Mr Adrian Finanzio of Counsel instructed by The Partners Advisory Pty Ltd.Mr Finanzio called evidence from Mr Robert Burton and Mr Peter Fearnside, Acoustic Engineers, Ms Sarah Opperman, Town Planner and Mr Robert Steane, Liquor Industry consultant.

Mr John Rantino, Lawyer with Mathew Sherwell of Maddocks.

Mr Christopher Townshend of Counsel instructed by Deacons Lawyers. Mr Townshend called evidence from Mr Douglas Growcott, Acoustic Engineer.

Ms Natalie Bannister, Lawyer of Gadens Lawyers. Ms Bannister called evidence from Mr Edward Hart, Liquor industry consultant.

1 The Garden on Exhibition Pty Ltd seeks approval for a tavern which will accommodate 460 patrons in the two building structures and an open air beer garden at 275-285 Exhibition Street, Melbourne.

2 The Garden on Exhibition sought a review of the Melbourne City Council's failure to make a decision within the prescribed time[1]. However the council subsequently resolved to oppose the tavern because it will detract from the amenity of adjoining residential properties by reason of excessive noise.

3 There were 228 objections to the permit application and essentially they comprise:

•

Residents/landowners and Body Corporates of apartments abutting the subject site or in close proximity to the site.

•

Interest groups such as Eastenders Inc, Residents Rights and Residents 3000 Group.

•

The owner of the Marriott Hotel.

•

The amenity impact on residential properties caused by the proposed tavern. This relates particularly to patron noise and potential to disturb sleep.

•

The intensity of the proposed use.

•

The reliance on a combination of indoor and outdoor areas and the relationship or proximity of the site to other licensed premises.

•

The impact on other businesses such as the Marriott Hotel.

•

Heritage issues particularly in relation to consequential changes needed to address sound attenuation issues.

4 The Director Liquor Licensing also made a submission drawing the Tribunal's attention to the recent decision of Deputy President Gibson and Member Cimino in Ryan v Port Phillip CC [2006] VCAT 1923 as a landmark decision concerning recent changes to smoking laws in licensed premises and the likely implications for planning permit applications. Mr Devlin claimed this decision should direct this Tribunal in balancing the competing residential and commercial land use aspects of this matter.

5 Mr Finanzio on behalf of the Garden on Exhibition Pty Ltd argued that:

•

The proposal is consistent with the strategic framework for the Central City

•

The council and objectors interpretation of the effect of the planning policy framework is flawed because it depends on the assumptions that are simply wrong.

•

That direct and indirect amenity consequences of allowing the proposal, having regard to the real and likely impact or having regard to the theoretical impact are minor in nature.

•

It would not be uncommon to find a tavern of the kind proposed here in a Business 1 Zone on any "High Street" north, south, east or west of the Central City area.

•

To say the amenity impacts of the proposed development would be unacceptable in a CBD context is drawing an extremely long bow.

•

There are existing spaces on the land to provide smokers with an opportunity to smoke under supervision alcohol free. It provides venue management with an opportunity to control numbers in this area, invite patrons to lower voices and generally maintain an appropriate level of behaviour.

•

The ambient noise conditions are such that a group of smokers outside between 11.30pm and 1.00am are extremely unlikely to even get close to affecting the noise amenity of surrounding residents.

•

Local policy does not say that a proposal must eliminate the impact of a venue such as the one proposed but simply to minimise its impact upon the surrounding residential area.

•

Local Policy dictates that Melbourne Central Activity District residents must accept that their level of amenity will be lower in comparison to other residential areas, and that part of that lower level will be due to the operation of venues such as the one proposed

6 The principal issues to be determined in this application are:

•

Whether the proposal has reasonably responded to the planning policy for a Central Activity District context.

•

Whether there will be detrimental amenity impacts to adjoining and nearby dwellings and businesses in this area and if so whether those impacts can be properly managed to ameliorate their impact to an acceptable level.

•

Whether the proposal is likely to cause unreasonable patron noise and the potential to disturb sleep.

