1. Pursuant to Section 124 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal declares that no further planning permission is required for the use of the rooftop area of the existing building at 54-60 King Street Melbourne for the purpose of a nightclub.
2. The decision of the Responsible Authority is set aside.[1] In permit application TP-2008-824 a permit is granted and directed to be issued for the land affected by a Heritage Overlay at 54-60 King Street, Melbourne. In relation to the rooftop level of the building on the land, the permit shall allow partial demolition and the construction of a covered seating area, stage and bar area and associated works, in accordance with the endorsed plans provided and the permit conditions set out in Appendix A.

Mr Paul Connor of Counsel, instructed by Gary Prince, Solicitor (on 13 October 2009).

Mr Michael Wright QC, with Mr Paul Connor of Counsel, instructed by Gary Prince, Solicitor (on 10 & 11 February 2010).

Ms Martha Tsamis, the sole director of the applicant company, was called to give sworn lay evidence.

Mr James Livingston, planning consultant (on 13 October 2009).

Mr Matthew Townsend of Counsel (on 10 & 11 February 2010).

Mr Chris Townshend SC, instructed by Rigby Cooke Lawyers. Mr Peter O'Farrell of Counsel assisted Mr Townshend on 10 & 11 February 2010.

The proposal is for buildings and works approval in relation to works to the rooftop level of the building on the subject land. In most respects these works have already been done and hence the approval being sought is retrospective. The works involve the construction of a stage area, changing rooms, plant and equipment, covered seating area, bar, toilets and storage area.

Application under Section 79 of the Planning and Environment Act 1987 for review of the failure of the Responsible Authority to grant a permit within the prescribed time.

Design and Development Overlays: DDO1-A2, DDO1-A3 and DDO3

Clause 43.01-4: construct a building or construct or carry out works.

Clause 43.02 - DDO1 & DDO3: construct or carry out works.[2]

Clause 22.01 (Urban Design within the Capital City Zone)

Clause 22.04 (Heritage Places within the Capital City Zone)

The subject site is located on the eastern side of King Street, Melbourne, midway between Flinders Lane and Collins Street. To the rear there is a short laneway (Geddes Lane) that terminates adjacent to the northeast corner of the subject site. The laneway provides 24-hour access to the car park of the Rialto Towers building (at 525 Collins Street) to the east and northeast.

The site is developed with a double storey masonry building in the Classical Revival style. It is graded 'B' under the City of Melbourne's Heritage Inventory 2008.

The building was constructed in 1938 and originally used as a dairy produce showroom and store. Since 1979 it has been used for the purpose of a nightclub (trading as 'Inflation Nightclub'). Access is gained directly from King Street and also from Geddes Lane.

The building is one of four buildings of a similar scale on the eastern side of this section of King Street. The 'York Butter Factory' abuts to the north. The building abutting to the south is a bluestone building currently occupied by 'Bar 20'.

On the opposite side of King Street there is an eight storey building in which VCAT is the major tenant.

Site inspection The Tribunal inspected the subject site from various vantage points on numerous occasions.

1. On 23 September 2008 Patrick Dromi applied to the Melbourne City Council for retrospective approval of buildings and works constructed on the rooftop of the Inflation nightclub building.[3] The application form described the proposal as:

Proposed new covered seating area, stage area, amenities, bar, general seating, walls, roof and roof marquee works.

