RSL BLACKWOOD & DISTRICT SUBURBS BRANCH INC v CITY OF MITCHAM [2009] SAERDC 49 (8 July 2009)

Last Updated: 15 July 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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RSL BLACKWOOD & DISTRICT SUBURBS BRANCH INC v CITY OF MITCHAM

[2009] SAERDC 49

Judgment of Commissioner Hamnett

8 July 2009

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Application to change the use of an existing outdoor deck area at an RSL club to allow the consumption of alcohol - subject land located in a District Centre Zone immediately adjacent to the Residential (Hills) Zone - impact of proposed development on access by persons with a disability - likelihood of increased noise as a consequence of the change of use - no proposals to minimise noise and other impacts on occupants of dwellings on adjoining land.

Held: Decision of Council affirmed. Appeal dismissed.

Development Act 1993; Development Regulations 1993; Environment, Resources and Development Court Act 1993 s (16(3)); Tobacco Products Regulation Act 1997; Liquor Licensing Act 1997, referred to.

Papadopoulos v Corporation of the City of Woodville [1985] 39 SASR 569; District Council of Tanunda v David and Ors [1985] 39 SASR 578, considered.

RSL BLACKWOOD & DISTRICT SUBURBS BRANCH INC v CITY OF MITCHAM
[2009] SAERDC 49

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal by the RSL Blackwood and District Suburbs Branch (“the Appellant”) against a decision by the City of Mitcham (“the Council”) to refuse an application for a change of the use of an existing outdoor deck area to allow the consumption of alcohol. The application was lodged on 21 July 2008. The Council refused the application on 3 December 2008 and notified the RSL of its decision by notice dated 8 December 2008. The Appellant was aggrieved by this decision and appealed to this Court.
2. On 6 April 2009 the Court made an order, pursuant to s 16(3) of the Environment, Resources and Development Court Act 1993, dispensing with the requirement for a conciliation conference on the basis that no useful purpose would be served as there was no reasonable prospect of reaching a settlement between the parties. The matter proceeded to a hearing, therefore, at which the Council was represented by Ms N Harris, of counsel. Mr B Bradbrook gave sworn evidence on behalf of the RSL and the Court also heard expert evidence from Mr D Batge, a qualified and experienced town planner. The Court conducted a view of the subject land and its locality prior to the hearing.

The Subject Land

3. The subject land is located at 1 Brighton Parade, Blackwood. It is formally described in Certificate of Title Volume 5892, Folio 48, as Allotment 78, Filed Plan 149911, in the area named Blackwood, Hundred of Adelaide. It has an area of approximately 1065 square metres and a western frontage to Brighton Parade of about 37 metres. The northern boundary is about 27.5 metres long, the southern boundary is about 30.5 metres long and the eastern boundary is about 36.5 metres long. The allotment is roughly rectangular.
4. There is a building on the subject land which contains the premises of the RSL. This is built to the eastern boundary of the land and is either on or very close to the northern boundary. On the western side the building is set back behind a car park with spaces for about 10 cars which extends for about 12 metres between the building wall and the Brighton Parade boundary. At the southern end of the car park is a small enclosed waste area.
5. Public access to the building is obtained by a door on the western side, described on the proposal plans as the “front entrance” and leading from the car park. There is also a door on the southern side. This southern entrance can also be reached from the western car park or from a larger public car park on the eastern side of the subject land.
6. Visitors approaching the southern entrance do so by means of a ramp and deck. The use of this deck is the subject of the present appeal. The deck, excluding the ramp, has an area of some 18 square metres. Its southern edge is about 2 metres from a Colorbond fence which separates the Appellant’s property from the neighbouring residential property at 3 Brighton Parade to the south. The Court heard that there is a dispute at present about the position of this fence, with the Appellant being of the opinion that it encroaches for a small distance on to the Appellant’s land. The existing fence has a height of about 1.6 metres above the level of the deck and it prevents overlooking of the adjacent residential property. There is no vegetation on the land, apart from a row of small bushes along the boundary of the car park on Brighton Parade.

