Iglu No. 208 Pty Limited as Trustee for Iglu Property Trust No. 208 v Waverley Council

[2020] NSWLEC 1356

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Iglu No. 208 Pty Limited as Trustee for Iglu Property Trust No. 208 v Waverley Council [2020] NSWLEC 1356

Hearing dates:

25 and 26 June 2020

Date of orders:

24 July 2020

Decision date:

26 June 2020

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA-421/2018 for the demolition of the existing commercial building and construction of a new 11-storey lifestyle hotel development with a total of 197 rooms and associated amenities (including a lobby, conference rooms, co-working spaces, gymnasium and café) and associated signage, above one basement level at 5-11 Hollywood Avenue, Bondi Junction is approved, subject to the conditions set out in Annexure “A”.

(3) Exhibits other than A, B, D, E and 4 are returned.

Catchwords:

DEVELOPMENT APPLICATION – Lifestyle Hotel – Consent orders – exceedance of height control – resident objections

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Roads Act 1993

Waverley Local Environmental Plan 2012

Cases Cited:

Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; [1972] HCA 33

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Ryde Municipal Council v The Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Apartment Design Guide

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020)

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Iglu No. 208 Pty Limited as Trustee for Iglu Property Trust No. 208 (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
M Parrino (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Project Lawyers Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/83234

Publication restriction:

No

JUDGMENT

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Council’s deemed refusal of development application DA 421/2018 for the demolition of the existing commercial building and construction of a new 11 storey lifestyle hotel development with a total of 197 rooms and associated amenities, including a lobby, conference room, co-working spaces, gymnasium and café, and associate signage above one basement level at 5‑11 Hollywood Avenue, Bondi Junction.

2. On 18 November 2019, I presided over a conciliation conference pursuant to s 34 of the Landand Environment Court Act 1979 (the Court Act). During the course of that conciliation, I inspected the site and its context together with the immediate local area including the location of the residences of local objectors. I heard from a number of local objectors. That evidence was not recorded but the objections made then are encompassed or overtaken by the more recent objections and oral evidence to which reference is made later.

3. The conciliation did not resolve the matter, and it was terminated.

4. On 22 April 2020, the Court granted leave to the Applicant to amend the plans in respect of which consent is sought and to provide additional information in support of those plans. The principal amendments were:

• a rearrangement of the ground floor and provision of a void to improve the amenity and appearance of the entry;

• a reduction in the size of the upper level by increasing setback, deletion of one hotel room and reducing the size of plant rooms;

• amendment and detail of windows and louvres.

5. The amended plans were notified by the Council in accordance with its policy and objections were again received.

6. After its analysis of the amended plans and additional material, the Council determined that the issues it had hitherto raised had been resolved. The Council indicated to the Applicant that it was prepared to enter into consent orders for the grant of development consent, subject to conditions. In accordance with the Court’s policy, on 12 June 2020 the Council notified objectors of its intention to enter consent orders and provided a copy of draft orders and the agreed proposed conditions to the objectors.

7. At the commencement of the hearing, the parties indicated their consent to me disposing of the proceedings pursuant to s 34(4)(b)(i) of the Court Act. Although implicit in that consent, the parties also expressly consented to me taking into account that which I saw and heard during the conciliation, to the extent that it is relevant.

8. Although the parties described this as a “consent orders hearing” the Court must make an assessment of the development application and determine whether or not it is appropriate to grant development consent. It simply does not grant consent because the parties ask it to.

The Proposal

9. The proposal is more fully described as follows:

1. demolition of all existing structures;

2. earthworks/excavation;

3. construction of an 11 storey hotel containing 197 rooms;

4. a single level basement for loading vehicles, bin storage and various plant and equipment areas, noting there is no car parking, motorcycle parking or bicycle parking proposed in the basement;

5. ground floor lobby, lobby lounge, garden lounge, garden terrace, café, gym and meeting room, along with a new substation;

6. level 1 contains 11 hotel rooms and two meeting rooms;

7. levels 2-9 contain 22 hotel rooms per floor;

8. level ten contains ten hotel rooms and a communal lounge area, meeting room and outdoor terrace;

9. associated landscape works;

10. a “public art zone” on the southern façade of the building;

11. signage generally in the nature of building identification signage.

