Land and Environment Court New South Wales Medium Neutral Citation: Feros Hotel Group Pty Ltd v Northern Beaches Council [2018] NSWLEC 1404 Hearing dates: 15-16 May 2018; Final Submissions 1, 7 and 15 June 2018 Date of orders: 08 August 2018 Decision date: 08 August 2018 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders that: (1)The appeal is dismissed. (2) Development Application DA 2016/1270 for alternations and additions to, and increased patrons at, the Terrey Hills Tavern, 2 Aumuna Road, Terrey Hills, is refused. (3) The exhibits are returned except Exhibits B and 1. Catchwords: DEVELOPMENT APPLICATION – alterations to existing tavern; increased patron levels of tavern sought; required parking; adequacy of parking surveys and analysis; disagreement on determination of parking demand for "pubs"; ability to provide acceptable additional parking; proportion of parking acceptable on-street; acoustic impacts; impacts on neighbours; objections Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Warringah Development Control Plan 2011 Warringah Local Environmental Plan 2011 Texts Cited: RMS Guide to Traffic Generating Developments (2002) Category: Principal judgment Parties: Feros Hotel Group Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: M Wright SC with Dr J Smith (Applicant) A Pickles SC (Respondent) Solicitors: JDK Legal (Applicant) Storey & Gough (Respondent) File Number(s): 2017/214967 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal lodged under then s 97(1), now s 8.7(1), of the Environmental Planning and Assessment Act 1979 ("the Act") against the deemed refusal of a development application ("the application") by the Northern Beaches Council ("the Council"). 2. The application, DA 2016/1270, proposed alterations and additions to, and increased patron capacity of, the Terrey Hills Tavern ("the tavern") situated at 2 Aumuna Road, Terrey Hills ("the site"). 3. The application as lodged proposed a new acoustic curtain adjoining the bistro, a new central roof and retractable awnings for the outdoor dining area, new paving and fixture alterations to the outdoor dining area, and new decking. It also sought to double the maximum number of patrons permitted on the site from the currently approved 350 patrons to 700 patrons. No additional on-site parking was proposed. 4. The application was notified and four objections were received raising concerns with parking, impact on bushland, noise impacts on surrounding properties from live music events, and fire and pedestrian safety. 5. The application was also referred to external authorities including the Police, Ausgrid and RMS. The only objection from external agencies was received from the Police in terms of the proposed new patron levels and the ability to manage this number. The Police recommended a maximise capping of patron numbers to 500 subject to adequate security measures incorporated into the Plan of Management ("PoM"). 6. The appeal was lodged in July 2017 against the Council's deemed refusal of the application. 7. The Council raised no concerns with the alterations and additions proposed but contended that the application should be refused on the basis of the proposed increased patron numbers primarily due to concerns with parking, access and traffic implications. Insufficient off-street parking was considered to be provided to accommodate the increase in patrons, and reliance on on-street parking would affect the amenity of surrounding properties. 8. Safety and security concerns were also raised as were adverse acoustic impacts on neighbours. The site and surrounds 1. The tavern has frontages to three streets; Aumuna Road to the south, Mona Vale Road to the east, and Myoora Road to the west. The site is legally described as Lot 6 in DP739456 and has an area of 1.471 hectares. 2. The site adjoins Lot 9 in DP700457, known as 305 Mona Vale Road, which is under the same ownership and contains a section of the tavern's car park. 3. The tavern is a single storey building with an outdoor beer garden. It is in the north western portion of the site. There is a separate drive-through bottle shop in the south eastern portion adjoining Mona Vale Road. Vehicular access to the site is provided from Aumuna Road with on-site parking for some 180 cars. 4. The site contains grassed areas interspersed with canopy trees and shrubs at the Mona Vale and Myoora Road frontages with scattered boundary plantings. The site slopes down from Mona Vale Road to Myoora Road by some 15m. 5. The tavern has a limit of 350 patrons set by a condition of a 1991 development consent and is also a live music venue. Approved trading hours are from 6am to 10pm Sunday to Thursday and 6am to midnight Friday and Saturday, imposed as part of a development consent issued in 1999. 6. Adjoining and surrounding development comprises a mixture of rural residential properties and light industrial and agricultural uses. These include Australian Native Landscaping, a retail nursery and bulky garden supply business, at 36-38 Myoora Road to the north, a dwelling at 32 Myoora Road and a dual occupancy and agricultural business at 30 Myoora Road to the south, and rural residential properties at 23 and 27 Myoora Road to the west. Statutory controls 1. The site is zoned RU4 Primary Production Small Lots under the provisions of the Warringah Local Environmental Plan 2011 ("the LEP") as are surrounding properties. 2. The tavern is defined as a "pub" under the provisions of the LEP which is a prohibited use in the R4 zone. However, the tavern is permitted under the LEP by clause 2.5 Additional Permitted Uses of Particular Land, being those uses listed in Schedule 1 of the LEP. Clause 17 of Schedule 1 applies to the site, being Lot 6, whereby a range of additional uses are permissible with consent including hotel or motel accommodation, pubs, registered clubs, and restaurants and cafes. 3. The provisions of the Warringah Development Control Plan 2011 ("the DCP") also apply to development on the site. Of particular relevance to the application are the provisions of Part C2 – Traffic Access and Safety, Part C3 – Parking, and Part H of Appendix 1 - Car Parking Requirements. 4. The relevant DCP provisions at Part C3 are as follows: C3 Parking Facilities Objectives • To provide adequate off-street parking. • To site and design parking facilities (including garages) to have minimal visual impact on the street frontage and other public places. • To ensure that parking facilities (including garages) are designed so as not to dominate the street frontage or other public spaces. Requirements 2. Off street parking is to be provided within the property demonstrating that the following matters have been taken into account: • the land use; • the hours of operation; • the availability of public transport; • the availability of alternative car parking; and • the need for parking facilities for courier vehicles, delivery/service vehicles and bicycles. 3. Car parking, other than for individual dwellings shall: • … • Not be readily apparent from public spaces; • Provide safe and convenient pedestrian and traffic movement; • … • Be landscaped to shade parked cars, screen them from public view, • … 4. Car parking is to be provided in accordance with Appendix 1 which details the rate of car parking for various land uses. Where the car parking rate is not specified in Appendix 1 or the WLEP, car parking must be adequate for the development having regard to the objectives and requirements of this clause. The rates specified in the Roads and Traffic Authority Guide to Traffic Generating Development should be used as a guide where relevant. 