Antipas v Hurstville City Council

[2007] NSWLEC 674

Land and Environment Court

of New South Wales

CITATION:

Antipas v Hurstville City Council [2007] NSWLEC 674

PARTIES:

APPLICANT
Denis Antipas

RESPONDENT
Hurstville City Council

FILE NUMBER(S):

10273 of 2007

CORAM:

Bly C

KEY ISSUES:

Development Application :- Adaptive reuse and subdivision of an existing gymnasium and squash court building for the purposes of mixed retail and serviced apartments, floor space ratio, conditions of consent, s.94 contributions, length of occupancy of apartments.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1 - Development Standards
Hurstville Local Environmental Plan 1994,

DATES OF HEARING:

21/08/2007, 5/09/2007 and 6/09/2007

 
DATE OF JUDGMENT: 

17 October 2007

LEGAL REPRESENTATIVES:

APPLICANT
Dr S. Berverling, barrister

RESPONDENT
Mr P. Rigg, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

17 October 2007

10273 of 2007 Denis Antipas v Hurstville City Council

JUDGMENT

Introduction

1 This appeal relates to Development Application No 05/DA-122 which is for the adaptive reuse of an existing retail, gymnasium and squash court building for the purposes of mixed retail and serviced apartments at 43 – 47 Penshurst Street Penshurst. The existing car park for 21 cars and three retail premises at the lower ground floor level are to be retained. The remainder of the building is to be converted into 27 serviced apartments plus a caretaker’s dwelling mainly over three levels plus a partial fourth level. Strata subdivision of the development is also proposed. The building will present as four storeys to Penshurst Street and due to the slope of the site, three storeys from the rear.

2 At the upper levels, the building is divided by a central access courtyard into two halves, with 14 dwellings facing north and 14 facing south. There is a communal courtyard at the rear. The site has an area of 1,095 M2.

Planning controls

3 The site is zoned 3(c) Business Centre Zone under Hurstville Local Environmental Plan 1994 and commercial, retail and residential development is permissible with development consent.

Advertising and council's decision

4 The application was advertised and three objections were received. Concerns expressed by those objectors include: vehicular access across the footpath; traffic congestion and noise; the intensification of the use of the footpath; overshadowing and loss of privacy; noise and dust generated by construction and demolition works; and garbage disposal.

5 On 7 December 2005 the application was refused by the council for reasons including: exceedence of the permissible floor space ratio; unsatisfactory amenity for residents in the apartments to be used on a long-term basis; the inappropriate fifth level; adverse impact on the amenity of the locality; parking deficiency and traffic concerns.

6 A subsequent review under section 82A of the Environmental Planning and Assessment Act 1979 was undertaken and on 12 December 2006 it was again decided that the application should be refused for the same reasons as included in the original refusal.

Neighbour's objection

7 The hearing began on site when I heard from Mrs C Greig who explained the concerns of her elderly father, Mr D Cronin who resides at 1 Austral Street, Penshurst (adjoining the site at the rear). Her father is in poor health and relies on a constant supply of oxygen to assist his breathing and as a consequence is very concerned that the dust and noise likely to be generated by demolition and construction would be stressful and would adversely affect his health. She also explained that he is concerned about reduced solar access in his backyard where he spends much of his time. Increased vehicular traffic is also a concern.

8 I have carefully considered this objection and whilst I sympathise with Mr Cronin I am not convinced that his circumstances should determine whether or not this site could be redeveloped in the manner proposed. I note that conditions of consent dealing with noise, vibration, dust and hours of operation are proposed to protect, within reason, the amenity of this neighbouring property. I have also taken into account the evidence that existing overshadowing of his property is to be reduced by the proposal and that there would be little or no direct traffic impacts in Austral Street.

Expert evidence

9 The court was assisted by the expert town planning evidence including joint reports provided by Mr T. Moody for the council and Mr B. Goldsmith for the applicant.

