Andrew Thomas V Parramatta City Council - [2006] NSWLEC 387

Land and Environment Court

of New South Wales

CITATION: Andrew Thomas V Parramatta City Council [2006] NSWLEC 387

PARTIES:
APPLICANT
Andrew Thomas
RESPONDENT
Parramatta City Council

FILE NUMBER(S): 11384 of 2005

CORAM: Brown C

KEY ISSUES: Development Application :- alterations and additions to an existing hotel - noise - amenity impacts

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001

DATES OF HEARING: 24, 25/05/06

DATE OF JUDGMENT:
06/26/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr C Mc Ewen SC
SOLICITORS
Gadens Lawyers
RESPONDENT
Mr P Marincowitz, solicitor
SOLICITORS
Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

26 May 2006

11384 of 2005 Andrew Thomas V Parramatta City Council
10020 of 2006 Andrew Thomas V Baulkham Hills Shire Council
JUDGMENT

1 COMMISSIONER: The appeals relate to alterations and additions to an existing hotel located on the corner of Caroline Chisholm Drive and Junction Road, Winston Hills. Because the site spans the local government areas of Parramatta City Council and Baulkham Hills Shire Council, separate development applications were submitted to each council. After consideration, each council refused their respective development applications. The councils agreed that the appeals should be heard concurrently.

2 The hearing commenced on-site on 24 May 2006 and continued on 25 May 2006. The judgment reflects the findings on the merits given on 26 May 2006. At this time, Directions were given for the filing of amended conditions and an amended Plan of Management that reflected the findings in the judgment

The site and surrounding area

3 The site is Lot 4 in DPP 56588 and has an area of about 16,000 sq m. It is irregular in shape with a southern frontage to Caroline Chisholm Drive and a south-east frontage to Junction Road. The northern boundary is the reservation for the M2 Tollway and its western boundary abuts the Winston Hills shopping village. Vehicular access into the hotel car park is available from Caroline Chisholm Drive and Junction Road.

4 The hotel building is irregular, but roughly rectangular in shape and is sited parallel to and 23 m from Caroline Chisholm Drive. The eastern end of the single-storey building facing Caroline Chisholm Drive contains motel style suites for guests with various cool-rooms and storerooms to the north of the motel suites. The central section of the building contains a gaming room of 180 sq m with 30 machines on the southern side and a public bar of the same size on the northern side. The western section contains a lounge and bistro of 390 sq m. A beer garden, 8.5 m wide, extends along the western and part of the northern wall of the building where it increases to 12 m in width. The beer garden has an area of 510 sq m. There is also a drive-through bottle shop on the northern side of the building towards its eastern end. The hotel has been operating since around 1973.

5 The hotel has residential development on the opposite side of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWLEC 387
Decision Date: 26/06/2006

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Andrew Thomas, the applicant, appealed against the Parramatta City Council's refusal of a development application for alterations and additions to an existing hotel. The hotel, located on the corner of Caroline Chisholm Drive and Junction Road, Winston Hills, had been operating since around 1973. The proposed development included refurbishment of the existing building, extensions to the beer garden, and the erection of pavilions and pergola-style roofs. Both Parramatta City Council and Baulkham Hills Shire Council refused the respective development applications due to concerns about noise and amenity impacts on nearby residential properties.

The court identified two primary issues for determination: whether the proposed alterations and additions would create unacceptable noise impacts, and whether they would create unacceptable amenity impacts. The court considered expert evidence from acoustical experts and heard submissions from local residents. The court found that the proposed acoustic measures were adequate to control noise levels, provided certain conditions were met. The court also concluded that the proposed alterations and additions would likely attract additional patronage, but that the additional conditions imposed on the development would help control the behaviour of patrons and mitigate potential amenity impacts.

The court imposed several conditions on the development, including the submission of an amended Plan of Management, the construction of acoustic barriers, limitations on the hours of operation, and the implementation of specific requirements for security staff, closed circuit television monitoring, barriers in the car park, and monitoring of noise and hours of operation. The court also directed that the councils file amended conditions that reflected the findings in the judgment.

The court granted leave for the matter to be restored on 48 hours notice in the event of any dispute. Final orders were to be issued in chambers, subject to the filing of amended conditions and an amended Plan of Management.

Orders