A permit is granted for change of use to a tavern/bar, waiving of the standard car parking requirement and development and use of a balcony extension at 212 Commercial Road, Prahran in accordance with the endorsed plans and subject to the following conditions:

1. Before the use and/or 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 plans submitted with the application but modified to show:

* Details of the interior layout, showing the location of the bar, the seating layout and associated amenities.

* Adequate toilet facilities in accordance with the Building Code of Australia (1966) and to the satisfaction of the Responsible Authority.

* An east elevation of the building showing the bi-fold doors on the upper level.

* The balcony to be screened to a minimum height of 1 metres above floor level in order to reduce the potential for falling objects over the road reserve below. The screen of the balcony to be constructed of a see-through and light-weight material.

* A balustrade for the balcony to be designed in order to complement the heritage characteristics of the building.

* Materials, finishes and colour details for the proposal, including details of the bi-fold doors, balustrade and screen treatment to the existing building.

2. The use hereby approved shall only operate between the following hours:

Sunday to Wednesday : Noon to 3.00am the following day

3. Between the hours of 12.00 noon and 7.00pm, not more than 50 patrons may be accommodated on the premises at any one time. Otherwise not more than 200 patrons may be accommodated on the premises at any one time.

The balcony shall accommodate not more than 15 patrons at any one time. Patrons on the balcony must be seated for the purposes of consuming a meal, to the satisfaction of the Responsible Authority.

4. Signs must be erected within the premises, to the satisfaction of the Responsible Authority advising patrons of the available long term parking facilities in Izett Street and Elizabeth Street.

5. Air conditioning and other plant equipment installed on the subject premises shall be so positioned and baffled to the satisfaction of the Responsible Authority so that no noise disturbance is caused to occupiers of adjoining properties. No external amplified public address system or speaker system shall be installed on the premises.

6. Noise emanating from the subject premises shall not exceed the permissible noise levels when determined in accordance with the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 and State Environment Protection Policy (Control Music Noise from Public Premises) No. N-2).

7. The use of balcony hereby permitted shall only operate between the hours of 12.00 noon and 11.00pm on any given day. At all other times the upper level doors associated with the balcony must be closed and sealed in order to minimise noise emissions, to the satisfaction of the Responsible Authority.

With exception of the upper level doors associated with the balcony, all other windows of the subject premises must be fixed, non-openable windows, to the satisfaction of the Responsible Authority.

8. The use of premises including the balcony hereby permitted shall at all times be conducted in a manner which ensures that the amenity of nearby residential properties, and pedestrians and vehicles utilising the road reserve below, are not detrimentally affected to the satisfaction of the Responsible Authority.

9. The installation, maintenance and/or use of any intruder alarm system shall at all times conform with the E.P.A. Audible Intruder Alarm Regulations 1978.

10. Adequate provision must be made to the satisfaction of the Responsible Authority for the storage and collection of garbage and other solid wastes within the curtilage of the site. The area must be properly graded and drained and screened from public view, to the satisfaction of the Responsible Authority.

11. (a) No live entertainment or amplified music shall take place on the premises.

(b) Security staff shall be employed to the satisfaction of the Responsible Authority.

12. This permit will expire if one of the following circumstances applies:

* The development and use is/are not started within two years of the date of this permit.

* The development is not completed within four years of the date of this permit.

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

13. The use or development allowed by this permit and shown on the drawings and/or schedules endorsed to accompany the permit shall not be amended for any reason without the consent of the Responsible Authority.

14. The buildings or works hereby occupied or employed, the processes carried on, the materials and machinery used and the transportation of materials, goods and commodities to and from the premises shall not cause injury to or prejudicially affect the amenity of the locality by reasons of appearance or the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or the presence of vermin or otherwise, to the satisfaction of the Responsible Authority.

15. Outdoor lighting must be designed, baffled, and located to the satisfaction of the Responsible Authority to prevent any adverse effect on the road below and adjoining land.

16. The construction of the balcony hereby permitted shall not commence until the owner of the land enters into an agreement with the Responsible Authority pursuant to the provisions of Section 173 of the Planning and Environment Act 1987 in which it shall be covenanted as follows:

* That the requirements contained in this lease agreement shall form part of any lease of the premises which the owner of the land under this permit may enter into with another party.

