Saturno v Corporation of The City of Unleynam No ERD-01-790 [2002] SAERDC 2 (11 January 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Hodgson

Hearing

06/12/2001.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - application to extend trading hours for gaming lounge of existing hotel - Specialty Goods Centre Zone - refused by Council - appeal - potential for noise disturbance in carpark abutting residential development - reliance on management and supervision - inappropriate to grant permanent consent - appeal allowed and time-limited consent granted, subject to conditions.

• Development Act 1993 , referred to.
• Lanzilli Holdings Pty Ltd v Corporation of the City of Campbelltown (1982) 32 SASR 85, considered.

Representation

Appellant: ADRIAN JOHN & LEON EDMUND SATURNO
Counsel: MR J COSTELLO - Solicitors: CLELANDS SOLICITORS

Respondent: CORPORATION OF THE CITY OF UNLEY
Counsel: MS SYBELLA BLENCOWE - Solicitors: SYBELLA BLENCOWE

ERD-01-790

Judgment No. [2002] SAERDC 2

11 January 2002

ADRIAN JOHN SATURNO & LEON EDMUND SATURNO

v

CORPORATION OF THE CITY OF UNLEY

(ERD 790 of 2001)

[2002] SAERDC 2

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal against the decision of the City of Unley ("the Council") to refuse to grant provisional development plan consent to an application under the Development Act 1993, which application sought to vary the existing trading hours for the gaming area in a hotel. Some relevant details are set out hereunder:

Date of application: 12 June 2001

Subject land: 25 Unley Road, Parkside

Existing use: Hotel

Proposed development: Extension of existing trading hours

for gaming area

Relevant authority: City of Unley

Relevant development plan: Unley (City) 1 March 2001

Relevant zone: Speciality Goods Centre Zone

Date of decision: 23 July 2001

Appeal lodged: 2 August 2001

2. When this matter came on for hearing, the appellants were represented by Mr. J Costello, of counsel, and the Council by Ms. S Blencowe, of counsel. Sworn evidence was given by Mr. L Saturno, one of the appellants, Mr. M Noble, a security expert, Ms. T Grose, manager of the subject hotel, Ms. A Gatto, a qualified town planner in the employ of the respondent Council, who appeared under subpoena, and Mr. P Brunning and Mr. P Hignett, both qualified town planning consultants.

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 is situated at 25-27 Unley Road, Parkside. It is more particularly described as allotments 122, 84, 83 and 82 in Filed Plan 14109 being portion of Section 240, Hundred of Adelaide, Certificate of Title Volume 5202 Folios 373, 375 and 372. It has an area of approximately 2453 square metres, and has frontages to both Unley Road and Clyde Street.

5. On the subject land is located a mixed use development comprising the Unley on Clyde Hotel, a separate shop tenancy and an office. The hotel comprises bar areas, a restaurant and gaming room, together with a drive-through bottle shop accessed from Unley Road.

6. Land to the east of the hotel building has been developed for carparking, providing a total of 57 spaces, 51 of which are used in conjunction with the hotel use. Access to and egress from this carparking area is obtained primarily via Clyde Street, with alternative egress through the hotel building and drive-through bottle shop to Unley Road. The carparking area is paved, linemarked and landscaped. A fence separates the carparking area from an adjoining residential property to the east.

7. Existing approved hours of operation for the hotel, including the gaming room, are as follows:

Monday to Thursday: 7am to midnight

Friday and Saturday: 7am to 1am the following day

Sunday: 9am to 11pm

The Locality

8. The locality defined by Mr. Brunning, for the purpose of his evidence, extended a short distance north and south of the subject land along Unley Road, taking in commercial premises to the immediate north of the hotel and to the south on the opposite side of Clyde Street. Mr. Brunning's locality also included that section of Clyde Street between the rear of the hotel and Liston Street, taking in four or five residential properties fronting Clyde Street and Liston Street.

