Shaffey Pty Ltd, Collins Street Collaborative Pty Ltd and Daryl Jackson

[2004] VCAT 2473

The decision of the Responsible Authority in permit application no. TP04/466 is varied. A permit is granted and is directed to be issued. The permit relates to the land at the first and second floor levels of No. 21 Liverpool Street, Melbourne. The permit will allow the development of the land for the purpose of a tavern, operating from Saturday to Sunday to 5am, in accordance with the endorsed plans and subject to the conditions included in the Notice of Decision dated 23 July 2004, with the following variations:

• In Condition 6 the words "of the issue of the permit" at the end of the second line are deleted and replaced with the words "within three months of employment".

• Condition 9 is amended by the addition of the following words:

Once approved by the Responsible Authority, and prior to the commencement of the use, the recommended sound attenuation works must be completed and, on completion of these works, a report prepared by a suitably qualified acoustic consultant must be submitted to the Responsible Authority demonstrating to its satisfaction that the required level of noise attenuation has been achieved by the measures undertaken.

• Condition 11 is deleted and replaced with following new conditions:

11. The maximum number of patrons permitted on the premises at any one time is 110.

12. No queuing is permitted outside the premises.

13. Before the use starts, a patron 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 the permit. All activities forming part of the use must comply with the endorsed plan. The patron management plan shall include (but is not limited to):

(a).

Staffing and other measures which are designed to ensure the orderly arrival and departure of partons and to control noise by intending and departing patrons outside the premises;

(b).

The training of staff in the management of patron behaviour;

(c).

Staff communication arrangements;

(d).

Staffing and other measures to control the numbers of patrons entering the premises and within the tavern to ensure the maximum number of 110 patrons is not exceeded;

(e).

Arrangements for a telephone number of a manager or operator on the premises during opening hours who may be contacted in the event of any disturbance or other problem arising from the operation of the venue.

(f).

Arrangements to notify residents at No. 16 Liverpool Street (once occupation of units commences) and at No. 50 Bourke Street, Melbourne of the telephone number referred to in part (e).

The patron management plan may be amended at the request or with the consent of the owner to the satisfaction of the Responsible Authority.

14. The licensed premises must operate and be managed in accordance with the conditions and provisions of the approved patron management plan to the satisfaction of the Responsible Authority.

• Conditions 12-17 inclusive are re-numbered as 15 to 20 inclusive.

• The new Condition 19 (former Condition 16) is amended by the deletion of the word "immediately" in the last line.

Mr J Larkins of counsel instructed by Mr J Carey of Minter Ellison Lawyers.

Mr A Finanzio of counsel instructed by Ms C McRae. Evidence was called from Mr F Butera, acoustic engineer.

1

These proceedings relate to two Applications arising from a decision made by the Melbourne City Council ("the Council") to determine to grant a permit in application no. TP04/466. The Notice of Decision ("the Notice") was issued on 23 July 2004. The Applications are:

•

under Section 82 of the Planning and Environment Act 1987 ("the Act") brought by Shaffey Pty Ltd, Collins Street Collaborative Pty Ltd and Daryl Jackson seeking review of the Council's decision. The Applications for Review were lodged on 3 and 6 August 2004.

•

under Section 80 of the Act brought by Spirit Fingers Pty Ltd seeking review of conditions included in the Notice. The Application was lodged on 31 August 2004 seeking review of Conditions 6, 11 and 16.

2

The subject site is located between Bourke Street and Little Bourke Street on the west side of Liverpool Street. The review site comprises the upper two levels of a three storey warehouse-style brick building. The ground floor is used as a tavern for 54 patrons by the same proponent as involved in the current proceedings[1]. The upper levels are currently vacant. Liverpool Street is a narrow one-way street that comprises a mix of older single storey structures and more recent developments. An 11 storey development is currently under construction at No. 16 Liverpool Street, opposite the review site. It will have ground level retail premises and 83 residential apartments. The Applicants include two unit purchasers and the developer of that land.

3

The permit applicant seeks approval to use and develop the first and second floor levels for a tavern (bar) operating to 5am seven days a week. No external works are proposed and no car parking is provided. Access would by an existing door at the front of the building that is separate to that associated with the ground floor bar/tavern.

4

The following provisions of the Melbourne Planning Scheme ("the Scheme") are relevant to the proceedings:

•

The subject land is zoned Capital City (Schedule 1). A permit is required to use and develop the land for the purpose of a tavern.

•

Two overlays apply to the land - Design and Development Overlay Schedule 1 Major Pedestrian Area - Active Street frontages and Design and Development Overlay Schedule 2 Height Control 4. A permit is not required for the proposal under either Overlay.

•

Clause 52.06 sets out requirements in relation to car parking however Schedule 1 does not require parking for the proposed use.

•

A permit is required for a licensed premise pursuant to Clause 52.27. No decision guidelines are set out.

•

Various local policies at Clause 21 as discussed later in these reasons.

