Aromas (Noosa) Pty Ltd v Council of the Shire of Noosa [1994] QPEC 53

\ t _J TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) PLANNING AND ENVIRONMENT COURT ✓JUDGE SKOIEN, Senior Judge p & E Appeal No 158 of 1993 AROMAS (NOOSA) PTY LTD and COUNCIL OF THE SHIRE OF NOOSA BRISBANE .. DATE -22/07 /9'4 JUDGMENT R~V!SED COPIES ISSUED S12te Rcpcrli:-:g Bureau Date 2 I?/ Appellant Respondent 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 15 -- 220794 T 1/NA M/T CMS113/94 (Skoien DCJ) HIS HONOUR: For the reasons which I now publish, I am allowing the application. If you look at the top of page 6 you will see what I regard as a reasonable and relevant condition in lieu of condition 3 and if you look at page 12 you will see what I regard as a reasonable condition in lieu of condition 1. I order that.the approval notified on 1 March 1993 be varied 10 by substituting the following conditions. conditions 1 and 3. 20 I will then set out 30 40 50 60 2 JUDGMENT r -- 2 of 15 -- r5':". 5f-S IN THE PLANNING AND ENVIRONMENT COURT (" HELD AT BRISBANE QUEENSLAND Appeal No. 158 of 1993 Before His Honour Senior Judge Skoien [Aromas (Noosa) Pty. Ltd. v. Council of the Shire of Noosa] BETWEEN: AROMAS (NOOSA) PTY. LTD. Appellant - and - COUNCIL OF THE SHIRE OF NOOSA Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date(s): Respondent REASONS FOR JUDGMENT 22/7/1994 Miss Hossack, solicitor employed by appellant Mr. T. Trotter, for respondent Appellant: Nil Respondent: Wakefield Sykes 11 and 12 July, 1994 -- 3 of 15 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND Appeal No. 158 of 1993 BETWEEN: AROMAS (NOOSA) PTY. LTD. Appellant COUNCIL OF THE SHIRE OF NOOSA Respondent REASONS FOR JUDGMENT - SKOIEN S.J.D.C. Delivered the Twenty-second day of July 1994 This is an application for review of the Council's refusal to amend two conditions imposed on its consent for Aromas to make use of an outdoor eating area at its premises in Hastings Street, Noosa Heads. The application is enabled by s.4.15(1)(c) of the Local Government (Planning and Environment) Act 1990. The use of that procedure is unusual but Mr. Trotter for the respondent Council did not argue it was inappropriate. Aromas has a coffee shop on Hastings Street which encloses an area of 89.2 sq. metres. The shop sells coffee and prepared food such as cakes and sandwiches to customers seated at tables and chairs. Initially this took place only inside the shop. On 11 December 1992 Aromas applied to the Council for consent also to use an outdoor area for its coffee and food sales. On 1 March 1993 the Council notified its approval of the application subject to some conditions of which three are relevant to this application. They are: "1. Payment to the Council of $20,000 in lieu of two off- street carparking spaces within 21 days of Town Planning Permit. -- 4 of 15 -- 2 The applicant be advised that Council consi?ers that this proposal is not an open outdoor eating ':'-rea, however having regard to the nature of the business being conducted on the site, Council assesses the carparking contribution at a discounted rate of 50% of the normal carparking rate required under the Planning Scheme. 2. The outdoor dining area shall be restricted to the covered area outside the existing shop premises. Chairs and tables are not to extend beyond that covered area. 3. The maximum number of tables to be provided in the outdoor dining area shall not exceed twenty-five. The maximum number of seats provided in the outdoor dining area shall not exceed 70." On 29 March 1993 Aromas applied for a modification of conditions 1 and 3 to decrease the carparking contribution to $10,000 and to increase the outdoor seating capacity to 30 tables and 120 seats. That was refused on 30 April 1993 and on 8 June 1993 this application to review that refusal was filed. The application actually specified conditions 1, 2 and 3 but no argument on condition 2 was pursued. It retains, however, some relevance. It is convenient first to deal with the application to modify condition 3. Outdoor Seating During her final address, Miss Hossack, a solicitor employed by Aromas, orally amended the application on condition 3 to one for 110 seats (and 30 tables) in lieu of 120 seats. The area in question contains 61.3 sq. metres and is the area outside the walls of the Aromas shop but beneath its eaves. The eaves are formed by the projecting roof of the shop. The eaves are fully lined to form a ceiling. The western edge of the roof (the side of Aromas which abuts a paved courtyard) has a -- 5 of 15 -- 3 roller-type canvas awning which can be rolled up flush to the roof edge or can be extended out and down at an angle of about 45°. The evidence was not completely clear how far it extended horizontally, (but my impression was only a metre or so) nor downwards (but my impression was that it could n~t go lower than about a metre and a half from the ground). I accept that it could be used only to provide some limited extra protection from sun and rain and that by no means could it be said to create a weatherproof wall. The eaves on the