Willis S & Tran C v Marrickville Council [2007] NSWLEC 276

Land and Environment Court of New South Wales

CITATION : Willis S & Tran C v Marrickville Council [2007] NSWLEC 276

APPLICANT: PARTIES : Scott Willis & Con Tran RESPONDENT: Marrickville Council

FILE NUMBER(S) : 10090 of 2007

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Whether the proposed 'refreshment room' use with ancillary karaoke use is prohibited and contrary to the planning objectives of the zone.

LEGISLATION CITED: Marrickville Local Environmental Plan 2001, (MLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97

DATES OF HEARING: 1705/2007

EX TEMPORE JUDGMENT DATE : 17 May 2007

APPLICANT: Litigant in person SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr G A Christmas, solicitor SOLICITORS: Marrickville Council

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

17 May 2007

10090 of 2007 - Scott Willis & Con Tran v Marrickville Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Marrickville Council (the council) to refuse a development application for a "late-night restaurant/ café with function room and karaoke facilities" in premises at Lot 12, DP1465, being No 140 Marrickville Road, Marrickville. 2 I visited the land in company with the parties on the morning of the on-site hearing. 3 During the course of the hearing the applicant clarified the proposed use and I have concluded that the proposed 'refreshment room' use with ancillary karaoke entertainment is permissible in the zone and with the provision of a combined loading dock and car parking space the application should succeed. The land 4 The land is situated on the southern side of Marrickville Road, between Meeks Road and Gerald Street, Marrickville. There is rear access to Sydney Lane. 5 The land has a 6.14m frontage to Marrickville Road, a depth on the western side of 37.71m, a depth on the eastern side of 36.995m and a 6.095m frontage to Sydney Lane at the rear, giving an area of about 235m2. 6 Erected on the land is a single-storey industrial building constructed with zero lot lines to all boundaries with a tiled shopfront to Marrickville Road. 7 The locality is characterised by commercial and light industrial uses. To the north of the land is a small coffee shop that abuts a two-storey office building. Further to the north, there is residential development along Meeks Road. 8 Abutting to the south is a single-storey brick cottage that is used as offices and is occupied by an enterprise that raises money to assist people with a disability. 9 Opposite the land on Marrickville Road is a brothel. Relevant planning controls Marrickville Local Environmental Plan 2001, (MLEP) 10 Under the provisions of the MLEP the land is zoned Light Industrial 4(B) and if the proposal is characterised as 'commercial premises' it would be prohibited. However were it characterised as 'refreshment rooms' it would be permissible with consent. 11 Nearby land is also within the Light Industrial 4(B) zone under the MLEP. The north western side of Meeks Road is zoned Residential 'B' under the MLEP. 12 The relevant clauses of the MLEP are: · clause 16 (zoning); · clause 28 (aircraft related noise); · clause 33 (floor space ratio); · clause 40 (offices, showrooms and shops in industrial zones); · clause 58 (waste management); · clause 59 (energy, water and stormwater efficiency); · clause 62 (community safety); and · clause 64 (accessibility). 13 Other planning instruments of relevance include: · Marrickville Development Control Plan No. 19 - Parking Strategy, (DCP19). · Marrickville Development Control Plan No. 27 - Waste Management, (DCP27). · Marrickville Development Control Plan No. 31 - Equity of Access and Mobility, (DCP31). The proposal and its history 14 Development application No 2006/472 was lodged with the respondent council on 14 September 2006 to alter, add and to use the subject premises on the land as a restaurant/ cafe with function room and karaoke facilities with hours of operation of 11.00am to 6.00am (the following day). The hours of operation were amended before the commencement of the hearing to 11.00am to 3.00am (the following day). 15 By its determination No. 11398, dated 14 March 1988, the council approved the use of the premises as a warehouse for the wholesale distribution of leather goods with associated offices. 16 Following a preliminary assessment, the council officers advised the applicant that the proposal could not be supported for the following reasons: · lack of car parking; · extensive hours of operation; · noise and amenity impacts on surrounding area; · lack of appropriate sanitary facilities; · lack of adequate fire safety measures; · inadequate path of travel; and · lack of information relating to the proposed business operations. 