Habibi v Holroyd City Council

The site and its context 3The site is known as Nos. 387-393 Guildford Road, Guildford and is located on the northern side of the roadway between O'Neill Street and The Esplanade. It is a rectangular shaped property with a frontage of 20.4m to Guildford Road and total site area of 1174.3 square metres. 4Guildford shopping centre is divided by the railway line, which also bisects Guildford Road, so that vehicular access is not available from one side of the centre to the other. The railway station provides pedestrian links across the line. 5The site is located within the western portion of the shopping centre, which would be considered to be the secondary centre. 6Commercial premises are located on either side of the site and a public park to its rear. Residential flat buildings are located further to the east and west of the site and a mixed use, commercial and residential development is located directly opposite fronting Guildford Road. Within the commercial area is a range of retail and office premises, a council community centre, a dwelling house and some shop top housing. 7The site contains a two level building which occupies the front portion of the site. The ground floor contains a building in the south-eastern corner with a driveway adjacent to the site's western boundary providing access from Guildford Road to 24 onsite car parking spaces provided to the rear. The ground floor area is to be the main entry to the reception lounge and also provides office space, a bridal room and foyer area with bar. The first floor contains the reception lounge, toilet facilities, kitchen, coolroom and bar area. The upper level occupies approximately half of the site so that 6 of the parking spaces are below the building and the remainder in the open rear yard. A narrow landscape strip is provided along the side boundaries of the site.

Background and the proposal 8The site has consent - No. 94/193 (the consent) for use as a Palestinian community centre, that consent having been granted by the council in 1994. Conditions of the consent limit the use of the premises in a number of ways. In particular, condition 3 requires the premises to be operated so as not to interfere with the amenity of the area or adjoining occupations, condition 4 limits the use of the building to that of a Palestinian community centre (although no further definition of such a use is provided) only and no other use without consent of the council. Condition 12 prohibits the use of the hall for discos or concerts, condition 13 restricts the hours of operation to 10 a.m. and 10 p.m. Monday to Thursday and 10 a.m. to 12 midnight Friday to Sunday and condition 15 prohibits use of the premises as a licensed club and also prevents the sale of alcohol, the installation of poker machines or any other facilities normally associated with or incidental to a licensed club. Condition 16 prohibits the separate letting or use of the premises by the general public, and requires it to be used only for social and cultural activities of the Palestinian community club. However, that condition does allow private functions of members. Those functions and activities undertaken from the premises allowed by condition 17 are limited to a maximum of 100 people, the consent stating that this limitation reflects the available onsite parking provision. Condition 18 requires 29 onsite parking spaces. 9Despite the terms of the consent, the premises has been leased to the applicant and operated as the Marco Polo Reception Lounge for a period of approximately 5 years. The council has issued orders pursuant to the provisions of s121H of the Environmental Planning and Assessment Act 1979 (the Act) in relation to the unauthorised use of the site. This application seeks consent for the use of the premises as a reception lounge catering for up to 250 people. The plans submitted with the application provide an indicative seating layout for 250 patrons. The council refused the development application on 14 September 2010 and the reasons for refusal form the basis of the contentions in this case. 10The applicant is seeking to hold functions on Friday, Saturday and Sunday evenings, usually starting at 6pm and finishing at midnight, and is also wishing to use the premises for customer enquiries on Monday to Thursday between 10 a.m. and 10 p.m. The estimated function size and frequency of the centre, based on its history, would involve up to 100 guests on a weekly basis, between 100 and 150 guests, also on a weekly basis, between 150 and 200 guests for 15 to 20 times per year and functions catering for between 200 to 250 guests are likely to be held three to four times per year. The proposed number of employees would be two kitchen staff, up to eight wait staff and function management staff dependent on the size of the proposed function. The application however, does not propose any limitation on the size of functions other than to limit the capacity to 250 guests. 11Alterations to the building to enclose the rear fire stairs and construct a smoking area within the carparking area are proposed to address areas of concern to the council and residents. It is also proposed to install a 3m high acoustic fence along the side and rear boundaries, inside the existing fence, to address acoustic issues associated with carpark use. 12The layout of the carpark is to be amended to allow for the provision of two accessible parking spaces. This has the effect of reducing the available onsite parking to 24 spaces. 13The applicant has prepared a Plan of Management (PoM) to address noise, behavioral and operational issues and to reflect any consent conditions that may be imposed to limit guest numbers. 14Whilst not forming part of the application, the applicant advises that the Palestinian Club will still meet at the premises utilising the existing ground floor office to hold a meeting of up to nine persons once per month. Mr Seymour, for the applicant, advises that it is intended to rely on the existing consent to allow that use. Mr Cole, for the council, considers that the consent for the community use should be surrendered.