The Proposed Development

7. The proposal is to use the existing deck area as a licensed area for the consumption of alcohol. Patrons of the RSL club at present are not permitted to smoke within enclosed areas of the building and some use the external deck for this purpose. The intention of the proposed development, according to the Appellant, is to enable those people using the deck as an area for smoking to be able also to take an alcoholic drink on to the deck with them.
8. The construction of the deck area was approved by the Council on 12 December 2007. The application at that time was described as a “proposed handicapped person’s access ramp and door”. The use of the area for the consumption of alcohol as proposed represents a change of use for which development approval is required. A separate application has also been lodged with the Licensing Authority as required by the Liquor Licensing Act 1997.
9. According to information provided by the Appellant as part of Exhibit A1, the current hours of operation of the RSL club are:
   • Monday, Wednesday, Thursday and Saturday - 12 noon to 11.00 p.m.
     
   • Tuesday and Friday - 12 noon to 12 midnight.
     
   • Sunday - 12 noon to 8.00 p.m.
     
10. The Court was told that there is no intention at present to extend these trading hours.
11. The proposal submitted to the Council included the placement of two small tables and a small number of chairs on the deck for use by elderly or infirm patrons. In the course of the hearing, the Court was told that it is now proposed to place only one table on the deck.

The Locality

12. Mr Batge defined the locality for the purposes of this matter as comprising an area including properties on the northern side of Shepherds Hill Road; offices at 356 Shepherds Hill Road, immediately to the north of the subject land; the western side of Brighton Parade, including residential properties at 2 and 4 Brighton Parade; the property at 3 Brighton Parade, immediately south of the subject land; four group dwellings at 4 Gladstone Road, to the south east of the subject land; the public car park to the east of the subject land; and the Woolworth’s supermarket and car park on the eastern side of Gladstone Road.
13. This is a locality of mixed uses where a residential zone and a district centre zone adjoin. The subject land is within an area of predominantly non-residential activities, but immediately south of the southern boundary of the subject land, which is also the boundary of the District Centre Zone and the Residential (Hills) Zone, there is a detached dwelling at 3 Brighton Parade. The group dwellings at 2 and 4 Brighton Parade, on the western side of the road, are also within the Residential (Hills) Zone, as are the group dwellings at 4 Gladstone Road. Mr Batge expressed the opinion that the level of residential amenity at the interface of the two zones was “inevitably compromised to some extent by the kinds of activities that are undertaken within the District Centre Zone”. He also identified key factors affecting the amenity of the dwellings at 3 Brighton Parade and 4 Gladstone Road as being traffic movements and activity in the public car park, to the east of the subject land, and in the RSL’s car park, to the west; and the entry and exit of patrons of the RSL to and from the southern end of the car parks, adjacent to the boundaries of these residential properties.
14. I accept Mr Batge’s definition of the boundaries of the relevant locality and his description of its character.

Representations

15. For public notice purposes the proposal was assigned to Category 2 by the Council. Three representations were received, all opposing the proposed development. These were provided to the Court as part of the Council’s Book of Documents (Exhibit R1). The occupant of the group dwelling closest to the subject land, Unit 3/4 Gladstone Road, Tracy Ebert, commented that the RSL club was close to her bedroom window, that noise was already a problem and that the proposed development would increase noise levels to an unbearable degree. Peter and Wendy Abigail of 4 Brighton Parade also expressed concern about the potential for increased noise from use of the deck for alcohol consumption.
16. Gary Farmer, of 3 Brighton Parade, had concerns about the health impacts of “passive smoking” from the use of the deck for this purpose. He also expressed concerns about the noise impacts of the development. Mr Farmer estimated that the windows of his family room, kitchen and one bedroom were 6.5 metres from the fence to which the deck is adjacent. Mr Farmer acknowledged that this fence had previously been increased in height and that he and the RSL had shared the costs of this. However, while this had been successful in preventing the overlooking of his property, the fence was not effective in reducing noise.

Development Plan Provisions

17. The relevant Development Plan is the Development Plan for Mitcham City (DC) as consolidated on 24 April 2008. The subject land is shown on Map Mit/20 as being located within the District Centre Zone.
18. I regard the following provisions of the Development Plan as being of some relevance to this matter:

District Centre Zone
Objective 1: A zone accommodating a range of shopping, administrative, cultural, community, office, entertainment, educational, religious and recreational facilities.
Residential (Hills) Zone
Objective 1: Development comprising detached dwellings on large allotments that maintains and enhances the natural vegetation and features of the Mount Lofty Ranges.

PRINCIPLES OF DEVELOPMENT CONTROL

1. Development should be in accordance with the objective and desired character of the zone.

COUNCIL WIDE PROVISIONS
...
Objective 12: The establishment of safe, attractive and pleasant residential areas comprising residential development of a scale, form, density and appearance that maintains or achieves the desired character of specific zones and, where applicable, policy areas.
PRINCIPLES OF DEVELOPMENT CONTROL
...

