CLG Properties Pty Ltd and Shire Of Augusta­Margaret River

[2010] WASAT 109

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   CLG PROPERTIES PTY LTD and SHIRE OF AUGUSTA­MARGARET RIVER [2010] WASAT 109

MEMBER:   MR J ADDERLEY (SENIOR SESSIONAL MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   29 JULY 2010

FILE NO/S:   DR 487 of 2009

BETWEEN:   CLG PROPERTIES PTY LTD

Applicant

AND

SHIRE OF AUGUSTA­MARGARET RIVER
Respondent

Catchwords:

Town planning ­ Development application ­ Brewery and associated hospitality uses on rural property ­ Condition of approval of extension of hours of operation requiring alcohol to be served only with meals ­ Whether there would be an impact on rural amenity by way of noise nuisance if condition was deleted ­ Drink driving ­ Whether use constitutes a 'tavern' if condition not imposed ­ Whether premises are a composite of integrated uses associated with the brewery ­ Town planning ­ Development application ­ Brewery and associated hospitality uses on rural property ­ Condition of approval of extension of hours of operation requiring alcohol to be served only with meals ­ Whether there would be an impact on rural amenity by way of noise nuisance if condition was deleted ­ Drink driving ­ Whether use constitutes a 'tavern' if condition not imposed ­  Whether premises are a composite of integrated uses associated with the brewery ­ Whether nature of defined use is relevant ­ Corporate purpose, ambience and management of premises ­ Noise impact assessment

Legislation:

Liquor Licensing Act 1988 (WA)
Planning and Development Act 2005 (WA), s 242
Shire of Augusta­Margaret River Town Planning Scheme No 11

Result:

Application for review upheld
Decision of respondent varied in relation to condition of development approval

Category:    B

Representation:

Counsel:

Applicant:     N/A

Respondent:     N/A

Solicitors:

Applicant:     N/A

Respondent:     N/A

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. This is a review of the Shire of Augusta­Margaret River's decision to impose a condition limiting the consumption of alcohol after 6 pm on its development approval for extended hours of operation and expansion of existing hospitality uses associated with a brewery development on a rural property near Margaret River.

2. Condition 19 of the approval required that:  'After 6pm alcohol shall only be served to patrons for consumption when it is served in conjunction with a meal'.

3. The Shire of Augusta­Margaret River was concerned that, in the absence of the condition, there would be encouragement of a different clientele demanding noisy entertainment, putting at risk the amenity of the rural neighbourhood and causing hazard in relation to drink driving behaviour.

4. The Shire of Augusta­Margaret River was of the view that, in the absence of the condition, the use of the premises would constitute a tavern which is a use not permitted in the Rural zone.  The nature of use should be restricted to conform with that expected of a licensed restaurant.

5. CLG Properties Pty Ltd argued that there was no intention to encourage a different, boisterous clientele and that it would be counterproductive to the corporate objective of marketing a premium locally brewed beer on the premises.  The ambience and management style of the premises is not conducive to noisy entertainment and excessive drinking.

6. CLG Properties Pty Ltd argued that the premises are an approved establishment and that all that is being varied is the operating hours.  The use is licensed as a special facility and should be considered as a composite of integrated uses associated with the approved brewery.

7. The Tribunal was satisfied, on the evidence provided, that the nature and management of the facility was not conducive to increased noise nuisance, disturbance, boisterous behaviour or incidents of irresponsible drink driving in the event that Condition 19 was varied to ease the constraint on the consumption of alcohol.

8. In this regard, the Tribunal was aware that appropriate noise impact assessment had been undertaken and that other conditions of approval had been imposed to implement the recommendations of the noise assessment.  There is also a review mechanism of the approval incorporated in the approval.

9. The Tribunal considered it unnecessary to endeavour to define the nature of the use of the premises, other than to observe that there is no change of use proposed by the application.  In the context of this review, the application is simply to extend the hours of operation of a previously approved use.  It does not follow that the premises become a 'tavern', or anything else, because of evening trading.

10. The Tribunal was satisfied that Condition 19 was inappropriate in its proposed form, having regard to the prevailing circumstances, and was therefore onerous.

