GAT & Associates v Marrickville Council

Land and Environment Court (NSW)|2010-10-20

CITATION : GAT & Associates v Marrickville Council [2010] NSWLEC 1321

APPLICANT GAT & Associates PARTIES : RESPONDENT Marrickville Council

KEY ISSUES: DEVELOPMENT APPLICATION :- partial demolition of an existing building and alterations and additions to the remaining building for use as a backpacker's hostel - inconsistent with the zone objectives - prohibited by a draft local environmental plan - whether s 80A(1)(c) available to place condition of approval on land not being land to which the development application relates - unacceptable internal and external amenity impacts

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Marrickville Local Environmental Plan 2001 draft Marrickville Local Environmental Plan 2010

BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 CASES CITED: Cavasinni Constructions Pty Ltd v Fairfield City Council (2010) 173 LGERA 456 Newbury District Council and Secretary of State for the Environment [1981] AC 578 Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315

APPLICANT Mr G Green, solicitor SOLICITORS Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings, barrister SOLICITORS Marrickville Council

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10599 of 2010 GAT & Associates v Marrickville Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Marrickville Council (the council) of Development Application No 200900152 for the partial demolition of an existing building and alterations and additions to the remaining building for use as a backpacker's hostel at 43 - 51 Addison Road Marrickville (the site). 2 The contentions raised by the council can be summarised as: - the proposed development is inconsistent with the zone objectives, - the proposed development is prohibited by a draft local environmental plan, and - the proposed development creates unacceptable internal and external amenity impacts. The site and surrounding area 3 The site comprises five lots described as Lots 13 - 18 in DP 1525. It is a corner lot with a 38.97 m frontage to Addison Road, a 30.64 m frontage to Philpott Street and a 38.97 m frontage to Fahey Lane. The total site area is 1197 sq m. A vacant 2 - storey industrial style building is located on the site with vehicular access from Addison Road and Philpott Street. 4 The site is located amongst other industrial buildings along Addison Road and to the south. The area on the opposite side of Fahey Lane, and further to the north, is generally residential in nature with a range of residential accommodation including refurbished industrial buildings, older single storey cottages and more recent townhouse development. A residential dwelling is located immediately to the west of the site at 53 Addison Rd. 5 Other facilities that provide short-term accommodation in the area are a 27-bed student and backpacker facility at 12 Addison Rd, (Addison Travellers Lodge) approximately 120 m from the site and Newington News that provides 120 beds. Both establishments are owned by the applicant in these proceedings. The later facility was the subject of much evidence at the hearing and is addressed in more detail later in the judgment (see pars 21 to 25). The proposed development 6 The proposed development proposes the partial demolition of existing building. This involves the demolition of some of the perimeter walls and the internal fit out. The proposed alterations and additions will allow the premises to be used as a backpackers hostel and provide for: - 36 dormitory rooms containing a total of 80 beds, - common lounge and kitchen, - communal open space area and BBQ area, - an internal open air car parking area containing 7spaces, and - managers unit and office and associated facilities. 7 A Plan of Management for the site provides for, in part: - a full-time on-site manager, - a complaint monitoring system, - a security guard to be in attendance from 9 p.m. each night until 3 a.m., - internal management procedures, and - check-in and checkout procedures. 8 The application also seeks to impose, as a condition of consent on this application, a requirement seeking compliance with a second Plan of Management for Newington Mews. Relevant planning controls 9 The site is located within the Light Industrial 4 (B) zone under Marrickville Local Environmental Plan 2001 (LEP 2001). A backpackers' hostel is a permissible use with consent within this zone. Clause 9 provides that the objectives of the zone are required to be taken into consideration in determining whether to grant development consent. The objectives of the zone are: (a) to identify areas suitable the light industrial and warehousing activities, and (b) to permit a range of support and ancillary uses. 10 There are no other specific provisions in LEP 2001, or any development control plan, relating to backpackers hostels. The evidence 11 Mr John Coady, a town planner, Mr Gerard Turrisi, also a town planner, Mr Nick Koikas, an acoustical engineer and Mr George Porter, a social planner, provided expert evidence for the applicant. Mr Deborah Laidlaw, a town planner and Dr Judith Stubbs, a social planner, provided expert evidence for the council. Additional resident evidence was provided and is addressed later in the judgement (see par 18). Zone objectives 12 Ms Laidlaw and Mr Coady agree that the proposal is not directly contrary to the objectives of the Light Industrial 4 (B) zone since this would infer inconsistency when the zone actually permits backpacker hostels. Ms Laidlaw, however is of the view that the permissibility in the zone should not be seen as providing positive support for the proposal. 13 Clause 9 provides that the objectives of the zone must be "considered" in determining where to grant development consent. Unlike some other planning instruments, cl 9 does not require a finding of consistency for the application to proceed to a merit assessment. In BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, McClellan CJ relevantly states (at par 117): 117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects ( Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 14 Based on the comments in BGP Properties, some weight must be given to the fact that the proposed use is a permissible use within the zone. It could reasonably be assumed that the draftsman, in making backpacker hostels a permissible use within the zone, anticipated that the use was appropriate in this zone. The permissibility of the use in the zone does not suggest that all backpacker hostels are appropriate, as their suitability rests with the detailed assessment required by s 79C(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). 