Rubinstein v Hornsby Shire Council

[2006] NSWLEC 597

Land and Environment Court

of New South Wales

CITATION:

Rubinstein v Hornsby Shire Council [2006] NSWLEC 597
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
AVI Rubinstein

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

11450 of 2005

CORAM:

Tuor C

KEY ISSUES:

Development Consent :- Section 96 application - extend hours of operation, whether substantially the same development
adequate off street parking
noise impact

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hornsby Shire Local Environmental Plan 1994

CASES CITED:

Moto Projects No. 2 Pty Ltd v North Sydney Council [1999] 106 LGERA 298

DATES OF HEARING:

15-16/08/2006

 
DATE OF JUDGMENT: 

09/26/2006

LEGAL REPRESENTATIVES:

APPLICANT
Dr S Berveling, barrister
SOLICITORS
Landerer & Company

RESPONDENT
Mr P Jackson, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

26 September 2006

11450 of 2005 Rubinstein v Hornsby Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Hornsby Shire Council (the council) of an application under s 96(2) (the application) of the Environmental Planning and Assessment Act 1979 (the Act). The application seeks to modify development consent (DA 616/04) for the change of use of the existing motel to residential apartments and strata subdivision at 2 City View Road, Pennant Hills (the site). Consent to the development application was granted subject to conditions on 18 August 2004.

2 The application seeks to amend Condition 2 relating to the hours of operation of the café, bar and conference facility and delete Condition 4 restricting the service of alcohol.

3 Condition 2 states:

The development is to operate in accordance with the provisions of the Chifley Hotel Management Plan dated July 2004, which forms part of the conditions of this consent.

4 The hours of operation in the Chifley Hotel Management Plan (CHMP) are:

(i) Café 7.00am to 3.00pm and 6.00pm to 10.00pm
(ii) Bar 6.00pm to 10.00pm
(iii) Conference Facility 8.00am to 6.00pm

5 The application seeks to amend Condition 2 as follows:

The development is to operate in accordance with the provisions of the Chifley Hotel Management Plan dated July 2004 which forms part of the conditions of this consent, except with respect to the hours of operation of the café, bar and conference facility and the serving of alcohol. In this regard, the hours of operation are as follows:

i Café (indoors): 7.00am to 11.00pm
ii Café (outdoors): 7.00am to 10.00pm
iii Bar: 12.00noon to 11.00pm
iv Conference facility (indoors): 8.00am to 11.00pm
v Conference facility (outdoors): 8.00am to 6.00pm

6 Condition 4 states:

The operation of the bar area shall be restricted to the licensed bar/lounge area detailed on the strata plan for Pt Lot 2.

7 The application seeks to delete Condition 4.

Site and its context

8 The site is generally triangular with an area of 3,808sqm bounded by Pennant Hills Road, City View Road and Boundary Road. There is an existing five storey building on the site.

9 Surrounding development along Pennant Hills Road and around the railway station is commercial. Along Boundary Road there are one and two storey detached houses.

Background

10 The existing building on the site was approved in 1988 as a 118 room motel with associated facilities that included a restaurant, bar and conference facility and basement car parking accessed off City View Road. The consent placed no restriction on the hours of operation or numbers of people.

11 Under development consent DA 616/04 the building was converted to residential apartments. Conditions 1 and 5 of the consent permitted units 1-34 on levels 1 and 2 to be used as serviced apartments. Conditions 16 and 17 required a minimum of 128 car spaces of which 72 were designated for residential parking. Condition 2 required the consent to operate in accordance with the CHMP which includes hours of operation. No limit on numbers of people was imposed by the consent. The report to council described the development as follows;

The proposal involves the change of use of the existing motel and conversion to residential apartments comprising 81 multi-unit housing dwellings (37xstudio, 41x1br & 3x2br) and 34 serviced apartments (studios), a ground floor café, bar and conference facility. The proposal includes strata subdivision for 117 strata units. The proposed café and bar are included in the one title.

The proposed change of use is to allow the separate occupation of the existing ground floor premises for a café/bar and conference facilities. The proposal includes separate residential entry at the frontage, the removal of the existing driveway entrance (porte cochere) and replacement with a paved covered outdoor area for the café.

