Good Friday Between 12 noon and 1am the following morning

Anzac Day (not on a Sunday) Between 12 noon and 1am the following morning

On any other day Between 7am and 1am the following morning except for the morning of Good Friday

2. Before the use commences a Management Plan for the total operation and use of the hotel, must be developed in conjunction with and to the satisfaction of the Responsible Authority and in consultation with a representative from the Victoria Police, to address issues such as noise emitted from the premises, control of patrons entering and leaving the premises, car parking issues, procedures for complaints to the Hotel and any other matter that the Responsible Authority considers relevant. Once developed to the satisfaction of the Responsible Authority, this Management Plan will be endorsed and will form part of this permit and must be implemented to the satisfaction of the Responsible Authority.

3. The amenity of the area must not be adversely affected by the use of the premises in accordance with the times authorised by this permit as a result of:

(a) Transport of materials, goods or commodities to or from the land.

(b) Appearance of any building, works, stored goods or materials.

(c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

4. This Permit will expire if the use is not started within two (2) years of the date of this Permit.

The Responsible Authority may extend the time referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

Mr C Wren of Counsel instructed by Phillip G Spark & Associates appeared on behalf of the Applicant for Review.

Ms K Gilbert, town planner, appeared on behalf of the Responsible Authority.

Mr A Martin, Ms R Rudduck, Ms B Hastings, Mr M Stranks, Ms K Nitsopolous, Mr F

Alford, Mr S Di Lorenzo, Ms L Date, Mr R Giola, Mr B Almao, Mr G and Mrs H

1. This is an Application under Section 79 of the Planning and Environment Act 1987 ("The Act") brought by Honey Pot nominees Pty Ltd to review the failure of the City of Boroondarra ("The Council") to grant a permit within the prescribed time.

2. At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, Mr Wren requested the Tribunal to amend the application for permit by;

(a) substituting the name Honey Pot Nominees Pty Ltd for Cloverdale Nominees Pty Ltd as the permit applicant

(b) amending the proposed extended hours to 1.00 am for the public bar and bistro to correspond with the existing license for the lounge bar.

3. Notice of the intention to seek an amendment to the application had been forwarded to all parties under the cover of a letter dated 16 April, 2002.

4. There was no objection to the amendment of the application and being also of the opinion that such amendment was appropriate, I made the amendment in the manner requested.

5. It is proposed to extend the trading hours for part of a hotel known as the Bee Hive Hotel, to 1.00 am. The extended trading hours are sought to apply to the public bar and the bistro sections of the hotel.

6. The review site is located on the south east corner of Barkers Road and Church Street, Hawthorn. A double storey hotel constructed in circa 1851 is located on the site and still operates as a hotel.

7. The hotel comprises a public bar which fronts and is accessed from Barkers Road, a lounge bar, bistro, bottle shop and TAB which generally front Church Street, and ancillary facilities (toilets, cool room, kitchen liquor store). A car park is located to the rear of the site accessed via a right of way which runs off Barkers Road. Pursuant to a permit (no. BOR 96/285) part of the car park is authorised to be used intermittently as a beer garden. I was advised that a marquee had been erected in this area but that this has now been removed.

8. I was also advised that a number of permits have been issued for the hotel over the years and that pursuant to Liquor License No. 31900889, the lounge area of the hotel is authorised to operate during the following times;

Anzac Day (not a Sunday) Between 12 noon and 1 am the following day

On any other day Between 7 am and 1 am the following morning except for the morning of Good Friday

9. The balance of the hotel is authorised to operate during the following hours;

Anzac Day (not a Sunday) Between 12 noon and midnight

10. With respect to the surrounding land uses, Ms Gilbert provided the following useful description which I adopt;

"North: Across Barkers Road are residential properties fronting onto both Barkers Road and High Street South. On the north-east corner of Barkers Road and High Street South is a double storey retail premises and immediately to the north of this premises is a Dental Surgery and Counselling Service. On the north-western corner of Barkers Road and High Street South is a large tram depot which is still in use.

