JRCO Pty Limited v Hurstville City Council [2011] NSWLEC 1332

Land and Environment Court New South Wales

Medium Neutral Citation: JRCO Pty Limited v Hurstville City Council [2011] NSWLEC 1332 Hearing dates: 12 October 2011 Decision date: 12 October 2011 Jurisdiction: Class 1 Before: Murrell C Decision: (1)The appeal in respect of the premises known as 16 Penshurst Street, Penshurst is upheld. (2)The development application submitted to Hurstville City Council for a gymnasium is approved subject to the conditions of consent in annexure A and the plan of management. (3)The exhibits will be returned to the parties with the exception of the amended plan exhibit E, the plan of management and the agreed conditions of consent. Catchwords: DEVELOPMENT APPLICATION - s 97 appeal for a twenty-four hour gym. Issues are impact on amenity of area, safety and security and precedent Cases Cited: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Zhang v Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: JRCO Pty Limited (Applicant)

Hurstville City Council (Respondent) Representation: Counsel Mr C McFadzean (Applicant)

Mr A Seton (Respondent) Solicitors Shaw Reynolds Bowen & Gerathy Lawyers (Applicant)

Marsdens Law Group (Respondent) File Number(s): 10724 of 2011

Judgment 1I have heard the evidence and submissions today and I am going to provide preliminary findings now. I propose that the applicant be afforded the opportunity to provide a plan of management and then council has the opportunity of also assessing the plan of management as to its adequacy. I accept what Mr Seton submits in terms of the condition as proposed by the applicant does not provide for certainty because it does not allow for a plan of management to be rigorously assessed. Requiring a plan of management prior to a CC it could be something that does not allow for an assessment as to its adequacy. 2The applicant in these proceedings is seeking the operation of a twenty-four hour gymnasium at the premises known as 16 Penshurst Street, Penshurst. 3Given that the role of the Court or the overarching objective is just, quick and cheap, it appears to me that it is more efficient and appropriate for the adjournment to be allowed for the preparation of a plan of management and for then council's consultant to also assess the plan and comment as to whether there are inadequacies. There would be deficiencies to allow a twenty-four hour operation without, what I will call, 'belt and brace' provisions as it is necessary to have an understanding of what security measures are proposed to maintain neighbourhood amenity before consent could be granted. 4The site is zoned General Business 3C under the Hurstville Local Environmental Plan and the LEP provides for a regime of neighbourhood centres, the major commercial centre and then this a 3C centre. I now go to the terms of the relevant objective of the 3C business centre zone: * To maintain a commercial and retail focus for larger scale commercial precincts * To allow for residential development in mixed use buildings 5As was pointed out in opening there are no other provisions in the LEP that are of relevance to the assessment of the DA. 6Clause 9 of the LEP states consent may be granted where council has considered planning and design principles or policies adopted by the council where they are relevant. In this regard also I must give central focus and consideration to the council's development control plan for car parking. I do note that the proposal is deficient in terms of council's car parking requirement as set out in the DCP. However, it is not contested that the proposed development is unsatisfactory in terms of car parking and the evidence before the Court is that there is parking provided on site for nine vehicles. It is also noted by the planners that there is a council car park in the vicinity of the site with eighty to 120 vehicles located at the rear of the site. In addition it could also be seen on the view that there is on street parking, albeit with limited time frames for daytime use. 7The council pointed out the general planning considerations of DCP No 1 Hurstville, that for the hours of operation there are performance criteria including: provide adequate security to buildings with extended hours of operation and the design requirement suggestions are to allocate security guards to patrol the surrounding area of the building and instruct patrons when they leave the building to be mindful of residential uses in close proximity and to keep noise levels down. Council also, as part of this development control plan, has an extended trading hours provision which states at 5.1, this applies to commercial premises approved by the council. Extended trading hours are defined as outside 6 am to midnight daily. 8In terms of the extended trading hours policy there is a note in the DCP that additional information must be submitted with development applications and this includes security measures, external and internal lighting and anticipated patronage numbers and the potential impact on the amenity of the area. 9The council sets out a number of requirements in terms of options for a time limited consent where council can review the business operation after a designated time period at which time additional controls can be placed on businesses if required or consent revoked if there are ongoing problems. The council set out two contentions in the proceedings and the two contentions go to security: (1)The development application should not be approved without condition 45, which seeks a trial period for a twenty-four hour operation of the development for twelve months because trading between 10 am and 6 am is unacceptable in terms of safety and security of patrons. Given this is an ex tempore preliminary findings, I should point out that council approved the development application for the subject premises to be utilised for a gymnasium. 10However whilst the application was for a twenty-four hour operation the council provided, or rather imposed a condition whereby the condition reads that number 45, " That the approved use may be conducted at 6 am to midnight seven days on a six month trial basis with the applicant to apply to council to reconsider the hours of operation after some trial ". And it is agreed between the parties that the interpretation of this condition would be one that would be difficult to understand and that a condition should be imposed from the council's point of view, which allows for only the premises to operate from 6 am to midnight and not to allow for the trial basis. The applicant however is seeking that there be a trial of twelve months at twenty-four hours 7 days a week and that there be standard hours within the condition such that it operate from 6 am to 12 midnight. And the applicant understands that they would then need to seek to reapply to the council for an extension of either the trial period or for the permanent hours to be twenty-four hours. 11The Court in its assessment is of the view that the trial period should be allowed and in saying this, I refer to the Court of Appeal judgment of Zhang v Canterbury City Council [2001] NSWCA 167 wherein the Chief Justice at the time, Spigelman CJ said that trial periods are appropriate where there is an unknown in terms of impacts and the trial period should be used to assess whether the impacts are ones that therefore are inappropriate and therefore an extension of a trial or a twenty-four hour period or any other trial should not be allowed. And in the circumstances of this case I consider that a trial period is appropriate and this is consistent with the authority for in terms of Zhang v Canterbury City Council. 