Adelaide City Council v O'CONNELL Property Group Pty Ltd - [2007] SASC 313

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
ADELAIDE CITY COUNCIL v O'CONNELL PROPERTY GROUP PTY LTD
[2007] SASC 313
Judgment of The Honourable Justice Debelle
23 August 2007
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - COMMERCIAL USES - HOTELS AND MOTELS
Application for extension of hours of operation of licensed premises – Development Plan provides that late night entertainment should be a secondary use – Development Plan provides that development should enhance residential amenity – whether Commissioner correctly interpreted Development Plan - whether Commissioner erred in extending hours of operation – appeal allowed.

ADELAIDE CITY COUNCIL v O'CONNELL PROPERTY GROUP PTY LTD
[2007] SASC 313
Land and Valuation Division

DEBELLE J. This is an appeal from a decision of a Commissioner of the Environment Resources and Development Court.
The appeal concerns the redevelopment of what was formerly the Hotel Adelaide located on the south-west corner of the intersection of O’Connell Street and Brougham Place, North Adelaide. The respondent holds development approvals for the redevelopment of the site. The proposed development will comprise 91 residential apartments, retail shops at ground level, a bar, restaurant and gaming facility also at ground level as well as multi level car parking. The car parking is not intended to serve patrons of the bar, restaurant and gaming facility.
The development consent includes conditions relating to the hours on which that part of the premises to be used as a bar, restaurant and gaming facility may operate. That part of the premises will be licensed under the Liquor Licensing Act 1997 and, for convenience, I will call it “the licensed premises”. The development consent prescribes the hours when the respondent may operate the licensed premises. They are from 7.00 am to midnight on Sundays to Thursdays and from 7.00 am to 2.00 am on the following morning on Fridays and Saturdays.
The land which is the subject of the development consent is within the area of the Corporation of the City of Adelaide (“the Council”). Notwithstanding that the redevelopment is not yet complete and the licensed premises have not begun to trade, the respondent on 5 July 2006 applied to the Council to extend the hours of operation of the licensed premises. The application sought to extend the hours to 2.00 am on Sundays to Thursdays, an additional two hours, and to extend the hours until 3.00 am on the following day on Fridays and Saturdays, an additional one hour. If granted, the new hours will be:
Sunday to Thursday 7.00 am to 2.00 am
Friday and Saturday 7.00 am to 3.00 am on the following day.
The Council refused the application. Its reasons for refusal were as follows:
1. The development does not reinforce the desired character of the locality in accordance with City Wide Objectives 26, 27, 82, 83, 84 and Principles 85, 86, 87, 88, 89, 92 and 271.
2.The proposed development will not strengthen, achieve and be consistent with the desired character for the Zone in accordance with Zone Objective 1 and Principle 1.
3.The development does not ensure a high quality living environment is achieved in accordance with Council Zone Principles 3, 4 and 5.
The reasons were stated in the notice informing the respondent of the Council’s decision.
The respondent appealed against the Council’s decision to the Environment, Resources and Development Court (“the Environment Court”). A Commissioner of the Environment Court allowed the appeal and granted provisional development plan consent for the extended hours. From that decision, the Council has appealed to this Court.
The Existing Development Consent
The respondent has secured two development approvals for the proposed development. The Commissioner found that the second approval had superseded the first. The development consent approved, among other things, 32 gaming machines, a bar for 40 persons and a small restaurant with 49 seats. The premises will be capable of holding 129 patrons at any one time. The hours of operation were one of the conditions of development consent. They were shorter than the hours which had been sought in the development application. The respondent did not appeal against the hours granted in the second approval. There is an element of opportunism on the part of the respondent in seeking to extend the hours before it has commenced operation and before it has been able to observe how the licensed premises operate. The rationale for the application is said to be a desire to seek some kind of parity with hotels along O’Connell Street. The hours granted by the Commissioner in the Environment Court are the second longest permitted hours in hotels along O’Connell Street. However, as the Commissioner found, the operating hours initially granted to the respondent are similar to, if not more favourable than, four of the seven hotels in the North Adelaide area.
It must also be noted that the fact that the respondent’s trading hours might be less than other hotels along O’Connell Street is not in itself a reason for allowing the application. Those hours were permitted under a different planning régime which did not have the restrictions which are expressed in the current Development Plan.