•

Retention of an existing heritage building but modifying it internally and externally.

•

Replacing an existing light weight structure which is part glazed and part awning with new glass roof and walls.

•

Erecting a glass structure linking the heritage building and the new lightweight glazed structure.

•

Provision for an outdoor bar in the south eastern corner of the site and a fire place near the pedestrian entrance

•

Retention of two large trees on the site

•

Use of the two buildings and the two outdoor areas for a licensed tavern accommodating up to 460 persons at any one time

•

Trading hours of the tavern on every day of the week be:

i.

Indoor areas 10.00am to 1.00am the following day

ii.

Outdoor areas 10.00am to 11.30pm, although it is planned to allow smokers to utilize the outdoor areas after the 11.30pm closure of the outdoor drinking areas

8 The subject site is located on the corner of Exhibition Street and Little Lonsdale Street in the north eastern sector of the Melbourne CAD. It currently comprises two restaurants. One restaurant is located in an existing heritage building that was originally constructed as a synagogue. There is also a restaurant in also a smaller lightweight structure which provides semi open dining facilities along the Little Lonsdale Street abuttal. There is an open yard facing Little Lonsdale Street which has been subdivided by the placement of the smaller lightweight structure and kitchen.

9 There is a small vehicular entrance off Little Lonsdale Street that currently provides for parking of two vehicles and garbage collection services.

10 Land facing the site on the northern side of Little Lonsdale Street comprises a 12 storey building containing 55 apartments known as Exhibition Apartments. A number of the apartments have habitable room windows which open out towards the subject site.

11 Land abutting to the south comprises a 33 storey building containing 222 apartments known as Regency Towers Apartments and a five star hotel known as The Marriott. There are a number of apartments which have balconies, bedrooms and living rooms which face out over the subject site. The hotel also has a function room at ground level which has a window with direct vision of the future beer garden and outside bar area.

12 There are other apartment buildings located further east in Lonsdale Street such as City Gate Apartments and Spring Street Towers and there are dwellings above shops/commercial premises nearby in Little Lonsdale Street.

13 There also restaurants and other licensed premises in close proximity including the Troika Bar in Little Lonsdale Street, Coopers Inn hotel opposite on the corner of Little Lonsdale and Exhibition Streets. There are also a range of other commercial uses including offices, retail outlets and civic spaces in close proximity.

14 The subject site and all surrounding properties are located in the Capital City Zone, Schedule 1 - Outside the Retail Core. There are also a number of overlays affecting the site including:

•

Design and Development Overlay Schedule 1 - Active Street Frontages Capital City Zone.[2]

•

Design and Development Overlay Schedule 4 - Weather Protection Capital City Zone[3]

•

Heritage Overlay HO635 (Former Mickveh Yisrael Synagogue and School)

15 A tavern requires a permit for use under Schedule 1 to the Capital City Zone-Outside Retail Core (Clause 37.04-1) of the Melbourne Planning Scheme. A permit is also required to construct a building and carry out works under Clause 37.01-4 and Schedule 1 to the zone.

16 There are decision guidelines in Schedule 1 which require, amongst other things, an assessment of:

•

The movement of pedestrians, and cyclists, and vehicles providing for supplies, waste removal, emergency services and public transport.

•

The impact on the amenity of any existing dwellings on adjacent sites.

•

The existing and future use and amenity of the land and the locality.

•

The streetscape, the scale and height of the neighbouring buildings and the proposed development, the proximity to heritage places, the design of verandahs, access from street frontages, the protection of active frontages to pedestrian areas, the treatment of the front and backs of buildings and their appurtenances, illumination of buildings or their immediate spaces and the landscaping of land adjoining a road.

17 There are State and Local planning policies relevant to our consideration.[4] We will refer to various aspects of these policies where relevant. Ms Opperman provided a detailed exposé of the planning policy framework which all parties referred to during the hearing. It shall remain on file as a valuable contribution to our decision.

18 At a Directions hearing on 14 July 2006 Deputy President Gibson allowed amendment of the application which changed the name of the applicant, reduced the number of patrons from 615 to 480 and specified maximum numbers of patrons in various areas throughout the property.