11. The application for review was upheld and, in accordance with the preference of CLG Properties Pty Ltd, a new Condition 19 was substituted requiring that:  'When trading past 6 pm the kitchen shall remain open and the full normal dinner menu shall be available until 9.30 pm'.

Introduction

1. This is a review of a decision of the Shire of Augusta­Margaret River (respondent) to impose a condition placing certain constraints on the serving of alcohol on the planning approval for the variation and extension of certain land uses related to a brewery, on a rural property known as Lot 11, Osmington Road, Bramley (Lot 11).  The property is situated about 11 kilometres from the town of Margaret River.

2. The application was lodged with the respondent by Cranford Hospitality Consultants Pty Ltd on behalf of the owners, CLG Properties Pty Ltd (applicant) on 25 September 2009.

3. The respondent refused the application on 26 November 2009.

4. The applicant lodged an application for review of the respondent's decision with the Tribunal on 22 December 2009.

5. Subsequent to mediation, and following an invitation by the Tribunal to reconsider its decision, the respondent determined to grant conditional approval for the variation of land uses associated with the brewery on 14 April 2010.

6. Condition 19 of the respondent's approval requires that:  'After 6 pm alcohol shall only be served to patrons for consumption when it is served in conjunction with a meal'.

7. In the course of subsequent mediation between the parties, the requirements of Condition 19 were not agreed.  The applicant seeks to amend the condition to read:  'When trading past 6 pm the kitchen shall remain open and the full normal dinner menu shall be available until 9.30 pm'.

The proposed development and its context

1. Lot 11 is situated in a rural area surrounded by properties used for rural and agricultural purposes.  Adjoining properties feature vineyards, a winery, a lodging house, some intensive agriculture and a paintball field.

2. The nearest dwelling on an adjoining property is about 300 metres away.

3. Lot 11 is 20.25 hectares in area and is developed with dwellings, sheds, a dam, a brewery, a bar, indoor and outdoor eating and drinking areas and a shop for the sale of brewery products.

4. It is understood that there is no restriction to the effect that consumption of alcohol on the premises during the day has to be in association with a meal.

5. The respondent approved the original development in 2003.

6. The proposed development, conditionally approved by the respondent in April 2010, permits:

   •an increase of seating capacity from 120 to 264;

   •conditional extension of the operating hours until 10.00 pm from Friday to Sunday;

   •an increase of the number of functions permitted to be held to 12 per year;

   •development of vineyard and orchard use on the property; and

   •additional car parking.

7. The respondent has attached 19 conditions to the approval, including Condition 19, the subject of this review.

Statutory and policy instruments

1. Lot 11 is zoned Rural under the zoning provisions of the Shire of Augusta­Margaret River Town Planning Scheme No 11 (TPS 11).

2. A 'licensed restaurant' is a permitted use in the Rural zone.  A 'hotel', 'tavern' or 'wine shop' is a use not permitted in the Rural zone under TPS 11.

The respondent's decision

1. The respondent approved the application for increased seating, increased operating hours, increased number of special functions, additional rural pursuit (orchard) and additional parking, subject to a range of conditions.

2. Condition 19 of the respondent's approval requires that:  'After 6pm alcohol shall only be served to patrons for consumption when it is served in conjunction with a meal'.

The respondent's argument

1. The respondent argues that the imposition of Condition 19 is reasonable because it allows the facility to operate into the evening, while minimising the potential for impacts on the amenity of the area which would be inconsistent with the objectives of the Rural zone.

2. Mr S Downes, employed by the respondent as Acting Manager of Planning, provided a submission on behalf of the respondent.

3. Mr Downes described that the purpose of Condition 19 was to ensure that the premises would operate as a restaurant in the evening so that the amenity of the area would not be unreasonably affected.

4. Mr Downes stated that in his opinion the critical issue was the nature and operation of the facility in its rural setting.  In this regard, he identified several circumstances that would be of concern if Condition 19 was not applied.

5. Firstly, it would be irresponsible and inconsistent with the objectives of the Rural zone to serve alcohol without a meal for up to 264 patrons on premises 11 kilometres distant from town.  This would generate a risk of persons driving under the influence of alcohol.

6. Secondly, there would be more noise generated by vehicles and noisy patrons.

7. Thirdly, although music would be generated whether or not patrons consumed a meal, music levels, including the prospect of live amplified music, would be higher than in circumstances where the facility operates as a restaurant.

