AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Environment Resources and Development Court of South Australia Decisions

You are here:  AustLII >> Databases >> Environment Resources and Development Court of South Australia Decisions >> 1999 >> [1999] SAERDC 89

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

Blarney Holdings P/L v Corp City of Adelaide No ERD-99-966 Judgment No OE89 [1999] SAERDC 89 (19 November 1999)

Last Updated: 3 December 1999

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of His Honour Judge Bowering

Hearing

08/11/1999 to 11/11/1999.

Catchwords

LOCAL GOVERNMENT - TOWN PLANNING Development Act 1993 - application to vary Council's condition of approval for "use as licensed premises with entertainment" - variation of condition sought to extend hours for live entertainment refused by Council - reason being that the proposal would be contrary to Principle 7 of the Adelaide (City) Development Plan and to the desired future character statement for the F21 East End Precinct - noise level with regard to residential premises in the area considered - consideration given to the overall attainment of the future character of the precinct - whether proposal offends the provisions of Principle 7 - precedent effect considered - Council's decision upheld - appeal dismissed.

Materials Considered

Representation

Appellant BLARNEY HOLDINGS PTY LTD:
Counsel: MR J HILDITCH - Solicitors: WARD & PARTNERS

Respondent CORPORATION OF THE CITY OF ADELAIDE:
Counsel: MR P HOBAN - Solicitors: WALLMANS

ERD-99-966

Judgment No. OE89

19 November 1999

BLARNEY HOLDINGS PTY LTD

v

CORPORATION OF THE CITY OF ADELAIDE

ERDC No. 966 of 1999

[1999] SAERDC 89

JUDGEMENT OF HIS HONOUR JUDGE BOWERING

1 On 21st May, 1998, the Corporation of the City of Adelaide granted provisional development plan consent for to the use of premises situated at 10-20 Vaughan Place, Adelaide, for "use as licensed premises with entertainment". The decision notification form sets out the thirteen conditions imposed, by the Council, as part of its approval. Several of the conditions so imposed are in the following terms:-

· "The premises shall not be used as a nightclub, discotheque, band venue or similar.

· The hours of operation of the premises shall be restricted to the following times:-

. Sunday to Wednesday: 10.00am - 1.00am

. Thursday to Saturday: 10.00am - 3.00am

· There shall be no live entertainment after 1.00am on any morning or before 11.00am on any morning.

· Noise emanating from the premises shall not exceed 8dBA above the ambient background noise level when measured in any octave such measurement to be taken at the boundary of any nearby premises.

· All external windows and doors are to be closed when live entertainment is occurring.

· All amplification of live entertainment shall be via the licensees house system only."

2 In due course, the development was undertaken. For all practical purposes, it is a tavern conducted along the theme of a "British pub". It operates under a special circumstances license issued pursuant to Section 40 of the Liquor Licensing Act 1997. That license contains a number of conditions, one of which is in the following terms:-

"8. There shall be no live entertainment after 1.00am on any morning or before 11.00am on any morning."

3 By development application dated 4th May, 1999, Blarney Holdings Pty Ltd, the proprietors of the Elephant & Wheelbarrow Pub, applied to the Adelaide Council for planning authorization to vary the hours during which live entertainment may be provided in the pub. The application sought the extension of the live entertainment hours from 1.00am to 2.00am on Saturday and Sunday mornings. The Council refused the application. Its refusal is set out in a decision notification form dated 4th August, 1999, which form states the Council's reason for refusal in the following terms:-

"It is considered that the proposal would be contrary to Principle 7 and to the desired future character statement for the F21 East End Precinct, in that the proposal will detract from the amenity of the locality. The majority of licensed premises in the locality trade and abide by the hours of operation which limit live entertainment to 1.00am on any morning and the general trade until 3.00am on any morning. Allowing the proposal would be inconsistent with the desired future character of the precinct and would set an undesirable precedent in this regard."

4 Mr Stanislaus, the manager of the pub, gave evidence. He told me that experience has taught him that live entertainment - generally a three or four piece band with a singer or two - is a positive attraction to patrons of the pub. When a band is playing on the upper floor of the pub, that floor is, generally speaking, packed nigh unto capacity. Although, after the live entertainment ceases recorded music of a similar nature is played, the patrons tend to drift away. It is his wish to keep the live bands playing for an additional hour on Friday and Saturday nights (ie, Saturday and Sunday morning) and to so maintain the higher level of patronage for that period. He proposes to follow his present practice and play recorded music after the band has ceased playing until closure at 3.00am.

