Canyork Pty Ltd v Wollongong City Council
[2003] NSWLEC 125
•06/27/2003
>
Land and Environment Court
of New South Wales
CITATION: Canyork Pty Ltd v Wollongong City Council and Anor [2003] NSWLEC 125 PARTIES: APPLICANT
Canyork Pty LtdRESPONDENT
INTERVENER
Wollongong City Council
Minister for Urban Affairs and PlanningFILE NUMBER(S): (1)0396 of 2002 CORAM: Pearlman J KEY ISSUES: Development Application :- appeal - deemed refusal - coastal headland - planning principles - heritage item LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C
Illawarra Regional Environmental Plan No 1
NSW Coastal Policy 1997
Wollongong Development Control Plan 6 - Commercial and Industrial Development
Wollongong Development Control Plan 9
Wollongong Local Environmental Plan 1990CASES CITED: DATES OF HEARING: 17/02/2003; 18/02/2003; 19/02/2003; 20/02/2003; 21/02/2003; 24/02/2003; 25/02/2003; 04/04/2003
written submissions: 09/04/2003; 15/04/2003; 05/05/2003DATE OF JUDGMENT:
06/27/2003LEGAL REPRESENTATIVES:
APPLICANT
Mr P C Tomasetti (Barrister)
SOLICITORS
Henry Davis YorkRESPONDENT
INTERVENER
Mr A M Pickles (Barrister)
SOLICITORS
Peedoms
Mr P R Clay (Barrister)
SOLICITORS
planningNSW
JUDGMENT:
10396 of 2002
27 June 2003Pearlman J
- Applicant
- Respondent
- Intervener
Introduction
1 This is an appeal against the deemed refusal by Wollongong City Council of a development application to construct a serviced apartment hotel complex at Headland Avenue, Austinmer. Development approval has already been granted for the demolition of the existing hotel on the site, known as the Headlands Hotel.
2 I have concluded, for the reasons which I set out, that the height, bulk and scale and footprint of the proposed building will have an adverse visual impact upon the sensitive coastal headland and that it will have an adverse impact upon the aesthetic significance of the heritage item, the Norfolk Island pines. In these circumstances, the appeal must be dismissed.
3 I record that I have been ably assisted in this matter by Commissioner Tuor, and that I have had the benefit of a site inspection.
- The site and its context
4 The site (being lots 87 – 95 DP 9233) is located on a prominent coastal headland known as Brickyard Point in Austinmer. It is roughly triangular and has an area of 6845 m2, with a frontage of approximately 97 m to Headland Ave, approximately 110 m to Yuruga Street and approximately 165 m to an unmade lane and public reserve, known as Tuckerman Reserve. This reserve connects the beaches and is above the cliffs of the headland overlooking the rock platforms and the ocean. The site rises gradually from west to east. There is a marked difference in level of seven metres from the north east to the south west corners of the site.
5 A predominantly two storey hotel occupies approximately 25% of the site. A surface car park occupies a further 20%. The existing building has a maximum height to the ridge of the roof of 10.24 m, is setback from the reserve and the boundaries of the site and is largely screened by a mature row of Norfolk Island pines planted along the street frontages and the south west corner of the site.
6 Adjoining development to the west of the site, across Yuruga Street are one and two storey houses and townhouses. Land to the north and north west is public reserve.
Proposal
7 The development application initially proposed residential dwellings as well as a hotel, restaurant and serviced apartments. An issue arose early in the hearing as to whether the residential dwelling component was a use permissible or prohibited under the Wollongong Local Environmental Plan 1990 (“the LEP”). After submissions, the applicant withdrew its proposal for the residential dwellings, and sought amendment of the plans of the proposed development. Leave to amend was given, the residential dwelling component was deleted, and the development application as amended was re-advertised.
