Brock (Aust) P/L & Ors v DC of The Copper Coast & Crystalcorp Devt P/Lnam No ERD-01-745 [2002] SAERDC 7 (4 February 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of His Honour Judge Bowering, Commissioner Hodgson andCommissioner Berriman

Hearing

29/10/2001 to 31/10/2001, 24/01/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - application to construct a hotel/motel - approval by Council - representor appeal - land in Marina (Wallaroo) Zone and Commercial Policy Area - land use previously approved by Governor pursuant to Section 48 - proposed development not inconsistent with zoning provisions - approval upheld - conditions varied.

Representation

Appellant: BROCK (AUST) P/L & ORS
Counsel: MR J COSTELLO - Solicitors: WALLMANS

Respondent: DC OF THE COPPER COAST
Counsel: MR J HILDITCH - Solicitors: WARD & PARTNERS

Respondent: CRYSTALCORP DEVELOPMENT P/L
Counsel: MR K TREDREA - Solicitors: NORMAN WATERHOUSE

ERD-01-745

Judgment No. [2002] SAERDC 7

4 February 2002

BROCK (AUSTRALIA) PTY LTD, MANDAMO PTY LTD, LEADING COUNSEL PTY LTD, RF & AW LING AND MICHELMORE PTY LTD

v

DISTRICT COUNCIL OF THE COPPER COAST

and

CRYSTALCORP DEVELOPMENTS PTY LTD

(ERDC No. 745 of 2001)

[2002] SAERDC 7

THE COURT DELIVERED THE FOLLOWING JUDGEMENT:

1. By application made pursuant to the Development Act 1993, on 24 January, 2001, CrystalCorp Developments Pty Ltd sought provisional development plan consent from the District Council of the Copper Coast ("the Council") to construct what was described in the development application as an "hotel/motel/function room" on land at 1-5 Heritage Drive, Wallaroo.

2. The Council classified the proposal as a Category 3 development within the meaning of Section 38 of the Act, and therefore undertook the notification procedures applicable to such developments as prescribed by that section. In response to that notification, four representations were received by the Council.

3. By decision notification form dated 27 June, 2001, the Council advised the applicant that it had approved the proposed development.

4. By notice of appeal dated 17 July, 2001, Brock (Australia) Pty Ltd, Mandamo Pty Ltd, Leading Counsel Pty Ltd, Liemonott Pty Ltd, RF & AW Ling and Michelmore Pty Ltd, which companies had jointly made a representation to the Council opposing the subject proposal, appealed against the Council's decision. At the commencement of the hearing, Liemonott Pty Ltd applied for, and was granted, leave to withdraw from the proceedings.

5. At the hearing of this matter, the appellants were represented by Mr J Costello, of counsel, the Council by Mr J Hilditch, of counsel, and CrystalCorp Developments Pty Ltd by Mr K Tredrea, of counsel. The Court conducted a view of the subject land and its locality in the company of the parties, received a number of exhibits, and heard evidence from Mr J Ferguson, a director of the respondent company, Ms J Nolan, Mr D Hutchison, and Mr G Burns, all qualified and experienced town planning consultants, and Mr S Foley, a qualified and experienced traffic and transport planning consultant.

The Subject Land

6. The subject land comprises an irregularly shaped allotment with a total site area of 1.311ha. It lies within an area presently under development for a marina and associated residential development. It is located on the southwestern side of the marina basin.

7. Vehicular access to the land is obtained from Heritage Drive, to which it has its primary frontage. The land is vacant, with minimal vegetation.

8. The land also has a direct frontage to the marina. However, as part of the marina development, it is proposed that a 2.0m wide strip of land be set aside on the landward side of the marina edge treatment wall, to provide public pedestrian access between the various commercial components of the marina.

9. The land is more particularly described in Certificate of Title Volume 5807 Folio 884 as Allotment 659 in Deposited Plan 54127.

10. A secondary public road, yet to be constructed, will form the southeastern boundary of the land. This road will extend into the marina development site from Heritage Drive, eventually providing access to commercial facilities proposed for other vacant land adjacent to the marina basin and located further to the east.

11. The land has a cross fall of some 4.2m over a distance of approximately 250m. The predominant (and maximum) width of the land is some 60m and its frontage to the marina and Heritage Drive is in the vicinity of 256m.