The Site and Surrounds

10. The site has a frontage to Hollywood Avenue of 30.24m, and side boundaries of 31.858m and 31.575m. It has a total area of 954.8sqm. It is on the western side of Hollywood Avenue, and within the Bondi Junction commercial district, although opposite residential uses to the eastern side of Hollywood Avenue.

11. On the site is currently a two storey commercial building with a basement level car park, accessed via a ramp at the northern edge of the building. The site is surrounded by the following:

1. to the north at 3 Waverley Street is a commercial building that appears as a seven storey glass façade tower atop a three storey car park podium, generally masonry;

2. to the south is the driveway entrance to the Westfield Shopping Centre car park, and beyond which are ramps to the south at 17 Hollywood Avenue, and a three storey commercial building;

3. to the east on the other side of Hollywood Avenue, at 2-8 Llandaff Street, is an eighth storey residential flat building. Opposite the residential flat building in Llandaff Street are a series of terrace houses in which are dwellings occupied by a number of objectors;

4. to the west or rear, there is a narrow area of drainage reserve separating the site from the Westfield Bondi Junction Shopping Centre. The aboveground car park portion of the shopping centre is immediately adjacent to the subject site, rising four storeys on the site’s boundary and a further three to four storeys setback above. I should also add that the planning controls would permit a 60m building on the Westfield car park site.

12. The locality is characterised by commercial buildings on the same side of the street as the subject site, including the Westfield Shopping Centre, and residential flat buildings on the opposite side of the street. Buildings in the immediate vicinity range from three to ten storeys, whilst a block to the north there are taller mixed use buildings ranging from 14 to 22 storeys in height.

Planning Controls

13. The site is within the B3 Commercial Core Zone created pursuant to Waverley Local Environmental Plan 2012 (WLEP). The WLEP is a local environmental plan in the standard form and requires the decision-maker to take into account in considering a development application, the objectives of the zone, pursuant to cl 2.3 of the WLEP. The objectives of the B3 zone are:

• To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community.

• To encourage appropriate employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To strengthen the role of the Bondi Junction Centre as a major commercial centre and ensure that commercial uses dominate.

• To provide direct, convenient and safe pedestrian links between the Bondi Junction bus concourse, rail station and Oxford Street Mall and reinforce the bus and rail interchange as a major passenger transport facility.

14. Hotels are a permissible use within the B3 zone, as a species of the defined term of hotel or motel accommodation. Hotel or motel accommodation is defined in WLEP as:

A building or place (whether or not licensed premises under the Liquor Act 2007), that provides temporary or short-term accommodation on a commercial basis, and that:

(a) comprises rooms or self-contained suites, and

(b) may provide meals to guests or the general public and facilities for the parking of guests’ vehicles, but does not include backpackers’ accommodation, a boarding house, bed and breakfast accommodation or farm stay accommodation.

15. Each of the phrases backpackers’ accommodation, boarding house, bed and breakfast accommodation and farm stay accommodation are defined terms, but it is unnecessary to set them out here.

16. Clause 4.3 of the WLEP, together with the height plan in the WLEP provide for a maximum height of building on the site of 32m. The proposal has a maximum height of 35.8m. The objectives of the height control are as follows:

(a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views,

(b) to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth,

(c) to accommodate taller buildings on land in zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land,

(d) to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space.

17. Clause 4.4 of the WLEP, together with the relevant floor space ratio map, provide for a maximum floor space ratio of a building on the site of 6:1. The proposal has a floor space ratio of just under 5.9:1 and is therefore compliant with that control.

18. Waverley Development Control Plan 2012 (Amendment No. 6) (DCP) applies to the land. The DCP has certain building form controls, but no non‑compliances were suggested or in issue on the Council’s part at any time, nor raised by objectors.

19. The DCP does have a provision relating to hotel use. Clause 2.2 of Part F2 provides:

“Objectives

(a) To ensure the design, development and management of hotel and motel accommodation provides a high standard of amenity for guests.

(b) To ensure that the amenity of the surrounding area is not unduly compromised.

Controls

(a) The maximum permitted length of stay is three months for motels and hotels.

