JPR Legal Pty Ltd v Marrickville Council

[2009] NSWLEC 1216

Land and Environment Court

of New South Wales

CITATION:	JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 1216 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT JPR Legal Pty Ltd RESPONDENT Marrickville Council
FILE NUMBER(S):	10459 of 2008
CORAM:	Murrell C
KEY ISSUES:	DEVELOPMENT APPLICATION :- for hotel; impact on residential area; social impact parking and noise
LEGISLATION CITED:	Marrickville Local Environmental Plan 2001 Development Control Plan No. 19
CASES CITED:	Waugh Hotel Management Pty Limited v Marrickville Council [2007] NSWLEC 775 JPR Legal Pty Ltd v Marrickville Council [2008] NSWLEC 279 Zhang v Canterbury City Council [2001] NSWCA 167
DATES OF HEARING:	15 & 16 December 2008, 13 March 2009 and 1 April 2009
DATE OF JUDGMENT:	31 July 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr T Hale (Senior Counsel) with Ms V Culkoff (Barrister) RESPONDENT Mr M Wright (Barrister) SOLICITOR Mr G Christmas

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

31 July 2009

10459 of 2008 JPR Legal Pty Ltd -v- Marrickville Council

JUDGMENT

1 COMMISSIONER: The applicant in these proceedings is seeking to use the premises known as 252 to 254 Illawarra Rd Marrickville for the purposes of a hotel. The proposal involves alterations to the existing retail shoe shop for use as a hotel with associated lounge, bar, gaming and TAB areas.

2 The site is located on the north-western side of Illawarra Rd south of Marrickville Rd and Tuohy Lane. The frontage to Illawarra Rd is about 22 metres with a site area of 942 square metres. Access to the roof top parking is off Tuohy Lane at the rear. The subject building contains two levels with three tenancies two tenancies being located of the ground floor with the hotel occupying the larger portion and a café a small part of the ground floor. Upstairs there is a separate tenancy. Figure 1 shows the hotel layout at ground level.

3 The existing roof top parking on the subject building will be generally unaffected with 6 of the 24 spaces provided on the roof top to be allocated to the hotel that were previously attached to the shoe shop. These spaces are to be for staff parking only. It is proposed that the hotel employ between 10 to 15 staff.

4 Figure 2 depicts the uses in the vicinity of the site. To the west of the site in Tuohy Lane are residential flat buildings that have frontage to the lane. The land surrounding the site to the north, south and east is zoned general business and residential to the west.

5 Figure 3 shows the subject site in the context of the Marrickville shopping centre and the surrounding residential area and the pedestrian laneway along the northern side of the site.

Proposed development

6 The application is described as the redefinition of the ground floor tenancy area, currently occupied by a shoe shop and café, and the construction of new internal dividing walls;

• the fit out of the balance of the ground floor being approximately 550 sq m of gross floor area for use as a hotel;
• the provision of a new entry to the hotel incorporating a disabled ramp and
• the installation of a goods lift at the rear of the premises for deliveries and waste removal.

7 The proposed hours of operation in the development application are:

• 5 am to 12 midnight on Mondays and Tuesdays,
• 5 am to 1.30 am the following days on Wednesdays and Thursdays,
• 5 am to 2 am on the following day on Fridays and Saturdays, and
• 10 am to 12 midnight on Sundays.

Background

8 By way of background there have been previous proceedings in this Court with Jagot J dismissing a development application for a hotel at the subject premises in the judgment Waugh Hotel Management Pty Ltd v Marrickville Council [2007] NSWLEC 775.

9 The applicant states that for the current application there are changed circumstances since the determination of the previous application. The Statement of Evidence of the applicant’s social planning consultant includes the following:

• The different demographic and socio-economic characteristics of residents of the catchment area and the Marrickville LGA revealed by the 2001 ABS Census data and the 2006 Census data. Land and Environment Court proceedings No. 10263 of 2007 relied upon 2001 Census data... The 2006 Census data is symptomatic of the gentrification of the catchment area of the proposed hotel with the consequence that the social impact potential for the proposed hotel is changed...
• The closure of the popular Marrickville RSL which results in the removal of a large licensed premises from the catchment area of the hotel proposed. The closure of the RSL club also results in the removal of approximately 300 electronic gaming machines. The RSL club had a gross floor area of approximately 4288 square metres compared to 550 for the proposed hotel. The RSL was situated approximately 300 metres from the proposed hotel.
• The closure of the Marrickville RSL and Anzac Club would significantly reduce the recreational opportunities for residents in the catchment of the proposed hotel.

10 Following the hearing the case was re-opened to allow the applicant to provide evidence of the closure of the Anzac Memorial Club on 22nd of March 2009 and the sale of the premises at auction of the 10th of March 2009. The applicant argued that this would establish the fact that there is a further reduction in liquor outlets in the Marrickville area and there will be a further reduction in the demand for parking spaces in Marrickville.

11 The respondent questions the relevance of the closure to the issues for determination in the proceedings. The respondent states that Mr McLaren makes no reference in his statement of evidence to the Anzac Club and in any event the Anzac Club had 70 car spaces on site and was required to provide 83 under DCP 19. The council maintains submissions made that the relevant focus in relation to the parking impact of the proposed hotel is the immediate vicinity of the subject site, including the Calvert Street car park diagonally opposite the subject site. Parking is at a premium in the Marrickville town centre. The closure of the Anzac Club it was submitted on behalf of the council does not result in any reduction in demand for parking generated by the proposed hotel as it is simply too far removed from the proposed hotel to have a material impact on parking demand.

12 On the issue of social impact the Council submits that Dr Stubbs made clear in her evidence her primary concern was the clustering of licensed premises in a highly disadvantaged community. The increasing density of licensed premises in this locality will lead to unacceptable alcohol-related harm in the immediate localities that is 300 m radius of the subject site. Counsel further submits that if anything, as with the closure of the Marrickville RSL, the closure of the Anzac Club would exacerbate the clustering effect of licensed premises within the immediate locality as the Anzac Club is located in the secondary catchment within 1 km and does not reduce the risk presented by the subject proposal. It was further submitted that the position in relation to the Marrickville RSL discussed by Dr Stubbs and Ms George in evidence at the hearing remains-namely that the RSL Club is seeking to relocate. Indeed it was an underbidder at auction when the Anzac Memorial Club premises were sold.

