Gray Dale P/L v City of Norwood Payneham & St Peters & Ors No ERD-02-156 [2003] SAERDC 30

The appellant lodged a development application with the Council on 6 July 2001. On its face, it sought approval to change the use of the Church site from "Church and Theological College" to "Restaurant (Wine Bar) and Office". On 9 October 2002, a report of Connor Holmes Consulting was submitted to the Council in support of the application. That report said that the proposal involved using the existing church building, with some additions and alterations, as a restaurant/wine bar. It was acknowledged that the existing two-storey extension to the original church building, which was formerly used as a theological college, was already being used as an office, and approval was sought for this use, together with the use of one of the rooms in the extension (of 63 square metres) for wine storage and cellar door sales. The report said that 42 square metres of floor space would be added to the church. An adjustment to the office floor space would result in there being a total of 407 square metres of lettable area, being 149.7 square metres at ground level and 257.8 square metres at first floor level. The restaurant was to have a seating capacity of 180 patrons inside and 80 patrons outside. The number of patrons able to be accommodated in the wine bar portion of the proposal was not specified. The existing car park at the rear of the extension was to be reconfigured to provide 20 spaces, and 10 further spaces were to be provided along the western side of the church. It was proposed to enter into a legally binding agreement with the property to the east of the Church site to acquire the right to use 12 of the car parks in the existing car park on that property "for use during peak restaurant periods (after 5.00 pm daily and on weekends)." The right to use six of the car parks on the Church site during office hours was to be given to the property to the east in exchange for the rights over the 12 car parks after hours. An existing fence between the two car parks was to be removed. A letter from Connor Holmes Consulting dated 14 September 2001 said that the proposed hours of operation were Sunday to Thursday 8.00am to midnight, Friday and Saturday 8.00am to 2.00am, and that the premises would have an entertainment licence and offer light entertainment such as lounge music and jazz bands, but not DJs or rock bands.

This application was treated as an application for development of a kind which was neither complying nor non-complying - a "merit" application. Public notification appropriate to a Category 3 kind of development was presumably given, and numerous representations were received by the Council and responded to by Connor Holmes on behalf of the applicant.

The Council refused to grant provisional development plan consent to the application on 23 January 2002. The appellant appealed.

By letter dated 12 March 2002 to the Council, Connor Holmes Consulting, on behalf of the appellant, offered to amend the proposal. The amendment included the deletion of the wine bar. It was proposed to limit "restaurant patronage" to a maximum of 130 seats from Monday to Friday from 8.00am to 6.00pm, and to 220 seats (being 80 seats outside, 100 inside at tables, and 40 lounge seats) at all other times. Some rearrangement of the car park may also have been involved.

By letter dated 16 October 2002 to Griffins Lawyers, Hunt and Hunt, the solicitors for the appellant, set out a different version of the proposal, which was the version of the proposal for which consent was sought upon the appeal. It was sought to change the use of the Church site to use for a restaurant (in the old church) and an office (in the extension at the rear of the church, formerly used as a theological college), as well as a wine store and cellar door sales (one 63 square metre room of the office area). The wine bar was no longer to be part of the proposal. The hours were to be from 8.00am to midnight on Monday to Thursday, from 8.00am to 1.00am on Friday and Saturday, and from 8.00am to 10.00pm on Sunday. "Restaurant patronage" was to be limited to a maximum of 65 persons from Monday to Friday from 8.00am to 6.00pm, excluding public holidays, and a maximum of 150 persons at all other times, being nights, weekends and public holidays. The existing 26 space car park was to be reconfigured and re-sealed to provide 23 spaces at the rear of the extension to the church. The office was to have exclusive use of 18 of these spaces between 8.00am and 6.00pm. A further 3 spaces were to be provided to the west of the church. The fence between the Church site and the property to the east of it was to be removed to facilitate traffic movement, but this would not result in any further car parks being available exclusively for the proposal. It would, however, allow the more convenient reciprocal sharing of car parks.

