Don Hodge Group Pty Ltd v Liverpool City Council

Land and Environment Court (NSW)|2004-02-06|Before: Mr P, Ms J

The applicant has not merely not discharged its onus to satisfy me that there is no significant risk of vandalism to the premises opposite but I am satisfied, positively, that there is an unacceptable level of real risk to those premises absent the posting of a permanent security patrol in the park and at the shops. No such offer has been made by the applicant and it is certainly not capable of being inferred from the plan of management. I would therefore refuse the application on the basis of my satisfaction that there is an actual unacceptable level of risk of damage to those premises.

I turn to the issue of economic argument that was raised by Mr Lagoutaris and Ms Matape with respect to the takeaway food premises; by Ms Gale with respect to the TAB branch and by Mr Catalana with respect to both of them. I am required by s 79C(1)(b) of the Act to have regard to the likely impacts of the development including economic impacts in the locality. Without detailing the evidence given by those four local objector witnesses, I am satisfied that there is no proper economic evidence or modelling before the Court and that the economic concerns, absent such evidence, fall entirely within the concept of perceptions as noted by Mr Newport and would not warrant any adverse finding.

I turn, finally, to the non-antisocial noise impacts. On at least five or six occasions a year, as indicated by Mr Smith in his evidence, there would be major events of some four hundred and fifty to five hundred patrons. It was also his evidence that only some twenty five per cent of such patrons would arrive by means of transport other than private cars. Although there was no attempt made to quantify the number of private vehicles that might arise, it would undoubtedly be of some significant number in excess of the number of parking spaces provided on site - therefore off site parking would be required. A portion of this will undoubtedly be in Governor Macquarie Drive, but given the closure of the shops during the relevant periods of the day, for the most part it would be likely that the parking area in front of the shops on the west of Governor Macquarie Drive would be an attractive parking opportunity. In addition, there will be a significant number of patrons walking through Webster Park, although pedestrian dispersal to the south along Governor Macquarie Drive and to the north along Alfred Street would also occur.

It was Mr Brown's evidence that the dogleg of the path to the north of the shopping centre would mean that pedestrians would be hidden from ordinary view from Governor Macquarie Drive, as would anybody walking behind the buildings.

There are two areas of background noise which need to be considered. The first relates to the possible impact of pedestrians walking through Webster Park and in the vicinity of Bungarra Crescent at the rear of Webster Park and, secondly, the likelihood of noise from car doors slamming where such cars are parked in the car park outside the retail premises. It was Mr Cooper's evidence that the appropriate background noise level at Governor Macquarie Drive was 45 dBA at the relevant times and that, at Bungarra Crescent, it was 43 dBA, there being no significant difference in the present circumstances between those two levels.

It was also his evidence that a sleep disturbance event would be caused if there were an exceedance of these background levels by 15 dBA and that therefore it is relevant for me to deal with the possibility of sleep disturbance events being above 59 dBA as being unacceptable in the context of the appropriate guidelines. It was Mr Cooper's evidence that conversation would be in the upper fifties and calling out in the mid-eighties. It was his evidence that a car door slamming, for one car door slammed at an instant, would give a noise impact of 53 dBA at twenty five metres; two car doors would give an impact of 56 dBA at twenty five metres and four car doors would give an impact of 59 dBA at twenty five metres. It was, as he explained, an exponential scale so that sixteen car doors at fifty metres, if all slammed simultaneously, would give a reading of 59 dBA.

There is no evidence on the distance between the bedrooms of the Lagoutaris residences and the car park outside the shops, although it would appear reasonable to infer from the photo montage that is in evidence that it is likely to be less than twenty five metres. There is also a single residence to the south where the bedrooms might possibly be less than twenty five metres, although there is no evidence on this point.

I am satisfied that there is a risk of a combination of regular conversational calling out from patrons walking through Webster Park and from car doors slamming on some occasions in the shopping centre car park. I am not satisfied, however, that these would be such as to warrant refusal, but, equally, I am not satisfied that the applicant has provided sufficient evidence that it would not be a basis to refuse. Therefore, on the precautionary principle (and with the onus being with the applicant), I could not be satisfied that the appropriate test had been met.

My conclusions therefore are as follows. 1. I am satisfied that there is a real and significant risk of antisocial behaviour in the vicinity of the shops and Webster Park so that, absent a permanent security presence there during evenings (including for an appropriate period after the closing of the premises), it is not appropriate to grant consent. I note, as well, that any reliance on neighbour surveillance by the Lagoutarises or others (as postulated by Ms Manion at pages 8 and 9 of her evidence) would require what I would describe as a "borrowing or trading on good will" and is not an appropriate basis for reliance by the applicant. 2. I am not satisfied that the ordinary and otherwise acceptable noise and behaviour of departing patrons would not cause unacceptable disturbance to the Lagoutaris residences with sufficiently low regularity to warrant consent. 3. There is no economic basis for refusal established by any of the objectors who raised that matter.

The orders of the Court therefore are: 1. The appeal is dismissed. 2. Development application DA 570/03 for the erection of a hotel at 37 Governor Macquarie Drive, Chipping Norton, being lot 611 in DP 790412 is determined by the refusal of development consent. 3. The exhibits may be returned.

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.

CITATION : Don Hodge Group Pty Ltd v Liverpool City Council [2004] NSWLEC 197 APPLICANT Don Hodge Group Pty Ltd PARTIES : RESPONDENT Liverpool City Council . FILE NUMBER(S) : 11072 of 2003 CORAM: Moore C Development Application :- Antisocial behaviour KEY ISSUES: Noise Impact on neighbourhood . LEGISLATION CITED: Environmental Planning and Assessment Act 1979 . CASES CITED: Stokeston Projects Pty Limited v Liverpool City Council [2003] NSWLEC 185 ; . DATES OF HEARING: 5 and 6 February 2004 EX TEMPORE 02/09/2004 JUDGMENT DATE :

Ms Matape gave evidence concerning a decision of Lloyd J in Stokeston Projects Pty Limited v Liverpool City Council [2003] NSWLEC 185 that related to premises in Wattle Grove. I indicate that I do not find that decision of any assistance in dealing with the subject site, as that decision was confined entirely to the facts applying to that site. Issues of precedent do not arise.

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