Issues

13 An amended statement of contentions was provided and this reads as follows:

1. The proposed development fails to provide sufficient on site car parking to cater for the demand that it will generate and as such will adversely impact on the limited available parking in the locality.
(a) Only six (6) on site car parking spaces are proposed to be provided for the hotel.
(b) The proposed use is a significant intensification over the current use and does not provide any additional parking to cater for that intensification.
(c) There is insufficient on-street parking in the locality to cater for the demand generated by the proposed development and this will adversely impact on the businesses and residents surrounding the site.
(d) In Waugh Hotel Management Pty Limited v Marrickville Council [2007] NSWLEC 775 ("the first proceedings"), her Honour Justice Jagot sitting with Commissioner Hoffman found at [99]:
"99 I accept Mr Hallam's evidence. I do not consider that the evidence relied on by the applicant provided a sufficient basis to conclude to the contrary either by reference to the Coady survey and related material, the report to the Council which accepted the arguments in the statement of environmental effects or the criticisms of Mr Hallam's approach. Mr Hallam's evidence presented a careful, thorough and reasonable assessment of the parking issues associated with this development in the particular context of the site. The Council submitted that Mr Hallam's evidence provided a ground sufficient to warrant the refusal of the application. I agree. On the evidence, I am satisfied that the development will not provide adequate parking to meet its demand. Parking is already at a premium in this area. There will be a period of overlap during peak shopping hours when the development will materially exacerbate the difficult parking situation in this part of the town centre. Nothing in the development application and accompanying documents (including the plan of management) is capable of mitigating that impact. The development does not involve factors that might, in other cases, warrant lesser weight being given to parking issues (such as provision of a facility not presently available within the town centre). Managing parking availability may readily be inferred to be important to the functioning of the Marrickville town centre. The objectives of DCP 19 support this inference. I am satisfied the development application should be refused consent on this ground. "
(e) The development application in these proceedings is identical to the development application in the first proceedings.
(f) The only materially different circumstance between the current development application and the development application finally determined in the first proceedings is that the Marrickville RSL has since closed.
(g) The only issue arising in these proceedings in relation to parking is whether in light of the closure of the Marrickville RSL the development can now provide adequate parking to meet its demand.
2. The proposed development will result in an unacceptable social impact on the population.
Particulars:
(a) To grant consent to the development would exacerbate the alcohol related problems that exist in the locality.
(b) The proposed development would result in another alcohol facility in the Marrickville Town Centre and is an inappropriate concentration of such uses.
(c) The Applicant has failed to provide any real analysis of the potential social impacts of the proposed development.
(d) In the first proceedings her Honour also found at [103]:
"103 Separate from Dr Stubbs' analysis, there is a real issue about adopting an approach to development applications for land uses such as hotels that could lead to communities being denied access to facilities likely to function for the majority of people as a recreational resource. Ms Saltman made this important point in the conclusion of her report. However, consistent with the report overall this important issue was not adequately explored by Ms Saltman and her evidence did not provide any meaningful basis upon which this issue could be factored into the assessment under s 79C(1)(b) of the EPA Act. In consequence, the debate in this case about the risk of alcohol related harm by increasing the density of licensed premises in the centre of a particularly disadvantaged community weighed overwhelmingly in favour of the detailed analysis Dr Stubbs presented. Accordingly, on the rather one sided evidence available in this case the risks of alcohol related harm from increasing the density of licensed premises in this highly disadvantaged community would be a further independent ground for refusal of this application.
(e) The only issue arising in these proceedings in relation to the risk of alcohol related harm from increasing the density of licensed premises in this highly disadvantaged community is whether in light of the closure of the Marrickville RSL this would no longer be an independent ground for refusing the development application.

Statutory planning framework

14 The subject site is zoned General Business under the Marrickville Local Environmental Plan 2001 as amended. The general objectives of the plan include

• to enhance the quality life and promote the well being of the local community
• to promote an accessible and safe living environment
• to maximise business and employment opportunities particularly in the Marrickville existing commercial centres

15 The objectives of the General Business zone are:

a. to identify areas suitable for business and commercial activities

b. to permit a variety of ancillary and complementary land uses and facilitate residential development in conjunction with other permissible uses within the zone.

16 Clause 62 of the LEP on community safety states that:

Before granting an application for development consent the consent authority must take in consideration such of the following matters as are of relevance;
a. The provision of active street frontages where appropriate.

b. The provision for lighting for pedestrian site access between public and shared areas, parking areas and building entrances.

c. The visibility and legibility of building entrances from streets, public area or internal driveways.

17 Clause 64 contains provisions for accessibility and identifies a number of matters to be taken into account before granting consent to developments.

18 Development Control Plan No. 19 contains the Council’s parking strategy. The aim of the DCP is “to ensure development provides adequate off street car parking and ensures the effective use and design of such parking facilities. The specific objectives of the DCP include:

• to ensure that an appropriate level of public car parking facilities are provided for use by shoppers and workers within the Marrickville business centre;
• To ensure that car parking provision meets business and community demands.

19 The table in the DCP requires parking for licensed hotels on the basis of one space per 6 square metres bar lounge and dining floor areas and for retail shops one space per 45 square metres.

20 Section B.7 provides matters for councils consideration if determining to waive off street parking on site. Matters for consideration include the size and type of development and the degree of traffic impact of the development on the surrounding locality and peak parking and traffic activity periods for the proposed developments. Site characteristics are also relevant and the practicality of providing off street car parking. The availability of public transport or alternative forms of transport that is off peak and peak hour services and proximity of transport services. Other matters include a locality analysis of the availability of on street parking in the immediate locality and in nearby public car parking facilities and service benefits to the local community.

21 The DCP also states that council will apply parking credits where there is a change of use to an existing building. This requires development to detail parking credits in the assessment of the application and are determined by council on the basis that the objectives of the DCP are not compromised.

