1. The decision of the Responsible Authority is varied.
2. In permit application 237/2011 a permit is granted and directed to be issued for the land at 1A St Vincent Place South, Albert Park in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Use of the land for the purpose of sale and consumption of liquor under a new Restricted Club Licence only in association with bowling club activities at the Albert Park Bowls Club in the area defined by the endorsed plan.

Mr Andrew Walker of counsel, by direct instruction.

Mr Phillip Beard, a town planner from Port Phillip City Council

Mr Norman Armstrong, president and Mr Malcolm Stevenson, member of the Albert Park VRI Bowls Club Inc.

An amendment to the existing Restricted Club Licence is sought. The amendment would see the licensed area for the sale and consumption of liquor extended from the current limit of the clubhouse to include the area encompassed by the bowling greens and surrounding spectator / player pavilion.

Review a decision by the Responsible Authority to grant a permit made under section 82 Planning and Environment Act 1987.

Zone and Overlays applying under the Port Phillip Planning Scheme

Particular provisions applying under the Port Phillip Planning Scheme

Planning Permissions required under the Port Phillip Planning Scheme

To increase the area that liquor is allowed to be consumed or supplied under a licence (Clause 52.27).

The bowls club is located in the eastern half of St Vincent Gardens. The bowls club facilities comprise of a clubroom building and greens, with a total area of some 2,000m2. The clubroom is located at the eastern end of the greens and there is a pavilion pathway around the greens.

1. The Albert Park Bowls Club Inc is located within the St Vincent Gardens and has been in operation for some 138 years. The club holds a Restricted Club Liquor Licence that allows alcohol to be served to its members and their guests. The current licence limits the sale and consumption to the clubhouse (the licensed area). The club seeks to extend the licensed area to include the bowling green and surrounding pathway/pavilion. The club wants this extension to allow members, players and others to watch games while 'enjoying a drink' from the pavilion areas. The club has applied for a variation to its liquor licence and in accord with Clause 52.27 of the Port Phillip Planning Scheme, seeks planning permission to increase the licensed area.
2. The Port Phillip City Council, having considered various matters required of it under the Planning and Environment Act 1987, including the views of residents who oppose the application has issued a Notice of Decision to grant a permit (the NoD). The Council highlights that as the club conducts its operations under existing use rights, there has been no planning permit controlling the sale and consumption of liquor. The sole source of control has been through the liquor licence. It is argued that by granting this permit, the Council can assert some planning controls over the club's activities and address amenity concerns raised by the local residents. To that end the NoD is said to include conditions that address the concerns of the local residents.
3. Dr McKean and others are residents who live around St Vincent Gardens. They are concerned about noise and other amenity impacts that they believe will occur from the changes to the licensed area. They say that previous functions held at the club that have used this larger area of the greens and pavilion have resulted in such impacts. They believe that the proposed permit conditions do not adequately address the potential for these amenity impacts. They therefore object to the permit being granted or in the alternative seek conditions that they say will provide better protection of their residential amenity over an above those proposed by the Council.

1. While the application is of itself a simple matter, the complaints of the residents and the response of the club, take me to a number of underlying issues related to the use of the club facilities.
2. Before addressing these matters, it must be stated at the outset that this proceeding and the decision to be made are necessarily limited to the nature of the permit application. This proceeding is not an enforcement hearing and the club is not on trial for past behaviour. That said, like the Council, I recognise that the impact of past activities provides a useful gauge of future potential amenity impacts. To my mind this is sufficient to address the argument advanced by the residents that the application is inadequate because noise monitoring and expert evidence has not been advanced by the club to support its case. In effect, the concessions by the club about past activities, the complaints advanced by the residents and the Council's submissions lead me to accept that poorly controlled behaviour of patrons using the facilities would lead to unreasonable impacts.
3. That said it is appropriate to record that the residents concede that their concerns largely arise from the behaviour of non-club members or patrons to private functions and not bowls events. The residents apprehend that the licence changes will mean more private events will occur. While I recognise these apprehensions, there is no application to change the use of the site. I address this issue in more detail later in these reasons.