19 At commencement of the hearing Mr Finanzio referred to revisions to the plans to incorporate further glazing connecting the existing heritage building with the redeveloped glass building. He also advised there were changes proposed to patron numbers where by the maximum would now be in the order of 460 persons but there would be no specific breakdown in numbers for each particular licensed section of the site.

20 Various parties expressed concern about these changes but we advised we were prepared to continue with the hearing having regard to comments made from Mr Townshend about the implications in delay and costs to various parties.

21 The change to the glazed section that links the two buildings triggers an assessment of heritage issues concerning the former synagogue building. We also note that the original permit application included heritage matters but part way through the application process Heritage Victoria issued a conditional approval, there by obviating the need for a permit under the planning scheme. At the time of the hearing Heritage Victoria had not considered the revised plans.

22 We acknowledge that the proposal widens the ambit of discretion concerning heritage matters unless Heritage Victoria approves the recent changes. By and large these changes were prompted by the acoustic advice and are required to prevent the escape of noise from the premises. There was little objection from most parties to this detail although Ms Bannister opposed consideration of this matter on the basis that she had no instructions on the issue and there may be other people with concerns about this issue who may be denied opportunity to comment. We reserved the right for any party to make further submissions on heritage issues if they felt they had inadequate opportunity during the hearing. No person sought to cross examine Mr Lovell and his witness statement in regard to this matter and it was not challenged.

23 During the hearing we undertook an inspection of the subject site and a number of apartments abutting the site. We also undertook an inspection of the general locality and other licensed premises referred to in the various submissions. We were provided with a substantial array of documentation including planning provisions, local planning policy, the officer's report, various copies of licences applying to other nearby premises, maps showing other licensed premises in the Central Activities District, planning permits for other licensed premises including the Troika Bar, and expert reports. All witnesses were available for cross-examination.

24 Prior to and following the hearing we undertook separate site visits after hours to determine the conditions of the neighbourhood during mid-week and at busier trading times. We also examined other licensed premises with beer gardens and/or outdoor drinking facilities, such as The Richmond Public House.

25 The most helpful starting point to determine there is support for promoting the Melbourne CAD as the pre-eminent activity centre for Metropolitan Melbourne and Victoria as a whole is City Plan 2010. This policy identifies specific directions and objectives for the Central City which include:

•

Encouraging an accessible and vital 24 hour Central City.

•

Facilitation and strengthening the retail, cultural and entertainment functions of the Central City.

•

Supporting residential development and providing a level of residential and public amenity commensurate with a Central City location.

•

Preserving and enhancing the heritage assets and qualities of the Central City.

26 There was extensive debate in the hearing about balancing policy directions which encourage a 24 hour city whilst also attempting to balance the reasonable expectations of residents living in the CAD.[5] There is planning policy support in Clause 21.04 and decision guidelines in the Schedule 1 to the Capital City zone which directs a responsible authority to have regard to amenity considerations for existing dwellings. This needs to be balanced against other policy directives which tell residents that amenity expectations in the CAD are not the same as a conventional residential area.

27 The policy context is supported by the provisions of Schedule 1 to the Capital City zone and we consider these provisions provide a subtle level of difference in types of food and drink and entertainment activities. For example a restaurant, café and a dwelling are as of right uses, whilst tavern, hotel and nightclub uses require a permit.

28 Clause 31of the planning scheme tells us:

Because a use is in Section 2 does not imply that a permit should or will be granted. The Responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the zone and any other decision guidelines in Clause 65.

29 When we visited the site we observed a mix of uses, including residential, residential hotel, hotel, restaurants and commercial premises. Some of the licensed premises operate to late and at times to 3am. We found it necessary to closely examine various elements of the CAD and various parts of it to determine whether the policy frame work applied equally.

30 Having regard to the Local Planning Policy Framework and the site context, we consider that there is policy support for a tavern use within the confines of the existing and proposed buildings especially after they have been modified for sound attenuation as recommended by Mr Burton. The evidence from all acoustic witnesses demonstrated that sound attenuation can be achieved within both buildings to a satisfactory degree in a CAD location.

