Brindley v Parramatta City Council [2014] NSWLEC 1193

Land and Environment Court New South Wales

Medium Neutral Citation: Brindley v Parramatta City Council [2014] NSWLEC 1193 Hearing dates: 28 August 2014 Decision date: 29 August 2014 Jurisdiction: Class 1 Before: Moore SC Decision: See (64) for directions to permit orders to be made upholding the appeal and modifying the development consent subject to revised conditions Catchwords: DEVELOPMENT CONSENT: Modification application; drug and alcohol rehabilitation centre; impact on residential amenity; hours of operation; societal need for such centres (public interest) Legislation Cited: Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2011 Cases Cited: Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737; (2005) 143 LGERA 237 Lemworth Pty Ltd v Liverpool City Council [2001] NSWCA 389; (2001) 117 LGERA 305 Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240; (2000) 111 LGERA 299 Category: Principal judgment Parties: R Brindley (Applicant) Parramatta City Council (Respondent) Representation: Ms M Saw, barrister (Applicant) Mr A Gough, solicitor (Respondent) N/A (Applicant) Storey & Gough (Respondent) File Number(s): 10073 of 2014

Judgment 1SENIOR COMMISSIONER: Substance abuse and addiction are significant problems in a modern industrialised society. It is necessary, in the context of the social and criminal impacts of such addiction, to provide socially beneficial rehabilitation and counselling services. Wayback operates such a facility at Harris Park in Sydney's western suburbs. It does so from a single level, heritage listed cottage that has been adapted for this purpose. The service has operated out of their premises for some 22 years - the majority of which was without a formal development consent for the use. 2In 2009, Wayback sought and was granted development consent for the use of the premises, on a retrospective basis, and for additions and alterations to the building including a rear extension. That development approval, in DA/591/2009, was given by Parramatta City Council (the Council) on 24 December 2009. The approval was subject to a number of operating conditions, two of which are relevant for the purposes of these proceedings. The first, condition 26, restricted the operation of the facility from 8.00am to 5.00pm Monday to Fridays, and, second, condition 29 provided that a maximum of 30 clients could attend the centre on any day. 3The Local Environmental Plan under which the 2009 consent was given was replaced in October 2011 by Parramatta Local Environmental Plan 2011, a Local Environment Plan based on the standard instrument template. 4Under the 2011 Local Environmental Plan, the site is now zoned B1 Neighbourhood Centre. The agreed characterisation of the activities undertaken by Wayback at the premises is as a health service facility and this is now a use that is prohibited by the land use table in the Local Environmental Plan for the B1 zone. As a consequence, Wayback's activities for the future rely on existing use rights. 5The aims of the 2011 Local Environment Plan are set out in cl 1.2. Mr Gough, solicitor for the Council, says that two of those aims are not satisfied by the application to modify the consent that is currently before the Court. That application seeks a number of changes that I will outline shortly. 6However, the two aspects of the aims of the Local Environment Plan that Mr Gough says are transgressed are those contained in cl(2)(b), to foster environmental, economic, social and physical wellbeing so that Parramatta develops as an integrated balanced and sustainable city, and (h) to enhance the amenity and characteristics of established residential areas. 7In this context, I note that the property occupied by Wayback is on a zone interface between the B1 zone and a higher density residential zone, and that immediately to the rear of premises and across a laneway is located a residential flat building, a location that is of relevance later in the proceedings. 8Contrary to Mr Gough's submissions concerning transgression of those two aspects of the aim of the local environment plan, I am satisfied that this application contributes positively to the satisfaction of both of those elements of the aims, a matter to which I will return. 9The application seeks approval for five elements: * First, to extend the permitted operation hours of the rehabilitation and counselling service to Saturdays between 9.30am and 4.00pm, that being a new and not presently operating aspect of the premises; * Second, for construction of a 2-metre high fence to the rear of the site along its western boundary. Although described in the Statement of Facts and Contentions by the Council as being along the western side boundary, it is in fact within the boundaries of the site and immediately adjacent to the rear of the built form on site, and set some 6 or 7 metres in from the rear boundary of the site. That fence has already been constructed. * The third aspect is the relocation of parking spaces to the rear by providing 90-degree parking for three vehicles off the lane way between the already constructed fence and the rear boundary of the property. That parking has already been installed and marked out. * The fourth change is internal alterations to the building, including the installation of a wall and window to an office at the rear. That work has also been undertaken. * So has the fifth element, the construction of a shade structure over a courtyard that has been created within the fenced area but within an area that, pursuant to the 2009 development consent, is designated for car parking. 