Barotran Pty Ltd v Randwick City Council

[2005] NSWLEC 437

Land and Environment Court

of New South Wales

CITATION:

Barotran Pty Ltd v Randwick City Council [2005] NSWLEC 437

PARTIES:

APPLICANT
Barotran Pty Ltd
RESPONDENT
Randwick City Council

FILE NUMBER(S):

10335 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- Backpacker accommodation - amenity impacts on neighbours and neighbourhood - car parking.

LEGISLATION CITED:

Randwick Local Environmental Plan 1998
Backpacker Accommodation Development Control Plan

DATES OF HEARING:

29/07/2005

EX TEMPORE JUDGMENT DATE:

07/29/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Green, solicitor
SOLICITORS
Pike Pike & Fenwick

RESPONDENT
Mr A Galasso, barrister
SOLICITORS
Bowen & Gerathy

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

29 July 2005

10335 of 2005 Barotran Pty Ltd v
Randwick City Council

JUDGMENT

1 This appeal relates to development application No. 18/2004, which involves the regularisation of existing backpackers’ accommodation operated in premises approved as a boarding house at 171 Arden Street, Coogee.

2 The premises presently contain 44 beds, and this is to be converted to 24 beds, plus a manager’s bedroom. The existing toilets, recreation, and kitchen facilities are to be retained essentially as they exist. An existing rear terrace is to be modified consistent with a condition of consent by the provision of an acoustic privacy screen. Also the front façade of the building is to be significantly improved aesthetically by the provision of new parapets, detailing to the windows, plus a new front fence and entry gate.

3 The site is zoned 3(a) General Business Zone under Randwick Local Environmental Plan 1998. In this zone backpackers’ accommodation is permissible with development consent.

4 The objectives of the 3(a) zone relate to the provision of local, retail and business development in the city and associated development, as well as providing opportunities for residential accommodation subject to the minimisation of the impact of development on adjoining and nearby residential zones.

5 Also applicable to the site is council’s Backpacker Accommodation Development Control Plan (“the DCP”). This DCP contains comprehensive requirements applicable to backpackers’ accommodation, including matters such as carparking, communal recreation, disabled access, laundry, kitchen facilities, and health and amenity generally. For the most part, as I understand the application, these requirements are met by the proposal.

6 The locality in which the site is situated comprises both residential developments and mixed uses, being located within the northern part of the Coogee commercial precinct. The site is within walking distance of Coogee Beach.

7 The application was, following its lodgement with the council on 15 January 2004, notified, and by the close of the advertising period some 19 letters of objection, including a petition with 78 signatures, were received. These letters of objection raise a number of concerns, including lack of off-street carparking, lack of on-site landscaping, and various other concerns such as garbage and waste disposal, visual pollution associated with hanging of washing, fire risk, and the like.

8 Of greatest concern to the residents, however, and these concerns were expressed in detail by those residents who gave evidence on-site, involve what was said to be the inappropriate behaviour of the guests of the existing premises. Such behaviour was described generally as being anti-social and includes inappropriate disposal of rubbish in the locality, drunken behaviour generally, and associated yelling, screaming, vomiting, urinating in the adjoining laneway as well as excessive and inappropriate noise from the premises, especially late at night.

9 A representative of the precinct committee also gave evidence expressing similar concerns and argued for a moratorium on the approval of backpackers’ accommodation to give the council an opportunity to consider the extent and the effect of backpackers’ accommodation in Coogee.

10 A report was subsequently prepared by a council town planner, which report recommended that the application be approved subject to a number of conditions. Despite this report the council, apparently responding to the concerns of the residents, decided to refuse the application for two reasons:

(a) The proposal will adversely impact on the amenity of the adjoining and neighbouring residents in terms of noise and anti-social behaviour.
(b) The proposal does not comply with the provisions of the backpacker DCP and will adversely impact on the on-street parking in the locality.

11 In dealing with this application the Court was assisted by the report and oral evidence of the Court appointed expert town planner, Mr Stuart Harding. Mr Harding concluded in his report that the proposal has merit, and as he explained, is a good opportunity to reduce the intensity of the current use and at the same time put in place management processes to ensure that the facility is well run and to minimise impacts to the neighbours.

12 He was nevertheless concerned in relation to the architectural plans and the Plan of Management, which require a number of changes and improvements. A number of these matters were put to him when he gave evidence in Court and as a result of discussion many changes were made not only to the draft conditions of consent but also to the Plan of Management. With these changes he was of the view that consent could be granted.

