White Bar Pty Ltd v Port Phillip CC (Occupational and Business Regulation) [2007] VCAT 275

1 The decision of the Responsible Authority is affirmed but the conditions to attach to the permit are to be varied. A permit is to issue in respect of the land 151-154/129 Fitzroy Street, St Kilda, also known as The White Bar, to permit extension of licensed hours of a tavern/bar to 3:00 am generally in accordance with the endorsed plan and subject to the conditions in Schedule A hereof.

3 Licence No 31950143 in respect of The White Bar shall be varied by :

(a)

inserting "minus 3dB" after the words "No. N-2".

(b)

The maximum capacity and trading hours and conditions shall be varied to read as follows :

Trading Hours: For consumption on the licensed premises but each day between 11:00 am and 3:00 am the following morning.

No live music is to be provided at the premises save for live music of an acoustic or semi-acoustic nature.

When recorded amplified music other than background music is provided :

• The licensee shall install and maintain a surveillance recording system able to clearly identify individuals, which shows time and date and provides continuous images of all entrances and exits, bars and entertainment/dance floor areas and the Foyer of 129 Fitzroy Street, St Kilda (the Foyer). The surveillance recording system must operate from 30 minutes before the start of the entertainment being provided until 30 minutes after closure. A copy of the recorded images must be available upon request for immediate viewing or removal by Victoria Police or a person authorised in writing by the Director of Liquor Licensing, or otherwise retained for at least one month. The positioning of cameras is to be to the satisfaction of the Licensing Inspector.

• Signs as described below, are to be displayed in all areas subject to camera surveillance. Such signs shall read : "For the safety and security of patrons and staff this area is under electronic surveillance".

• All staff engaged in the serving of liquor will complete a "Responsible Serving of Alcohol" training course, approved by the Director of Liquor Licensing within 2 months of this condition being imposed or of commencing employment.

• Crowd Controllers, licensed under the Private Security Act, are to be employed at a ratio of 3 crowd controllers for the first 100 patrons and 1 crowd controller for each additional 100 patrons or part thereof, or on a ratio as required by Worksafe Victoria, whichever is the greater. Two crowd controllers are to be present outside the premises to monitor patrons arriving and departing the premises and one crowd controller is to be present in the Foyer at all times. Crowd controllers are to be present from 30 minutes before the start of the entertainment being provided, until 30 minutes after closure.

• Between the hours of 1:00 am and 3:00 am the licensee must ensure that its patrons do not use the foyer for any purpose other than access to the bathroom.

• Prior to the commencement of trading past 1:00 am, the applicant must submit to and have approved by the Director of Liquor Licensing, a Management Plan that sets out an appropriate operating procedure for the Tavern including amongst other matters :

-

security

-

staffing

-

control of patrons and prevention of nuisance

-

external activities

-

deliveries

-

waste disposal

-

staff training including the responsible service of alcohol training

-

patron management and use of the foyer

-

cleaning of the foyer area

-

banning smoking of patrons, before and after 1 July 2007 at the premises and by the patrons of the licensee in the foyer of the building.

For Director of Liquor Licensing: Mr S Devlin, solicitor

For Port Phillip Council: Mr R O'Loghlen, Town Planner

For Sarah Bourke & Michael Bouteloup: Mr M Bouteloup

For Jacqui Keys, Neil Radcliffe, Mr T Ludeman, Town Planner

1 The White Bar has made three applications to this Tribunal to review a decision of the City of Port Phillip (Responsible Authority) and to review two decision of the Director of Liquor Licensing.

2 At the present time, the premises situate at 151-154/129 Fitzroy Street, St Kilda, Victoria ("the premises") are operated as a tavern pursuant to permits granted by the Responsible Authority and a liquor licence granted by the Director of Liquor Licensing, for the hours :

On any other day: 7:00 am and 1:00 am the following morning

3 The applicant now desires to operate the premises as a tavern/bar pursuant to a general liquor licence each day between 11:00 am and 3:00 am the following morning.

4 The Responsible Authority by a planning permit dated 4 May 2006 granted the applicant permission to operate the premises as it requested subject to inter alia a number of conditions.

A The requirement that the applicant install toilets within the tavern; and

B The requirement for a noise limiter of a specific nature (so the power becomes disconnected when the music is too loud) which is adjusted to keep the volume of the music down below certain adjusted levels.

5 The applicant also seeks review of the two decisions of the Director of Liquor Licensing :

A To refuse permission to extend the hours for the closing times pursuant to the existing licence on Sundays, Anzac Day and Good Friday from 11:00 pm to 1:00 am .

(The review of this decision is in VCAT Application B54/2006).

B The refusal by the Director of Liquor Licensing to extend the closing time on all days to 3:00 am.

(The review of this decision is in VCAT Application B73/2006).

6 All the applications are opposed by a number of objectors who have appeared at the hearing of this application who occupy the residences in the upper floors of the building known as "the George" that contains The White Bar. The applications were also opposed in relation to the planning permit by the Responsible Authority and in relation to the decision of the Director of Liquor Licensing by the Director.

7 The premises have been accurately described by Mr O'Loghlen, representing the Responsible Authority. He states :

The subject site is located near the south-east corner of Fitzroy Street and Grey Street, St Kilda. It is developed with a multi level heritage building which forms part of the George Hotel complex.

The building at 129 Fitzroy Street comprises a mix of uses, being :

•

Residential uses at levels 2 and above

•

Commercial uses at level 1

•

Taverns and commercial uses at podium and basement level.

The White Bar is located at podium level of 129 Fitzroy Street. Its entrance is located at the top of a flight of stairs from Fitzroy Street, approximately 25 metres from the intersection with Grey Street. A second set of doors open to the foyer of the building.

The stairs and foyer also provide access to residential apartments and commercial uses on levels above via a stairwell and lift within the common foyer.

The White Bar is located directly above the George Public Bar, contained within a partial basement area and accessed directly from Fitzroy Street.

To the left (east) as one enters the foyer, is a smaller bar known as the Cage Bar. This bar is open to the common foyer. To the rear of the foyer area located to the right of the lift, is the rear entrance to the George Lane Bar, with its main entrance from George Lane, off Grey Street.

