Liquorland (Aust) Pty Ltd v City of Unley No ERD-00-201 [2000] SAERDC 38 (27 July 2000)

Last Updated: 19 December 2000

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Decision of Commissioner Hodgson

Hearing

31/05/2000 to 01/06/2000.

Catchwords

Development Act 1993 - application to change use of land from motor vehicle repair and sales showroom to retail liquor outlet - Specialty Goods Centre Zone - refused by Council - appeal - planning merits considered - adequacy of number of parking spaces proposed - appropriateness of condition restricting approval to retail liquor outlet use - proposal generally in conformity with relevant Development Plan provisions - provisional development plan consent granted, subject to conditions.

Materials Considered

• Development Act 1993 , referred to.
• South Australian Housing Trust v Development Assessment Commission 63 SASR 35;
• Park Valley Estates Pty Ltd v South Australian Planning Commission (1994) EDLR 83;
• Hanna v District Council of Yorke Peninsula (1998) EDLR 474;
• Kipa Freeholds v Development Assessment Commission (1999) EDLR 39;
• Beer v South Australian Planning Commission (1988) 145 LSJS 284, considered.

Representation

Appellant LIQUORLAND (AUST) PTY LTD:
Counsel: MR J MCELHINNEY - Solicitors: WARD & PARTNERS

Respondent CITY OF UNLEY:
Counsel: MS S BLENCOWE - Solicitors: MINTER ELLISON

ERD-00-201

Judgment No. [2000] SAERDC 38

27 July 2000

LIQUORLAND (AUST) PTY LTD

v

CITY OF UNLEY

(ERDC No. 201 of 2000)

[2000] SAERDC 38

THE COURT DELIVERED THE FOLLOWING DECISION:

1. This is an appeal against a decision of the City of Unley ("the Council") to refuse provisional development plan consent to an application under the Development Act 1993 by the appellant. Some relevant details are set out hereunder:

Date of application: 18 October 1999

Subject land: 245-255 Unley Road, Unley

Certificate of Title: Volume 5617 Folio 720, 721 and

722 and Volume 5481

Folio 468, Hundred of Adelaide

Existing Use: Motor vehicle repair and sales

showroom

Proposed development: Change use to retail liquor outlet

Relevant Authority: City of Unley

Relevant Development Plan: Unley (City) 31 July 1997

Relevant Zone: Specialty Goods Centre Zone

Date of decision: 28 February 2000

Appeal lodged: 13 March 2000

2. When this matter came on for hearing, the appellant company was represented by Mr J. McElhinney, of counsel, and the Council by Ms. S. Blencowe, of counsel. Sworn evidence was given by Mr G. Burns, a qualified and experienced town planning consultant, Mr. R. Dwyer, a qualified and experienced town planner in the employ of the respondent Council, and Mr M. Young, a qualified and experienced traffic engineer.

3. The Court conducted a view of the subject land and its locality, and received a number of exhibits.

The Subject Land

4. The subject land comprises the greater part of an area of land fronting Unley Road, bounded by Clifton Street to the north, Eton Street to the south, and Clifton Place/Eton Place to the east, which land was previously occupied by Unley Mitsubishi as a motor showroom, used car yard, and motor repair workshop. An area of land on the corner of Unley Road and Eton Street, having dimensions 32m by 41m, does not form part of the proposal, the subject of these proceedings.

5. Eton Place and Clifton Street are both 6.1m wide public lanes, and abut the northern and southern side walls respectively of an existing masonry building, formerly used as a motor repair workshop, which extends to within 900mm of the eastern boundary of the subject land. This 900mm portion of land connecting Clifton Place and Eton Place has, on the evidence, the status of a reserve.

6. Excluding the site on the corner of Unley Road and Eton Street, and the public lanes and reserve along the eastern boundary, the subject land has an overall area of 2,644m².

7. Improvements on the land comprise the former Unley Mitsubishi motor showroom and motor repair workshop building. The building has concrete block and brick walls, and a total floor area of 1311m², excluding several loft areas which, on the evidence of Mr. Burns, the appellants do not propose to use, for occupational health and safety reasons.