8 As amended, the development application seeks the construction of a mixed use tourist development comprising:
· Basement – 69 serviced apartment car spaces and 39 visitor spaces;
· Lower ground – vehicle entry, 41 visitor car spaces and nine serviced apartments;
· Ground – hotel lobby, restaurants, bars, meeting room, games rooms, kitchen and 23 serviced apartments;
· Level 1 – restaurant, conference room, kitchen and 15 serviced apartments;
· Level 2 – seven serviced apartments.
9 The floor area of the serviced apartment component is 5582 m2 (72%) and 2218 m2 (28%) for the hotel and restaurant uses. The proposal has a floor space ratio (FSR) of 1.14:1, a site coverage of 53% and a maximum height to the ceiling of 10.98 m. The ridge of the main roof rises a further 5 m in height.
Statutory Framework
10 Under the LEP the site is zoned 6(c) (Tourism Zone). The proposed development is permissible with consent. Clause 9(3) of the LEP requires that consent must not be granted unless council is of the opinion that the proposed development is “consistent with the objectives of the zone”. The 6(c) zone objectives are
- (a) to identify areas of, and encourage tourist orientated development in, designated tourism precincts, and
(b) to allow some diversity of activities which will not prejudice the objective referred to in paragraph (a) from being achieved or significantly detract from the character of the locality or the amenity of any existing or proposed development in the locality.
11 The Norfolk Island pines on the site are identified as a landscape heritage item of local significance in sch 1 of the LEP. Clause 28 requires that the consent authority must not grant consent to:
- development on the site of a heritage item, unless it has made an assessment of the extent to which the carrying out of development would affect the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the item or its setting.
12 Clause 12(1) of the LEP specifies maximum FSR of 1.5:1 for the 6(c) Tourism zone. There are no other relevant development standards in the LEP.
13 Also applicable to the site is the Wollongong Development Control Plan 6 – Commercial and Industrial Development (“DCP 6”). This specifies a site coverage for commercial development of 70% and a FSR of 1.5:1 consistent with the standard in the LEP. DCP 6 also adopts the setback controls in Wollongong Development Control Plan 9 (“DCP 9”).
14 Illawarra Regional Environmental Plan No 1 (“the REP”) applies to the site. The relevant provisions are the objectives relating to coastal land, wetlands and other water bodies in cl 105, in particular:
- (a) to protect beach systems and conserve their scenic, recreation and natural values.
(b) To maintain and improve public access to waterways, lakes and the seafront.
15 Clause 107 requires the consent authority to consider “the need to facilitate public access to the waterfront by requiring dedication of appropriate land for open space purposes”.
16 The objectives relating to recreation and tourism in cl 118 are also relevant, in particular:
- (b) to conserve and promote the region’s natural, historical and cultural features which are the basis of the tourist industry.
17 This objective informs cl 122 which states that:
- Development of recreation and tourism facilities which can be demonstrated will result in a net inflow of money to the region and which will be environmentally acceptable should be encouraged.
18 Clause 139 of the REP would operate in this case to require the concurrence of the Director if the height to the ceiling of the proposed building were to exceed 11 m. Ultimately all parties agreed that the height did not exceed that limit. Accordingly, concurrence is not required. However, Mr Clay, appearing for the Minister, submitted that the matters referred to in cl 139(3), which are to be taken into consideration by the Director in deciding whether to grant concurrence, remain relevant considerations. I do not accept this submission, since I take the view that consideration of them is confined to the Director’s concurrence. However, most of them set out conventional planning principles that may be considered in any assessment of a development application, and they are relevant only to this extent.
19 The Minister also raised the issue of compliance with the NSW Coastal Policy 1997 (“the Coastal Policy”). Mr Tomasetti, appearing for the applicant, submitted that the Coastal Policy did not apply to the development application since it states expressly that it will not apply in the urban area of the Illawarra region. After argument during the proceedings, I ruled that the Coastal Policy, in its terms, does not apply to the site or to the proposed development as a specific policy. However, it is relevant to the extent that it contains planning principles applicable to assess the impact of a development on the coast. The proposed development fits that description.