The patrons of all three premises use the toilets located at the rear of the foyer behind the stairwell and lift, in the south-eastern corner of the building.

The premises is located within the St Kilda tourist and entertainment precinct which supports many similar types of venues.

The site is well serviced by public transport with the No 96 Light Rail and Nos 15 and 16 Trams and a bus stop opposite.

8 It should further be noted that The White Bar is currently licensed to permit a maximum of 154 patrons. 53 of those patrons in the bar area, 35 of those patrons in the retail area and 63 of those patrons in the function/bar area.

9 It was agreed by all parties, regardless of the outcome of this proceeding, that the wording of the licence in respect to capacity of patrons should be amended to "maximum capacity 154 patrons".

10 The White Bar currently plays recorded music operated by a disc jockey during its operating hours. We were told that at the present time The White Bar operates on Friday and Saturday till 1:00 am and on Sunday until 11:00 pm as well as every fourth Sunday afternoon as "The Push Club".

11 Floors 2 to 5 inclusive of the building in which The White Bar is situated, which was formerly known as The George Hotel, contains 42 residential apartments. The ground floor where The White Bar is situate also contains two other entertainment venues which, like The White Bar, substantially use the foyer so that their patrons are able to access the toilets on the ground floor of the building. It was suggested that one of those establishments, the George Lane Bar, has its own toilets, however those toilets are behind the rubbish bins and, in our view, would be rarely used by the patrons.

12 The George Lane Bar also plays loud recorded music, and while it has a liquor licence which allows it to operate until 3:00 am, its current planning permit only allows it to operate until 1:00 am each day. The George Lane Bar is restricted to 80 patrons.

13 The Cage Bar which has a capacity of 77 patrons also uses the foyer for its patrons to access the toilets on the ground floor. It operates on days other than Sundays, Good Friday and Anzac Day until 1:00 am each morning.

14 Adjacent to The White Bar is the Melbourne Wine Bar which has a capacity for 146 patrons and its licence allows it to operate until 3:00 am each morning except Sundays to Wednesdays, Good Friday and Anzac Day where it is allowed to operate until 1:00 am. The George Public Bar is below the ground floor of the building and that operates until 3:00 am each morning with amplified music.

15 It should be noted for completeness that the ground floor is also occupied by a number of commercial offices.

16 The objectors by and large complained that the noise from the music played at The White Bar was too loud and affected them and that the noise and behaviour of the patrons from The White Bar using the foyer caused problems with noise and amenity. There were also some complaints in relation to the residents entering the front doors of the foyer. There were very specific complaints in relation to the apartment owned by Ms Bourke and Mr Bouteloup being apartment 201/129 Fitzroy Street, and the apartment owned by Professor Smith being apartment 201/125 Fitzroy Street. Both apartments are on the second floor. In relation to Mr Bouteloup's apartment, the complaint was that the noise from patrons in the foyer was coming through the ceiling above the staircase into the bedroom occupied by Ms Bourke and Mr Bouteloup. It was also said that the smell of smoke permeates into their bedroom. It should be noted that the only barriers between the foyer and the Bourke/Bouteloup bedroom was the ceiling of the foyer and the floor boards of the bedroom both of which were in poor repair.

17 Professor Smith complained, that the west wall of The White Bar which is the supporting wall for the master bedroom in his apartment, caused music from The White Bar to vibrate up that wall. As a result, he has been forced to move his bedroom to another room in the apartment.

18 Without going into detail of the City of Port Phillip Planning Scheme, it is worth noting that policy framework identifies Fitzroy Street as a major activity centre. It is also a tourist area, where the Municipal Strategic Plan (clause 21.05/6) requires

To balance and cater for the needs of local residents, business and visitors to Port Phillip.

To maintain and enhance the vibrancy and excitement of Port Phillip which appeals to local, national and international visitors.

19 It should also be noted that there are many establishments in the form of bars/discos that play loud music until 3:00 am or even 5:00 am in the area around Fitzroy and Grey Streets, St Kilda. Further, this is a major area in Metropolitan Melbourne for tourists, night life, bars and discos.

20 Both the planning and liquor legislation provide that the amenity of the area should determine applications such as this.

21 Mr Finanzio, who appeared on behalf of the applicant, has correctly stated the position of the amenity considerations in relation to planning and liquor matters. He stated :

In this respect (amenity), the discretion to be exercised on amenity grounds in the liquor licensing context is almost identical to the planning discretion to be exercised, which would have it that the test is whether the grant of a planning permit will cause unreasonable impacts upon the amenity of the surrounding area, having regard to the nature of the amenity of that surrounding area : eg Shaffey Pty Ltd v Melbourne City Council [2004] VCAT 2473;

If there is any difference between the planning discretion on amenity and the liquor discretion it is that the planning discretion from its consideration of policy aspirations that might shape the future amenity of the area, whereas there appears to be no warrant to do so under the Liquor Control Reform Act.

22 Thus, it necessarily follows that if we were to find that having regard to the amenity of the area as referred to in the Liquor Control Reform Act 1998, it would be proper to grant the application in some form or another, then it would be proper to grant that application as well pursuant to planning principles.

23 The Liquor Control Reform Act 1998 sets out matters which can be taken into account in consideration of amenity. Section 4(a)(2), which is the objects section of the Act, reads as follows :

a) to contribute to minimising harm arising from the misuse and abuse of alcohol by -

(ii) ensuring as far as practicable that the supply of liquor contributes to, and does not detract from, the amenity of community life; ....

24 Section 3A of the Act defines what is "amenity". It reads as follows :

(1) For the purposes of this Act, the amenity of an area is the quality that the area has of being pleasant and agreeable.

(2) Factors that may be taken into account in determining whether the grant, variation or relocation of a licence would detract from or be detrimental to the amenity of an area include -

25 Section 38 allows an objection on the ground of amenity. Section 38(1) reads as follows :

(1) Any person may object to the grant, variation or relocation of a licence on the ground that the grant, variation or relocation would detract from or be detrimental to the amenity of the area in which the licensed premises or proposed licensed premises are situated.

