Premier Building Group v Hornsby Shire Council

Land and Environment Court (NSW)|2006-08-03|Before: Mr P, Mr J

Introduction 1 This appeal relates to development application No. 1604/04 which is for the two stage redevelopment of parts of the existing Asquith Bowling Club ("the club") at Lot 1 DP 617493 being land at the corner of the Pacific Highway and Lodge Street, Asquith.

2 The works mainly comprise alterations and additions to the existing clubhouse and consequential extensions to the car parking facilities. These works were to be carried out in three stages but this was changed to two stages concurrently with the amendment of the development application so as to become staged development under s 83B of the Environmental Planning and Assessment Act 1979.

3 Stage A is to be carried out as soon as possible in response to the requirements of recently introduced non-smoking legislation and to provide additional floor space to cater for growing demand. A significantly enlarged, at grade, car park is also proposed. This car park is located towards the southwest corner of the site with access off the Pacific Highway. Stage B provides significant additional floor space and includes an additional basement car park (essentially beneath the Stage A car parking area) together with access ramps to the two levels. Stage B is not expected to be undertaken for perhaps 10 or 15 years. Statutory controls 4 The site is zoned Open Space C under Hornsby Shire Local Environmental Plan 1994 in which zone the proposed works are permissible with development consent. The site adjoins residentially zoned land to the west and open space to the north. Also applicable is Council's Car Parking Development Control Plan ("the car parking DCP"), which relevantly contains car parking and associated noise mitigation requirements. There was no dispute that the number of car parking spaces provided meets these requirements. Advertising and objections 5 The application was notified and eight objections were received. Those objections identify a number of matters of concern including: o Excessive noise from the car parks and the roof mounted air-conditioning plant. o Overlooking and resultant loss of privacy from dining room windows. o The unattractive appearance of roof mounted air-conditioning plant. o The replacement of a picturesque outlook with an unattractive car park. o Excessive removal of trees. o Likely inappropriate behaviour of people using the car park. o Traffic congestion and pedestrian safety. o Over-commercialisation of the locality and resultant loss of quality of life. o Light overspill and resultant loss of residential amenity.

6 Two of those objectors - Mr T Jarman of 285A Pacific Highway and Mr S Wiley of 289 Pacific Highway - elaborated on their concerns during the site inspection on the first morning of the hearing. Those concerns principally involve amenity impacts: noise and light overspill associated with the car parking area; vandalism, littering and trespassing; and the unsatisfactory appearance of the car park and associated structures. Council's decision 7 The council refused the application on 7 September 2005 because: The proposal is beyond the environmental capacity of the site and the impact of the proposed car park upon neighbouring properties is unacceptable and not in public interest. The statement of issues 8 The statement of issues in essence identifies the following issues: o Excessive bulk and scale of the clubhouse and car park and excessive intensification of the club's activities on the site resulting in adverse amenity impacts on the surrounding residential area. o Inadequate setbacks and screening of the car park between it and surrounding residential development together with excessive noise, light overspill, and loss of outlook. o Resident objections. The evidence 9 On behalf of the respondent council expert evidence was given by: o Mr N Kennan - town planner o Mr N Gross - acoustic consultant 10 Ms M Houghton - manager of the club, gave additional evidence.

11 On behalf of the applicant, expert evidence was given by: o Mr I Glendinning - town planner o Mr L Challis - acoustic consultant Amended proposal 12 During the course of proceedings the application was subject of significant modification, mainly comprising structural measures aimed at mitigating noise impacts associated with the car park on adjoining residential properties. Also, as referred to above the application was amended to enable the development to be carried out in two stages.

