Doueihi v Baulkham Hill Shire Council

[2007] NSWLEC 826

Land and Environment Court

of New South Wales

CITATION:

Doueihi v Baulkham Hill Shire Council [2007] NSWLEC 826

PARTIES:

APPLICANT
Edmond Doueihi

RESPONDENT
Baulkham Hill Shire Council

FILE NUMBER(S):

10910 of 2007

CORAM:

Bly C

KEY ISSUES:

Development Application :- tattoo parlour, social environment and antisocial behaviour, security, objectives of the LEP and the business zone, hours of operation, noise and light transmission.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Baulkham Hills Local Environmental Plan 2005
Baulkham Hills Development Control Plan

DATES OF HEARING:

17/12/2007

EX TEMPORE JUDGMENT DATE:

17 December 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Jackson, solicitor
of Pike Pike and Fenwick

RESPONDENT
Mr A. Pickles, Barrister
Instructed by Mr C. Winn - legal officer

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

17 December 2007

10910 of 2007 Edmond Doueihi v Baulkham Hill Shire Council

This decision was given extemporaneously. It has been revised and edited prior to publication.


JUDGMENT

1 This appeal relates to Development Application No 1430/2007/PB, which is for the use of part of the existing building at 335 Windsor Road Baulkham Hills for a tattoo parlour. Parking is available at the rear of the site. The existing building comprises two tenancies: units A and B. Unit B is presently used as a kitchen showroom and unit B, the subject premises, is presently vacant. The tattoo parlour is proposed to operate seven days per week 8 a.m. to 10 p.m.

2 The site is situated towards the southern end of the Baulkham Hills Town Centre. Surrounding land uses include a chiropractor, a real estate agency, a doctor's surgery, various commercial premises, Council's library, a public park and a hotel. There is a bus stop in Windsor Road in front of the site.

3 The site is zoned Business 3(b) (Commercial) under Baulkham Hills Local Environmental Plan 2005 ("the LEP") and in this zone the proposal is permissible with development consent. Also group applicable is the Baulkham Hills development control plan ("the DCP").

4 The development application was advertised and 8 submissions were received including 2 petitions (222 signatures). The application was subsequently amended and 2 further submissions were received. Matters of concern raised in these submissions include: the proposed tattoo parlour would be incompatible with surrounding land uses; antisocial behaviour including vandalism would be attracted by this use and would take place in the car park at the rear; health issues resulting from shared facilities between units A and B; the necessary removal of asbestos from the building; the inappropriate proximity of the tattoo parlour to the nearby hotel and school; the tattoo parlour would be inappropriate in the family oriented community; there are other more suitable locations available.

5 When the hearing began on-site I heard from Mr M. Ardell (a chiropractor) of 337 Windsor Road who explained that his consulting rooms and residence (where he resides with his partner) adjoins the subject premises. His main concerns include the fact that the proposed tattoo parlour is in an inappropriate location given his and another health practice in the immediate vicinity. He has heard from his patients that they would feel uncomfortable attending his premises if there were to be a tattoo parlour next door expressing general feelings of concern. On this basis he believed that some of his patients might not come for treatment. He was also concerned that the car park at the rear where his patients park may be required to intermingle with people going to the tattoo parlour and they might not be happy with this. He was also concerned that the hours of operation extending to 10 p.m. would probably go beyond this. This is of concern because his partner often goes to bed between 9.30 and 10 p.m. and activity in the car park may disturb her. He also explained that access to the tattoo parlour may be made more difficult by people queuing at the bus stop in Windsor Road. Mrs Ardell expressed similar concerns regarding criminal activity in the area particularly in the car park at the rear although she acknowledged that sensor lights seem to have stopped this activity and may be of benefit for this development.

6 Mrs Hoggenmueller (of 20 Monk Road Rossmore) who works in unit A (the kitchen showroom) explained that her major concern, now that a separate toilet facility for this development is proposed, involves the removal of asbestos products from the building if building works are to occur.

