Blackmore Design Group Pty Ltd v Manly Council

Land and Environment Court (NSW)|2013-11-20

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 280/2012 (the proposal) by Manly Council (the Council) for the demolition of two buildings and the construction of a short term holiday accommodation development containing 20 accommodation units, a Manager's Office and basement parking, at 62-64 Pittwater Road, Manly (the site). 2The appeal was subject to mandatory conciliation on 18 July 2013, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached during the conciliation phase, the conciliation conference was terminated on 1 August, 2013, pursuant to s34(4) of the LEC Act.

The site and its context 5The site consists of two adjoining allotments, 62 and 64 Pittwater Road, Manly, on the eastern side of Pittwater Road, on the block bounded to the north by Steinton Street and to the south by Denison Street. 662 Pittwater Road contains a two storey, rendered and painted masonry building, with a simple gabled roof with Colorbond metal cladding. The building is divided into three residential apartments. The front of the building is a later addition. The rear of the building is a single storey addition, constructed in rendered masonry with a terra cotta tiled gabled roof. 764 Pittwater Road contains a single storey timber framed building with four separate sections linked together as a single building and a separate structure on the rear boundary, which contains common laundry facilities and storage. The building has been reclad externally and internally and all windows have been replaced with aluminium windows. The original verandah at the street elevation has been replaced and enclosed by a later addition. The building is used for backpacker accommodation. 8There are three storey residential flat buildings to the rear of each allotment and a two storey residential flat building to the south of 62 Pittwater Road, at 60 Pittwater Road. There is a two storey, semi-detached residential building to the north of 64 Pittwater Road, at 68 Pittwater Road.

The proposal 9The proposal is to demolish the buildings on the site and to construct a three storey building containing 20 short term holiday accommodation units, a manager's office and a basement carpark with 17 car spaces, linen storage and garbage room. The basement car park is accessed via a ramp from Pittwater Road, on the northern side of the site.

