Iris Diversified Property Pty Ltd v Randwick City Council

The submissions 6Mr Robson SC, for the council, submits that the development for which consent was originally granted does not concern or address the operation of a bottle shop. While the hotel operates through existing use rights these rights do not extend to the operation of a stand-alone bottle shop. There is no bottle shop that is the subject of the 2010 approval. Even accepting that a bottle shop was the subject of a 1972 development consent (in another part of the building), this use has not operated since 1992. Mr Robson submits that the applicant has not satisfied its onus of establishing that there will not be a substantial qualitative change to the hotel due to increased takeaway sales and vehicular usage of the site from the proposed bottle shop. 7Mr Robson further submits that the other principal changes, that is, the increase in car parking spaces from 17 to 32 spaces, the additional storey and the multi-unit housing and the increase in units from 6 to 8 constitute a substantial change on their own and justify the refusal of the application. 8Mr McEwen SC, for the applicant, submits that the proposed bottle shop is not a new purpose but simply the relocation of an existing facility currently available at the hotel. Mr McEwen's submission is supported by the statement of Mr Sam Arnaout, the part owner of the hotel who states that since the purchase of the hotel in April 2008, the sale of takeaway alcohol has been available from the public bar between 10am and midnight. The price list for takeaway products is on display at the public bar. Mr Arnaout's statement also attaches the hotel liquor licence that permits takeaway sales. 9As a secondary position, Mr McEwen submits that if the issue of the bottle shop was determinative by the Court then this component of the application could be deleted from the application. 10In relation to the modification to the multi-unit housing component, Mr McEwen submits that the change to the character of the building is not radically transformed by the additional level. The fundamental characteristics of the building are unchanged in terms of the building footprint, the use, the relationship with other buildings, overshadowing and view loss. While there will be more building visible, the relationship with surrounding buildings is largely unchanged with only a negligible impact on the heritage significance of the hotel. The proposed building also satisfies the 12 m overall height requirement and has only a very small breach of the 10 m wall height requirement. The floor space ratio (FSR) of 1.495:1 exceeds the LEP 1998 requirement of 0.9:1 but Mr McEwen submits that there is no consistent application of the FSR requirement in the area. For these reasons, the modification application is substantially the same as the approved development.

Findings 11The parties disagreed on, whether pursuant to s 96(2)(a) of the EPA Act the development, as proposed is substantially the same as the development for which consent was originally granted. If the application fails this jurisdictional test, the appeal must be dismissed even if I find that the modified plans merit consent. Guidance on this assessment is found in Moto Project (No 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 where at pars 55 and 56 Bignold J described the process for consideration of a proposed modification as follows. 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is 'essentially or materially' the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). 12It is clear from Moto that there are two elements to be considered. They are a qualitative and quantitative assessment of whether the modified development would be one that is substantially the same development as that originally approved. Two other relevant observations that were made in Moto Projects are:

1. the environmental impacts of a proposed modification are relevant considerations, (par 62), and
2. while the required comparison is in respect of the whole development, a particular feature of the originally approved development may be important, material or essential to the comparison (par 64). 13In Vacik Pty Limited v Penrith City Council (NSWLEC 24 February 1992 unreported), Stein J when dealing with the meaning of the words, substantially the same development (considering the then s 102 of the EPA Act) said, In approaching the s 102 assessment exercise one should not fall into the trap of saying that development was for a certain use, extractive industry, and as amended it will be precisely the same use and accordingly and substantially of the same development. What is important is that a development, particularly extractive industry must be assumed to include the way in which the development is to be carried out. 14In considering the competing submissions and with an understanding of the differences between the approved development and the modification application, I am satisfied that the modification application is not substantially the same as the approved development. While the additional units provided for in the modification application may not be seen in some circumstances as significant in quantitative terms, the qualitative impacts of the additional storey in my view support the conclusion that the modification is not substantially the same as the approved development. 15In the words used in Moto Projects, the additional storey and the additional height are "important, material and essential" in any assessment of the comparison between the approved and modified building forms. For reasons set out later in the judgment I have concluded that the additional height has the effect of creating an unacceptable impact on the heritage significance of the hotel, an unacceptable impact on the relationship with adjoining residential flat buildings and the character of the area particularly, along Donnellan Circuit. 16The inclusion of the bottle shop in the modification application was the subject of expert town planning evidence and submissions from both parties. In accepting that there are sales of alcohol from the public bar, I do not accept that the applicant provided sufficient evidence to satisfy me that the provision of a stand-alone bottle shop could reasonably be seen to have similar operational characteristics or be essentially or materially the same as the current sales through the public bar area. I have reached this conclusion taking into consideration the area of the proposed bottle shop, the potential for a greater range of goods to be sold and its greater prominence for attracting customers and consequent vehicular movements. 17If the application were to be approved I would have accepted Mr McEwen's offer of deleting the proposed bottle shop from the modification application. If I am incorrect in finding that the modification is not substantially the same as the approved development I propose to address the merits of the application.

The evidence 18Heritage evidence was provided by Mr Greg Patch for the applicant and Mr Clive Lucas for the council. Both experts are specialist heritage architects. 19Mr Lucas states that regardless of the previous configuration of the hotel, the roof form is currently very prominent within the townscape and particularly when viewed from the west. The views of the hotel from the west, along Clovelly Road, will be compromised by the proposed additional floor and rooftop pool area which will be positioned within close proximity to the rear of the hotel. 20The proposed modification will also result in the development being higher than surrounding development in Donnellan Circuit and will result in the view of the northern elevation being almost entirely lost, even though this elevation is the least significant of the elevations of the hotel. Overall, the proposed additional floor of the multi-unit development diminishes the landmark qualities of the hotel in the landscape. 21Mr Patch states that the view of the west elevation of the hotel is much changed given that a western addition, with a parapeted flat roof was originally located on the site and has since been demolished. The proposed modification presents a "thin" element in views of the hotel from the west and east and is sufficiently separated from the north wall to allow the hotel to remain fully legible.