The Locality

12. The locality is dominated by the formed marina basin, onto which the subject land faces. On the other side of the basin, to the northeast of the subject land, is a number of residential allotments, some of which are as yet underdeveloped, and a caravan park. To the southeast of the land is a row of dwellings with a frontage to Heritage Drive, and on the opposite side of Heritage Drive, generally to the south and southwest of the subject land, are abandoned slag heaps associated with the industrial premises of Pivot Fertilizers (formerly Adelaide Wallaroo Fertilizers).

13. That part of the locality which is located generally on the marina side of Heritage Drive (including the subject land but excluding the row of houses to the southeast of that land) is contained within the Marina Commercial Policy Area, which in turn is contained within the Marina (Wallaroo) Zone depicted on Maps Wal/2 and Wal/4 in the Development Plan for the Town of Wallaroo dated 1 February, 2001.

14. The remainder of the locality, being that land generally to the southwest of Heritage Drive, (including the Pivot Fertilizer site and the houses to the southeast of the subject land) is not subject to any zoning or policy area provisions, being subject only to the Yorke Peninsula (Regional) and Council Wide Objectives and Principles set out in the Development Plan for the Town of Wallaroo dated 1 February, 2001.

Background

15. In order to place the proposed development in context, it is necessary to briefly outline the history of the marina development.

16. On 11 March, 1999, by notice in the South Australian Government Gazette, the Governor issued various Development Authorisations pursuant to Section 48 of the Development Act. Those authorisations provided for the development of a marina facility and the creation of associated residential allotments and sites for commercial, public boating and commercial fishing facilities in an area immediately to the north of the Wallaroo township. The approved development had been the subject of an amended Environmental Impact Statement dated September, 1998, and an amended Assessment Report dated March, 1999.

17. Three separate development approvals were granted by the Governor, each subject to a number of conditions. The first approval was in the following terms:

"1. Development Approval for the excavation/formation of land for the following purposes:

• entrance channel (that part not already approved), marina basin and waterways (including the installation of edge treatments and stormwater discharge outlets);

• public boat ramp facility;

• commercial fishing site at the entrance facility;

• commercial shopping site adjacent to the marina facility;

• hotel/motel/restaurant complex site adjacent to the marina facility;

• retirement village; and

• residential development ...."

18. The second approval was for:-

"the establishment of the marina facility (including the ferry landing) and for the commercial fishing berths, unloading wharf area, public boat ramp, (including associated carparking and access), boat repair yard, boat refuelling facility and marine toilets pump-out/treatment facility located at the proposed entrance facility, in accordance with the plans comprising the application ..."

19. The third development approval was in the following terms:-

"Development approval for the division of land into allotments for residential and public uses and the construction of associated roads, in accordance with the plans comprising the application ..."

20. A series of notes to the applicant appended to the aforesaid gazette notice, included the following:-

"6. It is recommended that the District Council of the Copper Coast should consider revising the policies in the relevant development plan to reflect any development approved by the Governor."

"12. Further design and infrastructure/service plans (ie. subject to separate applications in the future) would be required should further development approval be sought for the Retirement Village, Hotel/Motel/Restaurant complex, Commercial Fishing and Shopping Areas."

21. Construction of the marina and the associated land division is well advanced, with most of the marina basin excavated and flooded, road works completed and services installed. The evidence of Mr Burns was that of the 482 housing allotments to be created in and around the marina, the majority had already been sold.

The Proposal

22. Proposal plans, tendered in evidence, and forming Exhibit A in these proceedings, indicate that the proposed hotel/motel/function room is to contain the following elements:-

• 50 accommodation suites;

• a conference/function room and adjacent kitchen;

• an indoor and outdoor restaurant;

• bars;

• a bistro;

• a gaming room;

• a 'porte-cochere' entrance with associated reception/office facilities;

• a swimming pool incorporating a spa and a children's pool;

• a carpark containing 198 spaces, including 4 spaces for disabled persons;

• a bus parking bay; and

• landscaping.

23. It is proposed to construct the development over two levels. The ground floor level would comprise 4,964m2 of floor space and the upper level 2,400m2. The total floor area would be 7,364m2. The floor areas of the various elements of the proposal and their respective capacities, as depicted in the proposal plans, are as follows:-

	Floor Area (m2)	Persons
Accommodation Units (50 Rooms)	1,434	100
Function/Conference Room	475	180
Dining Rooms - Indoor/Outdoor	440	170
Gaming Room (40 machines)	150	40
Coffee Shop	200	80
Pool Bar	56	10
Lounge Bar	150.4	30

24. It is proposed that the development have direct access to Heritage Drive via four separate driveways, with a fifth entrance from the unmade road reserve at the south-eastern end of the site, adjacent to the marina.

