Land and Environment Court New South Wales Medium Neutral Citation: Denis v Parramatta City Council; [2011] NSWLEC 1201 Hearing dates: 29 June 2011 Decision date: 15 July 2011 Jurisdiction: Class 1 Before: Hussey C Decision: Preliminary findings Catchwords: Section 96 Modification - Internal partitioning to an existing male social club, substantially the same, intensification of use, parking, disabled access, BCA compliance. Section 121B Order; To remove unauthorised internal partitioning Legislation Cited: Environmental Planning and Assessment Act 1979 Sydney Regional Environmental Plan No 28 - Parramatta Draft Parramatta Local Environmental Plan 2010 Cases Cited: Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 Category: Procedural and other rulings Parties: Allan Denis v Parramatta City Council Theo Enterprises Pty Ltd v Parramatta City Council Representation: Counsel Mr J Doyle (Barrister for the Applicant) Solicitors Mr A Seton (Solicitor for the Respondent) File Number(s): 10292 of 2011 and 10716 of 2010 Judgment Background 1These proceedings relate to a property located at 17 - 19 Bridge Road Rydalmere and comprise the following two appeals, which were considered concurrently: * Appeal No 10292/11; an appeal against council's refusal of a s96 application to modify an existing development consent for the use of the premises as a health, recreation and social centre for males, and * Appeal No 10716/10; an appeal against a section 121B Order requiring the demolition of unauthorised partitioning within the building. 2There is a three storey building on the site, which has a total site area of 1040 sq m and is located within an industrial estate. It has a 24.4 m frontage to Bridge Road and backs onto Subiaco Creek. The building comprises three operational levels and has its main entry at the rear of the building adjacent to the car park. 3The development consent to operate as a male social club was granted by consent orders in August 2004, subject to conditions including: * 23 on-site car spaces to be provided, * The proposed recreation facility to be operated in accordance with the submitted Plan of Management, * Restricted entry to persons under the age of 18 years, * The premises are permitted to operate 24 hours a day, 7 days a week. 4The proposed modification application has been submitted to obtain approval for various building/partitioning works that have been completed as follows: * Level 1: The original "coffee/lounge" area has been reduced and modified to include a "moveable stage" area to be used for displays; * Level 2: The internal floor layout has been altered from approximately ten general public type rooms (eg 'TV rooms') to eighteen smaller rooms identified as "booths" with 2.4 m high partition walls. Other partitioning has been erected so as to create a "maze-like" corridor system. * Level 3: Substantial internal partitioning has been included resulting in the removal of the large "general purpose room" and creation of twenty-seven smaller rooms/booths. Also, two offices have been altered and relocated. 5Insofar as a number of issues were identified initially, these were reduced following the provision of further details, so that the main issues concern whether the proposal relates to substantially the same development approved, the perceived intensification of use arising from the internal works and the associated impact on parking requirements. Secondary issues of BCA compliance and disabled access were also raised. Planning controls 6The provisions of Sydney Regional Environmental Plan No 28 - Parramatta , under which it is classified as a "commercial use", cover the site. The area is zoned Trade and Industry Support . 7The site is also subject to the provisions of the draft Parramatta Local Environmental Plan 2010, under which it is proposed to be zoned Light Industrial. The evidence 8Detailed evidence was presented by way of a joint planning report by: * Mr D Little; Council's development assessment officer. * Mr K Nash; Applicant's consulting planner. 9Other evidence responding to the BCA and traffic issues was presented by Mr E Ravino (council), Ms E Marshall-McClelland and Mr Z Ryter (applicant). 10The planners initially agreed that the proposed modifications do not involve any increase in floor space area. However Mr Lindsay does not consider the proposal is substantially the same because: * The reconfiguration of the Level 1 area results in a significantly different set of uses, particularly with the stage area replacing a large part of the coffee lounge. * There will be an effective increase in the order of 80% in the number of rooms on Level 2. * There will be a1500% increase in the number of rooms on Level 3, in addition to the conversion of the two offices that have been converted to a lounge. 11Mr Lindsay says that a consequence of these changes is that there will be an alteration to the way the premises operate. He considers the large increase in smaller booths will likely promote sexual activity, which is contrary to the original intentions stated in the Plan of Management. This then is likely to promote the sexual activity aspects, whereas this was a subsidiary outcome in the original consent. 12Furthermore, he considers that the introduction of the 'stage area' would lead to the use being classified as "Entertainment facility", which was not part of the original approval, nor would it be permissible under SREP No 28. Therefore, Mr Lindsay says the application does not satisfy the initial "substantially the same test" and it should fail. 13Against this, Mr Nash says that the context of the application must be taken into account. He says that the original, approved Plan of Management (POM) noted the operational aspects of "sex-on-the-premises" uses and the proposal does not change this. He does not consider the inclusion of the multiple 2.4 m high partitions or reconfiguration of the various levels substantially alters the use of the premises. Intensification of use 14The evidence indicates to me that this is the threshold merit issue. In this regard, the planners agree that there will be a reduction in the amount of office area on Level 3. Consequently, as stated previously, Mr Lindsay says this will result in a dramatic change in the layout of the premises, which will cause an intensification of uses. In turn this will result in insufficient parking being available. 