JPR Legal Pty Ltd v Marrickville Council - [2009] NSWLEC 1216 - NSWLEC 2008 case summary — Zoe

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JPR Legal Pty Ltd v Marrickville Council

[2009] NSWLEC 1216

Land and Environment Court (NSW)|2008-12-16|Before: Jagot J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2008-12-16

Before

Jagot J

Source

Original judgment source is linked above.

Judgment (71 paragraphs)

[1]

Background 8 By way of background there have been previous proceedings in this Court with Jagot J dismissing a development application for a hotel at the subject premises in the judgment Waugh Hotel Management Pty Ltd v Marrickville Council [2007] NSWLEC 775.

[2]

9 The applicant states that for the current application there are changed circumstances since the determination of the previous application. The Statement of Evidence of the applicant's social planning consultant includes the following: o The different demographic and socio-economic characteristics of residents of the catchment area and the Marrickville LGA revealed by the 2001 ABS Census data and the 2006 Census data. Land and Environment Court proceedings No. 10263 of 2007 relied upon 2001 Census data... The 2006 Census data is symptomatic of the gentrification of the catchment area of the proposed hotel with the consequence that the social impact potential for the proposed hotel is changed... o The closure of the popular Marrickville RSL which results in the removal of a large licensed premises from the catchment area of the hotel proposed. The closure of the RSL club also results in the removal of approximately 300 electronic gaming machines. The RSL club had a gross floor area of approximately 4288 square metres compared to 550 for the proposed hotel. The RSL was situated approximately 300 metres from the proposed hotel. o The closure of the Marrickville RSL and Anzac Club would significantly reduce the recreational opportunities for residents in the catchment of the proposed hotel. 10 Following the hearing the case was re-opened to allow the applicant to provide evidence of the closure of the Anzac Memorial Club on 22nd of March 2009 and the sale of the premises at auction of the 10th of March 2009. The applicant argued that this would establish the fact that there is a further reduction in liquor outlets in the Marrickville area and there will be a further reduction in the demand for parking spaces in Marrickville.

[5]

Issues 13 An amended statement of contentions was provided and this reads as follows: 1. The proposed development fails to provide sufficient on site car parking to cater for the demand that it will generate and as such will adversely impact on the limited available parking in the locality. (a) Only six (6) on site car parking spaces are proposed to be provided for the hotel. (b) The proposed use is a significant intensification over the current use and does not provide any additional parking to cater for that intensification. (c) There is insufficient on-street parking in the locality to cater for the demand generated by the proposed development and this will adversely impact on the businesses and residents surrounding the site. (d) In Waugh Hotel Management Pty Limited v Marrickville Council [2007] NSWLEC 775 ("the first proceedings"), her Honour Justice Jagot sitting with Commissioner Hoffman found at [99]: "99 I accept Mr Hallam's evidence. I do not consider that the evidence relied on by the applicant provided a sufficient basis to conclude to the contrary either by reference to the Coady survey and related material, the report to the Council which accepted the arguments in the statement of environmental effects or the criticisms of Mr Hallam's approach. Mr Hallam's evidence presented a careful, thorough and reasonable assessment of the parking issues associated with this development in the particular context of the site. The Council submitted that Mr Hallam's evidence provided a ground sufficient to warrant the refusal of the application. I agree. On the evidence, I am satisfied that the development will not provide adequate parking to meet its demand. Parking is already at a premium in this area. There will be a period of overlap during peak shopping hours when the development will materially exacerbate the difficult parking situation in this part of the town centre. Nothing in the development application and accompanying documents (including the plan of management) is capable of mitigating that impact. The development does not involve factors that might, in other cases, warrant lesser weight being given to parking issues (such as provision of a facility not presently available within the town centre). Managing parking availability may readily be inferred to be important to the functioning of the Marrickville town centre. The objectives of DCP 19 support this inference. I am satisfied the development application should be refused consent on this ground. " (e) The development application in these proceedings is identical to the development application in the first proceedings. (f) The only materially different circumstance between the current development application and the development application finally determined in the first proceedings is that the Marrickville RSL has since closed. (g) The only issue arising in these proceedings in relation to parking is whether in light of the closure of the Marrickville RSL the development can now provide adequate parking to meet its demand. 2. The proposed development will result in an unacceptable social impact on the population. Particulars: (a) To grant consent to the development would exacerbate the alcohol related problems that exist in the locality. (b) The proposed development would result in another alcohol facility in the Marrickville Town Centre and is an inappropriate concentration of such uses. (c) The Applicant has failed to provide any real analysis of the potential social impacts of the proposed development. (d) In the first proceedings her Honour also found at [103]: "103 Separate from Dr Stubbs' analysis, there is a real issue about adopting an approach to development applications for land uses such as hotels that could lead to communities being denied access to facilities likely to function for the majority of people as a recreational resource. Ms Saltman made this important point in the conclusion of her report. However, consistent with the report overall this important issue was not adequately explored by Ms Saltman and her evidence did not provide any meaningful basis upon which this issue could be factored into the assessment under s 79C(1)(b) of the EPA Act. In consequence, the debate in this case about the risk of alcohol related harm by increasing the density of licensed premises in the centre of a particularly disadvantaged community weighed overwhelmingly in favour of the detailed analysis Dr Stubbs presented. Accordingly, on the rather one sided evidence available in this case the risks of alcohol related harm from increasing the density of licensed premises in this highly disadvantaged community would be a further independent ground for refusal of this application. (e) The only issue arising in these proceedings in relation to the risk of alcohol related harm from increasing the density of licensed premises in this highly disadvantaged community is whether in light of the closure of the Marrickville RSL this would no longer be an independent ground for refusing the development application.

