Increase in operating hours to an existing hotel, an increase in patron numbers, waiver of car parking under clause 52.06 and buildings and works associated with constructing a noise attenuation barrier at 57-61 Swan Street, Richmond in accordance with the endorsed plans and subject to the following conditions.

1. The permit is subject to the modified conditions contained in Appendix A to these reasons.

Mr Liodakis in person. Mr Liodakis was assisted by Mr Savas Augoustakis, Interpreter NAATI Level 3.

Ms Susan Brennan of Counsel instructed by Ms Alison Elverd, Solicitor of Bazzani Scully Brand.

Ms Brennan called Ms Liz Hui Acoustic Consultant of Marshall Day, Mr Tim Northeast Proprietor of the Corner Hotel and Mr Stuart McGurn, Planning Consultant of ERM.

Increase patron numbers from 750 to 950 until midnight, reverting back to 750 until 3.00am under condition 4 of existing planning permit. Limit beer garden to 400 patrons until 11.30pm and add acoustic protection works.

Objector review under Section 82 of the Planning and Environment Act 1987.

Business 1 Zone and Heritage Overlay HO332 Richmond Hill Precinct abutting Road Zone Category 1. Mixed Use Zone to the north and north-west and Residential 1 zone to the north-east.

Clause 34.01-4 buildings and works; clause 63.05 existing use rights buildings and works; clause 43.01-1 buildings and works in a heritage overlay; clause 52.06 car parking waiver; clause 52.27 increase in licensed premises patron numbers.

Triangular block with sideages to the Richmond railway lines, Swan, Stewart and Botherambo Streets.

Tuesday 28, Wednesday 29, Thursday 30 August, Saturday 1 September, unaccompanied by representatives of the parties.

Swancom PL v Yarra CC Red Dot [2009] VCAT 923; Athina Windsor Nominees PL v Stonnington CC [2011] VCAT 121.

1. The objector, Mr Liodakis, reviews the Responsible Authority's decision to allow an increase, until midnight, from 750 to 950 patrons at Swancom's iconic Corner Hotel ('the Corner') in Richmond. The hotel is a world renowned venue for live music bands, while giving many musicians the opportunity to start their careers. Established in 1871, the Hotel trades until 3.00am daily[2].
2. Mr Liodakis, who lives 200 metres away, is clearly worn down by applications for an increase in patron numbers in the cluster of licensed premises along his section of Swan Street. He terms the impact of patrons leaving bars at various closing times[3] a 'tsunami'.
3. Swancom's ground floor band room can fit 650 patrons. When the band room is near or full to capacity, it's permit limit of 750 does not allow it to accept many more patrons in its downstairs bar or in its first floor beer garden and dining room, although it has plenty of space left. It wishes to fit more patrons into that space. Swancom's permit requires its beer garden, which, together with its dining room can fit 527 patrons[4], to close at 11.30pm, but allowing for a half hour period of grace, patrons leave at midnight.
4. As a sweetener, Swancom offers to limit patron numbers in the beer garden to 400, and add noise attenuation works around that space.
5. The key issue for determination is the cumulative impact of adding patron numbers into an already near-saturated drinking and entertainment precinct[5]. The 2009 Swancom PL v Yarra CC[6] decision ('Swancom Mark I') is seminal, the first decision dealing with licensed premises saturation and cumulative impacts on a neighbourhood. Swancom Mark I found adverse and unreasonable amenity impacts on the surrounding area[7]. At that time, the police opined that even a 250-patron increase would have an adverse impact[8].
6. Given Swancom Mark I, which forbad an increase to 1300 patrons until 3.00am daily, but did not altogether close the stable door on any increase whatsoever[9], Swancom submits adding 200 patrons daily until midnight is reasonable. Council agrees.
7. The Tribunal must decide whether council's decision should be supported. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Yarra Planning Scheme, we have decided to vary council's decision by allowing the increase in patron numbers only on Friday and Saturday nights and on the eve of public holidays. We note that was the compromise position suggested by council officers in Swancom Mark I[10]. Our reasons follow.

