S J Connelly Pty Ltd v Ballina Shire Council

The site 6The site is Lot 5 in DP 1040822 and is irregular in shape with a frontage to Martin Street of 78 m, and frontage to Fawcett St of 83 m and with 70 m frontage to the Richmond River. The site area is 4572 sq m. 7The site contains a 6 storey hotel with 2 levels of basement car parking generally consistent with the approval by the Minister for Planning. The building has been subdivided (SP 79299) into 75 strata title lots. In general terms, there are 58 lots that provide accommodation however these lots potentially provide 107 units of accommodation. In most cases, a lot contains 2 units that could be occupied separately or jointly by way of a single door to a common foyer area and separate doors to the individual units. The other lots are associated with the hotel administration, retail and commercial area, function area, meeting rooms and the restaurant.

The application 8The application is described in the Statement of Environmental Effects in the following terms: "S J Connelly has been engaged by the owners of certain Strata lots in the Ramada Hotel and Suites building to lodge a Development Application with Ballina Shire Council to use such lots for permanent residential occupation. This application does not seek to surrender any aspect of DA 234_5_2003 which permits the use of the Ramada Hotel and Suites for a mixed use tourist and commercial development." 9The application seeks to allow Lots 1-22 (inclusive), 24-29 (inclusive), 32, 33, 35, 36, 38-41 (inclusive), 48-51 (inclusive), 53, 54, 56, 58-61 (inclusive), 63-65 (inclusive), 73 and 74, to be used for long term accommodation as well as the short term accommodation allowed by the original approval. The remaining lots are to continue to be used solely for short term accommodation.

Relevant planning controls 10The site is located within Zone 3 Business under the Ballina Local Environmental Plan 1987 (LEP 1987). A "residential building" is permissible, with consent, in this zone. 11The relevant plan objective is cl 2(1)(i) and states: (i) to encourage further development of tourist and recreational activities within the Shire of Ballina, while minimising its adverse impact on the natural attractions and amenity enjoyed by permanent residents. 12Clause 9(7) provides that consent must not be granted unless the proposed development "is consistent with the objectives of the zone within which the development is proposed to be carried out". 13Ballina Shire Combined Development Control Plan (the DCP) applies. Chapter 1 provides requirements for Urban land. Chapter 2 provides requirements for Ballina Town Centre. Policy Statement No.2 - Car Parking and Access (Policy 2) of the DCP relates to car parking and vehicular access requirements for urban land. Part 4.11 addresses Balconies, pt 4.18.1 addresses Solar access and overshadowing, pt 4.18.3 addresses Acoustic privacy and pt 4.19.2 addresses On site parking. 14State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication; Residential Flat Design Code (the Code) (cl 30(2)(c)). 15Draft Ballina Local Environmental Plan 2010 (the draft LEP) is relevant as the draft LEP was exhibited between 15 March 2010 and 4 June 2010. 16State Environmental Planning Policy No 71- Coastal Protection applies to the site but no contentions are raised by the council that relate to this policy.

Zone objectives 17Clause 9(7) provides that consent must not be granted unless the proposed development "is consistent with the objectives of the zone within which the development is proposed to be carried out". The relevant 3 Business zone primary objectives are: A The primary objectives are- to regulate the subdivision and the use of the land within the zone to maintain the status of the Ballina Business District as the retail, commercial and administrative centre of the Shire of Ballina; ... to permit a wide range of uses within the zone that are associated with, ancillary to or supportive of the retail and service facilities within the zone, particularly tourist developments and industries referred to in Schedule 2; and to permit development where it is compatible with the commercial character of the zone and provides its residents with appropriate leisure facilities to ensure a high level of residential amenity.