Locality
The Commissioner defined the locality as an area extending some 150 to 200 metres from the subject land. The locality was defined by reference to the effect of the proposed extended hours. Those effects were described by the Commissioner in these terms:
[T]he locality boundary in this matter is to be based on visual impacts, the likely extend of patron on-street car parking locations (given no available off-street parking for the patrons of the subject premises), potential noise impacts (patrons and music at the premises) and noise/nuisance/behavioural impacts from departing patrons moving either to their parked cars or elsewhere.
The locality included properties to the south of the development on the southern side of Brougham Place, to the west along Brougham Place and Palmer Place, to the east along Brougham Place, west and east along Ward Street and north to the corner of Archer Street and O’Connell Street. There is no appeal against the definition of the locality.
The Commissioner noted that no off-street parking is to be provided for the patrons of the licensed premises. He noted that it is relatively common for patrons of restaurants and licensed premises in North Adelaide to walk up to 200 metres (if not further) at peak times from available on-street parking to the premises they intend to frequent. The Commissioner also referred to the fact that there is quite of deal of movement of people, sometimes in large numbers, through the whole of the locality.
The Commissioner described the nature of the development in the locality. He estimated that, in addition to the 91 apartments which will be in the respondent’s development, there were some 235 dwellings in the locality. In addition, there is a number of retail premises, offices, consulting rooms, commercial premises (including licensed premises) and community uses. His assessment was that there were about 350 on-street car parking spaces in the locality and within 200 metres of the respondent’s premises.
The Development Plan
The Council’s Development Plan contains a number of provisions which apply generally throughout the Council area, the so-called “council-wide provisions”. It also contains detailed provisions for particular zones or policy areas which have been created by the Development Plan. Some of the zones also have policy areas which also contain detailed provisions. As will be seen, the provisions for these zones and policy areas prevail over the council-wide provisions.
The respondent’s land is within a strip zone which runs north on either side of O’Connell Street from the intersection of O’Connell Street and Brougham Place. It is called the Mainstreet (O’Connell) Zone. The Development Plan states that the provisions for the Mainstreet (O’Connell) Zone take precedence over the more general council wide provisions and that “in the assessment of development, the greatest weight is to be applied to satisfying the desired character for the Zone”.
The provisions for this zone begin with a statement of the desired character for the zone. The relevant provisions in the Statement of Desired Character are as follows:
The Zone will be managed and enhanced as the main focus for retail, commercial and community activities in North Adelaide. Development will reinforce the role and image of the Zone as an attractive linear shopping centre with a distinctive village character and amenity through the redevelopment of buildings that are not identified heritage places and vacant sites, and through a concentration of activities at the North Adelaide Village and opposite through redevelopment of the land bound by O’Connell, Tynte, Archer and Centenary Streets. The traditional commercial architecture and low scale of closely developed buildings in the Zone will be complemented by further development, creating a cohesive townscape along O’Connell Street…
Medium density residential development is desirable, particularly at upper levels and at ground floor level at the rear of O’Connell Street frontages. Late night entertainment activities should remain limited and few in numbers and function as a secondary use to primary uses in the Zone.
The Zone will retain a high degree of vehicle accessibility, with O’Connell Street continuing as a major traffic and public transport route, with priority given to public transport wherever possible.
Safe and convenient pedestrian movement to and through the Zone will be maintained, centred on the North Adelaide Village Centre and O’Connell Street. Street trees, landscaping and attractive paving and street furniture will continue to enhance amenity for pedestrians.
The impacts of development will be carefully controlled and managed to ensure the enhancement of amenity for residential development within the Zone and in neighbouring Zones so as to ensure the achievement of a high quality residential living environment. (Emphasis added)
It will have been noticed that the emphasised passages state the desired objective that late night entertainment should remain limited and few in number and function as a secondary use to the primary uses in the zone and that any development should ensure the achievement of a high quality residential environment.