1. The Corner Hotel sits along the Business 1 zoned Swan Street Major Activity strip shopping Centre next to Richmond Station, a nodal transport interchange. Yarra's nascent Swan Street Structure Plan[11] identifies the site in an entertainment node[12], influenced by Victoria's nearby Sports and Entertainment Precinct[13] and at the cusp of a key revitalisation area comprising under-developed former warehouses[14]. Yarra's Activity centres policy at clause 21.04-2 recognises Swan Street's regional retail and entertainment focus and the contribution made by its music venues[15].
2. Behind the Corner Hotel is a Mixed Use zone, a residential zone reflecting the recycling of historic warehouses into medium and higher density dwellings. To its northeast lies a traditional low-rise Residential 1 zone. Pursuant to local policy clause 21.08-10, the Hotel lies in the predominantly residential Central Richmond neighbourhood. The entire neighbourhood lies in Heritage Overlay HO332 Richmond Hill Precinct.
3. Mr Lionadis lives in a small cottage in the low-rise residential hinterland close to Swan Street.
4. Pursuant to state policy clause 11.04-4, the Richmond Railway Station Precinct is targeted for high scale and high density mixed residential and commercial development. This is reflected in high-density residential proposals for the iconic Dimmeys Site[16], 5-13 Stewart Street Richmond[17] and on the Botherambo Street corner directly opposite the subject site[18].
5. As for excellent public transport, trains stop at 12.30am and agreement cannot be reached between the Taxi Directorate and VicRoads on the location of a much-needed taxi rank in Swan Street.

1. Strategy 3.4 of local policy clause 21.04-1 is to discourage late night trading activities located near residential zones to minimize impacts on residential amenity. Clause 21.04-2 highlights Yarra's activity centres are almost all centred around elongated commercial strips with abutting residential uses, creating interface conflicts where some uses are not well managed or inappropriate uses are permitted.
2. Clause 22.05[19] acknowledges the mix of land use creates a diverse and interesting inner city character, which may also create conflict at the interface between the land uses. We need to ensure that residential uses located within or near commercial centres enjoy a reasonable level of amenity and that new non-residential use within Business Zones is designed to minimise noise and visual amenity impacts upon nearby, existing residential properties (Tribunal's emphasis).
3. Pursuant to clause 22.09-4, Swancom has supplied a Noise and Amenity Action Plan, an assessment by a registered building or surveyor detailing the patron capacity of the premises and there are no policing issues.

1. The amenity of the area varies with location and time of day and night. During the day, Swan Street functions like any other inner city MAC[20] with a partly residential hinterland. Lennox Street is a north/south road linking to Bridge Road. The overhead rail line is a barrier, a source of noise intrusion and creates a partial tunnel effect where it crosses Swan Street.
2. The amenity of the area changes at night. Licensed premises along Swan Street and in part along Lennox Street (the London Tavern) provide entertainment for dining, drinking and music (live and recorded). Patrons en route to football and rugby also visit the various venues.
3. By late evening on weekend nights, this western end of Swan Street has queues of people waiting to access the premises. This includes the Richmond Club Hotel, Bar 9T4, the Precinct and the Corner Hotel. We also observed 'travellers' trawling Swan Street towards the Swan Hotel and Maeve Fox in Church Street. Importantly however, other than activity at the Corner resulting from their band room, little activity occurred along Swan Street in the middle of the week.
4. By 1.00am, a number of venues close and there is a process of discharging their patrons. Many patrons depart the precinct at this time by taxi. A minority walk to parked cars. Some disperse on foot through the local street network. A second wave of dispersal occurs at 3am when the remaining four venues close.
5. The cluster of licensed premises in very close proximity focuses predominantly on alcohol consumption with a high ratio of standing to seating. Four venues including 'the Corner' cater for well over 200 patrons each, a number often associated with overcrowding generating pushing, shoving and trouble. Outside queuing is common as viewed by Mr McGurn and by ourselves on our Saturday night site inspection.
6. The Corner will be discharging people at the same time as London Tavern up Lennox Street, and these patrons will be converging onto this end of Swan Street.
7. There are approximately 35 licensed premises operating after 11pm within a 500-metre radius. Of these, there are many venues (including the Corner Hotel) trading in close proximity, collectively having a patron capacity of 3,729, closing between l.00 am and 3.00 am.
8. The Richmond Club Hotel is currently part heard at the tribunal seeking an increase of 160 patrons from 360 to 500.
9. We list the cluster of licensed premises in trawling distance of the subject site[21]:

Licensed premises in 500m radius closing after 11pm

Reasonable expectations of business operators and residents in an Activity centre

1. Management of land use in modern cities is increasingly complex. State policies encourage business, shopping, working, leisure and community facilities; a concentration of business, entertainment, cultural and residential development in highly accessible locations; location of housing close to activity centres and transport nodes; and control of noise on sensitive uses.
2. All this promotes economic vitality but simultaneously generates exuberant, boisterous or rowdy behaviour, noise, littering, vomiting and urinating in residential side streets or dark spaces, and criminal behaviour.
3. On the one hand, we want our cities to be vibrant, lively places while also enabling a sense of calm, safety and ability to sleep.
4. Business proprietors in a Business 1 zone have a reasonable expectation of intensifying their businesses while residents in an Activity Centre have a reasonable expectation of being able to sleep at night and walk clean and safe streets.
5. The key issue is the off-site amenity impact of patrons leaving licensed premises associated with the cluster of venues in Swan Street and entering the surrounding residential area, pursuant to clause 52.27. Practice Note 61[22] places the proposal in a cluster. Swancom Mark I unquestionably found that this cluster had an adverse impact on the residential hinterland.
6. The officer's report states that with unreasonable off-site amenity impacts already being experienced in the surrounding residential area because of the existing cluster, it would be difficult to identify an impact associated with a 200-patron increase alone[23].

1. The operator seeks a 200-patron increment to support his live music venue, a regional attractor as well as an asset to Swan Street and musicians. However, the band room attracts its own clientele and is very successful in its own right. It hosts over 300 live entertainment events every year, busy almost every night of the week[24].
2. The extra 200 patrons are not intended for the band room, but for the beer garden. The operator's focus is to serve alcohol to these extra 200 patrons, not provide music entertainment. Thus, the proposal will not create a positive cumulative impact for this area. It will continue the domination of one type of activity in an area already saturated with the same type, not add to the mix[25].
3. We refer to the finding of Swancom Mark I:

Given the live music 'band room' within the Corner Hotel has a capacity of 600 (sic) patrons, and is often full within the existing 750 patron maximum, the additional 550 patrons will not have access to that live entertainment. 350 of these 550 would be in the upper level beer garden where no amplified music would be allowed. This has the potential to change the profile of the Corner Hotel to a large late-night bar/hotel, where more than half the patrons have no access to the entertainment, less than half have access to seating, and most are there to use it simply as another drinking venue. The Corner Hotel cannot therefore rely on its existing profile as an iconic live music venue to differentiate it from the cumulative impact of the other late-night venues in the precinct. [We might add that, when the band room is operating to its 600 patron capacity, it is also very much a crowded 'vertical bar' with virtually no seating. This was evident at our inspection].

1. The same comment applies in this application, except with reduced numbers. These reduced numbers from 550 to 200, says Ms Brennan for Corner, differentiates this application from Swancom Mark I, by not changing the focus away from a live music venue.
2. The Corner Hotel is well managed. On-site behaviour is not the issue and never has been[26]. This application engendered half the number of objections compared with Swancom Mark I and only Mr Liodakis took council's decision on review to VCAT.
3. Alcohol consumption in the band room is tempered by one's focus on music rather than vertical drinking. Patron (and staff) numbers are anticipated by pre-purchased tickets. Food is served in the first floor dining room until 10.00pm daily, allowing alcohol absorption, in contrast to dedicated vertical drinking bars where no food is served. The bar seats 80 people while the first floor seats 220, 80 in the dining room and 160 in the beer garden[27].
4. Swancom Mark I left some room for an increase in numbers:

.....we would not wish our decision to be interpreted as an indication that there should be never be any extension of hours or patron numbers at the Corner Hotel[28] ......a compromise outcome may be capable of being approved in the future[29].

