| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : NEW FRONTIER PTY LTD and CITY OF VINCENT [2013] WASAT 187 MEMBER : MS M CONNOR (MEMBER) HEARD : 29 AUGUST 2013 DELIVERED : 20 NOVEMBER 2013 FILE NO/S : DR 106 of 2013 BETWEEN : NEW FRONTIER PTY LTD Applicant
AND
CITY OF VINCENT
Respondent
Catchwords: Town planning Development Review of conditions of approval Restriction on hours of operation of a small bar Impact of noise emissions on amenity of locality Assessment of existing and likely future character of locality Degree of impact on amenity - Whether planning approvals should look beyond the Liquor Control Act 1988 (WA) or Environmental Protection Authority (Noise) Regulations 1997 (WA) to regulate hours of operation for licensed premises Reasonableness of conditions Legislation: City of Vincent Town Planning Scheme No 1, cl 6, cl 6(3)(b), cl 10, 13, cl 15, cl 32, cl 38, cl 38(5), cl 38(5)(h), cl 39, cl 39(2)(b), cl 44, Sch 1
Environment Protection Authority (Noise) Regulations 1997 (WA), reg 7
Liquor Control Act 1988 (WA)
Planning and Development Act 2005 (WA), s 250(1), s 252(1) Result: Application for review will be allowed in part
Conditions of approval to be varied
Summary of Tribunal's decision: New Frontier Pty Ltd applied to the State Administrative Tribunal for review of three conditions imposed by the City of Vincent on its decision granting planning approval for a change of use from 'Shop' to 'Unlisted Use (Small Bar)' at No 25 (Lot 3) Green Street, Mount Hawthorn.
The principal issue that arose for determination in this matter was whether conditions 2, 3 and 4 of the approval restricting the hours of operation of the small bar should be altered having regard to the preservation of amenity of the locality, in particular, the effect of noise on the nearby residential development.
An assessment as to the existing and likely future character of the locality, the manner in which the proposed use will affect the amenity and the degree of impact on the locality was undertaken. In respect to condition 2, the Tribunal concluded that notwithstanding that, with the inclusion of an additional noise control measure, the premises would comply with the Environmental Protection Authority (Noise) Regulations 1997 (WA), it was reasonable, given the degree of impact on the locality to impose a condition restricting the hours of operation on Sundays and weeknights to 10 pm. The Tribunal, however, considered condition 2 should be varied insofar as it should include provision for appropriate restrictions on hours of operations for public holidays. As to conditions 3 and 4, the Tribunal determined that both conditions should be deleted in their entirety.
Category: B
Representation: Counsel:
Applicant : Mr P Mavor (Acting as Agent)
Respondent : Mr J Algeri (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Algeri Planning & Appeals (Town Planners)
Case(s) referred to in decision(s):
Barwell Nominees Pty Ltd and City of Wanneroo [2007] WASAT 156
BP Australia Pty Ltd v City of Perth (Appeal No 16 of 1993)
Busen Pty Ltd and City of Subiaco [2007] WASAT 49
Fazio and City of Fremantle [2006] WASAT 169
Gosatti Holding Pty Ltd and City of Fremantle (Appeal No 48 of 1999 delivered 17 March 2000)
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 199
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Smart v Barossa Council [1999] SAERDC 29
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Woolworths Ltd and City of Joondalup [2009] WASAT 41