1. In response to the giving of notice of the application,[4] the Council received one objection - from Urbis (acting on behalf of Rialto Joint Venture Partners). As summarised in the planning officer's report, the objection raised the following concerns:
   • Existing use rights had not been proven
   • Noise associated with use of rooftop
   • Hours of operation not in line with draft licensed premises policy
   • Security problems associated with rooftop use and Geddes Lane usage
   • Intensification of use
2. Following an assessment and recommendations by the Council's Heritage Advisor, Mr Bryce Raworth, amended plans[5] were provided that set back the rooftop structure from the front façade. Mr Raworth subsequently indicated his general support for the proposal.
3. The report of the Council's delegate assumed the lawful status of the use of the rooftop and that the scope of the application was limited to buildings and works. It recommended that a Notice of Decision to Grant a Permit be issued.
4. However, prior to the delegate's report being considered at a formal meeting, the permit applicant applied for a review of the Council's failure to determine the application within the prescribed time.
5. Adopting the planning officer's recommendation, the Council's Planning Committee has since decided that had it been in a position to determine the application then an approval would be given, subject to conditions.[6]
6. The objector is a party in the proceedings. St Martins Management Pty Ltd[7] is a joint owner of the Rialto Towers and the owner and/or manager on behalf of the owner of several properties abutting or close to the subject site.
7. The matter was first heard on 13 October 2009 before Member Davies. Submissions principally related to whether the existing use of the rooftop area as part of the Inflation nightclub is lawfully established and whether an application solely for buildings and works could be validly considered by the Tribunal.
8. At the request of the applicant's representative, and with the agreement of the other parties, the Tribunal adjourned the proceedings. The adjournment was aimed at enabling an investigation of relevant documents and an opportunity for the applicant to produce evidence and submissions to support its argument for existing use rights.
9. The Tribunal made orders dated 15 October 2009[8] regarding various procedural matters. The Tribunal then received various further correspondence/documentation in the lead up to the further hearing, which the Tribunal has taken into account.
10. In accordance with notice given in the orders, the Tribunal was reconstituted with a legal member (being Member Martin) when the hearing recommenced on 10 February 2010. A copy of the signed Notice of Reconstitution was made available to the parties. The Tribunal then received further submissions and heard the sworn lay evidence of Ms Martha Tsamis over 10 and 11 February 2010.
11. The Tribunal has had the opportunity to review the rooftop area from both a ground and an elevated perspective, bearing in mind that the VCAT level 5 hearing rooms (which Members access via external hallways with large external windows) are located opposite and above the contentious rooftop works.
12. During the hearing Mr Townshend helpfully provided us with a chronology of his client's understanding of the operation of the nightclub on the appeal site. Since this chronology per se was essentially not contested by the other parties, and to avoid duplication, we have attached same as the 2nd Appendix to this decision.
13. In the light of the submissions and evidence provided at the hearing, and our inspections, we consider that there are two key issues to be determined.
14. The first issue is the threshold one of whether there is currently use permission for the purpose of a nightclub attaching to the rooftop part of the building on the land in relation to which buildings and works approval is now sought. The second issue is whether the proposed buildings and works are acceptable, especially in terms of heritage considerations.
15. As noted earlier, the current application does not seek approval for the use of the rooftop for the purpose of a nightclub. Accordingly, unless we determine that no permit is required for the use, it would be in our view inappropriate for us to consider the proposed buildings and works. In other words, if there were no use permission, it would not be appropriate to authorise the buildings and works as that would amount to a piecemeal approach.[9]
16. To the extent that the "validity of rooftop use" issue involves questions of both fact and law, the Tribunal's decision on this point is made by Member Martin alone as the Legal Member. Member Martin's finding here is that the whole of land including the rooftop area already has planning permission to be used for the purpose of a nightclub pursuant to the planning permit No. CM 1352 dated April 1979. Hence the Tribunal has no problem with the planning application before us simply seeking buildings and works approval.
17. With respect to the second issue, our finding is that the proposed buildings and works are acceptable. Essentially, there was no dispute between the parties on that matter. Rather, any controversy was restricted to the conditions that the permit should be subject to. We address that matter at the end of these reasons.
18. In setting out the reasons for our decision we do not recite all of the documentation tendered by the parties and provided as lay evidence, as all material is retained on the Tribunal's file.

Is planning permission required for the use of the rooftop for the purpose of a nightclub?

