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[2003] SAERDC 116
appellant. Provisional Development Plan consent granted to change motel to hotel/motel, subject to conditions including hours of operation, no live entertainment, a combined restaurant/private dining seat...
The Court allowed the motel owners' appeal to convert their motel into a hotel/motel (allowing bar sales without a meal and off-sales of liquor), overturning the Council's refusal. The Court accepted that while the site had a theoretical parking shortfall under Development Plan standards, the proposal would not materially worsen parking or local amenity if the owners reconfigured the carpark to maximise spaces and accepted conditions: limited operating hours, no live entertainment, a cap of 60 seats in the restaurant/private dining area, and specified linemarking and a turnaround bay. Consent was therefore granted subject to those conditions.
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The appellants (Carrabs Nominees Pty Ltd and family members) applied to the City of Burnside to change the use of their motel at 369–373 Glen Osmond Road from a motel to a hotel/motel, principally to permit sale of liquor at a small bar without requiring purchase of a meal and to enable off-premises liquor sales ([11]-[13], [18]). The Council refused the application on 9 May 2002, citing potential increased custom leading to loss of on-street parking, increased noise and commercial activity adverse to adjoining residential properties ([1]). The appellants appealed to the Environment, Resources and Development Court (ERD Court). Commissioner Hodgson heard expert evidence (planning and traffic), inspected the site, and focused the dispute on parking demand and the adequacy of on-site provision relative to Development Plan standards ([2], [17], [24]-[26]).
2 cited instruments linked from this judgment.
Expert evidence produced competing estimates. Using Development Plan rates (Council Wide Principles 41 and 43), one expert (Brunning) calculated required parking as 99 spaces for the proposed use (67 motel rooms, 100 restaurant seats reduced later in negotiations, and a 24 m2 bar) ([17], [24]). Other experts (Young, Short, Siow) assessed realistic on-site capacity after reconfiguration as between 71 and 78 spaces, and adduced surveys suggesting substantial under-utilisation under current management (up to about 40 vacancies on average) ([24]-[26]). The Court canvassed a time-limited approval but the appellants preferred to amend the proposal by reducing the combined restaurant/private dining capacity from 100 to 60 seats; this reduced calculated demand (per Brunning) from 99 to 91 spaces ([27]-[28]).
Applying the High Court/State planning principle from Horbelt (quoted and discussed in the judgment), Commissioner Hodgson held that an existing lawful parking shortfall need not be remedied by an otherwise acceptable proposal, provided the proposal did not aggravate the existing problem ([30]-[34]). Having regard to the possible reconfiguration to gain additional spaces, the proposed seat reduction, the degree of existing under-utilisation, and the potential for conditions to manage impacts, the Court concluded that the shortfall arising from the proposal would be minimal and not significantly in conflict with the Development Plan, and intimated approval subject to conditions ([34]-[35]). The parties agreed conditions and a revised parking plan showing 72 spaces (with one bay to be used as a turning area), and the Court ordered provisional Development Plan consent subject to conditions including hours, no live entertainment, a 60-seat limit, and parking linemarking/turnaround bay ([36]-[38]).
The decision rests on three linked assessments.
First, the applicable Development Plan principles set out parking rates for motels and hotels (Council Wide Principles 41 and 43) and thus provide an objective benchmark for calculating theoretical demand ([17]). Brunning used those rates to compute a theoretical demand of 99 spaces for the proposed use ([24]).
Second, the Court accepted the Horbelt principle that planning authorities should not automatically use an otherwise acceptable application as a vehicle to remedy an existing, lawful deficiency in parking; rather the inquiry is whether the proposal would aggravate the existing problem ([30]-[31], quoting Jacobs J in Horbelt). Commissioner Hodgson explicitly relied on this reasoning, stating he was not persuaded that the existing shortfall must be rectified, provided the proposal did not exacerbate any existing problems ([34]). This was decisive because the site already had an historical shortfall and the proposed change would only marginally increase demand if managed.
