Adelaide CC v Awad & Rebels Motorcycle Club Inc No. Scgrg-98-898 Judgment No. S6862

[1998] SASC 6862

CORPORATION OF THE CITY OF ADELAIDE v AWAD AND REBELS MOTORCYCLE CLUB INCORPORATED
[1998] SASC 6862

Full Court:  Prior, Lander and Wicks JJ

PRIOR J

1     The Corporation appeals against an order of the Environment Resources and Development Court approving an application by the respondent motorcycle club for provisional Development Plan consent, to use premises in Wright Street, City, as a licensed club subject to conditions.

2     The Corporation had refused the application on the grounds that “the development was not compatible with residential land use and would result in undue noise disturbance to residential properties in the locality and diminish residential amenity”.  The Corporation referred to the General Principle 39 with respect to noise.  That provides that development should not result in noise emission which would detrimentally affect the amenity of adjacent property or its locality.  It also referred to “the Desired Future Character Statement for the R31 Whitmore Square East Precinct”.  That provided that “east of Myers Street and its prolongation north and south, residentially compatible commercial uses and high density residential uses are desired, while to the west, predominantly residential uses at lower densities are appropriate”.

3     On the appeal, the court heard evidence from two town planners and an acoustical engineer.  It viewed the location of the premises and its environs.  Local residents maintain their objection to the application.

4     By this appeal, the Corporation complains that the court erred in holding that the proposed use was not a fundamentally inappropriate use of the land the subject of the application.  It is also said that the court erred as a matter of law in considering the imposition of conditions on the consent before assessing the suitability of the proposed use and its potential planning impacts.  Further error is alleged with respect to the approval of the proposal subject to conditions.  They are said to be invalid, ineffectual or incapable of practical enforcement.  It is also said that there is error because the court held the proposed use would not interfere with the development of “predominantly residential uses of the lower densities” as may appropriately be established in the precinct.

5     In its decision, the court first identified the proposal and the nature of the development.  It then referred to some of the General Principles applying within various districts and quoted the introductory paragraphs to the Statement of Desired Future Character for the R31 Whitmore Square East Precinct and the equivalent Statement for the Central Market Precinct.  The court noted that the land the subject of the proposal was directly connected to the Central Market Precinct and found that allowance of the development would not interfere with a reasonable gradation from the character of the Central Market Precinct to the character of the Whitmore Square East Precinct, “particularly having regard to the relatively small scale of the proposed use - that scale being determined, in part, by the small size of the subject premises and partly by the specification of the level of activity intended by the appellant club”. 

6     After quoting from the Statement of the Desired Future Character for the Whitmore Square East Precinct, the court said:-

“Because, to the west of Myers Street and its prolongation north and south, ‘predominantly residential uses at lower densities are appropriate’ and because ‘development in the Precinct should not result in the net loss of residential floor space’, it follows from our analysis of the Desired Future Character of the Whitmore Square East Precinct, so far, that we must consider three questions:

1...... Will the proposed use of land displace an existing residential use, and therefore, result in a net loss of residential floor space on the subject land?

2...... Will the proposed use be likely to drive away existing residential uses in the part of the precinct in which the subject land is located?

3...... Insofar as there may be opportunities for residential development within the area of the precinct in which the subject land is located, would the proposed use be likely to discourage that development?”

7     It answered the first question in the negative.  There was no existing use of the land nor, in the court’s view, was there a likelihood, in the foreseeable future, of the premises themselves being put to residential use.  The court described as a notable feature of the area, within which the site of the proposed club was situated, was the relevant absence of residential use nearby.  It also found non-residential use of the land within 50 - 100 metres.  The court said that the residential intentions of the Development Plan for the part of the Whitmore East Precinct containing the subject land was most likely to be given effect at some distance from the land principally to the south and west.  The court acknowledged that there was some opportunity for redevelopment of run-down buildings nearby.  It found the proposed use would have no discernible influence on the prospects for redevelopment of those properties for residential purposes, largely because of the relatively small scale of the use, the low level of activities associated with it most days and nights of each week and the controlled and relatively low environmental impacts of the use.   The court said that impacts of the proposed use of land which could affect adversely the amenity of existing or future residential uses of land nearby would be suitably controlled by the enforceable undertakings of the appellant or by appropriate conditions of consent.  In the court’s view, “conditions in the area, other than those on the subject land, would have more influence on the residential redevelopment than would the proposed use”.  In this way, the court appeared to answer the second question in the negative.

8     The court then considered potential impacts of the development.  It described as chief among them that of noise.  It referred to the present noise problems associated with a nearby hotel and indicated that it was satisfied that, subject to further attenuation works, recommended by the acoustic engineer, being carried out, the development would not be materially in conflict with the aim of Principle P41, that resultant noise emission should not detrimentally affect the amenity of adjacent properties or the locality of the development.  The court also considered questions of access, servicing and parking, safety and security.  Thus all three questions were answered in the negative.

9     It is complained that in reaching its conclusions, the court was in breach of principles enunciated in Beer v SA Planning Commission[1] and other later authorities of this Court[2].  It is said that the appropriateness of the proposed land use must be considered first, with conditions imposed on an approval to be considered only after the land use has been judged as appropriate. In Remove All Rubbish, Jacobs J said[3]:

“The primary concern of a planning authority is to control land use and the first question to be addressed should always be whether in the circumstances the proposed development is at least prima facie a suitable and appropriate use of the subject land having regard to the provisions of the development plan.  To approach a planning decision by framing conditions designed to make the proposal suitable and appropriate is to bypass the primary question.”

[1] (1998) 141 LSJS 20 at 25

[2]               Farrow v Planning Commission (1988) 145 LSJS 284 at 289; Remove All Rubbish Pty Ltd v City of Salisbury (1989) 51 SASR 26 at 34 and SA Housing Trust v Lee (1993) 81 LGERA 378 at 390

[3] (1989) 51 SASR 26 at 34

10   I think the respondent is correct and that the court did not offend the principle considered in the cases cited.  This was not a case that could be described as an attempt to render a proposed development compatible with the amenity of the surround locality by hedging it about with a series of conditions[4].  The proposal in this case was clear from the beginning against the club’s activities in St Peters and the continuation of them in the city.  The proposal contained a certain level of activity.

[4]      Debelle J in Lee (1993) 81 LGERA 378 at 390

11   It should be noticed that after hearing evidence and submissions, the members of the court retired to subsequently return and give an intimation of its views on the appropriateness of the use and its assessment against the development plan.  It then invited the parties to address it on what conditions might be appropriate.  This procedure did not involve considering the imposition of conditions before assessing the suitability of the proposed use and its potential planning impacts.

12   The conditions were not framed to make the proposal suitable and appropriate.  The primary question was not bypassed.  The court properly satisfied itself that the land use was appropriate and that its impact on the amenity of the locality would not be detrimental.  Conditions 2 - 5 and 7 were not imposed to make the proposed use suitable and appropriate.  An alternative contention that those conditions were unassailably uncertain or practically unenforceable was not pressed in the course of submissions.  Counsel for the appellant indicated that if the question of law advanced failed it would prefer to have the conditions maintained.

13   The court has not misdirected itself in law.  The appeal should be dismissed.

LANDER J

14   I agree with the reasons given by Prior J that the appeal should be dismissed.

WICKS J

15   For the reasons given by Prior J, I agree that the appeal should be dismissed.