The decision of the Responsible Authority is set aside. A permit is granted and directed to be issued pursuant to the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 for the land at 132-132A Greville Street, Prahran.

Extend trading hours and liquor licence to 5am Monday to Friday and 7am Saturday and Sunday for the existing nightclub in accordance with the endorsed plan.

1 Before the use starts, an amended plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies provided. The plan must generally be in accordance with the plan referenced as Drawing No. SK1 2110, dated 30 May 2001 and date stamped as received by Stonnington's Planning Department on 30 April 2003 but modified to show:

a) The two doorways at the top of the rear stairwell to be fitted with sound proof doors to the satisfaction of the Responsible Authority.

2 The use allowed by this permit and shown on the drawing endorsed to accompany the permit must not be amended for any reason without the consent of the Responsible Authority.

3 The first floor tavern allowed by this permit must only operate between the following hours:

* 11.00am to 5.00am Sundays to Thursday (the following day)

* 11.00am to 7.00am Fridays and Saturdays (the following day).

All patrons must have left the premises by 5.00am Sundays to Thursdays (the following day) and by 7.00am Fridays and Saturdays (the following day).

4 The operator of the premises shall, prior to the commencement of the use authorised by this permit, install and thereafter maintain on the premises noise limitation and/or sound attenuation equipment set by a qualified acoustic engineer so that the level of any amplified music played within the premises does not exceed the levels required pursuant to the SEPP N-2 policy to the satisfaction of the Responsible Authority.

5 The noise limitation and/or sound attenuation equipment required by Condition 4 must:

a) Operate in such a way so that if the SEPP N-2 levels are exceeded, the power supply to the amplification equipment is cut off, and

b) Be secured to the satisfaction of the Responsible Authority so that it cannot be accessed except with a key, which is to be held in the custody and control of the Manager of the premises.

6 All live music must be amplified through the existing nightclub sound system to the satisfaction of the Responsible Authority so as to not bypass the sound attenuation measures required by Condition 4.

7 The emission of noise or any other emission to the environment derived from activities on the site must comply with the standards contained in the relevant State Environment Protection Policy or policies, to the satisfaction of the Responsible Authority.

8 This permit will expire if the use is not commenced within two years of the date of this permit or extended by the Responsible Authority if a request is made in writing before the permit expires or within 3 months afterwards.

9 This permit does not come into effect until Permit S61397 (Amended) is further amended by deletion of Conditions 9, 10 and 14. This amendment must occur within 2 months of the date of this Order, or such further time as may be consented to by the Responsible Authority.

Mr Stephen Jones of Counsel instructed by Koutsantoni & Associates Barristers and Solicitors. He called Mr Robert Burton Acoustic Engineer of Burton Acoustic Group and Mr Gary Prince, Liquor and Hospitality Consultant and Lawyer.

1 This is an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the Stonnington City Council to refuse to grant a permit in Application No 0387/03 for nightclub, liquor licence and associated car parking dispensation (extended hours for existing operation) at 132A-134 Greville Street, Prahran.

2 The Tribunal has inspected the locality and visited Mr Barratt's apartment in the early hours of a Sunday morning. Submissions, plans, photos and other documents submitted at the hearing have been retained on Tribunal files.

3 The site is presently used as the Boutique Dance Lounge trading until 3 am every morning. The proposal involves extension of the opening hours on Sundays through to Thursdays until 5 am the following morning and on Fridays and Saturdays until 7am the following morning. No other changes are proposed.

4 The site is zoned Business 2 and the premises is operating in accordance with Permit No S 613/97 (amended) issued in May 1996 for a restaurant/bar.

5 Ms Neivandt and Mr Jones each made written and verbal submissions and tended photos. Mr Burton and Mr Prince provided written and oral evidence.

6 Mr Powell and Mr Barratt, who own/live in apartments across the laneway to the rear, made verbal submissions and particularly highlighted concerns about noise and agreed with the submission put by Council.

7 The central issue in this case concerns noise and whether extending the trading hours of the Boutique Dance Lounge from 3am to 7am will cause an unreasonable nuisance and loss of residential amenity. Local planning policy supports and promotes Greville Street as an entertainment precinct but it is for part of its distance cheek-by-jowl with multi storey residential apartments. The potential for conflict between incompatible uses is already considerable and the designation of Prahran as a Principal Activity Centre in Melbourne 2030 has the potential to exacerbate existing conflicts and multiply points of aggravation.