Third, the Court applied a pragmatic, fact-specific assessment of risk. It accepted evidence that reconfiguration could produce more spaces (Young) and that existing utilisation was well below capacity (Young’s surveys), but also accepted the concern that changes in ownership, marketing and customer profiles could increase car-borne patronage ([26], [33]). Consequently the Court adopted a middle path: allow the change but impose physical and operational conditions to limit risk, cap the combined seats at 60, require parking reconfiguration and linemarking to maximise spaces subject to Australian Standard and safety, limit hours, and prohibit live entertainment ([35], [38]). Those conditions were tailored to ensure the development would not materially aggravate parking pressures or local amenity problems.
In short, the Court weighed statutory standards, the Horbelt principle, competing expert evidence and practical mitigations, and opted to approve on a conditional basis rather than uphold an absolute refusal.
Before this decision: the relevant statutory framework included the Development Act/Development Plan for City of Burnside, which prescribes zone objectives (Local Centre Zone) and parking rates (Council Wide Principles) relevant to hotels and motels ([15]-[17]). The Court treated Horbelt as the controlling authority on how planning discretion interacts with pre-existing lawful deficiencies: Horbelt indicates discretion exists but limits the scope of requiring an applicant to remedy longstanding, lawful defects when the application itself is otherwise acceptable; the test is whether the proposal aggravates the problem ([30]-[31]).
After this decision: the ERD Court applied Horbelt within the South Australian planning context, reaffirming that a planning authority (and the Court on appeal) is not obliged to require rectification of a lawful existing parking shortfall when assessing a proposed change of use. Instead, the proper inquiry is whether the proposed use would exacerbate the issue. The decision demonstrates how that principle is to be operationalised: by combining quantitative assessment of theoretical demand and realistic capacity, sensitivity to management/user behaviour variables, and the imposition of targeted conditions (e.g. seat caps, parking reconfiguration, operational restrictions) to ensure non-exacerbation of impacts ([24]-[35], [38]).
Thus the case stands as a practical example of Horbelt’s application in the context of a hotel/motel conversion, clarifying that conditional approval is an appropriate mechanism to reconcile Development Plan standards with on-the-ground realities.
Paragraph 1: Council’s reason for refusal. Plain English: The Council refused because it thought allowing a hotel licence would bring more customers and lead to parking spilling onto local streets, more noise and general commercial activity that would harm nearby residential properties.
Paragraphs 30–31 (quoting Horbelt): Plain English: Higher authority says that if a proposed change is otherwise acceptable, a planning authority does not always have to force the applicant to fix an existing parking problem; instead, it must decide whether the change would make that parking problem worse.
Paragraph 34: “I am not persuaded that the existing parking shortfall ... is required to be rectified ... provided the latter does not exacerbate any existing problems.” Plain English: The Court will not require the applicants to fix a long-standing parking shortfall, as long as the proposed hotel does not make the problem worse.
Paragraph 35: Court’s approval in principle subject to conditions, including reconfiguring parking and limiting seats. Plain English: The Court said it would approve the conversion if the applicants re-design the carpark to get as many spaces as safely possible and agree to specific conditions, especially limiting restaurant seats to 60.
Paragraph 38: The operative order and conditions. Plain English: The Court made provisional consent and listed precise conditions, operating hours, no live entertainment, seat limit, and how the carpark must be marked and used.
This decision is directly on point where:
In such scenarios, this case supports the following approach: compute theoretical demand using Development Plan rates; test realistic on-site capacity; assess management/client variables; and, where appropriate, grant consent subject to conditions that ensure the change of use will not exacerbate parking/amenity problems.
This judgment itself does not canvass or report any subsequent judicial treatment of its reasoning. The decision expressly relies on Horbelt as the guiding precedent for the proposition that existing lawful parking shortfalls need not automatically be remedied by a new approval, and applies that principle in the ERD Court context ([30]-[34]). For information on how later courts have treated Carrabs Nominees or its specific application of Horbelt, further case-law research beyond this judgment would be required; the judgment record does not provide follow-up or subsequent citations.
Threshold for 'exacerbation': The judgment applies a fact-driven test of whether the proposal would exacerbate an existing problem, but it does not adopt a clear numerical or legal threshold for when an increase is 'material' or 'significant' in planning terms. Practitioners must therefore expect case-by-case assessment and reliance on detailed expert evidence ([34]).
