P L A N N I N G C O M M I T T E E R E P O R T Agenda Item 5.1 5 August 2008APPLICATION FOR A PLANNING PERMIT : TP-2008-221 209-215 BOURKE STREET, MELBOURNE

Division Sustainability and Regulatory Services

Presenter Martin Williams, Acting Executive Officer Planning

Purpose

1. To advise the Council of an application for a planning permit for the part demolition, construction of buildings and works comprising shopfront alterations and erection of a first floor balcony, and use of premises as a karaoke bar.

2. The report is prepared at the request of Cr Clarke.

Summary

Application Number: TP-2008-221

Proposal: Part demolition, construction of buildings and works comprising shopfront alterations and erection of a first floor balcony, and use of the premises as a tavern (karaoke bar) between 11am and 4am the following day, seven days a week.

Applicant: Music Entertainment Pty Ltd, Mrs Qing Wang

Zoning: Capital City Zone 2 (Retail Core)

Overlay: Design and Development (DDO1-A1; DDO2-A1; DDO3; DDO4)

Existing Use: Retail (currently vacant)

Number of Objections: 9

Recommendation from Management

3. That the Planning Committee support the Notice of Decision to Grant a Permit subject to conditions in Attachment 3 issued on 14 July 2008.

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Proposal

4. The proposal involves minor demolition at ground floor; the removal of all internal walls on the first and second floors; the construction of a balcony at first floor above the existing canopy in Bourke Street; and the creation of a ground floor entrance at no. 215 Bourke Street. The internal layout shows a lounge, bar, toilets and 4 karaoke rooms at first floor; and 10 karaoke rooms and toilets at second floor. The first floor façade of no. 209 Bourke Street has been modified by the removal of a window with a decorative semi-circular top. The opening is proposed to be re-instated as a door leading to the balcony, but only as a simple rectangular opening. The ground floor retail space at 209-213 Bourke Street is not part of the application. The karaoke bar floor area of 478 square metres is proposed to accommodate a maximum of 150 patrons.

5. The hours of operation initially proposed were from 11am until 4am, 7 days per week. This was emphasised in the giving of notice and was discussed with the applicant following receipt of objections. The applicant has advised that the patrons of the proposed karaoke bar will consist of groups which book rooms, rather than individuals. The applicant does not consider that his patrons pose the same threat to amenity as do the patrons of typical late-night taverns. Although some minor physical changes to the building were made to address objections, the proposed hours of operation have remained 11am to 4am

6. It is noted that the design does not provide for access for the disabled to the first and second floors. This is a matter the relevant building surveyor must consider before issuing a building permit.

Site and Surrounds

7. The premises are the upper two levels of a group of four three-level shops, plus the ground floor of the westernmost shop, no. 215 Bourke Street, which is proposed to be used as the entrance. This shop abuts Russell Place. Part of the ground and first floors has until recently been occupied by the Surf Dive ‘n Ski retail outlet.

8. The buildings were constructed in the 1870s and were owned for many years by the Council. They were sold approximately 12 months ago.

9. The properties along Bourke Street contain retail, office and educational uses. The nearest residential developments are in Little Collins Street, approximately 60 metres to the south of the subject land.

10. Other licensed premises in the vicinity are located at 190 Little Collins Street (the Gin Palace tavern); 6 Russell Place (Sarti restaurant); 197 Bourke Street (Carlton Hotel); and 231 Bourke Street (the Red Violin tavern). The hours of operation of these premises are:

10.1. Gin Palace: 7am – 3am on any day except Sunday, Good Friday and Anzac Day;

10.2. Sarti: 7am – 1am on any day except Sunday, Good Friday and Anzac Day;

10.3. Carlton Hotel: 7am – 3am on any day except Sunday, Good Friday and Anzac Day; (the hours for the balcony to Bourke Street are until 1am only); and

10.4. Red Violin: Sunday to Wednesday 11am – 4am; Thursday 11am – 5am, Friday and Saturday 11am – 7am.

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Giving of Notice

11. The proposal was advertised to properties extending to Little Collins Street and by a sign on site. Nine submissions were received. Six are objections from residents in Little Collins Street; one is an objection from residents in Flinders Lane; one submission is from KFC in Bourke Street, which did not wish to be identified as an objector but wished the Council to address practical aspects of the proposal including garbage collection; and one submission is from Citipower, advising that the proposed use should not affect the operation of the electrical substation in Russell Place.