Planning Framework 10The site is within Zone No 2 Residential Zone, pursuant to Manly Local Environment Plan 1988 (LEP 1988) and the proposal is permissible with consent. The relevant objectives for Zone 2, at clause 10, include the following: (a) to set aside land to be used for the purposes of housing and associated facilities, (c) to allow a variety of housing types while maintaining the existing character of residential areas throughout the Municipality, (d) to ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment, (e) to improve the quality of the residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations, (f) to allow development for purposes other than housing within the zone only if it is compatible with the character and amenity of the locality, (i) to encourage the provision and retention of tourist accommodation that enhances the role of Manly as an international tourist destination, and particularly in relation to the land to which Manly Local Environmental Plan 1988 (Amendment No 57) applies. 11The site is within the Tourist Area, which is located generally between the beach and Pittwater Road (exhibit 9). The policies and strategies of LEP 1988 in relation to tourism, at clause 4(b), include the following: (i) to encourage and concentrate tourist development in the Tourist Area, (ii) to encourage tourism to co-exist with local residents to their mutual advantage, and (iii) to develop tourism as an industry for the purpose of gaining employment, economic, cultural, social and recreational benefits in the community. 12Clause 17 of LEP 1988, 'Visual and aesthetic protection of certain land', includes the following: The council shall not grant consent to the carrying out of development unless it is satisfied that the development will not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area. 13Clause 21 of LEP 1988, 'Conservation area', includes the following: (2) The council shall not grant consent to a development application made in pursuance of subclause (1) unless it has made an assessment of: (a) the extent to which the carrying out of the development in accordance with the consent would affect the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the conservation area, (3) The council shall not grant consent to an application made in pursuance of subclause (1), being an application to erect a new building or to alter the exterior of an existing building, unless the council has made an assessment of: (b) the style, size, proportion and position of the openings for windows and doors, and (c) whether the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building are compatible with the materials used in the existing buildings in the conservation area. 14The proposal was lodged before the commencement of Manly Local Environment Plan 2013 (LEP 2013) and the savings provision, at clause 1.8A of LEP 2013, requires the development application to be determined as if the plan had not commenced. 15The site is zoned R3 Medium Density Residential under the provisions of LEP 2013 and the proposal for 'tourist and visitor accommodation' would be permissible with consent. The relevant objectives of the R3 Zone, in the Land Use table of LEP 2013, is: To encourage the provision and retention of tourist accommodation that enhances the role of Manly as an international tourist destination. 16Clause 6.15 Tourist and visitor accommodation includes the following: (2) Development consent must not be granted to development for tourist and visitor accommodation unless the consent authority is satisfied that the development will not provide accommodation to the same person for a period of more than three consecutive months. 17Pursuant to s 79C(1)(a) of the EPA Act, the following must be considered in terms of LEP 2013: (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved) 18The proposal is subject to the provisions of DCP 2007. 19The parties agree that only the objectives of DCP 2007 apply to the proposal, on the basis that it is non-residential development within the Residential Zone. Clause 1.1 of DCP 2007 explains this as follows: This Plan provides controls, considerations and requirements for development in the Residential Zone under Manly LEP 1988. It applies to all forms of residential development in the zone with the objectives of this Plan also applying to residential development in other zones and non-residential development in the Residential Zone. 20The relevant objectives of DCP 2007 at clause 1.2 include the following: b) To ensure that residential development protects and conserves the natural and cultural environment of the Local Government Area (LGA); c) To encourage the retention and adaptation of existing dwellings; d) To increase the availability and variety of dwellings to enable population growth without having adverse effects on the character, amenity and natural environment of the residential areas; e) To identify the characteristics of the residential zone and ensure protection and to develop standards that encourage that protection; f) To protect the amenity of existing and future residents; h) To minimise the impact of new development, including alterations and additions, on privacy, views, solar access and general amenity of adjoining and nearby residences; p) To encourage the preservation of heritage listed buildings and buildings in conservation areas; q) To ensure compliance with the objective of each standard. 21Subclause 1.2(q) of DCP 2007 calls up the objectives of each of the relevant standards. 22The relevant objectives of clause 2.8 'Heritage Items, Potential Heritage Items and Development in Conservation Areas' are: b) To retain and conserve what is of heritage significance for Items of Environmental Heritage and Conservation Areas; c) To ensure any modifications to heritage items, potential heritage items or buildings within conservation areas is of an appropriate design that does not alter or challenge the significance of the item or the locality. 23The relevant objective of clause 3.9 'Car Parking and Access' is; d) To ensure vehicular and pedestrian safety. 24The relevant objectives of clause 4.4 'Streetscape and Fences' are: a) To ensure that all development contributes positively to the street and locality identified in the locality analysis; b) To minimise any negative visual impact of walls and fences on the street frontage; c) To ensure all fences and walls complement the identified streetscape; and d) To encourage soft landscape alternatives when front fences and walls may not be appropriate. 25Control 3.9.7 of DCP 2007 'Other Permissible Uses' states, 'car parking for other uses permissible in the Residential Zone, such as within the Tourist Area, shall be in accordance with the Roads and Traffic Authority Standards'. As only the objectives of DCP 2007 apply to non-residential development within the Residential Zone (Clause 1.1 of DCP 2007), locating the reference to the RTA standards for 'other permissible uses such as within the Tourist Area' within the controls (and not within the objectives) makes the relevance of the RTA standards unclear, given that the controls do not apply to non-residential development. Nevertheless, for completeness, the RTA standard is the 'Guide to Traffic Generating Developments' Version 2.2 October 2002 (exhibit T) and includes the following at clause 5.5.3 Hotels - tourist; The RTA has no current research data on 3, 4 and 5 star tourist hotels... trip characteristics of an international tourist hotel are determined by: • number of rooms/beds in the hotel development • type of facilities available • location of the hotel Parking provision .... the suggested hotel parking rate is similar to the current Sydney City Council Parking Code which is 1 space per 5 rooms for a 5 star international hotel.

Public submissions 26The neighbours from the adjoining residential flat building, to the south of the site, provided evidence on site and the court, in the company of the parties and their experts, viewed the site from the rear courtyard of the adjoining residential flat building. The residents do not object to the development, however they are concerned about the possibility of anti-social behaviour, overshadowing of the courtyard and noise. In their view, the proposal is an over-development. 27The neighbour to the rear of 62 Pittwater Road, at 35 Whistler Street, provided evidence on site and the court, in the company of the parties and their experts, viewed the site from his balcony on the first floor, overlooking the site. He does not object to the development, however he is concerned about the impact of the development on his privacy and the possibility of anti-social behaviour.

