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O'CONNELL PROPERTY PTY LTD v ADELAIDE CITY COUNCIL [2007] SAERDC 29 (1 June 2007)

Last Updated: 4 June 2007

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

O'CONNELL PROPERTY PTY LTD v ADELAIDE CITY COUNCIL

[2007] SAERDC 29

Judgment of Commissioner Green

1 June 2007

LOCAL GOVERNMENT - TOWN PLANNING

Development Act 1993 - applicant appeal - refusal of the Council to grant variation to approved condition to extend operating hours for gaming/bar/restaurant premises - Main Street (O'Connell) Zone - intensification of use; prior use and licence conditions; busy main street locality with fringe and high rise residential use; noise impacts, nuisance/annoyance/anti-social behavioural impacts affecting residential amenity; interaction with other licensed premises and potential for flow-on effects to other premises, all considered - degree of additional impact minor - additional intensification of use acceptable but with varied more limited conditions than sought - additional conditions to specify music noise levels within the premises and external security guard presence at certain times - appeal allowed - varied and additional conditions of Provisional Development Plan Consent granted.
Development Act 1993; Gaming Machines Act 1992; Liquor Licensing Act 1997, referred to.

O'CONNELL PROPERTY PTY LTD v ADELAIDE CITY COUNCIL
[2007] SAERDC 29

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This matter is an applicant appeal against the decision of the Adelaide City Council (the Council) to refuse to grant Provisional Development Plan Consent to Development Application No. 499/2006, made under the Development Act 1993, to extend the hours of operation of an approved gaming/bar/restaurant premises at North Adelaide (effectively a variation of condition 6 of a prior approval).
2 The Council’s reasons for refusal were as follows:

The development does not reinforce the desired character of the locality in accordance with City Wide Objectives 26, 27, 82, 83, 84 and Principles 85, 86, 87, 88, 89, 92 and 271.
The proposed development will not strengthen, achieve and be consistent with the desired character for the Zone in accordance with Zone Objective 1 and Principle 1.
The development does not ensure a high quality living environment is achieved in accordance with Council Zone Principles 3, 4 and 5.

3 A summary of some of the relevant details in this matter is as follows:

Registration date of application:	5 July 2006
Subject land address:	61-69 Brougham Place, North Adelaide (fronting 1-19 O’Connell Street)
Existing use:	Approved redevelopment under construction for 91 residential apartments, ground level retail, gaming/bar/restaurant premises, and ancillary multi-level car parking (DA No. 957/2004 – referred to hereafter as Approval 1 and DA No. 12/2006 referred to hereafter as Approval 2)
Proposal (amended):	Extend the hours of operation of the gaming/bar/restaurant premises from Sunday-Thursday 7am to midnight, and Friday, Saturday 7am to 2am the next day; to Sunday-Thursday 7am to 2am the next day; and Friday, Saturday 7am to 3am the next day
Relevant authority:	Adelaide City Council
Relevant/appropriate Development Plan:	Adelaide (City) consolidated version 30 March 2006
Relevant Zone:	Main Street (O’Connell) Zone – MS(O’C)Z hereafter – Maps Adel/8 and 39
Date of decision:	23 October 2006
Appeal lodged:	15 December 2006
Conference concluded:	16 February 2007

4 The Court viewed the subject land and the locality on the morning of Tuesday, 10 April 2007 in the presence of the parties.
5 Evidence provided to the Court to assist its decision-making and to which regard is given comprised:

• In the appellant’s case – Ms J Lovell, a qualified and experienced consultant traffic engineer (refer Exhibit A1); Mr I Dimitrov, a qualified and experienced consultant acoustic engineer (refer Exhibit A2); Mr C Vounasis, a qualified consultant town planner with moderately limited experience (refer Exhibit A3); and Mr V Oberdan, one of the directors of the appellant-owning company regarding rationale, intentions and operations concerning the premises and the proposed extension of hours; and

• In the respondent’s case – Mr C Turnbull, a qualified and experienced consultant acoustic engineer (refer Exhibit R4); and Mr M Rolfe, a qualified and experienced consultant town planner (refer Exhibit R2).

6 The independence of Mr Vounasis as an independent expert before the Court was challenged by counsel for the Council. Mr Vounasis and his employer company had an advocacy, client representative role with regard to the application the subject of this matter, and other prior and current development applications and I note his responses and positions under cross-examination. I find that his independence is doubtful. Hence, his evidence is acknowledged and it was of some assistance, but reliance is not placed on his opinions as a purported independent expert, in the assessment and decision in this matter.

The Subject Land

7 The subject land comprising the approved premises for a gaming, bar and restaurant business (and I also note "bar-bottle shop" and an internal ATM designations on the plans) on the ground level of 1-19 O’Connell Street, and as far as I can determine from the documents, comprises part of allotment 2, allotment 3, allotment 4 and part of allotment 5 DP 1266 (CTs Vol.5118 Fol.156 and Vol.5118 Fol.185), as shown on plans at pp.16 and 137 of Exhibit R1. It has a frontage of approximately 20 metres to O’Connell Street but excludes a corner retail tenancy to the south. It also excludes another retail tenancy to the north to the Ward Street corner.
8 The subject premises are part of what was the well known and longstanding former Hotel Adelaide, which use is now either suspended or superseded and is being redeveloped for 91 residential apartments, multi-level parking (no spaces apparently delineated for the subject premises and its patrons), retail tenancies and the approved gaming/bar/restaurant subject premises.
9 Apparently on the submissions of counsel for the appellant (transcript p.181 lines 2-12), the Hotel Adelaide licences (Gaming Machines and Special Circumstances which includes entertainment consent – No.51204322) have been transferred to the appellant company and have also been suspended pending completion of the redevelopment (refer Exhibit R1 pp.21-23). The submission also was that they would need reactivation and a new plan for licensing and entertainment licensing purposes indicating the significantly reduced areas and number of patrons, amongst other things.
10 The Gaming Machines License conditions (for 40 machines – although with the subsequent planning approvals it has been limited to 32 machines), allowed hours of operation from 10am – 4am Monday to Saturday, and 10am – 3am Sunday. The Special Circumstances License conditions allowed for hours of operation at any time on any day (except Good Friday) for consumption on the premises. That remains a relevant consideration when weighing up amenity impacts on adjacent residential use (refer discussion below).
11 The relevant development approvals are DA 957/2004/1 approved on 18 November 2005 (Approval 1); and DA 12/2006, with Provisional Development Plan Consent issued on 21 April 2006 (Approval 2). As far as they appear relevant to the subject premises, which were relocated and redescribed, and with varied conditions, I read Approval 2 as superseding in most respects Approval 1. Relevant conditions of Approval 2 are as follows:

.....

4. A report prepared by a suitably qualified acoustic engineer that ensures the development satisfies the following minimum requirements:
(a) the nearest existing noise sensitive location in or adjacent to that zone:
(i) music noise (L_{10, 15 min}) less than 8 dB above the level of background noise (L_{90, 15 min}) in any octave band of the sound spectrum: and
(ii) music noise (L_{A10, 15 min}) les than 5 dB(A) above the level of background noise (L_{A90, 15 min}) for the overall (sum of all octave bands) A-weighted levels; or
(b) the nearest envisaged future noise sensitive location in or adjacent to that zone:
(i) music noise (L_{10, 15 min}) less than 8 dB above the level of background noise (L_{90, 15 min}) in any octave band of the sound spectrum and music noise (L_{10, 15 min}) less than 5 dB(A) above the level of background noise (L_{A90, 15 min}) for the overall (sum of all octave bands) A-weighted levels; or
(ii) music noise (L_{10, 15 min}) less than 60 dB(Lin) in any octave band of the sound spectrum and the overall (L_{10, 15 min}) noise level is less than 55 dB(A).
shall be submitted to Council prior to Provisional Building Rules Consent. Plans submitted as part of Provisional Building Rules Consent shall incorporate the recommendations from the report.

