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[2005] NSWLEC 388
Land and Environment Court (NSW)
2005-08-09
Pain J, Mr J
Original judgment source is linked above.
Background 2 The site is rectangular with a frontage of 23m to Fletcher Street, 33.58m to Dellview Street, a southern (rear) boundary of 22.905m, and a western (side) boundary of 33.65m. It has an area of 771sq m. The site has a fall of 3.73m from north to south and a fall of 1.41m from west to east.
3 The site currently accommodates a two/three-storey Art Deco style building constructed around a central courtyard. The existing building is currently being used as backpacker accommodation with 95 beds, known as "Bondi Beach House". Previously the building was a private hotel known as the "Beaches Hotel". The parties agreed that the site has been used as hotel and lodging accommodation since the 1800s and that it has existing use rights for hostel/backpacker accommodation for 95 people.
4 At present the building incorporates a reception area, bedrooms of various sizes, various communal entertainment rooms, laundry facilities, shared bathrooms, a recreation room located on the lower ground floor and a garbage storage area located on a tiled courtyard on the southern boundary. On the roof of the building there is an existing terrace used for outdoor recreation purposes which affords views down the coastline. There is a second outdoor recreation area, an internal courtyard on the lower ground level.
5 The site is zoned 2(b) Residential - Medium Density under the Waverley Local Environmental Plan 1996 ("the LEP"). Adjoining the site to the west at 61 Fletcher Street, Tamarama is a four storey residential flat building. Adjoining the site to the south at 1 and 3 Dellview Street Tamarama are two single storey semi-detached dwellings. The area generally has a variety of building forms including residential flat buildings, single dwellings and shops in Fletcher Street. 6 The Court conducted a view of the site on 14 June 2005.
The proposal 7 Development application No. 446/00 ("the intensification DA") seeks an increase in the number of beds from 95 to 175. Development application No. 876/01 ("the alterations and additions DA") seeks consent for alterations and additions to the existing backpacker accommodation. In the original application, the proposed works comprised: Lower ground floor: · Convert subfloor area to air conditioned living rooms (no windows); · Convert male toilets to bedroom; · Convert two bedrooms (53 and 54) to storage; · Convert recreation room to four car (2 x 2 stacked) garage
Ground floor · New living area covering part of the existing internal courtyard opposite bedrooms 34 and 35.
Mezzanine · New living area opposite bedrooms 26 and 27.
First floor · Construction of a new living, dining and kitchen area incorporating a small extension of the building envelope in a southerly direction and use of space formerly occupied by rooms 19 and 20; · Increase height of glazed screen around the outdoor terrace.
8 Following the refusals of the development applications, the Council issued an order pursuant to s 121B of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") to the Applicant to cease use of the site as backpacker accommodation. This order was challenged by the Applicant and in Whiteway House (No. 348) Pty Limited v Waverley Council [2004] NSWLEC 694, the Court, by consent, issued the following order dated 10 November 2004: The use of the premises as backpacker accommodation shall cease unless the use operates in accordance with the Plan of Management annexed and marked "A". 9 The objective of the Plan of Management ("the POM") stated that: The objective of this Plan is to ensure that the operation of the Premises as backpacker accommodation does not unreasonably detract from the amenity of the surrounding residences and neighbourhood. 10 The Court also noted that: The Respondent acknowledges that the premises enjoy existing use rights for backpacker accommodation for no more than 95 occupants. 11 The operation of the POM is an important issue in this case. The POM covers guest parking restrictions, night-time management, restriction on the consumption of alcohol, the provision of an indoor smoking room, attempts to control noise emitted from the premises and the use of the rooftop terrace and other communal areas within the premises. The POM also provides for an incident and complaint register, a set of house rules for guests, the installation of closed circuit television cameras ("CCTVs") to monitor the front door area and the creation of a liaison committee to be established by the Council, the residents and the operator of the premises.
12 Clause 17 of the POM states that: 17. Parking for Guests
17.1 It will be a condition of stay at the Premises and a House Rule that Guests must not park vehicles in the following " Restricted Areas" without a permit issued in accordance with clause 17.2:
A. Fletcher Street between Sandridge Street & Silva Street B. Dellview Street between Fletcher Street and Carlisle Street C. Dellview Lane between Dellview Street and Silva Street D. Silva Street between Fletcher Street and Carlisle Street E. Roland Avenue between Fletcher Street and Wilga Street 17.2 The Manager may issue permits authorising parking in the Restricted Area provided that there shall never be anymore than seven parking permits on issue at anytime. The Manager must keep a record of whom parking permits are issued to and the duration of issue of the parking permit. These records must be made available for inspection by Waverley Council on demand.
