Myrtle 29 Pty Limited v North Sydney Council

[2021] NSWLEC 1801

Land and Environment Court

New South Wales

Medium Neutral Citation:

Myrtle 29 Pty Limited v North Sydney Council [2021] NSWLEC 1801

Hearing dates:

16 December 2021

Date of orders:

6 January 2022

Decision date:

06 January 2022

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Application No. 200/21 for the change of use of 6 existing business tenancies (known as G01 to G06) to motel accommodation at No 13 Eden Street, North Sydney, is approved subject to the conditions in Annexure A.

(3)   The exhibits, other than exhibits A and 2, are returned.

Catchwords:

DEVELOPMENT APPLICATION – motel – amenity impacts – plan of management

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

North Sydney Local Environmental Plan 2013, cl 2.3

Texts Cited:

Building Code of Australia

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

Myrtle 29 Pty Limited (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
Ms J Reid (Applicant)

Solicitors:
Mr A Seton
Marsdens (Respondent)

File Number(s):

2021/255383

Publication restriction:

No

Judgment

1. COMMISSIONER: Development Application No. 200/21 was lodged with North Sydney Council on 2 July 2021 and seeks consent for the change of use of 6 existing business tenancies (known as G01 to G06) located on the ground floor of an existing mixed use building to motel accommodation.

2. The Council had not determined the application within the prescribed period and the applicant is appealing its deemed refusal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act).

3. Following completion of the joint reporting process and consideration of the conclusions reached, the Council advised that it did not oppose approval of the application subject to the agreed conditions of consent and will not contest or oppose the application.

The proposal

4. The application proposed the conversion of six ground floor commercial suites to motel accommodation. The applicant now proposes that management of the motel is conducted by the same managers who operate an adjoining motel operated from three adjoining cottages and known as No 29 Myrtle Street. These cottages immediately adjoin the site to the north.

The site and locality

5. The site is located at 13 Eden Street, North Sydney and the units the subject of the development application (G01 to G06) are Lot 1-7 in SP 96224.

6. The remaining existing business tenancy (G07) and the existing retail tenancy (fronting Eden Street) is to be retained for commercial (business) purposes. However, the submitted Plan of Management (POM) identifies that Tenancy G07 will be used by an on-site manager for the motel accommodation.

7. The site is located on the eastern side of Eden Street to the south of the intersection with Myrtle Street.

8. The existing building on the site comprises a 4 storey mixed use development, which contains 8 non-residential tenancies at the ground floor level and 17 residential apartments above constructed over a common basement level containing 22 off street parking spaces. The basement level is accessed via a combined entry/exit driveway located along the Eden Street frontage of the site. Three of the parking spaces within the basement are allocated to the adjacent motel development through a stratum subdivision approved by the Council in 2016. Under that subdivision, the three cottages stand on Lot 1 and the mixed-use development occupies Lot 2. A right of footway extends over Lot 1 in favour of Lot 2 and a right of carriageway extends over Lot 2 in favour of Lot 1 to provide access to the basement and the three parking spaces.

9. Tenancies G01 to G06 have areas spanning from 33m2 to 62m2 and include kitchen, bathroom and laundry facilities. No major physical works are required or proposed to facilitate the change of use to hotel and motel accommodation. Some works may be required to satisfy fire separation and acoustic compliance requirements.

10. The existing commercial (business) tenancies have access to individual courtyards to the north, accessed directly to/from the open plan living areas. Two (2) of the commercial (business) tenancies (G01 and G04) include off-street car parking spaces within the existing basement.

11. The layout of the mixed use building is centred around a large courtyard area. Apartments on the residential upper floors open up onto the void space which is created by the ground floor courtyard space. Some apartments on the upper levels have balconies overlooking the courtyard, with those on the southern sides of the building relying on the courtyard for light and natural ventilation.

12. Development to the north of the site on Myrtle Street predominantly comprises single storey dwelling houses. To the south and east of the site at 3 Eden Street and 35 Myrtle Street (respectively) are 3 storey commercial buildings. To the west of the site is a row of 4 single storey residential terraces at 8-14 Eden Street, a 2 storey commercial building at 16 Eden Street and a 3 storey commercial building at 25-27 Myrtle Street.