1. Appendix 1 of the DCP does not specify a numeric parking rate, but has the following requirement, for pubs albeit the reference is to hotels: Comparisons must be drawn with developments for a similar purpose, noting the existing supply of, and demand for, parking in the area and the peak parking periods of individual activities within the hotel. When proposed hotel development includes a function room for live music performances or a nightclub, particular attention must be paid to parking requirements to meet peak demands. Amendments to the application 1. Following lodgement of the appeal, conciliation was held between the parties under s 34 of the Land and Environment Court Act 1979 ("the Court Act") in November 2017. At the hearing, the parties agreed that I could have regard to the evidence provided during the conciliation process: s 34(12) of the Court Act. 2. As part of the conciliation, the Court viewed the site and surrounds. The parties' experts also attended the site view. They comprised: traffic engineers, Mr McLaren for the applicant and Mr Corbett for the Council; planners, Mr Lidis for the applicant and Ms Ezzy for the Council; and acoustic experts, Mr Cooper for the applicant and Mr Gross for the Council. 3. The Court heard on-site from the resident of 303 Mona Vale Road, a resident claiming to be a representative of the Terrey Hills Progress Association ("THPA"), and Police Sergeant Beazley from the Manly Local Area Command. 4. The resident of 303 Mona Vale Road was concerned that the development would affect his amenity. Live music was an existing problem as was parking. There was anti-social behaviour during live band events and he claimed the tavern did not comply with their existing conditions. He believed there was a need for a noise monitor and restrictor. Noise from bin collection early in the morning was also of concern. 5. The THPA member was also a local resident who raised concerns with the outdoor noise associated with the tavern, and parking. He advised that people parked on the footpath and all down the streets and queried where the additional patrons were going to park. 6. Sgt Beazley advised that the Police were worried about the proposed number of patrons but would be happy with "about 500 patrons". This was not to say that number could not be extended. Big nights with live bands would be a problem but there had been no recent issues or formal action taken in relation to the tavern's operations. 7. As a conciliated outcome could not be achieved, the conciliation process was terminated. However, arising from conciliation, the applicant prepared amended plans for consideration by the experts in their joint conferral. These amendments included providing a new parking area, referred to by the planning experts as "the Mona Vale Road car park", extending partly onto Lot 9. This new car park contained 28 car spaces within the front setback to Mona Vale Road, accessed from the bottle shop car park. 8. It was also proposed to reconfigure existing 90 degree parking to facilitate small car spaces and provide additional parking around the bottle shop. Twelve new spaces were proposed on the southern side of the tavern adjoining the internal driveway in a parallel configuration, with the driveway converted to a one-way system from west to east. Modifications were also proposed to pedestrian paths and the existing landscaping to facilitate these new works. Additional screening vegetation was proposed within the front setbacks to Mona Vale and Aumuna Roads. 9. As a consequence of these amendments, an increase of 41 car parking spaces was proposed on-site to give a total of 231 car spaces. This included 19 spaces approved as part of the bottle shop. 10. The proposed Mona Vale Road car park was setback 15m from Mona Vale Road and 10m from Aumuna Road. Construction of this car park would require removal of three trees on the existing Mona Vale Road embankment but they would be replaced by new landscaping proposed within the setback areas. 11. The amended proposal raised new contentions for the Council. Firstly, it was argued that parking for the tavern was not permitted on Lot 9 as it did not benefit from the Additional Permitted Use provisions in the LEP, which allows the tavern use on Lot 6, and there had been no evidence provided that Lot 9 benefitted from existing use rights associated with the tavern. 12. Secondly, there was a concern with a new car park being in the landscaped setback to Mona Vale Road and thirdly, with the proposed one-way circulation system. Finally, the additional parallel parking was within the landscaped setback to Aumuna Road, which was not permitted by the DCP. 13. However, as a result of the expert reports and conferral, a number of the Council's original contentions were resolved. 14. The joint report of the acoustic experts (Exhibit 4) dealt with establishing appropriate criteria for patron and music noise, including noise from parking. These experts acknowledged the proposed upgrading to be undertaken to control noise and agreed that, subject to appropriate conditions requiring compliance monitoring being undertaken and an appropriate PoM prepared in consultation with a suitably qualified acoustic consultant, residential amenity would be maintained. The PoM would be required to deal with days and hours of operation (including for live bands). 15. Other conditions, agreed by the applicant, included installation of noise limiters, management of patron behaviour (including on surrounding streets) and establishment of a complaints system. Upgrading was also recommended to areas of the perimeter fencing which was agreed to by the applicant. 16. The planning experts agreed that safety and security issues could be managed by an updated PoM and conditions of consent which specify security guard numbers and protocols for managing patrons leaving the premises. 17. The hearing commenced on May 15, 2018 and was then briefly adjourned to enable the applicant to confirm the application for which approval was being sought and, in particular, the increased patron numbers sought. This was due to counsel for the applicant, Mr Wright SC, acknowledging that there was dispute as to the ability to use Lot 9 for additional parking associated with the tavern, therefore that option would not be pursued. Accordingly, only limited additional off-street parking could be provided on the site. 18. Following the adjournment, leave was sought and granted to a modified application to increase the patron levels to 500 rather than 700. Additional parking was confined to reconfiguring the 90 degree parking to small car spaces and the 12 new parallel spaces adjoining the internal driveway parallel to Aumuna Road. This resulted in a total on-site provision of 202 spaces relative to the existing 190. The proposed one way traffic flow between the western and eastern car parks remained. 19. These amendments were shown in revised plans (Exhibit A). As expert reports had been filed based on 700 patrons, addendum expert reports were prepared prior to the hearing continuing. 20. An updated PoM was filed by the applicant after the hearing incorporating amendments recommended by the various experts and which would be referenced by a condition of consent. These amendments included a maximum of 500 patrons of which a maximum of 340 would be permitted in the outdoor areas at any time, manual counting of patrons when close to capacity to ensure capacity was not exceeded, and security personnel to manage patrons. Required parking to accommodate increased patrons 1. The primary remaining contention of the Council was that there was insufficient parking provided for the increased patronage proposed which would result in additional on-street parking with resultant adverse impacts. This contention is dealt with in detail later. 2. Concern was also raised with the proposed changes to the internal circulation between car parks and with the 12 proposed parallel parking spaces in the setback area to Aumuna Road. 3. Ms Ezzy was concerned that the new parallel car spaces would reduce landscaped open space and result in non-compliant front setbacks with consequent adverse streetscape impacts. She accepted that the tavern car parks already included parking within the setback area but did not know when these had been approved. 4. Mr Corbett's primary concern with the proposed one-way access between the car parks was that it would require patrons to exit the site and use Aumuna Road to travel between the car parks if the eastern car park was full, which is not currently required. 