Baker Kavanagh Pty Ltd v Sydney City Council - [2008] NSWLEC 2

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Baker Kavanagh Pty Ltd v Sydney City Council [2008] NSWLEC 2

PARTIES:
APPLICANT
Baker Kavanagh Pty Ltd
RESPONDENT
Sydney City Council

FILE NUMBER(S): 11031 of 2008

CORAM: Hoffman C

KEY ISSUES: Development Application :- convert a warehouse into a backpackers hostel with a retail Laundromat and Internet cafe, fire safety, privacy, noise and loss of residential amenity, parking, internal accommodation lack of amenity.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998,
South Sydney Development Control Plan 1997 - (Urban Design),
Sydney Heritage Development Control Plan 2006,
City of Sydney Visitor and Tourist Accommodation Development Control Plan 2006,
Development Control Plan No. 11 - Transport Guidelines for Development 1996,
City of Sydney Access Development Control Plan 2004.

CASES CITED: Bondaci Pty Ltd v Pittwater Council [2003] NSWLEC 403 (19 December 2003) paragraphs 64, 66 and 67

DATES OF HEARING: 22/11/2007 and 23/11/2007

DATE OF JUDGMENT:
4 January 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr F. Corsavo, barrister
Instructed by Mr F. Kalyk
of Kosmin & Associates Solicitors
RESPONDENT
Mr S. Kondilios, solicitor
Instructed by Ms N. Johnson
of Maddocks Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

4 January 2008

11031 of 2007 Baker Kavanagh Pty Ltd v Sydney City Council
JUDGMENT

1 Commissioner: This is a Class 1 Appeal No. 11031 of 2007 between Baker Kavanagh Pty Ltd and Sydney City Council in regard to the refusal of a proposal to convert an existing warehouse to a backpackers hostel for 282 persons, with a retail Laundromat and an Internet café on the ground floor directly off Cleveland St. The property is 130-144 Cleveland St, Chippendale, and it also has frontage to Dangar St, which is parallel to Cleveland.

The Site

2 The site has an area of approximately 854sqm and is bounded by the northern side of Cleveland Street and the southern side of Dangar Street. The site has about a 30 m frontage to both streets.

3 The site currently contains two adjoining warehouses each three stories in height, however the facade of the warehouses gives the appearance of a single building.

4 The warehouses were erected in 1916 and have not been substantially modified since construction. The warehouses are not heritage items but are within the Chippendale Conservation Area.

5 Since the 1980's the premises has operated without consent as a mixed use residential unit development with a gallery. The gallery venue has hosted performances/events/festivals for visual, dramatic and musical art forms.

6 The present (unauthorised) use lacks appropriate fire safety systems as well as building design and construction required for residential use.

The Locality

7 The existing warehouse is surrounded by medium to high density residential development to the north, east and west. The locality to the south of the site on the opposite side of Cleveland Street is significantly less developed being characterised by low scale commercial and residential buildings.

8 The section of Cleveland Street in the vicinity of the site is a 4-lane road and a permanent designated clearway with no stopping permitted at any time. Dangar Street at the rear of the site is a narrow 2-lane roadway utilised by local traffic with parking in one of the lanes.

9 The Chippendale Conservation Area is characterised by a mixture of 19th century industrial working class buildings and terrace houses many of which are highly intact and in a varied range of finishes and scale. There are also a number of new apartment buildings of similar scale to the warehouses.

10 Victoria Park, the Seymour Centre and Sydney University are approximately 390 metres to the west of the site on City Road.

The Proposal

11 The application seeks consent for the redevelopment of the warehouses buildings at 130 -144 Cleveland Street Chippendale into a backpackers hostel. The proposed development involves the retention of the existing warehouses, general facade upgrade, removal of existing roller doors and creating new pedestrian entrances off Cleveland St, to the backpackers, the laundromat and the internet café and new vehicle entrances to Dangar Street within existing openings. This is done by removing brickworks up to sill level in existing window openings, or replacing existing old window and door frames, or removing existing metal roller shutters and replacing them with new glazed entry door sets.

