Victorian Civil and Administrative Tribunal|2011-06-27|Before: Mr J

Hotel Brighton v Bayside CC & Ors [2011] VCAT 1207 (27 June 2011)

Section 79 of the Planning & Environment Act 1987; Bayside Planning Scheme; Business 1 Zone; Licensed Premises; Reallocation of Patrons Within the Premises; Top Floor Function Rooms; Off-Site Impacts; Amenity Impacts.

Hotel Brighton v Bayside CC & Ors [2011] VCAT 1207

In permit application no. 2010/368/1, the decision of the Responsible Authority is affirmed.
A permit is not granted and no permit is to be issued.

Mr D Scally, solicitor, Best Hooper. Expert evidence was called from Mr L Elliot, town planner of Urbis; Mr R Burton, acoustic engineer of Burton Acoustics; Mr T Zalewski of Global Public Safety; and Mr J Brownlie, traffic engineer of Cardno Grogan Richards.

Mr G Tobin, solicitor of Hardwood Andrews for 11 parties cited in his submission. Mr R Greenway, Mrs R Krass, Mr D Raby, Mrs E Potter, Mr Allat and Mr E Greenway also presented submissions. Written submissions by Mr T Greenway and Mr D Miller were tendered.

Application under Section 79 of the Planning and Environment Act 1987 (deemed refusal).

The two storey hotel with a basement occupies the south-east corner of Bay and St Andrews Streets. The liquor license allows 550 persons with 350 on the ground floor and 200 on the first floor. Patrons do not use the first floor.

Re-allocation of patrons to allow 350 on the first floor and 200 on the ground floor. Change in license hours to include 7am commencement on Sunday. Increase the area of the licensed premises at the first floor. Buildings and works including a ground floor courtyard, two first floor decks and bar/function rooms, revised toilet and storage facilities & changes to window and door openings.

Clauses 10, 11, 13, 17, 21, 22.02, 52.06, 52.27, 63 & 65.

Clause 34.01 for buildings and works. Clause 52.06 to reduce car parking. Clause 52.27 for a different liquor license, changed hours and increased floor area. Clause 63.

2 June 2011 including an inspection of the Hotel and properties at Nos. 2/123 & 1/125 St Andrews Street. The area was revisited by the Tribunal on Saturday 11 June at around 11.30pm. The exterior of the Waterside Hotel was also inspected on the same evening around midnight.

Hotel Brighton seeks approval to undertake works and vary its liquor license as part of an upgrade and renovation of the premises on the corner of Bay Street and St Andrews Street. It submitted a planning permit application to the Bayside City Council. As the Council failed to determine the application within the prescribed time, Hotel Brighton lodged this proceeding with the Tribunal seeking the grant of a permit.
Those opposing the proposal fear a substantial increase in late-night activity at and around the Hotel with negative impacts upon the amenity of the area in terms of noise and alcohol-related anti-social behaviour. They are also concerned about the amount of on-street parking, in established residential areas, that would be required by increased patronage of the Hotel.
All of the grounds raised in opposition to the permit application are challenged by the Applicant including through expert evidence. It submitted the proposal contemplates renovation of the Hotel to improve the quality of the Hotel offer in an appropriate location given Bay Street is a major activity centre where entertainment and intensive development are encouraged. Importantly, the proposal does not seek to increase patrons above the already permitted limit under the liquor license and, with only internal works, the first floor could be refurbished for use within the current licensed area without any planning permit. The proposal is accompanied by a security management plan, and agreements to restrictions including a 1am lock-out/in, closure of the St Andrews Street door at 11pm, and the playing of background music only.
The Tribunal must decide whether the grant a planning permit and, if so, what conditions should apply.

