Thomas v Georges River Council

THE DEVELOPMENT APPLICATION

1. Whilst ordinarily there is no difficulty in describing a development application for alterations and additions, the present development application is complicated by the unfortunate fact that the applicant has already undertaken some of the work the subject of this development application. Accordingly, the development application seeks consent for the carrying out of work together with the use of parts of the hotel where construction has taken place.
2. On 5 May 2020 the Court granted leave to the applicant to amend the development application. Now the development the subject of the application is described in more detail as:

• Demolition of the function room and public bar at the rear and construction and use of a 14-car-space car park with access from Victoria Avenue;
• Use of a ground floor beer garden (this is now mostly constructed);
• Construction of a new pedestrian entrance to the beer garden from Victoria Street;
• Construction of a new corridor, stairs and lift connecting the bistro area with the car park;
• Construction of a lift shaft and lift near the main entrance from Penshurst Street, relocation of the existing fire stairs and works to the main entrance;
• Alterations to the first floor accommodation, changed from 18 rooms with shared facilities to 13 new rooms with ensuite bathrooms;
• Construction of two new roof vents at the western end of the gaming room; and
• Other associated works including new stormwater drainage system.

EVIDENCE

1. The Court was assisted by evidence from town planners, Mr D Rippingill (retained by the Applicant) and Ms H Warton (retained by the Council), who provided a comprehensive joint report but who were not required to give oral evidence.
2. Acoustic evidence was provided by Mr N Koikas (retained by the Applicant) and Mr R Haydon (retained by the Council) in a joint report and individual short supplementary reports. They were not required to give oral evidence.

ISSUES

1. The Amended Statement of Facts and Contentions filed on 27 May 2020 after the Applicant was granted leave to amend its plans, identified areas of contention generally under the following heads:

• Lack of clarity in plans and statement of environmental effects;
• Insufficient information relating to BCA matters, acoustics, heritage and a plan of management;
• Landscaping of car park; and
• Defined hours of operation of car park.

1. Prior to the hearing additional information was provided to the Council by the Applicant such that the only issues remaining are those in relation to conditions which are dealt with below.

CONDITIONS IN DISPUTE

1. The conditions in dispute relate to landscaping of the car park, the frequency or otherwise of post operation acoustic compliance audits of the hotel premises and how the closure of the car park is to be dealt with effectively as a question of drafting.

LANDSCAPING OF THE CAR PARK

1. Landscaping of the car park is provided for in condition 13. The plans presently show three landscaping beds in the car park as shown in the extract of the plan below.
2. The council submits that the landscape bed at the south-eastern end of the car park next to the shared area adjacent to car space 10 should be "moved" to between car spaces 5 and 6. There would be no loss of car parking because the shared area and spaces 6 through to 10 would be moved slightly to the east.
3. The applicant says such a change is unnecessary.
4. HDCP deals with car parking in s 3.1 and more specifically in the area commencing PC1, Car Parking and Service Areas. The performance criteria in general provides or includes that car parking is to:

• Provide parking according to projected needs and provide pleasant areas in which to park.

1. Under the heading, "Environmental Design", cl PC2 provides that parking areas [are to]: (a) Promote pleasant, safe car parking areas and protect the natural environment…
2. There are design solutions also provided in the HDCP and relevantly are: "DS2.1, Proposals for parking areas are to be accompanied by a landscape plan, prepared by a qualified landscaper, architect or designer, illustrating means to soften the visual impact of parked cars and any associated structures as per these landscaping controls. … DS2.3, Council considers that landscaping needs to be included in every car parking design, within and on the perimeters of the car parking area. Accordingly the following is required: a. Planting beds, fronting a street or public place are to have a minimum width of 1 metre; b. Shade areas are to be provided in open parking areas at the rate of 1 shade tree for every 6 spaces; c. Plants to avoid are those which have a short life, drop branches, gum or fruit, or those which interfere with underground pipes."
3. Those are the relevant provisions of the DCP.
4. The council's expert Ms Warton deals with this issue from [77] in the planner's joint report and says in summary that:

• The DCP provides that trees should be provided at intervals every six spaces;
• That the location of the bed at the southeast is impeded by being adjacent to a wall and therefore diminish the capacity or potential for growth of any tree there; and
• A tree in the location she suggests between car spaces 5 and 6 is more likely to grow unrestricted and provide shade.