The last paragraph of the Statement of Desired Character has particular relevance in this appeal. It does not say (as a number of other development plans do) that a proposed development should not adversely affect the character and amenity of an area, be it a neighbourhood or locality. Instead, it expresses a more positive objective, namely, that development should “ensure the enhancement of amenity for residential development within the zone and in neighbouring zones so as to ensure the achievement of a high quality residential living environment” (Emphasis added). This provision expressly requires enhancement of residential development both in the zone and in neighbouring zones. On occasion, development in one zone has the potential to cause adverse effects in a neighbouring zone and this may lead to difficulty in applying the competing provisions of the Plan. However, that difficulty has been removed in this case by the terms of the last paragraph. As will be seen the reference to enhancing the amenity of residential development in neighbouring zones is of particular relevance in this appeal. The closing words of the last paragraph of the Statement of Desired Character clearly state that the intent is to ensure the achievement of a high quality residential living environment. It is quite apparent that, while the Development Plan provides for a number of forms of development in this zone, these provisions express in unqualified terms the intent that development shall be of a kind that will ensure a high quality residential environment both in the zone and in neighbouring zones.
There is only one Objective for this zone which is in these terms:
Development that strengthens, achieves and is consistent with the desired character for the Zone.
That objective only serves to reinforce the intent expressed in the Statement of Desired Character. The zone provisions also include Principles of Development Control. It is sufficient to note Principles 1 to 5:
1Development should strengthen, achieve and be consistent with the desired character for the Zone.
2The Zone should accommodate a range of retail, office, leisure, community and associated uses as the primary land use mix. The integration of medium density residential developments is desirable, particularly at upper levels or at ground level at the rear of O’Connell Street frontages.
3Outdoor eating and drinking facilities, in association with cafes, restaurants and licensed premises, are appropriate along O’Connell Street, but may also be appropriate elsewhere provided such facilities do not impact on the achievement of a high level of residential amenity.
4Late night entertainment activities, such as licensed entertainment premises and hotels with entertainment, are secondary to the primary land use mix in the Zone and should be limited and few in numbers.
5Development should ensure a high quality living environment is achieved for residential development within and adjoining the Zone.
Those principles, especially Principles 1, 3, 4 and 5, also reinforce the intent expressed in the Statement of the Desired Character for the zone.
The land on each side of the subject land (and on each side of the Mainstreet (O’Connell) Zone) forms part of the North Adelaide Historic (Conservation) Zone except for the gardens between Brougham Place and the Women’s and Children’s Hospital which are part of the Park Lands Zone. The North Adelaide Historic (Conservation) Zone is divided into policy areas. The provisions for this zone also take precedence over the council-wide provisions.
The Objectives for the North Adelaide Historic (Conservation) Zone are to preserve the historic character of North Adelaide, to keep development compatible with that historic character, and to retain existing housing through the retention of heritage places and to increase housing by a change in the use of non-residential buildings for residential purposes.
Four of the policy areas within the North Adelaide Historic (Conservation) Zone are relevant in this appeal. The introduction to the provisions for each policy area state that the provisions for the policy area take precedence over the zone provisions (which in turn take precedence over council-wide provisions). The introduction also states that, when assessing development, “the greatest weight is to be applied to satisfying the desired character for the Policy Area”. I will return to consider the implications of that provision. The four policy areas are:
1Carclew Policy Area 5 which includes development on either side of Ward Street west of O’Connell Street. The first paragraph of the Statement of Desired Character for this policy area is in these terms:
The Carclew Policy Area should be conserved as one of the most attractive and historically significant residential areas on the City.
2Margaret Street Policy Area 6 which is a large area extending north from Ward Street immediately to the east of the Mainstreet (O’Connell) Zone. The first sentence in the Statement of Desired Character for this Policy Area expresses the intent of preserving it as a residential area:
The Margaret Street Policy Area should be conserved as one of the most historically intact residential areas in South Australia.
3Le Fevre Policy Area 7 which includes development in the area bounded by Ward Street on the east side of O’Connell Street, Le Fevre Terrace and Brougham Place east of O’Connell Street. The first sentence of the statement of the desired character for this zone reads:
The Le Fevre Policy Area should maintain a prime residential frontage overlooking the Park Lands comprising large low density residential buildings designed in a grand manner and set in generous landscaped grounds.
4Cathedral Policy Area 8 which includes development on the southern arm of Brougham Place which faces towards the respondent’s development. The first sentence of the statement of the desired character of this policy area is in these terms:
The Cathedral Policy Area should be maintained as a predominantly residential area and its unique character which is established by its distinctive typography, diverse range of nineteenth century architecture and its extensive Park Lands frontages, should be conserved.