Evidence and submissions

22 The Court met on site the first morning of the hearing and heard from a number of resident objectors to the proposed development. Mr and Mrs Pickering are of the opinion that the parking is not adequate for staff let alone patrons to the proposed hotel. They are also concerned about the behaviour of patrons and the removal of rubbish in the laneway. They also express concern about the shop front location not being suitable with an outdoor smoking area and gaming. Furthermore they consider that the hours of operation are not appropriate and it is not necessary for an additional hotel in the area.

23 Ms Dawson who has lived in the area for some 20 years considers that the operating hours are inappropriate because of the noise that would be generated in the public laneway by intoxicated patrons. She also expressed concern about the inadequate parking of the premises for a hotel and that the only delivery is through the lane way with access from the residential area. She is concerned about the hotel being a disturbance for residents in the area and the anti social behaviour of patrons.

24 Mr Vuga is also concerned about the parking and security in the use of the lane way outside of normal business hours which provides access to the residential area. He is concerned about the increased hours of the hotel over other businesses in the area, and the amplified noise after hours. He does not consider that security could control the impact for the development beyond the entrances. He also expressed the view that no more gaming machines are necessary.

25 On behalf of the applicant evidence was given to the Court by Ms Sarah George, Consultant Social Planner and for the respondent council evidence was given to the Court by Dr Judith Stubbs, Consultant Social Planner. Mr Craig McLaren a single expert was appointed for the traffic and parking issues and he provided a statement to the Court and also gave evidence.

Parking

26 In response to the council’s first issue on insufficient on site car parking to cater for the demand Mr McLaren’s statement includes the following:

In responding to the matter of parking demand and impact on the local precinct, it is relevant to state that the key difference between the traffic engineers (Mr Hallam single parties expert and Mr Coady for the applicant) in the first proceedings was in relation to the patron car-parking demand associated with the proposed hotel before 5 pm on a weekday.
Weekend and evening parking demand and the ability in precinct to absorb same was not in dispute with both traffic engineers involved in the first proceedings agreeing that the precinct could accommodate the proposed development at these times. I have reviewed that component of the likely impact and concur with that finding.
Further it was also agreed between the two traffic engineers involved in the first proceedings that six staff spaces can be provided on the roof level of the proposed development and that supply would meet likely staff parking demand. I have also reviewed that component and concur with that finding....
Bar sales influence
The influence of bar sales is typically used to check the dates of patronage and parking surveys at licensed premises. Mr Hallam forecasted a peak patronage of 60 persons at 4.30 pm for the proposed hotel whilst the Coady report lodged with the original development application forecasted a peak patronage of less than 40 patrons during the afternoon.
I have reviewed the report of Mr Hallam and Mr Coady’s original report and while I am not fully persuaded that the proposed hotel will operate in terms of patronage on a pro rata basis I have adopted Mr Hallam’s forecast patronage of 60 patrons as a worst case condition.
In relation to the car driver percentage it is relevant that the interview surveys conducted by Mr Coady are more extensive than the single survey conducted by Mr Hallam... I have much less confidence in the car driver percentage derived from the Hallam’s survey compared to that derived from the more extensive Coady consulting survey method.
This leaves me to conclude that the appropriate or likely car drive percentage in the afternoon prior to 5 pm is likely to be 15-18% for the proposed hotel so I will adopt 18%.
Discount factor for local employees

I adopt 15% discount for patrons who park nearby in private car parks.

Discount existing shoe shop

I concur with Mr Hallam’s assessment that the existing parking demand for patrons of the shoe shop equates to seven spaces given that the application of council’s DCP 19 to the existing shop area requires 13 spaces of which a staff component of six spaces is provided on the roof.
Spare precinct parking supply
In relation to the ability of the surrounding precinct to accommodate in peak day particularly the critical Friday afternoon parking demand associated with the proposed hotel it is instructive to first determine what that change in parking by patrons will be by the following calculations:
1. Peak patron parking demand for the proposed hotel during the weekday equates to 9.2 cars say 10.
2. Existing shoe shop patron parking demand 7 cars.
3. Additional patron parking demand equates to 3 cars.
The recent 2008 parking surveys undertaken for the precinct surrounding the commercial centre of Marrickville indicate that there is sufficient spare parking to accommodate this relatively low change in parking demand during the critical weekday afternoon period. The areas where spare parking exists are within a reasonable walking distance of 400 m from the site on a Friday afternoon.
I note Mr Hallam’s previous concluding statement as follows which I accept the Court would expect a response from myself “hence the proposed change of use from a shop to a hotel at a site that already has inadequate parking in an area where there is a high demand during the day is an inappropriate intensification of use of the premises”.
I do not concur with the concluding statement of Mr Hallam above given that the change in parking demand is very low, is able to be accommodated with minimum impact and would not be noticeable.
Conclusion
In conclusion the proposed development is supportable on parking grounds particularly in view of increased parking availability during weekday afternoon periods due to the closure of the Marrickville RSL Club. It is expected that any redevelopment of the Marrickville RSL site will need to provide its parking demand on site or subject to a merit based assessment of its impacts on the local precinct similar to the subject appeal.

27 Mr Coady in the Statement of Environmental Effects states that the application yields a parking requirement for 61 under DCP 19 and he says “that a requirement of this magnitude is clearly excessive for the proposed hotel.” He states while the RTA guidelines specify typical parking demand characteristics for a wide range of land uses they do not specify a particular requirement for hotels noting instead:

the RTA's research on parking has found no strong relationship between peak car parking accumulation and floor area, or function room capacity at 10 hotel site surveyed. The range in parking demand rates resulting from early research was broad and difficult to generalise. This variation was due to factors such as the location and and age of the building, the internal design, the provision of live music and other facilities. Since the surveys were undertaken, behavioural changes have occurred in the use of hotels due to factors such as the introduction of random breath testing. These changes have generally serve to reduce parking demand rates. It is recommended that proposed hotel developments be compared to similar existing developments, noting the existing supply of and demand for parking in the area and of the peak parking periods of individual facilities within the hotel.

28 Mr Coady provides a table to show the areas in the Royal Exchange Hotel and the Marrickville Tavern compared to the proposed hotel.