10The second to the fifth of these changes, as I have already noted, have already taken place, and thus retrospective approval (as is permissible in a theoretical planning modification model under the Environment Planning and Assessment Act 1979) is sought for them. 11The second, fourth and fifth elements are not opposed. 12The first and third elements are opposed and, if the third is not approved - that is relating to the relocation of the parking - such non-approval has potential consequences for items 2 and 5, as there would remain an obligation to provide parking at the locations within the site now not able to be accessed because of the fence and where the covered courtyard area is located. 13As the proceedings unfolded, it became obvious to me that the Council's concerns fall into two major areas. The first is the impact of the premises and then potential extension of that impact by the extension of its operating hours on residences in the immediate vicinity, including the residential flat building immediately to the rear over the laneway; and, second, the question of what, if anything, might be the impact of the long-term proposal adopted by the Council of road-widening of the rear lane - a road-widening that would require the Council to acquire a portion of the rear of the site, there being a voluntary acquisition scheme available with respect to that land, (a voluntary acquisition scheme that, as I understand it, the applicant in the proceedings disavows triggering whilst there is no anticipated mandatory acquisition process). 14Indeed, the immediate plans of the Council for the road are to render it a one-way trafficable road, not the present two-way trafficable laneway, a future intention that has had a beneficial impact on the assessment of the layout of the parking spaces proposed to be approved in this application. 15I turn, first, to the amenity impact on neighbouring residential properties. At the time the modification application was notified, there were two substantive letters of concern provided to the Council, and a petition was lodged with the Council. Those letters of concern and the petition opposed the extension of the hours. 16I note, parenthetically at this point, that petitions, to the extent that they reflect the truth, do not add weight to the extent of the truth of the propositions contained in them, and if they do not contain valid propositions, the mere adoption of their premises by multiple signatories cannot render fallacious presumptions valid. 17I turn, however, to the two substantive letters of objection. It is appropriate to set them out, in my view, in full. Both of them are dated October 2013, prior to the installation of the already erected fence for which consent is sought. I do not propose to provide any identifying information with respect to the authors of the letters as it is unnecessary to do so, in my view, for the purposes of this decision. However, the first and longer of those letters dated October 2013 is in the following terms and I quote: I have put up with these people for 22 years. They are not going to spoil my Saturdays. (1) These people are loud, rude, abusive and swearing. (2) They have fights. (3) They try and park in our car spaces, (4) The - I infer "they" - come in here and urinate in the garden area. (5) They shoot up behind our cars and drop bloody wipes and syringes around our common property. (6) They use the water tap and leave it running. The number (6) is repeated: (6) They wander at the rear of the building, peep in windows, have been chased off balconies and go in our garden shed to shoot up. (7) They loiter near the park where there are trees, and drink and do deals. (8) A rehab temper tantrum, and kicked and broke palings off the fence. (9) They sit on our front fence and mail area, eating, drinking, then leave the rubbish behind. (10) I have picked up their stuff, needles, wipes, bottles, cans, cups, et cetera. (11) I have turned needles and containers to the counter at centre after it had been stuffed in our letterboxes. The minute an offence occurs, I am in that centre to report it. No-one takes responsibility. We call the police; they are too busy to come. I have family, friends, grandchildren I mind, visitors, and they've seen this all over the years. We are 15 units here looking at this centre, units with decent people, families, children, babies and teens. So no way will Wayback open on a Saturday. The CEO - I omit his name - can move them into his street as his neighbours. We've put up with them for the last 22 years, five days a week. I think that it's time to move on to new home after all they have no impact on the community. What an insult to myself and neighbours. My neighbours are relying on my voice. As usual, they don't want a brick in their windows, their car broken into or the abuse from speaking up, their tyres let down. The rehab centre should teach these people how to behave, manners, respect for neighbours and property. Make them work and stop being a burden on us taxpayers. The impact on me as a homeowner. I rang the Parramatta Council as soon as this centre opened its doors on Saturdays, so I am not ignorant like the CEO of the centre. 