20 Council officers had prepared a development control plan for the site, but this had not been adopted by council nor exhibited. I therefore attach little weight to this document.
The issues
21 The statement of issues respectively provided by the council and the Minister contain a number of issues which relate to the residential component of the development. These were resolved by the deletion of the residential component and the submission of amended drawings.
22 The remaining issues are:
(a) whether the proposal will have an adverse impact on the character and scenic quality of the headland and its surrounding context due to the height, bulk and scale and footprint of the proposal;
(b) whether the proposal will have an adverse impact on the heritage significance of the Norfolk Island pines on the site;
(c) whether the proposal has an acceptable standard of internal amenity;
Impact on the headland and its context(d) whether the proposal has an adverse impact on the open space reserve.
23 The site is located on a prominent headland that forms part of the scenic coastline north of Wollongong. The parties generally agreed that development of the site needed to respond to the features of this headland. The applicant’s claim was that the proposed development achieved this objective. The council and the Minister claimed that the development was an inappropriate response to the significance and prominence of the headland.
24 The main area of disagreement related to the visual impact of the proposed building resulting from its height, bulk and scale and footprint. In other words, will the proposed building be too high, too large and detract from aesthetics of its setting?
25 Seven experts gave evidence on planning, urban design and visual impact issues. They were:
· For the council:
Professor N D Quarry, architect,
Mr S R Layman, architect and town planner.
· For the Minister:
Mr M Harrison, town planner and urban designer,
Mr N L McGaffin, town planner,
Dr R J Lamb, visual consultant.
· For the applicant:
Professor J Toon, architect and town planner,
Mr A J Rowan, town planner.
26 Professor B G Thom, chair of the NSW Coastal Council, gave evidence on the impact of the development on the coast as it relates to the principles of the Coastal Policy.
27 The expert evidence may conveniently be considered in three categories, all relevant to the first issue of the impact upon the headland and its context. Those categories are, first, the effect of compliance with numerical, or quantitative, controls; secondly, the application of general planning principles such as those that appear in the Coastal Policy; and thirdly, architectural design.
Numerical controls
28 It is common ground that the proposed building complies with FSR, setback and site coverage controls set out in the LEP and DCP 6. Nevertheless, mere compliance with such controls does not mandate development consent. The proposed development must be assessed on its merits and in accordance with s 79C of the Environmental Planning and Assessment Act 1979. In the present case, compliance with the numerical controls in the relevant planning instruments is an important, but not exclusive, factor. At least as relevant are the likely impacts of the proposed development, including environmental impacts, and the suitability of the site for the proposed development, both matters appearing in s 79C.
29 Mr Rowan and Professor Toon held the view that the controls are indicative of the type of development that is envisaged for the site. Professor Toon stated that the FSR control would “surely only have been adopted after consideration on a site by site basis”. The proposal is below the numerical controls, which these experts considered indicates the responsiveness of the design to the site. The design of the proposal was also responsive to the site as the proposed building will be stepped in height, the roof will be broken into different forms and the facades will be strongly articulated and indented. It will therefore be appropriate in its height, bulk and scale and will achieve an acceptable relationship with the headland as well as surrounding development. In their opinion it will not have an adverse visual impact on the scenic quality of the headland and the coastline.
30 Mr Layman said that the controls in the LEP and the DCP apply to all commercial sites in Wollongong. The evidence of Mr Doughton, a planner who assisted in the preparation of the LEP, was that “no site by site assessment was given to the FSR for the 6(c) zone”. Mr Layman’s view was that controls are therefore not site specific but maximum controls that are contingent upon satisfying qualitative objectives and the constraints of the site, including its prominence as a headland, its triangular shape, its topography and the heritage status of the Norfolk Island pines should also be considered. In his opinion the characteristics of the site required greater setbacks, landscaped area and lower FSR to retain the character of the headland and reduce the visual impact of development.