9. A somewhat wider locality was defined by Mr. Hignett, his locality extending both further north and further south along Unley Road and further to the east along Clyde Street, taking in residential properties as far east as the junction of Clyde Street and Douglas Street.

10. The locality has a mixed-use character, commercial uses being located primarily on the Unley Road frontages, and residential development extending from the rear of those frontages along Clyde Street.

11. The amenity of the locality is affected to some extent by noise generated by traffic using Unley Road and by commercial activities fronting Unley Road.

The Proposal

12. In the original application to the Council, the appellants sought to extend the approved hours of operation, in respect of the gaming room only, by two hours. Prior to the commencement of the hearing of this matter, however, the appellants advised that they now sought to extend existing hours of operation in respect of the gaming room by one hour only. If approved, this would mean that trading hours would be as follows:

Monday to Thursday: 9am to 1am the following day

Friday to Saturday: 7am to 2am the following day

Sunday: 9am to 12 midnight.

Assessment

13. The subject land is located within the Speciality Goods Centre Zone depicted on Map Un/5 in the Development Plan for the City of Unley dated 1 March 2001.

14. It was common ground between the parties that the form of development proposed was neither complying nor non-complying within the Speciality Goods Centre Zone and therefore required the consent of Council, having regard to the relevant provisions of the Development Plan.

15. Insofar as the approval sought is for an extension of the trading hours of the gaming area of the hotel only, the issue to be resolved in this matter is, in my view, limited to the potential for noise nuisance to be created by those extended trading hours and, in particular, by patrons returning to their vehicles and departing the carpark to the rear of the hotel at times later than those currently applying. That being the case, those provisions of the Development Plan of specific relevance to the assessment of this proposal are as follows:

Speciality Goods Centre Zone

"Objective 1: Accommodation of 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 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."

Unley (City)

"Objective 4: A proper distribution and segregation of living, working and recreational activities by the allocation of suitable areas of land for those purposes."

"Objective 25: Residential areas free of incompatible uses and activities."

"Principle 15: Development should not create adverse conditions in an area by significantly altering microclimatic conditions, emission of odours and emission of noise."

"Principle 87: Centres should have minimal adverse impacts on residential areas."

"Principle 106: Entertainment and recreational facilities should be designed to have minimal impact upon the amenity of abutting residential zones."

"Principle 108: Development for which the applicant intends to seek a liquor licence should:

(a) not be located in residential zones; and

(b) not exceed the following closing times, unless located in the District Centre Zone;

(i) Sunday - 11 p.m.;

(ii) Monday to Thursday - Midnight; and

(iii) Friday and Saturday - 1 a.m. on the following day."

16. The evidence of Mr. Saturno was that the extended hours sought for the hotel's gaming room were prompted by changes in people's social and working habits arising from a greater incidence of shift work and part-time work and the resultant increase in demand for access to gaming facilities at times later than those currently provided for. He referred to several other hotels owned by the Saturno Group, namely the Norwood Hotel and the Findon Hotel, which traded significantly later than the hours sought for the Unley on Clyde. His evidence was that Thursday, Friday and Saturday nights were the busiest nights in the gaming room, with the number of patrons present at current closing times ranging from five to between fifteen and twenty. In his observation, the age of the patrons was generally over forty years of age.

17. Mr. Saturno advised me that there was no bar facility in the gaming room and that drinks were provided by waiter/waitress service directly to patrons. This would continue to be the case were extending trading hours approved. His observation was that patrons of gaming machine venues generally consumed less alcohol than other hotel patrons.

18. With reference to the potential for noise nuisance to be created by patrons leaving the gaming facility late at night and returning to their cars in the carpark east of the hotel, Mr. Saturno pointed out that Clyde Street was blocked off near the entrance to the hotel carpark, and that patrons leaving the carpark must therefore enter Unley Road before proceeding to their destination. Furthermore, some patrons of the gaming room had been observed to walk to the hotel from nearby residential areas. Few noise complaints had been received by the hotel since his involvement with it and, to the best of his knowledge, there had been no official noise complaints to the licensing authority or to the City of Unley during that time. In his opinion, the extended trading hours, if approved, would not have any adverse impact on surrounding residents. These observations were reinforced by the evidence of Mr. Noble, who had undertaken observations of patron behaviour on a Friday, Saturday and Sunday evening, and that of Ms. Grose, who has managed the Unley on Clyde Hotel since June 2001.

