United Well Investments Pty Limited v South Sydney City Council

[2000] NSWLEC 126

Land and Environment Court

of New South Wales

CITATION:	United Well Investments Pty Limited v South Sydney City Council [2000] NSWLEC 126
PARTIES:	APPLICANT: United Well Investments Pty Limited ACN 077 556 855 RESPONDENT: South Sydney City Council
FILE NUMBER(S):	10993 of 1999
CORAM:	Lloyd J
KEY ISSUES:	Development Consent :- application for modification of existing development consent - minor change with no external impact - either quantitative or qualitative approach - whether substantially the same development
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 96
CASES CITED:
DATES OF HEARING:	16/05/2000
EX TEMPORE JUDGMENT DATE :	05/16/2000
LEGAL REPRESENTATIVES:	APPLICANT: C W McEwen (barrister) SOLICITORS: PricewaterhouseCoopers Legal RESPONDENT E Ranken (solicitor) SOLICITORS: Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND Matter No: 10993 of 1999
ENVIRONMENT COURT Coram: Lloyd J
OF NEW SOUTH WALES Decision date: 16 May 2000

United Well Investments Pty Limited
ACN 077 556 855
Applicant

v

South Sydney City Council
Respondent

EXTEMPORE JUDGMENT

HIS HONOUR:

1. This is an appeal under section 96(6) of the Environmental Planning and Assessment Act 1979 (“the Act”) against the refusal of an application to modify a development consent pursuant to s 96(2) of that Act.

2. The development consent for which modification is sought was a consent granted to DA U97-00438 for the construction of a ninety unit residential flat building, subsequently reduced to seventy-eight units, and a multi storey hotel having seven levels and containing 274 accommodation rooms, a restaurant, a tavern space, two conference rooms and basement parking, at 96-102 Bayswater Road, Rushcutters Bay.

3. The proposed modification is to delete fourteen (14) accommodation rooms on the first floor of the hotel component of the development and replace them with three (3) conference rooms plus a function room, a staircase to the ground floor, a servery and toilets. The proposed modification also involves a reduction to the height of an exit ramp. The modified consent to the hotel component of the development would thus result in a hotel having 260 accommodation rooms instead of 274 as originally approved; five (5) conference rooms and a function room instead of two (2) conference rooms; a restaurant; a tavern space; and basement parking. I should note that the proposed function room is intended to be used in conjunction with the conference rooms.

4. A large number of issues was originally identified. At the hearing, however, only the following issues were raised.

1. Whether the development to which the consent as modified relates is substantially the same development.

2. Whether the use for conference rooms and facilities would create a noise nuisance for nearby residents.

3. Whether the use would adversely affect privacy of nearby residents.

4. Whether the use would generate an increased demand for parking spaces which could not be met on site.

5. Whether access should be prohibited to the deck from the function room at any time, or from the hallway, other than for building maintenance. This issue is related to the issue of noise.

6. Issues raised by objectors. The principal issues raised by objectors relate to noise, privacy and parking.

5. The first issue arises from section 96 to itself. Sub-section (2) provides that the consent authority may modify a consent if "(a) it is satisfied that the development to which the consent as modified relates is substantially the same development."

6. I have described the modifications which are sought. Expert evidence was given on this issue by Mr A D Darroch, an urban planner called by the applicant, and by Mr G Mossemanear, a consultant town planner called by the respondent. Mr Darroch states that the hotel comprises hotel rooms and a number of ancillary facilities of the kind which one would expect in any international hotel including, at present, two conference rooms. The proposed modification is essentially a slight reduction in the number of accommodation rooms and their replacement with three (3) additional conference rooms and an associated function room. The change in the number of accommodation rooms from 274 to 260 is a change of less than five percent if considered in terms of floor space of the hotel portion of the development. The proportionate change is even lower if one includes the residential flat component of the development.

7. Mr Mossemanear expresses the opinion that the proposal is not substantially the same development as that which has been approved because there is a potential for a greater impact on the amenity of the area. It follows, in my opinion, that if the proposal is unlikely to have an additional adverse impact on the amenity of the area, then the basis for Mr Mossemanear’s view is removed. Mr Mossemanear’s approach is a qualitative assessment of the impact rather than a quantitative assessment.

8. For reasons to which I will presently refer I am satisfied that the proposed modification will not result in an adverse impact on the amenity of the area. In my opinion a comparison of the approved development and the development as proposed to be modified shows that the modified development will be “substantially the same development” whether approached on either bases; that is to say, whether it is approached adopting a quantitative assessment or whether it is approached adopting a qualitative assessment.

9. The development will remain as a hotel and a residential flat building. There will be a slight reduction in the number of accommodation rooms and their replacement with an increased number of conference rooms together with an associated function room. This is a minor change which will have no external impact. The additional stairway, servery and toilets are likewise minor modifications. I thus conclude that section 92(2)(a) of the Act is satisfied.

10. The issue of noise is raised by the occupants of nearby residences. They have been affected by noise in the past. The noise has been generated by persons using an open terrace adjacent to the function room and which is exposed to the nearby residences.

11. The applicant proposes to brick-up the doorways between the function room and the terrace and to otherwise prevent the use of the terrace. It seems that according to the report of Mr Mossemanear he was of the opinion that if the noise problem could be overcome in the way now proposed, then the development would be satisfactory insofar as that issue is concerned.

12. The issue of privacy is also related to the use of the terrace. Mr Mossemanear in his report states that provided suitable measures are also undertaken to ensure that the windows to the function room are screened, to ensure that there is no overlooking of residences to the north and west, privacy would no longer be an issue. The applicant now proposes, as part of its development, to screen those windows. That would seem to resolve the issue of privacy.

13. The next issue is the question of parking. The expert evidence shows that the basement parking in the hotel is very much under utilised. Parking surveys which have been undertaken show that even when there has been a seventy-six percent hotel occupancy only forty-six percent of the parking spaces were occupied a Friday evening; and only thirty-three percent of the parking spaces were occupied during the day time on that day. A survey on a typical Saturday indicated that only fifty-four percent of the parking spaces were occupied in the evening and generally about forty-six percent during the day. All of the surrounding residential streets are subject to a one hour parking (residents excepted) time limit. Accordingly, users of the proposed conference rooms will not be able to park in these streets and will, therefore, not present an additional parking demand for on-street parking.

14. Projection of the results of the parking survey shows that in a quite unlikely 100 percent hotel occupancy level, there would be a demand for guest parking of forty-six spaces on Fridays and sixty-two spaces on Saturdays. The parking area provides at present seventy-nine spaces.

15. I am satisfied by this evidence, coupled with the incorporation by the applicant in its application for modification of free parking for users of the conference rooms, under the building, that the issue of parking is not one which would justify a refusal of the application.

16. I thus conclude that section 96(2) of the Act is satisfied by applying the qualitative assessment adopted by Mr Mossemanear. I have previously observed that a quantitative assessment leads to the same result. This also effectively resolves all merit issues in favour of granting the application.

17. There is however one outstanding issue and that relates to the hours of operation. The applicant wishes to use the proposed conference rooms and function room within the hours of 7.00.am to 8.00 pm on any day. The respondent wishes to limit the hours to those of 8.00 am to 6.30 pm. I am not satisfied by the evidence that the hours of operation sought by the applicant would have any adverse external impact whatsoever. Accordingly, the application will be granted subject to the conditions which are now Exhibit F in the proceedings.

18. The formal orders of the Court are as follows:

1. The application for modification is granted subject to the conditions set out in Exhibit F.
2. The exhibits other than Exhibits C and F may be returned.