12. The owner of the open lot car park to the immediate south was given notice of the application and did not object. This property, 16-30 Russell Place, is the subject of a proposed development currently at pre-application stage for a six-level retail and residential development.

Key Issues

Objections

13. The objections relate mainly to noise escaping from the venue and patron behaviour in Russell Place.

14. All of the issues raised by objectors are considered to be matters which can be dealt with by condition, including a reduction in hours from 4am each night to 1am Monday-Wednesday and 3am Thursday-Saturday; acoustic treatment to windows; compliance with noise standards; and a patron management plan directing patrons to the Bourke street entry and minimising emphasis on Russell Place. The reduced hours proposed are more restrictive than those applying to the Carlton Hotel, Red Violin and Gin Palace.

15. The conditions recommended in the attached Notice of Decision include a requirement to provide an acoustic report from a suitably qualified consultant demonstrating that the premises can comply with State Environment Protection Policy N-2 (Control of Music Noise from Public Premises).

Heritage

16. Although the building is not covered by a Heritage Overlay, it is graded D in the Central City Conservation Study. The proposal to construct a balcony at first floor level was referred to Council’s Heritage Advisor, who advised:

“I believe the first floor balcony is quite inappropriate with regard to heritage considerations, and would establish a poor precedent for the CBD.”

17. Objections did not refer to the balcony.

18. Trafficable first floor balconies are generally supported in the Capital City Zone and when added to licensed premises, provide smokers with an opportunity to smoke without being forced onto the pavement. Approval has recently been granted for a larger balcony at the Carlton Hotel at 197 Bourke Street, a building with a C grading in the Conservation Study.

19. The applicant advises that the balcony is essential for the successful operation of the karaoke bar.

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Licensed Premises Policy

20. The Licensed Premises Policy was adopted by the Planning Committee in December 2007. It has been forwarded to the Minister for Planning for his approval to be exhibited. This approval has not yet been given. The relevant sections of the Policy as adopted in December are:

20.1. hours of operation of licensed premises in the Capital City Zone shall be limited to 1am (the following day) unless the Responsible Authority is satisfied that there will be no detriment to the amenity of the area; and

20.2. outdoor areas within the title boundary (including smoking areas, rooftops and open courtyards) should not be occupied past 1am.

Restoring the Balance – Victoria’s Alcohol Action Plan 2008-2013

21. On 2 May 2008, the Minister for Consumer Affairs issued a Statement of Policy concerning the grant of liquor licences to trade after 1am. The Statement is derived from the Government’s Alcohol Action Plan, entitled “Restoring the Balance”.

22. The Action Plan describes a number of measures including:

20.3. a 12-month freeze on new late-night liquor licences in Melbourne, Port Phillip, Yarra and Stonnington municipalities, limiting their hours to 1am; and

20.4. a three-month trial of a 2am “lockout”.

Discussion

23. The applicant for this planning permit has not made an application for liquor licence to date and would be affected by both of these policy positions.

24. If the conditions as shown in Attachment 3 are adopted, the hours of operation on Thursday to Saturday of 11am to 3am for the interior of the karaoke bar would not be available to the licensee for at least 12 months: any liquor licence would be restricted by the Minister’s Policy to not later than 1am and the “lockout” would not need to be invoked. However it is possible to consider later hours when a decision is being taken under the Melbourne Planning Scheme, in acknowledgement of the nature of the use as a karaoke bar rather than a typical tavern and in response to the existing conditions, including the distance from residential development and the comparison with the hours of operation of nearby licensed premises.

25. The recommended hours of operation for the balcony are until 11pm from Sunday to Thursday and until 1am Friday and Saturday. These hours are consistent with Council’s draft Licensed Premises policy and are the same as those approved for the balcony at the Carlton Hotel.

Issue of Notice of Decision

26. Due to an administrative error, a prior Notice of Decision containing the conditions shown in Attachment 3 was issued under delegation on 14 July 2008. Legal advice obtained from Council’s Legal Services branch is that this Notice is arguably void or voidable as there was a prior request from a Councillor that the application be referred to Committee and the matter may not have been capable of determination under delegation. The applicant and objectors have been advised of the administrative error. To date, Council has not been notified of any application for review having been lodged with the Victorian Civil and Administrative Tribunal by any party.