12 The original design had some bedrooms on the ground floor giving allowing a total of 324 persons, and only 2 car spaces. Amended plans eventually refused by Council had beds for 282 persons. Further amended plans in this hearing provide nine cars spaces, no bedrooms on the ground floor, and reduced the accommodation to 252 persons. There are some anomalies in the elevations compared to the plans due to these changes. The drawings had not been fully co-ordinated.

13 The amended mixed use proposal comprises:

(a) Ground level:

A communal kitchen, dining and recreational area,

Separate male and female bathrooms,

Two retail tenancies fronting Cleveland Street (the laundromat and internet cafe),

Nine car parking spaces, four motorbike spaces and a vehicle drop off area off Dangar Street by means of a drive-in and drive-out within the building,

A bicycle ten rack room,

Fire escapes to both streets, internal stairs and an elevator. The elevator door is directly off the recreation area on the ground floor.

An on site manager's unit,

A reception area and manager’s office for the hostel.

A glass roof above the recreation/dining area with natural light from a light well above.

(b) Level One:

23 backpacker rooms accommodating 129 persons,

Separate male and female bathrooms,

A central light well/void to which 3 bedrooms have windows, and around the rest of the lightwell there are windows to the access corridor to other rooms.

(c) Level Two:

25 “luxury” backpacker rooms with ensuites accommodating 50 persons. 11 of the rooms have windows into the light well, 4 others have windows into the access corridor.

10 backpacker rooms accommodating 57 persons,

Separate male and female bathrooms.

The central light well.

(d) Level Three:

Plant equipment,

8 “luxury” backpacker rooms with ensuites accommodating 16 persons on the north side of the building with windows to Dangar St.

Roof spaces and the light well opening.

14 The following controls apply to the proposal:

(a) South Sydney Local Environmental Plan 1998,
(b) South Sydney Development Control Plan 1997 - (Urban Design),
(c) Sydney Heritage Development Control Plan 2006,
(d) City of Sydney Visitor and Tourist Accommodation Development Control Plan 2006,
(e) Development Control Plan No. 11 - Transport Guidelines for Development 1996,
(f) City of Sydney Access Development Control Plan 2004.

Noise and Loss of Amenity
1. Council contends that the proposal does not comply with the 'Principle Objectives' of the LEP or the objectives of the Zone 10 - Mixed Use zone.

Particulars

(a) The proposal is contrary to Clause 7(b) 'Principal Objectives' of South Sydney Local Environmental Plan (LEP) 1998 . The conversion of the building to a backpackers hostel accommodating 252 persons would result in a significant loss of amenity to residents that live in close proximity to the premises (including noise and disturbance).
(b) These impacts also contravene Clause 21(1)(h) of Zoning controls for Zone No 10 - the Mixed Uses Zone under South Sydney LEP 1998 and Part B: Urban Design Principles 'Design for a Sustainable, Healthy Environment' (Environmental Amenity), Part E: Section 4 (Amenity) and Section 6 (Operational Controls) and under the South Sydney Development Control Plan 1997.

Parking
2. The development includes 9 car parking spaces only. The requirement is 17 car spaces.

Particulars
(a) The provision of only 2 car parking spaces fails to meet the main objectives of South Sydney DCP No. 11 Transport Guidelines for Development 1996 namely to ensure that an acceptable level of parking is provided on-site to minimise the unreasonable overflow of parking onto surrounding streets;

Amenity
3. The intensity of the use is not considered compatible with the surrounding built environment and will provide limited amenity for the intended occupants.