It is worth noting at this point that the objections to this application by and large are under the grounds of noise, nuisance/vandalism, toilets, access to foyer, rubbish in foyer and smoking. These are amenity considerations.

26 Both Mr Finanzio and Mr Devlin, on behalf of the Director of Liquor Licensing, stated (with which we agree) :

A balancing exercise must be done in relation to the tensions that exist between the residential amenity as opposed to the commercial interests.

In particular, Mr Devlin highlighted three principles which he extracted from The Garden on Exhibition Pty Ltd v MCC [VCAT 7.12.06]. Those principles are :

(i) those who live in the CBD/Entertainment/Business areas will experience or should accept a different level of amenity than those who reside in conventional suburbs;

(ii) it is a matter of balancing the conflicting demands as between commercial/residential rights;

(iii) the decision maker should look to site specific evidence.

It is acknowledged that a reasonable balance must be struck between the interests of the licensee and the residents of the George apartments in relation to impacts of the proposed variation.

28 None of the objectors contradicted these statements and, in our view, they represent a correct statement of the exercise which we must perform.

29 It will be remembered that the Responsible Authority issued its permit on condition that the applicant installed internal toilets exclusively for the use of The White Bar patrons so that the patrons would not have to enter the foyer in order to use the toilets which are the common property in the building. During the hearing, Mr Finanzio presented a series of facsimile transmissions which indicated that the owner of the premises will not allow internal toilets to be built in the premises. While it was suggested, particularly by Mr O'Loghlen for the Responsible Authority, that there was minimal evidence as to the refusal to allow the building of such toilets, in our view, the practical answer is that if the landlord will not allow the toilets to be built internally on the premises, then there is little use in making the building of such toilets a condition to the permit. Although we note that Mr Finanzio stated that in the event that we thought the toilets were absolutely essential and that without the internal toilets the permit and the extended licence would not be granted, he then urged us to grant the permit with that condition in the hope that in some way or another his client would be able to persuade the landlord to change its mind.

30 Two acoustical experts were called to give evidence in relation to the sound emanating from The White Bar to other parts of the George building. They were Renzo Tonin on behalf of the applicant, and Matthew Bryce who prepared a report for the Responsible Authority but was called to give evidence by Mr Bouteloup. There was also a report by Carol Wilkinson from Noise Management Services tendered into evidence. That report was made at the request of the applicant on 29 August 2005.

31 Mr Tonin gave evidence that his firm, Renzo Tonin & Associates, had measured background noise in apartment 204/129 Fitzroy Street, being Ms Hill's apartment, and apartment 201/125 being the apartment of Professor Smith. In order to take measurements, the background noise was determined at a quiet time on a Saturday afternoon when no music was playing in the building. Initially, the measurements that were taken of the music noise emanating from The White Bar were found not to comply with the requirement SEPP-N2 limits. However, Mr Tonin stated that after a number of attendances at the premises, the noise levels were adjusted so as to comply with the SEPP-N2 requirement. He also gave evidence that instead of installing a noise monitor and limiter to the device which automatically disconnects power when the set noise level is exceeded, he recommended the installation of a device known as a Drawmer SP2120. This device ensures -

That sound levels do not exceed SEPP-N2 limits by virtue of its ability to control the volume of sound by electronic means so that it does not exceed a pre-set level.

32 Mr Tonin said that this device was preferable to the noise limiter which cut off power when the exceeded level was obtained. The reason he said the drawmer was preferable was that it actually controlled the noise rather than cutting it off. Further, he said the noise limiter could be easily overridden by the use of an extension cord which plugged the amplifier into a different power point.

33 Mr Tonin also said that the sound system which he has now set up was housed in a tamper proof enclosure with a lock. Further, he stated that the noise limiter is now coded to conform not only to SEPP-N2 being the State Environment Protection Policy (Control Of Music Noise From Public Premises) but it has also been calibrated to a level of minus 3dB of that which was required in order to ensure that the music would not exceed the SEPP-N2 limit. When calibrating for the SEPP-N2 requirement, he had set the background level noise to 3:00 am which he believed was the quietest time.

34 It should be noted that in coming to his opinion, Mr Tonin did not take any readings in Mr Bouteloup's apartment, that is apartment 201/129 Fitzroy Street. This was because Mr Bouteloup denied Mr Tonin access to the apartment. In denying that access, we infer that if the readings had been taken in Mr Bouteloup's apartment, those readings would not have helped Mr Bouteloup's case. We realise in making this inference the situation here is different to that where a party fails to call a witness, however the effect of Mr Bouteloup's decision to deny access should have similar consequences.

35 In commenting on whether the doors leading directly from The White Bar to the foyer of the George building, should be shut or air locked, Mr Tonin was of the view that this would not make a great deal of difference to the noise. He stated :

The position, and hence operation, of The White Bar lobby doors made no audible or measurable difference to noise levels within the front door of Apartment 204/129. The position, and hence operation, of The White Bar lobby doors made no audible difference to the noise levels within the front doors of Apartment 201/125. The difference in noise levels at 250Hz as measured within Apartment 201/125 is not consistent with the aural assessment and as such is likely to be attributable to an extraneous event (doors 'open' and 'shut' situations were not measured concurrently, and therefore are subject to variations in ambient noise).

It is expected that noise levels experienced within Apartments 201/125 and 204/129 would not be reduced by preventing the usage of, or providing an acoustically treated alternative to, The White Bar lobby doors. In both instances the relocation of The White Bar bathroom facilities to within The White Bar itself would not have a measurable effect on noise levels within Apartment 201/125, Apartment 204/129 or the lobby.

36 In February of this year, Mr Bryce performed measurements in apartment 201/129 and apartment 204/129 Fitzroy Street. It will be remembered that apartment 201/209 is Mr Bouteloup's apartment who had denied access to Mr Tonin. In taking these measurements, Mr Bryce concluded :

Residual music from The White Bar was readily audible and measurable in the frequency bands below 250 Hertz in both apartments. .... The most likely explanation for this inconsistency is that The White Bar music noise levels were higher during the WMG survey (Mr Bryce's survey) than during the RTA survey (Renzo Tonin's survey) ....