19. Mr. Brunning, in evidence, acknowledged the potential for conflict to occur at the interface between the Specialty Goods Centre Zone and the adjoining Residential B300 Zone. In his opinion, that potential could be reduced by appropriate management of commercial uses, traffic control and acoustic protection of dwellings from noise sources. Having regard to the proposed hours of operation for the gaming room, the low key nature of gaming activities, and the limited number of patrons typically in the gaming room at closing time, Mr. Brunning concluded that:

"While the proposed development would not enhance the amenity of the residential area, it is not considered to be of a nature that would significantly erode the existing level of amenity enjoyed by these residents, which is already tempered to an extent by noise from motor vehicles using Unley Road."

20. Mr. Brunning further acknowledged that the proposal was inconsistent with Council Wide Principle 108, which principle specifies closing times for licensed premises within the Council area, other than in the District Centre Zone, but did not regard this as fatal to the proposal, having regard to its relatively low-key nature and what he saw as minimal potential for amenity impacts.

21. Mr. Brunning did not consider the starting of vehicles to be a significant source of nuisance to adjoining residents, this being, in his experience, a "not uncommon practice" within residential areas, and one which was generally within the tolerance of most persons. A more likely source of nuisance, in his opinion, was noise created by conversations between patrons leaving the premises and by unruly behaviour. In this regard Mr. Brunning suggested that the potential for this kind of noise nuisance could be reduced substantially by requiring a representative of the hotel to be present within the carparking area at closing times.

22. The evidence of Ms. Gatto was that she was able to support the proposal that existing trading hours for the gaming facility at the hotel be extended by one hour, although she had not supported the original application which sought a two hour extension. While she acknowledged that Principle 108 was not satisfied by the proposal, she considered the likely impacts of a one hour extension to be minimal. Ms. Gatto, in the course of cross examination, acknowledged that the hotel's satisfactory record of management in recent years had been a consideration in her concluding that the one hour extension sought was acceptable, although it did not constitute the sole basis for her so concluding.

23. Mr. Hignett, in evidence, expressed the view that there was likely to be disturbance to nearby residents from time to time, such disturbance deriving from patrons returning to their cars from the gaming room, conducting conversations in the carpark, starting their cars and leaving the subject premises. Having regard in particular to Council wide Principle 108, but also to Principles 14, 24 and 25, Mr. Hignett concluded that the proposed extension of trading hours for the gaming room could not be justified.

24. Mr. Costello, for the appellant, submitted that it was at least arguable that Principle 108 had no application to the subject proposal, insofar as it applied only to development "for which the applicant intends to seek a liquor licence". The applicant in this instance already held a liquor licence, and sought only to vary existing hours of operation. On that interpretation, Principle 108 had application only to new developments which required a liquor licence.

25. I do not find this submission persuasive. Were Mr. Costello's interpretation to be correct, any applicant for a development to which Principle 108 applied would need to satisfy the requirements of that principle only at the time of making that application, and could subsequently apply to vary hours of operation, at which time Principle 108 would no longer apply, thereby creating the potential, over time, for the hours set out in that principle to have no application to any licensed premises within the Council area. As has been observed in a number of authorities, the Development Plan is not worded as a statute, but in the language of planners. The clear intent of Principle 108, as I read it, is that it apply to all licensed premises within the Council area, save for those in the District Centre Zone, albeit that it has work to do only when a planning application is made affecting those premises.

26. Mr. Costello further submitted that if Principle 108 did apply, it had to be read against a number of considerations:

(a) like other provisions of the Development Plan, Principle 108 was advisory rather than mandatory;

(b) at least one other hotel within the same zone had trading hours more extensive than those sought;

(c) the principal impacts of the hotel on the locality (such as they were) already occurred within the framework of its existing lawful operations.

