Papaioannou v Marrickville Council
[2015] NSWLEC 1407
•9 October 2015
|
New South Wales |
Case Name: | Papaioannou v Marrickville Council |
Medium Neutral Citation: | [2015] NSWLEC 1407 |
Hearing Date(s): | 1 September 2015 |
Date of Orders: | 9 October 2015 |
Decision Date: | 9 October 2015 |
Jurisdiction: | Class 1 |
Before: | Dixon C |
Decision: | (1) The appeal is dismissed. |
Catchwords: | APPEAL - Development application - Modified train carriage to be used as a diner - Amenity impacts for nearby residents - Increased traffic - Parking |
Legislation Cited: | Environmental Planning and Assessment Act 1979 |
Category: | Principal judgment |
Parties: | George Papaioannou (Applicant) |
Representation: | George Papaioannou (in person) (Applicant) |
File Number(s): | 10946 of 2014 |
JUDGMENT
Introduction
The applicant, George Papaioannou, is self-represented. He appeals Marrickville Council’s refusal of his development application for the location of a modified train carriage on land at 884 Princes Highway, Tempe (the site) for use as a diner.
His appeal is made pursuant to section 97 (1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
The proposal
The proposal is detailed in the applicant’s amended plans (exhibit A) and his statement of environmental effects dated 18 November 2014. As it currently stands the site already contains the 23m modified train carriage which accommodates a commercial kitchen, tables, chairs and stools and offers a seating capacity for 20 patrons.
The proposal is to move the train carriage 3m from the south-western boundary of the site and use it as a diner. Mr Papaioannou and his daughter intend to use the commercial kitchen to prepare for sale take-away food and food for consumption by patrons within the diner. The proposal is to operate the diner seven days a week - Monday to Friday from 4.30pm until 11pm, and on weekends - from 8 am until 11pm.
The application also seeks approval for the erection of signage, amenities and perimeter fencing.
Background
Mr Papaioannou’s application has been long in the making. It was originally submitted to the Council on 27 February 2014 with additional information provided on 1 May 2014, 12 May 2014, 18 June 2014, 14 July 2014 and 15 July 2014.
It was notified twice and seven submissions and a petition with 153 signatures were received by the Council. The submissions raise the following issues:
The carriage has been ‘dumped’ on the site prior to consideration of the application;
Non-Compliance with Council’s parking DCP;
Proposed access and manoeuvring arrangements;
Excessive hours of operation;
Noise;
On-street parking to be taken up by the development;
Traffic hazard at the corner of the Princes Highway and Station Street;
Pedestrian safety.
The application received a favourable recommendation from the Council’s internal town planner (report dated 12 August 2014) but was ultimately refused by the Council at its meeting on 10 September 2014.
Section 34 conference
I first become involved with this appeal in May this year when I facilitated the conciliation conference between the parties under s34 of the Land and Environment Court Act 1979 (LEC Act). While the conference did not resolve the appeal it proved useful in crystallising the issues between the parties and facilitated the preparation of amended plans (exhibit A).
At the request of the parties the process was ultimately terminated and I was asked to finally dispose of the appeal with a further hearing based on the evidence taken during the conciliation conference.
The site
The Council’s statement of facts and contentions dated 16 December 2014 describes the site as being rectangular in shape and located on the corner of the Princes Highway and Station Street East, Tempe (northeast of the intersection of the Princes Highway and Holbeach Avenue).
It has an area of 251m2 and a width of 10m with frontages of 10.035m to the Princes Highway and 24.95m to Station Street.
Apart from the modified train carriage, a chain fence, some vegetation and a concrete slab - the site is vacant.
The south-western boundary of the site adjoins a commercial establishment at 886-896 Princes Highway which is used as a Harry’ Café De Wheels. A one storey dwelling house at 40 Station Street adjoins the site from Station Street.
The only access into the site is via an existing driveway crossing from Station Street which is a narrow residential street some 6.4m wide.
Locality
The locality of the site is mixed. It fronts the Princes Highway which is commercial in character and adjoins low density residential properties to the southeast and northeast which are essentially one storey developments.
