Newton Denny Chapelle v Ballina Shire Council - [2009] NSWLEC 1446

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Newton Denny Chapelle v Ballina Shire Council [2009] NSWLEC 1446

PARTIES:
APPLICANT
Newton Denny Chapelle

RESPONDENT
Ballina Shire Council

FILE NUMBER(S):
10329 of 2009

CATCHWORDS:
DEVELOPMENT APPLICATION :- change of use of a motel development to a part residential flat building and part motel - unsuitability of the proposed building for long term accommodation - potential conflict between permanent and tourist occupiers of the building - precedent

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Ballina Local Environmental Plan 1987

CASES CITED:
187 Kent Street Pty Limited v The Council of the City of Sydney [2007] NSW LEC 88

CORAM:
Brown C

DATES OF HEARING:
21,22 December 2009

EX TEMPORE DATE:
22 December 2009

LEGAL REPRESENTATIVES

APPLICANT
Mr P Tomasetti SC
SOLICITORS
McCartney Young Lawyers

RESPONDENT
Mr P Clay, barrister
SOLICITORS
Allens Arthur Robinson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Brown C
22 December 2009
10329 of 2009 Newton Denny Chapelle v Ballina Shire Council

JUDGMENT

COMMISSIONER: This is an appeal against the refusal of DA2009/16 by Ballina Shire Council (the council) for a change of use of a motel development of 13 units and a caretaker’s unit to a part residential flat building and part motel at 20-21 Pacific Parade, Lennox Head (the site).
The site
The site is Lot 1 in DP 1090084. It is rectangular in shape with a 30.925 m frontage to Pacific Parade and Cliff Murray Lane to the rear. The depth of the site is 48.44 m, giving a total area of 1462 sq m.
The existing building on the site comprises two levels of accommodation with 7 units on each level, a basement car parking level, landscaping and a lap pool at the front of the building.
The development is strata-subdivided and has been operating for around 4 years. Relevantly, condition E6 of the motel approval provides that the stay of users, within each unit, is limited to 40 continuous days.
The site is located close to the commercial area of Lennox Head and adjoins the Lennox Head Hotel. Further to the north, the area is predominantly residential and to the east, on the opposite side of Pacific Parade, the land comprises a coastal open space strip that adjoins the Pacific Ocean.
The proposal
The proposal provides for the change of use of units 1, 2, 3, 4, 5, 6, 10, 11 and 13 from short term motel accommodation to long term residential use as well as their ongoing use for short term motel accommodation. Units 8, 9, 12 and 14 are to be used solely for motel accommodation.
No changes are proposed to the building beyond the installation of four high folding screens to the balconies of the ground floor units.
Relevant planning controls
The site is zoned 2(a) Living Area under Ballina Local Environmental Plan, 1987 (LEP 1987). A tourist facility and residential flat buildings are both permissible uses with consent within this zone. The definition of “tourist facility” includes a motel.
The contentions
The contentions raised by the council relate to:
1. the unsuitability of the proposed building for long term accommodation based on the different requirements specifically for privacy, solar access and private open space;
2. the potential conflict between permanent and tourist occupiers of the building;
3. the impact on long term residents because of the proximity to the Lennox Point Hotel; and
4. a precedent for similar applications.
The evidence
Evidence for the council was provided by Mr Robert Thornton, a town planner, and for the applicant, by Mr Gary Shiels, also a town planner. Mr Thornton and Mr Shiels prepared a joint report and identified some areas of agreement. The principle areas of agreement are that the proposed development will not change the existing urban environment and the numerical provisions relating to parking, density, landscape, open space, building lines and setbacks do not apply to existing buildings and will not change as a result of the proposal. The joint report identified the reasons for their disagreement on the contentions.
The suitability of the building for long term and short term accommodation
The questions of whether the building is suitable for long term accommodation in conjunction with short term accommodation is best considered through an understanding of the council’s planning controls. LEP 1987 provides that both tourist facilities and residential flat buildings are permissible uses within the 2(a) zone. Clause 9(7) provides a condition precedent to granting consent by requiring that a proposed development must be consistent with the zone objectives, however, it was agreed by Mr Thornton and Mr Shiels that the pre-condition requirement to approval in cl 9(7) is satisfied.
Ballina Shire Combined Development Control Plan (the DCP) provides further guidance. The DCP provides general and specific requirements for development. Chapter 1 addresses Urban Land. Part 3 provides control plan areas with the site within Control Plan Area M1. The preferred land uses for Control Plan Area M1 are identified as:
Residential flat buildings and duplex developments
The Control Plan Area objectives relevantly seek:
to encourage the introduction and infill of medium density development into residential areas whilst minimising the impact on the residential amenity of neighbourhoods
Development standards are provided for floor space ratio, building height, maximum density, site coverage and landscaping although these controls became effective on 1 November 2007 and therefore, postdate the approval of the development on 25 July 2004.
Part 4 provides Policy Statements with Policy Statement 8 addressing Tourist Development. Volume 2 Chapter 16 of the DCP specifically addresses Lennox Head Residential and Tourist Developments.
In considering the range of planning controls that relate to the site, it must be remembered that the development application is for a change of use, not an application to construct a new building, so the existing numerical controls must be considered in this context. It would be unreasonable to simply reject the proposal on the basis of a non-compliance with existing numerical standards. While the proposal does not satisfy the standards relating to density and private open space, the proposal does satisfy a large number of the relevant numerical requirements. I note that Policy Statement 8 provides the same requirements for both residential flat developments and tourist developments. These requirements relate to storeys, height, building height plane and setback (cl 4.1).
The answer to the question of whether the building is suitable for long term accommodation is best addressed through a consideration of the relevant planning objectives, if available. The specific areas of concern raised by Mr Thornton were private open space and privacy and, while not part of the council’s contentions, solar access was also raised at the hearing.
Private open space
The requirement for private open space in residential flat buildings is 50 sq m for ground floor units (cl 7.3 of Policy Statement 1). Mr Thornton states that the upper-level balcony requirement is limited to a minimum width of 2 m but with no overall minimum area.