1. To the extent that the following comments and findings involve mixed issues of fact and law, they are made by Member Martin alone as the Legal Member.
2. It is not necessary to repeat the history of the operation of the nightclub, particularly with the benefit of the chronology tabled by Mr Townshend. However some key aspects are that:
   • No copy of the 1979 planning permit CM 1352 or of any endorsed plans for that permit can be found, despite recent searching by both the permit holder and Council.
   • However the Council Permits Register does record the granting of the permit - a copy of the relevant page from this Register (plus an accompanying one page Officer Report) was sourced and tendered by Mr Townsend during the two day hearing. The relevant Register entry is No. CM 1352, being part of information set out in column format, with the details entered by hand. In the column with the heading "Address of property" is entered the words "54-60 King St Melbourne". Under the heading "Proposed use" is written "Make alterations to existing 2 storey building to use it for a cabaret and restaurant".
   • It is common ground that the nightclub only commenced operating after the issue of the 1979 planning permit.
   • Although the current Planning Scheme does not include any defined term of "cabaret", it was agreed at the hearing that the scope of the earlier approval for "cabaret" includes the current defined term of "nightclub".
   • At the hearing all parties were content for the Tribunal to rely on the Permit Register (in the absence of a copy of the 1979 permit itself) as reliable evidence of the wording in the preamble of the 1979 permit;
   • It is also common ground that until 2004 there was no liquor licence for the serving of alcohol in the rooftop area and that only nightclub staff had access to this area[10].
   • A fence was erected on the rooftop pursuant to a 1995 planning permit but was then removed during or about 2000.
   • A liquor licence was issued on 1 November 2004 in relation to the rooftop area and the Tribunal understands that public access was allowed to the rooftop area thereafter. Council's position with this licence application was that there was no need for any associated planning approval[11].
   • The Respondent does not contest that the two main levels of the existing building plus the basement enjoy existing use rights for the purpose of a nightclub[12].
   • The indications are that where Council has recently[13] provided written confirmation of its view that the rooftop level of the building enjoys its existing use rights, this view was provided with minimal real investigation of the historical position (hence we can only give modest weight to this Council correspondence).
   • The operator is currently using the rooftop area pursuant to a rolling Council Temporary Occupancy Permit subject to various conditions, and it is clear that both Council and the Director of Liquor Licensing are looking to this decision to clarify the current uncertainty regarding the rooftop "use" issue.
   • Whilst the key single issue in this proceeding to be resolved is whether planning permission is still required for the use of the rooftop area for the purpose of a nightclub, Mr Townshend made it clear that much of the Respondent's practical concerns flow from what the Respondent sees as major safety/amenity/security problems and impacts posed by the use of the rooftop area by patrons. The Respondent argues that there has been no proper review by Council of these problems/issues and that (assuming the rooftop activities continue) the draft permit conditions proposed by Council do not adequately regulate the situation.
3. Having considered the issues raised by the parties, the Tribunal sees the two key points with this part of the proceeding to be:
   • whether the use of the rooftop area for the purpose of nightclub is already authorised by the 1979 planning permit; and if not
   • alternatively whether the Applicant can establish that existing use rights exist for the use of the rooftop area as a nightclub, pursuant to Section 63.05 of the Melbourne Planning Scheme. The Tribunal notes that the relevant case law indicates that a person asserting existing use rights has the onus of establishing them[14] - this in itself was not contested by Mr Wright.

Is the use of the rooftop area for the purpose of a nightclub authorised by the 1979 permit?

1. As stated above, in relation to the 1979 permit, the Permit Register indicates that the "Address of property" is "54-60 King Street Melbourne" and that permit preamble authorises "Make alterations to existing 2 storey building to use it for a cabaret and restaurant".
2. My finding is that this preamble to the 1979 planning permit is broad enough to authorise the use of any part of the land for the purpose of a nightclub, including the rooftop area.
3. In particular, it is critical that the description of the property does not distinguish between one part of the existing building compared to the other - it simply nominates the street address of the subject land.
4. Similarly the text in the preamble is generic in terms of the approval given to use the two storey building "...for a cabaret and restaurant". It is not as if the preamble shown in the Permit Register qualified the authorisation as being:
   • for the use of the two main levels and basement of the existing building for the purpose of a nightclub; or
   • expressly refers to endorsed plans which have been located and which show the rooftop area as being unavailable to patrons.
5. In relation to the failure of any party to locate the 1979 permit, I consider it reasonable and appropriate for the Tribunal to alternatively rely on the relevant contents of the Council Permit Register. Indeed, at the point in the hearing when Mr Townsend was able to supply the relevant pages from this Register, it is significant that Mr Townshend (sensibly) did not object to them being tendered and utilised by the Tribunal.
6. As the Tribunal is relying on the 1979 permit in finding that the proposed roof top buildings and works need no further use approval, there is no need for the operator to convince me that this rooftop area enjoys existing use rights for the purpose of a nightclub. This is consistent with the statement by Senior Member Byard in Bada Bing Bada Boom Pty Ltd v Darebin CC [2009] VCAT 2729 that "Of course the company does not need to rely on existing use rights if it can operate pursuant to an existing valid permit"[15].
7. Mr Townshend sought to bolster his case by relying on the fact that the operator in earlier years had provided correspondence/documentation to Council and/or the relevant liquor licensing body indicating the operator's understanding that patrons would not be allowed on the rooftop area. Even if the operator took this position, I do not see this as impacting in any significant way on my analysis of the proper scope of the 1979 permit which I have set out above. In other words, the key issue is the proper interpretation of the scope of the 1979 permit, not what the operator's own view of the situation was. It is also unclear whether the operator necessarily obtained specialist advice on these fairly sophisticated planning issues at these earlier periods.
8. In relation to the TP 95/911 planning permit dated 1 December 1995 which permitted the erection of security fencing on the rooftop area, this permit did include Condition 4 providing that "The roof level shall not be used for purposes associated with the primary use of the land". However it was common ground at the hearing that this fence was removed by 2000. Relying on the authority of Benedetti v Moonee Valley City Council [2005] VCAT 434[16], the Tribunal is satisfied that Condition 4 ceased to have any effect once the structure in question (ie the fence) was fully removed by 2000.
9. The Tribunal acknowledges Mr Townshend's submission that (on the presumption of regularity) it should be assumed that:
   • there were plans endorsed as part of the 1979 permit and there was a standard condition in that permit providing that the approved use and development must not be altered or modified without Council's approval; and
   • these endorsed plans (like the building plans which were approved relatively soon after the issue of the 1979 permit) show the rooftop area as being unavailable for use by patrons

