Australian Leisure and Hospitality Group Ltd v Manly Council

[2010] NSWLEC 1113

Land and Environment Court

of New South Wales

CITATION:	Australian Leisure and Hospitality Group Ltd v Manly Council [2010] NSWLEC 1113 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Australian Leisure and Hospitality Group Ltd RESPONDENT Manly Council
FILE NUMBER(S):	11010 of 2009
CORAM:	Pearson C
KEY ISSUES:	DEVELOPMENT MODIFICATION :-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 1988
CASES CITED:	Australian Leisure and Hospitality Group Pty Ltd v Manly Council [2005] NSWLEC 316 Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Morris v Leichhardt Council [2008] NSWLEC 1106 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
DATES OF HEARING:	13 April, 12 May 2010
DATE OF JUDGMENT:	19 May 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr M Wright, barrister Instructed by Dr J Smith Norton Rose RESPONDENT Mrs L Finn, solicitor HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

19 May 2010

11010 of 2009 Australian Leisure and Hospitality Group Ltd v Manly Council

JUDGMENT

1 Commissioner: This is an application made under s96(8) of the Environmental Planning and Assessment Act 1979 (the Act) to modify a development consent granted by the Court in 2005 in Class 1 proceedings following the refusal of development consent by Manly Council (the Council) for alterations and additions to the New Brighton Hotel at 71 The Corso, Manly, being Lot 1 DP 63249 and Lot 1 DP 86449 (the site).

2 The site is located on the southern side of the intersection of the The Corso and Sydney Road, and is triangular in shape, with frontages to The Corso and Sydney Road. The New Brighton Hotel is a three storey building with a flat roof and basement level. The present hotel dates from approximately 1909 and underwent an upgrade in 1926 when new features were added to the facade. Adjoining the site to the west, and with frontages to both The Corso and Sydney Road, is a building used for backpacker accommodation.

3 The development consent granted by the Court in 2005 approved an application for approval of a change in trading hours and for major alterations to each of the basement, ground, first and second levels of the hotel, and the construction of a roof terrace and decking on the existing roof area, including new plant for the hotel: Australian Leisure and Hospitality Pty Ltd v Manly Council [2005] NSWLEC 316 (the 2005 Consent). Condition 50 of the 2005 Consent was the subject of an application made in 2008 pursuant to s96(8) of the Act; the orders made in those proceedings were set aside on appeal: Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226.

Planning controls

4 The site is within zone No 3 - Business zone under the Manly Local Environmental Plan 1988 (the LEP). Clause 7 of the LEP and Schedule 4 of the LEP identify the site as an item of environmental heritage; also listed as heritage items are the Hotel Steyne on the eastern side of Sydney Road, and the public roadway and properties with frontage to The Corso.

5 Clauses 18 and 19 of the LEP provide:

18 Items of the environmental heritage

(1) A person shall not, in respect of a building, work, relic or place that is an item of the environmental heritage:
(a) demolish, renovate or extend any such building or work,
(b) damage or despoil any such relic or any part of any such relic,
(c) excavate any land for the purpose of exposing or removing any such relic,
(d) erect a building on the land on which that building, work or relic is situated or the land which comprises that place, or
(e) subdivide the land on which that building, work or relic is situated or the land which comprises that place,
except with the consent of the council.

(2) The council shall not grant consent to a development application made in pursuance of subclause (1) unless it has made an assessment of:
(a) the significance of the item as an item of the environmental heritage of the Municipality of Manly,
(b) the extent to which the carrying out of the development in accordance with the consent would affect the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the item and its site,
(c) whether the setting of the item, and in particular, whether any stylistic, horticultural or archaeological features of the setting should be retained, and
(d) whether the item constitutes a danger to the users or occupiers of that item or to the public.

19 Development in the vicinity of an item of the environmental heritage

The council shall not grant consent to a development application to carry out development in the vicinity of an item of the environmental heritage unless it has made an assessment of the effect which the carrying out of that development will have on the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the item of the environmental heritage and its setting.

6 The Corso is within the Town Centre Conservation Area, and cl21 of the LEP provides:

21 Conservation area

(1) A person shall not, in respect of a conservation area:
(a) demolish, extend or change the outside of a building or work within that area, including changes to the outside of a building or work that involve the repair of the painting of unpainted brickwork, plastering or other decoration of the outside of the building or work,
(b) damage or despoil a relic or part of a relic within that area,
(c) excavate any land for the purpose of exposing or removing a relic within that area,
(d) erect a building within that area, or
(e) subdivide land within that area,
except with the consent of the council.