The evidence 18Mr Neil Ingham, a town planner for the council, states that any change of use to the hotel would diminish the tourist potential for the city and the CBD of Ballina. Without a guarantee of the hotel facilities being available in the CBD, there is likely to be a diminishing of the attraction of the CBD by tourists, a loss of tourist spending and consequently a loss of attraction for the whole of the Ballina city. Mr Ingham states that there are a multiplicity of opportunities for residential development along the Richmond River without the need to use this site. The objectives for the 3 Business zone provide for a wide range of uses, which are ancillary or supportive of retail and service facilities, particularly tourist developments. It must follow that if the tourist development is taken away, the objectives of the zone will be less well satisfied. 19Mr Stephen Connolly, town planner for the applicant, states that the proposed development complies with objective (a) as it seeks to provide for a wide variety of uses in the zone and also objective (d) which allows for residential development with appropriate levels of residential amenity. In his opinion on the subject development enjoys high residential amenity given its proximity to the Richmond River. Mr Connolly further states that the proposed development is consistent with plan objective (i) as the objective relates to "tourist recreational activities within the Shire of Ballina" and the proposed development relates positively to the natural attractions in the locality and the natural amenity enjoyed by permanent residents.

Findings 20Clause 9(7) is a condition precedent to the consideration of the merits and the potential granting of development consent. The clause requires that the development must be "consistent with the objectives of the zone". I have taken this to mean the relevant objectives of the zone. The Court has generally adopted "consistent with" as meaning not antipathetic, nor incompatible or inconsistent with (see Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 and Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190) although the ordinary and natural meaning has also been used by the Court (see Dem Gillespies v Warringah Council [2002] NSWLEC 224). A finding that the proposed development is consistent with the zone objectives is necessary for the consideration of the merits of the proposed development. 21The proposal provides for the use of some strata lots for long-term accommodation and concurrently, the use the building in accordance with the original approval, which requires the use of the accommodation in the building only for short term accommodation. The proposed development does not seek to abandon the short term or tourist accommodation but provide the option for long-term accommodation in addition to short term accommodation. 22I do not accept that it can be reasonably argued that the proposed development is inconsistent with zone objectives (a) and (c) whichever test of "consistent with" is used as the opportunity will still exist for short term accommodation. Mr Ingham's evidence that the objectives of the zone will be less well satisfied is probably a reasonable description however I do not accept that it reaches the point where the proposed development could be seen to be inconsistent with zone objectives (a) and (c). 23While zone objective (d) refers to residential amenity, it is related to only "leisure facilities". In my view, there is no issue with objective (d) in this context although there are other unacceptable amenity impacts created by the proposed development that are set out later in the judgement. Consequently, I am satisfied that the proposed development is not inconsistent with the relevant zone objectives.

The draft LEP 24The draft LEP was exhibited between 15 March 2010 and 4 June 2010. The council is currently considering the submissions from the exhibition. Under the draft LEP, the site will be zoned B3 Commercial Core.

The submissions 25Mr Tomasetti SC submits that the proposed development is categorised as "serviced apartments", which is a permissible use in the zone. Alternatively, the proposed development could be categorised as "shop top housing"; a use that is also permissible within the B3 Commercial Core zone under the draft LEP. Mr Tomasetti further submits that in any event, the draft Plan could not be seen to be imminent or certain. 26Mr Hemmings QC submits that the proposed development is appropriately categorised as "residential accommodation" and is a prohibited use in the B3 Commercial Core zone. Further, the draft Plan is imminent and certain and on this basis, the application should be refused.

Findings 27The questions to be answered are firstly, whether the draft LEP is imminent and certain and if so, should the draft LEP be given such weight that it should be preferred to LEP 1987 in the consideration of the application. Secondly, how is the proposed development categorised under the draft LEP and whether the proposed use is prohibited or permissible. 28The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted ( Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower , Spigelman CJ states at pars 6 and 7 that: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. 29If the draft LEP is imminent and certain, Terrace Tower (par 7) raises the question of whether the proposed development will preserve the character anticipated by the B3 Commercial Core zone and whether the proposed development will undermine the objectives of the B3 Commercial Core zone 30On the question of whether the draft Plan is imminent and certain, I accept the submissions of Mr Tomasetti. While the draft Plan has been advertised, I am satisfied that the draft Plan is still in its infancy and could not be seen to be imminent or certain. There was no evidence that the draft Plan, as advertised, would be made or when it would be finalised. Relevantly, there was no evidence to indicate the results of the advertising, the council staff assessment of the submissions from the advertising, whether the council staff consider any changes should be made to the draft Plan following the advertising, whether any changes are to be endorsed by the elected council or whether the draft plan needs to be readvertised. 31As there is no evidence to suggest that the draft Plan is imminent and certain, the draft Plan should not be given determinative weight in the assessment of the proposed development. 32It is not necessary to deal with the categorisation argument except to say that if this were a determinative matter, I would require further submissions from both parties.