•

The local policies at Clauses 22.01, 22.04 and 22.09 have only peripheral relevance.

•

Other Clauses including Clauses 11, 15, 17.01, 17.02, 19.03, 52.07 and Clause 65 (general decision guidelines).

5

In addition I have had regard to Melbourne 2030. I was also referred to Amendment C60 that is proposed to the Scheme and has been adopted by the Council and submitted to the Minister for Planning for approval.

6

I have considered the submissions and evidence presented by the parties. That has been assisted by my inspection of the site and various premises in the vicinity referred to at the Hearing. I do not recite all of the material presented, although I do refer to some of the main points. I set out my findings in relation to the key issues in this Application having regard to the policies, objectives and decision guidelines of the Scheme. The key issue is whether the proposal would result in unreasonable off-site amenity impacts, notably in terms of noise associated with patron activity.

7

The starting point is the policy context that is applicable to the review site. In this regard, Mr Larkins fairly acknowledged that:

... it would be a rare occasion when this Tribunal, given the nature of the planning controls applicable in this proceeding, would contemplate outright refusal of a planning application for a bar/tavern for a site within City Zone 1 (sic).

8

While I later address the Applicant's concern that an appropriate balance is not struck by this proposal given the late operating hours, Mr Larkins fairly observed that the policy framework of the Scheme advocates the type of activity proposed. That is common ground between the parties. The review site is located in the heart of Melbourne where the principles espoused by policy (in the Scheme and reinforced by Amendment C60) recognise:

•

the central business or activities district as the pre-eminent business, tourist, entertainment and recreational centre for Victoria; a place where the oft-used descriptors for activity such as "vibrant", "alive" and "24 hour" are sought to achieve the Council's vision for the City. These elements are important to maintain the City's competitive edge.

•

that new business and residential development add to the mix and are supported. The policies envisage that those uses can co-exist and that diversity is critical to the City's vitality.

•

that the intensification of entertainment uses within the retail core (including Bourke Hill where the review site is located) is appropriate together with shopping and specialty retailing.

•

that the amenity expectations of residents living in the City must be different from those living in traditional suburban settings. In recognition of this principle, residential development is strongly supported but in a qualified way in so far as it "must not compromise the CBD's other functions"[2].

9

These principles are essentially not in issue between the parties. The parties also agreed that the policies seek a balance between needs and expectations of all land owners and occupiers in a way that Mr Finanzio fairly summarised as calling for "tolerance and understanding from both sides of the problem, realistic expectations of residents and responsible practice from venue operators". At times, however, incoming residents can fail to appreciate that moving to the City will be different to living in an inner suburb or outer area and can be noisy at all times of the day and night including outside typical business hours. For example, noise from servicing vehicles (such as garbage trucks or vehicles delivering to premises) can be a nuisance but it is practical to access properties when traffic is light and fewer cars are parked. It is a situation that can give rise to complaints, as is also the case with late night venues and other activities.

10

It is common ground between the parties that the Applicant's concerns do not focus on an escape of noise from the premises provided that the requirements of State Environment Protection Policy N-1 (Control of Noise from Commerce, Industry and Trade) and State Environment Protection Policy N-2 (Control of Music Noise from Public Premises) are complied with. Mr Butera's evidence indicates that these obligations could be met. Proposed Conditions 1 and 9 on the Notice address these requirements although I noted at the Hearing that Condition 9 does not require sound attenuation works to be completed (or tested) prior to the use of the land commencing. No party opposed the suggestion that the condition be amended, if a permit was to issue, requiring works recommended by a qualified and experienced acoustic engineer to be undertaken prior to the use starting. I note that Condition 8 seeks to only allow background music, with no live music permitted.

11

The core issue is late night patron activity within the public realm. Mr Larkins submissions related to the impact on future residents of No. 16 Liverpool Street, opposite the review site, although there are other existing residents nearby such as at No. 50 Bourke Street (corner with Liverpool Street). Mr Larkins submitted that the proposal would not represent a balanced outcome given the 5am operation seven days a week in the setting of the site that includes only a narrow road and given that a bar with 54 patrons already operates on the land. He sought to distinguish the review site, within the lane, from late night venues such as the Metro nightclub that operate with late hours but are located on major roads. He said that what is appropriate on main roads may not be suited on the review site.

12

Mr Larkins expressed concern that the hours proposed, as allowed by the Council, together with the proposed conditions would not adequately protect the amenity of residents opposite the subject site. He referred to a number of shortcomings in the conditions included on the Notice based on conditions often found on permits, such as an absence of a prohibition on queuing in the street or a management plan to control patron behaviour.

13

In response, Mr Finanzio and Ms Yuncken submitted that the proposal is consistent with the policies of the Scheme and would add to the existing mix of late night venues. Those venues co-exist with residents, including the Metro nightclub and the 24 hour Hard Rock café, and were in operation before the development at No. 16 Liverpool Street commenced and units were purchased. Moreover, they referred to Condition 13 on Permit TP99/619 that requires the units at No. 16 Liverpool Street to be treated to ensure that the maximum noise level inside each unit with windows closed is no greater than 45dB(A). They also noted the position of bedrooms toward the rear of units rather than abutting Liverpool Street.