west of the shop are about 2.5 metres wide and to the north, to the Hastings Street footpath considerably wider. I was not given the dimensions of that. The paved courtyard to the west and the shops which surround it are all owned by Aromas' landlord. The arguments on condition 3 concerned whether the proposed 30 tables and 110 seats could physically fit within the area beneath the projecting roof. A corollary was whether, and to what extent, there could be a breach of condition 2 in that tables and chairs might be placed beyond the roof overhang area. The evidence all related to the capacity of the area to fit 30 tables (which are a mix of tables of 800 mm. and 600 mm. diameter) and 120 chairs. That number of chairs was at all times the number mentioned in evidence because the reduced application for 11 0 chairs was not made until after the evidence was finished. No experiment in the form of a physical placement of 30 tables and 120 chairs had been carried out, nor had any scaled plan been produced. However Miss Herley (Aromas' co-director) had placed some tables and chairs in a particular area (which I -- 6 of 15 -- 4 saw on inspection) and her conclusion from that was that 30 tables and 120 chairs could comfortably be accommodated. Miss Horley is experienced in the management of coffee shops. Mr. Beard (straying somewhat outside his field of expertise - a fact he candidly admitted) was inclined to doubt that the tables and chairs would fit. The point is an imprecise one because it depends on human behaviour and people's preferences. I have no doubt that 30 tables and 120 chairs could physically be accommodated in the area. I suspect there would not be much space between them but I cannot tell whether that is necessarily a disadvantage. The current move towards outdoor eating and drinking is seen by many to be a desirable imitation of the European urban lifestyle. Anyone who has visited Europe and sat at a table in the sidewalk cafes will know that the patrons seem quite content to be closely crammed together. To find an empty chair can be difficult and to reach it even more so. I doubt that even 120 chairs (with 30 tables) in the quite generous under-roof areas of Aromas would approach that degree of crowding. Ten fewer chairs would mean less crowding. The numbers of tables are, on the evidence, less critical, it appearing that sizes smaller than those currently in use could be used. In practical terms I consider that the answer lies in a passage of evidence given by Miss Horley. She said, in effect, "if the area is so crowded that the patrons don't like it, Aromas will reduce the crowding by reducing the numbers of chairs; we don't make money from uncomfortable patrons". I accept that sensible retailing practices will be employed so that up to 110 -- 7 of 15 -- 5 patrons could be seated with the amount of comfort which experience will show them to demand. If that number reaches the maximum of 110 so much the better for Aromas' business, but I expect it will usually be considerably fewer. There was evidence that patrons using the outdoor area have been in the habit of moving tables and chairs beyond the permitted area (that is, the under-roof area) on the western side so that they intrude into the paved courtyard area. I accept that this has not happened as a result of any policy of Aromas and I further accept that Aromas' policy for the future will be to discourage the practice and to move the tables and chairs back to the permitted area as soon as the patrons who moved them have left. Miss Harley's evidence was that she would consider the feasibility of a line of demarcation on the bricks or some form of physical barrier, although she was obviously reluctant to create anything which would discourage customers. I do not regard this as a very important point. While it seems that Aromas have sometimes been in breach of condition 2 there is no evidence that anyone has been adversely affected. I was not told of complaints by the public, by nearby shop owners or their customers, or by Aromas' landlord. There is no suggestion that the Council has taken action or contemplates doing so. Aromas is aware that the Council knows of past breaches and presumably will learn of any future breaches. Aromas is aware that the Council could take action against it for any future breaches and no doubt will not want that to happen. In the upshot I am satisfied that a reasonable and relevant new condition 3 would read:- -- 8 of 15 -- 6 3. The maximum number of tables to be provided in the outdoor dining area shall not exceed 30. The maximum number of seats provided in the outdoor dining area shall not exceed 110. Carparking The proper calculation of carparking contribution depends upon whether the outdoor area falls within or outside the definition of "Open outdoor eating area" as it is defined in Part A, Division 1 of the Town Planning Scheme for the Shire of Noosa. That division contains "Explanatory Definitions" which are said to contain "definitions which do not relate to purposes indicated in the Table of Zones". On the other hand