Norman McDonald & Anor v Central Coast Council

The site and its context

1. The site consists of two lots, Lot 140 DP 9359 and Lot 651 DP 16791, on the northern side of Burns Street, Avoca Beach, between Avoca Drive and Vale Street, with a total site area of 1802.1sqm. Hunter Park is on the northern side of the site.
2. The western lot contains the existing Avoca Beach Theatre and ancillary structures, constructed in 1951 and the eastern lot contains a weatherboard cottage.
3. The site is located within a natural amphitheatre at the base of a steep escarpment and it is visible from a number of locations in the area.
4. The site is located within a coastal township, adjoining low and medium density residential development, open space and commercial development to the north and adjacent to the beach.

The proposal

1. The proposal comprises the demolition of an existing cottage and ancillary buildings; retention of the existing cinema building including the interiors; and construction of a three level building containing basement car parking for 14 vehicles, three additional cinemas (cinema 2: 196 seats; cinema 3: 31 seats, cinema 4: 71 seats, exhibit F), foyer, café, amenities and five 3 bedroom residential units.

Planning framework

1. State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71) is a relevant consideration as approximately 20sqm of the site in the north-eastern corner is located within the 100m high water mark of Avoca Beach (exhibit E, volume 2, f 260).
2. SEPP 71 includes the following aim: (k) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area
3. The relevant matters for consideration, at cl 8 of SEPP 71, are: (d) the suitability of development given its type, location and design and its relationship with the surrounding area, (f) the scenic qualities of the New South Wales coast, and means to protect and improve these qualities,
4. The Coastal Design Guidelines for NSW (exhibit G) includes the following relevant guidelines for appropriate buildings in a coastal context: 2. Reinforce the clarity of the settlement structure with new buildings that are appropriate in terms of location, uses, scale, height and site configuration. 4. Consider the appropriateness of new buildings within the whole streetscape, rather than each building as a stand-alone object. 6. Ensure buildings address the street by providing direct and on-grade entries to the street for residential, commercial and retail purposes.
5. Gosford Council Local Environment Plan 2014 (LEP 2014) contains a savings provision, at cl 1.8A, for development applications made before the commencement of the plan and not finally determined. The development application was lodged in 2012, before the commencement of LEP 2014.
6. The site is zoned 2(f) Residential (Beach Frontage) pursuant to the Gosford Planning Scheme Ordinance (GPSO). The proposal is not permissible in the zone, however, it is permissible pursuant to an enabling clause in the GPSO at cl 49DN, inserted by the making of Gosford Local Environment Plan No 456 (LEP 456) on 12 October 2007. Clause 49DN is as follows: 49DN Avoca Beach Theatre (1) This clause applies to Lot 140, DP 9359 and Lot 651, DP 16791, Avoca Drive, Avoca Beach, as shown edged heavy black on the map marked "Gosford Local Environmental Plan No 456" deposited in the office of the Council. (2) Development may, with development consent, be carried out on land to which this clause applies for the purpose of a residential flat building, a place of assembly, an art gallery or a restaurant. (3) The maximum floor space ratio for the land to which this clause applies is 1:1. (4) The maximum height for a building erected on the land to which this clause applies is 10 metres, except as provided by subclause (5). (5) The consent authority may consent to development that exceeds the maximum height specified in subclause (4) if it is satisfied that any part of a building that is to exceed the maximum height: (a) is to be used for cinema or theatre purposes, and (b) is an integral part of the design of the building. (6) Strata subdivision is permissible, with development consent, on the land to which this clause applies. (7) The consent authority must not grant development consent to development on land to which this plan applies: (a) unless the development application has been referred for assessment to an Independent Design Review Panel appointed in consultation with the Director-General of the Department of Planning, and (b) except with the concurrence of the Director-General. (8) The consent authority must not grant development consent to development on land to which this plan applies unless it has taken into consideration the following: (a) the assessment of the Independent Design Review Panel of the development application, (b) whether the proposed development retains the existing theatre building, (c) whether the design of the proposed development complements the heritage qualities of the existing theatre building, (d) whether the proposed development provides a high standard of urban design and architectural quality, including the interface between the development and the adjoining public park, (e) whether the design of the proposed development is appropriate for the location of the land in the coastal zone, (f) whether adequate car parking is provided, (g) whether the proposed development provides measures to conserve water usage and to increase water efficiency. (9) Before granting concurrence under this clause, the Director-General must consider the assessment of the Independent Design Review Panel in relation to the following: (a) whether the proposed development retains the existing theatre building, (b) whether the design of the proposed development complements the heritage qualities of the existing theatre building, (c) whether the proposed development provides a high standard of urban design and architectural quality, including the interface between the development and the adjoining public park, (d) whether the design of the proposed development is appropriate for the location of the land in the coastal zone. (10) The consent authority is not required to comply with subclauses (7) and (8) (a) if the Director-General certifies in writing that the development is of minor significance. (11) This clause has effect despite any other provisions of this Ordinance. (12) In this clause: coastal zone has the same meaning as in the Coastal Protection Act 1979.
7. The Director-General's concurrence to the development application was given on 22 January 2014 (exhibit E, volume 2, ff 299-300). Notwithstanding this, the parties agreed that the Court has power to grant consent pursuant to s 39(2) of the LEC Act.
8. The following relevant definitions are included in the GPSO: "Place of assembly" means a public hall, theatre, cinema, music hall, concert hall, dance hall, drive in theatre, open air theatre, music bowl or any other building of a like character used as such and whether used for the purposes of gain or not, but does not include a place of public worship, an institution or an educational establishment. "Shop" means a building or place used for the purpose of selling, exposing or offering for sale by retail, goods, merchandise or materials, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere defined in this clause.
9. The following mandatory considerations are included in the GPSO, at cl 10(3): (3) The Council must not grant consent for development on land within a zone unless it has taken into consideration the objectives of the zone and the consistency of that development within those objectives as well as the objectives of the Local Government Act 1993 relating to ecologically sustainable development. (4) The Council must not grant consent for development unless it has taken into consideration the character of the development site and the surrounding area, where, for the purpose of this provision, character means the qualities that distinguish each area and the individual properties located within that area.
10. The aims of LEP 456 are: (a) to enable the land to which this plan applies to be developed for a mixed-use commercial and residential development, and (b) to ensure that any future development of that land retains the existing Avoca Beach theatre building, and (c) to provide for the establishment of an independent panel to provide advice to the consent authority about development applications relating to the land.
11. Clause 2 of LEP 456 removes the following matter from the table to cl 49E in the GPSO: Part Lot 140, D.P. 9359, Avoca Drive, Avoca Beach, as shown edged heavy black on the map marked "Gosford Local Environmental Plan No. 388" deposited in the office of the Council Outdoor cinema