5 Before turning to the issues raised by this appeal, there are two matter which, I think, should be put to bed. The first relates to the classification of the use of the premises. The provisional development plan consent issued by the Council in May, 1998, described the development then proposed as "internal fit out and use as licensed premises with entertainment". However, Mr Hoban, for the Council, suggested that the premises were actually being used as a "licensed entertainment venue", which use is prescribed as non-complying within the F21 precinct, and that the proposed development could be viewed as an extension to such a use. Whilst, without doubt, the use to which the premises are put is such that it has some of the characteristics of a "licensed entertainment venue" as that term is defined by the Adelaide (City) provisions of the Development Plan, there is no suggestion that it is being used in a manner other than that approved by the Council or that the variation to conditions now proposed will change that at all. Thus I conclude that the only course appropriately open to me in these proceedings is to accept the classification of use as determined by the Council in 1998, namely as "licensed premises with entertainment". Mr Hoban did not press the point.

6 The second matter relates to the question of whether the applicant is currently complying with all of the conditions contained in the 1998 provisional development plan consent. There is some evidence which suggests that it is not. For example, when I viewed the premises whilst live entertainment was occurring, not all external doors were closed. The evidence of Mr Maddern suggests that noise emanating from the premises exceeds the ambient background noise level by more than 8dBA. Mr Maddern also suggested that, on at least one occasion, the band used an amplification system in addition to the licensee's house system, an issue strenuously disputed by Mr Stanislaus. However, this appeal does not relate to those matters. If, indeed, Blarney Holdings has not complied with all of the planning conditions, it is guilty of an offence against the provisions of the Development Act and is subject to prosecution. That is a different question from the one now before the Court. If the variation now proposed by Blarney Holdings warrants planning approval, such approval should be granted without regard to the question of whether it is subject to prosecution: Kouflidis & Jenquin Pty Ltd v Corporation of City of Salisbury (1982) 29 SASR 321.

7 The Elephant & Wheelbarrow Pub lies within the F21 East End Precinct as defined by the Adelaide (City) provisions of the Development Plan. The precinct is bounded by East Terrace, an east/west line roughly half way between Rundle Street and North Terrace, Pulteney Street, York Street, Frome Street and Grenfell Street. It is an area which, following the closure (15-20 years ago) of the produce markets which occupied significant areas in its eastern portion, has undergone substantial change. The process of change, which has seen substantial redevelopment, is far from finished and may be expected to continue for a period of at least 5-10 years. Much of this development has involved the construction of medium rise residential apartment buildings, many of which make provision for commercial uses and parking on the ground and lower ground floors. For example, the Liberman Group has undertaken a development known as "Garden East" in that area of land bounded by Rundle Street, East Terrace, Grenfell Street and Union Street, which project, will consist of approximately 250 townhouses and apartments located in nine medium rise buildings, many with commercial and carparking uses in the lower portions. To date, 186 townhouses and apartments have been completed, and there is space for many more in addition to the 61 immediately proposed. In addition, there is a new medium rise apartment building on the other side of Rundle Street, just west of East Terrace, known as "Botanic Apartments". In addition, the redevelopment programme has seen the refurbishment and upgrading of a number of heritage buildings - particularly those fronting Rundle Street and East Terrace, for a variety of uses, some residential but many commercial such as restaurants, offices, shops etc. An examination of the precinct shows that there are other buildings ripe for either refurbishment and upgrading or demolition and the redevelopment of the land thus becoming available. In addition, there are areas of vacant land - some used for carparking - with obvious development potential. There are two new cinemas, namely the Imax and Nova Cinemas, and, indeed, the new Elephant & Wheelbarrow Pub itself. One cannot help but gain the impression that the East End Precinct is on the move.

8 Thus it is that the opening words relating to the East End Precinct recognize the process of change. They provide that:-

"The East End Precinct should retain its distinctive historical and commercial character of older style ground floor shop fronts with professional rooms and other diverse activities above.

The existing intimate enclosure and lively atmosphere of Rundle Street and the more formal character of Grenfell Street and East Terrace should be maintained and further enhanced through the careful management of built-form and activities.

Development should acknowledge and respect the significant built form of the area's historic markets and the associated activities and should retain and enhance the consistent town shape and prevailing architectural forms."

