A C Perazzo Design Works - Narellan Hotel v Camden Council
[2005] NSWLEC 82
•02/15/2005
Land and Environment Court
of New South Wales
CITATION: A C Perazzo Design Works - Narellan Hotel v Camden Council [2005] NSWLEC 82
PARTIES: APPLICANT
A C Perazzo Design Works - Narellan HotelRESPONDENT
Camden CouncilFILE NUMBER(S): 10527 of 2003
CORAM: Murrell C
KEY ISSUES: Appeal :- s. 96 modification of a consent issued by the Court in December 2003 - Parking and Residential amenity.
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
DATES OF HEARING: 15/02/2005 EX TEMPORE JUDGMENT DATE: 02/15/2005
LEGAL REPRESENTATIVES: APPLICANT
Mr D. Wilson, barrister
of Mr J Ryan, solicitorRESPONDENT
Mr A Hudson, solicitor
of Wilshire Webb
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMurrell C
10527 of 2003 A C Perazzo Design Works – Narellan Hotel v Camden Council15 February 2005
s.96
JUDGMENT
1 This is a judgment for a s96 appeal under the Environmental Planning and Assessment Act 1979 against Camden Council’s refusal of an application to modify a consent issued by the court in December 2003. The original approval issued by the court was for the extension of hours to an existing hotel at 279 Camden Valley Way, Narellan.
2 In those proceedings the applicant was seeking, in effect, the 24-hour operation of the hotel. The Court granted an approval of the extension of hours on a trial basis, that is a 12-month trial only of the 24-hour operation. The applicant would then be required to go back to the council to submit a new development application or a modification application if it sought to amend the trial period to become a permanent situation.
3 As part of the consent at the time, the court considered the adequacy of the car park. The existing car park is currently only partly sealed. For the largely unsealed part there are some line markings and structures for car parking purposes. At the time of the hearing of the appeal in 2003 there was a great deal of discussion about what was the appropriate number of car parking spaces for the hotel.
4 Mr Coady, who gave evidence previously and who also gave evidence at today’s proceedings, was or is of the opinion that the car parking requirements of the hotel can be totally satisfied by what is known as stage two in the original exhibit N, that is some 75-79 spaces. On the other hand, the expert evidence to the original proceedings was that 115 car parking spaces should be provided and that was based on council’s development control plan and the Court determined this to be appropriate. This particular issue has also been raised and reconsidered again in today’s proceedings. Mr Coady is still of the opinion that the premises would not require 115 car parking spaces.
5 A number of questions were asked of both Mr Coady and the Court appointed expert in these proceedings who is Mr Pindar. Mr Pindar in preparing his report has taken the 115 car parking spaces as a given. The Court, having heard the arguments again today, is not persuaded by the applicant’s evidence that the reduced number of car parking spaces is appropriate and the 115 car parking spaces should be provided for the establishment.
6 The applicant submitted that the car parking in what is known as the stage two area would accommodate some 64 spaces and, for the stage one area, 44 spaces. The applicant has submitted that in terms of the extended hours, that the stage two car park is an adequate provision or more than adequate provision. As I stated, the applicant also contends that this area is also adequate for the full operation of the hotel.
7 The applicant submits that the number of persons after midnight is limited by the existing conditions of the consent, that is 100 persons after midnight. However, in terms of the consent there could also be more people on the premises, 225 within the hotel at the time of the midnight curfew and those people would not be expelled as such but rather no new persons would be allowed to enter the hotel until the existing number fell below 100 persons. Therefore, one could certainly have more than 100 persons on the premises at and after midnight. The consent also allows for 225 persons in the hotel plus 100 persons on the outside balcony area. There is another condition contained within the consent, which limits the use of the balcony area such that there is a curfew of 10pm.
8 In my assessment, It is reasonable in the circumstances to have regard to the totality of the use of the premises and I do not consider it is appropriate to compartmentalise what is required for parking after 12pm or for the extended hours. One must have regard to the total operation of the hotel. If, for example, car parking is not adequate for the current operation of the hotel, then one would question whether an extension of the hours would be appropriate. When this matter first came before me, I considered the appropriateness or satisfaction of the existing car park in terms of the operation of the hotel and whether, in fact, the extended hours should be allowed on the basis the current facilities.
9 On the question of the conditions about staging contained in the December 2003 consent the applicant has presented new evidence today in that it has provided a costing of the car parks. In that regard, in Mr Coady’s report, there is an estimate or two quotes that vary but, in essence, the cost of stage one is in the vicinity of $550,000 to $670,000; for stage two $406 to $418,000, providing a total of between $950,000 to approximately $1.01 million. This is for the full engineering works and landscaping and lighting, as contained in exhibit ‘D’ of the proceedings today.
10 The applicant contends that the cost of the construction of the car park to full engineering, drainage, landscaping works is excessive in terms of the extension of hours. On the other hand, costs are all relative and there was no evidence provided to the court as to the disproportionate amount this may represent in terms of the increased hours. I accept that it is a large amount and could take some time to recoup.
11 Mr Pindar, in his report, made a recommendation, which was not fully appreciated until aired during the proceedings today. He suggested that the car park area of stage one be constructed to an improved standard, meaning in fact a two coat seal, that is a low noise bitumen seal and line markings. He recommended that this be undertaken prior to the commencement of the trial.