[17]

Parking 26 In response to the council's first issue on insufficient on site car parking to cater for the demand Mr McLaren's statement includes the following: In responding to the matter of parking demand and impact on the local precinct, it is relevant to state that the key difference between the traffic engineers (Mr Hallam single parties expert and Mr Coady for the applicant) in the first proceedings was in relation to the patron car-parking demand associated with the proposed hotel before 5 pm on a weekday. Weekend and evening parking demand and the ability in precinct to absorb same was not in dispute with both traffic engineers involved in the first proceedings agreeing that the precinct could accommodate the proposed development at these times. I have reviewed that component of the likely impact and concur with that finding. Further it was also agreed between the two traffic engineers involved in the first proceedings that six staff spaces can be provided on the roof level of the proposed development and that supply would meet likely staff parking demand. I have also reviewed that component and concur with that finding.... Bar sales influence The influence of bar sales is typically used to check the dates of patronage and parking surveys at licensed premises. Mr Hallam forecasted a peak patronage of 60 persons at 4.30 pm for the proposed hotel whilst the Coady report lodged with the original development application forecasted a peak patronage of less than 40 patrons during the afternoon. I have reviewed the report of Mr Hallam and Mr Coady's original report and while I am not fully persuaded that the proposed hotel will operate in terms of patronage on a pro rata basis I have adopted Mr Hallam's forecast patronage of 60 patrons as a worst case condition. In relation to the car driver percentage it is relevant that the interview surveys conducted by Mr Coady are more extensive than the single survey conducted by Mr Hallam... I have much less confidence in the car driver percentage derived from the Hallam's survey compared to that derived from the more extensive Coady consulting survey method. This leaves me to conclude that the appropriate or likely car drive percentage in the afternoon prior to 5 pm is likely to be 15-18% for the proposed hotel so I will adopt 18%. Discount factor for local employees I adopt 15% discount for patrons who park nearby in private car parks. Discount existing shoe shop I concur with Mr Hallam's assessment that the existing parking demand for patrons of the shoe shop equates to seven spaces given that the application of council's DCP 19 to the existing shop area requires 13 spaces of which a staff component of six spaces is provided on the roof. Spare precinct parking supply In relation to the ability of the surrounding precinct to accommodate in peak day particularly the critical Friday afternoon parking demand associated with the proposed hotel it is instructive to first determine what that change in parking by patrons will be by the following calculations: 1. Peak patron parking demand for the proposed hotel during the weekday equates to 9.2 cars say 10. 2. Existing shoe shop patron parking demand 7 cars. 3. Additional patron parking demand equates to 3 cars. The recent 2008 parking surveys undertaken for the precinct surrounding the commercial centre of Marrickville indicate that there is sufficient spare parking to accommodate this relatively low change in parking demand during the critical weekday afternoon period. The areas where spare parking exists are within a reasonable walking distance of 400 m from the site on a Friday afternoon. I note Mr Hallam's previous concluding statement as follows which I accept the Court would expect a response from myself "hence the proposed change of use from a shop to a hotel at a site that already has inadequate parking in an area where there is a high demand during the day is an inappropriate intensification of use of the premises". I do not concur with the concluding statement of Mr Hallam above given that the change in parking demand is very low, is able to be accommodated with minimum impact and would not be noticeable. Conclusion In conclusion the proposed development is supportable on parking grounds particularly in view of increased parking availability during weekday afternoon periods due to the closure of the Marrickville RSL Club. It is expected that any redevelopment of the Marrickville RSL site will need to provide its parking demand on site or subject to a merit based assessment of its impacts on the local precinct similar to the subject appeal. 27 Mr Coady in the Statement of Environmental Effects states that the application yields a parking requirement for 61 under DCP 19 and he says "that a requirement of this magnitude is clearly excessive for the proposed hotel." He states while the RTA guidelines specify typical parking demand characteristics for a wide range of land uses they do not specify a particular requirement for hotels noting instead: the RTA's research on parking has found no strong relationship between peak car parking accumulation and floor area, or function room capacity at 10 hotel site surveyed. The range in parking demand rates resulting from early research was broad and difficult to generalise. This variation was due to factors such as the location and and age of the building, the internal design, the provision of live music and other facilities. Since the surveys were undertaken, behavioural changes have occurred in the use of hotels due to factors such as the introduction of random breath testing. These changes have generally serve to reduce parking demand rates. It is recommended that proposed hotel developments be compared to similar existing developments, noting the existing supply of and demand for parking in the area and of the peak parking periods of individual facilities within the hotel. 28 Mr Coady provides a table to show the areas in the Royal Exchange Hotel and the Marrickville Tavern compared to the proposed hotel. Royal Exchange Hotel Marrickville Tavern Proposed Hotel Main Bar 80 sq m 140 sq m 185 sq m TAB 40 sq m 80 sq m 50 sq m Gaming Room 150 sq m 80 sq m 90 sq m Outdoor Bar 120 sq m - 42 sq m (Cactus Bar) Bistro/Restaurant 65 sq m - - Overflow dining area 60 sq m - - Bottle Shop 40 sq m - - Total 555 sq m 300 sq m 360 sq m