13 At the conclusion of the evidence and notwithstanding the substantial changes to the application Mr Jackson explained that the council continued to oppose the proposal in its entirety. This is because the intensification of the use has resulted in a large car parking structure in an inappropriate location. In turn this car park will have unresolved noise impacts on neighbouring residential properties. The car park, particularly taking into account its proposed large roof (that is required for noise mitigation purposes), will also have adverse visual impacts when viewed from within the club premises and from adjacent residential properties and the adjoining public park to the north. The issues for determination 14 Having inspected the site and the affected neighbours properties and considered all of the evidence including the objections, the issues for the resolution of the Court comprise: o The impacts of the parking proposals (different for each stage) on the neighbouring properties particularly in relation to noise impacts. o The architectural presentation of the car parking structures (different for each stage) in the context of the existing buildings on site and as viewed from neighbouring properties. 15 Various other matters of concern including light overspill and appearance (other than that of the car parking structure) and other matters of concern to the objectors can and have been satisfactorily addressed by changes to the design and conditions of consent. Noise impacts 16 There was a fundamental disagreement between the two noise experts as to the appropriate noise criteria that should be applied to the new car park with respect to the protection of the amenity of the neighbouring residential properties to the west. Mr Gross asserted that the relevant standard is comprised in the New South Wales Industrial Noise Policy ("the INP"), whereas Mr Challis asserted that the New South Wales Liquor Administration Board Guidelines ("the Board" and " the LAB guidelines") were applicable.

17 Mr Gross considered that the LAB guidelines relate to the control of noise from within licensed premises (i.e. within that part of the premises that is licensed to sell alcohol), which is often primarily music noise. Noise from mechanical plant and car parks are more appropriately assessed in accordance with the requirements of the INP and, where necessary, an appropriate consideration of sleep disturbance.

18 Conversely, whilst Mr Challis accepted that the INP could be applied to commercial premises that do not serve liquor it should not be relevantly applied to licensed premises. Instead the LAB guidelines are different and given that they are specifically designed for licensed premises they should be applied here. These guidelines should not only be applied to the clubhouse but also to the car park, which is used by persons who utilise the licensed premises.

19 The club's licence identifies those areas in which alcohol can be served and makes no reference to car parking areas. The licence does not contain any noise criteria.

20 The standard noise conditions for licensed premises under the LAB guidelines provide that the LA10 noise emission assessed at a residential boundary shall not exceed the ambient background L90 level by more than 5 dB between 7 a.m. and 12 midnight. At other times the ambient background L90 level shall not be exceeded. Also, noise emissions from licensed premises shall be inaudible at any habitable room of any residential dwelling during the period 12 midnight to 7 a.m.

21 The INP is specifically aimed at assessing noise from industrial noise sources. Such sources are defined to include machinery of various kinds and facilities including industrial premises and commercial premises but no reference is made to facilities such as licensed clubs. A number of noise sources are specifically excluded although again there is no reference to licensed clubs. Noise from vehicle movements associated with an industrial source is covered provided that the vehicles are not on a public road.

22 The noise assessment criteria in the INP are aimed at, inter alia, maintaining noise level amenity for residences. The intrusiveness of a noise source may be considered acceptable if the equivalent continuous A-weighted level of noise from the source (Laeq) measured over a 15 minute period does not exceed the background noise level measured in the absence of the source by more than 5 dB. Notwithstanding this standard, other factors need to be taken into consideration including economic consequences, other environmental effects and the social worth of the development.

23 Council's car parking DCP requires that development be designed to minimise noise and vibration impact on the occupants of surrounding dwellings. It requires that development be designed to provide a reasonable acoustic environment within dwellings and sources of noise should, where practicable be sited away from adjoining properties. To this end it requires compliance with Council's Policy and Guidelines for Noise and Vibration Generating Development ("council's noise policy"). Council's noise policy describes a procedure for assessing noise impact as a simplified version of the procedure set out in the INP and any assessment conducted in accordance with the INP is acceptable. Whilst council's noise policy recognises the responsibility of the LAB it does not call up its guidelines.

24 Council's noise policy deals, inter alia, with licensed premises. Up to midnight it sets a maximum noise level (LAeq) measured at the boundary of the most affected residence of no more than background noise. After midnight it must not exceed a level 5 dBA below (above?) the background noise level when measured at any bedroom window. Noise associated with patron departure, particularly after 10 p.m. needs to be given due consideration. Points of access and egress should be restricted to minimise adverse impact on noise sensitive receivers.

25 It must be recognised that much of the noise generated by the proposed car park (e.g. car engines) will be no different to noise generated by any other car park. Despite this, it is plain that car parks associated with licensed premises are used somewhat differently, because some club patrons leaving the premises via the car park may be intoxicated and as a consequence might be noisier than would otherwise be the case (e.g. talking loudly and slamming car doors). But is this a reason for the imposition of a different standard of protection for neighbours?

