O'Connell Property Pty Ltd v Adelaide City Council
[2007] SASC 456
•21 December 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
O'CONNELL PROPERTY PTY LTD v ADELAIDE CITY COUNCIL
[2007] SASC 456
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Layton)
21 December 2007
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - COMMERCIAL USES - HOTELS AND MOTELS
Proposed hotel/restaurant – application to vary condition of provisional Development Plan consent to provide extended trading hours – nature and effect of Development Plan – role of Supreme Court on appeal from Environment Resources and Development Court – consideration of relevant provisions of Development Plan – whether provisions correctly applied by judge on appeal – whether proper planning judgment denied – whether approach of Environment Resources and Development Court correct – Appeal allowed.
Liquor Licensing Act 1997 (SA); Development Act 1993 (SA) ss 33, 35; Planning Development Act 1966 (SA), referred to.
Transfield (Adelaide) Pty Ltd v Corporation of the City of Port Augusta (1982) 29 SASR 467; Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161; Frankham v Adelaide City Council (2004) 89 SASR 372, applied.
Town of Gawler v Impact Investment Corporation Pty Ltd [2007] SASC 356; O'Connell Property Pty Ltd v Adelaide City Council [2007] SAERDC 29, discussed.
Ampol Road Pantry Pty Ltdv Corporation of the City of Brighton (1993) 62 SASR 165, considered.
O'CONNELL PROPERTY PTY LTD v ADELAIDE CITY COUNCIL
[2007] SASC 456Full Court: Duggan, Bleby and Layton JJ
DUGGAN J. I agree that the appeal to this court should be allowed and that the appeal against the order of the Environment Court made on 1 June 2007 should be dismissed.
I agree with the reasons prepared by Bleby J.
BLEBY J.
Introduction
The building formerly known as the Hotel Adelaide occupies a prominent position at the gateway to a significant part of North Adelaide. It occupies the whole of the area bounded by Brougham Place, O’Connell Street, Ward Street and Australia Lane. For some time the building has been undergoing redevelopment to 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 for occupiers of the apartments.
The initial development approval dated 18 November 2005 included the following conditions:
8.Noise from the premises (including live or recorded entertainment, singing, patron noise or similar) when assessed at the nearest noise sensitive location shall be less than 8dB (A) above the level of background noise in any octave band of the sound spectrum.
16.The proposed licensed premises shall be operated consistent with Council’s liquor licensing statement.
The redevelopment was a substantial project extending over a period of approximately two years. Amendments to the proposal and supplementary development approvals were necessary as the project developed.
One of those amendments concerned the relocation of the restaurant, gaming area and bar. That was the subject of a further development application dated 5 January 2006. It was to occupy an area of the ground floor of the building facing O’Connell Street near but not at the south-eastern corner of the building having previously been located at the northeastern corner of the building.
On 21 April 2006 the respondent granted provisional Development Plan consent to that application subject to a number of conditions which included the following:
4.A report prepared by a suitably qualified acoustic engineer that ensures the development satisfies the following minimum requirements:
(a) the nearest existing noise sensitive location in or adjacent to that zone:
(i)music noise (L10,15 min) less than 8 dB above the level of background noise (L90,15 min) in any octave band of the sound spectrum; and
(ii)music noise (LA10,15 min) less than 5 dB(A) above the level of background noise (LA90,15 min) for the overall (sum of all octave bands) A-weighted levels; or
(b) the nearest envisaged future noise sensitive location in or adjacent to that zone:
(i)music noise (L10,15 min) less than 8dB above the level of background noise (L90,15 min) in any octave band of the sound spectrum and music noise (L10,15 min) less than 5dB(A) above the level of background noise (LA90,15 min) for the overall (sum of all octave bands) A-weighted levels; or
(ii)music noise (L10,15 min) less than 60dB (Lin) in any octave band of the sound spectrum and the overall (LA10,15 min) noise level is less than 55 dB(A).
shall be submitted to Council prior to Provisional Building Rules Consent. Plans submitted as part of Provisional Building Rules Consent shall incorporate the recommendations from the report.
6. The premises shall only operate during the following hours:-
- 7am to midnight Sunday – Thursday; and
- 7am to 2am on the following morning.