18The second objection is of a briefer nature. It is dated 10 October 2013. It is addressed to the relevant development assessment officer at the Council and it says as follows: With reference to the above application, I do not consent for the opening hours of Wayback Committee Limited on Saturday between 09.30am to 04.00pm. I've made this decision based on the following: * The visitors of Wayback Committee Ltd gather near the premises (most of the time at the rear of the property) way before the opening hours and talk loudly using rough language. We would not like to happen on the weekends so that it will disturb our rest days and create noise pollution. * Our unit is being used as a parking space. * Peoples who visit this property sit on our brick wall and smoke heavily. They also throw their rubbish into our property. * Used needles have been found in our premises, so we have suspicion they use our premises to inject themselves. I feel that safety will be at risk by having such types of business next to residential areas. 19The fence for which retrospective approval is sought was erected in early 2014, although I do not have a specific date available to me. 20A new letter from the author of the main objection was tendered on behalf of the applicant. This letter is dated 18 August 2014. It demonstrates an epiphany with respect to the operation of the premises. It is addressed, I note, to the possibility that the approval for the fence might not be granted, and thus the fence might be required to be removed. However, its contents, in my view, are reflective of a significant and much more positive message with respect to the operations of the premises overall - in light of the erection of that fence. The letter is in the following terms: Re: removal of fence at rear of Wayback Drug and Alcohol Rehab Centre at 65 Marian Street, Harris Park. My unit and unit block of 15 faces the rear yard of Wayback. I have lived here at this unit for 30 years. For 22 years, I have put up with the sights of Wayback, the rehab clients. Early this year, a fence was erected around the rear of Wayback, the best thing that ever happened. I rarely see or hear the clients that visit these premises on a daily basis now. It has been like heaven since the fence went up: private, quieter. Please reconsider about the removal of the rear fence (I am loving it). 21That letter, although it relates to the fence, also reflects the change of impact of the operation of the premises on a broader notice with respect to noise, behaviour and, in particular, the congregation or, now, noncongregation of clients of the centre in the rear lane and thus impacting on the residential flat building immediately opposite. 22The fence, I note, has a gate with a lock, a lock that is operated by key only in both directions, and it is subject to a proposed condition of consent, as modified by a suggestion during the course of the proceedings, to specify that, for both purposes of access and egress, there is no opportunity for casual movement by clients through that gate, as it is to be staff-operated only by key. 23I am satisfied that, as a consequence of the fence, the terms of cl 1.2(2)(h) of the Local Environmental Plan is satisfied in that the erection of the fence and the changed method of operation of the centre has in fact enhanced the amenity and characteristics of the established residential area located immediately across the lane to the rear. 24As to the satisfaction of aim 1.2(2)(b), I am satisfied that the environmental, economic, social and physical wellbeing of Parramatta as a city being developed as an integrated, balanced and sustainable city, mandates, for reasons of societal protection as well as societal responsibility, the establishment of premises such as those operated by Wayback and that the fostering of such premises and the extension of its services provides protection not only on the very broad communal basis that was put to me but provides it in the specific context of the Parramatta City area itself. 25However, if I be wrong in the conclusions that I have drawn about the Saturday activities of the premises being in positive response to the two aims of the Local Environmental Plan that were pleaded by the Council, I am satisfied, for reasons to which I will refer very shortly, that the public interest provision under s 79C of the Environmental Planning and Assessment Act 1979 is engaged by the provision of such services in response to the social imperative of dealing with the problems of addiction in our community. 26That is evidenced in these proceedings by a number of letters that became Exhibit C in the proceedings. 