Longhill Planning v Wyong Shire Council

[2006] NSWLEC 202

Land and Environment Court

of New South Wales

CITATION:

Longhill Planning v Wyong Shire Council [2006] NSWLEC 202

PARTIES:

APPLICANT
Longhill Planning

RESPONDENT
Wyong Shire Council

FILE NUMBER(S):

10278 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- Demolition of an existing warehouse building, Construction of a hotel, Amenity and Social Impacts in the locality, Existing use.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Wyong Local Environmental Plan 1991

DATES OF HEARING:

01/03/2006 and 02/03/2006

 
DATE OF JUDGMENT: 

04/27/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Tomasetti, barrister
Instructed by Mr Myers
of Cameron Myers

RESPONDENT
Mr A. Pickles, solicitor
Instructed by Mr P. Brown
of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

27 April 2006

10278 of 2005 Longhill Planning v Wyong Shire Council

JUDGMENT

Introduction

1 This appeal relates to Development Application No 975/2004, which is for the development of Lot 2 DP 518378 being land known as No 211 Wallarah Road, Kanwal as a hotel ("the proposed hotel"). Demolition of an existing warehouse building is also proposed.

2 The proposed hotel building is to have a total floor area of about 550 sq m including a cafe lounge of about 43 sq m, a gaming room of about 53 sq m, a lounge area of about 77 sq m and a bistro area of about 75 sq m. In addition there is to be an outdoor garden area of about 30 sq m. Sixty on-site car parking spaces and a loading dock are to be provided via a separate entry and exit arrangement off Wallarah Road. The building is to be mainly of single-storey construction with a two-storey service tower arrangement in the northwestern corner.

3 The essentially rectangular shaped site has an area of 2883 sq m and a frontage of about 72 m to Wallarah Road.

4 The locality comprises a mixture of land uses. There is a local shopping centre, child-care centre, community hall, church, and aged housing generally opposite the site to the south in and off Wallarah Road. Surrounding the site to the northwest and east is a caravan park known as the Oasis Caravan Park. It is in the same ownership as the subject land. Beyond the caravan park is the Wyong Rugby League Club ("the rugby league club")

5 Wallarah Road is a median divided arterial road carrying significant volumes of traffic.

Statutory provisions

6 The site and the adjoining caravan park are included in the 2(b) Multiple Dwelling Residential Zone under Wyong Local Environmental Plan 1991 ("the LEP"). In this zone a hotel is a prohibited land use. Notwithstanding this, I am satisfied that because the existing warehouse development on the site was lawfully established and is presently a prohibited purpose, it is an existing use under Division 10 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and Part 5 of the Environmental Planning and Assessment Regulation 2000 The proposed hotel is thus permissible with development consent. It is also unaffected by recent amendments to the existing use provisions of the EP&A Act by virtue of the savings provisions therein.

7 The application was advertised and some 30 submissions objecting to the proposal were received. Matters of concern raised in the submissions include:

• The hotel will result in an increase in the present level of antisocial behaviour in the area including noise and vandalism. This antisocial behaviour will adversely affect residents living nearby, including those in the caravan park, as well as the church and the community facilities opposite.
• The proposed hotel is unnecessary given the existence of the nearby rugby league club and other licensed premises and bottle shops.
• Wallarah Road carries significant volumes of traffic and the proposal will cause additional traffic problems.
• The proposed hotel will provide a number of poker machines with adverse social consequences.

8 A council officer's report was prepared, examining the proposed hotel in detail and, taking into account the resident's objections, concluded that:

The proposed development generally complies with the relevant planning instruments and meets the car parking and building requirements. However, the detrimental impact upon the amenity of the adjoining current and future residents in relation to noise generated by the proposal, in particular the car park renders the proposed development inappropriate. The likely detrimental impact of the car park upon future and current adjoining residents cannot be readily addressed.

9 On 29 Jul 2005 the council issued a notice of determination refusing the development application for reasons relating to detrimental social impacts especially in relation to noise as well as a number of general reasons including: contrary to the submissions received; not in public the interest; and does not represent orderly development in accordance with the current zoning and the likely future character of the residential locality.