1. Much of what the residents have to say about the amenity impacts from the new license is predicated on the past performance of what the club terms fund raising activities. The residents' complain that the clubrooms and facilities were operated as a commercial function centre between 2006 and 2011, with patrons having no relationship with the club, its members or bowling activities. They cite examples of 'private' bowls days, hire of the facilities for parties and corporate events. They point to website advertising of the venue for functions and like events.
2. Because of such activity, the residents say they have been subject to unreasonable patron and music noise. During such events, people have been observed by the residents consuming alcohol outside the clubroom and sometimes outside the club grounds, in the wider park area. These activities are alleged to have led to unreasonable patron from boisterous behaviour and loud music disturbing the residential amenity of the area. They are also assert that there have been impacts from people returning to their cars later at night, cars which are parked in the residential streets surrounding the parkland where the club is located.
3. The residents assert that the revised licence would have an adverse amenity impact similar to that which has been experienced in the past because the club will continue its commercial functions operation and not limit activity to members and bona-fide guests of members. Because of the club's alleged failure to adhere to the current licence conditions, the residents are not persuaded that the permit conditions provide sufficiently strict controls on the use of the club facilities and reduce the potential for unacceptable amenity impacts.
4. The residents concede that the use of the facilities for bona fide bowling club activities do not have the same amenity impacts. Their concern is about the potential for more commercial activities as set out above. They accept that if the club was limited to bowling activities, including supervised use of the facilities for bowling activities by non-members that assists in supporting the club financially, the risk of amenity impacts will be lower.

1. The club concedes that as a part of its fund raising venture, it had allowed a more commercial like operation of its facilities to occur over 2006 to 2011. It says however that it has since ceased to do so, with a consequential lowering of complaints.
2. The reason for seeking the variation to the licensed area is said to be primarily to allow players and guests, particularly during pennant competition, to have a drink while watching play on the greens. It is put that the club has not been granted the right to host some bowls events because of the restrictive nature of the current licence confining consumption of alcohol to the clubroom.
3. It is also submitted that the club should be allowed to hold some forms of social events involving bowling so the club can raise funds to support itself, just as other bowling clubs do in the surrounding Port Phillip and wider area.

1. The Council's submission has provided a helpful summary of the issues and how a balanced resolution was sought through the proposed permit conditions. The submissions highlight that:
   • The proposal is relative simple, small scale and in affect limited to an expansion of the area where patrons may consume alcohol purchased from the club bar.
   • Particular aspects of the proposal present potential to generate amenity impacts given the club 'is located in the centre of a very quite and totally residential area'.
   • The club has community support for its bowling activities.
   • It is clear that non-bowling activities are the source of the amenity impacts and annoyance to residents.
   • The nature of the bowls club activities has changed from a traditional understanding of its role, with a wider range of activities now being undertaken to financially support the club.
   • The financial situation of the club is not relevant to the planning decision. The function of the club in terms of its defined 'land use' and potential for amenity impacts is relevant.
   • A balanced outcome is required to address residents concerns and the club's ambitions. This is considered achievable through permit conditions.
2. In short, having considered what has been put to me by the residents and club, I concur with these points for the following reasons.

1. What is at issue, and the underlying basis to the residents complaints is how this facility would be used under the amended liquor licensed area and how appropriate management can be enforced through a planning permit if it were granted.
2. What arises from the submissions and the nature of the complaints, the proposal of the club and the response of the Council is that consideration needs to be given to the nature of the club's land use and associated activities and the matters that therefore need to be addressed through the planning permission being sought. The latter are encapsulated by Clause 52.27 by way of ensuring the changes to the licence do not have an adverse amenity impact through:
   • The sale and consumption of the liquor;
   • The hours of operation of the licensed area; and
   • The number of patrons in the licensed area.