Reliance on management practices and user mix: The Court accepted industry/management variables (e.g. coach arrivals, marketing, clientele) as relevant in assessing parking demand. The extent to which management undertakings or covenants could be used as enforceable mechanisms to manage these variables is not explored in depth here; the judgment instead used more concrete mitigations (seat cap, parking reconfiguration) ([26], [33], [35]).
Time-limited approvals as an instrument: The Court suggested time-limited approval as a practical option to allow monitoring, but did not impose such a condition because the appellants declined. The judgment leaves open how readily the Court or Council should use time-limited consents in similar factual scenarios and whether such limits should be used more commonly as a monitoring mechanism ([27]).
Interaction with liquor licensing outcomes: The Court’s orders regulate planning consent and operational aspects but do not control liquor licensing determinations. How a liquor licence grant with different conditions might interact with these planning conditions, and whether licensing authorities may require different conditions that affect parking/amenity, is beyond the decision and remains an inter-agency/regulatory coordination question.
Quantifying reconfiguration gains: The judgment accepted that reconfiguration could yield additional spaces and approved a plan showing 72 spaces with one bay reserved as a turning area. The approach to reconciling competing expert methodologies for counting bays (Australian Standard application vs practical layout) will remain contested; the Court’s willingness to accept a compromise (72 spaces, one turnaround bay) suggests flexibility but not a fixed rule ([36]-[37]).
Conclusion: Carrabs Nominees illustrates a pragmatic, conditioned approach to planning appeals where historic lawful shortfalls exist. It affirms Horbelt’s qualifying principle and demonstrates how the ERD Court will use tailored conditions, design reconfiguration and operational limits to manage risks while allowing commercially-oriented changes of use.
Judgment No. [2002] SAERDC 116
B CARRABS, A CARRABS, B CARRABS (JUNIOR) AND E CARRABS
On 28 December 2001 Carrabs Nominess Pty Ltd and Mr B Carrabs and Mrs A Carrabs and Mr B Carrabs (Junior) and E Carrabs ("the Appellants") made application to the City of Burnside ("the Council") to change the use of a motel located at 373 Glen Osmond Road, Glen Osmond from "motel" to "hotel". By Decision Notification Form dated 9 May 2002, the Council advised the Appellants that it had refused the application, its stated reason for refusal being as follows:
"The change of licence will potentially result in additional custom frequenting the premises which will detrimentally impact upon adjoining residential properties by way of a loss of on street vehicle parking, increased noise and general commercial activity in the locality."
The Appellants, being aggrieved by the decision of the Council, appealed to this Court against it. A conference conducted pursuant to section 16 of the Environment, Resources and Development Court Act 1993 did not produce a compromise or settlement, and the matter then proceeded to a hearing, at which time the Appellants were represented by Mr B Hayes QC, of counsel, and the Council by Mr J Hilditch, of counsel. The Court conducted a view of the subject land and its locality in the company of the parties, received a number of exhibits, and heard sworn evidence from Mr B Carrabs, manager of the motel, Mr R Dwyer and Mr P Brunning, both qualified and experienced town planning consultants, and Messrs M Young, A Short and F Siow, all qualified and experienced traffic engineering consultants.
The subject land is located at 369-373 Glen Osmond Road Glen Osmond and is more particularly described as Allotments 78 and 79 in Filed Plan 15771 being Certificates of Title Volume 5135 Folio 538 and Volume 5135 Folio 162.
Occupying the land is a motel complex with the following elements:
49 motel rooms arranged in a "horse shoe" shaped single-storey building to the rear of the land and within a circular two-storey building to the front of the land;
A restaurant, kitchen, reception and administration area located within the circular building near the Glen Osmond Road frontage of the land;
18 motel rooms provided within a recently constructed two-storey building towards the southern end of the land;
Within the three buildings, there are a total of 67 motel rooms.
Also located within the circular building, towards the Glen Osmond Road frontage, is a 120m2 dining room and a 41m2 private dining room with a bar and associated landing area.
The premises presently hold the following licences:
A Residential Licence, which enables the sale of liquor to guests for consumption within their rooms;
A Restaurant Licence for the restaurant, which enables the consumption of liquor with a meal for both guests and member of the public.