17.3 Guests will only be permitted to park their vehicles in the Restricted Area with a permit issued by the Manager. All other guests must be instructed to park outside the Restricted Area. … Statutory Controls 13 Section 108(3) of the EP&A Act provides: An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.
14 Clause 41(1) of the Environmental Planning and Assessment Regulations 2000 ("the Regulations") provides: An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended …
15 The site is zoned 2(b) Residential - Medium Density under the LEP. Under the LEP "backpacker accommodation" is prohibited in the Residential 2(b) zone. The objectives of the zone are: (a) to allow for a variety of housing forms, including dwelling houses, residential flat buildings, townhouses and boarding houses; (b) to maintain an improve the amenity and existing characteristics of the locality; and (c) to allow certain non-residential uses of low intensity which are compatible with the character and scale of medium density attached housing. 16 Development Control Plan No. 12 - Guidelines for Boarding Houses, Backpacker Accommodation, and Bed and Breakfast establishments ("the DCP") provides guidelines for boarding houses, backpacker accommodation and bed and breakfast establishments. The DCP provides that it applies only to land that is zoned "Business zones only". There is a debate about what weight should be given to DCP 12 given that the current use has existing use rights.
17 Section 3 sets out "Guidelines for Backpacker accommodation". Section 3.2 sets out height and floor space ratio standards, however these are applicable only to business zones. The DCP provides that in this regard: A number of controls and guidelines listed above may not apply if the proposed backpacker development is established through the renovation and refurbishment of an existing building. However please be aware that refurbishment and extensions can have implications on adjoining properties, the amenity of the area and the public streetscape. 18 Section 3.2.2 sets out controls for parking. The requirement is that "off street parking is to be provided at the rate of 1 parking space per 15 beds, plus 1 parking space for the resident manager or vehicle operated by the establishment".
19 Section 3.3.1 contains the requirements in relation to sleeping rooms. The numerical requirement for density contained in section 3.3.1(i) is that "the number of people accommodated in a room will be determined by allocating a minimum of 5.5 square metres per person". Section 3.3.1(ii) provides for controls and guidelines in relation to amenity: · Allow adequate natural light and ventilation into the room. … · Provide adequate space and secure storage facilities to allow occupants to store clothes and travel gear. · Use appropriate floor coverings in the bedrooms to minimise the impact of noise. · Provide bedding and flooring which can be easily cleaned and maintained. 20 Section 3.3.4 sets out the requirements for laundry and drying facilities. The objective of the section is "to ensure there is adequate provision of washing and drying facilities".
21 Section 3.3.6 sets out the requirements for noise control in outdoor living areas. Section 3.3.6 specifies that "rooftop terraces are not permitted".
The Issues 22 The relevant issues in the Amended Statement of Issues for the DA for alterations and additions is as follows:
… 3. The proposed building works are unacceptable in that they fail [to] provide any parking facilities for guests or employees. 4. The conversion of accommodation rooms into kitchen, dining and living areas on the top level (third floor) will intensify the use of the sun deck recreation area causing adverse impacts on neighbouring properties in relation to acoustic and visual privacy. 5. Whether the proposal is satisfactory in relation to the following matters: (a) density … (c) noise control (d) parking 6. In relation to issue 5 above, whether the proposal is consistent with 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 of 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(ii) 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 noise control , the provisions of 3.3.6. (d) in relation to parking , the provisions of 3.3.2. 7. Whether the proposed building works reduce the size of the building's internal recreation courtyard have an unsatisfactory adverse impact on the amenity of guests including excessive noise and a decrease in open recreation space available to guests. 8. The proposed building works fail to provide adequate internal waste storage facilities.
26 Each of the three expert town planners provided town planning reports to the Court and gave concurrent oral evidence at the hearing. Ms Laidlaw, Mr Fox and Mr Gawne also provided a joint statement of evidence.
27 The Applicant relied on traffic expert evidence in two reports by Mr Josh Hollis. The Council relied on expert traffic evidence in a report by Mr Craig McLaren. Mr Hollis and Mr McLaren also provided a joint statement of evidence and gave concurrent oral evidence at the hearing.
28 The Respondent relied on oral evidence provided by Mr Robert Ryan, the Manager of "Bondi BeachHouse", and Mr Alfonso Picello, the Principal of the Applicant.
29 A number of local residents also attended and provided their evidence to the Court. The Court received oral evidence on site from: · Ms Debbie McNeal, of 1 Dellview Street, Tamarama; · Mrs Giaanaki, of 47 Fletcher Street, Tamarama; · Ms Paula Bertoli, of 16 Dellview Street, Tamarama; · Mr Eddy Frank, of 3 Dellview Street, Tamarama; · Ms Esendira Parez, of 12 Dellview Street, Tamarama; · Mr Mark Woodbury, of 10 Dellview Street, Tamarama; · Ms Zafeira Parmaxidou, of 2/61 Fletcher Street, Tamarama; · Mr Chris Roberston, of 22 Carlisle Street, Tamarama; · Mr Michael McNelis of 1/2 Dellview Street, Tamarama; and · Mr Michael Rourke of 4/2-6 Dellview Street, Tamarama.