General planning principles
31 The site is a headland and a sensitive coastal location. In table 3, the Coastal Policy sets out two planning principles relevant to such a site. They are:
Any developments on headlands already developed should be strictly limited to height and scale no greater than existing buildings and will require an environmental assessment, including an assessment of visual impact from adjoining beaches.Undeveloped headlands will be preserved.
32 I understand these principles to be based on the notion that headlands are prominent and visible features in the coastal landscape. Development on a headland will be seen from many vantage points and will therefore have a significant visual impact. The principles seek to minimise this impact on the premise that further development of headlands will increase visual impact and therefore headlands that are undeveloped should remain so and those that are developed should not increase in height and scale. I do not accept that these principles need be strictly adhered to or that the proposal should automatically fail because it increases the height and scale of the existing development. However, I accept that the underlying objective needs to be achieved, that the visual impact of any proposal should not be adverse and that the headland should retain its prominence and scenic quality in the coastal landscape. In this context the visual impact of the proposal is a direct result of its height, bulk and scale and footprint.
33 Dr Lamb, whose expertise is in the assessment of visual impact, assessed the site as being located “on one of the most prominent headlands between Stanwell Park and Bulli Point … a landmark … of open character … relatively natural and highly visible”. He accepted that the photomontages, prepared for the applicant, were an accurate representation of the proposal, although he considered that in the distant views the proposal appeared “smaller than in reality”. Under cross examination, he conceded that the main impact of the proposal would be when viewed from the north, particularly from the beach. He considered this impact to be unacceptable.
34 Mr Harrison said that, as the proposed building will be higher, longer and wider than the existing building on the site, it would have a greater impact. The height of the headland is approximately equivalent to the ridge height of the proposed building. This will result in the proposed building reading as a dominant element in the landscape and not as subservient to the headland, particularly when viewed up from the beach to the north. The east-west length of the headland from Yuruga Street is a maximum of 120 – 130 m. The proposed building will have east-west length of about 75 m which means that approximately 60% of the length of the headland will be taken up by built form, significantly more than by the existing development. This, in his opinion, will reduce the projection and prominence of the headland.
35 Professor Toon did not agree with the assumption in the Coastal Policy that because a development is larger it will have a greater or adverse impact. He placed less importance on the scenic quality of the headland, describing the coast as being “characterised by minor low lying headlands … (that) do not extend far into the sea and, when viewed along the coastline, appear as mere extensions to the foothills of the escarpment”. In his opinion, the main issue is the relationship of the proposed development to the west, not to the north. His opinion was that, even though the proposed building will be bigger than adjoining development, it will achieve a compatible relationship and will not be out of scale. The scale of the development was to be broken down by the use of “architectural devices”. The relationship of these devices to the overall building establish scale. In the proposal, these architectural features are domestic in nature and therefore relate to the scale of the adjoining dwellings and break down the bulk of the proposed building.
36 Mr Harrison held a different view. He said that scale was not only the relationship of elements within the proposed development and to adjoining development but the relationship of the mass of the proposed building to the headland and to adjoining development. The height of the proposed building will exceed the height of the houses across Yuruga Street, even though some of the recent dwellings are substantial two storey structures. The land drops away from the site to the west which means that the dwellings in Yuruga Street are at a lower level. The western façade along Yuruga Street is predominantly four storeys albeit stepped back from the street. It was his opinion that, at the corner of Yuruga Street and Headland Avenue, due to the change in level between the roads and the site, the building will appear significantly larger and out of scale with adjoining development.