In its terms, condition 6 was meaningless other than for Sunday-Thursday. It was assumed that the 7am-2am period applied to Friday and Saturday. Longer hours had been sought in the application.
There was no appeal against that decision, but the redevelopment was then in its infancy, and the relevant conditions of the consent were never required to be implemented. The appellant acquiesced in the condition because it had no immediate effect and in order to enable consent to the relocation to become effective so that construction could proceed.
By further application dated 20 June 2006 the appellant made another development application seeking to extend the approved hours of operation for the gaming area, bar and restaurant facility from those approved on 21 April 2006 to 7am to 2am the following morning on Sunday-Thursday and 7am to 4am the following morning on Friday and Saturday.
On 27 October 2006 provisional Development Plan consent to that application was refused by the respondent.
The appellant appealed to the Environment Resources and Development Court (“the Environment Court”), and on 1 June 2007 a Commissioner of that Court allowed the appeal, varied condition 6 and added two more conditions, so that conditions 6, 7 and 8 then provided:
6.The premises shall only operate during the following hours – 7am to 2am on the following morning of any day.
7.Music levels from within the licensed premises shall, at no time, exceed a level of 65 dBA.
8.The operator shall ensure a security guard is present, patrolling the area from the intersection of Ward Street and O’Connell Street, south to the intersection of Brougham Place and O’Connell Street, and 100 metres in both an easterly and westerly direction from those intersections along Brougham Place and Ward Street, from 11pm until 2am each morning or until all patrons have vacated the area, whichever is the later, on Friday and Saturday nights and on the night before any other day that is a public holiday.
From that decision the respondent appealed to a single Judge of this Court who allowed the appeal and set aside the decision of the Environment Court, directing that the appeal to that Court be dismissed.
The appellant now appeals from that decision to the Full Court.
The nature of the premises
When the building was known as the Hotel Adelaide, the then proprietor held a special circumstances licence under the Liquor Licensing Act 1997 (SA) which enabled it to sell liquor for consumption on the premises at any time on any day except Good Friday, when it could then sell to a diner with or ancillary to a meal provided by the licensee in a designated dining area, or to a lodger or to a person attending a reception for consumption in a designated reception area. It could also sell liquor for consumption off the premises between 5am and midnight Monday to Saturday, excluding Good Friday, 11am to 8pm on Sunday and at certain other specified hours on Sunday being New Year’s Eve, Christmas Day and New Year’s Day.
The hotel’s gaming machine licence for 40 machines enabled it to operate from 10am to 4am every day of the week. The Hotel’s capacity in its bars, entertainment and dining areas was 1625 persons.
When the redevelopment commenced the licences were suspended and transferred to the present owner. They will be reactivated when the new bar/restaurant and gaming facility are completed. There are no other licensed or entertainment facilities proposed for the building.
The bar, restaurant and gaming facility (“the premises”) the subject of provisional Development Plan consent issued on 21 April 2006 provided for 32 gaming machines, a 40-person bar opening onto and adjoining a small 49 seat restaurant, providing for a total potential of 121 patrons at any one time. The premises were to have a glass openable wall to the O’Connell Street footpath for approximately an eight metre width in front of the restaurant. The Commissioner of the Environment Court described the premises as being a family run premises involving “a small scale, upmarket restaurant/bar with quality dishes targeted at older clientele, apartment occupants and their visitors and with background level music either recorded – initially, or potentially live with perhaps a piano player/singer/guitarist, but with the latter opportunity severely restricted by floor area constraints”.
The purpose of the extended hours was said to be to seek parity with the trading hours of other licensed premises along O’Connell Street in the same Zone, in particular the Oxford Hotel, the Royal Oak Hotel and the Caledonian Hotel, all of which enjoyed longer trading hours, although the Archer Hotel, on the eastern side of O’Connell Street, enjoyed similar trading hours to those which had been approved for the premises. Two of those other premises have more than double the capacity of the proposed premises and two of them have substantially more than three times that capacity. It is to be noted that the capacity of the proposed premises is very much less than the capacity of the former Hotel Adelaide, and that the trading hours sought are substantially reduced from those previously enjoyed by the Hotel Adelaide.