1. Mr McGurn for Swancom opines that a 200-patron daily increase to 950 patrons until midnight is a modest increment and reasonable given that patrons will exit the Hotel when excellent public transport is still running.
2. But the Hotel is still allowed 750 patrons after midnight, who can exit until 3.00am, which is when the problem period identified in Swancom Mark I and Practice Note 61 occurs.
3. The acoustic protection measures resulting from 400 patrons in the first floor beer garden might alleviate noise impacts on Botherambo Street residents but do nothing for the off-site impacts of patrons spilling out into the surrounding streets at midnight into an already congested environment.
4. The Corner Hotel is already the largest licenced premises in this cluster. If this application is approved, it will have the potential to spill 200 extra patrons into Swan Street at midnight not including additional numbers sought by other licensed establishments, such as the extra 160 patrons sought by the Richmond Club Hotel.
5. The cluster and saturation issue is one of attracting hordes of people into an area that is already experiencing adverse impacts. As Mr McGurn admitted, problems occur if people cannot disperse quickly after licensed premises close.
6. The question is whether the extra 200 patrons until midnight is reasonable given the Hotel sits in a regional attractor[30], is in a recognised local and regional location for night-time entertainment and supports live music bands? Mr McGurn submits this as justification for allowing the patron increase, saying this distinguishes the Corner Hotel from a suburban interface. Council adopts the same justification, acknowledging that the site is already in a 'hot spot' of adverse amenity. The same justification could be made for other bars in the cluster seeking increase in patron numbers.
7. Mr McGurn points out that this section of Swan Street already engenders an expectation of attracting drinking crowds late at night. We find from our multiple site inspections, which took place on Tuesday, Wednesday, Thursday and Saturday nights, that this is correct only on Fridays and Saturdays, not on other days of the week before a workday the next day.

1. The above table of clustered licensed premises together with our multiple site inspections proves that Swan Street attracts large vocal crowds late on Fridays and Saturday nights who trawl along Swan Street all the way to Church Street's Swan Hotel and Maeve Fox. The Corner attracts music crowds on other nights of the week, but the same cannot be said for other licensed premises. It appears that the iconic band entertainment focus of the Corner Hotel is the weekday attractor at this end of Swan Street, not drinking patrons in the middle of the week when people work.
2. This has persuaded us to allow the extra 200 patrons on Friday and Saturday nights because the horse has bolted as far as licensed premises in this end of Swan Street is concerned. There is clearly an expectation that this is a local and regional partying node. An additional factor is that there are enough taxis still willing to ferry patrons home around midnight, although at least one taxi rank is mandatory for this end of Swan Street and would make a big difference to keeping patrons on Swan Street and off side streets.
3. We are not persuaded, however, to allow the extra 200 patrons in the middle of the week because this end of Swan Street is still fairly quiet late at night, with some bars not even bothering to stay open. The Corner's 750 patron limit is sufficient given that it is already the largest bar in the locale. Given the clearly anticipated substantial increases in residential densities, and given the precedent that this case will set, we do not want to introduce further conflicts during the middle of the week when people work, even if it is only up until midnight.

1. Permission is also required for buildings and works to construct the acoustic barrier for 400 patrons in the beer garden. This probably follows comments by the Tribunal in Swancom Mark I[31].
2. It is proposed to:
   1. extend the wall to the east of the rooftop area to 3 metres;
   2. install an angled canopy section on this eastern wall with the canopy section reaching a height of 3.5 metres;
   3. install sound absorptive material on the underside of the canopy, central walkway and colour bond roof to the east and west; and
   4. install sound absorption on available areas on the eastern wall.
3. We agree the construction of a 3.5 metre high acoustic barrier in the beer garden will not impact on the significance of the heritage place because:
   1. the barrier is located on the roof adjacent to the non-original dining room structure and will not obscure views to original heritage elements;
   2. views to the acoustic barrier are limited as it is pitched from the existing barrier along the eastern edge of the beer garden and angled 3 metres into the site; and
   3. the proposed works do not involve demolishing heritage fabric.

