MKD Architects Pty Ltd v Kiama Municipal Council

The site and its context

1. The subject site includes the properties known as 49 Manning Street and 31 Bong Bong Street, Kiama. The site contains the Grand Hotel, a covered beer garden to the rear and a single storey brick tourist accommodation block.
2. The site contains a locally listed heritage item: the Grand Hotel Kiama (LEP 2011 Heritage Item L1116). The inventory listing for the item contains no statement of significance. Several internal walls are proposed to be demolished within the ground, first and second storeys of the Grand Hotel.
3. The site is in close proximity to Kiama Railway Station. The built form in proximity to the site is characterised by single and double storey commercial buildings interspersed with residential development.
4. Directly opposite the subject site is four storey mixed use development that at the time of the site inspection was under construction.
5. The location of the subject site is identified in the following aerial photograph: Source: https://maps.six.nsw.gov.au/ Approx. location of right of carriage way

Public submissions

1. The development application was notified in October 2017. Council received three objections. They raise the following issues: 1. the impact on the existing right of carriageway (ROW) that benefits the adjoining properties. The adjoining owners seek continued free access across the ROW; 2. the impact of the proposed development on the rear windows of 47 Manning Street and the potential need for fire upgrading. 3. the likelihood that the scale of the proposed motel will "overpower" the Grand Hotel due to its bulk and scale. The submission seeks for the variation to height and floor space to not be granted.
2. At the commencement of the hearing two members of the public addressed the Court. Their submissions can be summarised as follows: Local resident: 1. That the size and scale of the proposed motel development is such that it will over whelm the size, scale and bulk of the hotel. In doing so it will diminish the heritage value of the building and the visual amenity of the town. 2. That the exceedance of height sought for the new motel should not be supported by the Court. 3. That whilst the heritage conservation works and provision of additional accommodation are welcomed the proposal in its entirety does not add to the townscape and preserve the scenic attractiveness of Kiama. Adjoining land owner: 1. The only vehicular access to their property is via a ROW over Lot 1 DP128011. The development application is objected to as it is not possible to determine that the benefit of the existing ROW is maintained by the proposal. 2. In particular the resident raised concern about the maintenance of horizontal and vertical clearances for vehicular access to the residential and retail premises on their property. They indicate that this access should be facilitated for commercial delivery vehicles, removalist trucks and the like. 3. That the management of the ROW and unimpeded access across it has been, and continues to be, a matter of contention between the adjoining land owners. 4. That any gradient changes to the ROW, or construction within the airspace of the ROW, will impact the ability of the land owner to rent their shops as it will reduce access for deliveries and trucks to their property. 5. Concern as to the means of maintaining access during construction if the application is approved.

Planning Controls:

1. State Environmental Planning Policy 71: Coastal Protection (SEPP 71) applies to the site. As the subject site is located in a coastal zone as defined in SEPP 71 the matters for consideration at Clause 8 must be considered. Clause 8 states: 8 Matters for consideration The matters for consideration are the following: (a) the aims of this Policy set out in clause 2, (b) existing public access to and along the coastal foreshore for pedestrians or persons with a disability should be retained and, where possible, public access to and along the coastal foreshore for pedestrians or persons with a disability should be improved, (c) opportunities to provide new public access to and along the coastal foreshore for pedestrians or persons with a disability, (d) the suitability of development given its type, location and design and its relationship with the surrounding area, (e) any detrimental impact that development may have on the amenity of the coastal foreshore, including any significant overshadowing of the coastal foreshore and any significant loss of views from a public place to the coastal foreshore, (f) the scenic qualities of the New South Wales coast, and means to protect and improve these qualities, (g) measures to conserve animals (within the meaning of the Threatened Species Conservation Act 1995) and plants (within the meaning of that Act), and their habitats, (h) measures to conserve fish (within the meaning of Part 7A of the Fisheries Management Act 1994) and marine vegetation (within the meaning of that Part), and their habitats (i) existing wildlife corridors and the impact of development on these corridors, (j) the likely impact of coastal processes and coastal hazards on development and any likely impacts of development on coastal processes and coastal hazards, (k) measures to reduce the potential for conflict between land-based and water-based coastal activities, (l) measures to protect the cultural places, values, customs, beliefs and traditional knowledge of Aboriginals, (m) likely impacts of development on the water quality of coastal waterbodies, (n) the conservation and preservation of items of heritage, archaeological or historic significance, (o) only in cases in which a council prepares a draft local environmental plan that applies to land to which this Policy applies, the means to encourage compact towns and cities, (p) only in cases in which a development application in relation to proposed development is determined: (i) the cumulative impacts of the proposed development on the environment, and (ii) measures to ensure that water and energy usage by the proposed development is efficient.
2. Subclause (d) and (n) of Clause 8 are the most relevant to the current proceedings.
3. State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) applies to the subject site given its proximity to the rail corridor. Written notice was provided to the concurrence authority who granted concurrence subject to the imposition of conditions. These conditions have been incorporated in the Council's draft conditions (Exhibit 8).
4. The subject site is zoned B2 Local Centre pursuant to Kiama Local Environmental Plan 2011 (LEP 2011). The proposed uses are permissible with consent in the zone. The objectives of the B2 zone are as follows:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.
• To encourage employment opportunities in accessible locations.
• To maximise public transport patronage and encourage walking and cycling.