5. The applicant's experts argued that the proposed one way internal circulation was more efficient and there were low traffic volumes on Aumuna Road as well as three entry points from Aumuna Road to the car parking areas. The additional parking in the landscaped setback area was proposed to address Council's concerns with the use of on-street parking. These proposed spaces were at a lower level than the road and additional landscaping in the setback area was proposed so visual impacts would be minimal. Further, there was already parking in this setback as well as an internal vehicle accessway. Background to the evidence on parking 1. The DCP references the RMS Guide to Traffic Generating Developments (2002) ("the RMS Guide"). It requires, in essence, that parking for pubs is to be determined by an assessment of similar sites and having regard to the existing supply of, and demand for, parking in the area, the peak parking periods of individual activities and, where live music performances are proposed, that there be particular attention paid to parking requirements to meet peak demands. 2. The Joint Expert Traffic Report was superseded by a Supplementary Joint Expert Traffic Report (Exhibit 7) based on the amended application for 500 patrons and 12 additional parallel car spaces. 3. The traffic experts agreed that: 1. Neither the DCP nor the RMS Guide stipulate minimum required parking provision for pub or tavern development; 2. The only comparative similar site was the tavern itself; 3. The existing development provides a total of 190 on-site parking spaces for a maximum patron capacity of 350. The proposed development, as amended, would provide a total of 202 spaces for 500 patrons. Of these, 3 spaces were required for the bottle shop during the Friday evening peak period and 2 spaces for the Sunday lunchtime peak period; 4. Aumuna Road generally permits unrestricted parallel parking for 70 cars between its intersections with Mona Vale and Myoora Roads; 5. Myoora Road generally permits unrestricted parallel parking for 63 cars, 27 of which are on the side of the tavern, to the north of its intersection with Aumuna Road along a distance of some 320m; and 6. Additional staff parking could be provided in the driveway to the staff break out area adjoining the northern boundary of the site (but was not proposed in the application). 1. However, the traffic experts disagreed on all of the key fundamental parking issues in contention: the adequacy of the surveys and the analysis to demonstrate existing patronage parking demand, and therefore projected future demand with increased patrons; the methodology for determining demand; the extent of parking that should be accommodated on surrounding streets; the acceptability of the proposed one way circulation system between car parks; and the acceptability of the impact from traffic generated by the proposed development. 2. Extensive oral evidence was provided on the analysis undertaken by each of the traffic experts. This did not assist the Court greatly in determining the validity of the competing parking demand analyses undertaken. The evidence was not assisted by the late change in the proposed patron levels and parking arrangements which required the filing of updated expert reports and data, and limited the ability and time available to review and respond to this data resulting in clarification being required in oral evidence. Analysis by Mr McLaren for the applicant 1. Mr McLaren had prepared a Traffic and Parking Impact Assessment ("TPIA") in support of the application (Exhibit E) when an increase to 700 patrons was proposed, along with an additional 43 parking spaces including the proposed new car park on Lot 9, and prior to the application being amended. 2. Mr McLaren advised the Court that his analysis determined the maximum average parking demand at peak days/times over an entire year of tavern sales. This showed that the regular peak trading days and times are Friday dinner and Sunday lunch periods. He identified an average demand from the 104 Fridays and Sundays in a year, going from the highest day to the lowest day in terms of sales numbers. 3. Simultaneous patronage and parking surveys were undertaken over four Fridays and Sundays in August, 2017 being: Friday 18th, Sunday 20th, Friday 25th and Sunday 27th. The surveys were undertaken at half hourly intervals with the locations of patrons within the premises and the location of parked cars (on-site and on-street) noted throughout. It was stated that up to 30 staff were working these peak periods. The results were summarised in Table 1 of the TPIA (p7). 4. The surveys indicated that, during these surveyed peak periods, parking occurred on both sides of Aumuna Road. On August 27th, the "Mayweather v McGregor fight" was televised ("the televised fight") leading to that day being the 5th busiest day of the year for the tavern. On that day, parking extended to both sides of Myoora Road north of the tavern. 5. The mode of travel to the tavern was also noted during the four survey days (Table 4, p10). At the surveyed times, no patrons indicated travelling by public transport or Uber/taxi. On average across the four days, 51% of patrons indicated they travelled as a car passenger. This included children. Only two patrons used the tavern's shuttle bus and two walked. 6. From Table 4, an Average Passenger Per Vehicle ("APPV") rate was derived. It showed an APPV of 2.19 if only considering patrons that arrived by private vehicles but an APPV rate of 2.29 if considering all patrons irrespective of travel mode. The APPVs surveyed across the four days ranged from 1.99 to 2.71 and confirmed the high reliance on cars for tavern access by patrons. 7. The TPIA also tabulated the distribution of patrons during the surveyed peak times. This showed the majority were in the lounge, bistro and beer garden. On August 27 there was a high level of patronage of the Sports Bar due to the televised fight. 8. Tavern sales data was stated to be a reasonable measure of how busy the four surveyed days were relative to the past 12 months. This showed that Sunday 27 August was the 5th busiest day of the year with the other three days ranked 40th, 74th, and 140th in sales. On none of the surveyed days did patron levels reach the currently permitted maximum of 350 patrons with the highest patronage recorded being 317 during lunchtime on the Sunday of the televised fight. The highest patronage level surveyed for a Friday night was 227 people at 7.30pm on August 25 and, for the Sunday lunch without the televised fight, 220 patrons. 9. Mr McLaren advised that, but for around 20 days per year, there are less patrons at the tavern than the 350 permitted under the current consent. 10. The TPIA applied the RMS Guide for clubs which, in summary, states that off-street parking must be provided to satisfy the "average maximum demand". The Guide indicates that this could vary substantially depending on the type and location of the club and comparisons should therefore be drawn with similar clubs. Further, since 1978, there had been behavioural changes partly due to random breath testing. 11. The TPIA concluded that, given the location of the tavern, being generally surrounded by retail businesses which do not have peak periods coinciding with the tavern, the use of the surrounding streets during peak periods for parking is acceptable. The TPIA assumed a minor increase in staffing as part of the patron increase and that all of the parking observed along Aumuna Road during the surveyed (peak) periods was associated with the tavern. 12. The TPIA equated the average maximum demand to a minimum off-street car parking provision equivalent to a 50th percentile outcome given the location of the tavern, not being in a highly sensitive area, such that on-street car parking for the residual 50% of demand could occur at peak times. 