with the result that the 1979 permit (following this line of thinking) never gave any planning approval for the use of the rooftop area for the purpose of a nightclub.

1. Mr Townshend also argued that the facts in question here can be distinguished from the Tribunal/Court's approach in the previous decision of Southern Property Corporation Pty Ltd v Stonnington CC & Ors [2006] VSC 435 (otherwise known as the Argo Hotel case).
2. Tackling Mr Townshend's first submission, I am struggling to give his "presumption of regularity" approach any significant weight, for the following reasons:
   • Bearing in mind that the planning permit in question was issued over 30 years ago, it cannot be known for sure whether there were in fact any endorsed plans issued pursuant to that permit. I understand that the issuing of permits was somewhat more rudimentary in this earlier period. It also goes against Mr Townshend's submission that the Planning Officer Report to the relevant MCC Committee (which was provided together with the relevant pages from the 1979 Permit Register) makes no reference to any plans to be endorsed.
   • Similarly I cannot know with certainty that the permit contained any "The approved use and development cannot be changed without Council approval" type permit condition. Again the Planning Officer Report makes no reference to this.
   • Even if it is assumed that endorsed plans were issued, I do not see it as inevitable that they would strictly follow the format of the approved building plans which followed soon afterwards. In other words, one cannot rule out the possibility that the Planning Department of the day might take a different approach on the details of the plans to that taken by the Building Department.
3. I move now to the second of Mr Townshend's submissions. The flaw I see in his argument that "the Argo Hotel decision turns on its own facts" is that Mr Townshend's basic position here depends on the Tribunal accepting (on the presumption of regularity) that there were endorsed plans issued showing the rooftop area as unavailable to patrons and an accompanying "no change to the approved use and development without Council approval" type permit condition.
4. For the reasons set out above, I consider that there is sufficient doubt regarding the status of the endorsed plans (if any) that it would be inappropriate for me to give priority to the "presumption of regularity" where that presumption is being challenged by the Applicant and the 1979 permit simply cannot be located.
5. For the removal of any doubt, my finding that the rooftop area does not require any further planning approval to be used as a nightclub springs from the scope of the 1979 permit, and I do not need to rely on the Argo Hotel decision in making this finding. However I can indicate in passing that I do see the known facts in question here as having some similarity to those before the Tribunal in the Argo Hotel case. This is in the context of the Argo Hotel decision being favourable to the Applicant in terms of the decision:
   • declining to take a stratified approach to the extent of contested existing use rights; but instead
   • taking an expansive approach to resolving whether existing use rights can be said to apply to the whole of the building in question - see for example the following passage from the Tribunal decision that was supported in the Supreme Court decision.