1. The site is zoned R2 pursuant to LEP 2014. The objectives of the R2 zone are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that development is compatible with the desired future character of the zone. • To encourage best practice in the design of low-density residential development. • To promote ecologically, socially and economically sustainable development and the need for, and value of, biodiversity in Gosford. • To ensure that non-residential land uses do not adversely affect residential amenity or place demands on services beyond the level reasonably required for low-density housing.
2. The proposal is not permissible in the zone, however, it is permissible pursuant to an enabling clause in LEP 2014 at cl 2.5, as follows: 2.5 Additional permitted uses for particular land (1) Development on particular land that is described or referred to in Schedule 1 may be carried out: (a) with development consent, or (b) if the Schedule so provides - without development consent, in accordance with the conditions (if any) specified in that Schedule in relation to that development. (2) This clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan. Schedule 1 Additional permitted uses (Clause 2.5) 1 Use of certain land at Avoca Drive, Avoca Beach (1) This clause applies to land at Avoca Drive, Avoca Beach, being Lot 140, DP 9359, and Lot 651, DP 16791, identified as "Avoca Beach Theatre" on the Additional Permitted Uses Map. (2) Development for the purposes of a residential flat building, an entertainment facility, an information and education facility and a restaurant or cafe is permitted with development consent. (3) Development for the purposes of an entertainment facility may exceed the maximum height shown for the land on the Height of Buildings Map if the consent authority is satisfied that any part of the building that exceeds that height is an integral part of the design of the building in its context. (4) Development consent must not be granted to development on land to which this clause applies unless: (a) the design of the building or alteration has been reviewed by a design review panel, and (b) the concurrence of the Director-General has been obtained.
3. Development Control Plan No 111 (DCP 111) applies to the proposal. The purpose of the DCP 111 at 1.3 is to ensure that sufficient, well designed on-site parking provisions are made in all new developments and when changes occur to the existing use/developments and when changes occur to existing developments. The development standards in DCP 111 are guidelines assumed to meet the objectives of an element, at 1.5. Where in the opinion of Council, an application satisfies the objectives set out in this plan, Council may grant consent to the application notwithstanding that one or more of the development standards are not complied with.
4. The relevant objective of DCP 111 is to provide parking facilities which are convenient and sufficient for the use of service groups, employees and visitors, at 1.6(c) of DCP 111.
5. In determining the car parking requirements for a development proposal, the following principles shall be followed, at 2.1 of DCP 111: 1. The minimum standards as set out in this plan; 2. The likely demand for on-site parking to be generated by the development; 3. The availability of public transport in the vicinity to service the likely demands to be generated by the development; 4. Traffic volumes on the surrounding street network, including, where relevant, likely future traffic volumes; 5. The probable mode of transport of the users of the development; 6. The likely peak usage times of the development.
6. At 2.2 Variations and Compliance of DCP 111, on-site parking will be required in accordance with the standards of the plan except where good cause can be shown as to why strict compliance is unnecessary and requests for variation must be supported by evidence. A separate calculation is to be made for developments incorporating different categories of uses, at 2.3 of DCP 111.
7. The Council submits that the proposal is closest to the description in 2.3.2 of DCP 111, an existing building to be replaced by a new building and car parking is to be calculated for the new building area and use.
8. The applicant submits that the proposal is in fact a renovation of an existing building, at 2.5, where nothing in the plan requires the provision of additional parking where an existing building is being renovated for this existing use. The applicant submits that embedded in DCP 111 is the concept of a cash contribution in lieu of the provision of some or all of the parking being provided on-site in a commercial centre, at 2.6.