17 The applicant lodged amended plans and additional information in an attempt to satisfy the matters raised by the council's preliminary assessment. Notification 18 The application was notified to nearby owners and occupants by way of a newspaper advertisement, on-site notice and letter sent to adjoining properties on 20 September 2006, and the council received no submission. That notification period ended on 10 October 2006. The council's decision 19 By notice dated 29 December 2006, the council, under delegated authority, refused the application for seven reasons that are reflected in the issues. The hearing 20 The appeal was filed on 7 February 2007. 21 At the hearing the court heard evidence on behalf of the respondent council from Ms D Meenachi-Sunderam, town planner of Marrickville Council 22 On behalf of the applicant Mr J Vescio, town planner, gave evidence. 23 Ms D Meenachi-Sunderam, also prepared the statement of basic facts dated 1 March 2007. The issues 24 On 5 March 2007 the council filed a statement of issues. 1. The proposed karaoke use would constitute a 'commercial premises' under the definition contained in the Marrickville Local Environmental Plan 2001 which is a prohibited use in the Light Industrial zone pursuant to clause 16 of the Marrickville Local Environmental Plan 2001. Particulars: Approximately 65% of the premises is to be used as karaoke rooms. The karaoke rooms, which form the dominant use, constitute 'commercial premises' which is a prohibited use in the Light Industrial zone under Marrickville Local Environmental Plan 2001. 2. The proposed use is inconsistent with the zone objectives under clause 16(2) of Marrickville Local Environmental Plan 2001. Particulars: The zone objectives contained in clause 16(2) of Marrickville Local Environmental Plan 2001 are "…to identify areas suitable for light industrial and warehousing activities" and "…to permit a range of support and ancillary uses." The proposal is inconsistent with these objectives. 3. The proposed development is unsatisfactory having regard to the provisions of clause 64 of Marrickville Local Environmental Plan 2001 and Marrickville Development Control Plan No. 31 - Equity of Access and Mobility. Particulars: The proposed accessible toilet, at the rear of the premises, is to be accessed via a series of ramps turning several corners, which presents an undignified solution for people in wheelchairs trying to access sanitary facilities. Also, the access way to the accessible toilet is provided at less than 1200mm which and therefore does no comply with section 4.5 of Marrickville Development Control Plan No. 31 - Equity of Access and Mobility . 4. The proposed development involves an intensification of usage of the premises requiring additional off-street car parking spaces to be provided under the provisions of Marrickville Development Control Plan No. 19 - Parking Strategy. Particulars: Council has previously required one off-street car parking space to be provided within the building and waived the provision of one additional space for the previous approved warehouse use. The proposed development results in the loss of the previously approved internal car space and generates an additional demand for three off-street car parking spaces, resulting in the total deficiency of four on site parking spaces. No car parking spaces are proposed to be provided on site as part of the proposed development. 5. No off-street loading and unloading facilities are proposed as part of the development and this is contrary to the requirements contained in Marrickville Development Control Plan No. 19 - Parking Strategy. Particulars: The premises have an existing loading dock located at the rear, which is to be replaced with the karaoke rooms. The failure to provide a loading dock means that all loading/unloading will have to occur from the street and is likely to impact on traffic movements, particularly in the rear lane. 6. The lack of satisfactory off-street car parking and loading facilities would create increased traffic hazard and congestion in the area. Particulars: As there are no on-site parking or loading facilities, all vehicles associated with the use, including staff and patrons' vehicles and service vehicles would have to compete for limited street parking available in the area. 7. The proposed hours of operation are excessive and would adversely impact on the amenity of the surrounding area. Particulars: Persons exiting and leaving the premises late at night and in early hours of the morning would cause disturbance to the amenity of residential premises in the surrounding area.