Andrew Thomas V Baulkham Hills Shire Council [2006] NSWLEC 388

APPLICANT Mr C Mc Ewen SC SOLICITORS Gadens Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Pearce, solicitor SOLICITORS Baulkham Hills Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11384 of 2005 Andrew Thomas V Parramatta City Council 10020 of 2006 Andrew Thomas V Baulkham Hills Shire Council

JUDGMENT 1 COMMISSIONER: The appeals relate to alterations and additions to an existing hotel located on the corner of Caroline Chisholm Drive and Junction Road, Winston Hills. Because the site spans the local government areas of Parramatta City Council and Baulkham Hills Shire Council, separate development applications were submitted to each council. After consideration, each council refused their respective development applications. The councils agreed that the appeals should be heard concurrently.

2 The hearing commenced on-site on 24 May 2006 and continued on 25 May 2006. The judgment reflects the findings on the merits given on 26 May 2006. At this time, Directions were given for the filing of amended conditions and an amended Plan of Management that reflected the findings in the judgment

The site and surrounding area 3 The site is Lot 4 in DPP 56588 and has an area of about 16,000 sq m. It is irregular in shape with a southern frontage to Caroline Chisholm Drive and a south-east frontage to Junction Road. The northern boundary is the reservation for the M2 Tollway and its western boundary abuts the Winston Hills shopping village. Vehicular access into the hotel car park is available from Caroline Chisholm Drive and Junction Road.

4 The hotel building is irregular, but roughly rectangular in shape and is sited parallel to and 23 m from Caroline Chisholm Drive. The eastern end of the single-storey building facing Caroline Chisholm Drive contains motel style suites for guests with various cool-rooms and storerooms to the north of the motel suites. The central section of the building contains a gaming room of 180 sq m with 30 machines on the southern side and a public bar of the same size on the northern side. The western section contains a lounge and bistro of 390 sq m. A beer garden, 8.5 m wide, extends along the western and part of the northern wall of the building where it increases to 12 m in width. The beer garden has an area of 510 sq m. There is also a drive-through bottle shop on the northern side of the building towards its eastern end. The hotel has been operating since around 1973.

5 The hotel has residential development on the opposite side of Caroline Chisholm Drive and Junction Road.

The proposal 6 The proposed development consists of five major components: + refurbishment of the interior of the existing building, involving the creation of some additional openings in the outer walls and re-equipping the existing kitchen, + extensions to the existing beer garden to the northern and southern sides of the building; the latter extension consisting of two separate courtyards for smokers + upgrading the beer garden by the erection of five pavilions and pergola-style roofs, + the erection of a wider awning on the northern side of the building and + landscaping.

Relevant planning controls 7 The hotel building falls generally within the Parramatta local government area and a small portion of the north western corner of the building and the larger car park falls within the Baulkham Hills Shire local government area.

Parramatta City Council 8 That part of Lot 4 in the Parramatta Local Government area is zoned General Business 3(A) under the Parramatta Local Environmental Plan 2001. Hotels and car parking are permissible uses in that zone. There are no other relevant requirements.

9 Council's Development Control Plan 2001 applies but does not relate to the issues raised by the council.

Baulkham Hills Shire Council 10 That part of Lot 4 within the Baulkham Hills Shire Council local government area is zoned General Business 3(a) under the Baulkham Hills Local Environmental Plan 2005. Hotels are a permissible use within that zone. There are no other relevant requirements.

11 The council has two development control plans that apply, being DCP 15 - Landscaping and DCP 8 - Business but they do not relate to the issues raised by the council.

The issues Parramatta City Council 12 Parramatta City Council filed a Statement of Issues containing ten issues. The issues relating to the adequacy of the noise assessment (Issues 1, 2 and 3) were not pressed following the council's presentation of its own noise evidence. The inadequacy of the Plan of Management (Issues 4, 5 and 6) was addressed through the submission of an amended Plan of Management, although some of the contents were still at issue and the responses from statutory authorities (Issues 8 and 9) were not pressed following the submission of further information.

13 The remaining issues can be grouped into the following areas:

1. the impact on residences in close proximity to the hotel. 2. matters raised by local residents.

Baulkham Hills Shire Council 14 Baulkham Hills Shire Council filed a Statement of Issues containing three issues. These were:

1. increased noise levels through increased patronage. 2. increased amenity impacts on neighbouring residential properties. 3. matters raised by local residents.

The issues in dispute 15 Cumulatively, the issues in the proceedings are:

1. whether the proposed alterations and additions will create unacceptable noise impacts. 2. whether the proposed alterations and additions will create unacceptable amenity impacts . 16 The issues raised by local residents are addressed as part of the consideration of these issues.