8. The portion of the building previously used as a workshop extends east to the 900mm reserve, and has roller doors on its northern and southern sides, facing directly into Clifton Place and Eton Place, with a third set of roller doors facing onto a rear carpark from that part of the building previously used as a motor showroom. A further roller door provides direct access from Clifton Street. The rear carpark, which is accessed from Clifton Street and Clifton Place, is presently linemarked for parking 23 vehicles.

The Locality

9. The locality defined by Mr. Dwyer, for the purpose of his evidence, extends one block north and one block south of the subject land, comprising those properties fronting Unley Road, between Wattle Street and Fisher Street, (typically, shops, showrooms and offices) properties on the western side of Unley Road, and those dwellings on both sides of Clifton and Eton Streets which lie reasonably close to the subject land. Mr Burns did not define a locality, and I accept that defined by Mr Dwyer as an appropriate locality.

10. Commercial uses within the locality all have frontages to Unley Road, with associated off-street parking. South of Eton Street, on the eastern side of Unley Road, is the Malvern Village Shopping Centre, which has its carpark situated between the shops and Unley Road. Most of the shops and offices in the locality have parking areas located to the rear.

11. Clifton Street and Eton Street have both been closed towards their western ends, immediately to the east of Clifton Place and Eton Place. The Clifton Street closure incorporates substantial landscaping to provide a visual as well as a physical barrier at the interface between commercial and residential land uses.

12. Residential development east of the subject land comprises older style detached dwellings fronting onto Eton Street and Clifton Street. The western boundary of the residential allotments to the immediate east of the subject land is coincident with the boundary between the Specialty Goods Centre Zone and the Residential A560 Zone.

The Proposal

13. The proposal entails the alteration and upgrading of the existing former showroom and motor repair workshop building for a "Quaffers" retail bottle shop. The easternmost portion of the building, abutting Clifton Place and Eton Place, is to be demolished, the area to be removed being some 135m². Floorspace allocation is proposed to be as follows:

- Beverage displays, sales and wine tasting 821m²

- Storage 119m²

- Staff amenities 100m²

Total 1040m²

Provision is to be made for 44 parking spaces on the subject land, 20 of these in the existing rear carpark, 4 spaces in the front of the building, with access from Clifton Street and egress only to Unley Road, 6 staff parking spaces adjacent the delivery area, and 14 spaces on the southern side of the building.

14. Two customer entrances/exits are to be provided, one via automatic doors facing east with the rear carpark, the other in the south-western corner of the building, facing Unley Road and the southern carpark.

15. Removal of the easternmost portion of the existing building would allow customer vehicles to move between the two main parking areas as well as allowing delivery vehicles to reverse into the delivery area from either Clifton Place or Eton Place.

16. The evidence of Mr. Burns was that the proposed store was expected to generate a need for 2-3 truck deliveries/week (each truck holding up to 12 pallets) together with smaller quantities of product delivered by smaller vehicles (vans etc), this requiring some 12-15 deliveries/week. Deliveries would occur on weekdays during normal business hours, while trading hours were proposed to be 9.00am to 9.00pm daily. Staff parking on the site at any one time would require 4-5 spaces. Existing landscaping adjacent Clifton Street would be retained, and additional landscaping provided throughout the rear carpark, and to the front of the building.

17. Advertising signs would comprise three non-illuminated signs and one illuminated sign, each 6m long by 1.25m high, in the "Quaffers" corporate colours of white and black.

18. Products other than liquor sold from the premises would be those permitted by a retail liquor merchant's licence, issued pursuant to section 37 of the Liquor Licensing Act 1997, namely, "Goods..... of the kind normally associated with and incidental to, the sale of liquor (eg. glasses, decanters, cheeses and pates)."

19. In view of the likelihood of many purchases being in the form of one or more cases of wine or beer, it is proposed to provide trolleys for the convenience of customers, these being housed in a number of locations throughout the carpark.

20. Busiest trading times were, on the evidence of Mr. Burns, likely to be Thursday evenings and Friday and Saturday afternoons.

Development Plan Provisions

21. The subject land is located within the Specialty Goods Centre Zone depicted on Map Un/9 in the Development Plan for the City of Unley. The relevant objective for that zone is as follows:

Specialty Goods Centre Zone

"Objective 1: Accommodation of small-scale retail specialty goods outlets, local convenience shopping facilities and neighbourhood, community, entertainment, religious and recreational facilities of a low traffic generating nature."