The locality
For the purpose of determining the appeal before him, the Commissioner of the Environment Court defined the locality as extending approximately 150 to 200 metres in most directions from the premises. That included residential properties to the east along Brougham Place (numbers 38-60), on the southern side of Brougham Place (numbers 81-130), to the west along Brougham Place and Palmer Place (numbers 72-80 Brougham Place and 58-64 Palmer Place), along Ward Street to the west to numbers 171 and 164, for a similar distance to the north along O’Connell Street to the intersection of that street with Archer Street, and for a similar distance along Ward Street to the east (numbers 74-106 and 73-119). There was no appeal against that definition of the locality by the Commissioner.
King William Road and its continuation north into O’Connell Street constitutes a major arterial road of North Adelaide carrying high traffic volumes to and from the city, including bus routes, one of which travels along Ward Street west of O’Connell Street.
Within the defined locality the Commissioner estimated there to be approximately 69 single dwellings and perhaps 166 apartment style dwellings or accommodation. He observed that there is both a considerable number and differing range of intensity of retail, office, consulting rooms, commercial (including licensed premises) and community uses of land along O’Connell Street. There are two restaurant/bars nearby, one directly opposite in O’Connell Street and one on the north-western corner of the intersection of O’Connell and Ward Streets.
The Commissioner estimated that there were approximately 350 on-street parking spaces within the locality, most with time limits during business hours but not restricted in the evening, and with no residential parking permit areas.
The Commissioner noted that the application impacted principally on the visual effect of the development, the likely extent of patron on-street car parking locations, potential noise emanating from the premises and noise from and nuisance caused by departing patrons moving to their parked cars or elsewhere from the premises.
The relevant zoning and Development Plan provisions
Within the locality premises facing O’Connell Street are zoned Mainstreet (O’Connell) Zone. The parklands, bounded by Brougham Place, to the south, south-east and south-west of the premises are zoned Park Lands Zone. Dwellings in the locality to the south of Brougham Place and in the residential areas to the east and west of O’Connell Street outside the Mainstreet (O’Connell) Zone are zoned North Adelaide Historic (Conservation) Zone.
The Development Plan provides for a number of objectives and principles of development control applicable to the whole of the Adelaide City Council area and more detailed objectives and principles applicable to the Mainstreet (O’Connell) Zone and the North Adelaide Historic (Conservation) Zone. In respect of both these zones the Development Plan provides that the desired character, objective and principles of development control for the Zone “are additional to those expressed for the whole of the council area and in cases of apparent conflict, take precedence over the more general provisions”. In the case of the Mainstreet (O’Connell) Zone the Plan provides in addition that “[i]n the assessment of development, the greatest weight is to be applied to satisfying the desired character for the Zone”.
So far as it is relevant the desired character for the Zone is stated 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.
The Zone provisions contain only one objective as follows:
Development that strengthens, achieves and is consistent with the desired character for the Zone.
The relevant Principles of Development Control for the Zone are as follows:
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.
The Development Plan for the North Adelaide Historic (Conservation) Zone contains a number of objectives, conveniently summarised by the single Judge as being “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”. Within that Zone are a number of Policy Areas, and in each case the Plan provides that in the assessment of development, “the greatest weight is to be applied to satisfying the desired character for the Policy Area”. Four of those Policy Areas are included in parts of the locality determined by the Commissioner.
For present purposes Carclew Policy Area 5 includes the northern side of Brougham Place and Palmer Place and both sides of Ward Street west of the Mainstreet (O’Connell) Zone. The Plan provides that the Area “should be conserved as one of the most attractive and historically significant residential areas in the city”.
Margaret Street Policy Area 6 includes the northern side of Ward Street east of the Mainstreet (O’Connell) Zone. The Plan expresses a similar desired character to that of Carclew Policy Area 5.
Le Fevre Policy Area 7 includes the southern side of Ward Street and the northern side of Brougham Place east of the Mainstreet (O’Connell) Zone. The desired character of that Policy Area is that it “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”.