The second respondents raised no objection to the amendment of the proposal, though they maintained their objection to the proposal as amended. The first respondent, the Council, however, had changed its position by the commencement of the hearing, and, in addition to raising no objection to the amendment of the proposal, called evidence and argued in support of the proposal as amended.

The proposal was processed by the Council as a kind of development which was neither complying nor non-complying. The Church site comprises lots 18, 19 and 20 in Filed Plan 5046, Norwood, Hundred of Adelaide. Allotment 18 has a frontage to The Parade, allotment 19 is to the south of allotment 18, and allotment 20 is to the south of allotment 19. Allotments 18 and 19 are in the District Centre Zone pursuant to the Development Plan for Kensington and Norwood (City), and allotment 20 is in a Residential Zone. Roughly two thirds of the car park at the rear of the building on the Church site is on allotment 20 and in the Residential Zone.

Principle 11 for the Residential Zone in Kensington and Norwood (City), lists "restaurant", "office" and "shop, except for the re-use of buildings originally constructed for use as shops and with a gross leasable area less than 100 square metres" as kinds of development which are non-complying in the Residential Zone. Mr Henry argued on behalf of the second respondents that, as a consequence, the development application should have been processed as an application for a non-complying kind of development.

Mr Henry argued, in effect, that the portion of the car park which protrudes into the Residential Zone should be treated as being part and parcel of the use of the balance of the land, which it serves. Thus the car park in this proposal should be dealt with as part of a restaurant/office/shop, and should therefore be categorised as non-complying and processed accordingly.

Mr Henry pointed out that the extent and nature of the use of a car park varies according to the land use it serves. In this case, a car park used for a traditional church is very likely to have a different pattern of usage from a car park which serves a restaurant. In further support of his argument, Mr Henry pointed to Regulation 3(1) of the Development Regulations 1993, which states:-

"3. (1) In these regulations and in any Development Plan, the terms set out in schedule 1 have, unless inconsistent with the context, or unless the contrary intention appears, the respective meanings assigned by that schedule.

(2) Unless stated to the contrary, a term set out in Schedule 1 which purports to define a form of land use will be taken to include a use which is ancillary and subordinate to that defined use.

Mr Henry's argument has some logical force, though we do not consider that it is assisted in any way by Regulation 3, which is merely an aid to interpretation of the Development Regulations 1993 and the Development Plan. However, the argument is contrary to the decision of the Supreme Court in Papadopoulos v Corporation of the City of Woodville (1985) 39 SASR 569, in which, in considering an application for a car park which was adjacent to a shopping centre and intended to serve that shopping centre, the Court did not characterise the use of the car park by reference to the shopping centre, but dealt with it, simply, as a car park. In Corporation of the City of West Torrens v McDonald's Properties (Australia) Pty Ltd (1985) 38 SASR 467, the same approach was taken with respect to a sign, and in Ellis & Others v City of Holdfast Bay (1999) EDLR 317, this Court adopted that approach with respect to a car park for a service trade premises/motor repair station. Consistently with those authorities, and bearing in mind the fact that the car park has been in existence and used for many years, we determine that the car park in this proposal, which intrudes into the Residential Zone, should not be characterised as an office, restaurant or shop (or the combination of those land uses), and is not non-complying. This is also consistent with the need to have regard to the fact that the Development Plan was superimposed upon existing land uses (see Wilson & Others v Corporation of the City of Mitcham and Mercedes College Springfield Inc. (1986) 130 LSJS 31).

1755.52 square metres of the Church site is in the District Centre Zone and the Retail Core Policy Area. 358.24 square metres of the Church site is in the Residential Zone. The area of the site is 2113.75 square metres.

Three qualified town planners gave evidence: Mr Stephen Holmes, for the applicant, Ms Jennifer Nolan in the Council's case, and Mr Alistair Tutte in the case for the second respondents. All were agreed that the proposed use of the Church site was in accordance with the objectives and principles for the District Centre Zone. None considered the 13.06 metre intrusion of the site into the Residential Zone (which is, in any case, existing) to be a significant factor in terms of the appropriateness of the land use, (though some reservations were expressed in terms of the impact of the car park on the amenity of the residential zone, which will be explored below). We agree with this assessment. We have had regard to all of the relevant provisions of the Development Plan. Shops and restaurants are specifically encouraged in the Retail Core Policy Area of the District Centre Zone (see Objective 1), and offices are generally appropriate in the Zone, though more specifically encouraged in The Parade East Policy Area and The Parade West Policy Area.