30 There were also extensive resident submissions in the Council's evidence opposing these development applications. Ms Laidlaw's evidence The alterations and additions DA 31 Ms Laidlaw considered that the impact of the proposed works on general amenity did not warrant the refusal of the alterations and additions DA. In her view the internal amenity and density of the proposal would not be an issue because the bulk and scale of the development would not be significantly increased and there would not be any significant impacts in terms of overshadowing.
32 Accordingly, Ms Laidlaw supported approval of the alterations and additions DA subject to certain recommendations in relation to the rooftop terrace, the provision of on-site parking, the provision of fly screens in each bedroom and the relocation of the recreation room from the southern boundary. These recommendations were included in the amended plans provided by the Applicant during the course of the hearing. The intensification DA 33 In the joint statement of evidence provided by the expert town planners, Ms Laidlaw considered that there are two threshold tests to be addressed before the intensification DA could be approved. Firstly, that there are not unreasonable, or unresolved, management or environmental impact issues associated with the premises and secondly, that the internal amenity is appropriate to the needs of the guests. On the information available to her, Ms Laidlaw believed that some increase in intensity of occupation could be warranted on the basis that the current use was not generating unreasonable impact and on the basis that the premises appeared to be responsibly managed. However, Ms Laidlaw concluded that it would be difficult to form a view as to what an appropriate increase in the number of residents may be. In the joint statement of evidence Ms Laidlaw stated that an increase from 95 to 175 persons was of concern and that a preferable approach would be to allow a lesser increase to approximately 130 persons.
34 Ms Laidlaw was also of the view that any approval to the intensification DA should be tied into an effective POM. Ms Laidlaw considered that a good POM could be an extremely valuable tool, and noted that a well-managed facility of 100 people could cause fewer problems than a badly managed facility of half the number of people. Ms Laidlaw considered that there was room for improvement in the current POM and that it could, for example, set more specific and measurable performance goals and an improved complaint management system. Ms Laidlaw recommended the following amendments to the POM: · That local residents are formally advised a complaint management system exists; · That they are provided not only with the name of the manager/night manager, but also the name of a person within the Council, that they can lodge a complaint with. The responsible officer within Council should then be responsible for referring that complain to the management; · That procedures are incorporated to ensure that all complaints are investigated and that the resident is advised of action taken in that regard; · As complaints directed to Council would not be able to be investigated at time of occurrence, the manager/night manager should be required to make a daily record of circumstances around the premises, based on regular inspections around the boundaries during the day and night time.
35 Ms Laidlaw also recommended that the POM incorporate the following specific performance goals: · That no groups should be permitted to gather outside of the premises, other than when awaiting transport; · Management will not permit loitering, smoking or drinking on the footpaths/verges adjoining, in the vicinity of, or opposite the premises; · Hanging of towels, clothes etc outside of windows should be prohibited at all times; · The rooftop terrace be locked from 9pm to 8am daily (or 10pm to 8am if no alcohol is permitted in the adjoining living/dining area); · Guests should not be permitted to play music or alternatively make noise that would be audible and offensive outside the boundaries of the site, from any bedroom or the rooftop terrace.
Mr Fox's evidence 36 Mr Fox noted that when the intensification DA was lodged the proposal complied with the then acceptable rate in commercial zones of 3.25sq m per person, now 5.5sq m per person, under the DCP. Mr Fox considered that as the proposal complied with all internal amenity standards, with the exception of density, the proposal was acceptable. Mr Fox also considered the POM to be effective.
Mr Gawne's evidence 37 In relation to density, Mr Gawne's view was that the proposal is already non-conforming and that the proposed increase in guest numbers would lead to unreasonable levels of internal amenity and unacceptable external impacts. Mr Gawne also expressed some doubt as to whether the POM was appropriate or could work effectively for the increased number of guests. Mr Hollis' expert traffic evidence 38 In his first report, Mr Hollis only considered the guest parking demand generated by the Applicant. In his statement in reply, Mr Hollis commented on the three types of parking demand generated by the Applicant as identified by Mr McLaren: · guest parking · staff parking and · delivery and visitor vehicles.
39 In the joint report provided by the traffic experts Mr Hollis considered that the parking demands associated with the increase in the number of beds in the intensification DA can be accommodated within the provisions of the current POM approved by the Court.