The proposed building provides a minimum of 20 sq m for each balcony, orientated towards the Pacific Ocean. These balcony areas are directly connected to the living areas of the units. If the objective is to provide an attractive and useable recreation area for incoming residents, as stated in cl 7.3, then I am satisfied that adequate private open space is provided, and, given the limited controls beyond the ground level for residential flat development, the development is likely to provide more valuable private open space than would be required by the DCP.
I did not understand Mr Thornton or Mr Shields to differ on the functionality of the private open space areas.
Privacy
The applicant proposes the installation of full height retractable shutters on the ground floor balconies to provide privacy at this level. While not opposing the shutters, Mr Thornton raised the consequential effect of unacceptable restriction of solar access to these areas. Solar access was also seen by Mr Thornton to be generally problematic for the upper level balconies.
Mr Shiels did not share his concerns. In considering the issue of solar access to the balcony areas, no shadow diagrams were available, although Mr Thornton and Mr Shiels were asked to comment on the likely effect, given the known inclination of the sun at mid-winter and the orientation of the building.
As I understand, the DCP does not have any specific requirements, although the widely accepted standard is around 2 or 3 hours of direct sunlight to the living areas of a dwelling in mid-winter.
Mr Shiels’ position was that the provision of solar access may not achieve the accepted standard but the balcony areas of most units would receive the required amount of solar access, and some units may receive solar penetration to the living areas but not necessarily for 2 hours.
Mr Thornton stated that there was insufficient information to comment on solar access.
In the absence of any detailed shadow diagrams, but with an understanding of the orientation of the building and the movement of the sun, I am satisfied that Mr Shiels’ conclusions are relatively accurate. Overall, I am satisfied that the availability of sunlight at mid-winter is acceptable for each of the units. The L-shaped building has been orientated to the north and north-east to maximise solar access as well as to provide views to the Pacific Ocean. Even though solar access is limited to the living areas of the units, I agree with Mr Shiels that the balcony areas could reasonably be seen to form part of the living areas because of the easy accessibility between these two areas.
General compatibility – short and long term accommodation
On the broad issue of the general compatibility of the two different land uses, council’s planning control specifically encourage residential flat buildings in Control Plan Area M1 but make no specific comment on the suitability or otherwise of grouping tourist developments with long term accommodation found in residential flat buildings. This concept however is supported by the council, according to Mr Thornton, for some parts of the local government area, such as the Ballina town centre.
The Court was taken to the decision in 187 Kent Street Pty Limited v The Council of the City of Sydney [2007] NSW LEC 88, where it was proposed to convert 128 residential units to dual use residential and serviced apartments within an existing building. In this case, it was found that there were different characteristics between short term and long term occupants, and there was a fundamental incompatibility that warranted the refusal of the application.
In accepting that there are different characteristics between short and long term occupants, I am satisfied that the findings in 187 Kent Street can be distinguished from the circumstances in this case for two important reasons. First, the number of units involved is substantially less and can be more easily managed in the event of any disturbances by the full-time caretaker. The small number of units also minimise the potential for conflict between the short and long term users of the building. Second, the potential times for conflict are also limited because of the seasonal nature of the short term accommodation in this case.
I also do not accept that the change of use raises any issues in relation to SEPP 65, as suggested by Mr Thornton. The form of the building will not change, and if the form of the building was considered appropriate in terms of SEPP 65 at the time of approval then there is no basis to change this conclusion because the building is to remain largely the same.
Similarly, I do not accept that the units provide anything but an acceptable configuration for a 1 bedroom unit. With the benefit of an inspection of a number of the units, I am satisfied that the facilities are clearly consistent with what would be expected for a 1 bedroom unit and would exceed facilities normally associated with a motel unit. Separate kitchen facilities are provided in an internal area of some 50 sq m. This area is exclusive of the 20 sq m balcony area for each unit. I understand the issue of non-compliance with the Building Code of Australia requirement for a laundry tub can be addressed through a condition that is acceptable to the applicant.
Lennox Point Hotel
Mr Thornton and Mr Shields addressed the relationship between the subject building and the adjoining Lennox Point Hotel. Senior Constable Hogan, the Crime Prevention Officer from the Richmond Local Area Command also provided evidence on this contention. Even accepting that long term residents may be more susceptible noise impacts from the hotel than short term residents, I do not accept that this would be a reason to refuse the application.
The presence of the hotel directly adjoining the site is an obvious consideration for any person contemplating a long term tenancy on the site. It also does not necessarily follow that the existence of the hotel would lead to unacceptable disturbances. There are many localities where hotels adjoin residential development and co-exist with minimal problems. The evidence of Senior Constable Hogan did not suggest that the hotel had any particular issues beyond those normally expected from the operation of a hotel. His understanding was that the hotel ceased trading at midnight, had a local trade base of about 90%, employs security guards and has “no major dramas most of the time”.
Precedent
Mr Thornton also raised the question of precedent. While precedent is a valid planning consideration, I am satisfied that the particular characteristics of this application would make direct comparison with other applications, if lodged, very difficult, if not impossible. I do not accept that precedent is a reason that could support the refusal of the application.
As a final point, I would reject the suggestion that the application is an attempt to circumvent the council’s planning controls. Situations sometimes occur when the original concept of a proposal fails for a range of reasons. There are also situations where there is a genuine attempt to circumvent the proper planning processes through sham applications. There is no evidence to suggest that this application was anything but the former. The change of use from short term motel accommodation to a mix of short term and long term accommodation was found to be acceptable based on the particular merits of the application.
Orders
The orders of the Court are:
1. The appeal is upheld.
2. DA2009/16 for a change of use of a motel development of 13 units and a caretaker’s unit to a part residential flat building and part motel at 20-21 Pacific Parade, Lennox Head is approved subject to the conditions in Annexure A.
3. The exhibits are returned.
___________________
G T Brown
Commissioner of the Court