South: To the south of the site along the eastern side of Church Street are commercial properties which generally included offices and showrooms. Further to the south near Grove Road these uses include a Real Estate Agent, an Op Shop, a Kitchen Showroom and a Veterinary Surgery.

East: Immediately to the east of the site is a car park associated with the hotel, which currently shows 16 car spaces (although this is the subject of another Planning Application which is yet to be determined). This car park abuts the residential property at No.90 High Street. To the south-east of the site are residential properties on the western side of Colvin Grove. All of these properties have access to the rear via the laneway which runs between the Hotel and the car park. Further east the area is solely residential.

West: On the south-western corner of Church Street and Barkers Road is an Ampol Service Station, with a Leadlight Studio and a Pizza shop beyond it to the west. Further south along Church Street and on the western side of the road is a Hairdresser, a cafe, offices and associated on-site car parking and a 7-Eleven store. Residential properties abut these sites to the west."

11. The review site is zoned Business 2, the purpose of which is in addition to implementing the State Planning Policy Framework and the Local Planning Policy Framework, to encourage the development of offices and associated commercial uses.

12. A hotel is a section 2, permit required use in the zone, however the hotel enjoys existing use rights under s. 6(3) of the Act and Clause 63 of the Planning Scheme.

13. A permit is required pursuant to Clause 52.27 to use land to sell or consume liquor if the hours of trading allowed under any licence are to be extended.

14. The site is affected by a Heritage Overlay (HO220), however there are no works proposed as part of this application and no permit is required under the Overlay.

15. General decision guidelines are at Clause 65 of the Scheme. Before deciding on an application or approval of a plan, the responsible authority must consider, as appropriate:

* The matters set out in Section 60 of the Act.

* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* The purpose of the zone, overlay or other provision.

* Any matter required to be considered in the zone, overlay or other provision.

* Factors likely to cause or contribute to land degradation, salinity or reduce water quality.

* Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.

* The extent and character of native vegetation and the likelihood of its destruction.

* Whether native vegetation is to be or can be protected, planted or allowed to regenerate.

* The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.

16. With respect to the State and Local Planning Policy Frameworks, the relevant clauses are;

17. The planning permit application was received by the Council in November, 2001 and at that time, the application proposed an extension of trading hours to 3 am. Notice of the application was required to be given and 57 objections and three petitions opposing the application were received. Ms Gilbert provided me with a comprehensive summary of the main grounds raised by objectors and it is not necessary for me to repeat those in detail here. In general terms the objections raised concerns regarding the existing use of the hotel and in particular the impact of unruly patron behaviour on the amenity of the surrounding residential area, excessive noise emanating from the hotel and car parking in residential streets.

18. A consultation meeting which was scheduled in December, 2001 was cancelled at the request of the applicant and an application to review the Council's failure to determine the application within the prescribed time was commenced.

19. The Council subsequently resolved that had an application for review not been commenced it would have refused the application on the following grounds;

(a) The proposal will result in in an unreasonable loss of amenity for the surrounding residents due to noise, car parking activity and patron activity.

(b) The proposed use is not sensitive to the surrounding residential areas due to the nature of the use and the hours proposed.

20. At the review hearing the Council and objectors tabled and read from written submissions and supplemented these with oral argument.

21. Mr Wren made an oral submission and called Mr Robert Burton, acoustic consultant of Burton Acoustic Group, and Mr Jason Walsh, traffic engineer of Grogan Richards Pty Ltd, to give evidence. Both witnesses presented written reports and gave oral evidence and were made available for cross examination.

22. Various plans, photographs and other documents were tendered, either as attachments to written submissions and reports, or as separate items. The evidence submitted in documentary form, together with the written submissions, have been retained on the Tribunal's file.

24. Ms Gilbert acknowledged that the amended application represented a substantial improvement on the original proposal to extend trading hours to 3am, but submitted that any increase in trading hours would have an adverse affect on the amenity of the surrounding residential area, due to the following factors;

* The hotel is situated at the interface of residential areas to the east, north and south east and it does not enjoy the advantage of being isolated from sensitive uses, a locational characteristic which would be regarded as a prerequisite for extended hours trading.

