Nara Lounge Pty Ltd v Hurstville City Council

Land and Environment Court (NSW)|2015-03-23|Before: Talbot J

Solicitors: Emprise Legal (Applicant) Marsdens Law Group (Respondent) File Number(s): 10916 of 2014

Judgment

This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of an application under s 96(1A) of the Act to modify development consent DA2014/0047 granted by the Council on 4 June 2014 for alterations and additions to an existing building and use as a refreshment room (restaurant) and food kiosk with associated signage (the Consent), at 309B Forest Road Hurstville (the site).
Condition 32 of the Consent authorised a maximum of 60 seats in the restaurant. In the modification application No 2014/0077 Nara Lounge Pty Ltd (Nara) seeks to increase the number of seats to 250 in the approved restaurant, with consequent changes to facilities and the kitchen.
Condition 33 of the Consent required provision of 20 car parking spaces on site, and the approved plans show 20 spaces including two disabled parking spaces. The modification application includes provision of an additional 100 car spaces secured in the car park of Hurstville Central shopping centre through a licence agreement linked to the lease of the subject site. The Hurstville Central Shopping Centre and the subject site are both owned by RailCorp and managed by Hurstville Retail Pty Ltd. The licence is to run concurrently with the lease of the restaurant to 2019, and is to provide 100 car spaces for use by patrons of the restaurant after 6.00pm to 3.00am, seven days a week.

Issues

The issues in this appeal are whether the development as proposed to be modified is substantially the same as the development as originally approved under the Consent; and if so, whether the proposed arrangement for 100 car parking spaces in the Hurstville Central shopping centre under the licence agreement provides acceptable car parking. The Council contends that additional information including an acoustic assessment and an operational plan of management is required. Contentions relating to information concerning the adequacy of the amenities, and clarification as to access to the waste facility, are no longer pressed.

The site and locality

The site is an irregular triangular shape with frontage to Forest Road, opposite the intersection with Gloucester Road. At the date of the view the restaurant was in operation. The site is predominantly paved, including the area line-marked for car parking, with some vegetation adjoining the western (side) and northern (rear) elevation. Adjoining the site to the rear is the railway line. To the west along Forest Road are commercial uses in one and two storey buildings.
On the opposite side of Forest Road is a service station and a commercial building. There is a Council car park on Gloucester Road with 76 spaces. There is medium density residential development further to the west along Forest Road, and on Gloucester Road.

Planning controls

The site is zoned 3(b) (City Centre Business Zone) under the Hurstville Local Environmental Plan 1994 (the 1994 LEP). The objectives of the zone are: The objectives of this zone are: (a) to designate sufficient areas of land to meet the projected needs of the Hurstville Town Centre as a multi-functional regional centre, (b) to facilitate development of land within the Hurstville Town Centre for commercial, retail, residential and community purposes, (c) to provide a single business zone for the Hurstville Town Centre as a sub-regional centre, (d) to facilitate the implementation of a development control plan for the Hurstville Town Centre: (i) by introducing appropriate floor space ratio controls, (ii) by encouraging an economically viable retail core which is centrally located and in close proximity to public transport, (iii) by enhancing employment opportunities and to service the needs of the local and regional community, (iv) by encouraging and facilitating the use of public transport, (v) by providing and enhancing pedestrian and public open space areas for shoppers and workers, (vi) by maintaining and improving the environmental and aesthetic quality of the Hurstville Town Centre and its surrounds, (vii) by ensuring adequate and accessible off-street car parking, and (e) to improve traffic flow in and around the Hurstville Town Centre.
Clause 8(3) of the 1994 LEP provides that the council may grant consent to the carrying out of development only if the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out and has considered the extent to which the proposed development is consistent with those objectives.
The site is included in the draft Hurstville Local Environmental Plan (Hurstville City Centre) 2014. It was common ground that none of the provisions of that draft instrument are relevant in the present appeal.
The Hurstville Development Control Plan No 2 - Hurstville City Centre (the DCP) applies. The general aims relating to the role and function of the Town Centre include cl 1.10(h) "To manage the traffic and parking for the benefit of the whole town".
Part 6 General Planning Considerations includes section 6.1 Car Parking. Section 6.1.2.1 provides the objective and performance criteria for the parking provisions: Objective To provide sufficient, safe and convenient parking facilities meeting user requirements including pedestrians, cyclists and vehicles. Performance Criteria (a) Parking and service vehicle areas are provided according to projected needs and provide pleasant areas in which to park. (b) Parking that is safe, easily accessible, does not obstruct the passage of vehicles or create traffic conflicts, impact pedestrians or cyclists and does not result in detrimental affects to adjoining or nearby properties.
The Controls are provided in section 6.1.2.1(1): (a) In determining the prescriptive parking requirements for each type of land use, Council has adopted guidelines from the Roads and Traffic Authority Guide to Traffic Generating Developments, October 2002. It must be emphasised, however that Council uses this guide on a discretionary basis only, and may be flexible in establishing parking conditions according to expert reports on the existing parking and traffic conditions in the vicinity of the subject site. (b) In calculating the number of car spaces required, Council takes into consideration: - the type of development (or land use) proposed; - the size and scale of the development; - the intensity of the development; and - street hierarchy and existing traffic situation.
The Table specifies for "Refreshment Rooms (including cafes, restaurants etc)" a parking requirement of "Greater of 15 spaces per 100m2 GFA or 1 space per 3 seats (whichever is greater)."

