CITY OF MARION SPECIAL GENERAL COUNCIL AGENDA FOR MEETING TO BE HELD ON TUESDAY 21 DECEMBER 2010 COMMENCING AT 7.00PM

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1 CITY OF MARION SPECIAL GENERAL COUNCIL AGENDA FOR MEETING TO BE HELD ON TUESDAY 21 DECEMBER 2010 COMMENCING AT 7.00PM OPENING OF MEETING KAURNA ACKNOWLEDGEMENT We would like to begin by acknowledging the Kaurna people, the traditional custodians of this land. DEPUTATIONS Garry and Colleen DeLaine The Boatshed Café SGC211210D Hans-Christian Marker The Boatshed Café SGC211210D Katie Rhodes The Boatshed Café SGC211210D Peter and Margaret Wilson The Boatshed Café SGC211210D Jahmeil Taylor The Boatshed Café SGC211210D Haidee Bound The Boatshed Café SGC211210D Catherine Campbell The Boatshed Café SGC211210D06A...12 Jan Cocks The Boatshed Café SGC211210D BUSINESS ITEMS Review of Council Decision Boatshed Cafe SGC211210R Restaurant Liquor Licence The Boatshed Cafe SGC211210R CLOSURE Council shall conclude on or before 10.00pm unless there is a specific motion adopted at the meeting to continue beyond that time. 16 December 2010

2 CITY OF MARION SPECIAL GENERAL COUNCIL MEETING 21 December 2010 DEPUTATION RELATING TO: A Leader in the delivery of the Community Vision Originating Officer: Subject: Ref No: Linda Graham, Acting Manager Governance Boatshed Cafe SGC211210D01 File No: CORPORATE OBJECTIVES: CW1.2 Encourage an inclusive community that values diversity and engagement SPEAKER: Garry and Colleen DeLaine ORGANISATION/GROUP REPRESENTED BY SPEAKER: Nil COMMENTS: Garry and Colleen DeLaine has requested a five minute deputation to Council regarding the Boatshed Café.

3 CITY OF MARION SPECIAL GENERAL COUNCIL MEETING 21 December 2010 DEPUTATION RELATING TO: A Leader in the delivery of the Community Vision Originating Officer: Subject: Ref No: Linda Graham, Acting Manager Governance Boatshed Cafe SGC211210D02 File No: CORPORATE OBJECTIVES: CW1.2 Encourage an inclusive community that values diversity and engagement SPEAKER: Mr Hans-Christian Marker ORGANISATION/GROUP REPRESENTED BY SPEAKER: Nil COMMENTS: Mr Hans-Christian Marker has requested a five minute deputation to Council regarding the Boatshed Café.

4 CITY OF MARION SPECIAL GENERAL COUNCIL MEETING 21 December 2010 DEPUTATION RELATING TO: A Leader in the delivery of the Community Vision Originating Officer: Subject: Ref No: Linda Graham, Acting Manager Governance Boatshed Cafe SGC211210D03 File No: CORPORATE OBJECTIVES: CW1.2 Encourage an inclusive community that values diversity and engagement SPEAKER: Ms Katie Rhodes ORGANISATION/GROUP REPRESENTED BY SPEAKER: Nil COMMENTS: Ms Katie Rhodes has requested a five minute deputation to Council regarding the Boatshed Café.

5 CITY OF MARION SPECIAL GENERAL COUNCIL MEETING 21 December 2010 DEPUTATION RELATING TO: A Leader in the delivery of the Community Vision Originating Officer: Subject: Ref No: Linda Graham, Acting Manager Governance Boatshed Cafe SGC211210D04 File No: CORPORATE OBJECTIVES: CW1.2 Encourage an inclusive community that values diversity and engagement SPEAKER: Peter & Margaret Wilson ORGANISATION/GROUP REPRESENTED BY SPEAKER: Nil COMMENTS: Peter & Margaret Wilson have requested a five minute deputation to Council regarding the Boatshed Café.

6 CITY OF MARION SPECIAL GENERAL COUNCIL MEETING 21 December 2010 DEPUTATION RELATING TO: A Leader in the delivery of the Community Vision Originating Officer: Subject: Ref No: Linda Graham, Acting Manager Governance Boatshed Cafe SGC211210D05 File No: CORPORATE OBJECTIVES: CW1.2 Encourage an inclusive community that values diversity and engagement SPEAKER: Ms Jahmeil Taylor ORGANISATION/GROUP REPRESENTED BY SPEAKER: Nil COMMENTS: Ms Jahmeil Taylor has requested a five minute deputation to Council regarding the Boatshed Café.

7 CITY OF MARION SPECIAL GENERAL COUNCIL MEETING 21 December 2010 DEPUTATION RELATING TO: A Leader in the delivery of the Community Vision Originating Officer: Subject: Ref No: Linda Graham, Acting Manager Governance Boatshed Cafe SGC211210D06 File No: CORPORATE OBJECTIVES: CW1.2 Encourage an inclusive community that values diversity and engagement SPEAKER: Ms Haidee Bound ORGANISATION/GROUP REPRESENTED BY SPEAKER: Nil COMMENTS: Ms Haidee Bound has requested a five minute deputation to Council regarding the Boatshed Café.