1. In considering the potential amenity impacts and the affect expanding the license area it is necessary to be clear about what activities the club proposes for the expanded licensed area and whether these activities are of a scale and nature consistent with land use enjoyed by way of the existing rights use of the land.
2. The Council submits that the lease of the club facilities allows for 'bowls and associated club activities'. I consider that this encapsulates what the activities would entail under the land use, with an emphasis on any activity not being bowls, being on club activities, that is to say, activities involving and for the benefit of club members.
3. The residents complains and indeed the concession of the club itself suggests that the club may have taken a wider view of what constitutes 'club activities' for the purposes of fund raising.
4. Whether such activity has occurred in the past should not in the normal course of hearing, be determinative of an application. The Council and now the Tribunal must consider the application for the purposes for which it is intended.[1] Apprehension of some ulterior use of the site, facilitated by this extension of the licence, may be of some relevance, but is not solely determinative to my decision. I recognise the residents' application brings this question to the fore and the context for potential amenity impacts raised by their concerns and the considerations under clause 52.27 give cause for me to consider further the nature of future activities to be undertaken in the licensed area. Further the club's equivocal answers about the extent of some 'corporate style' events for fund raising purposes gives rise to some apprehension about the extent of amenity impacts that may occur.
5. Contemplating all that has been put about the use of the site has led me to the view that while this application is seemingly of a simple nature and low scale it has, as the Council rightly notes, potential to generate amenity impacts if the use goes beyond what one would normally expect of a bowls club. I have therefore considered what use of activities the club proposes in exercising the privileges of the amended liquor licence area.
6. Traditional club activities that the Council refers to are ones that might typically apply to a range of sporting clubs. The primary purpose of a sporting club must necessarily be to facilitate the playing of a sport. This may be through competitive games, training and / or social or casual events.
7. Other club activities can be seen to be in support of the club's pursuit of the sport, e.g. administration of the club, committee meetings, award nights, social events for members, fund raising nights, the selling of food and drinks, the latter including alcohol.
8. Together these activities amount to the use of the land for what the planning scheme would term 'a minor sports and recreational facility'.[2] I would doubt that a reasonable person would take any other view of such activities or the defined land use.
9. The submissions of the residents and from Council indicate that there is no objection to the club's sporting and other bowling activities. Indeed this activity is seen by the Council as consistent with the purposes of the park and the applicable Public Park and Recreational Zone applying to the site.
10. The activities that are complained about are said to be activities that have all the appearance of commercially based events or functions that have no bona-fide relationship with a club member, the club or the operation of the facility as a bowls venue.
11. The club submits that the hosting of events or functions for non-club members had been part of a fund raising program that may have got 'out of hand'. The club acknowledges there were impacts to neighbours. It says that such activities have now been wound back. It would however seek to maintain the ability to host what it terms 'bowling functions' for fund raising purposes and promote the sport. [3] These functions include 'barefoot' social bowls events, as well as hiring of the green and 'sometimes the club house' to local or nearby businesses'.
12. I recognise that over time, the traditional activities of clubs has evolved in order to maintain financial viability and compete in the market for members. Sporting clubs sometimes engage in open days, such as 'come n try' days or provide their facilities for corporate or other organisations or groups for 'team building' events or charitable purposes.
13. The purpose of these events may be many-fold. They are a source of additional funds to the club. They are an opportunity to recruit new members or players to their club or more widely to the sport. It may be a way of assisting a charitable organisation to fund raise with a side benefit to the club. It may even be an opportunity for members to provide for a special family event.
14. In all such events, the club may provide services normal to its operations such as providing food and drinks.
15. I would think, and the submissions of the residents indicate, that many would feel that if held on an occasional basis, such events would be seen to be part and parcel of a modern club's normal activity. It would only be if such activities got to the point that such events dominated the club's other activities or occurred quite separately from any bowling activity as referred to earlier that it could be seen as a separate use with all the inherent risks of unreasonable amenity impacts.
16. Where the line is between an activity becoming a separate use is not an issue that I need to consider here. Currently the club operates under existing use rights. My considerations of the extent of such activities leads me to conclude that this may well include some limited forms of fund raising activity of a more modern kind that involve non-members engaging in bowling activities and taking advantage of the club's hospitality facilities.
17. I therefore accept that the reasons for the expanded licensed area will assist the club in undertaking bona-fide club activities.
18. In arriving at this conclusion I agree with the Council that a balance has to be struck however between the needs of the club and the protection of residential amenity. This balance must be based on what I have set out above in terms of the range of club activities under which the privileges of the liquor licence are to be exercised.
19. This application merely seeks to expand the licensed area. By way of a permit to do so however affords an opportunity to impose conditions to address possible amenity impacts for the activities one would expect of this club. To go beyond that would be to extend my decision beyond the jurisdiction invoked by this application.
20. I am persuaded that an appropriately worded permit and conditions that address the potential sources of amenity impact can achieve this balance. I turn therefore to consider what these impacts may be.