The proposed conversion includes existing recreation facilities for residents use, including the swimming pool a gymnasium, lower ground floor lounge and indoor and outdoor courtyard areas.

12 On 26 September 2005, council approved a s 96(2) application to convert a residential unit to a commercial kitchen for the conference facility.

13 The application was lodged on 5 October 2005. Council notified the application and two objections were received. Council refused the application on 15 March 2006.

Planning Framework

14 The site is zoned Business B (Special) under Hornsby Shire Local Environmental Plan 1994 (LEP 1994). The proposal is permissible with consent.

15 Under LEP 1994 motel is defined as:

“motel” means premises, not being a hotel, used for the temporary or short term accommodation of travellers, and which may also include a restaurant and/or conference facilities.

16 Conference facilities and serviced apartments are not separately defined under LEP 1994. The parties agreed that the definition of motel included serviced apartments.

17 The Car Parking Development Control Plan (the DCP) is also relevant.

The issues

18 The Statement of Issues before the Court contained 5 issues. The issues relating to the types of activities and the number of patrons using the café and conference facility were resolved by the submission of further information and conditions of approval. The remaining issues can be summarised as follows:

i. Whether the development is substantially the same development.

ii. Whether the proposed extended trading hours and service of alcohol will have acceptable traffic and noise impacts on the residential amenity of the development and the adjoining area.

The evidence

19 The Court heard evidence from the following experts:

20 For the Council

· Mr S Turner, town planner

· Mr L Challis, acoustic consultant

21 For the applicant

· Mr G Smith, town planner

· Mr R Tonin, acoustic consultant

22 Mr G Pindar, the court appointed expert, and Mr R West, for the applicant provided traffic evidence.

23 The Court also heard resident evidence on site. The main concern of the residents was that the proposal would impact on their amenity by the need for on street parking and the behaviour of patrons using the surrounding residential area through increased noise from vehicles and patrons leaving the conference facility at night.

Whether substantially the same development

24 Section 96(2) of the EPA Act provides that:

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) .…

25 The key difference between the parties related to the changed nature of the proposal resulting from the service of alcohol. Mr Jackson, for the council, relied heavily on the circumstances on which the consent had been based. He referred to Moto Projects No. 2 Pty Ltd v North Sydney Council [1999] 106 LGERA 298 where Bignold J at 309 states:

The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development.

The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is “essentially or materially”” the same as the (currently) approved development.

The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).

26 In Mr Jackson’s submission DA 616/04 sought to change the use from a motel to a residential building. This approval allowed the conference facility, cafe and bar to remain but to operate separately during limited hours and without the service of alcohol to the public or external to the building. Mr Jackson cited excerpts from the Statement of Environmental Effects prepared by Urbis JHD, subsequent correspondence which accompanied the development application, the conditions of approval and the CHMP. In particular he referred to the letter to council of 13 July 2004 from Urbis JHD on behalf of the applicant which stated:

· The only area of the premises that is proposed to be available for the serving of liquor is the small bar area located on the ground floor. No other parts of the premises, including the café and conference facility, will be available for the serving of liquor. A Plan of the proposed Liquor License area is attached.

· The attached plan highlights the restricted area of the premises that is intended to be able to serve liquor and for which a liquor license must be obtained following the granting of development consent.

· The applicant proposes to amend the development application to restrict the hours of operation of the conference facility to being between 8am and 6pm. These restricted hours eliminate the desire and need for any licensing arrangement over this part of the premises.

· As submitted in the development application, the café and the conference facility are to be available for public use. However, the internal bar area will not be available for public access and will not operate as a tavern open to the public. The internal bar will provide a place for serving of drinks restricted only to permanent residents of the units, occupants of the serviced apartments and their bone fide guests.

· Accordingly, it is proposed by the Applicant that conditions be added to any Consent granted by Council that restricts the serving the serving of liquor as set out above. In addition, the Applicant submits that subject to the granting of appropriate Development Consent, an application will be made for a Liquor License that complies with the terms of the consent.

· It is submitted that these arrangements will ensure that the licensed areas are extremely limited and not catering for, or attracting, people outside of those living or staying in the serviced apartments. In addition we submit that the imposition of consent conditions and suitable terms and conditions of any liquor license granted will be sufficient to ensure sufficient ongoing management and enforcement of these arrangements. This arrangement eliminates concerns with regard to general public attraction to the site, other than to the café and limited conference activities.