(a) Guest parking 40 Based on travel modes of guests for the period 15 November 2004 to 27 April 2005 provided by the Applicant and his own survey of 57 guests entering the premises from 4.00 pm to 7.00 pm on a Thursday, and 2.00 pm to 5.00 pm on a Saturday in July 2002, Mr Hollis considered that the proposed intensification would generate a parking demand of up to five or six guests' cars. As the POM approved by the Court provides for up to seven permits to be issued for guests to park, parking for the proposed intensification DA would therefore be accommodated within the provisions of the POM.
(b) Staff parking 41 Currently, there is no on-site parking provided by the Applicant. As there is no increase in the number of staff proposed and the proposed works provide for on-site staff parking Mr Hollis considered that the proposed works would represent an improvement over the existing staff parking situation.
(c) Delivery and visitor vehicles 42 Assuming that the number of taxis, deliveries and visitors increases in proportion to the number of beds, Mr Hollis considered that the proposed development would generate only one additional vehicle per hour. Mr Hollis stated that this would not generally be noticeable and would not have a significant effect on the operation or amenity of the surrounding road network.
Mr McLaren's expert traffic evidence 43 Mr McLaren undertook a traffic survey of guests arriving and departing from the backpacker accommodation from 5.00 pm on 27 May 2005 to 1.00 am 28 May 2005. In addition, Mr McLaren commissioned Curtis Traffic Surveys to undertake parking utilisation surveys in the area over two Fridays and a Saturday in May 2005 from 5.00 am to 1.00 am the following day and a Monday morning in May 2005 from 5.00 am to 10.00 am in order to check the existing parking demand. His studies showed that there were seven parked vehicles which could be attributed to the backpacker accommodation on 27 May 2005. However, in concurrent evidence the experts noted that three of the seven vehicles were staff vehicles, one vehicle was a motorcycle and the remaining three were not hotel guests. Nevertheless Mr McLaren concluded that the backpacker accommodation generated a parking demand of seven vehicles.
44 Mr McLaren's studies also showed that there was insufficient parking to accommodate demand in the area, particularly for overnight parking, equating to 15 to 40 car spaces generally and 10 to 20 car spaces within the Restricted Area referred to in the POM. Mr McLaren's findings are consistent with the evidence given by the resident objectors in relation to the high incidence of illegal parking in the area.
(a) Guest parking 45 Mr McLaren criticised Mr Hollis' methodology and considered that the parking rate provided by Mr Hollis should be rejected on the basis that: · Mr Hollis' surveys were too limited, surveying only 57 persons over a total of 6 hours representing only 0.1 per cent of guests arriving over a one year period. · There is no evidence that the time at which the surveys took place reflected the peak arrival day and time of arrival of guests. · The surveys were taken during winter and do not account for seasonal variations and the increased demand for parking during the summer months. · A proportion of guests surveyed may have arrived previously in the day and parked their car in nearby streets and at the interview survey times may have returned from a non-car trip.
46 In order to determine the number of guest car spaces generated by the intensification DA, Mr McLaren referred to the parking rate of 1 space per 15 beds contained in s 3.2.2 of the DCP. Clearly the number of car spaces provided by the proposal is short of that required by the parking rate contained in the DCP. While acknowledging that the DCP may not apply, Mr McLaren was of the view that there was insufficient information in terms of independent and rigorous parking demand surveys to justify a departure from the Council's parking rate.
47 Based upon the application of the parking rate contained in s 3.2.2 of the DCP, Mr McLaren considered that 80 extra beds equated to a requirement for approximately six on-site parking spaces. Accordingly, Mr McLaren concluded that the POM was not an effective control for the additional 80 beds proposed by the intensification DA. Mr McLaren also questioned the practicality of the POM and expressed concerns about its enforceability.
(b) Staff parking 48 Mr McLaren considered that the provision of three on-site car spaces for staff vehicles would satisfy s 3.2.2 of the DCP.
(c) Delivery and visitor vehicles 49 Mr McLaren considered that the proposed development would adversely affect the amenity of the surrounding residents in terms of kerbside parking demand, the adverse double parking activity, and increase safety risks associated with increased traffic on the surrounding road network. Mr McLaren considered that kerbside parking demand currently substantially exceeded supply and that the kerbside parking area surrounding the premises could not sustain any increase in demand. Mr McLaren estimated that there would be additional traffic generation of up to eight vehicles per hour in peak periods for the drop-off and collection of guests.
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.