[18]

29 Mr Coady states: that the Royal Exchange hotel is significantly different to the proposed hotel in that it has a substantially greater public floor area with a focus on dining and a large bistro with a well equipped kitchen. In contrast, the proposed hotel does not have a defined dining area and is served by a small picture only. Also the Royal has a bottle shop... It could be reasonably concluded that the results of the survey of the Marrickville Tavern provide a better indication of the operational characteristics of the proposed hotel. However, the ambience and environment of the proposed hotel is likely to be more welcoming for many people than that of the Marrickville Tavern in which case the proposed hotel is likely to attract a greater patronage than that indicated by the survey of the Marrickville Tavern. However the proposed hotel is unlikely to achieve the same patronage as the much larger Royal Exchange with its focus on dining. If the results of the survey is to be used to provide an indication of the patronage potential the patron accumulation in the Royal Exchange would have to be reduced by one third to at least replicate the size of the proposed hotel. Even then the patronage potential of the proposed hotel would be reduced because it does not have the focus on dining as the Royal Exchange. 30 For the Royal Exchange Hotel he found that the peak daytime patron accumulation recorded is 65 persons around 2 p.m. on the Thursday surveyed with 63 persons around 3 p.m. on the Friday surveyed. 31 Mr Coady states that: the additional parking demand experienced in the Marrickville commercial centre as a consequence of the proposed hotel is likely to be somewhat less than the estimated patron parking demand potential of the proposed hotel because it can be reasonably expected that the proposed hotel will attract a proportion of its patronage perhaps one third to one half, from the existing Royal Exchange in Marrickville Tavern in which case the additional parking demand potential of hotels in Marrickville for commercial centre as a consequence of the proposed hotel is likely to be in the order of only say five spaces during the daytime and during the weekday night time, eight spaces during the weekend night time.

[25]