27. Referring to the evidence of Mr. Saturno, Ms. Grose, and Mr. Noble, Mr. Costello submitted that the proposed extension of hours was supportable, notwithstanding the provisions of Principle 108, on the basis that it was unlikely to have adverse consequences for occupants of neighbouring residential properties, and that, were there to be a failure by hotel management to adequately control movement into and out of the carpark area, such a failure was most likely to be symptomatic of a general management failure which would manifest itself in a range of impacts, the least of which was likely to be noise associated with the extended hours for the gaming room. The abutting residential properties were on the periphery of a residential zone, and had to expect some degree of impairment to their amenity as a consequence of their abutting a commercial zone. The closure of Clyde Street east of the hotel carpark would prevent vehicles driven by departing gaming room patrons being driven past residential properties in that street, and rowdy behaviour in the carpark was unlikely to be caused by patrons of the gaming facility by comparison with patrons of other areas of the hotel.

28. Ms. Blencowe submitted that the terms of Principle 108 were unambiguous in their intent in setting maximum late trading hours for hotels in all parts of the Council area, save for the District Centre Zone. The fact that Principle 108 did not impose a limitation on hotel trading hours in the District Centre Zone was, she said, consistent with the hierarchy of the Centre Zones within the Council area, which saw the District Centre as the focus for more intensive activities and envisaged the Speciality Goods Centre Zone accommodating "small-scale" shopping and "neighbourhood community, entertainment, education, religious and recreational facilities of a low traffic generating nature".

29. Regardless of the level of sobriety or the demeanour of patrons of the gaming facility, Ms. Blencowe submitted, the sound of conversation, of car doors slamming and engines starting during the early hours of the morning was likely to cause disturbance to occupants of nearby residential properties.

30. Ms. Blencowe further submitted that, because Ms. Gatto and Mr. Brunning conceded in the course of cross examination that the acceptability of the proposal in their view was, in part, founded on an assumption of good management on the part of the hotel, the proposal was underpinned by an inappropriate reliance on good management practices continuing.

31. Unley (City) Objective 24 and Principles 87 and 106 provided further support, in her submission, for the maintenance of the limitations on hotel trading hours set out in Principle 108(b).

32. It is established law that the provisions of the Development Plan are advisory rather than mandatory in their effect, and that the relevant provisions have to be read together in determining the acceptability or otherwise of any proposed development. That said, it has to be recognised that some Development Plan provisions speak more directly to particular development proposals than do others, and it has long been recognised by this Court and its predecessor Tribunal that, in the event of a conflict between several provisions of the Development Plan, the more specific provision should take precedence over the more general.

33. Principle 108(b) is specific to a degree uncharacteristic of the Development Plan. Its inclusion in the Development Plan perhaps reflects the fact that the principal commercial areas of the City of Unley are distributed in a linear fashion along four major roads: Unley Road, Goodwood Road, King William Road and Glen Osmond Road, and are abutted by residential zones, creating many potential interface problems between residential and commercial land uses. As most, if not all hotels within the Council area abut residential development, it is understandable if, as a matter of planning policy, the Council has sought to achieve consistency in their trading hours, at least in respect of closing times.

34. Mr. Brunning, in his evidence, made reference to the need for a balance to be struck between the interests of those residing close to hotels, and those of the hotel operators, and suggested that some impairment of residential amenity had to be expected by those residing in close proximity to hotels, or, indeed, other commercial developments, by comparison with those residing in the centre of residential areas. The latter suggestion is certainly consistent with a number of authorities on the question of zone boundary conditions, the principal of these being Lanzilli Holdings Pty Ltd v Corporation of the City of Campbelltown (1982) 32 SASR 85. There is little doubt, however, having regard to the closing hours set out in Principle 108(b) and to representations by nearby residents set out in the tendered copy documents, that the level of disturbance presently being experienced by those residents goes well beyond that which would be expected by occupants of dwellings remote from commercial development. On that basis, it seems to me that Principle 108(b) already represents an attempt by the Council to strike an appropriate balance between the interests of residents and those of hotel operators.