1. The decision guidelines of Clause 52.27 are geared toward considering what impact the sale and consumption of liquor may have on the wider community. Relevant matters include:
   • whether the hours of operation need to be constrained; and / or
   • whether patron numbers need to be constrained.
2. In dealing with these questions it is my view that it is relevant to consider the context in which the alcohol is being sold and consumed.[4]
3. For this site, the submissions of the residents clearly points to potential impacts being from noise, including the playing of music, from activities outside the clubroom. Other impacts arise from patron behaviour outside the clubroom, particularly after events are over and they are leaving the park. The latter impacts are closely related to the time at which an event may finish and the number of patrons.
4. To this end, if a permit is to be granted to increase the licensed area, the residents seek to restrict the number of non-club events and patrons. They also seek other conditions which I address later.
5. It is perhaps true that one or two events per year may not be as much a nuisance as repeated weekly events (to take two extremes). However regardless of numbers, each event needs to be managed to ensure amenity impacts are not unreasonable.
6. That said I also observe that the residents concede that bowling events are of less concern because of the controlled nature and atmosphere for the patrons. It would seem that bowls events, whether competitive, social, 'corporate' or 'barefoot' are less likely to be raucous and have an amenity impact of the type complained of by residents. Their submissions highlight that outdoor music, raised voices, patron noise and raucous behaviour are main the sources of amenity impact.
7. Given such risks to amenity, permit conditions should address these sources by appropriate levels of management and objectively set limits.

1. As far as can be addressed by the conditions and nexus of this permit for a change of licensed area to a sporting related activities, I consider that much that has been put forward by the Council achieves the protection of amenity. However, I consider that some further adjustment of conditions will be of benefit. To this end I will direct the following amendments to the permit and its conditions.
2. The permit preamble (what the permit allows) should be amended to read as follows:

To use the land for the purpose of sale and consumption of liquor under a new Restricted Club Licence only in association with bowling club activities at the Albert Park Bowls Club in the area defined by the endorsed plan and subject to the following conditions.