Particulars
(a) The proposed development is contrary to Clause 28(1)(d) under South Sydney LEP 1998 as the proposal has not been designed with adequate provision for the intended occupants for natural ventilation;

Visitor and Tourist Accommodation DCP
4. Council contends that the proposal is inconsistent with the City of Sydney Visitor and Tourist Accommodation DCP 2006.
Particulars

(a) The proposal does not comply with the core objectives clause 1.5 of the DCP as the proposal will unreasonably affect the amenity of the surrounding area by way of nuisance to residents due to the operational hours, noise generated and vehicle impacts,

(b) The proposal does not comply with Clause 2.3 as the proposal has not been designed with adequate provision for the intended occupants and those in the vicinity of the site in terms of access to natural ventilation and visual privacy,

(c) The proposal does not meet the objectives of Clause 2.5 Energy and Water Efficiency as it relies on mechanical ventilation to comply with the BCA and acoustic standards,

(d) The proposal does not comply with Clause 2.8 as adequate provisions have not been made to minimise off site parking impact. The proposal will compromise existing traffic movements and may result in vehicle conflicts,

(e) The proposal does not comply with Clause 5 as the site is located in a predominately residential area with residential development directly adjacent to the site on the north, east and west elevations,
(f) The proposal does not comply with the minimum requirements specified in Clause 5.28 and 5.2.11 in terms of kitchen and recreation areas.

15 The respondents’ evidence came from:

Mr C Fogarty resident/objector No.1 Wiley St an apartment building at the T-intersection of Dangar and Wiley. He said he had authority to represent the 42 residents of that building, many of whom had written objections in evidence.
Mrs G Kuhn owner/objector #17/146 Cleveland St a neighbouring apartment building on the east of the site.
Mr M Larkin resident/objector #1/146 Cleveland St whose unit adjoins the site on the ground floor Dangar St side.
Ms P Wearne resident/objector No. 1 Wiley St.
Ms J Brokman resident/objector Bartley St, and representative of the Chippendale Heritage Village - Coalition of Chippendale Community Groups.
Ms Jardine resident/objector #22/82 Myrtle St.
Ms J Cook resident/objector 342 Elizabeth St Surry Hills

16 The applicants’ evidence came from:

Statement of Environmental Effects by City Plan Services.
Drawings by Baker Kavanagh Architects,
Applicant’s Plan of Management.
Report by Acoustic Logic Consultancy
Other documents

17 The parties had agreed on a joint single expert, Mr M Neustein, architect and town planner who had prepared a report and gave oral evidence.

18 Ms Brokman said the groups she represented had particular concerns as Chippendale was going through a rapid growth phase due to redevelopment, the major one being the Carlton Brewery project that would bring about 7500 new residents to the area.

19 The existing high density of Chippendale has amenity issues that need careful consideration with any new development. The locality is almost an island between Cleveland St, City Rd, Broadway and Railway Square. The Abercrombie St arterial road cuts through in a north-south direction, but does not seem to divide the suburban community in the same way as the peripheral streets separate it from Darlington, Victoria Park, Glebe and Ultimo.

20 In the case of this proposal the main concerns of the groups and the individual objectors are:

The congestion of Dangar St due to overflow parking when it is already “parked out”, and all vehicle access for shuttle buses, excursion buses and taxis and arrival/departure and on-site parking must be via Dangar.
The noise and activity of the backpackers in Dangar St and nearby quiet residential streets, given the typical behaviour pattern of backpacker hostels. This is accentuated by the number of occupants proposed, the lack of adequate on-site recreation space, the lack of suitable places outside for them to congregate, and the walking routes from Broadway, Central Station and the city that would take backpackers through residential areas especially late at night.
Chippendale has only two parks, one a “pocket hankerchief” size and the other not much larger, both surrounded by apartment or terrace dwellings. The parks are already used extensively, and sometimes cause disturbances to amenity at night. Roaming backpackers wanting fresh air, a place to smoke and to relax/party together will have unacceptable impacts on neighbourhood amenity when the hostel rules shut down the internal recreation room.
Immediate neighbours in Dangar and Wiley Streets will be worst effected, but other local residents will be effected as mentioned above. The narrowness of Dangar St and the high buildings create a canyon echo, so any noise from the proposal will be a disturbance. During the view on site, a woman walked along the street talking normally on a mobile phone, every word was clearly audible even from a distance.
The Carlton site is providing only 5000 sq m of parkland for its 7500 new residents, so the shortage of open space in Chippendale will remain. Developments such as this proposal will increasingly overtax the existing open space areas. Although the council does not raise this as a direct issue in the appeal it is of major concern to the residents. Chippendale has the lowest provision of parkland per head of population in Sydney. The 2004 council study of open space and community facilities found Chippendale has NO playing fields, and useable passive open space is 1.36 sq m per head, whereas the City of Sydney averages 6.6 sq m per head. Nearby fairly dense suburbs of Glebe, Ultimo and Surry Hills have 4.3, 8.8 and 6.17 sq m respectively.