.....
6. The premises shall only operate during the following hours: -
- 7am to midnight Sunday – Thursday; and

- 7am to 2am on the following morning [presumably for Friday and Saturday]

12 Apparently, on the evidence of Mr Oberdan, the appellant accepted these conditions (recommended by Council staff), to enable consent to be granted to the relocation, although longer hours had been sought at that time. Condition 6 was said to align with the Council’s Precinct Licensing Statement – O’Connell Street (refer Exhibit R9).
13 Approval 2 allowed 32 gaming machines, a 40-person bar opening onto and adjoining a small 49 seat restaurant providing for a total potential of 129 patrons at any one time. Of relevance is that the approved premises are to have a glass openable wall to the O’Connell Street footpath for perhaps an 8 metre width in front of the restaurant.
14 The evidence is that another development application affecting the subject premises is before the Council and that it seeks approval in an amended form, for outdoor alfresco dining involving seven tables, umbrellas, radiant heaters, planter boxes and glazed screening for 21 patrons, extending for the O’Connell Street length of the premises. At the time of the hearing no approval had been granted by the Council. I was asked to include an assessment and applicability of the extended hours sought to this new potential element, however I decline to do so as it has no approval and that may not ever occur, and different activities and acoustic considerations apply to it. Nevertheless, the evidence of both acoustic engineers in this matter and the approach and reasoning I adopt may be of some assistance to the Council in its deliberations on that application (if not already determined) and if approved, its hours of operation.

The Proposal

15 The proposal, with minor amendment, is to extend the hours of operation of each of the approved elements (gaming/bar-bottle shop/restaurant), from that specified in condition 6 of Approval 2 (outlined above) to the following (effectively a variation to condition 6 is sought):

• Sunday to Thursday 7am – 2am on the following morning (an extra 2 hours for each of five nights); and
• Friday, Saturday 7am – 3am on the following morning (an extra 1 hour on two nights);

a total of 12 additional late evening trading hours per week.

16 On the evidence of Mr Oberdan, provided to the Court late in the case of the appellant, the rationale for the application was to seek parity – a so-called level playing field – with other licensed premises along O’Connell Street in the same zone, such as the Archer Hotel and the Oxford Hotel in particular, and he specifically mentioned with regard to the gaming machine areas. He also advised that the intended style and management of the premises, to be run by himself and/or his family members, involves a small scale, upmarket restaurant/bar with quality dishes targeted at older clientele, apartment occupants and their visitors and with background level music either recorded – initially, or potentially live with perhaps a piano player/singer/guitarist, but with the latter opportunity severely restricted by floor area constraints.
17 I note, referring to Exhibits R1, pp.24-50, Exhibits R6, R7 and R8, and Exhibit R1, p. 18 in particular, the various licensed premises referred to, with varied trading hours approved over the years for differing elements and areas within their complexes and/or on footpath, courtyards or balconies. However, in general the existing hours of the subject premises as per condition 6 of Approval 2 are similar, if not more favourable, than four out of seven licensed premises referred to in the documentation (but excluding as a reference the Wellington Hotel due to its distance, historic and residential zoning and lack of any relevance), but is less favourable than for the Oxford Hotel (same as the hours now sought by the proposal under consideration); for the Royal Oak Hotel (the rear gaming room may trade extra hours on Sunday night and with general trading Monday to Thursday comprising an additional 2 hours per night); and to a minor extent with the Caledonian Hotel (2 extra hours on Wednesday and Thursday nights only).
18 A restaurant is a used term in the zones of the Adelaide (City) Development Plan, although it would appear to overlap with "Licensed Premises" as defined, which includes in this matter the bar element. The gaming machines element might reasonably fit into the "Licensed Entertainment Premises" phrase also defined in Schedule 1 and used in the relevant Development Plan, as, in addition to a gaming machines licence under the Gaming Machines Act 1992, it would be expected to be licensed for the consumption of liquor under the Liquor Licensing Act 1997 (as the other hotel gaming rooms located along O’Connell Street appear from the documentation to be).
19 The proposal variation application before the Court is for consideration on merit in the MS(O’C)Z on the basis that neither a restaurant, nor a licensed premise nor a licensed entertainment premise or a gaming machines use or the combination thereof, are listed as non-complying development in the relevant principle for that zone.

The Locality

20 Comprising that part of the area surrounding the subject land-premises, of tangible influence on it, and that the specific variation of hours proposal impacts upon, to a notable degree, the locality boundary in this matter is to be based on visual impacts, the likely extent of patron on-street car parking locations (given no available off-street parking for the patrons of the subject premises), potential noise impacts (patrons and music at the premises) and noise/nuisance/ behavioural impacts from departing patrons moving either to their parked cars or elsewhere.
21 On their evidence, neither of the two town planners formally inspected the subject land and premises and the surrounding areas during the extended hours of trading sought, although Mr Vounasis had more personal experience of them than Mr Rolfe. The Court was not asked to do so either.
22 I have had regard to the boundaries defined by each town planner and have considered the matter carefully from observations on the view, as well as from my general experience over many years of North Adelaide and O’Connell Street business activities in particular, which I am unable to ignore. The boundary of the locality defined by Mr Vounasis is much too restricted and understated particularly to the east and south. That of Mr Rolfe (Exhibit R2, Figure 1) is more extensive and is reasonable, although from my assessment and some of the evidence, it is moderately common for patrons of restaurants and licensed premises in North Adelaide to be required to walk up to 200 metres (if not more on occasions) at peak times from available on-street parking to the premises they intend to frequent. Hence if they become late evening departers who may benefit from any consent to the extended hours, I would assume that most would return to their cars in those removed locations, to then travel home. However, I also take into account the extensive use of taxis and the potential number of patrons on foot (either to/from accommodation in North Adelaide or to surrounding suburbs or to other locations such as tourist accommodation within North Adelaide or within the CBD).
23 In addition, from my experience there is a fluidity of people movement (sometimes large in numbers) through the whole of MS(O’C)Z and the locality, and to/from the Cathedral area; the Adelaide Oval-War Memorial Drive tennis centre area and the banks of the River Torrens with the Adelaide Festival Centre and Adelaide Casino, as well as from the uses and activities in the Central Business Area Zone. Many of these locations have late evening events from time to time or regular very late hours of activity. Such movement and potential associated impacts adds an additional contextual element to this assessment.
24 I define the locality boundary to extend perhaps 150-200 metres in most directions, including to the south to the properties on the southern side of Brougham Place (Nos. 81-130); to the east along Brougham Place (Nos. 38-60); to the west along Brougham Place and Palmer Place (Nos. 72-80 Brougham Place and 58-64 Palmer Place); along Ward Street to the west to Nos. 171 and 164, and for a similar distance to the north to the Archer Street corner with O’Connell Street; and for a similar distance along Ward Street to the east to include Nos.74-106 and 73-119.
25 The subject premises and land immediately to the north across Ward Street and to the east over O’Connell Street are zoned MS(O’C)Z; the Park Lands to the south and south-east/south-west are zoned Park Lands Zone; dwellings to the south of Brougham Place are zoned North Adelaide Historic (Conservation) Zone as are the residential areas to the west and east away from O’Connell Street. O’Connell Street which connects to King William Road are both major arterial roads of North Adelaide and with respect to the latter, the Adelaide CBD, carrying very high traffic volumes at the majority of times, as well as containing bus routes and with a bus stop located nearby and to the north of the subject premises. A bus route also passes along Ward Street west of O’Connell Street.
26 The land uses and activities mix are reasonably described by Messrs Vounasis and Rolfe, though that of the latter is a more accurate reflection of the locality as I have defined it. Neither undertook any analysis of the extent of sensitive residential premises to inform their views about the extent and degree of potential noise and behavioural impacts which may arise from the extended hours of operation. In addition to the 91 apartments in the redevelopment I estimate there to be 24 dwellings to the south; 47 dwellings/apartments to the east and at least 30 accommodation units in the residential university college facing Ward Street to the east; perhaps 13 dwellings to the north-east along Ward Street; 3 dwellings due west and some 26 dwellings to the north-west along Ward Street – perhaps a total of some 235 dwellings (69 single dwellings and perhaps 166 apartment style dwellings/accommodation). Mr Rolfe estimated that about half of his locality might comprise residential land use.
27 There are a considerable number of and intensity range of retail, office, consulting rooms, commercial (including licensed premises) and community uses along O’Connell Street and in the MS(O’C)Z. Two restaurants/bars are nearby, located opposite to the east and on the north-western corner of O’Connell and Ward Streets. Some premises include a balcony such as to the north and at least one (a bakery shop) trades 24 hours per day.
28 I assess there to be in the order of 350 on-street parking spaces within the locality as defined (within approximately 200 metres) most with time limits during business hours but not restricted in the evening and with no residential parking permit areas. I note within Exhibit A the evidence of Ms Lovell and that her surveys recorded a maximum of 580 on-street car parking spaces used at the peak time of 10pm on Saturday night. However, the surveyed area is a different one than the locality, and is located north of Archer Street but still straddling either side of O’Connell Street. It gives an indication of the extent of on-street parking adjacent O’Connell Street, with the possibility of nuisance/noise impacts associated therewith.

