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. 25 The following emerged as the salient issues: · whether the proposed karaoke use is prohibited and thus contrary to the planning objectives of the zone; and · lack of loading dock and car parking. The evidence and findings Whether the proposed karaoke use is prohibited: 26 Mr Vescio submitted that this matter has been resolved after clarification of the applicant's intent. As the applicant seeks consent for a 'refreshment room' use with ancillary function rooms with karaoke facilities the applicant would accept condition to ensure the karaoke use is carried on with the dining functions. The use as a 'refreshment room' is permissible in the 4(b) zone. He submitted that even if the Court took a view that the karaoke was a separate use, it is 'recreational' and permissible in the zone. He relied on the Macquarie Dictionary definition and the meaning of recreational use in the Marrickville Local Environmental Plan 2001. He submitted that what is sought is approval of a 'refreshment room'. 27 Mr Christmas submitted that from the council's point of view, the threshold issue is that the Court must be satisfied that what is proposed is a 'refreshment room'. That use is permissible in the 4(b) zone and as the adjoining café demonstrates it is not inappropriate, if it meets the objectives of the zone. The applicant has overlooked the fact that it needs to meet the objectives of the zone. He submitted that the area is zoned for light industrial and other uses should be ancillary. A 'refreshment room' that would service the industrial area is what is sought by the council but if the application is for an independent use as a karaoke venue in an industrial zone it would be inappropriate. 28 He submitted that the council is concerned that the proposal would serve as a late night venue and as a result that use would be inconsistent with the objectives of the 4(b) zone and as such should be located in a commercial zone. He submitted that this land is not part of the commercial strip of Marrickville as suggested by the applicant. He submitted the 'refreshment room' use technically would operate for only three (3) hours a day compared with 9 hours a day as a venue for other than industrial employees. He said that the council was concerned that the use would become a destination venue. As to whether it can be conditioned so as to ensure the 'refreshment room' use "…is problematic", he submitted. 29 Mr Christmas referred to a letter from NSW Police found in the bundle of documents in Exhibit 1 and stressed that there is concern from the police. 30 Mr Christmas also submitted that a commercial use in an industrial zone would also be contrary to the urban strategy recently adopted by the council. 31 During the course of the hearing Mr Vescio, for the applicant, clarified the use of the premises would be being mainly as a 'refreshment room' with ancillary functions such as karaoke in Dining Room Nos 1 and 2. With this explanation Ms Meenachi-Sunderam accepted that the use would be permissible in the zone and the question of whether the proposed use was prohibited would be resolved in favour of the applicant. 32 The plans were amended and the applicant was prepared to submit to conditions clarifying the use as a 'refreshment room', and the experts were agreed that were the use characterised as a 'refreshment room' it would not be contrary to the planning objectives of the zone. I accept that the applicant seeks to use the premises as a 'refreshment room' with ancillary karaoke use of Dining Room Nos 1 and 2. I would not refuse the application for this reason. Loading dock and car parking 33 Mr Vescio submitted this second issue has been resolved as the applicant has agreed to amend its original plans to delete Dining room No 3 to provide for a combined loading bay and car parking space in accordance with the size standard for a loading dock of 7.5m x 3.0m. 34 He submitted that given the constraints of the size of the premises that further on-site parking would not be possible and if additional car parking were provided it would sterilise the land. He submitted that according to the council's own DCP19 the applicant has undertaken an on-street car parking survey that confirms there is excess on-street car parking to service the proposed night dining. There are 33 to 50 spaces in the immediate vicinity between 6pm to 8pm during the week. 35 He noted that during the day and lunchtime, on-street parking is in high demand for employees in the industrial area. As agreed by the experts, he submitted that many local employees would tend to walk to the premises for a meal. 36 It is also noted that the area is well serviced by public transport and Sydenham station is 5-minutes away and buses and taxis in available in Gerald Street. Having regard to these circumstances and s B7 of DCP19 the strict application of the car parking requirements is considered unnecessary. 37 Mr Christmas submitted that previous consents for this land all required a loading dock and one on-site car parking space. He cited a 1984-consent that required one car parking space and a 1988-consent that required one car parking space 2.5 x 5 and all loading and unloading from the loading dock exclusively for that purpose within the premises. 38 He submitted that what was now proposed would be less than that required and previously provided. He submitted that the 'refreshment room' use would require car parking at the rate of 1 to 45m2 and consequently would require four (4) spaces on site for the amended use. He submitted that the combined use of loading dock and car parking space as now proposed would be a compromise. He stressed that employees in the surrounding industrial area presently compete for on-street car parking spaces during the day, so the council maintains its query as to whether this is an appropriate use. 39 The existing building provided for one loading dock and a car parking space accessed from Sydney Lane at the rear as per earlier approvals. During the course of the hearing the applicant agreed to amend the plans to reinstate a loading dock and combined car parking area. This change required other amendments of the plans including the deletion of Dining Room No 3. 40 The council indicated that the minimum size of a loading dock would be 7.5m x 3m and this was indicated on the plans. 41 I am satisfied that the proposal for a combined loading dock and car parking space is sufficient for the proposed floor area of the 'refreshment room'. The premises would be severely compromised were more car parking spaces required on-site. Given the scale of the proposed use I would not refuse the amended development application for lack of car parking. 42 For the above reasons, the appeal is upheld. Conditions 43 The conditions are those in Exhibit 5 as amended during the hearing. Orders 44 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 2006/472 lodged with the respondent council on 14 September 2006 and as amended during the hearing to alter, add and to use the subject premises on the land as a restaurant/ cafe with function rooms with ancillary karaoke facilities within hours of operation of 11.00am to 3.00am (the following day), at Lot 12, DP1465, being No 140 Marrickville Road, Marrickville, is approved subject to Conditions 1 to 47 in Annexure A. 3. The exhibits except for Exhibits A, B, 2, 3 and 5 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.