Architectural Design
37 Professor Toon, Professor Quarry and Mr Harrison agreed that the site was appropriate for a strong architectural statement but noted that the design intent of the proposal was for a recessive building. Professor Toon stated that the “self effacing character of the design perpetuates the architectural anonymity that pervades the locality and allows the natural land form to continue to dominate”. He considered the proposed building will be “self effacing” as its form “fits in” to the landform of the headland “quite comfortably”. Although he did not agree with Mr Rowan that it “nestled into the headland” preferring to use the term that it “strides the headland and is an assertive element”, his view was that it will be no more assertive than the existing building.
38 Professor Quarry did not agree that the proposal was “self effacing” as in his opinion it “shows its face in every direction” particularly from the corner of Yuruga Street and Headland Avenue where it will appear twice as high as the existing building. Nor did he agree that it would fit comfortably into the headland because of its relative size in relation to the headland. He took issue with the description of the proposal as a “rambling house” put forward by Mr G C Wolfe, the architect who designed the proposal. In Professor Quarry’s view, it will not be rambling but a large mass. While the building is proposed to be well articulated, this is not sufficient to break down its overall mass as one large building under a large dominant roof that is not domestic in scale.
Evidence generally
39 I find the evidence of the experts for the council and the Minister to be more persuasive than that of the applicant’s experts.
40 The planning controls display a scarcity of site specific standards, both qualitative and quantitative, against which to assess the proposed development. I accept the submissions of Mr Clay and Mr Pickles, appearing for the council, that the assessment therefore needs to be based on the planning principles contained in the aims and objectives in the planning instruments and a merit assessment based on established planning principles for development in sensitive coastal locations.
41 The proposal also does not satisfy cl 105, cl 118 and cl 122 of the REP. The parties support the proposed use of the headland for a tourist development and this is consistent with cl 122 of the REP, which encourages tourism development “that will result in a net inflow of money to the region”. However, this clause also encourages tourism development “which will be environmentally acceptable”. In my opinion this is not achieved as the proposal does not “conserve the scenic value of the beach system” (which includes the headland), a consideration under cl 105, nor does it “conserve and promote the region’s natural, historical and cultural features”, a consideration under cl 118.
42 In reaching the above conclusions, I have had regard to established planning principles for sensitive coastal locations, including those set out in the Coastal Policy. I accept the evidence that the height, bulk and scale and footprint of the proposed building will have an adverse visual impact on the headland. The building is higher, wider and longer than the existing building on the site and will therefore have greater visual impact.
43 The proposed development will occupy a large proportion of the headland and will be roughly equivalent in height to the headland. The built form will therefore dominate the landform of the headland. Despite the fact that the building is to be stepped in height and despite the fact that the facades are to be well articulated and indented, and the roof will be broken into different forms, it is designed as one building under a large roof, which essentially follows the boundaries of the site and will present a continuous wall when viewed from outside the site. The building will also be larger and of different scale to the adjoining residential development in Yuruga Street. I accept Professor Quarry’s evidence that the building will read as a large mass that is out of scale with the headland and the character of development to the west. I also accept that the building is not “self effacing”. It will be seen from a number of vantage points and will be too large to be screened effectively by the Norfolk Island pines. The visual impact, particularly from the north and the corner of Yuruga Street and Headland Avenue, is unacceptable and the proposal must fail on this ground.
Norfolk Island pines
44 Both heritage experts, Ms L C Thom for council and Mr Rowan for the applicant, agreed that the heritage significance of the Norfolk Island pines is essentially historic and aesthetic. The historic significance of the pines is their association with the original guesthouse and continuing association with the hotel on the site. According to Ms Thom, the pines “are likely to have been planted between 1926 when the Headlands guesthouse was constructed and 1932 when the first available photograph showing the trees was taken”. Both experts agreed that the proposed development would not have an adverse impact on the historic significance of the pines as the site would continue to be used as a hotel and the pines would be retained. Mr Rowan considered that the setting of the pines would be improved as replacement planting is proposed and the surface car park is to be removed which currently impinges on the roots of some of the pines.