The existing use rights of the Argo Hotel are not confined to providing public facilities on the ground floor and any reference to impact that the use of the hotel may have on the adjoining residential area does not confine its existing use rights to that of the ground floor only. The activities conducted on the land may change, they may increase or decrease, as long as the same purpose is served. Nor is it necessary to show that all of the land is used for a given purpose, the whole of the land may be regard as used for that purpose.

1. Before leaving this section of the decision, I can clarify that I agree with Mr Townshend to the extent that he invited me to make a declaration pursuant to Section 124 of the Victorian Civil and Administrative Tribunal Act 1998. That is, I agree that the scope of Section 124 is broad and that it is appropriate to utilise that provision in the circumstances here (see the orders above).

Does the rooftop area enjoy existing use rights for the purpose of a nightclub pursuant to Clause 63.05?

1. Having made the finding that the 1979 planning permit authorises the use of the rooftop area for the purpose of a nightclub, I do not need to make any formal finding regarding whether the requisite use approval is alternatively provided by Clause 63.05.
2. However I can indicate in passing that despite it being common ground that no patrons were allowed up to the rooftop area until recent years, I can still see some scope for argument that the use of rooftop area for smoking/breaks by nightclub staff for a continuous period in excess of 15 years might be enough to trigger the benefit of Clause 63.05. In other words, I do not see the exclusion of patrons until recent years as in itself automatically knocking out the submission that the rooftop was being used for over 15 years as part of the nightclub operation.
3. I note that Mr Wright actually put forward a third string to his bow, which was that (in the event he was unsuccessful with his submissions regarding the 1979 permit and with existing use rights) the use of the rooftop area is ancillary to the nightclub use and hence does not require separate approval. He relied on a 2006 decision by Senior Member Byard[17] where Mr Byard noted that a beer garden is a normal ancillary of a hotel. This is an intriguing line of submission and Mr Byard's decision certainly makes this an arguable proposition, but again it is something I am not required to deal with.

1. There is a permit trigger for buildings and works under the Heritage Overlay and Schedule 1 to the Capital City Zone.
2. A relevant decision guideline at Clause 43.01-4 is "Whether the proposed works will adversely affect the significance, character or appearance of the heritage place".
3. There are broad decision guidelines in Schedule 1 to the Capital City Zone. They include:
   • The size and shape of the parcel of land to which the application relates, the siting of the proposed development and the area to be occupied in relation to the size and shape of the land, adjoining land and adjoining development.
   • The streetscape, the scale and height of the neighbouring buildings and the proposed development, the proximity to heritage places.... the treatment of the front and backs of buildings and their appurtenances....
4. The State and Local Planning Policy Frameworks are decision guidelines under both controls. In relation to roof forms, it is policy at Clause 22.01 to:
   • Encourage roof profiles to contribute to the architectural quality of the city skyline.
   • Encourage roof profiles to be considered as part of the overall building form.
5. Design standards in the Clause 22.01 policy suggested that "in addition to views from the street, the views from higher surrounding buildings should be taken into account".
6. Subject to our comments below regarding the recommendations of the Council Heritage Advisor, the buildings and works for which permission is sought have already been constructed. They include:
   • A single storey structure to the side and rear boundaries, with corrugated iron roofing and a rendered finish that is painted black;
   • A white marquee-style shade cloth covering the central courtyard area;
   • A stage area, closest to the frontage; and
   • A 2.7m-high screen wall to prevent access from the roof of the adjacent building to the north
7. The structures have a maximum height of 4.6m. No demolition is proposed to the original fabric.
8. The applicant has accepted the recommendations of the Council's Heritage Advisor. The revised plans ('Revision C') tendered at the hearing reflect the amended plan requirements and clarifications sought by Mr Raworth. Although they do not adopt the double hip roof form of the York Butter Factory, we consider that the revised roof structures adequately "reflect the roof line of the adjacent historic buildings"[18] and respond to the Clause 22.01 policy.
9. As acknowledged by Mr Raworth, the structures generally cannot be seen from King Street, with the exception of oblique views. Sightlines included on the revised plans confirm that the proposed angled roof facing King Street would not interrupt views of the rooftop structures from the pavement on the western side of the street. We consider that the scale of the proposed works would not result in an intrusive form in the streetscape.
10. Given the proximity of the subject site to the premises occupied by VCAT at 55 King Street, we had numerous opportunities to view the Inflation rooftop - from the street level and from the external corridor on the fifth floor. We feel we have a general appreciation of the nature of views obtained from numerous windows within the Rialto Towers building and other high-rise buildings in the area. The appearance of the rooftop in our view is innocuous and certainly better than the view of exposed plant and equipment on other buildings.
11. We also note the support offered by the Council's Urban Design Department. In response to referral of the application, the Department's comments included:

The addition is modern in nature and of a dark colour, which differentiates it from the existing historic building and reduces its prominence.

