Millett v Leichhardt Council

LEGISLATION CITED: Environmental Planning and Assessment Act Leichhardt Local Environmental Plan

Vinson v Randwick Council [2005] NSWLEC 142; CASES CITED: Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277; Rifon Pty Ltd v Sydney City Council [2006] NSWLEC 778

APPLICANT Dr S Berveling, barrister SOLICITORS S Walker & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr G Green, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10330 and 10827 of 2006 Brendan Millett v Leichhardt Council

JUDGMENT Background 1 These proceedings comprise two appeals arising out of council's refusal to grant s 96 Modifications for the development and use of a commercial/residential property situated at 732 - 735 Darling Street, Rozelle. The property is known as "The Barn".

2 The subject property is situated on the corner of Darling Street and Cambridge Street and the original consents referred to: + D/2001/236, which approved alterations and additions to a commercial building to facilitate its use as a grocer, cafe, espresso bar, cooking classes and to amend or delete numerous conditions relating to the ongoing operations of the premises including some trading until 10.00 p.m. + D/2002/597, which approved the construction of a 2-storey addition containing 5 new dwellings, above part of the commercial area. 3 The proposed modifications are mainly for the extension of the use and operating hours for the alfresco dining area, which is situated at the rear of the commercial area. Also, the amendment and deletion of other conditions relating to the ongoing operations of the premises.

4 A number of issues were identified, which for convenience can be summarised as follows: + Traffic and parking impacts, in terms of unacceptable increased levels of traffic movements/congestion and availability of adequate on-street parking spaces; + Noise and anti-social behaviour impacts on the amenity of adjoining properties, + Public interest considerations.

5 In order to assess these issues, the parties agree to the appointment of Mr C McLaren as the Court appointed expert for traffic. Also, the appointment of Ms A McCabe as the Court appointed expert for planning. The site 6 The subject land is located on the north-western corner of Darling Street and Cambridge Street, Rozelle. It comprises 5 allotments, two with a north-west/south-east orientation fronting Darling Street (Lots 41 and 42 DP 977850) and three lots with north-east/south-west orientation fronting Cambridge Street (Lot A DP 70494, Lots 43 and 47 DP 977850).

7 The property has a 20.73 m frontage to Darling Street and a 57.35 m frontage to Cambridge Street, comprising a total area of approximately 1322 sq m.

8 The subject site presently accommodates a single story Neo-classical style commercial building, formerly known as 'The Rozelle Fruit Barn'. The building is presently operating as a grocer, cafe, espresso bar and for cooking classes. It occupies the south-eastern corner of the site, covering the front two allotments. An ancillary car park and loading area is located to the north-west of building, occupying the 3 rear allotments, with direct vehicle access via Cambridge Street.

9 Construction of the approved 5 dwellings above the existing buildings on the site has not commenced.

10 Whilst the site is not located in a Conservation Area, it is located within 100m of a number of heritage items.

11 Development in the area is a mix of single, 2 and 3-storey scale commercial, industrial and residential development of a variety of styles and forms. The surrounding properties comprise: + To the north (rear); adjoins a single story dwelling at 10 Cambridge Street. + To the east (side); single story semi-detached dwellings are located at 7 - 9 Cambridge Street, opposite the existing car park, while a single storey dwelling with a garage is located at 5 Cambridge Street. + To the south (front); a mix of retail and commercial development is located in the south-east of the development, on the opposite side of Darling Street. + To the west (side); a single story commercial building is located to the immediate west of the site at No 737 Darling Street. A mix of retail and commercial development to extends west along Darling Street. Residential development is located along Oxford Street to the west of car park located towards the rear of the development site.

The proposal 12 The s 96 Modifications initially proposed a number of amendments, including deletion of a number of the original conditions of consent. In so far as council agrees to some these amendments, the unresolved matters concern: i) The deletion of the original 12 month trial period. ii) Modify Condition 38A from : The property is to be used to be used as a grocer, a cafe, an espresso bar and for cooking classes only between the hours of seven a.m. and 10 p.m. Monday to Sunday inclusive.