8. Mr Downes argued that the conduct of the premises, in a manner permitting the consumption of alcohol without a meal after 6 pm, would convert the use to a 'tavern'.  A 'tavern' is not a permitted use in the Rural zone.

9. According to Mr Downes, ambient noise levels are much lower in the evening and neighbouring residents are more likely to be at home.  The activities on the premises, therefore, have greater potential to cause nuisance during the evening than during the day.

Submission by residents

1. Dr G Anderson and Mr M Jarvis, both residents of nearby properties, were granted leave by the Tribunal, in accordance with s 242 of the Planning and Development Act2005 (WA) to make a submission (residents' submission or submission) in relation to this review.

2. The residents' submission supports the retention of Condition 19 in its present form as an essential safeguard to protect the rural amenity of the area.

3. According to the submission, all four neighbours objected to the proposal to open after 6 pm when it was advertised.

4. The submission identifies that the neighbours' concerns are not simply about noise and the loss of rural amenity, but also include concern about the upholding of planning laws.

5. The submission contends that the appropriate description of the use is a 'licensed restaurant' which is the only use relating to the serving of alcohol permitted in the Rural zone.

6. The residents' submission speculates that the applicant's aim is to sell alcohol to a large number of people after 6 pm and keep them entertained with music in the manner of a 'tavern' or 'pub'.  A 'tavern' is not permitted in the Rural zone.

The applicant's argument

1. The applicant seeks to amend Condition 19 to read:  'When trading past 6 pm the kitchen shall remain open and the full normal dinner menu shall be available until 9.30 pm'.

2. The applicant argues that there is no evidence that in amending Condition 19, the resultant conduct of the premises would then constitute a tavern or that it would result in unacceptable noisy or antisocial behaviour, or that any undesirable precedent would be created.

3. Mr K Adam of K A Adam and Associates presented a submission on behalf of the applicant.  Mr Adam is an experienced architect and town planner.

4. Mr Adam stated that the development should not be considered as a tavern or a licensed restaurant.  Rather, it is a composite of different but integrated activities.  It comprises a brewery, a bar where drinks and snacks may be consumed, an indoor seating area for drinks alone, or served with a full or partial meal, an outdoor (al fresco) seating area and a child's play area.  It is also associated with an orchard, a dam and a residence for the property manager.

5. The premises are subject to a special facility licence under the Liquor Licensing Act 1988 (WA).  It is not subject to a restaurant or tavern licence.

6. Mr Adam is therefore of the opinion that the development is best described as a special facility comprising a number of integrated activities.  It is not a restaurant or a tavern.

7. Mr Adam pointed out that the integrated uses are already existing and approved.  The only issue is the extension of hours.  The use does not become something else by virtue of extending the hours.

8. The applicant does not intend to seek out clientele who attend beer barns and are responsible for noisy, antisocial behaviour.  According to Mr Adam, the ambience of the premises and management practices dictate that it is not that kind of venue, nor would it become so.

9. There are other more convenient venues available in town and the inherent risks associated with drink driving are a deterrent to clientele intent on excessive behaviour.

10. Mr Adam made the observation that a licensed restaurant may be permitted by the Department of Racing, Gaming and Liquor to supply liquor without a meal to its customers.  Whilst strict conditions apply to such permits, Mr Adam was of the opinion that the applicant would have no difficulty in complying with the necessary requirements.

11. Patrons of the venue will have access to the full menu during opening hours and will be encouraged to have a meal.  However, to force them to do so in order to enjoy a drink and the society of the venue is neither necessary or desirable.

12. Mr Adam noted that as far as noise is concerned, this issue is addressed by the approval condition requirements for a noise management plan and a community relations and neighbour consultation plan.

13. Mr L Waples, the Chief Executive Officer of Colonial Leisure Group (CLG) also entered a submission on behalf of the applicant.

14. Mr Waples described his company's role as one of the leading premium craft brewers in Australia.

15. Mr Waples indicated his concern that the respondent's Condition 19 effectively imposed what he described as a minimum spend on patrons.  The condition will also impose an unreasonable limit on client visitation.