During the survey in Apartment 201/129 Fitzroy Street, music noise became louder as the doors of the internal stairwell area were opened.

37 After taking noise readings in 204/129 Fitzroy Street, Mr Bryce concluded :

The above table shows that music noise levels in Apartment 204/129 Fitzroy Street marginally exceeded the 2:00am SEPP N-2 music noise levels in the 63 Hz, 125 Hz and 250 Hz frequency bands by 1dB. However, should the same music noise levels be experienced in the apartment late in the night, when ambient background noise (and the corresponding SEPPNN-2 limits) will be lower, the exceedences would be substantial.

38 In relation to apartment 201/129 Fitzroy Street, Mr Bryce concluded :

The above table shows that music noise levels in Apartment 201/129 Fitzroy Street complied with the 2:00 am SEPP N-2 music noise limit in the 63 Hz frequency band and exceeded the limit in the 125 Hz by 5 dB. However, should the same music noise levels be experienced in the apartment later in the night, when ambient background noise (and the corresponding SEPPNN-2 limits) will be lower, the exceedences would also be substantial.

39 It was apparent from the cross-examination of Mr Bryce that he was unable to specifically identify the source of the music noise which he was measuring. It was unclear from his evidence whether the music came from The White Bar or from the George Lane Bar. On the other hand, it was clear from Mr Tonin's evidence that the music he was measuring was specifically from The White Bar. Further, it is clear that Mr Tonin measured the background noise specifically at a quiet time where, on the other hand, Mr Bryce measured the background noise by deriving it from other factors. That is, Mr Bryce said that he separated the background noise with an anolog meter.

40 In our view, where there is a conflict between the evidence of Mr Bryce and Mr Tonin, we prefer the evidence of Mr Tonin, because his evidence was derived from measurements which were taken specifically in relation to background noise and he was able to state specifically that the music he was measuring was coming from The White Bar.

41 Thus, under these circumstances, we have come to the conclusion that where there is a conflict between the evidence of Mr Bryce and the evidence of Mr Tonin in relation to the measurement of SEPP N-2, we accept Mr Tonin's evidence.

42 Mr Tonin's evidence in relation to sleep disturbance and noise emanating from the foyer was that it could best be dealt with by means of a partition on the first floor landing rather than a construction of an airlock around the door leading from The White Bar to the foyer. In his report of 4 October 2006 at paragraphs 38 to 46, Mr Tonin stated as follows :

38. The upper table of Page 1 shows a SEPP N-2 analysis. The LOCT90 values used are those measured by Noise Management Services in apartment 204. It is assumed that this background noise level also applies to apartments 201 and 202. The final column on Page 1 shows that the calculated exceedence of the LOCT10 noise level over the LOCT90 within the apartments in each octave band is in the range 5-10dB and is above the SEPP N-2 limit of 8dB in the 63Hz band.

39. Whilst undoubtedly there would be contribution from patron noise which is not subject to the SEPP N-2 limits, the marginal exceedence noted in one band only should not be interpreted as evidence that music noise currently transmitted via the stairs is marginally compliant. The reason is that any music noise transmitted via the stairs in combination with music noise transmitted via the structure exceeds the SEPP N-2 limits.

40. However, if music noise levels from The White Bar are reduced by 4-8dB as proposed above, then music noise levels transmitted via the stairs attributable to The White Bar are likely to comply with the SEPP-N-2 limits whether the rear doors are open or closed.

41. I have then assessed the potential for sleep disturbance arising from patron noise in the foyer and the results are shown in the lower table of Page 1. In this case, the noise level is assessed using the LAmax scale. The last column shows that patron noise levels are 26dB(A) above background and therefore have the potential to disturb sleep if these events occur often enough.

42. As stated earlier in this statement, even if noise from White Bar patrons is eliminated in the foyer, noise from the Cage Bar and its patrons and nose from the George Lane Bar and its patrons would nevertheless persist and according to the calculations on page 1 of RTA4 would still constitute a problem.

43. In my opinion, the best practical means of resolving this conflict would be to construct an acoustic partition on the Level 1 landing or to double glaze the existing Level 1 doors and windows leading to the stair well.

44. I have calculated the effect of installing an acoustic partition on the Level 1 landing and the results are shown on Page 2 of RTA4. On the assumption that the partition is constructed using 10.38mm laminated glass, the results are shown in the last column. This column shows the predicted noise levels in comparison with the background noise level. A negative value in this column means the predicted noise level is below the background noise level.

45. As noise levels are predicted to be below the background noise level in the apartments, they will be insignificant and not only comply with the SEPP-N-2 limits but will also not contribute to noise transmitted via the building structure as previously described.

46. In addition, as shown in the lower table of Page 2 of RTA4, any noise from patrons' voices will be 1 dB(A) below the background and will be rendered essentially inaudible when music is playing (transmitted via the building structure).

43 It is noted in relation to Mr Tonin's statement that he does not take into account the fact that in Mr Bouteloup's apartment 201/129, the noise rises through the ceiling over the staircase and would not be assisted by the partitions to which he refers. It is further noted that certainly at the present time, we believe, a large amount of noise would emanate into Mr Bouteloup's apartment through the Cage Bar, which is basically an open bar close to the main staircase of the building.

44 Against this view is the view given in oral evidence by Mr Bryce that an airlock to the doors leading from The White Bar to the lobby would indeed improve the situation. More specifically, this was discussed in the report by Environmental Noise Measurements at p 9 where it is stated :

The rear door access to the toilets is not conducive to good noise management - every time the door opens a clear path is created for noise to escape into the foyer and stairwell area. All speakers should be oriented away from this opening. Consideration should be given to installing an air lock (double door system) so that a door is always shut even when patrons enter or leave via this door. It would be preferable from an acoustic point of view to fully environmentally seal these doors and install toilets inside the venue itself.