8 CITY OF MARION SPECIAL GENERAL COUNCIL MEETING 21 December 2010 DEPUTATION RELATING TO: A Leader in the delivery of the Community Vision Originating Officer: Subject: Ref No: Linda Graham, Acting Manager Governance Boatshed Cafe SGC211210D06A File No: CORPORATE OBJECTIVES: CW1.2 Encourage an inclusive community that values diversity and engagement SPEAKER: Ms Catherine Campbell ORGANISATION/GROUP REPRESENTED BY SPEAKER: Nil COMMENTS: Ms Catherine Campbell has requested a five minute deputation to Council regarding the Boatshed Café.

9 CITY OF MARION SPECIAL GENERAL COUNCIL MEETING 21 December 2010 DEPUTATION RELATING TO: A Leader in the delivery of the Community Vision Originating Officer: Subject: Ref No: Linda Graham, Acting Manager Governance Boatshed Cafe SGC211210D07 File No: CORPORATE OBJECTIVES: CW1.2 Encourage an inclusive community that values diversity and engagement SPEAKER: Ms Jan Cocks ORGANISATION/GROUP REPRESENTED BY SPEAKER: Nil COMMENTS: Ms Jan Cocks has requested a five minute deputation to Council regarding the Boatshed Café.

10 CITY OF MARION GENERAL COUNCIL MEETING 21 December 2010 REPORT RELATING TO: An Organisation of Excellence Originating Officer: Director: Subject: Reference No: Linda Graham, Acting Manager Governance Jeff Rittberger, Director Governance Review of Council Decision Boatshed Cafe SGC211210R01 File No: STRATEGIC OBJECTIVES: City of Marion Strategic Plan EG3 Ensure internal structures and systems provide for the review of decision making and implementation of the Strategic Plan. REPORT OBJECTIVE AND EXECUTIVE SUMMARY: On 13 July 2010, Council considered a report concerning an application for a restaurant licence made by Ms Haidee Bound to the Liquor and Gambling Commissioner in respect of premises situated at 1 Heron way, Hallet Cove known as the Boatshed Café. Since Council s resolution on 13 July 2010, a request to review Council s decision has been received. In summary, the request expresses concern that Councillors were not aware that they passed a motion for the Boatshed Café to hold up to 295 patrons with only 25 available car parks. This request has been made under Section 270 of the Local Government Act 1999 and Council s Review of Decisions Procedure. Council s Review of Decisions Procedure requires that a Review Panel be convened to consider such requests for review, and that the outcomes of the review be presented for Council consideration. The purpose of this report is to provide the outcomes of the Review Panel s investigation into the Boatshed Café decision made by the Council on 13 July In summary, the Review Panel is recommending that the Council notes that additional information could have been provided in the original Report (GC130710R03) to Council that may or may not have led to a different decision, and that Council notes that a further report seeking confirmation (or otherwise) of Council s support for Ms Bound s application to the Liquor and Gambling Commissioner is on the Council Agenda for 21 December 2010.

11 RECOMMENDATIONS: That Council: 1. note the effect of the resolution of Council on 13 July 2010 was to support Ms Bound s application to the Liquor and Gambling Commissioner seeking approval for a Restaurant Licence, which would authorise the sale and consumption of alcohol on the premises. 2. note that additional information could have been provided in the original Report to Council and that if that information had been provided a different decision may, or may not, have resulted. 3. resolve that future reports of a similar nature will include details of patron numbers contained within the development approval. 4. note a further Report is on the Council s Agenda for the Special Council Meeting on 21 December 2010 concerning the events that have occurred since Council s original resolution on 13 July 2010 and seeking confirmation (or otherwise) of Council s support for Ms Bound s Restaurant Licence application. DUE DATES: Recommendations /1/2011 BACKGROUND: On 13 July 2010 (reference GC130710R03), it was resolved that: Council advise the applicant and the Office of the Liquor and Gambling Commissioner that; 1. Council supports the Restaurant Licence for a 12 month trial period. 2. Council supports the licensing of the premises from Monday to Sunday between the hours of 9.00am to 10.00pm. 3. Council supports the application for a restaurant licence to include the café, bar, kitchen, office, cool room and proposed deck and verandah on the lower level as well as the community area, toilet facilities and proposed decks on the upper level subject to the following conditions; There shall be no loud speakers placed on or in fascia of the premises, on external balcony or any adjacent outdoor area or footpath (whether temporary or secure). The licensee shall at all times ensure that noise levels are in accord with EPA Guidelines and the Liquor Licensing Regulations. No garbage or refuse, including empty bottles and cans is to be moved from inside the premises to outside storage bins/areas between the hours of 11.00pm and 7.00am the following morning.

