Bacasetas v City of Holdfast Bay No ERD-03-304 [2003] SAERDC 119 (16 December 2003)

Last Updated: 21 December 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Hodgson

Hearing

13/11/2003 to 14/11/2003, 18/11/2003.

Catchwords and Materials Considered

Local Government - Town Planning - applicant appeal against refusal of application to change use of land from shop to restaurant - Residential D Zone - adequacy of carparking provision - no net worsening of existing carparking situation provided proposal maximum number of patrons reduced slightly - proposal in general conformity with relevant provisions of Development Plan - appeal upheld and Provisional Development Plan Consent granted subject to conditions

• State Planning Authority v Tanczos [1979] 20 SASR 250;
• Rositano Enterprises v Minister for Environment and Natural Resources [1998] SAERDC 454, considered.

Representation

Appellant: DIMITRIOS BACASETAS
Counsel: MR G MANOS - Solicitors: MANOS AND ASSOCIATES

Respondent: CITY OF HOLDFAST BAY
Counsel: MR M BEAMOND - Solicitors: MELLOR OLSSON

ERD-03-304

Judgment No. [2003] SAERDC 119

16 December 2003

DIMITRIOS BACASETAS

v

CITY OF HOLDFAST BAY

(ERDC No. 304 of 2003)

[2003] SAERDC 119

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal against the decision of the City of Holdfast Bay ("the Council") to refuse an application by Dimitrios Bacasetas ("the Appellant"), which application sought Provisional Development Plan Consent to change the use of the land at 65 Jetty Road from a shop to a restaurant, including alterations and additions to an existing building together with the provision of associated carparking.

The Land and Locality

2. The subject land is situated midway along the Jetty Road shopping strip, approximately 100 metres east of The Esplanade at 65 Jetty Road, Brighton. It is a site of regular shape with a total area of 278.5 square metres and has a 9.14m frontage to Jetty Road. On the land is located an existing shop premises, this being a single-storey building with a floor area of 95.5 square metres the most recent use of the premises being a delicatessen. The site enjoys a rear frontage of 9.14m to Elm Lane to the south, this being a 6m wide public laneway serving Jetty Road (south) properties as well as residential properties to the south, these properties fronting Bindarra Road. The lane intersects with Elm Street to the east and Twinnings Lane to the west.

3. The building has a simple shop frontage situated some 2.1m from the street frontage. It is offset from the eastern side boundary, thereby providing pedestrian access from the front to the rear via an existing gate. On the rear, Elm Lane, frontage is a steel clad shed and gravelled area together with concrete paving. A verandah is presently located on the rear wall.

4. That part of Jetty Road, Brighton located west of the railway line falls within a Residential D Zone, with business activity concentrated on the southern side of Jetty Road and the wider locality being characterised by a substantial residential base comprising a mix of two storey apartment style townhouses, residential flat buildings and detached and semi-detached dwellings of between one and three storeys.

5. The southern side of Jetty Road, between Elm Street and The Esplanade, is characterised by a mix of single and two-storey developments, almost all located on the front property boundary and, with few exceptions, being used for retail shopping, personal services establishments and restaurants.

6. On the northern side of Jetty Road, at its intersection with The Esplanade, is the Esplanade Hotel, which incorporates extensive indoor and outdoor dining/restaurant facilities. East of the hotel, fronting Jetty Road, is a mix of residential development including detached dwellings, townhouses and single-storey residential flat buildings. One non-residential use, a church car park and church building, is situated at the corner of Jetty Road and The Crescent.

7. On the southern side of the intersection of The Esplanade and Jetty Road are the three storey Brighton Jetty Kiosk and apartment building. The remainder of The Esplanade within the locality, from Dunluce Street in the north to Bindarra Street in the south is developed for residential purposes, including single-storey detached dwellings and two to three storey residential dwellings and apartments.