Evidence

The hearing commenced on site with a view, which included a walk from the subject site to the rooftop parking at Hurstville Central Shopping Centre, and back to the subject site.
Nara relied on expert planning evidence from Mr Garry Warnes, and expert evidence on traffic issues from Mr Benny Chen. The Council relied on expert planning evidence from Mr Gerard Turrisi and expert evidence on traffic issues from Mr Craig McLaren.

Consideration

Section 96(1A) of the Act enables modification of a development if the consent authority is satisfied that the proposed modification is of minimal environmental impact, and that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted, and if the application has been properly notified and any submissions are considered. Section 96(3) provides that in determining an application for modification of a consent, the consent authority must take into consideration such of the matters referred to in s 79C (1) of the Act as are of relevance to the development the subject of the application.

Whether the development as modified is substantially the same as the development for which consent was granted

The requirement that the consent authority be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted is a condition precedent to the exercise of the power to modify a consent: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342 at 347.
The power to modify a consent is a power "to alter without radical transformation": North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 474. A qualitative and quantitative comparison between the development as modified and the development as originally granted is required, and the result of that comparison must be a finding that the modified development is "essentially" or "materially" the same as the approved development, as held by Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at 309: 55. …The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).
In Mr Warnes' opinion, on a quantitative approach there is no significant or material change in the floor plates of the development, no change to the external appearance of the development, and other than minor changes to the internal layout of the garbage room and cleaners store the physical confines of the development remain unaltered with only the addition of more tables within the existing building. Qualitatively, the environmental impacts of the proposed modified consent do not alter insofar as the provision of additional car parking supply is proposed off site and nearby in an existing parking structure which has the 100 spaces available, and ample on street parking is also available including at the Council car park. The site is well serviced by trains and buses and there is pedestrian access and cycling; and while the potential maximum increase in additional patrons is numerically large the environmental impacts of those additional patrons should be the determining factor on a merits basis.
Mr Turrisi was of the opinion that while on site there are minimal changes from a physical built form perspective, the use has significantly intensified, and an increase of 190 patrons is a significant material change in the operation of the business. The intensification of the use requires an additional 64 parking spaces which has required the applicant to enter into a sub-lease arrangement to provide parking on land that never formed part of the original approval, and the modification radically transforms the original approval.
The traffic experts addressed this contention, and agreed that the proposed increase in the number of seats would be substantially different to the approved seating capacity in terms of the intensity and manner of operation; and that the proposal relies on the use of land not included in the original development consent.
Nara submits that while there is a quantitative difference in the increase from 60 to 250 seats, there is no change to the actual substance of the building. The use is the same, the external dimensions and functions of the building are essentially the same. Nara relies on previous decisions of the Court, including Basset & Jones Architects Pty Ltd v Waverley Council (No 2) [2005] NSWLEC 530, Davi Developments Pty Ltd v Blacktown City Council [2007] NSWLEC 106, Bathla Investments Pty Ltd v Blacktown City Council [2008] NSWLEC 1506, Marana Developments Pty Ltd v Botany City Council [2011] NSWLEC 1110, Boyd v Bega Valley Council [2007] NSWLEC 23 and Meck v Waverley Council (No 2) [2005] NSWLEC 363, in support of its submission that there can be physical changes while still being substantially the same development, and submits that in this instance there is no change to the external footprint or manifestation of the building. Decisions such as The Satellite Group (Ultimo) Pty Ltd v Sydney City Council (Talbot J, 22 December 1998, unreported) and Iris Diversified Property Pty Ltd v Randwick City Council [2011] NSWLEC 1038, where there was a finding that the modified development was not substantially the same, involved a change to the intrinsic character or nature of the building. In this instance there is no change in impact, and it is the same type of restaurant. Nara relies on the report of the Council officer who assessed the modification application (exhibit 3, p 146) that s 96(1A)(b) is met on the basis that "[t]he modified development will not change the composition of the development, which will remain as a restaurant".
The Council submits that it was an essential component to the original development application, and the Consent, that there was sufficient car parking available on site for the seating proposed, and a condition was imposed on the basis of one parking space per three seats. The Council accepts that the built form remains the same, however submits that the development will not be essentially and materially the same when consideration is given to how it will operate. The quantitative changes are a 317% increase in seating with a consequent increase in intensity of use; parking will no longer be accommodated on site, with three quarters of the required parking being off site; and additional land some 500m away will be required for the development. On a qualitative basis, the development will operate in an entirely different way because of the parking and use of an area off site.