12 The licensee shall have displayed at all exits from the premises clearly visible signs with wording that reflects that patrons should leave the premises as quickly and quietly as possible to reduce the disturbance to nearby residents. At any given upstairs function where liquor is being served and which extends beyond 8pm, security shall be provided until half and hour after close time to patrol the car park and surrounds. The background in the original Report provided information about the Development Assessment Commission s (DAC) Development Approval for a café. The DAC was the approval authority as the City of Marion is the owner of the land. The original report attached a copy of the Ms Bound s application to the Liquor and Gambling Commissioner and also copies of the objections from nearby residents. A copy of the original Report to Council on 13 July 2010 is provided as Attachment A. Section 270 of the Local Government Act 1999 provides that a council must establish procedures for the review of decisions of the council, an employee of the council, or other persons acting on the behalf of council. In summary, the City of Marion s Section 270 procedure requires that when a person submits a complaint regarding a decision of Council, a panel is to be convened to review material associated with the decision and to report to Council the outcomes of that review. Note that a review of this nature focuses on whether the processes adopted in reaching the original decision were appropriate. Following the receipt of the request to review Council s decision regarding the Boatshed Café a Review Panel was convened comprising: Manager, Infrastructure Acting Director, Corporate Community Development Acting Manager Governance. All of the above persons are independent to the City of Marion department and staff who prepared the original report for Council consideration. DISCUSSION: Summary of Circumstances 1. The Boatshed Café, situated at 1 Heron Way Hallett Cove, is owned by the City of Marion and leased to Ms Haidee Bound. 2. Ms Bound applied to the Liquor and Gambling Commissioner for a Restaurant Licence which would authorise the sale and consumption of liquor on the premises. 3. The City of Marion, as the Council area in which the Boatshed Cafe is situated, was invited to provide comment to the Liquor and Gambling Commissioner on Ms Bound s application for a restaurant licence. 4. In accordance with the City of Marion Governance Policy Liquor Licence Applications, the City of Marion wrote to seventeen (17) nearby properties (ie properties within 100 metres of the premises) seeking feedback on the application.

13 5. Six (6) responses were received, five (5) against a restaurant licence and one (1) neutral provided the opening hours did not change. 6. A report was presented to Council on 13 July 2010 (reference GC130710R03) and included information about the Development Assessment Commission s (DAC) Development Approval, and in particular, condition 2 and 5 of the approval being: Hours of operation restricted to 6am to 10pm daily Alcohol shall not be sold or provided in any part of the premises unless approved by the City of Marion as lessor. Appendix 1 of the Report included a copy of Ms Bound s application to the Liquor and Gambling Commissioner which stated: Down stairs area will seat people inside, and people outside Upstairs will cater for people. Other appendices to the Report included floor plans/areas that the licence is to apply to, and copies of the objections from local residents. 7. Following consideration of the matters raised in the Report, Council resolved to advise the applicant and the Office of the Liquor and Gambling Commissioner that it supported the Restaurant Licence for a 12 month trial period subject to a number of conditions. Specific Considerations Relevant to the Review of Decision Having regard to, the concerns expressed in the request for review that Councillors were not aware of the number of patrons the Boatshed café might hold and the processes leading to Council s decision on 13 July 2010, the Review Panel determined the following was relevant to the review: Did the Council have all the relevant facts prior to supporting the application for a restaurant licence? In particular, was the Council made aware of the total number of patrons proposed for the Boatshed café when they passed its motion in July 2010? Observations of the Review Panel Observations of the Panel: 1. The Council resolution of 13 July 2010 did not pass a motion for the Boatshed Café to hold up to 295 patrons. 2. The figure of 295 comes from a report prepared by an officer of the Office for the Liquor and Gambling Commissioner in which a reference is made to potential maximum patronage levels of 295 based solely on floor area alone. 3. Unless the Office for the Liquor and Gambling Commissioner specified a lower number, Ms Bound must comply with the terms of the Development Approval. 4. Appendix 1 of the Report to Council on 13 July 2010 included patron numbers that were specified in Ms Bound s Restaurant Licence application being : Down stairs will seat people inside Down stairs will seat people outside Upstairs will cater for people standing or seated

14 5. The Report to Council on 13 July 2010 did not include the patron numbers specified at Item 7.5 in the Development Application being: The kiosk can accommodate people and 12 people seated on the outside decking. An additional (downstairs) decked area (45m2) can accommodate a further 16 people. The upper floor functions area can accommodate guests. 6. The patron numbers included in Appendix 1 of the Report to Council on 13 July 2010 differ from the numbers approved in the Development Application in 2007 in so far as upstairs / downstairs ratios, but the overall total numbers are consistent, as outlined in the table below: Downstairs Upstairs Total Development Application (100/1012/06) approved by DAC in 2007 Appendix 1 (Restaurant Licence Application) of Report to Council 13 July Conclusion of Review Panel In summary, after conducting a review into the processes and the Report associated with Council s decision at its General Meeting on 13 July 201 concerning the Boathouse Café the Review Panel has noted that: 1. The Council resolution of 13 July 2010 did not pass a motion for the Boatshed Café to hold up to 295 patrons. 2. The Report to Council on 13 July 2010 did not include: the patron numbers approved by Development Assessment Commission in 2007, or that the upstairs / downstairs numbers in the Development Assessment Commission approval were different to those included in the Restaurant Licence Application. 3. It is possible that this information could have influenced the Council s decision. It is also possible that this information would not have affected Council s decision. 4. Council should have been provided with this information in order to inform its decisionmaking at the General Meeting of 13 July CONCLUSION The ability to review Council decisions is an important mechanism within the Local Government Act 1999 that allows any person aggrieved by a Council decision a voice. The review of the decisions regarding Boathouse Café was conducted by a Review Panel independent to the work area that prepared the original information for Council consideration. The Panel has found that whilst the original Report contained some information about the development application approved by the Development Assessment Commission, it did not include the patron numbers contained within that application.