(b) Sleeping rooms are to provide a minimum of 5.5 square metres per occupant staying more than 28 consecutive days; or 3.25 square metres per occupant staying 28 or less consecutive days.

(c) Where a hotel or motel is located within a building that includes residential flats…[not relevant].

(d) Each bedroom is to accommodate a maximum of two persons.

(e) Provide adequate space and secure storage facilities to allow occupants to store clothes and travel gear.

(f) Buildings must be oriented and designed to minimise potential impacts on surrounding residential amenity.”

20. The provisions of the DCP influenced the drafting of the conditions by the Council and the Applicant.

The Council’s Contentions

21. Prior to the amendment of the plans, the Council’s sole contention warranting refusal was that the building was too high - breaching the height control, and that the cl 4.6 objection in support of that breach did not adequately address that non-compliance. The remaining contentions were identified as capable of being resolved by a condition or the provision of additional information.

22. It is unnecessary to set out the additional information provided to satisfy those other contentions, other than height, but it is necessary to deal with the height of the proposal.

Evidence as to Height

23. Evidence was given by town planners Ms K Bartlett retained by the Applicant and Mr M Reid the Council’s executive manager development assessment. The planners prepared a “position paper” explaining the evolution of the plans and Council’s position, and also prepared a joint expert report addressing the height of the proposal and the updated cl 4.6 objection prepared by Ms Bartlett. They also gave oral evidence on the question of the height of the proposal, the cl 4.6 objection and matters related to conditions. Ms Bartlett prepared and annexed to the joint report of the planners a comprehensive modified cl 4.6 objection. Clause 4.6 of the WLEP provides as follows:

4.6   Exceptions to development standards

(1)  The objectives of this clause are as follows—

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless—

(a)  the consent authority is satisfied that—

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Planning Secretary has been obtained.

(5)  In deciding whether to grant concurrence, the Planning Secretary must consider—

(a)  whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b)  the public benefit of maintaining the development standard, and

(c)  any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.

24. This Court frequently deals with objections pursuant to cl 4.6 of local environmental plans and the law is well settled, but nevertheless it ought to be restated. In order for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court in exercising the functions of the consent authority be satisfied that:

• the written request adequately demonstrates their compliance with the development standard is unreasonable or unnecessary in the circumstances of the case [cl 4.6(3)(a) and cl 4.6(4)(a)(i)],

• the written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard [cl 4.6(3)(b) and cl 4.6(4)(a)(i)],

• the proposed development will be consistent with the objectives of the zone [cl 4.6(4)(a)(ii)], and

• the proposed development will be consistent with the objectives of the standard in question [cl 4.6(4)(a)(ii)],

• (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action).

25. The Court, in exercising the functions of a consent authority must “in fact” be satisfied of the above matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130). The state of satisfaction that compliance is “unreasonable or unnecessary” and that there are “sufficient environmental planning grounds” to justify the contravention (the first two bullet points above) must be reached only by reference to the cl 4.6 request. Whilst the evidence in the proceedings can assist in understanding the request and in considering the adequacy of the request, it cannot supplement what is in the request.

26. On the other hand, the state of satisfaction that the proposed development is in the public interest (the last two bullet points above) can be reached by considering the evidence before the Court without being limited to what is contained in the cl 4.6 requests. A further precondition in cl 4.6(4) of the WLEP which must be satisfied before the power can be exercised to grant development consent for development that contravenes a development standard, is that the concurrence of the Secretary has been obtained. The Secretary’s concurrence can be assumed as a result of written notice dated 21 February 2018 attached to the planning circular PS18-003 (Initial Action at [28]).

27. The common ways in which an Applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42] to [51] (Wehbe), and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a State Environmental Planning Policy No 1 – Development Standards objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 of the WLEP (Initial Action at [16]).

28. One of the ways identified in Wehbe, and relied upon in the Applicant here, is that the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

29. The cl 4.6 objection identifies the extent of the variation in the following terms:

“The proposed development will vary the HOB [height of buildings] control as a result of upper portions of the 11 storey and roof plant protruding beyond the 32m height control limit. The amount of area above the height plain is considered minor in scale, as the building complies with the 32m control at the Hollywood Avenue elevation. The exceedance of the height limit is set back towards the rear of the building, which adjoins a current Westfield car park, with approval for a 60 metre building. The highest point of the building is located at the top of the mechanical plant and is 35.8 metres above ground level. The majority of the proposed development sits below 32 metre control.”