13. The TPIA stated that the proposed increased patron capacity was based on the future capacity of parking on and surrounding the site; namely that the maximum number of patrons must not generate parking demand in excess of that which can be contained on-site, along both sides of Aumuna Road and for 300m along Myoora Road adjoining the site. 14. Based on the surveys undertaken, and using an average of 2.29 APPV and regression analysis, the TPIA concluded that the original increase to 700 patrons with the additional parking then proposed off-street would have no noticeable effect on the surrounding road network. 15. The TPIA also noted that it would be good practice for the tavern to promote alternatives to private car transport. The tavern operates a shuttle bus which was not well used. Nor was the public bus network. In addition, staff could be directed to park on the eastern side of Myoora Road where there is no footpath. Further, live events typically result in less car drivers, a reduction of some 30 to 40%, and a corresponding increase in car occupancy levels. At these times, the tavern should be encouraged to both advertise and operate its shuttle bus service. 16. In response to the amended application, Mr McLaren updated Table 1 of the TPIA as Table CM1 in Exhibit 7. Based on an assumed car occupancy rate of 2.29 and staff remaining at 30, using 40 car spaces on Aumuna and Myoora Roads and with the additional 12 parallel spaces on-site, the updated analysis indicated 483 patrons could be supported by the available proposed parking. Further patrons could be supported by other modes of transport. 17. Much of Mr McLaren's argument for sufficiency in parking was based on his analysis considering the regular peak trading days and times to be Friday dinner and Sunday lunch periods in the beer garden, lounge, bistro and play areas, with these areas catering to families and an older demographic. He argued that the additional patrons proposed would be of the same demographic using the same (upgraded) areas. Therefore high APPVs. 18. Had the location of the tavern warranted a higher percentile for on-site parking, Mr McLaren would have applied it (ie 85th percentile). However, he argued the 50th percentile could be utilised for the tavern, in essence because the adjoining roads could accommodate tavern parking without any adverse impacts to neighbours or the roads. 19. Mr McLaren raised a number of concerns with or disputed the analysis by and conclusions of Mr Corbett (discussed below). He found fault with the trendline assumptions and the derived APPV rates and provided further baseline data as annexures to the Supplementary Joint Expert Report (Exhibit 7). He noted the applicant's offer (made during the hearing) that attendance for live bands would be limited to 450 people assumed to be an older demographic. He maintained support for using the 50th percentile in terms of the use of on-street parking in peak times given the tavern's location and context. It is a percentile applied over a 6-12 month period with atypical events, such as the televised fight, excluded. Finally, he had regularly used, and had had accepted, both the 50th and the 85th percentile, the latter applying to more sensitive locations. Analysis by Mr Corbett for the Council 1. Mr Corbett had reviewed previous approvals for the site, including one in 2007, and had been unable to obtain any information to suggest the Council historically allowed the tavern to rely on on-street parking as part of any previous approval. Therefore, in his view, the parking demand should be met on-site or substantially on-site in particular for typical weekly peak demands. However, Mr McLaren's surveys indicated to him that already the tavern was reliant on on-street parking to partly meet its demand even when it was not operating under existing maximum capacity. 2. Mr Corbett undertook his own analysis on the amended application as Annexure K to the Supplementary Joint Expert Report (Exhibit 7). 3. Using the TPIA survey data, Mr Corbett's analysis divided the total number of patrons in the tavern by the number of parking spaces on-site as well as estimated to be used by patrons on-street for half hour intervals over the peak times of the four surveyed days. The average of these numbers arrived at an APPV of 1.64. 4. Mr Corbett's analysis showed that the peak period of 2pm on August 27 was reliant on 71 spaces (or 278%) more than what is intended to be relied upon by the development including using Aumuna Road past the Myoora Road intersection and both sides of Myoora Road both sides of this intersection. 5. He argued there was no information to suggest that there would be any change to travel characteristics including car occupancy rates or travel mode. He concluded that the tavern would rely on 111 on-street parking spaces even to provide for the current maximum capacity of 350 patrons. 6. He projected the proposed increased patronage would generate a total demand for 315 car parking spaces with reliance on 128 on-street spaces, substantially more than estimated by Mr McLaren. 7. Mr Corbett considered that parking provision should be based on the 85th percentile demand, being the demand recommended to be met under the RMS Guide for retail uses, rather than the rate for clubs used by Mr McLaren. This would require the development to accommodate the majority, or 85%, of all peak parking demands on-site whilst allowing reliance on on-street parking for busier but less frequent events. 8. Mr Corbett also questioned the assumption that up to an additional 150 patrons would not change staff levels. Even if that were the case, based on a trendline of patron numbers to parking demand, he estimated that the 85th percentile demand for 500 patrons equates to required on-site parking provision for 425 patrons. This results in a requirement for 259 car spaces on-site. Adding 30 staff and bottle shop demand, the number increased to around 290. Only 202 spaces will be provided on-site. Accordingly, 88 spaces would need to be accommodated on-street even to meet the 85th percentile demand. This exceeds the number of available spaces on Myoora and Aumuna Roads adjacent to the site. 9. The proposed development would therefore be significantly deficient in parking and result in extensive reliance on on-street parking, affecting the amenity of residents and other businesses in the area, as well as raising safety issues for patrons walking to and from cars in the street. 10. In oral evidence, Mr Corbett advised that his AAPV should actually be 1.46, which was lower than the rate of 1.64 he referenced in Exhibit 7. This further increased the demand for additional parking. 11. Mr Corbett argued that the analysis should consider not just two Fridays and two Sundays in August but all peak events, including live music events and other large events such as public holidays and Mothers' Day. He was critical that no surveys had been undertaken when live bands were playing contrary to the RMS Guide and DCP requirements. There was also no evidence that live bands resulted in reduced car usage by up to 40%, as Mr McLaren contended. 12. In addition, the surveyed days showed that the availability of a free shuttle bus and Uber had little impact on the use of private cars to access the site. 13. Further, there was no reference to a 50th percentile in any guidelines but was a percentile derived by Mr McLaren to explain "average maximum demand". Further, Mr McLaren used requirements for "clubs" which were quite different operational entities to "pubs" (ie this tavern). 14. Mr Corbett was also critical of the patron surveys, such as not knowing which passengers were occupying which cars, and therefore the assumed occupancy rates. Any inaccuracies in car occupancy rates would carry through to assumptions about required future parking demand for increased patronage. 15. In summary, Mr Corbett argued that Mr McLaren's AAPV rates result in a significant underestimate, approximately 40%, of the required demand for both the existing development (patron levels) and the proposed development (increased patron levels). The Applicant's Submissions 1. The applicant's counsel submitted that the use of on-street parking by patrons is acceptable in the circumstances during peak demand and that the site otherwise provides more than adequate parking. 