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Attachments: 1. Location 2. Development Plans 3. Conditions

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Time Frame

27. The application was submitted on 1 April 2008. Notice was required to be given by letter dated 10 April 2008. Notice was confirmed as having been completed by receipt on 3 July 2008 of a statutory declaration that the sign on site had been displayed for the required 14 days, concluding on 7 May 2008. The 60-day statutory period expired on 6 July 2008.

Relation to Council Policy (including Municipal Strategic Statement)

28. The proposal complies with Council’s vision for the Capital City to be a 24-hour precinct for entertainment among other uses, provided off-site impacts are managed.

29. Compliance with the Council’s pending Licensed Premises Policy is discussed above.

Consultation

30. Following the giving of notice, the applicant was advised of the content of the objections and responded on 28 May by amending the plans to improve sound proofing. The proposed hours were not altered.

31. Internal advice was obtained from Council’s Urban Design branch, which supported the proposal except for the proposed blanking out of south-facing windows; and from Council’s Heritage Advisor, who considered the balcony to Bourke Street inappropriate.

Finance

32. There are no direct financial issues arising from the recommendations contained in this report.

Legal

33. Legal advice has been provided as set out at paragraph 26 of this report, and will continue to be given as required.

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Attachment 3 Agenda Item 5.1

Planning Committee 5 August 2008

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Conditions: TP-2008-221, 209-215 Bourke St Melbourne 1. Prior to the commencement of the use, or any demolition, construction or carrying out of

works on the land, the applicant must submit to the Responsible Authority three copies of plans drawn to scale generally in accordance with the plans date-stamped 2 April 2008 (the advertised plans) but amended to show: a) modifications detailed in plans submitted to Council and date-stamped 20 May

2008, specifically to show: (i) provision of a single storey outbuilding (bin enclosure) at the rear of the

site; (ii) the door to Russell Place with an inward opening; (iii) provision of insulated glazing to the inside of the windows facing Bourke

Street; and (iv) a total of 14 karaoke rooms.

b) deletion of the relocated above-verandah sign to Bourke Street; c) the doorway to the balcony redesigned to match the existing window openings on

the first floor north elevation; and d) detailed plans of the balcony at a scale of 1:50 demonstrating it to be a lightweight

structure with transparent balustrading which minimally impacts on the existing building through attachments/fixing.

These amended plans must be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plans of this permit.

2. The development as shown on the endorsed plans must not be altered or modified without

the prior written consent of the Responsible Authority. 3. The use of any land or building or part thereof as shown on the endorsed plans must not be

altered or modified without the prior written consent of the Responsible Authority. 4. A schedule and samples of all external materials, colours and finishes must be submitted to the

satisfaction of the Responsible Authority prior to the commencement of the development. The schedule must show the materials, colours and finishes of the Bourke Street balcony and the rear outbuilding.

5. The owner of the property must seek a tenure/authorisation under the Land Act from the

Department of Sustainability and Environment for the building projection over Crown Land. That tenure/authorisation must indemnify Council against any claims regarding the projections. Should the owner of the property seek to commence works prior to the issue of this tenure/authorisation, the owner must enter into a legal agreement under Section 173 of the Planning and Environment Act, 1987, concerning the liability of those parts of the development projecting into airspace or sub-soil of land under the care and management of Council. The owner of the property to be developed must pay all of Council’s reasonable legal costs and expenses of this agreement, including preparation, execution and registration on title.

6. Prior to the commencement of the permitted use, the applicant must submit a management

plan to describe: a) the ways in which staff are to be made aware of the conditions attached to this

permit; b) measures designed to ensure the orderly arrival and departure of patrons; c) control of noise by patrons inside and outside the premises; d) security arrangements; and e) any other procedures designed to ensure that the premises is managed in a proper

and orderly manner.

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The management plan must be to the satisfaction of, and be approved by, the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. All activities forming part of the use must comply with the endorsed Management Plan unless the prior written consent of the Responsible Authority is obtained.

