WALLIS HOLDINGS NO. 2 P/L v CITY OF HOLDFAST BAY [2011] SAERDC 9 (23 March 2011)

Last Updated: 28 March 2011

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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WALLIS HOLDINGS NO. 2 P/L v CITY OF HOLDFAST BAY

[2011] SAERDC 9

Judgment of Her Honour Judge Cole, Commissioner Hamnett and Commissioner Mohyla

23 March 2011

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeals against the refusal of two development applications in relation to land presently the site of a cinema - appeals heard together - one proposal is for a single storey building containing a shop, restaurants and consulting rooms - the other proposal is for a two storey building containing a shop, restaurants, consulting rooms and offices - urban design characteristics of the two proposals - whether proposed buildings will conform with the desired character of the locality - safety of a loading bay for delivery vehicles - carparking for both developments - development plan consent granted in relation to both proposals with conditions.

Development Act 1993, referred to.

Leeming v Corporation of the City of Port Adelaide (1987) 45 SASR 506, considered.

WALLIS HOLDINGS NO. 2 P/L v CITY OF HOLDFAST BAY
[2011] SAERDC 9

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. Wallis Holdings No 2 Pty Ltd (“Wallis”) made two development applications to the City of Holdfast Bay (“the Council”) in relation to the land at 115-123 Jetty Road, Glenelg, which is presently the site of a cinema (“the site”). The Council refused both applications. Wallis has appealed to this Court against those refusals. The two appeals were heard together.
2. At the hearing, Mr Roder SC appeared on behalf of Wallis, and Mr Kelly appeared on behalf of the Council. Mr Hayter, an architect and landscape architect, Mr Danvers, an architect, and Ms Mellen, a traffic engineer, gave evidence in Wallis’ case. Mr Batge, a town planner, and Mr Weaver, a traffic engineer, gave evidence in the Council’s case.

The site

3. The site for both of the proposed developments is allotment 1 in filed plan 2482, Glenelg, Hundred of Noarlunga. The site is on the north eastern corner of Jetty Road and Rose Street. Rose Street runs north off Jetty Road. The frontage of the site to Jetty Road is 27.65 metres long, and the side boundaries are 48.77 metres long, giving a total area of 1348.49m².
4. The site presently accommodates a cinema building, which has 1158 seats and three screens and is built to all boundaries of the site, with a verandah over the Jetty Road footpath. The cinema building is an art deco building which was built in 1937. It is not the subject of any heritage listing. The Council has granted development approval for the demolition of the cinema building (except for the footings). The cinema building is not presently in use.

The single storey proposal

5. Development application 110/00575/09 sought approval for a single storey building occupying the entire site and containing 5 tenancies. Tenancies 1, 2, 3 and 4 have their frontage to Jetty Road. Tenancy 5 has its frontage to Rose Street. Tenancy 1 is 178m² in area, and is to be used as a 68 seat restaurant. Tenancy 2 is 182m² in area, and is to be used as a shop. Tenancy 3 is 182m² in area and is to be used as a 64 seat restaurant. Tenancy 4 is 219m² in area and is to be used as an 86 seat restaurant. Tenancy 5 is 165m² and is to be used for consulting rooms. At the rear of the building there is a 92m² loading area, a 63m² refuse area, a room with 8 to 10 bicycle parks and some lockers, a staff room, a cleaners’ room and toilets. Vehicular access to the loading bay is from Rose Street. The land uses proposed for the tenancies are accurately depicted on drawing SK02 revision 05, which forms part of exhibit A1. Drawing SKPO3, the “perspective image” is not accurate in its depiction of the uses for some of the tenancies (for example, it implies that tenancy 6 is to be a restaurant, not a consulting room). We have disregarded SKPO3 in relation to the proposed uses for the tenancies.

The two storey proposal

6. Development application 110/00960/09 sought approval for a two storey building occupying the entire site and containing six tenancies. The ground floor layout is similar to the single storey proposal. Tenancies 1, 2, 3 and 4 have their frontage to Jetty Road, and tenancy 5 has its frontage to Rose Street. Tenancy 1 is 155m² in area, and is to be used as a 54 seat restaurant. Tenancy 2 is 156m² and is to be used as a shop. Tenancy 3 is 156m² and is to be used as a 50 seat restaurant. Tenancy 4 is 200m² and is to be used as an 80 seat restaurant. Tenancy 5 is 220m² and is to be used for consulting rooms. At the rear of the building, there is a 97m² loading bay, a 63m² refuse area, a room with bicycle parks and lockers, a staff room, a cleaners’ room and toilets. Vehicular access to the loading bay is from Rose Street. The first floor comprises tenancy 6, which is 810m in area, and is to be used as an office. There is a 43m² balcony on the Jetty Road frontage. The first floor also has a cleaners’ room, a shower and toilets. Drawing SK02 revision 05 and drawing SK03 revision 05, which are part of exhibit A2, accurately depict the proposed land uses for the tenancies. Drawing SKPO1 revision 02, the “perspective image”, is not accurate with respect to the proposed uses for the tenancies, and we have disregarded it in relation to that issue.
7. Both proposed buildings are to have canopies over the Jetty Road and Rose Street footpaths. Both have a 9.5 metre high parapet wall, with a corner element rising to 9.9 metres. Both proposed buildings present aluminium framed shop front glazing at ground level to Jetty Road and to the southern end of Rose Street. The parapet and the Rose Street side of the frontage will display terracade cladding in a colour called Whitehaven, which is a pinkish beige.