Royal Exchange Hotel	Marrickville Tavern	Proposed Hotel
Main Bar	80 sq m	140 sq m	185 sq m
TAB	40 sq m	80 sq m	50 sq m
Gaming Room	150 sq m	80 sq m	90 sq m
Outdoor Bar	120 sq m (Cactus Bar)	-	42 sq m
Bistro/Restaurant	65 sq m	-	-
Overflow dining area	60 sq m	-	-
Bottle Shop	40 sq m	-	-
Total	555 sq m	300 sq m	360 sq m

29 Mr Coady states:

that the Royal Exchange hotel is significantly different to the proposed hotel in that it has a substantially greater public floor area with a focus on dining and a large bistro with a well equipped kitchen. In contrast, the proposed hotel does not have a defined dining area and is served by a small picture only. Also the Royal has a bottle shop... It could be reasonably concluded that the results of the survey of the Marrickville Tavern provide a better indication of the operational characteristics of the proposed hotel. However, the ambience and environment of the proposed hotel is likely to be more welcoming for many people than that of the Marrickville Tavern in which case the proposed hotel is likely to attract a greater patronage than that indicated by the survey of the Marrickville Tavern. However the proposed hotel is unlikely to achieve the same patronage as the much larger Royal Exchange with its focus on dining. If the results of the survey is to be used to provide an indication of the patronage potential the patron accumulation in the Royal Exchange would have to be reduced by one third to at least replicate the size of the proposed hotel. Even then the patronage potential of the proposed hotel would be reduced because it does not have the focus on dining as the Royal Exchange.

30 For the Royal Exchange Hotel he found that the peak daytime patron accumulation recorded is 65 persons around 2 p.m. on the Thursday surveyed with 63 persons around 3 p.m. on the Friday surveyed.

31 Mr Coady states that:

the additional parking demand experienced in the Marrickville commercial centre as a consequence of the proposed hotel is likely to be somewhat less than the estimated patron parking demand potential of the proposed hotel because it can be reasonably expected that the proposed hotel will attract a proportion of its patronage perhaps one third to one half, from the existing Royal Exchange in Marrickville Tavern in which case the additional parking demand potential of hotels in Marrickville for commercial centre as a consequence of the proposed hotel is likely to be in the order of only say five spaces during the daytime and during the weekday night time, eight spaces during the weekend night time.

On the basis of the survey results it can be reasonably assumed that the typical patron accumulation in the proposed hotel would be somewhere between the patron accumulations in the Marrickville Tavern Hotel and the reduced patron accumulations in the Royal Exchange. The patron parking demand potential of the proposed hotel can be calculated by applying the average patron car driver rate identified by the interview survey to the projected maximum patron accumulation potential set out..

Accordingly it seems likely that replacement of the existing shoe shop with the hotel will actually result in a reduction in the overall parking demand in this part of Marrickville commercial centre.

In the circumstances it can be concluded that the proposed hotel has no unacceptable parking implications.

32 Under the section on social implications of Mr Coady states that:

Although there is some considerable research on the relationship between outlet density and social harm as a consequence of alcohol consumption the research done is not clear enough, at the point of harm in particular situations when this is reached… the common thread for a solution seems to be educating individuals by various methods to be responsible consumers.
In that this case is closure of the large Marrickville RSL club on 31 December 2000 said it will represent a significant reduction in the density of licensed in the general area of the proposed hotel. To the extent that statistics on the density of licensed premises can should be considered an indicator of social harm, closure of the Marrickville RSL club represents a significant benefit to the application of the proposed hotel.

33 Mr Hallam’s reports of August and October 2007 were tendered by the applicant as Exhibit H. He calculates the parking demand as assessed against council’s DCP for the ground floor shoe shop is 13 spaces, the café 3.24 spaces, the offices 15.7 spaces requiring a total of 32 spaces. He states that:

the supply on the roof is for 24 spaces however, this is for staff only and there is no access for customer/client use on the roof top.
The best measure of the current demand for parking is the use of the Calvert Street off-street parking area, which is located directly opposite the site.
On the Friday this was effectively at capacity until 7pm. On the Saturday, the same demand pattern occurred, with this parking area effectively at capacity until 7pm. These survey results concurred with my own observations. I have observed this parking area not only full, but typically with several cars waiting in the isles for other drivers to depart.
With the on-street demand, over 90% capacity was used on both days up to 5pm. On the Friday, the capacity utilisation did not drop below 80% until 9pm, while on the Saturday, the capacity utilisation dropped below 80% at 8pm .

34 In summary Mr Hallam concluded there is an existing heavy demand for car parking in the vicinity of the site on the days surveyed until well into the evenings.

35 Mr Hallam prepared a supplementary report in October 2007. The purpose of this supplementary report was to have regard to the surveys of the two hotels in Marrickville undertaken by Coady Consulting and an agreed additional question that was put to Mr Hallam as to whether the new survey results would cause him to change the views expressed in his statement of evidence of August 2007 and stating that he was free to conduct such further investigation or survey as he considered necessary. Mr Hallam prepared his supplementary statement wherein he considered the survey material presented and also undertook his own survey.

36 Mr Hallam’s supplementary statement addresses the car parking issue by first assessing the likely hotel patronage over the day. Then the transport mode of hotel patrons is considered, followed by a review of the overall projected peak parking demands and a comparison with available public parking in the area.