16. Mr Waples was of the view that the condition was not in step with the modern and progressive approach of the industry's regulatory bodies and ignores the strictness with which liquor licence provisions are monitored on an ongoing basis.

17. The final submission on behalf of the applicant was tendered by Mr R Moroney.

18. Mr Moroney is the brewery General Manager.  He resides on the brewery premises at Lot 11.

19. Mr Moroney described the venue at Lot 11 as akin to a European brasserie and designed to promote a sociable food and beverage experience.

20. The venue is not a place for antisocial behaviour.  There are no happy hours, no sales of spirits, no beverage discounting, no pool tables or jukeboxes.

21. Mr Moroney was of the opinion that the issue of noise and antisocial behaviour is adequately addressed through the development of the community relations and neighbour consultation plan.

22. Mr Moroney described his management of the premises as promoting an environment that is family­oriented, child­friendly and responsible.

Analysis

1. The issue to be decided, in respect to Condition 19, is whether it is reasonable to constrain the drinking of alcohol by customers on the premises, other than in association with the consumption of a meal after 6 pm.

2. The respondent's submission has identified that not to constrain the consumption of alcohol would result in management practices and customer behaviour that would create a likelihood of more comings and goings and louder amplified entertainment, generating a higher level of boisterous behaviour and noise nuisance in the locality.

3. There would be an associated encouragement of incidents of drink driving.

4. The respondent also argued that not to associate the sale of alcohol with meals would consequently render the premises to be interpreted as a 'tavern'.  A tavern is not a permitted use in the Rural zone.

5. The applicant has sought to emphasise that the premises are designed and managed to promote a sociable, family­oriented venue pursuing the sales of a locally brewed premium beer product.  Spirits are not served and there are no facilities, such as jukeboxes or pool tables, to attract customers in noisy crowds.

6. The applicant intends to encourage the sale of meals in association with drinks, but is reluctant to have to enforce a minimum spend on meals by customers in order to enjoy the brewery product.

7. The applicant contends that the premises are an integrated combination of uses that constitute a special facility.  It is not a tavern or hotel and does not become one because of the extended hours sought or the sale of alcohol without the obligation to purchase a meal.

8. Addressing the question of possible noise nuisance, the Tribunal notes a number of pertinent circumstances.

9. A noise impact assessment of the premises has been conducted by acoustic engineers.  The assessment was designed to review the impact of live band music on nearby noise­sensitive locations up until 10 pm.  The review identified the need for noise management of the premises and this requirement has been translated into conditions of approval by the respondent.  The relevant conditions of the approval (13, 14 and 15) specify requirements for a noise management plan, a community relations and neighbour consultation plan and a landscape plan incorporating acoustic barriers.

10. While there has been some suggestion that there would be increased noise generation as a result of permitting the sale of alcohol without the obligation of purchasing a meal, this has been predicated on the assumption that there will be increased patronage and a different clientele seeking noisier entertainment.  The Tribunal notes, though, that the noise impact assessment has been based on live band music which is probably as noisy as could be expected.  It therefore seems unlikely that entertainment would be any noisier than that contemplated by the respondent in the formulation of the approval conditions.  As to patronage numbers, the respondent has accepted and incorporated patronage number limits within the approval.  It is not for this review to consider modifications of attendance capacity.

11. The Tribunal is inclined to accept the logic of the applicant that the design of the facility and the management style encouraging family­oriented, sociable drinking of a premium locally produced brewery product, with or without meals, is realistic.  As such, it would seem to be counterproductive to encourage a different clientele and to promote excessively noisy entertainment and boisterous behaviour.

12. The question of irresponsible drink driving is a serious consideration.  The Tribunal notes the existing nature and purpose of the premises and that there is presently no constraint on the consumption of alcohol without a meal during its daytime operating hours.  If drink driving was a standout problem, it may have been apparent already.

13. Although not articulated, it is presumed the respondent has associated an increased risk of irresponsible drink driving with the possibility of some patrons drinking too much alcohol without consuming a meal on the premises.  The difficulty with this argument is that if it is true, then most venues of similar alcohol sale policy contribute to such a risk.  It would be rare to find a licensed venue that was not a cause of some degree of similar risk because, inevitably, much of the custom is reliant on private vehicle access, whether in town or out of town.