9 Mr William Allison is employed by the City of Adelaide as an Environment Officer (Liquor Licensing), a position which he has held, under several names, since 1992. His various duties revolve around liquor licensing matters. He assesses applications for new liquor licenses or variations, liases with the Council's planning department and, if appropriate, lodges interventions and objections on behalf of the Council with the licensing authority. He deals with development applications relating to licensed premises and has appeared as a witness for the Council in various hearings conducted by the licensing authority. He is the Council officer responsible for dealing with complaints relating to licensed premises. Up until 8-10 years ago, the Council's policy with respect to licensed premises was somewhat erratic. There was little or no consistency with respect to hours of opening and closing and the various types of entertainment allowed. However, for the last five years or so, Council has sought uniformity of conditions under both the Development Act and the Liquor Licensing Act, taking into account the locality in which the premises concerned are located. Some success has been gained in achieving uniform planning and licensing conditions with respect to licensed premises in various precincts. For example, in Hutt Street, hotels and restaurants closed at approximately 1.00am, with live entertainment not extending beyond midnight. Similarly, in Melbourne and O'Connell Streets, live entertainment generally ends at 1.00am and premises close at 2.00am. The Council aims to establish a policy statement relating to opening and closing hours of licensed premises and restrictions on live entertainment and other aspects of the operation of the premises after consultation with all stake holders in the relevant precinct.

10 With respect to the East End Precinct, there is an East End Precinct Co-ordination Group Inc., which has approximately 70 members. The list of members (tendered as Exhibit R6) shows a wide and diverse membership, covering the hotels, developers, shops, restaurants and various other businesses, both big and small. For some reason it includes the Royal Adelaide Hospital. In liaison with this group (and perhaps others) the Council has prepared a policy statement relating to licensed premises within the East End Precinct. Although somewhat embryonic and subject to further consultation with land owners and business people within the precinct, the formulation of the policy appeared to have progressed to the point where positive steps can now be taken to implement it throughout the precinct. The objective of the policy appears to be the attainment, within the precinct, of a future character which will enable the unique diversity of uses within it to harmoniously co-exist whilst preserving what the Development Plan "the existing intimate enclosure and lively atmosphere of Rundle Street".

11 That policy calls, amongst other things, for all live entertainment to cease at 1.00am and licensed premises to close by 3.00am. In answer to Mr Hilditch, Mr Allison candidly admitted that the application the subject of this appeal was refused because it would involve the extension of live entertainment in the Elephant & Wheelbarrow from 1.00am to 2.00am, contrary to that policy. It is, I think, generally recognized that administrative bodies, including planning authorities, may rely on policies as a basis for decisions provided proper consideration is given to the application in each case and the applicant is given a reasonable opportunity to state his, her or its case: British Oxygen Co Limited v Minister of Technology [1970] UKHL 4; (1971) AC 610 and Drake v Minister for Immigration & Ethnic Affairs (1979) [1980] HCA 16; 29 ALR 577. Indeed, the use of a policy as a basis for decision making may, in some cases, be difficult to avoid. As Fox J said in NCA (Brisbane) Pty Ltd v Simpson (1986) 70 ALR 10 at 23:-

"It seems to me that the extent to which the individual can expect examination of his individual position, with a view to alteration of policy (or 'Rule'), is a matter depending on the operation of the particular legislation, the particular policy and the particular situation of the individual. If the decision maker has a wide general discretion, and the Act has application to many individuals and situations, it might be expected that the administration of the Act cannot effectively or efficiently be carried out without policies and rules. This is especially so when there are numerous decision makers of co-ordinate standing."

12 To what extent Mr Allison applied the policy without regard to the quite specific representations made on behalf of the applicant by Mr Graham Burns, a well recognized and experienced consultant planner, is not clear on the evidence. To what extent he had regard to the relevant provisions of the Development Plan is also unclear. If he failed to have regard to either of these matters he was, in my view, in error. However, for all practical purposes, that is now water under the bridge. In determining this appeal, I have had regard not only to the representations made by the applicant to the Council, but also to the evidence which has been placed before me, the relevant provisions of the Development Plan and what I saw when I viewed both the interior and exterior of the premises and other parts of the East End Precinct.