25. The principal driveway, which would provide access to the 'porte-cochere', would be 7.5m wide, and the other driveways slightly narrower.

26. Provision is made for off-street parking for 198 vehicles, including 4 spaces for disabled persons. These spaces would be located close to the main hotel entrance and entry foyer, with one space located adjacent to the gaming room entrance.

27. A bus pickup and set down bay is also to be provided, allowing for the temporary standing of a bus to allow passengers to board and alight without interfering with vehicle movements within the carpark. Further provision is made for the overnight parking of up to two buses in the southeastern carpark adjacent to the marina, in space that would otherwise be used for passenger vehicle parking.

28. Landscaping totalling some 3,569m2 in area, this representing around 27 percent of the area of the subject land, is to be provided, most of this being located adjacent to the Heritage Drive frontage, and the buildings facing this road, in order to:-

(a) effectively screen the abandoned slag heaps on the other side of Heritage Drive;

(b) enhance the appearance of the development for motorists driving along Heritage Drive; and

(c) provide protection from south-westerly winds.

29. External materials are to include:-

(a) high tension membrane "sails" over the outdoor terrace;

(b) external walls of tilt slab concrete in a texture-rendered sandstone finish; and

(c) pitched and exposed roof sheeting of Colorbond, coloured "Gull Grey".

The Development Plan

30. As we have said, the subject land is located within the Marina (Wallaroo) Zone, and more particularly within the Marina Commercial Policy Area of that zone, these being depicted respectively on maps Wal/3 and Wal/4 in the Development Plan for Wallaroo (CT) dated 1 February, 2001. The objectives for the Marina (Wallaroo) Zone are as follows:-

Marina (Wallaroo) Zone

"Objective 1: A zone accommodating marina berths and residential waterfront development, together with a range of marina based tourist, recreational, community and commercial activities."

"Objective 2: A zone in which the form and character of development, and the mixture of activities, creates an attractive urban waterfront and maritime environment."

31. Zone principles of particular relevance are:-

"Principle 1: Development undertaken in the Marina (Wallaroo) Zone should include residential, tourist, recreational, community and commercial activities and should conform to the Wallaroo Marina and Environs Structure Plan, Map Wal/1 (Overlay 1) Enlargement A."

"Principle 2: Development should take advantage of views over water, and should focus on the waterfront or sea coast."

"Principle 3: Building design should feature:

(a) hipped or gabled roof forms;

(b) visible roof slopes pitched at between 22.5 degrees and 30 degrees; and

(c) post-supported return verandahs."

"Principle 4: Development should incorporate building materials consistent with a 'maritime heritage' theme, in supporting with [sic] Wallaroo's historic role as a port town and should comprise:

(a) walls and cladding - stone, or cement rendered, or bagged brick, masonry, timber or other like materials;

(b) trims - timber or painted or powder coated alloys or metal extrusions;

(c) building colours - off white or earthen tones with contrasting roofs and trims;

(d) roofs - colorbond; and

(e) fencing - brushwood, shiplapped timber, stone, cement rendered or bagged brick, masonry or other like materials."

"Principle 12: Opportunities for the shared used [sic] of carparking should be exploited to reduce the total extent of car parking provided."

"Principle 14: The appearance of land, buildings and objects should enhance the maritime heritage theme and the overall marina environment."

"Principle 16: A minimum of 10 percent of the area of each development site should be landscaped to complement and enhance the character and amenity of the area, define open spaces, and provide screening, shade, and shelter."

32. The objectives for the Marina Commercial Policy Area are as follows:-

Marina Commercial Policy Area

"Objective 1: A policy area maximizing tourist and general public attraction to waterfront orientated commercial, tourist, recreation, and marina-based retail activities and serving as the activity focus for the marina development."

"Objective 2: A policy area accommodating a range of marina based business and service activities to serve the needs of the marina and the visiting public.