45 After hearing the evidence, Mr Finanzio in his final submission did not oppose the idea of his client installing an airlock as a condition of the permit and licence being extended but did suggest an alternative method of using a door into the back passage way of the George building which would ultimately lead through another door into the foyer of the George building. However, in our view, this method was not commented on or discussed by any of the acoustics experts that gave evidence or whose reports were tendered into evidence. Thus we believe the safer and better method would be that suggested in the Environmental Noise Measurements report of installing an airlock double door system from The White Bar to the foyer.

46 We also believe that it would be desirable for the partition as proposed by Mr Tonin to be installed, however, we have some concern that the Body Corporate of the George may attempt to frustrate the applicant's operation by refusing permission for such a partition. While we are aware the partition would be of no assistance to stop the sound permeating through the floor into Mr Bouteloup's bedroom, we nonetheless believe that such partition would be of value to other residents within the building. On this basis, we would intend to make a condition precedent to the operation of this condition that the Body Corporate agree to the partitions to be installed within 60 days of the publication of this decision and in the event that no agreement by the Body Corporate is communicated to the applicant in that time, the condition would be null and void.

47 All parties agreed that the source of the difficulty between The White Bar and the residents was :

a

Patron activity in the foyer; and

b

Music noise.

48 As has been stated already (see paragraphs 26 and 27 hereof), in seeking to resolve the conflict of the issues between the residents and a commercial operator, such as The White Bar, a balancing exercise must be performed. Mr Finanzio has correctly stated this test when he said that :

One must seek to identify what a resident living in an entertainment precinct might legitimately or reasonably expect having regard to issues such as noise and the presence of other people in the area or indeed in their building .... Similarly, in the process of balancing, one cannot ignore the legitimate or reasonable aspirations of commercial operators that seek to establish and grow their business in these entertainment precincts.

49 Mr Devlin, who appeared for the Director of Liquor Licensing, referred us to The Garden On Exhibition Pty Ltd decision of this Tribunal to which we have already referred (see paragraph 26 hereof) - in particular the following three paragraphs of that decision :

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.

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.

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.

50 Many of the residents gave evidence, and Mr Devlin submitted, that there had been a diminution in amenity so far as the residents were concerned in the past decade. It was said that this diminution in amenity arose from the fact that The White Bar in particular had changed from a gallery to a virtual disco. Mr Devlin pointed to the fact that the George building contained 42 residential apartments which he said made the site not conducive to a licence after 1:00 am.

51 On the other hand, Mr Finanzio submitted :

In this case the starting point must be that these residents live in a building :

(a) on the corner of Fitzroy Street and Grey Street, St Kilda;

(b) that has long contained commercial entertainment premises at the ground floor:

(ii) George Lane Bar/Martini Room (formerly 3am - with a liquor licence which still allows it to trade until 3 am);

(iv)

Melbourne Wine Bar (presently 3am); and

(c) where the common property ground floor level has always been shared between residents and commercial operators.

(d) where the main access to the residential levels above is through a foyer legitimately and lawfully shared by the commercial operators that exit on the ground floor ...

52 It should be noted that insofar as the George Lane Bar is concerned, its planning permit now restricts its operation to 1:00 am.

53 We agree with the factors referred to by Mr Finanzio and also note that the amenity of this area has changed very considerably over the last decade. However, in our view, the area must be examined by us as it is at the time of the hearing not what it was in the past.

54 A lot of the difficulty which the residents suffer as a result of White Bar patrons entering the foyer is for the purposes of using the toilet. Mr O'Loghlen from the Responsible Authority made it clear that his client would not have issued the permit had the condition for the internalisation of the toilets not being present. He said that as this is no longer possible, his client opposes the issue of the permit.

55 There were submissions by Mr O'Loghlen and Mr Devlin that the applicant had not gone far enough to show that the landlord would not permit the toilets to be built internally in The White Bar premises. It was said that the only evidence relied upon by the applicant was an email from the landlord stating its opposition. Mr Devlin suggested that the landlord could have been called to give evidence as to its position. In our view, calling the landlord in this proceeding would not have taken the matter further. What we must decide is whether in balancing the amenity issue between the residents on the one hand and the applicant on the other, it is appropriate to grant the extensions that are sought. In doing this exercise, we must take the facts as presented to us. The fact is that apart from an extreme fallback position which Mr Finanzio adopted, it would be useless for us on the evidence to order as a condition of the permit or licence that internal toilets be built, when it is impossible to comply with such condition. Mr Finanzio correctly submitted that the patrons using the foyer up to 1:00 am are not only those from The White Bar but also the Cage Bar and the George Lane Bar. He thus said with the patrons from the George Lane Bar and Cage Bar not being present between 1:00 am and 3:00 am that the level of use in the foyer would be reduced considerably. In our view, this is undeniably so. Further, it is clear that after 1:00 am it will be possible for the applicant's security staff to be able to monitor the patrons using the foyer because as it will only be The White Bar patrons using the foyer at that time. As Mr Finanzio correctly stated, prior to 1:00 am, it would be difficult for the applicant's security staff to tell patrons from the George White Bar or the Cage Bar to "move on".

56 Mr Finanzio also pointed to the fact that there has been a minimum of formal complaints in relation to the conduct of The White Bar in recent times. Mr Finanzio stated that if the position was as bad as a number of the residents wished to make out, in particular Ms Hill and Mr Sunshine, he would have expected there to have been more formal complaints. He suggested that the people that have been referred to and gave evidence before us rather than making any formal complaint would use opportunities, such as these applications, to lodge their dissatisfaction. He also referred to the fact that there has been no police objection to the grant of a licence in this matter.

57 We agree with the submissions made by Mr Finanzio in this regard and as a consequence, we take the view that the problems associated with the conduct of the patrons and the noise in the foyer are somewhat exaggerated. This finding is demonstrated by the evidence of Mr Bouteloup. Mr Bouteloup's evidence as to the conduct of patrons was in part contained in two small videos which he took on his mobile telephone. While these videos were very difficult to discern because of their blurriness, it was clear that at times there were a few people in the foyer that were either moving slowly or not moving at all. Further, Mr Bouteloup said that one of the persons exposed himself while he was getting in the lift. We found it surprising that if this exposure had taken place Mr Bouteloup had not reported it to the police. We further found it surprising that Mr Bouteloup, who is an architect, seemed to be unaware that he could report such a matter to the police. Thus we conclude that, to some extent, the residents' complaints in relation to the foyer are an exaggeration.