13 The evidence included testimony of two acoustic engineers, namely Mr Christopher Turnbull and Mr Peter Maddern. Each of these witnesses reached somewhat different conclusions, although I think that this difference was due more to differences in approach than differences in opinion. For example, Mr Maddern concluded that the pub is in breach of the condition which requires that noise emanating from it "not exceed 8dBA above the ambient background noise ..... such measurement to be taken at the boundary of any nearby premises", whereas Mr Turnbull was of the view that such noise did not exceed that level. It seems to me that the difference between these two witnesses, at least on this issue, lies in where they recorded their measurements: Mr Maddern chose, as the boundary of the nearest premises, the upper level of the Palais Parking Station, at a point some 15-20 metres from the northern side of the pub. At this point he recorded a noise level some 13dBA above the background noise. Mr Turnbull, on the other hand, assumed that the words "the boundary of any nearby premises" referred to the boundary of any nearby residential premises, and thus took his reading at a point significantly further remote from the pub, namely a point on the southern boundary of the Vaughan Place car park. He achieved a reading of less than 8dBA above the ambient noise. Another significance between these witnesses was that, when assessing the impact of live music, Mr Maddern compared the noise level emitted from the building when live music was being played with that emitted when no music was being played, whereas Mr Turnbull compared the level when live music was being played with that emitted when recorded music was being played. Naturally, the difference in readings was significant. Although there were other differences between these witnesses, the conclusion which I have reached is that these two differences in approach are sufficient to explain the different conclusions which they reached.

14 In my view, Mr Maddern's decision to record the noise emitted from the premises from the southern side of the Palais Parking Station represents the better approach, as the condition said to be breached refers to "such measurement to be taken at the boundary of any nearby premises" rather than to the boundary of residential premises. Hence, in this regard, I prefer his evidence to that of Mr Turnbull. On the other hand and acknowledging the fact that, at the conclusion of live music, recorded music will be played, I prefer the approach of Mr Turnbull in so far as he compared the noise level emitted by live music with that of recorded music. In particular, I accept Mr Turnbull's view that the difference in noise levels between live and recorded music is not great and would be almost indistinguishable some distance from the premises, and in particular, in the general area of the nearest residential accommodation.

15 However, although both parties placed considerable reliance on the evidence led by the acoustic engineers, I have come to the conclusion that, at the end of the day, noise is not the principal issue in this case. The real issue is the question of what time should this portion of Rundle Street and its immediate environs begin to "wind down".

16 Mr Hoban placed before me a schedule showing all the licensed premises either in Rundle Street or close to Rundle Street between Frome Street and East Terrace, showing both the trading hours and the entertainment hours applicable to each. It includes hotels, restaurants, cafes and night clubs. There are 41 premises listed. The schedule shows that 13 of such premises present no live entertainment, 11 are required to cease live entertainment at 1.00am although they may continue trading thereafter, whilst 17 have no restrictions on the hours of entertainment and are limited only by their trading hours. Mr Allison, the Council's liquor licensing officer, told me that, whenever the licence relating to premises which may legally provide live entertainment after 1.00am comes before the Licensing Court for transfer or other review, it is the Council's intention to apply to the Licensing Court to have the live entertainment hours restricted to 1.00am and the hours of trading to 3.00am. It adopts a similar policy itself when applications relating to such premises come before it under the Development Act. Hence the current restrictions applicable to the subject premises, imposed in May, 1998, and the decision which has given rise to this appeal.

17 Each party called a planning witness. The appellant called Mr Graham Burns, who expressed the view that, given the extent to which the activities of the Elephant & Wheelbarrow are already controlled by conditions imposed both under the current planning approval and under the Licensing Act, the extension of live entertainment for one hour on two nights per week will have no adverse effect on either the character or the amenity of the locality and will not be seriously at variance with the relevant provisions of the Development Plan. He saw both the present use of the pub and the proposed extension of live entertainment as consistent with the uses of land envisaged within the precinct and consistent with "the mix of activities in the precinct and the lively ambience of Rundle Street" envisaged by the environment and amenity provisions applicable to the precinct. He was of the view that it would have no detrimental impact upon the future development of land within the precinct.

18 Mr David Hutchison supported the decision of the Council. He supported what he described as the "cautious approach to the aspect of live entertainment, and in fact entertainment generally, within the F21 Precinct" adopted by the Council. I think that his opinion was, to some extent, coloured by his view that the past and present use of the pub should have been classified by the Council when it approved this development in 1998 as a "licensed entertainment venue", a use which is prescribed as non-complying within the precinct - thus he saw the current application as one to intensify a non-complying development. However, leaving that aside, he was of the view that the proposed extension of live entertainment did not warrant planning approval as it will constitute an intensification of the existing use of the land which will not comply with Principle 7 of the Council's Principles, namely:-

"P7 EXISTING USES - EXPANSION

A lawful existing use of land or a building (whether non-complying or not) may be permitted to expand beyond its existing site, or intensify within its existing site, provided such expansion or intensification is neither detrimental to its locality nor to the overall attainment of the Desired Future Character of the relevant precinct."