(2) The council shall not grant consent to a development application made in pursuance of subclause (1) unless it has made an assessment of:
(a) the extent to which the carrying out of the development in accordance with the consent would affect the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the conservation area, and
(b) whether a refusal to grant consent would constitute a danger to the users or occupiers of that land or the public, and
(c) the provisions of any development control plan relating to heritage conservation areas.
(3) The council shall not grant consent to an application made in pursuance of subclause (1), being an application to erect a new building or to alter the exterior of an existing building, unless the council has made an assessment of:
(a) the pitch and form of the roof,
(b) the style, size, proportion and position of the openings for windows and doors, and
(c) whether the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building are compatible with the materials used in the existing buildings in the conservation area.

Modification application

7 The applicant applied to the Court for modification of the 2005 Consent as follows:

1. Amendment to the plans by construction of a courtyard area including landscaping on the ground floor level, reconfiguration of the basement level plan including an extension to the existing keg room, and exhaust fans to be located on the roof surrounded by an acoustic screen.
2. Modification of Condition 1 of the development consent to refer to amended plans prepared by Altis Architecture, Project No 869.08 drawing Nos DA01B to DA04B and DA05C to DA09C dated 26/10/09 and SK01 dated 10/7/03.
3. Modification of condition 32 to reference the building as Class 9b only.
4. Modification of Condition 85 which reads:
Any material used (including glass or metal) in the erection of the roof terrace, a component of the building, shall be of such colour and finish so as not to be perceptible against the sky, particularly when viewed from the intersection of The Corso and the Steyne
by the deletion of the words “so as not to be perceptible against the sky” and the replacement by the words “to minimise the visual impact of the roof terrace”.
5 Amendment to the plans for the acoustic screen on the roof level in order to achieve compliance with Conditions 53 and 54.

8 In a Statement of Environmental Effects prepared on behalf of the applicant in November 2009 the amendments to the plans were described as follows:

Construction of a courtyard area including landscaping on the ground floor level. The courtyard will be open due to a series of voids created on levels one and two, the terrace level in the roof.
Reconfiguration of the basement level, including an extension to the existing keg room.
Exhaust fans to be located on the roof surrounded by an acoustic screen. The fans and screens will be lowered into the roof to ensure that the height of the equipment does not exceed RL21.260.
The building structure will be strengthened or replaced throughout as required.

9 The proposed inclusion of the acoustic screen was explained in terms of ensuring compliance with conditions 53 and 54 of the 2005 Consent. Condition 53 imposes in relation to all mechanical plant a maximum sound level contribution of 47dB(A) assessed as an Leq level (over 15 minutes) at any adjoining or adjacent residential boundary. The amendments proposed include the installation of an acoustic screen to surround the plant area and rooftop fans, which according to an acoustic assessment provided by the applicant will result in a noise level of 46dBA at the boundary of the nearest receptor (the adjacent backpacker premises) which would be in compliance with condition 53. Condition 54 requires a maximum sound level contribution for noise emission from mechanical plant of 40dBA at any adjoining or adjacent residential boundary or window of habitable room when measured as an LAeq level over any one hour period during 10pm to 7am on any day. The acoustic assessment provided by the applicant indicated that additional attenuation with distance and roof top screening combined with the proposed acoustic screaming around the plant, would ensure a sufficient reduction in noise level from the proposed mechanical plant items to ensure that condition 54 is met.

10 The amendments proposed to the conditions of consent were described as follows:

Condition 32: the proposal is to reference the building as Class 9b only; there is no residential component to the building and the classification of 9b under the BCA 2009 has been expanded to incorporate the bar areas of a hotel where light entertainment is provided.
Condition 85: the proposed amendment to condition 85 is intended to convey more effectively the intention of the condition, and ensure that the visual impact of the roof terrace is minimised.

11 In its Amended Statement of Facts and Contentions filed on 23 March 2010 the Council contended that there would be an adverse impact on a structure of significant heritage value; the internal layout of the proposed courtyard was not suitable for the purpose of its intended use by smokers; there was insufficient information in the Operational Plan of Management in terms of noise control, hours of operation and use of the courtyard area, retention of walls and external balcony, and the works to the internal structure; and lack of owner’s consent for the proposal to use basement areas extending into the Council’s road reservation on The Corso and Sydney Road frontages.

