Whiteway House (No. 348) Pty Limited v Waverley Council

Whiteway House (No. 348) Pty Limited v Waverley Council - [2005] NSWLEC 388 - NSWLEC 2005 case summary — Zoe

[21]

The proposed building works fail to provide a gate in the wall at the south east corner of the property to enable fire egress to Dellview Street.
Whether or not the proposed intensification is in the public interest having regard to the number of objections received. 23 The relevant issues in the Amended Statement of Issues for the DA for intensification is as follows:
Whether or not the intensification of the existing use will have an excessive or unreasonable impact on the amenity of the neighbourhood, particularly in relation to the following: (a) traffic (b) parking (c) noise (d) dumping of cars 2. Whether the proposal is satisfactory in relation to the following matters: … (b) safety, health and amenity (c) the adequacy of laundry and drying facilities (d) the adequacy of noise controls (e) provision of appropriate and adequate parking 3. In relation to issue [2] above, whether the proposal is consistent with the guidelines and objectives for backpackers' accommodation in Waverley Development Control Plan No. 12 - Guidelines for Boarding Houses, Backpacker Accommodation and Bed and Breakfast Establishments ("DCP") and, in particular, the following: (a) in relation to density, the provision regarding the allocation of a minimum of 5.5 metres square floor area for each person accommodated as per clause 3.3.1(i). (b) in relation to amenity, the matters in clause 3.3.1(i) of the DCP in relation to the adequacy of natural light and ventilation into sleeping areas, the adequacy of storage space and secure storage facilities (c) in relation to laundry and drying facilities, the provisions of clause 3.3.4 (d) in relation to noise control, the provisions of 3.3.6 (e) in relation to parking, the provisions of 3.2.2. 4. Whether or not the proposed management regime is practical and enforceable. 5. Whether or not the proposed intensification is in the public interest having regard to the number of objections received. 24 Given the amendments to the plans proposed by the Applicant in the course of the hearing some of these issues fell away. The evidence 25 The Court was provided with expert town planners' evidence from: · Ms Deborah Laidlaw, the Court appointed town planning expert; · Mr Don Fox, the Applicant's town planning expert; · Mr Bill Gawne, the Council's town planning expert.

[43]

Residents' objections 50 The residents raised the following objections as summarised in Ms Laidlaw's report: · Increased intensity of use will attract a more transient population which will detract from the community spirit of the area. Do not want Tamarama to turn into another Bondi; · Concern over car parking; · Parking of mini buses, combi vans and the like and dumping of cars; · Concern over groups of backpackers returning late at night from pubs and making a noise; · Congregation of visitors outside of the building, including late at night, people sleeping in cars; · Alleged unauthorised building works; · Noise from early departures; · Clothing, bed linen et cetera hung to dry from windows facing the street; · Dropping of litter, cigarette butts et cetera on pavement outside the premises; · Increase of noise at night time; · Concern over anti-social behaviour, shouting, alcohol related issues, "party mood" frame of mind and vandalism; · Non-compliance with the DCP; · Invasion of privacy, noise, lack of parking, and sunlight (3 Dellview Street); · Dropping of objects, including litter, syringes and needles into alleyway, concern over noise from shouting within rooms, garbage left outside the roller door, parking (3 Dellview Street); · Development application documentation inadequate; · Noise from garbage collection via private contractor in middle of the night; · Applicant's parking surveys unreliable (taken in winter and do not include night time); · Non-compliance with BCA and disability access requirements; · Noise from internal address system, from within the building, partying, congregation on the street, rubbish, trespass, noise from roof level; concern that complaints are not dealt with by the management (separate submissions, residents, 61 Fletcher Street, including owners' corporation). 51 The POM requires that the Applicant keep an incident book recording all complaints made by residents in relation to the backpacker accommodation. Ms Laidlaw obtained information from the Applicant's incident book records from 29 July 2004 to 25 April 2005. Over that period 31 incidents were recorded. Ms Laidlaw classified 11 incidents as relating to the site. Setting aside the issue of noise from the recreation room, which appeared to Ms Laidlaw to be a persistent issue, Ms Laidlaw concluded that there were relatively few complaints recorded in the period. However, several residents gave evidence that the Applicant's employees were reluctant to record incidents when complaints were made. In their view few complaints had been recorded because management did not properly record the complaints. The Council has no record of complaints in relation to the premises.