14

Mr Finanzio relied on the evidence of Mr Butera. His evidence was that normal speaking voices in the lane would not exceed Greifahn sleep criteria but rowdy voices might when taking into account the position of units above ground level and the impact of reverberation within the lane. Mr Butera expressed concern about the Council's standard of 45dB(A) and said that he would usually design to an internal level of 30-35dB(A) based on Australian Standard 2107[3] dealing with noise levels for inner city units.

15

The parties provided me with copies of liquor licenses for many premises within close proximity to the review site or a block or so away. They include 24 hour operations (such as recent permit for the Loop bar[4]), restaurants and bars/taverns. I find no need to recite the details suffice to observe that there are many premises with varied hours of operation and approved license hours. While there are many premises with late hours on main streets, such locations are not the only domain of late-night bars. Based on existing conditions, I do not think that it can be said that the more intensive activities or latest operating venues must be located on the main roads with premises relying on shorter hours (such as 11pm or even 1am) emphasised in the "little streets" or lanes. There are examples where late-night bars in lanes seem able to co-exist with nearby residential properties.

16

Based on the evidence before me, there would be potential for noise associated with rowdy patron behaviour in Liverpool Street to impact on residents within the units at No. 16 Liverpool Street. The new premises may well attract additional people to the area, but it is already often busy late at night with the other venues in operation, including the Metro with a capacity of over 1,800 patrons which may open until 7am.

17

Although the impact must be considered together with the existing ground level use involving 54 patrons with a 3am license associated with the current bar, patrons of the two premises would not all depart into Liverpool Street at the one time. It is likely that some might move from the ground level to the upper levels.

18

It is significant to my findings that the units at No. 16 Liverpool Street are required by their permit to be designed to limit noise impacts in recognition of the noisy setting within which residents might find themselves. I have recorded Mr Butera's evidence that a lesser numerical dB(A) level might be desirable for this type of location but that is a matter for the Council to review as it seems that a maximum internal level of 45dB(A) is usually applied based on my cursory view of other Tribunal decisions involving the City of Melbourne (as is also the case in many other municipalities). I add that as the units at No. 16 Liverpool Street are under construction, it may well be possible for the developer to undertaken some internal modifications to achieve a lower maximum internal noise level if desired.

19

It would, nonetheless, be appropriate to require conditions that there be no queuing into the lane by patrons waiting to enter the premises and a management plan to address the control of patron behaviour. I was referred to an example of a condition addressing the second of these matters in Gribble v Melbourne CC [2000] VCAT 1949 which suggested to be appropriate by Mr Larkins and was not opposed by Mr Finanzio (except in reference to security staff, which I address below). I am persuaded to accept such a condition but have modelled it on this type of condition included in Writing Planning Permits[5]. The wording allows for the issue of staffing to be addressed, including any appropriate training, which is a matter in contest (Condition 11).

20

I now refer to conditions as relevant to the permit I will direct be issued and the Application lodged by the permit applicant. Generally, the conditions proposed by Council are acceptable, but I comment as follows:

•

Wording changes to Conditions 6 and 16 in the Notice were agreed by all parties at the Hearing and I will accept those agreements.

•

Condition 11 was contested and I have decided that the patron management plan can address staffing to manage patrons rather than prescribe a ratio of licensed security staff to patrons by a condition.

•

I have referred above to the condition relating to a patron management plan that I will require. I have added to the patron management plan the requirement to provide to residents of No. 16 Liverpool Street and 50 Bourke Street a hotline number as appears on Permit TP00/1418 as I canvassed with the parties at the Hearing.

•

I will add to Condition 9 a requirement for the recommended acoustic works to comply with SEPPN-2 to be undertaken and tested prior to the use commencing. That was not opposed by the parties.

•

Since the Hearing I have noticed that there is no condition specifying the maximum number of patrons at 110 and I will add that condition.

21

To summarise, I have not been persuaded that the proposal would result in unreasonable adverse impacts on the surrounding residential properties and therefore there is no need to vary the proposed hours of operation. I will therefore direct that the decision by the Responsible Authority be affirmed and a permit issue subject to some conditions included on the Notice of Decision being varied and some new conditions being added.

[1] The "Double Happiness" bar operates under Permit TP00/1418 issued by Council in March 2001. On Thursday to Saturday it may operate to 3am the following morning but it is otherwise limited to a 1am close.

[2] Page 86 of City Plan at Clause 21 of the Scheme.

[3] Australian/New Zealand Standard: Acoustics - Recommended design sound levels and reverberation times for building interiors (AS/NZS 2107:2000)

[4] At No. 19-23 Meyers Place with TP04/871 issued by the Council on 9 November 2004.

[5] Issued by the Department of Sustainability and Environment/Municipal Association of Victoria June 2003 at pages 16-17.