* While the hotel enjoys existing use rights and its location at this site predates all residents, the operations of the hotel has changed over recent years to the detriment of resident's amenity as a consequence of increased noise, increased patronage and unruly patron behaviour.

* The lack of adequate parking leads to the use of residential streets by patrons. Apart from the disruption to resident parking availability, this also has the affect of transferring the adverse amenity impacts associated with unruly patron behaviour into those residential streets.

* The uncontrolled use of the beer garden has in recent years contributed to adverse amenity impacts on the surrounding residential area.

25. While Ms Gilbert acknowledged that part of the hotel already has a license to operate to 1am, the Council's position on this application was that the current proposal which would extend the 1am trading to other parts of the hotel would exacerbate existing problems being experienced by the residents primarily because such change would contribute to an intensification of the use by encouraging increased patronage into the early hours of the morning.

26. The objectors generally supported the Council's submission and provided me with a summary of their experiences of living within the residential areas surrounding the hotel. A common theme which emerged from the submissions was that the nature of the hotel had changed over recent years as it had sought to attract a different clientele. As a consequence the hotel had changed from a quiet neighbourhood pub which co-existed comfortably with its neighbours to a late night venue which could no longer be regarded as a good neighbour. Specific concerns related to increased car parking in residential streets, unruly patron behaviour and excessive noise. It would appear that the principal areas of concern focussed on the use of the beer garden area to the rear of the hotel, and music noise emanating from the public bar area when kareoke functions are being conducted.

27. The objector's submitted that the proposed increase in trading hours would contribute to an increase in the detrimental amenity impacts they have been experiencing in recent years as the increased hours would lead to increased patronage and a further change or intensification in the nature and operations of the hotel.

28. It was Mr Wren's submission that this application needed to considered in the context that the hotel currently operates to 1 am in accordance with an existing license and that the affect of the proposal is to rationalise the existing operations of the hotel. It was his submission that to allow an additional 1 hour of operation in other parts of the hotel would make no appreciable difference to the use of the hotel. Mr Wren advised me that because the 1 am license applies to only the lounge area, it is normal practice that when the public bar and bistro close, patrons move into the lounge for the final hour.

29. Mr Wren further submitted that the granting of a permit presented the opportunity for the imposition of conditions to better control the activities of the hotel and that such conditions ought to require the preparation of a management plan to address a range of issues associated with the hotel's impact on the surrounding residential area. In this context it was Mr Wren's submission that the granting of a permit would make a contribution to improving the hotel's interface with its neighbours.

30. Mr Wren relied on the evidence of Mr Walsh with respect to car parking issues and Mr Burton with respect to noise emissions. It was Mr Burton's evidence that subject to the implementation of remedial works, noise emissions to the closest residential properties would be below the Noise Limits at 1 am under the relevant State Environment Protection Policies SEPP N-1 and SEPP N-2.

31. The principal issue which requires my consideration in this matter is whether or not a permit ought to be issued to allow a hotel, part of which currently operates to 1 am and part of which operates to 12 midnight, to operate to 1 am over the totality of the premises. In forming my view on this matter it is significant that while the public bar and bistro are currently limited to 12 midnight operation, on the basis of the information presented at the hearing, it is clear that the hotel in effect operates to 1 am by virtue of the fact that patrons are able to move into the lounge area after midnight without any significant disruption to trading patterns.

32. In forming my view on this matter, I accept the submissions of the objectors and the Council and I acknowledge that the existing operations of the hotel are having a detrimental affect on the amenity of the surrounding residential area. The consistency of the submissions which chronicled the impacts of patron behaviour, car parking and noise, was persuasive and they were not disputed by the applicants. In this context I think it is clear that there is a limit to this hotel's capacity to operate on an extended hours basis, primarily as a consequence of its location at the interface of a commercial and residential area. At the present time the hotel is operating to 1 am , but it is doing so in a manner which is largely uncontrolled by permit conditions, and as a consequence there is little basis upon which to assume that the amenity impacts of the hotel's operations are likely to improve under existing regulatory arrangements.