27 Mr Jackson submitted that these requirements had been incorporated into the consent that was issued by council. Although he recognised that the conditions did not limit public access to the bar area nor did it require an application for an amended Liquor Licence. Mr Jackson concluded that the service of alcohol and the increased hours would effectively change the use and it was therefore not substantially the same development.

28 Dr Berveling, for the applicant, submitted that the application involved amendments to conditions of approval to extend hours of operation and provide consistency between the development consent and the Liquor Licence. He stated that the description of the development remained the same and that while the character of the use may be altered by the service of alcohol the use remains the same and it is substantially the same development.

29 Dr Berveling provided written submissions which summarised the case law in relation to the question of whether a development is substantially the same. He referred to Moto at 310 that stated:

Although it is well established that the comparative task required to be undertaken to satisfy the requirements of s 96(2)(a) involves a comparison of the whole of the developments being compared, that fact does not eclipse or cause to be eclipsed a particular feature of the development, particularly if that feature is found to be important, material or essential.

30 Dr Berveling submitted that there was no evidence that the service of alcohol was so critical to the assessment of the original application that it would render it not the same application. He noted that the report to council of 18 August 2004 made limited reference to the service of alcohol. He questioned whether the letter of 13 July 2004 formed part of the application and said that only some of its requirements had been incorporated into the conditions of consent.

31 Further Dr Berveling submitted that the service of alcohol was not development requiring consent as it was not a separate land use and no works were proposed. It was therefore not open to council to limit the service of alcohol in areas with a Liquor License. A development consent can control the hours of a restaurant but not the service of alcohol. For example it can limit the hours of a restaurant to 12 hours and alcohol can therefore not be served for 24 hours even if the Liquor License permits. Conversely, a restaurant which is licensed and permitted by its consent to be open 24 hours cannot be restricted to serve alcohol for only 12 hours.

32 The evidence of Mr Smith was that since 1990 the building had a Liquor License. The Licensing Court approved the current Liquor License in December 2005, despite council representations that it should not be granted. It applies to the bar, café, conference facility and associated outdoor areas. Therefore in his opinion, alcohol was permitted to be served in these areas during the hours that they operated.

33 I accept Dr Berveling’s submissions that the s 96 application is substantially the same development. The change in hours and service of alcohol do not change the approved uses and are not so fundamental to the nature of the use in the approved application to render it a different application. I accept that the supplementary information submitted as part of the development application gave the clear impression that there would be limited areas where alcohol would be served. However, only part of these requirements were incorporated into the conditions of approval and it is open to an applicant to seek to amend its consent.

Traffic

34 Mr West and Mr Pindar agreed that the traffic likely to be generated by the development would not impact on the capacity of the street network. As there is limited on street parking near the site and it adjoins a residential area it was agreed that the development should provide adequate on site parking to meet the demand generated by the development. The residents were particularly concerned about patrons parking in Boundary Street and the potential noise impacts from patrons leaving functions late at night.

35 The evidence of the existing parking on site and the level of parking the different uses are likely to generate was confusing.

36 The development application plans provide for a total of 128 spaces comprising 72 residential spaces on the lower basement level; 3 residential spaces, including a managers unit; 38 conference facility spaces and 15 café spaces on the upper basement level. The numbers are based on the DCP requirements of a rate of 1 space/7sqm GFLA for the café and conference facilities. However, the bar was not included in the calculation and as such a higher number would be required.

37 The approved strata plan shows a total of 131 spaces comprising 73 residential spaces on the lower basement; 2 management unit spaces and 58 spaces for the café and bar.

38 Mr West and Mr Pindar examined the demand for parking likely to be generated by the café and bar. Under the DCP about 34 spaces are required, however, the experts stated that it was appropriate to assume some overlap of the use of the bar and café. They concluded that 20 spaces were adequate for these two uses. These uses are identified as one lot on the strata plan. I note that this approach is inconsistent with Mr Pindar’s preliminary advice where he stated in relation to the 15 spaces provided for the restaurant that:

…while this derives from Council’s DCP rate….and although it has been accepted by council there is clearly a latent parking demand for many functions that will exceed 15 spaces. In these circumstances, there is in my view, no opportunity to discount this parking for any shared use during the evening.