2. In written closing submissions filed after the hearing, counsel argued the adequacy of the parking proposed for 500 patrons, in summary, as follows: 1. The tavern is on a large site in a rural residential area with ample parking available on the street. There are no competing demands for on-street parking from surrounding uses. The proposed use of on-street parking could in no way be considered excessive or create adverse amenity impacts and the DCP does not require all parking to be provided on-site. 2. Data generated by Mr McLaren demonstrated that, excluding the televised fight on 27 August 2017 which Mr McLaren considered an anomalous event (or "outlier"), the average patronage of the tavern was 207 patrons. If the fight was included, the average was 234. 3. The Supplementary Traffic Joint Expert report (Exhibit 7) provides that on-site parking for 199 cars can meet the demand from 421 people. This is without the need for management initiatives such as shuttle buses, use of Uber, car pooling, designated drivers or bus charters. 4. In oral evidence, Mr McLaren stated that a patron capacity of 500 (as opposed to a capacity of 500 including staff) is achievable by use of the on-site and proximal on-street parking. His approach was to use the annual sales data, being actual data from the tavern. 5. There has been a significant change in driver behaviour since the RMS Guide was first published in 1984 principally as a result of random breath testing and increased driver awareness of the risks associated with it. 6. Mr Corbett inappropriately uses the 85th percentile being the percentile in the RMS Guide for retail uses, not pubs, which have a very different patron parking profile and higher parking turnover. The fact that clubs have lower parking turnover and patronage compared to retail outlets, along with the fact that they are community service providers, is a primary reason why the 50th percentile of parking on-street is appropriate. The 50th percentile is only reduced if the use of those on street spaces creates adverse amenity impacts, typically related to the noise of patrons leaving, which is not the case here. 7. Mr Corbett's evidence should not be accepted. It was provided late to Mr McLaren who had not been given a proper opportunity to review it and was significantly skewed by the televised fight on 27 August 2017 which was not representative of the tavern's daily operations. It also only used four days of analysis, did not consider use of the tavern's shuttle bus, Uber, carpooling, designated drivers or bus charter, nor have regard to changes in driver behaviour. 8. Measures were proposed in the updated PoM to expand use and awareness of the tavern's shuttle bus along with changes to the tavern's website to display local bus timetables, availability of Uber, and ability to charter buses for special occasions. 9. Neighbour objections had not been about parking demand but rather noise and the Police were supportive of an increase in patrons to 500. Furthermore, the applicant would accept a condition limiting the proposed ticketed events (live bands) to 12 per year with a limit of 450 ticketed patrons. 1. In terms of the proposed parallel parking on the southern boundary, there was no change to the setback as no new structures were proposed. Mr Lidis argued that these spaces would be significantly below the street therefore the streetscape impacts would be minimal if it all. Furthermore, Aumuma Road is a secondary road given the site is a corner lot and there is already part of the tavern's car park within 10m of Aumuna Road. Council's experts had accepted that cars are currently driving in this location but are now proposed to be, in part, static. That could not be said to cause unacceptable impacts on the streetscape. The applicant proposed additional landscaping in the setback between the proposed parallel parking and the street to remove any potential impact on the streetscape. 2. In terms of the proposed one way internal traffic flow, volumes would be low with cars tending to use the various access points from Aumuna Road (three exist) rather than travel between the car parks. 3. Accordingly, it was submitted that the Court should be satisfied that the increased patron numbers proposed in the development as amended would be acceptable and will be properly managed through the additional conditions proposed, limits to the number of ticketed events and the updated PoM. The proposed conditions and additional parking mitigate any perceived adverse environmental impacts raised by the Council. The Council's submissions 1. The Council submitted that the site was unable to accommodate parking for an increase in patron numbers to 500 and reliance on on-street parking would have an adverse impact on surrounding roads and the neighbourhood. 2. The Council also contended that the increase in traffic and the proposed changes to traffic circulation within the site would increase the risk of vehicular and pedestrian conflict on the site and on surrounding roads. There were also concerns that the additional parallel parking proposed south of the tavern did not comply with DCP provisions and would result in adverse visual impacts within the streetscape. 3. In written submissions, counsel for the Council submitted that the DCP and the RMS Guide, relevant documents for consideration, both require that, where a proposed (pub) development includes live music performances, particular attention must be paid to parking requirements to meet peak demand and that demand from all individual activities on the site be considered. Therefore, any analysis of parking requirements for the site should assess all likely peak demands not average demand. 4. It was accepted that the tavern should not be required to provide all of the parking on-site during peak times but that all times of peak demand had to be taken into account, and had not been. 5. Applying the 85th percentile was generous in circumstances where the DCP and RMS Guide require that the development satisfy peak demand for all of its activities. The Court should accept Mr Corbett's approach as being consistent with the objectives and intent of the DCP and RMS Guide. 6. Mr McLaren relied on the 50th percentile demand and "average maximum demand", terms which he used interchangeably, despite neither of these terms being identified as the appropriate standard to apply under the DCP or the RMS Guide. Accordingly, neither should be given any weight. 7. Mr McLaren relied upon an APPV rate of 2.29. This APPV was unsupported by the data from the parking surveys for the existing tavern operations and is based on a rate derived from interviewing some patrons. The shortcoming in that data is that these patrons were a sample only, and did not reflect all patrons. It also assumed that all respondees interviewed together who were passengers travelled in the same car. 8. Mr McLaren's assumptions on car occupancy rates are not borne out by the analysis. His revised table CM1 (in Exhibit 7) shows that, when 167 parking spaces in the tavern car park are occupied, there should be 318 patrons based on an APPV of 2.29. However, on the survey date of 25 August there were 169 cars associated with the tavern parked on the street and on-site at 7.30pm. Yet, the number of patrons in the tavern at that hour was only 227, not 318. 9. The applicant argued that the Court should not rely on only the four days of analysis relied on by Mr Corbett. However, these were the days the parking surveys were carried out by Mr McLaren and comprise the only available data. Mr Corbett should not be criticised for relying on the parking and traffic counts provided by the applicant in the absence of any other data on which to rely. 10. In contrast, Mr Corbett provided a calculation for APPV for every half hour interval of the traffic on the four dates surveyed. Mr McLaren was critical of this average APPV claiming the data would be skewed by the negative rates and the rates outside peak hours. However, this evidence ignored the fact that Mr Corbett had only averaged the peak hour rates. None of the peak hour rates or even the peak two hour rates in the surveys demonstrated an APPV of anything near 2.29 or even over 2. 