The Development Plan

8. The site is shown in Map HoB/5 and Map HoB/15 in the Development Plan for Holdfast Bay (City). The site is within the District Centre Zone, in Policy Area 6 (Jetty Road).

The Locality

9. Mr Batge identified a locality for the proposals which included the block of properties between Brighton Road, Augusta Street, Rose Street and Jetty Road, together with the properties on both sides of Jetty Road west to Partridge Street, and east over Brighton Road to several properties east of First Avenue. Mr Batge said that the main features of his locality are Jetty Road itself, which carries annual average daily traffic (AADT) in the order of 5,400 vehicles, Rose Street, which is one way from Jetty Road to Augusta Street and carries approximately 650 vehicles on a week day, the cinema, the tramline, on street carparking, the Bayside shopping centre, low scale one and two storey buildings comprising shops, restaurants and some residential accommodation and the Glenelg Telephone Exchange on the corner of Jetty and Brighton Roads.
10. Mr Hayter identified a locality for the proposals which extended west from the site to Moseley Square along Jetty Road, taking in the properties fronting Jetty Road, and extended east from the site over Brighton Road for a short distance. The properties fronting Rose Street to Augusta Street were also included. In his statement, Mr Hayter said that, in determining the extent of the locality, he had had regard to the area from which the site could be seen, as well as considering the area where the streetscape contributes towards and influences the urban design character, pattern and sense of place of the subject site.
11. We prefer Mr Hayter’s locality for the purpose of assessing the compatibility of the proposals with the existing and desired character. It seems to us that the proposals will have an impact on the streetscape further west than Mr Batge allows for. The locality is a lively shopping, entertainment and business precinct.

Assessment

12. The dispute between the parties in relation to the proposals relates to urban design, the safety of the loading bay in both proposals and carparking.

Land Use

13. The proposed use of the single storey proposal is for a shop, restaurants and consulting rooms.
14. The proposed use of the two storey proposal is for a shop, restaurants, consulting rooms and offices.
15. It was common ground that the land uses proposed for both the single and two storey proposals were in conformity with the Development Plan.

Urban Design
Existing Building

16. As we have said above, the existing cinema building on the site does not have State or local heritage listing. It has been considered for such listing, and rejected. The Development Plan provides, in principle of development control (PDC) 153(c), that development within centre zones should preserve buildings of historical or architectural significance. In the District Centre Zone, the text following the objectives says, in part, that development in the centre should:

...create a centre distinguished by historic architecture, functional spaces and ease of access.

17. PDC 13 of the District Centre Zone says:

The built-form of development should be compatible with and reinforce the traditional shopping strip character of the zone, including where appropriate, features which complement and conserve existing buildings which are of historic or streetscape significance.

18. PDC 17 of the District Centre Zone says:

Wherever practicable, and particularly on the southern side of the Moseley Square Policy Area, development should utilize existing building stock and should upgrade and restore frontages in a manner sympathetic to the original building form.

19. It was Mr Danvers’ evidence that the existing cinema building does not presently have sufficient historical or architectural integrity to be historically or architecturally significant, or to warrant retention pursuant to PDC 13 and the text quoted above. The building’s integrity has been diminished over many years by unsympathetic alterations, both internal and external. We accept Mr Danvers evidence. We also agree with Mr Danvers’ view that any adaption of the cinema building to an alternative use would, in addition to exacerbating the destruction of the original building fabric, destroy the association of the building with a cinema use and further deprive it of any heritage or architectural value. In the peculiar circumstances of the cinema building, the restoration of the frontage in a manner sympathetic to the building form, with reference to PDC 17, for a purpose other than a cinema, would compromise the ability of the site to contribute to the achievement of the objectives of the District Centre Zone, of which more will be said below.
20. In any event, as we have noted above, development approval for the demolition of all but the footings of the cinema building has been granted. The demolition of the building is, in fact, complying development, pursuant to PDC 28 of the District Centre Zone and Table HoB/5.
21. It was common ground that the use of the site for a cinema is presently a continuing, lawfully existing use (see Leeming v Corporation of the City of Port Adelaide[1])

Streetscape

22. The Development Plan seeks buildings which are compatible with the existing predominant character and which conform with the desired character of their locality (see Council PDC 153(b) and (h), 259, 261 and District Centre PDC 13, 14, 15, 16 and 19).
23. As we have said, above, the locality is a lively shopping, entertainment and business area. The District Centre Zone, in objective 2, seeks:

A district centre that has a distinctive and attractive shopping strip character based on low-scale buildings, with a predominance of shop windows and entrances, sited close to street frontages.

24. The text under the objectives in the District Centre Zone says that further development in the centre should achieve “a lively, vibrant place that provides a wide range of users with a variety of services and functions”. Council wide Objective 14 seeks compatibility between new buildings and the desired character of the area.
25. PDC 4 of the District Centre Zone relates particularly to Policy Area 6 (Jetty Road) and says:

Development in Policy Area 6 (Jetty Road) should:
(a) create the primary retail and business centre of the zone, accommodating a range of convenience and comparison goods shopping including specialty shops aimed at servicing the tourist industry and visitors;
(b) in the case of shopping and service related activities (including restaurants and banks) should occupy ground floor tenancies and have a frontage to Jetty Road; and
(c) in the case of offices, consulting rooms and personal service establishments, be located on upper floor levels and on side streets within the centre in a manner compatible with development in adjacent residential zones. Residential uses on upper floor levels are also appropriate.