10 On behalf of the respondent Council, expert evidence was given by:

• Mr S. Layman - consultant town planner and architect
• Ms K Forrest - social planner

11 On behalf of the applicant, expert evidence was given by:

• Mr J. Hancock - consultant town planner
• Dr R Berg - social researcher

12 In addition expert evidence was given by the Court appointed expert Mr R. Tonin a consulting engineer in acoustics.

13 The hearing began with an inspection of the site and its environs. Whilst on site I heard from the following objectors:

• Mr S. Pullen the Minister of the nearby Anglican Church.
• Ms M Williams of site No 4, Oasis Caravan Park
• Ms S Colbett Smith, Services Manager - Community Centre
• Ms J. Riddington of Allambee Place (aged accommodation housing)
• Ms L Bannister of Allambee Place (aged accommodation housing)
• Mr D Hay the Minister of the Seventh Day Adventist Church.
• Mr T Scheibel of the Lakes Community Precinct Committee
• Mr D Dash of 2 Elder Close, Kanwall
• Mr K Nell of Marks Road, Kanwall
• Mr A Garrity of the Oasis Caravan Park
• Mr T Haywood of the Oasis Caravan Park
• Mr K Wahlberg of Heathfield Road Kanwall

14 The concerns expressed by these objectors are essentially the same as those contained in the submissions described above. Particular mention needs to be made of the following:

• The proposed hotel would be inappropriate given that there are three churches within 500 m of the proposal especially taking into account the church opposite and the community centre and the aged housing,
• The level of antisocial behaviour in the locality especially at night is presently unacceptable and any increase in such inappropriate behaviour would be entirely unacceptable. Such behaviour includes damage to property and littering,
• The local community is generally poor and the availability of further access to drinking and gambling would have serious social consequences,
• The church and the community centre provide programs for alcohol, narcotics and gambling addictions and to have a facility that facilitates drinking and gambling so close would be counterproductive,
• Sleep disturbance in the locality is common and is getting worse. This is a result of the behaviour of mainly young people leaving the leagues club late at night; the proposal will make this even worse. Complaints to the Liquor Administration Board and the NSW Police have not resulted in improvements,
• It was accepted that the proposed hotel would be different to the leagues club but there would nevertheless be an increase in number of people who drink alcohol,
• There are already sufficient liquor outlets in the locality.

15 As identified in the respondent's Statement of Issues, the issues of concern to the council comprise:

• Non-compliance with the objectives of the 2(b) zone,
• Adverse amenity impacts on nearby residential uses,
• Unacceptable noise impacts in the locality,
• Unacceptable social impacts in the locality,
• Matters raised by resident’s objections.

16 These issues devolved into the following:

• Whether the proposed hotel would have adverse amenity impacts on adjoining or nearby land in terms of building appearance and noise,
• Whether the proposed hotel would have unacceptable social impacts in the locality especially in relation to the likely night-time behaviour of hotel patrons.

17 Because the proposed hotel has a frontage to a main road the Roads and Traffic Authority ("the RTA") was consulted and although an objection was initially expressed this has now being withdrawn. As there are no longer any concerns being expressed by the RTA or the council in relation to traffic, including on-site parking and access to and from the main road and having considered this aspect whilst on site I am satisfied that this is not an issue. In this context I also note that the existing median strip in the road is to be supplemented with a pedestrian barrier.

18 There was no dispute that the Court can take into account any impacts that the proposed hotel might have on existing surrounding development. However, the applicant submitted that, as required by s 108(3) of the EP&A Act the provisions of the LEP can not be taken into account in seeking to the understand the likely future character of development on surrounding adjoining lands if those provisions … would derogate or have the effect of derogating from the incorporated provisions and would thus have no force or effect. Despite this, it would in my opinion, be wrong not to seek to understand the likely future character of surrounding development and take it into account.

Amenity impacts

19 Leaving aside possible social impacts that the proposed hotel might have on the surrounding locality, including existing development on the south side of Wallarah Road, the impacts that it might have on the caravan park that surrounds the site to the south, west and east are limited to visual impacts and noise.

20 Mr Hancock and Mr Layman agreed that there was potential for noise and light impacts especially from the car park on the caravan park. I understand that possible problems associated with lighting can be resolved by the provision of appropriate fencing and light fittings. As for noise Mr Hancock said that because the proposed hotel was to be closed at 10 p.m. this should not be a problem.

21 Dr Tonin conducted a comprehensive investigation into the noise likely to be generated by the proposed hotel, including noise from the building and the car park. He concluded that subject to a number of recommendations in relation to matters such as the mechanical plant, hours of operation, the management plan, and various construction aspects, which matters can be incorporated into conditions of consent, the noise impacts will be acceptable. Having considered his report I have been persuaded that the likely noise generated by the proposed hotel is unlikely to be such as to warrant the refusal of the application taking into account that his recommendations have been accepted by the applicant and incorporated into the conditions of consent.