Findings

The authorities referred to by Nara (paragraph [22] above) reflect the diversity of circumstances in which a decision must be made as to whether development to which a consent as proposed to be modified relates is substantially the same development as the development for which that consent was originally granted, and the range of factors both qualitative and quantitative that have been relevant to that consideration in the particular circumstances of each case. Those decisions confirm Nara's submission that each case must be considered in its particular circumstances.
It was common ground that the increase in seating will not involve any change to the structure of the building, and that the use of the building will not change, and it will remain a restaurant. However, that is not determinative. In Moto Projects, Bignold J referred (at [41]) to Stein J's warning in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 2 against an over generalised description or analysis of the relevant development: "In approaching the s 102 exercise one should not fall into the trap of saying that the development was for a certain use - extractive industry and, as amended, it will be for precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. Otherwise, there may be little purpose in s 102."
In the circumstances of this case, both quantitative and qualitative factors are relevant. For the former, the proposed modification would increase by 317% the seating capacity of the restaurant, and increase the car parking provided from 20 spaces on site to those 20 plus an additional 100 off site. In qualitative terms, the proposed modification to provide the majority of car parking off site, some 400m distant, represents an entirely different way of operating the business.
The significance of the provision of parking on site to correlate with the number of seats in the restaurant is evident from the assessment report prepared by the Council's Senior Development Assessment Officer for the original development application (exhibit 3, tab 1). That report notes that the Traffic and Parking Impact report prepared by ML Traffic Engineers (May 2014) analysed whether the proposed on site car parking spaces were sufficient for the demand generated by the proposed development and concluded that customer parking demand could largely be met on site and occasionally an additional two spaces would need to be met off site in the public car parking area, and that the parking survey had shown that there were sufficient vacant car spaces for the weekday and Saturday lunchtime and dinnertime to accommodate the additional parking demand of two car spaces from the proposed development. The assessment report noted that the gross floor area of the proposed building (206.5sqm) would require 31 car parking spaces if the gross floor area calculation was used, and agreed with the Traffic and Parking Impact report that the number of seats in the restaurant was a better reflection of proposed activity on the site than the gross floor area which included areas that did not intensify the use or generate a parking demand; and on that basis stated that the site was considered to have site specific circumstances to warrant a variation to the onsite car parking requirements of the DCP.
While the Council officer assessing the application the subject of this appeal reached the conclusion that the development as modified would be substantially the same as that for which consent was granted, the Court must be satisfied that s 96(1A)(b) is met for there to be power to grant consent; and as Vacik indicates, it is not determinative that the use remains as a restaurant.
I agree with the Council that an essential component to the original development application, and the Consent, was that there was sufficient car parking available on site for the seating proposed. If the consent were to be modified, there would be a fundamental change in how the business would operate in having the majority of its parking off site. Having regard to the increase by 317% in the seating and the change in parking for provision of 100 spaces off site, it could not be said that the development will be essentially and materially the same. On both a qualitative and quantitative basis, I am not satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted.