Relevant zone principles are:

" Principle 1: Development should be, primarily, small-scale retail specialty goods outlets, local convenience shopping facilities, and neighbourhood community, entertainment, education, religious and recreational facilities of a low traffic generating nature." "Principle 2: Development should provide a continuous retail frontage." "Principle 4: Small-scale specialty goods outlets and restaurants should be located within the King William Road and northern most Unley Road Specialty Goods Centre Zones." "Principle 7: Development should limit direct vehicular access to arterial roads.

22. It was common ground between the parties that the subject proposal was properly characterised as a "shop", which is designated as a consent use within the zone by virtue of the operation of Principle 8 (Complying Development) and Principle 9 (Non-complying Development).

Other Development Plan provisions of particular relevance are:

Unley (City)

"Objective 5: Non-local traffic utilizing the arterial road system, and not local streets." "Objective 8: Off-street parking areas able to cater for the demands of existing and proposed development in Office, Mixed Use and Centre Zones." "Principle 55: Shopping development should provide adequate car parking for employees and visitors as follows: (a) Local Centre Zones: five spaces per 100 square metres of total floor area. (b) Neighbourhood Centre and Specialty Goods Centre Zones: six spaces per 100 square metres of total floor area. (c) District Centre Zones: seven spaces per 100 square metres of total floor area. (d) Car parking for shopping development outside of centre zones should be seven car spaces per 100 square metres of total floor area, subject to the provisions of Principle of Development Control numbered 96; where total floor area includes store and other shop-associated areas, but excludes covered public circulation areas." "Principle 57: Access points for the [sic] development should be determined by the Department of Road Transport in consultation with the Planning Authority." "Principle 60: Shopping development should provide for separate parking spaces for the disabled." "Principle 94: Development adjacent to every road and street should conform with the objectives relating to movement of people and goods and be compatible with the hierarchy of roads shown on Map Un/1 (Overlay 1)." "Principle 95: Development should provide sufficient off-street parking to accommodate resident, visitor, customer, employee, and service vehicles." "Principle 96: Car parking areas should: (a) be located and designed in such a way as to ensure safe and convenient pedestrian access from vehicles to facilities; safe and convenient traffic circulation; include adequate provision for manoeuvring into and out of parking bays, and, in the case of centre-type development, result in minimal conflict between customer and service vehicles; and (b) be designed so as to obviate the necessity for vehicles to back onto public roads." "Principle 98: Development should provide the opportunity for the shared use of car parking and integration of car parking areas with adjacent development so as to reduce the total extent of car parking areas." "Principle 99: Development providing 25 or more car parking spaces should provide at least one car parking space in every 25 spaces for the use of the disabled, up to a maximum of five spaces."

Metropolitan Adelaide

"Objective 25: A form of development adjoining main roads which will: (a) ensure traffic can move efficiently and safely; (b) discourage commercial ribbon development; (c) prevent large traffic-generating uses outside designated shopping/centre zones; (d) provide for adequate off-street parking; and (e) provide limited and safe points of access and egress. The main element of the transport system are shown on Map Un/1 (Overlay 1)."

24. Other relevant Development Plan provisions are:

Metropolitan Adelaide Objectives 1, 2, 10-12, 19, 24, 37-40 and Principles 17(a), 18-20, 29-31, 33, 40-42, Unley (city) Objectives 1, 5, 19, 52, 53 and 54 and Principles 1, 2, 4, 8, 9, 10, 11, 12, 50, 51, 54, 100, 105, 108-117 and 123.

Assessment

25. It was common ground between the parties that the sole area of dispute concerning the subject proposal related to the adequacy or otherwise of the number of parking spaces proposed. The evidence of Mr Dwyer was that, based on his calculation of the total floor area of the proposed development (1087m²) some 65 carparking spaces would be required, on the basis of the parking provision prescribed by Unley (City) Principle 55. This requirement, in his view, could be reduced by applying to the area designated for storage a lower carparking standard referred to elsewhere in the Development Plan, namely 2 spaces/100m², thereby reducing the total parking requirement to 61 spaces. The shortfall between this figure and the 44 spaces proposed (17 spaces) was such that the proposal would, in his opinion, result in undesirable on-street parking in Unley Road and adjoining residential streets and could interfere with the free flow of traffic within the locality.