37 Mr Hallam concluded that:

Looking first at the evening period from 7pm onwards the vacant spaces in council’s Calvert Street parking area exceeds the projected hotel patron demand for all sets of survey results plus the evenings are not the concern. He states that it would also follow the probability of patrons parking on residential streets and then having amenity impact with late night vehicle movements is not high, unless hotel patrons parked on the street during the day while working in Marrickville and then stayed there all day and into the evening.
The main concern is with the daytime parking demand, at the time that parking in Marrickville is at a premium, with retail and commercial activity. Starting with Saturday results a day when the surveys have shown that parking demand is slightly higher than that on a Friday up to 6pm up to 4pm the projected hotel patron public demand is in excess of the numbers of vacant parking spaces. Up to and including 4pm the Calvert Street parking area has zero vacant spaces at 6pm this car park still had only two vacant spaces. Hotel patron would need to look around for available on street spaces in the 4 - 6pm period. On this Saturday daytime data, the projected parking situation would, in my opinion, be unacceptable subject to further discussion on parking credits set out below.
Looking at the Friday data for the August surveys of hotels there are virtually no vacant spaces in the Calvert Street car park before 7pm. Hotel patrons thus would need to rely on on-street parking. At 1pm and 4pm the hotel patron parking demand would exceed the on-street available spaces.
Looking at the October data the hotel patron parking demand would then again would need to rely on the on-street parking, since the off-street parking is full until 7pm. There is inadequate on-street parking available at 2pm, 4pm and 5pm with just enough at 3pm.
On this Friday daytime data the projected parking situation would in my opinion be unacceptable subject to the discussion of parking credits...
When parking utilisation exceeds 90% parking becomes more difficult to find. Clearly if a driver circulates throughout the whole area they might find parking eventually.
Returning to the issue of parking credits the essential proposal is to change the use of 550 sq m of floor space from retail shop to hotel. Based on DCP 19 this theoretically has a demand for 13 spaces. I accept that the 81 spaces calculated under the DCP 19 for the proposed hotel not correct. The DCP has substantially higher parking rates for hotels than current patterns suggest. It could be that the retail rate is also high. For this review I have assumed that the DCP rate for retail is correct. This figure of 13 spaces includes both staff and customers.
For the proposed hotel with no reduction made for patrons possibly parking at work or in other private parking areas as is appropriate for this comparison the projected patronage at 4pm 4.30pm and 5pm on the Friday in October was 55, 60 and 58 patrons which at 28.9% car driver, equates to parking demands of 16, 17 and 16 spaces. Thus the peak patron parking demand is 17 spaces. There are proposed to be 10 - 15 staff. At a typical 50% driver rate for staff this equates to 5 - 8 parking spaces. Allowing for 6 spaces the total hotel peak parking demand is 23 spaces, compared with the current DCP figure of 13 spaces. Both the current situation and the proposed situation only allow for staff to park on the site.
The question then is, is it reasonable in a situation where there is a very high demand for both public on-street and off-street parking to approve a development that will substantially intensify the use and hence parking demand, with the parking demand to increase from 13 to 23 spaces during the afternoon peak period?
While I appreciate that the situation is not clear cut on the evidence that I have I consider that it is not appropriate. Thus my final conclusion in August 2007 remains valid. Hence the proposed change of use from a shop to a hotel at a site that already has inadequate parking, in an area where there is a high demand for parking during the day, is an inappropriate intensification of use of the premises.

38 Mr Wright submitted on behalf of the Council that there is no dispute in terms of the parking after hours and that Mr Hallam as the single expert questioned the extent of the surveys of Mr Coady and as such in the confines of time carried out a check survey.

39 Mr McLaren was asked if he had any empirical data to compare the demand of the shoe shop to which he responded no but from his own experience it can be looked at as a shop in accordance with the DCP requirement of one space per 45 sq m.

40 Mr McLaren agreed that the radius of a 200 m distance is reasonable in terms of patrons walking as this represents above a three minute walk. However, if this radius is pushed out to 400 - 450 m he agreed that this would push the parking for the hotel into the residential area but he noted it also increases the availability of public parking areas. Mr McLaren says that the inner circle of 40 spaces does not rely on a large radius. Mr McLaren said that it is not desirable to rely on residential streets but parking is available within 250 m of the subject site.

41 Mr McLaren was questioned on what empirical material is available since the closure of the RSL and he indicated that there had been no kerb side parking data since the closure or any further parking demand studies. He said that he had no knowledge of parking in the area before the RSL closed.

42 On behalf of the applicant Mr Hale submits that the parking demand had been determined by survey analysis with a comparison and allowance for the requirement of the shoe shop and that there was no dispute with respect to the assessment carried out for the shoe shop under the DCP. However, no regard should be given to the DCP in terms of the parking demand for the hotel as Mr McLaren has indicated the that the DCP is based on discredited material prior to random breath testing, Mr Hale said that the additional impact needed to be identified and Mr McLaren determines this to be three spaces, that is three spaces over and above the shoe shop requirement with a worst case scenario of 60 patrons.

43 Mr Hale submits the subject premises are within a town centre which by their very nature have concentrated activities and that within 200 m there is adequate parking for the hotel.

44 Mr Wright submits that the objects of the DCP are relevant to the car parking assessment and DCP objective to ensure that “parking meets community demand” and that the demand generated by the hotel compared to the shoe shop represents an intensification or generation of a greater parking demand. He submits that on the one hand the DCP has been used to assess the demand for the shoe shop compared to the actual demand of the critical time period that is in particular between 2 pm and 5 pm on a Friday.

45 Mr Wright further submits that Mr McLaren’s radius for parking of 450 m extends that of Mr Coady which was 200 m and there is no explanation as to why and this clearly has the effect of pushing parking into the adjoining residential areas and that there has not been an adequate assessment of parking.

Social Impact

46 Ms George for the applicant considers that the closure of the Henson Park Hotel (approximately one kilometre) and transferring the licence to the proposed hotel that this neutralises the social impact issues within the catchment area and in the Marrickville LGA as there is no change in outlet density. The Henson Park Hotel has a gross floor area of approximately 870 square metres compared to the proposed hotel of 550 square metres.

47 Ms George concludes in her Statement of Evidence that the proposed hotel is unlikely to result in an unreasonable social impact for residents of the catchment area or the Marrickville LGA due to:

(a) The gentrification of the area that is the change demonstrated in the 2006 Census to the 2001 Census.
(b) The closure of the Henson Park Hotel;
(c) The closure of the Marrickville RSL and (now) the Anzac Club;
(d) Accordingly, the findings of Jagot J that alcohol related harm from increasing the density of licensed premises in this and is highly disadvantaged community is no longer applicable with respect to both issues that is density and disadvantaged groups; and
(e) The potential public interest benefits provided by the proposed hotel.