58 Mr Bouteloup suggested that a change in the hours of The White Bar to 3:00 am closing would result in further use of the foyer because the patrons would be of a different type (probably having consumed more alcohol) and need to use the toilet more often, it is likely that The White Bar would operate to a greater capacity and thus there would be more people coming from that establishment into the foyer. Finally, he suggested that patron noise in the foyer after 1:00 am would become a real issue. We, by and large, agree with these submissions by Mr Bouteloup. However, we believe that in making these submissions, he has taken insufficient account of the fact that neither the Cage Bar nor the George Lane Bar would be operating after 1:00 am. This is particularly important as the patrons of the Cage Bar have no barrier between the noise emanating from them in the Cage Bar itself and the foyer and consequent stairwell. Further, as there would be no patrons using the foyer after 1:00 am from either the Cage Bar or the George Lane Bar, even if The White Bar was full of patrons at that time (154) that would still not increase the numbers. Also, it is noted that the crowd controllers would have ability over The White Bar patrons after 1:00 am and thus a condition will be inserted that patrons of The White Bar after 1:00 am must not be allowed to use the foyer for any purpose other than for access to the bathroom. We believe this condition will, to a large extent, protect the problem which concerned a number of the residents.

59 Thus to sum up at this point, although we are of the view that there will be some detriment from the use of the foyer by The White Bar's patrons, between 1:00 am and 3:00 am, on balancing the interests of the two groups in this matter, we are of the view that that detriment is insufficient to inhibit The White Bar in its commercial activity and that by the imposition of conditions which we propose a proper balance will operate.

60 The applicant has not argued that the noise emanating from its premises should not be in compliance with SEPP N-2.

61 In fact, we were told that it has spent some $20,000 in approximately the last six months to ensure such compliance with installation of equipment such as the Drawmer to which we have already referred (see paragraphs 31 and 32 hereof). Even if the music noise at present is in excess of SEPP N-2 (which we doubt), the matter will be easily resolved, for it is our intention to make it a condition of the permit that the noise be independently assessed by an expert approved by the Responsible Authority.

62 The question is whether SEPP N-2 is too high in all the circumstances of these particular applications. Professor Smith and Mr Bouteloup submitted that the maximum output of music noise should be SEPP-N2 minus 5dB. The Responsible Authority submitted that the Drawmer or noise limiter system should be set at SEPP-N2 minus 3dB to ensure that the noise limit did not increase above SEPP N-2 at the receptor apartments.

63 Mr Tonin gave evidence that he has set the Drawmer equipment to what he believes would be SEPP-N2 minus 3dB so as to give some leeway in case of a problem.

64 We believe that if the music noise is limited to SEPP N-2 -3dB, it should not make any discernible difference to the applicant's commercial activity and may indeed present some comfort for the residents. It will be a matter for the applicant and its acoustic advisers whether the Drawmer machine is set at SEPP N-2 -3 or at some greater minus figure (4, 5 or 6) so as to ensure that the condition will be abided by.

65 It was put on behalf of several of the objectors that the applicant cannot be trusted to abide by such a condition on a permit or licence and therefore the extension should not be granted. It was said on their behalf that there have been several occasions in the past where conditions had been breached and they would be likely to do the same again. Mr Finanzio conceded that : "there can be no question that there have been times in the past where disturbance has been caused as a result of the action or inaction of management". However, in our view, we do not believe that the track record of the applicant is sufficiently bad to warrant us refusing the applications.

66 Like the evidence given in relation to the foyer noise, we believe that on some occasions the residents were inclined to exaggerate the music noise entering their apartments. For example, Ms Hill whose apartment is two floors above The White Bar, gave evidence that even after the Drawmer equipment had been installed, the noise level was "worse than ever". We find this difficult to believe. There was an occasion when a Mr Coates, from the Responsible Authority, was in her apartment with Mr Fallachio (proprietor of The White Bar) when Mr Coates commented that he could not hear the noise. Ms Hill then commented if he listened carefully he would hear it. It seems difficult under these circumstances to think that the noise would be worse than ever considering that it was limited by the Drawmer device. The only conclusion we can come to is that there was some exaggeration by Ms Hill. We note that there was an incident on 17 December 2006 where after the noise limiting device had been installed, the music was extremely loud. However, this was explained by both the applicant and Mr Tonin on the basis that the applicant's speaker system/amplifier had broken down and it was necessary for portable music system to be installed. It was this further music system that seemed to cause the problem. However, we have no reason to think that this will be a continuing problem.

67 As far as Professor Smith's apartment is concerned (201/125), the applicant accepted that it was in a special circumstance, that is, that the music vibrated up the western wall of The White Bar to Professor Smith's apartment. As a result, the applicant is willing to construct a stud wall abutting the western wall of The White Bar which was to be made of materials with noise attenuation properties. We believe that such a wall would satisfy a number of Professor Smith's concerns.

68 Mr Tonin gave evidence that there was a relatively new device on the market called "CESVA" which recorded the decibels of music in a permanent or semi-permanent form, which could then be used to calculate whether the applicant had exceeded any condition of the permit as regards music sound. Mr Finanzio said that his client intended to install such a device to protect itself. We believe such a device is a good idea, however, the condition relating to that device should not be specifically for a CESVA device but should be in relation to a device that records permanently or semi-permanently the loudness of the music in The White Bar itself. Such a device should be a CESVA or similar thereto. A device such as this would also record any breach of the requirement such as happened on 17 December 2006.

69 Mr Finanzio also addressed us on a number of noise attenuation programmes that could be undertaken by the Body Corporate as a whole or the residents themselves. For example, he said that the space between the foyer ceiling over the staircase and the floor of Mr Bouteloup's bedroom could have soundproofing material installed. He said this is space that belongs to the Body Corporate and they should perform that function. While we believe that such measures would be a good idea, we do not believe it is appropriate for us to be dictating to the Body Corporate or individual residents as to what matters they may do to ameliorate any discomfort which they may be suffering as the result of the operations of the applicant.