7 According to the council's statement of facts and contentions the principal contentions in the case comprise:

• The proposed development will inevitably impact upon the social environment and amenity of the area, exacerbating antisocial behaviour (reportedly experienced in the area), resulting in further deterioration of the local amenity. Council's "social impact" contentions are mirrored and supported within comments received from the NSW Police Force.
• The proposed development is not one, which is sympathetic or supportive of the existing general retail and commercial development within the surrounding and adjoining Business 3(a) (Retail) Zone. It does not and will not service the needs of the various activities and land uses carried on or around the adjoining Business 3(a) (Retail) Zone it will not all will not be complimentary to other development within the area nor does it seek to develop and use advanced technology products and processes.
• The proposed hours of operation are incompatible with adjoining land uses in that the proposed closing time is at least two hours later than any other adjoining land use. The proposed development will be the only business within the immediate vicinity operating on Sundays. Its use of the rear car park up to and possibly beyond 10 p.m. will unacceptably impact upon the amenity of on adjoining residence at 337 Windsor Rd by way of light and noise transmission/impacts. (This matter could be resolved by conditions of consent)
• It would not be in the public interest to approve the proposed development because it will have a detrimental impact on the amenity of adjoining land uses and residence and taking into account the public and other submissions that oppose the development.

8 These contentions were comprehensively addressed by Ms R Saltman the parties joint town planning expert who concluded that the proposed tattoo parlour is not likely to create unacceptable impact on the locality taking into account the matters raised by the NSW police as well as the neighbours who objected to it. She acknowledged is that the applicant is willing to enter into a trial period agreeing that this is an appropriate way to proceed in the circumstances.

9 In relation to social, security and amenity impacts she explained that her research was not able to discover anything specific in relation to known social and amenity impacts resulting from tattoo parlours. In discussions with the relevant police officer she discovered that it was the circumstances of the site in this matter, which was of primary concern to the police, namely the existing social environment and incompatibility of surrounding uses with the proposal. She was thus not convinced that the proposal would exacerbate existing social and amenity issues. In reaching this conclusion she believed that improved surveillance by the provision of sensor lighting and closed-circuit television cameras and the active use of the site would be of considerable benefit. Added to this is the condition requiring the preparation of an operations management plan.

10 In relation to the aims of the LEP and the objectives of the 3(b) zone she said that there is no evidence to demonstrate that the proposed development is likely to be any more or less sympathetic or supportive of existing general retail and commercial development within the 3(a) zone and other businesses in the 3(b) zone. She had no concerns that the relevant aims and objectives were not satisfied by the proposal.

11 In dealing with operational matters, particularly hours of operation she suggested that taking into account the hours of operation of adjacent uses some restrictions on Sunday trading hours could be considered. As for possible noise impacts these could be dealt with in the proposed plan of management.

12 In relation to the resident objections particularly those involving noise impacts and antisocial and criminal behaviour at the rear of the site, she was satisfied that these would be dealt with as described above. She was critical of the petitions particularly as they were worded in a way that solicits opposition and taking into account that most of the signatures indicate addresses outside the Baulkham Hills local government area they should be given little weight.

13 The applicant has now agreed to a number of changes to the proposal including the provision of a separate toilet, a limited reduction in operating hours, sensor operated security lighting and CCTV's and the appropriate removal of asbestos.

14 Taking into account the agreed conditions and the evidence of Ms Saltman it was submitted on behalf of the council that the contentions of concern are now resolved.

15 I have carefully reviewed the proposal in its amended form (the amended plans and the agreed conditions, including the trial period) in the light of the contentions, particularly the requirements of the LEP as to consistency with applicable aims and objectives (including the objectives of the 3(b) zone) and have taken into account the concerns of the objectors. Having been persuaded by the uncontroverted expert evidence of Ms Saltman I have decided that development consent can be granted. The appeal is therefore upheld and development consent is granted subject to the conditions in Exhibit 3 (as amended).

___________________

T A Bly
Commissioner of the Court
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