52 Following receipt of the expert evidence there were amendments to the Applicant's plans in the course of the hearing. The amendments made the following changes to the original proposal: Lower ground floor · Convert bedrooms 60 and 61 to recreation rooms; · Convert existing garage and recreation room to a staff parking area for three staff car parks; · Provide a garbage/bin store room; · Provide a wider garage door opening and roller door for garage; · Widening of the part garage area and provide for the addition of new brick walls; · Provide new alarmed fire door to existing tiled courtyard area on southern boundary; · Provide new exit gate from existing tiled courtyard area on southern boundary to Dellview Street; · Relocate spa from rooftop terrace to lower ground floor.
Ground floor · Delete new living area opposite bedrooms 34 and 35; · Add fly screens to windows.
Mezzanine · Delete new living area opposite bedrooms 26 and 27; · Add fly screens to windows.
First floor · Delete kitchen and living areas; · Modify dining room so that it is contained in the existing building envelope by converting/extending bedroom 19 to dining room with two new fixed glass windows and converting bedroom 20 to dining room; · Provide new clear glass balustrades 1.2m high with a 1.5m setback on south edge of rooftop terrace; · Provide new frosted balustrades 1.2m high to east and west edges of rooftop terrace.
Applicant's submissions Applicability of the DCP 53 The Applicant submitted that the DCP did not apply to these proceedings. On a strict reading of the DCP, it applies only to land that is zoned "Business Zone". The Applicant concedes that a DCP is not an environmental planning instrument ("EPI"). However, the Applicant submitted that as a DCP derives its power from an LEP, as a matter of logical extension, s 108(3) applies to the DCP. The intensification DA 54 The Applicant submitted that the intensification DA raises no internal amenity and external impact issues. In relation to internal amenity, the Applicant argued that even if the DCP applies, the density standard of 5.5sq m contained in s 3.3 of the DCP should not be applied strictly because internal amenity is satisfactory even in the most confined room. This was consistent with the evidence of Ms Laidlaw who was prepared to relax the standard to facilitate an occupancy of more than 95 persons. The Applicant also noted that the intensification DA satisfied the other requirements of the DCP relating to internal amenity.
55 The Applicant also argued that the external impact of the proposed work did not warrant refusal of the intensification DA. The Applicant argued that irrespective of the number of guests staying at the hostel, the external impact could be minimised to an acceptable limit with proper management. In this regard the Applicant relied on the controls placed on external impacts by the POM, together with the proposed alterations to the rooftop and internal living space. The Applicant argued that there would be no difference in external impact if guest numbers increase from 95 to 175.
The alterations and additions DA 56 Based on the evidence provided by Ms Laidlaw and Mr Picello the Applicant argued that the proposed work in the alterations and additions DA provided significant improvements to the current backpacker accommodation. Other significant improvements in terms of noise would result from the increased setback of glass balustrades on the rooftop terrace and the removal of the recreation room from the southern boundary. The Applicant also argued that the provision of three on-site car parking spaces for staff vehicles would provide a significant improvement in terms of parking and traffic. Parking/Traffic 57 The Applicant argued that the intensification DA should not be refused on the basis of parking and traffic. The Applicant submitted that the Court should prefer the parking rate provided by Mr Hollis and supported by Ms Laidlaw. Ms Laidlaw adopted the car parking rate of Mr Hollis of five to six guest car spaces required for 175 persons on the basis that there was no data presented to the Court to suggest that the current use was generating a demand of more than three guest permits. At this rate, the average parking demand for the current development would be five to six cars, still fewer than the seven permits that the Applicant is able to issue to guests under the current POM.
58 Even if the Court was minded to prefer the evidence of Mr McLaren, the Applicant submitted that in any event the proposal should be accepted because the intensification DA does not change the parking situation, and if anything provides a net positive effect by providing on-site parking. This is because the intensification DA provides three extra on-site staff car spaces and because the POM limits the number of guests able to park to seven, wherever the guests park.
59 The Applicant conceded that there would be an additional number of delivery vehicles and visitor vehicles, such as taxis, however to some extent this was out of Applicant's control. General Amenity 60 The Applicant argued that the resulting development either does not result in impacts or reduces existing impacts sufficiently that the intensification DA and the alterations and additions DA should be granted.
POM 61 The Applicant argued that the backpacker accommodation, as confirmed by Ms Laidlaw in her report, was well managed. Any adverse impacts that may result from the proposed works would be minimised to an acceptable level.
62 If the Court did not grant consent to the intensification DA and an expansion of the number of guests allowed, the Applicant stated that it would only seek consent in relation to some of the lower ground floor works proposed by the additions and alterations DA (see Exhibit M, Part A). These lower ground works were indicated by the lower ground floor plans in Exhibit A as amended by Exhibit B and included the following: · Convert subfloor area to air conditioned living rooms (no windows); · Convert male toilets to bedroom; · Convert two bedrooms (53 and 54) to storage; · Convert existing garage to: · A staff parking area for one staff car park; · Provide a garbage/bin store room; · Provide new alarmed fire door to existing tiled courtyard area on southern boundary; · Provide new exit gate from existing tiled courtyard area on southern boundary to Dellview Street.
