[2006] VCAT 153

The order of the Tribunal is that the decision of the Responsible Authority is affirmed.

The Tribunal directs that a permit must not be granted.

Ms S Brennan of Counsel instructed by Williams Winter Solicitors.

Ms Brennan called Mr S McGurn, town planner of Fulcrum Town Planners, Ms L Hui acoustic consultant of Marshall Day Acoustics, Mr S Hunt, traffic engineer of Grogan Richards and Mr M Healy, architect of Six Degrees, to give evidence.

1 This is an application to review the decision of the Responsible Authority to refuse permission to demolish part of an existing building used as a hotel and to construct a three storey building above a basement which will continue to be used for the purpose of a hotel, at 36 Inkerman Street, St Kilda. The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The proposal would be detrimental to the amenity of the residential properties behind, principally by way of noise.

2. The development by way of its layout and subsequent use patterns, would not be adequately site responsive to the immediate constraints and is not considered an integrated response to those conditions.

3. There would be insufficient car parking proposed on site and insufficient empirical justification has been given warranting the dispensation proposed.

4. The proposal is consequently considered an overly intense expansion of the existing use.

2 The application is made on grounds which refute each of the grounds of refusal.

3 At the commencement of the hearing Ms Brennan applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Ms Brennan's request.

4 It is proposed to substantially demolish an existing hotel while retaining the front portion of the building (8.5 m in depth) and the front façade and to undertake a substantial, three storey redevelopment to the rear of the retained section. The existing use of the site as a hotel is proposed to continue but the increased scale and level of intensity is reflected in the proposal to increase the maximum number of patrons under the hotel's license from 93 to 650. Ms Brennan appropriately described this proposal as an ambitious project.

5 The retained section of the existing building will contain a landing and courtyard above a cool room and dry store basement. A three storey building above a basement is proposed to be constructed behind the retained section. The basement is proposed to contain ten parking spaces, service rooms, a function room, toilets and loading bay accessed off a lane which runs along the eastern side of the hotel. At ground floor level, the new building is proposed to contain an "arrival area" behind the two entries and a courtyard, a raised dining area adjacent to a bar with further seating and a kitchen behind. An outdoor seating area and two external courtyards are located at the rear of the site. A 5.8 m high concrete wall (5.0 m high measured on the northern side), setback 1.9 m from the rear boundary, separates the site from the residential area to the north.

6 At the first level, the new building is proposed to contain a variety of rooms including a 70 m2 lounge, conference room, smoking room, two "private rooms", toilets, kitchen and office. The upper level contains a roof top pool and lap pool, with associated outdoor seating, change rooms and showers.

7 I note there was some dispute between the Council and Mr McGurn's evidence about the quantum of the additional floor space. Ms Cincotta submitted that the figure is 850 m2 while Mr McGurn referred to a figure of 1135 m2. I suspect that the difference is related to a judgement about what constitutes floor space available to the public, but in any event the magnitude of the increase is similar whichever figure is adopted and I have adopted the figure of 850 m2 comprising 496 m2 of what could be considered bar area and 355 m2 of what could be considered to be lounge area.

8 The height of the new building is proposed to vary due to the slope of the land which rises from the front to the rear. The east elevation would have a maximum height of 12.2 m at the front and 8.8 m at the rear. The west elevation would be approximately 12.6 m at the front and 9 m at the rear. The lift well and roof top structures protrude above that height. The building is proposed to be setback approximately 20 m from the rear boundary although external courtyards are located within that setback. There are also a series of noise attenuation structures located within the setback including the 5.8 m high wall mentioned above, and a 3 m high wall at first floor level.

9 The proposal involves a variation to the existing liquor licence to allow 650 patrons at all times and to increase operating hours to allow trade between 7.00 am to 3.00 am. The existing licence allows hours of operation from 7.00 am to 1.00 am, except Sundays (11pm), with trade between midnight and 1.00 am limited to the bar/lounge area. The existing licence contains no controls over patron numbers before midnight, after which there is a limit of 35 patrons in the dining room/lounge and 58 patrons in the bar/lounge.

10 With respect to patron numbers, the application proposed 650 patrons however Mr McGurn in his evidence recommended a reduction to 550 and Mr Hunt's car parking assessment was undertaken on the basis of that number.

11 The review site is located on the north side of Inkerman Street, between St Kilda Road to the west and Barkly Street to the east. The site has a frontage to Inkerman Street of 15.19 m, a depth of 69.14 m and an area of 943 m2. The site is currently occupied by a two storey hotel which is constructed on both side boundaries and extends over approximately the front half of the site. To the rear of the hotel there is a storage building and an open area used for car parking, with approximately 16 spaces available in an informal arrangement. A narrow, 2.5 m wide lane runs along the eastern side of the site

12 The rear yards of residential properties which front Charles Street are located to the rear of the site. Charles Street and the area to the north site are predominantly residential in character and rises above the review site as the land slopes up from Inkerman Street.