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 New Frontier Pty Ltd (applicant) made application to the City of Vincent (respondent, Council or City) on 12 December 2012 for approval to operate a café/small bar (Green Street Bar) at No 25 (Lot 3) Green Street, Mount Hawthorn (subject land). 2 The proposed development involves additions and alterations to the existing building located on the subject land, together with the construction of five car parking bays. 3 The Council, at its meeting of 12 March 2013, granted conditional planning approval to a change of use from 'Shop' to 'Unlisted Use (Small Bar)' and construction of associated additions and alterations on the land, subject to 12 conditions and four advice notes. 4 The applicant, on 22 March 2013, made application under s 250(1) of the Planning and Development Act 2005 (WA) (PD Act), later corrected to s 252(1) of the PD Act, to have conditions 2, 3 and 4 of the approval reviewed. These conditions read as follows: 2. The hours of operation of the small bar shall be limited to:
| DAY | HOURS OF OPERATION | | Monday to Thursday | 7:00 am to 10:00 pm | | Friday to Saturday | 7:00 am to 12:00 midnight | | Sunday | 7:00 am to 10:00 pm | | DAY | HOURS OF OPERATION | | Monday to Thursday | 11:00 am to 10:00 pm | | Friday to Saturday | 11:00 am to 12:00 midnight | | Sunday | 11:00 am to 10:00 pm | 5 The decision sought by the applicant is the deletion of the three conditions so that the operation of the small bar accords with the opening hours as stipulated in the Liquor Control Act 1988 (WA) (Liquor Act), which are as follows: • Monday to Saturday 6 am to 12 midnight; • Sunday 10 am to 10 pm; • Christmas Day and Good Friday 12 noon to 10 pm where the liquor is sold ancillary to a meal supplied by the licensee, or at any time if the sale is to lodger for consumption on the premises; • New Year's Eve (if falls on a day other than Sunday) 6.00 am to 2 am on New Year's Day; • New Year's Eve (if falls on a Sunday) 10 am to 2 am on New Year's Day; and • Anzac Day no trading is permitted before noon.
Subject land and immediate surrounds 6 The subject land is located on the south-eastern corner of the intersection of Dunedin Street and Green Street and is 630m2 in area. 7 Improvements on the land include two existing buildings; one of the buildings is currently vacant at present (the premises) and the other is used as a hairdressing salon. Vehicular access to the land is currently achieved via a crossover from Dunedin Street. 8 The premises is a part of group of buildings spread over five lots (Lots 3, 4, 5, 6 and 7) that front onto Green Street and form a local centre servicing the surrounding residential area (refer to Attachment 1: Exhibit 4, Attachment 2, Locality Plan). The development on the lot immediately east of the subject land (Lot 4) contains a mix of both commercial and residential use. A right of way runs along the rear boundaries of Lots 3, 4, 5, 6 and 7, providing a trafficable connection between Dunedin Street and London Street. A public carpark has been constructed over two lots immediately south of the right of way fronting onto Dunedin Street (Lot 9 and Lot 299). The corresponding lots fronting onto London Street, and the remaining lots in the street block, all contain residential dwellings. 9 The building located on the south-west corner of Green Street and Dunedin Street (Lot 2) is currently occupied by a Liquor Barons outlet and the adjoining lot (Lot 10) fronting onto Dunedin Street contains a medical centre.
Planning framework 10 The subject land is zoned 'Local Centre' under the City of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme). The main provisions contained in TPS 1 that are relevant to the determination of this matter are: • clause 6 Objectives and Intentions • clause 10 Precincts (P1 Mount Hawthorn) • clause 13 Use of Land in a Zoning Scheme • clause 15 Unlisted Use • clause 32 Need for Planning Approval • clause 38 Determination of Application - General Provisions • clause 39 Determination of Application for an Unlisted Use • clause 44 Temporary Planning Approval • Zoning Table • Schedule 1 - Definitions 11 The relevant precinct planning policy relating to the subject land is the Mount Hawthorn Precinct Policy No 3.1.1 (Policy No 3.1.1).