8. The primary localities defined by Mr A Rumsby and Mr R McBryde, both qualified and experienced town planning consultants who gave evidence in this matter, were essentially the same, taking in development on both sides of Jetty Road between The Esplanade and Elm Street, and extending to include land on both sides of Elm Lane between Twinnings Lane to the west and Elm Street to the east.

9. On the southern side of Jetty Road, between Elm Street and The Esplanade, are at least five restaurants, at 53-55, 63, 71, 75-77, and 81 Jetty Road. There is also a delicatessen at number 47 Jetty Road and a kiosk at the junction of The Esplanade and Jetty Road, both of the latter having indoor furniture for sit down meals.

10. It was evident on the view that there has been substantial public investment in the Jetty Road streetscape. Street improvements to Jetty Road made by the Council in recent years include road pavement narrowing, pedestrian refuges, bollards, brick paved footpaths and a generally upgraded street appearance with undergrounded powerlines and new street lighting. 45 degree angle parking has been provided for on one section of the southern side of Jetty Road. Similarly, The Esplanade has a good carparking layout, street tree planting, upgraded street lighting and undergrounded powerlines. The narrowing of the roadway in the vicinity of the subject land has afforded the opportunity for outdoor dining in association with the restaurant premises on the southern side of Jetty Road.

The Proposal

11. The application refused by the City of Holdfast Bay incorporated the following elements:-

• conversion of the existing specialty shop (delicatessen) to a restaurant providing seating for some 24 persons in a dining area of 63 square metres. A new kitchen, preparation area, cool room and disabled toilets are proposed within the store room of the existing shop and within building extensions to the rear;

• an addition to the existing shop premises, 25.5 square metres in area, to be contained wholly within the existing rear verandah area;

• the addition of a 3.4m wide lean-to verandah at the rear of the proposed building extensions;

• provision of three carparking spaces some 2.5m inside the laneway frontage, with direct access onto, Elm Lane; and

• landscaping, fencing and site works as identified on the proposal plans.

12. Following the Council's refusal of the application, the proposal plans were amended, and the Court was advised that it was those plans upon which the Appellant relied for the purpose of this hearing. The amendments entailed:-

• removal of the proposed new verandah at the rear;

• the addition of three further carparking spaces, bringing the total number of spaces to six, in stacked format, all requiring entry from, and reversing manoeuvres into, Elm Lane; and

• restriction of the number of diners on the premises to not more than 40 at any one time.

13. The Appellant also advised the Court, through his counsel, of his willingness to abide a condition restricting the number of patrons and a further condition imposing a closing time of 10pm Sunday to Wednesday inclusive and 12 midnight Thursday to Saturday inclusive.

Assessment

14. As I have said, the subject land is located within the Residential D Zone. That Zone is depicted on Map HoB/9 in the Development Plan for the City of Holdfast Bay dated 19 December 2002. It was common ground between the parties that the proposed use of the subject land for a restaurant was a consent, on-merit use within that zone. The relevant objective for the zone are as follows:

Residential D Zone

"Objective 1: A zone primarily accommodating:

(a) detached and semi-detached dwellings, row dwellings, group dwellings, and residential flat buildings; and

(b) a limited range of residential tourist accommodation facilities.

Objective 2: A zone accommodating a limited range of small-scale retail, and food outlets to serve tourists and local residents."

15. Relevant zone principles are:

"1 Development undertaken in the Residential D Zone should be, primarily, detached and semi-detached dwellings, row dwellings, group dwellings and residential flat dwellings, and a limited range of residential tourist accommodation facilities.

2 Development within the zone may include small-scale retail and food outlets in appropriate locations.

7 Small-scale retail development in the form of kiosks, shops and food outlets is appropriate in certain locations including:

(a) Jetty Road, Brighton;

(b) The Esplanade, Brighton, within 100 metres of its intersection with Jetty Road; and

(c) The Esplanade, Seacliff, within 100 metres of its intersection with Wheatland Street.