These Statements of Desired Character all express the objective of seeking to preserve the existing high quality residential development in each of these policy areas. The first objective for each policy area is expressed in identical terms and pursues the same objectives. It reads, “Development that strengthens, achieves and is consistent with the desired character for the Policy Area”.
The Development Plan has other provisions which seek to preserve the amenity of residents in residential areas of the City of Adelaide. They include three council-wide provisions, Objective 83 and 84, and Principle of Development Control 271(f). Objectives 83 and 84 are in these terms:
Objective 83: Mainstreet Zones along O’Connell, Melbourne and Hutt Streets with restricted potential for further expansion or intensification of commercial activity due to car parking demands and the need to protect the amenity of neighbouring residents in the residential areas.
Objective 84: Mainstreet Zones along O’Connell, Melbourne and Hutt Streets developed with an increased component of residential accommodation and with enhanced vitality and character while effectively managing their impact to protect amenity in adjacent residential areas.
Principle 271(f) states that development should have “minimal adverse impact on surrounding residential areas”.
Other relevant Objectives and Principles of Development Control in the council-wide provisions of the Development Plan appear under the heading “Operating Hours and Associated Activities of Licensed Premises”. They are Objective 26 and Principles 85 and 86. They are in these terms:
Objective 26: Operating hours of licensed premises or licensed entertainment premises, together with associated activities of such premises, established and operated so as to reinforce the desired character of the locality and appropriate behavioural activities.
PRINCIPLES OF DEVELOPMENT CONTROL
85 Licensed premises and licensed entertainment premises or similar should:
(a)be located, designed and operated in order to reinforce the desired character of a locality, as expressed in the relevant Zone or Policy Area;
(b)be located, designed and operated so as to not negatively impact on peoples orderly use and enjoyment of a locality, such as through disorderly behavioural activities and/or disorderly behavioural movement to and from such land uses; and
(c)incorporate best practice measures to effectively manage the behaviour of users moving to and from such land uses.
86Licensed premises and licensed entertainment premises or similar should operate with operating hours to reinforce the desired character of the locality.
Those provisions are quite specific in their reference to operating hours. I will return to them.

Although the Commissioner referred to all of these provisions in the reasons for his determination when listing the relevant provisions in the Development Plan, he failed to give effect to the clear intent of these provisions. The reasons for this conclusion appear below.
The Commissioner’s Decision
The Commissioner described the uses for which the respondent sought the extended hours as “a mix of commercial, entertainment/leisure service retail in nature”. This description is curious. The application for the extended hours essentially concerns the licensed premises, that is to say, the bar, restaurant and gaming facilities. The nature of those uses is best described as entertainment and leisure activities.
The Commissioner first considered the proposed land use with extended hours against the provisions for the Mainstreet (O’Connell) Street Zone and concluded that it was not an unreasonable proposal. He relied principally on the fact that the Statement of Desired Character, Objective 1 and Principle of Development Control 1 for that zone all refer to development being a mix of retail, office, leisure, community and associated uses. He then identified other provisions which seek to preserve the amenity of residents in residential areas. They included Objectives 83 and 84, Principle 271(f), the last paragraph of the Statement of Desired Character for the Mainstreet (O’Connell) Street Zone and Principles 3 and 5 of the Principles of Development Control for that zone. These have already been quoted.
The Commissioner then identified what he called a “conundrum”. He asked:
Are the concepts of enhancement of amenity for residential development (within and in neighbouring adjacent zones) and achievement of a high quality residential living environment, compatible and achievable given the primary and secondary land use mix sought, the enhanced “vitality” sought and the reality of the extent and nature of existing development along O’Connell Street in the MS(O’C)Z?
The Commissioner believed that it was difficult to resolve the issue because of “the absence of a specific guide” in the Development Plan and in the Mainstreet (O’Connell) Zone “as to where the balance of interests should lie” for premises of this kind in this area. This so-called conundrum was to infect the Commissioner’s reasons.
The Commissioner’s resolution of the conundrum was expressed in these terms:
39I assess that the proposed extended hours of operation for the approved uses/activities may be potentially compatible with the achievement of a high quality residential living environment, at least to the extent evident at present, subject to a detailed impacts assessment. However, it is difficult to find that any increased hours of operation of the premises into the usual sleeping period for most people would enhance amenity for them, whether they are located within the MS(O’C)Z or the nearby adjacent/neighbouring residential policy areas. If the degree of negative impact is assessed to be acceptable, that may not be fatal to the application.