11. There was no evidence that the tavern is orientated towards families as Mr McLaren claimed. The Council also disputed that Sunday 27 August, 2017 was "atypical" due to the televised fight as the patron numbers do not suggest it was an atypical day. There were only 25 more patrons at 3pm when the fight started than there were at 3pm on the previous Sunday, when at 3.30pm, the patron numbers were identical (126). At 4pm on August 27 they were lower than the previous Sunday. 12. The Council was also critical that 18 August was also discounted by Mr McLaren because it was a low patronage day. Only four days were surveyed and to suggest that two of these four days should be disregarded would leave the Court with a paucity of data to consider. 13. In response to criticism that Mr Corbett may have included non-patron parking in the street network in his calculation, in oral evidence Mr Corbett stated that he had excluded those from his calculations. Further, he had excluded patrons of the bottle shop as a note to his analysis indicates. 14. The Council also responded to criticism that Mr Corbett failed to take into account non-private car travel mode by stating that clearly these travel modes are already embedded in the figures as those patrons would be absent from the parking demand if they arrived by other means. 15. The parking surveys undertaken by Mr McLaren also demonstrate that, even with the current limit of 350 patrons, the demand for on-street parking exceeds the available supply on the northern side of Aumuna Road and the eastern side of Myoora Road. 16. Mr McLaren relied on the tavern's annual sales data. However, this data was not supplied in his TPIA Report (Exhibit E) or anywhere else in the applicant's documents. To what extent it was relied on by Mr McLaren is not apparent other than as a belated attempt to discount his own parking surveys of 27 August 2017 on account of that day being an outlier, due to the televised fight. 17. Mr McLaren placed reliance on shuttle bus and Uber services. However, there is no reason to conclude that such services make a material difference as shown in the surveys undertaken in August 2017. Currently the shuttle bus service is underutilised and even though advertised by the hotel, only 2 of the 717 patrons surveyed used the service. Similarly, the strategies proposed in the PoM are not novel or new and are apparently already in place and having little measurable impact on parking demand. 18. The Court needs to take into account the concerns of residents expressed on- site and in their written objections, most of which raised concerns with the shortage of on-site car parking on Friday, Saturdays and Sundays even at the present time let alone with an increase in patrons to 500. 19. The insufficient additional car parking to meet the demand for 500 patrons is a reason of itself to refuse any increase in the number of patrons. 20. In terms of traffic circulation and conflicts, the conversion of the southern driveway to one-way traffic flow has the consequence that more cars will need to return to Aumuna Road in the event that the eastern car park is full, thereby increasing the number of pedestrian and vehicular conflicts on the driveway entry points to the site and increasing traffic generation in Aumuna Road. This will result in less safe and inconvenient pedestrian and traffic movement, contrary to requirement 3 of Part C3 of the DCP. 21. Finally, Clause 87 of the DCP requires a street setback of 10m "to be free of any structures, basements, car parking or site facilities other than driveways, letterboxes, garbage storage areas and fences". The proposed additional parking in the Aumuna Road setback does not comply with this requirement. 22. Whilst it may be argued that the development already does not comply with this requirement given the existing two-way service driveway, the proposal will introduce parked cars rather than maintaining an openness sought by the objectives of the controls. 23. The proposed one way system and new parallel parking alone may not warrant refusal. However, when combined with the negative consequences for traffic and parking associated with the additional number of patrons proposed, there were a number of grounds for refusal. 24. In summary, the Council contended that the lack of suitable additional car parking to meet the likely demand for the tavern from all of its activities ought to result in a refusal of the increase in patron numbers sought. Findings 1. The critical issue in this appeal is whether or not adequate parking would be available for the increased patron numbers sought by the application without adverse impacts on on-site and on-street parking. 2. The hearing was not assisted by the change to the application at commencement when the additional parking proposed on an adjoining site was not pursued, and the increase in proposed patron numbers was reduced from 700 to 500. The experts were required to update their joint reports in a constrained timeframe, and review and respond to their findings primarily during oral evidence. The parties and the Court then had to deal with the consequences of such evidence. 3. There is no numeric parking requirement specified for "pubs" which is the land use designation applicable to the Terrey Hills Tavern. The applicant claimed "clubs" were an appropriate comparable use to determine parking demand, whereby "average maximum demand" needs to be considered. However, the Council argued that the demand generated by "retail uses" was more appropriate given the nature of clubs. 4. Either way, the DCP requires, for pubs, that regard be had for peak demands for individual activities on the site and that, where a development includes live music performances, particular attention be paid to parking requirements to meet peak demands. 5. However, Mr McLaren's surveys were confined to regular peak weekly patronage times, being Friday dinner and Sunday lunch times, when patronage was dominated by families thus leading to a high car occupancy rate. In oral evidence, he confirmed his future parking demand analysis was based on the assumption that almost all the increased patrons would be additional families using the (upgraded) bistro, lounge and beer garden areas, given that is what the current peak demand is, which occurs on Friday and Sunday meal times. He had analysed future peak demand based on, and car occupancy rates associated with, this use and patron type. 6. However, as indicated, the applicant is required by both the RMS Guide and DCP to address the peak demands generated by all activities. There is also a specific requirement to consider live band events and the parking demand these generate given the applicant is seeking to be able to have live band performances up to 12 times a year (which averages one per month) with up to 450 patrons attending those events alone. These are clearly not families dining in the bistro, lounge or beer garden areas. In fact the evidence was that the bistro would be cleared of tables to allow standing room in order to maximise visibility of bands. 7. Similarly, the parking analysis needs to have regard to televised fights. Whilst I accept that the fight on August 27, 2017 was not a regular event, the tavern screens televised UFC fights which I understand would draw a different crowd to dining patrons. Presumably therefore there is also a different car occupancy rate for such events? If, as occurred on August 27, the concentration for such events is in the Sports Bar, and a fight coincides with peak times for use of the bistro and other areas, then the parking demand overall needs to be considered. 8. To have any confidence in projected demand for parking, there must therefore be an appropriate analysis of existing demand by activity type, and how it is met by on-site and on-street parking, and an understanding of how often parking demand is at a premium based on all activities. This is in order to accurately predict likely demand if the maximum patron numbers are increased, in this case proposed to be by over 40%. 