15 The Panel therefore recommends that Council note the conclusions of the Review Panel and that a further report has been prepared for Council s consideration on the restaurant licence matter. Attachment A: Original Report to Council (GC130710R03)

16 CITY OF MARION GENERAL COUNCIL MEETING 13 JULY 2010 REPORT RELATING TO: A Leader in the delivery of the Community Vision Originating Officer: Director: Subject: Reference No: Matt Falconer Acting Team Leader Planning Adrian Skull, Director, City Development Liquor Licence The Boatshed Cafe GC130710R03 File No: (1) CORPORATE OBJECTIVE: CW2.3 Improve the built environment by enhancing character, amenity, safety and accessibility. REPORT OBJECTIVE AND EXECUTIVE SUMMARY: This report outlines an application made by Haidee Bound for a restaurant licence in respect of the premises situated at 1 Heron Way, Hallett Cove and known as The Boatshed Cafe (refer to Appendix 1). RECOMMENDATION: That Council advise the applicant and the Office of the Liquor and Gambling Commissioner that; 1. Council supports the Restaurant Licence for a 12 month trial period. 2. Council supports the licensing of the premises from Monday to Sunday between the hours of 9.00am to 10.00pm. 3. Council supports the application for a restaurant licence to include the café, bar, kitchen, office, cool room and proposed deck and verandah on the lower level as well as the community area, toilet facilities and proposed decks on the upper level subject to the following conditions; 1. There shall be no loud speakers placed on or in fascia of the premises, on external balcony or any adjacent outdoor area or footpath.

17 2. The licensee shall at all times ensure that noise levels are in accord with EPA Guidelines and the Liquor Licensing Regulations. 3. No garbage or refuse, including empty bottles and cans is to be moved from inside the premises to outside storage bins/areas between the hours of 11.00pm and 7.00am the following morning. 4. The licensee shall have displayed at all exits from the premises clearly visible signs with wording that reflects that patrons should leave the premises as quickly and quietly as possible to reduce the disturbance to nearby residents. Refer to Appendix 2 for further clarification. BACKGROUND: A Development Application (100/2012/2006) for re-development of the Hallett Cove Surf Life Saving Club incorporating a café (Surfers Café) was granted Development Approval subject to conditions on 29 August Of note are conditions 2 and 5 of that Development Approval which read as follows; Condition 2 That the hours of operation of the premises shall be restricted to the following times: 6.00am to 10.00pm daily. Condition 5 That alcohol shall not be sold or provided in any part of the premises unless approved by the City of Marion as lessor. PUBLIC NOTIFICATION: In accordance with Council s Liquor Licence Policy, the application was notified to 17 nearby properties within 100 metres of the subject land. The public notification period ended at 5:00pm 15 March Six (6) letters of objection were received by Council. One of these objections was received from a resident in Arafura Court whilst the rest of the representations were received from residents in Heron Way. Concerns raised by these residents include noise and behavioural issues, vandalism and use of the community area. Refer to Appendix 3 for further detail. DISCUSSION: Proposal This application seeks approval for a restaurant licence at the Boatshed Café. The application does not include an extension to the trading hours. The application is limited to the sale of liquor between the hours of 6.00am and 10.00pm daily in the areas of the building nominated on the plans as café, bar, kitchen, office, cool room and proposed deck and entrance on the lower level as well as the community area, toilet facilities and proposed decks on the upper level, (refer to Appendix 2).

18 Assessment Council s Liquor Licence Policy suggests that the consumption of liquor on a premises which is in close proximity to residential uses should be restricted to 8am - 11pm Sunday to Thursday and 8am - midnight Friday and Saturday. It is noted that these hours act as a guide only. Given that the Boatshed café opens for business at 9am it is considered appropriate that the consumption of alcohol be limited between the hours of 9am and 10pm daily which is within the guidelines of Council s Liquor Licence Policy. The Boatshed Café is sited on the western side of Heron Way in Hallett Cove. The site is bounded by the Hallett Cove Conservation Park to the north, residential properties to the east, Council reserve to the south and the ocean to the west. The topography of the land is such that the majority of the Boatshed Café sits below street level. The closest residential property is approximately 43 metres away. The outdoor deck areas are approximately 65 metres away from the closest residential property refer to Appendix 4. The outdoor deck areas are intended for outdoor dining whereby patrons will be able to take advantage of the views. The use of outdoor areas reflects the internal liquor licence times. Whilst functions such as birthdays, corporate functions etc will occur within the premises, given the limited hours of operation the sale of liquor is not expected to have a detrimental impact upon the amenity enjoyed by residents. It is anticipated that any noise emissions from patrons coming/leaving the cafe will not create excessive amounts of noise given the separation distance to adjoining residential properties. Furthermore, the time at which people shall be leaving the premises is considered reasonable. While behaviour issues have been raised as a concern by residents, it would seem that the ongoing problems are occurring within the reserve and are not directly a result of the Boatshed Cafés operations. Notwithstanding the above, Council has the right to review any consent given (as the building owner) if the above times create a nuisance to any neighbours and/or complaints are received. A 12 month trial period would allow protection for both residents and Council if for any reason the 10pm close is demonstrated to be unsuitable. However, it is noted that Council as the landlord has the right to review/revoke the proposed operating times if need be at any time, even before the 12 month trial period has ended. Accordingly, it is considered that the proposal should be supported in line with the recommendations forming part of this report. INTERNAL ANALYSIS: Consultation As Council is the Building Owner/landlord of the property, Council s Assets Department has been made aware of the proposal to extend the current operating times. This department had advised approval may be forthcoming, provided: All covenants of the lease between the City of Marion and the Boatshed Cafe. are adhered to at all times;

19 Any conditions imposed by the Office of Liquor and Gambling Commissioner are adhered to at all times; The sale of liquor does not create a nuisance to any neighbours. If any complaints are received the Building Owner reserves the right to review this decision; and While Building Owners consent may be obtained subject to the above, the process of seeking Development Approval is a separate process. EXTERNAL ANALYSIS: Consultation As explained above, Council undertook its own public notification in accordance with Council s Liquor Licence Policy. Notification of the application was provided to 17 nearby properties within 100 metres of the subject land. Six (6) letters of objection were received by Council. (Refer to Appendix III) The concern the residents made in relation to the proposed restaurant licence related to noise and behavioural issues, vandalism and use of the community area. These concerns have been addressed in the body of the report. CONCLUSION: It is considered that the proposal for a restaurant licence will not have a detrimental impact on the properties adjoining the site. This application does not seek to extend the current operating hours. Given the separation distance from residential properties, limited disturbance to residents is anticipated. As the applicant has agreed to a 12 month trial period, Council and the Liquor Licensing Commissioner will have the opportunity to reconsider the situation in one year s time and decide accordingly whether an extension to the restaurant licence should be issued. The fact that Council is the landlord also offers some protection to residents, where Council has the right to review/revoke the proposed operating times if need be at any time, even before the 12 month trial period has ended. For the reasons outlined in the report, it is recommended that the Office of the Liquor and Gambling Commissioner and the applicant be advised that Council supports the Restaurant Licence (for a 12 month period), subject to the following conditions. 1. There shall be no loud speakers placed on or in facia of the premises, on external balcony or any adjacent outdoor area or footpath. 2. The licensee shall at all times ensure that noise levels are in accord with EPA Guidelines and the Liquor Licensing Regulations. 3. No garbage or refuse, including empty bottles and cans is to be moved from inside the premises to outside storage bins/areas between the hours of 11.00pm and 7.00am the following morning.

20 4. The licensee shall have displayed at all exits from the premises clearly visible signs with wording that reflects that patrons should leave the premises as quickly and quietly as possible to reduce the disturbance to nearby residents. Appendix 1 Appendix 2 Appendix 3 Appendix 4 Notice of application Floor Plan/Areas licence is to apply to Copies of objections Locality plan

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33 CITY OF MARION GENERAL COUNCIL MEETING 21 DECEMBER 2010 REPORT RELATING TO: A Leader in the delivery of the Community Vision Originating Officer: Director: Subject: Reference No: Steve Hooper Manager Development Services Adrian Skull, Director, City Development Restaurant Liquor Licence The Boatshed Cafe SGC211210R02 File No: (1) CORPORATE OBJECTIVE: CW2.3 Improve the built environment by enhancing character, amenity, safety and accessibility. REPORT OBJECTIVE AND EXECUTIVE SUMMARY: The purpose of this report is to enable Council to reconsider its position with respect to an application made by Haidee Bound for a restaurant liquor licence in respect of the premises situated at 1 Heron Way, Hallett Cove and known as The Boatshed Cafe, following the findings of a Section 270 review in relation to the original decision of Council. It is noted that the liquor licence has been revised by the applicant since Council first considered the proposal. RECOMMENDATION: That Council advise the applicant and the Office of the Liquor and Gambling Commissioner that; Council supports the revised Restaurant Liquor Licence application that would be subject to the following conditions: 1. The hours of operation of the premises shall be restricted as follows: 1.1 Monday to Thursday 9.00am to 9.30pm 1.2 Friday, Saturday, Sunday and any other day preceding a public holiday 9.00am to 10.00pm;

34 2. The premises shall not be used for functions where amplified music is required for entertainment such as parties and receptions. 3. No amplified live music shall be played in any part of the premises. 4. The restaurant licence is granted subject to a 12 month trial period. 5. There shall be no loud speakers placed on or in the fascia of the premises, on any future external balcony or any adjacent outdoor area of footpath (whether temporary or secure) 6. The licensee shall at all times ensure that noise levels are in accord with EPA Guidelines and the Liquor Licensing Regulations. 7. No garbage or refuse, including empty bottles and cans are to be moved from inside the premises to outside storage bins/areas between the hours of 11.00pm and 7.00am the following morning. 8. The licensee shall have displayed at all exits from the premises clearly visible signs with wording that reflects that patrons should leave the premises as quickly and quietly as possible to reduce the disturbance to nearby residents. 9. At any given function held on the first floor of the premises (Area 4) where liquor is being served and which extends beyond 8.00pm, security shall be provided until half an hour after close time to patrol the car-park and surrounds. 10. Capacities no greater than as follows: 10.1 Ground floor (internal) Area 1 26 persons 10.2 Ground floor (external) Area 2 12 persons 10.3 Outdoor Licensed Area Area 3 16 persons 10.4 First Floor Area 4-80 persons 11. Other than when the Licensee operates under its Section 34(1)(c)(ii), the service of liquor at the premises is to be by table service only and no liquor is to be ordered or supplied to patrons at any bar facility. 12. Any application for transfer of the licence or variation to the licence conditions is to be notified in writing to the Council and the residents for the time being of: a. 1 Arafura Court, Hallett Cove b. 5 Heron Way, Hallett Cove 13. No Bring Your Own (BYO) liquor is to be permitted at functions held on the premises under Section 34(1)(c)(ii). 14. No 18 th or 21 st birthday functions are to be conducted on the first floor of the premises (Area 4). 15. No greater than 3 functions per week which trade beyond 6.00pm will be held on the first floor of the premises (Area 4).

35 BACKGROUND: For members information, the following table clarifies the roles and responsibilities of various decision making authorities with respect to the use of the former Surf Life Savings Club by the Boatshed Café. Development Assessment Commission Council Office of Liquor and Gambling Development Plan Consent Development Approval (including Building Rules Consent) Lease Restaurant Liquor Licence Development Plan Consent & Development Approval Development Application (100/2012/2006) providing for a change in use (Surf Life Saving Club to Kiosk and Functions Centre) within an existing building, and incorporating internal renovations, balcony, kitchen, decking and terrace was granted Development Plan Consent by the Development Assessment Commission in May 2007 and thereafter Development Approval by Council in August The planning assessment and approval was required to be undertaken by the Development Assessment Commission as Council was (and is) the owner of the building. It is noted that the application underwent Category Three public consultation in November 2006 from which five (5) representations from residents in proximity to the proposal were received. The following conditions of the approval imposed by the Development Assessment Commission provided for restrictions on the nature and activity of the use: 2. That the hours of operation shall be restricted to the following times: 6am to 10pm daily; 3. That the premises shall not be used for functions where amplified music is required for entertainment such as parties and receptions. 4. That no amplified live music shall be played in any part of the premises. 5. That alcohol shall not be sold or provided in any part of the premises unless approved by the City of Marion as leasor.

36 There were no conditions imposed by the Development Assessment Commission in relation to patron numbers. However, the applicant s documentation indicated a maximum of 54 patrons at the downstairs level, (including 26 internal, 12 outdoor seating, and 16 on an additional deck) and around patrons in the first floor function area. This results in a total of 179 patrons at capacity. As the applicant s documentation forms part of the proposal and the application was subsequently approved, the 179 patron capacity is legally binding. Following Development Approval being granted, modifications were made to the building to provide for its conversion into a café which has now been operational for well over two years. Alterations and additions upstairs including balcony additions have not proceeded, although this has not prevented community groups meeting upstairs nor the current lessee from holding functions on an ad hoc basis. Proposed decking in front of the café adjacent the existing carparking has also not been constructed. Lease The proposal to lease the Boatshed Café (formerly Surfers Café) went out to public consultation on 26 September No objections were received in relation to the proposed lease terms which identified the proposed use of the facility as a café and function centre. Thereafter, Council resolved at its meeting of 11 September 2007 to enter into an agreement for lease with Surfers Pty Ltd (Mr Ian Crossland) together with an Outdoor Areas Licence. On 11 February 2008 the formal lease agreement with Ian Crossland was signed for a term of seven years commencing on 20 December 2007 expiring on 19 December 2014 ( Lease ). The Lease contains two rights of renewal each for a term of seven years commencing on 20 December 2014 and 20 December 2021 respectively. The Lease permits the lessee to use the premises for the purposes of a café, function centre and gallery. In addition, the parties also entered into an Outdoor Areas Licence Agreement ( Outdoor Areas Licence ). Amongst other things the Outdoor Areas Licence permits the lessee to construct a deck on the outdoor area to provide seating for 16 people. The Outdoor Areas Licence runs concurrently with the Lease. On 1 December 2009 the Lease and Outdoor Areas Licence were assigned by Mr Crossland to the current lessees, Haidee Louise Bound and Carol Ann Bound. Liquor Licence Ms Haidee Bound subsequently lodged a restaurant (liquor) licence to the Office of the Liquor and Gambling Commissioner and was required to undertake her own public consultation including a notice in the Advertiser, a sign on the front door of the premises and letters to nearby residents. Ms Bound s supporting documentation associated with the original proposal, the subject of public consultation, provided for between patrons downstairs and patrons upstairs, or 180 in total. Although the ratios between ground and first floor differ from the development approval, the overall difference in maximum numbers (one patron) is considered inconsequential. It is noted that in practice, the lower number (179) would have applied. No interventions were received by the Office of the Liquor and Gambling Commissioner at the conclusion of the notification process undertaken by Ms Bound. Written notice was also given to the City of Marion, in its capacity as local authority and as lessor under the Lease.

