34 Ms Brennan submitted that the consideration of the amenity impacts of this proposal must be undertaken in the context of the site's zoning which is Mixed Use, and having regard to the existing amenity of the locality which was described as having a very busy night life by virtue of its location in the heart of St Kilda's red light district.
35 It was further submitted that the potential amenity impacts associated with the proposal are capable of being managed and that the design of the proposal has appropriately responded to the site's interface with its residential neighbours.
36 The primary treatment intended to contain the noise impacts associated with the use, is the construction of the 5.8 m wall, setback 1.9 m from the site's rear boundary at ground level, and the 3 m wall on the north side of the first floor outdoor deck. Complementing these measures it is proposed to limit the use of the outdoor areas to 1 am with only background music being permitted in this area. Ms Brennan relied on the evidence of Ms Hui with respect to the adequacy of the acoustic treatment. It was Ms Hui's evidence that, subject to the implementation of recommended noise treatment measures, internal music noise from the various noise sources within the building will achieve SEPP N-2 noise limits at the nearest residential property. In Ms Hui's evidence the SEPP N-2 noise limits are also predicted to be met for music noise from outdoor areas provided that any amplified music is played at background levels.[1] Ms Hui also predicted that in addition to compliance with SEPP N-2 the maximum noise levels of voices of rowdy patrons in outdoor courtyards, roof top decks and in the external stair well will not exceed nominated sleep disturbance criteria at the façade of the nearest residential properties.
37 Ms Cincotta and Mr Kenyon were critical of the design approach adopted by the applicant which in their submissions, reflected a desire to maximise the provision of functional areas and patron numbers on the site, with the treatment of sensitive interfaces being a secondary consideration or an afterthought, rather than as part of an integrated design approach. The location of an extensive external courtyard at the rear of the site at the residential interface, and the provision of external upper level and roof top activity areas, was seen as being illustrative of this design approach.
38 I have some sympathy with these submissions. While I accept Ms Hui's evidence concerning the control of music and crowd noise, I regard the proposed 5.8 m high acoustic wall along the rear boundary, set behind a 1.9 m landscaped setback, as a particularly blunt tool by which to achieve compliance with noise exposure standards. It imposes what I regard as an unacceptable visual impact on the amenity of adjoining residential properties and I do not agree with Mr McGurn that the incorporation of patterned elements in the wall and the opportunity to landscape the 1.9 m setback, is sufficient to create a satisfactory interface.
39 My findings in this respect have been arrived at notwithstanding the fact that the development immediately to the east of the review site presents a 6 m high wall to the residential interface. I regard this as a most unfortunate built form outcome and I do not think it ought to be relied upon as any form of justification for the current proposal.
40 Nor am I persuaded by the submissions made that the proposed interface treatment is acceptable in the context of the Mixed Use zoning of the area. I acknowledge that this is not what might be termed a pristine residential location in which residents can legitimately lay claim to expectations of amenity standards which might reasonably apply to a more homogeneous residential location. I do not however equate this location as one in which residential amenity expectations can be relegated to a status which is subservient to the encouragement of commercial or entertainment uses. I contrast the Mixed Use zone to, for example, the Business 1 zone, the purpose of which is to "..encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses". At the interface between a Residential 1 and a Business 1 (or similar) zone, it has long been accepted that residential amenity expectations need to be appropriately modified in recognition of the intensity of development and uses intended to be concentrated in activity centres.
41 I do not think that this principle can be applied to the St Kilda Central Mixed Use zone, or at least not to the degree that would be necessary for me to find this proposal acceptable. There is a strategic or policy context to the consideration of the amenity impacts of this proposal and as I have outlined previously, the policies intended to influence the development and use patterns in this Mixed Use zone emphasise the transition of this area to a primarily residential location with compatible office and light industrial uses. This area is in fact one of the Council's designated locations for the provision of higher density residential development intended to achieve urban consolidation objectives. An examination of the pattern of recent development in Inkerman Street in particular, indicates that the area is undergoing a transition generally in line with the policy directions contained in the planning scheme. This policy context does not of course preclude either the introduction of new entertainment uses or the expansion of existing uses, but it does require careful consideration to be given to applications for such uses to ensure that they are appropriately located and are of a scale and type that are capable of functioning in a manner which does not prejudice the ongoing transition of the area from industrial to mixed use with a residential emphasis.
42 I am not satisfied that this proposal is consistent with the achievement of the policy outcomes for this locality.
43 It is often the case that with uses of the scale and trading hours of the type proposed here, that the adverse amenity impacts derive from the activities of patrons outside the premises, a circumstance often difficult for hotel management to adequately control. The objectors raised concerns about this aspect of the proposal and the likelihood that the amenity of the residential area to the north will be adversely affected by the comings and goings of patrons to the hotel especially late at night and in the early morning.
44 In my view, the amenity impacts of this nature are more likely to be experienced in Inkernam Street rather than Charles Street. I agree with Mr McGurn's evidence that the streets to the north are sufficiently disconnected from the frontage of the hotel to ensure that the infiltration of patrons to the north will be minimised.
45 Having regard to the relatively high traffic volumes in Inkerman Street, the existence of a range of non residential uses fronting the street, and the level of night time activity associated with the review site's proximity to the St Kilda red light district, Inkerman Street is clearly a less sensitive location in terms of residential amenity issues than the streets to the north. As I have outlined above however, the locality is undergoing a transition in land use in accordance with the policy framework of the planning scheme and there is no reason to expect that the increased residential focus of the locality will not continue.
46 It was the applicant's submission that, to the extent that patron's late night activities in Inkerman and nearby streets need to be controlled, they are capable of being adequately managed through the imposition of permit conditions requiring crowd management initiatives to be implemented.
47 The difficulty I have with this submission is that notwithstanding the best endeavours of hotel management, patron behaviour outside hotels and similar venues, do have the potential to cause substantial disruption to the amenity of a locality. In broad terms the larger the venue and the longer the trading hours, the greater the potential for amenity impacts. It is for this reason that the preferred approach should always be to ensure that venues which have the potential to give rise to these impacts are appropriately located in the first instance so that there is a reasonable separation between them and residential uses. There are in my view sound planning objectives underpinning the policy encouragement for the location of intensive entertainment uses in major activity centres where the potential amenity impacts are capable of being absorbed. These planning objectives are not only concerned with protecting residential amenity, but are also concerned with ensuring that intensive entertainment uses are capable of functioning without the constraints which arise where sensitive interfaces exist.
48 The review site does not enjoy the advantages of an activity centre location and I have not been persuaded that the context of the site, including its Inkerman Street frontage and the mixed nature of uses surrounding it, is such that its potential amenity impacts are capable of being contained to a level in which the emerging residential amenity of Inkerman Street will not be compromised.