33. In my view the granting of a permit to allow for an extension of 1 hour to the public bar and bistro to coincide with the 1 am license for the lounge, will not increase the hotel's adverse amenity impacts, and as a consequence of the ability to impose suitable permit conditions, represents an opportunity to achieve improvements in the hotel's amenity affects.

34. I have formed the view that the granting of a permit is unlikely to have adverse amenity affects on the basis that I do not think the authorising of 1 am trading in the public bar and the bistro will significantly change or intensify the existing operations of the hotel. While I cannot be absolutely certain that increased patronage will not occur as a result of the granting of a permit, I agree with Mr Walsh's evidence that the change to the trading hours sought in this application would not be sufficient to fundamentally alter the type or nature of the venue. I do think however, that an extension of hours to 3 am would have the affect of changing the nature of the venue and any such proposal would raise issues which, in my view, would make the acceptability of such a proposal extremely doubtful. I am satisfied however that those issues are not present in the context of the limited scope of this application.

35. As I have indicated above, my view on this matter has been influenced by the fact the granting of a permit presents the opportunity to impose suitable conditions, and in particular a condition requiring the preparation of a management plan which, I was advised, is a procedure which has been successfully applied elsewhere.

36. The Council distributed, as it is required to do, a set of draft conditions for my consideration, and I received submissions from the parties on those conditions. A number of the conditions prepared by the Council sought to control the use of the rear beer garden, the use of which is authorised under an earlier permit. These conditions were strongly supported by the objectors but were opposed by Mr Wren on the basis that the conditions seek to control an element of the hotel to which this application does not apply.

37. I agree with Mr Wren's submission to the extent that it is I think inappropriate to seek to control the use of the beer garden by way of permit conditions in the manner suggested by the Council. However, the preparation of a management plan is in my view an essential element of the successful operation of this hotel and of its ability to function with an acceptable degree of harmony with its residential neighbours. It is difficult for me to envisage how a management plan as described by Mr Wren could be prepared for part of the hotel while ignoring other parts such as the beer garden, especially when it is clear that the use of the beer garden in particular has significant potential to detrimentally affect the amenity of neighbouring residents and was in fact the focus of much of the objector's concerns.

38. I think it would be a very poor outcome if the management plan was required to address only those issues associated with the operation of the public bar and the bistro. I am satisfied that a sufficient nexus exists between the permission being sought in this application and the imposition of a permit condition requiring the preparation and implementation of a management plan addressing all relevant aspects of the hotel's operations. In the absence of a management plan of a comprehensive nature, it would be difficult for me to form a view that the granting of a permit could be justified on the basis that it represents an opportunity to achieve improvements in the affects of the hotel's operations on its residential neighbours. In this context I think it is reasonable that the condition requiring the preparation of the management plan makes reference to the need to manage the use and impact of the beer garden.

39. With respect to the works recommended by Mr Burton, I think that these are also matters appropriately dealt with as part of the management plan preparation.

40. I also received submissions about the process for preparing and approving the management plan. In particular, it was submitted that resident representatives ought to form part of a committee to oversee the preparation of a plan. This was opposed by Mr Wren who submitted that it ought to be prepared by the applicant in consultation with the Council and the Victoria Police only, with the Council representing resident views.

41. I agree with Mr Wren with respect to the appropriate representation on the committee. I have formed this view on the basis that it would be my expectation that the Council would initiate appropriate consultation with the local community prior to approving a management plan and that resident input into the form and content of the plan would be available through such a process. Ultimately I think it will be a matter for the Council as to how any consultation will be managed and for the approval of the plan.

42. It follows from the above that the decision of the responsible authority is set aside and it is directed that a permit be issued subject to the conditions included in this order.