10 In their report, whilst there was some disagreement about the floor space ratio calculation, they agreed that the maximum floor space ratio development standard of 1.5:1 in clause 13(2A) was exceeded. Taking into account recent design changes including the manner in which the building steps back from the front and rear boundaries and the lightweight treatment of the building at the upper level there was no resultant concern about the floor space ratio exceedence. They have now considered the latest objection under State Environmental Planning Policy No 1-Development Standards and consider it to be well founded. Having reviewed this matter in the light of their evidence and the SEPP 1 objection itself I agree with their conclusions and would uphold the objection.

The remaining issues

11 The two issues remaining in dispute involve conditions of consent, firstly as to the amenity of the apartments and time limits for their occupation and secondly as to the imposition of an appropriate contribution pursuant to s 94 of the Environmental Planning and Assessment Act 1979 ("the Act").

12 I understand the length of time of occupation of the apartments to be of serious concern to the council. It was submitted that taking into account that the average stay in a serviced apartment in New South Wales (according to Australian Bureau of Statistics data) is 3.2 days, the period sought by the applicant would not be indicative of a temporary or short stay as is appropriate for serviced apartments. In the circumstances a maximum 90-day period of stay is considered reasonable. As a consequence Council seeks the imposition of the following two conditions:

86. The registration of a restrictive covenant such that the use of the serviced apartments is restricted to providing short-term accommodation, being accommodation for a period of ninety days or less, to persons whose principal place of residence is elsewhere. This covenant is to be registered and a copy provided to council, prior to the issue of the occupation certificate for the serviced apartments and/or any occupation of those units.
93. The twenty-seven residential units, excluding the caretaker's unit designated as No. 1 on the approved plans, approved only for the purposes of short-term accommodation for a maximum period of ninety days for persons whose primary place of residence is elsewhere. No approval is expressed or implied for permanent resident occupation of those residential units. These units are not subject to residential tenancy agreements within the meaning of the Residential Tenancies Act 1987, and the units are to be serviced or cleaned by the owner or manager of the dwellings or the owner's or manager's agents.

13 The applicant largely opposes these conditions, seeking permission for the north facing apartments having the best amenity being available for stays of up to 9 months because such a period cannot be considered to comprise a permanent occupation. The 90-day constraint could nevertheless apply to the south facing apartments. The applicant has also offered to incorporate in a management plan a requirement that booking periods may be for stays of 3 days to 90 days with a maximum of four booking periods, subject to the provision of proof that the guest has a permanent domicile elsewhere. The applicant's alternative conditions are as follows:

85A The premises shall at all times be operated in accordance with the Management Plan prepared by Eminent Developments Pty Limited and dated 4 September 2007, a copy of which is held by the Council.

85B The following serviced apartments as shown on the approved plans shall be limited to use for a maximum continuous stay by an occupant/s to 90 calendar days. Units 02, 03, 04, 10, 11, 12, 13, 14, 20 and 24.

85C The following serviced apartments as shown on the approved plans shall be limited to use for a maximum continuous stay by an occupant/s to nine (9) months. Units 05, 06, 07, 08, 09, 15, 16, 17, 18, 19, 21, 22, 23, 25, 26, 27 and 28.

86 Should it be proposed to strata subdivide the approved development:
(a) A restriction as to user under Section 88B of the Conveyancing Act, shall be placed on the title of all the serviced apartment lots as follows:
This unit (lot) has been approved for use as a serviced apartment only and any other use of it, including its occupation for a duration that is in excess of the time period specified in conditions 85B and 85C of this consent, requires further development consent. Such consent may be subject to the payment of contributions under Section 94 of the Environmental Planning and Assessment Act.
(b) A restriction as to user under Section 88B of the Conveyancing Act, shall be placed on the title of the unit described as Unit 1 on the approved plans being the apartment for the caretaker, as follows:
This unit (lot) has been approved for use only for occupation by the caretaker of the serviced apartments in the building in which this unit is located. Any other use of it, including its occupation for a duration that is in excess of the time period specified in conditions 85B and 85C of this consent, requires further development consent. Such consent may be subject to the payment of contributions under Section 94 of the Environmental Planning and Assessment Act.