8 Any development other than residential or tourist accommodation facilities should be limited to a maximum floor area of 150 square metres.

18 Development should not cause a nuisance or disturbance to occupants of residential buildings or tourist accommodation in the locality by:

(a) the generation of excessive noise;

(b) the generation of excessive traffic movement;

(c) the creation of excessive glare from external lighting or building materials; or by

(d) a loss of privacy from insensitive siting of buildings and facilities."

16. Other Development Plan provisions of some relevance are Council Wide Objectives 1, 2, 3, 16, 23, 24, 44 and Principles 32, 33, 34, 35, 36, 37, 94 and 196.

17. The central issue in these proceedings was carparking. Mr Beamond, for the Council, submitted that approval of the proposal would add to an already serious undersupply of carparking in the locality, inasmuch as it did not meet the on-site carparking requirement prescribed by Table HoB/4. That table sets a parking requirement for a restaurant which is calculated as one space per 10 square metres of total floor area, or one space for every three spaces "provided or able to be provided", whichever provides the greater number. Additional spaces are required if food can be taken away from the premises.

18. In support of this submission Mr Beamond referred to the evidence of Mr R McBryde, a qualified and experienced town planning consultant, and Mr R Weaver, a qualified and experienced traffic engineer. Mr Weaver's statement of evidence was admitted without the need for cross-examination.

19. On the basis of Table HoB/4 Mr McBryde calculated a requirement for up to 20 carparking spaces, based on his assessment of a capacity within the restaurant of 45 patrons, together with up to 15 additional patrons outside. The unmet demand for carparking spaces would, in his view, adversely affect the amenity of nearby residential streets, inasmuch as those streets were likely to accommodate that part of the parking demand generated by Jetty Road restaurants which could not be met on site or on Jetty Road.

20. Mr McBryde observed that the Council's Outdoor Dining Permit Policy did not assess carparking provision in deciding whether to grant an annual licence for that purpose, and therefore create the potential for further customers beyond those accommodated within the restaurant proper, without a requirement for additional carparking to be provided.

21. Referring to Zone Objective 2, Mr McBryde questioned whether a restaurant could properly be characterised as a "small scale food outlet", there being no reference in the Zone provisions to "restaurant", whereas reference to this term was made in certain other zones within the City of Holdfast Bay.

22. Finally, Mr McBryde was of the view that the proposal failed to meet a number of Development Plan provisions directed towards the development of centres and shops.

23. Mr Rumsby, in evidence, was of the view that the subject site and its Jetty Road location were expressly identified as an appropriate location for a range of service and hospitality activities similar in nature and scale to the subject proposal. Inasmuch as the proposal's floor area fell below the limit of 150 square metres prescribed by Zone Principle 8, it could properly be regarded as "small scale", and as a use of land, it was consistent with a number of other restaurant uses approved by the Council within the locality in recent years.

24. With reference to the proposal's potential to cause nuisance to occupiers of residential properties in nearby streets, Mr Rumsby observed that the western end of Jetty Road, being in close proximity to a popular beach and jetty, was already an established specialty goods and hospitality hub, the Esplanade Hotel in particular being a significant trading magnet. That being the case, this area of Jetty Road and its nearby environs was already subject to extraneous traffic and associated nuisances. Mr Rumsby was of the view that, provided the scale and nature of the restaurant activity was within the reasonable scope provided for under the zoning, the proposal was unlikely to generate unreasonable nuisance.

25. Furthermore, said Mr Rumsby, the proposal would have no material impact on total traffic demands, nor result in any increased demand for kerbside parking, on the basis that:

(a) the existing use of the land already generated a parking requirement of some 6.45 spaces, which requirement was not met on site; and

(b) at a rate of 1 space/10 square metres (being the highest in the range of parking calculations applying to "restaurant"), the proposal required a total of 12.1 spaces for a 121 square metres restaurant proposal.

26. Insofar as the proposal entailed the provisions of 6 carparking spaces where no spaces were previously provided, the net effect was no change to the existing situation.