22 In relation to the visual impact of the proposed building when viewed from the north it is relevant to note that whilst the building is about 35 m long, it is about 13 m shorter than the building that it is to replace. Similarly, whilst the tower element of the building in the north west corner having a height of about 9 m is about 2 m taller than the existing building it has, by comparison a very small footprint, being about six m square. The remainder, indeed the majority of the building in so far as it presents to the north has a height to the gutter line of about 4.5 m. An analysis of the western elevation produces a similar outcome. Because the building is set back more than 22 m from the eastern boundary no concerns in this context arise.

23 The northern and western elevations of the building, despite the tower element and the curved roof form are relatively bland with little fenestration. It is also not a building having an essentially domestic scale and character. These were matters of concern to the town planners given that there are no setbacks on the northern boundary whereas the existing building has a setback of 2.6 m. As a consequence the applicant, who also owns the surrounding caravan park has agreed to provide a 3 metre wide landscape buffer zone on adjoining lands to the north and west and a 1 metre buffer zone to the east.

24 Having considered the appearance of the proposed hotel when viewed from the surrounding caravan park and taking into account the proposed landscape buffer zones-satisfied that the proposed new building will be a significant improvement by comparison with the existing warehouse building. Whilst this conclusion can be given some weight it is not by itself determinative. The more important question is whether the new building will have a satisfactory visual impact.

25 Whilst the building will, at 35 m, be quite long, its height for the most part will be between 1 and 2 storeys, a height that cannot be said to be unreasonable even in a residential area. In my opinion, whilst greater architectural modulation along the northern elevation can and should be provided, given that the applicant is the owner of the land to the north and the proposed 3 metre wide landscape buffer could be slightly modified to accommodate this, given that the building is now effectively set back by this distance its presentation should not be fatal to the application. Also, once the landscaping is established, it will provide the building with an appropriate setting that will soften its appearance although this consideration is not determinative.

26 The two town planners agreed that it is likely that the caravan park will be redeveloped in the short term but there was no agreement as to what form this redevelopment might take. I am inclined to agree with Mr Layman that it will be for residential purposes. If this were to occur I accept the evidence of Mr Hancock that an appropriate and compatible form of development could be designed, which would not suffer unacceptable adverse consequences arising from the proposed hotel. As Mr Hancock explained a satisfactory level of integration could be achieved taking into account the present common ownership. In the circumstances and taking into account the residential zoning of this land, no issue of derogation arises.

Social impacts

27 Less easily resolved is the question of whether there would be any social impacts caused by the proposed hotel on the surrounding locality generally and whether these impacts would be such as to indicate that refusal of the application is warranted.

28 Ms Forrest and Dr Berg agreed in relation to the demographic characteristics of the locality. The surrounding suburbs typically comprise a mix of families with dependent children and retirees. The residential profile of the caravan park is consistent with that of caravan parks in the shire having socio-economic indicators below the state average. Existing surrounding suburbs also have socio-economic indicators below the state average although newer nearby developing suburbs have above average indicators. They also agreed that the proposed development would have potential social benefits for the local community including: increased employment opportunities; providing am alternative lunch and dinner venue with a different ambience compared to the rugby league club; and being within walking distance for some local residents. Access to public transport was not an issue given that a courtesy bus will, as required, supplement existing services.

29 In relation to both gambling and inappropriate drinking Ms Forrest and Dr berg agreed that problems do exist in this district, an opinion supported by local community groups. They recognised resident's fear's that the proposed hotel might increase these problems, particularly taking into account that government regulations recognise there are cumulative impacts associated with gaming machines and alcohol.

30 Ms Forrest did not support the proposed hotel, believing that it would be in an inappropriate location due to its close proximity to community and residential land uses including the caravan park. Potential adverse social impacts on these uses include noise, antisocial behaviour, increased vandalism and reduced community safety. These impacts will adversely affect the quality of life and living comfort of the residents that is already affected by antisocial behaviour. Whilst the proposed hotel is likely to attract a mix of people from the surrounding community, the tone of the tavern is, contrary to Dr Berg's contention, unlikely to be set by families. She pointed out that there is a potential for all licensed premises to create social and community problems. Whilst good management can have a beneficial impact its ability to influence behaviour beyond the premises is limited.