The following list is indicative of those facilities which are anticipated and appropriate in the fully developed Marina Commercial Policy Area:

(a) marina berths;

(b) a motel and restaurant;

(c) marina office, administrative, and maintenance facilities;

(d) chandlery shop;

(e) boat charter service;

(f) boat repair facility;

(g) fuel outlet (for marine craft only);

(h) fishing wharf (for use by commercial fishing activities);

(i) a ferry landing;

(j) public boat ramp;

(k) public car parking; and

(l) waterfront open space; including a new swimming beach."

33. Policy Area principles of particular relevance are:-

"Principle 1: A motel/restaurant tourist facility should be developed in the location shown on Map Wal/1 (Overlay 1) Enlargement A. The motel building should be at least two-storeys in height, and should be designed to provide a landmark building at the marina entry."

"Principle 3: Development should provide for public access to the waterfront, and should enhance the role of the policy area as the activity focus of the marina."

"Principle 4: Development should provide car parking consistent with the expected demand associated with each facility. This is likely to involve:

(a) provision of a least 30 car and trailer spaces for each lane of public boat ramp;

(b) provision of car parking adjacent to the marina berths at a rate of 0.75 spaces for each berth provided; and

(c) parking provided to the motel/restaurant and other facilities at rates sufficient to meet the parking demand likely to be generated by the facility."

"Principle 5: Commercial development near the policy area boundary should be buffered from adjacent residential development by means of landscape plantings."

"Principle 6: Buildings, including commercial structures, should be designed and constructed to an unified design theme."

34. Of some relevance also are Principles 5, 7, 8, 9, 11, 15, 17 and 18 for the Marina (Wallaroo) Zone, Wallaroo (CT) Objectives 1, 4, 5, 12 and Principles 1, 2, 3, 12, 13, 17, 51, 67, 73, 93 and 97, and Yorke Peninsula Objectives 1, 11, 12, 24 and 25.

Assessment

35. It was common ground between the planning experts who gave evidence that the proposed development satisfied those provisions of the Development Plan relating to coastal protection, hazard minimisation, conservation, environmental protection and maintenance of public access to coastal areas. They were also in agreement that the detailed design criteria specified both by the zone provisions and the more general Development Plan provisions relating to the appearance of land and buildings were generally satisfied by the proposal. Where they parted company, however, was in relation to the range and scale of activities proposed on the land and their consistency with the detailed provisions for the Marina Commercial Policy Area.

36. The evidence of Ms Nolan was that the zone and policy area provisions did not envisage development of either the kind or the scale proposed. Referring to the "indicative" list of facilities "anticipated and appropriate in the fully developed Marina Commercial Policy Area", Ms Nolan drew our attention to the fact that that list included a motel and restaurant but did not include an hotel. The latter, she said, was a form of development distinguished from a motel by Schedule 1 to the Development Regulations, and the proposal incorporated a range and scale of hotel-type activities which rendered the motel and restaurant component ancillary to the hotel/convention centre use. These activities included:-

• a bar;

• a cocktail lounge;

• a gaming lounge;

• a gaming room;

• a pool bar;

• a bottle shop; and

• a function room (including indoor and outdoor areas, kitchen, bar and dance floor).

37. By comparison with a motel, said Ms Nolan, an hotel with the range of facilities proposed created the potential for adverse impacts on nearby residential development created by noise, traffic, and live entertainment, potentially until the early hours of the morning, suggesting that the designation of a motel/restaurant rather than an hotel as an appropriate use within the Marina Commercial Policy Area was underpinned by the land use logic of separating potentially incompatible uses. Although she acknowledged that an hotel was not designated a non-complying form of development within the Marina Commercial Policy Area, whereas it was so listed in the other policy areas within the zone (Residential Waterfront Policy Area and Tourist Accommodation Policy Area), Ms Nolan placed some store by the fact that there was no reference to hotel in the Marina Commercial Policy Area provisions in reaching her conclusion that the proposal was an inappropriate use of land within that area.

38. These views were not shared by Mr Burns or Mr Hutchison, both of whom considered that the proposal, consistent with the land use intent of Zone Objective 1 and Principle 1, represented a "marina-based tourist activity", which use was also identified, in the Wallaroo Marina and Environs Structure Plan (Map Wal/1 (Overlay 1) Enlargement A) as the intended use for the subject land. The proposal was also consistent with the objective for the Marina Commercial Policy Area, being a "waterfront orientated tourist facility", and was consistent with the indicative list of facilities for that area, albeit not specifically included in that list.

