Angelo Agius v Corporation of the Town of Gawler and Town and Country Proprietors Pty Ltd No. SCGRG 92/2779 Judgment No. 3915 Number of Pages 11 Town Planning and Development

[1993] SASC 3915

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Town planning and development - appeal from Planning appeal Tribunal - proposed entertainment facility and restaurant - no provision for off-street parking by proposed development - Tribunal held insufficient off-street parking available and refused approval - appeal from Tribunal dismissed. Planning Act 1982. Transfield (Adelaide) Pty Ltd v City of Port Augusta
(1982) 29 SASR 467, Town of Walkerville v Adelaide Clinic Holdings Pty Ltd
(1985) 38 SASR 161 and Penley v DC of Murray Bridge (1992) 163 LSJS 128, applied.

HRNG ADELAIDE, 23 April 1993 #DATE 23:4:1993
Counsel for appellant:             Mr J Elhinney
Solicitors for appellant:         Ross and McCarthy
Counsel for respondent Gawler:     No appearance
Counsel for respondent Town:     Mr B Hayes QC with
   Ms J Trenorden
Solicitors for respondent Town:    Piper Alderman

ORDER
Appeal dismissed.

JUDGE1 DEBELLE J Mr Agius applied to the Corporation of the Town of Gawler ("the Council") for planning authorization to use portion of a parcel of land in Gawler as an `entertainment facility to operate pursuant to a general facility licence'. The reference to a general facility licence is a reference to a licence under ss.43 and 44 of the Liquor Licensing Act 1985. As its name implies, it authorises the sale of liquor in a variety of situations. The appellant proposed to use the premises for a number of purposes including an entertainment venue, accommodating concerts and featuring entertainers and other artists, to provide accommodation for cabarets, for wedding receptions and other like functions. He also intended to use part of the premises as a restaurant. The restaurant was to be used every day of the week and was capable of seating approximately fifty people. 2. The application was one to which the provisions of s.53 of the PlanningAct 1982 applied. The Council gave notice of a proposal, in accordance with the provisions of s.53. It received a number of representations in relation to the proposal. One of those representations was from Town and Country Proprietors Pty Ltd, the second respondent. 3. On 23 June 1992 the Council approved the proposal, subject to four conditions. Those conditions were as follows -:
    `1. The proposed hours of operation of the premises be
    restricted to the following times:
    2 Sunday to Wednesday (inclusive) - 11 a.m. to 12
    midnight. Thursday to Saturday (inclusive) - 11 a.m. to
    2 a.m. the following day.
    2. The maximum number of persons to accommodated within
    the premises at any one time shall not exceed 400.
    3. The subject land shall be maintained to the
    reasonable satisfaction of Council at all times.
    4. Not less than two security personnel shall be
    employed to control public areas within the immediate
    vicinity of the subject land to ensure that patrons
    arriving at and leaving the premises do so in an orderly
    manner so as to cause minimal disturbance and nuisance
    to nearby residential properties. Such security
    personnel shall patrol the public areas at least one
    hour prior to and one hour after an event taking place
    in the entertainment facility.' 4. Town and Country Proprietors Pty Ltd appealed to the Planning Appeal Tribunal against the grant of the planning authorization by the Council. After hearing evidence, the Tribunal allowed the appeal and reversed the decision of the Council. From that decision, Mr Agius appeals to this court. Although the Council was a party to the appeal in the Tribunal, the Council has not appeared on the hearing of the appeal in this court. It submits to whatever order the court should make. For the purposes of this appeal, therefore, the protagonists are the appellant and the objector to the proposal, Town and Country Proprietors Pty Ltd. 5. The proposed development is located in Julian Terrace, Gawler, near the intersection of Julian Terrace and Adelaide Road and just to the west of the junction of Adelaide Road and Murray Street, Gawler. Murray Street is the main business thoroughfare in Gawler. 6. The land, which the appellant proposes to be developed, is within a District Commercial Zone as prescribed by the provisions of the Development Plan for the Town of Gawler. Although the nature of the proposed development does not comply with the first Objective or the Principles of Development Control applicable to this District Commercial Zone, none of the planners, who gave evidence, saw that as an impediment to the proposal. As the Tribunal noted in its determination, all three planners, who gave evidence, agreed that, given the nature of the existing developments within both that portion of the District Commercial Zone and the locality generally, the failure of the proposed development to comply with those provisions is a matter of no planning significance. The Tribunal agreed with that view. 7. The central issue, both before the Tribunal and before this court, concerns the question whether there is adequate car parking for the proposed facility. The appellant does not propose to provide any off-street parking at all. It is contended, on behalf of the appellant, that there is sufficient on-street car parking in the vicinity of the development to cater adequately for whatever car parking might be generated by the proposed development. 8. There was a considerable body of evidence directed to the issue of car parking before the Tribunal. Four witnesses were called. Three of them were town planners, one was a traffic and transport engineer. The Tribunal devoted a considerable part of its reasons to the issue of town planning. The thrust of the reasoning of the Tribunal appears in the following passage in its determination:
    `It seems, at least to us, that the precise point at
    which one draws the line for the purpose of assessing
    the availability of vacant parking spaces is somewhat
    irrelevant - it fails to address the principal question
    raised by this appeal, namely what impact will the motor
    vehicles driven by patrons attracted to the subject
    premises have upon the parking patterns already
    established within the locality and what consequential
    effect will those vehicles has (sic) upon established
    businesses. The principal question, it seems to us, is
    not whether patrons resorting to the premises will be
    able to find parking spots - undoubtedly they will, even
    if they are required to walk substantial distances. The
    principal question is what impact will such traffic have
    upon the locality and what effect - either in the short
    term or in the long term - will it have upon the orderly
    planning of Gawler. As stated earlier in these
    reasons, the nature of the locality is such that many
    businesses rely entirely, for their parking
    requirements, upon abutting streets. Within the
    immediate locality, very few premises provide off-street
    parking - such premises are, by and large, limited to
    the Baptist Church, the Kingsford Hotel, the Gawler
    Reception Centre and the group of shops lying across
    Adelaide Road and to the south - and such parking as is
    provided is very limited. The practical effect of this
    is that the off-street parking must be shared between
    the businesses which rely upon it. If, to any material
    extent, one business takes more than its fair share of
    off-street parking space, the impact upon the other
    businesses which rely upon off-street parking is likely
    to be detrimental. This will be particularly so if such
    share is taken at a time when parking spaces will be at
    a premium. In our opinion, there will be times -
    Thursday, Friday and Saturday nights, and, perhaps, at
    other times at weekends - when the subject premises are
    likely to absorb substantially more than their fair
    share of off-street parking. Although we are unable, on
    the evidence before us, to assess the extent of the
    impact that this is likely to have upon neighbouring
    businesses, we are satisfied that such impact will be
    detrimental. 9. There may well be some impact upon those premises - already described - which provide off-street parking. The likelihood that patrons of the proposed premises will park in such off-street parking areas and thus preclude use of those areas by the patrons of the businesses which provide them is very real. This is likely to have a detrimental effect upon such businesses. This is particularly so with respect to the Kingsford Hotel.' Mr McElhinney, who appeared before for the appellant, suggested that the Tribunal had erred in three respects. He first said, that the Tribunal had failed to have sufficient regard to the history of the previous uses of the land. The nature of the previous uses was noted by the Tribunal. It appears that the land was first used as a clothing factory. However, little, if anything, is known of the history of the premises prior to 1980. Little assistance is to be gained, therefore, from any use of the premises prior to 1980. From 1980 to 1984 the premises were used both as a rollerdrome and family leisure centre. In 1984 the premises were converted to and used as a church, by the Assemblies of God denomination. That use provided seating for approximately 300 people, together with a number of tables and chairs for informal use, which might have involved the consumption of food and a book shop. The Council approved a change of use of the premises from the use as a church to that of an indoor recreation centre, providing facilities such as dartboards, table tennis, snooker and eight ball tables, a snack bar and coffee lounge. The premises, converted for use as an indoor recreation centre in the way described, could accommodate an average of 100 to 200 people, including children, at any one time. The premises were used in this way, but not for very long. That use came to an end some six to nine months after the change of use had been approved. The next use proposed for the premises is the use proposed by the appellant. 