13 November 2007 APPLICATION FOR PLANNING PERMIT… · PLANNING COMMITTEE REPORT Agenda Item 5.18...

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 5.18 13 November 2007APPLICATION FOR PLANNING PERMIT: 82 FLINDERS STREET, MELBOURNE

Division Sustainability and Regulatory Services

Presenter Con Livanos, Executive Officer Planning

Purpose

1. Carry out development, including alterations to existing building to create an outdoor smoking area for the existing hotel, to be used from 12 midday to 4 am the following morning daily.

2. This report is presented to the Planning Committee at the request of Councillor Ng.

Summary

Application Number: TP-2007-253

Proposal: Carry out alterations to existing building to create an “outdoor” smoking area for the existing hotel, to be used from 12 midday to 4 am the following morning daily.

Applicant: Six Degrees Pty Ltd

Zoning: Capital City Zone Schedule 1 – Outside the Retail Core

Overlay: Design and Development 1(Schedule 2) – Active Street Frontage Design and Development Overlay 3 – Weather Protection

Existing Use: Tavern

Number of Objections: Two

Recommendation from Management

3. That the Planning Committee determine to issue a Notice of Decision to Grant a Planning Permit subject to the conditions at Attachment 1 of this report.

Proposal

4. The subject site is located on the north side of Flinders Street, west of Exhibition Street (refer map at Attachment 2). The building is a three -storey brick and bluestone building and was refurbished in the early 1990s and again in 2001. Building area is approximately 490sqm.

5. The building is used as a hotel known as Phoenix Bar and Restaurant. The building has been used as a hotel for a number of years and has a General Licence until 4am.

6. The proposal is to create a smoking area within the building envelope. Currently, patrons wishing to smoke are required to leave the premises and will stand on the Flinders Street footpath, outside the premises.

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7. The proposed works are outlined in the attached plans at Attachment 3 and include:

7.1. the removal of three fully glazed openings at the ground floor Flinders Street level and replaced with ‘trelli-mesh’ operable screens and one patterned fixed laser-cut screen; and

7.2. new glazing (including a glazed entrance door) to be set 5.6 metres inside the building boundary to Flinders Street.

8. The works create a floor area of 9.6 square metres which will have access to the external ventilation through the ‘trelli-mesh’ and laser-cut screen. The area is defined on the plans as being a “smoking area” to comply with the recent change in legislation to make all internal areas of licensed premises smoke-free from 1 July 2007.

9. The existing entrance door to the first floor level is not proposed to change.

Key Issues

10. The key issues relate to:

10.1. the existing amenity impacts from smokers currently using Flinders Street footpath for smoking; and

10.2. the potential amenity impacts (operating hours, parton noise and behaviour) of the proposed “smoking area” on nearby residential properties.

Existing Conditions

11. The creation of a recessed “smoking area” is in response to recently introduced legislation making closed areas of all licensed premises smoke free. At present patrons wishing to smoke are required to leave the premises and stand on the footpath. This can result in adverse impacts on the public realm such as inhibiting pedestrian flows along Flinders Street, and increased noise from smokers being outside.

12. Currently smokers are outside the jurisdiction of the security and/or management of the establishment and therefore cannot be managed in the same way as within the premises.

13. In the case of the subject premises, the alterations will have a positive outcome for the public realm by removing patrons who are smoking on the Flinders Street footpath. A condition is proposed to be placed on the permit restricting the licensed hours of the smoking area to prevent patrons from staying in the “smoking area” late into the night.

Operation Hours

14. The subject site currently does not have planning restrictions on hours of operation however due to the external nature of the “smoking area” the consumption and/or the sale of alcohol should be restricted to no later than the following times:

14.1. Sunday to Thursday until 11 pm; and

14.2. Friday and Saturday 1am the following day.

Noise attenuation

15. The applicant submitted an acoustic report with the application. The report concluded that “the proposed outdoor smoking area at the nearest affected residential property will comply with both the existing State Environment Protection Policies and the sleep disturbance criterion.”

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16. Conditions are to be placed on the permit to control potential noise sources such as requiring that no audio or PA system is to be used so as to be audible from the external terrace; and requiring the use to comply with State Environment Protection Policy.

Relation to Council Policy (including Municipal Strategic Statement)

Municipal Strategic Statement (Clause 21.02)

17. Clause 21.02-1 Municipal Profile states that:

“The Central City and Docklands support a diversity of uses operating 24 hours a day, ranging from office uses through the day; and residential, leisure and entertainment uses through the day and night…”

18. Clause 21.04 Land Use, recognises that:

“Amenity is a key priority of the City. It must be managed and enhanced in a way which ensures quality of life for existing and future residents. However, the type of amenity achieved will vary in different parts of the municipality….”