70 Thus, in balancing the interests of the residents' amenity with the commercial interests of the applicant as regard to music noise, we have come to the view that with appropriate conditions, the residents' amenity would not suffer greatly by permitting the applicant to continue its operations with music until 3:00am each day and again the conditions which we intend to impose will allow a proper balance to operate.

71 It was conceded by the parties that if the Tribunal were to grant the application in B73/2006, that would largely be subsumed in B54/2006 and no order should be made in B54/2006. However, Mr Devlin suggested that in any event trading should not be able to be commenced before 12:00 noon on Good Friday and Anzac Day. He stated such a special condition on these days would "not override the requirements that on all liquor licences in Victoria commencement of trading on Good Friday and Anzac Day is not before 12:00 noon". There appears to be no legislative requirement for this condition, and bearing in mind the hours that have been extended to trading in this State over the years, we see it of little benefit to restrict the hours on Anzac Day and Good Friday. Insofar as Anzac Day is concerned, while that is clearly a very important commemorative day for the nation, we have difficulty in understanding how the reduction in opening hours from 11:00 am to 12:00 noon on that day would, in any way reduce the importance of that day to the nation or in any way be take away from the true meaning of that day. Insofar as Good Friday is concerned, as Mr Finanzio said, there are a lot of people living in Australia and in Melbourne, who are not Christian, who do not celebrate Good Friday. We see no reason why those people should not have access to alcohol in the normal terms on that day.

72 There was a dispute between the applicant and the Director of Liquor Licensing as to the number of crowd controllers that should be supplied by the applicant while music is being played. The applicant sought a condition as follows :

When live or recorded amplified music is played, the licensee must ensure registered crowd controllers licensed under the Private Agents Act are employed at a ratio of two (2) crowd controllers for the first 100 patrons and one (1) crowd controller for each additional 100 patrons or part thereof to be positioned on the land as follows :

(a) one crowd controller to be outside the venue at or near the entrance to monitor patrons arriving and departing the premises;

(b) one crowd controller is to be present outside the premises to monitor patrons arriving and departing the premises;

(c) crowd controllers are to be present from 30 minutes after closure and 30 minutes prior to the amplifying music commencing.

73 On the other hand, Mr Devlin and Mr O'Loghlen submitted that the condition should read as follows :

Crowd Controllers, licensed under the Private Security Act, are to be employed at a ratio of 3 crowd controllers for the first 100 patrons and one crowd controller for each additional 100 patrons or part thereof, or a ratio as required by Work Safe Victoria, whichever is the greater. Two crowd controllers are to be present outside the premises to monitor patrons arriving and departing the premises and one crowd controller is to be present in the Foyer at all times. Crowd Controllers are to be presented from 30 minutes before the start of the entertainment being provided, until 30 minutes after closure.

74 Mr Finanzio submitted that the crowd controllers requested by the Director and the Responsible Authority was too much and that in a venue such as this which has a nil record of violence breaking out therein, it was unnecessary. Mr Finanzio said that one crowd controller at the front door was sufficient.

75 Further, Mr Finanzio drew to our attention the Worksafe Guidelines which required the ratio of crowd controllers referred to by Mr Devlin in "high risk conditions". He said that these premises were not at a high risk of a fight breaking out.

76 On the other hand, Mr Devlin correctly pointed out that the Worksafe Guidelines, were not linked to the usual high risk conditions in a licence and at most were no more than guidelines.

77 We are of the opinion that it is desirable to have the crowd controllers in the numbers referred to by Mr Devlin on behalf of the Director of Liquor Licensing and Mr O'Loghlen. While the premises do in fact have a good record in relation to preventing violence, they have never in fact been open until 3:00 am. It is our view, that the later the premises are open, the more likely it is that there will be trouble. Further, we believe that a very special situation exists here because of the large number of residents (42 apartments) in the George building. It is important that the residents be able to enter their foyer and wait for the lift, without being hindered in any way. Thus it is important that not only the crowds be controlled in the queues outside the building, which may take two crowd controllers, but there be a permanent presence of a crowd controller in the foyer and in the premises itself. Thus, given these circumstances, we believe the condition proposed by Mr Devlin is a proper condition and that is the condition we will order.

78 Mr O'Loghlen for the Responsible Authority submitted that there should not only be a condition for a noise limiter in the form of a Drawmer which we have described above but there should be amplification equipment which disconnects for 15 seconds should the music become too loud. We believe that to have both devices working together is unnecessary and too burdensome on the applicant. Mr Tonin gave his reasons for preferring the Drawmer noise limiting system to that of a system that disconnects the power for some 15 seconds. He said that the Drawmer system is far less likely to be overridden and far less likely to cause frustration with both the patrons and the staff. We agree with the evidence of Mr Tonin in this respect and believe that to have two such noise limiting devices operating together is unnecessary and would not achieve any better result.

79 Mr O'Loghlen submitted that the applicant should provide "acoustic attenuation measures to the ceiling of the stairwell/floor of apartment 201/129 Fitzroy Street. This ceiling is within the common property of the Body Corporate. While we believe that such a measure may to some extent assist the problem of Mr Bouteloup, we are of the view that it should not be the applicant's responsibility to provide such a measure. If such a measure was to be provided, in our view, it would be more appropriate to either be provided by the Body Corporate or Mr Bouteloup himself if they so desire.