The statutory controls
The land is zoned B6 – Enterprise Corridor under Marrickville Local Environmental Plan 2011 (LEP), and the proposed development is permissible with consent.
The Marrickville Development Control Plan 2011 (DCP) also applies to this application.
The relevant provisions of the LEP and DCP and other controls are listed in the Council’s statement of facts and contentions.
Objectors to the application
The objectors to this application comprise the operators of the adjoining Harry Café De Wheels establishment, and several residents from Station Street; including the owners of the semi at 40 Station Street on the south-eastern boundary of the development site.
Collectively, the local residents said they were concerned about the appearance of the development and any increase in traffic and parking in Station Street. Each of the objectors who addressed me at the conciliation conference said that Station Street is already congested with parked cars and manoeuvrability into and out of the street was already tight.
They expressed a genuine concern for pedestrian safety (particularly children) and believed that an approval of this development without sufficient onsite parking would further exacerbate their existing traffic/parking problems and increase the risk to pedestrian safety.
They made plain their objection to another noisy late night diner operating in close proximity to their homes and impacting on their already compromised residential amenity.
The owners of Harry Café de Wheels were also concerned about parking and believed that the patrons of the diner would likely use their limited on-site parking. They also disliked the location of the proposed signage believing it would impact on the visibility of their own site.
On-site parking arrangements
The parking arrangements for the patrons of the diner changed during the course of the appeal.
At the commencement of the hearing the amended application incorporated 5 off-site car spaces on a commercial site adjacent to the diner and accessed from the highway. It was proposed that the applicant would be entitled to use this area for patron parking under a lease arrangement.
However, during the hearing I learned that the applicant did not in fact have the adjacent land owner’s consent to this parking arrangement. Rather, Mr Papaioannou had a letter from the tenant agreeing to enter into a sublease with the applicant to allow the patrons of the diner to use the 5 car spaces on the adjacent land during the term of his tenancy.
The disclosure of this information during the course of the hearing raised a jurisdictional issue. Clearly, the Court has no jurisdiction to approve of this part of the application without the requisite adjacent land owner’s consent and the applicant, who is not a lawyer, did not appreciate the importance of this matter until I pointed it out to him in Court.
In an effort to resolve this jurisdictional issue he asked me for further time to obtain that owner’s consent before I delivered my decision and given the circumstances, I acceded to his request.
Therefore, at the conclusion of the hearing I allowed the applicant a further two days to obtain the owner’s consent or, if necessary, leave to amend his application to exclude this parking area. The Council agreed with this course.
In accordance with my directions, on 4 September 2015, the applicant informed the Court, and the Council, by email that he had not been able to organise the off-site parking and therefore, sought leave to amend the application to exclude the off-site car parking land. His email states :
Please be informed that I am not able to secure the said parking spaces as mentioned in my amended statement. In light of this development I request leave from the Court that this case be considered on the original document. The only amendment will be the operating hours as follows:
Monday –Friday 4.30pm to 11pm
Saturday –Sunday 8am to 11pm
For that reason the application reverted to the original application. It offers one onsite car space for patrons / loading bay, and a second on-site space for staff parking.
Traffic evidence
Fortunately, the traffic safety audit prepared by the parties’ single traffic experts Terry Winning and R Glen of Morgan Winning Traffic Solutions Pty Ltd dated April 2015 (exhibit 2) assessed the application on the basis of the provision of the 5 off - site parking spaces and without the off-site parking.
The traffic experts’ safety audit report commences by accepting that given the nature of the proposed development and its lack of access to public transport the use will involve patrons attending the premises by vehicle. It then concludes that this will generate additional traffic into the road network. However, the level of increase in traffic is a bit of a guessing game in this case because the existing traffic volumes were not assessed by the experts.