Planning controls

13. The southern side of Myrtle Street and both sides of Eden Street, including the site, are situated within Zone B4 Mixed Use pursuant to the provisions of North Sydney Local Environmental Plan 2013 (LEP). The northern side of Myrtle Street opposite the site is situated within Zone R2 Low Density Residential pursuant to the provisions of the LEP.

14. A motel is permitted with consent in the B4 zone under the provisions of the LEP.

15. Clause 2.3 of the LEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the B4 zone are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To create interesting and vibrant mixed use centres with safe, high quality urban environments with residential amenity.

• To maintain existing commercial space and allow for residential development in mixed use buildings, with non-residential uses concentrated on the lower levels and residential uses predominantly on the higher levels.

16. North Sydney Development Control Plan 2013 (DCP) applies to the site. Those sections relevant to determination of the application are Part B Section 2 – Commercial & Mixed Use Development and Section 10 – Car Parking and Transport. Under the provisions of Part C, the site is located within the North Sydney Planning Area.

17. Section 2.2.4 provides specific controls for the design of tourist and visitor accommodation. That section has the following objectives:

“O1 To ensure that hotel or motel accommodation and serviced apartments are not used or converted for permanent residential accommodation.
O2 To minimise impacts on the operation of other uses, where the short term visitor accommodation is provided within a mixed use development.”

18. The proposed development does not meet all of the provisions of the clause because the size of the rooms will exceed the maximum size in control P2. The motel will not provide common facilities such as conference rooms, restaurants or bars and will not have a separate and secured access from the other land use activities accommodated within the building.

19. The motel will operate under one management structure as required and this will be in association with the existing motel on the adjoining land. The provision that limits the tenure of guest to a maximum of 13 weeks has been incorporated into the conditions of consent (Exhibit 6) at 18h. This is also included in the Plan of Management (POM) (Exhibit C). The POM also provides for servicing of the rooms.

The contentions

20. The contentions in the case are

1. The development application should be refused because it has not been demonstrated that the proposed motel rooms will not be used or converted for permanent residential accommodation nor that they provide appropriate amenity to future guests, which is inconsistent with the provisions Section 2 of Part B of the DCP.

2. The development application should be refused because it has not been adequately demonstrated that the proposed motel accommodation willoperate as one entity with a central management structure together with the motel accommodation approved pursuant to Development Consent No. 179/19, which is inconsistent with the provisions of Section 2 of Part B of the DCP.

3. The development application should be refused because it had not been adequately demonstrated that the amenity of permanent residents occupying units within the existing building on the subject site and adjoining properties will be preserved.

4. The development application should be refused because the site is not suitable for the proposed development due to the adverse impacts on residential amenity. The application is not consistent with the Aims of the LEP, the objectives of Zone B4 Mixed Use and the objectives in Part B, Part 2.1.1 of the DCP.

5. The development application should be refused because approval of the proposed development will set an undesirable precedent for similar inappropriate development in the area and is not in the public interest.

The evidence

21. At the commencement of the hearing, four objectors to the development gave evidence. The issues raised are summarised as follow:

• Concerns regarding security within the site and basement;

• Proposal is contrary to a bylaw that limits the hours of use of the commercial suites to Monday to Saturday 7am to 7pm and no use on Sunday and public holiday. This use is a 24 hour a day, 7 day per week operation;

• Increased noise within the complex;

• A POM can’t deal with out of hours issues;

• Loss of amenity to residents of the building.

22. Expert Acoustic evidence was provided by Mr S Cooper for the applicant, and Mr S Gauld for the Council. Mr J Lovell provided planning evidence for the applicant and Mr G Turrisi for the Council.

23. Mr Cooper provided additional information in relation to the application, in particular in regard to sound transmission (Exhibit B). On the basis of this detail, it is common ground that the building will or can be made complaint with the relevant acoustic requirements of part F5 of the Building Code of Australia (BCA).