Acceptability of the proposed car parking arrangements

That conclusion means that the modification of the consent cannot be approved. It is accordingly unnecessary to decide whether on the merits the application should be refused, as the Council contends, because insufficient on site car parking is provided and the proposed arrangement to provide 100 car parking spaces in the Hurstville Central Shopping Centre is unacceptable. It is preferable not to express a concluded view on that issue, which would need to be addressed should Nara pursue the proposed expansion in the form of a development application where the requirement that the development as modified be substantially the same as that for which consent was granted would not be an issue. However, I make some brief comments on the evidence before the Court.
The traffic engineers were in agreement (exhibit 5) that with the proposed increase in seating the DCP would require provision of 84 on site car spaces instead of the current 20 spaces. They were also in agreement that there are not 64 on street vacant car spaces nearby. They agreed that the proposed parking at Hurstville Central Shopping Centre is over 450m from the site, and the walking distance via public footpaths is at least 500m as measured by Mr McLaren, along the Forest Road footpath. There is an alternative, shorter, route of 357m from the rear vehicle entrance to the rooftop carpark, however they agreed that that route has no footpaths and would be hazardous. In any event, that route is contrary to the signage at the carpark.
Mr McLaren was of the opinion that there are issues in relation to the inconvenience of the rooftop car park compared with nearby on street and off street car parking areas as well as pedestrian safety of customers who might choose to walk along the roadway directly linking the rooftop car park to Forest Road near the site. The lunchtime trade of the restaurant could not sustain 250 seats given the terms of the lease cover the period from 6pm to 3am, and based on the parking surveys conducted by ML Traffic, there is insufficient spare parking within on street locations as well as the Gloucester Road car park to accommodate the extra 64 car parking spaces required during lunchtimes on a weekday (Friday peak) and Saturday. Mr Chen was of the opinion that peak usage of the restaurant would be in the evening and the certainty of a car space would be sufficient encouragement to use the roof top car park.
The evidence before the Court indicates some difficulties with the approach adopted by Nara for provision of the additional car parking spaces, and some matters that need to be clarified. First, based on the heads of agreement in evidence (exhibit A, tab 12) the car parking arrangement ends in 2019, leaving some uncertainty as to how the restaurant could continue to operate at a capacity of 250 patrons after that time. Secondly, there is not on the evidence before the Court detail as to how the arrangement would work, including issues such as validation of parking tickets, and signage. Thirdly, there is a doubt as to whether the car parking is in fact available for the hours of operation for the restaurant. Nara relies on an email from the Facilities Manager Hurstville Shopping Centre dated 6 March 2015 (exhibit A, p 173 stating: …the Hurstville Central Shopping Centre Carpark does not close. It is fully functioning 24-hours a day 7-days a week. Customers are able to enter and exit as they please at any time.
The Council relies on information about the Hurstville Shopping Centre carpark obtained from the InterPark website (exhibit 4) which states that the carpark is open between 6.00am to midnight seven days a week, and the signage at the carpark (exhibit 5, p 18) which shows operating hours as 6am to midnight.
These are all matters that would need to be settled before it could be determined whether the proposed arrangement is satisfactory; I note in that regard that Nara accepts that it may need to reduce its hours to midnight if there is a problem securing access to the carpark between midnight and 3.00am. There is also the issue raised by the Council of provision of an acoustic assessment given that the additional patrons are to be seated in an area open to Forest Road.
The more fundamental issue is whether the proposed arrangements are acceptable, and on this the planners disagreed. In Mr Warnes' opinion the car parking supply needs to be considered in light of the availability of up to 76 spaces in the Council's Gloucester Street car park, the opportunities for on street parking in the area outside normal business hours, and the ability of patrons to access the site by taxi, bus, train and on foot. In his opinion a walk of 450m or so is not too far given that the route of the walk from the station car park to the site is over pedestrian paths that are in good order and accessible for a range of users, the pedestrian path is well lit, the grades are not excessive and the distance is not an onerous walk given the expectation for sites located in city centres that car parking may not be immediately available on site. Using the criteria in the NSW Government "Planning Guidelines for Walking and Cycling" (2004) the location of the car park relative to the site at a distance of between 420m to 450m should be considered as being an easy walk of between 5-10 minutes. In Mr Turrisi's opinion the pedestrian route from Forest Road at some 450m from the restaurant is too far for it to be relied upon, and is too far to travel at night from a pedestrian safety perspective. However, as noted above, it is not necessary to determine this issue.

Conclusion

I am not satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted, and s 96(1A)(b) of the Act is not met. The modification application cannot be approved.
The orders of the Court are: 1. The appeal is dismissed. 2. Modification application 2014/0077 to modify development consent DA2014/0047 granted by the Council on 4 June 2014 for alterations and additions to an existing building and use as a refreshment room (restaurant) and food kiosk with associated signage at 309B Forest Road Hurstville is refused. 3. The exhibits are returned except for exhibits 1, 7 and C. Linda Pearson 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: 20 May 2015

(1999) 106 LGERA 298

(2008) 166 LGERA 342

At a glance

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Judgment (12 paragraphs)

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Cases Cited (11)