Public submissions

1. Seven residents provided evidence at the commencement of the hearing on-site, three objecting to the proposal and four in support of the proposal. Those providing evidence were selected from a very large group of local residents in attendance at the commencement of the hearing on-site. The evidence objecting to the proposal can be summarised as:

• The proposal is an over development of the site;
• The height of the proposal is inconsistent with the established character of the southern end of Avoca Beach;
• The proposal will exacerbate the parking shortfall in the vicinity of the site;
• The intersection of Avoca Drive and Burns Street is dangerous and the mixed use development will result in more service vehicles and patrons using this intersection;
• A single theatre is appropriate for the location and a multi-theatre complex is inappropriate;
• The proposal will detrimentally impact on the heritage significance of the Avoca Beach Theatre.

1. The objection raised by a resident objector regarding the possibility of church services being held at the Avoca Beach Theatre is not made out, as a 'place of assembly' as defined by the GSPO does not permit the development to be used as a place of public worship.
2. The evidence in support of the proposal can be summarised as:

• The Avoca Beach Theatre provides an important venue for the local community to meet;
• The Avoca Beach Theatre is an arts venue which shows the latest films as well as live theatre and performances;
• The continued viability of the Avoca Beach Theatre is dependent on the proposal.

1. Council tendered 21 folders of submissions made by resident objectors in relation to the proposal originally notified by the Council. The objections to this earlier iteration of the proposal can be summarised as (exhibit 3, volume 7, f 2737):

• The mixed use development is not permissible as only one use may be approved from the four listed uses in cl 49DN of GPSO;
• The development does not comply with the objectives of the GPSO;
• The development does not comply with the requirements for height, FSR, heritage quality, parking, urban design, disabled access and measures to conserve water usage;
• Church services and religious conventions may be proposed;
• Storage areas should be reconfigured as part of a redesign incorporating sufficient on-site parking;
• No proposed strata or consolidation of lots is proposed;
• The Statement of Environmental Effects is insufficient.

Expert evidence

1. The Council relied on the expert evidence of Ms Jennifer Hill (heritage), Mr Drew Bewsher (flood engineering) and Mr Graham Pindar (traffic and parking).
2. The applicant relied on the expert evidence of Mr Robert Staas (heritage), Dr Daniel Martens (flood engineering) and Mr Tim Rogers (traffic and parking).

Impact of the proposal on the heritage qualities of the Avoca Beach Theatre

1. The Council contends that the proposal will have an adverse impact on the heritage character and qualities of the Avoca Beach Theatre. Clause 49DN(8) of GPSO requires that the consent authority must not grant development consent to development on land to which the plan applies unless it has taken into consideration whether the design of the proposed development complements the heritage qualities of the existing theatre building.
2. The heritage experts agreed on the following:

• The continued association of the Avoca Beach Theatre with members of the Hunter family is a positive heritage outcome in relation to the identified historic associations of the place;
• The proposal will, by virtue of its continued use, reinforce the historic associations and social significance of the site as a local cinema owned and operated by members of the Hunter family and will remain an important focus of social activity in the town, meeting the requirements of the planning instruments. In this regard, there will be no loss of historical associations, continued use or social regard within the community;
• The construction and structure of the original Avoca Beach Theatre building has low potential for yielding any significant cultural or technical evidence that is not readily available elsewhere;
• The current linear parapet is a later reconstruction of the original stepped parapet;
• The ventilation openings to either side of the theatre have been infilled;
• The current 'Art Deco' style doors to the cinema foyer are not an original decorative feature of the original building, but replaced earlier doors;
• The original entry foyer has been enlarged by the removal of walls partitioning off commercial tenancies that were part of the original construction and operation of the place;
• The extended awning, timber stair, deck and roof addition fronting Hunter Park are later modifications of the original building with no particular heritage significance;
• The principal view to the original Avoca Beach Theatre is the diagonal view along Avoca Drive (prominent location on a major intersection);
• Hunter Park was established in 1974 by the removal of a number of substantial houses;
• There are no listed heritage items or conservation areas at Avoca Beach;
• At the time of construction, the Avoca Beach Theatre was located within a context of single storey housing and views were only available above the houses, as evident in the 1954 photo;
• Since the establishment of Hunter Park wider views of Avoca Beach Theatre have been available;
• The original simplified vernacular form of the theatre is retained;
• The original elevation of the Avoca Beach Theatre is retained to Burns Road and at the intersection of Avoca Drive;
• The existing public entry to the theatre is generally retained;
• The existing public entry to the theatre, its awning and the foyer are retained substantially intact;
• The interiors of the building are of little aesthetic significance and there is little original fabric remaining, notwithstanding this, the internal character of the existing theatre is generally retained by the proposal;
• Demolition of the other structures on the lot adjoining the subject site, being a cottage, a shed and an outbuilding do not impact on the heritage significance to the values identified for the Avoca Beach Theatre;
• The new development retains a substantial outdoor area for film viewing that interprets the early history of the undertaking commenced by the original owners in Cliff Avenue.

1. The heritage experts disagreed on the visual impact of the proposal on the Avoca Beach Theatre.
2. According to Ms Hill, the design of the proposal does not respond to the aesthetic heritage values of the existing building, as it is not compatible with the scale and simplicity of the existing Avoca Beach Theatre. In her view, the scale of the proposed entry foyer to the northern face of the existing building, which includes stair access to the new cinemas and upstairs foyer, obscures the simple form of the Avoca Beach Theatre and does not provide adequate separation to the heritage item. It should respond to the existing low scale character of the original, as a grand foyer is not necessary. Views from Vine Street and Hunter Park will be substantially altered by the proposed new development, as the proposal for substantial additions to the rear of the existing building and on the northern side extending onto the adjoining site will impact on the heritage qualities of the existing building. In Ms Hill's opinion, the social value of the Avoca Beach Theatre is embodied in the building.
3. According to Mr Staas, the design of the proposal has appropriately responded to the limited aesthetic heritage values of the existing building and maintains its prominence when viewed from the primary viewing location at the intersection in a manner that is appropriate for its level of cultural significance. In his view, it is not necessary for the new design to relate specifically to the 'simple vernacular form' of the theatre in circumstances where this is not identified as being of any heritage value. The principal values of the place have been clearly identified as historical and social rather than aesthetic. Mr Staas does not consider that the view from Hunter Park of the existing building is an essential part of any historic setting associated with the Avoca Beach Theatre or that it was intended to be seen from that location. The scale of development permissible under the amending LEP 456 envisaged that the stand-alone character of the existing building would not be retained.
4. On 9 March 2015, the then Minister for Planning made an Interim Heritage Order (IHO) under s 24 of the Heritage Act 1977 over the property known as "Avoca Beach Cinema" at 69 Avoca Drive, Avoca Beach (exhibit E, volume 2, f 303). On 9 March 2016 the IHO over the property expired. A letter from the Hon. Mark Speakman MP, Minister for Heritage to the Council, dated 24 February 2016, relevantly includes the following in relation to the IHO (exhibit E, volume 2, ff 351-352): On the Heritage Council's recommendation, IHO 127 was made over the Avoca Beach Theatre for a period of 12 months commencing 9 March 2015. This was to allow time for an investigation of the theatre's potential local heritage significance. The theatre had been nominated for listing on the State Heritage Register (SHR) in 2013 but the Heritage Council's State Heritage Register Committee found that the theatre was not of state significance and recommended that the SHR nomination should not proceed.
5. The letter also confirms that the Avoca Beach Theatre was included in the Community Based Heritage Study for Gosford City Council. The Gosford Heritage Inventory sheet dated 23 June 2015 for the Avoca Beach Theatre includes the following statement of significance (no author noted) (exhibit E, volume 2, f 343): Significant to the historical development of Avoca Beach, the building and function are highly valued by the local community of Avoca Beach and surrounds, as an early place of entertainment and the theatre is prominently located on a major street junction, complementing the streetscape with the traditional but rudimentary façade, functional awning and decorative elevation.