* Pursuant to the provisions of Section 181 of the Planning and Environment Act 1987 this agreement shall be registered with the Registrar of Titles and shall run with the land.

* The owner of the land under this permit shall pay the legal costs and be responsible for the preparation and registration of the said agreement.

* The Section 173 Agreement must specifically provide the following:

- Council's separate consent as the `Highway Authority' for building projections outside the title boundary.

- Obligation on the owner for the maintenance for that part of the building outside the title boundary.

- Indemnity in favour of Council for any damage, loss or injury that may occur due to the projection.

- The owner enter into an annual (or otherwise) lease agreement with Council for the use of the air-rights above the road reserve associated with the projection. The amount payable shall be indexed to CPI and should be determined by Council's Valuers. Administration fees pursuant to the Planning and Environment (Fees) Regulations 2000 shall apply to each successive lease agreement.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

However, it has to be noted that Permit No 1217/99 issued on 16, August 2000 is cancelled by this permit.

Mr Jeremy Livingston, Planner, for the Responsible Authority.

Mr David O'Brien, Barrister, instructed by Riordan & Partners for the Respondents.

Mr Colin Bowden for Bowden Verhoeven for the Applicant.

1. The proposal is not in harmony with the existing character and appearance of this designated heritage building.

2. The proposal is not an appropriate one for the land because of its effect on the amenity of the neighbourhood in terms of noise emissions and safety.

3. The proposal would adversely affect the street.

4. The proposal would be inconsistent with the orderly and proper planning of the area.

1. The proposal accords with the orderly and proper planning of the area.

2. The proposal will enhance and improve the existing building and is in keeping with the building.

3. The proposal with appropriate conditions will not have an adverse impact on the area.

4. The proposal is a reasonable and appropriate use of the site and in keeping with the character of the building and the area.

5. Other grounds that may be allowed by the Tribunal.

1. This is an application to review a refusal of the City of Stonnington to issue a permit for a balcony extension to an existing commercial building with a permit for a tavern at 212 Commercial Road, Prahran.

"The Review site is located on the south-west corner of the Commercial Road and Cato Street intersection, in Prahran.

The site has a frontage of 9.1m to Commercial Road, and a frontage of 30.4m to Cato Street. The site is occupied by a two storey building which comprises the entire coverage of the site. The building is graded `A1' in accordance with the Prahran Character and Conservation Study 1992. Pursuant to this study, an `A1' building is defined as buildings "... of national or state importance, irreplaceable parts of Australia's built form heritage".

Four separate shops occupy ground floor level. The first floor of the building is currently vacant. There is no provision for on-site parking. Council's records indicate that prior to the 1990s, the first floor of the building was used for storage purposes, whilst the ground floor was used for retail. In 1991, planning permit 91/117 was issued for use of the first floor for the purpose of office and warehouse. In 1992, planning permit 92/652 was issued for use of the first floor as a place of assembly (self defence and karate club).

Following a substantial length of time being vacant, planning permit 1217/99 was issued in August 2000 for the change of use to a tavern/bar and waiving of the standard car parking requirement for the first floor of the building. Planning permit 1217/99 approved a tavern use at the first floor of the subject site. The permit allows the premises to operate between the following hours:

Sunday - Wednesday: 12 noon - 3 am the following day

Thursday - Saturday: 12 noon - 7 am the following day

Eve of public holidays: 12 noon - 7am the following day

Between the hours of 12 noon and 7.00 pm not more than 50 patrons may be accommodated on the premises, otherwise not more than 200 patrons may be accommodated on the premises at any one time.

To the east and west of the Review site are shop and restaurant uses with frontages to Commercial Road. A right-of-way abuts the site to the south, which services the commercial properties which front commercial Road to the west, and front Cato Street to the south. To the north of the Review site is the Prahran Market, which comprises a mixture of restaurants and shopping facilities. The Pran Central shopping centre is to the east on the opposite side of Cato Street. Planning permit 210/99 was issued in February 2000 for a residential development of 129 flats on top of the Pran Central site."