12 In my assessment, I have the benefit of the evidence of both Mr Pindar and Mr Coady. Having regard to the circumstances, I consider that the stage two car park that is not currently sealed should be gravelled as was in the previous condition and line marked as appropriate, but this should be carried out prior to the commencement of the trial. It is important to note here when the Court originally heard the development application for the extension of hours the consent was granted on Christmas Eve as the applicant at that point in time was seeking all night trading for New Year’s Eve. As such, there was a provision that this work be done one month from the date of the consent. However, the trial period has not commenced and the circumstances today have changed and the temporary works should be carried out prior to commencement of the trial.
13 I have also considered that it is appropriate in terms of Mr Pindar’s evidence for there to be a temporary sealing of stage one of the car park. Having regard to the applicant’s submission concerning costs, I am of the opinion that the stage one car park should be constructed to its temporary standard only and this is to occur within four months of the trial period commencing. If, in fact, this is not done within the four months of the trial period commencing, then the trial period is suspended or ceases. That is similar to a condition in the earlier consent.
14 With respect to the final car parks being constructed to full engineering and landscaping requirements, as I stated, I consider this is necessary in the long term for the effective operation of the hotel and its patronage and also in terms of the amenity of the surrounding residential area. As such the full engineered car park for stages one and two are to be constructed within 12 months of a determination if a further application is submitted to council for a permanent 24-hour period, that is the final engineered and landscaped car parks for both stages one and two be constructed. My decision on the temporary and permanent staging is because it became clear in the proceedings today that stage one needs to be carried out before stage two.
15 With respect to the other conditions, there are some amendments required for the fence of an adjoining neighbour. Negotiations are to take place with that owner and an agreed barrier erected prior to the commencement of the trial period also.
16 Today is an instance where I have heard the evidence and weighed up the concerns of the applicant to determine the matter. I still consider that the 115 car parking spaces are a necessary requirement for the future operation of the hotel, given the size of the establishment. In this regard, I do not agree with the applicant. I made the point again today that one cannot rely on surveys, after a short time that an establishment has commenced operation or reopened to justify a reduced number of parking spaces. From the evidence today, it is clear that the patronage of the hotel has increased from the time it originally reopened (I refer to the evidence that was given by Senior Constable Millman). The court also heard evidence from Mrs Pam Brown, who is the coordinator of the residents action group. The concern of the residents action group is that the residential amenity of the area be maintained.
17 In terms of my decision on the conditions I have amended today, I am satisfied that the trial period can take effect with these conditions. I agree with Mr Pindar the car park needs to be in operation to fully assess the success or otherwise of the trial period and to ascertain if there are amenity concerns. The temporary construction of both stages of the car park will also be a truer test in terms of a reflection of the number of patrons that would be attracted to the establishment.
18 In my determination of this matter I have considered the merits and the facts. I am satisfied the application under 96 is substantially the same development to what the court considered previously and I am satisfied that the amenity of the area would not be undermined by the changed conditions as I have outlined above. At the end of the day the ultimate objective of the conditions is to maintain the amenity of the residential area so that the hotel can coexist harmoniously.
19 It is noted in a recent judgment of McClellan CJ that the reasoning in Michael Stanley concerning attaching conditions to applications for modification is no longer relevant under the current planning regime. And in considering an application to modify a consent the relevant elements of the original consent can be assessed and, if it there is a need to cure a problem which may not have been apparent previously there is power to impose a new condition. In this regard, the applicant’s counsel agrees that the Court has the power to impose conditions not submitted by the applicant. In this case the applicant has also suggested that there be conditions on lighting of the car park area for the purpose of the trial period and has offered to draft a condition.
When I receive the conditions as agreed to between the parties and which reflect my decision today, I will then issue the final orders. The final orders will contain the conditions and the amendment to the previous court issued consent of December 2003, such that 24A will be replaced with the following words, “The area of the car park shown as stage two that is not currently sealed as shown in exhibit K is to be gravelled to the satisfaction of the council. The current sealed area and the gravelled area referred to above on the southern part of the car park are to be line marked, generally in accordance with the approved concept car parking plan known as exhibit N in the proceedings, prior to the commencement of the trial.”
With respect to 24B, this will be deleted and replaced with the words, “The car park area of stage one shall be constructed and completed to an improved standard, incorporating as a minimum a low noise bitumen seal and line marking, and this work is to be undertaken within four months of the trial period. If such work is not undertaken, then the trial period ceases. A plan will need to be submitted to council to identify the works to be undertaken for the temporary sealed car park of stage one and also temporary drainage retention.”
Condition 24C will read, “The final engineered landscaped car parks in both stages one and two, as generally shown on exhibit D in these proceedings, shall be constructed within 12 months of the final determination, if approved, of a further development application or s96 application to modify this consent in respect of the trial period to become permanent operating hours.”
Condition 24D will be deleted. In its place, the condition proposed by the applicant, “Until the stage one car park is constructed in a temporary sense, security staff will patrol and direct the orderly parking of motor vehicles in the area.”
(The applicant proffered a similar condition, although not discussed.)
20 The formal orders of the court will be:
1. The s96 application, submitted to Camden Council, for the Narellan Hotel is upheld in part.
3. The exhibits, with the exception of exhibits 4,1, C and D, are returned to the parties.2. The application of the consent issued by the Court is modified as shown in the conditions contained in Annexure A. (Annexure A is a consolidated set of conditions with the original consent as now modified by this approval.)
J S Murrell
Commissioner of the Court
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