RAYMOND BRINDLEY v PARRAMATTA CITY COUNCIL [2015] NSWLEC 1486

Land and Environment Court New South Wales

Medium Neutral Citation: RAYMOND BRINDLEY v PARRAMATTA CITY COUNCIL [2015] NSWLEC 1486 Hearing dates: 29 September 2015 Date of orders: 30 September 2015 Decision date: 30 September 2015 Jurisdiction: Class 1 Before: Maston AC Decision: 1. That the appeal be upheld 2. The application pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979 numbered 591/2009/B to modify Development Consent No. DA 591/2009 for the purpose of an approved drug and alcohol rehabilitation centre at 65 Marion Street, Harris Park to extend the hours of operation to Saturdays between 9:30am and 4pm on a permanent basis and consequential amendments to conditions 1, 26 and 33, is approved, subject to the consolidated modified conditions in annexure "A". 3. The exhibits other than exhibits 1 and 5 are returned. Catchwords: MODIFICATION OF DEVELOPMENT CONSENT: Drug and alcohol rehabilitation centre; trial period. Cases Cited: Brindley v Parramatta City Council [2014] NSWLEC 1193 Category: Principal judgment Parties: Raymond Brindley (Applicant) Parramatta City Council (Respondent) Representation: Solicitors: Mr M Marc Jaku, Jaku Legal (Applicant) Mr A Gough, Storey & Gough (Respondent) File Number(s): 10692 of 2015 Publication restriction: No

This determination was given extemporaneously and has been edited prior to publication