The proposal is considered acceptable from an Urban Design perspective. The height increase is minor compared to surrounding properties. The marquee component cannot be viewed from the street.

1. We also note that the objector raised no heritage grounds. Indeed, at the hearing Mr Townshend advised that his client has no interest in heritage considerations.
2. Our finding is that there is no reason to refuse the application on the basis of the discretion to be exercised under the Heritage Overlay or the Capital City Zone.

1. It follows from the above reasons that the Tribunal's conclusion is that there is no barrier to the issue of a permit for the proposed buildings and works. That is, the Tribunal accepts that the 1979 planning permit continues to provide planning authorisation for the use of the rooftop area for the purpose of a nightclub.
2. Furthermore, we conclude on the planning merits that a permit should be granted for the buildings and works.
3. In deciding the conditions to be included on the permit, we have had regard to the revised draft conditions provided by the Council and the submissions of the parties on this issue near the end of the hearing.
4. We can indicate that in resolving the permit conditions we have had regard to the following factors and considerations.
5. First, we accept that there is no impediment per se on the Tribunal imposing "use" type permit conditions on a buildings and works permit, relying on the authorities of Challister Limited v Caulfield CC [1992] 8 AATR 22 and John Paul College v Frankston CC [1991] AATR 185.
6. Second, a proposed condition needs to satisfy the normal test admirably summarised in the Tribunal decision of Domus Designs Pty Ltd v Frankston CC [2006] VCAT 1127, where the Tribunal at paragraph 23 stated that:

To be valid, a condition in a planning permit must fairly and reasonably relate to the permitted development or the condition must be reasonably capable of being regarded as relevant to the implementation of planning policy as ascertained from the PE Act and relevant planning scheme.

1. Following the Domus principles, we accept that the future use of the proposed rooftop buildings and works and the potential amenity impacts of these rooftop activities are proper matters for us to consider in finalising the permit conditions. However following the requirement that any one proposed condition must "...fairly and reasonably relate to the permitted development", we do not accept that the permit application for rooftop buildings and works provides a hook for the Tribunal to impose very broad ranging permit conditions impacting upon the operation of the whole of the nightclub.
2. In other words, there needs to be a proportionality between the extent of the proposal and the scope of the permit conditions. Following this approach, we consider for example that it would be inappropriate for the Tribunal to require:
   • that Inflation provide extra security and litter control for the laneway area. We agree with Mr Wright that this would be incongruous when it is common ground that the rooftop activities cease by 3.00 am yet St Martins is most concerned about laneway security issues more at the time of sunrise. Whilst it may well be that security and/or litter problems per se do arise with the laneway, there was no evidence put to us which would pin down whether the offending patrons come from the rooftop area compared to the balance of the Inflation building, or whether the problems are being caused by persons coming from other late night venues; and
   • that rooftop patrons be prohibited from using the laneway to move in or out of the building after 10.00 pm. As alluded to during discussion at the hearing, given the use of a common staircase, we are struggling to see how the laneway security staff on the rear laneway entrance could in practice distinguish between rooftop patrons vis-à-vis patrons using the two main levels plus the basement.
3. We have also declined to utilise the proposed conditions 5 and 6 which deal with proposed additional noise testing. It goes against conditions 5 and 6 that Inflation has already carried out noise testing, that the hours of operation of the rooftop area are regulated, and that the closest residential activity is about 100-150 metres away[19]. There was also a lack of evidence that the generic SEPP N-2 noise controls had previously been breached by the day to day operation of the rooftop activities. However, we do see the contentious condition which requires a rooftop management plan to be prepared as having a sufficient nexus in this regard.
4. Third, we accept that the Melbourne Planning Scheme includes relevant provisions raising "use" and "amenity" considerations. For example, two of the decision guidelines in the Schedule to the Capital City Zone are "The existing and future use and amenity of the land and the locality" and "The adequacy of entrance to and egress from the site". In addition, there is also a requirement under Clause 65.01 to consider "The effect on the amenity of the area".
5. Last but not least, we find that the ability of the planning permit decision maker to impose appropriate planning conditions should not be abrogated to the liquor licensing authority, following Swancom Pty Ltd v Yarra CC [2009] VCAT 923. We do not accept Mr Wright's contention that the existing liquor licence conditions effectively "cover the field".
6. Whilst we can see more scope for debate on this issue prior to Swancom, Swancom is very clear in promoting a more integrated/holistic approach to the regulation of a use such as a nightclub. Our findings here are also consistent with the relevant comments on this issue of the Panel Report for Amendment C141 which were discussed at the hearing.
7. Within these important parameters, we have in finalising the permit conditions nevertheless kept in mind that (as a matter of common sense) it is preferable to avoid overt inconsistency between the conditions of the liquor licensing compared to the planning permit of any one venue.
8. Finally, although our order does not include the 'Notes' suggested by the Council, such advisory information may be included in the permit that the Council is directed to issue.