Cathedral Policy Area 8 includes in the locality the southern side of Brougham Place which faces the development across Brougham Place. The Development Plan provides that this Policy Area “should be maintained as a predominantly residential area and its unique character which is established by distinctive topography, diverse range of nineteenth century architecture and its extensive Park Lands frontages, should be conserved”.
Objective 83 of the council-wide provisions of the Development Plan provides in certain zones, including the Mainstreet (O’Connell) Zone, for “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 provides that the same Zones be developed “with an increased component of residential accommodation and with an enhanced vitality and character while effectively managing their impact to protect amenity in adjacent residential areas”.
Objective 26 of the council-wide provisions has particular bearing on licensed premises. It provides:
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.
The Principles of Development Control that follow provide:
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.
The decision of the Environment Court
Having described the features of the premises, the history of its liquor and gaming machines licences, the history of the various applications under the Development Act1993 (SA), the nature of the proposal for extended trading hours and the features and extent of the locality, the Commissioner identified all the relevant provisions of the Development Plan, including all those provisions identified above except that in relation to Margaret Street Policy Area 6, which appears to have been an oversight on the part of the Commissioner.
The Commissioner described his approach to determining the application in the following terms:[1]
Section 33(a) of the Act requires the relevant authority (the Council) and on appeal this Court, to assess a development application against the provisions of the appropriate/relevant Development Plan and s 35(2) specifies that where a development is assessed as being seriously at variance with the Development Plan, it must not be granted consent. The whole of the Development Plan is to be assessed and it is the relevant guidelines in that Plan that provide the firm basis for decision making together with any other relevant matters.
In terms of s 35 and the provisions of the relevant Development Plan, the proposal is for consideration on its merits against the Plan guidelines, weighing up the pros and cons and considering whether the proposal is sufficiently conducive to the overall intent, purpose and desired character and amenity of the [Mainstreet (O’Connell) Zone] and tested in the specific site and locality context. The Plan is also to be utilised as a flexible, advisory planning policy document, not as a mandatory legal statute and as a practical guide for practical application, superimposed upon an existing state of development on the site and in the relevant locality. Ultimately, a planning judgment is to be made on a fact and degree basis as to whether the specific proposal sufficiently meets the Development Plan and having regard to all relevant matters, warrants consent.
[1] [2007] SAERDC 29 at [32]-[33].
As will be seen, that approach is entirely consistent with authority in this Court.
The Commissioner noted the main focus for the Mainstreet (O’Connell) Zone as being for retail, commercial and community activities, including leisure, community and associated uses, with entertainment premises and hotels being secondary to the primary land use mix. He considered that the proposal was, in general terms, consistent with that desired character and the principles applicable to the Zone. The Commissioner noted, however, the counter-balancing need for the protection of residential amenity and the apparent partial contradiction or mixed messages given by some of the objectives and principles. He posed the question whether the concept of enhancement of amenity for residential development and the achievement of a high quality residential living environment, on the one hand, and the primary and secondary land use proposed for the Zone and enhanced “vitality” encouraged for the Zone, on the other hand, were compatible and achievable. That constituted an appropriate recognition on his part of the conflicting interests involved which required resolution by a considered planning judgment.
The Commissioner observed that the position was “the more difficult to weigh up in the absence of specific guide in the Plan and in the relevant Mainstreet Zone as to where the balance of interests (with indirect impact and consequences) should lie, in terms of hours of operation of restaurants, licensed premises and licensed entertainment premises”.[2] He contrasted the provisions relating to this Zone with relevant provisions of the Development Plan relating to the Central Business Area Zone[3] and Mixed Use Zone[4] which specified desirable closing hours for licensed premises and licensed entertainment premises in other parts of the council area. No such requirements appear in any provisions relating to the Mainstreet (O’Connell) Zone.
[2] [2007] SAERDC 29 at [38].
[3] Principle 37.
[4] Principle 33.