The Commissioner identified the kinds of noise flowing from the increased hours which might adversely affect the residential amenity. They were:
1The noise caused by patrons as they walk to or from the premises and come or leave in motor vehicles parked in or near dwellings; and
2The nuisance or annoyance caused by antisocial conduct of patrons going to or departing from the premises on foot or in their cars as well as in taxis or buses.
He found that it was unlikely that noise from music played in the premises or the voices of patrons while in the premises would have a detrimental effect. There is no appeal against these findings.
The Commissioner found that it was likely that the level of disturbance would be relatively small. He relied on the evidence of Ms Lovell, a traffic engineer called by the defendant. He made the following finding:
46The evidence of Ms Lovell, with no other contrary numbers put forward, but based very much on assumptions rather than hard research data, is that up to 7-10 additional departure movements in the extended hours sought, might arise and it is these that could impact on residents in the locality. Given the spread of on-street parking in the locality (with several choices of locations), it may mean on that basis an additional one or two additional vehicles of patrons using the subject premises leaving in the extended hours in front of particular dwellings. That is a very low number. In addition, such departures in those hours are perhaps equally likely from patrons of other licensed premises in MS(O’C)Z or the Cathedral Area or from the Park Lands-River Torrens and CBD areas, or indeed from late evening visitors to residential use (apartments, university colleges or dwellings), within the locality.
The last sentence is curious. It does not assist the Commissioner’s reasoning. Persons leaving the other licensed premises to which the Commissioner referred are not likely to be using residential streets in the residential neighbourhoods of North Adelaide. The likelihood is that they will be passengers in taxis or driving their own motorcars along arterial roads such as King William Street and O’Connell Street. They will be part of the ordinary flow of traffic along such roads. He then added that, as the licensed premises are small when compared with other hotels in North Adelaide, the smaller numbers leaving the licensed premises in the extended hours who would be likely to cause any nuisance would be low.
The Commissioner concluded by stating that he found the issues to be “finely balanced”. He continued:
54I conclude that whilst the variation is unlikely to enhance residential amenity, although longer hours may hold some attractiveness to some future residents in the redeveloped building or elsewhere in the locality, the degree of impact on residential amenity will be relatively minor and the Development Plan guidelines seeking a high quality residential environment will be sufficiently met given the locality context. The proposed degree of intensification of commercial-licensed premise land uses and activity is acceptable in this context.
55I am minded to allow the appeal but approving more limited hours– that is Sunday-Thursday until 2am as sought but Friday, Saturday retained at 2am and not increased to 3am. In terms of the latter, I do so on the basis that another licensed premise with longer evening hours to 3am may cause significant movement of patrons from one licensed premise to another after others close at 2am, or earlier, thereby increasing potential impacts in the subject locality in the later hours to an unreasonable extent. I understand from counsel that the appellant may be amenable to this minor amendment, however, in the interest of procedural fairness, I will allow the opportunity for each party to place further submissions, and if considered critical, further evidence, regarding this mooted outcome and the contents/wording of further conditions of consent.
For the reasons which follow, the Commissioner has failed to give proper effect to the true intent of the Development Plan. In the result, his conclusion that the issues are “finely balanced” has the consequence that this appeal must be allowed and the decision of the Council refusing the extended hours must be restored.
No Conundrum Exists
An examination of the Commissioner’s reasons shows that, although he has referred to all of the relevant provisions in the Development Plan, he has either failed to interpret them correctly or has not fully understood their intent and effect. The Commissioner’s reasons indicate that he believed the provisions for the Mainstreet (O’Connell) Zone speak with mixed voice. In his view, there is a conflict between those provisions which state that the zone is to be the focus for retail, commercial and community activities in North Adelaide and those provisions which state that the development is to be managed so as to protect the residential amenity and to ensure a high quality living environment. It is this conflict, as he perceives it, which leads to his conundrum.