Parking requirements

1. The proposal includes 14 car parking spaces in the basement; 9 for the residential apartments and 5 for the cinema use.
2. The Council contends that the table in cl 3.2 of DCP 111 provides for the following car parking requirements and the shortfall in car parking spaces on-site is 33 spaces: Element Parking Rate Area Required Proposed Cinemas 1 per 10 seats 317 new seats 32 5 Foyer Ancillary use - 0 0 Café/terrace 1/16sqm 90sqm 6 0 Residential units 1.5 per unit 5 units 8 8 Residential visitors 0.2 per unit 5 units 1 1

1. The parties agree that the existing cinema has 296 seats and the Council has calculated the parking requirements based on the number of additional seats in the three new cinemas. (I note that the plans in exhibit F list the maximum occupancy of the three new theatres as a total of 298 seats, which result in 30 parking spaces being required for the cinemas, and existing cinema 1 as 315 seats).
2. The applicant contends that the table should be as follows: Element Parking Rate Area Required Proposed Cinemas 1 per 10 seats 113 new seats 12 5 Foyer Ancillary use - 0 0 Café/terrace 1/16sqm 90sqm 0 0 Residential units 1.5 per unit 5 units 8 8 Residential visitors 0.2 per unit 5 units 1 1

1. According to the applicant's Statement of Facts and Contentions in Reply (exhibit B), the net increase in cinema seats is 113 as the existing consent is for 500 seats (exhibit E, volume 3, f 586) and the net increase reflects the total number of seats in excess of the approved 500. The applicant contends that there is an existing approved café, so the new café should not be required to provide additional car parking spaces. The applicant submits that the total requirement for on-site car parking under DCCP 111 is 21 spaces; which is satisfied by the 14 spaces provided and the 29 spaces allowed for in the terms of the VPA, giving a surplus of 22 spaces.
2. The traffic experts agreed on the following:

• The recent traffic surveys (exhibit 5, attachment 2) commissioned by the applicant demonstrate that the maximum 33 space deficiency from the expanded cinemas under Mr Roger's assumptions can be accommodated either on-street or within the nearby car parks outside the summer school holiday period. If this maximum demand were to occur, it would rely mainly on the car spaces within the extended South Park car park during the day. At night, the on-street parking and adjacent car parks have ample capacity to accommodate the cinema parking demands. This resolves the parking issue for all times outside of summer school holiday periods.
• The additional surveys (exhibit 6, attachments) undertaken after the first joint report by the experts demonstrate that there is ample spare parking capacity within the areas surveyed on Saturdays during the summer school holiday period, such that the expanded cinema demands can be readily met.
• The additional Sunday surveys show a high parking utilisation associated mainly with beach activity prior to 4pm. At peak times, demand overspills into informal parking areas, not previously expected to be relied upon, by beach patrons. The overspill effect is not significant in the context of the analysis. There remains unused on-street parking during the peak demand period, which could be utilised by cinema patrons.
• The requirement for 33 car parking spaces in the vicinity of the proposal is a worst case scenario at times of highest demand for the proposal and consistent with the requirements of DCP 111. The experts agreed that cinema occupancy was not used to assess parking requirements.
• The Vine Street car park is likely to be used by cinema patrons during the evening when there is ample spare capacity in the car park and cinema demand is at its highest. The experts agreed that 40% - 60% of the 33 car parking spaces will be accommodated by the Vine Street car park during the evenings.
• The available parking spaces in the public domain in the vicinity of the proposal satisfy Council's identified short fall of 33 parking spaces, subject to constraining the capacity of the cinemas to 75% before 4pm on Sundays during summer. There is sufficient parking available in the vicinity of the site to accommodate the demands of a 75% maximum occupancy of the proposal at the peak Sunday summer times during the early afternoon.