30. An examination of the plans demonstrate that the description quoted is accurate.

31. In the cl 4.6 objection, Ms Bartlett conducts an assessment of the objectives of the standard and whether or not the proposal meets the objectives of the standard, notwithstanding the non-compliance. I have set out the objectives above at [16].

30. The first objective (a) (of the standard) is to preserve the environmental amenity of neighbouring properties and public spaces. In summary, the cl 4.6 objection says that:

• There is no additional overshadowing or view loss beyond a compliance scheme and therefore is considered to meet objective (a) despite the breach of the numerical height control; and

• The amended development will not impact any public open space nor will it unreasonably impact on any identified prominent views.

33. In relation to objective (b) of the standard relating to increasing development capacity within the Bondi Junction Centre, the cl 4.6 objection identifies that although the height control is exceeded, the building does not exceed the floorspace ratio control and is virtually at the maximum floor space available, and therefore meets the objective to increase development capacity within the Bondi Junction Centre.

34. Objective (c) of the standard is to accommodate taller buildings on land in the B3 zone and the cl 4.6 objection relies upon the preservation of the existing and future amenity of the neighbouring properties, in addition to the built form context of the site including ten and nine storey buildings in the immediate vicinity and the capacity for an additional 16 storeys above the Westfield Shopping Centre car park to the east of the subject site. The objection also identifies that the building proposed reflects the existing adjoining commercial building and steps down in height from the 16 storey/60m maximum building height proposed potential of the Westfield Shopping Centre to the rear of the site.

35. Objective (d) of the standard is to ensure buildings are compatible with the height, bulk and scale of the desired future character of the locality and contribute and complement the physical definition of the street network. The cl 4.6 objection identifies the adoption of the common street wall height and parapet height that aligns with the existing developed buildings, which indeed it says complements the street layout and relies upon the lack of impact on adjoining buildings and the urban design of the buildings to satisfy that objective.

36. The planning grounds relied upon in the cl 4.6 objection are addressing, as is required, why the objection should be upheld by providing more than simply “no additional impacts” beyond a complying development. The environmental planning grounds relied upon are in summary:

• The additional height allows the design to maximise floor space of the development.

• The additional height has allowed higher ceilings and voids in common areas, improving the visibility, usability and amenity of the building.

• The planning controls would require a 6m rear setback and a 6m setback at the six storey podium, which would have led to a more bulky building and lacking consistency with development surrounding and offer little or less amenity than what is proposed.

• The building envelope provides consistency in framing of the public domain at the podium level.

• An additional benefit of the increased ceiling heights at ground, first and second floors allows greater circulation of air and light, and give a heightened perception of space, including a large inviting courtyard with solar access.

• The greater setback to the rear of the building leading to a greater height allows the proposed development to establish a suitable density with an improved built form.

37. Mr Reid in the joint report endorses both the approach taken by Ms Bartlett and her analysis and conclusions. He observes in the joint report that:

“The amended scheme, including the area that breached the height control:

(i) causes no additional solar or view loss impacts to surrounding properties and the public domain beyond what a compliance scheme would create;

(ii) the objective of the maximum building height development standard under cl 4.3(2) of Waverley Local Environmental Plan 2012 height will be achieved notwithstanding non-compliance with the standard.”

38. Mr Reid also joins with Ms Bartlett in agreeing that there is no relevant impact on views and to the extent that the control objectives refer to views that the proposal meets that objective. The planners also gave oral evidence, and Mr Reid was asked to go beyond that which he simply indicated in the joint report to deal with the environmental planning grounds relied upon by Ms Bartlett in the cl 4.6 objection. His oral evidence concurred with the opinion of Ms Bartlett, and he was satisfied that there are sufficient planning grounds.