7. The licensed premises must operate and be managed in accordance with the conditions and

provisions of the approved Management Plan to the satisfaction of the Responsible Authority.

8. Prior to the commencement of the use hereby permitted, an acoustic report prepared by a suitably qualified acoustic consultant must be submitted to the Responsible Authority which demonstrates that the noise levels generated from the premises will not exceed the levels specified in the State Environment Protection Policy N-2 (Control of Music from Public Premises). The report must be to the satisfaction of the Responsible Authority and should highlight potential noise sources and sound attenuation work required, including but not limited to noise generated in Russell Place and the potential noise impacts on apartments at 166-186 Little Collins Street and 188-194 Little Collins Street, Melbourne. The recommendations contained within the approved acoustic report must be implemented, at no cost to the responsible authority, prior to the commencement of the use.

9. Prior to the commencement of the use, acoustic testing must be conducted by a qualified

acoustic consultant. The test must verify that the maximum noise levels will comply with SEPP No N-1 and SEPP N-2 to the satisfaction of the Responsible Authority. A report containing the result of the testing must be submitted to the satisfaction of the Responsible Authority.

10. If it is found that the noise emitted from the premises does not comply with condition 9 or

12, a further report must be prepared by a suitably qualified acoustic consultant. A copy of this report must be submitted to the Responsible Authority. This report should make recommendations regarding further noise attenuation measures required to be implemented. The applicant/owner of the premises must implement any recommendations to ensure the premises complies with the standards, to the satisfaction of and at no cost to the Responsible Authority.

11. Prior to the commencement of the use, a music noise level limiter must be installed into the

amplification equipment on the premises. This must be calibrated to ensure that noise levels do not exceed levels specified in the State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2. It must be installed in such a manner that the operator may not bypass the equipment.

12. The level of noise emitted from the premises must not exceed the permissible noise levels

for entertainment noise as specified in the State Environment Protection Policy N-1 (Control of Noise from Commercial, Industrial or Trade Premises) or N-2 (Control of Music from Public Premises).

13. The premises shall only be open for the use hereby permitted between the following hours:

Inside the premises: - Sunday to Wednesday 11am to 1am the following day - Thursday, Friday, Saturday 11am to 3am the following day On the balcony: - Sunday to Thursday 11am to 11pm - Friday, Saturday 11am to 1am the following day All patrons shall vacate the premises no later than 30 minutes after closing times.

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Any extension of these hours will require separate planning approval. 14. The premises must not be entered or exited by patrons from Russell Place, except in an

emergency. 15. Except with the further permission of the Responsible Authority, the maximum number of

patrons shall be no more than 150 at any one time. 16. The rear south-facing terrace is not permitted to be used by patrons. 17. No loudspeaker, amplifier, relay or other audio equipment must be installed or used

outside the building. 18. No amplified live music or entertainment is permitted on the premises without the prior

written consent of the Responsible Authority. 19. A designated manager must be in charge of the premises at all times when the premises are

open for business.

20. The designated manager must conduct the premises so as to ensure that the operation does not cause or permit any undue detriment to the amenity of the area to arise out of or in connection with the use of the premises to the satisfaction of the Responsible Authority.

21. The licensee must install and maintain an electronic surveillance system to monitor and

record continuous images of all entrances and the area of the street and footpath at the front of the premises whilst the premises are open, until half an hour after closure. These records must be retained for at least three (3) months and made available for viewing and/or removal at all times by an authorised police officer or an authorised officer of Council or an authorised officer of Liquor Licensing Victoria.

22. A clear sign must be attached to an internal wall in a prominent position adjacent to the

entry/exit point to advise patrons to leave in a quiet and orderly fashion, to the satisfaction of the Responsible Authority.

23. Licensed security staff must be present in the premises during business hours calculated at the

ratio of two (2) security staff for the first 100 patrons and an additional security officer for the next 100 patrons or part thereof.

24. Security staff employed on the premises must have undertaken a recognised course in crowd

control. 25. Sexually explicit entertainment must not be provided on the premises. Sexually explicit

entertainment is that provided by a person or persons, who are nude, display sexual organs or are topless females. Entertainment includes “table-top” dancing, “lap” dancing, topless bar serving, live strip tease shows and their equivalent.