The evidence 17 The parties agreed to the appointment of Mr George Smith as the Court appointed town planning expert. Dr Renzo Tonin provided expert acoustical evidence for Parramatta City Council and Mr Neil Gross provided expert acoustical evidence for the applicant. The Court also heard from the following local residents on-site: + Mr William McPhee of 166 Caroline Chisholm Drive. + Mr Daniel Marotta of 214 Junction Road. + Mr Rowan Titheradg of 7 Bellona Street. + Mrs Millington of 13 Orchid Avenue. + Mr John Gerard of 8 Rombus Street. + Mr Gerard Marshall of 173 Caroline Chisholm Drive. + Mr Bevan Painter of 206 Junction Road. + Ms Annette Bugdayli of 99 Bellona Street. + Mr Barry Morgan of 175 Caroline Chisholm Drive. + Ms Margaret Morgan of 175 Caroline Chisholm Drive. + Ms Danijela Negro of 167 Caroline Chisholm Drive. + Mr Daniel Negro of 167 Caroline Chisholm Drive. + Mr Walter Wood of Peter Parade provided evidence in support of the application. 18 Based on the council officer's report from Parramatta City Council, the principle issues raised by the local residents are: + increase in crime in the area. + increased patronage to the hotel. + the pavilions and shade structures would be visible from the street. + the objectives of LEP 2000 have not been satisfied. + the Statement of Environmental Effects has incorrectly described the locality and the motorway and did not address the EPA Act. + the development application will devalue homes. + the development will endanger the children of neighbouring schools. + the proposed works will increase noise in the area. + extension of trading hours. + the development will result in the downgrading of the suburb. + the proposed development will increase traffic in the area. + the Statement of Environmental Effects fails to address the dividing access road and the associated traffic risks with cars entering Caroline Chisholm Drive.

Noise 19 Dr Tonin and Mr Gross agreed that the appropriate noise criteria were those set by the Liquor Administration Board (the LAB). Their evidence was based on this criteria. Dr Tonin and Mr Gross conferred prior to the hearing and identified two potential areas for noise generation that may impact on adjoining residential dwellings.

Refurbishment of the beer garden 20 The first area involves the refurbishment of the beer garden on the western and part of the northern elevations of the building. The area is currently open with some fixed and some moveable seating. It is proposed to cover the area with spaced pergola-type structures joined by opening pergola roofing. There are five pavilion structures and three pergola roofing areas. For convenience they were referred to as bays, with Bay 1 being the pavilion closest to Caroline Chisholm Drive, Bay 2 being the pergola roofing and Bay 3 being the next pavilion. It was agreed that the area of the beer garden where the remaining pavilions and pergola roofing are to be located were a sufficient distance from roofing Caroline Chisholm Drive to not generate unacceptable noise levels.

21 The agreed position of Dr Tonin and Mr Gross was that if the louvres in the pavilion at Bay 1 were permanently closed and an additional acoustic barrier constructed of sufficient acoustic properties to control noise to the west of Bay 2 and Bay 3 to a height of 2.7 m then the LAB noise criteria would be met for the nearby residential properties. While the details of the proposed acoustic barrier were not available, I accept that this detail be provided as a condition of consent and subject to certification by an acoustic engineer.

Smoking areas 22 The second area of potential noise generation involves the construction of two separate enclosed but unroofed areas off the restaurant and gaming rooms. The purpose of the area is to satisfy the impending changes of the Smoke Free Environment Amendment (Enclosed Places) Regulation. The enclosures provide an area for smokers outside the hotel building. The areas are located on the southern side of the building and occupy part of the car parking area adjoining Caroline Chisholm Drive. The most westerly enclosed area is located off the restaurant area and will operate until midnight in accordance with the LAB licensing conditions for this area. Dr Tonin and Mr Gross agreed that the acoustic measures proposed were satisfactory for this area for the times it will be used.

23 The most easterly enclosed area is located off the gaming area and will operate until 3am in accordance with the LAB licensing conditions for this area. Dr Tonin and Mr Gross agreed that the acoustic measures proposed were satisfactory for this area until midnight, but differed on the time between midnight and 3 am. Dr Tonin accepted that the use of this area would be acceptable if it could be guaranteed that the persons using this area would do so in a reasonable manner. This would involve no excessive noise, good management by hotel staff and no congregation of excessive numbers of patrons.

24 On this particular area, I share the concerns of Dr Tonin. The area is located opposite residential properties in Caroline Chisholm Drive and any unacceptable noise impacts would likely disturb the sleep of residents in these dwellings. I am also mindful of the agreed position with the experts, that this area could operate in an acceptable manner if properly managed.

25 To address any potential problems, I propose to allow the area to be used for a 12 month period, after which time the applicant will be required to lodge a s 96 application with Parramatta City Council to delete the 12 months limit on the use of the area. The onus will be on the applicant to show why the condition should be amended based on a lack of impact on the nearby residential dwellings.