[55]

Council's submissions Applicability of the DCP 63 The Council submitted that the DCP should be given significant and substantial weight by the Court. By dint of the LEP, the DCP applied to zones that are non-residential zones. As the current backpacker accommodation is located in a residential zone, more weight should be given to the DCP than if the backpacker accommodation was located in a business zone. The intensification DA 64 The Council argued that the intensification DA was unacceptable, due firstly to the adverse traffic, parking and safety impacts of the proposed works, and secondly, to the adverse impacts on general amenity, especially external impacts. The Council also relied on the position of Mr Gawne, who stated that the proposal should not be permitted to expand or intensify at all, because it is already an overdevelopment of the site, particularly with regards to parking. The alterations and additions DA 65 The Council accepted that some of the internal alterations provided for by the alterations and additions DA were appropriate. However, the Council argued that in the circumstances the Court could not be satisfied that consent should be granted. Parking/Traffic 66 The Council argued that the issue of parking was of itself an issue that warranted the refusal of the intensification DA. The Council adopted the criticisms outlined by Mr McLaren of Mr Hollis' evidence and argued that in the circumstances, the Court should prefer the evidence of Mr McLaren in relation to traffic and parking. Based on Mr McLaren's evidence, the Applicant argued that the application should be refused on the basis that an extra six car spaces would be required in an area where there were already significant pressures on traffic and parking, and on the basis that the proposal fails to provide the number of car spaces, approximately 12 for a backpacker accommodation for 175 persons, required by s 3.2.2 of the DCP. The Council submitted that the POM did not remedy the situation because the POM did not provide any right to car spaces, but merely limited the number of permits that could be issued to guests.

[68]

81 The current guest parking situation is problematic because there are no on-site car spaces for guests in an area that already has considerable parking demand. This situation continues if the intensification DA is approved. The surveys of parking capacity suggest that the area now has insufficient parking overnight to meet demand. While this results from a general lack of parking in the area the complete lack of guest parking on the site exacerbates a difficult existing situation. The permit system under the POM does not provide parking places but rather is an attempt to manage the number of guest cars that do arrive. The Applicant essentially argued that up to seven guest cars is an acceptable impact on car parking in the immediate area based on the number of permits agreed to by the Council and stated in the POM made in November 2004. The Court has not been provided with any evidence by the Council or Applicant as to why the provision of seven car space permits was identified in the POM. Ms Laidlaw considers the seven spaces may have been chosen to reflect the site's street frontage applying a "rule of thumb" that generally you can park outside your house. 82 On the evidence I consider the parking situation in relation to the hostel is unclear. Mr McLaren's evidence suggested that the guest parking demand was seven at the current occupancy rate, with an additional six spaces needed if the occupancy rate increased. His evidence was criticized by the Applicant because of the seven cars detected in the survey, three cars were staff cars, the other three were not registered with the hostel and one was a motorcycle. Three different cars had been issued with permits by the Applicant on the day in question but were not identified in Mr McLaren's survey. Mr McLaren stated this supported a finding that six long stay parking spaces were generated from the site the day of the survey. This suggests the current demand for parking, whether for guests or visitors, is greater than Mr Hollis suggests and the future demand if the intensification proceeds is greater than Mr Hollis suggests. Further, I consider Mr McLaren's criticisms of Mr Hollis' methodology are justified in that Mr Hollis did not conduct an independent traffic count at a peak period and relied largely on information supplied by the Applicant.