27. Mr Rumsby acknowledged the potential for the total capacity of the premises (and therefore total parking demand) to be increased should the restaurant operator apply for and obtain an Outside Dining Permit, but was of the view that this possibility was addressed by the Appellant's willingness to abide a condition restricting the total number of patrons, inside or outside the premises, to not more than 40, a number which, on the basis of Table HoB/4, would require a theoretical parking provision of 13 spaces, suggesting a net deficit of 1 parking space by comparison with the present situation.

28. With reference to Mr McBryde's criticism of the proposal's failure to satisfy a number of Development Plan provisions directed towards the development of centres and shops, in particular, Council Wide Principles 82, 83 and 84, Mr Rumsby's view was that these were relevant primarily to integrated multi-functional centres rather then to strip developments of the kind found on the southern side of Jetty Road, and had even less relevance to an application for a change of use from shop to restaurant.

29. The evidence of Mr Weaver was that the proposed development had the potential to increase the existing shortfall of carparking within the locality, a shortfall which he had quantified by undertaking a parking survey at 2.00pm and 3.50pm on the Sunday prior to the hearing, that survey indicating that of 174 on street carparking spaces available in the locality, only 3 were vacant at 2.00pm and 9 at 3.50pm. Mr Weaver was of the view that his Sunday survey was representative of the carparking demand within the locality.

30. Mr Weaver shared the concern expressed by Mr McBryde regarding the potential for an Outdoor Dining Permit to expand the capacity of the proposed restaurant without any concomitant increase in parking provision. He concluded that:

"In the event that the proposed development is to be granted Planning Consent .... it should only be on the basis of a condition that the number of seats should be specified as a maximum, as per the plan, given that this would minimise any shortfall in the number of carparking spaces".

31. Mr Beamond submitted that the issues before the Court were twofold. Firstly, whether the carparking deficiency occasioned by the proposal of itself warranted refusal of planning consent. Secondly, whether the nature of the land use changes which had occurred on the southern side of Jetty Road had gone beyond what was anticipated by the Development Plan, such that any further changes of a like nature should be resisted unless and until appropriate amendments were made to the Development Plan.

32. While acknowledging that, even on Mr Weaver's evidence, the parking shortfall created by the proposal was not significant, Mr Beamond, referring to the evidence of Mr McBryde, submitted that there had been a gradual loss of amenity within the Residential D Zone resulting from the additional carparking pressures created by the transformation of the southern side of Jetty Road to a popular restaurant strip. Inevitably, nearby residential streets bore the brunt of overflow parking associated with restaurants on Jetty Road, there being no current parking restrictions in those streets. The adverse impact of carparking in those streets was a direct consequence of the cumulative impact of a series of decisions to approve restaurants on Jetty Road, none of which decisions of itself resulted in a significant parking shortfall. Referring to several authorities for the proposition that planning authorities (and the Court) were entitled to take into account the "precedent effect" of a succession of small decisions likely to have an incremental impact (State Planning Authority v Tanczos (1979) 20 SASR 250; Rositano Enterprises v Minister for Environment and Natural Resources [1998] SAERDC 454), Mr Beamond submitted that the proposal warranted refusal on the basis that it added, albeit in a small way, to the incremental adverse impact of a parking shortfall on Jetty Road.

33. Mr Manos submitted that the carparking deficiency created by the proposal was minimal, and not a basis upon which refusal could be justified. Should an application for an Outdoor Dining Permit be made subsequent to any approval granted for a change of use to restaurant, it was the evidence of Mr McBryde that the Council did not assess any potential additional carparking requirement in deciding whether to give such a permit. Mr Manos referred to an attachment to Mr McBryde's statement of evidence which demonstrated that, in the current financial year, Outdoor Dining Permits issued by the Council for restaurants in the locality of the subject land provided for more than 300 outdoor diners, most of whom were accommodated within the widened footpath area which was, on the evidence, created by the Council in 1999. In that context, submitted Mr Manos, the minor parking shortfall represented by the subject proposal was inconsequential, and if the Council now believed there was a significant parking issue in the locality, the most appropriate course of action was for it to amend the Development Plan.