1. The applicant's expert Mr Rippingill said that the planter bed location at the rear is preferred as it sits opposite another planter bed providing a sense of symmetry to the rear of the car park. He also asserts that the number of planter beds required is obtained by dividing the total number of car parking spaces by six and that in this case three planter beds should be provided but it does not matter what the location is as it is not required to be at intervals of six spaces.
2. In my opinion it is consistent with HDCP to space out vegetation within a car park providing for trees every six or so car spaces. That achieves the performance criteria of creating a pleasant area, the environmental design to promote pleasant car parking areas and the design solution of softening the visual impact of parked cars and providing shade.
3. The planter bed proposed at the eastern end is adjacent to a 2.4 metre wall and it is self-evident that that creates difficulties in growing any tree of substance. Also, in that location, any tree will not provide any shade to any parked car given its location and the orientation of the car park. I simply do not accept the notion that the provision so called of "symmetry" to the rear of the car park outweighs the provisions and objectives of HDCP.
4. The planter bed as proposed by the Council will allow for generally unrestrained growth of an appropriate tree species and will contribute far more to the amenity, shade and pleasantness of the car park because it is approximately in the middle of the car park breaking up the extent of the hard surface and is more clearly visible from the public domain.
5. The amended plans which I require to be filed pursuant to directions I will make must include the relocated planter bed.

ACOUSTIC AUDIT

1. Without setting out the competing versions, in essence the Applicant says that a single audit within three months of the commencement of operation, such audit to include testing on three separate nights, is sufficient to audit acoustic compliance. If non compliances are detected, its proposed condition provides for a mechanism to address those non compliances.
2. The Council's condition requires that initial audit plus three further audits thereafter, each at three monthly intervals.
3. The Applicant submits that having regard to the conditions of development consent which otherwise require compliance with certain acoustic criteria, the single audit is sufficient. The Council submits that the acoustic modelling, particularly of the car park, shows marginal non-compliance and/or marginal compliance such that extra vigilance by way of additional audit is required. The Council also points to potential seasonal variations which would be picked up in extra audits.
4. It is not truly in issue that there is the potential for acoustic non-compliances. Modelling is precisely that - it is a method albeit very sophisticated, to model an outcome based on certain assumed parameters. It is always necessary to provide for an acoustic audit to ensure the modelling is proved to be correct, or if reality transpired to be different from a model outcome, to address any acoustic non-compliances.
5. In my opinion there needs to be auditing beyond the first additional three months but I am not satisfied that it is necessary for the applicant to carry out an audit every three months.
6. In my opinion there should be a second audit within six months of the completion of the first audit including after any changes to remedy any non-compliances which are identified. That is, it is to take place either within six months of completion of the audit itself if there is no non-compliance, or within six months of the additional compliance testing which the condition provides for in the event there are any initial non-compliances.
7. I have formed this view for the following reasons: 1. The second audit will pick up any seasonal variations. Hotels are generally busier in the summer months and at least one of the audits is likely to pick up summertime trading. 2. The hotel will become more attractive after these alterations and additions are carried out; after all that is their purpose and so it is likely that patronage numbers will increase over time and not necessarily immediately within that first period of three months. Accordingly, a later audit will pick up increasing patronage. 3. The Applicant is required in any event to comply with the acoustic criteria in the conditions notwithstanding the outcome of any audit, and there is no need to wait for any audit to ensure that the Applicant complies with those acoustic criteria. 4. The Council can itself carry out acoustic compliance testing, particularly if there is any complaint to the Council or brought to the attention of the Council by any other body such as the police. 5. It is well known that one of the impacts of the COVID-19 pandemic is to reduce the patronage of establishment such as hotels. As the impact of the pandemic reduces over time, it is hoped by the community that patronage of premises such as restaurants and hotels will increase but it is presently not known what that period of time will be. A second audit around nine months or so after the commencement of operation is likely to be a more realistic audit for the long-term operation of the hotel.
8. With such a scheme in place, and for the same reasons, it is not necessary for there to be three monthly audits. I should add that the Council does not have any policy which would require auditing at any particular interval, including three monthly intervals, nor was there any example in this or any other Council to which I was taken where there are three monthly audits of licensed premises.
9. Accordingly, the condition will require amendment in accordance with these reasons.

