MEDIUM NEUTRAL CITATION: [2003] VCAT 288

1. With respect to permit application no. 010303, a permit is granted for the use of land for a tavern and nightclub with associated permission for the consumption of alcohol on premises in accordance with the endorsed plans at 64 Smith Street, Collingwood. The following conditions must be included on the permit:

1. For the first 6 months from the date of this permit (the "Trial Period") the use must only be open to the public during the following hours:

(a) Monday to Wednesday 6pm to 3am the following day unless the following day is a public holiday, in which case the hours of operation are 6pm to 5am the following day; and

2. Upon the Responsible Authority giving the owner and occupier of the land written notice during the Trial Period that it does not consider the use to be operating to its satisfaction the use must thereafter only be open to the public between the hours of 6pm to 3am the following day.

3. If the Responsible Authority does not give written notice to the owner and occupier of the land under condition 2, the use may continue to be open to the public for the following hours:

(a) Monday to Wednesday 6pm to 3am the following day unless the following day is a public holiday, in which case the hours of operation are 6pm to 5am the following day; and

4. Not more than 300 patrons are to be permitted on the premises at any one time.

5. No outside speaker music whatsoever must be broadcast to Smith Street without the further written consent of the Responsible Authority.

6. Any noise emitted from the subject premises must:

(a) at all times comply with any limits, standards or rules prescribed thereto or imposed by, in or under State Environment Protection Policy made pursuant to the Environment Protection Act 1970, and in particular the State Environment Protection Policy (Control of Noise from Commerce, Industry or Trade) No. N-1 and (control of music from public premises) N-2; and

(b) at all times be such as to comply with any noise control notice served on the occupier of the subject premises pursuant to Section 47 of the Environment Protection Act 1970.

7. Prominent notices must be erected on the land which advise patrons to take into account the needs of local residents for peace and quiet during normal sleeping hours, to the satisfaction of the Responsible Authority.

8. No emptying of bottles into garbage bins is permitted after 10pm on any night, or before 7am on any day. No bottles or other waste materials must be removed from the site between the hours of 10.00pm on any day and 6.00am the following morning. Garbage collection must be made by a private contractor.

9. The amenity of the area must not be detrimentally affected by the use hereby permitted, through:

(a) The transport of materials, goods or commodities to or from the subject premises;

(b) The appearance of any buildings, works or materials;

(c) The emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; or

10. A Security Management Plan must be prepared and approved to the satisfaction of the Responsible Authority before the use commences. The Plan must include Standard Operating Procedures as recommended by the Victoria Police Private Agents Registry. The Plan may be amended from time to time with the approval of the Responsible Authority. The matters the security management plan must address, include:

(a) The identification of all noise sources (including, but not limited to, patrons on the premises, patrons entering and leaving the premises) likely to impact on adjoining residents.

(b) Maintenance of a queuing system for patrons waiting to enter the venue.

(c) Measures to be instituted when dealing with intoxicated patrons.

(d) Measures to be undertaken in the event of complaints by a member of the public, the Victoria Police, an authorised officer of the Responsible Authority or an officer of Liquor Licensing Victoria.

(e) The maintenance of a video surveillance system at the premises that allows for both internal and external monitoring and recording by the venue. All video tapes must be retained for 1 month with details of specific incidents captured on video entered in the Crowd Controllers Register and cross referenced to extracted video tapes.

(f) The maintenance of a radio communication system on premises for communications between key personnel including management, bar and security staff.

(g) The maintenance of unmanned emergency exit doors with independently powered warning strobe lights for the purpose of access control. During the hours that a use allowed by this permit is being conducted:

(i) no external door or window of the building (except at the main entrance and exit being used for the event) must be opened or capable of being opened except in an emergency; and

(ii) an exit from the building including external escape routes must not be physically or visually obstructed at any time.

(h) The maintenance of a Crowd Controllers Register as required under the Private Agents Act must be maintained at all times.

(i) Front of house staff monitoring persons in the immediate vicinity of the premises must make regular nearby street patrols including in Langridge Street.

(j) Staff must monitor and clean up the public area surrounding the premises during the 30 minute period from the cessation of bar services daily.

(k) Staff must be trained in accordance with the relevant Australian Standard, as amended from time, in relation to emergency procedures necessitating evacuation of the premises.

11. The use must operate in accordance with the Security Management Plan to the satisfaction of the Responsible Authority.

12. All persons engaged in the serving of liquor must undertake a responsible service of alcohol course provided by or approved by the Liquor Licensing Commission within three (3) months of being engaged by the operator of the use hereby permitted.

13. During all hours (whether or not liquor is served) in which the use is open to the public, entry must be made freely available to any authorised officer(s) of the Responsible Authority for the carrying out of any investigations associated with the sale or consumption of alcohol on the premises.

14. During all hours (whether or not liquor is served) in which the use is open to the public, there must be present on the premises, a person above the age of 18 years, responsible for the good conduct of the premises ("the Manager").

15. The Manager must at all times be authorised by the operator of the use hereby permitted to make statements and admissions on their behalf to any authorised officer of the Responsible Authority regarding the conduct of the premises for the use hereby authorised.

16. All delivery and collection of goods associated with the use must be conducted between 8am and 6pm 7 days per week.

17. Any equipment required for refrigeration, air-conditioning, heating and the like must be located on the subject land or premises and/or must be suitably insulated for the purpose of reducing noise emissions, to the satisfaction of the Responsible Authority.