26 The applicant invited the Court to consider the fact that the Court has in the past has applied the INP criteria to licensed premises. In Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 243, Pearlman CJ dealt with a development application for the construction of a bowling and community club at Berowra. One of the merit considerations in that case involved noise impacts generated by, inter alia, cars, car doors slamming and voices of patrons using those cars. In reaching her conclusion that noise impacts from the car park would not be excessive she applied the INP criteria. In Don Hodge Group Pty Ltd v Liverpool City Council [2004] NSWLEC 197, Moore C dealt with a development application for a licensed hotel, applying the INP criteria. In Hird v Blue Mountains City Council [2005] NSWLEC 329 Tuor C dealt with a development application for a licensed function centre where the two noise experts (including Mr Challis) applied the LAB guidelines and the INP criteria particularly the sleep arousal criteria.

27 In my opinion, and notwithstanding that the LAB guidelines specifically relate to licensed premises, I consider that the INP criteria should be utilised in determining noise impacts associated with the proposal. This is because the INP criteria are: more broadly based and more generally applied; and are aimed at protecting residential aural amenity, notwithstanding that they purport to assess noise from industrial noise sources. They are also more relevantly consistent with the car parking DCP and council's noise policy.

28 If the NSW LAB chooses to impose different requirements when it considers a future application for a liquor licence that is a matter for that authority.

29 It seems to me that the correct approach in dealing with noise impacts requires that predominant consideration be given to: the sensitivities of the noise receptors, in this case two dwelling houses; and the noise reaching those receptors. Little into consideration needs to be given to the manner of how the noise is generated. In other words for example, does it matter whether noise associated with people talking loudly or slamming car doors has or has not come from possibly intoxicated persons leaving licensed premises if the noise causes disturbance.

30 Taking all of these matters into account, I accept the evidence of Mr Gross that if the INP standards are complied with, this should ensure a reasonable level of amenity for the two affected residences at Nos. 289 and 285A. These homes are situated in a residential zone and are entitled to have their aural amenity protected. In providing such protection it must be recognised that this amenity is already affected by traffic utilising the Pacific Highway and the INP is able to take this into account by reference to background noise.

31 In their joint report Mr Gross and Mr Challis disagreed in relation to the need for a noise barrier associated with the access driveway for Stage A. They also disagreed in relation to the size and form of the noise barrier required to be constructed for the Stage B driveway and ramps. Mr Challis was of the opinion that the Stage B barrier should be at least 4 m high with a curved top for the majority of its length whereas Mr Gross believes that it should be 3 m high without a curved top. This is shown in the drawings as having a height of 2 m. I understand the basis of the disagreement mainly involves their application of different criteria. They also disagreed on whether the car park should be permitted to operate after midnight. There was associated disagreement for the need to provide signs that encourage patrons to park elsewhere if they intend a late night departure so as to avoid returning to their cars and finding the car park locked.

32 Recognising that it is not appropriate to provide noise barriers beyond the club's site boundaries this points to a need to keep the access driveway as a noise source as far away from the adjoining residential properties as possible. Whilst the driveway off the Pacific Highway has already been relocated, further relocation may also aid in the resolution of noise impacts especially on No. 289 and facilitate the resolution of the midnight closing question.

33 Accepting as I do that the INP is the relevant standard I thus accept in principle the evidence of Mr Gross. But taking into account the concerns of Mr Challis in relation to cumulative impacts when groups of people utilise the car park and driveway concurrently, I am nevertheless not entirely confident that what is proposed will properly protect the amenity of No 289 and to a lesser degree No. 285A. Architectural design and visual impacts 34 In an attempt to resolve the issue of noise impacts on the adjoining residential properties to the west, the car park is to be partly provided with a walled and roofed structure (27 m x 7.5 m) together with other noise barriers associated with the access driveway. This structure is to be similar for both stages, although in Stage B it will be slightly higher. Also, access ramps are to be provided to the two levels.