The Commissioner then proceeded with an assessment of the impact of the proposal based on a careful analysis of the evidence then before him, none of which was challenged on the appeal to the single Judge. His analysis included the impact of noise arising from music played within the premises and from patron and vehicle noise as patrons left the premises, on the one hand, and what he described as the “nuisance/annoyance/anti-social behavioural impacts” from patrons entering or leaving the premises and moving to or from vehicles, places of abode or other places of entertainment or activity, on the other hand. He concluded:[5]
The premises are, relatively speaking, very small for licensed premises and compared to the several hotels in North Adelaide, and the smaller numbers using the premises and leaving the premises in the extended later hours and/or likely to cause any nuisance is considered to be low and probably not unreasonable. The nearest ground level residential use is somewhat removed and not in near proximity to the subject premises.
[5] [2007] SAERDC 29 at [47].
The Commissioner noted that there were no very near or adjoining residential uses, other than the acoustically treated apartments immediately above the premises, and he gave some weight to the nature and magnitude of the licensed premises when conducted as the Hotel Adelaide.
Having taken all those relevant matters into account he concluded that there was some reasonable justification for the extended hours which were eventually prescribed together with the additional conditions. While he considered that the issues and factors were “finely balanced”, he summarised his conclusion as follows:[6]
I 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.
[6] Ibid, [54].
The decision of the single Judge
The single Judge took a rather different view of the relevant provisions of the Development Plan from that of the Environment Court. He noted that portions of the Statement of Desired Character of the Mainstreet (O’Connell) Zone stated 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”. He considered that, on its proper interpretation, the Statement of Desired Character expressed a 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’”.[7] (Original emphasis). He considered that that provision “expressly requires enhancement of residential development both in the zone and neighbouring zones”.[8] (Emphasis added).
[7] [2007] SASC 313 at [14].
[8] Ibid.
Two things should be noted about the final paragraph of the Statement of Desired Character. First, it does not provide that development should ensure the enhancement of residential amenity but that “the impacts of development will be carefully controlled and managed to ensure” the enhancement of residential amenity. Secondly, the impacts of development on residential amenity may be negative or positive.
The Judge referred specifically to council-wide Objectives 83 and 84 in relation to residential amenity and to Objective 26 and Principles 85 and 86 concerning licensed premises. He considered that those provisions were “quite specific” in their reference to operating hours, and that although the Commissioner had referred to those provisions he had failed to give effect to “the clear intent” of those provisions.
The Judge considered that the Commissioner’s perception of the absence of a specific guide in the Development Plan, and in particular in the Mainstreet (O’Connell) Zone, as to where the balance of interests should lie for premises of this kind infected the Commissioner’s reasons for deciding as he did. The Judge considered that the Commissioner’s conclusion that the issues were “finely balanced” had the consequence that the appeal must be allowed and the decision of the council refusing the extended hours restored. This was because he considered that the Commissioner had not fully understood the intent and effect of the relevant provisions of the Development Plan. The provisions relating to the Mainstreet (O’Connell) Zone did not, in the Judge’s opinion, speak with a mixed voice. He concluded that late trading hours for licensed premises would only be permitted if they did “not adversely affect the residential amenity and, indeed, only if they will enhance the residential amenity”.[9] He relied particularly on council-wide Objective 26 as reinforced by Principles 85 and 86, together with Objectives 83 and 84. He also relied particularly on the Statement of Desired Character for the Mainstreet (O’Connell) Zone providing that “late-night entertainment activities should remain limited and few in number and function as a secondary use to primary uses in the Zone”. He considered that the Statement of Desired Character “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”.[10] (Original emphasis). Once again the Judge seems to have related that requirement to “development” rather than “the impact of development” as provided for in the Statement of Desired Character. The Judge concluded:[11]
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. (Original emphasis).
[9] Ibid, [29].
[10] Ibid, [30], para 5.
[11] Ibid, [30].
The passages I have referred to were not the only ones where the Judge expressed the view that the statement of intent of the Plan was quite clear, that late night entertainment activities should be limited in the Zone and that “development” is required to enhance the residential amenity in neighbouring residential areas, rather than the requirement that the impacts of development should be carefully controlled and managed. In short, the Judge interpreted the provisions of the Development Plan as expressing a clear intent that late night activities in the Main Street (O’Connell) Zone will only be permitted if they will enhance residential amenity.[12]
[12] Ibid, [34].