In truth no conundrum exists. With all respect the conundrum is of the Commissioner’s own making. For the reasons which follow, the provisions of the Development Plan are quite clear. The provisions of the Mainstreet (O’Connell) Zone do not speak with mixed voice. If due regard is had to them, it is readily apparent that the answer to the Commissioner’s question in paragraph 38 of his reasons is, Yes. Late trading hours for licensed premises will only be permitted if they will not adversely affect the residential amenity and, indeed, only if they will enhance the residential amenity. The Development Plan is replete with references to those objectives for this zone.
The Intent of the Development Plan
The intent of the Development Plan is clearly expressed in the provisions for the Mainstreet (O’Connell) Zone as well as in the council‑wide provisions. Although the provisions for the zone take precedence over the council‑wide provisions, in this case there is no inconsistency between them. Both express the same objective, namely, that late‑night entertainment activities should not impair the amenity of residential development in the locality. It is convenient to list the relevant provisions in the Plan:
1Objective 26 of the council-wide provisions requires that licensed premises should be established and operated with hours that reinforce the desired character of the locality.
2Principles 85 and 86 reinforce Objective 26, especially Principle 86 which expressly states that licensed premises and licensed entertainment premises should operate with operating hours to reinforce the desired character of the locality.
3Objectives 83 and 84 in the council-wide provisions expressly require that Mainstreet Zones, which includes the Mainstreet (O’Connell) Zone, are to be developed in a way to protect amenity in adjacent residential areas.
4The Statement of Desired Character for the Mainstreet (O’Connell) Zone expressly states, “late-night entertainment activities should remain limited and few in number and function as a secondary use to primary uses in the Zone”. The stated objective that late-night entertainment should be a secondary use to primary uses in the zone is a clear indication that late-night entertainment is not to be permitted adversely to affect other forms of development. That objective is reinforced by Principle of Development Control 4 for the Mainstreet (O’Connell) Zone which repeats the terms of the sentence just quoted from the Statement of Desired Character.
5The final sentence in the Statement of Desired Character continues the same theme that is expressed in the above provisions and requires careful control of the effects of any development within the zone. It positively requires the development to be controlled and managed to ensure the enhancement of amenity of residential development within the zone and in neighbouring zones. What the Statement of Desired Character for the Mainstreet (O’Connell) Zone emphasises is the control and management of development.
When all of these provisions are read together, it is readily apparent that the Development Plan expresses in clear and unambiguous terms its intent in relation to development associated with licensed premises in North Adelaide. The intent in relation to late night entertainment (which includes the respondent’s licensed premises) could hardly be clearer. The clear objective is that licensed premises and other forms of late night entertainment are to be a secondary use and shall have no adverse impact on residential areas in North Adelaide. That is to state the intent more negatively than it is stated in the last sentence of the Statement of Desired Character for the Mainstreet (O’Connell) Zone, which requires development to be managed and operated to enhance the amenity of residential development, an intent entirely consistent with Objective 26 of the council-wide provisions.
The Development Plan particularly seeks to preserve the amenity of the residential areas of North Adelaide. That intent is spelled out in the provisions relating to the policy areas which constitute the North Adelaide Historic (Conservation) Zone but, more relevantly for this appeal, by the provisions of the Mainstreet (O’Connell) Zone and especially the extracts quoted above. The term “amenity” refers to the qualities of a residential area which contribute to making it a pleasant place in which to live. One aspect of residential amenity is the ability to enjoy uninterrupted sleep late at night or in the early hours of the morning. Noise late at night or in the early hours of the morning has a detrimental effect on residential amenity in that it wakens persons sleeping at those hours.
One of the most obvious, if not notorious, ways in which licensed premises have the capacity adversely to affect the amenity of a residential neighbourhood is noise made by patrons going to or leaving licensed premises late at night or in the early hours of the morning. They are what the Commissioner referred to as “noise/nuisance/behavioural impacts” when determining the extent of the locality. In paragraph 41 of his reasons, he classified the causes of the noise impacts.
Operating hours of licensed premises directly relate to what the Development Plan calls “the impacts” of the operation of those premises upon residential development in the locality. Generally speaking, the longer the hours, the greater the opportunity for those who patronise licensed premises to act in a way which has the capacity detrimentally to affect the amenity of residential development. That is one reason for the sentence in the second paragraph of the quoted extract from the Statement of Desired Character for the Mainstreet (O’Connell) Zone which seeks to limit late‑night entertainment activities.
