Hyvan Pty Limited v Marrickville Council [2001] NSWLEC 19

Land and Environment Court of New South Wales

CITATION : Hyvan Pty Limited v Marrickville Council [2001] NSWLEC 19 APPLICANT: Hyvan Pty Limited PARTIES : RESPONDENT: Marrickville Council

FILE NUMBER(S) : 10668 of 2000 CORAM: Lloyd J KEY ISSUES: Development Application :- amenity impacts - avoidance of conditions which require ongoing supervision LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s96 and s97 CASES CITED: William McKenzie Pty Limited v Leichhardt Municipal Council (1964) 10 LGRA 137;; Gillott v Hornsby Shire Council (1964) 10 LGRA 285 DATES OF HEARING: 02/11/2000 and 03/11/2000 EX TEMPORE JUDGMENT DATE : 11/03/2000

APPLICANT: Mr J J Webster (Barrister) SOLICITORS: Stewart Smith & Associates LEGAL REPRESENTATIVES: RESPONDENT: Ms M Hawley (Solicitor) SOLICITORS: Phillips Fox

JUDGMENT: IN THE LAND AND Matter No. 10668 of 2000ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 3 November 2000Hyvan Pty LimitedApplicantvMarrickville CouncilRespondentEX TEMPORE JUDGMENTHIS HONOUR:1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the decision of the respondent, Marrickville Council ("the council"), to refuse a development application to operate a taxi changeover base for thirty taxis with not more than fifteen taxis occupying the base at any one time. It is proposed that the base operate twenty-four hours a day seven days a week.2. The premises are known as Nos. 589-591 New Canterbury Road, Dulwich Hill and are within Zone No. 2A (Residential A) under the relevant environmental planning instrument, the Marrickville Planning Scheme Ordinance. The proposed development is prohibited within that zone. 3. On 21 May 1997, however, the council had granted development consent for the use of the property for the purpose of a taxi changeover base for five taxis in conjunction with an existing mechanical workshop. In granting that consent the council was satisfied that the existing use of the land, presumably for the purpose of the existing mechanical workshop, was an existing use within the meaning of section 106 of the EP&A Act.4. The existing consent granted on 21 May 1997 was subject to a number of conditions. Those conditions included Condition 2 which limits the use of the premises to not more than five taxis, Condition 3 which requires the provision of 15 off street car parking spaces for the entire development, Condition 6 which limits the hours of operation from 5 am to 12 midnight every day and Condition 9 which requires all vehicles associated with the use to be accommodated wholly within the property and not be parked on the adjoining roads and footpaths.5. According to the evidence the applicant thereafter used the property in breach of the conditions to which I have referred. The applicant used the property as a taxi changeover base for more than five taxis, did not provide fifteen car parking spaces for the entire development, used the property as a taxi changeover base twenty-fours a day and both taxis and the private vehicles of taxi drivers were parked on adjoining roads.6. On 22 July 1998 the council served a notice of proposed order under section 121H of the EP&A Act in relation to the non-compliance with the conditions of development consent.7. On 21 October 1998 the applicant made an application to the council under section 96 of the EP&A Act to modify the existing consent. The modifications sought included an extension of the hours of operation to twenty-four hours a day and to increase the number of taxis from five to fifteen.8. The application was publicly notified and seven objections were received by the council. Two of these were petitions, one containing twenty-two signatures and the other twenty-five signatures. The main grounds of objection were the parking of vehicles in adjacent and nearby streets, increased traffic and increased noise.9. On 18 January 1999 the council refused the application for modification. The applicant appealed to the Court. The appeal was heard by Commissioner Hussey on 2 and 3 December 1999. In the course of the appeal the applicant amended the application to seek approval for forty taxis to use the base with no more than fifteen to be on the site at any one time. On 6 December 1999 the Commissioner dismissed the appeal. 10. On 27 January 2000 the council commenced proceedings in Class 4 of the Court's jurisdiction seeking a declaration that the applicant had breached and continues to be in breach of the existing development consent and seeking an order restraining it from such breach.11. On 11 February 2000 the applicant lodged the development application which is the subject of this appeal. The development application was publicly notified and four objections were received by the council raising essentially the same grounds of objection which had been made to the application for modification of the existing consent.12. On 5 April 2000 the parties agreed to consent orders in the class four proceedings pending the determination of those proceedings. I note that the class four proceedings have been stood over to await the outcome of the present appeal. The consent orders to which the parties agreed effectively limited the use of the premises in the interim to twenty taxis, the provision of fifteen car parking spaces and a prohibition on the parking or changeover of taxis in adjoining residential streets, inter alia.13. By a notice of determination dated 8 June 2000 the council refused the development application on the following three grounds:- (1) The proposed hours of operation and number of taxis operating from the property would adversely impact upon the amenity of the surrounding residential neighbourhood. (2) Insufficient off street car parking is available to accommodate parking for employees, drivers and the taxi vehicles at change-over times. (3) The lack of satisfactory off street car parking would create increased traffic hazard and congestion in the area during the afternoon changeover.14. The premises are located in an area which is not only zoned for residential purposes but is also predominantly developed for residential purposes. On the adjacent property there is an auto electrical business but apart from that the surrounding development, including that on the opposite side of New Canterbury Road, comprises a mix of residential dwelling houses and residential flat buildings.15. Expert evidence was given for the applicant by Mr L M Fletcher, a director of Garry Shiels & Associates Pty Limited (urban and traffic planners), Mr G L Marshall ( traffic engineer) and Mr S E Cooper (acoustical engineer).16. Expert evidence for the council was given by Mr J Norman (town planner) and by Mr B J Murray (acoustical engineer).17. One of the principal issues arising in the appeal was that of noise emanating from the premises, particularly during the 2.00 am to 4.00 am change-over period. In addition to changing over the taxis must be washed, cleaned and serviced once a day and this occurs during the changeover period. Other potential noise sources during this period include the closing of car doors, the starting of engines and the acceleration of vehicles.18. Noise generated from the premises during the 2.00 pm to 4.00 pm changeover period was accepted as being insignificant in light of the higher ambient noise levels at that time.19. Both Mr Cooper and Mr Murray were in agreement that a condition of consent proposed by Mr Cooper would be appropriate to govern the noise level caused by activities on the premises. That condition nominates a fixed maximum noise level above the ambient background when assessed outside any bedroom window of any habitable premises. The applicant says that it can comply with the condition. Mr Cooper says that it can comply with the condition and Mr Murray concedes that the condition, if imposed, would be appropriate.20. Mr Murray expressed a concern, however, in relation to the 2.00 am to 4.00 am changeover period as to noise generated outside the premises. Taxi drivers who park their cars in the adjoining residential streets would generate audible noises by the closing of doors, the starting of engines, the acceleration of vehicles and conversations outside residences.21. This kind of disturbance to the amenity of the nearby residential neighbourhood has occurred in the past. In order to control it and minimise other impacts of the development the applicant has proposed a plan of management. The plan of management includes the following procedures designed to ensure that local residents are not disturbed by the movement of vehicles and associated noise in nearby residential streets:- Permanent Drivers: A roster system shall operate so that permanent drivers who now drive to work for the day and night shifts and live locally are rostered in pairs so that the taxi changeover takes place at the driver's home. These drivers shall not drive to the base and thus on street parking will be eliminated. Taxi drivers who now walk or catch public transport or who are dropped off at the base to start their shift will be rostered in pairs and the taxi changeover will continue to be made at the base. All casual drivers that use their own private vehicle to come to the subject site shall report to the manager in his vehicle and hand to the manager the keys to his car. The manager shall arrange for the parking of that vehicle in the nominated space upon the site or on New Canterbury Road. No private vehicle is to be parked in any residential street other than New Canterbury Road. Employment: It shall be made a condition of employment that the driver shall comply with (1) and (2) above.22. During the hearing Mr J J Webster, who appears for the applicant agreed to delete the words "and live locally" from the management plan which relates to permanent drivers.23. I have some reservations as to whether these and other procedures set out in the plan of management will be observed. During the important night shift the permanent drivers who live locally, that is, within 3 kilometres of the premises, comprise about 60 per cent of the work force of drivers.24. I also have reservations as to whether the 40 per cent of permanent drivers who do not live locally will be able to conform with the plan of management. On weekends the drivers are mainly casuals and mainly drive to the premises in their own private vehicles.25. Parking within the premises is restricted to twenty spaces. Five of the parking spaces within the premises are reserved for staff members. Fifteen spaces will, according to the development application, be required for taxis. This leaves no spaces for the private vehicles of drivers.26. Mr Marshall suggests that as a result of his parking survey there is a capacity to park five private vehicles on the premises in spaces not utilised by taxis. Nevertheless, it would seem that there may be a significant demand for parking on adjacent or nearby residential streets with the consequent disturbance to the amenity of the surrounding residential neighbourhood. Alternatively, if all the drivers' private vehicles are parked on the premises there would be no room for taxis.27. I am left with the impression that there will inevitably be on street parking in the surrounding residential area with consequent disturbance to the amenity of that area during the early morning changeover period.28. I am left with the impression that the premises are simply too small to accommodate the number of vehicles required.29. I am also uncomfortable with the commitment of the applicant to enforcing a plan of management. When the applicant obtained the existing development consent in May 1997 it proceeded to ignore the conditions of that consent in the manner I have described. The applicant demonstrated a disregard for the conditions of the development consent to the detriment of the amenity of the surrounding neighbourhood. No one involved in the management of the applicant was called to give evidence to explain this conduct or to explain how the management plan would be enforced if drivers chose to park in the residential streets. 30. I accept the applicant's submission that it has been observing the consent orders which were made on 5 April 2000 but they are much less onerous than the proposed plan of management and the applicant knows that its conduct is under some scrutiny whilst the Class 4 proceedings are pending.31. It has long been held that an attempt should be made to avoid the imposition of conditions which require continuous supervision and more particularly so where supervision may entail difficulties of inspection: see William McKenzie Pty Limited v Leichhardt Municipal Council (1964) 10 LGRA 137 at 145 and Gillott v Hornsby Shire Council (1964) 10 LGRA 285 at 290. The need for the imposition of conditions which require ongoing supervision such as the management plan to which I have referred suggests that the development itself is probably inappropriate.32. For the reasons I have mentioned, namely, that the subject premises in my opinion appear to be too small to accommodate the number of vehicles required and the need for reliance upon a commitment of management to enforcing the proposed plan of management, as to which I have expressed reservations, the appeal must be dismissed.33. The formal orders are:- 1. Appeal dismissed. 2. The exhibits may be returned.