27The first of them is a letter from the executive officer/registrar of the Drug Court of New South Wales, which indicates the strong support of that court for the operations of Wayback and strongly supports the proposal to extend the services to Saturday. It sets out the reasons why this would be an improvement of their services and would assist in the rehabilitation of the clients of the service if they were able to be in attendance on Saturdays, in addition to other weekday operations. 28The second letter in support is from the community corrections officer at Fairfield Community Corrections of Corrective Services New South Wales. It, too, is a strong letter of support about the function and operation - and, indeed, desirability - of the extension of the services of Wayback in the manner sought. 29The third letter is from the director of community services at Parramatta Mission, a mission that operates a joint program with Wayback, and this submission also supports the extension of the operating hours of Wayback as a positive step in dealing with issues of rehabilitation and reassimilation into society for clients of Wayback. 30The final letter is from a person who is the Clinical Nurse Consultant, Forensic Service (Adult Drug Court) of the South Eastern Sydney Local Health District. It is in similar terms of support for the operations of Wayback. 31I am satisfied, on all of that material, that even if I be wrong in my assessment of the beneficial impacts of the proposal on the neighbouring properties, that the public interest in providing an extension to the hours of the service is so overwhelmingly great that any impact on the neighbouring residents that I might have inadvertently not observed or taken into account is far superseded by that public benefit. 32However, having said that I have concluded that it is appropriate to permit the centre to trade on Saturdays, during the hours that are sought, there are a number of matters that arise with respect to that approval. 33The first is not whether or not there should be a trial period, it being accepted by the applicant implicitly (from the applicant's response to the Council's conditions, a response that was contained in Exhibit E in the proceedings) that a trial period was appropriate, but the length of the trial period that should be approved was disputed. 34The Council initially suggested a trial period of six months, but in response to a question by me about the desirability of assessing noise and other impacts, if there were to be any, during the warmer months when the outdoor area might be regarded as likely to be used most intensively, Mr Gough accepted that a trial period of nine months would be appropriate on that basis. Ms Saw, barrister for the applicant, pressed for a 12-month trial period. 35I am satisfied that, if there were to be any adverse impacts, they would be demonstrated during the summer months, as I have outlined. A nine-month trial period provides sufficient time for that evidentiary accumulation, if there be any, and still allow time for the applicant to lodge a further development application either for a longer trial period or for substantive confirmation of the changed trading hours. I am therefore satisfied that a trial period of nine months from 1 September would be appropriate and should be incorporated in the conditions of approval. 36Second, the question arises of how many persons should be permitted to attend the centre during the course of the Saturday trading. The condition in the 2009 consent for the weekdays provides a maximum of 30 persons per day. 37In what could be described only as magnificently inappropriate pleading by the Council in its draft conditions of consent, the Council proposed a condition that said there should be a maximum of ten people at any one time on the premises on a Saturday. 38At approximately onehour turnovers, that would have meant a maximum of 60 or so people could have been present at the premises during the day on a Saturday. That would be entirely inappropriate. 39The applicant did not contest, in its original pleadings, the desirability of a condition framed in those terms, but sought 20 at any one time, leading to the position that perhaps 120 or more people could be the through-put on a Saturday. 40Both of those are obviously radically inappropriate. 41Having pointed that out, the parties were each permitted to amend their pleadings so as to seek a maximum of ten persons in total for a Saturday, that being the Council's position; similarly, 20, that being the applicant's position. 42It is my understanding that, after the exchanges that took place concerning that and some evidence that was given by Mr Brindley, the chief executive officer of the facility, about the sessional times and the maximum number of people in a session - that being ten - and that there was a gap of an hour or so between proposed sessions on Saturday, Mr Gough accepted that an appropriate condition would be that there would be an attendance of a maximum of 20 clients on a Saturday, provided that no more than ten clients were present on the premises at any one time. 43I also understood that to be acceptable to the applicant, and I am satisfied, whether or not my understanding of the agreement is correct, that that is the appropriate provision and it is to be incorporated in the conditions of consent. 