VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P814/2020
Permit Application no. TP-2019-775	
CATCHWORDS	
Section 82 Planning and Environment Act 1987; Melbourne Planning Scheme; Capital City Zone; Dance studio; Noise.	

APPLICANT	Maarten Roosenburg	
responsible authority	Melbourne City Council	
RESPONDENT	DSoul Melbourne Pty Ltd	
SUBJECT LAND	Level 1, 385-389 Little Lonsdale Street and 385-389 Little Lonsdale Street, Melbourne	
HEARING TYPE	Hearing	
DATE OF HEARING	17 March 2021	
DATE OF ORDER	14 April 2021	
CITATION	Roosenburg v Melbourne CC [2021] VCAT 306	

Order
1	In application P814/2020 the decision of the responsible authority is varied.
2	In planning permit application TP-2019-775 a permit is granted and directed to be issued for the land at Level 1, 385-389 Little Lonsdale Street and 385-389 Little Lonsdale Street, Melbourne, in accordance with the conditions set out in the Appendix.  The permit allows the use of the Level 1 tenancy for the purposes of an indoor recreation facility (dance studio) in accordance with the endorsed plans.

Bill Sibonis
Senior Member			

Appearances
For Maarten Rooesnburg	Mr A Foster, Senior Acoustic Consultant of Resonate Consultants Pty Ltd	
For Melbourne City Council	Mr J Poulson, Town Planner	
For DSoul Melbourne Pty Ltd	Ms L Tanev, Town Planner of Connect Planning	

Information
Description of proposal	Use of Level 1 for the purpose of an indoor recreation facility (dance studio)	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit	
Planning scheme	Melbourne Planning Scheme (Planning Scheme)	
Zone and overlays	Capital City Zone – Schedule 1, Outside the Retail Core (CCZ1)
Design and Development Overlay – Schedule 1, Active Frontages
Design and Development Overlay – Schedule 2, Special Character Areas – Built Form (Hoddle Grid)
Design and Development Overlay – Schedule 10, General Development Area – Built Form
Parking Overlay – Schedule 1, Capital City Zone – Outside the Retail Core	
Permit requirements	Cl. 37.04-1 and Cl. 71.03-2 (use of land in CCZ1 for an indoor recreation facility)	
Relevant scheme policies and provisions	Cl. 11, 13, 17, 21, 37.04, 52.06, 45.09 and 65	
Land description	The review site is located on the south side of Little Lonsdale Street, between Queen Street and Elizabeth Street, in Melbourne.  The land is occupied by a four-storey, mixed-use building accommodating offices, and food and drink premises.  Surrounding land supports multi-level buildings occupied by a mix of uses including offices, food and drink premises, shop and dwellings.	

Reasons
What is this proceeding about?
1	The Melbourne City Council (Council) has determined to grant a planning permit for the use of the Level 1 tenancy within the existing building on the review site for use as an indoor recreation facility (dance studio).
2	The applicant uses the tenancy above the proposed dance studio for an office.  He has applied to the Tribunal for a review of the Council’s decision.  The sole concern relates to the acoustic impact of the proposal on the office use.  At the hearing, the applicant confirmed that he has no in-principle objection to the dance studio use, and suggested conditions which would address his concerns.
3	The land is within the CCZ1.  Pursuant to clause 37.04-1 of the Planning Scheme, an indoor recreation facility is a section 2 use for which a planning permit is required.  The purpose of the CCZ1 is to provide for a range of financial, legal, administrative, cultural, recreational, tourist, entertainment and other uses that complement the capital city function of the locality.
4	As detailed in the Council’s submission, the site is located in a mixed-use area comprising offices, medical centres, bars, restaurants, dwellings and serviced apartments.  There is no dispute that the proposal is consistent with the purpose of the zone and is appropriate in this mixed-use context.
5	The Council’s submission identified that the proposal has the potential to detract from the amenity of adjoining properties and tenancies by way of noise emissions.  To address these, the Council has included several conditions in the NOD.  These include the installation of a noise limiting device, and a requirement to comply with the noise limits prescribed by State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2 (SEPP N-2).  This is notwithstanding that, for the purposes of SEPP N-2, an office tenancy is not identified as a ‘noise sensitive area’ (which refers to, amongst others, dwellings and residential buildings).
6	In this respect, the Council referred to an acoustic assessment provided as part of the planning permit application which utilised SEPP N-2 as a guide and noting that it is typically applied to ‘residential receptors’ rather than commercial receptors.  In response to a question, the Council clarified that the intention is for the compliance with SEPP N-2 to be assessed and determined by designating the applicant’s office tenancy as a ‘noise sensitive area’.
7	The applicant submitted that this would not achieve an acceptable acoustic outcome as noise levels that would comply with SEPP N-2 would result in low-level noise (bass) penetrating the office and result in an undesirable acoustic impact.  What the applicant proposed as a solution was (in summary):
•	requiring the noise levels to comply with those identified as the ‘preferred noise levels’ in the acoustic assessment through the use of a noise limiter; or
•	installing a suspended ceiling system to provide additional noise attenuation of low frequency noise.
8	The respondent opposes both of this options, arguing that compliance with SEPP N-2 as required by the Council (designating the applicant’s office as a ‘noise sensitive area’) is sufficient to achieve an acceptable acoustic environment, given that it is the standard that is applied to residential uses.  The concern arises from the fact that the ‘preferred noise levels’ are lower than what would be allowed under SEPP N-2 in this circumstance, and would be a more onerous requirement for a use that is less sensitive than a dwelling.
9	I have some difficulty with the application of SEPP N-2 standards to a use such as an office, which is not identified as a ‘noise sensitive use’.  The SEPP N-2 is not intended to be applied in this way.
10	In the circumstances of this application, where an acoustic assessment has been prepared and has identified a preferred noise level for the proposed use, it is appropriate that this level be utilised.  It is an assessment that is specific to the proposed use, and has been established utilising attended measurements.  Further, it is one that is specific to the physical context of the site.
11	I note that the applicant has confirmed that it would represent an acceptable acoustic outcome for the office tenancy.
12	While the respondent confirmed its preference for levels that are established by the SEPP N-2 assessment as proposed by the Council, it was submitted that the ‘preferred noise levels’ would be acceptable if the Tribunal considered them appropriate.  I take this to mean that the use will be able to operate acceptably with these noise levels, and will not be compromised or otherwise unduly constrained.  In the circumstances of this application, I consider that this will represent an acceptable outcome.
13	I will therefore vary the Council’s decision to include a requirement that the noise limiting device be set to the levels specified as the ‘preferred noise levels’ in the acoustic assessment.
14	The requirement that the noise levels from the premises comply with SEPP N-2 will be retained so that an appropriate level of protection will be provided to the nearby residential properties.
Bill Sibonis
Senior Member			
Appendix - Permit Conditions