19 With respect to Principle 7 Mr Hutchison said:-

"It is my opinion that the alteration proposed, on the basis that it generates impacts beyond the boundary of the site, will not be limited to the existing site, has the potential to have a detrimental impact on the amenity of the locality, and may well be detrimental to the goal of achieving the mixed residential and commercial environment sought by the relevant precinct provisions."

20 Mr Hutchison's concerns with respect to the future development of the precinct were echoed by Mr Charles Corigliano, a chartered accountant who practices mainly in the fields of tourism and hospitality and who acts for a number of hotel keepers, restaurateurs, licensed clubs and cafes, Mr Grantley Pember, a Director of the Mancorp Group, a substantial developer in the East End and Mr Stephen Hay, the General Manager of the Liberman Group, the company currently undertaking the East End development to which I have already referred. It was their view that live entertainment within the precinct attracts a certain type and quantity of patronage, which patronage starts to "drift away" after such entertainment ceases. They are unanimous in their view that there is a significant "winding down" of people movement and activity generally within the precinct after one o'clock on a Saturday or Sunday morning. By and after one o'clock, many of the restaurants and cafes have closed, people drift away, car parks start to empty and only those venues which continue to present live entertainment retain their pre 1.00am ambience. They said that this is why the East End Precinct Co-ordination Group supports the endeavours by the Council to have the 1.00am live entertainment curfew and the 3.00am closure made uniform throughout the precinct. All three were of the view that such a curfew represents a proper balance between the various uses within the precinct and that any relaxation of the curfew has the potential to upset that balance and thus has the consequential potential to impair the development potential - particularly the residential development potential - of the precinct.

21 It is beyond dispute that the precinct accommodates a wide range of existing uses. The list of desired uses, set out in the precinct provisions, is equally wide and represents a range of uses which, in more normal localities, planners would seek to keep apart. One of the desired uses is "dwellings", and the bonus plot ratio provisions applicable in the precinct constitute a clear encouragement to the establishment of dwellings, of various kinds, within the precinct. A bonus plot ratio of up to 0.75 is a substantial bonus in anyone's language, and may well have played its part in attracting, to the precinct, the substantial amount of residential accommodation which has been established in it over the last five or ten years. These witnesses were of the view that there are extensive areas of land, within the precinct, either vacant or accommodating buildings fit for either demolition or refurbishment, which have substantial development potential. Much of the potential development, especially that not located on land with a frontage to Rundle Street, is likely to be either residential or of mixed use with a substantial residential component. One such area of land is the Vaughan Place carpark, immediately adjacent the subject premises.

22 Both Mr Pember and Mr Hay are associated with reputable developers with a proven track record of substantial and successful development within the precinct. Their views on what actions or decisions are likely to be harmful to the proper development or redevelopment of the precinct should not be lightly set aside. They were both firmly of the view that any waiver of the 1.00am live entertainment curfew is likely to damage the development potential of the precinct, particularly with respect to residential development. As stated, they were supported in this view by Mr Corigliano, whose evidence I also accept. In so saying, I have not overlooked that the concerns which they expressed go beyond the application now before me. Even though, for the reasons to which I have referred, they oppose the extension of live entertainment in the Elephant & Wheelbarrow Pub, a large part of their concern relates to the precedent effect which the approval of such an extension is likely to have. Their concern is that if this Court accepts such an extension as acceptable in planning grounds, the Licensing Court is likely to follow suit, with the consequence that other licensed premises, presently subject to the 1.00am curfew, will lodge similar applications with the Licensing Court - and, perhaps and if appropriate, also with the Council - which applications will be difficult to resist. They are concerned that the approval of this application has the potential to change the 1.00am curfew to a 2.00am curfew, a step which they see as detrimental to the precinct.