9. Despite being requested to do so, the applicant did not definitively advise the Court what demand or intent was behind the significant increase in patronage sought, particularly given the existing maximum capacity had not been achieved on any of the survey days notwithstanding one of those days was the tavern's fifth busiest trading day of the year. 10. If the increased patronage sought, given this was originally up to 700 (or a doubling of existing patron limits), is on the basis of the tavern's expectation that specific activities would draw such patronage (now proposed up to 500), those activities should be subject to specific parking demand analysis. 11. The application does not propose any increase in tavern floor space nor substantial alterations (with the cost of proposed works stated in the application to be less than $200,000). Without specific evidence or details, I therefore find it difficult to accept Mr McLaren's advice that the increased patronage was to facilitate a substantial increase in the use of the existing bistro/outdoor dining areas by, in effect, a doubling of the number of patrons who currently dine there. Therefore also, in essence, that the Court should accept future parking demand based on the car occupancy rates of these meal times irrespective of the activity occurring at the tavern. 12. However, once consent was granted for the patron increase sought, there would be little ability to control who the patrons were, what they were attending, or how or when they attended. 13. The "offer" of the applicant to limit ticketed events to, on average, monthly for up to 450 attendees is an example of a potential consequence of increasing patron numbers and was only offered in response to the Court's enquiries on the expected frequency of live band performances. 14. I accept that the tavern is in an appropriate location to host live bands and that the application provides the opportunity for upgraded acoustic works to be undertaken even though live bands can already perform for up to 350 patrons. 15. What I am not satisfied with is the impact on parking on the site and in the area of allowing up to 450 patrons to attend such events, on average monthly, as there has simply been no analysis undertaken of the parking demand generated by such an event other than Mr McLaren's evidence that, in his experience, such events typically result in a 30-40% reduction in car use. 16. Mr McLaren confirmed that there had been no surveys undertaken when live bands were performing at the tavern nor when there had been 350 patrons on the premises, as the current consent allows. Nor had there been any surveys of other events which might be considered peak demand events, such as UFC fights or a particular celebration, such as Mothers' Day, or indeed any of the 20 days it was said the tavern did operate at current capacity. 17. Instead Mr McLaren sought to discount from the determination of parking demand the only day when existing capacity was close to being reached, being the televised fight on August 27. Whilst I accept that this was a relatively unique event, it was still an event accommodated under the existing consent and patron numbers. Therefore, the impact it had on existing parking is, in my view, a relevant consideration, or at least an opportunity to analyse the impacts of such events on both parking and access. 18. Mr McLaren accepted that, in order to consider parking demand arising from increased patronage, one needed to consider where the demand was coming from. Therein lay my interest in ascertaining, unsuccessfully by the evidence, the answer to that very question. 19. Currently the demand, as in peak periods, was said to be Friday night and Sunday lunch time. However, as I have indicated, my concern is that there has been no consideration of peak demand during live band performances or televised fights when crowds are attracted to the tavern for a specific, different purpose. Such events would surely have different car occupancy rates, as Mr McLaren alluded to for live bands and the survey results of the televised fight on August 27 show? As Mr Pickles also pointed out, Mr McLaren did not have details on patronage (or parking) for the year to analyse even if he had sales data. 20. If Mr McLaren considers that these events are picked up in his analysis because they also fall on the 104 Fridays and Sundays in a year that he analysed as the peak trading times, that is not a conclusion I drew from his evidence. 21. I therefore do not accept that, just because the patrons that currently mainly go to the bistro, beer garden and lounge during busy Friday and Sunday meal times are predominantly families, that is what the majority of future patronage or the peak trading times of the tavern in the future will be. Particularly given ticketed events are sought to be held on average monthly with up to 450 patrons attending. 22. Put another way, I don't accept that the peak trading periods of the tavern are, or will necessarily be, confined to the 104 Friday nights and Sunday lunchtimes in a year. This fails to consider public holidays, live bands, events like the televised fight, and so on. These are the individual activities alluded to in the DCP when the maximum patronage is likely to be achieved and when the Court would want to be satisfied there are no unreasonable impacts on streets or neighbours from parking of cars by patrons attending such events. 23. I also query, as the Council did, that an increase in patron numbers by over 40% (or 150 patrons) would not require increased staffing levels, and therefore an increase in demand for staff parking, also not analysed or addressed. 24. Mr McLaren believed that up to 50% of the demand at peak trading times should be able to utilise surrounding streets. However, this was because he considered only the regular peak trading times on Fridays and Sundays and therefore did not rely on a significant amount of on-street parking as the analysis based on these trading times resulted in high car occupancy rates. 25. Mr Corbett thought no more than 15% of parking demand should be accommodated on surrounding streets. However, on his analysis, this was already occurring without any increase in patrons, because he considered the car occupancy rates utilised by Mr McLaren were too high. 26. Irrespective of which expert's analysis is correct, the facts remain that the application seeks a significant increase in permitted patron numbers over the existing capacity, the impacts on parking of which are unknown as the tavern has not been surveyed when operating at capacity or for all activities. 27. The applicant has sought approval for one particular activity, up to 12 ticketed events a year, with up to 450 attendees. Given that frequency, these events cannot be dismissed as "outliers". Their impact needs to be assessed on the basis of reliable data on the parking demand they would generate. 28. If, for example, there were live bands on average monthly, this could have the potential for regular adverse impacts on the neighbourhood. Mr McLaren claims that such events lead to lower car occupancy rates than would be generated by other activities on-site but there is simply no evidence that this is the case, only that other modes of transport to the tavern are poorly utilised for the events that were surveyed. 29. As I have previously indicated, I accept, as did the Council, that it is unreasonable for the tavern to provide all of its' required patron parking on-site at all times, particularly when it is operating at capacity or even during peak periods. It is also unnecessary given the availability of on-street parking adjacent in Aumuna and Myoora Roads and the limited demand from other uses for this parking. The issue however, is what is a reasonable proportion of parking that should be accommodated on-site? Is it 50% of the demand, 85% of the demand or some other proportion? 30. The greater the quantum of parking not accommodated on-site, the greater the distance on-street parking will be from the tavern, increasing the number of nearby residences impacted and the distance patrons must walk, which also potentially impacts the safety of patrons off-site and how they are managed. 