39 Mr Pindar also raised concerns about the application of the DCP rate for restaurants of 1 space/7sqm GLFA to the conference facility. The experts agreed it was more appropriate to determine peak patronage levels by assuming a modal split of 68% car use and car occupancy rate of 2.2 persons per car. After adjustments for the bar area and staff, the experts agreed that:

No. of conference attendees	No. of spaces required	Arrangements
Up to 100	30 allocated for conference facility
101 to 160	30 allocated for conference facility plus 20 allocated for café/bar	Café and bar to be used only by residents, guests staying at serviced apartments and conference attendees
161 to 230 persons	30 allocated for conference facility plus 20 allocated for café/bar, plus 21 valet spaces	Café and bar to be used only by residents, guests staying at serviced apartments and conference attendees. A valet parking system is to operate as outlined in Mr West’s Statement of Evidence

40 Mr Pindar considered that the valet parking system should be subject to a one year trial period. This and the arrangements set out in the above table have been incorporated into agreed conditions of approval.

41 I note that in Mr Pindar’s preliminary report he stated that:

In view of the uncertainty surrounding the parking demands that will arise in practice, the lack of suitable on street parking in the vicinity, the absence of survey data of a comparable development concerning travel modes at night, and the fact that significant physical work are not proposed that would otherwise expose the applicant to significant commercial risk, I recommend that if the applicant requires additional attendance (above 150 persons) that the Court give consideration to approving a (say) 12 months trial period of operation, involving:

· A parking survey of the on street “before” conditions between 5:30 p.m. and 11:30 p.m. on a typical weekday, Saturday and Sunday;

· Maintaining a record of all functions held and their attendance;

· Maintaining a record of patronage levels within the café;

· A requirement that the Applicant engage an independent traffic consultant to undertake a parking review based on “after” conditions at times when patronage exceeds 150 people during evenings within the trial period (a minimum of say 3 functions);

· After 12 months of operation the independent traffic consultant to report on the development’s operations and impacts, including any representations made by local residents and businesses.

42 Although based on a different figure and without the proposed valet parking system, I consider that Mr Pindar’s recommended trial period should be incorporated into the consent for any use of the conference facility that relies on either the valet system and/or the allocation of café/bar parking for use by conference delegates. This would require the trial period to apply for conferences with over 100 attendees. I consider this to be appropriate as Mr Pindar did not provide alternate recommendations in his joint report with Mr West and there is no evidence that his recommendations are not valid. The trial period is also appropriate as the conference facility has not operated at night since the 2004 approval, and, I understand, has not held conferences with over 100 attendees. I also find that the lack of data, the number of assumptions and changes to these assumptions require testing. As no works are proposed a trial period will not impose an unreasonable impost on the applicant.

43 Further, Mr Pindar’s suggestions on monitoring of the trial period should be incorporated into the proposed conditions of consent. The current wording of Condition 83 is:

The maximum number of attendees at any one event in the conference facility shall be limited to 160, but that number may be increased to 230 for a trial period ending on 31 August 2007.

44 The condition does not specify that during this period a minimum number of conferences with number of attendees above 160 should occur and be monitored.

Noise

45 Mr Tonin and Mr Challis agreed that there would be no unacceptable noise impacts likely to arise from the extended hours of the café and the use of the terraces adjoining the café and conference area during the day time. After 6pm the terrace outside the café retains the same approved hours (until 10pm) and the conference terrace will not be used. Although Mr Challis was concerned that serving alcohol could increase the noise levels and remained a potential issue.

46 The café and conference facility and the terraces are licensed premises and as such must comply with the LAB standard noise conditions. I do not consider that the extended hours during the day or the serving of alcohol are likely to result in a breach of these conditions. I also note that if this were to occur extending the roof over the café terrace could ameliorate any noise impacts.