The subject land, which is located on the eastern side of Glen Osmond Road, is situated in a locality characterised by a mix of commercial land uses having frontages to Glen Osmond Road, the latter being a major arterial road forming the primary entrance to Adelaide when approached from the South East Freeway. Existing uses within the locality include service trade premises, motor vehicle show room, petrol filling stations, retail shops, a recycling depot, other motel complexes and other forms of tourist accommodation.
Set further back from Glen Osmond Road are residential properties extending through to Portrush Road, located further to the east.
On the western side of Glen Osmond Road is a public open space reserve incorporating a range of facilities, and a retirement village providing a range of residential accommodation for aged persons in a managed estate. The retirement village is screened from Glen Osmond Road by a masonry wall.
It is now proposed to change the use of portion of the premises from a "motel" to a "hotel/motel" as defined by the Regulations under the Development Act 1993.
The change would enable the sale of liquor in accordance with a hotel licence as defined under the Liquor Licensing Act, 1997. No external building works are proposed and no major external changes to either the existing building or associated grounds are proposed. An existing small bar at the northern end of the dining room is to be converted to a store, and an existing somewhat larger bar delineated by the installation of a low level barrier designating a standing area for that bar, that standing area being approximately 24m2 in area.
It is proposed to reduce the size and capacity of the main dining room from 120m2 to 100.4m2, commensurate with the designation and physical delineation of a bar standing area adjacent the bar. Also proposed is installation of disabled access ramps, level thresholds and an internal wheelchair stair lift to provide disabled access to the restaurant, which is on the upper level of the existing motel.
Conversion of the motel to a hotel/motel would provide:
The ability for liquor to be sold for consumption off the premises;
The ability for liquor to be sold within a dining area without a meal.
The subject land is located within the Local Centre Zone as depicted on map Bur/9 in the Development Plan for the City of Burnside dated 20 September 2001. The sole objective for that zone is as follows:
A zone accommodating a range of shops, offices, business, health and community service providers all being of a small-scale suited to servicing the needs of the local community."
The sole zone principle of relevance to this matter is Zone Principle 1, which is as follows:
"1 Development undertaken in the Local Centre Zone should consist of small-scale shops, offices, consulting rooms and commercial premises suited to meeting the needs of the local community."
The sole issue in dispute in this matter concerns the additional parking demand generated by the subject proposal, and the adequacy of existing parking provisions to accommodate that demand. Council Wide Principles 41 and 43 set out parking requirements for various kinds of licensed premises, including hotels and motels:
"41 With the development of a hotel, or premises for which an entertainment facility licence or a general facility licence is held or is proposed to be held under the Liquor Licensing Act 1985, there should be provision for carparking at the following rates:
(a) not less than one parking space for every two square metres of hotel floor area which is available to the public in a bar;
(b) not less than one carparking space for every six square metres of hotel floor area which is available to the public in a lounge, dining room or beer garden; and
(c) not less than one carparking space for every three guest rooms, if any."
" 43 With the development of a motel there should be provision for carparking at the following rates:
(a) not less than one ca parking space for every guest room or unit; and
(b) where a restaurant is part of the development and where that restaurant is to be licensed under the provisions of the Liquor Licensing Act 1985, not less than one carparking space for every five seats provided or able to be provided therein."
The evidence of Mr Carrabs was that the change of use from hotel to hotel/motel would manifest itself only in the potential that change provided to sell liquor without a meal within the bar (the only area to be subject to a hotel licence) and to sell liquor for consumption off the premises. The change was intended primarily to accommodate a desire by motel patrons to be able to have a drink at the bar without having to purchase a meal, and although any adult not residing on the premises would be able to use the bar and purchase liquor to take away, it was not considered likely that this would represent a significant proportion of the bar's custom.
Mr Brunning, in evidence, calculated the demand for on-site parking, based on the above principles, as follows:
The evidence of Mr Young was that with some re-design of the existing carparking up to 78 carparking spaces could be made available on site. Both Mr. Short and Mr Siow took issue with this figure, taking the view that, based on the application of the Australian Standard for off-street carparking, the number of potential spaces was in the order of 71 or 72 spaces.