21 Mr Neustein had been engaged only shortly before the hearing. In his report sent to the parties he discovered a clause in the applicable LEP that neither party had mentioned in their brief. This is cl 43(2)(c) that:

In determining an application…..for…. a backpackers’ hostel…..the council must consider……..(c) the need to prevent the reduction in residential amenity associated with the encroachment of backpackers’ hostels …..into primarily residential areas.

22 He had drawn it to the parties’ attention in his report filed 21 November 2007, and said it reinforced his conclusions after considering the other matters in contention that the proposal is too large and would have such adverse impacts on existing residential amenity that it should not be permitted.

23 It was put to him his communications to the parties indicated the clause is a virtual prohibition. Mr Neustein said that was either mistaken or poor expression, the proposed use is permissible in the zoning with consent of the responsible authority, but consent is dependent on the relevant considerations showing justification.

24 The shortcomings of the proposal are, in his opinion:

(b) to enhance the quality of life and well-being of the local community

Zone No 10 - Mixed Uses.

Bondaci Pty Ltd v Pittwater Council [2003] NSWLEC 403

With proposed accommodation for 282 persons (or even 257 in the revised scheme), the hostel will need to provide for a variety of tourist transport vehicles such as airport shuttles, mini buses and taxis. As Cleveland Street is either a Clearway or "no standing zone" for most of the day, transport access will be via Dangar Street. The narrow (6m) street width will be restrictive of such movements and a further reduction in on-street parking in the immediate vicinity of the site may be required. On site space for deliveries is limited to two vehicles in the carriageway of the drop off area.

Clauses 28(1) (d) and (e) of the South Sydney LEP require the Council to take into consideration the amenity of occupants and the energy efficiency of the any proposal. I accept that the temporary nature of the occupancy, which is focused on night time accommodation, does not require the same access to privacy and sunlight as would be required of a residential flat building. However, some degree of amenity is required and the lack of privacy, acoustic and visual, between rooms facing into the internal light wells is not acceptable. This also applies to those rooms on the internal balcony whose windows open onto the fairly heavily trafficked internal balcony.

The narrow nature of Dangar Street creates a difficult situation with respect to the proposed development. Windows in the proposed development will be as close as 6m from windows of bedrooms and living rooms in the residential development to the rear. This is less than currently accepted standards and will require some form of screens for privacy. Acoustic privacy will also be at issue unless the proposed backpacker hostel is fully air conditioned or mechanically ventilated.

To provide a satisfactory level of health, comfort, amenity in facilities in premises providing tourist and visitor accommodation.
To ensure that the design, operation and impact of tourist and visitor accommodation does not unreasonably affect the amenity of the surrounding area:
To enhance the amenity of visitor and tourists accommodation in terms of daylight sun access, ventilation, privacy, outlook, noise, and safety.
To ensure the protection of the visual and acoustic privacy and amenity of residents of nearby buildings and spaces
Encourage the design and construction of buildings that minimise consumption of energy from non-renewable sources and potable water to preserve the environment and reduce greenhouse gas emissions including minimise reliance on mechanical heating and cooling.