47 In relation to the extension of trading hours from the conference the key areas of disagreement between the experts were:

1. Whether the LAB standard noise condition applies to serviced apartments

2. Whether the Department of Conservation sleep disturbance criteria are met.

3. Whether the noise generated by cars leaving the car park was acceptable.

48 The LAB standard noise condition provides noise levels that should not be exceeded by licensed premises to ensure adequate residential amenity is maintained. Serviced apartments provide short term accommodation and there is not the same expectation to protect residential amenity as for long term occupants of a building. Nevertheless a reasonable level of amenity, particularly at night should be achieved. If the LAB noise standard does not apply a condition should specify the noise level that is appropriate for serviced apartments.

49 The sleep disturbance criteria apply at night time, which is defined as after 10pm.

50 The aspect of the proposal that has the potential to impact on the amenity of the occupants of the serviced apartments, residential units and nearby residents is the proposed extension of hours of the conference facility between 10.00pm and 11.00pm and the time period after that while vehicles exit the building or, if sufficient car spaces are not available on site or are not used by the patrons, the noise of people returning to their cars parked in the streets.

51 Due to the difference in opinion of the experts, I find that it is appropriate that a trial period for the hours after 10.00pm be introduced and the noise levels of the operation of the café, bar and conference facility be monitored to ensure compliance with the appropriate criteria.

52 This is also appropriate as the evidence before the court is that the owners of the residential and serviced apartment units were not notified of the s 96 application. I understand that this was not required and that at the time of notification of the application a number of units were not sold. I recognise that in purchasing a property in a business zone (particularly if this is part of a complex which includes a café, bar and conference facility) it is not reasonable to expect the same level of residential amenity as in a residential zone. Nonetheless it is appropriate that the noise impacts of the proposal are accurately assessed once the conference facility is operating at night during a trial period.

53 I note that the assumptions upon which the noise experts prepared their joint report included that:

The conference venue will not operate as a place of public entertainment and so live music is not proposed. Any amplified sound will be restricted to amplified and only background music.

54 There is conflict between this assumption and conditions 24 and 25 of the consent. As I understand the evidence, if the conference facility is to be used as a place of public entertainment a noise assessment based on this assumption should be undertaken.

55 For the reasons outlined in this judgement, I am satisfied that the application warrants approval but subject to the amendments and additions to conditions which I have outlined. As these changes have not been discussed with the parties, I direct the parties file electronically within 7 days, amended conditions and any written submissions which address the matters set out in Schedule 1. Following filing of the conditions and any submissions I will make the final orders in Chambers.

___________________

Annelise Tuor
Commissioner of the Court

Schedule 1

Amend condition 83

Trial period

To permit a trial period for 12 months (from the date of final orders) of the use of the conference facility for functions:

i) with more than 100 conference attendees between 6pm and 11pm, and

ii) with any number of conference attendees between 10pm and 11pm.

Traffic and parking

The following monitoring of the traffic and parking is to be undertaken during the trial period:

· A parking survey of the on street “before” conditions between 5:30 p.m. and 11:30 p.m. on a typical weekday, Saturday and Sunday;

· Maintaining a record of all conference functions held and their attendance;

· Maintaining a record of patronage levels within the café/bar;

· The Applicant is to engage an independent traffic consultant to undertake a parking review based on “after” conditions at times when patronage exceeds:

a Between 100 and 160 attendees during evenings within the trial period (a minimum of 3 functions);

b 160 attendees during evenings within the trial period (a minimum of 3 functions);

· After 12 months of operation the independent traffic consultant is to report on the development’s operations and impacts, including any representations made by local residents and businesses.

Noise monitoring

Applicant to engage an independent noise expert to monitor noise levels and compliance with relevant standards of the operations of the café, bar and conference facility after 10pm. Monitoring to include cars leaving the car park and people outside the building and leaving the premises and using streets. A minimum of 3 functions with over 160 people should be monitored.

Condition 24 and 25

Is there an inconsistency between these conditions and the assumptions of the noise experts? (Refer Item 2.3 of the Joint report exhibit 5).

New condition

The LAB specifies standard noise condition for licensed premises. If this does not apply to serviced apartments then a condition should be included which provides appropriate noise criteria for serviced apartments. The consent would be clearer if it included a condition which specified the appropriate noise criteria for both licensed and unlicensed areas, such as the car park ramp, for the residential and serviced apartments most likely to be effected.

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