24. The Acoustic experts agree that the noise measurements contained in the DCP for compliance under Table B2.3 are inappropriate and therefore rely on the EPA’s Noise Policy for Industry in determining an acceptable noise level. They have prepared conditions of consent in conjunction with the Council, that will require certification that the walls and ceilings within the building that enclose the motel rooms achieve compliance with relevant BCA provisions (condition C2) and impose limitations on access to the building, use of facilities and operational conditions (conditions F11, I1, I2, I3, I5, I8, I9 and I11).

25. The Council advises that, subject to adoption of these conditions and the amended POM, that it does not press the contentions.

26. The planning experts agree that the revised POM introduces appropriate measures that require the manager to ensure that the apartments are not used for permanent residential accommodation. On that basis, objectives 01 and O2 of the DCP, have been met. Furthermore, the POM introduces appropriate management procedures and restrictions which will minimise the impact to the residential uses within this mixed use development.

27. They agree that all the motel rooms have kitchenettes which complies with the requirements of the DCP, which requires no less than 50% of the rooms to have kitchens or kitchenettes. Further, it is noted that the kitchenettes are existing facilities and similarly, the rooms are existing. Given the use only accommodates 6 motel rooms, it is of a scale which both experts agree does not require common facilities.

28. The experts also agree that the DCP includes a control that does not permit balconies. In this instance, the individual rooms include small courtyards and those are existing. The nature of their use and appropriate restrictions are contained within the POM, which restricts the number of people and the hours of their use. They consider this an acceptable outcome provided the acoustic engineering certification is achieved.

29. On the basis that the proposed motel rooms will be managed by the same business that manages the existing motel rooms within the adjoining 3 cottages fronting Myrtle St, the motel suites will operate under a central management structure. Suite G7 within the site will operate as the management office and this has been identified within the POM. They agree the POM will meet the objectives of the DCP as there is an appropriate management structure in place. They endorse the restriction as to the length of stay for guests included in the POM and note that the allocation of parking and appropriate procedures regarding access are also addressed under this plan. They consider this arrangement to be appropriate.

30. The planning experts agree that to the amenity of adjoining residential properties, including those within the subject building, will not be adversely impacted. They rely on the evidence of the acoustic experts and the achievement of necessary acoustic certification. They agree that the POM properly deals with the operation of the motel to ensure that the use of the central courtyard and private courtyards, including check-in times, can occur and appropriate communication with guests will occur to ensure the appropriate rules are communicated. They agree that this would ensure that the use will be compatible with in the mixed use development.

31. They also agree that the configuration of the suites would not prevent in the future the ability to revert these suites back to commercial uses should that be deemed appropriate by the owners. On that basis they consider the objectives of the zone are met. They say the POM has appropriate protocols in place to ensure that the amenity of residences within the development would be protected providing all of the acoustic criteria are met.

32. Finally, the planning experts agree that the POM, with its associated procedural requirements and restricted hours in terms of use of the central courtyard and private courtyards would mean that an undesirable precinct would not be created. They also consider the concerns by objectors in terms of amenity issues have been addressed, noting that the POM will be an important tool from an operational perspective to ensure the amenity of those properties is protected.

Conclusion and findings

33. Having regard to the evidence and the fact that the Council no longer opposed the grant of consent, I am satisfied the development can be approved subject to imposition of the agreed conditions of consent. Based on that evidence and, subject to acoustic certification of walls and ceilings, the proposed motel will, in association with the adjacent motel premises, operate in a satisfactory manner in accordance with those conditions and in particular the POM.

34. I note the concerns of the residents regarding amenity issues and accept the expert evidence that these concerns are adequately addressed through the restrictions on use of outdoor areas, hours for check-in and limitations on access to the building through security cards. I note that the residents had not experienced any issues with the adjoining motel which the suites will be an enlargement of under the same management. I also note that persons using that motel have access to the basement to use the three parking spaces allocated to those premises and no adverse impacts had been reported by the residents following commencement of that use.

35. For these reasons, I consider that it is appropriate for consent to be granted.

36. The Orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 200/21 for the change of use of 6 existing business tenancies (known as G01 to G06) to motel accommodation at No 13 Eden Street, North Sydney, is approved subject to the conditions in Annexure A.

3. The exhibits, other than exhibits A and 2, are returned.

……………………….

Sue Morris

Commissioner of the Court

Annexure A (344370, pdf)

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Decision last updated: 06 January 2022