Mixed used development - the DCP 33Relevantly, pt 4.2 of the DCP addresses Mixed use development and states: 4.2 Mixed use development Mixed use development promotes a finer grain mix of uses within urban areas and challenges previous planning practices, which segregates land into individual uses. These developments integrate uses either horizontally with different uses adjacent to each other or, more commonly in residential flat buildings, vertically with different uses stacked within the same building. Objectives + To support the integration of appropriate retail and commercial uses with housing + To create more active lively streets and urban areas, which encourage pedestrian movement, service the needs of the residents and increase the area's employment base + To ensure that the design of mixed use developments maintains residential amenity and preserves compatibility between uses + To facilitate flexible building forms that can be adapted and converted over time Controls NOTE: This DCP Chapter does not have different controls for residential dwellings used for permanent and temporary accommodation. Residential dwellings and tourist accommodation are to comply with the same design and development controls, in order to encourage flexibility in occupation while protecting residential amenity

The evidence 34Mr Ingham states that with the uncertainty of what component of the building would be used for permanent or tourist accommodation, a question remains over how much employment would be retained by the proposed development. It appears relatively certain that there would be less employment if a significant number of the units were being used for permanent accommodation, as there is no need to service the units and no need for the reception desk to be occupied, as would be required for to tourist hotel. 35Mr Connolly responds by stating that the proposed development is consistent with the first objective of cl 4.2 in that it provides retail and commercial uses with housing . Additionally Mr Connolly states that the Note to cl 4.2 is particularly relevant as it clearly envisages mixed residential and temporary accommodation. Findings 36I agree with Mr Connelly that cl 4.2 contemplates mixed residential and temporary accommodation although it is subject to mixed use development maintaining residential amenity and preserving compatibility between the uses. For reasons mentioned later in the judgment, I do not accept that the proposed development maintains residential amenity and preserves compatibility between uses.

Car parking 37Mr Chris Hallam, a traffic engineer, provided evidence for the applicant and Mr Craig McLaren, also a traffic engineer, provided evidence for the council. They agree that the traffic generation and traffic impacts of the proposed changes to the accommodation units will not alter the traffic Impact of the proposal. Mr Hallam and Mr McLaren differ on two major aspects of the car parking. First, the adequacy of the number of car parking spaces on site, and secondly, the operation of the carpark and the effectiveness of the proposed Plan of Management.

Background 38The original approval relied on a parking report from Masson Wilson Twiney (the MWT report) that calculated that a total of 108 parking spaces were required to be provided for 107 suites (49 dual key suites), 20 staff, 145 sq m of conference area and 663 sq m of restaurant/cafe area. The suites required 72.2 spaces (0.675 space per suite discounted by 0.75 space for dual use and further discounted by 0.90 for hotel occupancy), the cafe/restaurant area required 18 spaces, the conference rooms required 7.6 spaces and the hotel staff required 10 spaces. Inherent in the calculation of the number of car parking spaces for the suites were allowances for dual use of the car parking spaces for hotel guests who would also use the restaurant/cafe and conference facilities. Given the availability of 93 spaces, a deficit of 15 car parking spaces was identified and required a contribution in lieu of providing the parking spaces on-site. Later modification applications reconfigured the carpark layout, increased the number of suites to 115 and ultimately a need for a total of 114 spaces on site, with the 4 additional spaces covered by a monetary contribution.