14. Non-residential development adjacent to residential development and/or zones should, where appropriate, be designed, sited, constructed, landscaped and operated in a manner which will minimise the impact of such activities on adjacent residential development and occupants.

...
19 Buildings should be sited with respect to property boundaries so as to:
(a) maintain the amenity of adjoining dwellings in terms of noise, privacy and sunlight;
...
69 (e) Development should not cause a nuisance or hazard arising from:
(i) microclimatic conditions;
(ii) excessive noise;
(iii) odours;
(iv) overlooking;
(v) overshadowing; or
(vi) visual intrusion;
...
(g) Landscaping should be provided and maintained to:
...
(ii) establish a buffer between development in the zone and adjacent areas;
...

94. Entertainment and recreational facilities should be designed to have minimal impact upon the amenity of abutting residential areas.

Metropolitan Adelaide Provisions
...
Objective 2: A proper distribution and segregation of living, working and recreational activities by the allocation of suitable areas of land for those purposes.

...

Objective 9: Safe, pleasant, convenient and efficient residential zones.
Achievement of this objective can be assisted by development that is well designed, and which maintains and where appropriate, enhances the residential character and amenity of the area into which it is to be sited. ... New non-residential activities should generally not be located in residential zones, and extensions of existing non-residential activities should only occur where there is no adverse effect on nearby residential activities.
...
PRINCIPLES OF DEVELOPMENT CONTROL
...

5. Residential development in residential zones adjacent to non-residential zones should be designed and sited to protect residents from any adverse effects of non-residential activities

...

18. Development or redevelopment within business, centre and shopping zones, or areas, should meet the following criteria:

(h) development and operation of facilities within a zone, or area, compatible with adjoining areas. This should be promoted through landscaping, screen walls, centre orientation, location of access ways, buffer strips and transitional use areas
...
24 Centres should have minimal adverse impacts on residential areas

The Evidence

19. Mr Bradbrook explained that the RSL has about 500 members, most of whom are elderly. Of these he estimated that about 10 per cent are smokers. From his observations there might be 4 or 5 people smoking on the deck at any one time. Some smokers would like to take an alcoholic drink with them when going out on to the deck to smoke, but this would be in breach of the club’s current liquor licence. The main purpose of the proposed development was to enable this small number of smokers to take their drinks with them legally on to the deck. The table and chairs proposed to be placed on the deck would be for the convenience of elderly patrons who preferred to sit rather than stand. Mr Bradbrook emphasised that there were no proposals to serve liquor on the deck or to extend the trading hours of the club.
20. The Council’s Book of Documents (Exhibit R1) contained details of an earlier application made by the RSL in 2003 for the extension of the licensed area to allow for the consumption of alcohol. This application had been refused by the Council. Mr Bradbrook stated that this earlier application had been of a different order of magnitude, involving an area of some 75 square metres. The present application, in his view, was much more modest in scope and would have no adverse effects on the amenity of residents of adjoining properties. To the extent that there was a problem with noise in the locality, Mr Bradbrook’s view was that this noise tended to come from the Council car park to the east of the subject land and was not necessarily generated by patrons of the RSL. He did not anticipate any additional traffic generation if the proposed development were to be approved, nor would there be any increase in rubbish generated.
21. Mr Bradbrook acknowledged that not all patrons of the RSL are elderly members. Younger people, including relatives of members, also attend on occasion. The club was also used from time to time for weddings and other social functions, and there was a regular “Blues Night” on Tuesdays attended by both younger and older adults.
22. In his evidence Mr Batge expressed a number of concerns about the likely impact of the proposed development on the amenity of adjoining dwellings. In essence these were as follows:
    • The club is licensed for up to 295 persons and currently provides seating for up to 120 persons. These numbers could produce significant demand for outdoor smoking and drinking.
      
    • The proposal would represent an expansion and intensification of the use and level of outdoor activity at the RSL. It would result in more people being present on a regular basis at the southern end of the RSL building in the designated area for outdoor smoking and/or drinking. This area was directly adjacent to the boundary of the Residential (Hills) Zone and to dwellings located on the edge of that zone.
      