35 Mr Kennan was of the opinion that the entire car parking structure (both Stages A and B) would be atypical of development in the locality and aesthetically unacceptable when viewed from neighbouring residential properties and playing fields (public open space) as well as from within the site itself. In his opinion the utilitarian character of the structure would be out of character with the remaining buildings on the site and would not be characteristic of buildings in this residential area.

36 Mr Glendinning disagreed noting that there are other utilitarian buildings in the locality. In his opinion the structure would not be unattractive and that views of it from outside the site would eventually be screened by landscaping.

37 In relation to this issue, I prefer the evidence of Mr Kennan.

38 The applicant is to be commended for its approach in responding to the recommendations made by the noise experts, which resulted in the introduction of various structures, aimed at mitigating noise impacts. The resulting built forms however, being largely constrained by the original car park design and its location has resulted, in relation to both stages, but especially Stage B, in structures that are lacking in sensitivity to neighbouring residential development. In this regard I am especially concerned at the proximity of the ramp structures adjacent to No. 289 (despite more recent attempts to rectify this) and the presentation of the large roof structure to No. 285A. Whilst I accept that the proposed landscaping will, in time, soften the impact of these structures, this should not be used as a reason to excuse development that is otherwise unsatisfactory. Although the Stage A proposal, in terms of its access driveway presents itself in a reasonably appropriate manner to No. 289, given the much greater set back and landscaping opportunities the car park structure continues to be problematical.

39 It seems to me that a different design that relocates the access ramps and provides greater separation to adjoining residential development would also assist in further noise mitigation. Whilst I accept that a car parking structure in this location would not in principle be unacceptable its design needs to be much more sensitive, especially the roof form. Again, a different design could further assist in noise mitigation.

40 I am also inclined to agree with Mr Kennan that the car parking structure for both stages may not be architecturally responsive to the design of the principal buildings and would present as being a very large structure when viewed from the adjoining park. However I expect that the final detailing of the structure could be done in such a way as to provide an appropriate architectural relationship to the principal buildings. Similarly the access ramps and the associated noise mitigation measures could be better integrated into the built form. I also expect that the presentation of the structure to viewers in the park could be softened by the provision of appropriate on-site landscaping taking also into account the distance of separation. Conclusion 41 Whilst weight can be given to the evidence of Ms Houghton that this is a well-supported and managed club that benefits the local community, this cannot overcome the deficiencies of the proposal which I expect with careful design can be remedied.

42 What is required in the production of a revised integrated design for the car parking structure and access thereto including noise mitigation measures (which will no doubt be forthcoming) utilizing an integrated approach - or "good design" - taking into account the various matters discussed in this judgement. This may require a reconsideration of the entire car parking arrangement, including access for the site. Whilst the applicant is to be commended for attempting to resolve these matters this has happened in a somewhat piecemeal manner which, in the end was unsuccessful.

43 I recognise the applicant's circumstances that require that modifications be made to the club's facilities at an early time, but this cannot be a basis for the setting aside of the proposal's deficiencies. Although I have not been persuaded that the club's expansion proposals are inappropriate and recognise that there was no fundamental criticism of the proposed modifications and extensions to the clubhouse as such, it is not possible to separate this from the need to provide additional car parking. Hence the entire application must be refused because the design of the proposal has failed to respond appropriately to the issues of built form and noise impacts.

44 Finally, whilst the unsatisfactory nature of the proposed car parking facility has been fatal to this application, I do not accept that a different and satisfactory design could not be produced that would enable the redevelopment of the club to proceed, essentially as proposed. Orders 45 The orders of the Court are therefore: 1. The appeal is dismissed. 2. Development Application No. 1604/04 for the two-stage redevelopment of the existing Asquith Bowling Club premises at Lot 1 DP 617493 being land at the corner of the Pacific Highway and Lodge Street, Asquith, is determined by the refusal of development consent. 3. Exhibits N and O are retained.

      T A Bly
      Commissioner of the Court
      rjs

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.

CITATION : Premier Building Group v Hornsby Shire Council [2006] NSWLEC 476

Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 243; CASES CITED: Don Hodge Group Pty Ltd v Liverpool City Council [2004] NSWLEC 197; Hird v Blue Mountains City Council [2005] NSWLEC 329

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