26. Mr Dwyer also expressed a concern that, were the proposed carparking provisions to be accepted on the basis that a bottle shop needed less carparking than a typical shop, the existing use rights attaching to the subject land would allow a different type of shop, perhaps creating a much greater demand for carparking, to be established on the land in the future without the need for a further planning consent.

27. The evidence of Mr Young, the only traffic expert to give evidence, was that the number of parking spaces proposed was adequate, for the following reasons:

(a) in the light of studies he had undertaken of parking demand at two other stand-alone bottle shops in the metropolitan area owned by Liquorland, he had concluded that the proposal would generate an 85^th percentile parking demand ratio of approximately 3.7 spaces/100m² of retail and an 100^th percentile ratio of 5.0 spaces/100m²; (b) in calculating the retail area of the proposal, an area of 100m² devoted to staff toilets and amenities should be excluded insofar as it did not generate a demand for parking additional to retail areas; (c) based on a resultant retail area of 821m², and a storage area of 119m², the 100^th percentile parking requirement would be 43.38 (44) spaces, the number of spaces proposed; (d) should abnormal peaks be experienced from time to time, up to 24 spaces were available on the streets adjacent the site. Such peaks, if they occurred, were most likely on Saturday afternoons, at which time there were no clearway conditions on Unley Road and traffic volumes were lower.

28. With reference to the concerns expressed by Mr Dwyer that, should the proposed carparking provision prove inadequate, there would be parking pressures on the nearby residential streets, Mr Young was of the view that there was very little likelihood of this occurring. Both Eton Street and Clifton Street were closed close to Unley Road, and accessing those parts of Eton and Clifton Streets close to the eastern side of the road closures would necessitate a substantial detour via either Fisher or Wattle Street and Cambridge Terrace.

29. In Mr Young's view, the availability of additional kerbside parking in those portions of Eton and Clifton Streets between Unley Road and the closure points of the former meant that, even were there to be a change in type of shop on the site to, say, a supermarket, there would be no adverse effects on nearby residential properties as a consequence. This was because the parking ratios set out in the Development Plan reflected parking demands established prior to the liberalisation of shop trading hours. Extended hours had effectively spread parking demand over a much longer period, this being reflected in substantially lower demand ratios.

30. On the basis of his investigations and assessment of the proposal, Mr Young concluded as follows:

"I am of the opinion that while the parking for the proposed Quaffers Bottle Shop will not conform exactly to the parking requirement as specified for a shop in the Development Plan Unley (City), it will only be 8 spaces less than required in the Development Plan for a shop. Furthermore, I believe that the provision of 5.0 spaces/100m² will adequately meet the anticipated peak demand for parking on this site and I note that there will be up to 24 on-street spaces which would be available immediately adjacent to the subject site (without crossing Unley Road)."

31. The evidence of Mr Burns was that, on the basis of Mr Young's Statement of Evidence, he was satisfied that the proposed off-street parking provisions on the subject land would adequately meet the anticipated peak demand for parking thereon, and therefore that the proposal would not impact adversely on the surrounding road network, or on the locality.

32. In order to maintain existing levels of amenity for the occupants of the two dwellings to the immediate east of the subject land, Mr Burns suggested that the following conditions be imposed on any consent:

"1. No delivery vehicles or refuse collection vehicles shall enter or exit the subject land outside the hours of 8.30am to 6.00pm Mondays to Fridays; 2. Mechanical plant and equipment associated with the operation of the building shall be located either inside the building or inside the roof space of the building".

33. Having regard to the evidence of Mr Burns and Mr Dwyer and to my own reading of the Development Plan, I am satisfied that the adequacy or otherwise of the number of off-street parking spaces to be provided in association with the proposed development is the sole issue to be resolved in these proceedings. It raises two separate but related questions:

(1) is the provision of 44 off-street carparking spaces sufficient to meet the parking demand likely to be generated by the proposed retail liquor outlet? (2) if it is, is there nevertheless a risk that parking provision on the site will be inadequate because of the potential for a change to a different type of shop use, requiring a greater number of parking spaces, without a further planning consent being required?