13 The acoustic screening to the rear deck area, to which I referred earlier, was provided as a result of Mr Harding’s recommendation, and I agree that it is necessary. There was some discussion as to whether a privacy screen was required on the southern side of this terrace, however I saw no reason to require such a screen.

14 The first issue in the case involves this terrace and the noise impacts on neighbouring properties that have, in the past, resulted in adverse impacts upon neighbouring dwellings to the north. I, like Mr Harding, am now satisfied that this issue has been sufficiently resolved, taking also into account the provisions in the Plan of Management that restrict the usage of this terrace to between 8 am and 8 pm with the access door being locked at other times.

15 Mr Harding also considered the social impacts of the proposal generally, addressing the anti-social behaviour contentions of the residents. He acknowledged the concerns of the residents and I think he even agreed that some of these concerns could be attributed to the residents of these premises. He nevertheless was of the view that not all of these concerns could or should be attributed to the residents of the premises, bearing in mind that there are other premises, particularly licensed premises, in the locality that are more likely to contribute to these concerns than the backpackers’ accommodation.

16 Whilst I acknowledge and accept that these premises can and probably have in the past contributed to unacceptable behaviour in the locality, I do not accept that this behaviour in the present circumstances points to a need to refuse this application. There are two fundamental reasons for this. Firstly, the scale of the operation in terms of the number of people that can be on the premises at any one time is being reduced by about half. This by itself must decrease the likelihood of anti-social behaviour.

17 Just as important, if not more important, is the Plan of Management. The existing premises has no such plan, and if I understand things correctly there is presently no on-site 24 hour management. The Plan of Management as now amended provides an appropriate set of constraints which can be enforced by the proposed on-site management, and this will have considerable benefits by comparison with the existing operation.

18 A number of noteworthy aspects of the Plan of Management are:

• The communication to guests of the requirement to not behave in an anti-social manner, or contravene the house rules of which they will be given a copy at registration.
• The provision of information so that should guests behave in an anti-social manner residents of the locality will be given a telephone number to contact management, a complaints register will also be required.
• Visitors to the premises, other than guests, will be required to vacate the premises by 10pm.
• Alcohol is not permitted on the premises.
• Parties and amplified music are not permitted.
• As already mentioned the limited access to the rear terrace.
  

19 By comparison with what presently exists the operation of the premises as backpackers accommodation subject to the conditions and the Plan of Management represents a significant improvement. In terms of potential anti-social behaviour I do not see that the proposal would generate such concerns that it should not be approved.

20 A further benefit of the proposal, and in my view of great importance, is the architectural improvement of the façade and the front part of the building.

21 This brings me to the conditions that remain in dispute. I think I have already agreed that it would be appropriate that there be a deferred commencement condition dealing with colours, materials and finishes, and the acoustic/privacy screen for the terrace.

22 Condition 2, under the heading “Environmental Amenity” requires that lockable storage facilities be provided within the rooms for the benefit of occupants. This was objected to because the rooms themselves are lockable, and valuables can be stored in the safe in the office. Mr Harding believed that this arrangement would be satisfactory, but I do not agree with him. It seems to me that it would be appropriate for there to be lockable cabinets in each of the rooms for the guests to store private goods which do not need to be stored in a safe, but stored in such a way as to have reasonable security and reasonable access for those guests. This condition should remain.

23 Condition 11 requires a s 94 contribution of $15,804 for carparking. This was calculated on the basis of the premises being approved as a boarding house, which would require one carparking space, by comparison with the proposal which would require two carparking spaces, plus one car space for the staff member. On this basis, allowing for the existing garage being able to provide one car space, results in a two car space shortfall.

24 It was submitted that the garage is oversize for one car but would not meet the normal requirements for two stacked car spaces. On balance I accept the submission that the garage is capable of accommodating two smaller cars, and accept the reasonableness of the applicant’s offer to make a one carparking space contribution to the amount of $7,902.

25 Condition 16 deals with access and facilities for people with a disability. Given the age and nature of the building, including its heavy masonry construction, I agree with the applicant’s concern that the consequences of requiring strict compliance with the provisions of the Building Code of Australia, and Australian Standard 1428.1, may result in an unreasonable imposition in the manner of requiring major structural modifications to achieve relatively minor corridor widening.

26 I therefore accept the applicant’s suggested conditions, or proffered conditions, that require the provision of appropriate ramps, and door widths to facilitate wheelchair access to the disabled bathroom.

27 The appeal is therefore upheld and conditional development consent will be granted. A final set of plans and conditions including the Management Plan should now be provided so that final orders can be issued.

_______________________
T A Bly
Commissioner of the Court
Rjs/ljr