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.
67 The Council also expressed concerns in relation to increased double parking, safety risks, delivery and visitor vehicles and the management and enforceability of the POM. Relying on the evidence of Mr McLaren, the Council submitted that the proposal would adversely affect the amenity of the surrounding residents in terms of kerbside parking demand, would increase double parking activity, and would increase safety risks associated with increased traffic on the surrounding road network. The impact of the proposal on double parking and safety was not an issue that was considered in Mr Hollis' evidence. In addition, the Council questioned the ability of the Applicant to apply and enforce the restriction of seven guest parking permits as provided by the POM given the criticisms outlined of the process in Mr McLaren's evidence. General Amenity 68 The Council relied on the evidence of Mr Gawne in relation to general amenity and submitted that while not determinative of consent, general amenity was a matter that warranted consideration. In relation to the internal amenity of the development Mr Gawne noted that the existing development had a population density of 570 persons per hectare and a floor space of some 258 per cent in excess of that permitted by the LEP and that the proposed development had a population density of over 1,000 persons per hectare. In Mr Gawne's view, any increased floor area and site occupancy above that which currently exists cannot be justified. Notwithstanding the existing use rights that apply to the development, there is a general expectation that future developments should satisfy the objectives established by the relevant zone.
69 In relation to external amenity, Mr Gawne noted that the residents were clearly frustrated and agitated by the existing establishment and argued that any increase in the number of guests would have a further detrimental impact on the surrounding residents' amenity. Given that the POM had existing enforcement problems, Mr Gawne questioned whether a POM would be appropriate to address the concerns of residents if the number of guests was increased to 175.
POM 70 The Council argued that Ms Laidlaw's view that the backpacker accommodation was well managed was premature given that elements of the POM such as the CCTVs and the community liaison committee, have not yet been fully implemented. It is therefore too early for the Applicant to argue that the premises are well managed under the POM so that the impacts from an 80 per cent increase in patronage can be minimised to an acceptable level.
Finding 71 Although there were two separate proceedings before me the issues were essentially dealt with collectively, and appropriately so in my view. The question of whether the intensification of the existing use ought be allowed is intimately connected to the operation of the current POM and also the built form proposed by the alterations and additions DA. The key issue to be determined is whether the intensification DA ought be granted. If the Court does not grant development consent for the intensification DA, then consent for only that part of the alterations and additions DA dealing with the lower ground floor is sought by the Applicant as per exhibit M. This would mean the provision of a single staff car park on-site, a garbage bin room with the recreation/games room remaining in the same place with some measures to reduce noise and a gate built into the fence leading to Dellview Street to enable fire egress.
Applicability of the DCP 72 The combined effect of s 108(3) of the EP&A Act and cl 41(1) of the Regulations is that planning instruments that derogate from cl 41(1) do not apply to the assessment of development applications on sites with existing use rights. In assessing any such development application, relevant matters arising under s 79C(1) of the EP&A Act must be taken into account, but any provisions that derogate from the existing use have no direct force and effect (see Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council (2000) 114 LGERA 345 per Pearlman J at 356 and Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 at 378). 73 In the current proceedings I cannot apply the LEP or DCP if these derogate from the existing use rights. The DCP can be considered as providing an indication of the extent to which the current application varies from Council controls to aid in the assessment of the likely impact and can be given some weight in that context.
74 Because the premises have existing use rights, the issue to determine is whether the impacts resulting from intensification of that use are inappropriate and unreasonable. The DCP will be considered in the areas of density, parking and noise.
Alterations and additions DA - internal amenity 75 While there are concerns raised by the consultant planner, Mr Gawne, about internal amenity of the guests, the Council did not submit in its final submissions that these were sufficient to justify refusal. If the DCP applied it would require a minimum of 5.5 sq m per person. The proposal provides a variety of occupancy levels from 3.25sq m per person to 6.4sq m per person and a proposed average rate of approximately 4sq m per person. Having had the benefit of a view I agree with Ms Laidlaw and Mr Fox that the concerns about density and internal amenity issues do not justify refusal. The increase in numbers can be largely accommodated within the existing building envelope and fewer bedrooms.
76 Further issues that have been resolved or I do not consider to be contentious are the provision of adequate laundry and drying facilities, fire egress to Dellview Street and the internal amenity of residents including adequacy of the internal recreation courtyard. I agree that the alterations and additions are able to be almost entirely incorporated into the existing building envelope and that these on their own do not warrant refusal.
77 The remaining issues relate to the intensification DA and are parking/traffic, dumping of cars, noise, waste management, resident objections and the effectiveness of the POM. These key issues concern the level of external impact if the intensification of guest numbers to 175 occurs.
