Wilkins v Corporation of the City of Unley

WILKINS v CORPORATION OF THE CITY OF UNLEY
[2001] SASC 180
Land and Valuation Division

DEBELLE J. This is an appeal from the decision of a Commissioner of the Environment, Resources and Development Court (“the Environment Court”).
The appellant applied to the Corporation of the City of Unley (“the Council”) for development consent to conduct the business of a massage parlour. The Council refused to grant development consent. The appellant appealed to the Environment Court which dismissed the appeal. The appellant now appeals to this Court.
The premises are suites 1 and 2, Morrison Court, Unley Road, Unley. The appellant trades under the name “Bare Bunnies”. To dispense with euphemisms, the application was for development consent for a brothel as the Environment Court found. Although the premises are currently being used as a brothel, that is an irrelevant factor for the purpose of determining whether development consent should be granted: Airport Farms Pty Ltd v District Council of Lower Eyre Peninsula (1997) 69 SASR 472. Neither the Environment Court nor this Court is a court of morals: cf. Dennis v Parramatta City Council (1981) 43 LGRA 71. Instead, the role of each is to determine whether development consent should be granted according to law and according to the Development Plan and general planning principle. There is an interesting question whether either court should have heard the matter given that prostitution is an offence under the Summary Offences Act 1953: cf. Hackney Hotel Pty Ltd v Corporation of the Town of St Peters (1984) 36 SASR 265. But, as the question was not fully argued, I prefer to express no opinion on that issue.
The premises are subject to the Development Plan for the Council area. The premises are located in a Specialty Goods Zone. Objective 1 for this zone provides that the zone is intended to accommodate small-scale retail specialty goods outlets, local convenience shopping facilities, and neighbourhood and community entertainment, education, religious and recreational facilities of a low traffic generating nature”. That objective is reflected in the Principles of Development Control. This Specialty Goods Zone is a small zone forming a narrow strip along both sides of Unley Road. It is bordered on the west by a Residential B300 Zone.
The appellant’s premises are located in that part of the zone which is north of Young Street on the western side of Unley Road. The premises consist of two attached dwelling units which are connected by an arch through the party wall. There is a reception area, three other rooms furnished with double beds and decorated in various ways, a room called “girls room”, kitchens and a storeroom. Toilets are attached to the rear of the building. The premises are painted with a distinctive pink and black colour scheme on the external walls. There is no direct access from Unley Road, although pedestrian access can be gained. The main access is from Salisbury Street, which is to the west of Unley Road and parallel to it, then via Park Lane and Irwin Lane. The intended hours of operation are 10.00 am to 3.00 am on Sundays to Wednesdays and from 10.00 am to 6.00 am on Thursdays, Fridays and Saturdays.
The Commissioner described the development on Unley Road in these terms:
“North of Young Street, the Specialty Goods Centre Zone takes on a distinctive character. Functions associated with entertainment, relaxation and leisure become numerous. There is a popular hotel which includes gambling facilities and a wine merchant and there are many restaurants and cafes supplying a wide range of food types and decor styles. While many of these are situated in low, single storey buildings, many are neither small in size, ‘small-scale’ in the intensity of their operations, nor of a ‘low traffic generating nature.’ In the evenings later in the week, this northern end of the zone takes on the busy, bustling atmosphere of a typical restaurant strip. Such is common knowledge.”
Having found that the brothel is generically suitable in planning terms in this part of the Specialty Goods Centre Zone, the Commissioner then examined whether it fitted suitably within the neighbourhood or locality and whether it fitted sensibly on the site.
The border between the Specialty Goods Zone and the residential area to the west is Irwin Lane. The Commissioner found that, while the lane provided a clear physical demarcation between the residential and business zones, the activity demarcation was less obvious because the lane is used by the businesses which have frontages to Unley Road. However, that activity was mainly during daylight business hours and early evening. By contrast, the subject premises generated traffic throughout the night and into the early morning. Whereas traffic from the business premises was low and did not impact unduly on the amenity of the residential area, the Commissioner found that the proposed development would draw vehicular and pedestrian traffic through the residential zone outside daylight business hours, and also outside normally expected hours of night time activities such as restaurants. The Commissioner noted that access to the land could only be gained through the residential area to the west of Unley Road. A witness who conducted a survey showed that between 10.00 pm and 6.00 am on Friday nights the establishment is at its busiest. There was a steady flow of customers through the evening. Staff and customers arrive by taxi or other motor vehicles. The Commissioner found:
“In this situation, noise from cars and people occurs only a few metres away from residences and bedroom windows in the small hours of the morning in an area both developed for residential purposes and zoned as such. While this noise might be subsumed by the ambient noise in a technical sense, that does not mean that louder noises of short duration should have to be tolerated in a residential zone.”
The Commissioner then examined the car parking at the appellant’s premises. He concluded that, although the amount of traffic generated by the proposed development would be relatively low, the car parking was inadequate and failed to conform to the Australian Standard. He said:
“If the requirements of the Development Plan Table Un/4 were relaxed, if car parking is shared by all tenancies (as the tenancies are now used) and if the western car park is arranged so that cars can drive into it directly from Irwin Lane, then the situation might just be satisfactory. But these ‘ifs’, in site planning terms, are too many.”