26. All garbage and waste material must be stored in an area set aside for such purpose to the

satisfaction of the Responsible Authority. No goods, garbage, packing material or similar material shall be left outside the venue on adjoining footpaths or roads.

27. Empty bottles from the operation of the premises must be placed into a bag and deposited into

recycling bins quietly so as not to cause disturbance to adjoining and nearby residents, to the satisfaction of the Responsible Authority.

28. No bottles or other waste material may be removed from the site between the hours of

9:00pm on any day and 7:00am the following morning.

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29. No garbage bin or waste materials generated by the permitted use shall be deposited or stored outside the site and bins must be returned to the garbage storage area as soon as practicable after garbage collection.

30. All persons engaged in the serving of liquor must undertake a responsible serving of

alcohol course provided by or approved by Liquor Licensing within three months of the issue of employment.

31. The owner of the subject land should construct a drainage system, incorporating water

sensitive urban design, within the development and make provision to connect this system to Council’s stormwater drainage system in accordance with plans and specifications first approved by the Responsible Authority; Manager - Engineering Services.

32. The Owner of the subject land will not be permitted to alter the existing footpath levels in

Bourke Street for the purpose of constructing new vehicle or pedestrian entrances without first obtaining the written approval of the Responsible Authority; Manager - Engineering Services.

33. All necessary approvals and permits are to be first obtained from Council and the works

performed to the satisfaction of Council's Group Manager - Engineering Services. 34. This permit will expire if one or more of the following circumstances apply:

a) The development is not started within two years of the date of this permit; b) The development is not completed within four years of the date of this permit; and/or c) The use is not commenced within four years of the date of this permit.

The Responsible Authority may extend the date upon which this permit expires only if it receives a request in writing before the permit expires, or within three months afterwards.

NOTE: The operator under this permit is encouraged to become a member of the Melbourne Licensees Forum and abide by the Responsible Practice Guidelines for Licensees within the City of Melbourne. (See www.melbourne.vic.gov.au/runabettervenue to apply to become a member of the forum and to download a copy of the guidelines). Disabled access and facilities for the existing building should be considered by the relevant building surveyor as part of the building permit approval process. A further Report and Consent must be obtained from the Municipal Building Surveyor for any projection over the public footpath.

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Agenda Item 5.1 Planning Committee

5 August 2008

FINANCE ATTACHMENT

PLANNING PERMIT APPLICATION TP-2008-221, 209-215 BOURKE STREET, MELBOURNE

There are no direct financial issues arising from the recommendations contained in this report.

Joe Groher Manager Financial Services

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Agenda Item 5.1 Planning Committee

5 August 2008

LEGAL ATTACHMENT

PLANNING PERMIT APPLICATION TP-2008-221, 209-215 BOURKE STREET, MELBOURNE

Division 1 of Part 4 of the Planning and Environment Act 1987 (“the Act”) sets out the requirements in respect of applications for permits pursuant to the relevant planning scheme (the Melbourne Planning Scheme).

Section 61(1) of the Act provides that the Responsible Authority may decide:

“(a) to grant a permit;

(b) to grant a permit subject to conditions; or

(c) to refuse to grant a permit on any ground it thinks fit.”

In making its decision section 60(1)(c) of the Act requires the Responsible Authority to consider, amongst other things, all objections and other submissions which it has received.

As objections to this planning permit application have been received, section 64 of the Act relevantly prescribes the procedure to be followed by the Responsible Authority. The Responsible Authority must give each objector a notice of its decision to grant a permit. The Responsible Authority must not issue a permit until the end of the period in which an objector may apply to the Victorian Civil and Administrative Tribunal (“the Tribunal”) for a review of the decision or, if an application for review is made, until the application is determined by the Tribunal or withdrawn.

A notice of decision has been issued and legal advice has been provided in respect of this notice as discussed at paragraph 26 of the report, and will continue to be given as required.

Section 79 of the Act provides that if the Responsible Authority fails to grant a permit within the prescribed time an applicant may appeal to the Tribunal. If the applicant does so appeal, section 84 of the Act provides that the Responsible Authority may decide on an application at any time after an appeal has been lodged; however the Responsible Authority must not issue or give a permit, a notice of decision or a notice of refusal after the appeal has been lodged.

Kim Wood Manager Legal Services

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