    • The open nature of the deck area and the proposed intensification of use had the potential to increase noise nuisance and loss of privacy for the occupants of nearby dwellings – particularly those at 3 Brighton Parade and at Unit 3/4 Gladstone Road.
      
    • The deck was generally unsuited to the proposed change of use, being entirely open to the weather and providing neither shade from the sun nor shelter from the rain. However, on occasions when weather conditions were favourable, the provision of a table and seats on the deck would encourage its increased use.
      
    • When the club was full, or close to full, it was possible that the deck area would be too small to accommodate the potential number of users. It might also prove difficult at such times to maintain sufficient clear space for access to the club by people with disabilities via the deck and associated ramp, even though the approved existing use of the deck and ramp was explicitly to provide such access.
      
    • The proposal would lead to a concentration of smokers and, therefore, smoke at the southern end of the building in close proximity to adjoining dwellings. The drifting of tobacco smoke over the boundary had the potential to cause health issues and loss of amenity to the occupants of those dwellings.
      

Assessment

23. In this matter the relevant Zone provisions in the Development Plan provide only limited assistance in assessing the proposed development. Objective 1 for the District Centre Zone includes “entertainment” amongst the facilities which can be accommodated within the Zone. I regard the RSL Club as an entertainment facility.
24. The single objective for the Residential (Hills) Zone seeks:

Development comprising detached dwellings on large allotments that maintains and enhances the natural vegetation and features of the Mount Lofty Ranges

25. The proposed development is within the District Centre Zone but is less than 10 metres from the dwelling at 3 Brighton Parade within the Residential (Hills) Zone. This Court and its predecessors have considered how to assess development at the boundaries of zones on a number of occasions. In particular, in Papadopoulos v Corporation of the City of Woodville [1985] 39 SASR 569 Jacobs J cautioned at p.575 that:

... it must be remembered that zone boundaries are only lines on a map, and the residential integrity of a residential zone at its perimeter might be very different from its residential integrity elsewhere;

26. Also, in District Council of Tanunda v Davis and Ors [1985] 39 SASR 578, at p 581, Jacobs J noted again that:

The planning precepts which apply in one planning area or zone may differ from those which apply in the neighbouring zone, as black differs from white, but they tend to merge into shades of grey at or close to the dividing line, which is often drawn in a quite arbitrary way.

27. In the present circumstances it would be unreasonable not to expect some reduction in the level of amenity enjoyed by dwellings immediately adjacent to the District Centre Zone, as compared with residential properties in the heart of the Residential (Hills) Zone. However, there are a number of Council Wide provisions of the Development Plan of direct relevance to the assessment of this matter which seek to minimise the impacts of developments in the District Centre Zone on residential development in the adjoining zone. In particular,

Council Wide Principle of Development Control 14 requires that:

Non-residential development adjacent to residential development and/or zones should, where appropriate, be designed, sited, constructed, landscaped and operated in a manner which will minimise the impact of such activities on adjacent residential development and occupants.

Council Wide Principle 94 states that:

Entertainment and recreational facilities should be designed to have minimal impact upon the amenity of abutting residential areas.

28. Council Wide Principle 69(e)(ii) requires that development within centre zones should not cause a nuisance or hazard arising from “excessive noise”.
29. It seems to me that the proposed use of the deck for the consumption of alcoholic drinks is very likely to be at odds with these principles. I agree with Mr Batge that the proposed development is likely to lead to some intensification of activity on the deck. It is certainly conceivable that users of the deck will not be limited simply to persons wishing to smoke and to take their drink with them. There seems every prospect that, once the deck is available for the consumption of alcoholic drinks, some people will choose to use it for that purpose, whether or not they are smokers. This will exacerbate, rather than minimise, the impact of the club’s activities on the amenity of the occupants of the adjacent dwellings at 3 Brighton Parade and at Unit 3/4 Gladstone Road. The deck is open and has no design features that might reduce the impact of noise generated by the users of the deck. The existing Colorbond fence prevents overlooking of the adjacent property at 3 Brighton Parade but, while no expert acoustic evidence was provided, I accept Mr Batge’s opinion that this fence is unlikely to provide an adequate acoustic barrier.
30. Council Wide Principle 69(e)(iii) requires that development within centre zones should not cause a nuisance or hazard arising from “odours”. The Court did not hear conclusive evidence about the extent to which smoke from the deck affects the immediately adjacent property, but it is reasonable to assume, given the proximity of the deck to the dwelling at 3 Brighton Parade, that smoke sometimes finds its way on to that property. There is no indication in the proposal of any positive measures to seek to control the drift of smoke and associated odours on to adjacent residential properties.