12 During the course of the hearing agreement was reached on the majority of the matters in contention. The parties were in agreement that the modification application could be approved subject to conditions, however there remained three conditions in dispute. Those conditions were:

A1. Deferred commencement condition: Prior to commencement of any work on the site, a structural engineer’s report, prepared by a suitably qualified engineer experienced in dealing with heritage buildings must be submitted for the approval of Council. The report must explain how the existing walls are to be retained, supported and not undermined by the proposed development and give details of any intervention such works will have on the original fabric of the existing building. Details of the temporary supports and hoardings must also be provided.

Reason: To ensure the protection and structural integrity of the building is maintained

A2. Deferred commencement condition: The proposed works are to ensure that sites in the vicinity of the item are to be suitably protected during the construction processes. Details of the protection strategy should be submitted and approved by Council prior to the issue of the Construction Certificate

Reason: To ensure that the adjoining sites are not adversely affected and that best practice for heritage conservation is undertaken

87. The Operational Plan of Management be amended as follows;
(i) Clause 4.2 – add Ground floor outdoor area – 10.00am to midnight

13 The Council submitted that condition A1 is required to ensure that the development consent is easily understood by members of the public. Condition A2 is required to ensure that the proposed works can be carried out without affecting adjoining properties, and the applicant will be assisted by providing a construction plan showing how the adjoining buildings are to be protected. Condition 87(i) limits the hours of operation of the new courtyard area to be consistent with all the other external parts of the hotel which are limited to midnight by the Plan of Management.

14 The applicant submits that condition A1 is not required because the engineering drawings contain detailed notation of the works and there is nothing to indicate that any further clarification is required. Condition A2 is unnecessary because conditions 18 in the 2005 Consent and proposed condition 94 require a dilapidation report, and there is nothing to suggest a need to do anything otherwise than in accordance with the plans. In relation to condition 87(i), the courtyard is not an “outdoor area” but a courtyard area with an opening to the sky. If condition 87(i) is imposed the only place for smokers to go after the first floor balcony is closed would be on the street, which would have a greater impact. The nearest residential affected sites are some distance away from the hotel.

Evidence

15 The Council notified the s96 modification application and received objections from the Chairman of the Peninsula Owners Corporation on behalf of the residents at 25 Wentworth Street Manly; the owner of a unit at 43 North Steyne; the Chair of The Corso Community Forum on behalf of the Corso Precinct; and residents of a unit at 9-15 Central Avenue Manly.

16 The written objections raised as concerns noise emanating from the courtyard, balconies and roof terrace; noise and appearance of the mechanical plant on the roof; and the height of the building.

17 Expert planning evidence was provided on behalf of the applicant by Mr Michael Neustein and by Mr Steven Layman on behalf of the Council. Mr Neustein and Mr Layman prepared a joint report addressing the Council’s contention concerning the internal layout of the courtyard. During the course of the hearing agreement was reached on modification of the seating for players for the four poker machines proposed for this area, provision of seating for non-poker machine playing smokers, and removal of proposed landscaping which the experts agreed would be unlikely to be sustainably successful due to restricted access to sunlight and daylight; these amendments are addressed in proposed condition 93.

18 The hearing commenced with a site view, during which Mr Neustein explained that the internal structural works proposed are required in order to enable the alterations to the building approved in the 2005 Consent to be made, in particular to cope with the additional load with the roof terrace, and to enable the building to withstand an earthquake. Those works will require the removal of cladding on all floors, ceilings and walls; construction of a steel framework to the three walls on new concrete footings to be constructed in the basement; extension of the steel structure to the brickwork of each of the three walls; construction of new steel and masonry columns and beams as a vertical cantilever structure; and construction of new slabs for each of the floors. The inclusion of the courtyard area on the ground floor is required to provide an open area for smokers to comply with the prohibition on smoking in enclosed public areas of licensed premises. The works will include some excavation in the basement to increase head height. It was common ground that the works proposed for the basement do not extend any further into the road reservation on The Corso or Sydney Road than that which was approved in the 2005 Consent.

