We have experienced yet another development dilemma prompted by the recent changes in planning laws. I say yet another, following on from my recent posts, including the questions I have raised around demolition.
Several residents have contacted local Elected Members expressing their concerns over a recent development application. These people definitely see this as another development dilemma. At the same time, our Planners have sought legal advice to ensure we process the application correctly.
This application is seeking an extension of trading hours for the gaming room of the Cremorne Hotel.
Given that this, and other hotels may seek similar approvals, our admin has done two things. They have sought legal advice before proceeding. They have also provided all elected members with a list of FAQs and answers to assist us in advising you what can and can’t happen if a similar application occurs near you.
What is the Applicant asking for in this application?
The hotel has applied for an extension to the operating hours of the gaming lounge only between 8.00 am to 2.00 am the following day, 7 days per week.
How does this differ from their existing consent?
The current hotel operating hours (whole hotel) under their existing approval are:
- Sunday 9 am to 11 pm
- Monday to Wednesday 7 am to 12 am
- Thursday 7 am to 1 am
- Friday and Saturday 7 am to 2 am
Can this application be sent to CAP, rather than staff assessing and deciding on this matter?
Under the PDI Act, certain items are determined by the CAP and they are limited to items such as hearing applications with representations and appeals against the decision of the Assessment Manager. The Assessment Manager therefore must determine all other matters.
Can residents object?
Residents can write to Council to advise of their concerns. There is however no right to formally object to an application that is not publicly notified.
As this application is for a variation to a condition of the existing consent, it does not constitute “development” in itself. A public notification category can not, therefore, be assigned to it. As such, it cannot be notified and therefore residents will not be notified.
Can residents challenge our decision in any part of the planning assessment?
Third parties are not able to appeal a decision in the Courts once it has been determined by the Assessment Manager or CAP. Under the PDI Act, third parties are only entitled to appeal the “nature of development” which would require a judicial review in the Supreme Court.
What options do residents have, other than via Development Assessment, to influence this or remedy their concerns?
Residents can lodge concerns over the behaviour of patrons with SAPOL or Consumer and Business Services. Most complaints have centred around the impact of patron’s poor behaviour once they leave the site late in the evening.
How does this application relate to the Liquor Licence?
This application itself does not impact the Liquor Licence at this time. This is because the applicant has indicated that they do not intend to seek an extension to their current licence. They may choose to do so in the future. This would be determined through the Liquor Licencing process.
How does the Code approach these applications with assessment?
The Planning and Design Code is relatively silent on specific assessment criteria for these types of applications. It is noted that the Corridor Zone (in which this is located) does encourage activation and acknowledges that these types of uses are envisaged.
Can objections on moral grounds be considered when assessing a Development Application?
The behaviour of individuals or ethics of the proposed use are not matters that a planning assessment can consider. Planning applications do not consider the moral grounds such as a hotel gaming room operating near a school.
The Zone determines what uses are appropriate. As mentioned above, the hotel is located in a Zone that encourages uses of this nature.
What is considered in assessing this application?
The extension of the current operating hours of only the operations of the gaming room and whether this is appropriate against the relevant criteria. That will include the expectation of activity and impacts to the amenity of the locality of the extension to the gaming room hours.
No other matter will be considered. This includes the use itself as a hotel, as the hotel is already established.
Can other hotels do the same thing?
Any hotel, or any business, is free to lodge an application seeking the same, or longer, operating hours. This would be assessed against the relevant criteria specified in the Planning and Design Code and if it meets the set criteria, it would be approved.
Can we stop this and say no?
The only reason that this application would be refused is if, upon completion of the assessment, the application did not demonstrate reasonable compliance with the relevant criteria of the Planning and Design Code.
As this is now State Government policy, we have less ability to influence what the criteria can be and it would require a Code Amendment to alter it.
Can the CEO or an Elected Member influence this planning decision?
No! The CEO is not able to direct what decisions are able to be made. Elected Members likewise are not able to influence the outcomes of a planning assessment. Any attempt so to do would constitute a breach of the Code of Conduct for Elected Members.
This is because Council must appoint, under the PDI Act, an Assessment Manager who holds suitable qualifications to make planning decisions and this role must act independently. The PDI Act also obliges all planning decisions to be made by the Assessment Manager, or CAP for that matter, who must act independently of the Council.
Whilst you may not be happy with this advice, I hope it provides clarity over the current application. At least on how the assessment will be approached. Likewise with what options the community have in relation to such matters.
Our Manager Planning & Regulatory has advised he is happy to answer any further questions. Please, therefore, let me know if you have any further questions.
Yet another development dilemma would be Private Certifiers being able to make these assessments.
Thankfully, the information I have received is that such applications will remain with Councils. As they are not development, they cannot be classified as deemed to comply. Private Certifiers therefore cannot process them.
As I have discussed in previous blog posts I would hope this remains the case. The advent of Private certifiers being able to assess such applications would have to be another development dilemma. What I suggest as a lack of empathy with the amenity of a given street is why, as previously canvassed by me.