The Baptist Church was entered on the State Heritage Register on 23 September 1982. In the Development Plan, Council Wide Principles 45 to 56 deal with Heritage Conservation. The Plan clearly seeks the preservation and conservation of places of heritage value. It was common ground among the parties that the proposal complies with the provisions of the Development Plan relating to State Heritage Items. Mr Luigi Vitale, an architect employed in the South Australian Department for Environment and Conservation in Heritage, gave evidence in support of the proposal which was uncontested. In brief summary, he considered the proposed restaurant to be an appropriate use of the Baptist Church which would have minimal impact on the fabric of the building. Mr Vitale thought that if the proposal proceeded, conservation work necessary to restore the building, some external elements of which are deteriorating presently, would be more likely to be undertaken, and that the building was more likely to be maintained. We accept Mr Vitale's evidence.

The contentious issues to which this proposal gives rise relate to the impacts that it will have on the amenity of other land users and visitors to the locality. The town planners varied slightly in their definition of the locality, but nothing turns on that. It was clear from the evidence that the contentious noise impacts were likely to be experienced by the residents in Church Avenue, particularly Mr Copley, who lives at 5 Church Avenue. Traffic impacts would be experienced in Church Avenue, on The Parade, and in Edward Street. Arguably the impact of the parking shortfall would be experienced by the Norwood Hotel, on the corner of The Parade and Osmond Terrace, and at the cinema complex on the corner of The Parade and George Street. Mr Tutte defined a locality that extended to Osmond Terrace, and encompassed George Street, the Webbe Street car park to the north of The Parade, and the Woolworths car park to the south of The Parade. We adopt Mr Tutte's locality.

Usefully, the two acoustical engineers who gave evidence, Ms Rachel Foster and Mr Chris Turnbull, met prior to the hearing and formulated a joint statement. In it they said:-

"The noise at the closest residence, from restaurant patrons and their vehicles whilst in the car park, is predicted to exceed the maximum instantaneous level of 60 dB(A).... This level is marginal with respect to the level recommended by the World Health Organisation and the criterion based on 5 dB(A) below the Environment Protection (Industrial Noise) Policy. When considered in conjunction with the outdoor dining patrons, the total equivalent noise level is likely to exceed the level recommended by the World Health Organisation and the criterion based on 5 dB(A) below the Environment Protection (Industrial Noise) Policy."

Ms Foster was confident that reasonable protection for the residents of the houses in Church Street near the Church site, and in particular Mr Copley, could be provided by means of:

1. an acoustic screen between the outdoor dining area at the front of the site and the three car parks proposed on the western side of the site; and

2. a solid barrier at the entrance to the car park, to be put in place each day prior to the time for departure from an evening meal at the proposed restaurant.

Church Avenue is open to two way traffic at its northern end. South of the Church site, however, it is limited to southbound traffic. Many of the representors, in their written representation to the Council, expressed concern about the consequences of the increased traffic in Church Avenue which would result from the proposal. Two traffic engineers gave evidence, Mr Frank Siow and Mr Shane Foley, in relation to the effect that the proposal would be likely to have on traffic in the locality. Whilst the amount of traffic in Church Avenue, and possibly Edward Street, would be expected to increase, having heard the traffic engineers, we are confident that the additional traffic would be manageable. We agree with Mr Foley that traffic departing from the car park on the Church site should be prevented from turning south down Church Avenue.

The adequacy of the car parking arrangements for the proposal is the principal contentious issue in this matter.

