Navaroo Constructions Pty Ltd v Palerang Council

[2006] NSWLEC 417

Land and Environment Court

of New South Wales

CITATION:

The Turnbull Group Pty Ltd v Hornsby Shire Council [2006] NSWLEC 417

PARTIES:

APPLICANT
The Turnbull Group Pty Ltd

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

11362 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Preliminary Judgment for alterations and extensions to a hotel, acoustic/noise, landscaping and security control

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

24/10/2006

EX TEMPORE JUDGMENT DATE:

10/24/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr Staunton, solicitor
of Staunton Beattie Solicitors

RESPONDENT
Mr I. Woodward, solicitor
of Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

7 February 2007

11362 of 2006 The Turnbull Group Pty Ltd v
Hornsby Shire Council
JUDGMENT Background

1 This appeal concerns council's refusal of a development application for alterations and extensions to the Dural Hotel. The matter commenced with an on-site hearing (OSH) on 24 October 2006 where the Court had the opportunity to inspect the site and hear a number of objections from neighbours.

2 From this, I presented my preliminary judgment indicating that development could be granted conditional development consent subject to conditions requiring a 12 month trial period, improvement of acoustic treatments, satisfactory car parking arrangements being made, the Environmental Management Plan (EMP) being reviewed to incorporate relevant planning matters and the location of perimeter fencing to be finalised.

3 These outstanding matters have been addressed by the parties, resulting in their agreement for a conditional, 12 month trial period.

The site

4 The site is described as Lot 1 in DP 537204 and is known as 271 New Line Road, Dural. The property comprises a rectangular shaped parcel of land with an area of 20,230 sq m and a frontage of 107.645 m to New Line Road.

5 The site is located on the high side of the road. The land falls by some 8 m from the northern boundary to the southern boundary. There is a ridge running north-south through the property, with the land then falling by some 3 m towards road boundary and also falling by about 1 m towards the rear boundary.

6 The site currently comprises a single storey hotel and drive-through bottleshop, a 28 room motel, a Burmhah service station and convenience store. The total public floor space of the hotel is 1266 sq m. A total of 130 parking spaces exist around the hotel bottleshop and motel, plus some unmarked spaces to the north of the hotel. An acoustic fence is erected along part of the southern boundary, ranging in height from 2 m to 2.8 m above the adjacent car park level.

7 The sites western and southern boundary adjoin the Dural Caravan Park, which accommodates 106 long-term residential sites, 32 short-term residential sites and a child care centre. A Sydney Water Reservoir is located to the north of the site.

The proposal

8 The proposal is for alterations and additions to the existing hotel, involving part demolition of existing hotel, drive-through bottleshop and motel service building.

9 The proposed hotel is a 2-storey building with a basement cellar and one hotel floor above. The facilities within the hotel include public and lounge bars, a function room, restaurant, cafe, beer garden/courtyards and gaming room. The total public floor space is 2415 sq m.

10 The initial application indicated provision of 133 car parking spaces for the new hotel and existing motel. Also, a grassed area adjacent to the rear boundary was proposed to be available for overflow parking. An on-site stormwater detention basin was also proposed in south-western corner of site. The amount of car parking on-site was subsequently increased to 176 spaces.

Planning controls

11 The site is zoned Rural BA (Small Holdings - Agricultural Landscapes) and Special Uses B (Transport Corridor) under Hornsby Local Environmental Plan 1994. The works are located wholly within the Rural BA zone and the use is defined as a Hotel and under cl 7 of the LEP is prohibited development. However, the hotel has the benefit of existing use rights, which have not been raised as an issue in these proceedings.

12 The proposal is subject to the provisions of Council’s Rural Lands Development Control Plan and Car Parking Development Control Plan. Of particular relevance are the agricultural and rural structures, setbacks, soil and water management, drainage, visual amenity, landscaping, and acoustic elements of the DCP and parking provision and acoustic elements of the car parking DCP.

13 The proposal is also subject to the provisions of State Environmental Planning Policy No. 11, Sydney Regional Environmental Plan No. 20 and Draft State Environmental Planning Policy No. 66.

The evidence

14 The detailed technical evidence in this matter was presented by:

• Ms D Krzeminski, council town planner,
• Mr T Rogers, consulting traffic engineer,
• Mr G Boston, applicant's consulting town planner,
• Mr R Varga, applicant's traffic consultant.
  