19 The applicant provided with the application a Statement of Heritage Assessment and Statement of Heritage Impact, a Conservation Works Schedule, and an Archival Photographic Record. A revised Statement of Heritage Assessment (Exhibit E) prepared by Jennifer Hill of Architectural Projects Pty Ltd includes the following summary of physical analysis:

The facade is a curious mix of features which indicate the overlay of a later decorative scheme on the original design of the building. The building features eight bays to The Corso and Sydney Road. The facade has been extended from Sydney Road. The 8-bay façade have been modified by the application of bell shaped Egyptian columns with decorative features. Very little of the original detail remains below the awning of the 8-bay facade but the classical volute brackets remain. The changes reflect the superficial upgrade which occurred to buildings. Internally little original fabric remains on the ground and first floor.

20 At part 5.4, the Assessment summarises the significance of the site:

The site of the New Brighton Hotel has medium significance as the site for its continuity of how to use each of the former Brighton Hotel dating from 1800 to the present.
The present hotel which dates from approximately 1909 has medium significance as superficial facade treatments.
The 1926 building treatment are of low significance as superficial facade treatments.
The primary significance of the site relates to the continued occupation by an operating hotel since 1800s and the present building since 1909.
The building has low significance as a highly altered early twentieth century hotel which has undergone significant alterations in 1926.
The building has high significance as an important landmark. It is located on Manly’s premier street and its corner location makes it prominent within this streetscape.

21 The Statement of Heritage Impact makes the following statements in relation to the s96 application:

The proposal involves minor changes to the heritage facade which is largely retained intact. New work is treated as contemporary interpretations of typical facade elements. This is consistent with the approach of the approved development approval. Minor changes occur to a roof extension which was previously approved. The New Brighton Hotel is not exceptional as a design but of interest because of the theatrical treatment of the facade which reflects the theatre design experience of its designers. The proposed minor changes to the Heritage facade do not impact on its aesthetic appearance and therefore significance.
The current proposal removes the previously approved columns to the exterior of the building and relocates some new opening in the less significant facade to the northern end of Sydney Road. The current proposal reinstates a contemporary interpretation of interwar tiling on the façade. In my opinion these minor changes to the facade will not impact further on the significance of the building. The re-tiling of the facade will enhance its heritage significance.

The development of the scheme and its associated services requires additional plant which is slightly larger than the previously approved plant. It is set back from the main facade and screened from Sydney Road. In my opinion these minor increases to the facade will not impact further on the significance of the building.
The previous approval proposed significant internal demolition. The current application proposes a full internal demolition and details structural measures to ensure that the heritage facade is maintained in an intact form. The interior is therefore to be fully removed and a complete refurbishment of the interiors is proposed. This report has previously assessed the interior of the building as D, which is the lowest grading and reflects the condition of the interior. The interior has been extensively demolished and remodelled over various stages. There is little significant original fabric remaining. The original plan form is able to be understood but has low significance for its contribution to an understanding of interwar hotel planning. Interwar hotels are relatively common and an extensive study of them within NSW by the author has indicated a large number of well executed hotels were designed, many of which remain in a highly intact condition.
The previous consent required retention of the keg room in an altered form. In my opinion the keg room does not exhibit any particular features beyond the characteristic nature of the keg room typical to all hotels including interwar hotels. For this reason the expansion of the consent from extensive internal demolition to one of full internal demolition will not impact further on the significance of the building.
The smokers terrace has been created on the ground floor level with subsequent voids on the upper levels (levels one and two, the terrace level and the roof).
Exhaust fans surrounded by an acoustic screen are proposed on the roof. These have been lowered into the roof so that they are not visible from the street.
As the smokers terrace has been created on the ground floor level and the exhaust fans surrounded by an acoustic screen on the roof are not visible from the street there is no heritage impact.

22 During the course of the hearing agreement was reached between the parties on a condition to retain the existing external colours of the façade (Condition 94), a condition specifying finishes for the roof terrace (Condition 85), and conditions requiring the applicant to retain an experienced conservation architect to work with the design team during design development, contract documentation and construction; to make a photographic archival record; and to carry out work in a manner that minimises demolition, alterations, new penetrations or irreversible damage to the significant fabric of the existing building (Conditions 88, 89 and 90).

Consideration

23 The applicant submitted, and the Council agreed, that the applicable provision under which this application must be assessed is s96(2) of the Act, which provides:

(2) Other modifications
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) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c) it has notified the application in accordance with:
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1) and (1A) do not apply to such a modification.