1. This amendment links the serving of alcohol solely to bowling or related club activities. Thus the club can undertake a range bowling based events for their members and for fundraising and serve alcohol at these events within the amended licensed area. The terms of the condition however do not provide for the venue to operate as a function centre and serve alcohol to patrons at such events. Such terms give the Council the ability for enforcement if thought necessary.
2. The change to the permit pre-amble achieves what I consider to be the intent of Condition 1 of the NoD. To my mind the proposed Condition 1 has an informative form but of itself has questionable legal status and effect as a condition. It sets out what cannot occur and seeks to control a land use which the permit has no substantive nexus with. While I can understand the intent of this condition, any enforcement of the permit or some unauthorised use of the land can be achieved without it. It is not an effective or appropriate condition. I will direct its deletion from the permit. As a statement of intent of information however, the Council is free to place it as a note at the end of the conditions.
3. Condition 2 of the NoD addresses the hours for sale and consumption of alcohol within the licensed area. The proposed wording includes a reference to 'sale and consumption outside the clubhouse. I will amend this condition so that only the consumption of liquor beyond the clubroom can occur. This makes it clear that all sales will take place from within the clubroom so that centralised and effective management of patron sales can occur.
4. The times for consumption of alcohol are in my view acceptable. The commencement time of 11am is uncontroversial. The club submits that the closing time of 9pm for the outdoor licensed area will allow evening bowls activities over the summer / daylight savings period. The residents seek to restrict this time to 7pm.
5. As a general rule, policies and guidelines about control of noise emissions and residential amenity adopt the evening period as being from 6pm to 10pm, with the night period commencing at 11pm.[5] Residential noise regulations[6] variously adopt 8pm, 10pm and / or 11pm depending on the noise source, likely degree of intrusion and time of week.
6. Given such a regulatory context, I find a 9pm period to be acceptable for the reasons given by the club to allow some evening activity while balancing the protection of residential amenity. It is a period that falls within the regulatory period of 'evening' where some background noise may still be expected without unduly intruding into amenity.
7. Linking with this condition the Council ahs proposed a requirement to ensure noise levels do not exceed the objective criteria set under condition 5. These are related to the calculations of the State Environmental Protection Policy N-1 (Control of Noise from Industrial, Commercial and Trade Premises within Metropolitan Melbourne).
8. This policy works by establishing what are appropriate background noise levels and then setting criteria for emissions that do not unreasonably exceed these levels. The methods for noise impacts assessment in SEPP N-1 provides for tonal or impulsive penalties, such as noise with a strong bass component.
9. However the SEPP N-1 is not a policy that is strictly applicable to this club premise, its use or to patron noise. Indeed, there are no Victorian criteria for patron noise.
10. The intent of this condition is clear however. It is to provide an objective gauge of amenity impact. This intent is commendable and should be supported; the difficultly lies in the manner in which this condition seeks to impose the requirement. I will direct the condition to be amended so that the techniques used to calculate the potential noise impacts as set out under SEPP N-1 are adopted to satisfy the intent rather than the more questionable matter of complying with a policy that strictly is not applicable.
11. The NoD condition 3 requirement for club rules to manage the sale and consumption of alcohol are in my view appropriate. Apart from one amendment about the management responsibility, I see no need to amend this further.
12. Two substantive issues remain outstanding: the number of patrons that may attend the facilities and a general amenity condition. The residents seek permit conditions to address both these issues. I am not persuaded that there is sufficient nexus for this permit to increase the licensed area to address general amenity conditions. Those potential amenity impacts that are relevant are in my view sufficiently addressed by the conditions (as amended).
13. I accept that an increasing the licensed area has a direct nexus with patron numbers. The Council, through condition 4 has sought to control patron numbers. The proposed terms of this condition limit numbers inside the clubroom. I will direct that this condition be amended so that its limits the total patron number to that which can be accommodated within the club room area, which I am told is approximately 100.[7] Given competitions may have up to 70 players on the green, an additional allowance for friends or family does not seem unreasonable to support club activities. While the residents seek a lesser number for the outdoor area, to attempt to limit different numbers of people inside and out introduces complexity that is too much for a club based / volunteer management regime. Simple, clear rules and controls will be more effective.
14. I have directed the amendment of a number of other conditions that flow from the above reasons. I will not detail these changes here.

1. This application is for an increase in a licensed area to serve and consume alcohol. The residents around St Vincent Gardens have expressed a number of concerns that while linked to the liquor licence are largely based on past activity at the club rooms and bowling green area which is acknowledge by the club and the Council. The Council has sought to strike a balance between the protection of the residents amenity and the club's operations.
2. For the reasons I have set out I agree with the position of the Council that the needs of the club and the residents can be balanced within the context and the jurisdiction of this application. A stated goal of the planning scheme requirements in licensing matters is to address the potential for amenity impacts. However this extends only to the activity of the serving and consumption of alcohol. Many of the complaints of the residents go to the issue of land use. That is a separate matter. In so far as the licensing issues are to be addressed, I conclude that the potential for amenity impacts can be addressed through appropriate permit conditions.
3. I therefore agree with the Responsible Authority's decision to grant a permit. I will however direct amendments to the proposed permit conditions to provide for an appropriate level of management in the serving and consumption of liquor.

