1. After hearing from the parties, I advised them of my decision. The decision was that I would grant the permit subject to the amended set of conditions agreed to between the council and the applicant. I gave oral reasons generally in the form that follow. However I have taken the opportunity to revise them and, where appropriate, to amplify them to make them clearer.
2. This proposal involves an existing hotel; licensed premises which have existed for many years and operate under existing use rights. The existing use rights give the operator or the owner of such premises the right to continue such use. Whilst there are limits on the nature of the existing use right, the absence of a planning permit and, in particular, conditions which make clear the limits or restrictions under which the use operates makes it more difficult to define what those limits are.
3. The proposal before the tribunal in this case falls clearly within the category of buildings and works. There is no change of use proposed. In considering whether a permit should be granted for those buildings and works, I will firstly deal with the issue of car parking.
4. Whilst the floor area of the hotel is to be increased, this in itself does not bring about the potential for additional detriment due to increased pressure on car parking in the locality. Rather, it is the actual number of patrons that are to be accommodated within the premises that gives rise to the car parking demand and other impacts such as traffic.
5. In this case, the hotel has a liquor licence that allows it to accommodate up to 360 patrons at any one time. This is a restriction under its liquor licence pursuant to which the hotel must operate. There is no proposal to increase the number of patrons.
6. While the floor area of the hotel will increase, it does not follow that there will be increased car parking demand or traffic if the maximum number of patrons is kept to current levels. In other words whether you have 360 patrons in a hotel with a floor area of say 400 square metres, or a larger floor area, like 450 square, this ought not to make a difference in terms of parking, traffic or even noise generated by patron activity.
7. There is some merit in Mr Townsend's submission that the provision of more spacious premises for the same number of patrons is likely to result in a venue where less problems with patron behaviour will occur. Put simply, people will have more room to move, creating an environment where it is less likely that conflict due to physical contact amongst patrons will occur.
8. In this case no application has been made to increase the number of patrons or to extend the hotel's trading hours. They are significant factors in me being able to arrive at my decision because it is clear that the buildings and works will not in themselves generate an increased level of activity that could give rise to increased impacts on amenity. Further, without an increase in patron numbers, the car parking demand would be the same as what has been generated in the past. There would not be an increase.
9. It must also be remembered that the hotel is located within a Business 1 This is the type of location where more intensive entertainment uses like hotels are appropriately located.
10. Noise was another matter of concern. In this case I had the benefit of expert evidence from two acoustic consultants. While there was initially a difference of opinion between the two experts, as a result of subsequent discussions, it seems that they have reached agreement. It is on this basis that the permit conditions have been modified and agreed to between the applicant and the council.
11. The opportunity to regulate this hotel, specifically through permit conditions that require the implementation of measures to attenuate noise from the premises through works and the implementation of a noise management plan weighs in favour of the grant of a permit.
12. I am not in a position to make findings as to whether the assertions made by Mr Phillipson and Ms Pelham-Thorman are valid. However, at the same time, I do not wish to take issue with what they say is happening in the locality given the findings of the tribunal in Swancom v Yarra CC[1], a case involving a nearby hotel also in Swan Street. In that case the tribunal found that the material presented to it provided ".....clear and cogent evidence of regular and serious adverse amenity impacts being sustained by local residents and business occupiers over a long period caused by patrons attending licensed premises in Swan Street".
13. Accordingly I do not dismiss the concerns raised by Mr Phillipson and Ms Thorman lightly. However, I do not accept that the granting of this permit for buildings and works will make things worse given that there is no increase in patron numbers or trading hours, and appropriate measures will be put in place to attenuate noise. I would perhaps have a different view if this were not the case. Indeed, I am of the view that the opportunity to implement noise management measures as set out in the conditions will achieve an improvement.
14. I understand that Mr Phillipson and Ms Pelham-Thorman are concerned that the proposal may lead to more patrons being on the premises resulting in increased amenity impacts. However for the patron numbers to be increased, further planning permission is required pursuant to the provisions of clause 52.27 of the planning scheme[2].
15. I should also note that no concerns were raised about the proposed buildings and works with respect to heritage considerations, nor were there any concerns about the proposed signage
16. Accordingly I will direct the grant of a permit subject to the conditions being modified to the form agreed to between the council and applicant.