39. Mr Burns placed some store by the facts that the amended EIS and Assessment Report made provision for the development of an hotel on the subject land, and that the Development Approval issued by the Governor included approval for the formation and excavation of land for (amongst other purposes) "a hotel/motel/restaurant complex site adjacent to the Marina facility".

40. Mr Tredrea, for the second respondent, submitted that the list following Objective 2 for the Marina Commercial Policy Area was indicative only, and not exhaustive of the land uses appropriate within that area. Referring to the Governor's approvals set out in the Government Gazette notice dated 11 March, 1999, Mr Tredrea submitted that, while the detailed design and layout of an hotel/motel/restaurant complex still required provisional development plan consent, land use consent for that combination of uses on the subject land had already been granted by the Governor, and it remained only for the Court to decide whether the design, siting, materials, scale and layout of the proposed development were acceptable, having regard to the relevant provisions of the Development Plan.

41. Mr Hilditch submitted that the proposal provided everything which a motel/restaurant would be expected to provide, and additional facilities consistent with the "marina-based tourist and commercial activities" sought by Zone Objective 1 and the "waterfront orientated ... tourist ... activities" sought by Policy Area Objective 1. The proposal was also consistent with Policy Area Principle 3, which required development to "enhance the role of the policy area as the activity focus of the marina". This interpretation, said Mr Hilditch, was reinforced by the fact that an hotel was designated as a non-complying form of development in all parts of the Marina (Wallaroo) Zone save for the Marina Commercial Policy Area.

42. In common with Mr Tredrea, Mr Hilditch submitted that the Governor's approvals had resolved the question of whether an hotel/motel/restaurant complex was generically appropriate on the subject land, and that the only remaining question to be resolved was the acceptability or otherwise of the design, siting, materials, scale and layout of any proposed development for that purpose.

43. Mr Costello submitted that the reference, in the indicative list of facilities following Objective 2 for the Marina Commercial Policy Area, to a "motel and restaurant", reflected a recognition that development on the subject land needed to be low-key, and of a kind which would have minimal impact on nearby residential development. In his submission, there were three issues for the Court to resolve:-

(a) did the Governor's approvals include land use approval for a hotel/motel/restaurant complex?

(b) was the proposal, correctly characterised, a suitable and appropriate use of the subject land, having regard to the Development Plan?

(c) was the scale relationship between the hotel and the motel/restaurant elements of the proposal appropriate, having regard to the Development Plan?

44. With reference to the first of these questions, Mr Costello submitted that the answer was "no", on the basis that the Governor's approvals did no more than authorise works which rendered the subject land capable of accommodating, in physical terms, the proposed use.

45. With reference to the second, Mr Costello submitted that, as the proposed development would be the subject of an hotel licence, it was properly characterised as an hotel, and therefore as a use which had very different characteristics to those of a motel, being oriented to the general public rather than merely to the travelling public. Hotels, unlike motels, said Mr Costello, created the potential for antisocial behaviour.

46. It was no accident, in Mr Costello's view, that the indicative form of the tourist facility shown on the Wallaroo Marina and Environs Structure Plan was a "motel and restaurant", because residential development was, or would be, located a short distance to the south-east of the subject land, facing Heritage Drive, and to the north-east, on the other side of the Marina Basin, and would be sensitive to the kind of noise and disturbance likely to be created by an hotel. That being the case, and having regard to the evidence of Ms Nolan, the proposal was, in his submission, an inappropriate use of the subject land.

47. With reference to the third question, Mr Costello submitted that the capacity and scale of the hotel facilities, by comparison with the "motel" component of the proposal, were such that the latter was overwhelmed by the former, an outcome which, he said, was clearly contrary to the intent of the Development Plan.

48. Having considered all the evidence and the submissions of counsel, it seems to us that the first question to be resolved in this matter is whether, irrespective of what is in the Development Plan, the Governor's approvals of 11 March, 1999 have the effect, inter alia, of authorising the use of the subject land for a "hotel/motel/restaurant complex", albeit that the design, siting, materials, scale and layout of any specific proposal would require further approval.