ACTING COMMISSIONER: 1. This is an appeal against the refusal of the Parramatta City Council to grant approval to an application pursuant to s 96(2) of the Environmental Planning & Assessment Act, 1979 (The Act) to modify development consent number DA591/2009 granted by the Council on 29 December 2009 for use of the premises known as The Wayback Centre, 65 Marion Street, Harris Park, on lot 12, DP2114, as a drug and alcohol rehabilitation centre. The application sought approval to amend the conditions of the development consent in order to extend the operating hours to include Saturdays between 9.30am and 4pm. 2. It was common ground that the proposed modification of the consent was permissible subject to the Court's approval, that the consent as modified relates to substantially the same development as the development for which consent was originally granted, and that it had been publicly notified as required. 3. The modification application is numbered DA591/2009/B. It was lodged with the Council on 14 May 2015. The Council promptly wrote to over 150 adjoining and nearby property owners, as well as other entities or occupants deemed to be affected or concerned in the application, including the Parramatta Local Area Command of the Police Force and the Crime Prevention Officer of Parramatta Police Station. Comment was also sought from relevant Government Departments and officers of the Council. No objections were received. Submissions in support, with recommendations for approval, were given by separate letters from the Council's Community Crime Prevention Officer; the Director of Community Services within the Parramatta Mission in the Uniting Church of Australia; New South Wales Corrective Services within the Department of the Attorney General and Justice; the Senior Judge of the Drug Court of New South Wales; and New South Wales Health, South Eastern Sydney Local Health District. 4. The Development Assessment Officer of the Council recommended to the Council that the application should be approved. Notwithstanding this, the Council refused approval of the application on 22 July 2015. The letter communicating the Council's decision was sent to the applicant on 6 August 2015 and the appeal was commenced on 10 August 2015. 5. The chronology of relevant events is as follows: * The original development consent No 591/2009 granted by the Council on 29 December 2009 was subject to a condition which limited the operation to the hours 8am to 5pm Monday to Friday. Also, a Plan of Management was required to be observed in order to govern the day-to-day conduct of the facility. * On 18 September 2013, a modification application numbered DA591/2009/A, the first modification, sought an extension of the permitted operating hours to include Saturdays between 9am and 4pm. It also proposed erection of a fence on the site. This application was refused by the Council on 16 December 2013. On 13 February 2014, the applicant lodged an appeal against that decision. * On 8 September 2015, the Land and Environment Court upheld the appeal and granted approval to the first modification subject to a condition that the Saturday operating hours sought should be on a trial basis for nine months commencing on 1 September 2014, that is, ending on 31 May 2015, noting that if continuation of the Saturday hours was desired, a further modification or development application might be lodged not less than 60 days before the end of the trial. In fact, no such application was made. The present modification application [No. 591/2009/B] was lodged on 14/5/2015. In the meantime, Saturday operations ceased on the expiry of the trial. * In the Council's notice of refusal of 27/7/22015 the grounds of refusal given were noise, local amenity, safety, and the public interest. * On 10 August 2015, the present appeal was commenced, and on 10 September 2015 the respondent filed its statement of facts and contentions. 1. Three contentions were raised. Firstly, there was said to be lack of owner's consent to accompany the modification application. This contention was withdrawn during the hearing. The second contention claimed the modification application was incompetent as it had been made under an incorrect provision of The Act. This contention was withdrawn after I granted leave by consent of both parties for the applicant to amend its application to substitute reference to s 96(2) of the Act, which is the provision which governs the present application. 2. The third and only remaining contention was that the applicant had failed to comply with certain development consent conditions. Several particulars were provided of this allegation. However, by the end of the hearing, only two of the particulars were relied upon. Also, one additional matter relating to a keyed entry lock and intercom was raised for the first time during the hearing. There was no evidence that any significant departure had occurred from the requirements of condition 33 with respect to the lock and entry restrictions. 3. The Court undertook a view of the land and the premises with the parties before the commencement of the hearing. This assisted in understanding the remaining matters particularised. 4. It is to be noted that the trial period relating to the hours of use of the premises had expired by 1 June 2015. However, this did not affect the structural alterations permitted by the first modification of the consent, listed by Senior Commissioner Moore, as his Honour then was, in para 9 of his judgment in Brindley v Parramatta City Council (2014) NSWLEC 1193. Relevantly, this includes the rearrangement of the three parking spaces off the lane at the rear of the property, including parking for persons with a disability and an adjoining shared zone; and also the fencing to the rear of the property as an acoustic and privacy screen. 5. In his judgment, Senior Commissioner Moore indicated in amended condition 26 that the Council should take into consideration in any further modification application the performance of the operator in complying with the consent conditions and management plan during the trial. In my opinion, this observation, though helpful, is not directly relevant to the present application because it is not an application for continuation of the trial period about which his Honour was then concerned. Notwithstanding that, the performance of the operator prior to the present application generally has been paid due attention in reaching the Court's decision. 6. The two remaining issues comprised in the third contention were breach of conditions affecting car parking and breach of a condition as to the display of signs during the trial period. As to the matter of car parking, the marking of the spaces as seen on the view was conceded by the Council to comply with requirements of the conditions of approval. The present modification does not purport to alter it. Photographs showing an unrelated vehicle trespassing on the car parking area at the rear of the site and thereby preventing staff cars to park wholly within the designated spaces was not, in my opinion, a basis for criticism let alone for denying approval of the present by sought extension for Saturday operations. 7. The final issue in contention 3 is that signs erected by the applicant during the trial period did not comply with condition 33(f) of the consent as modified by Senior Commissioner Moore. 8. It is not disputed that at all material times signs were erected on the front and rear of the premises and that those signs contained a contact telephone number, as well as an invitation to contact the office during business hours if a complaint was sought to be lodged regarding the operations on the site. Later, the sign was changed to expand the wording in an attempt to more fully comply with condition 33(f). 9. The additional information added to the signs referred to complaints being recorded and actioned and other associated matters. This brought the signs into closer correspondence with the requirement of condition 33(f). The signs were required to provide four pieces of "information", firstly, contact details for registration of complaints. This was supplied in all notices by giving a telephone number and the invitation to make complaints. This, of course, was the key requirement. Items 2, 3 and 4 required statements that complaints would be notified and actioned, that the complainant would be notified of any action taken, and that further information was available inside the premises in respect of complaint registration and the complaint management system. 10. The three pieces of additional information all depend on what was to take place after a complaint had been made. Absolute correspondence with the requirements was not achieved in the amended sign affixed to the premises. However, given that the contact details were provided for the making of complaints, there was no bar to any member of the community at any time exercising the right to complain. It is clear that nobody sought to complain in the first place. I do not consider that in these circumstances the absence of precise reference to the additional three requirements shows a wilful attempt by the applicant to obstruct or prevent the lodgement of complaints. 11. In this regard, Mr Brindley's unchallenged affidavit evidence was that in the early part of the trial period he sought a meeting on-site with Council officers in order to check, inter alia, that officers were satisfied with the operation of the centre. He subsequently met with Council officers. He also swore that a computerised complaint register had been established and that he took personal responsibility for it, but, of course, no complaints were received. Moreover, by the time the current modification application was lodged, the first modification period was about to end. 12. I do not consider that the applicant's conduct in this regard rendered the trial under the first modification otiose or even adversely affected it in any material way. When considering the applicant's conduct throughout, I am firmly of the view that the trial was successful and effective to demonstrate that the applicant attempted to comply with the conditions of consent and approval, including the plan of management. 13. Ultimately the Council accepted that the appeal should be upheld. It submitted however, that the approval of the modification should be limited to a further nine‑month trial period. In my opinion, this is unnecessary in view of the successful trial that has taken place, and in any case, it is not the application that was made. 14. I am satisfied that the applicant and Wayback Limited have demonstrated by their past conduct that they are fit operators of the facility, which, as Senior Commissioner Moore pointed out, provided a significant public and community benefit. The absence of any complaints at any time relevant to the present application strongly influences the ultimate outcome. In terms of s 79C and s 96(2) of the Act, I am satisfied that the modification sought should be approved in its terms on a permanent basis.