To ensure that backpacker accommodation are appropriately located so as to reduce adverse amenity impact on the neighbourhood;
The proposal is not in an appropriate location. A backpackers development, especially of the scale proposed, is not appropriate in this locality where the residential character has been well established, with high density flat buildings surrounding the site on three sides. It follows that residential amenity is sensitive to the intrusion of many non-residential uses and needs to be protected.
It is expected that the behaviour of backpackers, even reasonable behaviour, would result in adverse noise impacts which would be exacerbated by the numbers of people generated by this development. Backpackers would have different habits or behaviours to those of the local residents and the impacts from backpackers, especially noise at night, is likely to adversely affect the residential amenity of the immediate surrounds.
Clause 5.2.8 and 5.2.9 deal with the requirements of communal recreation areas:
Council has contended that the proposal provides inadequate communal recreational areas. 170 m2 of recreational space is provided where 211.5 m2 is required. Although the provided recreational space is inconsistent with this clause, this is a shortfall able to be corrected.
Clause 5.2.11 deals with the minimum requirements for kitchen areas:
Although an internal self-catering kitchen (38.2 m2) and separate dining room are proposed, the kitchen area is some 4.1 m2 smaller than what is required to satisfy this requirement. However, this is considered a minor non-compliance that will not have a significant impact on the amenity of the proposal.
It is noted that the proposal indicated in the amended plans would reduce the non-compliances in regards to kitchen areas and recreation areas by reducing bed numbers, but it would still not comply.

25 In cross-examination, Mr Neustein said the Acoustic Logic report assumed normal conversation noise levels of persons in the rooms whereas young backpackers would use boisterous talking, possibly yelling and singing and music and definitely laughter.

26 Even with the windows shut after 10pm the usual condition of, noise at the nearest residential neighbour to be no more than 5 dbA over the background, would be difficult to achieve in Dangar St.

27 He was shown an updated report in Exhibit F calculated at 4 persons talking in dorm rooms and 2 persons talking in ‘luxury’ rooms. It was noted the calculations did not appear to allow for boisterous activity as previously described.

28 But, he agreed that 6mm thick laminated glass, as a condition, may achieve sufficient noise reduction, but with windows shut mechanical ventilation, or probably air condition is needed, Sydney being so hot in summer, and sometimes cold in winter.

29 He agreed that the occupants of the 2-bed rooms are less likely to be noisy than those in the 6-bed rooms.

30 On visual privacy for neighbours he agreed that frosting the glass would solve that when the windows are shut. But he said sight screens are needed for windows open, and with that, clear glass is preferred so the bedrooms do not feel so enclosed.

31 He was questioned about a Plan of Management he was involved in at a backpackers’ in 20-28 Chalmers St, Sydney. He said it had no immediate residential neighbours to be disturbed. The nearest residential was 2 blocks away. It is a different amenity to Dangar St, it has all-night hotels below and nearby, traffic in Elizabeth St, Central Railway adjacent and wide streets.

32 It was put to him hotel Plans of Management could control off-site noise of patrons. He said hotels had security patrols in nearby streets, but hostels do not, and none are proposed in this application.

33 In regard to carparking, Mr Neustein had considered the public carpark at the Seymour Centre a couple of hundred metres away. He said it is very expensive and time limited, the parking ticket machines only take $1 and $2 coins so that 24 hour parking is difficult. Costs are 3pm-7am for $6.00, but 7am-3pm is $15 flat rate whether you stay 1 hour or 8 hours.

34 It was put to him the Chalmers St backpackers’ had proposed a “credit for previous use parking”. He said in that case it was justified due to the proximity of Central Railway directly across the street including the bus-rail interchange, and there are more dormitory rooms than this proposal, meaning there would be a smaller proportion of backpackers with cars.

35 It was put to him internal privacy for bedrooms with windows facing corridors or the lightwell is resolved by high windows. He thought that produced poor amenity for the bedrooms making them like cells. Acoustic privacy would still be poor too, as they would need opening windows.

36 He agreed when given full scale plans to measure from instead of reductions, that the distance across Dangar St between buildings is 7m, not 6m. He did not think that would affect his evidence.

37 Due to the inadequate floor space of recreation area and dining area, he said patrons would want to go out of doors. He noted the lift door is directly into the recreation area necessitating its partial use as a corridor not recreation. Cleveland St amenity is very poor so they would go around into the residential streets and possibly as far as the nearby Buckland St park.