1. Clause 4.3 of LEP 2011 requires that the building height of the proposal not exceed the maximum height shown on the Building Height Map. The relevant maximum building height is 11m. A request under clause 4.6 of LEP 2011 to vary the maximum height for both the Grand Hotel building and the proposed motel has been lodged by the applicant.
2. The objectives of cl 4.3 Height of Buildings are: "(a) to ensure future development is in keeping with the desired scale and character of the street and local area, (b) to allow reasonable daylight access to all developments and the public domain."
3. Clause 4.4 of LEP 2011 requires that the floor space ratio (FSR) does not exceed that shown on the floor space map, relevantly 1.5:1 for the subject site. A request under clause 4.6 of LEP 2011 to vary the maximum FSR has been lodged by the applicant.
4. The objectives of Clause 4.4 are: "(a) to ensure that development is in keeping with the optimum capacity of the site and the local area, (b) to define allowable development density for generic building types."
5. LEP 2012, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances.
6. However, development consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3), namely: "(a) compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard."
7. Whether the Court accepts the applicant's clause 4.6 variation requests in relation to the variation of the maximum height and FSR of the development are jurisdictional preconditions to consent.
8. Clause 5.5 of LEP 2012 at (2) and (3) outline specific matters that need to be considered prior to development consent being granted. These considerations reflect the requirements of clause 8 of SEPP 71. Council maintains that the development is not consistent with sub-cl. (2)(b) and argues that the proposals excessive bulk, scale and over built form does not have a suitable relationship with the surrounding area and pursuant to cl.5.5(2) consent should not be granted.
9. Given Grand Hotel is listed as a heritage item under LEP 2011, cl. 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2011, 'Heritage Conservation' at sub-cl (1), are to conserve the environmental heritage of Kiama and the heritage significance of heritage conservation areas, including associated fabric, setting and views. The consent authority must, before granting consent in respect of a heritage item, consider the effect of the proposed development on the heritage significance of the item, at sub-cl (4).
10. The Kiama Development Control Plan 2012, (DCP 2012) applies to the application. The clauses of DCP 2012 relevant to the contentions in the appeal are in Section 3.4 of Chapter 9: Car parking Requirements. Objectives: Controls have been formulated having regard to the following objectives; a) To ensure that appropriate off-street parking is provided for new development commensurate with the land use. b) To ensure adequate parking is provided for new development so that thoroughfares are not adversely impacted upon. c) To ensure that the design of carparking areas meet relevant adopted standards. d) To ensure that adequate servicing of new developments can be undertaken with safety and efficiency. e) To ensure adequate provision is made for people with a disability. f) To ensure adequate provision is made for cyclists. g) To ensure that parking facilities cater for the safety of all users and minimise visual impacts. Controls: C1: All new developments within the Municipality of Kiama shall provide parking spaces, servicing areas and manoeuvring areas in accordance with the requirements of this Chapter of Kiama Development Control Plan 2012. All deliveries and servicing associated with new developments must be provided within the same site. … C3: … Hotel or motel accommodation: 1 space per occupancy; and 1 space per staff member on shift. Restaurant (or reception centre) or café 1 space per 35m2 of gross leasable floor area.* Pub/registered club: 1 space per 5m2 of licensed floor area plus 1 space per staff. Restaurants, reception centres and conference facilities used in conjunction with tourist accommodation: Consideration will be given for off-setting parking spaces where it is likely that patrons of the tourist accommodation will use the facilities on the following basis: � Within urban areas - 25% reduction on parking required for the restaurant/conference/reception facility; … Retail premises: 1 space per 35m2 of gross leasable floor area. * Note : Where peak use in the CBD is after 6pm onstreet parking may be taken into account. The submission of a Parking Impact Study prepared by a suitably qualified and experienced professional shall be provided t C11 An existing building altered, extended, remodelled with or without change of land use, may be required to comply wholly or partly with the provisions of this plan. In these cases the Council shall determine the extent of the parking provisions required in each case, having regard to the extent of the alteration, extensions and/or remodelling and the nature of the altered land use. C12 Where in the opinion of Council conditions are such as to render impracticable the compliance in full with the provisions of this plan, the Council may permit such departures as in Council's opinion, the circumstances warrant. C13 All assessment of parking requirements for clubs and related licensed premises will be open for a merit review by Council. A discount may apply where there is apparent pooling of uses within the club or licensed premises and where the premises proposes to provide a formal and regular bus service for patrons. C14 All development applications for commercial development, including 'Food and Drink Premises', shall contain calculations that indicate the area in square metres of each section of the gross leasable floor area or other required areas as defined in the Schedule of Requirements …

Expert Evidence

1. In line with the issues in dispute in the proceedings the parties engaged experts in heritage, acoustics, traffic engineering and town planning. Expert reports were filed in each of these disciplines which I have read and considered in the assessment of the application. The experts for the applicant were: 1. Mr Graham Brooks- Heritage 2. Mr Ben White - Acoustics 3. Mr Tim Lewis - Traffic Engineering; 4. Mr Jeff Mead - Town Planning. The experts for the Council were: 1. Mr Don Wallace - Heritage 2. Mr Stephen Cooper - Acoustics 3. Mr Tim Rogers - Traffic Engineering; 4. Mr Edward Paterson - Town Planning.

The Issues:

1. The extent and scope of works to the Grand Hotel, and the impact of those works on the significance of the heritage item, was originally in dispute between the parties. During the joint conferencing process and subsequent plan amendments the parties advise that this contention has been fundamentally resolved. The only area of dispute remaining between the parties in relation to heritage is the potential for impacts arising from the recommendations of the acoustic experts.
2. The initial issue for determination in this appeal is whether the variations in height and FSR sought by the proposed development are well founded and worthy of support.
3. Following that the remaining merit issues in contention can be grouped as follows: 1. Whether the acoustic impacts that are likely to arise from the development are certain and able to be satisfactorily managed by the proposed mitigation measures and Plan of Management (POM); 2. The appropriateness of the proposed deferred commencement condition in relation to the acoustic treatment of windows in the Grand Hotel; and 3. Whether the variation to the parking standard and the reliance on street parking for the proposed uses is acceptable;

Is the request to vary the height standard well founded and worthy of support?

1. It is clear from a reading of cl. 4.6 of LEP 2012 that the onus is on the applicant to meet the tests of cl 4.6 in seeking flexibility to the height or FSR standards by demonstrating that the breaches of the development standards are justified. In this matter the applicant relies on two variation requests for the FSR and height standards.
2. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Preston CJ outlines that Commissioners, in exercising the functions of the consent authority on appeal, have the power to grant consent to developments that contravene the building height standard, or the FSR standard (cl 4.6(2)). However they cannot grant such a development consent unless they: 1. are satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). 2. are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). 3. have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with they are satisfied that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). 4. have considered a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).
3. I have applied these tests to the current application in the following.

Variation to Maximum Building Height

1. The variation to the maximum building height sought for the new motel building is 2.9 metres, with additions to the Grand Hotel exceeding the maximum height by 5 metres (Exhibit D). I note that the existing Grand Hotel building exceeds the maximum height limit.
2. The planning experts are agreed that: 1. it is unlikely the heritage conservation works would be viable if a compliant scheme for the accommodation building were put forward (which is the subject of a current development application under assessment by the Council), or if a much simpler cosmetic refurbishment of the pub were to be undertaken; 2. the benefits for environmental heritage, on a prominent site at the southern entrance to the town centre are significant; 3. the shadow impact is acceptable; 4. the motel building height acknowledges the height of the original hotel, ensuring the height of the building is acceptable; 5. the upper level of the new motel is set back approximately 7.8 metres from the level below; 6. the proposal meets the test of clause 4.6 subject to heritage, noise and traffic issues being resolved.; (Exhibit 4)
3. The experts conclude that 'the impacts of the additional floor space (and height) being provided on the site are essentially limited to the intensity of the use and how that translates into additional traffic, parking demand and noise. It is agreed that if these matters are satisfactorily resolved, the Clause 4.6 Statements in relation to height and FSR should be supported because there is a clear planning benefit provided through the proposed heritage works and general rejuvenated of the pub, the costs of which obviously being offset in some way by the additional yield to the accommodation building. A development that complied with height and FSR controls is unlikely to be capable of delivering the same planning benefits as the proposal". (Exhibit 4).
4. I note that a cost report from a registered quantity surveyor is contained in Exhibit B and that it is accepted by the parties that the value of the heritage works are in the order of $1.36M (Exhibit B).
5. Beyond this agreed assertion in the joint report and the cost report I note that the applicant has provided no evidence to substantiate that the costs of the heritage works are offset by additional yield to the accommodation building and reliant on them.

Consistency with the zone objectives:

1. The site is with the B2 Local Centre Zone, the objectives of which are provided at paragraph [16].
2. On the basis of the evidence of the planning experts, and the variation request (Exhibit C), I accept that it can be reasonably argued the proposed development is consistent with the objectives of the zone. I am satisfied that the proposed development will provide retail and entertainment uses for people who live, work or visit Kiama. Given its location adjacent the rail station I am satisfied the development is compatible with the objective of encouraging employment in accessible locations and the use of public transport.
3. Pursuant to clause 4.6 (4)(a)(ii), I find the proposed development is compatible with the zone objectives.