Parking/Traffic 78 There is presently no parking provided on the premises at all. There are currently no Council restrictions limiting parking times in the area. Parking generally in the area is clearly a major problem regardless of the operation of this backpacker accommodation. The DCP does provide some guidance on how the application would be treated in a commercial, that is less sensitive, zone. Section 3.2.2 of the DCP states that the development is required to have off street parking at a rate of one car space per 15 beds. If the DCP is applied, 175 persons would require approximately 12 on-site parking spaces for guests and one on-site car space for staff. 79 Current operations taking into account the POM result in the following: (a) Guest parking - There is no on-site guest parking. Under cl 17 of the POM a permit system operates whereby up to seven permits can be issued for a defined "restricted area". This is an attempt to limit guest vehicles parking close to the premises. There is no limit attempted on parking beyond this small area. The issue of a permit does not give the holder any "right" to a parking spot. (b) Staff parking - There is no on-site parking for the three staff cars and no particular arrangements in relation to these.
(c) Visitor parking/delivery and drop-off/pick up vehicles - There are no arrangements in place for delivery and drop-off vehicles or visitor parking. At present delivery vehicles, taxis and buses drop off and collect guests in front of the building in Fletcher Street. Mr McLaren has expressed concerns about traffic safety as each time this occurs the vehicle must double park due to the presence of parked vehicles outside the premises. 80 The increase in guest numbers is proposed to be managed in relation to these impacts as follows: (a) Guest parking - The current POM will continue, amended so that a total of seven permits for parking anywhere is allocated, that is, the total cap for permits issued to park anywhere is seven. Any guest with a vehicle wishing to stay once the seven permits have been issued will be refused accommodation. (b) Staff parking - Three car parking spaces on site are proposed. This will ensure staff parking, at its current level, can be accommodated on the site.
(c) Visitor parking/delivery and drop-off/pick-up vehicles - There are no proposed changes to delivery and drop-off/pick-up vehicles. There is no provision for visitor parking.
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.
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.
I have no evidence on this issue and cannot form a view as to whether such a measure would be appropriate given the overall parking issues in this area. 86 I consider that if the intensification proceeds the additional impacts from guest parking and drop off/pick up in this area are likely to be unreasonable, given the current state of parking and traffic movements in the area. I note the Applicant's evidence that the hostel is operated at full capacity for much of the year. 87 This case underscores the necessity for greater coordination of expert evidence in case preparation. If no Court appointed expert is chosen, as would seem appropriate for most traffic issues, it is incumbent upon the parties and their experts to at least agree on a common methodology and data set. The preparation of two different traffic studies prepared for different time periods is to be avoided. It is unfortunate that more information about the Applicant's data was not supplied so that Mr McLaren could have been made aware before finalising his evidence that, for example, three staff cars were identified in the relevant survey.
Dumping of cars 88 Residents raised concerns about the frequent dumping of cars in the area around the premises. The town planning experts agreed that it was very difficult to clarify whether the problems raised by residents were linked to these premises. There have apparently been illegal backpacker operations in the area and these may have caused some of the problems. The manager, Mr Ryan, gave evidence that where a resident notified him of a dumped car and the registration of that car matched records of guests who had stayed at the premises, then the Applicant paid to have the car towed away and dumped in an appropriate place. Ms Laidlaw felt that this was probably the best way to manage this issue and appropriate procedures should be recorded in the POM. I consider this issue can be managed with cooperation between residents and the management of the premises.
Noise 89 Section 3.3.6 of the DCP provides controls to ensure that the noise from the building does not disturb the amenity of the adjoining residents. One control states that there should be no rooftop terrace. The current operations result in the following: (a) Rooftop terrace - There is a rooftop terrace at the top of the building that is currently closed at 9.00 pm each night although the POM specifies it must be closed at 10.00 pm. There are now no longer any organised activities such as barbeques in this area since the POM was implemented in November 2004. Smoking in this area is allowed. The railings are open so that noise is not contained and any rubbish or cigarette butts dropped may blow off onto neighbouring properties. This has been occurring particularly in relation to the next door neighbour on the southern side, a single storey dwelling well below the level of the rooftop terrace.