49. The first of the approvals granted by the Governor on 11 March, 1999 was "Development Approval for the excavation/formation of land for the following purposes:...". Those stated purposes included "hotel/motel/restaurant complex site adjacent to the marina facility." In our view, the Governor's approval unequivocally designates that use as appropriate on the subject land, albeit that further approvals will be required for any specific proposal on that land. In our view, it is not open to us to interpret the Governor's approval as being no more than approval to undertake physical works on the subject land. The Governor's approval approves not merely the site preparation works, but also the purpose of those works. We are reinforced in this conclusion by the wording of an additional Notice by the Governor, appearing in the same gazette as the approvals referred to above, which Notice, in delegating certain powers to the Development Assessment Commission in respect of the Wallaroo Marina development, refers to the Governor having "given various Development Authorisations (land use and land division) .... concerning the development of a marina facility and the creation of residential allotments and sites for various commercial, public boating and commercial fishing facilities in an area immediately with the township of Wallaroo...." [our underlining].

50. We are further reinforced in this conclusion by two of the Notes attached to the approvals issued by the Governor (P 1342 of Gazette of 11 March, 1999) which Notes are in the following terms:-

"6. It is recommended that the District Council of the Copper Coast should consider revising the policies in the relevant Development Plan to reflect any development approved by the Governor."

...

"12. Further design and infrastructure/service plans (ie. subject to separate applications in the future) would be required should further development approval be sought for the Retirement Village, Hotel/Motel/Restaurant Complex, Commercial Fishing and Shopping Areas."

51. Were the Governor's approvals to be restricted to the authorisation of physical works within the Marina Zone, without land use consents having been conferred for the future uses of land within the zone, the recommendation in Note 6 would be otiose. Similarly, if land use approvals had not been conferred by the Governor's approvals, the reference, in Note 12, to design and infrastructure/service plans being required for further development approvals would not accurately reflect the nature of the further approvals required.

52. Having regard to all the above, we have concluded that the approvals issued by the Governor on 11 March, 1999, pursuant to Section 48 of the Development Act 1993, include approval to use the subject land for the purpose of an hotel/motel/restaurant complex, subject to further approval being obtained for the detailed design of a specific proposal. Having so concluded, we now turn to the question of whether the design, siting, materials, scale and layout of the subject proposal are satisfactory, having regard to the relevant provisions of the Development Plan.

53. As we have said, it was common ground between the expert planners who gave evidence that the subject proposal satisfied those provisions of the Development Plan which relate to the appearance of land and buildings. Ms Nolan commented thus:-

"... whilst certainly large, I believe the proposed design to be attractive in appearance and of a form/design/detailing in keeping with the Maritime theme sought by the plan."

54. Similar views were expressed by Mr Burns and Mr Hutchison.

55. Unlike Mr Burns and Mr Hutchison, however, Ms Nolan was of the view that the range and scale of the activities proposed were excessive, having regard to the policy area provisions of the Development Plan, and also considered it likely that, as a consequence, proposed carparking provision would prove inadequate. Noting that the total floor area of bars, lounges, restaurant, gaming areas and function area was some 1,471m2, and that the maximum number of persons proposed to be accommodated in these areas (excluding those accommodated in the motel units) was 510, Ms Nolan was sceptical about the stated capacity of the proposal. The maximum numbers proposed, said Ms Nolan, represented a floorspace allocation of some 3m2 per person, whereas in her experience, ratios in the order of 0.8m2 to 1.5m2 per person were more characteristic of licensed premises. As a consequence, Ms Nolan was concerned that the actual capacity of the premises was significantly greater than indicated.

56. Mr Costello submitted that the floorspace per person allowed was generous and that the potential capacity of the premises had been artificially restricted, possibly in an endeavour to satisfy parking requirements.

57. Mr Tredrea, for the second respondent, submitted that the motel-style accommodation proposed constituted about half the floor space of the proposed development, and that, although the whole of the premises was likely to be licensed as an hotel, pursuant to the provisions of the Liquor Licensing Act 1997, the reality was that only half the building would be used for hotel purposes.

58. With reference to Ms Nolan's concerns regarding the adequacy of the carparking areas proposed, Mr Tredrea drew our attention to the evidence of Mr Foley, the only traffic and parking expert to give evidence, which evidence was to the effect that the 198 carparking spaces proposed would be adequate to meet peak parking demand, that carparking spaces had been designed in accordance with the relevant Australian standard, and that proposed access points were safe and convenient.