15 As I understand, this contention relates to the backpacker hostel as a land use rather than the specific application, and on this basis I do not accept that it can be reasonably argued that the land use is inappropriately located given that is permissible within the zone. Draft Marrickville Local Environmental Plan 2010 16 The site is within Zone B5 Business Development under draft Marrickville Local Environmental Plan 2010 (the draft Plan). The proposed development is prohibited in this zone. At the hearing, the Court was advised that the draft Plan had been prepared by the council although a Certificate under s 65 of the EPA Act had not been issued by the Department of Planning for its exhibition. Following the hearing, the council's solicitor (with the agreement of the applicant's solicitor) advised that the s 65 Certificate had been issued to the council however neither party wished to make any further submissions in relation to the existence of the Certificate. 17 As the draft LEP, even with a s 65 Certificate, is still in its infancy and yet to be exhibited, it could not reasonably be said to be imminent or certain and even though the proposed development is prohibited, this would not be determinative and a reason to refuse the application. Amenity impacts The existing environment 18 A number of local residents provided evidence on the site inspection and identified a number of existing concerns that related principally to the activities associated with the occupants of Newington Mews. These activities were identified as: - loud and coarse language, - intoxication, - vandalism, - fighting, - parties by groups of occupants at unreasonable times late at night and early in the morning, and sometimes during the day, - intimidation and verbal abuse by occupants, - the site attracts backpackers from other nearby establishments, - rubbish deposited in the area, including broken glass, - damage to private property, including cars, - display of inappropriate pictures in the windows of dwellings that can be seen from public areas, and - public nudity. 19 These activities resulted in residents making numerous phone calls to the police, contemplating moving from the area on a part-time or permanent basis and avoiding the site, particularly if with children. The consistent concern was that if the proposed development is approved, the occupants will visit the Newington Mews properties for parties and the already unacceptable impacts will be exacerbated. 20 Senior Constable Jacka from the Marrickville Local Area Command also provided evidence. Senior Constable Jacka is currently the Licensing Officer but was previously the Crime Prevention Officer and has been involved in complaints about the occupants of Newington Mews. He states that it is largely a seasonal problem with tourists over the warmer months, generally between October to February. He states that police callouts were from complaints over displays of anti-social behaviour and intoxication, often associated with outdoor parties late at night. There can be 2 to 3 callouts for the same event as the parties tend to continue despite police intervention. While police issue a noise abatement order, they are difficult to enforce against tourists with short-term tenancy agreements. Senior Constable Jacka states that callouts were highest during the summer of 2008/2009 but there has been a reduction in complaints in recent months following a meeting with neighbours, the applicant and police. Newington Mews 21 Newington Mews is a relatively new two-storey residential development located in the block bounded by Newington Road, Fotherington Lane, Cowper Street and Philpott Street and is located some 200 m from the site of the proposed development. The development contains a total of 43 units with the accommodation consisting of townhouse style units containing three bedrooms and two bathrooms with front and rear courtyards. 22 Of the 43 units, 20 units are owned and managed by the applicant. These units are generally located on the Cowper Street and Fotherington Lane frontages although there are some internal units. Dr Stubbs, the councils social planning expert, states that the units are identified as "Sydney Terraces" on the Internet and provide "shared housing for travellers, students and backpackers". The units provide a total of 120 beds (20 units x 2 beds for each of the 3 bedrooms). Dr Stubbs notes that "Sydney Terraces" explicitly targets "backpacker, student or traveller accommodation" and provides for more flexible rental arrangements than those generally offered under lease agreements under that Residential Tenancy Act 1987. Consistent with other backpacker arrangements, accommodation is offered on a "per bed" basis, with share rooms allocated by management to appropriate roommates, and shared facilities for the 6 individuals who reside in each unit. 23 While no development consent exists beyond the development consent for the erection of Newington Mews, it was agreed by the experts, with the exception of Mr Turrisi that, whether or not Newington News is technically "backpacker accommodation", it is aimed at a similar market to that proposed to the subject property that is, travellers, backpackers and others who do not intend to use the accommodation as a long-term, permanent home. Mr Porter adds that, in his understanding Newington News is used, according to the applicant, for travellers who are working and most are resident for a number of months. 24 Mr Turrisi curiously states that, in his understanding, Newington Mews is not being used for temporary accommodation. 25 When Mr Hemmings was asked whether Newington Mews was operating in accordance with it's development consent for the residential development, he replied that this was not accepted by the council however the council has not presently commenced any proceedings against the operator so it must be assumed that the use is operating lawfully.