ANNEXURE A
Newton Denny Chapelle v Ballina Shire Council
CONDITIONS OF CONSENT
1.The development application the subject of these proceedings (2009/16) being an application for the change of use of a Tourist Facility (Lennox Point Holiday Apartments) to Residential Flat Building and Tourist Facility changing thirteen (13) Tourist Accommodation units and manager's residence to nine (9) Residential and Tourist Accommodation units (being units 1, 2, 3, 4, 5, 6, 10, 11 and 13) and four (4) Tourist units (being units 8, 9, 12 and 14) and manager's residence (unit 7) is approved subject to the conditions set out below.

2. GENERAL CONDITIONS
2.1 Development being carried out generally in accordance with the plans and associated documents lodged by, or on behalf of, the Applicant.
2.2 Privacy screens are to be erected for units 1, 2, 3, 4, 5 and 6. The screens are to be located entirely within these units and are not to extend on to common property.

3. PRIOR TO THE ISSUE OF OCCUPATION CERTIFICATE
The following conditions must be complied with prior to the issuing of an Occupation Certificate. The issue of an "interim" Occupation Certificate may occur if the Principal Certifying Authority (PCA) is satisfied that outstanding matters will be completed within a reasonable time frame. Additional fees for the issue of interim Occupation Certificates may be applied by the PCA.
3.1 An Occupation Certificate is to be issued for the change of use of the building, in accordance with the provisions of section 109N of the Environmental Planning and Assessment Act 1979.

3.2 A 24 hour on-site management strategy, is to be formalised by the
Applicant, the building's Managing Agent and the building's
Owners Corporation, and approved by Council.
3.3 Washbasins for laundry purposes are to be provided to each unit the subject of this application, in accordance with the BCA requirements, prior to the issue of the Occupation Certificate.
3.4 The privacy screens for the ground floor units, being unit numbers 1 - 6, are to be fitted, in accordance with the Council approved details and plans, prior to the issue of the Occupation Certificate.
3.5A report, from an appropriate Building Code consultant, has been submitted to Council which confirms, that the subject premises will be compliant with the Building Code of Australia, in regard to the proposed change of use.

4. OPERATIONAL CONDITIONS
The following condition is to be complied with in the day to day use or operation of the approved development:
4.1 The building is to be managed in accordance with the 24 hour on-site management strategy that has been formalised by the Applicant, the building's Managing Agent and the building's Owners Corporation, and approved by Council.

____________
G T Brown
Commissioner of the Court