Castle Constructions Pty Limited v Willoughby City Council
[2013] NSWLEC 1024
•15 February 2013
Land and Environment Court
New South Wales
Case Title: Castle Constructions Pty Limited v Willoughby City Council Medium Neutral Citation: [2013] NSWLEC 1024 Hearing Date(s): 11-12 February 2013 Decision Date: 15 February 2013 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld
Catchwords: Development application: 24 hour gymnasium, amenity, security, parking, trial period Legislation Cited: Willoughby Local Environmental Plan 1995; Willoughby Local Environmental Plan 2012 Texts Cited: Willoughby Development Control Plan 2005 Category: Principal judgment Parties: Castle Constructions Pty Limited (Applicant)
Willoughby City Council (Respondent)Representation - Counsel: Mr M R Hall (Applicant)
Mr A Pickles (Respondent)- Solicitors: Mr P McLachlan
McLachlan Thorpe Partners (Applicant)
Ms K Lau
King & Wood Mallesons (Respondent)File Number(s): 11238 of 2012
JUDGMENT
Castle Construction P/L lodged Development Application 2012/363 with Willoughby Council on 3 October 2012 seeking consent to relocate the inter-tenancy wall between lot 34 and lot 38 so as to reallocate the floor space of those tenancies and fit out and occupying tenancy 34 (as altered) for the purpose of a gymnasium, which is to operate 24 hours a day, seven days a week. The Council refused consent and Castle is appealing that decision.
The contentions in the case are whether sufficient parking has been allocated to the tenancies and whether the proposed use will result in unacceptable amenity impacts to residents of the development in terms of noise, disruption, safety and security. The contentions in relation to insufficient information and the need for owner's consent were addressed through the provision of additional information during the hearing and subsequently were not pressed by the Council.
The site and its context
The site is located on the northern side of Sailors Bay Road near the corner of Timms Lane and Harden Avenue, Northbridge. The subject premises are identified as Lots 34 and 38 in Strata Plan 54400, which is part of a mixed-use development comprising of ground floor commercial units and four storeys of residential units above containing a total of 32 dwellings (SP53342). The building is known as Castlegardens.
Vehicular access to the building's basement car park is via Timms Lane at the rear of the building. A central access core with lift and stairs provides access from the basement carpark to the ground floor central foyer and entrance lobby. A second set of stairs at the southwest corner of car park also provides direct access to a colonnade area along the Sailors Bay Road frontage of the development. The main entry foyer and entrances to ground level commercial tenancies are also accessed from the colonnade.
Tenancy 38 currently has a shopfront and an entrance lobby from the colonnade at the Sailors Bay Road frontage of the site whereas Tenancy 34 has its entry from the existing common commercial foyer shared with the other commercial premises. The application provides for the alteration of the two tenancies so that they will share the entrance lobby from Sailors Bay Road however a doorway leading from the basement to the foyer provides alternate access to the site. The tenancies are currently vacant with other tenancies on the ground floor used as a medical centre, offices and shops.
In accordance with the strata plan, the two allotments are allocated a total of 11 parking spaces within the basement area.
The subject building is located within the Northbridge local centre, which incorporates a number of individual retail and commercial outlets, restaurants, services and a shopping centre known as Northbridge Plaza. On the opposite side of Timms Lane to the rear of the subject building is a detached dual occupancy development, with frontage to Harden Avenue. Properties further to the north are low-density residential development. On the opposite side of Sailors Bay Road are mixed use developments and medium density residential developments.
Background and the proposal
The proposal involves the relocation of an existing inter- tenancy wall between Lots 34 and 38. The effect of the work is to provide a larger tenancy 34 (364sqm) accessed from the colonnade. Tenancy 38 would be reduced accordingly, and also has access from a common entry foyer adjacent to the building's main entry. Tenancy 38 would be subject to future leasing and have a gross floor area of 87 square metres.
The application as lodged, proposed to use the larger tenancy 34 as a gymnasium. The fit-out involves the installation of two new showers, three toilets (including one accessible toilet) (in addition to one existing toilet and shower), new internal partitions, including one new office and a 'stretch room'. It is also proposed to erect signage within the tenancies.
Parking was to be reallocated so that tenancy 34 had access to 8 spaces and tenancy 38, 3 spaces.
The proposed gym would operate 24 hours per day, seven days per week. Staff supervision, including one on site manager, and up to two personal trainers would be provided between:
9 a.m. to 7 p.m. Monday to Thursday
9 a.m. to 4 p.m. Fridays, and
10 a.m. to 4 p.m. on Saturdays
After hours, secured access is provided to members with the use of swipe cards with no staff present. The gym will not operate classes.
The planning controls
The site is zoned 3(a) General Business under Willoughby Local Environmental Plan 1995 (LEP1995). The proposed alterations to the existing mixed use building and the proposed gym (recreation facility) are permissible with consent in this zone. The relevant objectives of the 3(a) zone are:
(a) To allow development of dwellings, offices, shops and other business premises, and other uses, which are compatible with the surrounding residential zones,
(b) To maintain existing, and to encourage the establishment of new, recreational, leisure, civic and community facilities in appropriate locations, and......Willoughby Development Control Plan 2005 (DCP) also applies to the site. The main sections relevant to the application are C.4 Transport Requirements for Development; C.6 Access, Mobility and Adaptability and C.11 Safety by design.
Willoughby Local Environmental Plan 2012 came into force on 31 January 2013. Savings provisions are contained in clause 1.8A which state:
If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
It is common ground that these provisions require the Court to consider the application under LEP1995.
The evidence
The hearing commenced on site, where evidence was heard from a number of objectors to the proposal and two persons in support. The view included inspection of the two residential units directly above the proposed gym and identified the location where acoustic testing occurred.
The issues raised by those persons is summarised as being:
·Noise and vibration;
·Inadequate car parking;
·Security concerns;
·Impact on residential amenity;
·24 hour operation, particularly without management or control over night time usage, is inappropriate within a mixed-use residential/commercial building;
·Northbridge centre is dying and a gym would be beneficial, attract appropriate persons to the area and not cause any detrimental impacts;
·Gym provides a much needed facility for healthy living;
Expert evidence was heard from:
Applicant Respondent
Traffic Mr R Nettle Mr T Rogers
Acoustics Dr R Tonin Mr M Harrison
Planning Mr T Byrnes Mr H Sanders
Parking
The traffic experts agreed, on the basis of the applicant's undertaking to re-allocated two additional parking spaces from Lot 35, which it also owns, to the proposed gym tenancy, that there would be sufficient parking available to the gym, office use associated with Lot 35 and the future tenancy of the re-arranged tenancy within lot 38 to satisfy the controls contained within the DCP.
A total of 12 spaces are required for the gym, 2 spaces for the future retail use of the amended tenancy 38 and 4 spaces for lot 35. Mr Rogers says that of the 12 spaces required for the gym, one space should be for persons with a disability and therefore, it is appropriate to rely on the disabled space shared between the commercial tenants but allocated under the strata plan to Lot 39, the council owned community facility. From the evidence provided in Exhibit F, it is apparent that it is the council's intention to provide a shared disabled space for persons utilising the commercial areas of the building. Therefore, it is agreed that only 11 spaces are required to be allocated to the gym tenancy with use of the disabled space available if and when required. Provision for the location of those spaces, and the two spaces for tenancy 38 is shown on the plan attached to Exhibit F.
Agreed consent conditions have been prepared that address the parking requirements for the development.
Acoustics
The experts agree that there are two sources of noise generated by use of the gym that potentially affect the residential floors on levels 1 and above, those being structure-borne noise and air-borne noise. They also agree, that, if not treated, structure-borne noise has the potential to be heard to a varying degree in all apartment spaces on levels 1 and above and not only the two apartments located directly above the proposed gym. In regard to the air-borne noise, they agree that it can be made to be inaudible in apartments No 7 and 8 (immediately above the gym) and therefore all apartments in the building and have specified conditions that will ensure this is achieved.
The experts are of the opinion that noise from motor vehicles used by patrons to enter and exit the car park will be acceptable.
The acoustic experts were present when testing was undertaken to determine the noise and vibration levels associated with the dropping of a 30kg dumbbell within the proposed gym. The testing was undertaken from within Unit 7, a residential unit directly above the proposed gym and included dropping the weight from two heights, 250mm and 500mm onto two surfaces, the first being the existing carpet flooring and the second onto a composite rubber mat comprising a 75mm thick FX Regupol paver with an 8mm thick Regupol Everroll topping mat.
The experts agree on the background noise levels and adopt 20dB(A), saying this level is a conservative value indicative of an unoccupied apartment without air conditioning operating. They disagree on the conclusions that can be drawn from this testing and the approach to be taken in establishing a suitable noise criterion for the operation of the gym. They do however accept that the LAmax(fast) level is the most appropriate level to be applied, particularly as there is no evidence of the likely number of noise events associated with equipment use. They also agree on conditions that should be imposed to address vibration impacts and Dr Tonin says, as a simple measure, a peak vibration velocity level of less than 0.1mm/s would be acceptable, however considers that it may not be possible to achieve, based on the available information. An agreed condition has been prepared to reflect this criterion.
Mr Harrison says the testing undertaken is an appropriate method of determining the likely impacts of the development and the choice of the dumbbell was appropriate, as it would be at the upper end of noisy equipment used. Dr Tonin said that more thorough testing should have been carried out, either at similar facilities within like buildings or by bringing more equipment to the site and simulating the gym use.
The experts disagree on what LAmax criteria should be applied. Mr Harrison referenced the EPA's draft Rail Noise Infrastructure Guideline (RING) saying that it provides guideline levels for ground-borne noise from rail activity in terms of LAmax(slow) which are not dissimilar to transient borne impact in a building. He then says that it is appropriate to consider the application of appropriate penalties to reflect the circumstances of the gym and concludes that it would be appropriate to impose a consent condition requiring that the LAmax (fast) noise from the use must not exceed 30dB(A) when measured at the centre of any room of the residence above with windows and external doors closed.
Dr Tonin disagrees and says that the RING is an inappropriate reference for noise associated with the gym and that it would be more appropriate to apply the guidance provided under the EPA's Industrial Noise Policy. He also disagrees with the extrapolations applied by Mr Harrison and concludes that the appropriate LAmax is 25dB(A) but accepts that 26dB(A) would be appropriate given that reflects the test results and the additional 1dB(A) would not be discernable.
In relation to noise and vibration, Dr Tonin was not satisfied that the testing undertaken represents a proper indication of the likely impacts of the gym and, whilst he has assisted in the preparation of consent conditions, (noting the different LAmax levels determined appropriate by each expert), he says that there is no certainty that the levels proposed could be achieved. He therefore advocates that a comprehensive testing regime be in place prior to the commencement of the operation of the gym and I accept that fact. Mr Harrison is of the opinion that, in the event that the testing identified further ameliorative measures were required, the equipment could be adjusted to ensure compliance with his recommendations.
Planning
The experts agree that the potential amenity impacts relate to acoustic impacts and issues associated with management and security. Mr Sanders maintains the site is not suited for use as a gym because, even if the recommended acoustic conditions are met, noise will continue to be audible within the residential units above. He says that there is no certainty that the conditions can be met and that intrusion by repetitive noise, particularly in the middle of the night is a real concern and contrary to the objectives of the business zone which are to ensure uses are compatible with residential uses in the locality. He is concerned that the conditions proposed, including the POM, do not go far enough, particularly when the gym is unsupervised because no one would be there to deal with any problem that arises when it occurs.
Mr Byrnes says that Mr Sanders is elevating the views of the occupants of the building to the status of public interest. He says that this is an incorrect approach as the public interest is broader and notes that the zone permits the establishment of a gym and the objectives encourage the establishment of such facilities. Mr Sanders says that a 24-hour, 7-day/week gym is not the type of use that would be envisaged in a mixed-use development.
The planning experts have reviewed the draft consent conditions and Plan of Management (POM) and, during the hearing provided evidence on those aspects that remain in dispute.
The amended draft POM and conditions, Exhibit 9, were agreed between the planners (excluding acoustic conditions discussed above) with the exception of the following matters: the need to limit the number of persons present at the gym after midnight; the need to install CCTV systems within the stairways and lobby areas; and the need for a 12 month trial period.
Mr Sanders maintains his view that the site is inappropriate for use as a gym and the application should be refused however says that if the Court were minded to approve it, it should not operate on a 24-hour basis. In the event that 24 hour use was to be approved, he says that this should be on the basis of a 12 month trial period and that there should be limitations on the number of persons attending the gym between midnight and 6am, with no more than 8 persons present.
Mr Byrnes says that it is inappropriate to limit the number of persons attending the gym after midnight as the proposed conditions will ensure the use can operate in a satisfactory manner and, if there are to be limitations, these should provide for up to 10 persons and the restrictions apply only between 2am and 5am. That is because he says the gym would provide facilities for shift-workers and persons, such as tradespersons, wishing to attend prior to commencing work at 7am. He did however admit that the proposed system to control access to the facility would not achieve its objective. My Byrnes said that there are three real issues in the case, those being parking, noise and security and that a trial period would not address these concerns. He says parking has been resolved and that the noise issue can be addressed through conditions with compliance testing of equipment required prior to the use commencing. For those reasons, he says a trial period has no application.
The evidence is that there are already security cameras installed within rhe upper carpark and the colonnade area. The applicant agrees to install CCTV within the stairways and lobby areas however, has been denied consent of the Owner's Corporation to carry out any works within common property and for this reason, objects to any condition that cannot be complied with because it involves the use of common property. Alternate wording of the condition has been proposed to encourage the Owner's Corporation to grant its consent to the work and to do so would improve security on site in the event that consent was granted.
Conclusion and findings
As the result of amendments made by the applicant to the number of parking spaces available to the gym tenancy, the experts agree that the council's DCP control for parking is met. It is apparent that there are existing issues of concern to residents of the complex in relation to the use of on-site parking spaces however, that is not an issue that can be addressed by the Court. I am satisfied from the evidence and the proposed conditions that the parking to be provided satisfies the council's DCP controls. I also accept the evidence of the traffic experts that the location of parking to be allocated to users of the gym is appropriate. This conclusion is made on the basis of the gym not offering classes.
Similarly, the issue of security has been resolved through the agreed conditions and, provided the Owner's Corporation grants its consent to facilitate the installation of additional security cameras, would lead to an improvement from the current situation. It would be desirable to increase the coverage to include the stairs however, if this is resisted by the Owner's Corporation, I am satisfied that the existing coverage would suffice.
From the evidence provided, I am satisfied that the use of the site for the purposes of a gym would be consistent with the aims and objectives of the 3(a) zone and can be granted conditional consent. Because of the location of the site within a mixed-use building, the hours of operation from 7am to 10pm, in accordance with the method of operation proposed, would be appropriate without a trial period. However, I consider that for it to operate on a 24-hour basis it is appropriate that a 12-month trial period be imposed.
A trial period would allow assessment of the suitability of the POM and provide for any additional ameliorative measures necessary. I do not accept Mr Hall's submission for the applicant that a trial period of 3 years is appropriate as this is too long to address any unresolved issues, however, I do consider the trial period can include up to 10 persons being present during the morning hours. The trial period should commence when the gym opens and the operations could continue until such time as an application for continuation of the extended hours is finally determined.
Similarly, acoustic conditions that incorporate the lower noise criteria proposed by Dr Tonin should be adopted to provide for a higher level of certainty that the gym will operate without adverse amenity impacts. It is common ground that the sleep disturbance criteria is met. The application of the 26dB(A) LAmax (fast) level provides further protection to resident's amenity, and subject to the operations meeting that criteria, I am satisfied that those impacts are reasonable.
I am also satisfied that the additional toilet and shower facilities can be installed within the tenancy without affecting common property however consider that the alterations should include the provision of accessible facilities within the tenancy rather than relying on the shared toilet off the commercial lobby area. The accessible facilities could be provided through increasing the existing bathroom area.
The Orders of the Court are:
(1)The appeal is upheld.
(2)Development Application 2012/363 to relocate the inter-tenancy wall between lot 34 and lot 38 so as to reallocate the floor space of those tenancies and fit out and occupying tenancy 34 (as altered) for the purpose of a gymnasium, is granted consent subject to the conditions in Annexure 'A' including conditions that provide for a 12 month trial period for the 24 hour operation.
(3)The exhibits, other than Exhibits 1 and A can be returned.
______________________
Sue Morris
Commissioner of the Court
ANNEXURE A[1]
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[1]Annexure A
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