26. Both the proposed single storey building and the proposed two storey building are compatible with these provisions, in terms of both land use and building form.
27. Under the heading “Urban Design, Streetscape and Built-form” the following relevant PDCs appear in the District Centre Zone (in addition to PDCs 13 and 17, discussed above):
    14. Buildings should be sited with little or no set-back from public streets and spaces in order to achieve continuity of building alignments to the street frontages.
    15. Development should generally not exceed two-storeys in height and should not conflict with the predominant scale, bulk and built-form character of the immediate locality, with the exception of development for residential purposes located above a public car parking structure on the south-western corner of Moseley Street and Elizabeth Street (as far west as, but not including, the existing Grand Hotel car parking structure), which should not exceed five storeys in height above the top level of the car parking structure.
    16. Buildings should display:

(a) articulated surfaces to visible walls;
(b) a traditional pattern of wall areas and window spaces;
(c) use of materials and colour finishes which blend with or complement, without copying, those used on the predominant historic buildings; and
(d) clearly and appropriately defined public entry points.
...

19. Development should incorporate verandahs, parapet wall treatments and traditional window display frontages consistent with a traditional, linear shopping centre, providing public walkways and sheltered public and private spaces.
28. Further provisions, consistent with these zone provisions, appear in the council wide section (see PDC 153 and 259).
29. Mr Batge was concerned that the shop windows in both the single and two storey proposals, at street level on the Jetty Road side of the proposed buildings, displayed too much void (glass) to solid. The shop frontages are to be aluminium framed glass with a solid signage panel at the top, below the underside of the canopy. Mr Batge was concerned that, having regard to PDC 16(b), the proposed buildings related more to the Bayside Village than to a traditional pattern of wall areas and window spaces. We note that the existing cinema building is out of step with the predominant traditional style of development along Jetty Road in terms of the solid to void ratio. Both Mr Danvers and Mr Hayter believed that the solid to void ratio for both the single and two storey proposals is an appropriate contemporary response to the Development Plan provisions and to the existing and desired character of the locality. We agree. The approach that the architect has taken to the design of the proposals is preferable to an approach involving the imitation of any one of the older styles present on Jetty Road.
30. Mr Batge was concerned about the impact of the proposed buildings, both single and two storey, on the visual transition between the shops to the west of Rose Street on Jetty Road and the Bayside Village. Mr Batge’s view was that the existing cinema provided an important transition between those shops and the new Bayside Village. Neither Mr Danvers nor Mr Hayter agreed. In our opinion, in relation to bulk and scale, both the proposed single and two storey buildings will provide a good visual transition between the shops to the west and the Bayside Village. In terms of height, the visual transition will actually be an improvement, because the existing cinema building is higher than the Bayside Village.
31. Mr Batge was concerned about the materials proposed to be used in the new buildings. We do not share these concerns. The materials chosen, the building form and the decorative elements all seem to us to be appropriate, attractive, and in conformity with the existing and desired character of the locality. In our opinion, the design and materials will complement the existing buildings which are to remain, without copying them.
32. Both proposals include a canopy over the footpath on the Jetty Road frontage at an under-canopy height of 4.3 metres from the footpath. In the two storey proposal, this is also the underside of a balcony. The height of the canopy is more in conformity with the Bayside Village building than with the older buildings in the locality. Mr Batge would have preferred to see a canopy at a lower height. Given the scale of the building and its position relative to the Bayside Village, we have no concerns about the height of the canopies. We also consider the height of the parapet, at 9.5 metres rising to about 9.9 metres at the corner element and over the Rose Street entrance, to be appropriate. Both proposals are sufficiently in compliance with District Centre Zone PDC 19.
33. The Bayside Village site is identified in the Development Plan as a landmark site (see Figure HoB/3 and Map HoB/1 (Overlay 1) Part A. The site of the proposed development is not identified as a landmark site. Mr Batge believed that it would be appropriate, therefore, to develop the site more in conformity with the lower scale buildings in the locality. We do not share this view. The cinema building is a very powerful element in the locality at present. Either of the proposed buildings would have less visual impact. In our opinion, the proposed buildings are both acceptable in terms of their appearance.
34. Both of the proposed developments are sufficiently in conformity with the relevant provisions of the Development Plan and general planning principles with respect to their impact on the streetscape, their conformity with existing and desired character of the locality, their materials, bulk, scale and materials.

Loading Bay

35. The plans submitted to the Council with both the single storey and the two storey proposal did not include provision for on-site loading. The proposals before the Court, however, have been amended to provide for a loading bay at the rear of the building in each proposal. In the single storey proposal, the loading bay is 92m². In the two storey proposal, the loading bay is 97m². A refuse area is provided for, adjacent to the loading bay in both proposals. It is anticipated that service vehicles are likely to reverse into the loading bay and exit in a forward movement. In the single storey application, the door to the loading bay is to be recessed back from the boundary to provide sight lines to the delivery vehicle drivers. The doors will be wider than the loading bay to assist in vehicle manoeuvring. In order to accommodate a cross over into the loading bay, adjustments will have to be made to the carparking arrangements in Rose Street, resulting in the loss of 2 carparks on the eastern side of Rose Street, and requiring either the loss of 3 carparks on the western side of Rose Street, or regulation of the use of those three carparks to ensure that they are not being used when delivery vehicles need to gain access to the site. The existing cinema building has no on site vehicular access.
36. The Development Plan, in Council wide PDC 25(a) and 27, says:
    25. The number, location and design of points of access to and egress from a road should be such as will minimise:

(a) interference with the free flow of traffic on roads in the locality;

27. Provision should be made on the site of development for the parking, loading, unloading, turning and fuelling of such vehicles as are expected to be used in association with the proposed use of land, including vehicles used in the provision of services or for the conveyance of goods or persons coming to or going from the site for any purpose.
37. PDC 153(o) and 154(g) of the Council wide section says:
    153. Development or redevelopment within business, centre and shopping zones, or areas, should meet the following design principles:

(o) Provide:
(i) off-street loading, service areas and service vehicle manoeuvring areas;
(ii) lighting for buildings and ancillary areas, with no light-spill causing nuisance or hazard; and
(iii) unobtrusive facilities for storage and removal of materials;

154. Provision for the movement of people and goods within business, centre and shopping zones, or areas, should comply with the following:

(g) Adequate and convenient provision should be made for service vehicles and the storage and removal of waste goods and materials.

38. Ms Mellen, in her statement, said that she thought that it was appropriate to provide for loading on-site, given the proposed restaurants in both proposals. Ms Mellen was satisfied that the loading arrangements shown on the plans of both of the proposals before us were safe, adequate and appropriate, given that delivery vehicles would gain access to the site from a minor street and there would be a small number of delivery movements. Having regard to the size of the site, Ms Mellen’s view was that it would be impractical to provide for the on site turning of a delivery vehicle, as the provision of an area large enough for that purpose would occupy a substantial portion of the site.
39. Mr Weaver was concerned that the requirement that delivery vehicles reverse into or out of the loading bay had the potential to interrupt the free flow of traffic on Rose Street, contrary to council wide PDC 25(a), quoted above, and also that the use of the loading bay might pose risks to pedestrians in Rose Street. Mr Weaver was also concerned about the loss of between two and five of the Rose Street carparks because of the loading bay. Mr Weaver thought that sufficient space should be devoted, on site, to a turning bay for delivery vehicles. Failing that, Mr Weaver thought that there would be less conflict between pedestrian and vehicular use of Rose Street, on the one hand, and use of the loading bay by delivery vehicles, on the other hand, if the delivery vehicles unloaded from Rose Street rather than an on site loading bay.
40. As Mr Weaver pointed out, the proposed loading bay does not comply with PDC 27 in that it does not provide for the turning of delivery vehicles. However, on balance, we agree with Ms Mellen that the devotion of sufficient area on the site to provide for a turning bay is not warranted. The Development Plan clearly seeks lively, vibrant, retail and commercial land uses in the locality of the site. The use of a significant portion of a site of this size in this location for a delivery vehicle turning area would compromise the ability of the site to contribute effectively to the desired character of the locality. Rose Street is not heavily used. We agree with Ms Mellen that the proposed loading bay and waste disposal area are sufficiently in compliance with the relevant provisions of the Development Plan. Given the level of use of Rose Street, and the likely low level of use of the loading bay, we are confident that, with the co-operation of the Council with respect to the necessary changes in parking arrangements on Rose Street, deliveries and waste disposal can be managed effectively and safely without an unacceptable level of disruption to pedestrians or vehicles using Rose Street. We will deal with the impact of the loss of on street carparking below.

Carparking

41. The Development Plan seeks the provision of both public carparks and carparks associated with individual developments in the District Centre Zone.

Extent of Carparking

42. The Development Plan provides, in Council wide PDC 28:
    28. Development should provide sufficient car parking, either on-site or on an approved site nearby to:

...
(b) accommodate, satisfactorily, the vehicles of those who are likely to come to the site of that development, including, where relevant, the vehicles used by or otherwise conveying residents, customers, visitors, employees or service personnel, including disabled persons.

43. Council wide PDC 154(k) says:
    154. Provisions for the movement of people and goods within business, centre, and shopping zones, or areas, should comply with the following:

(k) On-site parking shall be determined having regard to:
(i) the amount, type and timing of movement generated by the use:
(ii) the design, location and configuration of parking spaces;
(iii) the ability of the site to accommodate the parking spaces;
(iv) the potential for shared use of parking spaces;
(v) the effect on surrounding activities;
(vi) specific in requests of cyclists [sic]; and
(vii) the availability of appropriate on-street parking.

44. District Centre Zone PDC 11 provides for numerical rates for parking provision:
    11. Development within the district centre should provide car parking at the following rates:

(a) General Retail Shop (including a supermarket and department store) – five cars per 100 square metres gross leasable area;
(b) Specialty Retail Shop – 4.5 cars per 100 square metres gross leasable area;
(c) Restaurant and Care (both licensed and unlicensed) – one car per 5 seats able to be accommodated;
(d) Office (including banking chambers) – four cars per 100 square metres total floor area [sic]; and
(e) Consulting Rooms – four cars per consulting room.