37 In accordance with Council s Liquor Licence Policy, the application was also notified to 17 nearby properties within 100 metres of the subject land by the Council. The public notification period ended at 5:00pm on 15 March Six (6) letters of objection were received by Council. One of these objections was received from a resident in Arafura Court whilst the rest of the representations were received from residents in Heron Way. Concerns raised by these residents include the potential for noise and behavioural issues, vandalism and use of the community area. Refer to Appendix III for further detail. A report which has now been the subject of a Section 270 review was considered by Council at its meeting on 13 July 2010, with Council resolving to advise the Office of Liquor and Gambling of its support of the liquor license subject to conditions. This resolution of Council incorporated a number of conditions and requirements recommended by Council to minimise the likelihood of disturbance to surrounding residents, including a 12 month trial, 10pm closing time and the requirement for a security guard associated with functions later than 8pm. Council advised the Office of the Liquor and Gambling Commissioner (OLGC) of its support of the proposal and notified the residents who had prepared submissions to Council of its position. Prior to the OLGC considering its position on the application in September 2010, twelve (12) late interventions were received from residents in the immediate locality. Council engaged the service of Ben Allen of Wallmans Lawyers to attend the OLGC conciliation on 14 September Mr Allen was instructed to neither oppose nor support the late interventions but instead have the issue of their validity set aside to enable the applicant and residents to negotiate a compromise. Mr Allen who has extensive experience in liquor licensing matters was instructed to assist both parties to reach agreement, if possible. A further two OLGC conciliations have been held at the OLGC offices on 12 October and 22 November 2010, respectively, attended by Ms Haidee Bound and her legal representative, representatives of the residents whom have lodged interventions, and Mr Allen. The two later meetings were also attended by Council s administration. At the second OLGC conciliation on 12 October 2010 a verbal agreement was reached for a compromise proposal between both parties. This agreement was formalised by way of revised plans and a set of conditions forwarded by Ms Bound s legal representative to residents and Council on 5 November These revised plans and conditions now form the restaurant licence application. For details of the revised plans and conditions, refer to Appendix I. Notwithstanding that the revised plans and conditions reflect the outcome of discussions at the 12 October 2010 conciliation the residents advised at the 22 November 2010 conciliation that they do not support the revised plans. The OLGC conciliation has been adjourned to enable Council to finalise the Section 270 review and determine its position with respect to the revised plans. DISCUSSION: Proposal This revised proposal for a restaurant licence at the Boatshed Café incorporates the following key modifications to the proposal:

38 The hours of operation from Monday to Thursday have been reduced from a 10pm closing time to a 9:30pm closing time (but retaining a 10pm closing time on Fridays, Saturdays and Sundays); The first floor area patronage levels have been reduced from a maximum of 100 persons to a maximum of 80 persons; The ground floor patronage level is capped at a maximum of 54 persons (consistent with Development Approval); No more than three functions per week are proposed to occur beyond 6:00pm at night, No 18 th or 21 st birthday functions are to be conducted on the premises; and No upper level balcony or terrace is proposed as part of the current liquor licence proposal. Previous conditions imposed by either the Development Assessment Commission with respect to the Development Plan Consent or Council in its decision on the night of 13 July 2010 are also proposed to remain. These include: No functions where amplified music is required for entertainment and parties; No amplified live music in any part of the premises; No loudspeakers placed on the fascia of the premises, external balcony or adjacent outdoor area or footpath; 12 month trial period, and; A security guard on-site where a function is being held beyond 8:00pm and until half an hour after close to patrol the car-park and surrounds. Assessment The primary concerns raised by residents during the discussions before the OLGC have comprised primarily the hours of operation and associated noise impacts, patron numbers and a lack of car-parking for the facility. An overall loss of amenity, disturbance and disruptive behaviour has also been raised by those residents appearing before the OLGC Commissioner. These issues are addressed in detail below: Hours of Operation (Noise) Council s Liquor Licence Policy suggests that the consumption of liquor on a premises that is in close proximity to residential uses should be restricted to 8am - 11pm Sunday to Thursday and 8am - midnight Friday and Saturday. The proposed hours of operation are within the guidelines of Council s Liquor Licence Policy. The revised proposal provides for a reduction in the hours of operation from Mondays to Thursdays from 10pm closure to a 9.30pm closure. This revision was one of the concessions made by the applicant at the OLGC conciliations. The upper floor deck has also been removed from the liquor licence application. Both these concessions will serve to further manage any likelihood of noise disturbance to surrounding residential properties. Further no live or amplified music associated with a function is permitted as per the recommended conditions. The Boatshed Café is sited on the western side of Heron Way in Hallett Cove. The site is bounded by the Hallett Cove Conservation Park to the north, residential properties to the east, Council reserve to the south and the ocean to the west. The topography of the land is such that the majority of the Boatshed Café sits below street level. The closest residential property is approximately 43 metres away. It is recognised that the subject site may be