1. Mr Roger's agreement that the 33 car parking spaces are available in the vicinity of the site at the times of high demand is based on an understanding that the relevant terms in the VPA cannot be relied upon.
2. The experts disagreed on whether the calculation of additional cinema seats should be based on the existing approval for 500 seats or the actual number of 296 seats in the existing cinema. I prefer Mr Roger's assumption because the proposal is for an intensification of the existing use and the number of additional new seats in cinemas 2, 3 and 4 is a total of 298 (exhibit F). I do not accept that the currently unused capacity within the existing consent for 500 seats in cinema 1 can be credited towards the proposed seats in additional and new cinemas; because the proposal is likely to attract more patrons when different films are being shown in the three new cinemas than it would with those 500 seats accommodated in cinema 1 at a single film showing. However, nothing turns on this finding, as the agreement of the traffic experts is based on the Council's calculation of the shortfall of 33 car parking spaces required.
3. I accept Council's version of the car parking requirements for the site based on DCP 111 and consequently I accept that the proposal has a shortfall of 33 car parking spaces. I do not accept the applicant's submission that the proposal is a renovation under 2.5 of DCP 111, as the proposal is for the intensification of the cinema use as part of a mixed use development. I accept Council's submission that the car park works envisaged by the VPA do not add any additional car parking spaces to the South End car park. I accept the agreement of the experts that the shortfall of 33 car parking spaces can be accommodated in the public domain, within the vicinity of the proposal, by utilising the existing available capacity of the existing South End car park, the Vine Street car park and the on-street car parking, at all times other than Sundays during the summer school holiday period before 4pm.
4. I accept the agreement of the experts that a condition be imposed on the consent to limit the patronage of the cinema component of the proposal to 75% on Sundays during summer school holidays before 4pm. The parties are to agree on a suitable and enforceable mechanism for imposing the limitation, to be included in condition 6.12. I accept the agreement of the parties to a trial period without the limitation during the first school summer holidays with a requirement for a parking assessment to be carried out.

The VPA

1. The Council contends that in taking into consideration the terms of the VPA in accordance with s 79C(1)(a)(iiia) of the EPA Act, the VPA be given no weight in the determination of the development application, where the applicant seeks to rely on it for the satisfaction of the parking requirement. It is the Council's submission the rezoning of the site as a result of the VPA is a substantial benefit already obtained by the applicant.
2. The original Deed of Agreement was made on 15th September, 2006 and amended by a Deed of Agreement made 22 January 2007 (collectively 'the VPA'). The relevant terms of the VPA provide for the following:

• The Council to forward a Draft Local Environmental Plan (DLEP) to the Department of Planning with a request for the Minister to make to the plan. The purpose of the DLEP is "to seek to change the [GPSO] to permit a particular development (which would otherwise be prohibited under the current zoning of the Land in the deemed Environmental Planning Instrument) to be carried out on the Land which incorporates the existing Avoca Beach Theatre; it consists of two new cinemas, a cultural gallery, a restaurant, 5 residential units and basement parking for 15 cars and a loading dock and associated works." (Recital D, VPA, volume 3 of exhibit E, f 451).
• The payment of a monetary contribution by the Developer in the amount of $500,000 for the public purpose of the provision of public amenities; "the construction and enhancement of car parking facilities near the development in South End Park, Avoca" and "the embellishment and beautification of the adjoining public open space known as Hunter Park, Avoca, as depicted on the plan annexed hereto" (the 'car park and embellishment works') (Recital E, VPA, Vol 3 of exhibit E, f 451). "The owners have volunteered $500,000 to Council for the embellishment of Hunter Park and provision of required (29) parking spaces in South End Park as well as the dedication of land 1.2m wide along the Vine Street frontage." (Recital F(E), VPA, volume 3 of exhibit E, f 453).
• Council amended the DLEP prior to the VPA to require the proposed building to be setback 0.6m from the Avoca Drive boundary to retain the prominence of the north western corner in the existing cinema and to exhibit a clear visual differentiation between the existing cinema (Recital F(B), VPA, volume 3 of exhibit E, f 452).
• The Council agrees to expend within a period of 3 years of payment by the applicant of the sum of $500,000 upon the car park and embellishment works; $300,000 on the embellishment works and $200,000 on the carpark. If the sum or any portion of the sum is not spent within that period, the Council will return it or that portion to the Applicant whereupon the outstanding obligations of both parties under this agreement will be at an end (VPA, volume 3 of exhibit E, f 454).
• The applicant agrees that on the grant of a development consent by a consent authority for the carrying out of any development permitted by the LEP as amended by the DLEP, then prior to the issue of a Construction Certificate for that development, to pay the sum of $500,000; to consolidate the lots comprising the land; to dedicate to Council the 1.2m strip along Vine Street; and in lieu of s 94 contributions the applicant is to pay Council $10,296 for the provision of public amenities by Council (as increased by CPI) (VPA, volume 3 of exhibit E, f 455).
• The agreement excludes the application of ss 94 and 94A of the EPA Act to any development permitted by the DLEP (VPA, volume 3 of exhibit E, f 455).
• The amendment to the VPA made on 22 January 2007 added a term that "the obligations under the preceding paragraphs of this Deed shall remains binding between the parties in the event of the Minister deciding to gazette a LEP which takes a different form to that included within Annexure A, but maintains the intent and does not unduly disadvantage the parties."