34. It is clear, from the evidence, that the emergence of the western end of Jetty Road as a restaurant strip has occurred with the Council's acquiescence, if not active encouragement, as witness the streetscape works undertaken in 1999, the approval of a number of restaurant uses, and the issuing of Outdoor Dining Permits for a total of more than 300 diners. It is equally clear that the Council, perhaps in response to complaints from residents in nearby streets, has become concerned (perhaps somewhat belatedly!) about the parking consequences of these developments. Be that as it may, the subject proposal is one which has to be considered on its own merits, while bearing in mind the potential cumulative effect of a succession of decisions, each of which accommodates a minor parking shortfall.

35. While the use of the term "food outlet" in the zone provisions is uncommon, I am satisfied that the term encompasses restaurants, cafes and take-away food premises, a view in which I am reinforced by the fact that the Council has had no apparent difficulty in approving a succession of restaurants in the locality. Similarly, I am satisfied, having regard to Zone Principle 8, that the subject proposal is properly characterised as "small scale". In land use terms, therefore, I consider the subject proposal an appropriate use in the locality.

36. That said, is the proposal so deficient in parking, actually or potentially, as to warrant refusal? On its face, the proposal put to the Court, which is to accommodate up to 40 diners, with carparking provision for 6 cars at the rear, represents a shortfall of 1 space over the present situation, the evidence of both expert planners being that 6 spaces would normally be required for the previous use of the land as a shop. Nothing was put before me to suggest that existing use rights for a shop did not subsist, nor was there any evidence of an existing planning condition requiring provision of carparking spaces in association with that shop. That being the case, I have to proceed on the basis that there is an existing, lawful shortfall of 6 carparking spaces on the subject land, which shortfall will be carried forward in any change to the use of that land. Neither planner disputed that interpretation. If the 6 proposed spaces to the rear of the subject premises are added to the existing shortfall, and the carparking requirement for the proposal assessed on the basis of the higher of the two ratios provided for in Table HoB/4, thus requiring 13 spaces, the net shortfall of parking over the present situation is 1 space. That, of course, assumes several things:

(a) that the spaces provided are useable spaces; and

(b) that a total of 40 diners is a realistic representation of the capacity of the proposed restaurant.

37. With reference to the useability of the spaces proposed, it is reasonable to assume that at least three of the spaces are likely to be used by restaurant staff, and that these spaces will be those immediately adjacent to the rear of the restaurant. Mr Weaver, in evidence, questioned whether the remaining three spaces were likely to be used by diners, given that there would be a reluctance to "park in" vehicles already behind the restaurant, and that kerbside parking and parking in surrounding streets would be more obvious to restaurant patrons than spaces accessed via a lane to the rear of the premises.

38. I accept that these are reasonable concerns. However, provided the 3 rearmost carparking spaces are signposted to make it clear that they are available to restaurant patrons, and the walkway providing access from the rear carparking area to the front of the restaurant is appropriately lit and signposted, I am satisfied that all 6 proposed carparking spaces to the rear of the subject premises are useable.

39. With reference to the capacity of the proposed restaurant, it was common ground between Mr Rumsby and Mr McBryde that 40 seats was a reasonable fit for the available internal floor area. It may be possible, of course, to accommodate a somewhat larger number of diners inside, and, should an Outdoor Dining Permit be obtained, a significant additional number of diners outside. Bearing in mind, however, the fact that the Council does not presently require additional parking spaces to be provided where an Outdoor Dining Permit is sought, it does not seem reasonable to reject the proposal on the basis of that potential, especially having regard to the expressed willingness of the Appellant to abide a condition restricting the total number of diners, whether inside or outside.