59. Mr Tredrea also made reference to a statement prepared by two acoustic experts, Mr Turnbull and Mr Maddern, engaged respectively by the appellants and the second respondent, and tendered in evidence. That statement set out suggested conditions of consent relevant to noise attenuation, and it was the view of the two experts that, should those conditions be adopted, they would not expect the proposed development to "result in an amenity which is detrimental to the locality". Measures proposed by Mr Turnbull and Mr Maddern included restrictions on the times during which certain parts of the premises could be used or live entertainment occur, restrictions on the level of amplified music, closure of the proposed entry to the carpark from the future road to the south-east of the site between 10.00pm and 8.00am, and the incorporation of specified noise-attenuating materials into the construction of the building. With reference to noise issues generally, Mr Tredrea pointed out that those parts of the hotel from which noise was likely to emanate were located to the northern and western parts of the subject land, with the accommodation units sited between the former and dwellings to the south-east of the land, thereby creating a significant noise buffer.

60. The evidence of Mr Ferguson was that an application had been made to the Licensing Court for licensing of the premises as an hotel. The First Schedule to the Development Regulations 1993 defines an hotel in the following terms:-

" 'hotel' means premises licensed, or proposed to be licensed, as a hotel under the Liquor Licensing Act 1985, but does not include a motel;"

61. Having regard to that definition, we are satisfied that the proposal as a whole is properly described as an hotel, albeit that a substantial part of its floor area is to be used for accommodation akin to that provided by a motel. Having already concluded that the approvals issued by the Governor on 11 March, 1999, included approval to use the subject land for the purpose of an hotel/motel/restaurant complex, we are further satisfied that what is proposed meets that general description.

62. Having regard to the evidence of Messrs Turnbull and Maddern, we have concluded that, subject to the imposition of conditions requiring the incorporation into the proposal of the noise attenuation measures recommended by them, noise emanating from the premises will not be such as to conflict with the relevant provisions of the Development Plan, particularly having regard to the absence, both from the provisions for the Marina (Wallaroo) Zone and those for the whole Wallaroo (CT) area, of any references to issues of noise nuisance in relation to residential amenity.

63. Based on the evidence of Mr Foley, which evidence was not contested by any other qualified traffic and parking expert, we have further concluded that provision for parking and access will be adequate, safe and convenient.

64. Our conclusions above are based on the maximum numbers of patrons specified for various parts of the hotel by the proposal plans, and on an indication, given by Mr Tredrea on behalf of the second respondent, that his client would not oppose the imposition of conditions which required adherence to those numbers. On that understanding, and having regard to our conclusions above, we have further concluded that, subject to the imposition of appropriate conditions, the subject proposal warrants consent. We add that, even if we are wrong in concluding that land use approval for an hotel/motel/restaurant complex on the subject land has already been granted, subject only to further approval of a specific proposal, we would not regard the subject proposal as conflicting with the relevant provisions of the Development Plan, having regard to the facts that the list following Objective 2 for the Marina Commercial Policy Area is indicative only, and that there are other references in the zone and policy area provisions which support the notion of a tourist-oriented facility, incorporating a restaurant and accommodation on the subject land.

65. Having intimated our decision to the parties, we heard counsel on the question of conditions. They have agreed conditions between them. We can see no reason why we should not accept the conditions as agreed, and we do so.

66. The order of the Court is that the Provisional Development Plan consent issued by the District Council of the Copper Coast to CrystalCorp Developments and relating to a development described as "Hotel/Motel/Function Room" and to be undertaken on Lot 659, 1-5 Heritage Drive, Wallaroo, being development number 340/087/2001, is amended by striking out the conditions set out in it and by substituting, in their stead, the following conditions:-

1. Subject to condition 11, the Applicant shall proceed strictly in accordance with the plans submitted with the Application, more particularly Drawing No. C087SD09A, dated 2 November 1999 and Drawing No. C087SD14C, dated 4 April 2001, and Drawings C087SD05C and C087SD15A dated 25 May 2001 and Drawing C087SD18, and C087SD17 dated 14 May 2001, and C087SD16, dated 30 May 2001, and with the matters set out by Master Plan in their report dated 14 May 2001, and the conditions imposed by this consent, except where minor changes are required to comply with the Building Code of Australia.

2. The development shall be completed in its entirety, in accord with approved plans prior to first occupation of the building.

3. The onsite septic system shall be constructed in accordance with the South Australian Health Regulations.

4. Landscaping shall be maintained in good repair and condition at all times to the reasonable satisfaction of the Council.

