A C Perazzo Design Works v Camden C [2003] NSWLEC 424

> Land and Environment Court of New South Wales

CITATION : A C Perazzo Design Works v Camden C [2003] NSWLEC 424 APPLICANT A Ceasar Perazzo A C Perazzo Design Works PARTIES : RESPONDENT Camden Council

FILE NUMBER(S) : 10527 of 2003 CORAM: Murrell C KEY ISSUES: Development Application :- extension of trading hours for a trial period - impact on residential amenity.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Tzang v Canterbury Council; CASES CITED: Terrace Tower Holdings P/L v Sutherland Shire Council; Golding v The Minister Administering the Ports DATES OF HEARING: 21/10/03 and 22/10/2003; EX TEMPORE JUDGMENT DATE : 10/22/2003

APPLICANT Mr D. Wilson, barrister

LEGAL REPRESENTATIVES: RESPONDENT Mr Hudson, solicitor

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10527 of 2003

Murrell C

22 October 2003 A Ceasar Perazzo A C Perazzo Design Works Applicant v Camden Council Respondent Preliminary Findings 1 I preface my judgment by saying that I do not propose to issue final orders today, but that will become clear in my judgment. 2 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Camden Council's refusal of a development application for the extension of trading hours for the Narellan Hotel, which is located at 279 Camden Valley Way, Narellan. The hotel is part single and part two storey and a refurbishment and extension were recently completed. The operation of the hotel post the refurbishment and extension commenced approximately at the end of April 2003. 3 According to Mr Coady's report, it has a total gross floor area of approximately 785 sq ms, and a public floor area of approximately 455 sq ms. The hotel has an informal car park with a total area of approximately 4,400 sq ms, that can accommodate up to approximately 200 vehicles, although in practice the hotel parking demand is considerably less. 4 The subject development application is for the extension of the trading hours. The hotel currently operates to midnight, and the proposal is that the extension of the hours would be from midnight through to 8am, which effectively would allow a twenty four operation for the proposed hotel. 5 There were a number of issues identified by the council in these proceedings, and they are; whether the hotel, during the proposed extended hours, will adversely impact on the amenity of existing and future residential areas in the vicinity of the site. In particular, increased noise levels, the spread of antisocial behaviour and parking of vehicles in the vicinity of the hotel, and the lack of availability of public transport, including taxis. 6 The second issue was with respect to the car park and the layout of the car park and the issue of sufficient information being provided, in respect of the Liquor Accord in the Camden area. 7 The proposed trading hours, as I stated, would allow it to be a twenty four hour operation. There were a number of witnesses who gave evidence to the Court. On behalf of the applicant: Mr John Coady, a traffic consultant, gave evidence; as did Mr Cooper, is a noise acoustic engineer; Mr Brown, the general manager of the applicant company, the W Waugh Group, who manage a number of hotels in Sydney; and Mr James Lovell, consultant town planner. 8 For the council evidence was given by Senior Constable David Trauntner, Mr John Schwarzkoff, social planner, Ms Pamela Brown, a resident of 7 Wilson Avenue, Mr Louise Challis, a consultant noise expert, and Mr James Stewart, council's assessment planner for the development application. 9 The subject site is zoned under the Camden Local Environmental Plan and the site is zoned commercial 3B(1) in terms of the current controls. At the rear of the subject site, which is a large site on the corner of Graham Hill Road and Camden Valley Way, there is, towards the rear, an industrial estate known as 4A under the plan. There are residential areas to the west of the subject site, and there are properties zoned for commercial purposes east of the site with a special uses school zone for two establishments on the opposite side of Camden Valley Road to the south. There is also a residential area to the south west of the site, as I stated, known as the Wilson Crescent area, and there is a golf course at the rear of that residential subdivision. 10 There was evidence to the Court that the area is in the process of change and council does have a number of proposals and plans at different stages, some in the form of a draft LEP, some in the form of a draft DCP. It is clear from the evidence to the Court that, as I stated, the area is undergoing change and intensification and there is a reasonable expectation that there will be an increase in medium density development in the vicinity of the subject site. 11 The evidence to the Court, which was given on behalf of the Resident Action Group, RAGS, is concerned about the extended trading hours for the hotel. The group noted that since the current management of the hotel that some of the antisocial behaviour had been eliminated, and it welcomed a hotel with a family friendly environment. 