1. We heard that from surveys undertaken of patrons, around 25% drive into the area, while the rest take taxis and other public transport. From our site inspections, we agree with council's assessment that assuming 50 patrons of the additional 200 drive, and car pool, this increment could be absorbed into the surrounding road network. Many patrons prefer taking taxis to risking drink-driving fines and loss of licence, not to mention traffic accident injuries.
2. From our site inspections, we cannot emphasize loudly enough that at least one taxi rank is mandatory for this end of Swan Street.

1. Although Reddo Surveyors calculated that 527 patrons could be accommodated on the roof (beer garden & dining room) according to the Office of the Director of Liquor Licensing, less than 527 persons can be accommodated applying the Building Code of Australia's sanitary facilities ratio. The operator agreed to a limit of 400 patrons and Ms Hui did her calculations accordingly[32].
2. Since the operator agreed to limit the rooftop numbers to 400, we have applied that not only to the beer garden but also to the dining room, Reddo's calculations did not distinguish between the two parts, nor did Ms Hui.

1. We have varied the decision of the responsible authority. We have limited the requested additional numbers to 200 on mainly Friday and Saturday nights because of the off-site impacts in the surrounding residential streets common to areas which get a name as 'hot spots' such as this one. This is our way of resolving the conflicts between the government's push for increased inner city residential densities and the impacts of people drinking and partying late at night.
2. We see behavioural impacts resulting from licensed premises along Swan Street as a precinct wide issue, requiring a centre-based approach between tavern operators and the council to provide for:
   1. a patrolled taxi rank on Swan Street, monitored for the safety of taxi drivers and the cleanliness of their vehicles;
   2. roving patrols for street clean-up operations;
   3. Policing of on-street patron behaviour including in the surrounding residential streets and Stewart Street
   4. there may even be cause to impose a special rate upon certain licensed premises to pay for some of the above.

Increase in operating hours to an existing hotel, an increase in patron numbers, waiver of car parking under clause 52.06 and buildings and works associated with constructing a noise attenuation barrier at 57-61 Swan Street, Richmond in accordance with the endorsed plans and subject to the following conditions.