19. The intention of the Municipal Strategic Statement is to identify the amenity expectations and standards for both residential and non-residential uses in the different parts of the City. Table 3 at Clause 21.04, “Land Use Amenity Principles” sets out amenity standards and expectations for various zones in the City.

20. For the Capital City Zone the land use amenity principles are as follows:

“Residential amenity in the Capital City and Docklands Zones is not comparable to that of residential zones, and residential use and development in these zones must not compromise the other purposes and functions of the Central City and Central Activities District; and

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

21. Clause 21.04-2 (Retail, entertainment and the arts):

“To provide a diverse range of leisure, cultural and entertainment facilities and enhance the City as Victoria’s pre-eminent cultural and entertainment location; and

Support and encourage the growth of a vibrant cultural environment in the Central City, Southbank and Docklands, by supporting entertainment uses and the arts.”

22. Clause 21.08-1 (Central City) recognises that:

“The Central City is Victoria’s largest and most varied focus of activity, a vibrant mixed use area which operates 24 hours a day and is the State’s gateway to the global economy”

23. The vision for the Central City at Clause 21.08-1 includes the following:

“…The Central City continues to be a 24 hour precinct, attracting visitors from a wide catchment at all times of the day to a diversity of entertainment venues and facilities. However, entertainment venues and other potential noise generating premises have been carefully managed to minimise off site impacts, in recognition of the growing residential community within the Central City”

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“The Central City has grown as a high-density inner city residential environment. Excellent construction and effective management of non residential uses as well as good design of new dwellings in the City has meant that a diverse range of uses can co-exist. Noise and light spill has been recognised as an inevitable part of inner city living because of the diverse land uses, people and traffic in the area at all times. Significant amenity benefits are obtained through excellent access to the facilities and services and to public transport…”

24. For land use implementation strategies with the Central City, the following is identified:

“Encourage the development of a range of complementary precincts within the Central City that offer a diverse range of specialists retail, cultural and entertainment opportunities;

Support entertainment, bars, eating and other evening uses throughout the Central City; and

Encourage the provision of varied facilities and services which support the diversity of tourists visiting the Central City.”

Time Frame

25. Section 79 of the Planning and Environment Act 1987 (“the Act”) provides that an applicant for permit may appeal to the VCAT against failure of the Responsible Authority to grant a planning permit within 60 days, excluding the notification period. The application has exceeded the 60 day time limit and therefore, may be subject to an appeal at VCAT.

Consultation

26. The application was advertised via a notice on site and notices to adjoining owners and occupiers. As a result, two (2) objections have been received. The issues raised in these objections are summarised as follows:

26.1. close proximity to residential apartments, “this is a residential area”;

26.2. noise from the patrons in the smoking area;

26.3. rubbish from patrons spilling on to Flinders Street; and

26.4. smoke pollution emanating from the “smoking area”.

Finance

27. There are no direct financial issues that arise from the recommendations in this report.

Legal

28. Division 1 of Part 4 of the Act sets out the requirements in relation to applications for permit pursuant to the Planning Scheme.

Background

29. The adjoining building to the east of the site (located on the north west corner of Flinders Street and Exhibition Street), is 1 Exhibition Street, an 8-storey brick building with five shops at street level. The upper floors were refurbished as 24 residential apartments in 1992-93. The conversion was completed by the mortgagee, a company associated with Macquarie Bank.

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Attachments: 1. Proposed Planning Permit Conditions 2. Locality Plan 3. Proposed Development Plans

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30. The adjoining building to the west of the site is the Medina Apartments, formerly 88 Flinders Street, a 16-storey residential and retail building with associated car parking completed in late 2001. To Malthouse Lane, an older four-storey brick building refurbished as residential units in 2000.

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Attachment 1 Agenda Item 5.18

Planning Committee 13 November 2007

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PROPOSED CONDITIONS FOR APPLICATION TP-2007-253: 82 FLINDERS STREET, MELBOURNE

1. Prior to the commencement of the development hereby permitted the applicant must submit to the Responsible

Authority three copies of plans drawn to scale generally in accordance with the plans accompanying the application but amended to show:

a. Temporary barriers in the ‘smoking area’ to prevent patrons blocking the entrance door;

b. Detail of floor and ceiling treatments designed to minimise noise.

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 use of any land or building or part thereof as shown on the endorsed plans must not be altered or modified

without the prior consent of the Responsible Authority.

3. The first floor balcony on the southern elevation does not form part of this planning approval.

4. A clear sign must be attached to an internal wall in a prominent position in the ‘smoking area’ to advise patrons to behave in a quiet and orderly fashion, to the satisfaction of the Responsible Authority.