The council's case 26 The council argues that approval of the proposed development would likely exacerbate the adverse amenity impacts currently experienced by residents in the locality. There are approximately 150 short-term accommodation beds within a 200 m radius of the site, including Addison Travellers Lodge and Newington Mews. The council argue that the attempt by the applicant to control activities on the Newington Mews site, through a Plan of Management by a condition on this application, is without power. 27 The council and the police have received significant objection over the anti-social behaviour of the occupants of Newington Mews. The clustering of like developments, and the movement of backpackers between venues, particularly Newington Mews, through residential areas, creates unacceptable amenity impacts, which have been frequently documented by residents and the police. 28 The inadequate internal amenity of the proposed development will encourage backpackers to leave the premises for other similar venues in the area, with the subsequent adverse amenity impacts. The council rejects the suggestion that a Plan of Management can control the activities on the site because of the number and concentration of backpackers. The council also argues that the acoustical assessment provided by the applicant is flawed and the likely impacts of noise emanating from bedrooms and common areas cannot be controlled sufficiently to avoid unacceptable noise impacts on surrounding properties. The applicant's case 29 The applicant argues that the proposed development will not have an unacceptable impact on the amenity of the area. The applicant currently operates a backpackers hostel near the site at 12 Addison Road with no complaint. Newington Mews is operated by the applicant and the previous instances of anti-social behaviour are acknowledged however it is proposed to address the behaviour at this location through a Plan of Management that can be enforced through the approval of the proposed development. The applicant has conducted late-night surveillance of the area and has not identified the levels of disturbance suggested by the council or the police. 30 The applicant does not accept the council's position that the activities within the proposed development cannot be controlled through a Plan of Management or that the internal amenity of the proposed development is unacceptable and would encourage backpackers to seek other locations for entertainment within the area. Any impact of noise from the proposed building was adequately addressed by the applicant's acoustic expert and would not be a reason to refuse the application.