The Relevant Development Plan Provisions

29 I have noted the provisions of the relevant/appropriate Development Plan referred to by the experts, others giving evidence and counsel. I find the following to be the provisions of most assistance and relevance to an assessment of the proposal, including the key issues raised in the Council’s case:

COUNCIL WIDE (CW hereafter)
Objectives: 22, 25, 26, 27, 54, 55, 82, 83 and 84; and
Principles of Development Control: 66, 80(a)(v), 85, 86, 88, 89, 92(b), 93, 94, 95 and 271.

MAIN STREET (O’CONNELL) ZONE (MS(O’C)Z)
Desired Character: Paras 1, 4 and 7;
Objective: 1; and
Principles of Development Control: 1, 2, 3, 4, 5 and 29.

MIXED USE ZONE (MUZ hereafter)
Principle of Development Control: 33(a)(b) (comparison of hours for licensed premises in Rundle Street and Hindley Street West locations)

NORTH ADELAIDE HISTORIC (CONSERVATION) ZONE (NAH(C)Z hereafter)
Objective: 3; and
Principle of Development Control: 25;
Policy Area 5 (adjacent to the west); Policy Area 7 (adjacent to the east); and Policy Area 8 over Brougham Gardens to the south with respect to their Desired Character and Objectives.

30 Notwithstanding the submissions of counsel for the appellant, I consider that the Vision within the Preface of the Development Plan document should not to be relied upon in the development assessment task given the contents of the Interpretation section and the Introduction to the Plan under the Council Wide provisions.

Processing

31 The Council processed the application as a Category 2 form of development, which involves limited direct notification to property owners/occupiers within 60 metres, or thereabouts of the subject premises. One representation was received by the Council from a person residing in residential premises to the north-west fronting Ward Street, concerning on-street car parking, increased noise and increased crime. This representation was to the Development Application as initially put which sought extended hours to 4am on Friday and Saturday nights.

Approach to Assessment

32 Section 33(a) of the Act requires the relevant authority (the Council) and on appeal this Court, to assess a development application against the provisions of the appropriate/relevant Development Plan and s 35(2) specifies that where a development is assessed as being seriously at variance with the Development Plan, it must not be granted consent. The whole of the Development Plan is to be assessed and it is the relevant guidelines in that Plan that provide the firm basis for decision making together with any other relevant matters.
33 In terms of s 35 and the provisions of the relevant Development Plan, the proposal is for consideration on its merits against the Plan guidelines, weighing up the pros and cons and considering whether the proposal is sufficiently conducive to the overall intent, purpose and desired character and amenity of the MS(O’C)Z and tested in the specific site and locality context. The Plan is also to be utilised as a flexible, advisory planning policy document, not as a mandatory legal statute and as a practical guide for practical application, superimposed upon an existing state of development on the site and in the relevant locality. Ultimately, a planning judgment is to be made on a fact and degree basis as to whether the specific proposal sufficiently meets the Development Plan and having regard to all relevant matters, warrants consent.
34 I find that I must assume that Approval 1 and Approval 2, including acoustic conditions designed to minimise internal noise transfer from ground level non-residential uses to the noise sensitive development (residential apartments) above, will be implemented, despite some doubts by Mr Turnbull as to their effectiveness, particularly with the openable glass wall in the open position. They are for the Council to determine and enforce. The variation application for extended hours of operation does not change the other applicable conditions and pending environmental characteristics.

Planning Assessment

35 The approved uses for which extended hours are sought are generically a mix of commercial, entertainment/leisure and service retail in nature.
36 I firstly consider the proposed land use/activities intensification as a result of the extended hours of operation sought in the context of the zone/policy area guidelines. I have had regard particularly to the following:

• the most specific MS(O’C)Z Desired Character referring to the zone as being the main focus for retail, commercial and community activities in the whole suburb of North Adelaide;

• zone Objective 1 and Principle 1 seeking strengthening of the desired character and with Principle 2 specifying the primary land use mix as a range of retail, office, leisure, community and associated uses (confirmed by CW Centres and Main Streets Objective 82);

• zone Principle 4 and the Desired Character indicating that licensed entertainment premises and hotels with entertainment are secondary to the primary land use mix; and

• that medium density residential development is also desirable (MS(O’C)Z Desired Character and Principle 2 and CW Centres and Main Streets Objective 84) and to be increased.

37 Against those guides, the proposal, in-principle, is not unreasonable. Nevertheless those guidelines and the primary and secondary land use thrusts are somewhat counterbalanced (although in some cases partially contradicted or at least with mixed messages given) by various other guidelines such as:
• CW Centres and Mainstreet Objective 83 – envisaging "restricted potential for further expansion or intensification of commercial activity due to ..... and the need to protect the amenity of neighbouring residents in residential areas", such as in the adjacent policy areas 5, 7 and 8;

• CW Centres and Mainstreet Objective 84 – envisaging "enhanced vitality and character, while effectively managing their impact to protect amenity in adjacent residential areas";

• CW Centres and Mainstreet Principle 271(f) – development to "have minimal adverse impact on surrounding residential uses";

• MS(O’C)Z – Desired Character – "The impacts of development will be carefully controlled and managed to ensure the enhancement of amenity for residential development within the Zone and in neighbouring Zones so as to ensure the achievement of a high quality residential living environment.";

• MS(O’C)Z – Principle 3 namely "Outdoor eating and drinking facilities, in association with cafes, restaurants and licensed premises, are appropriate along O’Connell Street, but may also be appropriate elsewhere provided such facilities do not impact on the achievement of a high level of residential amenity."; and finally
• MS(O’C)Z – Principle 5 comprising "Development should ensure a high quality living environment is achieved for residential development within and adjoining the Zone."