39. I agree with the conclusion of the planners. In effect there has been a rearrangement of the permissible floorspace in the commercial core of the Bondi Junction area in circumstances where the maximisation of floor space is encouraged by the controls. The matters referred to in a cl 4.6 objection mean that a building more in keeping with the surrounding development, both in terms of its size and its urban design, has been created. I have looked carefully at the analysis of solar impact in the detailed document described as “Solar analysis and massing amendment” dated 9 April 2020, and was taken through the relevant material by the planners.

40. I am satisfied that not only does the cl 4.6 objection adequately deal with the matters raised in the objectives of the standard but also I am satisfied that there is no additional impact of the taller building, that is a building taller than it would have been had it complied. It follows then that the first component of cl 4.6 I am satisfied about, that is that the written request adequately demonstrates the compliance with the development standard is unreasonable and unnecessary and I am also satisfied that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case.

41. In relation to the question of sufficient environmental planning grounds, I also concur with the planners that the cl 4.6 objection adequately deals with such matters, and I am also satisfied that the environmental planning grounds identified in the cl 4.6 which I have summarised above justify contravening the development standard.

42. It is also necessary that I be satisfied that the proposed development is consistent with the objectives of the zone, which I have set out above at [13]. Unsurprisingly, in a zone which is in the commercial core of Bondi Junction, the zone objectives relate to providing a wide range of uses, the encouragement of employment opportunities, maximising public transport patronage, strengthening the role of Bondi Junction Centre as a major commercial centre and providing direct, convenient and safe pedestrian links between various transport facilities and a development.

43. The cl 4.6 objection sets out why, in the view of Ms Bartlett, the proposal is consistent with each of the zone objectives and in my opinion, it is clear that a hotel which maximises the available floor space achieves each of the zone objectives, in that it:

• will diversify the uses within Bondi Junction by providing a particular style of hotel accommodation which is currently not available in the centre;

• will bring activity to the centre and provide a high standard of alternative form of accommodation, also bringing the guests of the hotel into the area to support the surrounding shops and generate economic activity;

• the development will facilitate employment opportunities;

• the proposed development will maximise the use of public transport by not providing guest car parking, in an effort to increased more sustainable transport modes;

• the development will strengthen the role of the centre as a major commercial centre by the provision of a high quality urban development which will increase patronage and surrounding commercial uses;

• the location ensures safe pedestrian links between all the transport facilities and the other businesses and services located within Bondi Junction.

44. Those are the reasons set forth within the cl 4.6 objection, and I agree that they are adequately expressed within the objection, and I agree with Ms Bartlett’s conclusion, a conclusion with which Mr Reid also agrees.

45. Before moving to issues raised by objectors, I should add this matter in relation to solar access to surrounding residential premises. There is no control within the DCP that a development within the B3 zone needs to ensure that solar access of any particular standard is available to surrounding residential premises. The focus of the controls is the promotion of the centre, rather than the potential for compromising the development of the centre by maximising solar access to surrounding neighbouring properties. Mr Reid said in his oral evidence that those residents who enjoy the advantage of close proximity to the Bondi Junction Centre would reasonably expect some level of loss of direct sunlight as developments occur within the Bondi Junction Centre.

46. Notwithstanding that there was no control, Ms Bartlett took the view that consideration should be given to the question of solar access to surrounding residential properties and adopted two standards as to solar access to neighbouring properties to determine whether the subject development was appropriate.

47. In relation to the residential flat building across the road at 2-8 Llandaff Street, Ms Bartlett adopted the standard in the Apartment Design Guide made pursuant to the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development that neighbouring residential apartments should still retain two hours of direct sunlight to the living areas and private open space between the hours of 9am and 3pm. The solar analysis demonstrated that that control was achieved.

48. In relation to the terrace houses on the northern side of Llandaff Street, Ms Bartlett adopted the standard in clause 2.6 Part C2 of the DCP that the dwellings should receive a minimum of three hours sunlight to 50% of their living areas and private open space between 9am and 3pm at the winter solstice. It was demonstrated by reference to the solar analysis that the standard was complied with. Mr Reid agreed both as to the approach and the outcome of Ms Bartlett’s analysis, a conclusion with which I concur.