38 In summary, Mr Neustein said the on-site problems may be fixable by redesign, namely convert most of the ground floor to patron and staff carparking and reception; relocate the recreation, dining and kitchen facilities to the first floor, and reduce the number of beds accordingly. It was noted also the bed-count on the amended drawings is 252, not 257.

39 It is a large number of persons to come and go each day. Although there would be some use of the Cleveland St entry, the main destinations and routes to and from the site would need both pedestrian and vehicle access via quiet residential areas. Mr Neustein said at Chalmers St this circumstance does not arise, so that coming and going late at night is not a problem there.

40 The applicant’s Plan of Management had a curfew of 10pm, to minimise potential for nuisance to neighbours. But it arose in evidence and submissions an electronic pass-card would be issued that would allow one entry per card after curfew. Mr Neustein said backpackers are resourceful, and one card could let a large group of persons in, so working together, a group could come and go as they pleased.

41 He thought the rather strict controls proposed by the applicant would only encourage patrons to go elsewhere for relaxation/entertainment late at night. Hotels, live shows and other event venues are unlikely to be finished/closed by 10pm curfew. Going out at night is not unusual for persons on holidays. Late at night when public transport and taxis are scarce in the city, the patrons will have to walk back or drive through the quiet residential streets. The same applies if patrons go to restaurants, hotels and shops at Broadway, Glebe and Ultimo or Notre Dame University. Only if they go to the Seymour Centre, Sydney University or places in Darlington would they return by Cleveland St and cause little impact.

42 It was put to him unfamiliar backpackers would use well-lit, busy streets like Cleveland and Abercrombie. He said that choice would be only one factor in deciding which route to take.

43 It was put to him the Internet Café should be regarded as part of the recreation area supplied on site. He said it is an independent shop accessible only from Cleveland St. It is not part of the guest area, and the applicant had inappropriately included it in its calculation of “recreation area”.

44 As a result the recreation area is considerably non-compliant with the applicable DCP. It is said to be locked off at night, but it is open to the Reception Lobby and the Lift, so it cannot be locked off. The table and chair layout on the plans for the dining and recreation area show it has minimal space around the furniture, and can seat less than a third of the patrons.

45 In regard to the kitchen, the DCP requires 15% of patrons to be in it at one time. That is 40 persons or so in a space between cupboards 1.6m wide by about 10 m long. Even the applicants plans showed only 17 persons almost shoulder to shoulder at the benches. He said the kitchen is not large enough.

46 In regard to the possibility of “parking credits” Mr Neustein said the applicable DCP provides clauses for when that is allowable. None apply in this case. The building is not being re-built or gutted, it is going to a different pattern of use involving more traffic, the local streets are already “parked out” and being apparently vacant for some time any previous use that may have provided “credit” has disappeared.

47 In regard to the 9 carspaces provided, he noted they are sized for cars only, so backpackers with campervans will have to park in the street. He noted that backpacker cars and vans for sale often clutter streets near hostels ie Victoria Rd, Kings Cross.

48 The respondent submitted that the accepted surveys of backpackers hostels show the average stay is 3 nights, so apart from the daily tourist excursions, at peak occupancy there would be about 500-600 persons per week arriving and departing.

49 The applicant submitted that:

The area is zoned Mixed Uses, and allows backpackers whereas residential zones do not.
The area already has some noise nuisances as testified by the resident-objectors, so the residential amenity is not as ‘quiet” as suggested.
Everyone agrees that use of the Cleveland St entrance will not cause problems, and that is the only entry that will be available after 10pm.
The applicable statutes and controls encourage hostels close to public transport and this site is.
Council officers recommended approval of the amended application.
The Plan of Management will prevent parties in bedrooms so the acoustic report is correct to adopt conversation noise levels only.
Mr Neustein agreed that a hostel with fewer beds would be acceptable, but the applicant does not agree with the 30 beds he suggested. Still Neustein changed his mind on “not acceptable at all” in this location.
He agreed internal noise sources could be solved by conditions.
If Dangar St entry is closed at 10pm all access via Cleveland should be acceptable.

