CSA Architects v City of Sydney Council

[2005] NSWLEC 26

Land and Environment Court

of New South Wales

CITATION:	CSA Architects v City of Sydney Council [2005] NSWLEC 26
PARTIES:	City of Sydney Council
FILE NUMBER(S):	10064 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Modification of trading hours
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	1 February 2005
EX TEMPORE JUDGMENT DATE:	02/01/2005
LEGAL REPRESENTATIVES:	APPLICANT Mr M Fraser, barrister INSTRUCTED BY Back Schwartz Vaughan Solicitors RESPONDENT Mr S Kondilios, solicitor Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

1 February 2005

04/11295 CSA Architects v City of Sydney

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 96(6) of the Environmental Planning and Assessment Act 1979 seeking a variation to a number of conditions of consent for a consent for a property at 728 Bourke Street, Redfern, being a consent granted on 27 August 2003 by the then South Sydney Council (the former council) to the change of use of a building from a convenience store to a cafe on part of the ground floor of the existing building with seating for twenty patrons.

2 The approval which has been granted by the former council is one which operates from 7am to 6pm Monday to Friday and from 8am until 2pm on Saturdays and Sundays. The applicant initially sought a variation to extend the trading hours from 7am to 10pm Monday to Friday and 8am to 10pm on Saturday and Sunday.

3 Mr Fraser, counsel for the applicant, has conceded that an extension to 10pm on Sunday night would be inappropriate and has, in effect, limited his application to an application to alter the conditions so as to provide 8am to 10pm trading on Saturdays and 8am to 6pm trading on Sundays.

4 During the course of the proceedings, Mr Fraser also obtained instructions that, if I were minded to vary the hours more beneficially to his client than those that were provided for in the present condition but to an extent that was less than that which was sought by the applicant, his client consented to me doing so.

5 In these proceedings, I have had the advantage of the assistance of an expert acoustic report from the court appointed acoustic expert, Mr S Cooper, who was appointed in earlier proceedings (being matter number 04/11295) which proceedings purported to be proceedings pursuant to s 97 of the Act. By orders made by Lloyd J, in these proceedings, that evidence has become evidence in these proceedings.

6 Mr Cooper, in his report at p 3, raised three matters which, by implication, required addressing by way of additional conditions. They are:

• Firstly, that the existing fenestration at the Bourke Street frontage and at the front of the property adjacent to Thurlow Street should remain as fixed glazing;
• Secondly, that there needs to be some form of internal construction on the southern wall of the interior of the property in the area proposed to be used as a cafe to create a cavity wall along the present wall which is constructed without such a cavity; and
• Finally, that there would be provision of mechanical ventilation to the cafe area.

7 Mr Fraser has indicated, on behalf of the applicant, that, if I were minded to vary the hours to any extent beneficial to his client, his client accepted that those three elements should be specifically incorporated in the conditions that would apply to the consent.

8 In dealing with this appeal, I am mindful of the strictures of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 that relevant development control plans for assessing proposals that are otherwise permissible with consent in a zone, as is the case in the present proceedings, require me to utilise that development control plan as a starting point and as a focus but not the exclusive basis for the determination of the application.

9 In this case, there are two relevant development control plans, one being part E of the South Sydney Development Control Plan 1997 (the 1997 DCP) [it being an instrument that carries over to the present consideration of the matter now within the jurisdiction of Sydney City Council (the present council)].

10 At p 102 of the 1997 DCP, there are operational controls for the working hours of a development where that development adjoins a residential zone but contains non-residential activities.

11 Prima facie, the 1997 DCP requires those activities to be confined to 7am to 6pm Monday to Friday and 7am to 1pm on Saturdays with a prohibition on such uses on Sundays or Public Holidays.

12 However, there is a notation on p 103 of the 1997 DCP that development may be permitted to operate outside the above hours if it demonstrates that no detrimental impact will result to the amenity of the residential uses. It is necessarily implicit from the former council already having permitted hours that are outside those prescribed by the 1997 DCP that the former council itself accepted that under some circumstances it is appropriate for the presently proposed development not to be bound by the strictures of the 1997 DCP. This is a proposition that I accept for the purposes of my consideration of compliance with the 1997 DCP of the altered hours proposed by the applicant.

13 The second development control plan which is relevant is Development Control Plan 11 Transport Guidelines for Development (DCP 11). Mr Kondilios, solicitor for the respondent, took me to a number of the provisions of DCP 11. It is clearly a development control plan designed to discourage over-provision of on-site parking for developments. Not only is that reflected in the general preambular material to which Mr Kondilios took me to at 1.3 of DCP 11 but it is specifically dealt with in 3.2 of DCP 11 which, in effect, demonstrates that over-provision of parking, in the current council’s assessment, may result in other penalties.

14 I am satisfied, as noted in the tendered documents of assessments from council officers, that the provision of on-site parking for the development is in satisfaction of the provisions of DCP 11 and that, other than being satisfied that there is no need for additional on-site car parking for this development, DCP 11 is of little assistance to me in these proceedings.

15 The matters that are the crux of this application are, in effect, summarised by the statement of evidence provided by Mr Stuart Carr, a statutory planner employed by the respondent, and are summarised at the foot of p 14 of his statement of evidence at 5.17 and 5.18.

16 They are:

• firstly as to whether there will be additional demand created for on-street parking in the vicinity by the extension of hours with any such on-street parking demand creation causing an unacceptable impact on the residents of the surrounding area; and
• secondly would extended operating hours cause noise which would affect sleep disturbance events causing disruption to the domestic tranquillity of the residents.

17 In the course of assessing those two matters, which are at the heart of the application, I had the benefit this morning of hearing the evidence from seven of the residents in the vicinity and I have been provided with a helpful set of notes prepared by the solicitor for the respondent, together with some additional commentary in a different handwriting, expanding on that on behalf of the respondent in one aspect.

18 Of those residents, two were resident in Bourke Street and five were resident in Thurlow Street - they being the relevant portions of the precinct within which the site is located.

19 Essentially the objections of the residents which are relevant in these proceedings are the two identified by Mr Carr as set out above.

20 The assessment of the evidence given on behalf of the applicant relating to those matters is noted by the applicant’s planning expert, Mr P Le Bas, at p 8 of his statement of evidence but it is essentially derived from the expert witness statement of TEF Consulting, that being the traffic engineering consultancy retained by the applicant.

21 Mr Sannikov’s statement of evidence (he being the principal of TEF Consulting who prepared the document), coupled with the analysis of Mr Carr and his statement of evidence of the traffic impacts form, in my view, the crux of the matters that I am required to consider.

22 The factual information from Mr Carr is set out in four tables that are in map form which form as attachment B to his report.

23 The material which is put to me in tabular form from Mr Sannikov appears at pp 5 and 6 of his statement of evidence and is referenced by maps on pp 4 and 6 of his statement of evidence.

24 Unfortunately the areas that are surveyed by Mr Carr and Mr Sannikov are not identical, however, those surveyed by Mr Carr and those surveyed by Mr Sannikov on 26 and 27 March 2004 are broadly comparable save that Mr Carr incorporates an area in a laneway to the north of Charles Street at its western end and that area is not incorporated by Mr Sannikov in his earlier analysis. That extra area involves, on Mr Carr’s evidence, an area of some fourteen car parking spaces, all of which are totally occupied at all relevant terms and can, in my assessment, be safely disregarded for the purposes of making a comparison between the two sets of information.

25 Mr Sannikov also, on p 6, undertook a parking survey on the evening of Friday 14 May 2004 across a broader area than the area dealt with in his earlier survey, or in the survey areas undertaken by Mr Carr.

26 Mr Fraser has pressed that I should have regard to that broader area as it is within reasonable walking distance of the residences in Thurlow Street.

27 The areas in this wider catchment surveyed that differ from the narrower compass are that the later material produced by Mr Sannikov include parking spaces on the western side of Bourke Street to the south of Maddison Street and his figures for his area 7 includes some spaces that are within and some spaces that are not within the comparable tables earlier in his report. The totality of the areas along Maddison Street to the east of Stanley Street and the totality of parking available in Stanley Street and in Maddison Lane; the totality of parking available in Boronia Street; the totality of parking in the unnamed laneway to which I earlier referred; parking in Charles Street to the east of Stanley Street, and parking in Thurlow Lane and in a portion of Stanley Street - those being, on my examination of his table, the totality of the parking spaces in the areas 11, 12, 13, 16, 17, 19 and 22 and by necessary implication some of the parking spaces in areas 7, 18 and 20. I say that because, at one of the times that I consider critical and to which I will return in more detail in comparing the analyses of the relevantly comparable material, (that is at 7 o’clock on Friday evenings) up to thirty one of the thirty six vacant parking spaces in the table on p 6 of Mr Sannikov’s report, appear to be in areas not included in the tables on p 5 of his report. I say “up to” because portion of areas 7, 18 and 20 may well be applicable to a comparison but I am unable to draw the relevant inference. However it is certain, I am satisfied, that a significant number of the parking spaces that are described as free at a time I consider relevant - namely 7 o’clock on a Friday evening - are within an area that is excluded from comparative material in the earlier tables and is excluded from the material in Mr Carr’s tables.

28 The council prepared a number of assessments of the proposal and Mr Fraser quite properly drew my attention to a comparison between p 7 of what I might describe as the draft assessment of November 2004 and the finalised assessment of November 2004 with the detailed areas appearing on p 7 of the two relevant documents.

29 Mr Kondilios also quite properly drew my attention to the fact that officers of councils at varying levels are entitled to reconsider opinions and to have differences between them and the fact that something is in a draft report ought not act to significantly prejudice the position of the council as finally determined to be appropriate.

30 The comparison between the two documents, however, under issue one - on-street parking demand, exhibit a degree of consistency rather than inconsistency. The first, second and third paragraphs are in identical terms. However, although the draft concluded that there would be a modest impact and the finalised document concluded that there would not be effectively a modest impact, are not necessarily entirely incompatible, also if one reads through it in detail.

31 It is true that there is, as the draft stated, some spare on-street parking capacity within walking distance during operating hours and there is already a scarce supply of on-street parking, what is required for me to determine is whether the differences between the number of parking spaces presently demanded by the lawful uses in the vicinity and the present restricted hours of the proposal would be sufficiently adversely impacting on parking if the extended hours of operation were to be permitted.

32 The relevant materials that particularly causes me to draw conclusions concerning saturation of parking demand are the tables in Mr Sannikov’s report on p 5.

33 The first of those, which deals with Friday evening, clearly demonstrates that there is a consistent basis of vacancy in parking spaces in the relevant area. Out of a total of 107 parking spaces in the more restricted catchment, approximately a third of those parking spaces, as a minimum, are vacant until 7 o’clock at night. It then declines to approximately a quarter and after some time between 8.30 and 9 o’clock further diminishes quite radically to four parking spaces available in the area and then between four and ten spaces until half past ten at night.

34 A similar position applies on Saturdays from approximately 6 o’clock and undergoes a further dramatic alteration at approximately 7.30pm.

35 It is also the applicant's case that the patronage for the proposed cafe is likely to be drawn significantly from the surrounding residential area rather than from persons coming from outside the area. There is support for this contention in the council documentation.

36 However, I am not satisfied that the totality of the patronage will be drawn from the local area and, as a consequence, I have concluded that, nonetheless, there will be some additional vehicle movement into the area - although probably not the maximum of such movements if all patrons were to arrive by car.

37 It is therefore necessary to consider whether any additional vehicle movement and resultant parking demand during the proposed extended trading hours is appropriate.

38 I will deal later with the question of whether the demands on parking should be confined to those in the narrow vicinity canvassed in the two reports or in the wider area also canvassed in the applicant's report.

39 I have considered whether, and at what point, the changes ought to be regarded as turning the available parking spaces in the area to such a restricted state as to warrant me concluding that they are at saturation or capacity.

40 Just as economists postulate that full employment does not mean zero unemployment, I think it is reasonable for me to assume that saturated parking capacity or full parking capacity does not mean zero availability of parking spaces in the area. It means a sufficiently low number of parking spaces in the area that for residents, rather than external patrons, there would need to be an unreasonable hunt for them to undertake to find a parking space.

41 As a consequence of that, I have come to the conclusion that on the evidence of Mr Carr and Mr Sannikov, it is reasonable on weekday evenings to assume that the time when those conditions reach such a cusp as to be turning from an acceptable level of parking within the narrower areas defined by the parking surveys to an unacceptable level is later than the 6 o’clock presently proposed to be permitted by the council but is certainly not as late as that sought by the applicant.

42 I have carefully considered whether that turning point should be, taking from table 2.1 of Mr Sannikov's report and a consideration of the material contained in the four attachments to Mr Carr’s report in attachment B, whether that should be at 7 o’clock in the evening or at 8 o’clock in the evening. On balance, it would be prudent for me to adopt the earlier time to enable an assessment over a period of time as to whether that assessment on my part is accurate or not. If over a period of time that the impact were to be demonstrated to be insignificant, the material that is presently provided by Mr Sannikov might provide some further basis for a further modest expansion of trading hours. However, on balance at the present time, I am not prepared to do that until there has been a period of trading of the café on those new hours.

43 I am not prepared to make any assessment on the basis of the wider area proposed by Mr Sannikov for two reasons. The less important is because a valid comparison cannot be made with Mr Carr’s material and I have thus no means of undertaking a proper assessment of the validity of his limited sample. The more significant reason is that the distances required to be walked to the relevant residences would, in this closely settled area, reasonably be regarded as inappropriately far – particularly with shopping or children.

44 As a consequence of my conclusions on the parking impact, it is unnecessary for me to deal with the issue of possible sleep disturbance to residents if the extended hours were to be permitted.

45 I therefore direct the parties that revised conditions to be drawn up and settled between the parties and filed with the Court, that the evening trading hours should be extended to 7pm on Monday to Friday.

46 I turn to the issue of the extension of trading hours on the weekend. This material is of a much more limited basis and necessarily is derived from the material set out on p 5 of Mr Sannikov’s report at table 2.2.

47 It is quite clear to me that there is a significant turning point in the nature of the parking demand at least at 6 o’clock on Saturday night. The present trading hours that are conditioned would require the cessation of trading of the cafe at 2pm. I consider that it is perhaps, simply from drawing on a commonsense approach, unreasonable to expect that patrons who might be having lunch at the café to cease doing so at 2pm and I am satisfied that a modest expansion of the trading hours would be appropriate to that.

48 There has been significant evidence given by the local objectors as to what one might describe as informal (and perhaps unlawful) uses of the street as play areas for the children, that is those of the neighbourhood and visiting the neighbourhood. This play use is to be balanced, in my assessment, by the availability of open space in Moore Park nearby.

49 However, I am not satisfied that the extension which is warranted on Saturday afternoons and Sunday afternoons should be such as to remove the opportunity for some quiet enjoyment of those areas by residents. Moreover, the table for parking clearly for Saturday afternoon demonstrates that there is a change in parking availability from 4.30 or 5pm onwards and I am prepared to conclude on this basis that it would be appropriate to permit an extension of trading hours until 5pm on Saturday afternoon.

50 In the absence of any evidence at all dealing with Sunday afternoons, I am not prepared to vary the trading hours on Sundays other than to the extent that is, on a commonsense basis, logically necessary to provide a reasonable opportunity for lunch time trading to the premises. I therefore propose that the condition relating to trading on Sundays should be extended to permit trading until 2.45pm on Sundays.

51 In summary, this decision will provide amended trading hours until 7pm Monday to Friday and until the later hours that I have indicated on Saturday and Sunday.

52 Mr Fraser having had instructions on behalf of the applicant to permit me to issue orders reflecting those elements, I direct that the council prepare and settle with the applicant conditions which reflect the matters that Mr Cooper has suggested should be incorporated in the conditions of consent, together with the variations that I have indicated are appropriate this afternoon.

53 I direct that those conditions be filed electronically as a rich text format document. I direct that those be filed by 5pm on Friday 11 February. When they are filed, and I have confirmation from Mr Fraser’s instructing solicitor that they are agreed conditions, I will issue orders in chambers to give effect to my decision. The exhibits are returned.

Tim Moore
Commissioner of the Court