10. These earlier uses of the land are of little, if any, assistance in determining whether there is sufficient car parking available for the use now proposed by the appellant. There are a number of reasons why that is so. First, there is little, if any, evidence, as to the extent to which those uses were used to their maximum capacity. There is some evidence, from Mr Sarin, the Council's town planner, that the use by the Assemblies of God did not create any difficulty. But that evidence is not particularly persuasive. In the absence of any evidence, as to the extent to which these facilities were used, any suggestion that there has been no prior parking difficulty carries very little weight. The second reason why the evidence is of little assistance is that those uses were quite different from the proposed use and, being different, are likely to generate a different kind of parking requirement. For those reasons this attack upon the reasoning of the Tribunal must fail. 11. The second criticism of the reasoning of the Tribunal was that it had failed to consider the availability and adequacy of car parking based on the evidence before it. When considering this criticism, it is relevant to have regard to the fact that the proposal is intended to cater for up to 400 patrons, that it is, therefore, likely to generate a requirement for a substantial amount of car parking, and that the appellant intends to make no provision at all for any off-street car parking. 12. The use which the appellant proposes is one which was not permitted in the District Commercial Zone. It, therefore, required the consent of the Council and it was relevant for any planning authority, be it the Council or the Tribunal, to have regard to the question of whether there was adequate car parking. There is no provision in either the Development Plan or the Development Control Regulations which provides a standard for car parking for this type of facility. Both the witnesses and the Tribunal, therefore, were compelled to make their best estimate as to what ought to be a reasonable amount of car parking for the development. 13. In approaching the matter the Tribunal had regard to the fact that the peak demand for the proposed facility was likely to be generated at a time when other commercial premises in the locality would not be operating. They had regard also to the fact that there were, however, three other licensed premises which would be operating at that time and which themselves had provided off street car parking. In the case of two of those premises, at least, that is to say the Kingswood Hotel and an hotel opposite the junction of Adelaide Road and Murray Street, the car parking provided by the proprietors of each of those premises might not be sufficient to meet the demand at each. 14. The Tribunal also had regard to the fact that this part of Gawler is an old area where buildings were constructed before the implementation of planning controls as we know them today. Thus, there is little by way of provision for off street car parking for motor vehicles. As the Tribunal noted:
    `This is a characteristic which the subject premises
    share with many other buildings in Gawler and which, by
    all appearances, they share with the vast majority, if
    not all, other buildings within their locality. This
    means that many, but by no means all, of the businesses
    conducted within the locality depend upon abutting
    public streets for the provision of car parking spaces
    to be used by the patrons or customers of their
    businesses. Therein lies the heart of the dispute
    between the parties. The appellant, on the one hand,
    contends that the proposed entertainment facility and
    restaurant will not only use substantially more than its
    fair share of the kerbside parking but also that patrons
    attending the subject premises are likely to park in
    such off-street parking areas as do exist within the
    locality and have been provided, by the owners thereof,
    for the purposes of their own businesses. The council
    and the developer, on the other hand, say that the
    failure of commercial occupiers to provide any
    off-street parking is nothing new to Gawler and that
    there is, within the locality, ample on-street parking
    to meet the requirements of not only the proposed
    development but also of such other businesses as exist
    within the locality and rely upon the streets for the
    provision of parking spaces. Given that none of the
    planning witnesses have any objection to the actual use
    proposed for the subject premises, the total reliance of
    the proposed development on parking in the street should
not, they submit, count against it.' 15. Mr McElhinney acknowledged, in the course of his submission, that the central issue was whether the appellant, in failing to make any provision for car parking, would be using more than its fair share of on street car parking facilities. He even went so far as to submit that the extent to which, if at all, patrons of the proposed facility used off street car parking provided by others in the locality was a matter which could be policed by those who had provided the off-street car parking. That last aspect of his submission betrays what I think is the fundamental flaw in his approach. It is a very well recognised principle of town planning that a proposed development which is likely to generate a substantial amount of traffic must make adequate provision for off-street car parking, particularly if there is inadequate on-street car parking available. It hardly needs me to emphasise that the provision of adequate car parking is one of the basic tenets of modern town planning. Certainly this particular facility generating, as all the witnesses acknowledge, a considerable demand for car parking cannot expect to use what the Tribunal fairly characterises as more than its fair share of on-street car parking. 