While the provisions of the Development Plan are not mandatory in their operation, effect should be given to a clear statement of the intent of the Plan. Unless that is so, the Plan becomes a meaningless, if not pointless, document. The Development Plan clearly states that late‑night entertainment activities should be limited. A planning authority should, therefore, be slow to depart from that stated objective. In addition, the provisions for this zone clearly state that development will enhance the residential amenity in residential areas in the neighbourhood of this development. A planning authority must have regard to that objective. The residential amenity will not be enhanced by licensed premises trading in the early hours of the morning. The Commissioner correctly found that “it is difficult to find that any increased hours of operation of the premises into the usual sleeping period for most people would enhance the amenity for them, whether they are located within the Mainstreet (O’Connell) Zone or the nearby adjacent/neighbouring residential policy areas”. The clear intent of the Development Plan is that an extension of trading hours of licensed premises will only be permitted if they enhance the residential amenity. It is clear, therefore, that an operator of licensed premises has a difficult onus to discharge when seeking an extension of trading hours into the early hours of the morning.
That conclusion as to the intent of the Development Plan for the Mainstreet (O’Connell) Zone is reinforced by a consideration of the recent history of the Development Plan. Before 12 January 2006, the provisions for the Mainstreet (O’Connell) Zone did not expressly refer to late‑night entertainment activities or require that they remain limited and few in number. In addition, there were no provisions such as Objective 26 or Principles 85 and 86. When read together, the introduction of such provisions, the statement that late‑night entertainment activities should be limited and few in number and be a secondary use in this zone, and the last paragraph of the Statement of Desired Character, signal an intention to ensure that hours of licensed premises should be limited in residential areas and that the operation of licensed premises does not adversely affect the amenity of residential development in the locality.
Trading Hours and the Surrounding Residential Development
A number of the kinds of development which are envisaged for the Mainstreet (O’Connell) Zone have the capacity adversely to affect different aspects of the residential amenity in the zone and in neighbouring residential zones. For example, the offices, shops and other retail outlets which predominate along O’Connell have the capacity to cause traffic in residential streets. What is to be noticed, however, is that the kinds of use to which Principle of Development Control 2 refers, namely, “a range of retail, office, leisure, community and associated uses” intended as the “primary land mix” for this zone are, in the main, uses which operate between about 7 am and, say, 9 pm on each weekday. Some do not operate or have lesser hours during weekends. Cafés and restaurants will, generally speaking, operate at varying hours up to about midnight on most, if not all, days in each week. The only kinds of uses likely to be open after midnight might be the occasional restaurant as well as each of the hotels along O’Connell Street.
There is little residential development in the Mainstreet (O’Connell) Zone. The residential development in the locality is largely to be found in the residential policy areas already mentioned which form part of the North Adelaide Historic (Conservation) Zone. They are attractive residential areas of high quality. As Mr Rolfe, one of the town planning witnesses, noted, about one half of the buildings in the locality in which the licensed premises will be situate are used for residential purposes. Apart from two restaurants, there are no other licensed premises in the locality. The other development is a mixture of retail shops, consulting rooms and offices, none of which is likely to be open any later than about 9 pm.
The respondent’s licensed premises and the two restaurants will, therefore, be the only premises in this relevant locality open after 9 pm. The hours of operation initially granted to the respondent were relatively generous. They have a real capacity detrimentally to affect the amenity of the neighbouring residential development, especially the later trading hours on Fridays and Saturdays. The respondent’s application is to extend the hours even further from midnight on Sundays to Thursdays to 2 am in the morning and from 2 am to 3 am on Fridays and Saturdays. It is not difficult to conclude that these extended hours will adversely affect the residential amenity. The evidence was that there would be a degree of disturbance caused by those coming to or leaving the licensed premises. In addition, as Mr Rolfe said in his evidence, if the respondent’s premises are able to remain open after others have closed, there will be those who will move to the respondent’s premises after other licensed premises have closed bringing added disturbance to the amenity as they arrive and depart. A fortiori, the residential amenity will not be enhanced by an extension of hours. Such an extension of hours is entirely inconsistent with the unambiguous terms in which the Development Plan seeks to balance the interests of licensed premises with those who reside in the locality of each of those premises. It follows that the Council correctly decided that the application for extended hours should be dismissed. The Commissioner’s decision is flawed by his failure to give effect of the intent of the Development Plan and must be set aside.