1. Prior to the commencement of any demolition, or construction or carrying out of works on the land, the applicant must submit to the Responsible Authority three copies of plans drawn to scale generally in accordance with the plans prepared by Anthony G. and Associates, identified as TP01/C, TP02/C and TP03/C and dated 30 September 2009.

These plans must be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plans of this permit.

1. The development as shown on the endorsed plan(s) must not be altered or modified without the prior written consent of the Responsible Authority.
2. The rooftop area shall only be open to the public between the following hours:
   1. Anzac Day and Good Friday 12pm-3am the following morning
   2. On any other day 10am-3am the following morning
3. The number of persons on the rooftop shall at no time exceed 100 unless with the written consent of the Responsible Authority.
4. Any noise emitted from the rooftop area of the subject premises shall:
   • At all times comply with any limits, standards or rules prescribed thereto or imposed by, in or under State Environment Policy made pursuant to the Environment Protection Act 1970, and in particular the State Environment Protection Policy (Control of Music from Public Premises) No. N-2; and
   • At all times be such as to comply with any noise control notice served on the occupier of the subject premises pursuant to Section 48 of the Environment Protection Act;
5. Background music only may be played on the rooftop between 1am-3am on any day.
6. Within 90 days of the date of this permit or any longer period approved in writing by the Responsible Authority, the permit holder/owner must submit a Rooftop Management Plan describing:
   • The ways in which staff are to be made aware of the conditions attached to this permit;
   • The installation of signage in the rooftop area requesting patrons to use a preferred exit route out from the rooftop area to the public realm that will minimise the external amenity impacts of rooftop patrons leaving the building after hours;
   • Staff communication arrangements;
   • Measures to control noise from the rooftop;
   • Details for the management of the rooftop, including:
     1. Control of patron behaviour to limit unruly behaviour;
     2. Use of security cameras to monitor the rooftop area.

The management plan must be to the satisfaction of, and be approved by, the responsible authority. Once approved, the management plan will form a part of the endorsed documents under this permit. The management plan may be amended from time to time upon the request of the licensee and to the satisfaction of the Responsible Authority. The operation of the use must be carried out in accordance with the endorsed management plan unless with the prior written consent of the Responsible Authority.

1. A designated manager must be in charge of the rooftop at all times when it is open for business. Either the manager or a staff member as designated by the manager shall provide direct surveillance of the rooftop area at all times during opening hours.
2. Any external lighting must be provided with baffles to the satisfaction of the Responsible Authority so that no direct light is emitted outside the site.
3. The title boundaries for the property may not exactly agree with the road alignments of the abutting Council public lane(s). The approved works must not result in structures that encroach onto any Council lane.
4. No advertising signs shall be erected, painted or displayed on the land without the permission of the Responsible Authority unless in accordance with the exemption provisions of the Melbourne Planning Scheme.
5. This permit will expire if one of the following circumstances applies:
   • In relation to any relevant demolition works approved by this permit which have not already been carried out as at the date of issue of this permit, such outstanding works have not commenced within three (3) months of the date of this permit.
   • the development is not completed within two years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

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