Can a condition requiring a Plan of Management be imposed on Newington Mews as part of the consideration of this development application? 31 Mr Green, for the applicant, notes that the council raises a contention that the approval of the proposed development will exacerbate pre-existing unacceptable amenity impacts at Newington News. He submits the contention must fall under either s 79C(1)(b) - social impact, s 79C(1)(d) - submissions or s 79C(1)(e) - public interest. In response, Mr Green submits that the applicant is willing to accept a condition of consent, on the subject development, which would require management control of the Sydney Terraces development, within Newington Mews. 32 Mr Green submits that the source of power comes from s 80A of the EPA Act, that states, in part: Imposition of conditions 80A Imposition of conditions (1) Conditions-generally. A condition of development consent may be imposed if: (a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or (b) … (c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development ) carried out on land ( whether or not being land to which the development application relates ), or 33 Mr Green submits that s 80A(1)(c) makes clear that a condition may be imposed modifying development on land which is not land to which the development relates. He relies on the decision of Craig J. in Cavasinni Constructions Pty Ltd v Fairfield City Council (2010) 173 LGERA 456, where His Honour states (at 463): While the test in Newbury have some relevance to a consideration of the exercise of the power in the sub-section, it seems to me that the statutory provision first required analysis and application in the context of the facts found before proceeding to a consideration of those tests. When addressing the validity of a condition, attention must first be given to the statutory provision which is the source of power to impose conditions before turning to a consideration of judicial exegesis of provisions which are not, in terms, those that inform the power being considered 34 His Honour further states: I am of the opinion that condition 3(a) to be valid, must be shown to engage the provisions of section 80A(1)(a) and so far is necessary to address the language of the section, also satisfy the Newbury Tests. 35 Mr Green submits that the proposed condition to impose a Plan of Management on part of Newington Mews addresses the impacts of that development on the locality and also the interaction between that development and the site the subject of the these proceedings. It is a proper planning purpose, relates fairly and reasonably to the development application and is not unreasonable in the circumstances of the case and therefore satisfies the Newbury Tests (Newbury District Council and Secretary of State for the Environment [1981] AC 578). 36 Mr Hemmings, for the council, submits that any condition that attempts to control development at Newington Mews should not be contemplated. The evidence suggests a problem at Newington Mews because of the behaviour of the occupants. Clearly, these problems need to be addressed and while the applicant makes an attempt to address these problems through this application, Mr Hemmings submits that this approach is without power. 37 He submits that ability to control activities at Newington Mews, through this application is not a valid consideration under s 79C(1), nor is the use of s 80A(1)(c) appropriate in the circumstances. Mr Hemmings submits that it is beyond power to modify the consent for Newington Mews, particularly in the absence of any owner's authority. 38 On this matter, I agree with the conclusions of Mr Hemmings. The relevant matters for the consideration of a development application are outlined in s 79C(1). The opportunity to impose a condition on land, that does not relate to land which development location relates is available through s 80A(1)(c) but is not an opportunity that is unfettered. The Newbury Tests is one constrain on the operation of s 80A(1)(c). 39 In this case, and even if Mr Green is correct in the use of s 80A(1)(c) (which I do not accept), I am not satisfied that a condition requiring a Plan of Management for those properties owned by the applicant at Newington Mews can be applied based on a consideration of the Newbury Tests, even if consent was to be granted for the proposed development. 40 In summary, the Newbury Tests require a condition: - to be for a proper planning purpose; and - to fairly and reasonably relate to the development, the subject of the application; and - to not be so unreasonable that a reasonable consent authority would impose a condition. 41 I do not accept that the condition satisfies the second and third Newbury Tests, in that it does not reasonably relate to the proposed development. The only association between the Newington Mews site and the site of the proposed development (apart from the same ownership) is that patrons from the site may attend the Newington Mews site for parties or other activities. 42 While the evidence suggests that this does occur, this association is best random and casual. On this basis, I do not accept that this association could be said to fairly and reasonably relate to the development on the site. It follows that the condition offered by Mr Green would be so unreasonable that a reasonable consent authority would not impose such a condition.