37 Mr Hallam concluded that: Looking first at the evening period from 7pm onwards the vacant spaces in council's Calvert Street parking area exceeds the projected hotel patron demand for all sets of survey results plus the evenings are not the concern. He states that it would also follow the probability of patrons parking on residential streets and then having amenity impact with late night vehicle movements is not high, unless hotel patrons parked on the street during the day while working in Marrickville and then stayed there all day and into the evening. The main concern is with the daytime parking demand, at the time that parking in Marrickville is at a premium, with retail and commercial activity. Starting with Saturday results a day when the surveys have shown that parking demand is slightly higher than that on a Friday up to 6pm up to 4pm the projected hotel patron public demand is in excess of the numbers of vacant parking spaces. Up to and including 4pm the Calvert Street parking area has zero vacant spaces at 6pm this car park still had only two vacant spaces. Hotel patron would need to look around for available on street spaces in the 4 - 6pm period. On this Saturday daytime data, the projected parking situation would, in my opinion, be unacceptable subject to further discussion on parking credits set out below. Looking at the Friday data for the August surveys of hotels there are virtually no vacant spaces in the Calvert Street car park before 7pm. Hotel patrons thus would need to rely on on-street parking. At 1pm and 4pm the hotel patron parking demand would exceed the on-street available spaces. Looking at the October data the hotel patron parking demand would then again would need to rely on the on-street parking, since the off-street parking is full until 7pm. There is inadequate on-street parking available at 2pm, 4pm and 5pm with just enough at 3pm. On this Friday daytime data the projected parking situation would in my opinion be unacceptable subject to the discussion of parking credits... When parking utilisation exceeds 90% parking becomes more difficult to find. Clearly if a driver circulates throughout the whole area they might find parking eventually. Returning to the issue of parking credits the essential proposal is to change the use of 550 sq m of floor space from retail shop to hotel. Based on DCP 19 this theoretically has a demand for 13 spaces. I accept that the 81 spaces calculated under the DCP 19 for the proposed hotel not correct. The DCP has substantially higher parking rates for hotels than current patterns suggest. It could be that the retail rate is also high. For this review I have assumed that the DCP rate for retail is correct. This figure of 13 spaces includes both staff and customers. For the proposed hotel with no reduction made for patrons possibly parking at work or in other private parking areas as is appropriate for this comparison the projected patronage at 4pm 4.30pm and 5pm on the Friday in October was 55, 60 and 58 patrons which at 28.9% car driver, equates to parking demands of 16, 17 and 16 spaces. Thus the peak patron parking demand is 17 spaces. There are proposed to be 10 - 15 staff. At a typical 50% driver rate for staff this equates to 5 - 8 parking spaces. Allowing for 6 spaces the total hotel peak parking demand is 23 spaces, compared with the current DCP figure of 13 spaces. Both the current situation and the proposed situation only allow for staff to park on the site. The question then is, is it reasonable in a situation where there is a very high demand for both public on-street and off-street parking to approve a development that will substantially intensify the use and hence parking demand, with the parking demand to increase from 13 to 23 spaces during the afternoon peak period? While I appreciate that the situation is not clear cut on the evidence that I have I consider that it is not appropriate. Thus my final conclusion in August 2007 remains valid. Hence the proposed change of use from a shop to a hotel at a site that already has inadequate parking, in an area where there is a high demand for parking during the day, is an inappropriate intensification of use of the premises. 38 Mr Wright submitted on behalf of the Council that there is no dispute in terms of the parking after hours and that Mr Hallam as the single expert questioned the extent of the surveys of Mr Coady and as such in the confines of time carried out a check survey.

[64]

89 In this regard I agree with Dr Stubbs that one must drill down to the more detailed census data and while as shown in the demographic profile tables of Ms George in her report there is an improvement in the demographic characteristics that contribute to those persons who are more disadvantaged. None the less the indicators for the catchment area are still significant compared to the New South Wales average. I agree with Ms George that the demographic profile for the LGA as a whole does not reflect the same degree of disadvantage or vulnerability, however the factors such as non-English speaking persons is 38.3% compared to 17.2% for the state average or 24.6% for the Sydney statistical division similarly the percentage of persons in either public housing or private rental accommodation is nearly 40% and this compares to 29% for the State and the unemployment rate in 2006 was 7.2% compared to 5.9% for the State. 90 Ms George states that "to the extent that outlet density represents a reliable predictor of levels of alcohol-related harm in a community, the potential for such harm is neutralised due to the removal of the Henson Park hotel licence and the closure of the Marrickville RSL club" and "the closure of the RSL club means that there is a decrease in outlet density/concentration of licensed premises in the catchment area, and this represents a positive social impact". However, this statement is premised on the closure of the RSL as opposed to the licence and as such the RSL may seek to re open and indeed it was the underbidder for the Anzac Club premises that is some 470 m from the subject premises. Ms George says that the transfer of the licence from the Henson Park hotel results in no change to outlet density and therefore neutralises the affects of the proposed hotel in terms of density within the catchment area and Marrickville LGA. 91 Ms George states that the changes in socio-economic and demographic characteristics suggests the population is likely to be more resilient to potential alcohol related social harm. While this may be the case there are significant differences in the profile tables for the LGA to the smaller catchment level.