31 We also suggest there may be argument for the tavern to be allowed to remain open much longer than the 1 am to allow for more flexible disbursement of patrons over time rather than having patrons depart en-mass. This measure may reduce amenity impacts on residents and businesses in the vicinity of the site. We note there is no policy directive to say the premises should close at 1.am. Having said that, we consider the applicant did not address a number of fundamental management and amenity issues which may have produced a more acceptable outcome in respect of this aspect of the proposal.

32 But we do not consider there is sufficient policy support for the subject premises to have a large open beer garden facility in the manner shown in this application. We consider the applicant relied too heavily on the policy directives supporting 24 hour trading in the CAD without providing adequate recognition of amenity issues to residents and businesses in the vicinity of the site or its context.

33 The site does not have a typical CAD context; it has a relatively large open court yard abutting a busy thoroughfare with a heritage building and it is flanked by two residential apartment buildings and a 5 star hotel. Whilst we are satisfied that the buildings can accommodate a tavern operation we do not consider the out door tavern facility fits well with its immediate context. This is not to say outdoor venues are inappropriate in the CAD, but there are other better known precincts for an outdoor venue which have greater policy support, fewer potential amenity conflicts or a demonstrable ability to self manage potential amenity conflicts. For example part of Clause 21.08-1 seeks:

Intensification of specialised shops , restaurants, and bars within the City's Retail Core and the Central City's many specialty retailing and entertainment precincts(such as Hardware Lane, China Town, Collins and Little Collins Streets, King Street, Yarra River Promenade, and Southbank) assists in creating a unique and thriving shopping and entertainment environment of national prominence.

34 When we visited the site at relatively busy times we could discern subtle variation in levels of activity depending on the uses in the various sections of the CAD. We observed that the area to the south of Lonsdale Street, containing the Elephant and Wheelbarrow, Bridie O'Reilly's and the Champaigne Bar are more vibrant entertainment and licensed venues compared to the area to the north of Lonsdale Street. This is not to say the area to the north was quiet but the level of activity was noticeably lower.

35 It is particularly pertinent that observations made during the AFL Grand Final Eve, just prior to the hearing, formed such a strong contrast between the vibrant throng in the area near the Bourke Street spine compared to the more subdued level of activity, which was mainly related to dining related entertainment in proximity of the subject site.

36 It is clear to us that while Policy sets out to encourage a 24 hour CAD,not all areas of the CAD are capable of providing such high levels of activity at all times. Through providence or planning the CAD has developed a complex segregation of activities and associated amenity, which are often in identifiable precincts that we observed at various times during our inspections.

37 Whilst we accept that such activity and amenity in the CAD will be dynamic, with the shifting to and fro of various uses there may be, over time, a change in the level of activity in a precinct, but this would seem to be an incremental process which is built on the existing context. It follows from our consideration of the site's context and from policy that the proposed outdoor area of the Tavern takes this proposal into the realm of too much too soon.

38 There are various policy guidelines for residents and residential development in the CAD. On the one hand Clause 21.04 seeks to:

Ensure that reasonable expectations of amenity for existing uses are maintained.[6]

39 There is another directive in Clause 21.04 which is:

To ensure that residential development takes into account the amenity impacts of established and future uses, including noise impacts, and provides acoustic insulation in dwellings to protect future occupants.[7]

40 We see these two distinct policy directives as firstly it is providing for maintenance of existing amenity expectations for those residents in the area, whilst the second emphasises the need for new residential development to provided levels of protection for future residents from existing activities or those that are to be expected in the CAD.

41 The Land Use Amenity Principle[8] includes:

• Residential amenity in the Capital City and Dockland zones is not comparable to that of Residential zones, and residential use and development in these zones must not compromise the other purposes and functions of the Central City and Central Activities District.

• New residential use and development in these zones need to acknowledge and manage off-site impacts, including appropriate acoustic attenuation measures.