Consistency with the objectives of the standard in question:

1. At [18], I listed the objectives of cl 4.3: Building Height. Objective (a) is the most relevant to the current proceedings: (a) to ensure future development is in keeping with the desired scale and character of the street and local area.
2. The clause 4.6 variation request argues that the proposal has been carefully designed with consideration to:

• the building height control;
• the public and streetscape benefits of retaining and upgrading the existing heritage listed hotel;
• the height, scale and form of existing buildings in the locality of which heritage buildings are prominent features of the character of Kiama town centre;
• the cultural significance of restoring the previous roof form and 'widow's walk' to the perimeter of the uppermost level which is intrinsic to the building providing a visual vantage point above the rooflines of the town towards to the ocean;
• the new motel building respecting the heritage listed hotel and the desired scale and character of the street and town centre;
• the three and four storey height of the approved development on the opposite side of Bong Bong Road; and
• the reasonable and feasible redevelopment of the site in a manner compatible with the context and setting of the surrounding development and its location within the township, (Exhibit C)

1. Further the request argues that the 'the works to the Grand Hotel aim to restore the previous form and scale of the building… The visual vantage points created by the elevated 'widow's walk' is fundamental to the cultural heritage significance of the hotel. The height of the hotel building and its visual prominence is an essential component of its heritage value.' (Exhibit C)
2. In relation to the motel building the request argues: 'The new motel building incorporates building scale and proportions that are compatible with the existing hotel including similar floor to ceiling heights and window proportions'. (Exhibit C)
3. The planning experts are agreed that the development is in keeping with the desired scale and character of the street and local area (Exhibit 4).
4. It is the agreed evidence of the heritage experts that 'the design of the proposed new hotel building and the alterations and additions to the existing heritage item, as shown on the amended drawings (issue D) are acceptable from a heritage viewpoint' (Exhibit 5).
5. For the purposes of an assessment of the developments consistency with the objectives of the height standard the test is whether the development is in keeping with the desired scale and character of the street and local area. I accept the agreed evidence of the experts that the development is consistent with the achievement of this objective. For these reasons, pursuant to cl 4.6(4)(a)(ii), I find the proposed development is consistent with objectives of the height standard.

Is it established that compliance is unreasonable or unnecessary?

1. Wehbe v Pittwater Council [2007] NSWLEC 827 at [44]-[48] detailed a number of approaches which may establish that compliance with a development standard is unreasonable or unnecessary for the purposes of cl 4.6(3)(a). Namely that: the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); the underlying objective or purpose of the standard is not relevant to the development (Wehbe test 2); that the objective would be thwarted if compliance was required (Wehbe test 3); that the development standard has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or that the zoning of the land is unreasonable or inappropriate.
2. In this appeal the applicant has utilised the Wehbe test 1. In the variation request Mr Mead argues that: …the hotel exceeded the height of buildings control at the date at which the control became effective making compliance unreasonable. The upgrades to the Grand Hotel and the installation of new lifts and level access to the adjoining motel will cater for the needs of the community more equitably. The restoration of the roof features to the hotel which reflect the original building's unique (in particular the 'widow's walk') will make an outstanding contribution to the interpretation and understanding of the role of the hotel in Kiama's history. The provision of a new motel will provide a benefit to the local area in providing additional tourist accommodation within a highly accessible location, new employment opportunities and the upgrading of the heritage listing Grand Hotel ensuring its long term retention and viability. (Exhibit C)
3. At paragraph [49] I concluded that despite the variation to the standard the objectives of the height standard are achieved.
4. I find that I can be satisfied that the applicant's written request adequately demonstrates the matters in clause 4.6(3)(a) of the LEP. I accept the evidence of planners in the proceedings and the reasoning of Mr Mead at paragraph [46] that the objectives of the standard are achieved notwithstanding the noncompliance. I find that mandating compliance with the standard in these circumstances would be unreasonable. I am satisfied on the basis of the evidence that it is unnecessary for the development to be compliant with the height standard for the objectives to be achieved.

Are there sufficient environmental planning grounds to justify the variation?

1. In the variation request Mr Mead argues there are sufficient environmental planning grounds principally on the basis that: 1. there are no negative impacts of the proposed non-compliance on the amenity of future building occupants on streetscape, the public domain or upon neighbouring properties; 2. the improvements to the existing hotel will bring the building into fire compliance and provide facilities and services to a contemporary standard; 3. the motel would add to the range and quality of accommodation within the township; 4. the activation of the site frontage to Bong Bong Street will improve the public domain and provide passive surveillance of the street towards the railway station; 5. the opportunity to establish conditions for the ongoing management and operation of the premises to improve the experience of the place for staff and patrons and improve neighbourhood amenity. (Exhibit C)
2. In conclusion the applicant argues that 'to require strict compliance would result in an unreasonable burden on the development with no demonstrable built form benefits and as such the proposal results in an better outcome relative to the site' (Exhibit C).
3. In the joint report the planning experts argue: The current application equally requests that the height control be flexibly applied for a planning purpose, which is to facilitate significant restorative works to the existing pub which will have benefits of marking the intersection of Bong Bong Street and Manning Street. The upper level is however set back approximately 7.8m from the level below which makes it a recessive element in the streetscape. The compliant part of the building will remain the dominant element in the streetscape and will be below the height of the heritage pub therefore not dominating it in anyway in streetscape terms. The streetscape and character established by this collection of buildings is acceptable. (Exhibit 4)
4. Having given regard to the agreed evidence of the planning experts and the written objection prepared by Mr Mead I am satisfied that there are sufficient environmental planning grounds to justify the variation sought. In forming this conclusion I accept the evidence of the planners at paragraph [56] and the reasoning in the variation request.
5. Finally, as required by cl. 4.6(5) I am satisfied that the variation sought does not raise any matters of significance for State or Regional planning that would warrant the refusal of the request.

Variation to Maximum FSR

1. It is agreed between the experts that the development will have a floor space ratio of greater than 1.5:1 allowed under cl 4.4 of the LEP. The planners agreed that subject to traffic/parking, acoustic and heritage matters being resolved, the proposed FSR of the building would be acceptable (Exhibit 4).
2. The total floor space ratio of the motel and the hotel combined will be 2:1 and exceeds the control by 0.5:1 or 670m² (equivalent to a 33% variation to the control) (Exhibit C).

Consistency with the objectives of the standard in question:

1. At [20], I listed the objectives of cl 4.4: Floor Space Ratio. Objective (a) is the most relevant to the current proceedings: (a) to ensure that development is in keeping with the optimum capacity of the site and the local area,
2. The agreed evidence of the planning experts provided at paragraph [36] is relevant to the consideration of the requested variation.
3. The variation requests argues that the increase in gross floor area of the hotel is "a consequence of activating spaces for use that were previously not included as gross floor area. It is considered that the proposed hotel upgrades to meet fire safety standards, replace poor standard accommodation with high quality dining and function space and reinstating a roof form of heritage significance are imperative to the conservation of the building in the long term". Further the request argues that "there are currently no controls (or conditions of development consent) regarding the maximum number of people on the site at any time beyond license" and that there are currently no prescriptive controls regarding the ongoing management and uses of different spaces within the site. (Exhibit C).
4. The variation request concludes that a benefit arising from the development consent (if granted) is that it creates capacity limitations on specific areas of the interior and exterior parts of the hotel which will safeguard the compatibility of the premises with the adjoining neighbours.
5. In relation to the effect of the variation in FSR for the motel building the variation request argues: The motel building responds to the scale, form, setbacks and density of the heritage hotel. When viewing the development from adjoining streets, the buildings will not appear out of scale in comparison to the surrounding development. The scale of building is consistent with the historic visual prominence of the hotel as a landmark to the southern gateway of the township and its 'presence' in the local area. … It is considered that a compliant scheme would have similar street presentation to the proposed scheme in terms of setbacks to the street boundary and side boundaries, street frontage elevation or its appearance when viewed from neighbouring properties. However, the built form of the motel is the most appropriate layout for the amenity of guest rooms, the provision and siting of shared guest facilities and best matches the built proportions of the hotel in which it will be integrated. (Exhibit C)
6. Council argues that the impacts relevant to 'ensuring development is in keeping with optimum capacity of the site and local area' are the parking demands generated by the development, and the acoustic impacts on nearby properties.
7. The Council submits that "in the balancing exercise given the benefits of the heritage outcome (putting to one side the submission about the further investigation) are such that the under-provision of parking is not pressed as a reason for refusal". (Respondent's written submissions).
8. The further investigation to which the respondent's written submissions refer relates to the means of achievement of the required acoustic performance. The information Council argues is required is detailed below: a) Further investigation is required to assess the hotel's capacity to comply with the acoustic requirements to ensure that the protection of the amenity of the neighbourhood. The investigation is set out in the draft condition prepared by heritage consultants set out in the Applicant's submission [36]. The investigation will determine: i. which windows are capable of acoustic treatment; ii. which windows are to be replaced; iii. the type of acoustic treatment as set out in the draft condition; b) It is not presently known the extent of fabric of the building which will be lost, nor what the ultimate window design treatment will be. c) To the extent there is likely to be fixed internal glazing it is not known whether that will give rise to issues of building compliance. d) The Plan of Management is incomplete and inadequate in that it has insufficient detail to deal with the application as it presently stands, and it is not known what further management measures will be required as a consequence of the heritage investigation into the windows. e) At least in one respect the plans do not reflect the evidence relating to the roof top terrace (evidence of Mead). (Respondent's written submissions)
9. The Council does not contend that the acoustic impacts arise from the variation to the FSR standard.
10. Other than the uncertainty of the above matters, Council accepts that the development is consistent with the objectives of the FSR standard.
11. The parking impacts that arise from the development are a deficit of two parking spaces for the motel, and in relation to the Grand Hotel the parking demand remains reliant on access to on-street parking and no new parking is proposed.
12. The variation request notes that the 'structural integrity of the hotel building prevents the provision of new basement parking beneath the building' (Exhibit C).
13. An assessment of the parking requirements assuming the hotel is running at full capacity (450 patrons) is contained in the joint traffic report. This assessment concludes that any shortfall in on-street parking is likely to arise during the day, not at night. The report demonstrates that at various times throughout the week days and on weekends the hotel will occupy a material proportion of the available on street parking within the locality.
14. It is important to note that whilst a capacity of 450 patrons has been assumed this is not a restriction contained in the current license (Exhibit G).
15. It is Mr Rogers' principal submission that the applicant has provided insufficient data and in particular patronage/parking surveys at peak times to determine whether there is adequate parking available to accommodate parking demand from the development. He concludes that 'any assessment based on this information is of limited value and may not appropriately reflect conditions for assessing the parking requirements for the Hotel' (Exhibit 6).
16. However to assist the Court Mr Rogers has undertaken a parking assessment by 'seasonally adjusting' the figures provided by the applicant from a June survey. It is his evidence that:

• With the hotel at capacity (450 persons) at 7.00pm on Saturday in both June and December, there is enough vacant on street parking to accommodate hotel patrons. However, the hotel takes up the majority of the vacant on street parking (60% to 70%).
• With the hotel at capacity (450 persons) at 12.30 pm on Saturday in both June and December there is insufficient street parking to accommodate demand. (Exhibit 6)

1. Based on the above Mr Rogers concludes that:

• The hotel taking up 60% to 70% of the available parking in the area is not a fair equitable approach taking into account surrounding businesses in the area. The maximum number of patrons should be limited to no more than 370 patrons so as to not have adverse parking effects; and
• During the lunchtime period the capacity of the hotel should be limited to no more than 120 patrons so as to not have adverse parking effects. (Exhibit 6)

1. In the alternative Mr Lewis that the 'proposal will have the effect of reducing on-street demands arising from the existing Hotel accommodation demands (22 spaces, 21 rooms plus 1 staff) being effectively relocated from street to within the proposed Motel off-street car park, This 'credit' would be equivalent to the parking demands arising from 70 persons within the Hotel (Exhibit 6). As a result he argues that, applying a full credit for these spaces to the daytime peak, a capacity of 150 patrons can be accommodated.
2. The applicant argues that LEP 2011 at cl. 5.10(10) 'clearly contemplates (in the case of prohibited development) that some adverse impacts are acceptable where the granting of development consent will promote the conservation of a heritage item' (Applicant's written submissions).
3. It is the agreed evidence of the planning experts that: "… the proposed development is a unique and beneficial scheme to the extent of providing significant heritage benefits to the site and town centre generally. Clause 5.10 of the LEP encourages such heritage conservation projects. Given the absence of any direct amenity impacts of the project the planners agree that the Clause 4.6 statement is supportable. The experts accept that the heritage works for the pub, beyond general rejuvenation, are costly and significant. It is agreed that the works of over $1.3M are unlikely to generate significant additional yield for the site and that the proposed additional 10 rooms within the upper level of the accommodation building are likely to assist with project viability, which is the claim of the applicant. The experts acknowledge that they have no viewed a feasibility study for the site however it is evident from the applicant's submission of a compliant scheme for an accommodation building with no works to the pub that the additional yield enables those works to some extent. The experts also acknowledge that the proposal will enable operational management through the requirement to operate under a new contemporary set of conditions that we expect will deal with acoustic and traffic/ parking matters that may be raised by other experts. (Exhibit 4)
4. In considering the consistency of the development with the FSR standard it is relevant to consider:

• whether the additional floor space sought by the application generates impacts that demonstrate that the overall development sought is outside the optimum capacity of the site and is therefore antipathetic to the objective; and
• whether those impacts are offset by the ability to control the offsite effects of the development through conditions and a plan of management which arises from the development application (as agreed by the planning experts).

1. I accept the evidence of Mr Roger that based on his extrapolation that the stated the evening peak of 450 patrons can be accommodated within the capacity of the street network and I adopt his reasoning. I note that a proportion of the parking impact arises from the existing floor space of the hotel and the variation sought is combined across the Motel and Hotel uses.
2. The question of the reasonableness of the utilisation of this percentage of available on street parking and the veracity of this analysis is discussed further in the judgement under the merit assessment of the application.
3. The planning experts note that the hotel license has a patron capacity of 450, a number which is adopted by the traffic consultants in their assessment. As noted in the preceding this is not a restriction of the current license. Such a limit to patron numbers is proposed by the draft Plan of Management (POM) (Exhibit H).
4. The additional gross floor area sought within the hotel is 103.03m² (Exhibit 6), whilst the remaining floor space exceedance is generated by the additional 21 rooms proposed in the motel. I have applied an approach to the assessment of the impacts as a comparative one between a compliant scheme and the proposal (Lane Cove Council v Orca Partners Management Pty Ltd (No 2) [2015] NSWLEC 52 at [219]). Following this approach I am satisfied that the impacts are not sufficient to render the development antipathetic to ensuring development is within the optimum capacity of the site.
5. I note that the applicant has provided no evidence to substantiate the assertions provided in the variation request in relation to viability or the offset of additional development against the costs of the heritage works. On this basis I have given little weight to that component of the reasoning of Mr Mead.
6. I have given weight to the agreed evidence of the experts (refer paragraph [80]) and find that the requested variation to FSR is consistent with the objectives of the standard, noting that consistency in this context means 'agreeing or concordant', 'compatible', 'not self-imposed or self-contradictory' (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190).
7. For these reasons, pursuant to cl 4.6(4)(a)(ii), I find the proposed development is consistent with objectives of the FSR standard.

Is it established that compliance is unreasonable or unnecessary?