Much of the debate focuses on the potential increase in patrons the proposal would give rise to. The Hotel operates under existing use rights. No change is proposed to the maximum patron limit of 550 but the premises currently operates to about half that number with the public only using the ground level.[2] The proposal involves patron numbers being redistributed across the two floors, a modest increase in licensed area, and a variation in license hours including a 2am limit (rather than 3am) and Sunday opening at 7am for the ground floor (currently 10am), and varied hours between the two levels of the premises. The works include the addition of two deck areas at the upper level of the building, the larger of which is to the rear.
An hotel has historically operated on the review site, in various formats, and is appropriate in a major activity centre in a Business 1 Zone. Refurbishing Hotel Brighton with improved facilities for patrons and to cater for more functions is appropriate in principle in this location. Thus, notions of increased in floor area of the licensed premises and adjustments in the liquor license are acceptable in principle.
The key issues in dispute between the parties arise from the proximity of dwellings to the Hotel including dwellings in construction[3]. This setting is typical of many strip shopping centres where dwellings abut and are in the immediate vicinity of commercial uses such as a hotel.
Major activity centres are locations where more active land uses and more dwellings are encouraged in and near to the centre by State and local planning policies. Consequently existing and potentially more residents will be exposed to the activities that can occur in an activity centre. Those activities must not be assumed to be all negative. Residents close to these centres can enjoy the many benefits of living close to improved and more diverse commercial services and facilities.
However, there can be negative impacts. Licensed premises are one of the most contentious land uses even though hotels are part and parcel of activity centres and have been since shopping strips were established. A local pub is frequently regarded as an asset. The issues more frequently arise when the premises "morphs" or become something more with late night activity and a focus on a young clientele. In this case, Hotel Brighton was formerly Mitzy's nightclub, where there is evidence before me of considerable nuisance off-site.
In general, the larger the venue and the longer the trading hours, the greater the potential for general amenity impacts.[4] A well-managed venue can usually contain noise and behaviour within the premises. Problems typically arise from patron activity around a venue and sometimes in a wider area. That behaviour can be linked to where patrons access public transport (including taxis) and park cars. When patrons are waiting for taxis and return to their vehicles late at night, anti-social behaviour, noise, litter and other problems can arise. That can be regarded as unreasonable by residents in terms of direct impacts. Some also consider it unfair insofar as users of the activity centre park in areas that are wholly residential and zoned for that purpose. In the current case, residents are plainly aware of their proximity to the major activity centre and have based their amenity expectations on that fact. However, existing residents are entitled to a reasonable level of amenity as agreed between parties in this case.
Mindful of the above, the key issues for my determination are:
- Impacts of the proposal on the amenity of residential properties in the vicinity of the review site.
- Whether a reduction in parking should be allowed for the increased floor area.
Questions of cumulative impacts were not advanced as arguments against the proposal in this case. There are a number of licensed premises in the vicinity but only one that was referred to as providing a cause for concern and potential contributor to noise and nuisance was Mother's Milk opposite the review site in Bay Street. I understand that this is currently the subject of a permit application.

It is common ground that Clause 52.27 is triggered by this application and, relying on the findings of the Tribunal in Swancom[5], the permit trigger applies to the whole of the use of the land to sell or consume alcohol.
Given the close proximity of dwellings to the review site, the potential for unreasonable off-site impacts can arise in terms of noise from the premises including the proposed decks, patron moving to and from the site, and patron behaviour such as while queuing or catching taxis.
There are submissions with respect to existing and past problems in the vicinity of the Hotel although it is plain that not all of the negative impacts can be attributed to the Hotel. While there were submissions and anecdotes about ongoing problems, these seem much reduced when contrasted with the historical situation.
I have expert evidence before me with respect to noise and patron management/security. The acoustic assessment provided recommendations to ensure compliance with SEPPN-2 and sleep disturbance criteria for several existing dwellings in St Andrews Street. Those works included southern and western wall heights of at least 4 metres to the decks, nominated glazing, wall lining and eave treatments. The security/patron management evidence provided a detailed management plan including proposals for queuing, a lock out after 1am, and crowd controllers managing queues and behaviour, and roving security patrols. Queuing would be directed along St Andrews Street toward Bay Street. A number of other recommendations were addressed in evidence and the draft security/patron management plan. Mr Elliot's evidence proposed the St Andrews Street entry door (that would provide for queuing) be closed at 11pm for any entry or exit.
In my view, the site's context is sensitive with respect to late night activity given the proximity of dwellings within a residential zone. There are also new dwellings in construction within the business zone opposite the site.
My second site visit confirmed submissions that the area is relatively quiet into the night. Aside from some patrons leaving the cinema complex and some people and car movement, the most apparent noise was from Mother's Milk. The Hotel was packing up and surrounding footpaths being swept around 11.30pm. The contrast with the Waterside was readily apparent. On the same night, around midnight, there was a queue of young people that I estimate had more than 50 people (appearing orderly when I observed it) waiting to access the premises. Others were milling around the street and street corner including people smoking.
These observations illustrate and confirm points made in submissions and evidence with respect to the existing setting of the review site. I was encouraged to view the Waterside that is operated by the same proponent and has a similar customer profile as sought for the upper level of the Hotel Brighton. It is not directly comparable in terms of whether it serves as a destination in its own right or a place where people go to and then move on to other locations or premises, the latter being the likely situation of the Brighton Hotel proposal I was advised in submissions. In addition, it is in the city centre where there are many other licensed premises, it has a license for many more patrons and it operates to much later hours. However, I was advised that the proposal for the Brighton Hotel also intends to attract younger persons later into the evening than currently occurs.
The proponent has appropriately sought expert advice to plan how to mitigate the impacts of noise emissions and endeavour to manage patron activity off-site. However, I am concerned about several key matters:
- The acoustic assessment did not take into account the new dwellings in construction opposite the site as Mr Burton was not advised of their approval. This will change the works required to ensure the deck/s meet SEPNN-2 given the upper levels of No. 286 Bay Street would be higher than the proposed walls referred to in evidence. There may be consequences in terms of buildings and works, as Mr Burton noted when suggesting how the presence of the three and four level building opposite might be addressed. I also consider there may be implications with respect to other aspects of the Hotel's operations of which I am uncertain.
- The lack of opportunities for multiple taxis to park on the street around the site causing this activity to be expected to occur, in part, in St Andrews Street which is wider than Bay Street.
- The potential for long queues in St Andrews Street before 11pm and then into Bay Street after 11pm. Again, the former has the greater potential for noise intrusion to dwellings opposite and close-by.
- Patron behaviour beyond the geographic influence of crowd controllers/security given patrons would be likely to rely on parking in residential areas.
With the large number of people proposed at the upper level of the Hotel, and hours of operation until 2am, I consider there is potential for conflict with, and unreasonable impacts upon, the nearby residential uses. There will clearly be audible noise. I do not consider sleep disturbance criteria are likely to be sufficient to avoid a level of nuisance. The evidence has not overcome the concerns and I have real doubts that two large external decks are acceptable in this setting. I do not adopt Mr Scally's suggestion of a revised acoustic assessment by way of a permit condition. There is no certainty as to what the outcome would be and what consequences otherwise need to be taken into account.