16. The question of whether there is adequate on-street car parking was carefully examined by the Tribunal. At the end of the day the submissions made on behalf of the appellant would require me to substitute my own planning judgment for that of the Tribunal. Mr McElhinney is unable to point to any egregious error in the approach of the Tribunal to this question. Nor is he able to point to any respect in which the Tribunal has correctly failed to apply the evidence. This court has frequently said that it is reluctant to substitute its planning opinion for that of the Tribunal and will be minded only to do so where the appellant is able to demonstrate some fundamental departure from proper planning principle. I refer to what has been said by this court in Transfield (Adelaide) Pty Ltd v City of Port Augusta (1982) 29 SASR 467, 480; Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161; Penley v DC of Murray Bridge (1992) 163 LSJS 128. Nothing has been put to me which would justify me overruling the Tribunal's decision. 17. The third criticism of the approach of the Tribunal was that it had improperly endeavoured to postulate what the future development of this part of the Town of Gawler might be and the impact upon that future development of the proposed use. This argument was not developed to any extent by Mr McElhinney. In all the circumstances I do not think it is necessary for me to comment on the extent to which, if at all, it was proper for the Tribunal to embark upon such an exercise. Even assuming that the Tribunal has done so, it is a matter which can be put to one side. The fundamental issue is whether there is sufficient car parking presently available. On that question the Tribunal has reached its own conclusion quite independently of any consideration of the future of this part of the Town of Gawler. 18. In the course of his submissions, Mr McElhinney noted that the appellant had not been given any opportunity of proffering to the Tribunal a development which would be for a facility catering for a lesser number than 400 patrons. The answer to such a submission is that it is for the party proposing a development to nominate what is proposed. The Tribunal is not an advisory body. It is there to determine appeals from a decision by a local governing authority or the South Australian Planning Commission approving or rejecting a development proposal. It is, of course, open to a party to amend his proposal subject to the constraints referred to in City of Marion v Becker (1973) 6 SASR 13. It follows that I must, therefore, not yield to Mr McElhinney's suggestion to send this matter back to the Tribunal so that there might be an opportunity of determining what is an appropriate limit to the capacity of this proposed development. 19. It might, however, be said that, in this area of the Town of Gawler, it might be appropriate to approve a proposal of this kind but catering for lesser numbers even without the provision of off street car parking. There is on the western side of Julian Terrace north of Adelaide Road a large area providing 116 car parking spaces. The evidence shows that these are not fully used during ordinary business hours and are used even less in the evenings when it is likely that the proposed development would be used to its capacity. Principle 16 of the Principles of Development Control in that part of the Development Plan applying to the Town of Gawler requires that "Development should include appropriate provision on the site to enable the parking, loading, unloading, turning and fuelling of vehicles" (emphasis added). Obviously what is appropriate must depend upon all of the circumstances of each case. Principle 16 does not necessarily require in every case the provision of off-street car parking or off-street loading and unloading. Each case must, of course, be determined on its own facts and it will be a question of fact and degree in every case as to what is appropriate. It might be that a development of the kind proposed could be permitted to proceed on this site if it is not likely to generate as high a demand for car parking as the current proposal. It is not for this court to speculate on what the nature and size of such a development might be. That is a matter upon which the appellant can, if he chooses, seek advice and decide whether he wishes to make a fresh application. 20. For all of these reasons the appeal is dismissed. The appellant will pay the costs of the second respondent to be taxed or agreed. The costs of the second respondent's solicitors shall be taxed on the first scale. The second respondent is represented by senior counsel. It is not appropriate that any taxation should include the costs of senior counsel. The costs of junior counsel shall be on the usual scale for counsel.