Resident Evidence

49. Oral evidence was given by Ms L Goodman who lives in one of the terraces in Llandaff Street, and by Mr and Mrs Rao, Mr R Scherer and Ms N Silver, all of whom are residents of apartments in 2-8 Llandaff Street. There were a number of written objections from residents in the locality, both from 2-8 Llandaff Street and other terraces, but those written objections were embraced or covered by the objections from those who gave oral evidence.

50. The objections were in respect of the following subject matters:

• overshadowing

• traffic

• roof plant noise

• noise from rooftop terrace

• management of the premises and control of guests and their visitors

• loss of privacy

• compliance with the height control as a matter of principle

• that this was “student lodging” masquerading as a hotel

51. I will deal with each of those matters.

52. In relation to overshadowing, I have dealt with that subject matter in the discussion of the cl 4.6 objection. It is clear that whilst a building of this type will undoubtedly cast shadows, and shadows additional to that which are presently cast by the somewhat lower building on the site, nevertheless the controls for the site provide that there will be additional shadowing, that as a consequence the amenity of surrounding residential dwelling occupants will be affected, but that is, as far as the controls are concerned, a price to be paid for the development of the Bondi Junction Centre.

53. Be that as it may, the material before me demonstrates that the building will cast a shadow no greater than a building which complies with the controls notwithstanding the identified breach, and that the controls which are used as a guideline, which although do not expressly apply in relation to the solar access available to the surrounding neighbouring buildings, will be complied with. Accordingly, the overshadowing cast by the building on the neighbouring residential buildings is not a reason for refusal.

54. In relation to traffic, the proposal was referred to the Waverley Traffic Committee and no objections on traffic or parking were made. There is a condition proposed that a drop off/pick up facility is to be provided on Hollywood Avenue. That will enable persons who are being dropped at the site, be it by private or public transports, will not interfere with the flow of traffic on Hollywood Avenue but for any interference caused by a modest slowing down to enter into that facility. That facility is not the subject of the present application, but will be a subject of a Roads Act 1993 application and reference to the traffic committee with that detail in the event development consent is granted.

55. Whilst undoubtedly this is a busy location, there is no evidence to suggest that there are unreasonable traffic or parking consequences as a result of this development. In fact, because no parking is provided there is the encouragement to use public transport, which will be used to some extent. But also there will be much less traffic movement, one would have thought, than if there was parking provided for guests on the site. There is no reason for refusal of the application on the grounds of traffic.

56. Roof plant noise is logically a concern for neighbouring residential occupants, and as is customarily the case there is a proposed condition of consent which deals with that subject matter. Condition 18 of the proposed conditions provides for a mechanical plant not to give rise to offensive noise or noise, speaking colloquially, more than 5 dBA above background noise, and initially provided that noise from the plant should not be audible in any habitable room of any residential premises between the hours of midnight and 7am. Ms Goodman in her evidence suggested that the inaudibility criterion should commence at 10pm rather than midnight. Such a suggestion has merit, and was embraced by the Applicant and the Council, so that the proposed condition now provides that plant noise shall not be audible at any of the residential premises within any habitable room from 10pm to 7am. That is an appropriate way in which to deal with roof plant noise.

57. There was also a concern about noise from the roof terrace. This is a terrace accessible to guests of the hotel and any visitors to those guests. It is not available to the public at large, in that there is a secure lift system so that a person cannot simply walk into the hotel if they are not a guest and obtain access to the roof terrace. It is appropriate that there be controls on such a roof terrace to ensure its use does not impact upon the amenity of the surrounding neighbourhood. The conditions provided initially to the residents and the Court provided that the use of the terrace cease at 10pm Monday to Friday, weekends and public holidays, with the exception of New Year’s Eve which would be open until 12.30am on 1 January. Ms Goodman gave evidence that there was a risk of disturbance to the neighbouring residential area, including children, from 8pm to 10pm and said that in her view the terrace should be closed at 8pm.

58. The Applicant and the Council considered that evidence and have proposed that there be a trial period of the hours from 8pm to 10pm for one year. That is to say, that the terrace be approved for use from 7am to 8pm Monday to Friday, and from 8am until 8pm weekends and public holidays, but that there be a trial period of 12 months permitting trade from 7am to 10pm Monday to Friday and 8am to 10pm weekends and public holidays. There is an issue between the parties as to dealing with the conclusion of the trial period, which I will deal with separately.