The evidence of Mr Brunning was that the motel was already under-provided with carparking, having regard to Council Wide Principles 41 and 43, and that the addition of a bar, as proposed, would merely exacerbate the shortfall, potentially resulting in an overspill of carparking generated by the site into surrounding residential streets and onto Glen Osmond Road, a heavily-trafficked arterial road.
Mr Young, in evidence, acknowledged the shortfall in parking which already existed on the subject land. Referring, however, to a number of parking surveys undertaken on the subject land, he was of the opinion that existing parking spaces were under-utilised, there being, on average, up to 40 vacant spaces available. Mr Young attributed this under-utilisation to the fact that a substantial number of the motel's clients arrived by coach, and therefore did not require carparking. This situation was acknowledged by Mr Brunning, Mr Short and Mr Siow, but all expressed concern that a change in the composition of the motel's client base could result in an increase in the proportion of guests arriving by car, and a consequential shortfall in parking provision. That, in turn, could lead to the parking of guests' vehicles in nearby residential streets and on Glen Osmond Road, both undesirable outcomes in planning terms.
On the evidence of Mr Young there is the capacity to accommodate additional parking demand for up to 40 vehicles on the subject land, assuming no change in the style of operation and client base of the motel. That, however, cannot be guaranteed. A different owner, different marketing and promotional measures, and changes in consumer behaviour, individually or collectively, could result in a higher demand for carparking than is evident at present. That being the case, I canvassed with the appellants, through their counsel, whether amendment of the application to seek a time-limited approval might represent the best course of action, thereby allowing the Council to review the situation after a defined period, and either renew the approval, vary it, or refuse a further approval, depending on actual experience with the proposed development.
The Appellants indicated that, for commercial reasons, they were reluctant to seek a time-limited approval. They did indicate, however, that they were willing to amend the proposal by reducing the maximum number of seats to be available, in combination or separately, in the restaurant and private dining area, from 100 to 60. This would have the effect of reducing the number of carparking spaces required for the restaurant from 20 to 12. Based on Mr Brunning's figures, that would reduce the total parking demand for the development as now proposed from 99 spaces to 91.
Mr Hayes, for the Appellants, submitted that the starting point for assessment of the proposal should be the parking demand generated by the designated bar area, namely, 12 spaces, and that the present shortfall, which existed lawfully, should not be used as a basis for demanding more carparking than would be required by the Development Plan for a 24m2 bar area. The reduction in the number of seats in the restaurant/dining areas would result in a reduction in the number of parking spaces required for the restaurant from 20 to 12, the net effect being a demand for four additional spaces over and above existing parking provision.
In support of this submission, Mr Hayes made reference to the decision of Jacobs J. in Corporation of the City of Woodville v Horbelt, Loralon Hospital Pty Ltd and Tableware Distributors Pty Ltd (1976) 50 ALJR 432, which matter concerned a proposal for additions to a private hospital in a situation where there were existing parking difficulties in the vicinity of the hospital. In his judgment, His Honour commented as follows:
"The appellant advances, as a "fundamental planning principle", the proposition that where an existing land use involves such detriment to the orderly planning of the locality, the planning authority ought not to approve a building alteration and extension, which is per se unobjectionable, without directing its mind to the unsatisfactory features of the existing land use. Simply to grant the application, thereby confirming the existing use of the land, and to "sweep under the carpet" the existing parking problem and the hazard, actual or potential, which it creates in neighbouring streets, is said to be an abrogation of the function of the planning authority. It was the duty of the Board, so the appellant says, at least to explore possible solutions to the general parking problem, and if solutions existed, to impose appropriate conditions in granting its consent; or indeed, to refuse consent if no solution is offered, as a disincentive to the perpetuation of an unsatisfactory land use." ......"It seems to me, however, that there must be some limitation on the suggested principle, or at least some discretion in the planning authority as to whether it should be invoked. It is a central feature of the legislation that existing uses of land are preserved - vide ss. 37, 41 (5)(a) and Leverington v. State Planning Authority - and if, for example, the proposal was to construct a new operating theatre, the better to serve the patients in the hospital, I cannot see that the principle contended for would require consent to such a proposal to be refused unless action was taken to remedy or alleviate the existing parking problem."
His Honour went on to conclude that it was only necessary, in those circumstances, to ensure that the proposal did not aggravate the existing parking problem, rather than to rectify it.