The starting point for an assessment of how many car parks are required is Principle 58 of the Council Wide section of the Development Plan, which says:-

"58 All development should be provided with adequate on-site car parking, in accordance with the following standards:

(c) offices: four individually accessible car parking spaces for each 100 square metres of nett lettable office area, excluding foyers, lifts, stairs, toilets, services and tearooms, and not less than half of the car parking spaces should be unreserved and readily accessible to visitors;

(d) shop(s) in the District Centre Zone other than retail showroom or restaurant: seven individually accessible car parking spaces for each 100 square metres of gross leasable area;

(i) restaurant(s) or hotel: one individually accessible car parking space for every three seats provided or able to be provided in dining and lounge areas."

The evidence was that the tenant of the office and wine store/cellar door sales area was already in occupation pursuant to a lease by which the owner of the Church site had bound itself to provide, for the exclusive use of that tenant, 18 of the car parks at the rear of the offices. Both Mr Siow and Mr Foley agreed that that was an adequate provision of car parks for the office, wine store and cellar door sales component of the proposal.

There were inconsistencies in the evidence concerning the number of car parks that were proposed. The amended plans, Exhibit A2, show 26 car parks on the Church site. Three of them are on the western side of the building. The evidence was that they are likely to be used for staff. Of the remaining 23 car parks, all of which are at the rear of the Church site, two are for people with a disability. One is not usable when a service vehicle is present.

In order to calculate how many car parks are required for the restaurant component of the proposal, pursuant to Principle 58, it is necessary to know how many seats are to be provided in the restaurant. Considerable confusion was generated in relation to this question at the hearing of the matter. This was contributed to by the history of the matter, and the fact that all of the consultants who gave evidence in the appellant's case said that they were relying on information given to them by Mr Antunes (who is apparently a Director of the appellant), whilst Mr Antunes did not give evidence. It would have been preferable to have had direct evidence about what was proposed. Ultimately, the Court was requested to decide the matter on the basis that there would be 150 seats in the restaurant (indoors and outdoors) at all times, but that from Monday to Friday (except for public holidays), from 8.00am to 6.00pm, only 65 of them would be used.

Further, the Court was asked by counsel for the appellant to decide the matter on the basis that the style of the restaurant was to be "fine dining", and not a café. A fine dining restaurant was said to attract less traffic, as patrons were likely to stay for longer at a meal, and were unlikely to visit the site only for a cup of coffee between meals. The argument was predicated on the basis that a change from fine dining to a café would be a change of use of the land, necessitating a fresh approval. We reject this submission. It is clear from the judgments of the Full Supreme Court in Adelaide City Council v Frankham [2002] SASC 162 and City of Mitcham v Fusco & Another [2002] SASC 423 that the question of whether or not activities on land constitute a change of use of that land is one of fact and degree, and that strict reliance is not to be placed upon whether a particular set of activities fit within a land use "label" defined in the Development Regulations 1993. Clearly both a fine dining restaurant (the precise components of which description have not been provided) and a café come within the definition of "restaurant" in the Development Regulations 1993 First Schedule, which says:-

"'restaurant' means land used primarily for the consumption of meals on the site."

Following Fusco, it is necessary for us to go beyond the definition and look at the activities which Mr Hayes has argued will be distinct land uses. We must then compare the purpose of the use of the land for fine dining with the purpose of the use for a café and determine whether, as a matter of fact and degree, there would be a change in the essential nature of the use (see Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville and Shuttleworth (1979) 20 SASR 514 at 520 per Wells J).

It seems to us that the activities which are involved in the use of land for a fine dining restaurant, and the purpose of those activities, compared with activities which go with the use of land for a café, and the purpose of those activities, are so very similar that a change from one to the other cannot be said to change the essential nature of the use of the land. Both a fine dining restaurant and a café essentially involve the provision of food and drink at a table to paying members of the public. Both would usually involve a kitchen, a dining room, a service area and toilets. We therefore place no reliance upon the assertion that the restaurant for which approval is sought will be a fine dining restaurant, because it could change to use for a café, or any other kind of restaurant, at any time without a further development approval being obtained.