1. Council accepts that it is bound by the VPA and is obliged to comply with the terms of the VPA upon the grant of development consent for the carrying out of development permitted by the amended GPSO. Council's contention is that the terms of the VPA regarding the car park works should be given no weight in the assessment of the short fall in car parking provided by the proposal.
2. The terms of the VPA regarding parking are that the "owners have volunteered $500,000 to Council for the provision of required (29) parking spaces in South End Park" (Recital F(E), VPA, volume 3 of exhibit E, f 453). The applicant contends that the VPA was publicly exhibited and then entered into by Council and the applicants, and the applicants have relied upon the terms of the VPA in the preparation of the development application now before the Court.
3. The Council contends that the provision of 29 car parking spaces in the South End car park should not be relied on by the proposal for the following reasons:

• The development application should be refused because inadequate car parking is provided for the proposed development;
• The car park is an existing car park and the sealing and marking of car parking spaces will simply formalise the parking and not augment the current capacity of the car park;
• The VPA sought to change the relevant environmental planning instrument, with benefits to be provided only if consent was granted in accordance with the specific permissible use provided for in the amending LEP.456. The development application should be assessed in accordance with the matters for consideration in s 79C of the EPA Act and it cannot be assumed that the benefits provided for in the VPA will be realised. In the alternative, any benefits arising from the VPA do not outweigh the detrimental impact of the short fall in parking provided by the proposal;
• The benefits provided for in the VPA are unlikely to be realised in the 3 year timeframe imposed by the VPA. It is 10 years since the VPA was made by the parties, and the evolution of the projects the subject of the car park and the embellishment works referred to in the VPA has resulted in significant constraints to Council's ability to spend the funds on actual works as described by the VPA within 3 years;
• The works to Hunter Park are now subject to a detailed plan for construction and not the landscape concept plan attached to the VPA (exhibit E, volume 3, f 470 and exhibit 10);
• At the time of making the VPA, Council was unaware of the extent of works required prior to being able to seal and mark the car parking spaces in the South End car park. It is now clear that the car park works are dependent on significant drainage works being carried out including raising the level of the South End car park, and according to the evidence of Mr Metcalf, the drainage works are most likely unachievable within 3 years (exhibit 9).

1. I accept Council's submission that in taking into consideration the provision of the VPA in the determination of the development application, in accordance with s 79C(1)(a)(iiia) of the EPA Act, the terms of the VPA regarding the provision of 29 car spaces to be sealed and marked in the South End car park be given no weight. It is Council's position, evidenced in the affidavits of Council staff (exhibits 9 and 10), that there is a real likelihood that the works contemplated by the VPA are unachievable in the 3 year timeframe imposed by the VPA and that the works to embellish Hunter Park are no longer consistent with the agreed concept plan, and I accept Council's submission that it is likely that the benefits provided for in the VPA will not be realised. If the money is not spent according to the agreement and in the specified time frame, the VPA provides for the return of the funds, or unspent portion of the funds, to the applicant. I do note, however, that Council undoubtedly had significant bargaining power in negotiating the terms of the VPA and so the traditional principle of freedom of contract suggests that as Council evidently agreed to the imposition of the time frame for spending the funds in the agreement, it is simply a matter for Council whether it manages to do so or not. This observation, however, has no bearing on the appeal, because I have not given the terms of the VPA weight in determining the contention regarding a shortfall in the provision of parking on-site and have instead based my findings on the agreed evidence of the traffic experts; nor have I assumed that the embellishment works to Hunter Park will be realised.