15 These experts undertook a joint conference, resulting in Exhibit H.

16 Following my preliminary finding, further investigations have been undertaken by Mr Varga in respect of the parking issue. In particular, he has surveyed the parking provisions and other hotels and found:

Establishment Peak Parking Demand
Captain Cook Hotel: 1 space / 20.3 sq m
Longueville Hotel: 1 space / 19.7 sq m
The Entrance Hotel: 1 space / 34.0 sq m
Plumpton Hotel: 1 space / 31.0 sq m
Hunters Hill Hotel: 1 space / 18.9 sq m.
Average 1 space / 24.8 sq m

17 The application of these survey results would require the provision of 80 - 120 car spaces and peak times. Insofar as this amount of car spaces was considered inadequate by council, mainly because of lack of similarity of circumstances, Mr Varga says that a cap on patron numbers would not prevent potential traffic problems which could arise if the carpark was filled to capacity and a queue of cars extended onto New Line Road. He says that the parking arrangements can be addressed by implementation of a traffic management plan, which includes the following features:

• an automatic car park counting system to be installed at all entry and exit driveway serving the hotel;
• the number of cars parked on the hotel site is to be continuously displayed at a suitable location in the hotel;
• when the car park capacity of 176 spaces is reached the hotel car park is to be closed, with a warning sign to be displayed at the site entry stating "Car Park Full" and "Do Not Wait";
• a traffic marshall will redirect any vehicles entering the site to the exit driveway, unless they have a destination at the motel or bottleshop;
• a traffic marshall will give to each driver a transport information brochure detailing available alternate modes of travel to the hotel and for responsible consumption of alcohol;
• provision of on-site taxi parking;
• provision of the shuttle bus service on Friday and Saturday night.

18 Insofar as Mr Rogers acknowledges that this traffic plan should minimise traffic safety risks and on-site parking problems, nevertheless he says that a cap should be imposed on the maximum number of patrons at the hotel during peak times. His estimate is that the existing 176 parking spaces, could reasonably accommodate approximately 420 patrons, based on his assessment of car driver rates, taking into account the context of the catchment area, which has very limited access to taxi and bus services.

19 Following the cross examination of the traffic experts, it is apparent that there are no reliable parking figures from other hotels with the capacity of the potential 950 patrons, which are located relatively remote from existing public transport and taxi services. Mr Varga admitted that allowing the development without any patron or a maximum cap of 950 patrons would be pioneering to some extent, in this environment.

20 After further discussions between the parties, agreement was reached that the conditions of consent could provide for a 12 month trial period with:

• a maximum number of 420 patrons at any one time,
• notwithstanding this, the hotel is able to accommodate up to 500 patrons, upon the submission to the Council of evidence that at least 30 spaces in the service station car park are available for the sole use of the hotel after 5 p.m.
• for the trial period, the hotel shall be entitled to accommodate a further 150 patrons in addition to the aforementioned patron numbers specified.
  

21 Having considered the evidence, I consider this is a reasonable approach to enable the redeveloped hotel to operate for the 12 month trial period, during which time more accurate surveys can be undertaken on patron/mode of travel arrangements, together with operational efficiency of the car park. I understand that the risks associated with this course of action are reasonable, with the possibility that some occasional traffic congestion could occur in New Line Road, which is manageable.

22 Apart from the on-site car parking issue, the neighbours identified concerns about on-site parking by large, noisy trucks. This is to be addressed by way of closure of the car park entrance to prevent use by these trucks after hotel trading. On the basis of council's agreement to these traffic responses, I therefore consider this conditional trial period should be allowed.

23 The other outstanding issues concerned the location and specification of the perimeter acoustic fences. This has now been resolved to council’s satisfaction by way of the amended plans, which includes the retention of the existing vegetation adjacent to the western boundary of the property, from which the fence is internally setback.

24 Another issue concerns noise disamenity from the pool area. This has now been addressed by way of Condition 99, which restricts use of the area in and around the swimming the pool between 10 p.m. and 7 a.m. seven days a week.

25 In summary then, I am satisfied that the aforementioned amendments reasonably address the outstanding issues and matters of disamenity raised by the objectors, so as to enable grant of the deferred commencement consent, as agreed by the parties. The conditions of consent also include reference to operations within the provisions of the Plan of Management and security protocol, the details of which are for council approval.

Court orders
1. The appeal is upheld.
2. Development consent is granted to DA No 492/05 for alterations and extensions to the Dural Hotel at 271 New Line Road, Dural, subject to the conditions in Annexure A.
3. The exhibits may be returned except for 1, 2, 4, 7, A, B, E, F, G, and J
________________
R Hussey
Commissioner of the Court
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