The Judge also considered that “[t]he residential amenity will not be enhanced by licensed premises trading in the early hours of the morning”.[13] He said:
One of the most obvious, if not notorious, ways in which licensed premises have the capacity to adversely 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.[14] …
Generally speaking, the longer the hours the greater the opportunity to those who patronise licensed premises to act in a way which has the capacity detrimentally to affect the amenity of residential development.[15]
He added, “It is not difficult to conclude that these extended hours will adversely affect the residential amenity”.[16]
[13] Ibid, [34].
[14] Ibid, [32].
[15] Ibid, [33].
[16] Ibid, [38].
For these reasons the Judge concluded that the application should not have been allowed by the Commissioner and that the decision of the Council should be restored.
It was argued by the appellant that the Judge’s approach to the interpretation of the Development Plan as a prescriptive instrument and his conclusion that late trading hours could never enhance residential amenity led to an erroneous process of reasoning which, in effect, rendered any planning judgment irrelevant.
The role of the Judge on appeal
Before turning to a consideration of the appeal, it is convenient briefly to restate the role of this Court in determining appeals from the Environment Court.
When considering an appeal from the Planning Appeal Board under the Planning Development Act 1966 (SA), Wells J said in Transfield (Adelaide) Pty Ltd v Corporation of the City of Port Augusta:[17]
In general, the Land and Valuation Division does not sit to hear purely planning issues re-argued, unless the Board have plainly made an identifiable and egregious blunder, or have misdirected themselves in law, or the circumstances are, in some respect, quite exceptional. Appeals to this Court are not rehearings.
[17] (1982) 29 SASR 467 at 480, King CJ and Mohr J concurring.
In Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd[18] Jacobs J said of the then Planning Appeal Tribunal:[19]
Counsel for the appellant, with great care and thoroughness, examined the relevant objectives and principles of development control which, it is urged, must have led the Tribunal to a contrary conclusion if it had paid due and proper regard to them. It is, however, not the function of this Court to substitute its own planning judgment for that of the Tribunal, or otherwise to disturb the determination of the Tribunal unless there is disclosed error of fact or principle; ….
[18] (1985) 38 SASR 161.
[19] Ibid, 177.
In the course of his judgment on appeal from that decision King CJ said:[20]
[T]he accepted role of this Court is limited. This Court will not substitute its own view for that of the Tribunal as to the planning merits of the proposal. It will intervene only if there is a demonstrated error of fact or principle.[21]
[20] Ibid,188, O’Loughlin J concurring.
[21] See also Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165 at 173-174, Debelle J, Cox and Duggan JJ concurring.
The single Judge was bound to act in accordance with those principles. Unless there was disclosed some error of fact or principle on the part of the Commissioner, and if the Commissioner’s determination was merely a matter of planning judgment, the single Judge could not properly interfere.
Consideration of the appeal
It is convenient first to consider the nature and effect of a Development Plan. I take the liberty of repeating an observation I made in Town of Gawler v Impact Investment Corporation Pty Ltd:[22]
[22] [2007] SASC 356 at [74]-[75].