42 We consider there needs to be a clear understanding that the amenity standards for residents in the CAD are not the same as those found in a conventional suburban residential area or even those found in an inner suburban Residential 1 zone, such as East Melbourne or South Yarra.

43 We draw a distinction between operating a tavern venue in this site context compared to a conventional suburban context where residential amenity is much higher and the implications for occasional disturbances are less likely to be tolerated by residents.

44 We consider that residents in the vicinity of the subject site must expect some level of disturbance from licensed premises, other entertainment and commercial premises or from patrons travelling along either Exhibition or Little Lonsdale Streets late at night. But we also draw a distinction between an occasional instance of disturbance to residents, such as the experience with the Coppers Inn referred to by Ms Willsford and a tavern which will rely heavily on the outdoor section to regularly accommodate a large number of patrons outside.

45 Ms Willsford aptly summed up various residents groups' expectations for this area when she acknowledged the presence of other existing licensed premises, including the two on the subject site, which traded to various hours in the vicinity of the area, generally without complaint.

46 The Coopers Inn Hotel[9] incident referred to by Ms Willsford was a recent late night disturbance from patrons of that hotel. This example illustrated that it was not a normal event for residents to be disturbed in the early hours of the morning by hotel patrons and as a consequence of the disturbance, it drew complaint. This example served to illustrate a number of points:

•

The general operation of the Coopers Inn Hotel did not raise continual complaints from residents, indicating a general acceptance of the indoor aspect of that licensed venue;

•

An early morning, out of venue disturbance was an unusual event in this location; and

•

Early morning activities outside a building provided a strong enough increase in noise impacts to generate a noticeable disturbance to residents.

47 We conclude that residents can (and should) tolerate some disturbance of the kind referred to by Ms Willsford on occasions in the CAD but it is a different thing to expect residents to tolerate noise and disturbance on a frequent basis.

48 We believe the applicant has not adequately examined the context of the site and its relationship with older style apartments and other dwellings nor has it anticipated the likely impact on their amenity.

49 In examining the extent of impact on the amenity we have also taken into account that the Regency Apartments has some acoustic attenuation due to the superior design at the time of construction. The acoustic attenuation measures of Regency Apartments compares more favourably with the Exhibition Apartments which do not have opportunity for cooling via air conditioning and various occupiers may need to open windows for ventilation particularly during hot spells.

50 We are concerned about the use of a relatively large outdoor licensed area in close proximity to dwellings and to businesses, particularly those abutting the site. We acknowledge it is only intended to allow drinking in the beer garden area until 11.30 pm but we consider there are insufficient amenity safeguards. Some of the specific concerns we have are :

•

The lack of ability to maintain noise levels in the beer garden. Whilst the evidence by the acoustic consultants indicated general noise levels will be within reasonable levels there are no specific controls under SEPP to control or guide authorities about patron noise.

•

There is little in the way of practical separation between the beer garden and the public domain. If patrons are boisterous or exuberant after imbibing in alcohol their conduct can not be easily shielded from pedestrians using Exhibition Street. We think it is unrealistic to expect security personnel to constantly call upon patrons to "quieten down". In effect this would seem to be counter intuitive to the notion of visiting a beer garden.

•

There was little in the way of furniture or landscaping in the beer garden to indicate with any certainty that the beer garden will provide a quiet or sedate environment.

•

The placement of an outside bar for the convenience of drinkers with no specific criteria about its future use.

•

The lack of a self managing scheme to deal with smokers in any meaningful way.

•

The apparent intention to provide for queuing outside the site, with a number of amenity implications to nearby residents and businesses, such as the Marriot Hotel.

51 We consider that residents' amenity is not the only amenity to be protected in this section of the CBD. There are also a number of other businesses in the vicinity of the site, some of which are licensed, which can also be impacted by a tavern premises particularly if there is inadequate management of that use.