Use of the land for the purpose of sale and consumption of liquor under a new Restricted Club Licence only in association with bowling club activities at the Albert Park Bowls Club in the area defined by the endorsed plan and subject to the following conditions. in accordance with the endorsed plans and permit conditions.

1. The sale and consumption of liquor within club rooms by members and their guests may only take place between the hours of

The consumption of liquor beyond the club rooms by members and their guests may only take place between the following hours:

1. The club must submit to the Responsible Authority a set of Club Rules prior to the commencement of the use of the licensed area for the sale and consumption of alcohol in accordance with this approval. The Rules must be to the satisfaction of the Responsible Authority with regards to the sale and consumption of alcohol on the land. Once endorsed the Club Rules will form part of this planning permit. All members and their guests must comply with the Rules whilst attending the Club and the Club must make best endeavours to ensure compliance with the Rules. The Club Rules must include, but not be limited to:
   • (a) Attendance of at least one full time club member who will be responsible for managing the facility during all activities.
   • (b) Attendance at activities is confined to members and their guests and how this will be managed to ensure compliance with the Liquor Licence and Planning Permit.
   • (c) The measures to be taken to encourage patrons not to cause nuisance or annoyance to persons beyond the land and depart the premises and the surrounding area in an orderly manner.
   • (d) A telephone number provided for residents to contact the premises and linked to the complaints register;
   • (e) The maintenance of a complaints register.
   • (f) The keeping of a register recording the number of guest activities per week and the days/times they take place.
   • (g) Liaison with Victoria Police, the City of Port Phillip and local: residents the latter possibly being through an ongoing working group consisting of at least two club members and two local residents.
2. This permit authorizes the Club to supply liquor on the licensed premises to a member of the club or a guest of a member for consumption on the licensed premises only.
3. The number of persons who may attend any activity within the licensed area is limited to the number of persons able to be accommodated inside the club room at any one time in accordance with the Building Regulations.
4. Noise levels emissions from activities beyond the licensed area, including patron noise, must not exceed the noise levels that would be permissible when calculated by the methods set out in the State and Environment Protection Policy N-I (Control of Noise from Industrial Commercial and Trade Premises within the Melbourne Metropolitan Area).
5. The Licence holder must require that staff engaged in the service of alcohol undertake a "Responsible Serving of Alcohol' course.
6. Bottles must be bagged during operation times and must not be emptied into external refuse bins after 10pm or before 8am Monday to Saturday or after 10 pm or before 10am on Sunday, except with further written consent of the Responsible Authority.
7. No live or amplified music is to be played outdoors at the premises.
8. An adequate waste management arrangement must be provided for the premises to the satisfaction of the Responsible Authority.
9. Deliveries to and from the site, including rubbish collection, must only take place between:
   • (a) 7.00am and 10.00pm Monday to Friday
   • (b) 7.00am and 10.00pm Saturday
   • (c) 10.00am and 9.00pm Sunday
10. No goods are permitted to be stored or left exposed outside the building so as to be visible from any public area.
11. This permit will expire if the use of the land as hereby permitted is not commenced within two years of the date of this permit.

[1] These principles are more fully discussed in Sawnrite Pty Ltd v Yarra Ranges SC [2009] VCAT 2715 [9] to [19].

[4] This follows on from the considerations of the Tribunal in Swancom Pty Ltd v Yarra CC (includes Summary) (Red Dot) [2009] VCAT 923] case and an underpinning principle when considering cumulative impacts, which is not at issue, but relevantly part of that consideration is the form of the venue and therefore the behaviour one might expect of patrons.

[5] State Environmental Protection Policy N-1 and EPA Publication TG302/92.

[6] Environment Protection (Residential Noise) Regulations 2008.

[7] This figure is based on building regulations and the cub house floor area.