1. The decision of the Responsible Authority is set aside.[1]
2. In permit application PL07/1078 a permit is granted and directed to be issued for the land at 69 Swan Street, Richmond. The permit will allow:
   • Use of the land (ground floor only) as a tavern (lounge/bar) with on-premises liquor licence, associated buildings and works including demolition and a waiver of car parking requirements

in accordance with the endorsed plans and subject to the permit conditions set out in the Appendix.

Mr Lloyd Bryant, Barrister. He called written and oral evidence from Mr Geoffrey Barnes, Acoustical Consultant and Mr Robert Steane, Liquor Consultant.

Mr Damien Hancox, Traffic Engineer of TTM Consulting Pty Ltd prepared a witness statement but with the agreement of parties was not called to give oral evidence or answer questions.

1. At the conclusion of the hearing, I gave an oral decision to grant a permit and the following are the reasons for my decision.
2. I do not detail the proposal, the site context and planning scheme provisions as these are identified in the various documents contained on the Tribunal file.

1. Mr Montebello presented a written submission dealing with the Planning Scheme provisions and Council's reasons for opposing the application.
2. Mr Bryant presented a written submission explaining why the application should be supported and called expert evidence from Messrs Steane and Barnes.
3. The following summarises my attitude to this proposal:

1. The site is zoned Business 1, Swan Street is a Major Activity Centre in Melbourne 2030 and the site forms part of the linear strip of commercial development along Swan Street. It is not a corner site where patrons could congregate in front of nearby residential properties or where patrons standing outside the premises could adversely affect the amenity of nearby dwellings in the Residential 1 Zone. 2. Local policy acknowledges the considerable tensions that have developed between licensed premises and residential and other commercial land uses and requires special attention where sites are adjacent to or within residential areas. In this case the proposal reuses the ground floor of an existing two storey commercial building, is orientated to Swan Street and is separated from the Residential 1 Zone by a strip of Business 1 Zone land to the north. Although there is a dwelling on the Business 1 zoned lot to the north, the interface is relatively benign with a tall brick wall extending along the vast majority of the boundary with a single rear door providing access to a narrow pedestrian laneway linking through to Botherambo Street. Provided this door is acoustically treated, not propped open or used for general access, and the area outside it not used for smoking and other purposes by staff or patrons, then I am satisfied there will be no adverse impact on the adjoining residential property. I have included a condition (No 5) to limit the use of this area. I note that none of the nearby residents in Lennox Street lodged an objection to the proposal or sought to be joined a parties to this proceeding, even though they live close to Swan Street and the review site.

1. Implementation of the acoustic measures recommended by Mr Barnes will ensure that the premises operates in compliance with SEPP N-1 and N-2. In addition to the conditions requiring compliance with SEPP N-1 and N-2, I have included detailed conditions requiring implementation of the specific works recommended by Mr Barnes.

1. Conditions, including one requiring the premises to be managed and operated in accordance with the NAPP, will further lessen the potential for adverse impacts to surrounding areas. Although Council opposed a 3am closing time on the mornings following Friday and Saturday nights, I consider these longer hours two nights a week are reasonable given the Business 1 Zone, the location within a major activity centre, the particular site context and the availability of other late night venues in the area. The premises is limited to background music as defined in the Liquor Control Reform Act 1998 and will consequently have a very different character to the mainly much larger live music venues along Church Street. I consider the 100 patron limit is also reasonable given the site context and is not excessively large compared to the other late night venues which may cater for many hundreds of patrons.

1. Having regard to the above I will direct that a permit issue subject to the conditions set out in the Appendix.

1. Before the use and/or development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the application plans, but modified to show:
   • (a) An amended Noise and Amenity Action Plan (NAAP) must be submitted to and approved by the Responsible Authority. The plan must be generally in accordance with the Standard Operating Procedures prepared by Liquor Consultancy Service in September 2008 but must incorporate the draft Noise and Amenity Action Plan (NAPP) prepared by Priority Planning Pty Ltd as part of the application material. When approved, this plan will be endorsed and will then form part of the permit. In addition to the detail already provided, the plan must also detail security arrangements.
   • (b) Any changes to the building fabric arising out of the requirements contained in Condition 6.
2. All works and the layout of the licensed area must accord with the endorsed plans. Any alterations must be approved in writing by the Responsible Authority.
3. The licensed premises must be managed and operated in accordance with the Noise and Amenity Action Plan (NAAP) endorsed under this permit to the satisfaction of the Responsible Authority.
4. There are to be no more than 100 patrons on the premises at any one time without the further written consent of the Responsible Authority.
5. The northern rear access door to the pedestrian laneway must not be 'propped open', and except for emergency access must remain closed while music is playing. Staff and patrons must not use the rear yard/walkway for smoking and other purposes.
6. The following building works/equipment required for noise attenuation are to be completed and fitted before the use commences:

(a) As shown on Drawing TP-04 the wall separating the bar area from the toilet and store/office is to be acoustically treated.