34. With reference to the first of these questions, the only expert evidence on traffic and parking issues, that of Mr Young, was that 44 spaces would be adequate. Mr Young based this opinion both on his extensive experience and on a specific examination of several free-standing retail liquor outlets in comparable locations ie, abutting major arterial roads.

35. No countervailing expert evidence was led for the Council, Ms Blencowe relying on the evidence of Mr Dwyer to the effect that the proposal breached Unley (City) Principle 55 to an unacceptable degree.

36. Like other provisions of the Development Plan, Principle 55 is advisory rather mandatory: South Australian Housing Trust v Development Assessment Commission 63 SASR 35. It represents the starting point for an assessment of the adequacy or otherwise of the carparking to be provided as part of the subject proposal. Mr Dwyer, in evidence, acknowledged that different types of shop (for example, a supermarket compared to a pet shop) could generate significantly different demands for carparking. Ultimately, it appeared that while he was not convinced that the proposed parking provisions would be adequate for a retail liquor outlet per se, he was more concerned about the potential for the type of shop on the subject land changing to one which required a greater number of parking spaces (eg, a supermarket), without the need for any further planning consent, on the assumption that an existing use rights for a "shop" had been established by approval of the subject proposal.

37. For the purpose of the first question, and having regard to the only expert traffic and parking evidence called, I am satisfied that the provision of 44 spaces, in the particular circumstances of the subject land and for the purpose of a retail liquor outlet thereon, would represent an adequate level of parking, and one which would not result in adverse effects on the flow of traffic on Unley Road or on the amenity of nearby residential areas.

38. With reference to the second question, Mr McElhinney submitted that the appellants would be prepared to abide a condition restricting the use of the subject land to that of a retail liquor outlet, unless and until a further planning consent was obtained for an alternative shop use.

39. Ms Blencowe contended that any approval issued for the subject proposal would be an approval for the generic use of a "shop", and that any form of retailing encompassed by the definition of a shop in the Development Regulations could be established on the subject land as a replacement for the proposed retail liquor outlet, without the need for any further planning consent being obtained. In her submission, the imposition of a condition, restricting the use of the subject land to a retail liquor outlet and requiring a further consent for a shop use other than a retail liquor outlet, would be of dubious validity and difficult to enforce.

40. Ms Blencowe referred to two lines of authority in support of this submission. The first was a succession of decisions in which it was held that conditions should not be used to render appropriate a development which was fundamentally unsuitable for its site: Park Valley Estates Pty Ltd v South Australian Planning Commission (1994) EDLR 83; Hanna v District Council of Yorke Peninsula (1998) EDLR 474; and Kipa Freeholds v Development Assessment Commission (1999) EDLR 39. The second line of authority was a succession of decisions which held that it was generally inappropriate to limit a consent to a particular individual or operator, for example, Beer v South Australian Planning Commission (1988) 145 LSJS 284.

41. In my view, neither the above lines of authority provides support for Ms. Blencowe's contention. Having already concluded, having regard to the expert evidence of Mr Young, that the subject proposal would have adequate off-street carparking, and having regard also to the evidence of Mr Dwyer and Mr Burns that it satisfied other relevant provisions of the Development Plan, I am satisfied that it is intrinsically suitable for its site. Any condition imposed which sought to limit consent to a retail liquor outlet would not represent an attempt to re-shape the subject proposal to render it acceptable, but rather, an attempt to ensure that the site was not subsequently occupied by an unsuitable form of shop. Similarly, it has not been proposed that any consent be restricted to the appellants, but rather, that any consent be restricted to a particular type of shop.