80 While recognizing in the George building in Fitzroy Street, there is an uneasy tension between the reasonable amenity for the residents in the 42 apartments, and the commercial use on the lower floors, and in particular The White Bar, to deny the applicant's application in this proceeding, would be to deny it the reasonable pursuit of normal commercial activity within the Fitzroy/Grey Street area. There are many clubs and discos open to 3:00 am and beyond in this area, and we recognise that it is an area that is very important to the entertainment and tourist industry of greater metropolitan Melbourne. We believe that by imposing the strict conditions which we intend to in relation to our orders herein, the residents will be protected and the inconveniences to which they complain will be limited and should not be a great deal worse than what they are suffering at the moment. In fact, a number of the conditions that we are imposing should improve their situation to what it has been in the past. For example, the installation of noise limiters which will reduce the sound to SEPP N-2 minus 3dB. Further, having a permanent security guard in the foyer and more security staff in the premises when they are playing music should give the residents a security which they have not known before. Also other noise attenuation devices, such as the airlock to the foyer, and the partition on the first floor will also be very helpful.

1. The use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

2. No more than 154 patrons shall be on the premises at any one time.

3. Prior to the commencement of the use after 1:00 am the Permit Operator must install to the satisfaction of the Responsible Authority an air lock system (double door system) on the entrance between the premises and the foyer so that a door is always shut when the patrons enter and leave the premises via that entrance, and a stud wall abutting the western wall of The White Bar constructed of materials with noise attenuating properties.

3. Prior to commencement of the use after 1:00 am, noise attenuation methods to the building must be implemented as detailed in the report of Renzo Tonin & Associates dated 4 October 2006 and must include :

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Wall mounting of sound system speakers with an isolation mount.

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Adjustment of the number and location of sound system speakers to limit noise.

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Subject to the consent of the Body Corporate of the George, the installation of an acoustic partition ("the partition") on the Level 1 landing of the stair leading from the common foyer or double-glazing of the existing Level 1 doors and windows leading to the stair well. If the Body Corporate does not give consent to the installation of the partition within 60 days of this order, this part of this condition shall be null and void.

•

A music noise recording device capable of making a permanent or semi-permanent recording, such device to be similar to the CESVA or the CESVA to the satisfaction of the Responsible Authority.

4. Prior to commencement of the use after 1:00 am, the Permit Operator must install and maintain a Noise Limiter ("the Device"), set at a level by a qualified acoustic engineer (and which allows for a 3dB buffer below the SEPP N-2 compliance level) to ensure the escape of amplified music does not exceed the requirements of SEPP N-2 minus 3dB.

5. Within 14 days of the installation of the noise limiter and the use operating until 3:00 am a report prepared by a suitably qualified Acoustic Consultant must be submitted to the Responsible Authority and must confirm that a Noise Monitor and Limiter ("the Device") is operating and has each and every of the following characteristics which are also operating :

i. the Device limits internal noise levels so as to ensure compliance with the music noise limits according to State Environment Protection Policy (Control of Music Noise from Public Premises) No N-2 (SEPP N-2) minus 3dB;

ii. the Device is a limiter suitable for interfacing with a Permanently Installed Sound System which will include any amplification equipment and loudspeakers;

iii. 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.

iv. the Device controls are in a locked metal case that is not accessible by personnel other than a qualified acoustic engineer or technician and notified to the Responsible Authority.

v. the Device is installed to control all amplification equipment and associated loudspeakers;

vi. the Device must prevent a relevant noise level referred to in these conditions being exceeded.

vii. prior to commencing trading after 1:00 am a report is to be prepared by an acoustic consultant approved by the Responsible Authority which report demonstrates compliance with the State Environment Protection Police (Control of Music Noise from Public Premises) No N-2 (SEPP N-2 minus 3dB) noise limits.

6. Amplified music is not permitted to be played other than through the Permanently Installed Sound System and when the Device is installed and operating to ensure compliance with State Environment Protection Policy (Control of Music Noise from Public Premises) No N-2 (SEPP N-2 minus 3dB).

7. Prior to the commencement of the use after 1:00 am and when live entertainment and/or recorded amplified music is being played, the Licensee must ensure that registered crowd controllers licensed under the Private Agents Act are employed at a ratio of three (3) crowd controllers for the first 100 patrons and one (1) crowd controller for each additional 100 patrons or part thereof. One crowd controller is to be present outside the premises to monitor patrons arriving and departing the premises. Another is to be present adjacent to the doors providing access to the foyer at all times to ensure patrons do not consume alcohol, smoke or dwell in the foyer area. Crowd controllers are to be present from 30 minutes before the start of the entertainment being provided and 30 minutes after closure.

8. The Management shall not cause or permit to be caused undue detriment to the residential amenity of the area as a result of the permitted use. Noise levels must not exceed the permissible noise levels stipulated in State and Environment Protection Policy N-1 (Control of Noise from Industrial Commercial and trade Premises within the Melbourne Metropolitan Area) and State Environment Protection Policy N-2 (Control of Music Noise from Public Premises) minus 3dB.

9. No live music shall be played at the premises save for live music of an acoustic or semi-acoustic nature.

10. Except with the written consent of the Responsible Authority the use shall only operate between 11:00 am to 3:00 am 7 days a week.

11. Prior to the commencement of the use after 1:00 am the applicant must submit for approval by the Responsible Authority a Management Plan that sets out an appropriate operating procedure for the Tavern/Bar including amongst other matters :

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security

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staffing

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control of patrons and prevention of nuisance to neighbours

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external activities

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deliveries

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waste disposal

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staff training including the responsible service of alcohol training

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patron management and use of the foyer

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cleaning of the foyer area

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smoking of patrons, before and after 1 July 2007.

12. The amenity of the area must not be detrimentally affected by the use or development through the :

a) transport of materials, goods or commodities to or from the land

c) emission of noise, artificial light, vibration, smell, fumes, smoke, steam, soot ash, dust, waste water, waste products, grit or oil; presence of vermin or in any other way.

13. The management shall use all reasonable and practical methods to ensure that patrons leave the premises in an orderly and proper manner at all times the use is operating and immediately after the trading hours allowed by this permit. The management shall post clearly visible signage advising patrons to leave in a quiet and orderly fashion, making them aware that residents live nearby and are to have their amenity respected. The management shall use its best endeavours to ensure that any intoxicated patrons leave the premises quietly and in an orderly way and do not cause any nuisance to the amenity of the area by way of noise and/or unreasonable behaviour.

14. This permit will expire if the use is not commenced within 12 months of the date of this permit.