Conclusion

31. The RSL clearly faces some difficult constraints on the subject land. There is a need to provide an opportunity for patrons to smoke, but the Tobacco Products Regulation Act 1997 prohibits smoking of tobacco products within the existing building.
32. The obvious place to accommodate smokers is to the south of the building. A deck exists in that location, although its express purpose when approved was to provide access to the club for the disabled and it is reasonable to ask whether the use of the deck for other purposes, such as smoking and drinking, may be at odds with the need to provide unimpeded access.
33. Mr Bradbrook suggested, in his evidence, that the southern ramp was only a secondary access and that the primary access for disabled people was via the Brighton Parade entrance. However, Ms Harris pointed out that the development application submitted in September 2007 for the construction of the ramp (Development Application No. 080/1385/07, received by the Court as Exhibit R2) made no reference to this ramp as being only a secondary access for persons with a disability.
34. Ms Harris also tendered a letter to the President of the RSL from Safety Management Services (SA) dated 2 October 2007 (Exhibit R3) in which the Brighton Parade entrance to the club was described as “totally inadequate if a person has to be taken out to an ambulance on a stretcher”. Ms Harris suggested that it was reasonable to assume that the ramp and deck approved in December 2007 now provided the preferred access to the club for both disabled people and ambulance personnel.
35. The present application to allow the use of the deck for the consumption of alcoholic drinks is, in my opinion, likely to increase the intensity of use of the deck. I also accept Mr Batge’s view that, while the deck offers no protection from extreme or inclement weather, there are bound to be several occasions each year when the weather is such as to make it a pleasant place to linger.
36. The deck is only some 10 or so metres from windows on the northern side of the dwelling at 3 Brighton Parade and a little further from the northern side of the dwelling at 3/4 Gladstone Road. A deck of the area proposed could accommodate 10 or more people and, while I accept Mr Bradbrook’s evidence that most RSL members are elderly, I am persuaded by the evidence that the clientele might also regularly include younger people. There is every chance, in my opinion, that users of the deck would sometimes generate the elevated level of noise typically associated with patrons of licensed premises who are consuming alcoholic drinks. This would be added to, on “Blues Nights” for example, by the noise of music emanating from the premises as the door was opened from time to time to enable patrons to go out to or to leave the deck.
37. Council Wide Principles 14 and 94 both seek to minimise the impact of non-residential development or entertainment facilities on adjacent residential properties. However, there is no indication as part of this proposal of any positive measures to minimise its impacts on the occupants of the nearby dwellings.
38. In addition Principle 69(g) states that:

Landscaping should be provided and maintained to:
(ii) establish a buffer between development in the (centre) zone and adjacent areas.

39. Some mention was made by Mr Bradbrook of an intention to carry out planting along the southern boundary of the subject land at some future date, as and when the present boundary dispute is resolved, but this did not form part of the present proposal. Landscaping alone, while desirable and in accord with the above principle, would be unlikely to provide an effective barrier to noise.
40. The dwellings at 3 Brighton Parade and at 3/4 Gladstone Road are at the interface of the Residential (Hills) Zone and the District Centre Zone. Their occupants cannot expect to enjoy the same high level of amenity as the occupants of dwellings in the heart of the Residential (Hills) Zone. Nevertheless, the Development Plan has a number of provisions, set out earlier, which require new development to be compatible with adjoining residential development. Council Wide Principle of Development Control 14, in particular, requires that non-residential development should be designed and sited to minimise its impact on adjacent residential development and occupants.
41. Mr Batge was of the opinion that the proposed development was feasible in its intended location on the subject land if the deck were redesigned to include a structure able to provide an acoustic barrier to protect the adjacent dwellings from excessive noise. I agree with this opinion. However, in the absence of any such structure or other measures to minimise the impacts on the dwellings at 3 Brighton Parade and 3/4 Gladstone Road, my planning assessment is that the proposed development is likely to have significant adverse impacts on the amenity of adjacent residential development and does not therefore merit development plan consent.

Decision

42. I have given careful consideration to all relevant provisions of the Development Plan, to the evidence and submissions that I heard and to what I saw on the view. Having done so, I have concluded that the appeal should be dismissed and the decision of the Council upheld.
43. There will be an order to that effect.