38 Are the concepts of enhancement of amenity for residential development (within and in neighbouring adjacent zones) and achievement of a high quality residential living environment, compatible and achievable given the primary and secondary land use mix sought, the enhanced "vitality" sought and the reality of the extent and nature of existing development along O’Connell Street in the MS(O’C)Z? Both town planners and counsel for the parties had difficulty grappling with the conundrum. This position is the more difficult to weigh up in the absence of a specific guide in the Plan and in the relevant Mainstreet Zone as to where the balance of interests (with indirect impacts and consequences) should lie, in terms of hours of operation of restaurants, licensed premises and licensed entertainment premises (unlike as specified in MUZ and the Central Business Area Zone).
39 I assess that the proposed extended hours of operation for the approved uses/activities may be potentially compatible with the achievement of a high quality residential living environment, at least to the extent evident at present, subject to a detailed impacts assessment. However, it is difficult to find that any increased hours of operation of the premises into the usual sleeping period for most people would enhance amenity for them, whether they are located within the MS(O’C)Z or the nearby adjacent/neighbouring residential policy areas. If the degree of negative impact is assessed to be acceptable, that may not be fatal to the application.
40 I also assess that increased opportunities for residential development at the rear or upper levels or side streets away from O’Connell Street are unlikely to be prejudiced by the proposal, dependent upon the nature, design and specific location of such development. Minimising the impacts of general traffic noise in the locality for new residential development would appear, on the acoustic evidence, to be equally or of greater importance for such design.
41 Turning now to the aspect of impacts assessment from the extended hours of trading sought on residential "amenity" (using that term as defined in the Act), of the so-called "noise sensitive development" (Schedule 1 Development Plan), sensitive land use receptors - in this case only residential use/activities being particularly relevant. I have divided the analysis into noise impacts (noise levels, types, duration), arising from music played within the premises; patron voices within the premises; patrons and vehicle noise as they walk to/from the premises and in most cases leave by motor vehicles parked in or near residential uses (referred to as transient noise) - considering the written and oral evidence of Mr Dimitrov, and the oral evidence and cross-examination of Mr Turnbull concerning that aspect; and secondly, the nuisance/annoyance/anti-social behavioural impacts from patrons moving to/from the subject premises and to/from, generally, their motor vehicles or taxis/buses or on foot, to/from locations within or outside the locality including their places of abode or other places of entertainment or activity. I then balance and weigh up the impacts to guide acceptability of the application.
42 Under cross-examination and on the assumption of the approved development (Approvals 1 and 2) meeting the specified conditions of approval (which could in reality mean the openable glass wall needing to remain closed), and if music on the premises were only quiet "background style" music (with a set maximum level to be specified – perhaps 65dBA indicatively on the evidence), the Council’s witness Mr Turnbull indicated potential acceptability of the extended hours despite his measured and assumed lower background noise levels than those initially indicated by Mr Dimitrov. His written concerns about mechanical plant internal noise transmission to apartment residents above, or about the noise of patrons in the proposed but not approved outdoor alfresco dinning area, are of limited, if any relevance to the application before the Court. He had no concerns with patron noise from within the subject premises on the external residential noise sensitive development.
43 Mr Turnbull did not assess the transient noise from patrons moving to/from the premises in the extended hours of trading in his written evidence but commented on that undertaken by Mr Dimitrov. He did not do so, as he was of the opinion that there would be other noise sources in the vicinity in that area, which would be of similar character and potential disturbance (particularly vehicle noise on roadways) and he tended to agree with the conclusions of Mr Dimitrov (though not his methodology and detailed assessment). I take his evidence to be that the impacts would be relatively few in occurrence and not unreasonable.
44 Whilst the evidence of Mr Dimitrov was not especially convincing or elucidatory, his conclusions with regard to music noise, mechanical plant noise and transient noise levels (for residential use adjacent) are generally accepted, including in the light of relevant noise level guides in the Development Plan. However, the nuisance/annoyance/anti-social behavioural impacts on residential amenity are an additional, somewhat subjective assessment, about which the opinions of the two town planners were also of some assistance. I now turn to that aspect – one that emerged, in my assessment, as a central one to the decision.
45 There was limited factual evidence or material in the documents about the occurrences of annoyance/nuisance/anti-social behaviour from residents in the locality, whether in current late evening trading hours to 12 midnight or 2am, yet alone the assessed characteristics in the extended periods sought to 2am and 3am. Some material was included as attachments to Mr Rolfe’s statement (Exhibit R2) and in Exhibit R5. One representor (Exhibit R1, pp.71-72), raised increased noise and crime as a concern and issue, and caused by existing similar premises. The absence of representations is not necessarily surprising as the Hotel Adelaide has not been operational from some months (if not years) and the approved gaming/bar/restaurant use has not commenced operating to provide a base line for approved activities and conditions or attributes such that they can be detailed, documented and assessed. Hence, the Court is left to make assumptions derived generally from the evidence of all witnesses and from my own professional and private experience, including other cases involving licensed premises and late evening trading.
46 The evidence of Ms Lovell, with no other contrary numbers put forward, but based very much on assumptions rather than hard research data, is that up to 7-10 additional departure movements in the extended hours sought, might arise and it is these that could impact on residents in the locality. Given the spread of on-street parking in the locality (with several choices of locations), it may mean on that basis an additional one or two additional vehicles of patrons using the subject premises leaving in the extended hours in front of particular dwellings. That is a very low number. In addition, such departures in those hours are perhaps equally likely from patrons of other licensed premises in MS(O’C)Z or the Cathedral Area or from the Park Lands-River Torrens and CBD areas, or indeed from late evening visitors to residential use (apartments, university colleges or dwellings), within the locality.
47 The premises are, relatively speaking, very small for licensed premises and compared to the several hotels in North Adelaide, and the smaller numbers using the premises and leaving the premises in the extended later hours and/or likely to cause any nuisance is considered to be low and probably not unreasonable. The nearest ground level residential use is somewhat removed and not in near proximity to the subject premises.
48 It is no easy task, based on the particular relevant Development Plan and all relevant considerations, to decide this matter. There are no very near or adjoining residential uses (other than the, to be acoustically treated, apartments above to which conditions of consent already apply) – unlike a number of the other referenced licensed premises in North Adelaide. Some regard and weight is to be given to the 24 hour nature of the (suspended) licence for the previous very large hotel use which from my knowledge included bars, cocktail lounges and large function rooms; and to the change brought about by the redevelopment as a whole including the very much reduced area and numbers for gaming/bar/restaurant functions in the subject premises, which is more in accord with the MS(O’C)Z Desired Character and other provisions. The expectations of residents should, quite reasonably, take that into account. The period of closure of the Hotel Adelaide and relative inactivity in terms of patrons, visitors, parking demand or people movement, is not a realistic or appropriate on-going expectation and particularly in the light of the zoning guidelines for the subject premises and Approvals 1 and 2 granted by the Council.
49 Where and how is the line to be drawn, having regard to the Development Plan guidelines and the site and locality contexts? The Council’s Liquor Licensing Statement for O’Connell Street from 2001, which in any event is under revision, is to be given little weight. No specific guidelines for the hours of licensed premises (gaming/bar/restaurant) have been inserted into the relevant-appropriate Development Plan, although on the evidence, there have been opportunities in recent times to do so.
50 Other than perhaps some minor reduction in background ambient noise levels late night on Sunday-Thursday versus Friday and Saturday nights, and in the absence of specific evidence or a specific explicit hours guide from the MS(O’C)Z, I assess there to be no valid reason for differentiating between the closing hours for either grouping of days. On Sunday-Thursday with less activity generally occurring, acknowledged by certain witnesses, parking locations for patrons of the subject premises are likely to be very much closer to those premises and therefore have less impact or concern for residents within the broader locality. It may result in only an additional one or two departing vehicles in any given residential premises location.
51 I conclude that there is some reasonable justification for extended hours of the 32 machine gaming room and the 40 person bar area to 2am on any day. This happens to align with the hours of the Royal Oak Hotel, though compared to the Oxford Hotel it would remain marginally less on Friday and Saturday nights (even noting that admittance of patrons is required to be prevented after 2am at the Oxford Hotel and that its locality has very few noise sensitive receptors-uses such as residential). It is more favourable than for the Archer Hotel and some others, however, they have much more immediate and greater proximity to established residential use. However, comparisons with other licensed premises, with all but one outside the defined locality, are of limiting relevance or weighting in the assessment.
52 I have given no significant consideration to any outdoor dining/seating hours – that is for another assessment by the Council initially, though it would seem that more restricted hours (such as exist with the Oxford Hotel outdoor footpath areas to 11pm) may be necessary and appropriate given the acoustic engineering evidence before the Court.