Issue 12 The principal issue for determination in relation to this matter, as agreed by the parties, is: Whether conditions 2, 3 and 4 of the approval restricting the hours of operation should be altered having regard to the preservation of amenity of the locality, in particular, the effects of noise on the nearby residential development. 13 The applicant contended that the conditions should be deleted as there is no planning basis for the conditions, they are discriminatory and not in the public interest. Mr Paul Mavor, the applicant's representative, argued that the appropriate control on hours of operations for a small bar are found in the Environment Protection Authority (Noise) Regulations 1997 (WA) (Noise Regulations) and the Liquor Act, and that the proposed hours of operation as stipulated in the planning approval are contrary to those as specified in primary legislation. He further submitted that the controls set out in the Noise Regulations and the Liquor Act are adequate to mitigate against any potential noise issues that may arise from the proposed development. 14 The respondent contended that the proposed development, due to its close proximity to the surrounding residential area, will adversely impact on the amenity of the locality and therefore considered it necessary to impose conditions restricting the hours of operation to mitigate against any adverse impacts. 15 'Amenity' as defined in Schedule 1 of the Scheme 'means all those factors which combine to form the character of the area to residents and passers by and shall include the present and likely future amenity'. In order to assess the impacts of the proposed development on the amenity of the locality, it is necessary in this instance, given the definition of 'amenity' in the Scheme, for the Tribunal to undertake an objective inquiry as to the character of the area that represents that state of amenity (see Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296) and an assessment of the likely future character of the area (Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116).
Locality 16 The Tribunal, in Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187, considered the concept of locality and observed at [42] as follows: The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and circumstances of the case. … 17 Mr Joe Algeri, a planning consultant who acted as both representative and expert for the respondent, and the only planning expert to give evidence in the proceedings, defined the 'locality' as generally the topographic area bounded by Shakespeare Street, Ellesmere Street, Highland Road and the land on the northern side of Green Street located in the City of Stirling bounded by Osborne Street, Elanora Street and London Street. He submitted that this area delineated the extent of any possible impacts that may arise from the proposed development but considered that most of the impacts would affect those lots adjacent to the public carpark and the small bar, and the lots on the northern side of Green Street. The Tribunal is not convinced that the 'locality' is as wide as suggested by Mr Algeri, particularly the area extending east of London Street, but agrees that the lots most likely to be affected by the proposed development include the residential lots fronting onto Dunedin Street north of Ellesmere Street, the public carpark area and adjacent residential lots fronting onto London Street, the lots within the local centre itself, the nonresidential uses (liquor store and medical centre) located on the western side of Dunedin Street and the residential lots located on the northern side of Green Street. 18 Mr Algeri characterised the locality as mostly single residential with a density coding of R30 or thereabouts, and referred to the local centre and other nonresidential uses, which he said also 'informs the character of the immediate locality'. He considered the existing amenity of the locality to be characteristic of a single residential suburb, that being an area 'where people don't expect that they will be influenced by noises or activities associated with anything other than people living in their homes'. He did, however, acknowledge that the amenity of the residential lots immediately abutting the public carpark area servicing the local centre would be slightly different given the commercial operations of the businesses but argued that the impacts correlated to the trading hours, which he submitted, were limited to mostly the day time period. Under crossexamination, he did concede that the liquor store located on the corner of Green Street and Dunedin Street, and a number of businesses located in the local centre (takeaway food outlet and three hairdressers), traded into the evening period. It should also be noted that Green Street is a major arterial road that services the wider locality and carries approximately 21,000 vehicles per day. 19 It is clearly evident that the existing character of the immediate locality includes both commercial and residential activities and that the existing amenity of the locality is affected by the interaction between these uses. This Tribunal, and the former Town Planning Appeal Tribunal (TPAT), have considered circumstances where residential uses adjoin commercial sites and held the view that 'the residents adjoining a commercial site are to expect a diminished level of comfort' and that 'it barely needs to be said that residential uses in close proximity to nonresidential uses cannot expect the same degree of amenity as would be found in a homogeneous residential suburb': see St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318; Woolworths Ltd and City of Joondalup [2009] WASAT 41 (Woolworths and City of Joondalup); BP Australia Pty Ltd v City of Perth (Appeal No 16 of 1993); and Gosatti Holding Pty Ltd and City of Fremantle (Appeal No 48 of 1999 delivered 17 March 2000) (Gosatti). The same can be said in this instance. However, the degree of impact will determine whether the development, as proposed by the applicant, is acceptable or not. 20 No evidence was adduced by the parties as to the likely future amenity of the locality and as such, nothing to suggest that the likely future amenity is to be any different to that which already exists.