CAR PARK MANAGEMENT

1. There is in truth no real difference in substance between the outcome sought by the Applicant and the Council in relation to management of the new car park. The issue really is one of drafting.
2. The applicant says that there should simply be an amendment to the plan of management such that the plan of management will provide that: "The car park will be closed with a chain outside the hours of operation of the premises."
3. The first observation that should be made is that any operational matter of significance such as the hours during which a car park for licensed premises should be utilised, must be a condition of consent and simply not be in a plan of management notwithstanding that the applicant is required to comply with a plan of management. In my opinion it is important that all important operational conditions be conditions of consent as well as forming part of the plan of management.
4. The second observation to be made about the applicant's proposal is that it runs the risk of delegating to a different statutory scheme the hours of operation of the car park. If the car park is simply to operate during the hours of operation of the premises it can mean that the hours of operation of the premises could be changed by virtue of the operation of the Liquor Act without an assessment under the EP&A Act, there presently being no restriction on the hours of certain parts of the hotel by any development consent. Accordingly, in my view it is unsatisfactory to have a condition such as that proposed in the plan of management by the Applicant.
5. The council in its draft condition proposes as follows: "The approved hours of operation of the car park are: - Monday to Saturday, 10am to 2am extended to 2.30am to allow patrons to exit after closing; - 10am to midnight extended until 12.30am to allow patrons to exit after closing."
6. In my opinion this too is unsatisfactory. First, as a matter of drafting, a condition should identify the hours in which a car park is open as distinct from saying it operates to a certain time and then that time is extended to another time. Simply in terms of drafting, it should indicate the hours where the car park is open. Second, it should also make provision for the manner of closure of the car park.
7. Third, it allows the car park to remain open when the hotel itself is not trading. That is, as is well known within the hotel industry, hotels do not always trade to their authorised trading hours and hotels will often close earlier than they are authorised to open simply because the patronage is not there. Accordingly if the hotel closed say at midnight on a Monday night, although it was authorised to trade until 2am, the hotel car park would not be required to close until 2am or 2.30am during which the hotel would not have control of the car park because it was not itself trading. That could lead to amenity impacts beyond the control of the hotel.
8. During the course of the hearing I invited the parties to make submissions about an alternative condition effectively providing that the hotel car park is to be locked with a chain half an hour after closing and in any event no later than 2.30am the day after Monday to Saturday and 12.30am Monday morning (this is effectively Monday to Saturday nights and Sunday nights respectively).
9. Neither party embraced that alternative and so it will be imposed upon them. In my view that is a preferred form of condition which provides for the patrons of the hotel who are utilising the car park to be able to exit the car park within half an hour of closing whatever time the hotel closes. It avoids the potential for the car park to be used by non-hotel patrons and cause difficulties for the residents in the vicinity.
10. It also provides the latest time at which the car park is to be closed in accordance with the existing licensed permitted hours and therefore the hours which under the EP&A Actby operation of the incorporation of the licence into the plan of management and the conditions of consent. Therefore the Council's objective to ensure there was a time by which in any event the car park is closed is achieved, the Applicant's objective of closing within half an hour after trading is also achieved but there is the limited opportunity for disturbance of the amenity of the neighbourhood by the car park being available to non-users of the hotel.
11. Accordingly, condition 49 will need to be amended and the intention being that the hotel car park is to be locked with a chain within 30 minutes of the hotel closing but in any event no later than 2.30am on Monday to Saturday nights and 12.30am Sunday nights, and lest there be any doubt it is whichever is the earlier of those events, that is half hour after closing or 2.30am and 12.30am respectively.