Part A, Division 2 sets out "Use Definitions" which are described thus: "These definitions are those purposes indicated in the Table of Zones". The grammar of that is regrettable; a definition is not a purpose. Moreover, it is not at all clear to me why there should be two divisions of definitions. The use of two such divisions adds an unnecessary burden to the reader of the planning scheme. Aromas' enclosed premises are clearly a "shop" within the meaning given to that word in Part A, Division 2. Then, Part D, Division 4, Appendix XI ( which deals with carparking) differentiates between the carparking requirements of a shop and the requirement of an "open outdoor eating areas", the latter having a lesser requirement. Hence the enquiry whether the outdoor area in question here falls within that definition, which is (from Part A, Division 1):- "'Open outdoor eating area' an outdoor eating area associated with ... a shop, which is:- (a) uncovered and open to the elements; or -- 9 of 15 -- 7 -------,------------------------------------- ' ' 7 (b) covered with a pergola or open roof structure and does not include walls, which offers limited protection from the elements." Miss Hossack argued that the area in question is an open outdoor eating area because it is a pergola. In doing so I think she confused the Latin derivation of the word "pergola" which means "projecting roof" with the current English meaning given by the Shorter Oxford English Dictionary as "An arbour or covered walk formed of growing plants trained over trellis-work". The area in question is clearly not such a thing. The real question is whether it is "an open roof structure and does not include walls, which offers limited protection from the elements", that is, within the balance of the definition. The area does not have walls on all sides, which I consider is what the definition, in context requires. At best this area has a wall on one side only, the shop exterior wall. Nor was it really argued that the area, even if the western awnings were fully extended and lowered would be offered more than limited protection from the elements. The expression "covered with a pergola or open roof structure and does not include walls, which offers limited protection from the elements" is oddly phrased. A pergola may or may not have walls. Consistent with its S.O.E.D. definition it could be a completely walled trellised walk. No matter how many walls it had it would offer only limited protection from the elements. It is of course unnecessary for me to pursue the construction of the definition insofar as a pergola is concerned. The S.O.E.D. definition of a roof is "the outside upper covering of a house or other building; also the ceiling of a -- 10 of 15 -- 8 room or other covered part of a house, building etc." That is the common understanding of the word. A roof is a covering which, vitally, keeps out the rain. A roof which does not do so is no roof. So the adjective "open" cannot apply to the noun "roof" without destroying the meaning of the noun. It must apply to the noun "structure". The definition can then, sensibly, be read in words like "roofed structure, open in that it is not walled on all sides, which offers limited protection from the elements". The subject area is clearly such an area and in my opinion, being an "open outdoor eating area" ought to be assessed for carparking requirements according to that category in Part D, Division 4. It is common ground that the calculation requires in this case a provision of .58 (rounded up to one) car park or the equivalent money contribution to the Council's trust fund for the provision of carparking in the vicinity. That is not, however the end of the matter because clause 26 of that division provides that:- "26. Notwithstanding any of the provisions contained in this Division the Council may require the construction of a greater or lesser number of parking spaces or dispense with or modify all or any of the requirements contained herein if it considers that such modification or dispensation is justified having regard to the particular circumstances including:- (a) The likelihood of generation of a greater or lesser than normal peak parking demand, including requirements for staff; (b) The location of the site in relation to existing or proposed public car parking areas and other parking areas; (c) The level of pedestrian accessibility; -- 11 of 15 -- 9 {d) The nature of the proposed use or uses, including the hours of operation and anticipated intensity of the use or uses; {e) The existing uses on the site; (f) The levels or depth of the allotment; {g) The convenience and safety of vehicular access; (h) The proposed layout and size of parking spaces; (i) The provisions of any Development Control Plan affecting the site." Mr. Trotter's argument, in the event that I should find the subject area to be an open outdoor eating area, was that I should, standing in the shoes of the Council, impose a greater carparking requirem~nt than the general one. He relied on the evidence of the traffic engineer Mr. Beard. Miss Hossack