5. No audio or PA system is to be used so as to be audible from the external terrace.

6. Any noise emitted from the terrace area of the subject premises shall:

a. at all times comply with any limits, standards or rules prescribed thereto or imposed by, in or under

State Environment Policy made pursuant to the Environment Protection Act 1970, and in particular the State Environment Protection Policy (Control of Music from Public Premises) No. N-2;

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 48 of the Environment Protection Act;

c. at no time be such as to cause any nuisance to occupants of any adjacent or other buildings in proximity to the subject premises.

7. The ‘smoking area’ shall only be used for the consumption and/or sale of alcohol between the following times:

Sunday to Thursday 7 am to 11 pm Friday and Saturday 7 am to 1am the following day

8. Prior to the commencement of the use hereby permitted, a Patron Management Plan must be submitted to and

approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The Patron Management Plan shall include (but is not limited to):

a) Monitoring and control of sound sources and levels within the premises; b) Where specifically permitted, the management of DJs for keeping music within acceptable levels. c) The contact number and name of the designated manager for lodging of complaints. d) The keeping of a complaints register and procedure for treating complaints; e) Management of patrons entering and leaving the premises. f) Management of patrons wishing to leave the confines of the venue or other enclosed space to smoke; g) Pass out arrangements where permitted; h) Signage placed on exit points requesting patrons to consider the amenity of the neighbourhood and to

minimise noise; i) Security arrangements and the conduct of security staff j) General operation proposed by the applicant.

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The operation of the use must be carried out in accordance with the endorsed Patron Management Plan or as amended with the prior written consent of the Responsible Authority.

9. Except with the further permission of the Responsible Authority, the maximum number of patrons located in the

‘smoking area’ shall be no more than 15 at any one time.

10. The terrace area must operate and be managed in accordance with the conditions and provisions of the approved Patron Management Plan to the satisfaction of the Responsible Authority.

11. A designated manager must be in charge of the premises at all times when the premises are open for business.

12. The operation of the smoking area shall be conducted so as to ensure that any refuse including (but not limited to)

bottles, cans, cigarette buts and paper is not left on Flinders Street, Melbourne and the portion of Flinders Street adjoining the subject site. The operator shall promptly, diligently and effectively clean and remove all refuse and rubbish on a daily basis upon closing on each day from and adjacent to Flinders Street , Melbourne to the satisfaction of the Responsible Authority.

13. Prior to the commencement of the use hereby permitted, a clearly legible sign shall be placed directly outside the

entrance to the premises, identifying a telephone number effective for contacting the designated manager at all hours during which the premises is operating. The design, lighting and maintenance of the sign shall be to the satisfaction of the Responsible

14. The time for the commencement of the works hereby authorised is, pursuant to Section 68(2) of the Planning and

Environment Act 1987, specified as 2 years from the date of issue of this permit.

The time within which the works are to be commenced may on application made before or within 3 month after the expiry date of this permit be extended by the Responsible Authority.

NOTES: (a) The number of patrons permitted on the terrace area licensed premises at any time will be limited to the safe and

amenable operating capacity of the premises as determined by the Building Act 1993. This shall include the provision of adequate toilet facilities and required fire exits.

(b) Disabled access and facilities for the terrace area should be considered by the relevant building surveyor as part of

the building permit approval process. (c) The operator under this permit is encouraged to become a member of the City Licensing Forum and the Melbourne

City Council’s Melbourne Licensees Accord and to adopt the “Responsible Practice Guidelines for Licensees within the City of Melbourne (2007)”.

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Text Box

Attachment 2 Agenda Item 5.18 Planning Committee 13 November 2007

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Text Box

Attachment 3 Agenda Item 5.18 Planning Committee 13 November 2007

Agenda Item 5.18 Planning Committee

13 November 2007

FINANCE ATTACHMENT

APPLICATION FOR PLANNING PERMIT: 82 FLINDERS STREET, MELBOURNE

There are no direct financial issues that arise from the recommendations in this report.

Joe Groher Manager Financial Service

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Agenda Item 5.18 Planning Committee

13 November 2007

LEGAL ATTACHMENT

APPLICATION FOR PLANNING PERMIT: 82 FLINDERS STREET, MELBOURNE

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

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.

Section 61(b) provides that the Responsible Authority may decide to grant a permit subject to conditions.

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 Victorian Civil and Administrative 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.

Objections to this planning permit application have been received. Section 64 of the Act sets out the procedure to be followed by the Responsible Authority in these circumstances. The section provides that the Responsible Authority must give the applicant and each objector a notice in the prescribed form of its decision to grant a permit. The Responsible Authority must not issue a permit to the applicant until the end of the period in which an objector may apply to 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.

Kim Wood Manager Legal Service

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13 November 2007 APPLICATION FOR PLANNING PERMIT… · PLANNING COMMITTEE REPORT Agenda Item 5.18...

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