35. I am satisfied, on the evidence, that the Unley On Clyde Hotel is well-managed, and that every effort is made to prevent unreasonable disturbance to residents. I also accept the evidence that the appellants are willing to limit the number of patrons present in the gaming room during extended trading hours to not more than 50, and to supervise the carparking area during that time. Nevertheless, I am not persuaded that the proposed extension of hours is acceptable, in its present form, having regard to the relevant provisions of the Development Plan, for two principal reasons:

(a) normal levels of conversation, car doors closing and engines starting may

create potentially-disturbing sources of noise within the carparking area during a time when such noises not presently occur;

(b) Suppression of noise above those levels, such as shouting or unruly behaviour by patrons departing the gaming area, is reliant on adequate supervision of departing patrons by hotel management. The adequacy of such supervision cannot be guaranteed, particularly in the event of changes in ownership or staff.

36. Once granted, the approval sought would subsist unless and until the hotel owners and/or management chose to apply for a variation to the approved trading hours. That places a considerable onus on the relevant planning authority, and, on appeal, this Court, to satisfy itself, having regard to the relevant provisions of the Development Plan, that those provisions are not only met, but will continue to be met, by the proposed development. Having regard to all the evidence, I have concluded that, with adequate management supervision, the proposal is capable of satisfying those Development Plan provisions directed towards maintenance of residential amenity. There can be no guarantee, however, that adequate management supervision will be maintained indefinitely, particularly given the possibility of changes in ownership or personnel.

37. During the course of the hearing, I canvassed with the parties the alternative of varying the application such that approval was sought for a specified period, say twelve months, with further applications being made towards the end of each twelve month period. Such an approach, while entailing a degree of expense and effort on the part of both the appellants and the Council, would allow each renewal application to be assessed against the actual, rather than predicted levels of disturbance (if any) experienced by nearby residents, place an onus on the hotel management to made every effort to minimise such disturbance, and allow the Council to refuse a renewal application if it was evidence that disturbance was being caused. Mr. Saturno, in the course of his evidence, indicated that, were the Court to condition any approval such that it had effect for a specified period, say twelve months, he would accept that.

38. Having regard to my conclusions above, I have decided that it would be inappropriate to approve the proposed extended trading hours on a permanent basis, and that a twelve month approval would place an onus on the hotel management to ensure that no disturbance of nearby residents is occasioned by later trading of the gaming room. At the expiry of the twelve month period, it would be open to the appellants to seek a further approval, either for a further twelve month period, or on a permanent basis. Having regard to my conclusions above, however, it would be desirable for further approvals, if granted, to also be time-limited.

39. It is the decision of the Court that provisional development plan consent is granted for the proposed development, subject to the following conditions:

1. The trading hours for the gaming lounge area shall not exceed the

following:

Monday to Thursday: 7.00am to 1.00am the following day.

Friday and Saturday: 7.00am to 2.00am the following day.

Sunday: 9.00am to midnight.

2. The gaming lounge area shall neither cater for nor accommodate more than 50 patrons between the hours of 12 midnight to 1.00am Monday to Thursday, 1.00am to 2.00am Friday and Saturday, and 11.00pm to 12 midnight Sunday.

3. All areas of the hotel, other than the gaming lounge and the male, female and handicapped sanitary facilities shall be closed no later than 12 midnight Monday to Thursday, 1.00am Friday and Saturday and 11.00pm Sunday, and no liquor service shall be provided outside the gaming lounge area beyond those times.

4. Development shall take place in accordance with the plans marked Sheet 2 relating to Development Application No: 090/510/01 and forming page 6 of the Copy Documents comprising Exhibit R1 in these proceedings, other than as modified by these conditions.

5. This consent shall expire on 11 January 2003.

40. There will be an order accordingly.