1. Before the use and 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 include the provision of an acoustic angled canopy section extending from the top of the existing eastern wall for a distance of 3 metres to the west and rising to a final height of 3.5 metres above the floor level of the deck area and must include the details outlined at pages 12 and 13 and in Figures 3 & 4 of the Statement of Evidence of Ms Elizabeth Hui of Marshall Day Acoustics dated 14 August 2012.
2. All use and development must accord with the endorsed plans. Any alterations must be approved in writing by the Responsible Authority.
3. The layout of the use and development on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
4. The use may only operate:
   • (a) Between 10am and 1am Sunday;
   • (b) Between 12 noon and 3am the following morning, Good Friday and Anzac Day;
   • (c) Between 7am and 3am the following morning, on any other day (including mornings of Good Friday and Anzac Day).
5. Notwithstanding the operating hours permitted in condition 4, trading must cease at 11.30pm on the first floor beer garden and dining room on any day.
6. No more than 950 patrons are permitted on the premises until 12.00 midnight on Friday and Saturday nights and the eve of public holidays. These 200 extra patrons are not allowed into the premises until after the works shown on the endorsed plans are completed to the satisfaction of the Responsible Authority. After midnight, no more than 750 patrons are permitted on the premises seven days a week (not including the first floor beer garden/dining room).
7. Notwithstanding the patron numbers allowed in condition 6, no more than 400 patrons are permitted in the first floor beer garden and dining room at any time.
8. Before the use starts, an amended Noise and Amenity Action Plan [NAAP] to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. Once approved, the plan will be endorsed and will then form part of this permit. The plan must be generally in accordance with the NAAP submitted to Council on 19 April 2011, but modified to confirm that music will not be played outside the building other than background music, which may be played in the beer garden.
9. The use must be managed in accordance with the endorsed Noise and Amenity Action Plan at all times to the satisfaction of the Responsible Authority.
10. No music may be played outside the building, and no speakers may be sited outside the building other than background music, which may be played in the beer garden and dining room. No live music or amplified DJ's may be played in the beer garden and dining room.
11. Patrons must be advised to take account the needs of local residents for peace and quiet after 10pm on any day, by displaying a prominent notice at the main exit point(s) with words to the effect of "Please respect our neighbours and leave the area quietly", to the satisfaction of the Responsible Authority.
12. Doors and windows must not be allowed to remain open while music is being played within the building, with the exception of the front door of the premises that may be opened as required to allow patrons to enter and leave the building.
13. The use must not be detrimental to the amenity of the neighbourhood including through noise emission or in any other way, to the satisfaction of the Responsible Authority.
14. Noise levels from the premises must not exceed those required to be met under:
    • (a) the State Environment Protection Policy (Control of Noise Industrial, Commercial and Trade), No. N-1; and
    • (b) the State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2.
15. No bottles, cans or other drink containers may be emptied into garbage bins or recycling crates after 10pm on any night or before 7am on any day.
16. Deliveries to and from the site including waste collection may only take place between 7am and 10pm on any day.
17. During operating hours, a person above the age of 18 years must be present on the site who has been authorised by the occupier of the land to be responsible for the good conduct of patrons arriving, using or leaving the site (for the purposes of this permit, this person is known as "the Manager").
18. The Manager must ensure that no disturbance occurs on, or emanates from the site, which would be likely to cause a nuisance to the adjoining occupiers or be detrimental to the amenity of the neighbourhood, to the satisfaction of the Responsible Authority.
19. 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 a member of the Victoria Police, an "authorised officer" of the Responsible Authority or an officer of Liquor Licensing Victoria for the carrying out of any investigations associated with the sale or consumption of alcohol on the site.
20. The Manager must at all times be authorised by the occupier of the premises to make statements on their behalf to a member of the Victoria Police, an "authorised officer" of the Responsible Authority or an officer of Liquor Licensing Victoria regarding the conduct of the premises for the activity allowed under this permit.
21. This permit will expire if the use is not commenced within two years from the amended date of this permit. All development must be completed prior to the commencement of the use. The Responsible Authority may approve an extension to these time limits if a request is made within 3 months of expiry.

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[4] Only according to the Director of Licensing directive. Under Building Code of Australia, less than 527 people can be accommodated on the first floor because of sanitary facilities regulations. See Reddo Surveyors report 15 December 2010.

[6] [2009] VCAT 923

[11] Draft - April 2012. Not yet a 'seriously entertained document' in planning policy hierarchy

[12] Section 2.2.8 Entertainment page 13

[13] MCG, Rod Laver Arena, Hisense Arena, Richmond Football Club, Punt Road Oval, among others

[16] Richmond Icon Pty Ltd v Yarra CC (includes Summary) (Red Dot) [2011] VCAT 2175 (8 November 2011) per Naylor & Read, MM who permitted a 10 storey glass residential tower.

[17] ACCC PL v Yarra CC Red Dot [2012] VCAT 1180 per Naylor and Keddie, MM, which, although refused 14 storeys, illustrates higher densities will establish in the future.

[18] Planning application for 10-12 storey apartments/serviced apartments.

[21] We omit the Tawunna Thai Restaurant and Bess Richmond because they are restaurants instead of taverns.

[22] Practice Note 61 Licensed Premises - Assessing Cumulative Impact March 2011 DPCD

[25] See Swancon Mark I paras. 38 & 39.

[30] Melbourne's Sports and Entertainment Precinct with influxes of 30,000 to 80,000 on weekends subject to seasonal variation @ para. 83 McGurn evidence.

[32] @ para. 2.6 of her witness statement