45. Table HoB/4 also sets out rates of parking, but both Mr Weaver and Ms Mellen used the rates in PDC 11, and we agree that they are directly applicable in this case.
46. A straightforward application of the numerical rates in PDC 11 yields the following:

Single storey proposal

	PDC 11 Rate	Number of carparks
Restaurants – 218 seats in total	1 carpark per 5 seats	44
Specialist retail 182m²	4.5 carparks per 100m²	8
Consulting rooms – 4 rooms	4 carparks per room	16
TOTAL		68

Two storey proposal

	PDC 11 rate	Number of carparks
Restaurants – 184 seats in total	1 carpark per 5 seats	37
Specialist retail 156m²	4.5 carparks per 100m²	7
Office 830m²	4 carparks per 100m²	33
Consulting rooms – 6 rooms or 5 rooms	4 carparks per room	24 if 6 rooms (20 if 5 rooms)
TOTAL		101 (6 rooms) (97 if 5 rooms)

47. Ms Mellen estimated likely parking demand at peak times. Ms Mellen used the parking rates in PDC 11 as a starting point. In relation to lunchtime (noon to 2pm), Ms Mellen assumed a peak occupancy of the restaurants of 70%. In relation to parking demand in the evening, Ms Mellen assumed that the specialist retailers would be trading at 75% of their peak during late night trading. This approach yielded a peak lunchtime demand of 55 spaces and a peak evening demand of 50 spaces for the single storey development. For the two storey development, it yielded a peak lunchtime demand of 85 spaces, and a peak evening demand of 42 spaces, the assumption being that the consulting rooms and offices would not be operating outside of office hours.
48. Mr Weaver thought the evening peak for the restaurants was likely to be 44 spaces for the single storey development and 37 for the two storey development. This peak is likely to occur on Friday and Saturday nights, when the offices and consulting rooms are not generating a parking demand. Mr Weaver assumed that 6 consulting rooms could be operated from the consulting room tenancy in the two storey development. Ms Mellen disagreed, and thought that only 5 consulting rooms could be accommodated in the proposed configuration. Mr Weaver thought that Friday lunchtime, when the restaurants might be trading at 50% to 75% would be the time of greatest demand. Mr Weaver calculated a lunchtime peak of 56 spaces for the single storey development and 92 spaces for the two storey development. Mr Weaver expressed concern that his calculations were based upon the number of seats proposed for the restaurants, and he believed that more seats could be accommodated. This concern, however, can be overcome by a condition limiting the number of seats in the restaurants to the numbers proposed.
49. Neither of the proposed developments provides any carparking.

Mode of Provision of Carparking

50. Council wide Objective 25 is:

25: The provision of public car parking at conveniently located sites within the area designated on Fig CP/1.
The provision of car parking to meet the needs of users of an area is a fundamental planning consideration. In new and developing areas, on site car parking is provided as part of any development site and/or sufficient [sic]; and is set aside in initial development plans to accommodate future car parking needs on a shared basis. In the case of the Jetty Road, Glenelg, centre and environs, the area was fully developed prior to the introduction of planning controls. As such, whilst it functions as a centre, its efficiency is substantially hampered and redevelopments, particularly those revolving around changes of use, are often unable to meet on site car parking requirements. The development of public car parking in convenient locations and in a co-ordinated manner is important to the future development and successful operation of the centre.

51. Council wide PDC 154(m) says:

Provision for the movement of people and goods within business, centre, and shopping zones or areas, should comply with the following:
(m) Opportunities for the shared use of car parking between development should be exploited so as to reduce the total extent of car parking areas.

52. District Centre Zone Objective 6 is:

6: The provision of public car parking areas developed to assist in meeting the demand associated with new development.
...
In order to improve car parking within the centre, a number of strategically located sites, in both public and private ownership, have been identified to accommodate the existing and future car parking needs of the centre. Development should also acknowledge the increasing importance of movement on foot through the centre and access to the centre by bicycle through the provision of services, facilities and amenities aimed as specifically satisfying these users.

53. District Centre Zone PDCs 7, 8, 9 and 10:
    7. Development should promote where relevant the shared use of off-street car paring areas and service access arrangements.
    8. On-site car parking areas should be located behind development along Jetty Road and Moseley Square and, where appropriate, be linked to form shared parking areas having access to the side streets.
    9. Public car parking areas should be developed in locations indicated on Fig CP/1 and on other appropriate sites within the Zone.

10. Car parking areas should be located and designed to:
(a) promote safe and convenient traffic circulation;
(b) exploit shared use between existing and proposed developments.