8 Planning policy frameworks support an intensification of use within what has been identified as a principal Activity Centre in Melbourne 2030. Some of the key characteristics of a Principal Activity Centres identified in Melbourne 2030 include:

* A mix of activities that generate high numbers of trips, including business, retail, services and entertainment.

* Having potential to grow and support intensive housing developments without conflicting with surrounding land uses.

9 Future strategic development objectives (page 7 of draft Activity Centres Implementation Plan) include:

* Encourage a wider range of arts, cultural and entertainment facilities.

10 Melbourne 2030 recognises that fostering a rich mix of uses in activity centres brings significant social, environmental and economic benefits but notes that:

Success in providing housing will depend partly on the quality of design and how the housing is integrated; activity centres will need to be designed with residents in mind rather than being planned solely as commercial areas.

11 Local policy reinforces support for this intensification of land uses in Activity Centres, while recognising potential adverse impacts. Clause 21.02-8 identifies challenges for commercial areas and residential interfaces including

The handling of any negative impacts on the surrounding residential areas generated by overflow effects from the larger commercial areas, including increases in the entertainment venues within some of them. These usually relate to hours of operation, noise, late night patrons, traffic intrusion and parking.

12 Retail Centres Policy at Clause 22.09 includes Chapel Street - Toorak Road as a Group1 centre and has as a policy basis that:

A diversity of businesses, goods and services that will enhance economic viability is encouraged, including a variety of entertainment uses mainly in Group 1 centres. However, a balance between retail and entertainment uses is sought along with the protection of the amenity of any surrounding residential areas.

13 The Entertainment Uses Policy at Clause 22.10 has as specific policy in the Group 1 commercial centre 'Chapel Street - Toorak Road':

* New entertainment uses be discouraged from locating at ground level unless the use is located in Commercial Road, Greville Street or north of the Dandenong train line.

s From operating after 12.30am unless the responsible authority is satisfied that the applicant can demonstrate minimal detriment to nearby residential amenity caused by the operation of the use including patrons leaving the premises and the availability of carparking.

s From operating after 3.00am unless the premises is located in Commercial Road or in Greville Street or in Chapel Street between Elizabeth Street and High Street.

* Expansion of existing entertainment uses be considered consistently with the above.

14 My assessment of the policy frameworks persuades me that there is widespread support for entertainment venues in this part of the Principal Activity Centre. Moreover local policy is unambiguous that Greville Street is an appropriate location for entertainment venues trading after 3 am in the morning. However policy also requires that any adverse impacts from such uses be controlled, particularly in relation to surrounding residential areas.

15 In relation to impacts on residential areas, I note that the apartments most impacted by entertainment venues in this part of Greville Street are located within a Mixed Use zone and are therefore an integral part of the Activity Centre. Over many years and in many cases, various divisions of the Tribunal have commented that residents living close to or abutting non-residential zones cannot expect the same level of amenity as residents living in the middle of pristine residential areas.

16 That does not mean that issues of amenity such as noise should be ignored, but rather that lower standards are both acceptable and realistic in such interface locations. Both Mr Barratt and Mr Taylor already suffer lower amenity by virtue of their apartments being behind and adjacent to shops, entertainment venues, off street car parks, hotel and other businesses along Greville Street and neighbouring streets. I deal later with my specific assessment of noise impacts on the Barratt property, but I consider it unreasonable for residents living within a Mixed Use zone in a Principal Activity Centre to expect to have the same level of amenity as residents living, for example, in a back street within the middle of a residential area at Malvern. There is inevitably, and quite reasonably, a trade-off between enjoying the superb convenience and proximity to one of the most significant and vibrant activity centres in metropolitan Melbourne and experiencing congestion increased noise levels and other perceived 'negative' outcomes associated with living in such a location.

17 That does not mean that standards such as SEPP should be ignored and I now turn to the specific amenity and character impacts that could be caused by allowing an extension of trading hours of the existing night club to 5 and 7 am.