Conclusions

53 I have considered and assessed the variation development proposal, the evidence, what I saw of the locality on the view, the relevant Development Plan guidelines and weighed them up in the subject land (with lawful approvals and license rights) and locality circumstances. I have also considered the authorities put by counsel though none were critical to this assessment. As mentioned, I have considered but not put much weight on the Council’s Precinct Licensing Statement – O’Connell Street and a draft review of it. I acknowledge some consideration to any likelihood of incrementalism or a flow-on effect to other licensed premises, but I am satisfied that this should not occur but in any event, would rest on the circumstances and/or localities of each. I have found that the issues and factors are finely balanced in determining this matter.
54 I conclude that whilst the variation is unlikely to enhance residential amenity, although longer hours may hold some attractiveness to some future residents in the redeveloped building or elsewhere in the locality, the degree of impact on residential amenity will be relatively minor and the Development Plan guidelines seeking a high quality residential environment will be sufficiently met given the locality context. The proposed degree of intensification of commercial-licensed premise land uses and activity is acceptable in this context.
55 I am minded to allow the appeal but approving more limited hours– that is Sunday-Thursday until 2am as sought but Friday, Saturday retained at 2am and not increased to 3am. In terms of the latter, I do so on the basis that another licensed premise with longer evening hours to 3am may cause significant movement of patrons from one licensed premise to another after others close at 2am, or earlier, thereby increasing potential impacts in the subject locality in the later hours to an unreasonable extent. I understand from counsel that the appellant may be amenable to this minor amendment, however, in the interest of procedural fairness, I will allow the opportunity for each party to place further submissions, and if considered critical, further evidence, regarding this mooted outcome and the contents/wording of further conditions of consent.
56 I am minded to vary condition 6 of Approval 2 but only to the extent referred to above, together with the attachment of further relevant conditions concerning:

• setting a maximum music noise level within the premises for the extended hours approved;

• defining whether the openable glass wall to O’Connell Street is to remain closed during the extended hours approved; and

• a security guard being required to patrol the O’Connell Street, Ward Street, Brougham Place footpaths during the extended hours approved – to minimise noise from departing patrons and nuisance and anti-social behaviour.

57 I heard the parties further regarding the Memorandum issued dated 8 May 2007. The submissions of the parties were in agreement with the setting of a music level of 65 dBA within the licensed premises at any time, and that in those and all other circumstances, there was no need to limit the opening of the glass wall to O’Connell Street.
58 The parties were also generally agreed with a condition requiring a security guard presence and with the wording of such a condition, except that the Council sought applicability of it for all days of the week, whereas the appellant submitted that it only was appropriate and reasonable on Friday and Saturday nights. I have further considered that distinction. I assess and have formed the view that there is only a reasonable requirement, given the characteristics of the locality and activity within it and along O’Connell Street and King William Street, for it to apply to Friday and Saturday nights, as well as any night prior to a public holiday, notoriously a busier trading night in the hospitality industry. There is agreement that it should apply from 11pm.

Decision

59 The appeal is allowed and the decision of the Council reversed. Provisional Development Plan Consent is granted to vary condition 6 of DA/12/2006 to extend the hours of operation of the approved gaming/bar/restaurant premises as follows, together with additional conditions of consent:

6. The premises shall only operate during the following hours – 7am to 2am on the following morning of any day.

7. Music levels from within the licensed premises shall, at no time, exceed a level of 65 dBA.

8. The operator shall ensure a security guard is present, patrolling the area from the intersection of Ward Street and O’Connell Street, south to the intersection of Brougham Place and O’Connell Street, and 100 metres in both an easterly and westerly direction from those intersections along Brougham Place and Ward Street, from 11pm until 2am each morning or until all patrons have vacated the area, whichever is the later, on Friday and Saturday nights and on the night before any other day that is a public holiday.

60 There will be an order to that effect.

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1	This matter is an applicant appeal against the decision of the Adelaide City Council (the Council) to refuse to grant Provisional Development Plan Consent to Development Application No. 499/2006, made under the Development Act 1993, to extend the hours of operation of an approved gaming/bar/restaurant premises at North Adelaide (effectively a variation of condition 6 of a prior approval).
2	The Council’s reasons for refusal were as follows:

4	The Court viewed the subject land and the locality on the morning of Tuesday, 10 April 2007 in the presence of the parties.
5	Evidence provided to the Court to assist its decision-making and to which regard is given comprised:

7	The subject land comprising the approved premises for a gaming, bar and restaurant business (and I also note "bar-bottle shop" and an internal ATM designations on the plans) on the ground level of 1-19 O’Connell Street, and as far as I can determine from the documents, comprises part of allotment 2, allotment 3, allotment 4 and part of allotment 5 DP 1266 (CTs Vol.5118 Fol.156 and Vol.5118 Fol.185), as shown on plans at pp.16 and 137 of Exhibit R1. It has a frontage of approximately 20 metres to O’Connell Street but excludes a corner retail tenancy to the south. It also excludes another retail tenancy to the north to the Ward Street corner.
8	The subject premises are part of what was the well known and longstanding former Hotel Adelaide, which use is now either suspended or superseded and is being redeveloped for 91 residential apartments, multi-level parking (no spaces apparently delineated for the subject premises and its patrons), retail tenancies and the approved gaming/bar/restaurant subject premises.
9	Apparently on the submissions of counsel for the appellant (transcript p.181 lines 2-12), the Hotel Adelaide licences (Gaming Machines and Special Circumstances which includes entertainment consent – No.51204322) have been transferred to the appellant company and have also been suspended pending completion of the redevelopment (refer Exhibit R1 pp.21-23). The submission also was that they would need reactivation and a new plan for licensing and entertainment licensing purposes indicating the significantly reduced areas and number of patrons, amongst other things.
10	The Gaming Machines License conditions (for 40 machines – although with the subsequent planning approvals it has been limited to 32 machines), allowed hours of operation from 10am – 4am Monday to Saturday, and 10am – 3am Sunday. The Special Circumstances License conditions allowed for hours of operation at any time on any day (except Good Friday) for consumption on the premises. That remains a relevant consideration when weighing up amenity impacts on adjacent residential use (refer discussion below).
11	The relevant development approvals are DA 957/2004/1 approved on 18 November 2005 (Approval 1); and DA 12/2006, with Provisional Development Plan Consent issued on 21 April 2006 (Approval 2). As far as they appear relevant to the subject premises, which were relocated and redescribed, and with varied conditions, I read Approval 2 as superseding in most respects Approval 1. Relevant conditions of Approval 2 are as follows:

12	Apparently, on the evidence of Mr Oberdan, the appellant accepted these conditions (recommended by Council staff), to enable consent to be granted to the relocation, although longer hours had been sought at that time. Condition 6 was said to align with the Council’s Precinct Licensing Statement – O’Connell Street (refer Exhibit R9).
13	Approval 2 allowed 32 gaming machines, a 40-person bar opening onto and adjoining a small 49 seat restaurant providing for a total potential of 129 patrons at any one time. Of relevance is that the approved premises are to have a glass openable wall to the O’Connell Street footpath for perhaps an 8 metre width in front of the restaurant.
14	The evidence is that another development application affecting the subject premises is before the Council and that it seeks approval in an amended form, for outdoor alfresco dining involving seven tables, umbrellas, radiant heaters, planter boxes and glazed screening for 21 patrons, extending for the O’Connell Street length of the premises. At the time of the hearing no approval had been granted by the Council. I was asked to include an assessment and applicability of the extended hours sought to this new potential element, however I decline to do so as it has no approval and that may not ever occur, and different activities and acoustic considerations apply to it. Nevertheless, the evidence of both acoustic engineers in this matter and the approach and reasoning I adopt may be of some assistance to the Council in its deliberations on that application (if not already determined) and if approved, its hours of operation.

16	On the evidence of Mr Oberdan, provided to the Court late in the case of the appellant, the rationale for the application was to seek parity – a so-called level playing field – with other licensed premises along O’Connell Street in the same zone, such as the Archer Hotel and the Oxford Hotel in particular, and he specifically mentioned with regard to the gaming machine areas. He also advised that the intended style and management of the premises, to be run by himself and/or his family members, involves a small scale, upmarket restaurant/bar with quality dishes targeted at older clientele, apartment occupants and their visitors and with background level music either recorded – initially, or potentially live with perhaps a piano player/singer/guitarist, but with the latter opportunity severely restricted by floor area constraints.
17	I note, referring to Exhibits R1, pp.24-50, Exhibits R6, R7 and R8, and Exhibit R1, p. 18 in particular, the various licensed premises referred to, with varied trading hours approved over the years for differing elements and areas within their complexes and/or on footpath, courtyards or balconies. However, in general the existing hours of the subject premises as per condition 6 of Approval 2 are similar, if not more favourable, than four out of seven licensed premises referred to in the documentation (but excluding as a reference the Wellington Hotel due to its distance, historic and residential zoning and lack of any relevance), but is less favourable than for the Oxford Hotel (same as the hours now sought by the proposal under consideration); for the Royal Oak Hotel (the rear gaming room may trade extra hours on Sunday night and with general trading Monday to Thursday comprising an additional 2 hours per night); and to a minor extent with the Caledonian Hotel (2 extra hours on Wednesday and Thursday nights only).
18	A restaurant is a used term in the zones of the Adelaide (City) Development Plan, although it would appear to overlap with "Licensed Premises" as defined, which includes in this matter the bar element. The gaming machines element might reasonably fit into the "Licensed Entertainment Premises" phrase also defined in Schedule 1 and used in the relevant Development Plan, as, in addition to a gaming machines licence under the Gaming Machines Act 1992, it would be expected to be licensed for the consumption of liquor under the Liquor Licensing Act 1997 (as the other hotel gaming rooms located along O’Connell Street appear from the documentation to be).
19	The proposal variation application before the Court is for consideration on merit in the MS(O’C)Z on the basis that neither a restaurant, nor a licensed premise nor a licensed entertainment premise or a gaming machines use or the combination thereof, are listed as non-complying development in the relevant principle for that zone.

20	Comprising that part of the area surrounding the subject land-premises, of tangible influence on it, and that the specific variation of hours proposal impacts upon, to a notable degree, the locality boundary in this matter is to be based on visual impacts, the likely extent of patron on-street car parking locations (given no available off-street parking for the patrons of the subject premises), potential noise impacts (patrons and music at the premises) and noise/nuisance/ behavioural impacts from departing patrons moving either to their parked cars or elsewhere.
21	On their evidence, neither of the two town planners formally inspected the subject land and premises and the surrounding areas during the extended hours of trading sought, although Mr Vounasis had more personal experience of them than Mr Rolfe. The Court was not asked to do so either.
22	I have had regard to the boundaries defined by each town planner and have considered the matter carefully from observations on the view, as well as from my general experience over many years of North Adelaide and O’Connell Street business activities in particular, which I am unable to ignore. The boundary of the locality defined by Mr Vounasis is much too restricted and understated particularly to the east and south. That of Mr Rolfe (Exhibit R2, Figure 1) is more extensive and is reasonable, although from my assessment and some of the evidence, it is moderately common for patrons of restaurants and licensed premises in North Adelaide to be required to walk up to 200 metres (if not more on occasions) at peak times from available on-street parking to the premises they intend to frequent. Hence if they become late evening departers who may benefit from any consent to the extended hours, I would assume that most would return to their cars in those removed locations, to then travel home. However, I also take into account the extensive use of taxis and the potential number of patrons on foot (either to/from accommodation in North Adelaide or to surrounding suburbs or to other locations such as tourist accommodation within North Adelaide or within the CBD).
23	In addition, from my experience there is a fluidity of people movement (sometimes large in numbers) through the whole of MS(O’C)Z and the locality, and to/from the Cathedral area; the Adelaide Oval-War Memorial Drive tennis centre area and the banks of the River Torrens with the Adelaide Festival Centre and Adelaide Casino, as well as from the uses and activities in the Central Business Area Zone. Many of these locations have late evening events from time to time or regular very late hours of activity. Such movement and potential associated impacts adds an additional contextual element to this assessment.
24	I define the locality boundary to extend perhaps 150-200 metres in most directions, including to the south to the properties on the southern side of Brougham Place (Nos. 81-130); to the east along Brougham Place (Nos. 38-60); to the west along Brougham Place and Palmer Place (Nos. 72-80 Brougham Place and 58-64 Palmer Place); along Ward Street to the west to Nos. 171 and 164, and for a similar distance to the north to the Archer Street corner with O’Connell Street; and for a similar distance along Ward Street to the east to include Nos.74-106 and 73-119.
25	The subject premises and land immediately to the north across Ward Street and to the east over O’Connell Street are zoned MS(O’C)Z; the Park Lands to the south and south-east/south-west are zoned Park Lands Zone; dwellings to the south of Brougham Place are zoned North Adelaide Historic (Conservation) Zone as are the residential areas to the west and east away from O’Connell Street. O’Connell Street which connects to King William Road are both major arterial roads of North Adelaide and with respect to the latter, the Adelaide CBD, carrying very high traffic volumes at the majority of times, as well as containing bus routes and with a bus stop located nearby and to the north of the subject premises. A bus route also passes along Ward Street west of O’Connell Street.
26	The land uses and activities mix are reasonably described by Messrs Vounasis and Rolfe, though that of the latter is a more accurate reflection of the locality as I have defined it. Neither undertook any analysis of the extent of sensitive residential premises to inform their views about the extent and degree of potential noise and behavioural impacts which may arise from the extended hours of operation. In addition to the 91 apartments in the redevelopment I estimate there to be 24 dwellings to the south; 47 dwellings/apartments to the east and at least 30 accommodation units in the residential university college facing Ward Street to the east; perhaps 13 dwellings to the north-east along Ward Street; 3 dwellings due west and some 26 dwellings to the north-west along Ward Street – perhaps a total of some 235 dwellings (69 single dwellings and perhaps 166 apartment style dwellings/accommodation). Mr Rolfe estimated that about half of his locality might comprise residential land use.
27	There are a considerable number of and intensity range of retail, office, consulting rooms, commercial (including licensed premises) and community uses along O’Connell Street and in the MS(O’C)Z. Two restaurants/bars are nearby, located opposite to the east and on the north-western corner of O’Connell and Ward Streets. Some premises include a balcony such as to the north and at least one (a bakery shop) trades 24 hours per day.
28	I assess there to be in the order of 350 on-street parking spaces within the locality as defined (within approximately 200 metres) most with time limits during business hours but not restricted in the evening and with no residential parking permit areas. I note within Exhibit A the evidence of Ms Lovell and that her surveys recorded a maximum of 580 on-street car parking spaces used at the peak time of 10pm on Saturday night. However, the surveyed area is a different one than the locality, and is located north of Archer Street but still straddling either side of O’Connell Street. It gives an indication of the extent of on-street parking adjacent O’Connell Street, with the possibility of nuisance/noise impacts associated therewith.