24 The parties were in agreement that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.

25 In considering whether I am satisfied that the modified development is substantially the same development as that originally approved in the 2005 Consent, I have had regard to the summary of the various approaches to this issue set out in Morris v Leichhardt Council [2008] NSWLEC 1106 at [23]:

(a) In Vacik Pty Limited v Penrith City Council (unreported, NSW LEC, Stein J, 18 February 1992) considered that the phrase meant “essentially or having the same essence”.

(b) The majority of the Court of Appeal in Sydney City Council v Ilenace Pty Limited (1984) 3 NSWLR 414, considered the word ‘modify’ meant to “alter without radical transformation”: see 421.

(c) In North Sydney Council v Michael Standley & Associates Pty Limited (1998) 97 LGERA 433, Mason P, at 439 adopted the meaning “to alter without radical transformation” although Stein JA adopted the meaning he had used in Vacik .

(d) In Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298 Bignold J analysed the authorities in relation to s 96(2)(a) and the meaning of ‘substantially the same.’ He said at p 309: “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 approved development.” He further explained that the comparative task required comparison both in qualitative as well as quantitative terms.

26 The majority of the works proposed are internal, and are summarised in the Statement of Heritage Impact in the following terms:

The interior, which was previously approved to be substantially demolished, is to be fully removed while retaining the exterior.

27 The evidence of Mr Neustein was that the works now proposed are required in order to implement the alterations approved in the 2005 Consent and to ensure the structural integrity of the building. The modifications to the roof terrace, in particular the inclusion of the acoustic screens, are required to enable compliance with the maximum sound contribution conditions 53 and 54 of the 2005 Consent. The evidence of Nr Neustein was that the addition of the smokers courtyard is required to ensure compliance with relevant legislation. This evidence was not contradicted and I accept it.

28 When considered on the comparative basis identified by Bignold J in Moto, I am satisfied that to the extent that the proposed works enable implementation of or compliance with the 2005 Consent, the modified development is essentially the same as the approved development, and that the inclusion of the smokers courtyard area is an alteration that does not represent a radical transformation. I am satisfied that the development as modified is substantially the same development as that for which consent was given in 2005.

29 It was common ground that neither the original consent nor this application require consultation with any relevant Minister, public authority or approval body, and s96(2)(b) is satisfied. This application was notified in accordance with the relevant development control plan, and the submissions received are before the Court, and are considered below. Section 96(2)(c) and (d) are satisfied.

30 Subsection 96(3) provides:

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.

31 On the issue of the impact of the proposed modification on the heritage significance of the building, there is no evidence before me to contradict the conclusions in the Statement of Heritage Impact that the modification of the 2005 Consent from extensive internal demolition to full internal demolition would not impact further on the significance of the building; that the creation of the smokers courtyard and provision of acoustic screens are not visible from the street and accordingly would not have a heritage impact; and that the proposed new work does not compromise the original significant façade.

32 The written submissions raised concerns as to noise emanating from the courtyard, balconies and roof terrace; noise and the appearance of the mechanical plant on the roof; and the height of the building. The modification application does not include any increase in height over that approved in the 2005 Consent, or a change in operating hours for the balconies or roof terrace. The proposed hours of operation of the courtyard is the subject of proposed condition 87(i), considered below. There is no evidence to contradict the evidence of Mr Neustein, based on an acoustic assessment undertaken by RSA Acoustics, that the proposed acoustic screening of the plant on the rooftop will result in noise levels which will be in compliance with conditions 53 and 54 of the 2005 Consent. The appearance of the roof terrace is addressed in condition 85 by specified materials and colours.

33 I am satisfied that the modification application can be approved. In considering whether the proposed conditions, in particular the contested conditions A1, A2 or 87(i), should be imposed, the starting point is the decision of McClellan CJ in 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685, holding that conditions can be imposed by a consent authority when determining an application for modification.

34 The conditions agreed between the parties include an amendment to condition 32 in relation to the classification of the building as 9b; the deletion and replacement of conditions 41 and 42 relating to food premises and cooling towers; additional heritage conditions 88, 89 and 90; condition 90 requiring certification of shoring for excavation; condition 92 requiring a dilapidation report, including the physical state of the Council’s footpath on the two frontages, adjoining property on The Corso, and the existing façade of the building.