The alfresco seating area at the rear of the site shall not be used by patrons or staff after 7.30 p.m. Monday to Sunday inclusive however, the access doors to this area after this time can be opened from the inside of the building only to facilitate their use by persons with a disability entering and exiting the building by all occupants in the case of an emergency. Internal and external signage is to be erected at these doors to read:

After 7.30 p.m., this entrance/exit can only be used as an emergency exit and for access/egress to the building for persons with a disability. TO: The property is to be used as a grocer, a cafe, an espresso bar and for cooking classes only between the hours of 7.00 a.m. and 12.00 a.m. Monday to Saturday inclusive and 7.00 a.m. and 10.00 p.m. on Sundays. (iii) Modify condition 38D from : The number of patrons within the cafe areas and alfresco seating area at any one time between 7.00 a.m. and 7.30 p.m. Monday to Sunday inclusive shall not exceed 156 persons, and the number of patrons within the cafe and any one time after 7.30pm Monday to Sunday inclusive shall not exceed 110 persons. TO: The number of patrons within the cafe areas and alfresco seating area shall not exceed 156 persons at any one time.

(iv) Modify condition 38F from : Any recorded music or other entertainment provided within the premises is to be controlled to comply with the requirements of the Environmental Noise Control Manual (1985) and the Protection of the Environment Operations Act 1997. Noise shall not exceed 5d(B)a above the background noise level when measured at the nearest residential property.

TO: Noise from the commercial use of the premises (including the noise from the substation and all planned, equipment and machinery) shall comply with the criteria specified in the NSW Industrial Noise Policy for both intrusiveness and amenity.

Short duration intrusive noise levels (L A1 1min) from the premises affecting any bedrooms at night not exceed: o An emergence level (L1) of "background plus 15 dB(A)" outdoors and, o Where the emergence level is less than 65 dB(A), a value of 65dB(A) outdoors. (v) Modify condition 38J from : All deliveries to the site shall be restricted to the period 7.00 a.m. and 6.00 a.m. Monday to Sunday inclusive, and the number of delivery shall not exceed: a) 15 daily Monday to Friday in inclusive; and b) 7 daily on Saturday and Sunday. All deliveries shall occur within the approved loading zone on Cambridge Street.

TO: All deliveries to the site shall be restricted to the period 7.00am to 6.00pm Monday to Sunday inclusive.

13 It is also proposed to delete the following conditions from Development Consent D/2002/597: + Condition 3 (c) - A chain is to be erected across the driveway to the rear car parking area, and is to be locked at 10.00pm nightly. + Condition 42 -The parking area to be closed between 10.00 p.m. and 7.00 a.m. seven (7) days a week. Planning controls Leichhardt Local Environmental Plan 2000. 14 The site comprises 5 allotments, which contain two separate zonings as follows: + Lot A DP 70494 and Lots 41, 42, 43 DP 977850 are zoned 'Business'. + Lot 47 DP 977850 is zoned ' Residential'.

15 The uses of the site are not prohibited development within the Business zone under clause 21 (3) of LEP 2000 and thus are permissible with development consent.

16 The use of the residential Lot 47 as a car park was approved under Development Consent 702/88 and it appears that the continued use of this lot as a car park is on the basis of existing use rights.

17 Clause 7(3) requires the consent authority to take into consideration the objectives relevant to the proposal. The relevant objectives are: General objectives clause 13 (2) The general objective for the built and natural environment and amenity is to encourage the design of buildings, structures and spaces which are compatible with the character, form and scale of the area to: (a) protect and enhance the area's natural features, character and appearance, and (b) maintain amenity and contribute to a sense of place and community, and (c) provide an environment which is visually stimulating, while being easy to manage and maintain, and (d) provide adequate access and linkages to public open space, and ( e) accommodate the existing and future needs of the locality concerned, and (f) protect and conserve environmentally sensitive land, particularly that which is visually exposed to the waters of Sydney Harbour and the Parramatta River and of natural or aesthetic significance at the water's edge. (3) The general objective for transport and access is to encourage the integration of the residential and non-residential land uses and improved access to:

(a) reduce the need for car travel and subsequent pressure on the existing road networks, and (b) maximise utilisation of existing and future public transport facilities, and (c) maximise the opportunity for pedestrian and cycle links, and (d) identify and ameliorate adverse impacts of all transport modes on the environment, and (e) improve road safety for all users, particularly pedestrians and cyclists. Heritage Conservation - clause 15. Leichhardt Development Control Plan 2000 18 The following controls in this DCP have been identified as relevant in consideration of the subject proposal: + Part A5.0 - Amenity + Part A8.0 - Parking Standards and Controls + Part A10.5.5 -Rozelle Commercial Neighbourhood + Part B3.5 - Acoustic Privacy + Part C1.2 -Parking Layout, Servicing and Manoeuvring + Part C1.5 - Site Facilities + Part C3.1 - Noise and Vibration Generation + Part C3.4 - Working Hours + Part B4.6 - Residential development in business areas + Part C4.9 - Licensed Premises

The evidence 19 In addition to the detailed evidence from the Court-appointed experts, other evidence was presented by: + Mr S Cooper, council's acoustic consultant, + Dr R Tonin, the applicant's acoustic consultant, + Mr R Varga, the applicant's traffic consultant. + Mr G Shiels, the applicants town planner. 20 A number of written and oral objections to the proposal were made and they have been considered along with the other evidence on the identified issues.

21 The main modification sought is to extend the use of the alfresco dining area at the rear of the subject property until 10 p.m. However, the objections to this extension are that it would create additional noise disturbances and exacerbate the existing problems of inadequate parking in the neighbourhood.

22 As the development has been modified a number of times, Ms McCabe helpfully reviewed the previous consent and modifications and established the following relevant facts: + The original Development Application (D/2001/236) applied for and was granted consent for use as a grocers, café, espresso bar and cooking classes, + Cooking classes as per the traffic report prepared by Project Planning Associates dated 2 April 2001 were to be held " on occasional basis (i.e. approximately one a month)" (p2), + Hours of operation were 7 a.m. to 7.30 p.m. with occasional cooking classes are allowed to 10pm, + Plan 40501 SK01 Amendment F showed indoor seating for 46 in a communal bench and bar arrangement, + There were no seating numbers allocated there are on plan or by condition, + A 7.5 x 9.8 (73.5 sq m) outdoor seating area (alfresco area) was included, + Carparking generation rates were based on internal floor areas of restaurant 228 sq m/commercial 38 sq m/ shop 304 sq m, + No car park in was assessed for the outdoor area of 73.5 sq m, + Car parking based on the above allocations under the then Leichhardt DCP 2000 required 18 spaces and 18 were provided, + The only conditions of relevance imposed on the consent included hours of operation.

23 In addition to this, Ms McCabe also listed the following key issues: + D/2002/597 granted consent to 5 units - no additional car parking was provided, + M/2004/63 to D/2001/236 determined in February 2005 actually sought midnight trading for Friday and Saturday night and 7 a.m. to 11 p.m. Sunday to Thursday, + Condition 1A and 38A of D/2001/236 provided for 7 a.m. to 10 p.m. trading seven days a week on a trial basis for 1 year. This lapsed on 8 February 2006, + The consent and no time has allowed the outdoor area to be used after 7.30 p.m., + Condition 38D was imposed under M/2004/63 to resolve total patron numbers at 110 persons indoor and 46 persons outdoor, providing a total of 156, + Condition 38D restricted total numbers on the premises after 7.30 p.m. and up to 10 p.m. at 110 persons, + Under the provisions of Leichhardt DCP 2000 the assessment of car parking for M/2004/63 noted that the proposal was 9 spaces short.