52 We consider that some of the Capital City functions, which incorporate tourism and business activities, needs to be considered in the context that the services provided are a core function of the CAD. We consider there has been insufficient attention given to the likely amenity impacts on the current functions of the Marriot Hotel by patrons of the tavern congregating outside the entrance to the Regency Apartments and the Marriott. In this regard we are concerned about the possibility of patrons queuing along Exhibition Street and there may also be difficulties for a relatively large numbers of patrons of the tavern smoking outside the Marriot in times of inclement weather. Based on our observation of the entrance to the Marriot and Regency Apartments the only people that congregate outside these premises are persons waiting to be picked up by taxi's or private vehicles.

53 We acknowledge that the applicants belatedly changed the likely direction of the queue so that it would come from Little Lonsdale Street but we question why there is a need for a queue in Exhibition Street at all. We do not see why the premises could not provide an internal queuing facility. We acknowledge that there may be some restriction on the current layout to address underage persons on the premises, but surely this could have been addressed by a security person vetting patrons as they entered the gate or some other self regulating design change to the layout.

54 Whilst the Marriott Hotel itself has trading up until 1.00am, this is within the context of a premises that closes its main doors to the public generally after 11.00pm and it has internal staffing and management arrangements in place to ensure there is no adverse amenity impacts not only to its neighbours but to its own visitors and guests.

55 Accordingly we are concerned that if there is a lack of adequate safeguards from the amenity impacts of the relatively large outdoor venue it may spill over into the public domain and detrimentally impact on the reasonable functioning of this hotel.

56 We also considered the debate about the impact on the function room of the Marriott which has a window facing the beer garden. We are less concerned about this immediate impact on the function room because measures can be applied to screen out the view of the beer garden.

57 Whilst we consider Ms Opperman has provided a thorough exposé of the planning policy context, we are not as satisfied that she adequately addressed the potential amenity impacts on various properties in close proximity to the subject site. Furthermore we consider that too much emphasis has been placed on the draft management plan to address the potential amenity impacts of the proposed use to deal with amenity issues.

58 We also consider that it may be one thing to have a 1.00am or 3.00am licence and operate it occasionally particularly within the confines of an existing building or a Five Star hotel where for operational reasons most of the amenity or escape of noise can be controlled and managed internally. However it is another matter to suggest that a large licensed premises which contains a relatively high number of patrons and large area for a beer garden immediately abutting a street is an appropriate planning outcome which was envisaged in the planning policy context or in the context of recent changes which are about to be promulgated to address smoking in licensed venues.

59 We consider the applicant has not adequately addressed the issue of smoking in the open air in this application. Essentially the applicant will rely on patrons being able to move to the outside beer garden and/or courtyard to smoke. At 11.30pm all patrons wishing to drink alcohol will be expected to move inside the premises. This still allows patrons to remain in the beer garden and relies on management supervising smokers, and their friends who may wish to stay with the smokers. We think this approach to managing a relatively large beer garden to be unrealistic and unwieldy.

60 There is little appreciation of the actual numbers of patrons who will wish to stay outside and smoke or stay with friends. We note the applicants retracted their previous intention to limit the numbers of patrons in the outdoor areas to 160 patrons, apparently on management grounds, so we conclude that at times there will be a substantial number of patrons in the beer garden.

61 The owners of the Marriot are concerned that patrons may seek shelter under the cover of the canopy in front of the Marriott. We consider this is a pointer to a lack of design and management consideration about the full impact of the proposal in a similar way to that expressed in the Ann Ryan[10] decision by Deputy President Gibson and Member Cimino about future smoking laws in licensed premises that take effect on 1 July 2007

62 During the hearing we questioned various experts about the suitability, or otherwise, of designating a small section of the premises as a "smoking area" which was well away from the nominated beer garden areas. We acknowledge these areas are not necessarily the most attractive areas on the site for smokers, but they did provide greater opportunity for supervision of smokers away from the interface with the public realm. Adoption of these alternative areas would also require modification to the layout by deleting some of the storage areas however the applicant did not wish to pursue this option.