59. The terrace is designed with a certain amount of furniture and is some distance from the residential uses. There are natural limitations to the number of people that it can accommodate, and there is no smoking permitted on the terrace, and there is no bar or other service of food and beverages available on the terrace. Accordingly, it seems to me that if the development is approved, it is appropriate that the position put by the parties is endorsed. That is to say, there ought to be no restriction up to 8pm, but that in a more sensitive period until 10pm there be a trial period to determine whether in fact there are any adverse consequences on the amenity of the neighbouring residents as a consequence. The matter raised by one or more objectors about the noise of the rooftop is resolved by the condition which includes the trial period.

60. Concern was raised about whether or not there would be full 24 hour control of the hotel operation, and in early forms of the development there was limited or no reception area. In the current plans, there is a proper reception area and a condition which provides as part of the plan of management that there shall always be management onsite 24 hours a day seven days a week. That is, there will always be a person responsible for the management of the premises present on the site at all times. Whilst it is a legitimate concern to have been raised, it is resolved by that requirement.

61. Loss of privacy was raised as a further objection. There is a significant separation between the building and the other residential users, and there is no evidence to suggest that that separation does not play the normal role of separation, which is to provide an adequate level of privacy in what is a significantly built-up commercial and adjacent residential area.

62. It was also said that the height control should be enforced. Good planning does not demand absolute compliance with a height control, or indeed any other control. Clause 4.6 of the WLEP provides flexibility in appropriate circumstances. That clause is as much a part of the WLEP as the controls of height and floorspace ratio and any other controls to which cl 4.6 applies. As I have indicated above, the circumstances here are appropriate for the cl 4.6 objection to be accepted. It is not a proper ground of objection that the height control should simply be enforced for the sake of being enforced.

63. At the heart of a number of objections was to the effect that this application is somewhat of a stalking horse for “student lodging” or “student accommodation”. That is, because of the identity of the operator it was said that this would not really be a hotel and therefore it should not be approved.

64. It has long been understood in planning law that planning law “is concerned with the use of land - not with the identity of the user.” (per Cripps J in Moslem Alawy Society Ltd v Canterbury Municipal Council(1983) 51 LGRA 79 at p 82). This emphasis upon the use as distinct from the person using the land reminds us that a consent operates in rem. That is, it operates for the benefit of the landowner at the time of that ownership, regardless of who made the development application and who was the owner at the time of the granting of any development consent.

65. In words often quoted, Else-Mitchell J described a development consent as “not personal to the Applicant but inuring for the benefit of subsequent owners and occupiers, and in some respects…equivalent to a document of title” (Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at p 324; [1970] 1 NSWR 277). In Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at p 293; [1972] HCA 33, Stephen JJ described a consent as “essentially impersonal in the sense that it does not concern itself with and is not limited to the Applicant but is a consent to the world at large in relation to the land which is its subject.”

66. Accordingly, one does not have regard to the identity of the Applicant in considering whether or not a proposed use will indeed be the use to which the premises will be put. That does not mean to say it is not appropriate to look at the form of the proposed use, and the stated intended use, to determine whether or not it, in effect, is going to be what it says it is going to be. But it is not to be the focus upon the particular presently intended user.

51. Be that as it may, it is the fact that the hotel rooms have small kitchenettes and are attractive, and are theoretically capable of being used for other than temporary or short-term accommodation, which is the manner in which the accommodation is to be used for the use of the property or premises as a hotel. In order to ensure as much as possible that the use remains that of a hotel, condition 36 of the proposed conditions provide that the use must be as a hotel as defined, but further provides that no person will occupy a hotel room for any more than six months in any 12 month period, and no single period of occupancy will exceed three months.

52. The Council is satisfied, as am I, that having regard to the nature of the accommodation proposed to be provided such a condition will ensure, as much as is possible, that the use if approved as a hotel will be carried out has a hotel. Accordingly, that ground of objection is not one which would lead to refusal of the application.

Conclusion

69. For the foregoing reasons, in my opinion it is appropriate that development consent be granted. I have power to do so because my jurisdiction is enlivened, as I am satisfied that the cl 4.6 objection is well founded and on the merits the proposal is acceptable. I have considered the material put before me including both the written and oral evidence of the objectors and the assessments provided by the experts.