14 Whilst I was referred to a number of other metropolitan local environmental plans that contained definitions of serviced apartment referring to short-term accommodation for visitors, tourists and travellers being persons who have their principal place of residence elsewhere, Hurstville Local Environmental Plan 1994 contains no such definition. The term short-term is not defined in these other plans although temporary accommodation is described as being accommodation for persons who have their principal place of residence elsewhere.

15 Mr Goldsmith argued that given the relatively small size of these apartments, the provision of pay for services such as cleaning, proof of a permanent residence elsewhere and the fact that boarding houses, hotels and the like that have less amenity than the proposed apartments are not subjected to time constraints, any constraints would be unreasonable in this case. He nevertheless agreed that that the alternative conditions offered by the applicant would be appropriate.

16 Mr Moody was of the opinion that the council's proposed time limit was appropriate and was consistent with the terms short-term and temporary. It is especially appropriate given the amenity of the apartments especially those facing south. In this regard he agreed with Mr Goldsmith as to the need for varying time limits of occupancy depending on the level of amenity of the apartments concerned. He also agreed that a management plan should be imposed as a condition of consent should the applicant's time limits be agreed to.

17 The applicant's conditions deal with the management plan, and whilst permitting the north facing apartments to be occupied continuously for a maximum of nine months they restrict the south facing apartments to a maximum continuous stay of 90 days as sought by the council. They also provide for the placement of restrictions as to user under s. 88B of the Conveyancing Act on the unit titles to this effect, also advising that each unit has been approved for use as a serviced apartment only and any other use of it requires further development consent.

18 I have decided that the length of stay arrangements as proposed by the applicant (the conditions of consent and the management plan) would provide an outcome that will sufficiently distinguish the use of these serviced apartments from the use of similar apartments as might exist in a residential flat building. There was no evidence to show that, subject to compliance with the conditions and the plan of management, that the amenity of this essentially commercial locality would be adversely affected by the occupation of these serviced apartments in the manner proposed. I have reached this conclusion notwithstanding that more generally, serviced apartments are occupied for much shorter periods by comparison with those sought by the applicant. I also acknowledge the need to distinguish between the amenity of the north facing and south facing apartments, a major concern to Mr Moody, and recognise the different stay limits imposed on them.

19 Therefore the applicant's conditions 85A, 85B, 85C and 86(a) and (b) will be included in the consent, replacing condition 86. Condition 93 will be amended accordingly.

Section 94 contributions

20 In his separate report Mr Goldsmith provides an analysis of what he says is the correct approach in calculating an appropriate contribution for this development for public amenities and public services within the area, taking into account council's s94 contributions plans for residential development. Both Mr Goldsmith and Mr Moody agreed that whilst the proposed development could be considered to be business premises, serviced apartments are better described as residential development for the purposes of assessing demand for amenities and services. They agreed that three s94 plans should be applied to this development: CP2 - Open Space and Community Recreation; CP4 - Community Services and Facilities; and CP5 - Management although these plans do not specifically provide for serviced apartments.

21 In order to determine the likely demand for amenities and services generated by these serviced apartments, Mr Goldsmith explained that it is necessary to determine the number of people likely to occupy the apartments at any time. Using Australian Bureau of Statistics data the average bed occupancy rate for serviced apartments in New South Wales as a whole is 47.7%.