12 The subject hotel can be described as one that has a gaming area ,which contains some twenty gaming machines or devices, a TAB, a public bar area, and a restaurant eating facility, as well as an outdoor area. 13 There was evidence to the Court that the proposed development, in terms of recent surveys of August carried out by Mr Coady and others on behalf of the applicant, that the hotel does not operate at capacity numbers that could be accommodated in terms of the floor area of the hotel. 14 Mr Coady's surveys also indicated the number of people that are passengers in cars, drive cars, or walk to the establishment, and those who come from outside of the area. On the basis of his survey, there was some 78% of persons to the Narellan Hotel as a specific outing, and there was evidence that some 23% of people walked to the hotel establishment, and there was evidence that some 31% of people drive vehicles to the hotel. 15 Expert conferences were convened during the proceedings and prior to the proceedings, and at the end of the day, a number of the issues were crystallised as to be whether the car parking is adequate - the main disagreement between the parties. Mr Coady is of the opinion that some 79 car parking layouts would be adequate for the subject development, and the council's planner, Mr Stewart, on the basis of council's development control plan, considers that 115 car parking spaces is required. 16 The other main issue was whether the extended hours should be extended to twenty four hours, whereas the council is of the opinion that the extension of hours should only be til 2am at this point in time, which would allow an assessment of the activity during those periods before consideration of further extended hours. 17 The applicant has agreed to a trial period and the trial period proposed is twelve months. This is consistent with the judgment of the Court of Appeal in terms of Tzang v Canterbury Council whereby the Chief Justice stated, I do not see it is necessary. The incompatible between the imposition of a condition limiting a proposed use to a probationary or trial period, and the statutory requirement the decision maker take into account both the likely impact of the development and the suitability of the site for the development. It is possible to take into consideration matters, even though their full significance cannot be known with precision and therefore a trial period is considered appropriate. 18 The issue in these proceedings being whether it be 2am, or twenty four hours. I have concluded that, subject to the car parking provision for 115 car parking spaces being provided for the subject development, that a trial period to allow the hotel to open for twenty four hours per day would be appropriate in the circumstances of this case. 19 With respect to the issue of the car parking provision I wish to make it clear that I have looked at the application before me, which is the extension of the hours while this application does not relate to the total development as such, nonetheless it would be short sighted of the Court not to provide certainty in terms of parking and the outcome of this development application for a twenty four hour operation, albeit for a twelve month trial period. 20 On the applicant's own evidence, saying that some 31.3 % of people drove to the establishment, there is certainly a need for more than seventy five car parking spaces for patrons and four for staff. The demand would be in excess of one hundred vehicles on the basis of the capacity or patronage, in terms of numbers, or limitation of numbers, on patrons to the hotel. 21 The applicant is prepared to accept, or have imposed, a maximum number of persons, being 225 persons inside the hotel and 100 persons in the hotel is outside eating area. It is noted that the applicant has also proffered a condition whereby the outdoor eating area would cease after 10pm, so that only patrons could be inside the hotel from that time. 22 The applicant is also prepared to accept a condition that the patrons be limited to 100 after midnight, however there could clearly be the limit within the hotel at midnight. Under those circumstances patrons would be able to exit the hotel, but would not be able to enter the hotel. 23 On the basis of the evidence to the Court, I am not satisfied that the survey of the operation which was carried out four months after its refurbishment and re-opening, would necessarily reflect what the current consent would accommodate in terms of patron numbers. It is important in proceedings in this Court that one recognises that consents run with the land, and whilst there was evidence to the Court about the management of the hotel since it had been managed by the W Waugh Group, nonetheless, as I stated, consents do run with the land, and given the capacities of patrons of 225 plus 100, I am persuaded by the council's evidence on the car parking spaces required which is calculated on the basis of floor area, that the parking be 115 spaces in accordance with council's development control plan. 24 The decision of Tzang v Canterbury also focuses the role of the decision maker in terms of "proper realistic and genuine consideration" to provisions of development control plans, and an applicant must fully justify why such a variation should occur. In the circumstances of this case I have not been persuaded that the parking should be reduced to 75 vehicles. 