OTHER CONDITIONS

1. Conditions 1 and 2 as presently framed I find a little uncomfortable in identifying with precision the development the subject of the proposed development consent. Accordingly, I require that those conditions be amended to provide for a description of the development in generally the terms that I outlined earlier in this judgment but with a little more particularity and by reference to the specific plans of the work to be undertaken and the plans which includes the areas which are the subject of consent for use.
2. There needs to be a plan showing the work which has been carried out which is expressly excluded from that part of the development consent which is granting consent for work to be carried out. The purpose of the amendment of the conditions and the provision of the plans is to ensure absolute clarity as to the scope of the development consent to be granted.
3. Condition 12 deals with proposed amendments to the plan of management. In my opinion it is preferable that the plan of management itself be amended prior to the grant of development consent rather than a condition provide for its amendment. In that way the plan of management can be identified as one of the documents in condition 1 in respect of which compliance is required and there is no doubt about its provisions at the time of grant of consent. The plan of management should also reflect the modification to the conditions by virtue of these reasons for judgment.
4. Condition 13 deals with amendment to car park layout and landscaping. That condition should be amended simply to provide for the provision of a landscape plan because I require the architectural plans to be amended to show the relocated planter bed between car spaces 5 and 6. Condition 13 will not deal with the amendment to the car park layout but it just will deal with landscaping and it should include what is presently condition A(i), A(iii). Condition 13(b) should be deleted. It was inserted in error. Sub condition 13(c) should be deleted as the amended layout will be reflected in the further plans.
5. Conditions 51 and 52 deal with the acoustic criteria. It is my recollection without having checked that conditions 51 and 52 reflect the standard acoustic condition first required by the Liquor Administration Board and after its abolition by the Office of Liquor, Gaming and Racing. However, the standard condition in its present form is slightly more sophisticated, indicating the manner of measurement of the relevant noise levels. Part of my direction will be to require the parties to ensure that conditions 51 and 52 reflect the current acoustic criteria imposed by the Office of Liquor, Gaming and Racing.
6. Condition 62 deals with the acoustic auditing and in terms of drafting I should just add the following in addition to the redrafting required as a consequence of the reasons above:

• That part of proposed condition (d) which is ruled through by the Applicant should also be deleted because it impliedly approves work to be carried out which may or may not require development consent but in any event that provision may be otiose having regard to an amendment made during the course of or immediately prior to the hearing about the height of a wall at the eastern end of the car park;
• That which is crossed out at the end of subparagraph (e) should be deleted and if necessary it made plain that the reassessment is separate and additional to the second audit which I have required.

1. Condition 62(f) is perhaps a little clumsy but in another form should be retained. That is to say the intention should be that if on the audit there are non-compliances, measures are taken to address the non-compliances and those measures do not succeed, then the same process of undertaking further measures should be implemented. Put simply, if non-compliances are identified then changes are to be recommended and addressed within 28 days. If that does not fix the problem, then the same process of assessment and attention within 28 days is to take place. The condition should be amended accordingly.

"AMENDMENT" AND COSTS

1. At the outset of the hearing the Applicant sought leave, to the extent to which leave was required, to rely on a number of documents. The Council did not oppose the grant of leave to the extent it was required, but submitted that reliance upon those documents constituted an amendment to the development application which is more than minor, triggering the obligation upon the Court to order payment of council's costs thrown away pursuant to s 8.15(3) EP&A Act.
2. The documents referred to were:

• Amended statement of environmental effects (April 2020);
• Amended plan of management (June 2020);
• Letter of Sue Rosen Associates, 5 May 2020;
• Access assessment report of BCA Logic, 23 April 2020;
• BCA assessment report of BCA Logic dated 23 April 2020;
• Acoustic report of Koikas Acoustics, 4 August 2020; and
• Supplementary note of Koikas Acoustics dated 31 August 2020.