Degree of impact 21 The respondent initially contended that the proposed hours of operation of the small bar would contribute to unreasonable noise being emitted from the premises, which would have an adverse impact on the amenity of the locality. 22 In response, the applicant engaged Mr George Watts, Senior Acoustic Consultant at Herring Storer Acoustics, to undertake a noise impact assessment of the proposed small bar. Mr Watts' report demonstrated that, subject to the inclusion of a number of noise control measures, the noise emissions emanating from the proposed small bar would comply with the assigned noise levels set out in reg 7 of the Noise Regulations. The noise control measures detailed in his report included: • a sound barrier ceiling consisting of 16 millimetre thick fire-rated plasterboard (or equivalent) to the entirety of the building; • glazing to consist of 10.5 millimetre thick VLam Hush (or equivalent); • doors/windows to remain closed (that is, have closers and not to be propped open); • the erection of a 4 metre high 'effective' screen in the courtyard area, adjacent to the wall of the nearest neighbour, and that the use of the courtyard be restricted to 50% of its useable patron number after 10 pm; and • management measures put in place to ensure that the service yard is not used outside of the 'day period'. 23 It should be noted that Mr Watts held the view, that without the limitation on the number of patrons using the courtyard after 10 pm, the noise levels associated with the courtyard area would exceed the assigned noise levels. 24 The respondent accepted that with the incorporation of the suggested noise attenuation measures, the premises were likely to comply with the Noise Regulations, and that Mr Watts' assessment was based on a conservative approach. However, the respondent was still concerned that noise emissions from activities associated with patrons coming and going from the premises to their cars would adversely affect the amenity of the locality. Ms Elaine Clucas, Acting Manager of Health and Compliance Services at the City of Vincent, gave evidence on behalf of the respondent. In her evidence she expressed concerns about the 'type of noise [that] is random and of short duration' such as walking along the street, patrons' voices, sounds of breaking glass, car doors slamming, and car alarms switching on and off. 25 The noise impact assessment did not include noise associated with patrons outside the premises, as Mr Watts explained that these areas are considered public space and not under the management of the Green Street Bar. Ms Clucas, acknowledged the difficulties associated with controlling noise outside of the premises but expressed the view that noise associated with patrons coming and going to the premises was the type of noise that residents complained about and expected the Council to resolve. She told the Tribunal that the types of noise complaints associated with small bars related to services and activities outside the building such as emptying of bins, delivery trucks coming early in the morning, glass pickups into large trucks and people walking to and fro. She acknowledged that the Management Plan for the Green Street Bar (Management Plan) addressed the issue of deliveries and the disposal of waste but held the view that the hours of operation of the small bar needed to be restricted to protect the amenity of the surrounding residents from the other noise sources she identified. She submitted, based on her experience, that the occupants of the noise sensitive premises expected that noise generally stops at 10 pm and therefore considered it reasonable to impose a condition restricting the hours of operation to 10 pm on Sunday and weeknights. She did not consider such a restriction appropriate for Friday and Saturday nights as, in her experience, there is a higher tolerance level for these sorts of noise emissions by residents on Friday and Saturday nights. 26 There is no dispute that activities associated with the small bar would generate noise emissions in the carpark and public areas adjacent to the small bar. However, Mr Mavor told the Tribunal that management measures had been included in the Management Plan to address the concerns raised by Ms Clucas and indicated that 'it is constantly evolving' and capable of being modified as required. He also argued that small bars were considered to be 'low risk' venues compared to other drinking type establishments; an assertion Ms Clucas agreed with. He also referred to four other small bars in the City of Vincent (The Classroom on Charles Street; The Cabin on Scarborough Beach Road; Amani Bar on Oxford Street and Wee Bar on Oxford Street) that traded to midnight Monday to Thursday under circumstances similar to those