31. Without knowing what the usage and demand for on-street parking is at current capacity for the range of activities held at the site, I can not be satisfied as to what it will be if there is a 42% increase in patron levels and any associated increase in staffing levels. Without such assessment or evidence to the contrary, it would not be unreasonable to expect that such an increase in patronage results in a commensurate required increase in both staffing levels and parking from that currently required and provided. 32. In summary, there was no evidence before the Court on what the parking impacts are currently if the tavern operates at, or close to, its current capacity as no surveys were undertaken under that scenario. The applicant sought to discount the survey results from the fifth busiest day of the year on the basis such days were 'atypical' notwithstanding the maximum existing capacity was still not reached and ticketed events held on average monthly would seek to substantially increase that patronage with only 12 additional parking bays provided on-site. 33. In submissions, the applicant's counsel indicated that the evidence pointed to the tavern reaching peak capacity up to 20 times a year for specific events. Yet none of those times or events were surveyed. 34. Therefore, whilst I have accepted that the tavern should not be required to provide on-site parking for the busiest day or days of the year, the evidence should at least indicate what the parking implications of those days are and the impacts they have on the local area and surrounding streets. 35. Resident objectors also raised concerns with existing adverse impacts associated with the extent of on-street parking utilised during live band performances. This is an issue that needs to be, but was not, addressed. 36. Whilst the tavern is not situated in a dense urban environment, there are residences within relatively close proximity and increased adverse impacts arising from increased patron numbers and therefore potentially increased use of on-street parking must be considered, assessed and, where necessary, addressed. 37. Whilst, for the majority of trading times, patronage is and may remain well below the maximum permitted and associated parking accommodated without any adverse impacts on the area, the issue remains as to what impact the tavern operating at capacity has had and would have, if the application was approved, and patron numbers increased by over 40%. 38. I accept that parking adjoining the tavern in Myoora and Aumuna Roads is already used by tavern patrons during regular Friday and Sunday peak periods. Also, that this use generally does not have any significant impact on road users or neighbours given the nature of adjoining land uses. Further, that use of some on-street parking it is not unreasonable when specific events are held that exceed normal peak patronage. The issue is how much parking, how far it extends down each of these roads, whether that is reasonable in terms of impacts for neighbours and patrons, and how and when it will need to be utilised? 39. These questions were simply not addressed. They are however, fundamental questions that need to be answered before any increase in patronage could be considered. 40. In the 6 months since the conciliation was terminated, and given the primary key issue raised by the Council has always been about the impact associated with increased patron numbers particularly on parking, there has been ample opportunity for the applicant to undertake surveys of parking during peak patronage associated with the range of activities already undertaken at the tavern. However, this has not occurred. Only four days were surveyed in August, two Fridays and two Sundays, on the basis these were the regular peak week trading days and therefore the only relevant times to consider. 41. The issue with the applicant's reliance on this data is that it doesn't address other specific events that attract high patron numbers to the tavern. This is despite the DCP requirement that parking for the tavern should be determined having regard to (my emphasis added), the peak parking periods of individual activities, and, where live band performances are held, paying particular attention to meeting peak demands. 42. Without knowing how the car parks would operate at capacity of even 350 patrons, never mind 500 patrons, I also cannot be satisfied as to the safety of the one way system proposed internally for access between car parks nor the impact this would have from patrons using Aumuna Road for this access instead, albeit I accept that the experts agree that traffic volumes in Aumuna Road are low. 43. Whilst the applicant was critical of Mr Corbett's analysis, errors in it, and how late it was provided to Mr McLaren, it was the applicant who changed the application on the day of the hearing, not only in terms of the parking proposed but also the patron increase being sought. This did not assist the parties, the experts or the Court in dealing with the amended data and analyses and therefore the implications of the revised parking and patron numbers proposed. 44. In summary, on the basis of the evidence that was presented, I am not confident with the analysis of parking demand undertaken and therefore cannot be satisfied that there will be sufficient parking for the substantial patron increase proposed. An under provision of parking on-site has the potential to interfere with the amenity of local residents given an over-reliance on on-street parking. As it was assumed that on-street parking would be limited and confined to areas close to the tavern serviced by footpaths or safely accessible, if this was not the case, then the impact on patrons having to park elsewhere needs to be, but was not, considered. 45. I have therefore concluded that, based on the available evidence, it is not in the public interest to support the application and it ought to be refused. 46. In coming to that conclusion, this is not to say that the physical alterations proposed to the tavern should not be supported. Nor that, with more detailed survey of all the parking demand generated by all activity types and when the tavern is operating at capacity, and with changes to the car parking arrangements and provision on-site and potentially in the vicinity of the tavern, the applicant may be able to demonstrate that some increase in patronage is justified. 47. For this reason, I will comment briefly on the additional parking that was proposed in the amended application, in particular, the proposal to provide 12 additional parallel parking spaces on-site adjoining Aumuna Road. 48. In this regard, I believe there is no substantive basis why such provision of additional parking could not be supported. The setback area is already used for internal circulation, rather than a driveway from the street as the DCP controls envisage, as well as for parking in other locations on the site. 49. Further, the setbacks are intended to be building setbacks in requiring that such setbacks should generally only be used for landscaping and driveways. 50. In this instance, I consider that the additional parallel parking proposed would not have an adverse visual impact as I agree with Mr Lidis that, with the additional landscaping between the parking and the street, the location of the parking below the street, and the tavern building as a backdrop nearby, the parking would not be readily visible. Furthermore, the DCP's reference is to only landscaping and driveways in primary setbacks. The Aumuna Road setback is a secondary, not a primary, setback. 51. The additional parallel parking proposed on-site in this location would therefore not have been a basis to refuse the application. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA 2016/1270 for alternations and additions to, and increased patrons at, the Terrey Hills Tavern, 2 Aumuna Road, Terrey Hills, is refused. 3. The exhibits are returned except Exhibits B and 1. __________________ Jenny Smithson 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: 08 August 2018