Evidence 28Mr Zoran Popovic (Council) and Mr Robert Staas (Applicant) provided expert heritage evidence in relation to the demolition of the existing buildings and the appropriateness of the proposal as an infill building within the Pittwater Road Conservation Area (PRCA). 29The proposal raises the following questions in regard to heritage; firstly what is the contribution, if any, the existing buildings make to the PRCA and is the contribution of such significance that the buildings should be retained? Secondly, if the existing buildings can be demolished, is the proposal a sympathetic addition to the PRCA? What is the contribution, if any, the existing buildings make to the PRCA? 30In Mr Popovic's opinion, the two buildings make an important contribution to the PRCA and any proposal for the site should retain the existing buildings by incorporating part of each building into a new development, as much of the surviving historical fabric of the buildings have been obscured rather than destroyed. 31In Mr Staas' opinion, neither building currently expresses its original character in an unaltered manner and both are substantially compromised to the point that have little or no ability to contribute any substantial heritage value to the surrounding conservation area. The buildings do not demonstrate unusual, rare or outstanding materials or workmanship and are highly compromised in relation to their original form. The interiors of both buildings have been altered and much of the original detail and finishes have been removed. He considers that the parking area between the two buildings detracts from the appearance of the HCA as it is prominent and visible from the street. The statement of significance for the PRCA 32The original statement of significance for the PRCA stated (exhibit Q): This street pattern is distinctive and underpins the urban character of the area. The streets remain unaltered in their alignment, although the names of Malvern, Pine and North Steyne are now names for what were Whistler, Middle Harbour and East Steyne respectively. 33Under cross examination, Mr Popovic agreed that as a result of this appeal, he had updated the statement of significance for the PRCA and submitted the augmented and amended statement of significance to the Council's Heritage and Local History Committee for their endorsement. The committee made minor amendments to the statement of significance and the Council, in a recent meeting, adopted the minutes of the Heritage and Local History Committee, without consulting the Applicant in these proceedings, whose interests were potentially directly affected by their decision. 34Mr Popovic stated in the joint heritage report (exhibit 7, page 4) that the Council never completed the process of assessment of individual buildings in the conservation area and that contributing, neutral or intrusive elements were never agreed on. Helou planning principle 35The court's Helou planning principle (Helou v Strathfield Municipal Council [2006] NSWLEC 66 at par 46) is as follows: 1. What is the heritage significance of the conservation area? 2. What contribution does the individual building make to the significance of the conservation area? The starting point for these questions is the Statement of Significance of the conservation area. This may be in the relevant LEP or in the heritage study that led to its designation. If the contributory value of the building is not evident from these sources, expert opinion should be sought. 3. Is the building structurally unsafe? Although lack of structural safety will give weight to permitting demolition, there is still a need to consider the extent of the contribution the building makes to the heritage significance of the conservation area. 4. If the building is or can be rendered structurally safe, is there any scope for extending or altering it to achieve the development aspirations of the applicant in a way that would have a lesser effect on the integrity of the conservation area than demolition? If the answer is yes, the cost of the necessary remediation/rectification works should be considered. 5. Are these costs so high that they impose an unacceptable burden on the owner of the building? Is the cost of altering or extending or incorporating the contributory building into a development of the site (that is within the reasonable expectations for the use of the site under the applicable statutes and controls) so unreasonable that demolition should be permitted? If these costs are reasonable, then remediation/rectification (whether accompanied by alteration and/or extension or not) should be preferred to demolition and rebuilding. 6. Is the replacement of such quality that it will fit into the conservation area? If the replacement does not fit, the building should be retained until a proposal of suitable quality is approved. 36Both heritage experts addressed the Helou planning principle in their statements of evidence. 37In Mr Popovic's opinion, the two buildings proposed for demolition contribute to the significance of the PRCA as they form part of a streetscape segment between two adjacent corners, which is unison in age, style, scale and period of creation in relation to other buildings in the vicinity. Mr Popovic considers that a substantial addition could be constructed to the rear of the two buildings in order to retain portions of the existing buildings. 38In Mr Staas' opinion, the statement of significance for the PRCA focuses on the subdivision pattern and road alignment and not the contribution of any individual buildings or groups of buildings to the significance of the PRCA and the lack of integrity of the buildings to be demolished mitigates any contribution they may have made. According to Mr Staas, retaining the existing buildings and constructing a linear building to the rear would not result in any substantial heritage benefit. He considers that the revised design of the proposal is superior to the compromised outcome suggested by Council to retain a portion of the existing buildings and construct a development behind. Is the proposal a sympathetic addition to the PRCA? 39The heritage experts agreed in oral evidence that the proposal is an appropriate and sympathetic addition to the PRCA, in terms of its size, proportions and articulation. They agreed that the elevation shown in exhibit L is preferable to the elevation shown on the architectural plan, exhibit A and that a palisade fence 1500mm high with landscaping behind would be appropriate.