proposed by the Green Street Bar. He considered the hours of operation for the small bar should be as specified in the Liquor Act and was at pains to establish that trading between 10 pm and 12.00 midnight, and prior to 11 am in the mornings, was crucial to the success of the business. He also pointed to the support from the community for such an establishment, which in his mind, indicated acceptance of the trading hours in accordance with the Liquor Act. 27 The Tribunal does not agree with Mr Mavor's contention that planning approvals should not look beyond the Liquor Act or the Noise Regulations to regulate hours of operation for licensed premises. The protection of the amenity of the locality is a planning principle embodied in all schemes, whether they be regional or local schemes. The general planning objectives of TPS 1 includes 'to protect and enhance the health, safety and general welfare of the [City's] inhabitants and the social, physical and cultural environment': cl 6(3)(b). Furthermore, the Scheme specifically requires that regard be given to the conservation of the amenities of the locality and that the proposal is consistent with matters listed in cl 38(5), cl 38(5)(h) and cl 39(2)(b). Further, Policy No 3.1.1 states that in the Local Centre zone '[c]areful control is to be exercised over the nature of any uses proposed and their design and site layout to ensure minimal impact on any adjacent residential development or land'. This Tribunal has previously found that 'the style of operation and the management regime of licensed premises can have a significant effect on the amenity impacts associated with such facilities': see Woolworths and City of Joondalup, Barwell Nominees Pty Ltd and City of Wanneroo [2007] WASAT 156, Busen Pty Ltd and City of Subiaco [2007] WASAT 49, Fazio and City of Fremantle [2006] WASAT 169. 28 Furthermore, the Tribunal has also previously found that, 'Compliance with the Noise Regulations does not necessarily mean that noise does not constitute an adverse impact on the existing amenity of the locality': see Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 199 at [39]. 29 In this case, notwithstanding that the evidence shows that with the incorporation of the additional noise control measures as suggested by Mr Watt, the premises will comply with the Noise Regulations, there is, however, a further consideration as some associated activities of the small bar extend into public areas that are outside of the premises control as defined by the Noise Regulations. There has been no assessment of noise emissions from the public areas on nearby noise sensitive premises. The evidence before the Tribunal suggests that in the early evening the public areas surrounding the local centre, such as the carpark, are likely to attract some activity and therefore produce some noise emissions given that several of the existing businesses are still operating. However, for the period after 10 pm on all evenings, given the current composition of the local centre, there is unlikely to be any noise emissions produced that relate to the operation of the local centre. 30 The Tribunal accepts that small bars of themselves can be considered 'low risk' noise sources; however, the extent of operation of this small bar is not confined to the premises or the subject lot, but extends into a public area (carpark) that is outside the control of the premises. The fact that Mr Mavor was able to point to four other similar small bars in the City that trade after 10 pm on week nights does not negate the adverse impacts that may be experienced from this proposal. It is the Tribunal's statutory duty to apply sound town planning principles to the substantial merits of each particular case and, even if the circumstances were the same, as the court observed in Smart v Barossa Council [1999] SAERDC 29 at [9]: Trite as it may be so, 'two wrongs do not make a right', or to put it another way, the Court cannot use bad examples of development as justification for proposals which are contrary to a Plan's provision. 31 The Tribunal, in this instance, considers that the amenity of the residents adjoining the local centre and other nonresidential uses are to expect a diminished level of comfort during the day and early evening periods. However, given the nature of the operation of the existing local centre and surrounding nonresidential uses the diminished level of amenity cannot, at present, be observed to extend into the late evening period. Given that the amenity of the residents in the immediate locality will be adversely affected by the proposal, it may, in this instance, be reasonable to impose conditions on the hours of operation of the small bar. The Tribunal will consider each of the conditions under review in turn.