45 The experts disagreed on the impact the proposal is likely to have on the aesthetic significance of the pines. Ms Thom’s opinion was that:
- The aesthetic value of the trees rests largely in their landmark qualities. The landmark quality of the trees will be lost in this proposal as the building will become the visually dominant feature of the headland.
46 In particular, Ms Thom’s concerns were that:
· the height of the proposed building in relation to the pines will prevents the pines from being viewed in silhouette;
· the proposed building will be large and bulky and will dominate the site, diminishing the scale of the surrounding pines.
· there will be insufficient setback from the pines and the proposed building to allow the pines to be viewed from within the site.
47 Dr Lamb shared these concerns. He agreed that, as the pines had reached maturity, a replacement programme was required. However, the programme proposes a higher density of planting which is inconsistent with the traditional planting where the pines are well spaced so they can be seen individually and as group. He said that “there is an inherent conflict between dense planting and the desire of the occupants of the building for views”.
48 Mr Rowan drew different conclusions to that of Ms Thom and Dr Lamb. his view was that, even though the proposed building will be larger than the existing building, it will not detract from the significance of the pines provided they remain the dominant element in the landscape. The pines will still be taller than the proposed building and their tops will be visible above the building, even if the silhouette effect is reduced. The stepping in height of the proposed building away from the pines and to reflect the landform of the headland means that the pines “will remain the most visually dominant feature of the headland and, with the development nestled into the saddle of the landform, in a similar manner to the existing situation”.
49 Mr Rowan was asked in cross examination about the heritage assessment of the site he prepared in 1999. This document states that “from the south the hotel appears little greater than a single storey element” and that “the existing buildings reflect an appropriate scale of development”. Mr Pickles submitted that the inference to be drawn from this was that at the time the heritage assessment was undertaken this was Mr Rowan’s view as to the appropriate form of development for the site. Mr Rowan conceded that the proposed building will not reflect the landform of the headland as it will step up towards the west as the headland drops.
50 Mr D M Taylor, a landscape architect who gave evidence for the applicant, supported Mr Rowan’s opinion that the impact of the development on the Norfolk Island pines was acceptable. He established five key features of the site that should be respected by future development. These included the retention of the Norfolk Island pines and that the height of the proposed building should be below the top of the pines thereby retaining “the essential relationship of the building mass leaving the Norfolk Island pines the dominant visual element of the site”. In his opinion the proposal demonstrated these features.
51 I accept the evidence of Ms Thom and Dr Lamb that the height and bulk of the proposed building and its proximity to the pines will reduce the pines as a dominant feature in the landscape that is read in silhouette against the sky.
52 I do not accept Mr Pickles’ submission that if there is an adverse impact on aesthetic significance of the heritage item, the Court is bound to refuse the application by reason of cl 28(3) of the LEP. Clause 28(3) simply requires the consent authority to make “an assessment of the extent to which the carrying out of the development in accordance with the consent would affect the … aesthetic significance of the item and its setting”.
53 In making that assessment, I have concluded that the proposed development will have an adverse impact upon the aesthetic significance of the Norfolk Island pines. This of itself might not justify refusal of development consent, but when combined with the adverse visual impact that I have earlier described, it lends significant weight to the refusal of consent.
Internal Amenity
54 The evidence of Mr Harrison and Professor Quarry was that the design of the proposal as essentially one building will result in poor internal amenity and it does not exhibit good design principles appropriate to a site of this importance. Their concerns relate to:
· safety and security resulting from long corridors which change direction preventing surveillance from reception areas;
· lack of cross ventilation resulting from single orientation units that would necessitate mechanical ventilation, although no details of this were provided in the plans;
· poor design of public spaces such as the corridors which are to be internal with no external outlook as well as areas such as the main bar/restaurant which is to be lower than the adjoining ground level, obscuring views over the reserve to the ocean. I note that this area appears to have a floor to ceiling height of only 2.5 m which is low for such a large and important space;
· a number of the bedrooms and studies will have no direct access to natural light. These rooms will borrow the light from the adjoining living areas.