1. In this appeal the applicant has utilised the Wehbe test 1 (refer paragraph [50]) and in the variation request Mr Mead argues that "compliance with the maximum FSR development standard is unreasonable and unnecessary in the circumstances of the case as the development meets the objectives of the standard and the zone objectives." (Exhibit C)
2. Further Mr Mead argues: "The proposal will result in a high quality motel development, the viability of which relies upon an increased FSR to achieve a significantly better planning outcome for built form and ongoing operation of the premises than to enforce compliance (and reduce overall floor space). The proposal will have no adverse impacts on the amenity of adjoining properties or the public domain and the new operational management and acoustic attenuation will improve the amenity of the neighbourhood. The retention of, and improvements to, the existing heritage- listed hotel contributes positively to its long term contribution to the heritage character of the Kiama township and the appeal of the site and locality for tourists." (Exhibit C)
3. I note that the applicant has provided no evidence to substantiate the assertions provided in the variation request in relation to viability. On this basis I have given little weight to that component of the reasoning of Mr Mead in the variation request.
4. However with that qualification I still find that I can be satisfied that the applicant's written request adequately demonstrates the matters in clause 4.6(3)(a) of the LEP. I accept the evidence of planners in the proceedings and the reasoning of Mr Mead at paragraph [90] that the objectives of the standard are achieved notwithstanding the noncompliance.
5. At paragraph [88] that the despite the variation to the standard the objectives of the FSR standard are achieved. I find that mandating compliance with the standard in these circumstances would be unreasonable. I am satisfied on the basis of the evidence that it is unnecessary for the development to be compliant with the FSR for the objectives to be achieved.

Are there sufficient environmental planning grounds to justify the variation?

1. In the variation request Mr Mead argues there are sufficient environmental planning grounds principally on the basis that: '… the proposal represents a building density which is compatible with the character of the existing listed hotel and the character of the neighbourhood. Strict compliance would be counterproductive in terms of encouraging heritage integrity, internal amenity, streetscape, impacts to neighbouring properties and constraining the provision of high quality tourist accommodation and social and recreational opportunities in a highly accessible location. The changes to the existing hotel will ensure that it is upgraded to current fire safety and accessibility standards as well as taking the opportunity to refit the hotel for an improved variety of social and recreation functions more suited to contemporary hotel premises. The financial viability of the upgrade is integral to the redevelopment of the hotel for diverse restaurant and function space and supported through the ancillary operation of the motel. Tourist accommodation rooms removed from the hotel will be compensated by superior rooms with a variety of room sizes and high quality ancillary facilities including a gym and pool in the new motel building. The bulk and scale of the new building is entirely appropriate for the specific features of the site and its context and setting. The bulk and scale of the existing Grand Hotel at the gateway corner of Manning Street which further enhances the positive 'landmark' visual contribution of the hotel at the street corner. (Exhibit C)
2. In the joint planning report the experts 'acknowledge that they have not viewed a feasibility study for the site however it is evident from the applicant's submission of a compliant scheme for an accommodation building with no works to the pub that the additional yield enables those works to some extent.' (Exhibit 4)
3. Further the planning experts conclude that there is an operational management benefit that arises through the application of conditions of consent and a plan of management to any approval.
4. Having given regard to the agreed evidence of the planning experts and the written objection prepared by Mr Mead I am satisfied that there are sufficient environmental planning grounds to justify the variation sought. In forming this conclusion I accept the evidence of the planners at paragraph [56] and [96] and the reasoning in the variation request summarised at paragraph [94].
5. Finally, as required by cl. 4.6(5) I am satisfied that the variation sought does not raise any matters of significance for State or Regional planning that would warrant the refusal of the request.

Merit Matters

1. Having found this particular precondition to consent is met, it is necessary to consider those matters prescribed in s79C (now s 4.15) of the Act.
2. The contentions in relation to the parking, access and design of the basement of the Motel have been resolved by agreement between the traffic consultants with the amended basement design and appropriate conditions. (Respondent's written submissions).

Are the acoustic impacts certain and able to be satisfactorily managed by conditions and Plan of Management?

1. During the proceedings the applicant's acoustic expert undertook further assessment of the inaudibility of the proposed hotel to the residential units adjacent after midnight. The modelling was completed on the basis that the hotel operates 'without entertainment levels of recorded or amplified noise'. The conclusion of this assessment is 'the noise from the operation of the hotel will comply with the requirement for inaudibility after midnight' (Exhibit J).
2. Further modelling was also completed to test whether the development would meet the inaudibility criteria for these residential properties prior to 10pm. The report concludes that with the following assumptions and parameters the development will comply with the inaudibility criteria: 1. the internal capacity of the hotel restricted to 40% when the windows are open; 2. windows to the level 1 area to be closed if the external terrace is utilised by 40 or more patrons; 3. windows are closed to function spaces when they are in use; 4. windows are closed when any amplified music or live bands are playing in the space; 5. no playing of music on any external terrace; 6. absorptive material to be installed on the underside of the soffit of the Level 1 terrace; 7. balustrade of the Level 1 terrace to include a solid glass screen behind the existing balustrade; 8. The windows of the main bar or the Level 1 bar are to be closed from 6pm. (Exhibit J)
3. Importantly the applicant's further acoustic report also states: 'All external window and door openings of the building are to include a minimum of 10.38mm laminated glass. The windows and frames (as installed) are to achieve a minimum acoustic performance of Rw 34.' (Exhibit J)
4. As an attachment to the further acoustic report the following are recommended as conditions of consent: 1. During playing of live or recorded music all external openings are to be closed and public openings to the street that are used for ingress and egress of those areas to be via and airlock. 2. No playing of live music or amplified music in any area of the hotel after 12am. 3. All external windows and doors to the hotel to be closed between 10pm and 7am. 4. The external areas of the hotel are to be closed during the period of 10pm and 7am to patrons. 5. Install acoustic absorption to the underside of the level 1 terrace for not less than 50% of the underside of the roof with a material having an NRC of not less than 0.85 6. External doors servicing the external dining areas are to be closed after 6pm with self closing devices. 7. Security staff to be located at all major exits within the Hotel in accordance with the Plan of Management. This is to ensure that patrons leave in a quiet and orderly manner and to prevent loitering on the public footpath. 8. Areas where live or DJ music is to be played, are to be controlled using either an in-house sound system with RMS limiters (all music to be played through the in-house system), or alternatively are to be controlled by a noise cut out monitor similar to Sound Monitor (from Technology, Sound and Vision) or equivalent. 9. For limiter controls using the above equipment, are to be supplemented with Reed switches fixed to operable windows, such that if a window is open the noise limiter will have a reduction of no less than 10dB(A) or amplification is turned off/muted. 10. Music within the areas of the hotel shall not exceed a Sound Pressure Level of 90dB(A)L10 when measured at the centre of the room. 11. Gaming machines to include a noise limiter with any amplified noise from the machines set to a maximum noise level of 65 dB(A) SPL @ 1m by the manufacturer/ supplier. 12. No noise to occur on any external areas of the hotel/pub including the Beer Garden or external terrace at any time. 13. Windows to the internal areas of the hotel/bar are to be closed by 10p, or during periods when the hotel is being used for live or amplified music. 14. Windows of any individual areas to be closed when that individual area is at or greater than 40% capacity. 15. Windows are to be closed to any areas that are being used for weddings, functions or conferences) or similar. 16. Windows to the level 1 bar are to be closed when the level 1 terrace is being used by 40 patrons or more. 17. All external windows and door openings of buildings are to include a minimum of a 10.38, laminated glass. The windows and frames are to achieve a minimum acoustic performance of Rw34. 18 All speakers/subwoofers are to be vibration isolated from the building structure using Embelton NR or Supershear Flex (vertically installed) mounts or equivalent within all areas of the premises. 19. Hotel capacity to be managed in accordance with the population numbers (areas and subareas) detailed in the Plan of Management. 20. Windows to the level 3 bar/lounge are to be closed between 6pm and 7am. (Exhibit J)
5. Each of these recommendations, paragraphs [102- 104], are necessary to ensure that the relevant acoustic criteria are met.
6. During the conduct of the hearing it became apparent that Mr White and Mr Cooper required more data and information on the existing fenestration within the existing Hotel to enable them to verify how the minimum acoustic performance was to be achieved, in particular given the conclusion at [103].
7. Mr Cooper noted in oral evidence that the success of the acoustic treatment of existing windows to achieve the Rw rating would be dependent on the state and quality of the current windows and how they are proposed to be sealed.
8. To resolve this uncertainty the heritage experts drafted a deferred commencement condition which provided two options to manage the existing heritage windows. The condition, reproduced below, is agreed to by the applicant: The applicant shall undertake a detailed investigation of the windows and glazed doors at levels Ground, First and Second of the Manning and Bong Bong Street facades, and prepare a Schedule of Conservation and Acoustic Treatment. This schedule shall be submitted for approval to Council's delegated officer. Two options may be considered for the required acoustic treatment: Option 1: the installation of internal secondary glazing Option 2. installation of thicker glass and acoustic seals to the existing/ repaired sashes. The investigation shall include an assessment of the nature, condition, operability, integrity and significance of each window and glazed door and their interface and connection with adjoining substrates, and architectural features whether visible or concealed. The design criteria for the secondary glazing shall include: clear glass, operable for ventilation and /or access and the relationship with adjacent architectural features to achieve an optimal conservation and architectural outcome. This schedule will be in addition to any other condition requiring the preparation of a Conservation Works Schedule for the historic Hotel overall. (Exhibit 9)
9. It was Mr Wallace's oral evidence that the replacement of windows to achieve the Rw rating would result in a loss of fabric, the extent of which is unknown and therefore unable to be assessed. It was his evidence that the lack of a window schedule which indicates the type, condition or age of the existing hotel windows has hampered his assessment of the potential impact of the works on the heritage significance of the hotel.
10. Mr Brooks agreed there was a lack of certainty as to how much fabric would be required to be replaced to address the acoustic requirements (refer paragraph [103]). Further Mr Brooks notes that "option 2" in the deferred commencement condition would require confirmation that the installation of secondary glazing would achieve the acoustic requirements nominated.
11. In relation to the implementation of the deferred commencement condition it was Mr Brooks' evidence that the following would need to be considered:

• the location of existing architectural features adjacent to the windows (for example architraves and wall finishes) to achieve the optimal conservation of existing features;
• the relationship of any new material (under option 1) with balcony thresholds, string courses, architraves and skirting boards;
• consideration of proportionality and compatibility of any new material with existing heritage features in the rooms.

1. It was Mr Brooks' evidence that the implementation of the proposed deferred commencement condition would require a design process to be undertaken. In particular he emphasised that the decision to either install new secondary windows, or repair and reglaze existing windows, would need to be consistent in each room or each floor so as to not affect the heritage significance of the Hotel overall.
2. It was the evidence of Mr Wallace that any works to the existing windows and doors should aim to be indiscernible from the outside of the heritage item.
3. In relation to the deferred commencement condition Mr Wallace agreed that option one could be a satisfactory solution and that both options were required given that thicker glazing may not be able to be accommodated in the existing window frames.
4. Mr Cooper also confirmed in his view it is in principal possible to achieve an acoustic performance of Rw 34 utilising the options proposed for treating the windows detailed in the deferred commencement condition at paragraph [107].
5. The acoustic assumptions and parameters at paragraph [102] also mandate the closing of external openings to manage noise and the management of patron numbers throughout the premises.
6. The means of managing the opening and closing of external windows and doors was the subject of oral evidence from the experts. Mr White provided a recommendation for the installation of 'Reed switches' to operable windows. Exhibit J notes that these switches 'are to be fixed to operable windows, such that if a window is open the noise limiter will have (a) reduction of no less than 10dB(A) or amplification is turned off/muted'.
7. Mr White provided evidence that such a recommendation could be a management control (reliant on staff ensuring the windows remained closed) rather than a physical control. However Mr White accepted the less that reliance is placed on human intervention the more likely the development will be complaint with the acoustic recommendations.
8. In the alternative it was Mr Cooper's evidence that a significant breach of the acoustic criteria would arise from the opening of the windows, as demonstrated by the modelling in Exhibit J. Further he argues that when the hotel is at 40% capacity significant management effort would be required to ensure compliance with patron numbers leaving less capacity to address opening/closing of windows. Given these two factors it is Mr Cooper's evidence that the Reed switches are warranted. Mr Cooper concludes that reliance on the POM proposed is insufficient.
9. Mr Mead accepts that as modelled the acoustic compliance of the hotel is marginal. Further he accepts Mr Clay's submission that given the closeness of the performance to the standard it is important that controls/conditions placed on the development are adhered to. It is Mr Mead's evidence that:

• the POM is appropriately prescriptive and its requirements are able to be enforced by management and staff.
• the POM provides certainty, but also sufficient flexibility to the operator of the hotel to apply a combination of measures to achieve compliance,
• the allocation of staffing to various parts of the Hotel should not occur in a POM but is appropriately a role for management.

1. Mr Mead provided oral evidence in relation to the application of the POM to the proposed upper level terrace on Manning Street. He agreed that: the terrace would represent an attractive area for patrons given its views and sea breezes; and that the area of the terrace shown on the architectural plans has a physical capacity of more than 20 patrons (Table 7.1 Attachment 3, Exhibit 7 and cl. 3.1 of POM).
2. The architectural plans indicate access to the terrace is via two doors behind a proposed bar area. Mr Mead accepts that the attendants at the bar would have no easy line-of-sight to the terrace. Given these parameters Mr Mead agreed that it would be beneficial for the physical space available for patrons to more closely mirror the capacity under the POM by the inclusion of loose furniture. Further he accepted that in general a regular count of patrons as numbers approach the designated capacity would be a further check and balance. However Mr Mead's primary position remained that compliance with the POM should be managed flexibly by staff monitoring. The POM notes: 3.2 At times where the hotel is likely to be reaching the capacity of areas, the Duty manager is to instruct staff to undertake capacity counts at regular intervals to ensure compliance with the maximum capacities. (Exhibit H)