18. Music and electronically amplified noise levels must not be played unless the noise generation and amplification system is linked to a Noise Monitor and Limiter which is operating and has the following characteristics:

(a) the device is a stereo multi-band limiter such as a Sontec programmable noise monitor;

(b) the device monitors noise levels at frequencies between 50Hz and 100Hz and is wired so as to ensure that the limiter governs all power points potentially accessible for amplification;

(c) the noise emissions are monitored to ensure that the limiter settings are correct;

(d) the noise limiter settings are adjusted as is necessary from time to time to account for any change in the building fabric;

(e) the limiter controls are in a locked metal case that is not accessible by personnel other than a qualified acoustic engineer or technician nominated by the owner of the land and notified to the Responsible Authority;

(f) the device is installed to control all amplification equipment in the ground floor auditorium and any other area required in writing by the Responsible Authority and is set by an acoustical consultant approved by the Responsible Authority in such a way that the power to the amplification equipment is disconnected for 15 seconds if the sound level generated by the amplification equipment exceeds for one second the maximum sound level for which the monitor is set;

(g) the monitor level component of the device includes a calibratable frequency discriminating sound analyser with an internal microphone incorporated in its own tamper-proof enclosure (beyond the normal reach of a person) and which will indicate by green, amber and red illuminated halogen lamps the approach and exceeding of the set maximum noise level. The lamps must be in the clear view of the staff and any disc jockey or band in the room. The device must prevent a relevant noise level referred to in these conditions being exceeded.

19. The characteristics of the Noise Monitor and Limiter may be varied with the written permission of the Responsible Authority.

20. On each night that the use allowed by this permit is being conducted after 11pm the main entrance and exit must only be opened to allow patrons to enter and exit the building and must be closed again after each patron has entered or exited the building to the satisfaction of the Responsible Authority.

2. The Responsible Authority is directed to issue a permit in accordance with this order.

Responsible Authority: Mr M Townsend, Barrister, instructed by Maddocks.

Applicant: Mr D Scally, lawyer, Best Hooper solicitors.

1. This was an application under s79 of the Planning and Environment Act 1987 against the Responsible Authority's failure to grant a permit with respect to permit application no. 010303 within the prescribed time. The permit application seeks permission to use land at 64 Smith Street Collingwood for the purpose of a Nightclub with trading hours up to 7.00am.

2. The land is located on the south-east corner of Smith Street and Langridge Street, Collingwood. The land is occupied by a two storey building which is used as a nightclub known as "A Bar Called Barry". The existing nightclub operates until 3.00 am under its current permits and liquor licence. The land is located within a commercial shopping strip running along Smith Street, with residential uses in the area beyond.

3. The permit application essentially seeks permission to extend the trading hours of the existing nightclub until 7.00am. The maximum number of patrons will remain as existing at 300 persons.

4. Under the planning scheme, the land is within the Business 1 zone, the provisions for which are at clause 34.01. "Nightclub" is a use which is not specified in any section of the land use table to the zone, and as such, it falls within section 2 [permit required.] A permit is required under clause 52.06 to reduce or waive car parking whilst a permit is also required under clause 52.27 to vary or extend the hours under a liquor licence. The land is also affected by the Heritage and Design and Development Overlays, however, there are no development or heritage matters to be considered. The relevant decision guidelines require consideration to be given to, amongst other things, the provisions of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose of the zone, the orderly planning of the area and the impact on amenity.

5. The hearing of this matter commenced on the 11 December 2002. At the hearing Mr Townsend and Mr Scally tabled and spoke to written submissions. Mr Townsend called two witnesses; Mr Noel Cunningham who is the Responsible Authority's Community Amenity Officer, and Mr Grant Mathews who resides at 54 Gore Street. The hearing did not finish in the allotted time and was set down for a further two days commencing on the 11 March 2003. At the end of the hearing I gave the parties directions which are set out in my order dated 11 December 2002.

6. When the hearing resumed on the morning of the 11 March 2003, Mr Townsend and Mr Scally advised that their respective clients had nearly resolved the matters in dispute and requested a short adjournment so that they could finalise an agreed outcome. I gave them this opportunity and upon the resumption of the hearing, Mr Townsend and Mr Scally advised that their respective clients had reached agreement and that they would be seeking that I make orders to give effect to their settlement. In addition it is relevant to note that Mr Townsend said that in arriving at its position, the Responsible Authority had met and discussed the basis of the agreement with those objectors who participated in the hearing. Mr Townsend said that it was his understanding that the objectors accepted the outcome being put forward by the Responsible Authority and the permit applicant. parties.

7. In summary, the agreement was that a permit would issue for the proposed use subject to a condition which would allow extended hours to 5.00am (not 7.00am as originally proposed) Thursday to Sunday on the basis of a 6 month trial. In the event that the use does not operate to the Responsible Authority's satisfaction and the owner and occupier of the land being advised of this in writing, then the trial period would end and the use would revert to the current operating hours. If the use operates satisfactorily during the trial period, then the extended hours become permanent. It was put to me by Mr Townsend and Mr Scally that this represents an outcome which is satisfactory to their respective clients.

8. In considering this proposal, I have no difficulty making the orders being sought. The land is located within a commercial zone and is already used as a nightclub. Patron numbers are to remain as existing and therefore the car parking situation will essentially remain the same. The grant of a permit allows the use to be subject to more stringent and appropriate permit conditions that will better regulate its operation and amenity impacts. In addition, the permission is being granted on a trial basis so that the amenity impacts such as noise and patron behaviour can be monitored.

9. I have reviewed the conditions proposed by Mr Townsend and Mr Scally, and subject to some relatively minor changes which we discussed at the hearing, I find them to be acceptable.

10. As such, I will grant the permit on the basis put forward by Mr Townsend and Mr Scally.