40. In reaching that conclusion, I am mindful of the remarks of this Court in Gray Dale v City of Norwood, Payneham and St Peters and Others, ERDC No 156 of 2002, in which a very substantial disparity between the physical space available within a restaurant and the number of diners for which approval was sought was viewed by the Court as likely to result in an ongoing enforcement problem for the planning authority. The circumstances of this matter are distinguishable from those in Gray Dale insomuch as the proposed number of diners inside is, on the evidence of two expert planners, a reasonable fit for the available floor area, and it is open to the Council to restrict the number of diners which can be accommodated outside, if an Outdoor Dining Permit is sought.

41. In all the circumstances, and having regard to the expert evidence, the relevant provisions of the Development Plan and to my observations on the view, I have concluded that, subject to appropriate conditions, including a condition limiting the total number of diners on the premises, the subject proposal warrants consent. Having regard to the evidence of Mr Weaver, which was not contested, that number should be such as to ensure there is no net deficit in parking provision created by the proposal. By my calculations, that number is 36 seats, producing a parking requirement of 12 spaces. In those circumstances approval of the proposal will not add to any existing parking shortfall.

42. By memorandum dated 27 November 2003 I advised the parties of my conclusions above, and invited them to confer on conditions of consent.

43. On the resumption of proceedings Mr Manos tendered an amended plan addressing the issues raised in my memorandum, and a draft set of conditions. With some minor variations these conditions were subsequently agreed between the parties.

44. The order of the Court is that the decision of the Council on Development Application 110/00488/03 is set aside and Provisional Development Plan Consent granted for the proposed development, subject to the following conditions:

1. That the design and siting of all buildings and structures and site works be as shown on the amended proposal plans comprising Exhibit A4 in these proceedings, unless varied by any subsequent conditions imposed herein.

2. That the premises be maintained, kept tidy, free of graffiti and in good repair and condition to the reasonable satisfaction of Council at all times.

3. That the premises be used only as a restaurant and for no other purpose.

4. That the premises not be used, directly or indirectly, for the purpose now approved until all work has been completed in accordance with the plans approved and the conditions of consent have been complied with, except those conditions that continue to apply.

5. That the applicants or other persons for the time being making use of the development now approved, cultivate, tend and nurture the trees or, shrubs or lawns intended to be established upon the subject land, replacing from time to time, any trees, shrubs or lawns which shall die or become diseased with others of the same respective varieties or of such varieties as the Council shall approve in writing.

6. That all plants be watered through the installation of an underground drip feed irrigation system.

7. That construction take place only between 7am and 7pm Monday to Saturday and not on Sundays or public holidays. All such work must be undertaken in such a manner so as not to cause, in the reasonable opinion of Council, any nuisance or annoyance to any of the occupiers of buildings within the locality. Any work outside of these hours requires the written approval of Council.

8. That car parks numbered 1-3 be clearly signed and designated for "staff use only" and car parks numbered 4-6 be clearly signed as designated for the "use of patrons".

9. That adequate provision be made for the disposal of stormwater to the reasonable satisfaction of Council. Where possible, stormwater should be retained on site by the use of natural drainage measures.

10. That all of the car parking, driveway and vehicle manoeuvring area and the walkway from the rear of the front wall of the premises be constructed and finished in grey pavers in accordance with sound engineering practice prior to the occupation or use of the development herein approved.

11. That the builder at all times provide and maintain a waste receptacle to the reasonable satisfaction of Council on the site in which and at all times all building waste must be contained for the duration of the construction period and the receptacle must be emptied as required.

12. That no food be sold for consumption off the premises.

13. That the bins for the holding of wastes from the operation of the premises be capable of being sealed and be screened from the walkway and from Elm Lane.

14. That not more than 36 patrons be present on the premises, either inside or outside, at any time.

15. That hours of operation not exceed the following:

Sunday to Wednesday 9am to 10pm

Thursday to Saturday 9am to 12 midnight.