32	Section 33(a) of the Act requires the relevant authority (the Council) and on appeal this Court, to assess a development application against the provisions of the appropriate/relevant Development Plan and s 35(2) specifies that where a development is assessed as being seriously at variance with the Development Plan, it must not be granted consent. The whole of the Development Plan is to be assessed and it is the relevant guidelines in that Plan that provide the firm basis for decision making together with any other relevant matters.
33	In terms of s 35 and the provisions of the relevant Development Plan, the proposal is for consideration on its merits against the Plan guidelines, weighing up the pros and cons and considering whether the proposal is sufficiently conducive to the overall intent, purpose and desired character and amenity of the MS(O’C)Z and tested in the specific site and locality context. The Plan is also to be utilised as a flexible, advisory planning policy document, not as a mandatory legal statute and as a practical guide for practical application, superimposed upon an existing state of development on the site and in the relevant locality. Ultimately, a planning judgment is to be made on a fact and degree basis as to whether the specific proposal sufficiently meets the Development Plan and having regard to all relevant matters, warrants consent.
34	I find that I must assume that Approval 1 and Approval 2, including acoustic conditions designed to minimise internal noise transfer from ground level non-residential uses to the noise sensitive development (residential apartments) above, will be implemented, despite some doubts by Mr Turnbull as to their effectiveness, particularly with the openable glass wall in the open position. They are for the Council to determine and enforce. The variation application for extended hours of operation does not change the other applicable conditions and pending environmental characteristics.

35	The approved uses for which extended hours are sought are generically a mix of commercial, entertainment/leisure and service retail in nature.
36	I firstly consider the proposed land use/activities intensification as a result of the extended hours of operation sought in the context of the zone/policy area guidelines. I have had regard particularly to the following:

37	Against those guides, the proposal, in-principle, is not unreasonable. Nevertheless those guidelines and the primary and secondary land use thrusts are somewhat counterbalanced (although in some cases partially contradicted or at least with mixed messages given) by various other guidelines such as:
•	CW Centres and Mainstreet Objective 83 – envisaging "restricted potential for further expansion or intensification of commercial activity due to ..... and the need to protect the amenity of neighbouring residents in residential areas", such as in the adjacent policy areas 5, 7 and 8;