Is the potential migration of backpackers to other sites sufficient reason to refuse the development application? 43 Mr Coady does not see the issue of "migration" of backpackers from the site to Newington Mews as an issue based on his after hours surveillance, Mr Porter states that he has no information on which to base any conclusions and Mr Turrisi relies on the Plan of Management to address any concerns. For the council, Ms Laidlaw states that the lifestyle conflict between residents and backpackers is likely to be exacerbated by migration between the two facilities because of the significant increase in the number of backpackers involved. She further states that there is no ability to prohibit backpackers from travelling from the site to Newington Mews if this application is approved. Dr Stubbs has a similar view and states that the grouping of similar establishments is not a problem per se, except in situations where there are unacceptable amenity impacts arising from the location close to permanent residential dwellings, as occurs in this case. Senior Constable Jacka did not see the movement of backpackers as "a major issue". 44 The contention stated that the "number of similar tourist and visitor accommodation uses, would be very likely to exacerbate the adverse amenity impacts currently being experienced by residents in this locality". A figure of around 150 short- term accommodation beds was identified as being located within a 200 m radius of the site. This is made up of Addison Travellers Lodge (27 beds) and Newington News (120 beds). The proposal will add a further 80 beds to the locality. 45 There was general agreement by the experts and also Senior Comfortable Jacka that Addison Travellers Lodge operates with few, if any impacts on the residential amenity of the locality. This contention focuses on the use of Newington News and importantly, its location in close proximity to properties used for residential purposes. While I have no trouble accepting the largely unchallenged evidence of the residents that the behaviour of the occupants of Newington News creates regular occurrences of unacceptable behaviour, the question why the 20 units in Newington News continue to be used for what appears from the evidence to be a similar operation to a backpackers hospital remained unanswered. As I understand, the only development consent that exists for Newington News is that consent that authorised its construction; presumably on the basis for residential use. 46 It would be a curious situation, in planning terms, if the proposed development was found to be unacceptable because it would exacerbate a situation that exists on a nearby property that potentially operates without development consent. The limited research undertaken by Dr Stubbs must raise some doubt over the operation of Newington News if tested against the only development consent that relates to the property. 47 Clearly, it is not appropriate for the Court, in Class 1 proceedings to make any findings on whether the use is operating as a backpackers hostel so I accept the submission by Mr Hemmings, that it must be assumed that the use is operating lawfully, in the absence of any findings to the contrary. 48 Based on this conclusion, I am not satisfied that the potential movement of backpackers from the site to Newington Mews would be a sufficient reason to refuse the development application. While the council has no specific controls to address the congregation of backpackers hostels in an area, this would not necessarily be a barrier to the consideration of amenity impacts brought about by the grouping of these establishments. 49 I accept that the potential exists for backpackers to move from the site to Newington Mews however it could not be regarded as the only reason for backpackers to use residential areas. Even if there were no other backpackers hostels in the area, the occupants of Newington News would still need to move through residential areas. The occupants of Newington Mews, because of its location, have to move through residential areas to gain access to the property from other locations such as licensed premises in the area, public transport or from other areas, such as King Street Newtown. 50 I agree with Mr Laidlaw and Dr Stubbs that, in this case, the real problem is the location of Newington News in a residential area surrounded by residential dwellings and the outside courtyards that encourage social activities, particularly in warmer months.

Is the Plan of Management adequate to control backpackers on the site? 51 The experts agree that a Plan of Management would have the capacity to resolve on-site issues within the proposed development and its immediate environment however it was more difficult to control behaviour off-site. All the experts agree that the effectiveness of the Plan of Management is dependent on its committed implementation. Mr Laidlaw and Dr Stubbs take the view that the internal amenity is not fatal to the application however this sub optimal internal amenity could have the effect of encouraging backpackers to leave the premises for respite. Ms Laidlaw's evidence is also premised on an acoustic report, which identifies there will be no noise nuisance to neighbours and under what conditions (including management and/or design measures) any noise will be controlled. 52 An acoustic report was prepared by Mr Koikas but was not filed until close to the start of the hearing. Due to the timing of the report, the council did not provide any acoustic evidence although Mr Koikas was cross-examined by Mr Hemmings. Mr Koikas was interposed during the concurrent evidence of Mr Laidlaw, Mr Coady and Mr Turrisi and following his evidence, I did not understand Ms Laidlaw to accept that her precondition of a suitable acoustic report was satisfied. Mr Hemmings also submitted that the acoustic report was inadequate. 53 The adequacy of a Plan of Management is addressed in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 where in considering whether a Plan of Management is appropriate for a particular use and situation, the following questions should be considered: 1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? 2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? 4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements? 6. Is the Management Plan to be enforced as a condition of consent? 7. Does the Management Plan contain complaint management procedures? 8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? 54 The parties disagreed on whether questions 2 and 4 could be satisfied by the proposed Plan of Management. The disagreement centred on two main areas, first the ability to control patrons and the potential noise impacts from activities on the property and second, the noise impacts from people leaving the site, either by leaving after a function or asked to leave by management. The latter concern relating to the potential movement of patrons has been addressed earlier and the concern over eviction was addressed through the amendment of the Plan of Management by providing any evictions to be the following day rather at the time of the event that lead to the eviction. 55 The Plan of Management has been amended on a number of occasions. Prior to the hearing, the original October 2009 document was amended in December 2009. During the hearing a Plan of Management dated October 2010 was tendered (Exhibit F) and a further Plan of Management was also tendered (Exhibit K). The relevant parts of Exhibit K provide for: - a full-time manager to reside on the premises and employed on a full-time basis, - in the absence of the manager, a duty manager is to be appointed, - alcohol is permitted however guests must act in a responsible and considerate manner at all times. - drunken behaviour will result in eviction, - no more than six persons within each dormitory room, - music in the common room is only permitted to be played on the in-house system, - written permission is required to hold a party by a guest and must be accompanied by information including the approximate number of guests and the approximate time in which the party will cease, - no parties are permitted in the dormitory rooms, - parties only permitted on Friday and Saturdays, - only one party is permitted on the premises at any one time, - no music in the common room after the 12 midnight, - the maximum number of people attending the party is limited to 75 in total, - access is available only from the Addison Road frontage, - management have the right to cease any gathering in the common room at any time if the group is of the size that could cause a possible nuisance, and - activities are not to exceed 5dB above background level between 7 a.m. and 12 midnight.