50 The respondent submitted that the evidence had not shown Issues 1, 2, 3 & 4 (a), (b), (e), (f) to be overcome.

The Cleveland St frontage is good, but
The amenity of that street is so poor and the lack of adequate internal communal spaces for patrons will mean they will circulate to Wiley, Dangar and other quiet streets, and local parks.
Buckland St and Wiley are known by locals to be a well used pedestrian route to Broadway Glebe, Ultimo and Notre Dame University, major bus routes and Buckland Park. The backpackers will use it too, all through predominantly quiet residential streets at night.
The other pedestrian route along Dangar St and Balfour to Central Station and the city will be obvious too, taking them past the only other park. They will know where to go after curfew on-site, or if they want to get outdoors from the crowded communal areas in the proposal.
The quickest route from the Cleveland St entry to the pedestrian route and more quiet areas is via Wiley St.
The porte cochere for vehicles and pedestrian entry off Dangar St will promote the use of the quiet residential areas.
The Plan of Management cannot control activities off-site.
At Chalmers St hostel, the location means any off-site activity is unlikely to adversely effect residents late at night because the nearest residents are well away. At this location, the opposite is true due to the proximity of residents, the number of backpackers proposed, and their likely access routes to and from the site.
The acoustic report does not consider off-site noise. It was clear at the view of the site that Dangar St and the other predominantly residential streets do have a quiet amenity; remember the woman on the mobile phone being clearly audible from a distance at day-time. The canyon effect of the narrow streets and tall buildings means any noise at night will be heard by neighbours.
The parking spaces for 9 cars only are clearly deficient compared to any acceptable guide or DCP. For 252 patrons it needs 15 spaces at least, plus staff parking.
Any overflow parking must go onto already “parked out” streets.
There is no basis for “parking credits” on this site for this proposed use.

51 In coming to a conclusion on this appeal, I am mindful that the permissibility with consent of the category “backpacker hostel” is not in question. It is a matter of whether this proposal can meet, to an acceptable extent, the statutes and controls that apply to it.

52 I am persuaded by the respondent’s evidence and submissions that this proposal cannot satisfy the requirements raised in Issues 1,2 3, 4 (a), (d) and (f). A redesign with adequate carparking and fewer beds and adequate internal communal spaces that minimises likely impacts on the predominantly residential streets to the north of the site may be acceptable to the council, but this proposal should not be approved.

53 The orders of the Court are:

___________________

K G Hoffman

Commissioner of the Court

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Citations

Baker Kavanagh Pty Ltd v Sydney City Council [2008] NSWLEC 2

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Bondaci Pty Limited v Pittwater Council [2003] NSWLEC 403

CITATION:	Baker Kavanagh Pty Ltd v Sydney City Council [2008] NSWLEC 2
PARTIES:	APPLICANT Baker Kavanagh Pty Ltd RESPONDENT Sydney City Council
FILE NUMBER(S):	11031 of 2008
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- convert a warehouse into a backpackers hostel with a retail Laundromat and Internet cafe, fire safety, privacy, noise and loss of residential amenity, parking, internal accommodation lack of amenity.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 South Sydney Local Environmental Plan 1998, South Sydney Development Control Plan 1997 - (Urban Design), Sydney Heritage Development Control Plan 2006, City of Sydney Visitor and Tourist Accommodation Development Control Plan 2006, Development Control Plan No. 11 - Transport Guidelines for Development 1996, City of Sydney Access Development Control Plan 2004.
CASES CITED:	Bondaci Pty Ltd v Pittwater Council [2003] NSWLEC 403 (19 December 2003) paragraphs 64, 66 and 67
DATES OF HEARING:	22/11/2007 and 23/11/2007
DATE OF JUDGMENT:	4 January 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr F. Corsavo, barrister Instructed by Mr F. Kalyk of Kosmin & Associates Solicitors RESPONDENT Mr S. Kondilios, solicitor Instructed by Ms N. Johnson of Maddocks Solicitors