It is well settled that a Development Plan is not to be construed or applied like a statute.[23] Telstra Corporation Ltd v Corporation of the City of Mitcham[24] was decided by a bench of five members of this Court. Four members of the Court agreed with the judgment of Debelle J who said:
The Court has repeatedly stated that the provisions of the Development Plan are not to be construed like a statute: see, for example, St Ann’s College v Corporation of City of Adelaide [1999] SASC 479. A development plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation. It uses language appropriate to the expressions of goals and guiding principles, rather than the expression of legal mandates: Walkerville Town Corporation v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 at 187 per King CJ approving observations of Wells J in both Claude Neon Ltd v City of West Torrens (1982) 29 SASR 260 at 270-271 and in Hassen v District Council of Murray Bridge (1984) 35 SASR 448 at 449.[25]
That case was decided under the provisions of the Development Act. However, care must be taken in applying dicta in cases decided under predecessors to s 33 of the Development Act cast in slightly different terms. One of the leading cases on the topic and one referred to by Debelle J in the passage quoted above is Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd & Anor.[26] In that case King CJ said:
The Development Plan is the focal point of the planning regime instituted by the 1982 Act. Its central importance is emphasized by the disappearance of regulations from the scheme. The Plan provides the objectives and principles upon which development planning is to be based. It is the charter by whose guiding principles future development is to be planned. The mandate “to have regard to” the provisions of the Plan requires the authority to give to the plan the weight which is due to it as the focal point of the planning regime. I indorse what was said about the status purpose and importance of the Plan by Wells J in Hassen v District Council of Murray Bridge and Onsoy and by Jacobs J in the present case. As was pointed out by Wells J in Hassen’s case, however, the Plan is in the nature of a planning document and is couched in the language of planning objectives and principles rather than that of legal obligation. Jacobs J in the judgment appealed from in this case described the language of the principles in the Plan as “advisory”. Perhaps that word read out of context does not attach sufficient force to the language of the principles, but it is nevertheless language appropriate to the expression of goals and guiding principles rather than to the expression of legal mandates. If the provisions of the Plan were understood as binding norms to which all planning decisions must conform, it would indeed “find action in the front line a responsibility for the discharge of which neither its language nor its structure is appropriate”. That, however, is not its function, as the Full Court has indicated in Dorrestijn’s case. For all the importance of the Plan, there is a discretion, ultimately unfettered, in the Planning Authority to take other considerations into account and to make decisions which are not in conformity with the Plan.
The discretion of the Planning Authority, although unfettered, must, like all discretions, be exercised for the purpose for which it is given. It must therefore be exercised for the purpose of attaining the planning objectives of the Act. Although the authority, having given proper consideration and due weight to the provisions of the Development Plan, may depart from it in the exercise of its discretion, it may do so only upon grounds which are properly related to the planning objectives of the Act. If the discretion were exercised arbitrarily or upon grounds not properly related to planning objectives, the exercise would miscarry.[27] [Case citations omitted].
That case was decided under the Planning Act 1982 (SA) where the mandate to a Planning Authority was “to have regard to” the provisions of the Development Plan.
[23] That does not mean to say that principles of statutory construction will be irrelevant in construing the meaning of the Plan: Frankham v Adelaide City Council (2004) 89 SASR 372 at 378, [2004] SASC 263 at [20], Besanko J.
[24] (2001) 79 SASR 509, [2001] SASC 166.
[25] Ibid, 515-6, [25].
[26] (1985) 38 SASR 161.
[27] Ibid, 187. O’Loughlin J concurred with the Chief Justice.
I pointed out that the present obligation under the Development Act was to assess a development against and to take into account the provisions of the relevant Development Plan.[28] That may or may not confer quite the same width of unfettered discretion as the obligation under the Planning Act 1982 (SA) to which King CJ referred. However, the important point is that a Development Plan remains as a set of objectives and principles, and is not to be regarded as a legal mandate. The discretion conferred must be exercised in the manner described by the former Chief Justice in the second paragraph quoted above.
[28] Development Act 1993 (SA) ss 33(1) and 35(5).
The trial Judge acknowledged that the provisions of the Plan in this case were not mandatory.[29] However, when discussing trading hours of licensed premises in relation to the Plan the Judge used such expressions as:
· 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.[30] (Emphasis added.)
· 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.[31] (Emphasis added.)
· 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.[32] (Emphasis added.)
· …late night activities which do not enhance the residential amenity will not be permitted.[33]
[29] [2007] SASC 313 at [34].
[30] Ibid, [29].
[31] Ibid, [34].
[32] Ibid, [38].
[33] Ibid, [40].
It was largely for these reasons that the Judge considered that the discretion exercised by the Environment Court had miscarried. However, I cannot accept that the Development Plan is cast in such mandatory terms or that, if it is, consideration of residential amenity is any more than an important factor to be taken into account in assessing the proposed trading hours against the provisions of the Development Plan.