[69]

83 On Mr Hollis' evidence the demand for guest parking to date has never exceeded three car spaces. Mr Hollis' evidence suggests that while there will be an increase in car numbers the increase in numbers will not cause an increase in demand beyond seven car spaces. Further the Applicant proposes to "cap" guest cars to seven vehicles. If Mr Hollis is correct the on-site staff parking will largely, but not entirely, offset the increase in the number of guest cars if the intensification DA is approved. If the demand for guest vehicles for the current use is three car spaces this is the correct basis on which to assess guest car numbers, rather than the seven in the POM. Even if the provision of staff parking on-site means that three less vehicles require parking spaces under the proposed development, capping guest car spaces at seven results in a possible extra demand of one guest parking space. 84 The Applicant relied on the POM as the mechanism to restrict guest car numbers to seven. I do have concerns that it can be adequately enforced if more than seven cars arrive. On its own guest parking, while problematic, would not suggest a refusal is warranted. Taken together with other matters about which I am concerned I consider refusal of the intensification DA is warranted. 85 The situation in relation to double parking during drop offs/pick ups is unsatisfactory now. I agree with Mr McLaren that to further increase the incidence of double parking creates more safety concerns. The Applicant submitted that it would be highly desirable that there be a designated drop off area in front of the premises with a restricted parking zone. This is a matter only the Council can implement. There has been no proposal made to the Council by the Applicant to consider this option although I note draft consent condition 6 for the intensification DA states: The Applicant shall use all reasonable endeavours to request that the Council implement a restricted parking area at the frontage of the premises on Fletcher Street for 2 car spaces for the purpose of a taxi/set down area.

[73]

(b) Recreation room - There is a recreation room on the lower ground floor which is open at all times and has been the source of numerous noise complaints from the immediate neighbours. (c) Residents also expressed concern about noise from people inside the building and gathering on the footpath outside the premises and in the park opposite. The POM states that the manager and staff will use their best endeavours to ensure that no smoking occurs at the Fletcher Street entrance or in public spaces nearby. The house rules state that there is to be no drunkenness or offensive behaviour at any time. 90 The POM also has in par 16 a noise control measure which states that noise is limited to certain levels above background during the day and night. There is no specific provision for when, and by whom, measurement will take place. The utility of this clause is unclear. 91 The proposed development provides: (a) Rooftop terrace - The DA as amended in the course of the hearing includes the creation of a dining room next to the rooftop terrace on the top floor but not opening directly onto it, as originally proposed. This area is now used as bedrooms. The rooftop terrace will be accessible through the existing stairwell next to the proposed dining room. The existing railings will be removed and replaced by a 1.2m glass balustrade which will be low to the ground. The balustrade will also be set back from the edge of the building by 1.5m on the southern boundary to the rear. This is intended to reduce the likelihood of items being thrown onto the neighbour's rooftop terrace on the southern boundary. It will also reduce the amount of rubbish which blows off the rooftop terrace and attenuate some of the noise coming from the rooftop terrace. No alcohol, glass or amplified music is allowed on the terrace balcony. There will, however, be potentially a substantial increase in the number of people using the terrace if the intensification DA proceeds. This will inevitably lead to more noise given that the balustrade is 1.2m high and can be overlooked. (b) Recreation room - It is proposed that the current recreation room be closed completely and relocated elsewhere in the building. This will substantially reduce its impact on the closest neighbour who has made numerous complaints about noise late at night. This proposal clearly improves this situation. (c) The guests gathering outside the premises would continue to be managed under the POM. 92 While there will clearly be some improvements in the operation with these changes, particularly the relocation of the games room and changes to the rooftop terrace, there will also be a very large increase in the numbers of people in and around the building. A key issue in determining if the noise impact will be unsatisfactory is the operation of the POM. 93 In Renaldo Plus 3 Limited v Hurstville City Council [2005] NSWLEC 315 Brown C identified a number of questions to consider in determining if a POM is appropriate as follows:

Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?
Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?
Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?
Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?
Can the people the subject of the Management Plan be reasonably expected to know of its requirements?
Is the Management Plan to be enforced as a condition of consent?
Does the Management Plan contain complaint management procedures?
Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? 94 As this case concerns existing use rights there must be some modification of how these questions are considered. Question 1 - The POM does clearly relate to the proposed use.

At a glance

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Judgment (81 paragraphs)

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Cases Cited (5)