The planning controls 15The site is zoned 3(a) Business General under Holroyd Local Environmental Plan 1991 (the LEP). The surrounding area to the north-east and north-west of the commercial centre is zoned 2(c) Higher Density Residential with the adjoining park and baby health centre to the north zoned 6(a) Public Open Space. 16The proposed use of the site as a reception lounge is permissible with the consent in the 3(a) Business General Zone. 17The relevant objectives of the 3(a) zone are: (a) to provide and foster the economic well-being of existing and proposed business, (c) to encourage the development and expansion of business activities which will contribute to the economic growth of and employment opportunities within, the City of Holroyd, (d) to ensure that there is adequate provision for car parking facilities in the vicinity of commercial centres, and 18Holroyd Development Control Plan 2007 (the DCP) also applies to the site and relevant provisions are contained in Parts A (Introduction and General Guidelines) and C (Business Development). 19Clause 4.3 of Part A of the DCP requires onsite parking for catering and reception centres to be provided at a rate of one space per three guests plus 1 space per 2 employees. The DCP (clause 4.2.2) requires that where a change of use occurs, the council shall require additional parking be provided if there is a different requirement based on the former and proposed use. Clause 4.2.7 states: Where circumstances warrant, council may seek higher standards. However, if applicants are of the opinion that the full car parking requirement is not necessary in the circumstances, or will not be required when the use of the building commences, council may reduce the requirement for parking or may defer the provision of some of the car parking. In the latter case, council may permit a portion of the car parking area to be used for an alternative purpose or may require the area to be landscaped. 20Applying the DCP parking provisions and allowing for an average of 14 staff (kitchen, wait, management, security, DJ), the parking requirements would be: 100 guests 40 spaces 150 guests 57 spaces 200 guests 74 spaces 250 guests 90 spaces.

21The other relevant provision in Part A relates to waste management and requires consideration of recycling practices and food waste management. 22Part C of the DCP contains special provisions for Business Development and introduces additional objectives. Those relevant to the application are: a) To achieve an efficient layout of retail and other commercial premises with regard to the provision of off-street parking. d) To preserve as far as is practicable the amenity of residents in the surrounding locality of each centre. f) To provide rear loading and unloading facilities, commensurate with the proposed development or redevelopment, in locations where pedestrian and vehicle conflicts are minimised.

The issues 23The contentions in the case are: The suitability of the site for the proposed use; Impacts of the proposed development on the amenity of adjacent residents; Consistency with the objectives of the council's planning controls. Two other contentions relating to fire safety and adequacy of information were addressed during the hearing and are matters that it is agreed between the parties can be addressed as consent conditions if I find the application warrants consent.

The evidence 24The hearing commenced onsite when I heard evidence from a number of objectors and supporters of the proposal. I also viewed the council's community centre in O'Neill Street (corner of Guildford Rd) and a hall on the corner of Kane and Calliope Streets, one block from the site. 25Those who objected to the proposal raised the following issues: Unauthorised use has resulted in adverse amenity impacts from noise, music, patron behaviour and vehicles; Odour from rubbish bins; People congregate on fire stairs; Unsatisfactory operation has led to the need to complain to the council and has never had to do this in the past; Premises is not kept in a tidy manner, litter from cigarette butts; Noise is so bad, can't sleep, people have moved away; Disrupting life in what was a quiet neighbourhood. Those persons who supported the proposal stated: They had not been disturbed by the reception centre but were impacted by the noise and patrons who use the council's community centre and the parking associated with that use as no onsite parking was provided for that venue and it relied on the available on street parking. 26In addition, evidence was provided from the Licensing Officer of the Holroyd Police Command. He advised that the police had received complaints in relation to noise from the premises, one record of anti-social behaviour and, in 2008, there was a record of a malicious damage incident. He was also concerned about alcohol consumption and considers that there is a need to regulate the premises by way of a licence as the proposed BYO model presented problems to the operators, staff of the centre and the police in the event of any need to implement controls. 27In relation to the licensing issue, the applicant agreed during the hearing that it would operate without providing or serving of alcohol and in the event that this was to change, the applicant agreed that it would obtain a liquor licence. This change is addressed in the draft conditions and PoM. 28Expert evidence was heard from: For the applicant Mr M Bridgman - traffic Mr N Koikas - acoustics Mr K Kennedy - town planning For the council Mr C McLaren - traffic Mr G Atkins - acoustics Mr A Robinson - town planning