24 From the initial assessment of the modifications and review of the other expert evidence, Ms McCabe did not support the proposal. However further revisions to the proposal were then undertaken in response to these concerns. Before dealing with these revisions, I note the following details of the other expert evidence.

25 For his assessment of the traffic/parking implications, Mr McLaren made reference to traffic surveys undertaken by Project Planning Associates and Varga Planning. He also undertook various site inspections to assess the parking situation, from which he concluded that the site currently generates parking demand beyond its on-site parking capacity. Accordingly, he did not support the proposed extended hours of trading, largely as a result of the potential adverse overspill parking effect and consequential effect on nearby residents and impact of increased enforcement action by Council.

26 A joint conference between Mr McLaren and Mr Varga was subsequently held to consider the revisions to the proposal. This included a reduction in the number of patrons accommodated on the site from the original 156 to 136. Also, this included clarification of an extraordinary function at the property, which caused parking and disamenity problems.

27 As a consequence of the revisions and extended use and rearrangement of the alfresco area, i.e. extending the use of the alfresco/dining area from 110 to 136 persons, the traffic consultants agree that the additional 26 seats could create an additional parking demand of 8 to 9 cars at peak times. Mr Varga considers that this parking demand can be can be accommodated in the street system, based on his street parking surveys. Although Mr McLaren still has some concerns about the parking impacts in the surrounding streets.

28 The other significant issue concerns noise nuisance. This was identified as a particular concern by the neighbours, who say they currently experience noise disamenity from the existing operations and departing patrons with the current operating hours of the development. They are concerned that this will worsen if the extended operations of the alfresco area are allowed. Other aspects of the noise disamenity occur when the bottles are emptied into the large container in the car park at late hours and when early-morning supply deliveries are made.

29 In order to assess these concerns, the acoustic consultants undertook background noise level surveys and conferred (Joint conference report -Exhibit 18). In the first instance they agreed that if an appropriate roof structure is constructed over the alfresco area, then all noise emissions from this area can be contained to within acceptable limits. Consequently, the applicant has amended the proposal to include this roof enclosure, thereby satisfying this concern.

30 However the acoustic experts do not agree on the noise levels emanating from the car park. Mr Cooper says there will be significant exceedances at the upper levels of some residences and therefore considers the car park should be closed at 10pm. Against this, Dr Tonin says that a review of specific site data confirms his opinion that the noise levels are acceptable and it is not necessary to close the car park at 10 p.m.

31 With regard to noise impacts from patrons and vehicles parked in the street, no specific assessment has been undertaken. However, Dr Tonin says that while noise from people and vehicles parked in Cambridge and Oxford Streets is likely to exceed the sleep disturbance criteria at the front of some residences, this is likely to occur with any vehicles parked in the street, irrespective of their association with the subject development. On the assumption that the number of vehicles parked in the street associated with development is small (according to Mr Varga's traffic report), then he says the additional noise impacts caused by a relatively small number of additional instances will be minor.

32 The acoustic expert's also agreed to a number of detailing and management requirements to be imposed on the development. These include requirements for an automatic door closure in the alfresco dining area, all doors and windows to the cafe on Cambridge Street to be closed at the extended hours and the windows of the alfresco dining area to be closed after 7.30 p.m. and closure arrangements for the car park. They also agreed that a number of acoustic performance conditions in consent should be amended, to satisfy current practice.

33 Notwithstanding this, the acoustic expert's agreed that the noise conditions proposed for this development application would not be complied with at the most affected point of the future apartment proposed above "The Barn". However they anticipate that suitable condition can be framed to resolve this issue with the approval of the Licensing Court. Conclusions 34 The threshold issue in this matter concerns "The Barns" ability to operate the alfresco/dining area, accommodating up to 136 persons, during the extended trading hours to 10 p.m., whilst maintaining reasonable amenity levels in the neighbourhood. The amenity impacts identified involve noise nuisance from the commercial activities, availability of adequate car parking spaces and antisocial behaviour from patrons leaving premises in the late-night hours.

