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					JA Newsome and SA Smith v Hobart City Council and
Video City [2006] TASRMPAT 63 (26 Apr 2006)
File No: 406/05 P                                                                  J 68/2006

30 – 36 New Town Road New Town - Video Shop, extension to trading hours – heritage
                                  discretion

                                           BETWEEN

JA Newsome and SA Smith                                                            Appellants

                                            AND

Hobart City Council and Video City                                               Respondents


This was an appeal against Council’s decision to grant a permit to extend the trading hours of
Video City at 30 – 36 New Town Road New Town

The appeal was heard at Hobart on 21 March 2006

J Balmforth appeared on behalf of the appellants.

R Probert. appeared on behalf of Council

T Ewing appeared on behalf of Video City, second named respondent.

                                       DECISION
1.      This was an appeal against Council’s decision to grant a permit to extend the trading
        hours of Video City at 30 – 36 New Town Road New Town, to allow operation
        between the hours of 9.00 am and midnight, Monday to Sunday inclusive.

2.      Video City operates as a movie hire library, currently trading between the hours of
        9.00 am and 10.00 pm Sunday to Thursday inclusive and between 9.00 am and 12.00
        pm on Friday’s, Saturday’s and each day before a public holiday and each public
        holiday.

3.      The Video City shop was granted a permit by Council on 13 March 2001. The
        permit included a condition restricting the hours of operation to between 9.00 am and
        10.00 pm seven days a week. The decision was appealed and the permit was
        subsequently varied to the above stated operating hours.

4.      Pursuant to an application to extend trading hours, Council granted a permit on 9
        December 2005 allowing the extended trading hours from 9.00 am and midnight,
        Monday to Sunday inclusive. A condition of the permit requires that car park
        lighting be switched on no more than 30 minutes before the opening of the store to
        the public and switched off within 30 minutes of the building being closed to the
        public.

5.      Council’s decision was appealed by Julie Annette Newsome and Sheila Amy Smith
        who did not appear at the hearing but arranged to be represented by Judy Balmforth.
        Ms Balmforth had been granted leave to join as a party to the appeal but subsequently
         withdrew. Ms Balmforth submitted a proof of evidence and gave oral evidence at
         the hearing of the appeal.

6.       Council’s decision is appealed on the grounds that the extended opening hours would
         detrimentally affect residential amenity in terms of noise, car emissions, lighting and
         the potential for groups of noisy intoxicated people to congregate in the car parking
         area.

7.       Ms Balmforth stated that she is a tenant of the appellants’ property at 40a New Town
         Road where she has resided since September 2002. Whilst Ms Balmforth was
         accustomed to traffic noise having previously resided at Bridge Road Richmond and
         in Smith Street Fitzory, her main concern was the impact from cars and people using
         the shop after 10.00 pm on evenings during the week.

8.       It was Ms Balmforth’s evidence that the traffic noise from those using Video City
         was clearly audible inside her flat even with the windows closed. She stated that she
         was subjected to the frequent loud screeching of tyres and the sound of sudden
         braking from near miss scenarios between cars leaving Video City and entering the
         main road. It was Ms Balmforth’s evidence that it was common for car engines to
         be left running whilst a video is dropped into the shop that she has also had to endure
         abusive conversations taking place in the car park.

9.       It was Ms Balmforth’s contention that residents should not be subjected to such
         disturbances after 10.00 pm on weeknights when they are entitled to a greater degree
         of peace and quiet. Disturbances such as those described by Ms Balmforth, are more
         audible and noticeable later in the evening when the noise from regular traffic on
         New Town Road has lessened, Ms Balmforth contended.

10.      Ms Balmforth was also concerned that lighting would not be extinguished in
         accordance with the permit condition. She stated that on occasions the lighting had
         been left on well past the stipulated hours.

11.      Terrence Ewing, a director of Video City gave evidence on behalf of the applicant.
         He said that his company had been approached by five or six people to extend trading
         hours beyond 10.00 pm on weeknights. It was his evidence that he did not expect a
         high level of patronage between 10.00 pm and midnight but that it would offer a
         service to shift workers and persons unable to access the shop before 10.00 pm. Mr
         Ewing stated that when the shop was open during the second week of January 2006,
         the level of patronage after 10.00 pm on weeknights was less than 20 people.

12.      The subject site is located between New Town Road and Clare Street, with frontages
         to both streets. Rowan Probert described the other land uses in the area as including
         the Polish Club and Polish Association to the southern side of the site, a residential
         flat and building to the northern side of the site, residential houses on the western side
         of Clare Street opposite the site and an office and a residential house on the opposite
         side of New Town Road. A site visit by the Tribunal confirmed this evidence.

13.      The application is subject to the provisions of the City of Hobart Planning Scheme
         1982 (the Scheme). The subject site lies within the Commercial and Residential
         zone. The adjoining property to the north, owned by the appellants also falls within
         the Commercial and Residential zone. A zone boundary separating the Commercial
         and Residential zone from the Residential 1 Zone runs up the centre of Clare Street to
         the rear of the site and then along the section of the site’s northern side boundary
         shared with 5 Clare Street such that the subject site adjoins a property that lies within
         the Residential 1 Zone. Another zone boundary runs up the centre of New Town



File No: 406/05 P                              Page 2                                    J68/2006
         Road separating the Commercial and Residential 3 Zone on the eastern side of the
         road.
14.      The existing operation is defined under the Scheme as a “shop” which is a permitted
         use in the Commercial and Residential Zone. No change to the description of the use
         is proposed. The proposed extension to trading hours is an alteration to the use by
         extending the closing time from 10.00 pm to midnight, Sunday to Thursday.