44The second matter that arises for substantive discussion is the question of the rear laneway and the proposed parking arrangements. The original parking spaces had one space parallel to the line of the laneway at the rear of the built area - that is, beyond the location where the fence is now located - but two stacked parking spaces, one a disabled parking, within the area that is now fenced and incorporated as the covered courtyard. That which is proposed is three car parking spaces perpendicular to the line of the laneway, one of which is also to be a disabled car parking space. 45I had the benefit of expert evidence being given by Mr Coady on behalf of the Council and Mr Hazel on behalf of the applicant. Both of them are traffic experts well known to the Court. They are in agreement that the parking layout, particularly on the assumption that the laneway will be rendered one way in the comparatively near future, is an appropriate layout and is acceptable under the circumstances for those parking spaces to be accessed. 46There is, however, another issue engaged with respect to the laneway. The Council has, as part of the 2011 Local Environmental Plan, produced a land reservation access map which shows the location of a variety of land elements within the local government area that are proposed to be acquired in some fashion for future public purpose development. Part of the rear of this property is identified on the land reservation and acquisition map, and indeed was so identified on the plan that was attached to the 2009 development consent. 47The mapping of the land for that purpose engages the provisions of cl 5.1A of the 2011 Local Environmental Plan and in particular the provisions of subclause (3), a clause that is in the following terms: "development consent must not be granted to any development on land to which this clause applies, other than development for a purpose specified opposite that land in column 2 of that table," the table being the table that forms part of the clause. 48The land that is identified at the rear of the property is identified as development for the purposes of roads, as the specified future public purpose. With respect to the impact of that provision on this application, the Council says that it intends to effect a prohibition on the approval of the proposed parking spaces. To that extent, Mr Gough relies on a decision of the Court of Appeal in Lemworth Pty Ltd v Liverpool City Council [2001] NSWCA 389; (2001) 117 LGERA 305. I do not propose to traverse the terms of that decision at length, but I do not consider that it applies for reasons that I will outline shortly. 49Ms Saw, on the other hand, relies on a number of decisions of the Court concerning the scope of s 96 modification applications and particularly whether the granting of a modification does not constitute the grant of development consent as a consequence of the terms of s 96(4) of the Environmental Planning and Assessment Act 1979. 50She cited a number of cases in support of that proposition, commencing with the decision of Talbot J in Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240; (2000) 111 LGERA 299, the first substantive decision that set out the extensive beneficial and facultative powers subject to the requirements of substantially the same developments test as enunciated in Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 that are available for modification applications. I simply note in particular, the decision of the chief judge of the Court in Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737; (2005) 143 LGERA 237 at para 39, where his Honour expressly endorses the proposition that modification of a consent is not the grant of a consent. 51Mr Gough proposes that the appropriate interpretation of the 2009 consent does not have the effect of creating an endorsement of sufficient, or any, uses of the rear of the property for the purposes of setting aside the consequence flowing from Lemworth. I make a number of observations with respect to that. 52First, all of the land that is within this application is within a single parcel of land. It is my understanding from Lemworth that the additional areas to which the brothel in those proceedings were to be extended were not incorporated within the scope of the original development application, and that that application involved an extension of the area that was subject to the approval. That is not the case here. 53Second, Mr Hazel was asked, during the course of the concurrent evidence of the traffic experts, whether the area that is marked on the ground floor plan of the 2009 consent from Sorrents and Associates Pty Ltd, Architects, was used as part of the activities of the centre, although it is marked for the relevant area at the rear as being of about 3.6 metres in width for roadwidening. It was Mr Hazel's evidence, also self-evidently obvious from the site, that it would be necessary, when moving from the lane to any of the parking spaces that were approved in the 2009 development consent, to traverse that space. 54Third, the plan itself shows two areas that are presumed by me - I think selfevidently from the plan - to be notations of pedestrian access on that plan, one of which clearly shows pedestrian access across the area of proposed roadwidening. 