(b) This wall must consist of a timber or metal stud frame and be faced on each side with minimum one layer of 16mm thickness plasterboard. The cavity must incorporate acoustic insulation minimum 100mm thickness, such as Tontine Acoustisorb I or equivalent. The wall will extend from the floor and be sealed to the ceiling with a non-setting mastic sealer.

(c) New rear external door to be a flush panel 45mm - 50mm thickness timber door clad with steel sheeting. The door is to have a sound rating of Rw - 40dB(A). A suitable door with matching frame and acoustic seals such as Raven RP-24 and RP-38 perimeter seals or equivalent. The door should also be fitted with a heavy duty door closer. The existing door & window above to be bricked up.

(d) Toilet/rear passageway door to be a flush panel nominally 45mm thickness solid core door having a sound rating of minimum Rw - 30 dB(A). A suitable door with matching frame and acoustic seals such as Raven RP-24 and RP-3 8 perimeter seals or equivalent. The door should also be fined with a heavy duty door closer.

(e) Bar area/toilet access door also to be a flush panel nominally 45mm thickness solid core door having a sound rating of minimum Rw - 30 dB(A). A suitable door with matching frame and acoustic seals such as Raven RP-24 and RP-3 8 perimeter seals or equivalent. It may be fitted with a small courtesy window incorporating one layer of minimum 8mm safety glass. The door should also be fitted with a heavy duty door closer.

(f) Front entry doors - a pair of glazed double door leaves fitted with heavy duty door leaves. These doors will normally be closed except for ingress and egress purposes.

(g) The split air conditioning system external condenser unit must have a sound power rating not exceeding 65 dB(A), selected and positioned to ensure the sound level at the boundary does not exceed 47 dB(A) when operated during the night period.

(h) Exhaust fans and kitchen fans must not generate sound levels that exceed 47dB(A) at the boundary when operated during the night period.

(i) External refrigeration units must be located at ground level or otherwise screened and must not generate sound levels that exceed 47 dB(A) at the boundary when operated during the night period.

1. The use may only operate, including the sale and consumption of alcohol, between the following hours:
   • (a) Friday, Saturday and the Eves of Public Holidays (other than ANZAC Day and Good Friday) - 10am until 3am (the following day)
   • (b) Monday to Thursday - 10am until 1am (the following day)
   • (c) Sunday - 10am until 11pm.
2. All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
3. Only background music as defined in the Liquor Control Reform Act 1998 is to be played on the premises. No live music is to be played on the premises at any time.
4. The level of noise emitted from the premises must not exceed:
   • (a) The permissible noise level from mechanical equipment as specified in the State Environment Protection Policy N-1 (Control of Noise from Commercial, Industrial or Trade Premises); and
   • (b) The permissible noise levels for entertainment noise as specified in the State Environment Protection Policy N-2 (Control of Music Noise from Public Premises)
5. The amenity of the area must not be detrimentally affected by the use or development, through:
   • (a) The transport of materials, goods or commodities to or from land;
   • (b) The appearance of any buildings, works or materials;
   • (c) The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or
   • (d) The presence of vermin.
6. During all hours (whether or not liquor is served) in which the business is open to the public, entry must be made freely available to any authorised officer(s) of the Responsible Authority for the carrying out of any investigations associated with the sale or consumption of alcohol on the site.
7. No emptying of bottles into garbage bins located outside the approved waste storage areas is permitted after 10.00pm on any night, or before 7.00am on any day.
8. During all operating hours of the use hereby authorised, there must be present on the site a person above the age of 18 years, who has been authorised by the occupier of the land and that person will be responsible for the good conduct of patrons arriving, using or leaving the land, (For the purposes of this permit, this person is known as "the Manager").
9. The Manager must be qualified in operating in accordance with the policies and guidelines prescribed by Liquor Licensing Victoria.
10. All staff on the premises are to be appropriately trained in the responsible serving of alcohol.
11. This permit will expire if the use is not commenced within two years from the date of this permit. The Responsible Authority may approve extensions to these time limits if requests are made within three months of expiry.

[1] In accordance with Section 4 (2) (d) of the Victorian Civil and Administrative Tribunal Act 1998 a failure to make a decision is deemed to be a decision to refuse the application.