13 Three residential properties have a direct abuttal to the rear of the review site. No. 17 Charles Street is located directly behind the review site and its rear boundary corresponds with the majority of the review site's rear boundary. No. 15 Charles Street is one of a pair of double storey dwellings located to the east of no. 17 while no. 19 Charles is located to the west of no. 17. The principal private open space of each of these dwellings has a direct abuttal with the review site.

14 Abutting the site to the east is a three storey commercial building while the site to the west is currently vacant, but a permit has been issued for the development of this site with a four storey building containing offices and a ground floor café. Opposite the site on the south side of Inkerman Street a residential development is currently under construction on the site of the former Council depot, while five and six storey commercial and residential developments occupy sites to the east of the former Council depot.

15 Other land uses in this section of Inkerman Street include a machinery hire business, art gallery, a Telstra exchange building, car wash, paint shop, café/restaurant and dwellings.

16 Inkerman Street was described as a secondary arterial road and in the vicinity of the site has a carriageway width which allows one lane of traffic in each direction and a shared traffic/parking lane in each direction. Parking is permitted on each side of the street but is generally restricted to 1 hour between 9 am and 4.30 pm Monday to Saturday on the northern side and between 9 am and 5 pm Monday to Saturday on the southern side. Clear Ways are designated between 4 pm and 6.30 pm and 7 am and 9 am Monday to Friday.

17 The site is located approximately 600 m north of Acland Street which forms part of the St Kilda Major Activity Centre.

18 The site is zoned Mixed Use under the Port Phillip Planning Scheme. The purpose of the zone is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality.

To encourage residential development that respects the neighbourhood character.

19 A hotel is a section 2 permit required use in the zone however a permit is not required to use the land for the purpose of a hotel as the site enjoys existing use rights for that purpose. A permit is required pursuant to Clause 63.05 of the Scheme which provides that:

A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:

•

No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.

•

Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.

•

The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.

20 Decision guidelines under Clause 63.12 require that before deciding on an application under Clause 63.05, 63.08 or 63.10, in addition to the decision guidelines in Clause 65 and any other requirements of the Act, the responsible authority must consider the extent to which compliance can be achieved with all scheme requirements that can reasonably be met.

21 A permit is required to construct a building or construct or carry out works for a use in Section 2.

22 The site is also affected by a Heritage Overlay (HO5) and a permit is required to demolish a building, construct a building, construct or carry out works. The building on the site is graded significant under the Port Phillip Heritage Review.

23 An Environmental Audit Overlay also applies to the site however no sensitive uses are proposed as part of this proposal.

24 Pursuant to Clause 52.06-1 a new use must not commence or the floor area of an existing use must not be increased until the required car spaces have been provided on the land. The table to Clause 52.06-5 requires car parking to be provided at a rate of 60 spaces per 100 m2 of bar floor area available to the public plus 30 spaces per 100 m2 of lounge floor area available to the public. The application of these rates to his proposal equates to a parking requirement for some 400 spaces. I note that the Council acknowledged that this represents an unrealistic and excessive parking requirement and in its assessment of the application applied a rate of 0.2 spaces per patron, generating a parking requirement of 130 spaces based on 650 patrons. Ten spaces are proposed on site.

25 A permit may be granted to reduce or to waive the number of car spaces required by the Table. Decision guidelines require consideration of the following:

•

Any relevant parking precinct plan.

•

The availability of car parking in the locality.

•

The availability of public transport in the locality.

•

Any reduction in car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces.

•

Any car parking deficiency or surplus associated with the existing use of the land.

•

Any credit which should be allowed for a car parking demand deemed to have been provided in association with a use which existed before the change of parking requirement.

•

Local traffic management.

•

Local amenity including pedestrian amenity.

•

An empirical assessment of car parking demand.

•

Any other relevant consideration.

26 A permit is required to extend the hours of trading on an existing Liquor Licence pursuant to Clause 52.27 of the planning scheme.

27 A vast array of policies are, to varying degrees, of some relevance to the consideration of this application. These polices relate to matters such as metropolitan development (Clause 12), activity centres (Clause 17.01), business (Clause 17.02 and 21.05-8), tourism (Clause 17.04 and 21.05-6), neighbourhood character (Clause 21.05-3), residential amenity (Clause 21.0-5-1) urban design (Clause 19.03, 21.05-4 and 22.06), heritage (Clause 15.11, 21.05-5 and 22.04), mixed use areas (Clause 21.05-12), car parking and public transport access to development (Clause 18.02 and 21.05-11).