38	Are the concepts of enhancement of amenity for residential development (within and in neighbouring adjacent zones) and achievement of a high quality residential living environment, compatible and achievable given the primary and secondary land use mix sought, the enhanced "vitality" sought and the reality of the extent and nature of existing development along O’Connell Street in the MS(O’C)Z? Both town planners and counsel for the parties had difficulty grappling with the conundrum. This position is the more difficult to weigh up in the absence of a specific guide in the Plan and in the relevant Mainstreet Zone as to where the balance of interests (with indirect impacts and consequences) should lie, in terms of hours of operation of restaurants, licensed premises and licensed entertainment premises (unlike as specified in MUZ and the Central Business Area Zone).
39	I assess that the proposed extended hours of operation for the approved uses/activities may be potentially compatible with the achievement of a high quality residential living environment, at least to the extent evident at present, subject to a detailed impacts assessment. However, it is difficult to find that any increased hours of operation of the premises into the usual sleeping period for most people would enhance amenity for them, whether they are located within the MS(O’C)Z or the nearby adjacent/neighbouring residential policy areas. If the degree of negative impact is assessed to be acceptable, that may not be fatal to the application.
40	I also assess that increased opportunities for residential development at the rear or upper levels or side streets away from O’Connell Street are unlikely to be prejudiced by the proposal, dependent upon the nature, design and specific location of such development. Minimising the impacts of general traffic noise in the locality for new residential development would appear, on the acoustic evidence, to be equally or of greater importance for such design.
41	Turning now to the aspect of impacts assessment from the extended hours of trading sought on residential "amenity" (using that term as defined in the Act), of the so-called "noise sensitive development" (Schedule 1 Development Plan), sensitive land use receptors - in this case only residential use/activities being particularly relevant. I have divided the analysis into noise impacts (noise levels, types, duration), arising from music played within the premises; patron voices within the premises; patrons and vehicle noise as they walk to/from the premises and in most cases leave by motor vehicles parked in or near residential uses (referred to as transient noise) - considering the written and oral evidence of Mr Dimitrov, and the oral evidence and cross-examination of Mr Turnbull concerning that aspect; and secondly, the nuisance/annoyance/anti-social behavioural impacts from patrons moving to/from the subject premises and to/from, generally, their motor vehicles or taxis/buses or on foot, to/from locations within or outside the locality including their places of abode or other places of entertainment or activity. I then balance and weigh up the impacts to guide acceptability of the application.
42	Under cross-examination and on the assumption of the approved development (Approvals 1 and 2) meeting the specified conditions of approval (which could in reality mean the openable glass wall needing to remain closed), and if music on the premises were only quiet "background style" music (with a set maximum level to be specified – perhaps 65dBA indicatively on the evidence), the Council’s witness Mr Turnbull indicated potential acceptability of the extended hours despite his measured and assumed lower background noise levels than those initially indicated by Mr Dimitrov. His written concerns about mechanical plant internal noise transmission to apartment residents above, or about the noise of patrons in the proposed but not approved outdoor alfresco dinning area, are of limited, if any relevance to the application before the Court. He had no concerns with patron noise from within the subject premises on the external residential noise sensitive development.
43	Mr Turnbull did not assess the transient noise from patrons moving to/from the premises in the extended hours of trading in his written evidence but commented on that undertaken by Mr Dimitrov. He did not do so, as he was of the opinion that there would be other noise sources in the vicinity in that area, which would be of similar character and potential disturbance (particularly vehicle noise on roadways) and he tended to agree with the conclusions of Mr Dimitrov (though not his methodology and detailed assessment). I take his evidence to be that the impacts would be relatively few in occurrence and not unreasonable.
44	Whilst the evidence of Mr Dimitrov was not especially convincing or elucidatory, his conclusions with regard to music noise, mechanical plant noise and transient noise levels (for residential use adjacent) are generally accepted, including in the light of relevant noise level guides in the Development Plan. However, the nuisance/annoyance/anti-social behavioural impacts on residential amenity are an additional, somewhat subjective assessment, about which the opinions of the two town planners were also of some assistance. I now turn to that aspect – one that emerged, in my assessment, as a central one to the decision.
45	There was limited factual evidence or material in the documents about the occurrences of annoyance/nuisance/anti-social behaviour from residents in the locality, whether in current late evening trading hours to 12 midnight or 2am, yet alone the assessed characteristics in the extended periods sought to 2am and 3am. Some material was included as attachments to Mr Rolfe’s statement (Exhibit R2) and in Exhibit R5. One representor (Exhibit R1, pp.71-72), raised increased noise and crime as a concern and issue, and caused by existing similar premises. The absence of representations is not necessarily surprising as the Hotel Adelaide has not been operational from some months (if not years) and the approved gaming/bar/restaurant use has not commenced operating to provide a base line for approved activities and conditions or attributes such that they can be detailed, documented and assessed. Hence, the Court is left to make assumptions derived generally from the evidence of all witnesses and from my own professional and private experience, including other cases involving licensed premises and late evening trading.
46	The evidence of Ms Lovell, with no other contrary numbers put forward, but based very much on assumptions rather than hard research data, is that up to 7-10 additional departure movements in the extended hours sought, might arise and it is these that could impact on residents in the locality. Given the spread of on-street parking in the locality (with several choices of locations), it may mean on that basis an additional one or two additional vehicles of patrons using the subject premises leaving in the extended hours in front of particular dwellings. That is a very low number. In addition, such departures in those hours are perhaps equally likely from patrons of other licensed premises in MS(O’C)Z or the Cathedral Area or from the Park Lands-River Torrens and CBD areas, or indeed from late evening visitors to residential use (apartments, university colleges or dwellings), within the locality.
47	The premises are, relatively speaking, very small for licensed premises and compared to the several hotels in North Adelaide, and the smaller numbers using the premises and leaving the premises in the extended later hours and/or likely to cause any nuisance is considered to be low and probably not unreasonable. The nearest ground level residential use is somewhat removed and not in near proximity to the subject premises.
48	It is no easy task, based on the particular relevant Development Plan and all relevant considerations, to decide this matter. There are no very near or adjoining residential uses (other than the, to be acoustically treated, apartments above to which conditions of consent already apply) – unlike a number of the other referenced licensed premises in North Adelaide. Some regard and weight is to be given to the 24 hour nature of the (suspended) licence for the previous very large hotel use which from my knowledge included bars, cocktail lounges and large function rooms; and to the change brought about by the redevelopment as a whole including the very much reduced area and numbers for gaming/bar/restaurant functions in the subject premises, which is more in accord with the MS(O’C)Z Desired Character and other provisions. The expectations of residents should, quite reasonably, take that into account. The period of closure of the Hotel Adelaide and relative inactivity in terms of patrons, visitors, parking demand or people movement, is not a realistic or appropriate on-going expectation and particularly in the light of the zoning guidelines for the subject premises and Approvals 1 and 2 granted by the Council.
49	Where and how is the line to be drawn, having regard to the Development Plan guidelines and the site and locality contexts? The Council’s Liquor Licensing Statement for O’Connell Street from 2001, which in any event is under revision, is to be given little weight. No specific guidelines for the hours of licensed premises (gaming/bar/restaurant) have been inserted into the relevant-appropriate Development Plan, although on the evidence, there have been opportunities in recent times to do so.
50	Other than perhaps some minor reduction in background ambient noise levels late night on Sunday-Thursday versus Friday and Saturday nights, and in the absence of specific evidence or a specific explicit hours guide from the MS(O’C)Z, I assess there to be no valid reason for differentiating between the closing hours for either grouping of days. On Sunday-Thursday with less activity generally occurring, acknowledged by certain witnesses, parking locations for patrons of the subject premises are likely to be very much closer to those premises and therefore have less impact or concern for residents within the broader locality. It may result in only an additional one or two departing vehicles in any given residential premises location.
51	I conclude that there is some reasonable justification for extended hours of the 32 machine gaming room and the 40 person bar area to 2am on any day. This happens to align with the hours of the Royal Oak Hotel, though compared to the Oxford Hotel it would remain marginally less on Friday and Saturday nights (even noting that admittance of patrons is required to be prevented after 2am at the Oxford Hotel and that its locality has very few noise sensitive receptors-uses such as residential). It is more favourable than for the Archer Hotel and some others, however, they have much more immediate and greater proximity to established residential use. However, comparisons with other licensed premises, with all but one outside the defined locality, are of limiting relevance or weighting in the assessment.
52	I have given no significant consideration to any outdoor dining/seating hours – that is for another assessment by the Council initially, though it would seem that more restricted hours (such as exist with the Oxford Hotel outdoor footpath areas to 11pm) may be necessary and appropriate given the acoustic engineering evidence before the Court.

53	I have considered and assessed the variation development proposal, the evidence, what I saw of the locality on the view, the relevant Development Plan guidelines and weighed them up in the subject land (with lawful approvals and license rights) and locality circumstances. I have also considered the authorities put by counsel though none were critical to this assessment. As mentioned, I have considered but not put much weight on the Council’s Precinct Licensing Statement – O’Connell Street and a draft review of it. I acknowledge some consideration to any likelihood of incrementalism or a flow-on effect to other licensed premises, but I am satisfied that this should not occur but in any event, would rest on the circumstances and/or localities of each. I have found that the issues and factors are finely balanced in determining this matter.
54	I conclude that whilst the variation is unlikely to enhance residential amenity, although longer hours may hold some attractiveness to some future residents in the redeveloped building or elsewhere in the locality, the degree of impact on residential amenity will be relatively minor and the Development Plan guidelines seeking a high quality residential environment will be sufficiently met given the locality context. The proposed degree of intensification of commercial-licensed premise land uses and activity is acceptable in this context.
55	I am minded to allow the appeal but approving more limited hours– that is Sunday-Thursday until 2am as sought but Friday, Saturday retained at 2am and not increased to 3am. In terms of the latter, I do so on the basis that another licensed premise with longer evening hours to 3am may cause significant movement of patrons from one licensed premise to another after others close at 2am, or earlier, thereby increasing potential impacts in the subject locality in the later hours to an unreasonable extent. I understand from counsel that the appellant may be amenable to this minor amendment, however, in the interest of procedural fairness, I will allow the opportunity for each party to place further submissions, and if considered critical, further evidence, regarding this mooted outcome and the contents/wording of further conditions of consent.
56	I am minded to vary condition 6 of Approval 2 but only to the extent referred to above, together with the attachment of further relevant conditions concerning: