Don Hodge Group Pty Ltd v Liverpool City Council

[2004] NSWLEC 197

Land and Environment Court

of New South Wales

CITATION:	Don Hodge Group Pty Ltd v Liverpool City Council [2004] NSWLEC 197
PARTIES:	APPLICANT Don Hodge Group Pty Ltd RESPONDENT Liverpool City Council .
FILE NUMBER(S):	11072 of 2003
CORAM:	Moore C
KEY ISSUES:	Development Application :- Antisocial behaviour Noise Impact on neighbourhood .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 .
CASES CITED:	Stokeston Projects Pty Limited v Liverpool City Council [2003] NSWLEC 185 ; .
DATES OF HEARING:	5 and 6 February 2004
EX TEMPORE JUDGMENT DATE :	02/09/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr G Newport, barrister INSTRUCTED BY J P Lawyers RESPONDENT Mr P Clay INSTRUCTED BY Marsdens Law Group

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11072 of 2003

Moore C

9 February 2004

Don Hodge Group Pty Ltd

Applicant

v

Liverpool City Council

Respondent

Judgment

1. This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act, 1979 (the Act) against the refusal, on 18 August 2003, by Liverpool City Council (the council) of development application 570/03 for reasons set out in the notice of determination. The notice set out seven reasons for that refusal and they are largely reflected in the Amended Statement of Issues filed for the council on 25 November 2003.

2. However, the issues that are in contention boil down to two issues raised on behalf of the council. The first of them is whether noise from the car park of the proposed development would be acceptable - there being no issue with respect to noise from the building (even in circumstances when entertainment was being provided within the building). The second issue is the behaviour impacts on residents from external activities from patrons, that falling into two components. The first aspect of this issue is of any antisocial activities which might be carried out by patrons and, the second aspect concerns any legal but disturbing activities that might be carried out by patrons. A single further separate issue was raised by several of the objectors concerning the possible adverse economic impact on the takeaway food store or on the Totalisator Agency Board agency - both operating in the shopping centre opposite.

3. During the course of the assessment and determination process by the council, the application went through an independent hearing and assessment process which, on 24 March 2003, recommended approval subject to conditions. The proposal is for a single storey hotel with an external children’s play area; substantial restaurant area and parking for some sixty eight vehicles. No issues as to design or adequacy of the building arise, although the applicant has accepted a wide ranging set of recommendations by Ms J Manion, a social planner called on behalf of the applicant, who made recommendations concerning security matters for the premises. These recommendations are important in the context of this decision and will be discussed in some detail later in these reasons.

4. The site is at 37 Governor Macquarie Drive, Chipping Norton, and comprises Lot 611 DP 790412. It has an area of approximately 5500 m2, a frontage of ~ 50 m to Governor Macquarie Drive, and a depth of ~ 110 m. Drainage easements and flood affectation impact on the allotment but do not give rise to any issues in these proceedings.

5. The issue of access was dealt with during the course of the proceedings by an agreed redesign of the access point so as to offset the single access entrance and exit area to avoid any conflict with the entryway to the shops opposite. There is, as a consequence, no issue requiring determination with respect to access to or egress from the property.

6. The area to the east of Governor Macquarie Drive, in which the property is located, is an industrial area with a number of transport depots. The uncontradicted evidence of residents is that activity levels for pedestrians and business use, in the immediate area of the site, are negligible after 7pm, although there is, as discussed by the applicant’s traffic expert, some considerable traffic passing on Governor Macquarie Drive.

7. To the west of the site, there is a single storey row of shops from the corner of Alfred Road south along Governor Macquarie Drive containing some five or six shop frontages, depending upon how many shop numbers might be counted for the bicycle shop. These included a local TAB agency. There are then, in a separate building, four shops with two residences above. A small U-shaped urban park known as Webster Park surrounds this development. There are single residences to the south towards Coolarn Street.

8. Webster Park, which surrounds the island shopping complex, has a straight path to its south from Governor Macquarie Drive to Bungarra Crescent, and a dogleg path to its north from Governor Macquarie Drive to Bungarra Crescent. There is a children’s playground area located at the rear of the shops and there is some limited picnic table seating available in Webster Park.

9. Bungarra Crescent runs from the west toward Governor Macquarie Drive and, immediately behind the shops, in the vicinity of Webster Park, turns to run to the south parallel to Governor Macquarie Drive. There is a bulb cul-de-sac to the immediate northeast of Webster Park and there is, at some distance to the south along Bungarra Crescent, a pre-school - but no issues of significance arise with respect to it in these proceedings. Mr Randall, who was an objector, gave evidence that he owned but was not the occupant of a house in the eastern portion of the cul-de-sac adjacent to Webster Park.

10. The first issue that comes to be determined relates to noise from patrons using the car park and whether that provides sufficient or any affection on the residents opposite. Expert evidence was given on this issue by Mr S Cooper, an acoustic engineer. His evidence on these matters was uncontradicted. His evidence was to the effect that car doors would not disturb residents located opposite (tested against the appropriate EPA sleep disturbance standards), even if the car park were at grade with Governor Macquarie Drive and with no intervening wall or landscaping.

11. There is no need to go through the full technical issues and evidence given by Mr Cooper on this issue, but it is sufficient to say that his evidence is logical and coherent, and unshaken in cross-examination by Mr Clay, counsel for the council. I accept that, even if the car park were at grade, there is no likelihood of any injurious affectation by car park noise on the residents located opposite. Indeed, Mr Cooper’s calculations being based on a car park which is at grade, the likelihood of such affectation is made more remote by the uncontradicted evidence on behalf of the applicant that the car park will be set somewhat below the footpath pavement level in Governor Macquarie Drive with a wall of some 1 to 1.2 m along the frontage, and the landscaping plan showing that there would be additional landscaping (except, obviously, through the driveway area), all of which would add further amelioration to any noise that might be emitted by patrons from the car park. There is, therefore, no basis for refusal founded on noise made by patrons and their vehicles in the car park.

12. The second vehicle noise aspect relates to vehicles exiting the car park. As the car park will be somewhat lower than the road, the vehicles will need to exit up a ramp. It was Mr Cooper’s evidence that it would be a requirement that the ramp would cease or top out within the property and that there would be a level passage from at least the edge of the property onto the carriageway. It was also the agreement between Mr Smith, the town planner called on behalf of the applicant, and Mr Brown, the town planner called on behalf of the respondent council, that there was not likely to be any parking on site for vehicles that were greater than three tonnes or so in size, and that there would certainly be no truck parking on the site.

13. There was a traffic count undertaken on behalf of the applicant which showed that the seven day averages of vehicle movements passing on Governor Macquarie Drive between 10 and 11pm were two hundred and fifty four vehicles, and between 11pm and midnight, one hundred and eighty seven vehicles - they being the total north south and south north vehicles movements in each instance.

14. The effect of Mr Cooper’s evidence concerning exiting vehicles was that, given the background noise levels of passing traffic, the noise of exiting vehicles was unlikely to cause adverse impacts on residents opposite. Again, there was no contradiction of this evidence by expert evidence on behalf of the council. As a consequence, I am satisfied, accepting Mr Cooper’s evidence, that there is no basis for refusal founded on traffic exiting the car park.

15. The issue then arises of the possible impact of antisocial behaviour. Mr Newport, counsel for the applicant, used the expression “perceptions of impact on amenity.” I am satisfied that the appropriate approach is not to assess perceptions of impact on amenity but to address the question of whether there is a reasonable probability or apprehension of such impacts and, if so, whether such impacts are unacceptable.

16. In this regard I note that the conclusion of the Independent Hearing And Assessment Panel (the panel) was:

“With respect to antisocial behaviour, such behaviour is the responsibility of the operators of the establishment and the relevant State authorities. Antisocial behaviour is not itself an issue for consideration by council in the assessment of this application. Council is entitled to assume that the operation of this hotel will be conducted according to the law and if any antisocial behaviour occurs, the appropriate authorities will become involved.”

17. It is my view that this statement by the panel is simply inaccurate and that s 79C(1)(b) of the Act requires me to have account, inter alia, of the likely impacts of that development including social impacts in the locality.

18. The issue that then arises is to what standard should I apply when assessing this issue. It was Mr Smith’s evidence, in cross-examination, that “good security can never eliminate occasional acts of antisocial behaviour.” I have considered whether the test should be, if there is no present impact, is any such impact then unacceptable? This would lead, on the basis of Mr Smith’s quite proper concession, to an automatic refusal of the application. Or is the test one which asks the question - If there is no present impact, is the reasonably foreseeable impact sufficient to be unacceptable?

19. I am satisfied that the appropriate test to be applied is the second rather than the first. I have reached this conclusion for a variety of reasons, including that the site is zoned industrial and it is reasonable to expect some future development to take place on it. Any future development, of necessity, will generate some traffic noise and possible after hours impacts. The proper test to apply is whether any antisocial behaviour and other impacts on residents, when taken together, is such as to warrant refusal.

20. I am satisfied that as a general proposition, the onus lies on the applicant to satisfy the Court that it is acceptable and that this would arise if there is some prima facie evidence that the proposal might cause unacceptable impacts. Mr Smith’s proper concession is the starting point, as is the concession derived (by necessary implication) on page 7 of the statement of evidence of Ms Manion, where she says, “While the occurrence of antisocial behaviour is linked with the presence of a hotel, the character and proposed management practices of the hotel proposed means that it is unlikely to result in significant increases in antisocial behaviour.” The statement that there is unlikely to be significant increases in antisocial behaviour necessarily contains the concession that there will be some increase in antisocial behaviour.

21. During the course of the proceedings, I noted that the hearing commenced with a view and the taking of objectors’ evidence on site. There was tendered, subsequently in the proceedings, an agreed summary of evidence undertaken on site and given by the residents.

22. The evidence was given firstly by Mr Lagoutaris, who is a resident of 42 Governor Macquarie Drive. He lives above the shops in the southern of the two residences above the shops directly opposite the site. Mr Lagoutaris and his brother built the shops and each lives in one of the apartments. He expressed concern at the behaviour of the patrons who would leave the premises and as to the likelihood of the possibility of littering, vandalism and violence such as breaking of windows. He gave evidence that he picks up rubbish in the area, particularly in Webster Park, every morning, that this included beer bottles being left in the park, and that the council had provided him with equipment to handle and remove the rubbish. It was also his evidence that after six or seven o’clock at night the area was not busy.

23. Mr Randall, whose owned premises were noted earlier, indicated that he was concerned about litter and disturbances in the park.

24. Mr Catalana, who is the proprietor of the newsagent in the Lagoutaris shopping complex, is concerned at the possibility of vandalism of his newspapers and general antisocial behaviour of patrons opposite the proposed hotel. I would indicate that, with respect to Mr Catalana’s concerns as to vandalism of his newspapers, given the times that he indicated in his evidence, I do not accept that that is a real risk faced.

25. Ms Matape gave evidence concerning a decision of Lloyd J in Stokeston Projects Pty Limited v Liverpool City Council [2003] NSWLEC 185 that related to premises in Wattle Grove. I indicate that I do not find that decision of any assistance in dealing with the subject site, as that decision was confined entirely to the facts applying to that site. Issues of precedent do not arise.

26. Ms Rong also gave evidence, as did Ms Margaret Gale, the proprietor of the TAB Agency. She gave evidence that the area was quiet in the evenings and that she did not open in the evenings as there was no significant demand for her services. She also gave evidence (of a hearsay nature) concerning a crime problem near the lakes at Chipping Norton. I take no note of that as it is not borne out by any independent evidence and does not relate to the particular site. However, she did give uncontradicted evidence that the area surrounding the present site had not experienced crime of the nature of which she complained happened near those other premises.

27. Mr Brown also gave evidence that the takeaway patrons use the picnic tables in Webster Park for the consumption of foodstuffs bought at the takeaway food shop, and he expressed the opinion that it was not appropriate to remove those tables.

28. A variety of matters were relied upon by the applicant as responding to the possibility of antisocial behaviour occasioned by departing patrons at or shortly before closing time of the premises, that being the time period, as I apprehended it, of greatest concern to the resident objectors.

29. Firstly, there was the general evidence of Mr Smith, the evidence and conclusions of Ms Manion, and, of some importance, a letter from the New South Wales Police Service which is dated 29 May 2003 and authored by Sergeant Grove-Jones, the licensing supervisor of the Liverpool Local Area Command. The sergeant’s letter, on its opening page, reads in the first four paragraphs:

“As per our previous meetings and discussions I have completed a Crime Prevention Through Environmental Design Evaluation for the proposed Hotel site at 37 Governor Macquarie Drive, Chipping Norton, and the surrounding area and facilities.

During this evaluation it was revealed that the proposed site is in the area where there are minor types of crime occurring. These types of crime include:


· common assaults,
· malicious damage to vehicles and property,
· stealing from motor vehicles and
· various traffic related offences.

The evaluation also indicated that the types of crime occurring at the present time would in all probability remain the same. However, if the Hotel is to be built as per the supplied plan, there is a demonstrated likelihood that these types of crime will increase in the area as a result.

The design and layout of the proposed building has been examined and it is envisaged that, if built to plan, the premises itself would not greatly contribute to an increase in crime.”

30. The letter continued to indicate that the police do not have an objection to the construction of the premises, but that, as a consequence of their Crime Prevention Through Environmental Design Evaluation, the police did make six recommendations that, in their opinion, would impact greatly on the likelihood of an increase in crime. The first four of those are not relevant in the present proceedings but the fifth and six are and they read as follows.

“The evaluation of the area surrounding the proposed site also indicated the small park directly across the road as a potential site for crime against Hotel patrons travelling to and from the premises on foot. To reduce this risk it is recommended that the vegetation within the park be pruned, the lighting improved to allow for clear sight lines for pedestrians. It is also recommended that all facilities within the park be subject to renovation and a maintenance programme for the area commenced.

Consideration should also be given to some of the shops opposite the proposed site, in particular food shops, increasing their trading hours to reap the rewards of food supply to patrons leaving the hotel premises.

This situation may result in patrons congregating in the car park of the shops and in the park itself, causing undue additional noise for nearby residents. To combat this situation it is recommended that no formal seating or objects that may be used for seating be located in the vicinity of the shopping centre, car park or the park itself, which should encourage patrons to move on.”

The closing conclusion of Sergeant Grove-Jones was:

“It is felt that the community and residents of Chipping Norton would benefit from the creation of the proposed premises, provided the above mentioned points are taken into consideration and acted upon.”

31. It was Mr Smith’s concession, as noted earlier, that good security can never eliminate occasional acts of antisocial behaviour. However, as part of the proposal by the applicant, there is an intended plan of management to deal with security matters. A draft of the proposed plan of management was provided to the council and included in the Statement of Environmental Effects.

32. The draft plan of management, which is before the Court, is an edition as at January 2004 and provides, in Part 7, for the behaviour of patrons and, in Part 8, for the operation of security staff. The relevant clause concerning this issue would appear to be clause 10(b) which reads:

“The licensee and the staff shall take all reasonable steps to control the behaviour of patrons of the hotel as they enter and leave the premises. In this regard the licensee:

………..

(b) shall assign staff or security persons to ensure that patrons in leaving the hotel and its car park do so promptly and as quietly as is reasonably possible.”

33. Under the heading of “Security staff” in clause 13(ii), the draft plan of management provides that in addition to the duty manager (who would be a licensed security agent):

“(ii) There shall be uniformed security personnel at and in the vicinity of t he hotel from sunset on any evening when the hotel trades until all patrons have left the vicinity of the hotel. The personnel shall carry out the security procedures in accordance with clause 14 hereunder.

(iii) The licensee shall ensure that the number of security personnel on duty pursuant to (ii) above shall not be less than one but that when the number of patrons present exceeds 150, one additional person shall be on duty for each additional 100 patrons or part thereof present in the hotel or its carpark.”

34. During the course of the proceedings, the applicant offered an amendment to that portion of the plan of management to ensure that the additional number of security personnel would be one for every one hundred persons or part thereof.

35. Clause 14 sets out a range of matters that these uniformed security personnel are required to undertake, the relevant ones of which are contained in clauses 14(e), (i), (k) and (l).

Subclause (e) provides that:

“Such security personnel shall at random and at least every half hour during the nominated hours of duty patrol along Governor Macquarie Drive as far as Alfred Road in the north and Coolarn Street in the south. More frequent patrols are to be conducted if management or the security personnel deem it necessary.”

I note, parenthetically, that the applicant also offered to extend the nominated security patrolling to Webster Park.

Subclauses (i), (k) and (l) provide that such personnel shall:

“(i) prevent patrons leaving the curtilage of the hotel with open drinking containers and prevent patrons leaving the hotel with such containers without good reasons.

(k) at closing time, monitor patron behaviour in the vicinity of the hotel until all patrons have left the vicinity of the premises, taking all practical steps to ensure the quiet and orderly departure of patrons.

(l) collect any rubbish on Governor Macquarie Drive and the area patrolled that may be associated with the hotel’s operations when final patrols are being conducted.”

36. Ms Manion provided a written statement of evidence and underwent extensive cross-examination concerning it. In his closing submissions, Mr Clay invited me to disregard Ms Manion’s evidence as useless because it was “based on faulty, flawed assumptions in her analysis.” I do not accept Mr Clay’s invitation for reasons which will be apparent.

37. Ms Manion’s assumptions and basis of study were undertaken by a desktop analysis of the available literature and other information, together with a single site inspection and her assumption as to the character of the proposed premises. She quotes in her written statement of evidence at page 7 material from a study by Homel, Thomsen and Thommeny, a 1992 publication in the Journal of Drug Issues entitled “Public drinking and violence, not just an alcohol problem.”

38. This publication, she says, identifies four discrete places where alcohol related assaultative violence takes place. These locations are:

• Certain locations outside but around hotels and clubs - These areas are identified as areas where patrons congregate following closing time as a result of bottlenecks, unavailability of transport, or the mixing of patrons from a number of hotels or venues.
• “Territorial hotels” characterised as venues frequented by irregular clientele often conforming to particular dress or behavioural codes, for example, motorcycle gangs, punk rockers etc;
• “Workingmen’s” hotels - Hotels frequented by working men: and
• Popular, predominantly young patronage premises where there is live music late trading hotels - Hotels frequented by younger people.

39. Her conclusions with respect to the present site having set out those four characteristics is that:

“The proposed hotel does not readily fit any of the above criteria, being described as a family oriented hotel. The aim to achieve this character is reflected in its design, particularly the provision of an outdoor children’s play area and its management practices. While the hotel is located within an area providing a significant range of professional services to truck drivers, this group are unlikely to make up the majority of patrons, given that they are required to maintain a zero blood alcohol level when driving.

While the occurrence of antisocial behaviour is linked with the presence of a hotel, the character and proposed management of the hotel proposed means that it is unlikely to result in a significant increase in antisocial behaviour.”

40. During the course of cross-examination, she was questioned as to the assumptions she had made concerning the premises. A number of those are relevant in these proceedings. Firstly, she indicated that she had assumed that the premises and its patronage would be small compared to hotels such as the Coogee Bay Hotel. She had assumed that there would be some one hundred and fifty to two hundred patrons present, and that she had calculated that by approximately doubling the number of car parking spaces provided.

41. She had not made an assessment as to the number of persons capable of being hosted on the premises by an examination of the facilities provided for in the plan. She had assumed that as a result of its design incorporating a playground that this was a family friendly area.

42. She recollected that she had read the Statement of Environmental Effects and noted that entertainment might be proposed to be provided and she had certainly assumed that in the long term there would be live bands at the premises. She had not assessed the impacts of noise which might disturb sleep but which were not antisocial. As a consequence of the last point noted, I have not had regard to her evidence when I have considered this issue.

43. What then are the actual expected numbers for the premises? The first area in which there is no disagreement between Mr Smith and Mr Brown (which concurs with the general evidence of Ms Manion on this point) is that there is not likely to be any significant patronage of the premises by truck drivers.

44. The second point is that it was Mr Smith’s evidence that:

• the maximum number of patrons likely on the premises on a regular basis would be three hundred to three hundred and fifty;
• peak evenings would be Thursday, Friday and Saturday nights:
• on those evenings, some one hundred and fifty to two hundred patrons might be expected on an ordinary Saturday night; and
• the great bulk of patrons would be from the Chipping Norton area.

45. A consideration of the Building Code of Australia restrictions, particularly as to the width of safety doors when applied to the design of the premises, means a maximum of four hundred and fifty to four hundred and eighty people are capable of being permitted on the premises.

46. Ordinarily, Mr Smith would expect thirty five per cent of patrons to have driven themselves; a total of forty five per cent of patrons to have come by private vehicle and that, as a consequence, fifty five per cent or so of patrons would either come by a bus run by the hotel, by foot, by taxi or by public bus.

47. It was also his evidence that, on up to five or six occasions per annum, there might be four hundred and fifty to five hundred patrons present for special events. When such special events occurred, the ratio of patrons coming to the hotel by the various means cited would vary and it was likely that, as a consequence of car pooling and the like, there would only be some fifteen to twenty five per cent of patrons would come by bus, foot, taxi or bus operated by the hotel.

48. A consequence of accepting that evidence, which was uncontradicted, was that one would expect, in all likelihood, that some one hundred to one hundred and twenty five people on a regular basis to arrive either by bus, foot, taxi or hotel operated bus. Ms Manion’s evidence should be assessed against this factual evidence which I have accepted from Mr Smith.

49. Ms Manion deals with a variety of circumstances. On page 6 of her report, she deals with the potential increase in the occurrence of drink driving and concludes (without setting out her material at length) that implementation of the plan of management measures are likely to “further minimise the potential occurrence of drink driving as a result to the presence of the hotel.” Absent any evidence to the contrary, I am satisfied that there is no basis on the incidence of drink driving to refuse the application.

50. Ms Manion also deals with the issue of antisocial behaviour on page 6 of her report, quoting from or citing a study by Stevenson in 1996 from the New South Wales Bureau of Crime Statistics and Research entitled The Impact of Alcohol Sales on Violent Crime, Property Destruction and Public Disorder. She says that Stevenson identified a number of factors which influenced the frequency of these types of crime in relation to hotels in particular which should be considered in this instance including that:

• The incidence of violent crime, property destruction and public disorder increases with the total volume of alcohol sales by postcode;
• The increased likelihood for crimes to occur between 10pm and 2am;
• The increased likelihood that crimes will occur where takeaway liquor can be purchased;
• The speed with which patrons disburse [sic] following the closure of the venue;
• The SEIFA for a particular postcode [SEIFA being an abbreviation for Socio-Economic Indices for Areas provided by the Bureau of Statistics].

51. She continued:

If these factors are considered in relation to this proposal we can conclude that the likelihood of the occurrence of antisocial behaviour as a result of the hotel as described is at the lower end of the spectrum in terms of its potential to increase crime on the basis that:
• The proposed individual outlet is comparatively small and will serve a low volume of alcohol.
• The opening hours of the proposed hotel mean it will closed for the majority of the prime crime times identified.
• Sale of takeaway liquor will be limited to over the counter sales.
• Security measures are designed to supervise the timely disbursal [sic] of patrons following closure.

52. She then continued with the Homel characterisation material earlier quoted.

53. Based on her review and her assumptions, she proposes a variety of mitigation measures for the premises and she does so in the context of undertaking a Crime Prevention Through Environmental Design examination on a similar basis to that noted in the letter from the New South Wales Police Force. On page 13 of her report, she sets out three measures which she proposes should be installed on the premises.

54. Under the design requirements for security devices, she proposes that the “security door or grille to a shopfront must be transparent or an open grille type shutter installed and solid roller doors or shutters are not permitted.” She also proposes a number of ameliorative measures including steel shutter protection lockable by padlocks for the cool room. She further proposes, with respect to windows and doors on the ground floor, that they should all be made of toughened glass and, finally, she proposes that the delivery and loading areas should be well lit and fitted with motion detectors and, ideally, with closed circuit television.

55. She further says that it is appropriate to consider other matters that might be dealt with in the plan of management and on page 16 of her report she sets out a number of matters, two of which are relevant in the present context. The first of them is that:

“ In order to reduce the opportunity for graffiti to become a problem, we recommend that the exterior walls of the building be coated with graffiti resistant paint to a height of at least 2 metres .”

and, as her third point of proposal:

“ Colourbond type fencing is often a target for graffiti artists, the type of plants and the gardens along the fence lines will play a large role in discouraging vandalism. Fast growing climbers and ground covers planted close together will make it difficult to reach the fences, and regular cleaning of any graffiti that does occur will reduce the likelihood of it recurring .”

56. The changes which she has proposed, although I have not been informed of the specific terms of their adoption, have generally been agreed to by the applicant. I therefore conclude that, notwithstanding what is otherwise her assessment of the risk, she has recommended extensive (and not inexpensive) works to be undertaken to the premises themselves as anti-vandalism prevention measures and that the applicant has agreed to those.

57. With respect to Webster Park and the shops, Ms Manion sets out at pages 7 and 8 of her report, quoting from 3.3.6 of her report:

“ As noted above there is some evidence to suggest that because of its proximity there is a potential for an increase in crime in Webster Park as a result of the establishment of the hotel. To identify the magnitude of increase in antisocial behaviour which could be expected would require review of more detailed data.

On the basis of our inspection of the site however we would conclude that the potential for Webster Park to become a site where partons [sic] of the hotel are assaulted and/or robbed is minimal for the following reasons :”

She then sets out four reasons being:

• Webster Park currently provides pedestrian access for residents travelling to and from the existing shopping facilities but in particular the Video Rental shop whose operation hours are similar to those of the proposed hotel, and the incidences of robbery and/or assault were highlighted during Councils [sic] consultative activities.
• Governor Macquarie Drive is a significant physical barrier between Webster Park and the proposed hotel. It is unlikely therefore that people other than local residents are generally aware of and use the park.
• The park is immediately overlooked by residences on all sides which maximises the level of natural surveillance of the park.
• Pedestrian site [sic] lines through the park are relatively clear.

58. She concludes that the introduction of lighting in Webster Park might be detrimental and might encourage people to use the park as an access route and therefore discourage use of existing footpath networks.

59. She deals with the issue of the potential increase in litter and concludes that there would be no significant likelihood of a marked increase to littering as a consequence of construction of the premises.

60. She then deals with the issue of vandalism in the adjacent shopping area in the following terms.

“ Vandalism is typically described as an opportunistic crime which can be discouraged using situational crime prevention measures. This involves changing the environment so that the effort and risks associated with vandalism increase and the rewards decreased. Typically this includes maximising opportunities for natural surveillance, controlling access to an area and promoting ownership. The character of this shopping area currently maximises some of these factors :”

61. She instances opportunities for natural surveillance and the sense of ownership of the two Lagoutaris families who are residents of the shop top residences. She then concludes:

“ Therefore while there is some potential for an increase in the level of vandalism as a result of the establishment of the hotel, it is likely that this potential increase will be cancelled by the increase in natural surveillance and security patrolling associated with the hotel .”

62. Her conclusions are set out on page 9. They are that the hotel will have two positive impacts - a decrease in illegal truck parking in the vicinity of the site, and an increase in surveillance within the immediate vicinity of the hotel including of the businesses opposite and adjacent to the hotel. However, she also concluded that the negative impacts will be a small increase in noise; a small increase in traffic and a small increase in antisocial behaviour at the site and its vicinity.

63. I do not accept the final one of these conclusions of Ms Manion for the reasons which follow. I am satisfied that, on the basis of Mr Smith’s evidence concerning the higher numbers that will be present at the hotel on a regular basis and the number who will be likely to be leaving by foot (even putting it at the lower end of Mr Smith’s expectation), these numbers mean that there would be some considerable and realistic prospect of opportunities for vandalism of the shops and residences in the vicinity.

64. Secondly, if there is to be provision of entertainment at the site, there is a reasonably foreseeable risk that the category would fall within the fourth category described by Homel in the characterisation of hotels cited by Ms Manion. As a consequence, at least on some occasions, even if it be only five or six times a year, there is a realistic risk of that additional exposure and associated risks.

65. Thirdly, I am persuaded by the scope of the protective measures proposed by Ms Manion (and generally adopted by the applicant) that there is a real need to protect the premises of the hotel from the possibility of vandalism by its patrons. Although the number of patrons who might be proceeding to the vicinity of the shopping centre would be limited as discussed earlier, I am also satisfied that at least a portion of this risk applies to the premises of shopping centre who are not to be afforded any of the additional protections proposed for the subject premises.

66. In this regard, with respect to graffiti vandalism, I see, from the terms of the photomontage tendered on behalf of the council, that there is a long Colourbond fence along the southern boundary of the Lagoutaris property to Webster Park. I would not be minded to require the removal of the tables as per the police recommendation as the evidence of Mr Brown, which was not contradicted, is that these are a significant aspect of the business of the takeaway food store.

67. The applicant has not merely not discharged its onus to satisfy me that there is no significant risk of vandalism to the premises opposite but I am satisfied, positively, that there is an unacceptable level of real risk to those premises absent the posting of a permanent security patrol in the park and at the shops. No such offer has been made by the applicant and it is certainly not capable of being inferred from the plan of management. I would therefore refuse the application on the basis of my satisfaction that there is an actual unacceptable level of risk of damage to those premises.

68. I turn to the issue of economic argument that was raised by Mr Lagoutaris and Ms Matape with respect to the takeaway food premises; by Ms Gale with respect to the TAB branch and by Mr Catalana with respect to both of them. I am required by s 79C(1)(b) of the Act to have regard to the likely impacts of the development including economic impacts in the locality. Without detailing the evidence given by those four local objector witnesses, I am satisfied that there is no proper economic evidence or modelling before the Court and that the economic concerns, absent such evidence, fall entirely within the concept of perceptions as noted by Mr Newport and would not warrant any adverse finding.

69. I turn, finally, to the non-antisocial noise impacts. On at least five or six occasions a year, as indicated by Mr Smith in his evidence, there would be major events of some four hundred and fifty to five hundred patrons. It was also his evidence that only some twenty five per cent of such patrons would arrive by means of transport other than private cars. Although there was no attempt made to quantify the number of private vehicles that might arise, it would undoubtedly be of some significant number in excess of the number of parking spaces provided on site - therefore off site parking would be required. A portion of this will undoubtedly be in Governor Macquarie Drive, but given the closure of the shops during the relevant periods of the day, for the most part it would be likely that the parking area in front of the shops on the west of Governor Macquarie Drive would be an attractive parking opportunity. In addition, there will be a significant number of patrons walking through Webster Park, although pedestrian dispersal to the south along Governor Macquarie Drive and to the north along Alfred Street would also occur.

70. It was Mr Brown’s evidence that the dogleg of the path to the north of the shopping centre would mean that pedestrians would be hidden from ordinary view from Governor Macquarie Drive, as would anybody walking behind the buildings.

71. There are two areas of background noise which need to be considered. The first relates to the possible impact of pedestrians walking through Webster Park and in the vicinity of Bungarra Crescent at the rear of Webster Park and, secondly, the likelihood of noise from car doors slamming where such cars are parked in the car park outside the retail premises. It was Mr Cooper’s evidence that the appropriate background noise level at Governor Macquarie Drive was 45 dBA at the relevant times and that, at Bungarra Crescent, it was 43 dBA, there being no significant difference in the present circumstances between those two levels.

72. It was also his evidence that a sleep disturbance event would be caused if there were an exceedance of these background levels by 15 dBA and that therefore it is relevant for me to deal with the possibility of sleep disturbance events being above 59 dBA as being unacceptable in the context of the appropriate guidelines. It was Mr Cooper’s evidence that conversation would be in the upper fifties and calling out in the mid-eighties. It was his evidence that a car door slamming, for one car door slammed at an instant, would give a noise impact of 53 dBA at twenty five metres; two car doors would give an impact of 56 dBA at twenty five metres and four car doors would give an impact of 59 dBA at twenty five metres. It was, as he explained, an exponential scale so that sixteen car doors at fifty metres, if all slammed simultaneously, would give a reading of 59 dBA.

73. There is no evidence on the distance between the bedrooms of the Lagoutaris residences and the car park outside the shops, although it would appear reasonable to infer from the photo montage that is in evidence that it is likely to be less than twenty five metres. There is also a single residence to the south where the bedrooms might possibly be less than twenty five metres, although there is no evidence on this point.

74. I am satisfied that there is a risk of a combination of regular conversational calling out from patrons walking through Webster Park and from car doors slamming on some occasions in the shopping centre car park. I am not satisfied, however, that these would be such as to warrant refusal, but, equally, I am not satisfied that the applicant has provided sufficient evidence that it would not be a basis to refuse. Therefore, on the precautionary principle (and with the onus being with the applicant), I could not be satisfied that the appropriate test had been met.

75. My conclusions therefore are as follows.

1. I am satisfied that there is a real and significant risk of antisocial behaviour in the vicinity of the shops and Webster Park so that, absent a permanent security presence there during evenings (including for an appropriate period after the closing of the premises), it is not appropriate to grant consent. I note, as well, that any reliance on neighbour surveillance by the Lagoutarises or others (as postulated by Ms Manion at pages 8 and 9 of her evidence) would require what I would describe as a "borrowing or trading on good will" and is not an appropriate basis for reliance by the applicant.
2. I am not satisfied that the ordinary and otherwise acceptable noise and behaviour of departing patrons would not cause unacceptable disturbance to the Lagoutaris residences with sufficiently low regularity to warrant consent.
3. There is no economic basis for refusal established by any of the objectors who raised that matter.

76. The orders of the Court therefore are:

1. The appeal is dismissed.
2. Development application DA 570/03 for the erection of a hotel at 37 Governor Macquarie Drive, Chipping Norton, being lot 611 in DP 790412 is determined by the refusal of development consent.
3. The exhibits may be returned.

Tim Moore

Commissioner of the Court