Notwithstanding this lack of assessment, however, the RSA Report Appendix 4: Road User Risk Assessment Log assumes based on the seating numbers that the use will generate 2 or 3 cars. And, if that proves to be correct Mr Winning said that in his assessment the proposal was “safer” with the 5 off-site parking spaces than without them. He formed this opinion because he accepted that an additional 2 or 3 extra cars from this development would adversely impact on the current unsafe traffic movements in and around the site. Although in making this assessment, Mr Winning was careful to qualify his evidence by adding that the additional traffic generated by the development would not elevate the ‘assessed traffic safety level’ which was already assessed to be unsafe and causing parking/pedestrian issues for Station Street.
Mr Winning was particularly concerned about the existing pedestrian behaviour in Station Street. In Court he said that he had observed pedestrians forced onto the roadway due to the parked cars and the poor lighting in Station Street and this was unsafe. I appreciate his evidence because I observed this pedestrian behaviour at the site view. Given the number of illegally parked cars straddled across the footpath in Station Street in order to allow the passage of moving vehicles down the narrow street pedestrians have no choice but walk on the road.
Mr Winning also expressed a concern about the narrow entry into the Station Street and the possibility that an approval of the application might result in back queuing onto the Princess Highway should a vehicle attempt to leave Station Street whilst a car was trying to turn into the street and the site. He said that such a result was unsafe and exposed the entering vehicle to rear end collision.
Overall the experts’ traffic audit establishes that the safety issues identified in the operation of the existing road network remain and the frequency and probability of an incident occurring increases proportionally due to increased vehicle/ pedestrian activity but not to the extent that it raises to a higher level of risk. In other words, the area proximate to the site is already unsafe and an approval of this development will make the area less safe but not such as to raise the safety level classification.
DCP - parking
While the amended plans (exhibit A) have to some extent addressed the objectors concerns about trees, fencing and signage the critical issue is the lack of parking for patrons and the consequences for the residents of Station Street and other pedestrians in the vicinity of the site.
Tabled at the hearing was a copy of the Marrickville Development Control Plan 2011 (exhibit 4). Section 2.10.5 of the DCP deals with generic provisions for parking and it prescribes one car space for restaurants and takeaway food or drink premises per 100 m GFA. In this case, the area of the site is 70 m² and the two car spaces offered by the application are numerically compliant with the DCP requirements. That said, the Council invites me to also consider other relevant sections of the DCP, in particular, the following provision in C2:
Calculated parking provision numbers must be checked against a merit assessment to ensure appropriateness for the intended land use;
The Council submits that after checking the calculated parking numbers against a merit assessment to ensure appropriateness for the intended land use I will conclude on the evidence that the proposed development is not appropriate for this site.
Conclusion
I have undertaken the assessment invited by the DCP, and after a consideration of the evidence against the relevant considerations under s79C of the EPA Act I accept the Council’s submission.
Although the number of car spaces provided for in the application is numerically compliant with the number of car spaces required under the DCP the evidence after a merit assessment suggests that the intended use is not appropriate for the site. Mr Winning is of the opinion that the development is safer with the off-site parking arrangement in place. As this is no longer an option I cannot approve of a development that has the potential to generate additional traffic /congestion in Station Street which according to Mr Winning further compromises the safety of pedestrians - who are forced to use the road because the footpaths are blocked by cars; and, potentially cause vehicles to back queue onto the Highway and be exposed to rear end collision.
Mr Winning’s expert evidence validates the concerns expressed by the local objectors. In my assessment an approval of this application is likely to result in an increase in traffic and parking in Station Street and this according to Mr Winning will further exacerbate the existing amenity and pedestrian safety problems experienced by the local residents.
For the reasons stated I find that the intended land use is not suitable for the site, and that an approval of this application is not in the public interest: s79C (1) (c) and (e) EPA Act. I refuse consent to this development application.
Orders
The orders of the Court are:
(1)The appeal is dismissed.
(2)Development consent to relocate a modified train carriage on the property at 884 Princes Highway, Tempe and to use the carriage as a diner for the preparation and sale of food in accordance with DA 20140073 is refused.
(3)The exhibits are returned.
Susan Dixon
Commissioner of the Court
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