12On the question of the council contends that there are no other twenty-four hour establishments within Penshurst, that is true, there is evidence that the RSL operates until 10 pm or midnight and that the hotel diagonally opposite the subject site operates up until 2.30 am on certain nights and perhaps midnight other nights of the week. There are no twenty-four hour premises within Penshurst. However that would not be a reason not to allow this gymnasium to operate for twenty-four hours on a trial basis. 13In terms of precedent, in my assessment the circumstances of the case are that the twenty-four period should not be invoked by other existing premises because the circumstances of each case would need to be considered and see no reason why a gym should not be given the opportunity to operate for twenty-four hours on a trial basis. While I understand, in accordance with Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 , precedent in itself may be a reason for refusal but I am of the opinion that in this instance precedent would not be a reason to refuse the operation of this gymnasium for twenty-four hours. 14The respondent has indicated that there have been at times some conflicting details provided by the applicant. The respondent's planner Mr Gerrard Turrisi consultant planner, provided expert evidence on behalf of the council and he is of the opinion that a plan of management is required to have a full comprehensive understanding of the proposal to be put in place for the security of patrons to the gymnasium. He also is of the opinion that the plan of management should indicate the house rules upon which members would agree to accept as part of their membership. This includes to ensure that there is not congregation of persons outside the premises at any time, that is when people either enter or leave the premises to ensure that the amenity of the public domain is maintained within the area. I would then be satisfied that noise is not an issue that would warrant refusal of the application. 15Mr Dixon provided expert evidence on behalf of the applicant and he agrees that while he considers it may not be essential, it would be preferable to have a plan of management. 16Clearly there are uncertainties without a plan of management in place prior to the operation of a consent and I do not consider that a deferred commencement consent is the appropriate mechanism in the circumstances of this case. The issue here is confined to the twenty-four hour operation of the premises and this is a matter where the parties should be able to confer for an appropriate plan of management to be drafted before final issues of the Court are issued. 17The Court heard evidence from an objector, Mr Poulos the owner of the pharmacy in Penshurst Street and he considers that a twenty-four hour gym in not appropriate for the location of Penshurst because there are no other twenty-four hour establishments. There is no evidence to the Court that this is a crime spot or a hot spot in terms of activities within the public domain that would lead the Court to consider that it is an inappropriate location for a twenty-four hour gym. 18There was discussion between the parties about the use of the basement car park. I appreciate the council's position where at the eleventh hour a condition is proposed which would limit the use of the basement car park from 12 midnight to 6 am and that this may have other implications for council's own public domain. I will not impose a time restriction on the basement car park. Nonetheless during the twelve-month trial period it is a matter that may be further considered, and if considered appropriate then the application submitted after the trial could include this. 19At the same time if the basement car park is operational between the hours of midnight and 6 am it is important that the management plan clearly details what the security measures are, what the response times are and there is details provided of the security cameras, not only for the basement parking but the entry to the car park and the door at the top of the car park that exits to the footpath, that must not be accessed from the footpath and only open-able from within the car park itself. 20The Council, as I said, had two issues. The second issue was the development application should not be approved with proposed amendment to condition 45, because insufficient information has been provided to establish that trading between 12 midnight and 6 am will not have an adverse impact in terms of noise generated by patrons congregating outside the premises and the potential for anti social behaviour. Once again, I consider the authority of Zhang v Canterbury City Council is pertinent to this matter. I have no evidence to say that there is anti social behaviour and that this premise will exacerbate same and I am also of the opinion that the plan of management is important to provide some degree of comfort to the council in terms of this. I also note that the planning experts did not consider this to be an issue as such and Mr Turrisi considers the plan of management and agreement by prospective members should be imposed but no further measures. 21I note that the applicant has suggested that there can be duress lanyards (for want of a better word) pendants provided to members of the gymnasium for use outside. The planning experts agreed that this is not essential, however if it is a service that the club wishes to provide to patrons that is a matter for the applicant. 22In my assessment, there is no reason as to why the development consent should not be granted subject to a plan of management that the council is given the opportunity to assess and where there are conditions proposed by the applicant, these should also be contained within the plan of management as well as in the conditions of consent even though this is reinforcing them in a belt and brace way. 23The plan of management should only be able to be varied with the council's consent and it would be reviewed at the twelve-month trial period. 24The Court will make the formal orders on agreement to the plan of management and agreed conditions can be provided at that time as well. The condition regarding the core hours or standard hours should be clearly articulated in the condition and this approval is only for a twelve month period and the conditions should also indicate that if an applicant wishes to extend the twelve month period they must make application to the council within ample time to allow for a determination prior to the expiration of the trial period. The trial period will commence from the time that the premises are occupied. 25If agreement cannot be reached on the Plan of Management and conditions the matter can be restored on twenty-four hours notice. If there is agreement reached which reflects my preliminary findings, then the formal orders of the Court will be issued following receipt of that agreement and the formal orders of the Court will then be: (1)The appeal in respect of the premises known as 16 Penshurst Street, Penshurst is upheld. (2)The development application submitted to Hurstville City Council for a gymnasium is approved subject to the conditions of consent in annexure A and the plan of management. (3)The exhibits will be returned to the parties with the exception of the amended plan exhibit E, the plan of management and the agreed conditions of consent. 26Subsequent to the above findings, the applicant has prepared a draft Plan of Management and there is now agreement between the parties on the terms of the Plan of Management and conditions. As such, final orders are made. J S Murrell 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: 21 November 2011