15Following visits to the site, Mr Lindsay has observed that clients are using 'spill-over' parking in the adjoining premises at 21 Bridge Street, which indicates there is insufficient parking currently provided. Whilst it is difficult to forecast the required number of car spaces, he estimates there would be a likely deficiency of fifty-one spaces. This is based on RTA Traffic Generating Guidelines for a gymnasium. 16However Mr Nash says the notional classification of the use of the building as a gymnasium is unreasonable because the proposal retains the minimal gym equipment within a minor internal relocation and it should not be classified as a gymnasium. But in any case, he does not consider the additional partitioning on the upper levels will increase the capacity of the premises. In this regard he refers to the BCA terms, which apparently retain the allowance for the safe exit of 400 people (200 on Level 3, 100 on Levels 1 and 2) that were originally approved. 17With regard to the car parking, he says that the proposal maintains the twenty-three spaces approved in the original application, which was allowed under SREP 28. The required number of spaces was twenty-one, with the subject being in excess. Conclusion 18As I noted initially, these proceedings involve both the s 96 modification application, the result of which then determines the s 121B Order outcome. Therefore, in firstly dealing with the s 96 application, I have considered it on the basis of the following relevant tests: (i)Whether the proposal relates to substantially the same development, (ii)Whether the application has been notified and any objections considered, and (iii)Whether the application merits consent. 19In terms of the first test, reference was made to the matter of Moto Projects (No 2) v North Sydney Council [1999] NSWLEC 280, where Bignold J stated: 54. The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development. 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially"" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was... 20Accordingly, whilst the application proposes significant internal alterations, nevertheless the building remains the same as approved as does the 'social club uses'. No resultant external effects were identified, aside from a possible deficiency in car parking, which I deal with subsequently. 21Making a qualitative assessment, I not consider there was any substantive evidence to indicate a material change to the overall use of the building. Therefore, I consider the proposal relates to substantially the same development. 22Secondly then, I understand that the proposal was notified and there are no objections. In terms then of the final test concerning the merits of the application, one of the primary issues concerns whether the development should be reclassified as an ' entertainment facility '. Accordingly, I note that the Dictionary in Schedule 1 of SREP 28 contains the following definition: Entertainment facility means a public hall, theatre, cinema, music hall, concert hall, open air theatre, music bowl or any other building of a like character used as such and whether used for the purpose of gain or not, but does not include a place of public worship, an institution or educational establishment. 23Insofar as there were two elements identified as contributing to this possible reclassification, it seems to me that the stage area on Level 1 is relatively small and is removable. As such any entertainment area is relatively small, catering I understand for a maximum of thirty patrons. In this event the existing chairs are turned to face the stage and some stackable chairs supplement the permanent chairs. There was no substantive evidence to indicate that this change would lead to a materially different outcome than currently allowed. 24The other element concerns the area on Level 3 designated as ' cinema lounge '. However when this area was inspected, the cinema comprises a large plasma type screen and the viewing area would apparently contain about 8 - 10 people maximum. Considering the scale and probable usage of these areas, it appears to me that this is of a scale that could be incorporated into a home entertainment room. Consequently, I agree with Mr Nash that this change is not such that would cause the development to be classified as an "entertainment facility", as defined. Although I agree that the use of this area should be more appropriately designated on the plans and in the Plan Of Management. 25The other significant merit matter concerns council's contention that the partitioning will intensify the use of the property resulting in parking problems. As a starting point, I note that the evidence on this contention was somewhat difficult to assess because the original consent contained no limits on the number of patrons allowed on the premises, except for the BCA fire safety restrictions, which impose a limit of a maximum number of 400 patrons. 26In the circumstances where the partitioning has been installed within the existing building envelope, there was no substantive evidence from Mr Lindsay indicating how the conversion of space would lead to any increased usage. 27On the contrary, Mr Nash said that the conversion of the unrestricted open lounge areas into the booths would probably result in a reduction in capacity of about 10%. Whilst he demonstrated this by reference to the BCA allowances, this was based on a number of assumptions that were not fully established. 28It was however of some interest that the applicant indicated that the maximum number of patrons does not exceed sixty. In the absence of any quantification of the perceived intensification of use, I do not consider this point was reliably established to an extent that would warrant rejection of the proposal. It does seem appropriate that the Plan Of Management be upgraded to include the maximum number of patrons on the premises. 