Condition 2 32 Given the findings above, the Tribunal considers that it is reasonable, in this instance, to impose a condition restricting the hours of operation in the late evening on Sunday and week nights and therefore, the 10 pm restriction on these nights should be affirmed. However, the condition does not provide for any variations to the hours of operation for public holidays, such as Good Friday, Christmas and New Year's Eve, as can be found in the Liquor Act. The Tribunal considers that on certain public holidays, such as New Year's Eve, the observations of Ms Clusas regarding the level of tolerance for Friday and Saturday nights are equally valid. The Tribunal determines that condition 2 should be varied insofar as to include appropriate restrictions on hours of operation for public holidays. In the first instance, the parties should negotiate in good faith to agree appropriate wording relating to the hours of operation for public holidays for inclusion in condition 2. If agreement cannot be reached within 28 days of this decision, the Tribunal will determine this outstanding matter.
Condition 3 33 Notwithstanding the City's approval of the erection of the 4 metre high 'effective' screen in the courtyard area, which is currently under construction, and Ms Clucas' agreement that 'with the measures proposed [to be] implemented noise levels are considered likely to comply [with the Noise Regulations]', the respondent continued to maintain that condition 3 should be imposed. The respondent argued that there was still uncertainty about the amenity impacts of noise from the outdoor courtyard area on adjacent noise sensitive premises and the imposition of such a condition would enable monitoring and evaluation of the impacts on adjacent residential uses. The respondent submitted that at the end of the 12 month period, if it was found that the operation of the outdoor courtyard area was not problematic then there should be no obstacle to issuing permanent approval. 34 It would seem that condition 3 is sought to be imposed as a precautionary measure to ensure that the amenity of the adjacent noise sensitive premise located on Lot 4 is not adversely affected by the activities occurring in the outdoor courtyard area. The experts agree that with the construction of the noise barrier and a reduction in the numbers of patrons in the courtyard after 10 pm, the premises will be capable of complying with the Noise Regulations. The noise sensitive premise, the subject of concern, is located within the Local Centre zone and as such, 'cannot expect the same degree of amenity as would be found in a homogeneous residential suburb' (Gosatti). The Tribunal is satisfied that in this instance, compliance with the Noise Regulations and implementation of the Management Plan are sufficient measures to mitigate noise impact to an acceptable degree and as such, the condition should be deleted.
Condition 4 35 This condition differs from the hours of operation of the small bar as specified in condition 2 by, in effect, preventing the sale and serving of alcohol between the operating hours of 7 am and 11 am. Mr Algeri submitted that the purpose of this condition was to prevent the potential unruly behaviour of patrons who had had too much to drink from the night before by discouraging them from coming to the venue in the first instance. He accepted that the likelihood of such behaviour occurring in the early hours of trading was minimal, and recognised that the Management Plan is designed to control and manage this type of behaviour. He also acknowledged that there is already a liquor outlet opposite the venue that sells alcohol for at least part of the time specified in the condition. 36 The Tribunal is not persuaded that the Management Plan could not deal with any adverse incidents that may arise appropriately and as such, any impact arising would have minimal affect on the existing amenity of the locality. The Tribunal considers that the imposition of this condition is unreasonable in the circumstances of this case and therefore the condition should be deleted.
Orders 37 For the above reasons, the Tribunal makes the following orders: 1. Condition 2 of the decision of the respondent made on 12 March 2013 should be varied insofar as to include provision for appropriate restrictions on the hours of operation for public holidays. The parties shall negotiate in good faith to agree the form of wording to vary condition 2 in respect to this matter. 2. Within 28 days of this decision, the parties are to advise the Tribunal of whether they have reached agreement as to the proposed form of wording to vary condition 2, or alternatively file and exchange written submissions on the matter. 3. The final orders of the Tribunal in relation to the review shall also include the following: ATTACHMENT 1
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