63 We also questioned a number of the witnesses about the likely number of patrons who smoke. They under took exercises in mental arithmetic of the likely percentage of smokers which will occupy the premises. This invariably came down to a figure ranging between 17 and 25 percent of the projected maximum number of 460 patrons based on the Ann Ryan[11] decision. Whilst these calculations provide an interesting starting point they did not really provide a good indicator to us about the likely extent of smokers who may wish to utilise these facilities. Further we do not know if the premises will capitalise on the smoking laws to provide a facility that can accommodate a higher percentage of smokers than the statistics cited in Ann Ryan.

64 When we visited other outdoor facilities, such as The Richmond Public House there seemed to be a relatively high number of smokers in the outdoor beer garden compared to the remainder of the licensed area. It was our observation that, taken as a whole, the percentage of patrons smoking appeared to be higher in licensed venues compared to the percentages suggested in the hearing. If anything, the indecisive nature of commentary about the smokers in licensed premises points to the need for some independent and credible research about the smoking habits of persons using licensed venues rather than relying on a statistic of smokers in the general population.

65 Mr Devlin pointed to the Ann Ryan decision and the findings by Deputy President Gibson and Member Cimino, where they stated:

39 In general, we consider that a suitably designed and located outdoor area for smoking should be provided, on the site of the licensed premises. By 'suitably designed and located,' we mean that the outdoor area meets the appropriate criteria in the tobacco laws and that its use will not give rise to any adverse off-site amenity impacts relating to noise, odour or patron behaviour.

40 This may mean with respect to new uses requiring a planning permit that if a suitably designed and located outdoor area cannot be provided on-site, the use should not be permitted. Whilst this may seem harsh, it is a consequence of the tobacco laws designed to protect occupational and public health by making licensed premises smoke free. There will be costs associated with such measures. Those costs cannot be avoided simply by pushing the attendant effects off-site and permitting smoking to occur in locations where noise will interfere with people's sleep at night or other adverse effects will be experienced.

66 Whilst we acknowledge the applicant has a large area to accommodate smoking per se, we do not consider that it has properly thought this issue through and it will seem to rely on intensive supervision and intervention to ensure that patrons are well behaved in the outdoor area. The applicant has not designated an area for smoking after 11.30pm but rather relied on the general open air or beer garden to deal with the problem after 1 July 2007. There seems to have been no consideration given to what happens when it rains or there is inclement weather.

67 We also consider it is not appropriate for these premises, which has a capacity of 460 patrons to simply allow its patrons to exit the premises in Exhibition Street and smoke in the public domain. Whilst that was not intended in this application we note there is no weather protection outside the premises on either Exhibition Street or Little Lonsdale Street abuttals and therefore if patrons are caught out when smoking they may try to utilise other covered areas such as outside the Exhibition Apartments or outside the entrance to the Marriott Hotel, thereby causing a nuisance through depositing of rubbish or other noise issues.

68 The applicant relied extensively on the use of a Draft Patron Management Plan prepared by Robert Steane. We agree that the premises should have this management tool to inform staff and management about issues associated with the tavern's operation. However we consider that whilst the management plan provided a nominal frame work it did not come to terms with supervision of smokers in the large outdoor area or how staff will deal with patrons on the interface with the public realm or abutting residences and businesses nor did it consider alternative measures for supervision of partons queuing to enter the premises

69 Similarly we consider the management plan has not adequately addressed the likely impacts on the smoke free legislation. As the Ann Ryan decision stated:

11 We were told that many existing licensed premises are undertaking alterations, additions and renovations to make available a balcony, a courtyard, rooftop or other similar area which will meet the legislative requirements of an outdoor area that will not need to be smoke free once the new tobacco laws come into operation. However, we note that in the education material being provided by the Government and the AHA about the new tobacco laws and what sort of outdoor dining and drinking areas will comply with the legislation, there is no emphasis on the need to ensure that such outdoor areas can be used for smoking without detrimentally affecting off-site amenity. No attention is drawn to the importance of where such areas should be located or the possible need for noise attenuation.