48 Ms George states that the change in statistics from the 2001 to 2006 Census shows an improvement in the “at risk of alcohol related social harm” have reduced in number. At the same time she also notes that the catchment area has an over representation of a number of groups potentially ‘at risk of alcohol related harm’ as follows:

• People from a non-English speaking background
• Those aged 15 plus who do not hold tertiary qualification
• Households in rented public and private accommodation
• Single parent households with dependent children
• The unemployed
• Those working as labours or in related occupations.

49 Ms George is of the opinion that there is a positive social impact because the subject application results in the removal of the Henson Park Hotel license to the proposed hotel and the potential closure of the Marrickville Anzac Memorial Club will further reduce any potential social impact as there will be one less outlet for the sale of liquor and for gaming. She notes that, to the extent that outlet density represents a reliable predictor of levels of alcohol related harm in a community, the potential for such harm is neutralised due to the transfer of the Henson Park Hotel licence and the closure of the Marrickville RSL.

50 The elements of the community potentially at risk of social harm as a consequence of the grant of the application in Ms George’s opinion include:

• Indigenous and ethnic communities
• Groups who are at risk because of their particular demographic or socio economic characteristics
• Victims of alcohol related crime indicated by data complied by the Bureau of Statistics and Research
• Victims of alcohol related health problems
• Any other at risk group.

51 Ms George is further of the opinion that “the statistical data alone does not necessarily mean that the overall social impact of the proposed application would be so unreasonable to any element to the community that refusal of the development is warranted”. She says that this is particularly so where the socio-economic and demographic characteristics of the catchment area and the LGA have changed as a result of the gentrification of the area.

52 Ms George concludes that the findings of Jagot J that alcohol related harm from increasing the density of licensed premises in this highly disadvantaged community is no longer applicable with respect to both issues that is density and disadvantaged groups.

53 Dr Stubbs provided a statement and in her opinion the new hotel is likely to lead to significant adverse impacts within the locality of the proposed premises. In summary the main impacts are likely to be:

• Significant adverse impacts on the amenity of the immediate locality 300 metre radius including adverse impacts on tangible and less tangible experiences of existing residents regarding quality of life in the neighbourhood, supported by the reasonableness and the factual basis of the resident concerns about the proposed hotel in this locality;
• Likely exacerbation of existing social problems in the immediate and the secondary locality (1km radius) of the proposed hotel including increased crime, family violence, personal and family stress, which will be more acutely experienced by the high proportion of venerable residents in the locality.

54 Dr Stubbs also raises issues of public interest having regard to the large number of and nature of objections based on community concerns related to alcohol and gaming related harm as well as amenity impacts in the locality arising from the particular configuration of land uses surrounding the proposed premises.

55 Dr Stubbs notes that with respect to the closure of the RSL the crime data and in particular the crime maps and recent resident survey identify amenity impacts associated with the existing hotels. Furthermore the RSL lies outside the 300 metre radius where the amenity impacts of the proposed hotel are most likely to be felt.

56 Dr Stubbs notes that while the RSL has closed and the Anzac Club may close that the future is unknown as both these premises continue to hold liquor licences.

57 Dr Stubbs includes maps to show the index of relative socio economic disadvantage and this is derived from the Census. Overall she notes that in support the observation from qualitative research that there are essentially two populations in the immediate locality - a poorer, lower income, less well educated and lower employment status group with high level of cultural diversity being gradually overlaid by better educated and higher income group with continuing high levels of cultural diversity.

58 Dr Stubbs further comments that the incremental gentrification is likely to be a contributing factor in the recent closure of the Marrickville RSL with a traditional support patron base more likely to be working class, and the proposed hotel may pick up this traditional more socially economically vulnerable sub-market as well as a younger group that is significantly different to the younger more educated higher employment status group gradually displacing the historical residents of the locality. This is in part due to the location of proposed premises.

59 During the proceedings the SEIFA index (socio-economic index for areas) was referred to, and this is a product developed especially for those interested in the assessment of the welfare of Australian communities. The ABS has developed indices to allow ranking of regions/areas, providing a method of determining the level of social and economic well-being and these are:

Index of Advantage/Disadvantage - A new index, and is a continuum of advantage to disadvantage. Low values indicate areas of disadvantage; and high values indicate areas of advantage.
Index of Disadvantage - focuses on low income earners, relatively lower educational attainment and high unemployment.
Index of Economic Resources - This index includes variables that are associated with economic resources. Variables include rent paid, income by family type, mortgage payments, and rental properties.
Index of Education and Occupation - This index includes all education and occupation variables only.

60 Dr Stubbs notes in the relative socio-economic disadvantage that the most striking feature of Marrickville LGA is the diversity of SEIFA scores at the census collector district (CCD) level as shown in the geographic representation of the SEIFA scores and figures as shown in Figure 4 and Figure 5. She notes that the LGA is geographically divided between the advantaged northern area, and the disadvantaged area. Dr Stubbs states that it is significant to note that the proposed site is in the centre of the most disadvantaged cluster of CCDs. To this must be added the accessibility of the locality, the specialist shopping targeted to people from different cultural groups, and significant clustering of on licensed premises within 300 metres.

61 Dr Stubbs states that:

Again there is a considerable difference between CCDs in the LGA and within the 1km radius in relation to the index of economic resources, again those areas with least economic resources are included in the 300 metre radius and particularly the area containing the two residential flat buildings to the immediate west.

62 On the mapping of crime hotspots extracted from the NSW Bureau of Crime and Statistics and Research, Dr Stubbs notes that:

These maps show crime hotspots associated with either the location of the proposed hotel or with the location of existing hotels in summary the crime maps provided show hotspots for four types of crime associated with the location of existing hotels and it should be noted that there is no evidence of crime hotspots associated with either the Marrickville RSL or the Anzac Club. Maps show non domestic violence related assaults non domestic alcohol related results. It is noted that the hotspot at the corner of Illawarra Road and Marrickville Road correlates with the two existing hotels in Marrickville Road and the location of the proposed hotel.

63 Dr Stubbs concludes from her socio demographic analysis of the 1km radius the presence of significant at risk populations have been linked to heightened susceptibility to a variety of alcohol related impacts.

