Bondaci Pty Limited v Pittwater Council

[2003] NSWLEC 403

>

Land and Environment Court

of New South Wales

CITATION:

Bondaci Pty Limited v Pittwater Council [2003] NSWLEC 403

PARTIES:

APPLICANT
Bondaci Pty Limited

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10415 of 2003

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- refusal of 106 bed backpacker hostel
social impacts
acoustic impacts
traffic and parking
on-site manoeuvring
disable access.

LEGISLATION CITED:

Pittwater Local Environmental Plan 1993
State Environmental Planning Policy No. 5
Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING:

19/12/2003

EX TEMPORE
JUDGMENT DATE :

12/19/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr I. Hemmings, barrister
instructed by Mr S. Mackenzie, solicitor
for Mackenzie & Vardanega

RESPONDENT
Mr P. Clay, barrister
instructed by Ms E. Duenow, solicitor
for Malleson Stephen Jaques

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10415 of 2003

Hoffman C

19 December 2003

Bondaci Pty Limited

Applicant

v

Pittwater Council

Respondent

Judgment

1 This was a class 1 appeal, No. 10415/03 between Bondaci Pty Limited and Pittwater Council in regard to the deemed refusal of consent for a one hundred and six bed backpacker hostel at 7-9 Bardo Road, Newport. A previous application for a forty six bed hostel had been approved on 7 Bardo Road. A previous application for a larger hostel on No. 7-9 had been refused.

2 No. 9 had on it an existing two storey house and outbuildings converted into four flats. In this application, part of No. 9 at the front would be internally changed and there would be extensions to the rear that would create three storeys due to the slope in the land.

3 The existing house on No. 7 would be demolished and a building very similar to the already approved hostel was proposed. It had changes to the car park level and main level containing the entry, office, disabled persons’ accommodation, and communal areas.

4 The two buildings were a little apart. There was a basement car park on No. 7 and partly on No. 9. It held thirteen vehicles, including a disabled driver’s space, a manager’s space and a mini bus space. The two buildings were connected at the front by an elevated concrete slab with vegetation on top. This was a cap over the front part of the basement car park and was intended to reduce car noise to neighbours across the street. Behind it was an area open to the basement that ventilated the car park.

5 At the rear of the two buildings there was another link at the elevated ground floor level connecting the communal facilities in No. 7 via a deck to the stairwell of the building on No. 9. There was a roof over the deck and an acoustic screen on the street side of the deck. There was a communal yard area beyond the rear part of the deck, accessed by steps down from the deck or by using the central stairwell and going out via the car park.

6 The rear looked out over Newport Park and its playing fields. The scout hall was just behind No. 7. On the east the communal rooms had additional decks looking out over a commercial carpark to premises on the corner of Barrenjoey Road and Bardo Road.

7 On the west was a two storey house at No. 11. There was a line of large Norfolk Island pine trees along that side of the site that were to be kept as a visual screen.

8 Further along the same side of the street of Bardo Road, as the proposal, there was a mix of houses and flats. Across the road from the site was a two storey block of flats above ground level parking. On the west side of them was a house at No. 2, and a duplex at No. 4 Bardo Road. Further along that side of the street were detached dwellings to the T intersection of Bardo Road with Nullaburra Road. Nullaburra was an access road to the Bilgola Plateau, and Bardo Road was an access road to the areas on the Pittwater side of the peninsula. It was considered to be a local collector road.

9 The intersection of Bardo and Barrenjoey Road was actually a three way intersection with Seaview Drive, the latter being a street that went around the back of the Newport Shopping Centre. The intersection had traffic lights. The commercial strip started at the property adjoining the site on the corner and extended north along Barrenjoey Road. There were frequent buses to the city and to Palm Beach along Barrenjoey Road. It was only a short walk north from the site to the shops and Newport Beach.

10 Relevant to this appeal was a somewhat longer walk in a south westerly direction to the local hotel called, The Newport Arms. One could walk along Bardo Road westwards or across Newport Park at the rear of the site, and then zig zag through a few streets of residential flats to the hotel which was on the shores of Pittwater. There was a bus route from there back to Newport, but late at night it was not a regular service.

11 The issues were;

1 whether the impact of the backpackers hostel at 7-9 Bardo Road does not support the aims and objectives of s 1.5 of the Newport Valley Locality Plan in that, the proposal is unlikely to ensure that the residential amenity of the locality is maintained, and may not result in the locality remaining a desirable place to live.

2 whether the applicant has demonstrated that the proposal for both 7 and 9 Bardo Road will be acceptable in terms of social, acoustic, traffic, and car parking impacts, given that information has not been provided which considers the effect of the development on the locality and those terms.

3 whether the proposed development ought to be approved having regard to the unknown impact upon the late night amenity of nearby neighbours due to the likely departures and arrivals activity at the hostel.

4 whether the proposed development ought to be approved having regard to the unknown social and acoustic impact of the likely late night arrivals and departures activity at the hostel.

5 whether the quantum of car parking proposed is adequate given the location of the site, remote from the centre of Sydney.

6 whether there is sufficient car parking proposed on site and whether this section of Bardo Road is capable of accommodating overflow on-street parking generated by the proposal.

7 whether the proposed development ought to be approved when it does not comply with the Development Control Plan 26 accessibility, in that it does not provided 2.5 metres headroom for disabled vehicles in the basement car park.

8 whether the proposed development ought to be approved when it does not comply with AS2890.1 1993. Particulars;
(a) parking spaces 6 and 7 do not have an additional 300 mm width for door openings,
(b) parking aisle adjacent to parking spaces 6 and 7 does not have the 1 metre aisle extension extending the full width from the outer end of the parking spaces.
(c) the final 6 metres on the approach to the kerb at Bardo Road has a gradient in excess of 5 per cent. The implications on the rest of the parking layout of meeting this requirement not known.

9 whether the proposed development is in the public interest and ought to be approved having regard to the objectors’ concerns.

10 whether the proposed development ought to be approved in the absence of an appropriate Community Safety And Security Management Plan.

11 whether the proposed development meets with objectives and requirements of Planning New South Wales Crime Prevention Through Environmental Design, (Safer by Design), guidelines.

12 The respondent’s evidence was heard from:

Mr D M Sellar, objector and resident of 4 Bardo Road,
Mr J J Tuit, objector and resident of 1 Nullaburra Road,
Mr P Pollaow, objector and resident of 15 Bardo Road,
Mr S E Cooper, acoustic engineer,
Mr C Hallam, traffic engineer,
Ms M C R Black, social planner and town planner,
Mr R A Player, town planner.

13 The applicant’s evidence was heard from

Mr J Lattin, supporter and resident of 57 Bardo Road,
Mr R S Heggie acoustic engineer,
Mr G Pinda, traffic engineer,
Mr P A Strudwick, town planner,
Ms J Manion, social planner.

14 The changes to the previous appeals plans could be broadly described as;

• the inclusion of a manager’s flat, the inclusion of a mini bus to drop off and pick up patrons from the airport, local hotel, etc.
• the inclusion of a parking and loading spot in the basement for a mini bus so that night time arrival and departure activity could have noise control under the building,
• changed location of the driveway to allow less gradient thus better safety sight lines,
• easier access for disabled persons from the car park via a stair lift.

15 The applicant said these changes and the additional research and evidence addressed previous doubts about the adequacy of car parking and concerns about sleep arousal of neighbours at night.

16 The site was in a Residential 2B zone under the Pittwater Local Environmental Plan 1993. This zone and the Business 3A zone were the only two zones that permitted hostels with consent of the responsible authority. The applicant said that even the council’s social planner agreed that the site was a good location for a hostel because:

• it was on the fringe of the shopping centre,
• it was next to a park, and
• close to the beach,
• it was very close to regular bus routes,
• it was a purpose built building to accommodate the needs of patrons and minimise disturbance to neighbours, and
• it provided a need for low cost accommodation in the area.

17 The issues could really be summarised into the two main categories already mentioned. That is; car parking and neighbour’s amenity, with related concerns that if car parking is not adequate traffic congestion and on street vehicle activity may result, and that the coming and going of one hundred and six backpackers would cause unacceptable nuisances to neighbours.

18 Issues 7 and 8 had been resolved in the plans before the Court and were no longer pressed. That meant that the entry drive in car park area was practical and would work. It was only the number. of car spaces that remained in contention. Issue 11; Safer by Design could only arise if the New South Wales police declared the area as crime sensitive and required that the police, not the applicant, prepare a report on the proposal. The police have not formally objected to the proposal and have not declared the area crime sensitive. The applicant accepted a condition that if it ever arose and the police prepared a report, the hostel owner and/or operator would have to comply with it.

19 Mr Sellar was opposite the site and slightly west. He lived in the rear unit of a dual occupancy development. He represented the Newport Progress Association. There were quite a number. of objections in exhibit 1, and his own documents, which had been returned from a flier circulated by the progress association. The main concerns of the association were:

• one hundred and six persons is too great a concentration of backpackers,
• existing congestion on Bardo Road due to the four lanes at the intersection with Barrenjoey Road, compressing to two outside the site, and
• commuter parking in Bardo Road.
• On site parking for the proposal is inadequate.
• Already persons walking to and from - presumably, the Newport Arms via Bardo Road, cause late night nuisances such as loud talking, urination on people’s gardens, bottles and cans in the street and gardens.
• Use of the scout hall for children’s and teenage activities could be disrupted by the one hundred and six persons in close proximity.
• Already Newport Park is used at night for rowdy behaviour. The hostel patrons could add to it.
• The Newport supermarket does not have sufficient range for one hundred and six persons. There are few take away food outlets in Newport that backpackers might use.
• Concerns that backpackers are prone to anti-social behaviour and could adversely affect local amenity.
• Concerns that cars may be abandoned on the street if backpackers cannot sell them before they leave the country.

20 Mr Sellar was frustrated that there had been three development applications for the same use on the same site. It took a lot of time out of people’s lives to oppose development on a site considered by locals to be a traffic black spot. Mr Sellar said in travelling as a backpacker himself he observed people on holidays and knew that they liked to party, and it only took a few anti-social persons to make such occasions, or the going and coming related to it, a nuisance to neighbours.

21 Mr Tuit was just around the corner in Nullaburra Road. He was also in the rear unit of a duplex and said from his bedroom windows he could see down to the site. It was a quiet area at night and he and his wife slept with windows open, any noise would disturb them. He said the traffic survey and noise monitoring in Bardo Road was travelling traffic, not stopping and starting, as it would be at the backpackers’ hostel. He said at the moment eight people live on 7-9 Bardo Road, one hundred and six people is twelve times the activity, it must affect the neighbours.

22 He could not imagine a ten seater mini bus could take one hundred and six patrons, or a percentage of them, to and from night venues. Many will use their own cars to come and go or will walk. The proposed coach stop area in Bardo Road proposed only a two minute stop limit. He could not imagine a coach could stop, unload some persons and pick up others, all with their luggage, in two minutes.

23 Mr Tuit said he already heard noise from Newport Park. Sports noise was acceptable, but late at night, especially Saturdays, there was carousing, yahooing, yelling, that was a nuisance. He said at the moment the nuisance was irregular but he expected that would change with one hundred and six resident backpackers. He would have it almost every night, he thought.

24 He did not accept the applicant’s and the council’s traffic engineer’s assurances that the proposal would not increase congestion in Bardo Road. He said seeing the existing peak hour congestion caused by parked vehicles and the travelling lanes reducing from four to two outside the site, any casual observer must realise a coach or taxi pulling up outside the hostel must make the situation worse. He said of the two concerns, noise nuisance and traffic safety, it was the latter he saw as most important due to his fears for the number of children on bikes, skateboards, and scooters that came down the hill.

25 Mr Pollaow was two doors west of the site. He objected due to amenity impact on his home, because of proximity, the unsuitability of the site because of traffic, the scout hall, the childhood centre across the park, the potential noise nuisance from backpackers on the site and in the park, and cars coming and going, slamming doors, revving engines, loud talking late at night.

26 Although Bardo Road was busy during the day, it was quiet at night, he said, with only occasional noise nuisances. That would change, he said, and occur more often if the development was approved. He said backpackers were not necessarily anti-social, they were just young and made a noise having a good time, and one could not stop them coming and going to and from the site at any hour of the day or night, so it would be difficult to control nuisances caused to neighbours.

27 Mr Cooper’s acoustic assessment of Mr Heggie’s noise monitoring was that background sound levels during the day came mainly from traffic on Bardo Road and Barrenjoey Road. The loudness of those noises meant there would be no nuisances to neighbours during the day. It was 10pm to 7am that noise nuisance would occur. It would be the sleep arousal events that would cause nuisance. He did not think the average background noise level would change much. Currently the average at 10pm was 45 dBA, at midnight it was 40 dBA, and at 2am, was 35 dBA. Sleep arousal would occur when a noise was 15 dBA or more above those averages.

28 Mr Cooper was satisfied noise on site in the building could be controlled by good management, and the proposed building design. It was activity on the street that would cause sleep arousal late at night. Car arrival and departure, engine starts, acceleration, loud talking, would all exceed sleep arousal for the close neighbours. Tonal noise such as an engine with a faulty bearing or a fan belt slipping would be worse.

29 In cross-examination he said, in front of the site a car starting its engine or a door slam would be about 63 dBA, and someone calling out, about 58 dBA measured at the nearest neighbour’s house. Even at 10pm they would be marginal sleep arousal events.

30 It was put that car door slams made different noises depending on the car and the force of the slam. He agreed, some noises could be less than the figures he put forward, and at 60 dBA when the background was 45 dBA, a 60 dBA noise was only 15 above background and would not cause sleep arousal.

31 Mr Cooper said Mr Heggie’s calculations of average noise levels were logarithmic means. Actual average noise levels were lower, so a 60 dBA door slam would mean sleep arousal. It was put to Mr Cooper that car starts and door slams were already part of the Bardo Road amenity, and there would already be occasional sleep arousal events. He agreed with this. He was asked how often such events would have to occur to become a nuisance. He said, “After 11pm, three to ten noise events.”

32 He agreed that the number of noise events on the street would change depending on the occupancy at the hostel. If it was 100% full then three to ten noise events may well occur on a given night. If it was only 20% full there may be no late night coming and going for several evenings, or only a couple.

33 The range of three to ten events seemed wide. He said the perception of `nuisance’ changed from person to person and there could be masking of some of the hostel related noises due to traffic on Barrenjoey or Bardo Road. Even Bardo Road had one car per minute late at night now. If a car passed at that time and a door slammed, the slam would not cause sleep arousal. There could be masking from commuters and existing residents’ cars being started, their own door slams, and acceleration.

34 It was put to Mr Cooper the flats opposite the site had a number. of car spaces in carports and in the yard area immediately beside 2 Bardo Road and they, being much closer, would disturb residents of 2 and 4 Bardo Road more so than the proposal. He said he had thought the building opposite was townhouses, not flats, and he had not noted the location of the car parking spaces so close to their boundaries. He had not assessed how many cars may come and go from the flats late at night.

35 He was asked what was a quantification of sleep arousal thence that would be unacceptable. He said, “Five or more per hour after 10pm would be sufficient for a refusal of the proposal.”

36 Mr Hallam had looked at the likely parking demand for the proposal by surveying a backpackers’ hostel at Avalon. He had been given access to guest records; one being the day book, that had an X marked next to a name if there was a car, and another being the individual guest information card, each of which was marked with the car registration number if the guest had a car.

37 In cross-examination it was found on two of the days surveyed, a guest card was missing, so Mr Hallam had relied on the Xs for the number of cars. There were other marks in the day book, but Mr Hallam did not know what they meant. He said one of the owners, a Mrs Doyle, told him the records did not show hire cars, and in some cases guests did not want a car ownership known as other guests would seek to hitch a ride.

38 It was put to him there was a third car ownership record at the Avalon Hostel, it was a car log in which staff noted direct observations of a guest and the number plate of a car the guest used. Mr Hallam said he had no knowledge of such a car log.

39 The original consent for the Avalon Hostel was granted on the basis of one car space for twenty two guests. And Mr Hallam’s survey showed one car per five guests. Mr Hallam said the Doyles had told him the pattern of car ownership had changed since the consent in 2001. It was put to him, the Commonwealth Guide to Backpacker Hostels said, “One car per ten guests”, and that should be accepted. Mr Hallam said the guide also suggested each council could do its own survey and set its own parking rate and the council’s applicable DCP said to do a merit assessment.

40 It was put to him a survey of one hostel at Avalon was not a reasonable comparison. Other hostels on the peninsula from Manly northwards should be included. He disagreed saying the north end of the peninsula was different and he had checked three months of records.

41 Ms Black, the council’s social planner, said there were perceptions of amenity impacts that may be exaggerated in the minds of some objectors, but she believed the already approved forty six person hostel was acceptable in numbers and guests could mix into the local population more or less like residents of a typical block of flats. The proposal at one hundred and six guests would have problems just due to numbers.

42 She agreed with Ms Manion’s survey methodology of other residents near other backpackers’ hostels along the Northern Beaches of Sydney, but she did not believe it was a valid comparison because Manly and Collaroy and Avalon are all different to Newport, but Avalon was the most similar. Manly and Collaroy hostels were in commercial and high density residential localities.

43 She was asked if backpackers behave anti-socially. She said not in her experience. It was put to her the management plan proposed curfews on use of outdoor areas, the building was purpose built, rowdy behaviour would be controlled by the in-house manager. Ms Black said it was off-site noise that would cause problems. Currently 50% of nearby residents reported hearing nuisance noise once a month. It must occur more often, or, more people will hear the nuisance with a 100 person hostel.

44 She thought Ms Manion’s survey result of two or three nuisance events on the site, (such as a party) per annum, was too low a figure, but if it was only that, then it would not be sufficient for refusal.

45 Mr Player agreed two or three nuisance events per year, such as a party on the site, would not be sufficient for refusal. The concern was late night or early morning arrivals and departures from the street in front of the hostel. Three to ten such noise events per night, if regularly occurring, would be unacceptable. `Regular’ as a term, he defined as, one or two nights per week over the October to March peak period.

46 In cross-examination he agreed Mr Cooper concluded that five such noise events was the line between marginal and unacceptable. He agreed that in coming to his conclusions he utilised the highest frequency range of nuisance events, whereas the acoustic engineers and social planning experts, only expressed ranges due to the variations between each event, the background noise level at the time, and possible masking of noises related to the hostel by other noises from other activities nearby.

47 The applicant pointed out that in Development Control Plan LP21, the area to which the objectives of “retaining residential amenity and keeping the area a desirable place in which to live”, was the area on the maps in pages highlighted in heavy black line. That area was quite a considerable number of city blocks in the Newport area, all of which had been designated for medium density development. Much of the same area was currently detached houses, so the intention of the central plan meant significant changes in the future, including to Bardo Road.

48 Mr Strudwick was the planner for the applicant, and he had considered the social planning evidence and said, backpackers usually select a hostel because it is near places they want to visit. For Northern Beaches the scenery and the outdoor boating and waterways were the attractions of Newport. Travellers who wanted night life attractions would stay closer to the city.

49 Guests of the proposal who did not want to go out at night locally would find the Newport Arms closes at 10pm and midnight, depending on the night. The majority, if they had been involved in outdoor activities were more likely to stay in the hostel at night or be back early from the hotel.

50 Obviously some nights the situation would be different, but not as regular as the objectors feared. The in-house kitchen is there for guests to cook their own meals. It goes with the desire for economic accommodation.

51 The only directly adjoining residential neighbour is on the west at No. 11, and the design of the building specifically ensures noise from inside the premises will be minimised in that direction. The existing Norfolk Pines create a visual barrier. The proportions of the two wings of the development resemble houses, so the proposal fits into the streetscape and scale of the area.

52 The interior and exterior communal spaces are oriented towards the large public park, and a commercial car park on the opposite side of the building to No. 11 and the other dwellings across the street. The size of the interior and exterior communal spaces met or exceeds the recommended areas on the Commonwealth Department of Tourism Guide for Backpacker Accommodation. The car park has the recommended number. of car spaces, verified by survey of other hostels, plus a mini bus space, and they are all enclosed in the basement to encourage loading and unloading there, so that noise of the activity does not reach neighbours.

53 The “no parking” zone intended outside the site adjacent to its driveway will enable the setting down and picking up of guests from cars, taxis and shuttle buses with minimum noise to nearby dwellings.

54 There is a management plan proposed as part of the conditions of any approval that provides for curfew, standards of behaviour for use of outdoor areas, consumption of alcohol, music, and other sources of noise which may be a disturbance to neighbours. There was to be consultation with neighbours about their concerns, and resolution of any complaints promptly being part of the manager’s responsibilities. A manager was to be in-house 24 hours a day to ensure the proper control of guests.

55 Mr Strudwick noted that the majority of objectors concerns were about traffic congestion in Bardo Road, and yet both council’s and the applicant’s traffic engineers found the proposal would not create the problems they were concerned about. The evidence showed backpackers mainly used public transport, or tour operator’s mini buses. The hostel would be 50 metres from the major peninsula bus routes. The hostel would have its own mini bus, reducing the need for guests to have a car, or need a taxi or a hire car.

56 Ms Manion’s survey of residents near other backpackers found only three persons out of two hundred said the nearby backpackers detracted from their area, but they still rated their local amenity as very good. If the hostels were a problem, they would have said reduced amenity was due to the backpackers, but they did not. Only 21 out of 200 surveyed made any mention of the hostels.

57 She recognised there could be occurrences that irked the neighbours, and that persons often did not complain because they felt nothing would be done. That was why she put an active policy of consultation with neighbours in the management plan. Unresolved concerns, even if minor, could fester. A good neighbour policy was best.

58 Asked where her estimate of three noisy events per year came from, she said it was actually when staff of one hostel or another thought residents were disturbed. The residents did not link those events to the hostel, they linked them to hotel patrons.

59 She agreed if there was any nuisance from the proposal, it would be off-site in the street, or park, not on site. Her survey also showed backpackers in groups rarely had a car. They travelled by bus or day trip coach or shuttle bus. It was singles that were more likely to have cars. A group was two or more travelling together, in her terms. If a car was purchased it was usually just before they left Sydney.

60 She said arrival and departure of coaches and mini buses after 11pm could be a disturbance at Bardo Road. The management plan required coaches and mini buses, (other than the on-site mini bus that used the basement), to drop off in Barrenjoey Road after 11pm. That could be arranged between hostel management and the tour or coach operator.

61 In cross-examination she agreed that following the survey the focus group of residents within 500 metres of the Newport site did not test the opinion of persons right next to the site, although some were close, also two objectors were included in the focus group.

62 A social survey tested the apprehensions of the locality. The survey showed overall the proposal would not be adverse to the amenity of the locality. The design of the building, the management plan, etc, were aimed at minimising impacts on immediate neighbours. She believed those impacts would be minimal and acceptable.

63 The most common on street activity of hostel patrons would be walking east on Bardo Road to and from the beach and shops and the public transport. There were no houses east of the site. The hotel was west or south, depending on people using Bardo Road or the park. If they used the park to go to the hotel they would also go and come from the east to access the park away from the houses.

64 Mr Pindar, the applicant’s traffic engineer, had the 1999 Avalon Hostel car parking survey. It showed six cars for ninety seven guests in November that year. That is one car for sixteen guests. Since 1999 modes of travel had not changed much. His recent survey of other hostels in Sydney and the Northern Beaches, showed only 10% variation. So a need for one car per five guests, as now put at the Avalon Hostel, was not believable.

65 He felt Mr Hallam’s survey was faulted by relying on daybook entries such as an X beside a person’s name. Even if the X could be relied upon, that was not necessarily an indicator of parking demand. Some cars may be in for repairs, some away touring, or sightseeing, some may only be acquired a day or two before a guest departs. Visitors to guests would park in the street. That was why he had checked pedestrians coming and going from the Avalon Hostel by day and night over twenty-four hour periods to see if they went to or from a car in the street or in the public car park opposite. He had used a video camera tape to verify the survey in exhibit F.

66 He said no car park of any facility is designed for 100% of expected peak demand. The usual rate was 85% of peak demand. He said even the council officer’s report accepted the provision of thirteen spaces on site. That was about one car per nine guests. The Commonwealth Guide set a range between one car per ten guests, or one car per twenty guests. So the proposal had better than the highest ratio of car parks recommended. His survey had included all the major coastal backpacker areas, Collaroy, Waverley, Randwick, and Manly Councils. They all had similar on-site parking requirements to this proposal.

67 He said the survey happened to show that a similar parking rate to hostels in councils’ car parking controls and the Commonwealth Guide, was appropriate. He agreed that the cars his survey showed as on-site, or, off-site, but related to the Avalon Hostel, might not be all the cars that have owners staying at the hostel. This was due to the reasons he gave earlier, such as some being repaired, some away on an excursion. He said in effect that was the whole point of the survey. In providing for parking, traffic engineers and car parking development control plans of councils, do not provide for all the cars. That is why the term, parking demand, is used. The correct professional practice is to provide parking for the appropriate number of cars that are usually present at one time.

68 Mr Heggie was the acoustic engineer for the applicant. He said there were several components to noises that might come from guests of the proposal late at night. He was satisfied that the design of the building and the acoustic buffers he had included, plus the curfew hours on outside activity in the management plan, would keep on-site noise down to levels that would not disturb the neighbours.

69 On-street noise was the one that may disturb neighbours. There is a difference between being disturbed by a noise and hearing a noise. The examples he gave was that being disturbed could be that you were woken up by a noise and could not get back to sleep, or could not get to sleep in the first place. A noise that would not be a disturbance could be; talking in the street, or a door slam that was at or near ambient noise. In such a case the human brain will often disregard such a noise, but if asked, a person could reply, “Oh, yes, I did hear that now you mention it.”

70 There are already noises in Bardo Road late at night. Just one, is that cars travel along Bardo Road at the rate of up to one per minute, even at 2am. At earlier hours cars are even more numerous. As a noise event, cars take about ten seconds to pass and when they are closest to a particular spot, say a house, the noise level is about 65 dBA for the average car. During that ten seconds the noise of the passing car will mask other noises, such as persons coming or going from the hostel and talking, or even yelling.

71 Other noises in Bardo Road would be; dogs and cats, music, radios, household equipment, persons in cars coming from and going to the flats opposite the site. He saw nine car parking spaces there at the flats. People from around the district walk along Bardo Road going from the Pittwater side to the ocean side of the peninsula. Traffic noise on Barrenjoey Road continues all night and carries over to these sections of Bardo Road that the proposal and its neighbours are in.

72 From the surveys of the Avalon Hostel, he said it was reasonable to expect on, say a Saturday night, comings and goings of about five per hour between 9pm and midnight, and three per hour between midnight and 2am. After 2am, Mr Pindar’s video survey showed nine persons returned to the Avalon Hostel between 2am and 7am. Most of them singly and all of them quietly.

73 In the comings and goings at the proposal some would be in cars entering or leaving the basement, which would not be a disturbance to neighbours. Others would be persons walking or using a taxi or being picked up by friends. The noises that could perhaps cause a noise disturbance versus just noise awareness would have to be 15 dBA or more than the ambient noise level at the time the noise occurs.

74 Also important are the nature or type of noise and its duration and its frequency of occurrence. For example, a passing car will be more than 15 DBA above the ambient level at night, but because residents in Bardo Road are used to that noise, they would not be disturbed by it and probably may not even notice it. Depending on the individual’s ears, they will discern a noise level difference of between 2 dBA and 5 dBA.

75 The management plan required visitors of guests to leave the hostel by 10pm, so any significant movement of people out of the hostel will occur before the quiet late night hours. Most persons would, according to the other expert’s evidence, go east away from the dwellings in Bardo Road. The pick up drop off point for taxis, etc. was adjacent the pedestrian and vehicle entry on the eastern side of the site away from the dwellings in Bardo Road and beside the existing commercial car park. That was where most car door closing and talking would occur, especially late at night

76 One consideration was the manager’s bedroom directly overlooked this area and it was part of the manager’s duties to control activity for the benefit of neighbours. The use of the mini bus to transport guests to and from night time venues would further reduce the likelihood of noise disturbances. The flats opposite the proposal would be about 16 metres away from those activities; the nearest house about 32 metres.

77 The site also was only metres from the traffic lights on the corner of Bardo Road, Seaview Avenue and Barrenjoey Road, which had a high rate of activity due to cars stopping an accelerating away at the lights, plus the continuous traffic on Barrenjoey Road.

78 In that noise environment there would be frequent masking of any comings and goings from the site. It would only be the occasional loud talking or yelling, or particularly heavy slamming of a car door that would get far enough above the ambient noise level, and be the type of noise that may cause disturbance, if the neighbour happened to be where they could hear it. Mr Heggie believed the acoustical impacts of the proposal would be reasonable and acceptable.

79 Mr Lattin was a local resident in Bardo Road and a supporter of the proposal. He had lived there for nearly twenty years. He said his house was further west on Bardo Road than the proposal and would be less affected than others. He said the area needed more economic stimulus, evidenced by vacant shops in Newport. He thought this proposal could assist by providing tourist accommodation in a good location. He thought the site was as good as you could get for a backpackers’ hostel. It was relatively flat land, it was on the low side of the road, it was next to a park, and the shopping centre, and next to the main road and public transport.

80 With the council’s new Local Environmental Plan for medium density flats on both sides of Bardo Road, he said the area was changing. On Bardo Road alone there was one State Environmental Planning Policy No. 5, unit development built, another to be built, and two more pending. In ten years he thought Bardo Road would be quite different.

81 In reviewing the evidence the Court has come to the following conclusions:

82 The respondent tendered a letter from the New South Wales police, Northern Beaches Division. It did not object to the proposal. It said the experience with other backpacker hostels had not revealed a pattern of high incidents. Stealing was the offence that should be guarded against, and the police attached a list of considerations for the design of the building and security and surveillance techniques and practices.

83 Some of these were included in the respondent’s draft conditions, some of them were already part of the building design or the hostel management plan. There was no reason the police saw for refusal of the proposal.

84 The other evidence showed the design of the hostel and the management plan would minimise any impacts on local amenity that may have arisen from on-site activities. The evidence showed that the source of any concerns that may be sufficient for refusal was the late night activity in the street outside the hostel.

85 Through surveys of other hostels and from the expert reports the Court accepts that there will be comings and goings on foot and by vehicle late at night. That is the nature of a backpacker hostel which houses person who are travelling for holiday purposes. Late at night on a busy night, it appears before midnight, there could be five comings and goings an hour and three an hour up until 2am, and then some will return after 2am.

86 At the 10pm curfew when guests visitors are to leave and consumption of alcohol at the hostel is to cease, there could be groups of persons leave for another venue. At 10pm the likelihood of disturbance to neighbours is less and most of the comings and goings will be towards the east, away from houses.

87 I believe there is some weight to the opinions expressed that backpackers who come to the Northern Beaches are more focussed on outdoor daytime activities and less on night life, such as those at city hostels might be. The absence of many night time venues around Newport does not give them many options in any case. The provision of the mini bus, loading and unloading in the basement, and the location of the major public bus routes east of the site away from the houses, will also assist in keeping night activity away from houses.

88 Some guests may choose to walk west on Bardo Road or across Newport Park at night, presumably going to the Newport Arms Hotel. The mini bus drop off and pick up and closing time of the hotel should minimise activity by hostel guests in Bardo Road and in the park.

89 The observation might be made, there appears to be an existing problem at times with local residents carousing on their way to existing homes in the locality along Bardo Road or in the park.

90 The fear by neighbours that guests will go into the park to drink after 10pm should be controllable by the hostel manager who will be resident in-house and able to see any guests who offend, and seek their cooperation, or expel them from the hostel. That is written in the management plan, including the reporting to police of any anti-social behaviour.

91 The council seeks a condition that a security person patrol the area for three months after the opening of the hostel to assist in this role, and that it be reviewed after that period. The applicant resisted that condition as being the manager’s role, and a security person has no authority once they are off the premises in the public domain. It seems to the court that if the hostel is near full occupancy the manager will be quite busy within the premises and may well need assistance.

92 The Court concludes that during the first year of operation, whenever the occupancy of the hostel is above fifty persons, an additional staff member be employed to assist the manager during night hours, and as necessary to patrol Bardo Road and Newport Park within 200 metres of the hostel to observe the behaviour of guests.

93 The role and need for continuation of the assistant to be reviewed at each four monthly hostel and complainant meeting, and at the end of the first year of operation the council is to be the determinant of the need to require, in terms of duties and needs, for the continuation of the additional staff member of the hostel.

94 The council sought an open mesh fence facing Newport Park to facilitate supervision. It seems inappropriate facing a scout hall, so it would only be the frontage to No. 9 Bardo Road to the park that would have the fence. But that area is behind the west wing of the building. The best view of the park is from the rear elevated deck at the first floor level above the fence and that is the likely place the manager would look from. The need for a mesh fence is not necessary or practical.

95 There was also a condition of the respondent seeking that the hostel arrange social programs and excursions etc. for the guests. The Court has formed the opinion that such activities are more to do with the individual management and promotional choices of the hostel operator and the Court should not impose such conditions.

96 It was notable that the social planning surveys of residents near other backpacker hostels did not reveal any immediate connection between a hostel and impact on local amenity, except for three persons out of two hundred. In discussing general amenity of localities, only twenty one persons out of two hundred even mentioned hostels.

97 The council’s expert social planner had no quarrel with the methodology of the applicant’s survey which was done by an independent professional agency not connected with the applicant or the proposal. The traffic concerns of the residents appear to the Court to be the result of the existing road congestion and its configuration. It is a little surprising that the council’s and the applicant’s traffic engineer do not see the same problems.

98 The respondent has proposed that coaches or shuttle buses bringing people to the hostel after 10pm and before 7am, drop off at the public bus stop on Barrenjoey Road. This does not appear unmanageable since arrangements should be possible with any coach or shuttle bus operator. At other times a “No Parking zone”, in front of the site could be used.

99 Except for the time the coach is at the, No Parking zone, the No Parking zone will keep the current commuter parking in Bardo Road away from that part of the street and give drivers a longer transitional lane when going west from the traffic lights, and changing from two travelling lanes to a single travelling lane on Bardo Road. That should be a marginal improvement in the existing situation.

100 On-site vehicles of the hostel will enter and leave in a forward direction, being able to turn around in the basement of the hostel. That will improve safety versus the existing situation where residents from the houses and the four flats on the site reverse out.

101 The number. of car parking spaces proposed are in excess of the best indicators of the appropriate provisions. Mr Pindar’s evidence was clearly the more reliable on these aspects.

102 In regard to a condition for a report on crime prevention through design and amendment at the construction certificate stage; the Court does not see a need for that, given the design as presented, and the management plan. The management plan, the Court agrees, should require a permanent on-site manager and nearby residents should have a mobile phone number which that person should answer on a twenty-four hour basis in the event of any complaint. If there is a concern due to a guest at the hostel, a quick response is the best solution for the neighbour and management.

103 The guests being made aware of the rules of behaviour in the management plan is important, and the best way is to have it form part of the registration paper the guests signs on arrival. The management plan should be reviewed by the hostel operator in conjunction with council, and any complainants on an annual basis, and the council is to determine the changes.

104 Overall there are no matters sufficient for refusal of the proposal, subject to appropriate conditions.

105 Therefore the orders of the Court are:

1. The appeal is upheld.

2. Consent is granted to a backpackers hostel at Nos 7-9 Bardo Road, Newport as shown on plans Nos A0001 to A0007 dated April 2002 all issue E by Macphail & Sproul in Exhibit C and landscape plan DAL01 by Eximia Design dated 18 March 2002, and Newport Hostel Amended Management Plan E, and Statement of Environmental Effects by Bondaci Pty Limited all as amended by and in accordance with the Conditions in Annexure ‘A’ hereto.

3. The exhibits be returned except exhibits 2, 5, 7, 8, 13, A, B, C, M.

___________________________

K G Hoffman

Commissioner of the Court

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