did not contest my power to vary the requirement but argued that I should not. Mr. Beard's very interesting evidence established the particular difficulty of carparking in the Hastings Street precinct of Noosa Heads and the Council's efforts to deal with the problem. His evidence was that the demand for carparking by Aromas' customers would not differ whether they sat indoors or outdoors and that seems to me to be eminently sensible. There can be, however, no doubt that extra customers at Aromas would add to the general parking demand in the Hastings Street precinct. Some of the extra customers would arrive by car and have to park them. I think very few would have gone to Hastings Street for a visit to Aromas only, but for the length of time they are at Aromas they would be denying parking space to other motorists. On the other hand, a sizeable number of Aromas' -- 12 of 15 -- 1 0 patrons would be drawn from the hotel and unit accommodation in the area and would not have needed a car park at all. Mr. Beard calculated that an extra 120 customers seated outside could produce an actual parking demand of 8 to 10 spaces. He did not urge that as an appropriate condition, taking into account the practicalities of the matter, including the Council's apparent readiness to relax what it considered the strict rules for an occupant like Aromas which, I would think, would be seen to provide an important amenity in Hastings Street. Of course the relevant number now is 11 0 and even that number would, I consider, seldom if ever be reached in practice. And, as I have noted, many of them would not be motorists; many others would be there as part of a multi-purpose trip. I consider that the main consideration is that the actual requirement of the planning scheme is that the area contained in the proposed open outdoor eating area requires the provision of . 58 car spaces. Why should that actual requirement be increased? I think it should only be if the types of circumstances set out in clause 26 (supra) are seen to apply. The only specific requirements of clause 26 which, on Mr. Beard's evidence, could apply are:- " (a) The likelihood of generation of a greater or lesser than normal peak parking demand ... " and "(d) The nature of the proposed use or uses, including the hours of operation and anticipated intensity of the use or uses". Paragraph (a) must, I think, mean greater or lesser than other places in Hastings Street. On this point Mr. Beard said in his report, exhibit 3:- -- 13 of 15 -- 11 "The use proposed will generate few vehicle trips to these premises solely for the purpose of visiting these premises. The overwhelming majority of visits to these premises will be as part of linked trips to other destinations in and around Hastings Street. However, by increasing the duration of such multi-purpose trips, the proposed use unquestionably will increase the demand for parking spaces in the precinct. The rate at which parking demand is generated could not be distinguished from other retail, restaurant and related uses, except to say that the use will be a particularly intense one." He did not materially depart from that in evidence. In the light of that it would be unfair to treat Aromas differently from the norm of premises in Hastings Street which are very largely (as I saw on my inspection) of retail, restaurant and related uses. The norm laid down in the planning scheme calls for a use of the size and type of Aromas, to provide .58 of a car space. That is then rounded up to one space. That rounding-up exercise almost doubles the strict requirement. In current money equivalent terms it means an increase from $6,960 to $12,000. That increase, it seems to me, should adequately cater for any possible demand which peak periods at Aromas might create over and above the demand from other premises, that is, the circumstance set out in clause 26(d). I should mention also that there was no evidence of actual or estimated carparking demand from other outdoor eating areas in the Hastings Street precinct, nor any comparison of that demand with the estimated demand from the expanded Aromas. I consider that the current money equivalent of $12,000 per car space is the appropriate one to apply rather than the $10,000 which pertained when the application to modify was filed. My decision should take into account current money standards even though the increase from $10,000 to $12,000 only occurred on 2 -- 14 of 15 -- 12 June 1994. An analogy can be drawn with compensatory damages, which are assessed as at the date of judgment, not some prior date. This money contribution can be seen as analogous, being money in lieu of (in compensation for the lack of) an actual car park space. I conclude therefore that a reasonable and relevant condition 1 should read:- 111. Payment to the Council of $12,000 in lieu of one off- street carparking space." As this will not require any payment by Aromas but rather actually a repayment of money by the Council to Aromas, no time limit need be added to the condition. Conclusion The application should succeed. -- 15 of 15 --