In this instance, said Mr Hayes, there was a theoretical parking shortfall, based on Development Plan provisions which in all likelihood post-dated the construction of the motel, but there was not an existing parking problem. On the evidence of Mr Young, there would be some overlap of carparking provision for the motel and the bar, as some users of the latter would be motel patrons who would not generate a requirement for an additional carparking space. Mr Young also observed, in evidence, that in the unlikely event of carparking demand exceeding provision on site, 9 spaces were available in the immediately adjoining street without impinging on residential properties within that street. Mr Hayes also made reference to the potential, identified in evidence by the three traffic experts, for some additional parking spaces, meeting the relevant Australian Standards, to be provided by reconfiguration of the existing parking areas.
Mr Hilditch, referring to the evidence of Mr Short and Mr Siow, submitted that the parking shortfall on the site, should the subject proposal proceed, would be as much as 30 spaces, if the Australian Standard was applied to the existing carparking layout. Acknowledging that the evidence pointed to the existing carparking being under-utilised to a significant degree, Mr Hilditch submitted that the excess carparking capacity currently experienced was a product of the management policies of the motel, which policies could change under new ownership or different market conditions. The existing variables in the management and operation of the site were factors which the Court needed to take into consideration in determining what potential for change existed and what parking consequences might flow from that change.
Having regard to the decision of the Supreme Court in Horbelt, I am not persuaded that the existing parking shortfall on the subject land is required to be rectified by this proposal, provided the latter does not exacerbate any existing problems. Taking into consideration the proposed reduction in the number of seats in the restaurant and private dining room and the potential for some additional carparking spaces to be provided by reconfiguration of and/or alterations to the existing parking layout, I have concluded that, subject to appropriate amendments to that layout and to the foreshadowed reduction in the capacity of the restaurant and private dining room, the shortfall in parking resulting from the subject proposal will be minimal, and not such as to conflict to any significant degree with the relevant provisions of the Development Plan.
I intimated to the parties that, subject to reconfiguration of the existing parking layout to maximise the number of spaces consistent with the relevant Australian Standard and the safety and convenience of patrons of the subject premises, and subject also to appropriate conditions, including a condition restricting the maximum number of seats in the restaurant and private dining room combined to 60, I would approve the proposal.
The parties came before me on two subsequent occasions, on the second of which Mr Manos, for the Appellant, tendered a plan prepared by Murray Young and Associates showing a revised carparking layout, which provided a total of 72 spaces. Mr Hilditch, for the Council, tendered written advice from Mr Short advising that, in order to comply with the relevant Australian Standards, one bay (space 30) in a blind aisle more than 6 spaces long should be removed to provide a turning area in the event that all spaces were occupied.
Mr Manos tendered a letter from Mr Young advising that the loss of one space for this purpose would not be significant. I agree.
Conditions of consent having been agreed between the parties, it is the order of the Court that Provisional Development Plan consent is granted for the subject proposed development, subject to the following conditions:
1. The proposal shall be developed in accordance with the details of Development Application 180/1381/01/CA and proposal plans comprising Exhibit A2 in these proceedings, as amended by the carparking layout depicted in Exhibit A5 in these proceedings, except where varied by the following conditions:
2. The business herein approved shall operate only between the hours of 11.00am to 12 midnight any day of the week.
3. No live entertainment shall occur within the premises. Any entertainment other than background music through an in-house amplification system shall be the subject of a separate application.
4. At not time shall the number of seats in the restaurant and private dining room, separately or in combination, exceed a total of 60.
5. With the exception of the space numbered 30, the carparking spaces depicted on Exhibit A5 in these proceedings shall be linemarked in accordance with the layout shown therein.
6. The carparking space numbered 30 on Exhibit A5 shall be linemarked as a turnaround area.
Carrabs Nominees Pty Ltd & Ors
City of Burnside No ERD-02-454 [2003] SAERDC 116
(1976) 50 ALJR 432
Provisional Development Plan consent granted to change motel to hotel/motel, subject to conditions including hours of operation, no live entertainment, a combined restaurant/private dining seat limit of 60, parking reconfiguration/linemarking to Exhibit A5 (with one bay as turnaround), and compliance with approved plans (see [35]-[38]).