Submissions 40A report prepared by Kim Ketelbey of Design Plus Consultancy on behalf of Manly Council on the proposed Pittwater Road HCA in 2001 was tendered by Mr Staunton, titled 'Report to Tim Catley, Planner Manly Council, 24 May 2001, Subject: Pittwater Road Manly' (the Catley Report) (exhibit N). The Building Analysis Map, attached to the Catley Report, identifies both 62 and 64 as non-contributory items to the proposed conservation area. Non-contributory items are defined in the Catley Report (page 5/14) as follows: 'places or items which do not specifically contribute to the cultural significance of the conservation areas or its intrinsic character. Their form and fabric are not essential to maintaining the overall character and significance of the conservation area and in some cases their replacement may enhance the conservation area.' 41Mr Staunton submits that in 2002 the heritage listing for Pittwater Road was deleted from the Architectural and Archaeological Items schedule of LEP 1988 by Amendment No. 51, 'Pittwater Road (from Denison Street to Collingwood Street, Manly)' (exhibit O).

Findings Significance of the PRCA 42I have given no consideration to the amended statement of significance for the PRCA (attachment to exhibit 4), on the basis that it was redrafted with the intention of defeating this proposal and without any consultation with those whose interests it affected (Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 par 91). What is the contribution, if any, the existing buildings make to the PRCA - Helou planning principle 43In applying the Helou planning principle to the proposal and having considered all of the evidence and submissions, my findings are as follows: Question 1: 44The statement of heritage significance for the PRCA states that the heritage significance of the PRCA is related to the subdivision pattern and road alignments. Question 2: 45I am satisfied that the two buildings make little or no contribution to the PRCA for the following reasons:

Both buildings are unremarkable and neither demonstrates unusual, rare or outstanding design, materials or workmanship;
Both buildings have lost their integrity and are highly compromised in relation to their original form, due to removal of original fabric and finishes and significant alterations and additions;
The interiors of both buildings have been altered and much of the original detail and finishes have been removed;
The Pittwater Road streetscape is generally eclectic and these two buildings do not form part of a coherent group or style, nor to they relate in any way to each other or their neighbours;
The parking area between the two buildings significantly detracts from the PRCA and creates an unattractive break in the street wall on the eastern side of Pittwater Road. 46In coming to this conclusion, I have considered the findings of the Catley Report, which identified both 62 and 64 Pittwater Road (the site) as being non-contributory items to the PRCA. 47As the two buildings make little or no contribution to the PRCA and consequently can be demolished, it is unnecessary to consider the outcome of retaining a portion of the two buildings and constructing an addition to the rear. 48Questions 3 - 5 of the Helou planning principle are not relevant to this matter, as the existing buildings do not contribute to the PRCA. Question 6: 49I accept the agreement of the heritage experts that their preference is for the elevation shown in exhibit L and that this proposal is an appropriate addition to the PRCA. I also accept their agreement that a palisade fence 1500mm high with landscaping behind is an appropriate treatment for the street boundary. Is the proposal a sympathetic addition to the PRCA? 50I am satisfied that the replacement building is a suitable addition to the PRCA because the design is of a sympathetic character and scale that draws from and relates to the surrounding buildings, by responding to the existing parapet lines of the semi-detached buildings to the north and the residential flat building to south and because the form, siting, rhythm and materials relate to the context of the proposal.

Evidence 51Ms Nancy Sample (Council) and Mr Greg Boston (Applicant) provided expert planning evidence. 52Much of the evidence of the planning experts related to the performance of the proposal in relation to the numerical controls in DCP 2007. Mr Schneider agreed with the Applicant's position in his closing submission that only the objectives of DCP 2007 apply to the proposal, on the basis that it is non-residential development within the Residential Zone (Clause 1.1 of DCP 2007). Council's agreement made much of the planning evidence regarding the numerical controls in DCP 2007 irrelevant, however any evidence regarding whether the proposal meets the objectives of the controls is relevant. 53The planning experts agreed on the following:

That the proposal results in a slight decrease in overshadowing of the courtyard at the rear of the adjoining property to the south at 9am and a slight increase at 12 noon on the winter solstice and they agreed that overall, the proposal retains a reasonable level of sunlight to the courtyard adjacent. Ms Sample agreed that it is the two storey section of the proposal at the rear that causes the increase in overshadowing of the courtyard and not the three storey section, which is setback from the rear elevation.
That a total of 5 car parking spaces is suggested by the 'Guide to Traffic Generating Developments' Version 2.2 October 2002 (exhibit T - quoted in paragraph 25 of this judgment).
That raising the sill heights of the windows in the northern and southern elevations to 1.7m is acceptable. Ms Sample considers that the proposed windows in these elevations will restrict future development on the adjoining lots and she is concerned that the living room window of Unit 7 allows an occupant to overlook the adjoining dwelling and backyard to the north. In oral evidence, Ms Sample said that translucent glazing in the proposed windows of the northern and southern elevations would also be acceptable. 54The remaining disputed items between the planning experts were as follows:
Ms Sample is concerned about the scale of the proposal and in her opinion units 15 and 16 (upper floor at the rear) should be deleted.
In relation to the size of the basement, Ms Sample considers that 17 car parking spaces in the basement is excessive and impacts on the area available for deep soil landscaping. Mr Boston considers that 17 spaces is still less than one per short term holiday accommodation unit and is acceptable.
Ms Sample considers that a manager should be on site 24 hours day/7 days a week to deal with the potential for late night disturbances associated with the proposal.

Submissions 55Mr Staunton submits that in response to the Council's position regarding having an on-site manager 24 hours day/7 days week and the residents' concerns regarding anti-social behaviour, the Applicant would accept a 12 month trial period for the proposal to have a Manager on site during the day and a contact person in respect of complaints at other times (2.0 Administration, Operational Plan of Management, exhibit J). Mr Staunton submits that the proposal is not for backpacker's accommodation, it is for 'serviced apartments'. 56Mr Schneider submits that the Council's position is that the maximum length of stay for a person should be three consecutive months, as clause 6.15(2) of LEP 2013 limits tourist and visitor accommodation for the same person to a maximum period of three months. Mr Staunton submits it should be a maximum of six months.

Use of the site for short term tourist accommodation 57I have given weight in determining this matter to the fact that the proposal for short term holiday accommodation is located within the Tourist Area and permissible in the No. 2 Residential Zone and consistent with the zone objectives and the policies and strategies in relation to tourism, under LEP 1988 (BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 par 117) and that the proposal is permissible and consistent with the relevant objectives of the R3 Zone under LEP 2013. 58The Council's position, regarding the maximum length of stay for a person being three consecutive months, is preferred to the Applicant's position of six months, as clause 6.15(2) of LEP 2013 limits tourist and visitor accommodation for the same person to a maximum period of three months and a limit of three months will make this proposal consistent with other tourist and visitor accommodation in the Tourist Area approved under LEP 2013 and is reasonable in the circumstances.

Trial period for on-site manager during the day and contact person during the night/weekend 59I accept the Applicant's offer of a 12 month trial period for having a contact person available during the nights and weekends for complaints. This gives the Council and residents an opportunity to assess the success of this arrangement during the first year of operation.

Scale of the proposal 60For the reasons set out in paragraph 49 of this judgment, I am satisfied that the scale of the proposal is appropriate, as it draws from and relates to the surrounding buildings. Deleting units 15 and 16 at the rear of the upper floor would only reduce the number of units. As the proposal fulfils the objectives of LEP 1988 and DCP 2007, there is no justification for deleting these units.

Privacy impacts on adjoining neighbours 61I consider that the owner of the apartment at 35 Whistler Street has raised a valid concern in relation to impacts on his privacy by the proposal, particularly given that the proposal is for short term holiday accommodation units and there will be a constant turn-over of occupants within the proposal. It is therefore appropriate that the windows to living rooms on the first and second floors of the eastern elevation have fixed external louvres covering the entire area of each window, to prevent overlooking of neighbouring properties. This option was raised with Mr Stauton during the hearing in relation to units 15 and 16 and his submission was that the Applicant would accept external fixed louvres to the eastern facade in preference to a refusal of the appeal. I note that that the roof area on the Second Floor at the rear of the building is non-trafficable. 62I do not accept that raising the sill heights of all windows in the northern and southern elevations to 1.7m above finished floor level is necessary for the following reasons:

The buildings to the north and south of the site, 68 and 60 Pittwater Road, are both identified by the Catley Report (exhibit N) as being contributory to the PRCA and so it is reasonable to assume that it is less likely that they will be demolished;
68 Pittwater Road has some windows in the rear section of the southern elevation and no windows in the front section of the building on the southern elevation;
60 Pittwater Road has no windows adjacent to the proposal in the northern elevation and the northern elevation is positioned directly on the shared boundary and consists of an textured stone wall that will provide a pleasing outlook from the windows in the southern elevation of the proposal; and
Other than the window on level 1, Unit 7 in the northern elevation of the proposal, there are no privacy issues posed by the windows in the northern and southern elevations. 63In my opinion, 1.7m high window sills significantly compromise the internal amenity of rooms, even when there are windows with lower sills in other walls of the room. It should only be an option of last resort to impose such an unattractive solution on a proposal. I do not accept that there are significant privacy issues in regard to the windows of the northern and southern elevations, nor do I accept that the windows significantly compromise the future development of the adjoining allotments. I am not satisfied that there is sufficient justification for raising the sill heights to 1.7m or for having translucent glazing in all of these windows. 64The only window in the side facades which poses some privacy issues is the living room window of Unit 7 on the northern elevation and external fixed louvres to this window would obstruct views from the living area of Unit 7 into the adjoining property to the north.

Number of parking spaces in the basement 65Notwithstanding that the reference to the RTA standard 'Guide to Traffic Generating Developments' Version 2.2 October 2002' (exhibit T) does not apply to this proposal (Clause 1.1 of DCP 2007), the standard admits there is no current research data for this sort of development and the standard is merely suggested. 66I also note that the proposal is not for 'rooms', as referred to in the RTA standard, it is for one and two bedroom units with living rooms, which are more likely to be used by families or larger groups, than a single room in a hotel, which generally have a maximum occupancy of 3 people. The one car space per 5 rooms contemplated by the RTA standard probably envisages less people in total staying in those 5 rooms when compared to the total number of people that will be staying in 5 units of this proposal. This makes the RTA standard less relevant to this proposal. 67I am satisfied therefore that 5 car parking spaces can be taken as a guide or minimum to be met by the proposal, which it achieves. 68Any additional car spaces to be provided, above the minimum, is done so on the basis of a commercial decision by the Applicant and is acceptable if the additional parking area satisfies any relevant development standards and controls. As the basement carpark proposal satisfies the relevant objectives of clause 3.9 Car Parking and Access of DCP 2007, the number of car spaces proposed is acceptable.

Conclusion 69For the reasons provided in the judgment, the proposal can be granted approval because I am satisfied that the existing buildings on the site do not contribute to the significance of the PRCA and can be demolished; that the proposed street elevation (exhibit L) will result in an appropriate infill building within the PRCA; and that the proposal satisfies the relevant objectives of LEP 1988 and DCP 2007. 70The following directions were handed down on 4 November, 2013, requiring amended architectural drawings and conditions of consent: The Applicant is to provide a set of amended plans showing the following: • The street elevation is to be replaced with the alternative street elevation (exhibit L) with a palisade fence 1500mm high on the boundary with landscaping behind; • External fixed louvres to the living room windows on the first and second floors of the eastern elevation, Units 7, 8, 9 , 10, 15 and The fixed louvres are to obstruct views to the east towards the apartment blocks at 35 and 37 Whistler Street; and • External fixed louvres to the living room window of Unit 7 on the northern elevation, to obstruct views into the adjoining property to the north. The following condition 26 is to be added to Part F of the conditions of consent: (a) There shall be a manager on site 24 hours a day who shall be responsible for managing the premises in accordance with the approved plan of management. (b) Notwithstanding 26(a) above there is no requirement to have a manager on site 24 hours a day for a trial period of 12 months commencing from the date of issue of the occupation certificate ("trial period"). (c) If an application to delete this condition or extend the trial period in condition 26(b) is made not earlier than 6 months and not later than 3 months prior to the end of the trial period then the trial period shall continue until such time as the application is finally determined. 71The parties filed the conditions of consent on 5 November 2013 and the amended plans on 15 November 2013.

Orders 72The orders of the Court are:

The appeal is upheld.
Development Application No. 280/2012 for the demolition of two buildings and the construction of a short term holiday accommodation development of 20 units is approved, subject to the conditions in Annexure A.
The exhibits, other than exhibits 3 and J, are returned.

Susan O'Neill Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2013

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Judgment (19 paragraphs)

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