64 The social planners prepared a joint statement wherein they agreed that there is evidence of alcoholic related crime at the LGA level higher than the benchmarks with some hotspots for alcohol-related crime in the primary locality including at the corner of Illawarra and Marrickville roads that appear to be related to existing hotels.

65 For the purpose of the analysis the social planners agreed that the immediate vicinity is within 300 m and that the secondary locality or catchment is 1 km. Dr Stubbs is of the opinion that in relation to amenity crime and health there is a relationship between the existing problems in the localities and the presence of a vulnerable population. The literature identifies certain high need groups in relation to alcohol and gambling and in the area there are a high proportion of these vulnerable groups in the primary and secondary localities. Ms George on the other hand states that the existing population is more resilient to alcohol-related harm than previously. It is agreed that gentrification has occurred between 2001 and 2006 Census.

66 Dr Stubbs states that with a high proportion of the subject premises devoted to alcohol and gaming this suggests that the clientele of the proposed hotel is less likely to come from the gentrified end of the demographic spectrum. However, Ms George considers that the relocation of the licence to the subject premises is neutral in terms of density impacts within the immediate vicinity due to the closure of the RSL and this will have a positive impact on alcohol-related crime. Dr Stubbs notes the crime maps appear to indicate crime associated with the location of the existing hotels.

67 Ms George considers the closure of the RSL is a significant factor and there are a number of public interest benefits in that a recreational venue has been lost and the proposed hotel will redress that closure in terms of entertainment and recreation. Dr Stubbs said the proposed hotel does not offer the same range of facilities with a limited focus on alcohol and gaming services.

Findings

68 I have assessed the development application in the context of all the evidence to the Court including that of the experts, the councils planning framework and the Environmental Planning and Assessment Act. For the following reasons I have determined that the application does not warrant approval and it fails on both parking and social impact.

69 I accept that the closure of the RSL and Anzac Clubs represents changed circumstances and this development application must be assessed on its own merits under s79C of the Act. I also note that there are changing demographic characteristics of the locality. However, I am not persuaded on the evidence before the Court that the application warrants approval on a merits assessment.

70 Mr McLaren on his engagement as the single expert sought the survey material commissioned by both Mr Coady and Mr Hallam as well as bar sale figures from the Marrickville Tavern and the Royal Exchange Hotel and not all of the information was made available to him in a timely manner.

71 Mr McLaren makes the comment that there would be increased parking availability during the weekday afternoon periods due to the closure of the Marrickville RSL, however no parking surveys were undertaken for the RSL itself.

72 While the information was not included in Mr McLaren's report the copy of the development approvals for the RSL in 1987 and 1993 contain conditions requiring 355 off-street parking spaces and a minimum of 373 off-street spaces respectively. These quantums were calculated on the basis of the DCP for bar areas restaurant etc. The 1993 approval notes that there are 110 car spaces existing on site and these are intended to remain with the additional car parking spaces proposed provided on an adjoining property in a multilevel car park (279 car spaces) in an area leased from the State Rail Authority and to be used jointly by commuters and RSL club patrons.

73 On questioning Mr McLaren was unaware of the parking availability following the closure of the RSL to asess the parking demand and supply. Mr McLaren's conclusion that the proposed development is supportable on parking grounds particularly in view of the increased parking availability during weekday afternoon period is due to the closure of the Marrickville RSL club is not supported by any evidence. No new survey data is available since the closure of the RSL to support this conclusion.

74 I accept that the requirement for parking calculated on the basis of the DCP is excessive and as such I have given it limited weight except that I note all the traffic experts rely on the DCP to determine the existing parking demand for the shoe shop and the credit of seven spaces to be allowed for in the assessment of this application. In my assessment I have also had regard to the objectives of DCP 19 that would also be regarded as sound town planning principles. The use is of the existing premises for a hotel even if the demand is less than the DCP guideline clearly generates a greater demand than the retail use and I am not persuaded that the closure of the RSL is reason to approve the development.

75 Mr McLaren questions Mr Hallam’s survey that he carried out to check the original survey reports submitted by the applicant. However he provides no new survey material or checks that satisfy me that the original surveys should be accepted, except to comment that they are more extensive. The experts agreed that parking is at a premium for the critical time period of between two to 5 p.m. when the parking demand for shopping is at a peak, and for the proposed hotel a shoulder peak. While Mr McLaren visited the area on a number of occasions his report does not provide a robust analysis or survey of this critical period.

76 While Mr McLaren states that on- street parking is available within 200 m of the subject site at the same time he extended this radius to 400 m in his analysis and therefore this would encompass the RSL site. He was also unable to provide any information on the parking situation prior to the closure of the RSL. Nonetheless he concludes in his report that “the proposed development is supportable on parking grounds, particularly in view of the increased parking availability during weekday afternoon periods due to the closure of the Marrickville RSL Club”.

77 I am not persuaded that Mr McLaren’s above conclusion is supported by his limited analysis. In my assessment he failed to provide any substantive material to provide an understanding of the parking situation after the closure of the RSL or an analysis of the parking provided on-site at the RSL and whether or not it satisfied the parking demand.

78 Furthermore Mr McLaren states that he expects that any redevelopment of the RSL will need to provide its parking demand on site, or be subject to merit-based assessment of its impacts. The cumulative impact of a change of use for many of the existing retail shops was not considered. While there may be a tolerance or justification for not providing parking for customers in certain circumstances where there is a community benefit by the establishment of a new facility service or business to an area. However, I am not satisfied on the evidence provided to the court that no on-site parking for patrons is justified in the circumstances of this case. In my assessment it would be an undesirable precedent but more importantly contrary to and anti-pathetic to the objectives of the DCP “to ensure that car parking provision meets business an community demands:” and “to ensure that an appropriate level of public car parking facilities are provided for use by shoppers and workers within the Marrickville business centre.”

79 I accept the evidence of the experts that the required provision of parking for hotels in DCP 19 is excessive and note the changed circumstances outlined in Mr Coady's statement. It was submitted on behalf of the applicant that little or no weight should be given to DCP 19. Nonetheless the aim and objectives of the DCP are still relevant and I must give the DCP central consideration and focus in my assessment of the development application as required by the Court of Appeal authority in the judgement of Zhang v Canterbury City Council [2001] NSWCA 167.