Submissions

1. As noted at paragraph [68] Mr Clay submits that the application is incomplete and uncertain and on that basis the Court cannot grant consent. The Councils principal reasoning is as follows: 1. that the experts cannot say as a matter of fact what works are required to be done to the heritage item and in particular the existing windows and doors to achieve the required acoustic performance of the windows; 2. given (1) the impacts of those works on the significance of the heritage item are not able to be assessed; 3. there is no assessment of 'the consequences in terms of building compliance in the event part or all of the solution to providing acoustic compliance is the provision of fixed internal panes, nor indeed of the consequences of the acoustic conditions requiring the closing of windows and doors at various times'. In particular Mr Clay raises the uncertainty of providing compliant ventilation to the relevant rooms as required by the Building Code of Australia (BCA) if the windows are sealed; 4. If mechanical ventilation is required given the building is a listed heritage items the Court needs to be satisfied that there is capacity to install such ventilation and be able undertake an assessment of the impacts of such works prior to consent; 5. 'The present draft Plan of Management: 1. is inadequate in that it does not provide any detail at all as to how the premises will be managed to ensure compliance with the conditions in order to achieve acoustic compliance'. The Council argues for example that the Plan of Management lacks details as to how overall patron numbers are to be managed, the requirements for window and door closures are to be implemented or how the maximum patron numbers in various locations within the hotel are to be controlled. 2. 'cannot deal at all with what change in management may be required depending on what the heritage window investigation reveals.' 3. '…has not identified how many security there will be, where they will be stationed, what times they commence, what surveillance in the neighbourhood they will do and matters of that type.' 1. 'On each level from the first floor the capacity (of the space) greatly exceeds the nominated (patron) numbers. The Applicant has not demonstrated how it will ensure compliance, whether by amendment to the plan or provision of furniture or the like.' (Respondent's written submissions)
2. Mr Clay submits that the Court 'simply does not know and should not grant approval without knowing whether or not the building is capable of compliance with the BCA'. Further he argues that given the uncertainty in relation to the treatment of existing windows or their removal 'means that there is insufficient information to grant development consent because the scope of important building work, its nature and impacts are not capable of assessment' (Respondent's written submissions).
3. The Council argues that in oral evidence Mr Mead accepted that the roof top terrace had a physical capacity greater than the nominated 20 patrons. Further Council submits that the area is unable to be supervised by the bar staff without them leaving the bar areas and that the area of the roof terrace should be cut back.
4. In the alternative Mr O'Gorman Hughes submits that the Council's planner Mr Patterson agrees with Mr Mead that the draft POM adequately addresses concerns about the operation of the hotel, provided it was amended to include the recommendations of the acoustic consultants (Applicant's written submissions). Mr O'Gorman Hughes argues the recommendations of the acoustic consultants are incorporating in the draft conditions satisfying the planning experts.
5. Mr O'Gorman Hughes argues that the POM 'adopts a set of specific and highly prescriptive and enforceable measures. It includes specific limits on numbers and sound levels which can be readily enforced as conditions of consent.' He concludes that 'if there are more than the permitted number of persons allowed in a section of the hotel at a given time, or noise level exceeds a set level, a fine or other enforcement action can result'. (Applicant's written submissions).
6. Mr Clay submits that the proposed POM provides insufficient detail as to how patron numbers are to be managed, where security is to be stationed, the opening and closing of doors and windows is to be managed, the closing of certain areas and the movement of people within the various spaces of the hotel. Mr Clay argues that the applicant has failed to demonstrate how they will ensure compliance with the patronage numbers and the remaining conditions required to ensure acoustic compliance. He concludes therefore: This failure means the Court cannot be reasonably satisfied that proposed conditions of consent will be complied with and therefore that there will not be an unreasonable impact on the amenity in the neighbourhood following the consequential non compliance with the conditions of consent. It is not enough to simply impose conditions. The Court must be satisfied that compliance can be readily assumed. (Council's written submissions)
7. In relation to the certainty of the deferred commencement condition the Applicant, relying on Mison v Randwick City Council (1991) 23 NSWLR 734, argues that 'the condition imposed by the heritage experts does not "significantly alter" the development, or change it "in a fundamental respect" (Applicant's written submissions). He concludes the deferred commencement condition is appropriate and should be imposed.
8. Further, Mr O'Gorman Hughes argues that that the options for the acoustic treatment are limited to two options: 'the installation of internal secondary glazing; or the installation of thicker glass and acoustic seals to the existing/repaired sashes' (Applicant's written submissions) and the scope is therefore limited and precise. Mr O'Gorman Hughes notes that the condition was found acceptable by the heritage experts.
9. If his principal submissions are not accepted, Mr O'Gorman Hughes notes that the Court could require the applicant to prepare a detailed design of the glazing system envisaged by the deferred commencement condition before granting consent in an "amber light" approach. This would essentially provide the applicant time, prior to consent, to complete the works envisaged by the condition and amend their application accordingly before being finally determined by the Court.
10. In reply the Council argues that the proposed deferred commencement condition leaves fundamental planning matters to be determined post consent and it is beyond the scope of an amber light approach for that uncertainty to be resolved.
11. An important foundation of the applicant's proposed development is the assumption that the redevelopment will not result in an increase in patron numbers. This is reiterated in the applicants written submissions that state: The work involves carrying out extensive heritage restoration works to the Hotel. Those works include reconstruction of the original verandas and roof form. The heritage restoration works alone are estimated to cost over $1.36 million. They are unlikely to yield any significant addition yield or profit for the site as they do not change the layout, mix or areas of general amenities within the Hotel. (Applicant's written submissions)
12. The Council in their written submissions disagree and Mr Clay argues that 'the heritage works would make the premises more attractive and therefore more likely to attract patrons' (Council's written submissions).
13. In relation to the issue of ventilation the applicant argues that the Council has incorrectly concluded that any internal glazing proposed by the heritage experts is fixed. It is Mr O'Gorman Hughes submission that the condition provides that 'any internal glazing be openable for ventilation' and further that if mechanical ventilation was required there 'is ample room to accommodate ducting and the like within the building' (Applicant's written submissions).