26 Also, both smoking areas should be designed to discourage a concentration of patrons and not being seen as an extension of the licensed areas within the building. Appropriate signage should be placed on the doors to these areas and furniture limited to tall tables with no chairs. These requirements should be part of the Plan of Management, as should the supervision to be provided by the permanent staff member in the gaming room and casual supervision in the area located off the restaurant area.

Other amenity impacts 27 In relation to the overall impacts on the amenity area, the Court heard from a large number of residents on-site and had the benefit of a similarly large number of submissions and statutory declarations. On the basis of the evidence presented by the residents, the existence of the hotel, at times, causes disturbance to the adjoining and nearby residential area. The disturbance on Anzac Day this year was a particular problem according to the local residents. My understanding of the resident's evidence is that the external areas of the hotel, and not the internal areas, are the source of the disturbances. These disturbances take the form of noisy and disruptive behaviour when patrons leave on foot or by vehicle. It is their concern that the alterations and additions will encourage further patrons and this will likely increase the number of disturbances in the area.

28 Mr Smith, in his assessment, undertook a comprehensive review of the complaints from local residents and information available from the police. He expressed a concern that the differences between the two accounts were "unsettling" but concluded that the information from the police contained remarkably few incidents at the hotel when compared to other hotels he has been involved with. He also notes that neither the councils nor the LAB have any recorded complaints about the operation of the hotel. Even accepting this, I acknowledge that incidents may occur that may not be reported.

29 As the hotel will continue to operate, irrespective of whether consent is granted to this application, and considering the proposal does not alter the hours of operation and will not add, to any significant degree, to the licensed area of the hotel, the simple question that the Court must answer is whether the proposed alterations and additions will make the existing situation better or worse. Mr Smith's evidence was that the alterations and additions will likely attract additional patronage to the hotel however there was no evidence on the likely additional numbers. In my view, it is not likely to be significant as there is little increase in the licensed area of the hotel.

30 Overall, I accept that the alterations and additions are likely to have a net benefit for local residents, notwithstanding the likely additional patronage. I have come to this conclusion because of a number of additional conditions that are to be imposed on the development that will help to control the behaviour of patrons at the hotel. These include, a new Plan of Management with specific requirements for security staff, closed circuit television monitoring, barriers in the car park to prevent excessive speed and inappropriate behaviour, monitoring of noise and hours of operation.

31 The Court was advised of the activities at the hotel on Anzac Day 2006 and the need for police to be called to control patrons. This was clearly an acceptable occurrence, however I am not prepared to place any significant weight on this event in the consideration of this application. I do not understand it to be consistent or a typical event at the hotel and it is clearly not in the interest of any party, particularly the hotel operators, for it to occur again.

32 Mr Smith addresses the specific areas of concern identified by local residents in his statement and concludes that they would not support the refusal of the application. I concur with his reasoning and his conclusions.

Conditions Fencing 33 The local residents sought the construction of a fence on the Caroline Chisholm Drive and Junction Road frontage. This was opposed by the applicant. In balancing the advantages and disadvantages of the fence, I agree with the applicant that the fence should not be constructed. The acoustic evidence suggested only a marginal improvement at best in Caroline Chisholm Drive however I am more concerned that it could potentially increase anti-social behaviour as the hotel and car park will be largely hidden from public view.

Landscaping 34 There was also dispute over the proposed landscaping with the council preferring additional canopy trees to complement the lower level planning proposed by the applicant. I accept the council's submission, as it will provide a landscaping regime more consistent with the adjoining residential development. I acknowledge that an approval exists for a similar landscape treatment proposed by the applicant, however, the amendment suggested by the council is, in my view, a clear improvement on the approved plans.

Hours of operation 35 There was dispute over the hours of operation proposed by the councils. At present the hours of operation are controlled only by the LAB requirements with no limitations on any consent granted by the councils. The LAB requirement provides for a 5am opening although the evidence suggests that the hotel is not opened at this time. As I understand the applicant simply wants the flexibility available in the LAB operating hours.

36 Mr Smith suggests that a 7am or 8am opening would be a reasonable time based on the proximity to the residential development. I accept Mr Smith's evidence that 7am would be an appropriate time.

Conflict between councils 37 There was also limited conflict between the councils in their conditions relating to construction hours, noise criteria and the final acoustic report.

38 It would be largely unworkable for there to be inconsistencies between the councils on the same issues, so the construction hours should reflect those set out in the Parramatta City Council conditions as any dwellings likely to be affected would fall within the Parramatta local government area.

39 The noise criteria should reflect the LAB criteria and the final acoustic report should address those criteria and be undertaken within a twelve month period and at a time when patronage levels are likely to be at their maximum. Where any other conditions conflict with the Plan of Management, the conditions are to be amended to reflect the requirements in the Plan of Management.

40 Subject to the filing of amended conditions and an amended Plan of Management that reflected the findings in the judgment, final orders will be issued in Chambers. In the event of any dispute, leave is granted to restore the matter on 48 hours notice.

      G T Brown
      Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.