35 Of significance in this matter is that "The Barn" has been granted development consent, which allows for total patron numbers of 110 persons indoor and 46 persons outdoor (alfresco area) i.e. a total of 156 persons. Condition 38D restricts the total numbers on the premises after 7:30 p.m. and up to 10 p.m. at 110 persons.

36 The principal modification then involves allowing an increase of 26 persons i.e. a total of 136 persons in the restaurant/alfresco area up until 10p.m. In the consideration of this matter, I note that Ms McCabe is satisfied that reasonable amenity impacts would result with the extended hours to 10 p.m. but on the proviso that the maximum numbers were maintained at 110 persons.

37 In my assessment, I have considered Dr Berverling's submissions that due consideration should be given to the fact that this site is included in the late night trading precinct designations. Part C4.9 of the DCP contains the controls for licensed premises, with the provisions that restaurants may operate within the "identified longer trading hours precincts" from 10 a.m. to 12 a.m. (the following morning Thursday, Friday and Saturday. In this regard, I note that the associated controls require details concerning a comprehensive management plan, waste and rubbish arrangements, amenity control measures and parking studies.

38 It therefore seems to me that the proposal to extend the operating hours of the alfresco dining area until 10 p.m., is not an unreasonable expectation in this "late-night trading precinct". Even though this could result in an additional 26 people being on the premises in this period, the evidence presented to the Court indicates that reasonable management initiatives can be undertaken to effectively control this incremental change.

39 In this regard, reference was made to the planning principles stated in Vinson v Randwick Council [2005] NSWLEC 142, Moore C set out (at par 12) the general principles applied by Tuor C in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277. He then set out (at par 13) the principles to be applied when assessing applications for an extension of trading hours, increase in permitted patron numbers or additional attractions for licensed premises. He said that the tests to be applied were: + What are the adverse impacts of the present trading hours, permitted number of patrons and permitted activities? + What measures are in place to address those impacts? + How are those measures documented? + Have those measures been successful? + What additional measures are proposed by the applicant or might otherwise be required? He also set out, for each point, a range of matters relevant to its consideration. 40 Adopting and applying those principles to the present case, I am satisfied that the proposed enclosure of the alfresco dining area is significant in containing noise emissions from this part of the premises to reasonable levels, as agreed by the acoustic consultants.

41 Taking into account the existing consent allows 110 persons on the premises until 10 p.m. and Mr Varga's evidence that it is unlikely the extended alfresco dining will operate constantly at maximum seating capacity, in which case it could generate a possible demand for 8 -9 on street car parking spaces, I consider it reasonable to allow the extended operations for a trial period until 1 July 2008. In this regard, I have considered Mr McLaren's reservations about the adequacy and limitations of the existing parking surveys but consider it reasonable to allow the trial period so that the patron travel patterns and parking demands can be more accurately assessed over a more representative period.

42 The trial period should also enable assessment of the other improved operating arrangements, whereby access to the existing car park is regulated, the shop deliveries are restricted in time and number, particularly, to the existing loading bay prior to 9 a.m. and conditions regarding the responsible disposal of bottles are imposed.

43 In determining that the modifications should be allowed for the trial period, I have also considered the planners evidence and Mr Green's submissions regarding "saturation point" assessment for the residential amenity of this neighbourhood. However, part of the site is in a longer trading hours precinct, presumably where the relative balance between community benefits have been assessed relative to the residents amenity.

44 This assessment hopefully would have taken into account the means of access/exiting these late-night trading premises in terms of local residents patronage, private vehicular usage/ parking and availability of public transport along designated routes, so as to minimise disturbance to the neighbouring residential properties. However, no strategic plans for parking or access opportunities were presented to the Court.

45 This question of "saturation point" relative to late-night trading premises was addressed to some extent in the matter of Rifon Pty Ltd v Sydney City Council [2006] NSWLEC 778, wherein I stated: 53 In my assessment then, this further information on the "cumulative impact/saturation point" in the Kings Cross entertainment precinct is of limited assistance.