39 more conducive to noise impacts than many localities due to the natural amphitheatre of the surrounding landform. For details of the site and locality refer to Appendix II. Whilst functions such as birthdays and corporate functions are proposed to occur within the premises, given the limited hours of operation, the sale of liquor is not expected to have a detrimental impact upon the amenity enjoyed by residents. To this end, the hours of operation are not conducive to large parties and celebrations attended by youth. The applicant has also agreed to not stage any 18 th or 21 st birthdays, notwithstanding the improbability of these types of functions being favourable to a 10pm closing time. It is acknowledged that behaviour issues in the coastal reserve have been an on-going concern to residents for many years, particularly when the site has been vacant or unattended. The establishment of a responsible café/restaurant operator in the vicinity may even serve as a detractor to delinquents and undesirables frequenting the foreshore reserve. In addition, the Lease expressly provides that the lessee will not do or permit to be done on the premises anything which will cause a nuisance to any person in the neighbourhood. The Council therefore has the right to review any consent given (as the landlord) if the above times create a nuisance to any neighbours and/or complaints are received. A 12 month trial period would allow protection for both residents and Council if for any reason the 10pm close is demonstrated to be unsuitable. However, it is noted that Council as the landlord has the right to review/revoke the proposed operating times if need be at any time, even before the 12 month trial period has ended. Car-parking and Patron Numbers It is noted that the Development Approval provided for a maximum total number of patrons of 179 persons comprising a maximum 54 in the downstairs café and 125 in the upstairs function area. Irrespective of whether a liquor license application is granted or not, these numbers are currently permitted, but cannot be exceeded. Although the applicants original proposal was akin to these numbers (180 patrons), the revised application provides for an upper level restriction of 80 persons in addition to the 54 patrons downstairs. Thus if the liquor licence proceeds in the revised form, the total number of patrons allowed will be reduced to 134 patrons. There are currently 27 parking spaces in the council controlled car-park adjacent the subject site. These spaces comfortably satisfy the parking requirements for the downstairs restaurant/café which requires 1 space per 3 seats. It must be acknowledged however, that not all spaces in the car-park will necessarily be free and available to patrons as this carpark is also utilised by users of the Hallett Cove Recreation Park and the foreshore. Also, the car-park cannot provide adequate car-parking for the upstairs function area. It is noted however, the car-parking report associated with the original development application identified extensive on-street car-parking in Heron Way, and Dutchman Drive, 100 additional spaces in total. Accepting that many of these spaces are utilised by visitors or residents in the locality, there is still extensive on-street car-parking in the vicinity of the subject site. It is anticipated that on-street car-parking will be required if the building is to be used and be economic, viable and for the benefit of the community. In any event, the car-parking considerations were undertaken in 2006 and deemed acceptable on that occasion as part of the planning deliberations by the Development Assessment Commission. This application, overlays the approved land-uses with a liquor licence and in doing so, provides for an overall reduction in patron numbers. Whilst it must be acknowledged that a licensed facility may be an overall bigger draw-card than an

40 unlicensed one, the reduction in patron numbers goes some way to maintaining an equilibrium with respect to impacts in surrounding streets. Disturbance/Disruptive Behaviour and loss of residential amenity It is evident from attendance at the OLGC that residents have historically experienced disruptive and at times delinquent behaviour from within the coastal reserve. None of this has been associated with the use of the facility as a café in recent years, more so, the attraction of the coast, particularly during the warmer months from people susceptible to this form of behaviour. It is not anticipated that a restaurant and suitably managed function facility would exacerbate this sort of behaviour. In fact, the isolation of the site during the many years the site was undeveloped and in a state of disrepair may well have heightened disruptive elements. The regular use of the site by patrons of all ages with a primary focus on food may well lessen the likelihood of disruptive behaviour. In any event, this proposal contains a number of conditions and restrictions specifically designed to ensure residential amenity is preserved, most importantly hours of operation, nature of a restaurant licence, need for a security guard and the 12 month trial. If this licence is to be granted, it will have a considerably more onerous set of conditions and restrictions than many typical hotels and licensed facilities already existing in many coastal locations along Metropolitan Adelaide. EXTERNAL ANALYSIS: Consultation As explained above, Council undertook its own public notification in accordance with Council s Liquor Licence Policy. Notification of the application was provided to 17 nearby properties within 100 metres of the subject land. Six (6) letters of objection were received by Council. (Refer to Appendix III) The concern the residents made in relation to the proposed restaurant licence related to noise and behavioural issues, vandalism and use of the community area. These concerns have been addressed in the body of the report. CONCLUSION: It is considered that the revised proposal for a restaurant licence will not have a detrimental impact on the properties adjoining the site. Given the identified conditions, including a 12 month trial period, requirement for a security guard, lowering in patron numbers below those allowed under the Development Approval and restrictions on amplified and live music, minimal disturbance to residents is anticipated. As the applicant has agreed to a 12 month trial period, Council and the Liquor Licensing Commissioner will have the opportunity to reconsider the situation in one year s time and decide accordingly whether an extension to the restaurant licence should be issued. For the reasons outlined in the report, it is recommended that the Office of the Liquor and Gambling Commissioner and the applicant be advised that Council supports the revised Restaurant Licence (for a 12 month period), subject to the conditions outlined in the recommendation.

41 Appendix I Appendix II Appendix III Revised plans and conditions Locality Plan Copies of objections to the original informal public consultation undertaken by Council.

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