1. Even the premises in Margaret River referred to in submissions are likely to be patronised by driving customers, quite possibly from out of town.

2. The Tribunal accepts that there is always a risk of irresponsible behaviour associated with the consumption of alcohol.  It would seem, however, that the wider community still accepts the enjoyment of moderate alcohol consumption in pleasant and sociable commercial venues.  It is not apparent that the hazard of some irresponsible behaviour from time to time would change the attitude of the community, such that responsibly managed venues for sociable and moderate drinking should be curtailed.

3. The applicant's management representatives have advised of their intention to manage the premises responsibly, aiming at a specific clientele for their premium brewery product.  They do not intend to provide sales of spirits and they would otherwise discourage boisterous behaviour and volume drinking.

4. The Tribunal concludes that there needs to be a reasonable balance of the risk associated with alcohol consumption and the wider community's expectation for sociable enjoyment of a drink.  In this case, the Tribunal is satisfied that the nature of this facility and the applicant's management arrangements for the premises, including the amended requirement for Condition 19, would meet that balance.

5. On the question of whether the premises would constitute a 'tavern' if Condition 19 is amended to permit the consumption of alcohol without a meal after 6 pm, the Tribunal is sceptical.  The business, whatever its use description, was approved some years ago by the respondent and operates, at present, without a restraint on the sale of its brewery product.  There is no change to these circumstances sought by the applicant, other than the extension of hours.  It is therefore difficult to accept that the extension of hours would lead to a conclusion that the nature of use has somehow changed to a 'tavern'.

6. Whether the premises should constitute a 'restaurant' also appears to be irrelevant insofar as this review is concerned.  Again, what is proposed is an extension of hours to the existing approved use, not a change of use.  The Tribunal, in this case, is only concerned to address a condition of approval in relation to the application for the extension of operating hours.

Summation

1. The Tribunal is of the view that there is insufficient substance in the respondent's proposition that the extended hours of operation will compromise the amenity of the locality if alcohol is served to patrons without the absolute obligation to consume a meal.  In such circumstances, Condition 19 in its present form is inappropriate and onerous.

2. The Tribunal therefore favours the applicant's preference that Condition 19 should be replaced with a new condition reflecting an undertaking that the full dinner menu should be available until 9.30 pm.  In effect, this would appear to represent a continuity of existing services in parallel with the approved extension of operating hours.

3. It is noted, in this context, that the respondent has also imposed Condition 5 which appears to provide an opportunity for review of the extended operating hours in 12 months' time.  If there are any circumstances where unreasonable and irresolvable impacts on amenity arise, then there is a further mechanism for resolution.

4. There should be no misunderstanding or presumption that the Tribunal's decision, in relation to the amended terms of Condition 19, guarantees that there will be no circumstances arising that might possibly cause nuisance impacting on the amenity of the area.  Such impacts may occur because of the extended hours of operation, but have nothing to do with whether alcohol is served with or without a meal.  Nevertheless, coupled with the planning consent allowing the extension of hours of operation, there remains an obligation on the applicant to comply with Condition 13 and Condition 14 in order to monitor and manage the premises in a manner that maintains and protects the amenity of the area.

Conclusion

1. Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to impose a certain condition requiring that 'after 6 pm alcohol shall only be served to patrons for consumption when it is served in conjunction with a meal', upon its planning consent for increased capacity of seating, extended hours of operation, increased number of special functions and additional parking for an existing composite of uses associated with a brewery on Lot 11, should be upheld.

2. Accordingly, the subject condition should be set aside and replaced with a condition requiring that 'when trading past 6 pm the kitchen shall remain open and the full normal dinner menu shall be available until 9.30 pm'.

3. Order

   1.The application for review is allowed.

   2.The decision of the Shire of Augusta-Margaret River, made on 14 April 2010, to grant conditional development approval for increased seating, extended operating hours, increased number of allowable special functions, additional parking and additional rural pursuit use in association with an existing brewery development at Lot 11, Osmington Road, Bramley is varied as follows:

   Condition 19 is deleted and replaced with the following condition:

   19.When trading past 6 pm the kitchen shall remain open and the full dinner menu shall be available until 9.30 pm.

I certify that this and the preceding [92] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J ADDERLEY, SENIOR SESSIONAL MEMBER