42. A "shop" is defined in the Development Regulations as follows:

"(a) premises used primarily for the sale by retail, rental or display of goods, foodstuffs, merchandise or materials; or (b) a restaurant; or (c) a retail showroom; or (d) a personal service establishment, but does not include- (e) a hotel; or (f) a motor repair station; or (g) a petrol filling station; or (h) a plant nursery where there is no sale by retail; or (i) a timber yard; or (j) service trade premises; or (k) service industry;"

43. The definition is broad, and, capable of encompassing retail activities having widely - varying characteristics and associated externalities, such as noise and traffic generation, hours of operation, and parking demand. Clearly, a supermarket of a given size is likely to generate more customers, more vehicle movements and trade for longer hours, than, say, a shop of the same size selling musical instruments or furnishing fabrics. That being the case, it seems to me that whether a change in the type of retailing undertaken on a particular site constitutes a change of use, and thus requires consent, will be a matter of fact and degree, turning, in large part, on whether the externalities occasioned by that change vary significantly from those created by the previous retail use.

44. A retail liquor outlet is a specialised type of shop. On the evidence, it creates a level of parking demand lower than many other types of shop. It also requires licensing pursuant to the Liquor Licensing Act 1997. It is, in my view, sufficiently distinguishable from other types of shops to justify the imposition of a condition restricting the use of the subject land to that of a retail liquor outlet, a condition which the appellants advise they are willing to abide.

45. Having regard to all the above, to what I saw on the view, and to the relevant provisions of the Development Plan, I have concluded that, subject to appropriate conditions, the subject proposal warrants consent.

46. By memorandum circulated to the parties and dated 13 June 2000, I advised them of my conclusion, and the reasons for it. I invited them to discuss the question of conditions and to make submission thereon.

47. The parties came before me again on 24 July 2000 and advised that they had agreed conditions. That being the case, I have decided that the subject proposal should be granted provisional development plan consent, subject to the following conditions:

1. Other than as varied by these conditions, the development shall be carried out in accordance with the amended plan dated 25^th May 2000 and comprising Exhibit A1. 2. The approved use of the land shall be restricted to a retail liquor outlet operated in accordance with any Retail Liquor Merchant's Licence granted under the Liquor Licensing Act 1997 in respect of the approved development and the products to be sold from the premises shall be confined to those authorised under the Retail Liquor Merchant's Licence including goods of the kind normally associated with, and incidental to, the sale of liquor. 3. 44 carparking spaces shall be provided for the approved use as a retail liquor outlet in accordance with condition 1. 4. The landscaping, as approved by the Council, shall be established prior to occupation of the development and the landscaping and site shall generally be maintained to the reasonable satisfaction of Council at all times. Further, trees used in landscaping of the site shall be at least 1.0 metre in height at the time of planting. 5. The approved waste disposal facilities and waste enclosure shall be installed and operative prior to occupation of the development. 6. Waste disposal vehicles and general delivery vehicles shall only service the development between the hours of 8.30am and 6.00pm Monday to Friday. 7. The carparking areas are to be maintained at all times to the reasonable satisfaction of Council. 8. All landscaped and grassed areas shall be separated from adjacent driveways and parking areas by a suitable kerb or non-mountable device to prevent vehicle movement thereon, prior to occupation of the development. 9. The driveway and carparking areas shall be surfaced, drained and marked to the reasonable satisfaction of Council prior to the development being occupied. 10. Suitable wheel stops or bump bars shall be placed in parking spaces 1 to 44 inclusive, as indicated on the approved plan, to prevent damage to fences and landscaping on site, prior to use of the car parking area. 11. The carparking spaces nominated on the approved plan shall be available free of charge to any individual visitor to the site or employee on the site during the business hours of the premises. 12. A sign shall be erected on the site in suitable location(s) indicating the provision of parking to the rear of the site in accordance with any further approvals necessary for such a sign pursuant to the Development Act. 13. The hours of operation of the premises shall not exceed the following periods: Sunday 9.00am to 9.00pm Monday to Saturday 8.00am to 9.00pm 14. All stormwater from the building and site shall be disposed of so as to not adversely affect any properties adjoining the subject land. 15. The portion of existing crossover on Unley Road which will not be utilised to provide vehicle access to or egress from carparking on site shall be reinstated to kerb and gutter at the expense of the applicant, and the subject development shall not be occupied until these works are completed. 16. Mechanical plant and equipment shall be located either inside the building or in a concealed position inside the roof space and be operated so as to avoid noise or disturbance to adjoining premises.

48. There will be an order accordingly.