Heritage - findings 22Section 96(3) of the EPA Act provides that: The court must take into consideration such other matters referred to in s 79C(1) as are of relevance. 23The Clovelly Hotel is identified as a heritage item in the Schedule to Randwick Local Environmental Plan 1998 . Clause 43(4) requires consideration of: The effect of the proposed development on the heritage significance of the heritage item. 24The Randwick Heritage Study describes the Clovelly Hotel as having "streetscape value despite loss of integrity" and "a local landmark retaining some historic significance." 25With the benefit of the site inspection from different locations around the area, I agree with the conclusions of Mr Lucas but not necessarily for all the reasons he stated. There was little disagreement between the experts that the hotel was a landmark building. Mr Lucas stated that it needed to be viewed "in the round" although this approach was not necessarily accepted by Mr Patch. In my view the hotel can be practically described as being located in a prominent location and is currently able to be viewed and understood as a building of some heritage significance from most, if not all surrounding locations. 26I accept Mr Lucas's evidence that it was most likely designed to have its most attractive elevation facing the east towards the sea, however, I do not accept that the proposed application places any significant impact on the hotel from this direction. Similarly, I do not accept that there is any unreasonable impact on the hotel when viewed from the west along Clovelly Road. 27In my opinion, the most significant impact is on the northern elevation of the hotel where the additional height will block views of the hotel below the gutter level when viewed perpendicular to the proposed new multi-unit building. Some views of the hotel below the gutter will be available when viewed from an easterly and westerly location. In my view, the impact on the heritage significance of the hotel when viewed from the north is significant and unacceptable in heritage terms. Even though the northern elevation is the least detailed of the elevations of the hotel, I do not accept that this is necessarily a reason why the application should be supported. 28Of greater importance is that the understanding and the prominence of the hotel will be largely lost from this location as the roof form will simply blend into the backdrop of other buildings in the area. The feature that secures the prominence of the hotel from the north is the combination of the roof form and the northern elevation of the building, particularly the colour of the building, the detailing such as the eaves and contrasting brick bands that distinguish the hotel from other more recent buildings. 29I have little trouble in concluding that the landmark status or prominence of the hotel will be unacceptably lost if it cannot be distinguished from other more recent buildings from the north. It must also be remembered that the northern elevation of the hotel is clearly visible from many residential properties to the north around Park Street and Surfside Avenue as these properties are orientated in this direction because of the topography of this area. 30Pursuant to cl 43(4) of LEP 1998, I find that the proposed modification will have an unacceptable impact on the heritage significance of the hotel and this alone would be a sufficient reason to refuse the application.

The evidence 31Expert town planning evidence was provided by Mr Harvey Sanders for the council and Mr David Furlong for the applicant on the character issue. 32Mr Sanders states that the visual impact of the proposal is unacceptable because of the inconsistent relationship in terms of height with both adjoining buildings in Donnellan Circuit, particularly given the large exceedence of the 0.9:1 FSR requirement in LEP 1998. 33Mr Furlong maintained that the modification application was acceptable when compared to the council's planning controls. He states that the wall height and overall height controls are complied with except for a small exceedence of the wall height requirement. He further states that the FSR of 1.495:1 is less than the adjoining property and less than the adjoining property at 403 Clovelly Road. In his opinion, a variation can be supported because the council has not actively enforced the FSR requirement in this area.

Findings 34On the issue of impact on the character of the area and the streetscape of Donnellan Circuit, I can also comfortably conclude that the proposed modification is unacceptable. I do not accept that the reliance by Mr Furlong on the compliance with the overall height and wall height requirements is a sufficient reason to support the approval of the application. 35The council's planning controls provide a range of requirements that should collectively be the basis for the assessment of the application. Clause 20G provides building height requirements and importantly specifies "maximum heights". There is no right to the heights identified in this clause and whether the maximum height can be achieved will depend on a range of matters including the particular characteristics of the site and any constraints that affect the site. In this case the constraints include the proximity to the hotel and the need to address the heritage requirements in cl 43 and the relationship with adjoining buildings. Mr Furlong's argument may have greater force if the floor space ratio of 1.495:1 was not significantly greater than the 0.9:1 in cl 20F(1). 36I agree with Mr Sanders that, if approved, the additional height and bulk will create and unacceptable impact on the streetscape because of the inconsistency with the height of adjoining multi-unit housing developments. I also find that the height is inconsistent with Principle 1- Context in State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development in that the design does not respond and contribute to its context.

Landscaping 37There was also disagreement over the type of landscaping proposed and according to the council the new landscaping did not adequately address the additional height created by the modification. Given the application is to be refused it is not necessary to deal with this issue although it would not, in my opinion, be a matter that would support the refusal of the application.

Orders 38The orders of the Court are:

1. The appeal is dismissed.
2. The application to modify of a development consent granted by the Court on 24 August 2010 ( Iris Diversified Property Pty Ltd v Randwick City Council 2010 NSWLEC 1265) for alterations and additions to the Clovelly Hotel, the construction of a multi-unit housing development and Torrens title subdivision at 379 - 401 Clovelly Road, Clovelly is refused.
3. The exhibits are returned with the exception of exhibit 10. G T Brown 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: 03 March 2011