3. This involves alterations to the existing building including the balcony. The balcony is to overhang the road reserve of Cato Street and would be 6.8 metres in length and 2.4 metres in width having a total area of 17 sq. metres. It is also to have a vertical clearance of 5.8 metres above Cato Street. It is to be used as an integral part of the tavern in good weather and consequently the applicant proposes bi-fold doors for access from the main part of the tavern and opening hours will be between 12 noon and 11 pm.

4. At the commencement of the hearing Mr Livingston asked that the application be amended to include use and development and increase in floor area of the tavern. He indicated that the application actually contravened a condition in the existing tavern permit. Both Mr O'Brien and Mr Bowden had no objection to the wording of the application being amended, consequently that was agreed under Schedule 1 Clause 64 of the Victorian Civil and Administrative Tribunal Act.

5. I indicated my concern about there not being a detailed plan with elevations indicating the type of balustrade materials from which the balcony would be constructed.

6. The site and surrounds are zoned Business 1 and the site itself is located in a heritage overlay under Schedule 126 of the planning scheme. Clause 34.01-4 of the scheme requires a permit to be obtained to construct a building and carry out works in a Business 1 zone. Permission is also required under Clause 43.01-1 for the same purposes in a heritage area.

7. The proposed balcony extension to the tavern complies with the definition of a tavern under Clause 74 of the Stonningon Planing Scheme.

8. The responsible authority considered the application and assessed it under the State and Local Planning Policy Frameworks.

9. Both Mr Livingston and Mr O'Brien drew my attention in detail to the provisions of the Planning Scheme both at state and local levels that relate to activities within a Business 1 zone and also in relation to matters under the Heritage Overlay. The relevant provisions are in the State Section, Clause 15 Environment, relating to noise abatement and Clause 17 on economic development. This relates to Activity Centres in clause 17.01-2. In the local policies, the Municipal Strategic Statement contains matters such as clause 21.06 Heritage, Clause 21.09 Retail Areas Viability, Clause 21.10 Identity of Commercial Areas, their focus and residential interface. Local planning policies include Clause 22.02 Urban Design Policy, Clause 22.04 Heritage Policy. The heritage policy brings into play the Prahran Character and Conservation Study 1992. This identifies this building as being graded A1, that is, of national or state importance having irreplaceable parts of Australia's built form heritage. Clause 22.09 Retail Centres Policy, Clause 22.10 Entertainment Uses Policy. Mr O'Brien in particular refers in some detail to the retail centres policy and entertainment users policy.

10. The application was received on 14th July 2000 and advertised on 17th August 2000. One objection was received from Riordan & Partners on behalf of Mr Tuohey and Ms Wertheim who own the pharmacy at ground level of the review site. The objections related to the adverse impact that such may have on pedestrians on Cato Street or customers to the pharmacy, anti social behaviour, noise and amenity. The application was refused on 29th September 2000.

11. All parties submitted written submissions to which they spoke. Photographs and other information were tabled and these are retained on the Tribunal file.

12. The two major issues here are the effects of the proposed balcony on the amenity of the area in particular, the pharmacy and its patrons, the heritage value of the existing building and the effect the proposed balcony may have on the heritage place.

13. Mr O'Brien informed me that the respondent's pharmacy has a strong clientele of mainly elderly people who tend to go to doctors at the other end of Cato Street and then walk back to the pharmacy to obtain their prescriptions. He submitted that these customers would feel threatened by people on the balcony and their unruly behaviour. The pharmacy generally opens between 8.30 am and 8.00 pm Monday to Friday, 9.00am till 5.00pm on Saturdays and 1.00pm till 5.00pm Sundays. The respondents are also concerned that the customers may, because of their perception of the behaviour on the balcony, patronise another pharmacy, a competitor on the corner of Cato Street and Wattle Street adjacent to the car park.

14. Mr O'Brien referred me to the policies of the planning scheme particularly the objectives of clause 17 and in the municipal profile the MSS which indicates a high proportion of Stonnington's population is young adults or elderly people and there is a low proportion of families with children. It was predicted by the State government that there would be a decline in the 18 to 34 year old group and an increase in the over 50 age group.