1. I raised the question as to whether the provision of such documents amounted to an amendment to the application for development consent and referred the parties to an analysis, in a different context, of what constituted a development application in an earlier decision of mine, Newland Developers Pty Ltd v Tweed Shire Council [2020] NSWLEC 1107. The parties made very short submissions and whilst acknowledging the issue about whether reliance upon the documents constituted an amendment to the application for development consent, did not make detailed submissions.
2. Section 8.15 EP&A Act provides as follows: (3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which s 34AA of the Land and Environment Court Act 1979 applies.
3. Accordingly, in order for there to be a costs order in favour of a respondent pursuant to s 8.15(3) , then there needs to be:

• an amendment to the application for development consent;
• which is other than a minor amendment;
• in respect of which there have been costs thrown away.

1. The phrase "application for development consent" is not itself defined in the EP&A Act. Development application is of course defined in s 1.4 of the EP&A Act as follows: Development application means an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate.
2. Whilst the drafter of s 8.15(3) uses the language application for development consent, I find it difficult to find anything else other than that means a development application having regard to the definition of development application in s 1.4.
3. It hardly needs saying that "development" includes the use of land and the carrying out of work by virtue of s 1.5 of the EP&A Act.
4. Clause 50 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) provides relevantly: 50. How much a development application be made? (1) A development application must - (a) be in the form that is approved by the planning secretary and made available on the NSW planning portal, and (b), contain all of the information that is specified in the approved form or required by the Act and this regulation, and (c), be accompanied by the information and documents that are specified in pt 1 of sch 1 or required by the Act and this regulation, and (d), be lodged on the NSW planning portal.
5. I will return to other provisions of cl 50 momentarily.
6. Part 1 of Sch 1 to EP&A Regulation sets out first the information to be included in development application and second in cl 2 of Part 1 the documents to accompany a development application. As I pointed out in Newland, the regulation distinguishes between a development application and the information required within it on the one hand, and the documents to accompany a development application on the other.
7. The documents which are required to accompany a development application include a statement of environmental effects, an environmental impact statement where appropriate, a species impact statement where appropriate, engineering drawings when appropriate, a series of other types of documents which are relevant to the development the subject of the application.
8. The EP&A Act and EP&A Regulation together provide a scheme for the making of development applications. It is a well-known rule of statutory construction that the meaning of a phrase which is repeated within an Act or a scheme of legislation will have the same meaning unless its context suggests clearly otherwise. In my opinion there is nothing in s 8.15 EP&A Act which suggests the meaning of application for development consent is anything other than the meaning of development application as it is otherwise within the Act and Regulation.
9. Accordingly, when I come to consider whether or not the documents in respect of which leave was sought, if it was required, and relied upon by the Applicant, amount to an amendment to the application, in my view they are not. The first six documents fall into the category of documents which accompanied or are to accompany the development application. In relation to the supplementary note by Mr Koikas it was truly a statement of evidence in these proceedings. None of them amount to amendment to the development application, accepting the possibility that an accompanying document may have the effect of amending the development the subject of the development application.

Addendum

1. The Court orders that: 1. The appeal is allowed. 2. Development consent is granted to development application number DA2019/0160 for alterations and additions to, construction of a car park at, and the use of certain areas at, the Penshurst Hotel, 29 Penshurst Street, Penshurst in accordance with the conditions in Annexure A hereto. 3. The Exhibits other than exhibits A and 1 shall be returned.

Acting Commissioner of the Court Annexure A (297486, pdf) Plans (1554794, pdf)

Amendments 06 November 2020 - See Addendum at [75]. 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: 06 November 2020