22 I accept that applying this broad based rate to the proposal is a reasonable approach especially given that one cannot know whether the occupancy will be for holiday accommodation or for business use. Hence as each of the 28 apartments contains a double bed (for this purpose a double bed comprises two beds) this equates to a capacity of 56 beds. Applying the 47.7% rate to this, Mr Goldsmith concluded that on average there are likely to be 27 persons in the 28 apartments on a daily basis. Whilst Mr Moody was concerned that bed occupancy rates can vary seasonally and over different geographical areas I accept Mr Goldsmith's approach and the resulting likely daily average occupancy of 27 persons as a reasonable basis upon which to determine likely demand for amenities and services.

23 Mr Goldsmith next notes that the contributions plans also provide a basis for calculation of per person contribution rates by dividing the rates per dwelling by the average number of persons (as referred to in the plans) expected to reside in each dwelling. I agree that this approach should overcome any concerns about differences between dwellings and serviced apartments, taking also into account the assumption that the demand for amenities and services is likely to be essentially the same for an occupant of a serviced apartment and an occupant of a dwelling.

24 Therefore applying the council's s 94 plans CP2, CP4, and CP5 that respectively require monetary contributions of $2,854.38, $1,478.40 and $108.96 per person to the above-mentioned 27 persons equates to a total contribution of $119,927.00. (These figures have been updated by the Consumer Price Index).

25 Mr Goldsmith next argues that the former existing use of the building for a gymnasium and squash courts should attract a credit against the above-mentioned contributions. This should be calculated on the basis of the existing demand for amenities and services generated by the number of employees that could be reasonably attributed to this use.

26 Mr Moody was of the opinion that there should be no deduction or credit for the non-residential building that has been closed for some time and because its use is unlikely to comprise people who will place increased demand on public amenities and services. Importantly the commercial contribution provisions under the s94 plans do not apply to areas outside the Hurstville Town Centre and if this development were presently proposed no contribution would be required. Hence no credit should be available for the former use of the existing building.

27 It was not in dispute that the proposal is likely to result in an increased demand for public amenities and public services. It is also plain that the employees associated with the former use of the building would impose some demand on public amenities and public services and logic might indicate that this demand should be taken into account when determining what the increased demand associated with the proposed development would be. Indeed this is now common practice. This approach is also reflected in the council's contributions plan CP2 in the manner of "credit for existing development" where credit is given for existing dwellings on the site under consideration. Whilst contributions plans CP4 and CP5 make no reference to credit for existing development I understand that the council's approach in applying these plans is consistent with that in contributions plan CP2.

28 Whilst s 94 and s 94B of the Act provide the Court with considerable flexibility as to a condition of consent requiring contributions in relation to increased demand on public amenities and public services, as a matter of principle, contributions plans should be given considerable weight. Judicial notice is to be taken of such plans that are, like development control plans subject to public scrutiny before their adoption. Hence the provisions of and the approach indicated by s 94 contributions plans should be applied unless there are very good reasons not to do so.

29 In this case the applicant submits, on the basis of the evidence of Mr Goldsmith, that credit should be given for the demand on public amenities and public services associated with the use of the building for a gymnasium and squash courts. Plainly the Court has the power to accede to this submission. However the respondent submits that no credit should be given because the contributions plans make no provision for credit other than for existing dwellings. Also the council's contributions plans do not at this time require a contribution for a gymnasium and squash courts.

30 Whilst there is little doubt that the operation of the gymnasium and squash courts would generate some demand on public amenities and public services I have decided to give determinative weight to the provisions of and the approach indicated by the applicable s 94 contributions plans and make no credit allowance.

31 Finally, in relation to the s 94 contributions I acknowledge that the contributions that I have decided to impose may not be strictly in accordance with the council's s 94 plans. Taking into account the power available to the Court under s 94B(3) of the Act, I have decided that the contributions referred to above are to be paid by the applicant to the council, such contribution being reasonable in the circumstances of this case.

Conclusion

32 I have therefore decided that the appeal should be upheld and development consent granted subject to the conditions as agreed by the parties and as decided in this judgement.

___________________

T A Bly
Commissioner of the Court
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