54. Fig CP/1, on page 159 of the Development Plan, identifies existing Council carparks, existing privately owned car parks, possible future car park expansions, possible future carpark decks, and a possible new car park.
55. These provisions acknowledge that Jetty Road and the area around it have a specific set of opportunities and challenges which arise from the fact that Jetty Road was fully developed before planning controls, so that car parking to contemporary standards on a site by site basis has not been provided, and, at the same time, the area is a busy, lively retail commercial and entertainment precinct, and should be further developed so as to maintain and enhance that character. The use of land for small isolated carparks is unlikely to be consistent with that character, and, in the provisions quoted above, various alternative approaches to the provision of carparking are suggested, such as the development of public carparking (such as Council car parks), and the co-ordination and sharing of carparking on private land. The text under Council wide Objective 25 acknowledges the precise difficulty with which the appellant in this case is faced; the redevelopment of a site in circumstances where meeting the Development Plan’s numerical requirement for carparking is not practical. The size of the site makes it impractical for a basement carpark to be established, because that would lead to a significant area being devoted to ramps, and the provision of relatively few carparks.
56. The proposed developments are to replace a lawfully existing use; the cinema. The cinema has never provided on-site carparking or loading facilities. The cinema building is built boundary to boundary. There is evidence that there was, for a period of 10 years, an agreement between the cinema proprietor and the next door shopping centre regarding the use by cinema patrons of the shopping centre carpark, but there was no evidence that this was a planning requirement. As we understand it, the cinema is lawfully able to be used, and has been used, for most of its life, without the provision of any carparking.
57. Both of the traffic engineers considered the question of the extent of carparking, available to the public, which is likely to have been taken up by users of the cinema when it was open for business. The cinema seats 1158 people and has three screens. It must have had staff. Mr Weaver, in his report, said that the cinema, in theory, would generate a car parking requirement of 232 spaces, based upon the concert hall requirement of one parking space per 5 seats, there being no standard specifically for cinemas. However, Mr Weaver said that on the basis of his experience, he believed that the peak demand of the cinema would most likely have been in the order of 193 spaces, noting that there would be much lower levels of parking demand outside of peak periods. Mr Weaver had figures for the cinema for 2006 which indicated, at that time, that it was not trading vigorously.
58. Ms Mellen calculated the theoretical carparking demand for the cinema based on one carpark per three seats as 386 spaces, or one carpark per four seats as 290 spaces. Ms Mellen thought that this was unrealistic, however, because all three screens are unlikely to be operating to capacity simultaneously. Ms Mellen thought that a calculation based upon the 85th percentile usage was more realistic. Ms Mellen considered figures obtained by her for the Piccadilly Cinema in O’Connell Street, North Adelaide. Ms Mellen thought that the Piccadilly Cinema was the closest of the Wallis Cinemas to the Glenelg Cinema, in terms of its potential to generate a need for carparking, because both cinemas have three screens, and both are stand alone cinemas, rather than being part of a shopping centre, albeit that they are in a Main Street style shopping area. However, Ms Mellen compared the Piccadilly figures with the figures for the Wallis Cinemas at Mitcham, and noted that the 85th percentile figures were similar for both, indicating that the patronage levels reflect the film which is showing rather than the size of the cinema. Ms Mellen analysed attendance figures for the period from 26 December 2009 to 31 March 2010. The Piccadilly figures yielded an 85th percentile patronage level of approximately 210 patrons at lunchtime and an 85th percentile patronage level of approximately 260 patrons in the early evening. The corresponding carparking requirement would be 70 spaces at lunchtime and 87 spaces during the early evening.
59. Mr Weaver criticised Ms Mellen’s selection of the Piccadilly data. He would have preferred to see an analysis of a whole year. He analysed the figures provided by Ms Mellen, and showed that, if the period between Christmas and New Year is excluded, the 85th percentile patronage level would be 165. This would yield a demand for 55 carparking spaces at one space per three patrons, or 33 at one space per five patrons. His calculations in relation to the period if Christmas and New Year are not excluded yielded results of the same order as Ms Mellen’s.
60. Mr Weaver pointed out that there are differences in the characteristics of the carparking demand between the proposed developments and the cinema. The cinema generated a demand, chiefly, for short or medium term parking. The proposed developments would generate some demand for short or medium term parking, but the consulting rooms, and the offices in the two storey proposal in particular, would generate a demand for long term parking.
61. Characteristics of the locality would affect the generation of carparking demand by both the cinema, on one hand, and either of the proposed developments, on the other, in a similar way. For example, specialty shops, restaurants and cinemas are likely to be busier at Glenelg during the summer months and during school holidays generally. The availability of public transport may have a similar impact upon the cinema and the proposed developments in terms of car parking demand.
62. In relation to the assumed car parking demand for the cinema, we accept and rely upon Ms Mellen’s analysis. Mr Weaver was not in a position to advance a competing analysis. Mr Weaver provided a critique of Ms Mellen’s assessment, which yielded similar results to hers at the end of the day. We do not think that there is any warrant for excluding the Christmas to New Year period in formulating an assessment of car parking demand for the cinema. Both peaks and troughs need to be included in an assessment. We prefer the evidence of the traffic engineers to all other evidence regarding carparking.
63. We consider that Ms Mellen’s assessment of the 85th percentile parking demand for the cinema as 70 spaces at lunchtime and 87 in the early evening is reasonable. On either Ms Mellen’s prediction of a peak carparking demand of 55 spaces at lunchtime and 50 spaces in the evening, or Mr Weaver’s prediction of 56 spaces at lunchtime and 44 in the evening for the single storey development, the proposed single storey development will represent an overall improvement in car parking demand from the lawfully existing use of the land. This is so even when the five carparks on Rose Street which will either cease to be available or be taken out of use for several hours per day are taken into account. Ms Mellen predicted a peak evening demand arising from the double storey development of 42 spaces, and Mr Weaver predicted a demand for 37 spaces for the same period. Both of these are better than Ms Mellen’s assessment for the cinema of 87 spaces. However, Ms Mellen predicted a demand for 85 spaces for the two storey proposal, and Mr Weaver predicts a demand for 92 spaces for the lunchtime period, which represents a deficit of 15 spaces or 22 spaces (or 17 or 24 spaces if the 2 spaces on Rose Street which will have to be eliminated are accounted for) when compared to the assessment for the cinema for the same period, which is 70.
64. We note Ms Mellen’s evidence of a survey conducted over two days – Thursday 12 August 2010 (11am to 1pm) and Friday 13 August 2010 (10am to 3.30 pm) – which showed that there was a minimum of 21 carparks and a maximum of 52 carparks available in the Cowper Street carpark and a minimum of 23 carparks and a maximum of 43 carparks available in the Elizabeth Street carpark in the survey period. It was suggested by Mr Weaver and Mr Batge that these carparks were too far away from the site to provide convenient long term parking for users of the proposed development. We disagree. The Cowper Street carpark is about 250 metres from the site and the Elizabeth Street carpark is about 600 metres from the site. These are not unreasonable distances for office workers to walk to work in this part of Glenelg.
65. In all of the circumstances, including the history of the development of Glenelg, the lawfully existing use of the site, and all of the relevant provisions of development control, and, in particular, the desired character of the zone, subject to the question of the provision of carparking for the disabled, we consider that the single storey development, which will require no more car parking spaces than the lawfully existing cinema, is generally acceptable in planning terms notwithstanding its failure to provide on-site carparking. We reject Mr Batge’s view that the lawfully existing use of a site in these circumstances should be disregarded when the site is redeveloped. The Development Plan itself acknowledges that the history of the land needs to be taken into account (see Council wide Objective 25 and Fig CP/1). Given the proposed use of part of the single storey development as consulting rooms, we consider that it is appropriate that some parking for the disabled be required. Ms Mellen prepared a rough plan (Exhibit A7) showing that two carparks for disabled permit holders can be accommodated near the loading bay. This concept needs to be refined to provide safe and defined access from those carparks to the tenancies. The single storey plans, when amended to include those two carparks for disabled permit holders, with that defined access, merits approval subject to conditions.
66. In relation to the two storey proposal, we consider that measures need to be taken to address the shortfall. District Centre Zone PDC 12 says:

Whilst development should provide sufficient car parking having regard to the above standards either on the site of the development or on another convenient and accessible site in the locality of the development site, a lesser amount of parking may be appropriate dependant upon:
(a) the nature of the development and the past use of the development site;
(b) the design merits of the development, particularly with respect to the provision of public facilities such as sheltered pedestrian facilities, open space, bicycle facilities and public conveniences;
(c) existing built-form on or adjacent to the development site which dictates the development of the site in a manner which hampers the provision of on site car parking;
(d) the opportunity to exploit shared car parking areas between uses based upon compatible hours of peak operation; and
(e) suitable arrangements for any parking short-fall to be met elsewhere or by other means, being entered into.

67. In the course of the hearing, a plan was tendered which shows the area of the site which would be taken up by the provision of fifteen car parks either side of an aisle way. The carpark would have to serve also as the loading area. Given the desired character of the Zone, and the size of the site, we would prefer to see the carparking deficit remedied by way of a contribution by the developer to the Council’s carparking fund, advancing the plans for the provision of further public carparking in the area. The use of the rear of the site for fifteen carparks would be undesirable in the particular circumstances of this site. Its contribution to the desired character of the locality would be significantly diminished. Mr Roder informed us that an offer of $300,000 had been made to the Council by Wallis for the carparking fund. The documents before us indicate that the Council seeks a contribution in the sum of $19,250 per carpark. On that basis, $300,000 represents 15.5 carparks. For the same reasons that we have outlined above in relation to the second storey proposal, we consider that the ground floor layout of the two storey proposal should be amended to include two carparks for disabled permit holders. Once that amendment is made, then, on the basis of the information provided to us, the amount offered addresses the shortfall of carparks.

Summary and Conclusion

68. Both of the proposed developments were opposed by the Council on the basis of urban design, the safety of the loading bay and the adequacy of carparking arrangements.
69. The existing cinema enjoys existing use rights. It does not have State or local heritage listing, and its substantial demolition has been approved. That approval has not been implemented to date.
70. We have considered the urban design characteristics of the two proposals, having regard to all of the expert evidence and the relevant provisions of the Development Plan and general planning principles. We have concluded that both of the proposed developments are in sufficient compliance with the relevant provisions of the Development Plan with respect to urban design issues to warrant approval.
71. We have discussed the safety concerns with respect to the loading bay in each proposal. Given the level of use of Rose Street and the anticipated low level of use of the loading bay, we are satisfied that the loading bay arrangements are satisfactory in planning terms and provide an acceptable level of safety. There are no other contentious traffic issues.
72. In relation to carparking, we consider that the appropriate approach is to compare the existing situation, based upon the lawfully existing land use, with the predicted parking demand of each of the proposals. The result is that the single storey proposal will create a reduced demand for parking compared with the cinema. Notwithstanding that, we believe that 2 carparks for disabled permit holders should be provided. The single storey proposal will then merit approval, subject to conditions.
73. The two storey proposal will result in a shortfall of carparks at peak lunchtime periods in the order of 17 carparks. We consider that the two storey proposal should be amended to provide 2 carparks for disabled permit holders. The balance of the shortfall should be addressed by the payment to the Council’s carparking fund of $300,000 in accordance with District Centre Zone PDC 12(e). The two storey proposal will then merit approval, subject to conditions.

Orders

74. We delivered a memorandum to the parties in the above terms. Wallis subsequently produced a new set of plans which were tendered. The ground floor plan in relation to each proposal has been changed to provide for two carparks for disabled permit holders adjacent to the loading bay, with a defined access path to the footpath of Rose Street. We are satisfied with the manner of the provision of these carparks proposed in the amended plans.
75. A draft set of conditions in relation to each proposal was produced. The Council and Wallis were substantially in agreement as to the draft conditions.
76. In action No. ERD 33 of 2010, we will make an order in the following terms:

Development Plan consent is granted to the development the subject of Development Application No. 110/00575/09, for the construction of a single storey building at 115-123 Jetty Road, Glenelg, being the land more particularly described in Certificate of Title Volume 5196 Folio 636, (the land), subject to the following conditions.

1. The design, siting, layout and use of all buildings and structures and site works shall be as shown on the amended plans submitted to Court, being Drawing Numbers:
   

SK02 Rev 06 (14 September 2010)

SKC04 Rev 02 (16 August 2010)

unless varied by any subsequent conditions imposed herein.