The proposal is, therefore, for a restaurant for 65 people from 8.00am to 6.00pm Monday to Friday (excluding public holidays), and for 150 people at all other times. In accordance with Principle 58, 21 car parking spaces are required from Monday to Friday (excluding public holidays) from 8.00am to 6.00pm, but only 8 are provided (taking into account those dedicated to the offices). At all other times, 50 spaces are required and 26 spaces are provided. The traffic engineers provided various other ways of looking at parking requirements, but all of them resulted in the conclusion that the proposal underprovided car parks.

It was argued that some relaxation of the standards for the provision of car parking should occur in recognition of the fact that this proposal would partly conserve and maintain a State Heritage Item. We agree with this principle. The question is then how far the standards can and should be relaxed.

Considerable evidence was given about the availability of parking on other land in the locality. It was argued that those patrons of the restaurant who were unable to park on the Church site could park in the Webbe Street car park, which is a public car park, or in the Woolworths car park, which is subject to an encumbrance, the purpose of which is to constrain the owner of that site to continue to make 268 car parks publicly available on the site. The would-be patrons of the restaurant may well have resort to other privately owned car parks in the locality - notably Mr Zollo's property, which is opposite the Church site on the western side of Church Avenue, and the car park of the Norwood Hotel, in relation to which Mr Leon Saturno gave evidence. It is reasonable to have regard to the availability of the Webbe Street carpark, which is public, though many patrons of the proposed restaurant are likely to view it as inconveniently located in relation to the Church site. We take into account Mr Tutte's evidence with respect to the many competing pressures on the Webbe Street car park, both from existing and possible future land uses on The Parade. We consider that it is also reasonable to take into account the presence of other car parks in the area, such as Woolworths, which are apparently open to the public notwithstanding that they are privately owned. We do not place any weight on the encumbrance, which could be discharged at any time without resort to any process under the Development Act 1993. Those car parks which are clearly stated to be unavailable for public use, such as the reserved car parks in the site abutting the Church site to the east, the Norwood Hotel car park, and some of the car parks in Mr Zollo's land we will treat as being unavailable to the patrons of the proposed restaurant. It is acceptable and desirable for some overflow parking to occur from site to site in a District Centre, particularly when the land uses have complementary peaks. In order for this to function adequately, however, there must be car parks on other sites available to be taken up. It is notable that 3 of the 5 representors who joined as parties to the appeal had, as their chief concern, the prospect that car parks provided by those representors for their own customers might be used in association with the proposed restaurant. The availability of car parking is clearly an issue which generates considerable feeling among landowners on The Parade.

Mr Foley conducted surveys in August and September of 2002 to ascertain the availability of car parking in the locality at critical times, being 1.00pm and 7.30pm. On the basis of those surveys, we are satisfied that there is a critical shortage of car parking spaces conveniently located in relation to the Church site and likely to be used by patrons of the restaurant in the locality at lunchtime on Fridays, and on Thursday evenings. We have concluded that the proposal in its current form would aggravate an already undesirable situation to an unacceptable degree, even having regard to a relaxation of the car parking standards in consideration of the heritage conservation aspects of the proposal. This view accords with Mr Siow's, and we note that Mr Foley indicated that he would have difficulty supporting the proposal if it were to be for a café rather than for fine dining. For this reason, we will dismiss the appeal. We take this course with some regret, as we consider that the restaurant use would be a good one for the Church building, but, allied with the office, wine store and cellar door sales, the site will simply attract too many cars in search of a car park at times when insufficient spaces are conveniently available in the locality.

As we have determined that the proposal is unacceptable on the factual basis upon which the appellant put it forward, it is not necessary to speculate about what future factual scenarios could come into existence within the parameters of a development approval, were it to be granted. However, it has not escaped us that the physical capacity of the space which was to have been used as a restaurant was very much greater than 150. The outdoor space was also capable of accommodating many more people than 80. The potential for on-going applications for incremental increases in patron numbers was apparent. The physical disposition of the renovated office area on the eastern side of the building was puzzling, in that it involved several large connecting spaces leading to a substantial balcony. There was a great deal of discussion during the appeal about the extent to which ease of enforcement should be a factor in a planning decision. We consider that, if it is clear that the approval of a proposal will create an on-going enforcement problem for the primary authority, then it will generally mean that the proposal is unacceptable.