70. The proposed conditions, but for one exception, have been provided this morning which include amendments arising from the evidence given yesterday and discussion between the Court and the representatives of the parties. The conditions will be annexed to this judgment and are available for public inspection, and I have referred to certain conditions during the discussion of the evidence above. The condition in issue relates to the proposed trial period for the rooftop terrace.

71. The Council has drafted a condition, the consequence of which would require either a fresh development application or a modification application to continue the extended hours at the end of the trial period. The Applicant submits that the conditions should be drafted so that the extended hours would continue upon Council simply indicating in writing that it is satisfied with the operation of the extended hours during a trial period without the need for an application under the EPA Act. In my view, for two principal reasons, it is preferable that the condition be drafted such that an application for, probably simply, modification is made prior to the end of the trial period.

72. First, if there is the need for a further application then it will impose upon the Council the obligation to properly enquire as to the use over that 12 month period, ensure that a decision is made by a person with authority to deal with modification applications and properly balance all the evidence which would be available to consider such an application. If simply a response was required by the Council at the end of the period, one could not necessarily conclude that all the information provided by an Applicant or by an objector is properly considered in, may I say, a more serious way than which it would be when it is being formally considered as the consequence of an application under the EPA Act.

73. Second, in my view there is some uncertainty about how a condition can operate with simply Council determining what the operation of a condition at a future time. I am uncomfortable with that notion. The former reason is probably more important than the latter. That does not mean that the present condition does not need some amendment. In my view, it is appropriate that the condition provide, not simply before the trial period, but also that provided an application under the EPA Act is made more than one month to the expiry of the trial period, then the extended hours should continue until that application is finally determined.

74. That simply means that the Applicant will be entitled to allow the operation of the roof terrace until the modification application, if it be, is determined by the Council or, if necessary, by the Court. Inevitably that means that the trial period will exceed the 12 months if the Council does not approve the application within a month of the making of it, or it goes to this Court on appeal. It is also important that the application be made after at least ten months of operation so that there is a proper period to assess any impact of the extended hours on the neighbouring buildings, on the neighbouring uses. I will direct the parties to amend the condition in accordance with these reasons.

75. I should add, whilst the Applicant and the Council came to Court requesting that development consent be granted subject to agreed conditions, the involvement in the process of objectors has had two important consequences. First, it has ensured that the Court has properly scrutinised the proposal having particular regard to the matters raised by the objectors, with their assistance and the experts who gave evidence. Second, the development has been improved by amending conditions responsive to the evidence of those objectors. By those improvements, I specifically refer to the changes to the noise conditions, both in terms of plant and the use of the roof terrace, and also ensuring that there is proper control of the operation of the premises, all matters raised by objectors.

Addendum made on 24 July 2020

76. The reasons above were delivered at the conclusion of the hearing on 26 June 2020. It should also be noted that the hearing was conducted by audio visual means in accordance with the Court’s COVID-19 Pandemic Arrangements Policy.

77. After delivery of the reasons the parties provided the proposed conditions in accordance with my reasons. The orders granting development consent were made on 24 July 2020 and amended pursuant to the slip rule on 5 August 2020.

78. The Court made the following orders:

1. The appeal is upheld.

2. Development Application DA-421/2018 for the demolition of the existing commercial building and construction of a new 11-storey lifestyle hotel development with a total of 197 rooms and associated amenities (including a lobby, conference rooms, co-working spaces, gymnasium and café) and associated signage, above one basement level at 5-11 Hollywood Avenue, Bondi Junction is approved, subject to the conditions set out in Annexure “A”.

3. Exhibits other than A, B, D, E and 4 are returned.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (300096, pdf)

Plans (21546849, pdf)

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Amendments

10 August 2020 - Pursuant to the Uniform Civil Procedure Rules 2005 r 36.16(3B), by the request of the Parties and the Court’s own motion, amend the orders delivered on 24 July 2020, to replace reference of the Development Application at Order (2) of the Judgment from “DA-421/2019” to “DA-421/2018”.

Decision last updated: 10 August 2020