Submissions varied as to whether permission is required to reduce car parking under the provisions of Clause 52.06. Approaches included:
- By the Applicant through Mr Brownlie's evidence that the proposal will reduce the available bar and lounge floor area meaning Clause 52.06 is not triggered. This calculation was on the basis that the first floor deck is part of the floor area.
- By the assessing Council offer that the whole first floor area should be the subject of assessment because it is not currently available to the public as a bar or lounge.
- By Mr Rantino and Mr Tobin that the increase in floor area at the first floor (ie. additional red line area) should be the basis for assessment, being an area of 79 square metres.
Clause 52.06 refers to existing uses stating that "Where the floor area occupied by an existing use is increased, the parking requirement only applies to the floor area of any extension of the use or site area provided the existing number of spaces is not reduced". The term "floor area" is not defined in Clause 72. On one view, the Hotel appears to have exclusive occupancy of the whole site and thus it might be argued that there is no change to the area occupied by the existing use. However, the license area does not apply to the whole of the upper floor. It is proposed to be expanded by 79 square metres to allow the additional floor area for the Hotel's use. I accept the approach adopted in Open Door Public Company relied upon by Mr Rantino that is, the Clause is relevant with respect to the additional 79 square metres. I prefer this interpretation to that advanced by Mr Scally through Mr Brownlie's evidence.
Additional parking demands will have impacts given there is no potential for on-site parking. On one view, the additional 79 square metres is not substantial and the associated off-site parking demands would be relatively modest (although not without any consequence) when compared with the parking demands if the existing floor area was fully utilised at 550 patrons.
However, as already indicated, the Hotel cannot operate at this occupancy in its current format and state. Consequently, parking demand is much lower than that associated with a potential capacity of 550 patrons. It is therefore self-evident that the proposal would, in real terms, significantly increase parking demands beyond those experienced today. I consider this to be a relevant matter within the ambit of my discretion.
In the setting of this activity centre, some overspill into residential areas will be inevitable. Parking is strained for a series of reasons including the many other premises within the activity centre (eg. adjacent cinemas) that rely on off-site parking. In real terms, based on the expert evidence before me, 93-98 extra spaces would be needed compared with current usage at busy times. This is a substantial amount. Even though there may be a pool of car spaces available in off-street car parks within the activity centre, I have no doubt that overspill into the residential area would occur unless very restrictive measures were taken to preclude this by the Council (such as permit zones). The overflow is likely to spread much further into residential areas than occurs today giving rise to potential amenity impacts upon a greater number of residents. I consider this impact is likely to be problematic when taking into account the number of patrons and hours of operation.
In my view, a permit application such as this would be assisted by a parking/traffic management plan that can proactively address issues surrounding the large number of patrons on the premises, potentially drawn from a broad catchment. This might include, for example, arrangements for taxis and techniques to encourage patrons to access off-street car parking in the activity centre. This has not been done. I do not consider that it is appropriate to defer to a permit condition in the circumstances of this case as I am uncertain how/if the concerns can be overcome.
In conclusion, I am not satisfied that the objectives of Clause 52.06 are met by the proposal. I consider the proposal would adversely affect the amenity of the locality.

For the above reasons, I will not allow the Application.

[1] In reaching a decision I have considered all submissions, expert evidence, lay evidence and other material tendered and filed by the parties. I do not, however, recite all of that material in these reasons.

[2] Referred to in Mr Brownlie's evidence and Mr Zalweski's evidence.

[3] No. 286 Bay Street that I understand has several levels of dwellings including units directly opposite the Hotel in St Andrews Street with terraces/balconies and habitable room windows facing the Brighton Hotel.

[4] Newmarket Property Group v Port Phillip CC [2006] VCAT 153 at paragraph 47

[5] Swancom Pty Ltd T/as Corner Hotel v Yarra CC [2009] VCAT 923 at paragraph 42.

Hotel Brighton v Bayside CC & Ors [2011] VCAT 1207

At a glance

Court

Decision date

Before

Source

Judgment (22 paragraphs)

Hotel Brighton v Bayside CC & Ors [2011] VCAT 1207 (27 June 2011)

Parties