Part demolition, buildings and works (extension of the first floor and construction of a second floor/roof terrace), painting, advertising signage, a waiver of the car parking and loading bay requirements generally in accordance with the endorsed plans.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the application plans, but modified to show:

1. the retention of Swan Street (north) façade tiles; 2. the addition of tiles to the currently rendered plinth of the Swan Street (north) façade;

1. deletion of reference to the proposed folding arm awning to the north elevation;

1. the provision of two staff and two visitor bicycle spaces, with details of signage in accordance with clause 52.43-5 of the Yarra Planning Scheme; 2. a schedule of all external materials and finishes. The schedule must show the materials, colour and finish of all external walls, roof, fascias, window frames, glazing types, doors, fences and paving. Specifically, the paint colour of the northern façade, window and door frames must be revised to respect the retained façade tiles, and to enable the window and door frames to remain visible; and 3. the physical works contained within the recommendations contained at paragraphs 45-55 inclusive of the acoustic report prepared by Heggies Pty Ltd dated 19 October 2009.
2. All development and use must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.
3. Before the development starts, a Noise Management 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 this permit. Once approved, the Noise Management Plan must be implemented and thereafter complied with to the satisfaction of the Responsible Authority. The plan must include but not be limited to:

1. the operating conditions set out in paragraphs 56-63 inclusive of the acoustic reports prepared by Heggies Pty Ltd dated 19 October 2009 and March 2009; 2. the recommendations as set out in paragraphs 44-48 inclusive of the acoustic peer review prepared by Renzo Tonin & Associates (Vic) Pty Ltd dated 20 October 2009;

1. numbers restrictions for outdoor areas after 9pm from Sunday to Thursday as follows: 1. Mid level outdoor area - 70 patrons; 2. Top level outdoor area (covered) - 70 patrons; 3. Top level outdoor area (uncovered smoking area) - 20 patrons;

1. any necessary restrictions for outdoor areas for Friday and Saturday; 2. overall limit of 360 patrons on the premises; 3. a requirement that the operating conditions of the approved Noise Management Plan are to be displayed on the premises to the satisfaction of the Responsible Authority; 4. within 12 months of the completion of the approved buildings and works authorised by the Permit, a report prepared by a suitably qualified acoustic engineer must be submitted to the Responsible Authority detailing whether the Noise Management Plan has been implemented and assessing any noise impacts in the nearby Residential 1 Zone, including impacts during the summer period.
2. Noise emissions must comply with the State Environment Protection Policy or any other standard recommended by the Environment Protection Authority to the satisfaction of the Responsible Authority.
3. All new on boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
4. All buildings and works must be maintained in good order and appearance to the satisfaction of the Responsible Authority.
5. Any damaged road(s) and footpath(s) adjacent to the development site must be reinstated to the satisfaction of the Responsible Authority.
6. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7.00 am - 6.00 pm, Monday-Friday (excluding public holidays) and 9.00 am - 3.00 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.
7. The location and details of the sign (including advertisement) must accord with the attached endorsed plans. Any alterations must be approved by the Responsible Authority.
8. The sign must be constructed and maintained to the satisfaction of the Responsible Authority.
9. No flashing, intermittent, or changing colour light is permitted.

1. The approval granted for the advertising sign will lapse 15 years from the date of this permit.

1. This permit will expire if the development is not commenced within two years from the date of this permit. All development must be completed within four years from the date of this permit. The Responsible Authority may approve extensions to these time limits if requests are made within three months of expiry.

[1] [2009] VCAT 923

[2] The provisions of clause 52.27 have been amended to make it clear that a planning permit is required if the number of patrons allowed under any licence is to be increased.