Traffic 29The traffic experts based their assessment of the impacts of the proposed use on a parking survey commissioned by Mr Bridgman. That survey involved assessment of parking associated with the use of the site on Saturday 8 January 2011 and Friday 14 January 2011. The data provided in the report does not show exact attendances at the site on those days however it does provide a head count of persons leaving the site by vehicle on both days and that number is 159 and 73 respectively. 30Mr Bridgman has based his assessment on the assumption that the site will only be used on Friday, Saturday and Sunday evenings but not every weekend and that attendance will be restricted to under 150 guests for the majority of the year except for 4 nights when between 200-250 persons will attend and for 15-20 nights when between 150 and 200 guests will attend. He considers, based on the survey and applying what he says is a worst case scenario of 2.5 person per vehicle, that the projected carparking demand for functions is Guests Total parking required Overflow on street 100 persons 40 spaces 16 spaces 150 persons 60 spaces 36 spaces 200 persons 80 spaces 56 spaces 250 persons 100 spaces 76 spaces

with an additional 5 spaces required for staff, thereby increasing overflow parking to between 21 and 81 spaces. 31Mr Bridgman advises that there are 118 on street car parking spaces available within a short walk of the site in Guildford Road, O'Neill Street, Kane Street and The Esplanade. Of these, 40 spaces are in front of business premises in Guildford Road and O'Neill Street leaving 78 on street spaces in front of medium density residential dwellings. He considers that the overflow parking impacts of the use of the site as outlined in his review to be acceptable and that it would be an appropriate managerial response to walk patrons to their cars to ensure that residents are not impacted. 32Mr McLaren disagrees and considers that the site should cater for the 85 th percentile parking demand on site and that, based on the survey, this would allow a maximum of 60 persons. He accepts that the current consent allows for 100 patrons and considers that this is due to the fact that the community use differs from that of a reception lounge and he would expect higher car occupancy rates would apply to the former. Mr McLaren considers that the location, frequency and duration of any overflow on street parking from the site is excessive and largely occurs during the more sensitive evening periods beyond normal business hours.

Acoustics 33The acoustic experts agree that the existing fan that is the subject of resident complaint should be replaced and that the proposed 3m high acoustic fence would address sleep disturbance impacts from the carpark use, despite differing approaches in how to assess background noise levels. There was also agreement that the relevant criteria for sleep disturbance would be exceeded from off site activities, in particular that associated with off site parking. 34Mr Koikas relies on the implementation of the PoM to ensure that the operation of the site accords with the criteria and this includes accompanying patrons to their cars and asking them to be considerate of neighbours when leaving the site. He also argues that the proposed consent conditions that stipulate LA max levels are unreasonable as it is an over-design. Mr Atkins disagrees and considers it to be a more practical approach and allows pinpointing noise sources. Further disagreement as to the appropriate noise levels to be incorporated in any consent conditions arose due to Mr Koikas averaging background noise levels over Friday, Saturday and Sunday nights whereas Mr Atkins considers that this is the incorrect approach to take and that the noise should reflect the true levels on each day. I prefer the evidence of Mr Atkins. 35The parties disagree on the hours of use on Sunday evenings, the council's position is that the use should cease at 10pm and the applicant is seeking consent to use the site until 12 midnight. In this regard, I consider that the proximity of the site to properties zoned and used for residential purposes as well as the residential premises within the commercial zone, warrant an earlier finish on Sunday evenings.

Planning issues 36The town planning experts differ on whether the site is suitable for use as a reception lounge. Mr Robinson is concerned that the consequence of insufficient on-site parking to meet the likely demand will result in an adverse impact on the amenity of the surrounding residential areas. Mr Kennedy is of the opinion that implementation of the proposed PoM including staff procedures such as making public announcements requesting people to leave quietly and not congregate near residential properties can effectively minimise noise impacts on nearby residential properties. 37Both experts agree that there is a need to manage the smoking room and that this can be addressed in the PoM, as can the waste management strategy however Mr Robinson is concerned if it is not implemented as proposed there is the potential for adverse noise and odour impacts on nearby properties. 38The parties disagree as to whether the objectives of the 3(a) General Business Zone and council's DCP are met. Mr Cole is of the view that the objectives require the use to be compatible with the commercial locality and that, in his opinion, because the commercial centre is a quiet centre, and one which accommodates residential uses, the use would not be consistent with objective d of the DCP which requires the preservation, as far as is practicable the amenity of residents in the surrounding locality of each centre. Mr Seymour says, that the PoM will ensure that the amenity of residents is preserved as far as is practicable and accordingly, the objective is met. 39With regard to objective d of the LEP, Mr Cole says that the parking demand generated by the proposed use of the site is such that it is totally inadequate whereas Mr Seymour, applying the data provided in Mr Bridgman's evidence, says there is more than adequate provision for car parking in the vicinity of the site and the commercial centre. 40I am satisfied that the use of the site for the purposes of a reception lounge is consistent with the zone objectives, and whilst there may be adequate parking available, its use has the potential to detrimentally impact on the amenity of the adjacent residential area.