A Contrast with Other Zones
A comparison with other parts of the Plan reinforces the conclusion. The part of North Adelaide which comprises the relevant locality includes residential development of quite a higher standard than that which is to be found in the Mixed Use Zone. The Mixed Use Zone comprises part of the City of Adelaide. It includes that part of the City Square west of Morphett Street and north of Gouger Street as well as that part of the City Square east of Pulteney Street and north of Angas Street. The Mixed Use Zone includes Principle 33 which prescribes the hours of operation for licensed premises and licensed entertainment premises in Rundle Street and Hindley Street west. It is in these terms:
Licensed premises and licensed entertainment premises or similar should operate as follows:
(a)Rundle Street – should be closed to the public from no later than 3.00am on any morning and not reopen to the public for the sale of alcohol before 7.00am on any morning. Any live entertainment should cease at 1.00am; and
(b)Hindley Street West – should be closed to the public from no later than 2.00am on Sunday to Tuesday and 5.00am on Wednesday to Saturday and not reopen to the public for the sale of alcohol before 8.00 am from Monday to Friday and 9.00am on Saturday and Sunday.
The provisions of the Mainstreet (O’Connell) Zone are to be contrasted with the provisions in the Mixed Use Zone, which concern Rundle Street and Hindley Street. The Mixed Use Zone does not have any provision to the effect that late‑night entertainment should remain limited, few in number and function as secondary use. To the contrary, the zone is intended to accommodate hotels, cafés and restaurants. In contrast, the respondent’s premises are in a locality which is altogether different in character from the Central Business Zone and the Mixed Use Zone for Hindley Street and Rundle Street. It is a locality with a high residential amenity. It is, therefore, quite understandable that the Development Plan will seek to protect, preserve and enhance that high residential amenity of this locality. The absence of any prescription for the hours of operation in the Mainstreet (O’Connell) Zone is to enable a planning authority to tailor hours to the requirements of the locality so as to ensure that they will not cause any detriment to the residential environment.
Conclusion

In short, while the Development Plan allows for retail, commercial and community activities (which include licensed premises), the Plan seeks to ensure that residential areas are not adversely affected. Whatever other difficulties might exist in ensuring that those who use land for retail, commercial or community activities do not adversely affect the residential amenity in neighbouring zones, it is clear that hours of operation must respect the residential amenity. In other words, late night activities which do not enhance the residential amenity will not be permitted. By this means, a balance is preserved between the interests of those who seek to develop commercial enterprises and the interests of the residents in the locality. It is not unreasonable for residents in the locality to be able to enjoy uninterrupted sleep after about midnight.
In reaching this conclusion, I have not had regard to the provisions of the policy areas other than to note that they are described as being attractive residential areas which the Development Plan seeks to preserve. The provisions of the Mainstreet (O’Connell) Zone are clearly grounded on the fact that they are attractive residential areas. That is clearly evident from the last paragraph of the Statement of the Desired Character for the zone which it is convenient to repeat:
The impacts of development will be carefully controlled and managed to ensure the enhancement of amenity for residential development within the Zone and in neighbouring Zones so as to ensure the achievement of a high quality residential living environment.
That passage quite explicitly refers to the high quality of the residential environment in neighbouring zones and seeks to enhance it.
The Commissioner’s conclusion that the issues are finely balanced is grounded on his misunderstanding of the true meaning and intent of the Development Plan. A proper understanding of the Development Plan shows that the issues are not finely balanced. Instead, the balance is clearly weighed in favour of denying any extension of the trading hours. Notwithstanding that this court does not, as a general rule, decide planning issues of this kind, the Commissioner has so clearly failed correctly to apply the provisions of the Development Plan that this is a proper case in which this court might itself decide the question and not remit the matter to the Environment Court. This court should allow the appeal and restore the decision of the Council.
The appellant relies on other grounds. There was some force in them but it is not necessary to deal with them.
For these reasons, there will be orders as follows:
1 Appeal allowed.
2Set aside the decision of the Environment, Resources and Development Court delivered on 1 June 2007 and in lieu thereof order that the appeal to the Environment, Resources and Development Court from the decision of the Adelaide City Council made on 23 October 2006 be dismissed