Permit Application No	TP-2019-775	
Land	Level 1, 385-389 Little Lonsdale Street and 385-389 Little Lonsdale Street, Melbourne.	

What the permit allowS	
Use of the Level 1 tenancy for the purpose of an indoor recreation facility (dance studio) in accordance with the endorsed plans.	

Conditions
1	Before the use starts, amended plans must be submitted to, and be approved by, the responsible authority.  The plans must be drawn to scale and must be generally in accordance with the plans by IDXA Pty Ltd dated 11 February 2020 but modified to show:
(a)	the ‘acoustic wall system’ applied to all new walls and clearly shown in red on the floor plans, as required by the Acoustic Report prepared by Waveform Acoustics dated 5.2.20 (Revision: Final Acoustic Report 7.2.20)
(b)	the ‘acoustic wall system’ applied to the walls or ceiling or a combination of both to 40% of the floor area of each of the studio spaces and clearly shown in blue on the floor plans, as required by the Acoustic Report prepared by Waveform Acoustics dated 5.2.20 (Revision: Final Acoustic Report 7.2.20)
(c)	a notation for any doors installed in the ‘acoustic wall system’ requiring that they have a solid core with a minimum Rw of 30 and acoustic seals, as required by the Acoustic Report prepared by Waveform Acoustics dated 5.2.20 (Revision: Final Acoustic Report 7.2.20)
(d)	a notation for any windows installed in the ‘acoustic wall system’ requiring Vlam Hush 10.5mm glazing, as required by the Acoustic Report prepared by Waveform Acoustics dated 5.2.20 (Revision: Final Acoustic Report 7.2.20)
(e)	fixed noise limiters installed in the studio spaces
(f)	any changes required by the approved Waste Management Plan (refer to Condition No. 12 of this permit).
When approved, the plans will be endorsed and will then form part of this permit.
2	The use as shown on the endorsed plans must not be altered or modified unless with the with prior written consent of the responsible authority.
3	Except with the prior written consent of the responsible authority, the hours of operation for the use must be as follows:
•	Monday to Sunday: 9.00am to 10.00pm
4	Patrons must leave the tenancy within 15 minutes of the conclusion of the day’s final class.
5	Except with the prior written consent of the responsible authority, the maximum number of staff permitted within the premises must not exceed five (5).
6	Except with the prior written consent of the responsible authority, the maximum number of patrons permitted within the premises must not exceed:
(a)	9.00am – 5.00pm, Monday to Friday: 20 patrons
(b)	5.00pm – 10.00pm, Monday to Friday: 60 patrons
(c)	9.00am – 10.00pm, Saturday and Sunday: 60 patrons
7	Between the hours of 9.00am and 1.00pm Monday to Friday, the studio space must only be utilised for yoga classes (or similar).  Private dance classes must not operate within these times.
8	Before the use starts a statement by a qualified acoustic consultant verifying that the recommendations/requirements set out in the Waveform Acoustics dated 5.2.20 (Revision: Final Acoustic Report 7.2.20) have been implemented must be submitted to the responsible authority.  The statement must be to the satisfaction of the responsible authority.
9	Noise emissions from the premises must comply with State Environment Protection Policy (Noise from Commerce Industry and Trade) No. N-1 and State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2 to the satisfaction of the responsible Authority.
10	No external sound amplification equipment or loudspeakers are to be used for the purpose of announcement, broadcast, playing of music or similar purpose, to the satisfaction of the responsible authority.
11	Before the use starts, the amplification system must be fitted with a noise-limiting device calibrated by a qualified acoustic consultant.  The noise limiting device must limit noise/sound levels to the preferred sound levels of operation specified on page 8 of the Acoustic Report prepared by Waveform Acoustics dated 5.2.20 (Revision: Final Acoustic Report 7.2.20), to the satisfaction of the responsible authority.  All amplified music must be played through this amplification system.
12	Before the use starts, a Waste Management Plan must be submitted to, and be approved in writing by, the responsible authority.  The Waste Management Plan must detail waste storage and collection arrangements for the use and be prepared with reference to the Melbourne City Council Guidelines for Preparing a Waste Management Plan, to the satisfaction of the responsible authority.  Waste storage and collection arrangements must be undertaken in accordance with the approved Waste Management Plan to the satisfaction of the responsible authority.
13	This permit will expire if one of the following circumstance applies:
(a)	The use has not commenced within two years of the issue date of this permit.
(b)		The use is discontinued for a period of two years.
The responsible authority may extend the permit if a request is made in writing before the permit expires, or within six months afterwards.

– End of conditions –