15.      Mr Probert submitted that it is relevant that the subject site lies within an area
         containing a mixture of uses and is located next to a busy main road.
         Reference was made to the Tribunal’s earlier decision (J81/2001) where it was stated
         at paragraph 10 “While the existence of a diminished amenity in the area does not
         mean that amenity is not significant, the nature of that amenity here reflects the mixed
         zoning and is a factor to be taken into account in accessing the extent of the
         significance of the operations of the video shop.”

16.      It was Mr Probert’s submission that the number of additional patrons expected
         between 10.00 pm and midnight is unlikely to be significant. Given the reduced
         volume of traffic on New Town Road at this hour, it is not anticipated he said that
         there would be additional traffic noise generated by hasty exits from the subject site.

17.      Whilst the use is permitted in the subject zone, this application gives rise to a
         discretionary consideration as the subject site lies adjacent to the listed property at 38
         - 40 New Town Road.

18.      Clause F.5.1(i) of the Scheme states “The Council has a discretion to refuse or permit
         any proposed use or development; - (i) within or adjacent to a place listed on the
         Heritage Register”.

19.      Clause 2.3.2 requires that consideration be given to the Scheme principles, the desired
         future character of the precinct, the provisions of any relevant schedule and/or code,
         any valid representation pursuant to Section 57, the objectives of schedule 1 of the
         Act, and the zone objectives.

20.      The objective of the zone is stated as “… to provide for a diversity of commercial and
         professional uses and some important associated residential uses at densities
         responsive to the character of historic areas and buildings and/or adjacent Precincts.”

21.      The proposed change of operating hours relates to an existing approved commercial
         use. There is no specific guidance in the Scheme regarding hours of operation and
         the Tribunal finds that the proposed change of operating hours does not pose a
         conflict with the above stated zone objective.

22.      The Statement of Desired Future Character for Precinct 16B is “Precinct 16B (north
         of Federal Street should continue as a mixture of residential and business use with
         existing buildings converted to flats or office use. Local services and community
         uses will also be appropriate.
         Buildings should be set back from the street to allow a landscaped frontage and to
         preserve the character of existing and historic buildings. New development should
         not exceed two storeys and should be of a scale and design which is sympathetic to
         the existing development”.
         Similarly the Tribunal finds no conflict with respect to the above statement.

23.      Whilst it was contended on behalf of the appellants that the proposed extended
         trading hours would detrimentally impact on residential amenity, the discretion
         invoked by clause F.5.1(i) of the Scheme is with respect to heritage and not amenity.
         There is no evidence before the Tribunal with respect to heritage issues other than Mr


File No: 406/05 P                              Page 3                                    J68/2006
         Probert’s evidence that Council’s Assistant Cultural Heritage Officer had stated “The
         proposal will have no negative impact on heritage values and is considered to comply
         with the heritage provisions of the planning scheme.”

24.      It is a well accepted principle that a discretion to approve or refuse a development
         application can only be exercised for the purpose for which it is conferred and not to
         enable other considerations such as detrimental impact on residential amenity to be
         the basis for a refusal.

25.      This issue was considered by Slicer J in his determination of an appeal from this
         Tribunal. At paragraph 18 of his decision in Exparte Arkless and anor 2003
         TASSC93 Slicer J stated “Each discretion conferred by the Planning Scheme can only
         be exercised for the purpose for which it is conferred. (FAI Insurances Ltd v.
         Winneke (1982) 151 CLR342; Samad v. District Court of NSW (2002) 76ALJR871;
         Royal Botanic Gardens v. South Sydney City Council (2002) 76 ALJR436.
         The LUPA Act does not provide for an all encompassing discretionary exercise
         separate to those provided for in the various planning implements…”

26.      The discretion generated by this application relates to heritage. The appellants
         tendered no evidence regarding the impact of the application on the heritage values of
         their listed property at 38 – 40 New Town Road. The only evidence with respect to
         heritage values was from Council whose Assistant Cultural Heritage Officer had
         stated that the proposal would have no negative impact on heritage values.
         Accordingly there is no basis upon which the Tribunal could refuse the application.

27.      The question remains as to whether their permit should be subject to any additional
         conditions. Mr Probert argued that a condition requiring the midnight closing times
         to be earlier than proposed is likely to be tantamount to refusal of the application.
         The Tribunal agrees.

28.      A view of the site by the Tribunal confirmed the proximity of the video shop to the
         adjacent heritage listed property and the residence at 5 Clare Street and therefore the
         potential for some disturbance to residential amenity as outlined by Ms Balmforth.
         Increasing the height of the solid brick wall between the video shop and the adjacent
         properties may ameliorate the impacts to some extent. However, in the absence of
         any convincing evidence, the Tribunal is unable to justify conditioning the permit in
         these terms.

29.      The Tribunal is satisfied that the proposal does not conflict with any of the relevant
         Scheme provisions, noting that there are no specific provisions regulating hours of
         operation. Accordingly the Tribunal determines that Council’s approval of the
         subject application should be affirmed subject to the stated conditions. The Tribunal
         agrees that the condition regulating the operation of the carpark lighting is appropriate
         and is capable of enforcement by the Council.

30.      The Tribunal will entertain any application for an order for costs in this appeal, if
         made to the Tribunal in writing with supporting submissions within the next fourteen
         days. If appropriate the Tribunal will reconvene to hear any evidence in respect of any
         matter bearing on an order for costs.

31.      In the absence of any such application for an order for costs the order of the Tribunal
         is that each party bear its own costs.

                                       Dated 26 Apr 2006

                             AF Cunningham                               C Nicholson


File No: 406/05 P                             Page 4                                    J68/2006
                    Presiding Member        Member




File No: 406/05 P                  Page 5            J68/2006

				
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