80 It was submitted on behalf of the applicant that it is not the role of the Court to determine the number of hotels in the area, at the same time the closure of the licensed premises of the RSL and Anzac Clubs was put forward as a reason for a change in circumstances to lodge a new development application.

81 In my assessment of the application I do not need to make an assessment on the question of economic impact and competition between similar businesses or establishments and indeed this is not raised as an issue. Rather the issue is the concentration or clustering of hotels within a small radius of 300 m and an assessment of the social impacts arising from same given the indicators of relative disadvantage in the immediate locality and alcohol-related crime in close proximity of where the hotel is proposed to be located.

82 It was submitted on behalf of the respondent that the proposed hotel offers nothing more than the service of alcohol and gaming with bar snacks and no entertainment and no restaurant. The applicant submits that the proposed hotel will provide for an entertainment/recreation venue in particular because of the closure of the RSL and Anzac Clubs.

83 The social planners agreed that the catchment in which the hotel is proposed is within the natural catchment to attract the most disadvantaged clientele. In this case I am persuaded by the evidence of the respondent that the closure of the RSL does not ameliorate the social impacts. The applicants social planner conceded that the RSL still maintains a licence.

84 The applicant proffered a condition that on the approval of this application the hotel licence would be transferred and the Henson Park premises would cease to operate and not seek approval for another hotel. However this does not assist the applicant in the immediate vicinity and I accept the respondent’s submission that the Henson Park hotel is clearly a different venue in a more gentrified area and not at the epicentre of the socially disadvantaged and its hours are 10am to midnight except on Sunday noon to 10pm.

85 I am persuaded by the evidence of Dr Stubbs that the proposed hotel on the site is inappropriate given the vulnerability of the population. I note from the 2001 to 2006 Census that there is a process of gentrification of the area. The closure of the RSL and the Anzac Memorial Club do not neutralise the impact of the proposed hotel because of its proximity to the Hotels near the intersection of Illawarra and Marrickville Roads. I agree with Dr Stubbs that the nature of the hotel is different in terms of the services offered.

86 Dr Stubbs provided a map of the 1 km radius of the proposed hotel that shows a comparison of selected socio demographic indicators referred to as the SEIFA index of disadvantage of November 2008. This is reproduced as figure 4.

87 Ms George and Dr Stubbs agreed that the primary catchment is more important in an assessment of social impact. That is a 300 m radius around the subject site. The applicant submits that the outlet density calculation is that the catchment area of 1 km demonstrated there is an under representation of hotel premises although within the 300 m radius of the subject site there are two hotels.

88 I agree with the submission made on behalf of the applicant that the role of the court is not to prescribe a certain number of establishments of the same nature within close proximity or indeed with in a town centre. However, the Court must assess the suitability of the site for the development in accordance with section 79C (1)(c) of the Act. In my assessment the site is not suitable for the proposed hotel because of the inability to provide any patron parking on site and the proximity of the premises to a rate of crime density as shown in Figure 5 for non-domestic alcohol related assaults and within in a socially disadvantaged catchment area as shown by the 2001 and 2006 Census Data and Figure 4.

89 In this regard I agree with Dr Stubbs that one must drill down to the more detailed census data and while as shown in the demographic profile tables of Ms George in her report there is an improvement in the demographic characteristics that contribute to those persons who are more disadvantaged. None the less the indicators for the catchment area are still significant compared to the New South Wales average. I agree with Ms George that the demographic profile for the LGA as a whole does not reflect the same degree of disadvantage or vulnerability, however the factors such as non-English speaking persons is 38.3% compared to 17.2% for the state average or 24.6% for the Sydney statistical division similarly the percentage of persons in either public housing or private rental accommodation is nearly 40% and this compares to 29% for the State and the unemployment rate in 2006 was 7.2% compared to 5.9% for the State.

90 Ms George states that “to the extent that outlet density represents a reliable predictor of levels of alcohol-related harm in a community, the potential for such harm is neutralised due to the removal of the Henson Park hotel licence and the closure of the Marrickville RSL club” and “the closure of the RSL club means that there is a decrease in outlet density/concentration of licensed premises in the catchment area, and this represents a positive social impact”. However, this statement is premised on the closure of the RSL as opposed to the licence and as such the RSL may seek to re open and indeed it was the underbidder for the Anzac Club premises that is some 470 m from the subject premises. Ms George says that the transfer of the licence from the Henson Park hotel results in no change to outlet density and therefore neutralises the affects of the proposed hotel in terms of density within the catchment area and Marrickville LGA.

91 Ms George states that the changes in socio-economic and demographic characteristics suggests the population is likely to be more resilient to potential alcohol related social harm. While this may be the case there are significant differences in the profile tables for the LGA to the smaller catchment level.

92 Also as noted before the Henson Park hotel and similarly the Anzac club is not within the same 300 m of the other two hotels and the more disadvantaged groups.

93 In my overall assessment I am also not satisfied that the hotel use for the subject premises satisfies the objects of the Environmental Planning & Assessment Act section 5 a (i) and (ii) that proper management, development.. including... towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; and the promotion and coordination of the orderly and economic use and development of land. Furthermore, the proposal is contrary to the general objective of the LEP “to encourage the quality of life and promote the well being of the local community”.

94 Accordingly on the basis of my assessment above the formal orders of the Court are:

1. The appeal in respect of the premises known as 252-254 Illawarra Rd Marrickville is dismissed.
2. The development application for a hotel lodged with Marrickville Council 27 February 2008 is determined by the refusal of consent.
3. The exhibits are returned to the parties except for 6, 7, and H.

___________________

J S Murrell
Commissioner of the Court
ajl/ljr
Figure 1
Ground floor plan of hotel

Figure 2

Figure 3

Figure 4

Figure 5

Figure 6
Map showing clubs and hotels

25/08/2009	-	Hearing Date correction from 10 April to 1 April - Paragraph(s) Coversheet
04/09/2009	-	typographical errors - Paragraph(s) Par 74