28 Both Ms Cincotta who appeared for the Council and Mr McGurn who was called to give evidence by the applicant for review, provided a detailed summary of the applicable policy provisions and it is not necessary for me to repeat that material in this decision. Notwithstanding the voluminous nature of this material, and the complexity and repetitiveness of both its structure and content, the primary policy influences can I think, ultimately be distilled down to the following key points:

a

There is a recognition of the important role played by entertainment uses in contributing to the lively, vibrant character of St Kilda, and in fostering tourism and business development in the municipality.

b

There is also recognition of the potential adverse impacts of entertainment uses on the amenity of adjacent residential areas. A need exists to ensure that such uses are appropriately located and the intensity and hours of such uses are managed to achieve a reasonable balance between the encouragement of entertainment uses and the protection of residential amenity.

c

Principal and major activity centres are identified as the preferred location for major retail, commercial, administrative, entertainment and cultural developments.

d

Mixed use areas are intended to provide for a range of residential, commercial, industrial and other uses that complement the mixed use function of the locality. In particular these areas provide an opportunity for increased residential use which supports urban consolidation objectives. Commercial and industrial uses are required to be compatible with residential uses.

e

With respect to the St Kilda Central Mixed Use Area specifically the following policy outcomes are sought:

•

The transition of the area from industrial to mixed use by encouraging a diversity of land uses in the area including residential, office and compatible light industrial uses.

•

The redevelopment of the area for medium density residential uses in order to achieve urban consolidation objectives and develop the existing shopping centre as an urban village.

•

Local convenience retailing centred on the intersection of Barkly, Grey and Inkerman Streets.

•

New development which respects the medium four and five storey scale of development in Inkerman Street and the lower one and two storey scale of development in other streets.

•

Buildings in Barkly, Vale and Inkerman Streets to have a zero setback.

f

Require applications for new developments which result in increased parking and through traffic to be accompanied by traffic and parking assessment reports which identify the impacts of the new development.

g

Encourage the conservation and retention of significant and contributory buildings and to encourage new development or redevelopment to be respectfully integrated with surrounding character.

29 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. I inspected the subject land and its locality subsequent to the hearing and unaccompanied by the parties.

30 The site enjoys existing use rights as a hotel and, notwithstanding the substantial increase in floor area (an additional 850 m2 or 159% of the existing floor space), the increase in the number of patrons from 93 to 650, the increase in trading hours, and the increase in the range of facilities and services intended to be made available to patrons (external courtyards, swimming pool, function rooms, conference room), it was Ms Brennan's submission that there is no change to the activities on site which will continue to include food, drink and entertainment, all of which are contemplated within the definition of hotel. In Ms Brennan's submission this proposal represents a contemporary interpretation of the traditional "local pub".

31 Ms Brennan's submission that the proposal can be considered as a continuation of an existing use was not disputed by the Council although it was submitted that the nature and magnitude of the changes to the existing hotel lead to amenity impacts which are unacceptable and which are greater than those currently associated with the existing use. Mr Kenyon submitted that the proposal represents the transformation of an existing, small scale local pub at the end of its life, into an "icon" night club which will have impacts beyond that which could be contemplated for the existing hotel. Mr Kenyon did not however pursue a submission to the effect that the proposal could not be considered within the legislative and planning scheme framework for an existing use.

32 There are two principal issues which require my consideration in this matter. The first issue relates to the amenity impacts associated with the proposal while the second is concerned with the acceptability of the effective waiving of car parking for the proposal.

33 For reasons which I elaborate on below, the proposal fails to achieve acceptable outcomes on both issues.

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.

49 Mr Hunt provided a detailed empirical assessment of the car parking demand likely to be generated by the proposal (based on a maximum patron number of 550) and of the capacity of existing on street parking to accommodate the anticipated demand.

50 As I have indicated previously Mr Hunt applied a parking rate of 0.2 spaces per patron which the Council had accepted as being appropriate. I note that Mr Kenyon disputed the appropriateness of this rate but for the purposes of my assessment of Mr Hunt's evidence I have accepted that the rate represents a reasonable basis upon which to proceed.

51 After making an allowance for the parking demand generated by the existing hotel, modifying the parking demand on the basis of an anticipated occupancy rate in the hotel and quantifying the availability of on street parking in the vicinity of the site, Mr Hunt concluded that:

A review if Figure 6 shows that during the peak operation of the development on a Friday the anticipated peak parking demand will be for 110 spaces at 9.00pm.

During this time there is an availability of 131 on street spaces excluding existing demand for 3 spaces, therefore there are a total of 134 spaces available within a convenient walking distance of the site, of which 110 would be utilised by the development.