Findings

1. Section 4.16(3) of the Act provides that a development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to a matter specified in the condition. This is relevant to the deferred commencement condition proposed by the heritage experts (paragraph [107]).
2. Pursuant to s4.17(1) of the Act the consent authority may impose a condition of development consent if: (a) it relates to any matter referred to in section 4.15 (1) of relevance to the development the subject of the consent, or … (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C(1), or (g) it modifies details of the development the subject of the development application, or …
3. Relevantly s4.17(4) requires that conditions are expressed in terms of outcomes or objectives and requires conditions to expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed.
4. In order for conditions to be successful they need to clear and certain, as outlined in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] 143 LGERA 277 which states at 24: (that there is no lawful development consent where the consent falls into one of two categories) 'the first category is where a condition has the effect of "significantly altering the development in respect of which the application is made": at 737B; 351 (Priestly J A). The second category is where Council has purportedly granted consent, but in terms which lack finality or certainty, so that there is, in substance, no effective consent to the application.
5. The question of whether a condition is final and certain is addressed in Young and Anor v Gosford City Council [2001] NSWLEC 191at [46] as follows: To answer the question as to whether Condition 1 is final and certain, one asks, whether the condition allows the consent to be fundamentally or significantly altered by the subsequent determination of the matter which has been deferred. If it is possible that, consequent upon the matter which has been left open the consent is ultimately implemented may be significantly different from that which the consent purportedly approved, then the condition falls foul of the requirement that it be final and certain. …
6. I accept the evidence of Mr Brooks that that the implementation of the proposed deferred commencement condition would require a design process to be undertaken the outcome of which is not certain until the requested detailed investigation of the fenestration is completed. I accept his evidence at [111] that to be appropriately implemented would require a number of steps and coordination with other experts to ensure an appropriate balancing of impacts and benefits. Given this I find that the wording of the deferred commencement condition is not final and certain. I accept the submission of Mr Clay and his reasons at paragraph [123] that the application is incomplete and uncertain and on that basis the Court cannot grant consent.
7. A separate consideration in determining whether the proposed deferred commencement condition is appropriate is whether it results in the deferral of essential matters (Weal v Bathurst City Council & Anor [2000] NSWCA 88).
8. The subject building is a listed heritage item. Clause 5.10(4) of LEP 2011 requires the consent authority to consider the effect of the proposed development on the heritage significance of the item The Heritage Impact Assessment (Exhibit B) prepared as part of the application details a proposed statement of significance for the item. This assessment concludes, in part, that a component of the items significance is its aesthetic significance (Criterion C).
9. I accept the evidence of Mr Wallace that the extent of replacement of external windows to achieve the Rw rating is unknown and therefore unable to be assessed. I note that Mr White makes it clear that the whole window assembly must achieve the Rw rating, including the frame. If the heritage frames are unable to achieve the required acoustic performance this may make the proposed option 2 moot. Given the uncertainty it is not possible to assess the impacts of any works on the significance of the Grand Hotel or confirm the acoustic performance can be achieved. Such an assessment are essential matters for this application and should not be done post consent.
10. On the basis of the evidence before the Court, and following consideration of the submissions, I am not satisfied that it is appropriate to defer certainty of the impact on heritage fabric, or the verification of the acoustic performance of the development, and allow these matters to be satisfied post determination. I find that there is insufficient evidence for the experts to undertake that assessment and that the deferred commencement condition would inappropriately defer this essential assessment post consent.
11. Given the above finding it is reasonable to consider whether it is appropriate for the Court to make directions to allow the applicant to complete the scope of work required by the deferred commencement conditions. Mr Clay makes the following argument against this approach: An element of the "amber light" approach is that the Court is to set out the changes that are required to render the proposal acceptable. Here the position is different. Here the Court cannot prescribe the changes that are required to render the proposal acceptable. It simply does not know. It is an inappropriate use of the "amber light" approach to allow the Applicant to have its heritage expert conduct an investigation, produce evidence and plans for consideration by Council before coming back to the Court for a final determination. It is beyond the scope of the "amber light" approach. It should be noted that this present circumstances which has arisen during the ordinary course of the litigation and the hearing. (Respondent's submissions)
12. In the alternative the Applicant argues that there is 'nothing to prevent the Court from requiring plans which address the glazing condition drafted by the heritage experts, if it so wishes'. Mr O'Gorman Hughes relies on Ali v Liverpool City Council [2009] NSWLEC 1327, at [120]; Ku-ring-gai Council v Bunnings Properties Pty Ltd (No. 2) [2018] NSWLEC 19 at [60-72] to argue that directions are an appropriate approach as the amendments are minor and identifiable (Applicant's submissions).
13. I accept the submission of Mr Clay that it is inappropriate to pursue an "amber light" approach in this matter as the Court is unable to prescribe with clarity the changes that would render the proposal acceptable. Further I am satisfied it is not appropriate as the outcome of the condition is unclear given the need to coordinate expertise across at least heritage and acoustic expertise. In addition given my findings at [paragraph 152 &157] satisfaction of the condition in an amber light approach may not be sufficient to render the application acceptable.

Is the variation to the parking standard and the reliance on street parking for the proposed Hotel acceptable?

1. The principal assessment of the parking demand and its impact on on-street parking is provided at paragraphs [71] to [78].
2. I note it is accepted by Council that the adverse impact of the on-street parking is not pressed as a reason for refusal given the benefits of the heritage works proposed.
3. In the joint report of the traffic consultants Mr Rogers notes that: TR notes that no updated parking or hotel patronage surveys were undertaken by the applicant as requested by Council in the Amended SOFC. The updated surveys were requested as the supplementary parking analysis undertaken by the ASON group (as set out in the report dated October 2017) was based on parking/patronage surveys undertaken in June (a quiet trading period for the hotel and area) with some adjustment for peak periods based on limited data for December. Thus it is TR's view that any assessment based on this information is on limited value and may not appropriately reflect conditions for assessing the parking requirements for the hotel. (Exhibit 6)
4. Mr O'Gorman Hughes submits that the assessment of parking demand is relevantly assessed against the maximum patronage number proposed by the POM - 450 patrons. Further he argues it is appropriate for the DCP 2012 requirement for onsite parking to be varied consistent with the following controls: 1. C11 An existing building altered, extended, remodelled with or without land use, may be required to comply wholly or partly with the provisions of this plan. In these cases the Council shall determine the extent of the parking provisions required in each case… 2. C12 Where in the opinion of Council conditions are such as to render impracticable compliance in full with the provisions of this plan, the Council may permit such departures as in the Council's opinion the circumstances warrant.

Findings

1. Notwithstanding the absence of evidence on hotel patronage numbers in the summer season, an estimate of parking demand has been formulated by the Mr Rogers based on a seasonally adjusted multiplier of "1.85 for patrons based on the hotel sales figures and multiplier of 1.36 for parking based on the limited Council parking data". (Exhibit 6)
2. As noted at paragraph [76], utilising this analysis the hotel use is projected to: occupy 60-70% of on street parking at 7pm on a Saturday in June or December and; on a Saturday lunchtime in the same months, there is insufficient on-street parking to accommodate patrons of the Hotel.
3. The modelling demonstrates a high proportion of on-street parking is occupied by the Hotel. I accept the evidence of Mr Rogers that given the material nature of the quantum of on-street parking demand the Applicant has provided insufficient data to undertake a complete assessment of the impacts of the development. I am satisfied that it is appropriate that the capacity of the locality to absorb the on-street parking required to service the use at the busiest time of the year is certain.
4. I accept the submission of Mr O'Gorman Hughes that the application of C11 and C12 are relevant to the application. However I accept the evidence of Mr Rogers and find that the applicant has provided insufficient evidence and data to determine with certainty the likely impacts of the development (s4.15(b) of the Act). I am satisfied this is analysis is necessary to determine if a variation foreshadowed by these controls is warranted.
5. In my assessment I have given weight to the objectives of the B2 Local Centre zone, in particular the objective to "provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area".
6. I am not satisfied the applicant has provide sufficient consideration to the means of mitigating its offsite impacts on the locality to ensure reasonable accessibility to on-street parking for other local enterprises and that this is a relevant consideration given the proportion of on-street parking occupies and the objectives of the zone (s4.15(e) of the Act).

Conclusion

1. The Court heard submissions from adjoining owners raising concern that the proposed development will impact on the existing ROW that benefits the adjoining properties. Given my findings that the application warrants refusal there is no necessity to make a finding regarding this issue.
2. The Court provided a number of short adjournments to assist in facilitating the production of further expert evidence to address the shortfall in acoustic modelling identified by Councils Acoustic expert and the amended plans. As a result evidence produced during the hearing was provided in a piecemeal manner, largely reactive to the concerns expressed by the respondent's experts. This has resulted in a lack of coordination and material areas of uncertainty within the proposed development.
3. This is particularly the case in relation to achievement of the required acoustic performance. The promise of the acoustic performance being achieved in the future on a plan of works which has not been detailed is not sufficient to enable me to approve of the application before the Court.
4. Whilst these matters may be ultimately able to be addressed by detailed design and coordination of the competing requirements of the proposed development; it is not appropriate to grant consent to the current application.
5. For the preceding reasons I am satisfied that the proposed development warrants refusal.

Orders:

1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans; 2. The objection pursuant to cl. 4.6 of the Kiama Local Environmental Plan 2011 to vary the maximum height is sustained; 3. The objection pursuant to cl. 4.6 of the Kiama Local Environmental Plan 2011 to vary the maximum floor space ratio is sustained; 4. The appeal is dismissed; 5. Development application DA 10.2016.243.1 for: alterations and additions to the existing Grand Hotel at Kiama; demolition of the existing beer garden and single storey dwelling at 31 Bong Bong Street; and erection of a four storey building on 31 Bong Bong Street containing guest accommodation connected to the existing Hotel at 49 Manning Street; Kiama is refused. 6. The exhibits are returned with the exception of exhibits B and 1. ……………. D M Dickson Commissioner of the Court

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