Council-wide Objective 26 and Principles of Development Control 85 and 86 relate directly to licensed premises and licensed entertainment premises and associated activities. In each case, a proposed development and operating hours should be such as to “reinforce” the desired character of the locality. The major part of the relevant locality and the zone in which the premises are to operate is the Mainstreet (O’Connell) Zone. I have already set out the relevant provisions of the Statement of Desired Character for that Zone contained in the Plan. The primary or “main” focus of the Zone is for retail, commercial and community activities to reinforce the role and image of the Zone as “an attractive linear shopping centre with a distinctive village character and amenity”. Late night entertainment activities are obviously part of that focus, but the Statement provides that they should “remain” limited and few in numbers and function as a “secondary use” to primary uses in the Zone. The Statement does not provide, as the Judge suggested at various points in his reasons, that development must ensure the enhancement of residential amenity. It requires that the “impacts” of development will be carefully controlled and managed in order to ensure such enhancement. Enhancement of residential amenity is not merely the reduction of noise at night. Nearby residential amenity can be enhanced in a number of ways, including by the proximate provision of retail, commercial and community activities provided for in the Zone.
What I regard as the primary character of the Zone is reinforced by Principles of Development Control 1 – 5 of the Mainstreet (O’Connell) Zone. Late night entertainment activities, licensed premises and entertainment are clearly part of the desired character of the Zone. They must nevertheless be assessed against the impact, both positive and negative, that they will have on the quality of the nearby living environment.
What the Judge on appeal did was to elevate the enhancement of residential amenity to an almost mandatory requirement of any development in the Zone to the detriment of what is stated as the Zone’s main focus. The balancing approach and planning judgment required to determine the application was, in effect, rendered irrelevant. The Judge described the operator of a licensed premises as having a difficult onus to discharge when seeking an extension of trading hours into the early hours of the morning.[34] On the approach taken by the Judge it became an almost impossible onus to discharge.
[34] Ibid, [34].
The Statement of Desired Character of the Zone recognises that certain developments will impact on adjacent residential areas. As I have said, those impacts may be positive and negative. The potential conflict is recognised particularly in council-wide Objective 84 which, on the one hand, encourages “enhanced vitality and character” of this and other zones and the need to manage their impact in a way which protects amenity in adjacent residential areas. That becomes a matter of careful planning judgment.
That is particularly so in respect of closing times for premises and licensed entertainment premises in this and some other zones. For the Central Business Area Zone the Plan prescribes desirable closing times for the whole Zone.[35] In the Mixed Use Zone, which also has an Objective of preservation of the amenity of residential properties located within adjacent Residential Zones,[36] desirable closing times are prescribed for premises in Rundle Street and Hindley Street West.[37] No such prescription is in place for the Mainstreet (O’Connell) Zone.
[35] Principle of Development Control 37.
[36] Objective 9; Principles of Development Control 19-21.
[37] Principle of Development Control 33
It is evident from the Commissioner’s reasons that he did not find the planning judgment an easy one to make. Nevertheless, it is one that he made after directing himself properly on the law and after carefully considering all relevant matters. It was not for this Court to interfere with that planning judgment.
That is sufficient to dispose of the appeal. Although it is not critical in the result, the Judge seems to have treated the application as an application for an extension of existing trading hours prescribed in the provisional Development Plan consent granted on 21 April 2006, as if they were the trading hours then being observed. Since the commencement of the redevelopment, no liquor sales, restaurant service or gaming activities have taken place on the premises. The application did seek a variation of an existing condition of approval, but that was a condition which had never operated. In reality the application to the respondent sought a determination of the trading hours for the premises not by way of extension of any existing practice, but from the commencement of business to be conducted from the premises. Therefore, to the extent that the Judge characterised the “extension” as detrimental to residential amenity when compared with the then existing approval, it was a rather meaningless characterisation.
Indeed, without deciding whether this is an appropriate comparison to make, it could be said that, compared with the trading hours and licensed capacity of the Hotel Adelaide, the size and trading hours of this facility could only enhance nearby residential amenity.
Conclusion
For these reasons I consider that there was no justification for this Court to interfere with the judgment of the Environment Court. I would therefore allow the appeal. I would set aside the orders of the single Judge made on 23 August 2007. I lieu thereof I would order that the appeal against the order of the Environment Court made on 1 June 2007 be dismissed and that the appellant before the single Judge pay the respondent’s costs of that appeal. I would hear counsel as to the costs of this appeal.
LAYTON J. I agree with the orders proposed by Bleby J and with his reasons. There is nothing I wish to add.
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