South Steyne Hotel Pty Limited v Manly Council

[2005] NSWLEC 48

Land and Environment Court

of New South Wales

CITATION:

South Steyne Hotel Pty Limited v Manly Council [2005] NSWLEC 48

PARTIES:

APPLICANT
South Steyne Hotel Pty Limited

RESPONDENT
Manly Council

FILE NUMBER(S):

11176 of 2004

CORAM:

Moore C

KEY ISSUES:

Development Application :-
Consent orders
Strata subdivision

DATES OF HEARING:

15 February

EX TEMPORE JUDGMENT DATE:

02/15/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr C McEwen SC
INSTRUCTED BY
Staunton Beattie

RESPONDENT
Mr R Graham, solicitor
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

15 February 2005

04/11176 South Steyne Hotel Pty Limited v Manly Council

JUDGMENT

1 COMMISSIONER: This matter was dealt with by consent orders. As there were no objections raising matters which related to the application before the Court, those orders were made. The orders and conditions are set out below.

Tim Moore
Commissioner of the Court

Orders

No. 11176 of 2004

SOUTH STEYNE HOTEL PTY LIMITED

Applicant

MANLY COUNCIL

Respondent

Order

BY CONSENT, the Court orders that:
1. The appeal is upheld.
2. Development Application 146/04 for the strata subdivision of accommodation suites within existing buildings at No. 8-13 South Steyne, Manly and No. 45 Ashburner Street, Manly and adjustments to fire safety and structural maintenance requirements are approved subject to the conditions in Annexure "A".
3. No order as to costs; and
4. The exhibits, other than Exhibits 2 and 3, are returned.

Ordered: 15 February 2005

By the Court

Susan Dixon
Registrar

ANNEXURE A

CONDITIONS OF CONSENT FOR DA 146/04 FOR THE STRATA SUBDIVISION OF PROPERTIES KNOWN AS

8-13 SOUTH STEYNE AND ASHBURNER STREET MANLY

The consent for DA 146/04 will not become operative until the following deferred commencement conditions are complied with to the satisfaction of the Council.

DEFERRED COMMENCEMENT CONDITIONS

1. The applicant, owner and the hotel operator are to prepare a management plan for the operation of the hotel such plan to be to the satisfaction of the Council and to include the following matters:-

(a) the continued use of the two buildings known as the South Steyne and Ashburner Street Buildings as tourist, short term accommodation with ancillary uses in accordance with the management plan;

(b) all car parking located in the basement levels of the South Steyne Building and Ashburner Street Building to be managed and be the responsibility of the operator of the hotel;

(c) the restaurant and kitchen located on the ground floor of the South Steyne Building, lot PT1, is to provide food and beverage services to hotel guests and other patrons at times as agreed in writing between the hotel operator and the proprietor of lot PT1;

(d) the use and operation of the first floor of the South Steyne Building, lots PT4-8:-

• is to be principally as a conference/seminar facility
• is to be organised and managed through the hotel operator
• can be provided with food and beverage services from lot PT1 on the ground floor
• a management plan is to be prepared and implemented for the use and ongoing operation of the conference facility

(e) all accommodation lots located on levels 4-9 within the South Steyne Building and ground floor to level 5 within the Ashburner Street Building can only be used for short term accommodation other than the resident caretaker’s lot which may be occupied on a permanent basis by the resident caretaker and any persons who ordinarily reside with the resident caretaker.

(f) the Council, from time to time, as requested and with three days notice shall:-

• be given access to all accommodation and occupancy records held by the hotel operator, for the South Steyne and Ashburner Streets Buildings
• be given reasonable access to all areas within the hotel

(g) the management operating plan will be attached to and form part of the by laws of the owners corporation

(h) each and every member of the owners’ corporation will be provided with a copy of the management operating plan and will abide by its terms and conditions

(i) if the buildings are to operate independently of each other Council will be notified prior to their separate operation and the buildings will not commence separate operation until such time as a new replacement management plan ensuring such of the matters in deferred commencement condition 1(a) to (g) as are relevant to that building is prepared and approved by the Council and implemented. For the avoidance of doubt nothing in this consent management plan prohibits the separate sale of the lots in the strata plan and the transfer of ownership of a lot does not of itself constitute separate or independent operation of a building.