Conditions A1 and A2

35 The Council submits that the discretion to impose conditions is sufficiently broad to include the imposition of conditions in the form of proposed conditions A1 and A2. The applicant submits that the 2005 Consent was not subject to a deferred commencement condition and by virtue of s83(1)(a) of the Act became operative and effective at the time the Court granted consent on 24 June 2005; and that as a result, proposed conditions A1 and A2 would have the effect of deferring an operative consent.

36 The power to impose a deferred commencement condition is conferred by s80(3) of the Act:

(3) “Deferred commencement” consent
A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

37 Section 96(4) of the Act provides:

(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

38 Conditions A1 and A2 require the provision of further information to the Council for its approval, for A1 before the commencement of work, and for A2 before the issue of a construction certificate. They are similar in form to other proposed conditions, for example 83 relating to structural certification of the first floor balcony and condition 88 requiring provision of details of the conservation architect engaged, in both instances before the issue of a construction certificate. However, not only are the conditions expressed to require a further approval by the Council, in the form proposed by the Council they are identified as deferred commencement conditions and are preceded by the following text:

Pursuant to s96(8) of the Environmental Planning and Assessment Act 1979, the development application No 387/03 be modified subject to original conditions of consent, but shall not operate until the applicant has complied with the following deferred commencement conditions :
[emphasis added]

39 The decision of McClellan CJ in 1643 Pittwater Road confirms that the limits of discretion conferred will be defined by the matters raised for consideration by the application. McClellan CJ considered s83 of the Act which makes provision for the operation of a development consent, and commented at paragraph 61:

61 The different regime for original consents is no doubt made necessary because, for a grant of a new consent, there is a requirement to define its operative date to provide for its commencement and lapse. These matters are not relevant when all that is taking place is that the original consent is being modified, because the original consent continues to operate in its modified form until the determination of the appeal. However, the appeal, being founded upon dissatisfaction with the determination of the modification application, must be decided upon the assumption that the original consent remains and the Court, exercising the powers of the Council, is to consider whether it should be allowed to be modified.

40 In these proceedings, the development consent the subject of the modification application became operative in accordance with s83(4) of the Act on 25 June 2005. That consent continues to operate until it lapses by virtue of s95 of the Act. I agree with the applicant that the effect of proposed conditions A1 and A2 would be to defer an operative consent. One response might be to amend these proposed conditions so as to require the applicant to provide the additional information specified before the issue of a construction certificate. However, even if there is power to impose a condition in the form proposed as conditions A1 and A2, or in the form of requiring the provision of the specified information before the issue of a construction certificate, I agree with the applicant that neither condition is necessary to address the matters raised for consideration by this application.

41 In relation to proposed condition A1, I accept the applicant’s submission that when read together the architectural drawings in Exhibit B and the engineering drawings in Exhibit C provide details of the proposed internal works. In particular, the engineering drawings include (in drawing number DA/S2.00 rev A) construction sequence details and an indicative construction sequence diagram with notes, and there is nothing in the evidence before me that suggests further clarification is required. In relation to proposed condition A2, I accept the applicant’s submission that the Council’s concerns about the possible impact of the works on adjoining sites are addressed in conditions 18 and 92 requiring a dilapidation report, and that the evidence before me does not indicate a need to approach the construction otherwise than in accordance with the plans and the conditions of consent, which include requirements intended to ensure protection of the heritage significance of the site and protection of adjoining properties.

Condition 87(i)

42 The written objections included concerns about noise that might be generated from the courtyard area. I accept, as submitted by the applicant, that the proposed courtyard area is subject to the noise restrictions in condition 51, including the limit on the playing of music of 90dBA in common with the ground floor, second floor and roof. However, there is no evidence before me to confirm what the likely noise impacts might be from the courtyard when it is used by smokers. The space is open to the sky, and I agree with the Council’s submission that the hours of operation of this area should be treated in a similar way to the other outdoor areas of the hotel, including the balcony, which are limited to 12 midnight. Condition 87(i) should be imposed in the form proposed by the Council.

Conclusion

43 The Orders of the Court are:

(1) Development Application 387/03 for alterations and additions to the New Brighton Hotel at 71 The Corso Manly approved by the Land and Environment Court on 24 June 2005 is modified and is subject to the conditions in Annexure A.
(2) The exhibits, except exhibits 1, B, C, D and F, may be returned.

09/06/2010 - Number changed from 24 to 23 - Paragraph(s) 25