25 I am also conscious of the public interest in this matter and consistent with a recent Court of Appeal judgment in terms of Terrace Tower Holdings Pty Limited v Sutherland Shire Council, that it is appropriate for me to give consideration, whilst not determinative weight, but take into consideration the changing character of the area in terms of greater residential development within the vicinity of the hotel. 26 In looking at the development application I must have regard to what not only the existing residential character is but the future residential character. Clearly a twelve month trial period will also allow for any plans that are in their formative stages to be further developed and to be taken into consideration if the applicant wishes to continue a twenty four hour operation. 27 There was discussion about the fact that the applicant was not just relying on the good management of the establishment, as there is also a plan of management proposed in terms of the conditions. I have had regard to the draft plan of management, and clearly, the applicant has agreed to a number of provisions in the plan of management, which will assist in facilitating it is a good neighbour in terms of co-existing with the existing residential area. The hotel management has agreed to: undertake regular clean ups of the area; and the closure of the front door after midnight, such that all patrons enter and leave the establishment from the door that has direct access to the car park. 28 The direct access to the car park for the extended hours provides a direct nexus in terms of the need for the car park to be formalized in the Court's assessment of this application. In my assessment it is a reasonable requirement that the 115 car parking spaces be provided and there is a clear nexus. 29 In terms of other issues that were raised during the proceedings, which were not pressed, that is the fact that landscaping for the front of the premises had not been completed in accordance with the approval, I agree with the applicant's submission that that is not a matter for these proceedings and as such is not pursued. 30 During the proceedings the applicant also clarified for the Court the relationship between the various approval processes in terms of the Liquor Administration Board with respect to gaming machines: the increase in numbers of gaming machines; and with respect to the hours of operation, or the shut down period for gaming machines. It is noted that the applicant has applied for a reduction in the shut down period from six hours to three hours. 31 The evidence to the Court was that the residents were concerned about ensuring that the operation of the hotel, in particular - for the purposes of these proceedings, after midnight, did not cause any adverse amenity impact. And clearly, providing for parking adjacent and within the grounds of the hotel premises is important. Mr Coady provided evidence that there was plenty of on street parking, in terms of a twenty four establishment, or the extension of these hours, from midnight til 8am. For the extension of hours it is important that all car parking associated with the hotel be contained within the car park to ensure that the amenity of the surrounding area is not disturbed. 32 The police were concerned about the operation of the hotel on a twenty four hour basis in terms of its resources. The applicant has agreed to security for the hotel, and for the first three months two security personnel are to be provided, and if the numbers are in excess of 100 on any one night, then two security personnel would be required for the twelve month trial. Otherwise the applicant has proffered one security guard if numbers are less than 100 for the operation of the extended hours. 33 The evidence to the Court with respect to antisocial behaviour and crime in the area, from the evidence I cannot say that there is a direct link with this hotel establishment as such a trial period is appropriate for the hotel. 34 In providing for the extended hours, clearly the applicant must be prepared to provide the necessary security within and external to the premises to ensure that the management and operation of the hotel is carried out in a satisfactory way to ensure the amenity of the adjoining residential area is not adversely imposed. 35 The issue of precedent was raised and precedent is a relevant issue for the Court's consideration, and I refer to the judgment of Lloyd J in Goldin v The Minister Administering the Ports, I do not consider this to be determinative in this matter and a twelve month trial I consider to be appropriate. 36 On the basis of my assessment I propose the Court would be prepared to enter into final orders subject to the submission of a plan to the Court and to the council, of a car park for 115 vehicles, with the necessary landscaping engineering specifications, etcetera. And that on receipt of such a plan and subject to council's comments, the Court would be minded to grant an approval for the twenty four hour operation on a twelve month trial basis.