Findings

1. Much of the objector evidence and the written submissions can be distinguished as objections to the amending LEP 456, which on its making inserted cl 49DN into the GPSO. The exhibition of the (then proposed) VPA, from 19 July 2006 until 16 August 2006 attracted 518 submissions against the VPA (and 2 in support) and Council, confronted with that opposition, resolved to execute the VPA (exhibit E, volume 3, f 435) and did so. The insertion of cl 49DN into the GPSO is merely a historical matter from the perspective of this appeal and I am bound to give weight to the fact that the application is to use the site for the specific permitted purpose for which it is zoned (BGP Properties v Lake Macquarie (2004) 138 LGERA 237 [117]). The relatively recent making of LEP 2014, including extensive community consultation, contains the enabling clause at 2.5 demonstrating that Council has recently looked again at the potential development of this site and confirmed that the permitted use is appropriate, subject to the considerations in Schedule 1(5) of LEP 2014 (BGP Properties v Lake Macquarie (2004) 138 LGERA 237 [119]). Importantly though, the zoning does not create a presumption that the use will necessarily be achieved; as the acceptability of the proposal depends on whether the design results in acceptable environmental impacts with reference to the matters for consideration under s 79C of the EPA Act.
2. I am satisfied that the proposal is consistent with the development envisaged by cl 49DN of the GPSO, as the proposal complies with the provisions of cl 49DN of the GPSO, including the maximum floor space ratio (FSR) of 1:1 and height of 10m, except as provided by sub-clause (5). The two merits contentions raised by the Council in this appeal, that the development application should be refused because the proposed development will have an adverse impact on the heritage character and qualities of the Avoca Beach Theatre and that inadequate car parking is provided for the proposed development, have not been made out, for the reasons given in the judgment.
3. I am satisfied that the design of the proposal, by Artichoke Design Studios, provides a high standard of urban design and architectural quality, including the interface between the existing building and Hunter Park and it complements the heritage qualities of the existing Avoca Beach Theatre building; that it is consistent with the development envisaged by the amending LEP 456 and LEP 2014; and it satisfies the relevant aims and guidelines of SEPP 71. This new layer of development will harmonise with the special character and qualities of the Avoca Beach Theatre and its setting. For these reasons, the proposal can be granted consent.

Directions

1. Directions were handed down on 28 February 2017, as follows: Towards the end of the third day of the hearing, the Council sought to add a condition of consent to specify the opening hours of the proposal and the applicant objected to the tender of the additional condition on the basis that it would require further evidence. The parties agreed that the respondent raised the issue of a condition for the proposal's opening hours with the applicant on 15 February 2017. The Council proposes a condition of consent for opening hours 9am until 11pm Sunday to Thursday and 9am until 12 midnight Friday to Saturday. The applicant submits that an acceptable limit on opening hours would be 8.30am until 1pm every day, with ability to open outside those hours for live performances and movie marathons and the café/terrace. The proposal is for an intensification of the existing use and the imposition of specified opening hours on that use is appropriate, because patrons leaving the venue late at night may impact on the amenity of local residents. I do not accept the submission that it is inappropriate to impose a condition for specified opening hours on the proposal because the 1950 building permit for the Picture Theatre at Avoca Beach did not impose a restriction on opening hours. I do accept that it is appropriate to permit staff to be in attendance at times outside of the permitted opening hours. With the agreement of the parties, the hearing was adjourned following closing submissions for findings to be made on the contested issues in the appeal and, in the event of finding for the applicant; final orders to be made following either the agreement of the parties or further hearing time on the outstanding issue of opening hours. The parties are directed to negotiate appropriate opening hours for the cinema and café/terrace components of the proposal to be included in the conditions of consent at 1.3. The parties are to communicate the agreement with the Registry within 2 weeks of this judgment and agreed conditions of consent are to be filed. Final orders will be made in chambers. In the event that agreement cannot be reached, the parties are directed to approach the Court's Listing Manager within 2 weeks for a further hearing date on this issue.
2. Following additional time being granted by the Court for continued negotiations between the parties regarding the opening hours, the parties agreed on condition 1.3 in the attached conditions of consent and the conditions of consent were filed on 30 March 2017.

Orders 1. The appeal is upheld. 2. Development Application No. 42661/2012 for proposed alterations and additions to the existing Avoca Beach Theatre for a mixed use development, at 69-71 Avoca Drive, Avoca Beach, is approved, subject to the conditions of consent at Annexure "A". 3. The exhibits, other than exhibits 1, B F and L, are returned.

Susan O'Neill Commissioner of the Court 155633.16 O'Neill (C) (2.10 MB, pdf)

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: 26 April 2017