18 Despite broad support from the policy frameworks, I need to be satisfied that the proposal will not adversely affect the amenity of adjoining and nearby properties. These were clearly the main issues of concern to residents and were the central matters brought forward in the submissions by Council, Mr Powell and Mr Barratt. They submitted that the extended hours of operation would exacerbate an already unacceptable situation.

19 As foreshadowed at the hearing, I undertook a late night/early morning weekend inspection of Greville Street and also visited the Barratt property at around 12.30 in the morning. Chapel Street and Greville Street thrive with activity and the Coles car park off Izett Street is a magnet for those engaged in the practice of 'cruising' referred to by Senior Member Liston and Member Rickards in their decision on the Salt Nightclub (Blue Emporium P/L v Stonnington CC [P3369/2004] (25 February 2004). (Although on the night of my inspection 'cruising' is perhaps a misnomer given that Chapel Street was in virtual gridlock and it took me more than half an hour to travel by car from Alexandra Parade to Toorak Road before, in frustration, I took to the back streets to reach Greville Street from the western side of the railway line).

20 In walking along Greville and Izett Streets it was apparent that noise at street level emanated principally from four premises - an unidentified nightclub on the western side of Izett Street opposite the Coles car park, the Candy Bar in Greville west of Izett, and Café Blupols and the Greville Street Hotel in Greville west of Izett. (For some unknown reason the Dada Bar, which I was told was very noisy, was relatively quiet on the night I visited).

21 Despite the operators being unaware of my time of inspection, I could not hear any noise or music emanating from the Boutique Dance Lounge, even though patrons were queuing in the street and the front door was occasionally opened to allow them to enter and climb the stairs to the Lounge located on the first floor.

22 At the rear the noise from the side door of Café Blupols was terrific and clearly audible from most points along the laneway. In contrast there was no noise from the Boutique Dance Lounge and I saw no evidence of the rear doors being opened. On my inspection of the Barratt property, I was taken to the outdoor terrace facing the rear of properties in Greville Street. I could clearly hear noise - both of a general nature and more specifically the deeper bass or 'whoosh whoosh' of loud dance music. Noise was emanating from the Greville Street Hotel and from somewhere further east in Greville Street, but I am satisfied that none of the troublesome noise was emanating from the Boutique Dance Lounge.

23 I accept that Mr Barratt and Mr Taylor are affected by noise, but apart from the issue of reasonable expectations discussed earlier in my decision, I am satisfied that the Boutique Dance Lounge is not the cause of the problem. I accept their submissions that in the past they have been greatly troubled by noise from the Lounge, but I also accept the evidence of Mr Burton that noise levels now comply with the relevant SEPP. I was advised of works that have been undertaken by the operators of the Lounge following earlier complaints by Mr Barratt, and although I did not see the actual measures that have been employed to reduce noise, the results are evident in the lack of noise that I heard from the premises. On my inspection it was clear to me that troublesome noise emanates from the Greville Street Hotel and Café Blupols, and from other sources located further away to the east and north east (possibly from the Candy Bar which is very loud from the street).

24 Having regard to my late night inspection, I am satisfied that the Boutique Dance Lounge can operate for extended hours without any adverse impact on the nearby residential properties. I am satisfied that with the works which have been taken over recent years, that the building can achieve compliance with SEPP N-2 and I accept Mr Burton's evidence in this regard. However I note that compliance is predicated on the current use of electronic noise limiters in the PA system that are set at a maximum level of 115 dB beat frequencies (page 2 of the evidence of Mr Burton). I have included a condition suggested by the Responsible Authority to ensure that the sound system achieves these requirements in relation to SEPP N-2.

25 The new permit in effect results in a variation to certain requirements included in the existing permit. Those requirements (conditions 9, 10 and 14) are now obsolete. Therefore in approving new trading hours, it is desirable to amend the earlier permit by deleting the three conditions relating to trading hours. Section 62(2)(b) of the Planning and Environment Act 1987 enables a condition to be included that this permit will not come into effect until a specified permit has been amended. Therefore Conditions 9, 10 and 14 of Permit S61397 (Amended) need to be deleted so that the there is no inconsistency in trading hours.

26 Having regard to the above, I will set aside Council's decision and Order that a permit issue subject to conditions.