The Plan of Management 41The proposed PoM was amended and supplemented during the hearing to address a number of issues raised by the council's experts. Further amendment would be required to clarify that BYO alcohol was not permitted at the site unless a licence is obtained, such changes having been agreed. 42Mr Cole considers the reliance of the applicant on the PoM demonstrates the unsuitability of the proposed use of the site and the extent, active management and detail of the plan is such that it is unlikely to address the appropriate sleep disturbance criteria as evidenced by the acoustic consultants. He also argues that the best way to control the use of the site is through limiting the number of persons who use it. He argues that the evidence provided in relation to carparking impacts shows that the use should not exceed 150 persons and that even that is a 50% increase in the capacity of the approved community centre and is likely to have adverse impacts on the amenity of adjoining residents. For this reason he maintains consent should be refused. 43Mr Seymour considers the PoM to be an appropriate means of ensuring the operation of the site is controlled and cites the questions raised by Brown C in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315. He says the proposed PoM would complement the consent conditions, places reasonable expectations on staff and users of the site, any breaches can be readily identified and addressed, is flexible and overlaps responsibilities to aid compliance, is clear to all persons responsible, can be enforced through consent conditions, incorporates a complaints management procedure and can be updated or changed if deemed appropriate. 44I accept that in these circumstances a PoM is an appropriate means of regulating the proposed use.

Draft conditions 45The council's draft conditions include deferred commencement provisions which require preparation of an emergency response manual, construction of a fire hydrant outlet and alterations to the carpark security gate to meet the requirements of the Building Code of Australia (the BCA) and lighting of the carpark. The applicant agrees to these provisions with the exception of a requirement to maintain a register of guests. The council's planning expert maintained that this was a requirement of Australian Standard 3745 however, I do not agree that this is a mandatory requirement and accordingly it is not a condition that should be imposed as it is onerous and unnecessary. 46The main issues of contention in relation to the conditions are the proposed trial period, the hours of operation, acoustic issues and the requirement for the surrender of the consent for the use of the site as the Palestinian community centre. 47The council seeks a 6 month trial of the reception lounge. The applicant wants this trial period to be for 12 months and to allow the use of the site as a reception lounge for up to 150 persons and that the trial only relate to assessment of the impacts of between 150 and 250 persons. 48The council argues that the applicant's unauthorised use of the site has shown that the use has caused adverse impacts to the amenity of the area and for that reason, it is appropriate that the applicant demonstrate through the trial that the PoM proposed will address those amenity impacts. Mr Cole cites Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 where Preston CJ says: 38 For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore, be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant. 49I agree that, from the evidence available in relation to the amenity impacts of the use of the site as the community club and the more recent use as a reception lounge, the site can, subject to compliance with appropriate conditions, be used for the purpose proposed. In the circumstances of the case, it is appropriate to impose a trial period and, based on the evidence of the traffic experts, that trial period should also be for a maximum of 150 guests. I consider a twelve month trial period would be appropriate and would also ensure that the council and residents can fully assess the impacts of the development over the full range of conditions that will apply. 50Mr Seymour argues that the surrender of the consent would affect the ability of the owners of the land to continue use of the site. He says that the current consent could continue to apply to the land and a new consent for the reception lounge use also apply. To require the surrender of the consent without the owner being a party to the proceedings would, according to Mr Seymour, be contrary to findings in News Limited and Others v Australian Rugby Football League Limited and Others [1996] FCR 410. Mr Cole takes the contrary view and says that the club, as owners of the land, has granted its consent to the applicant to lodge the development application and that the Act provides power, to require surrender of the consent. Without surrender of the consent, Mr Cole says there is no certainty as to how the site is to be used and that the 6 year, exclusive access lease that has been granted to the applicant deems the need for two consents to be unnecessary. I agree that it is appropriate that only one consent should apply to the site in the circumstances and accordingly, the surrender of the consent should be required. 51In addition to what are deemed to be the appropriate acoustic levels, the council is seeking that, following occupation, testing by an appropriately qualified acoustic engineer be undertaken at the applicant's expense to ensure compliance with the acoustic recommendations of Mr Koikas. The applicant seeks deletion of this condition or alternatively, amendment to allow the operator to select the operator after considering three engineers nominated by the council. Mr Seymour says that this is to ensure the costs to his client are not unreasonable. I accept the reasonableness of the amendments sought by the applicant.

Orders 52The Orders of the Court are: (1)The appeal is upheld in part. (2)Development consent, on a deferred commencement basis, is granted to Development Application No 2010/62/1 for use of the property Nos. 387-393 Guildford Road, Guildford as a reception lounge catering for a maximum of 150 guests for a trial period of twelve months subject to the conditions of consent included in Annexure "A" and the Plan of Management included in Annexure "B". (3)The exhibits are returned. Sue Morris 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. Decision last updated: 03 March 2011