(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:
95 Question 2 - The requirements for the behaviour of guests and management do not appear to be unreasonable in the circumstances. Are the guests or management unlikely to comply with the requirements? The residents' objections are set out at par 50 above. Ms Laidlaw's summary of complaints contained in the incident record book is set out at par 51 above. Her finding is that apart from the complaints from the use of the games room there have been relatively few recorded complaints. I consider the residents' concerns must be given some weight considering the long standing nature of the complaints about these premises from several residents who have lived in the area for many years, and also given their statements that complaints are under recorded. Approximately half the complaints are concerned with guest behaviour both inside and outside the building. The POM is the principal mechanism proposed by the Applicant to manage these impacts. 96 There are several aspects of the POM which have caused changes to the management of the premises, in particular the rooftop terrace closing at 9.00 pm (previously open until midnight), no organised activities being held in this area, greater control of music and television hours, and rubbish bins being removed from the pavement by 9.30 am. Ms Laidlaw concludes that the premises are well managed based on her observations over several visits. This view is in conflict with the evidence of the residents.
97 Two important aspects of the POM are not yet in place, being the resident liaison committee and the CCTV. There is no mechanism in place for when any noise measurement would take place or by whom. 98 It appears likely that the external impacts of the operations have improved since the POM was implemented in November 2004. It is clear from the residents' evidence however that the situation is not currently problem free. It remains likely that with such a large increase in guest numbers proposed, there will be breaches of the POM by some guests.
99 Question 3 - Can the source of any breaches of the POM be readily identified to allow for any enforcement action? Where the activity complained of is on the premises its source can be readily identified. Where the activity complained of is outside the premises it is less clear that the source can be identified in that it may not be clear if a person who is the cause of a complaint is a guest of the hostel. 100 Question 4 - Is absolute compliance required to achieve an acceptable outcome? Probably not, in that a few complaints a year would not render the premises unacceptable. A small number of breaches should not create an unacceptable outcome. The evidence is not conclusive however that with the large increase in guest numbers there will only be a few complaints a year. 101 Question 5 - The guests and management can be expected to know of the POM's requirements given the posting of house rules in the premises. Question 6 - If approved the POM would become a condition of consent. Question 7 - The current POM does contain complaint management procedures but questions have been raised by residents as to whether these are satisfactory. Question 8 - There is no procedure in place for updating the POM.
102 Given these circumstances in relation to the POM, I am not convinced that allowing a substantial expansion in numbers from 95 to 175 will not be accompanied by an unacceptable increase in adverse impacts. While Ms Laidlaw proposed in her evidence that the guest numbers could be increased incrementally to 130 to determine if impacts are satisfactory, rather than 175 immediately, the Applicant rejected that approach. It is appropriate that I refuse the intensification DA on this basis also as I am not satisfied that the impacts will not be unreasonable.
Waste Management 103 One of the residents' complaints is that the ten rubbish bins emptied daily at the premises in Dellview Street are collected between 6.00 am and 7.00 am every day, a very noisy event at that time every morning. The Council is currently the collector of this waste and regardless of any other decision made by this Court immediate enquiries ought be made, if they have not already, to see if the collection can take place later in the morning. 104 I consider that the issue of waste management can be managed by a clause in the POM which states what time garbage bins may be put out for collection and what times are suitable for garbage collection. The waste management issue is also improved by the provision of an indoor garbage bin storeroom in the amended plans.
Conclusion 105 For the reasons outlined above I consider that development application no. 446/00 in Matter No. 10983 of 2004 for an increase in the number of beds from 95 to 175 should be refused. I am generally minded to approve development application no. 876/01 in Matter No. 10982 of 2004 for alterations and addition to the existing backpacker accommodation in relation to the lower ground floor works (see Exhibit M, Part A) subject to certain clarifications and conditions of consent. As the draft conditions of consent were prepared on the basis of more extensive plans I would ask that the parties further advise the Court of what conditions they consider appropriate. 106 The POM is not included in the conditions of consent for the alterations and additions DA but rather for the intensification DA. However, given that this approval includes changes to the keeping of garbage bins I consider the POM should be amended as part of this consent to include provisions relating to when bins are put out for collection and the time of collection. Consideration should also be given to provisions to deal with dumped cars.
107 I also require clarification of the extent to which the laundry area is to be altered. The conditions of consent also need to take into account that the surface of the Dellview Street entrance needs to be changed to reduce noise from the garbage bins as recommended by Ms Laidlaw. I would ask the parties to confer to see if additional conditions relating to the fixing of fly screens to windows and the provision of drying racks or rails in each bedroom are appropriate. To that end I will ask the parties to come back before me in seven (7) days to allow final orders to be made.
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.
Whiteway House (No. 348) Pty Limited
Waverley Council
CITATION : Whiteway House (No. 348) Pty Limited v Waverley Council [2005] NSWLEC 388
Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council (2000) 114 LGERA 345; Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373; CASES CITED: Renaldo Plus 3 Limited v Hurstville City Council [2005] NSWLEC 315; Whiteway House (No. 348) Pty Limited v Waverley Council [2004] NSWLEC 694
(2000) 114 LGERA 345
(1997) 93 LGERA 373