SAT sides with Como Hotel developer
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Woolworths subsidiary ALH Group has had a win in the State Administrative Tribunal this week over its plans to develop a Dan Murphy's liquor store as part of its Como Hotel redevelopment, following a multi-year saga involving liquor licensing and the City of South Perth.
The SAT ruling follows contention largely over the replacement of an existing BWS bottle shop with a Dan Murphy’s liquor store as part of ALH's revamp of the Como Hotel.
ALH Group, the developer behind the Hyde Park hotel alterations and Busselton’s Ship Inn (among others), was initially granted approval for its Como Hotel proposal in 2015 and given 24 months to substantially commence work, before that approval lapsed in April 2017.
Under the Liquor Control legislation, ALH was required to apply for a variation on the site’s tavern licence, as the Dan Murphy’s component proposed an extension of the existing liquor store footprint; this process is still under way after two and a half years.
As a result, ALH applied for an extension to the 24-month period governing the approval it had been granted by the City of South Perth in 2015, as it could not begin work on site until the Liquor Commission delivered its decision.
The City of South Perth last year opposed the time extension, as did Main Roads, and based on those local authority recommendations the Metro Central Joint Development Assessment Panel ruled against ALH’s extension request in February this year.
The matter was taken to the SAT, which reviewed the grounds for refusal and ruled in favour of ALH, determining that the original 24-month time allowance was wholly inadequate.
Squire Patton Boggs represented ALH, and the law firm’s WA partner Margie Tannock said the decision had created a precedent that broadened the range of considerations to be taken into account when assessing ‘substantial commencement’ time allowances.
“This brings much-needed flexibility and a more sensible approach to the exercise of discretion to extend a lapsed development approval, especially whether other regulatory processes are at play,” she said.
“This is particularly significant where a developer is also awaiting liquor licensing approval, and on this note, His Honour also made significant observations.”
Ms Tannock said one of the key observations Judge David Parry made was in relation to the complex, expensive and lengthy conflict all parties experience in separate planning and liquor approval processes.
“We must be working consultatively and collaboratively with communities and with developers to ensure there is certainty in economic growth and that there is absolute certainty in urban opportunities – which is what this Como Hotel redevelopment offers,” she said.
“ALH bought this site nine years ago and for the last five years it has been the subject of push back by the local authority, simply because of the spectre of Dan Murphy’s as an enlarged bottle shop.
“The dominant issue that the community has, which is the ‘ogre’ Dan Murphy’s, is what it is going to do to rapid alcohol distribution in the area. Well online has arrived - if they want to order bulk that is where they go.
“Quite frankly they have missed the point of what the development is about.”
Ms Tannock said the outcomes for the community were so much better if looked at in a holistic way in terms of creating improved amenity that comes with revamping a tired hotel.
“The City of South Perth introduced an amendment to their planning scheme a week after our client applied for an extension of time to commence,” she said.
“They have now introduced a law which is now being gazetted by the minister which says that a liquor store of a particular floor space is prohibited on that site.
“They initiated a scheme amendment designed to ensure the development could not proceed and from our point of view, it’s appalling.”
The amendment did not apply in the SAT rulings as it was initiated after the proposal was first lodged in 2015.
Ms Tannock said Main Roads were also approached by the City of South Perth to bring forward roadworks to Norton Street, adjacent to the Como Hotel site, whereby cars were cut off from turning a certain direction.
She said during the SAT trial there were neither safety requirements nor a report that supported reason for conducting these works at that time.
“The importance of the tribunal is that it provides clarity and perspective for developers,” Ms Tannock said.
“What I’ve said before to many of my clients is that it’s such a shame we have to get to that - spend the money, time and effort to get to the tribunal to get a very clear view about how the planning act works and what makes sense from a strategic perspective.
“The planning review process, being undertaken by Evan Jones, is trying to unravel this complex planning system so that everyone has better certainty and understanding.
“So that if developers invest their money they can see a return in a useful period of time – not 2.5 years for liquor licence, not five years for a planning approval.
“And that’s really what that planning reform process is about – let’s bring the clarity and consistency of tribunal decision making back into the operational planning decisions for WA and you will get much better investment outcomes.”
Ms Tannock said the decision would hopefully make achieving cohesion between the liquor licensing and planning process a critical focus, not just in planning but the state’s broader economic aspirations in attracting more tourism.
“The tribunal appears to be critical of the sequential process the hospitality industry is required to follow under the Planning and Development Act 2005 and then the Liquor Control Act 1988 when seeking to redevelop licensed premises," she said.
“Developers cannot be criticised for requiring an extension to a lapsed development approval when the liquor licensing process has held up progress of the development.
“If you were able to marry those things (liquor licensing and planning), rather than consistently put more obstacles (in the way) and delay, you’re going to get more people saying; Perth’s a worthwhile destination, we’ll invest money in developing smart strategic neighbourhood bars or hotels etc.
“Surely the alignment of those two processes makes a huge amount of sense in what’s going to make a difference in bringing investment dollars into this state.”