29In this regard, I note the submissions for the applicant that the partitioning is part of the changing nature of the use of the premises, whereby more patrons prefer the privacy offered by the booths and that this does not automatically result in any significant increase in usage. Parking 30The only consequence identified as result of the perceived intensification of use is an increase in parking demand. Mr Lindsay supports this contention on the basis of his site inspections, which revealed the use of parking on the adjoining property (No 21 Bridge Street). 31However, the prevailing parking controls are contained within cll 56 and 57 of SREP 28, which prescribes the maximum amount of parking for this type of development. On the basis of the commercial classification, twenty-one car spaces were originally required but two extra were allowed giving a total of twenty-three. Taking into consideration that any intensification of use has not been established, it seems to me that current parking provision is adequate under the provisions of SREP 28. The fact that some patrons apparently use next door may be a factor of convenience or personal preference for additional discretion. 32In this regard, I think it relevant to consider the following objectives for the car parking controls: 56 Objectives for car parking controls The objectives of the car parking controls are as follows: (a) to ensure that public transport becomes the most important and efficient means of moving people to and within the Parramatta City Centre, (b) to encourage commuting by public transport to the Parramatta City Centre in order to reduce the number of motor vehicles travelling through and to the Parramatta City Centre, and to improve overall environmental quality and pedestrian amenity, (c) to continue the attractiveness and competitiveness of the Parramatta City Centre for retail and commercial activities, (d)to favour short-stay parking over commuter parking. 33Accordingly, the controls limit the number of car spaces with the intent of encouraging the alternate use of public transport. As the Rydalmere Station is within convenient walking distance, I am satisfied that the provision of on-site parking is adequate and consistent with the provisions of SREP 28. Furthermore, the evidence indicates to me that the peak periods for the social club would most likely be outside the peak period for the surrounding industrial uses and additional on-street parking would be available if required. 34Insofar as reference was made to other possible classifications such as gymnasium where the application of the RTA guidelines indicates a requirement for additional spaces, I do not consider these guidelines prevail over the specific provisions of SREP 28. Likewise reference was made to the provisions of draft LEP, but it does not include any relevant parking controls. Whilst the associated draft DCP apparently contains parking controls, I do not consider they would be given any significant weight when compared to the SREP 28. Disabled access 35Whilst this issue was raised initially, I consider it was only partially addressed in the hearing. Ms Marshall-McClelland provided sketches, which show that disabled access can be provided to the ground floor. She says this would comply with the provisions of the BCA 2011 requiring equitable access to the ground floor facilities. On the basis of this evidence, it seems to me that equitable access is achievable and that this could be covered by a condition requiring a detailed "Disabled Access Report" to be prepared by a qualified expert and the recommendations implemented. BCA compliance 36Mr Ravino and Mr Ryter, who concluded that the building works generally satisfy the BCA requirements, addressed this issue during the hearing. There was an exception regarding the fire rating of the partition walls, which would require further detailed investigation. On the basis that the experts initially consider it likely the fire rating would be satisfactory, I consider this further investigation could take place and providing it is satisfactory, then this issue would not be grounds for refusal. 37In summary then, I am satisfied that this proposal relates to substantially the same development as approved and which may in any case continue to operate in accordance with the original consent. However, I accept that over time the applicant may wish to make changes to respond to current demands. 38I accept that the installation of the partitioning and the removable stage are such a responses. However there was no compelling evidence to indicate these changes would result in any intensification of use of the premises that would lead to the refusal of the application. 39Nevertheless the evidence indicated that there are a number of details, which would require satisfaction before the granting of conditional consent to the modification application. These matters include: .1 The updating of the Plan of Management to reflect the management of the current and revised activities. This should also include details on the maximum number of people in the different areas of the building. It should also deal with access arrangements and on - site parking. .2 Detailed assessment of the type of material used in the partitioning to ensure its BCA compliance and any other upgrading works required to thereby allow issue of a BCA Certificate prior to the issue of any consent. .3 Finalisation of the disable access report to ensure equitable access is provided at least to Level 1 where there should be appropriate facilities. 40Subject to the satisfactory completion of these matters, determination of final orders can be made. This includes orders regarding the s 121B appeal. The matter is then stood over until 9.00am 28 July 2011 to hear any further submissions from the parties. R Hussey Commissioner of the Court 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. Decision last updated: 03 August 2011