Figure 5 indicates that during the peak operation of the development on a Saturday evening the anticipated peak parking demand will be for 110 spaces with an existing demand of 7 spaces.

During this time there is an availability of 123 spaces excluding the existing demand for 7 spaces, therefore there are a total of 130 spaces within a convenient walking distance of the site suitable for use by hotel patrons.

52 The observation I make about the above analysis is that the proposed development at peak times will occupy some 82% of publicly available parking at that time of the evening, over a distance of some 300 m from the site. While I acknowledge that the peak time is confined to a relatively short period between 8.30 and 9.30 pm, an occupancy of that magnitude does provide a strong indication that the proposal at the intended scale and intensity of use, places an excessive reliance on on-street parking and the ability of the available parking to adequately accommodate the proposal is likely to be very sensitive to fluctuations in parking demand generated by other uses in the locality and to fluctuations in the parking demand generated by the proposal itself. I note in this respect that under cross examination from Mr Kenyon, Mr Hunt acknowledged that at the time that the parking surveys were undertaken, the St Kilda Inn located at the corner of Grey and Barkly Streets to the east of the review site was closed as it was undergoing redevelopment. I was advised that this a hotel venue with a capacity for 340 patrons. Similarly Mr Hunt was also unaware as to whether any events were being staged at the National Theatre at the time of the surveys. Submissions were made to me that there was not.

53 It is also of some concern to me that the Greeves Street/Barkly Street/Inkerman Street loop was included in the calculation of available parking without any particular allowance being made for the street prostitution activities conducted on those streets. I agree with Mt Hunt that while some patrons may be prepared to park in these streets, there will be others who will not.

54 The impact of the proposal will be to increase competition for on-street parking in this locality to a point whereby at peak times, such parking will simply not be available within the survey area.

55 Ms Brennan urged me to adopt what has come to be known as the "centre based approach" to the consideration of the car parking issue. The basis of this approach has been conveniently summarised by the following statement of the Tribunal in a decision subsequently upheld in the Supreme Court[2] :

The basic approach in these decisions is that in important activity centres car parking considerations should not be determinative, instead the land use mix in a centre should arise from a combination of strategic planning and the economic forces at work in the centre, car parking issues have a part in this but should not dominate. At the level of the individual site where there is a change of use or an extension to an existing building in most circumstances car parking shortfalls should be waived if it is consistent with the strategic plan for the centre, firstly because the most equitable solution is to deal with carparking on a centre wide basis, and secondly because even in saturated car parking conditions a balance will occur between the level of activity and the car parking supply......

56 I agree with the principles of the centre based approach as enunciated in the above decision, but I am not persuaded that they are appropriately applied in the context of this site which is not located in an activity centre.

57 The first observation I make about the appropriateness of the centre based approach to this site is that, for the reasons I have outlined previously, I do not think that this proposal is consistent with the strategic plan for this locality. As a consequence, the waiving of car parking for a development which will contribute to a circumstance in which a single use will effectively consume all available on-street parking at peak operating times, is not supported by the policy framework of the planning scheme. In circumstances where a policy framework of the scheme identified this locality for redevelopment for intensive entertainment related uses, a different outcome could be contemplated but that is not the policy context within which this application is being considered.

58 The second observation I make about the appropriateness of the centre based approach is that I do not think that this mixed use precinct ought to be treated as part of the tourist oriented area of St Kilda, primarily because it is not sufficiently proximate to Fitzroy Street and Acland Street to enjoy that status, but also because I do not think that the planning scheme treats the precinct in that manner. While there is recognition in the policy framework of the lively, vibrant character of St Kilda and of the important role of entertainment uses in creating that character, there is also an attempt to confine the impacts of those entertainment uses, including car parking impacts, to particular localities. The St Kilda Central Mixed Use zone is not one of those localities.

59 Issues relating to the acceptability of the built form from a heritage and streetscape perspective, were also raised during the course of the hearing.

60 Having regard to the fact that the application has failed on the grounds detailed above, I do not intend to provide detailed findings on these built form issues other than to record my findings that the combination of the retention of the front section of the existing building and the design of the proposed building achieves acceptable heritage outcomes. The height, scale and bulk of the building is also consistent with the existing and emerging character of this locality.

61 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be affirmed and no permit granted.

[1] Ms Hui relied on the definition of background as determined by the Tribunal in Whiting v Hosier Bar Pty Ltd [2005] VCAT 814. In summary the Tribunal found that background music is music played at a level that enables patrons to conduct a conversation at a distance of 600mm without having to raise their voice to a substantial degree.

[2] Sansmark Pty Ltd v City of Boroondara [1998] 22 AATR 103