54 For an objective assessment, however, the planners referred to the Ealing Town Centre - Case Study (Study), whose aims were: + to determine, in the local context, how Ealing might measure 'cumulative impact' and determine what particular indicators of 'saturation point' or carrying capacity are meaningful, in terms of managing the negative impacts of the late night economy." 55 The Study defines 'cumulative' as meaning 'growth in quantity, strength, or effect by successive additions'. In this context it defines 'impact' as 'to have an impact or strong effect on'. It then describes 'cumulative impact' as the 'compounding effect' of a particular phenomena then lists the following statements that may be used to describe the cumulative impact of the addition of multiple, new or extended licensed premises in a particular locality: + The compounding effect of amenity, crime, nuisance and infrastructure issues associated with multiple licensed premises in a defined catchment area + An over concentration of licensed premises in a locality. + Where the cumulative effect of many licensed premises concentrated together causes unacceptable problems of crime, public disorder and nuisance, due to the numbers of people arriving and moving between such venues. + A saturation of licensed premises that attracts customers to an area to such a degree that has an adverse impact on the surrounding area that is beyond the proper control of individual licence holders and relevant authorities. + Cumulative impact is the disruption that occurs when conditions have deteriorated to the point where activity in one area of activity is that adversely affected by changes and/or additions to the activity in another area of activity. 56 From these statements, the Study says that the unacceptable cumulative impact of licensed premises can be defined, for the purposes of the Study as: The concentration of many licensed premises in a defined area and the associated impacts of crime, public disorder and nuisance that are above acceptable levels, and beyond the proper control and management of licensees, police, the local authority and other agencies. 46 I found in that case that there was insufficient evidence to conclude that saturation point had been reached on the basis of the aforementioned definition. Likewise in the subject case, I do not consider there is sufficient detailed evidence to conclude that "saturation point" has been reached as submitted by Mr Green.

47 I also consider it noteworthy that when the 5 residential units above the commercial area were approved, no conditions was imposed requiring the provision of on-site parking for these units. This is consistent with the provisions of Pt 4 B4.6 of the DCP dealing with residential development in business areas. Here the controls stipulate that no car parking should be required.

48 From this, it appears that Council is applying restrictive policies, which discourage car parking and reduce the need for car travel, so as to encourage maximum utilisation of existing and future transport facilities. Also, to encourage pedestrian and other forms of access to local facilities by residents of the precinct. Under these circumstances some adjustments to travel preferences are anticipated and therefore it seems reasonable to trial these policies in respect of the subject application, considering its location in the commercial area.

49 For these reasons then, I consider that the relevant planning controls are reasonably satisfied by allowing the revised, s 96 Modifications for extended trading hours and operations for the alfresco dining area and cafe to accommodate up to 136 persons until 10 p.m., on the basis of a trial period and subject to additional conditions of consent.

50 These conditions of consent include the enclosure of this area to contain any noise emissions to acceptable levels, control of the car park, additional management procedures and the maintenance of a complaints register to monitor neighbourhood impacts for this part of the ' longer trading hours precinct'. Court orders 51 Therefore the orders of the Court are: 1 The Appeal No. 10330 of 2006 is upheld. 2 The Appeal No. 10827 of 2006 is upheld. 3 The s 96 Modifications to Development Consent No: D/2001/236 for the use of the commercial premises at 731-735 Darling Street, Rozelle, is allowed in accordance with the conditions in Annexure A. 4 The s 96 Modifications to Development Consent No. D/2002/597 for the construction of a 2-storey addition of the existing building at 731-735 Darling Street, Rozelle, is allowed in accordance with the conditions in Annexure A. 5 The exhibits may be returned except for 4, 5, 7, 8, 9, 10, 15, 18, 21, F, L, N, O,P, Q, R and S. ___________________ R Hussey Commissioner of the Court rjs /ljr

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