55For those reasons, I do not consider that Lemworth is applicable, and this is not an element of the proposal that requires a separate, fresh development consent, a development consent not able to be granted (if it were required) as a consequence of the matters contained in 5(1)(a)(iii) of the LEP. 56Mr Nash gave town planning evidence for the applicant. Part of what he has done for the applicant is to provide a draft plan of management for the premises. The Council has accepted (and indeed, as I understand it, demanded) that there should be such a plan of management. In broad terms, the plan of management proposed by Mr Nash, which is to be incorporated in the conditions of development consent and not able to be altered without the approval of the Council, is accepted as an appropriate management plan for the premises. 57There are, however, several contested proposed additions to the plan of management that were raised by the Council in its proposed conditions of consent - if I were minded, as I am, to grant approval for the Saturday operation. 58One of them, arising during the course of the proceedings, not generally in contest, concerns the lockability of the gate and the noting that the lock is to operate to prevent egress as well as access. 59There was, however, a dispute between the Council and the applicant concerning the notification to residents of the complaintshandling procedures of the centre. 60The proposed condition is yet another infelicitously drafted one and proposed that details of the complaint registration and complaint management system be circulated to all "residents" located on Marion Street, between two nominated streets. Clearly, for that to make any sense, it should have been "residences". 61In any event, it was intended that that circulation of information happened within 14 days of the date of issue of this consent and include a number of nominated items. Doing so would have provided a "one-off shot" of the provision of that sort of information to the local residents. 62The applicant's position was that they have a sign on the front of the premises that gives notification of a complaint telephone number, and that that was sufficient. 63The Council and the applicant now agree, as I understood it, that a replacement of the sign at the front of the building with a new sign that incorporates the telephone number, but also the statement that information about the complaintshandling procedure and the like is available from the inquiry counter within the premises, is an appropriate response, as would be the erection of a sign in identical terms facing the laneway at the rear. That, in my view, is an acceptable response to that issue and the conditions should reflect it. 64The only remaining substantively contested proposed condition is that the Council proposes that an additional CCTV camera shall be erected on the site to allow for surveillance of the laneway in both directions from the site. It was proposed that there be a data retention requirement and availability provision, and the like. This was opposed by the applicant. It was Mr Nash's evidence that, in light of the erection of the fence and the no access/egress opportunities for clients of the premises, such a provision was unnecessary. 65I am satisfied, on the basis of the information provided in the letter of August 2014 from the resident opposite the site (that I have set out in full earlier) that there is not, at the present time, any reasonable basis upon which I could require the installation of such a closed-circuit television camera. 66However, it is also fair to observe, for the Council's position, that the fact that there will be a trial period for nine months of Saturday trading and this will provide an opportunity to assess whether the Council should, on some future application with respect to Saturday trading, re-agitate the question of the installation of a closedcircuit television camera at that location for those purposes. That condition, therefore, is not to be incorporated in the conditions of consent. 67To give effect to this decision, it will be necessary for the Council to prepare revised modification conditions and revised consolidated conditions of development consent compliant with the Court's practice directions for the issuing of orders in proceedings such as this. To permit that to occur, I should set the matter down for a further mention on the basis that, if the respondent files - including filing electronically as a .doc Microsoft Word document and not a .docx Microsoft Word document - settled conditions of consent, I will make orders in chambers and vacate the proposed mention. 68To give effect to this, I give the following directions: (1)The respondent is to file and serve settled conditions of consent (physically and electronically) by the close of business on 10 September; (2)The matter is set down for mention before me at 8.20am on Friday, 12 September; and (3)If direction (1) is satisfied, I will make orders in chambers and vacate the mention set down by direction (2). Tim Moore Senior Commissioner 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: 18 September 2014