12 We do not consider it is wise or appropriate having regard to the legislative and policy context in Victoria to adopt a head-in-the-sand approach to what will happen when people can no longer smoke in licensed premises. Some patrons may choose not to smoke at all, but there will be a proportion of others who will still wish to smoke and who will go outside to do so, either outside on the premises or onto the footpath. It is not socially responsible to make premises smoke free and then ignore where patrons go to smoke and the effects of their behaviour on other people.

70 Furthermore, Deputy President Gibson and Member Cimino also made comment about the benefits of and weight to be given to Management Plans which we consider are very relevant to some of our concerns about this proposal, when they said:

32 There are a range of planning measures available to address off-site amenity impacts associated with the need for people to smoke outdoors once licensed premises become smoke free.

•

Design of Premises - outdoor smoking areas are designed and located to avoid noise and patron behaviour impacting adversely on adjoining or nearby noise sensitive locations (including residential uses).

•

Conditions in permits - conditions can specify development requirements (eg noise attenuation) or control use (eg hours of operation).

•

Management Plans - management plans are a means of controlling patron behaviour in outdoor areas either on-site (whether part of the approved licensed area or otherwise) or within the public realm (on the footpath or in other public areas). Management plans can require staff from the licensed premises to control noise, crowd behaviour and litter removal.

33 We consider the most effective means of avoiding adverse off-site amenity effects is in the design of premises. If outdoor areas are designed and located to avoid problems this will be more effective than attempting to control behaviour through management plans. Management plans are a less effective option and should only be accepted as a solution when there is no other alternative. They work best as a back-up to other measures. Their effectiveness will depend upon the responsiveness of people responsible for implementing and monitoring them, and there is always the risk that problems will arise before they are brought under control by action under the management plan.

71 We gained the impression that the applicant wanted us to identify the conditions of use including the terms of the operation and then the management plan would provide a vehicle to react to any amenity or management issue that arises along the way. We consider this was a poor approach and is a reflection of the lack of consideration of the site and design response context.

72 Further the number of other areas when the applicant has failed to anticipate and address patron interaction with the public realm, either when in the beer garden, queuing to enter the venue, or the supervision of large numbers of patrons departing late at night suggests to us a lack of thoroughness in this application. As in the Anne Ryan case it would be preferable for these matters to be self regulating with a pro-active design and management approach rather to simply react when complaints are received.

73 We were provided with a number of VCAT decisions to support differing parties' positions. Some parties argued that Mr Bennett had gone overboard in his support for a late night venue in the Micjay decision[12]. Other parties also referred to the decision of Mr Quirk for the Troika Bar[13] nearby which had initially placed a 12.30am limit, Senior Member Baird's decisions seemed to refer to taverns within buildings. In Micjay we were told the site was within the Core Retail area and Mr Quirk's decision seems to predate the current policy context and in any event seems to have been altered under circumstances which were not clear to us.

74 Accordingly we have not found any decision overly decisive because most of our concern lies with the outdoor operation and lack of amenity safeguard to residences and businesses. Instead we found greater guidance in the planning policy framework, our observations of the site context and our observations of other outdoor drinking venues.

For the above mentioned reasons the responsible authority's decision in permit application TP2006/128 is affirmed. No permit shall issue for a tavern at 275-285 Exhibition Street Melbourne

[1] Pursuant to Section 79 of the Planning and Environment Act 1987

[2] This provision is not relevant in this matter.

[3] This provision is not relevant in this matter.

[4] Clauses 12, 15.05,15.11,17,,21.03,21.04,21.08,22.04 & 65

[5] Clause 11 specifically calls for balancing of competing objectives in favour of net community benefit.

[7] Clause 21.04.1 (part 2.1)

[8] Table 3 to Clause 21.04 on page 2 of 16

[9] The Coopers Inn Hotel is directly opposite and has a 3 am license.

[10] Ann Ryan v Port Phillip City Council [2006] VCAT 1923

[11] Ann Ryan v Port Phillip City Council[2006] VCAT 1923

[12] See Micjay Pty Ltd v Melbourne C.C.[2005] VCAT 1483 and Zanos v Melbourne C.C [2006] 1358

[13] M Sillitto v Melbourne .C.C. (1997/59128)