The Commissioner concluded that the application should be treated on the basis that it is intended to provide entertainment at these premises. Although the premises were in a suitable zone, the business contrasted with others such as restaurants because it operates well beyond the hours of restaurants and could only be reached via lanes which bordered the residential area. For that reason, and because the car parking did not comply with Australian Standards, he dismissed the appeal and upheld the decision of the Council. He said:
“This matter is before me to be judged on its planning merits. As such, it must be treated as would any other proposal which seeks - whatever it may be called - to provide entertainment. On these terms it is in an appropriate zone and is of a relatively small intensity such that it does not generate from patrons in the actual premises a lot of noise and general activity. As such, it contrasts with some other nearby entertainment venues of similar scale such as restaurants. But it also contrasts with them in that it turns its back to the entertainment strip of northern Unley Road, operates well beyond the hours of these others and, for all intents and purposes, can only be accessed by back service lanes edging a residential zone. This means the amenity will be detrimentally affected to an extent that should not be expected at night in a locality significant part of which are residential. In addition, it cannot be demonstrated that the subject land can function to reasonable site planning standards.
Having regard to the relevant provisions of the Development Plan, the circumstances of the site and the proposed development, it is the decision of the Court that this appeal is dismissed, ...”
Thus, the effect of the Commissioner’s decision is that the activities at these premises extended through the night, unlike other premises providing entertainment in the area, and as such would detrimentally affect the significantly residential areas in that locality. These facts combined with the inadequate car parking caused him to dismiss the appeal.
It is readily apparent that the Commissioner’s decision is based on the planning merits. This Court has frequently stated that it does not sit to hear purely planning issues to be argued and will not interfere with a decision of the Environment Court unless it has plainly made an identifiable and egregious blunder, has made a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptional. This Court is reluctant to substitute its planning opinion for that of the Environment Court and will be minded to do so only where the appellant is able to demonstrate some fundamental departure from proper planning principle: Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165 at 173; Transfield (Adelaide) Pty Ltd v Port Augusta City Corporation (1982) 29 SASR 467 at 480; Walkerville Town Corporation v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 at 188.
Mr McElhinney, who appeared for the appellant, contended that there were three matters of principle, if not questions of law, on which the Commissioner had erred. Pointing to the passage from the Commissioner’s reasons last quoted above, he contended that the Commissioner had failed correctly to judge and measure the amenity of the locality by reference to the locality as a whole and its zoning: Lanzilli v Corporation of the City of Campbelltown (1982) 32 SASR 81 at 85. Mr McElhinney sought to show that the Commissioner had focussed on the amenity of the residential area and had failed to have sufficient regard to the locality as a whole, which included the Residential B300 Zone, the Specialty Goods Zone and an Office Zone fronting Greenhill Road. There was no dispute in the Environment Court as to the relevant locality. The issue is whether the Commissioner had erred in concentrating on the residential component of that locality. It is apparent from this experienced Commissioner’s reasons that he had not fallen into that error but has been at pains to have regard to the amenity of the whole of the relevant locality and the adverse effect upon that amenity. It is unnecessary to repeat the Commissioner’s reasons as the parties have them. It is sufficient to note that the Commissioner weighs the disturbance of the amenity against the criterion that people residing on the boundary of the residential zone must expect a level of disturbance. Furthermore, the very terms in which Mr McElhinney expressed his submission indicate that it does not raise any issue of principle or any question of law but, instead, questions the Commissioner’s assessment of the amenity of the zone and the impact on it of the proposed amenity. That is manifestly an exercise of a planning judgment with which this Court will not interfere. Finally, the finding was plainly open to the Commissioner on the evidence before him. In no sense is there any error of a kind which would justify this Court reversing the Commissioner’s conclusion.
Mr McElhinney also contended that the Commissioner had failed to apply correctly the standards for the measurement and assessment of noise. The appellant had called an acoustic engineer who gave evidence concerning existing levels of ambient noise and stated that the impact of any noise from the appellant’s premises would not adversely affect adjoining residential premises. The Commissioner has accurately summarised the effect of the engineer’s evidence. But he has fastened on the notorious fact that short, sharp noises over the ambient noise level are obtrusive, a conclusion open to him as a member of a specialist tribunal. On the evidence, it was open to the Commissioner to reach his conclusion. It has not been demonstrated that he did not properly apply the standards for the measure and assessment of noise.
The final ground of appeal is that there was no lawful basis for the Commissioner concluding that the car parking was inadequate. The Commissioner’s comments on the proposed car parking have already been stated. It is quite apparent from his reasons that the Commissioner believes there are too many contingencies to be satisfied and that he could not, therefore, approve the proposed car parking. That conclusion was open on the evidence and that conclusion involved quite clearly an exercise of planning judgment. There is no reason for disturbing it.
The appellant has failed on all grounds. The appeal is dismissed.

[2001] SASC 180

31 May 2001