15. Mr O'Brien submitted that the tavern premises were referred to as "drink premises" which equated to "entertainment" under the planning scheme and that entertainment uses should be mainly in Grade 1 centres under the MSS.

16. The Retail Centres Policy promotes the maintenance of the commercial centre's hierarchy, effective land use and character of particular areas. In relation to the entertainment uses policy, he submitted that part of the MSS is to manage entertainment uses in commercial areas "and to protect the amenity of residential areas from those impacts". He further stated that the majority of Stonnington's entertainment uses are in retail areas and that retail on ground floors is to be maintained. It was his firm submission that the planning scheme policies are there to protect ground floor retailing viability over expansion of entertainment uses.

17. Mr Bowden submitted that the purpose of the Business 1 zone is:

"To encourage intensive development of business centres for retailing and other complimentary, commercial, entertainment and community uses."

He emphasised the words encourage and entertainment. He further submitted that the zone purpose does not encourage residential activities.

18. I agree with his assessment of this. It may be that the responsible authority has local policies that encourage shop top residential uses etc but the primary purpose of the Business 1 Zone is for retailing and related commercial and entertainment type uses. In support of this the planning scheme includes the site in a Group 1 Commercial Centre under clause 21.10. This he suggested has the primary role of accommodating large scale retail and complimentary entertainment uses. He said that this is the highest order centre. Further he submitted that the MSS encourages a variety of entertainment uses in the Group 1 centres.

19. In supporting his contention Mr Bowden made the point that the entertainment uses policy discourages entertainment uses from locating at ground level except if located in Commercial Road and Greville Street.

20. In relation to protection of residential areas and their amenity, Mr Bowden submitted that this did not apply to residential premises within the Business 1 zone as much as within the surrounding residential areas. In his submission Commercial Road is one of the areas where entertainment is actively encouraged by the scheme even to the extent of extended operational hours.

21. Mr Bowden cited a number of entertainment centres in the general area such as the premises called "Virgin Mary's". Opposite the site there is a roof top entertainment area with a maximum of 50 patrons and to his knowledge no time restrictions.

22. There is a large car park at the rear of Cato Street. Cato Street accesses Commercial Road from the car park and also a large Safeway Supermarket operating 24 hours a day.

23. I think this effectively sets the scene for the use of the premises which already has a planning permit issued at the direction of the Tribunal. To me it means that an extension of the premises in the form suggested is acceptable provided amenity and safety issues can be appropriately dealt with. It is quite appropriate here. I note that the Council's traffic and transport group has raised no objection to the protrusion of the balcony provided it is situated at the height suggested at 5.8 metres which is well above the minimum of 5.2 metres. Because the balcony overhangs a Council asset it would necessitate a Section 173 agreement being drawn up between the parties.

24. I indicated at the end of the hearing, when conditions were being discussed, that issues such as amenity were foremost in my mind, that there should be a maximum number of people allowed on the balcony, that it be used for dining purposes and that people on it should be seated at all times.

25. I also indicated to the parties that I would accept conditions being sent in by each party and that the parties also exchange conditions and comments between each other.

26. My other concern in relation to heritage matters and the appropriateness of a balcony on this building was addressed by Mr Bowden. Mr Bowden pointed out to me that the building along Cato Street was actually built on two different dates. The front is the original section of the building which has quite ornate features and the rear section with very plain features would have been built later. There was no contrary argument put by any other party to this and I accept it having also given due consideration to the completely different architectural styles. Because of that and even though this does have a heritage overlay I believe that a balcony could be constructed on this building particularly as it is within a major commercial centre and adjacent to quite modern buildings at its rear and would be quite respectful of the character of the building. I also discussed this with the parties. In relation to conditions Mr Livingston asked that the conditions relating to the original permit be also placed on this proposal should I wish to issue a permit to overturn the Council's decision. After some discussion it was agreed that perhaps the best way to do this was to issue a totally new permit for the tavern and then its extension. I tend to agree with that also. I intend to issue a permit subject to conditions, cancelling the previous permit.

27. I have considered the conditions and comments on them as submitted by the parties and prefer that of the Responsible Authority.