(j) nothing in this management plan prevents or prohibits the sale of the lots in the strata plans to separate independent proprietors.

2. The drawings prepared by Patrick Kenneth Hainge of Whelans DX 288 Sydney are to be amended in the following manner:

(a) removal of any inconsistencies with the existing building as are currently located at 8-13 South Steyne and Ashburner Street Manly;

(b) Lots 2 and 3, Ground Floor (Level 2) of the South Steyne Building are to be amalgamated;

(c) Lots in the Basement of the Ashburner Street Building are to be numbered in a similar fashion to the numbering carried out in the Basement Level (Level 1) of the South Steyne Building;

This deferred commencement consent will lapse if the above deferred commencement conditions are not fulfilled within 12 months of the date of this consent.

Upon fulfilment of conditions 1 and 2 above, DA 146/04 will become operative subject to the following conditions

GENERAL CONDITIONS OF CONSENT

(a) The strata subdivision shall be undertaken in accordance with the strata plans drawn by Patrick Kenneth Hainge of Whelans DX 288 Sydney dated January 2004 for Plan of Subdivision of Lot 103 in DP 791179, being 12 drawings and February 2004 for Plan of Subdivision of Lot 1 in DP 791814, being 8 plans (amended in accordance with deferred commencement condition 2).

(b) The use of the existing development of both the South Steyne and Ashburner Street Buildings Manly is for short term accommodation and cannot be used or converted to use as a permanent accommodation or a residential flat building without the prior consent of the Council and a by law to this effect shall be registered with the strata plan. For the avoidance of doubt this condition does not prevent permanent occupation of the resident caretaker’s lot by the resident caretaker and any persons who ordinarily reside with the resident caretaker

(c) The use and operation of Lots P40 and 41 Ground Floor, Ashburner Street Building are to be for ancillary uses to the management functions of the hotel complex and not be used for any other purpose without the prior consent of the Council and a by law to this effect shall be registered with the strata plans.

(d) Prior to the issue of a subdivision certificate, registration of a section 88 instrument under the Conveyancing Act 1919, benefiting the Council and burdening each of the lots, to the effect that:

• all lots are subject to a Management Plan for their ongoing management
• accommodation lots must only be used for short term accommodation other than the resident caretaker’s lot which may be occupied on a permanent basis by the resident caretaker and any persons who ordinarily reside with the resident caretaker.

(e) The development is to operate in accordance with the terms of the Management Plan approved by Council in accordance with deferred commencement condition 1 or any new Management Plan approved by Council in accordance with condition (F).

(f) If the two buildings are to operate independently of each other Council will be notified prior to their separate operation and the buildings will not commence separate operation until such time as a new replacement management plan ensuring such of the matters in deferred commencement condition 1(a) to (g) as are relevant to that building is prepared and approved by the Council and implemented.

(g) Any additional telecommunications equipment and plant located on either building or the property will require the consent of Manly Council prior to installation.

(h) For the avoidance of doubt nothing in this consent prevents or prohibits the separate sale of the lots in the strata plan and the transfer of ownership of a lot does not of itself constitute separate or independent operation of a building.

(i) Consent to use Council's Road Reserve is to be obtained and is to remain current at all times that there are works and activities taking place associated with 8 to 13 South Steyne on the Council property. In this regard the applicants are to enter into an agreement to use Council's property prior to the issue of a subdivision certificate.

(j) Adjustments to Fire Safety and Structural Maintenance to be undertaken generally in accordance with the BCA Fire Safety Audit Report prepared by Trevor R Howse & Associates Pty Limited dated 10 February 2004.

Commissioner of the Court