56 Mr Koikas' report identifies noise sources from aircraft noise intrusion, mechanical plant noise and noise emanating from bedrooms and common area when these spaces are occupied for playing music and socialising (Exhibit E). He adopts a background + 5dB(A) standard that provides the following noise goals: - day time - 51 dB(A) intrusive, - evening - 48 dB(A) intrusive, and - night-time - 44 dB(A) amenity. 57 The council's concerns related principally to the last of the noise sources (bedrooms and common area) and a further assessment was prepared by Mr Koikas using different noise sources from the Exhibit E report (Exhibit H). Mr Koikas states that in his assessment, the resultant noise to surrounding residential premises, being across Faye Lane and adjacent to the proposed development at 53-55 Addison Road, will not exceed the nominated noise criteria for the day and evening periods. For the night-time period, the nominated noise criterion would be exceeded and therefore it is necessary that music would need to cease at midnight when played outdoors. Further, all windows must be kept close when playing music. The other assumptions made by Mr Koikas are: - 75 people occupying the common lounge area with 50 people assumed talking with a raised voice speech level (75 dB(A)), - music being played in the common lounge at 80 dB(A) measured at a distance of 1 m, - 20 people in the BBQ area with half the people assumed talking with raised voice speech levels, - six people in all north facing rooms and assumed all people talking at the same time but with windows closed, and - all air-conditioning units operating simultaneously.

Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 58 Examples of the behaviour of backpackers was provided by residents and while it was not argued that the examples of anti-social behaviour occurred every night, it was clear that they were at such regular intervals that it created unacceptable impacts on the amenity of the surrounding area. Residents did not accept the suggestion that the impacts were limited to the warmer months. In my view, the behaviour was best summarised by Senior Constable Jacka who described backpackers as not bad people but people who are on holidays, wish to have a good time and consequently are oblivious to the impact their partying may have on surrounding properties. It is also relevant that attempts to control unacceptable behaviour by police were ignored on occasions. Senior Constable Jacka stated that he had to make multiple trips to address a single event when earlier directions were ignored. Sanctions, such as noise abatement orders, are also ineffective. There was no evidence to suggest that the behaviour of the occupants of Newington Mews are likely to be so different from other similar establishments that the evidence of the residents and Senior Constable Jacka should be dismissed or given less weight in considering potential amenity impacts. 59 Given the evidence of the residents and Senior Constable Jacka, I am not satisfied that even if directions are given by the full-time manager to control the behaviour of patrons that these directions will necessarily be followed, in all instances. It is difficult to find fault in the evidence of Mr Laidlaw and Dr Stubbs where they state that their principle concern is not necessarily the behaviour of backpackers but the location of the proposed backpacker hostel in relation to existing residential properties. 60 While there was general agreement that a Plan of Management was a positive aspect of the development, it cannot be reasonably concluded that a Plan of Management can address every event that occurs at the premises, particularly late at night. For example, the Plan of Management would not prohibit six patrons talking loudly at 3 a.m. in a single room facing Faye Lane with the window open. If located away from residential properties, this scenario would be of little concern. 61 Given the location of the site near residential properties and combined with the likely desire of the young patrons to maximise their social activities, I do not accept that patrons, will necessarily act in a manner that will restrict or limit their social activities, unfortunately to the detriment of local residents.

Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 62 Even though the council did not provide any acoustical evidence, this does not mean that I must accept the evidence of Mr Koikas. I am not convinced that the night-time noise goal of background + 5 dB(A) is necessarily appropriate in the circumstances. Mr Koikas dismissed any suggestion that the night-time noise goal of inaudibility for licensed premises was relevant in this case because the premises was not a licensed premises. 63 If the aim of the noise goal is to protect the amenity of nearby residential dwellings then I am not satisfied that the more stringent night-time noise goal of inaudibility should be dismissed so quickly given the number of similar characteristics with licensed premises. First, the Plan of Management allows alcohol consumption on the premises. Second, the undisputed evidence from residents and the police was that alcohol was involved in much of the identified anti-social behaviour at Newington Mews. Third, the control of alcohol affected patrons on the premises is totally at the discretion of the full-time manager whereas licensed premises are obliged to apply to the Responsible Service of Alcohol (RSA) principles with consequent sanctions on the licensee for any breaches. Fourth, licensed premises generally have peak times on Friday and Saturday nights allowing some respite during the week. This needs to be compared to the site where there are no such limitations on times for random or spontaneous gatherings that could have potential noise consequences. The requirement in the Plan of Management to obtain permission for a "party" and that a party can only be held on Friday or Saturday nights, in my view, is helpful but is difficult to monitor and does address informal gatherings of patrons and potentially friends, at other times during the week. 64 In my view, it can be reasonably argued that there is a greater need for the more onerous night-time noise goal of inaudibility given the less stringent controls for the consumption of alcohol on the site, compared to licensed premises. 65 Even if Mr Koikas's evidence is accepted in full, I accept that the restrictions in the Plan of Management require absolute compliance to achieve an acceptable outcome however these restrictions, in my view, are excessive, some unrealistic and would require an impractical level of supervision. To address anti-social behaviour and satisfy Mr Koikas's noise goals, the full-time manager will be required to be available 24 hours a day, 7 days a week to: - determine whether any person has consumed excessive amounts of alcohol, - evict those persons who have consumed excessive amounts of alcohol, - ensure there are no more than six persons within each dormitory room, the windows are closed and that any gathering is not a "party", - ensure music in the common room is only played on the in-house system, - determine what is a "party" and ensure that approval is obtained is for the "party", - count the number of guests if it is a "party" and ensure that the number does not exceed 75, - ensure that there is no music in the common room after the 12 midnight, - ensure that access is provided only from Addison Road, - decide whether any gathering in the common room, at any time, should cease if the group is of the size that could cause a possible nuisance, and - ensure that activities do not exceed 5dB above background level between 7 a.m. and 12 midnight, although it was not explained how the manager would ensure compliance with this task. 66 These tasks are directly related to the need to protect the adjoining residential development from unacceptable noise impacts and are largely responsive to the evidence of Mr Koikas, the location of the residential area and the design of the building. The majority of these tasks would be unnecessary at a location away from sensitive land uses or a building design that limits the escape of noise rather than rely on management of likely noise impacts. In my view, it can be reasonably argued that the larger the number, and the more complex the tasks required to provide a satisfactory noise environment, the more difficult it is to achieve compliance. In this case, I have little trouble in finding the tasks are numerous and complex. 67 As an effective and workable Plan of Management is a fundamental requirement for the proposed development and when tested against the matters in Renaldo Plus 3, I am satisfied that the document has some unrealistic and unworkable requirements and would require an impractical level of supervision. 68 I do not accept that the Plan of Management would effectively control noise from the premises and as such the appeal should be dismissed. Orders 69 The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No 200900152 for the partial demolition of existing building and alterations and additions to the remaining building for use as a backpacker's hostel at 43 - 51 Addison Road Marrickville is refused. 3. The exhibits are returned.

      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.

(2010) 173 LGERA 456

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Judgment (18 paragraphs)

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Cases Cited (3)