23 Given that each case must be considered on its individual merits, the application of the principle of precedent in planning matters is never easy. Still relevant are the comments which fell from Wells J in the matter of State Planning Authority v Tanczos & Ors (1979) 20 SASR 210, wherein His Honour said, at page 222, that:-

"What is relevant in each case must be determined by the nature of the application and by the circumstances in which it was made; but it must never be forgotten that the Board sits to administer a Planning and Development Act. The very title to the Act proclaims the necessity of looking, not only at contemporaneous facts and events, but also, within reasonable limits, at the probable evolution of the community and of its mode of living within an area that relates naturally and logically to the subject land. It would seem to me to have been imperative for the Board to have weighted the likely outcome, in the Brenda Park area at least, of granting the three applications before it. In my opinion, the probabilities were - or, at least, it may well be thought that the probabilities were - well worthy of consideration by the Board, that the granting of consent in any one of the three cases before it, a fortiori the granting of all three consents, would likely to encourage others in Brenda Park and elsewhere to pursue similar applications; that further consents would be likely to be granted; and that with the grant of every consent the difficulty of refusing subsequent applications would mount. If the distinct possibility that a spate of similar applications would follow the grant of the instant applications was realized, the Board would have thereby created the danger that Brenda Park would, as part of the Flood Plain, have been irretrievably lost to the planners."

24 Mr Hilditch referred me to my judgement in the matter of Nadebaum v City of Mitcham (1995) EDLR 587, wherein, in the light of the comments of Wells J, I said, at page 591, that:-

"Whilst it is generally accepted that each case must be considered on its merits, there are, I think, certain circumstances in which either a planning authority or this Court, when faced with an application for a development which, if taken alone, may be of little consequence, may appropriately consider the planning or other ramifications which may flow if uses of the type envisaged become, as a consequence of approving the development before it, more extensive within the locality. In so saying, I do not wish to be taken as suggesting that the 'precedent effect' of allowing any particular development should be taken as being either the sole or the dominant criterion in any particular case, but rather that, in some cases, it may be a factor to which a planning authority and this Court might properly have regard. Such a factor can never stand alone. It does not entitle either the relevant authority or this Court to either disregard the relevant provisions of the Development Plan or to treat the application concerned other than on its merits."

25 The circumstances in this case are unusual. I have not found the issues raised by it easy to resolve. However, the evidence of Mr Corigliano, Mr Hay and Mr Pember, and to some extent the evidence of Mr Allison, satisfies me that this is a case in which the "precedent effect" of approving the extension to the period of live entertainment now sought is a factor to which considerable weight must be attributed. This is particularly so, given the incremental nature of what is proposed. It is certainly not the only factor, nor is it a factor of such relevance as to justify failing to give due weight to the relevant provisions of the Development Plan. Those provisions do not, at first glance, appear to deal in any way with trading hours or hours of entertainment - compare Principle 108 of the City of Unley provisions of the Development Plan which speak specifically to trading hours of licensed premises. The proposal does not offend the land use, desired uses, townscape context or environment and amenity provisions of the Development Plan applicable to the precinct.

26 However, that said, I have come to the conclusion that the proposal does offend relevant provisions of the Development Plan sufficiently to justify the Council's refusal. The principal provision which it offends is Principle 7, the terms of which are set out earlier in this judgement. The terms of that Principle support, amongst other things, the intensification of a lawfully existing use within its existing site, "provided such expansion or intensification is neither detrimental to its locality nor to the overall attainment of the desired future character of the precinct." Mr Burns, the planning consultant who supported the appellant, was of the view that the proposed extension would not offend Principle 7 because he was of the view that the intensification proposed would not be detrimental to either the locality or the overall attainment of the desired future character of the East End Precinct. As I construe the evidence of Mr Corigliano, Mr Hay and Mr Pember, they are of the view that the extension is detrimental to the overall attainment of at least some of the desired future character of the precinct, namely the residential part of that future character. On this issue, I have no hesitation in accepting their evidence over that of Mr Burns. For these reasons I have come to the conclusion that the proposal offends, and significantly offends, the provisions of Principle 7.

27 It also offends, I think, that portion of the opening statement relevant to the precinct which talks in terms of the interface between Rundle Street and the more formal character of Grenfell Street and East Terrace. The relevant provision is in the following terms:-

"The existing intimate enclosure and lively atmosphere of Rundle Street and the more formal character of Grenfell Street and East Terrace should be maintained and further enhanced through the careful management of built form and activities."

28 In my view, the presentation of live entertainment within the precinct is one of the "activities" which needs to be carefully managed if the "more formal character of Grenfell Street and East Terrace" - including the residential developments behind their frontages, are to be maintained. I cannot accept that any change, including any extension of the hours of live entertainment, which has the potential to impair the development prospects of this portion of the precinct, can be regarded as "the careful management of ..... activities".

29 For these reasons I am satisfied that the decision of the Council of the City of Adelaide was correct. The order of the Court is that this appeal is dismissed.

2


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/sa/SAERDC/1999/89.html