2. In respect of each tenancy within the building, there shall be no more than:
   

i. Tenancy 1 – 68 seats;

ii. Tenancy 2 – no seats;

iii. Tenancy 3 – 64 seats;

iv. Tenancy 4 – 86 seats.

3. There will be no more than 4 consulting rooms at any one time in the area designated “consulting room”.
   
4. The premises shall be maintained, kept tidy, free of graffiti and in good repair and condition to the reasonable satisfaction of Council at all times.
   
5. The premises shall not be used, directly or indirectly, for the purposes now approved until all work has been completed in accordance with the plans approved and the conditions of consent have been complied with, except those conditions that continue to apply.
   
6. Vehicle crossovers and inverts, and reinstatements of existing crossovers not required by the development shall be constructed at the owner’s expense.
   
7. A storm water management plan detailing storm water retention and re-use shall be submitted to Council for approval prior to the issue of full Development Approval.
   
8. Construction shall take place between 7.00am and 7.00pm Monday to Saturday and not on Sundays or public holidays. All such work shall be undertaken in such a manner so as not to, in the reasonable opinion of Council, cause any nuisance or annoyance to any of the occupiers of buildings within the locality. Any work outside of these hours requires the written approval of Council.
   
9. Dust emissions from the site shall be controlled by a dust suppressant or by watering (subject to any relevant water restrictions) regularly to the reasonable satisfaction of Council.
   
10. The builder shall at all times provide and maintain a waste receptacle to the reasonable satisfaction of Council on the site in which and at all times all builder’s waste shall be contained for the duration of the construction period and the receptacle shall be emptied as required.
    
11. All building materials, waste and litter on site shall be stored in a manner that secures it on site during the construction works.
    
12. No solid or liquid trade wastes may be discharged to the stormwater system.
    
13. Heavy Rigid Vehicles and Medium Rigid Vehicles may attend at the land on weekdays which are not public holidays between the hours of 7.30am and 9.00am and between the hours of 5.30pm and 7.30pm but must not attend at the land on Saturdays, Sundays or public holidays, or at any time other than during the periods specified in this condition.
    
14. Delivery vehicles which are smaller than Medium Rigid Vehicles may attend at the land on weekdays which are not public holidays between the hours of 7.00am and 9.00pm and on Saturdays, Sundays and public holidays between the hours of 9.00am and 5.00pm, but must not attend at the land at any time other than the periods specified in this condition.
    
77. In action No. ERD 34 of 2010 we will make an order in the following terms:

Development Plan consent is granted to the development the subject of Development Application No. 110/00560/09, for the construction of a two storey building at 115-123 Jetty Road, Glenelg, being the land more particularly described in Certificate of Title Volume 5196 Folio 636, (the land), subject to the following conditions.

1. The design, siting, layout and use of all buildings and structures and site works shall be as shown on the amended plans submitted to Court, being Drawing Numbers:
   

SK02 Rev 06 (16 September 2010)

SK03 Rev 06 (16 September 2010)

SKC05 Rev 01 (16 August 2010)

unless varied by any subsequent conditions imposed herein.

2. In respect of each tenancy within the building, there shall be no more than:
   

i. Tenancy 1 – 54 seats;

ii. Tenancy 2 – no seats;

iii. Tenancy 3 – 50 seats;

iv. Tenancy 4 – 80 seats.

3. There will be no more than 5 consulting rooms at any one time in the area designated “consulting room”.
   
4. The premises shall be maintained, kept tidy, free of graffiti and in good repair and condition to the reasonable satisfaction of Council at all times.
   
5. The premises shall not be used, directly or indirectly, for the purposes now approved until all work has been completed in accordance with the plans approved and the conditions of consent have been complied with, except those conditions that continue to apply.
   
6. Vehicle crossovers and inverts, and reinstatements of existing crossovers not required by the development, shall be constructed at the owner’s expense.
   
7. A storm water management plan detailing storm water retention and re-use shall be submitted to Council for approval prior to the issue of full Development Approval.
   
8. Construction shall take place between 7.00am and 7.00pm Monday to Saturday and not on Sundays or public holidays. All such work shall be undertaken in such a manner so as not to, in the reasonable opinion of Council, cause any nuisance or annoyance to any of the occupiers of buildings within the locality. Any work outside of these hours requires the written approval of Council.
   
9. Dust emissions from the site shall be controlled by a dust suppressant or by watering (subject to any relevant water restrictions) regularly to the reasonable satisfaction of Council.
   
10. The builder shall at all times provide and maintain a waste receptacle to the reasonable satisfaction of Council on the site in which and at all times all builder’s waste shall be contained for the duration of the construction period and the receptacle shall be emptied as required.
    
11. All building materials, waste and litter on site shall be stored in a manner that secures it on site during the construction works.
    
12. No solid or liquid trade wastes may be discharged to the stormwater system.
    
13. Heavy Rigid Vehicles and Medium Rigid Vehicles may attend at the land on weekdays which are not public holidays between the hours of 7.30am and 9.00am and between the hours of 5.30pm and 7.30pm but must not attend at the land on Saturdays, Sundays or public holidays, or at any time other than during the periods specified in this condition.
    
14. Delivery vehicles which are smaller than Medium Rigid Vehicles may attend at the land on weekdays which are not public holidays between the hours of 7.00am and 9.00pm and on Saturdays, Sundays and public holidays between the hours of 9.00am and 5.00pm, but must not attend at the land at any time other than the periods specified in this condition.

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[1] (1987) 45 SASR 506