31 Ms Forrest also pointed out that although fear of crime is not the same as actual risk, for some people it is no less real. Older people, in particular, are likely to employ strategies, which constrain their behaviour and mobility and this is likely to be an adverse consequence of the proposal. She also noted that there are other readily accessible licensed premises in the locality that adequately satisfied the need for alcohol and gambling in the area. There is no need for a further outlet in the locality.

32 According to Dr Berg concerns about antisocial behaviour in this locality are based on existing problems with patrons from the rugby league club who depart very late at night and in the early hours of the morning. Apparently residents have reported such problems typically after 11 p.m. These problems are unlikely to be significantly increased by the proposed hotel, given its design features including the management plan and the much earlier closing time as well as the fact that access to alcohol and gambling is presently readily available in the locality.

33 Taking into account the proposed hotel's better quality, more interesting decor and more inviting ambience Dr Berg asserted that it will be responsive to the needs of many residents in the nearby, more affluent suburbs who would prefer this form of licensed premises by comparison with for example the rugby league club. In this sense it should be responsive to an existing demand. Importantly the form and style of the hotel will be such that it will facilitate and encourage patronage by a greater proportion of families especially women. In turn this reduces excessive drinking and antisocial behaviour. These matters together with the proposed harm minimisation measures including security personnel should ensure that possible impacts are minimised.

34 In relation to gambling concerns Dr Berg was of the opinion that the proposed hotel would not increase the number of problem gamblers in the community. Moreover whilst additional gambling opportunities will be available in the proposed hotel, in the context of the gambling facilities available nearby at the league's club (203 gaming machines) plus those available in other licensed premises in the locality generally, the proposed 10 gaming machines should make little difference.

35 In relation to social impacts I accept the submissions made on behalf of the applicant that the style of hotel in so far as this results from its size, built form and hours of operation be taken into account. I can also take into account the conditions of consent and the provisions of the management plan required by these conditions. In this case these matters together distinguish the proposed hotel from other licensed premises in the locality such as the nearby rugby league club. The proposed hotel is also to be distinguished in terms of the relatively small number of additional gambling facilities that will be made available in the context of what is available in the locality generally. I have thus been persuaded that the above matters, taken together, will have a significant effect in minimising the likelihood of antisocial behaviour by hotel patrons and that the quality of residential life in the locality will not be critically affected.

36 Although there is likely to be some overlap in their times of operation I accept that if the proposed hotel were to generate any alcohol induced antisocial behaviour it would most likely be in the evenings when the community facilities are least likely to be operating. Recognising that some of the patrons of the proposed hotel might behave inappropriately I nevertheless accept the evidence that the majority will behave lawfully and appropriately and will not cause disturbances in the community. They may even be users of the nearby community facilities. In the circumstances whilst I recognise the fears of the residents, they cannot be determinative.

37 On balance I do not accept that the level of antisocial behaviour that might be generated by the proposed hotel or the increased availability of gambling facilities would be sufficient to warrant refusal of the application.

Conclusions

38 One of the issues raised by the residents and addressed by the town planners was whether this site is an appropriate location for a hotel given its land use context. Mr Layman believed, as did Ms Forrest that the proposed hotel would be better located in a district centre, not in a local centre as is here proposed. He noted that the council's Wanervale structure plan had conceptually nominated a site for a tavern. Mr Hancock did not agree explaining that there is no site available in the Wanervale district centre and despite this the proposed hotel would have a role to play in this locality.

39 In my view whilst there may be other sites that are suitable for a hotel of this kind in other locations this does not, subject to an appropriate merits assessment, mean that the provision of a hotel in this location would be inappropriate. Hence, given my conclusions in relation to amenity and social impacts and taking into account that the proposed hotel will meet an existing demand, I have decided that the appeal should be upheld and development consent granted in accordance with the without prejudice conditions of consent. I have also decided that a condition should be imposed, to require that the landscaped buffers referred to in condition 29 be incorporated by subdivision into the site, subject to council's approval.

40 The orders of the Court are therefore:

1. The appeal is upheld.
2. Development application No 975/2004 for the demolition of the existing warehouse and the development of Lot 2 DP 518378 being land known as No 211 Wallarah Road, Kanwal as a hotel is determined by the granting of development consent subject to the conditions in Annexure A hereto
3. Exhibits C and D are retained.

______________________
T A Bly
Commissioner of the Court
ljr