Busen Pty Ltd and City Of Subiaco

Busen Pty Ltd sought to establish a tavern in the Subiaco Town Centre, which the City of Subiaco declined to approve. The City's refusal was based on strategic planning considerations, including the policy that taverns should be more evenly spread geographically and the City's general stance against supporting new taverns near existing hotels, taverns, or nightclubs. The proposed tavern was to be located close to a hotel and two nightclubs, despite being significantly smaller in scale. Busen argued for flexibility in the application of these policies given the circumstances, including the smaller size of the proposed tavern and the potential benefits it could bring.

The key legal issues before the court were whether the City's refusal to approve the development application was justified under the relevant planning policies and whether the proposed tavern's location and size warranted a deviation from the usual policy guidelines. The court had to consider the intention behind the planning policies, the specific characteristics of the proposed tavern, and the potential amenity impacts, such as anti-social behaviour, motor vehicle and pedestrian injuries, and the "bunching" of licensed premises. Additionally, the court needed to determine if the circumstances warranted a time-limited consent to allow for the proposed tavern.

The court determined that the City's refusal to approve the development application was not justified. It found that the proposed tavern was significantly smaller than the nearby licensed premises, which reduced the likelihood of negative amenity impacts. The court considered the objective characteristics of the proposed tavern and concluded that flexibility should be exercised in applying the planning policies. Consequently, the court allowed the application for review, directing the City to reconsider the development application under the specified conditions.