5. Patron numbers within those parts of the development specified below shall not exceed the following:-

•	Coffee shop 80
•	Dining - indoor 140

- outdoor 30

•	Lounges 40
•	Gaming 40
•	Function/conference area 180
•	Accommodation 100

6. There shall be no live entertainment in any part of the development after 1.00am, or before 11.00am on any day.

7. Amplified music or voice from the premises shall not exceed 8dB above the ambient background noise level when measured in any octave, such measurement to be taken at the boundary of nearby residential property.

8. Amplification of live or recorded audio entertainment shall be via an in-house system only.

9. There shall be no amplified music played or projected externally to the building on the subject land between the hours of 8.00pm and 11.00am on the following day.

10. The car park entry/exit to the road marked "future road" on plan C087SD14C shall be effectively closed to pedestrian and vehicular traffic between the hours of 10.00pm and 8.00am on the following day.

11. The exit only access way to Heritage Drive shall be varied (which variation may involve the lose of one car parking space) so as to permit the safe exit of a truck of 11 metres in length from the carpark to Heritage Drive. Such access way shall comply with Australian Standard 2890.1 - Off Street for Parking.

12. Plant should be located and attenuated so as not to exceed 45dB at nearby residential property.

13. The function room shall be constructed to a standard of acoustic performance which shall include the following:-

(a) Glazing. Fixed glazing of minimum 10mm laminated and 6mm laminated panes separated by a minimum of 600mm.

(b) Roof/ceiling system. 9mm compressed cement sheet, sealed sheet to sheet and sheet to wall without gaps, immediately under the roofing iron.

(c) Walls which extend, on all sides and at all positions, to seal to (b) above and (e) below.

(d) Thermal insulation draped in the cavity between (b) and (e) below of 100mm thickness, draped such that the insulation does not sit flat on (e).

(e) Two layers of 16mm plasterboard sealed sheet to sheet and to the walls; and at least 550mm below (b), and not penetrated by light fittings, air condition duct work or other penetrations, except on professional acoustic advice.

(f) An acoustic ceiling sufficient below (e) to take attenuated air conditioning duct work in the cavity. This acoustic ceiling may be penetrated by light fittings etc.

(g) The creation of a suitable arrangement of doors and partitioning to create an effective sound-lock on the entry to the function/conference room from the foyer inside the foyer. This arrangement should effectively eliminate the risk of balcony access doors and other foyer openings allowing function sound leakage to exit. The arrangement should also minimise the extent of the substantial foyer structure which is exposed to noise leakage from the function room.

h) The creation of a wall and sound-lock arrangement between the patio and function room (which is not penetrated whilst amplified music is played in the function room) and which provides an equivalent acoustic transmission loss to masonry of 120mm thickness.

(i) Walling around the remaining perimeter of the function room of the acoustic performance in (h).

(j) All penetrations to the function room to have acoustically designed attenuators.

(k) The potential for amplified music to travel through the function room floor to exit the dining room façade should be reviewed at the detailed design stage.

14. For the six units closest to the foyer:-

(a) External glazing shall utilise 6mm laminated glass.

(b) Ceilings shall be constructed of 16mm plasterboard.

15. A sound limiter shall be installed in the function room and calibrated to the levels given in Table 1.

Table 1

Octave Band Centre Frequency	63Hz and dB (lin)	125Hz dB (lin)	250Hz dB (lin)	500Hz dB (lin)	1000Hz dB (lin)	2000Hz dB (lin)	O/A dB(A)
Music Internal Level L10	95.8	99.2	96.8	93.3	92.1	89.3	97

16. Either of the following alternative measures to be taken:-

(a) a wall is constructed of 1 metre high masonry, and 0.8 metre superimposed glazing, or equivalent, along the car park interface with the future road; or

(b) effective measures are taken to encourage staff and/or patrons of units park at the south-eastern end of the main car park.

17. The outdoor restaurant remain closed between midnight and 7.00am.

18. The swimming pool, spa, patio and like external centres of activity remain closed to the public between 10.00pm and 7.00am on the following day.

19. There is no drinking on the premises outside the building without meals between 10.00pm and 7.00am on the following day.

20. The bar and function room shall remain closed to the public between 1.00am and 7.00am.

21. Gaming shall cease no later than 2.00am each day and shall not resume before 8.00am.