55 Mr Wolfe took issue with these points. In his opinion the internal design of the proposal is appropriate. Security is ensured by measures such as a management plan and security cards. The internal design of the corridors is secondary to the design objective of maximising views from the serviced apartments that have large windows that provide adequate ventilation and access to light.
56 I accept Mr Wolfe’s evidence that the internal amenity of the serviced apartments is adequate and acceptable and it is not a matter upon which the development application would fail.
Open Space
57 The objective in cl 105(b) of the REP is “to maintain and improve public access to waterways, lakes and the seafront”. To achieve this objective cl 107 requires the consent authority to consider the dedication of open space to provide access to the foreshore. Although raised as an issue by the Minister, dedication was not pressed but the impact of the development in relation to the adjoining foreshore reserve and access through the site was raised.
58 Professor Thom considered the proposal would lead “to the perception that public open space adjacent to the site had been alienated”. This view was shared by Professor Quarry and Mr Harrison who felt that there may be conflict between the public use of the proposed hotel and the use of the public reserve, particularly as the main restaurant and bar were to be set back from the eastern boundary only approximately 5.6 m. The ground level of the adjoining outdoor area will be lower than ground level of the reserve, which will restrict views of the ocean from this point. These experts considered that this area of open space was insufficient for a hotel complex of the size proposed and did not take advantage of the attributes of the site. In their opinion, this would result in use of the adjoining public reserve by hotel patrons and the perception that the reserve was a “forecourt to the hotel”.
59 Mr Harrison and Mr McGaffin also raised concern that there is currently informal access through the site and that the design of the proposal presents a continuous wall along the boundary that restricts the site’s permeability. Mr McGaffin stated that “at present there is a good relationship between the surrounding open space and the scale of the development. This relationship encourages the public to access the public areas adjoining the site … this free and informal access through the site and opportunities for quality public interface are discouraged under the proposal due to the extent of site occupied by the development”.
60 Mr Rowan and Professor Toon took issue with these views. They contended that the proposal will not restrict the use or enjoyment of the public reserve and any conflict resulting from the use of the reserve by hotel patrons could be dealt with by a management plan. In their view, the proposal will enhance the access to the reserve by providing stairs and paths off Yuruga Street that connect to the unmade lane along the cliff top.
61 I accept the evidence that, while the proposal will maintain access to the public reserve and the foreshore, it will not improve this access nor will it enhance the public open space. This is a negative feature of the proposal but is not of itself a reason for refusal of development consent.
Public representations
62 The Court heard evidence from the following residents:
Dr Allen 6 Asquith Street, Austinmer
Mr Rodden 4/6 Yuruga Street, Austinmer
63 Both Mr Rodden and Dr Allen supported the use of the site for tourism purposes but were mainly concerned about the visual impact that the proposal would have on the headland, its impact on the Norfolk Island pines and the restriction of public access to the site. These issues are discussed above. They were also concerned about the conflict of the proposed residential/serviced apartment use with the tourism component. The deletion of the residential component partly addressed these concerns. However, in response to the re-advertisement of the amended proposal, Mr Rodden provided further evidence to the Court and expressed a concern that the proposed serviced apartments could be strata titled and effectively used for residential purposes which would effect the viability of the hotel/tourism use. His concern was that long term residential use of the serviced apartments would privatise the use of the site.
64 If the development application was to be approved, a condition of consent could have been imposed to the effect that the site was not to be used for residential purposes. That would have addressed Mr Rodden’s concern.
Orders
65 In accordance with the foregoing, the formal orders of the Court are:
(1) The appeal is dismissed.
(2) Development application D195/02 for construction of a serviced apartment tourism development at lots 87 – 95 DP 9233 Headland Avenue, Austinmer, is determined by the refusal of consent.
I make no order as to costs.(3) The exhibits may be returned.
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