The applicable standards 39Policy 2 contains the applicable standard for assessing the proposed application. These are cl 4.5, that states: Alfresco Dining in Ballina Town Centre Car parking shall be provided for alfresco dining at the refreshment room rate of 1space 25 sq m. The dining area used for determining on-site car parking requirements shall be in accordance with the least area per alfresco dining 40Clause 5.5 states: Residential flat buildings or group dwelling development 1 space for each one-bedroom unit; 1.2 spaces for each two-bedroom units; 1.5 spaces for each three or more bedroom units; plus one additional space per five units the visitor parking. 41Clause 5.7 states Tourist Accommodation Motel or cabin units - Units less than 50 sq m - one space per unit plus one space per 2 employees. Units larger than 50 sq m as per residential flat buildings above. 42Clause 5.10 states: Commercial - within the Ballina Town Centre (refer to Diagram 5) Office (Commercial) 1 space per 25 sq m gross floor area at ground level. 1 space per 40 sq m gross floor area at first floor level and above A minimum of 25% of the total spaces provided on-site are to be accessible parking Shop (Retail) 1 space per 25 sq m gross floor area at ground level. 1 space per 40 sq m gross floor area at first floor level and above A minimum of 75% of the total spaces provided on-site are to be accessible parking. Refreshment rooms 1 space per 25 sq m gross floor area at ground level. 1 space per 40 sq m gross floor area at first floor level and above A minimum of 75% of the total spaces provided on-site are to be accessible parking.

The accommodation parking evidence - McLaren 43Mr McLaren states that while resident parking requirements can be satisfied on site, the visitor/casual user parking for both resident and non-resident uses cannot be satisfied. 44For the proposed development, Mr McLaren calculates the following parking requirements based on Policy 2, and excluding the discounts under the original approval: Use Quantity Rate Car Parking Requirement Tourist Suites 1 1.5 / unit 1.5 3 bed 10 1.2 / unit 1.2 2 bed 1 1 / unit 1 1 bed Employees 22 1 / 2 staff 11 Permanent Resident Units 1 1.5 / unit 1.5 3 bed 39 1.2 / unit 47 2 bed 12 1 / unit 12 1 bed Visitor Parking to Residential 52 units 1 / 5 10.4 Restaurants & Shops* 984 1 / 25 sq m 39.4 (30**) (Lots 62 to 71 inclusive) (0.94 x 1,047 sq m) Conference Rooms*** 45 seat (max) 1 / 6 seats (1) 7.5 Meeting / board rooms 30 seats 1 / 6 seats (1) 5 Total Car Parking Requirement 148.3 Less Previous Car Parking Contribution (credits) 18.4 Less On-Site Provision 94 Net Parking Shortfall 35.9 (36)

• Includes internal & external areas (Alfresco Dining) all at Ground Level. Area reduced by 6% for mixed use to account for accommodation of on-site tourists. ** 75% of parking to be accessible to the public *** Conference / Function room on 2 nd Floor (excludes illegal conference room on 1 st Floor) Notes: (1) Parking rate previously applied by MWT. The 1/6 rate adopted by MWT is too low as public transport availability is low and the rate applied is half that of the RTA's Guide (i.e. 1/3 seats). The likely reason for reducing the rate by 50% is expected to have been associated with high tourist use of the on-site accommodation, including conference delegates and wedding guests. It is also worthy to note, based upon Council advice, that the conference rooms (including the 2 nd illegal room) have previously been advertised for wedding use. Council advise that the website nominated both a Fenwick Room (120 seats) and an Ainsworth Room (50 seats) for function use. 45In accepting that staff numbers are likely to be reduced through the increased long-term accommodation, Mr McLaren calculates that, on a pro rata basis, the staff may reduced to a total of 5 spaces thereby creating a deficit of 27.4 spaces. Mr McLaren however states that the conference/meeting/boardroom areas would generate higher parking and would double the amount of car parking required as set out in Table 1 leading to an increase of 12.5 parking spaces and creating an overall deficit of 40 spaces. 46As a separate assessment, and excluding the discounts under the previous consent, Mr McLaren calculates the deficiency in parking at 51 spaces or 43 spaces with the reduced staff requirement. The accommodation parking evidence - Hallam
  • 47Mr Hallam disagrees with the approach of Mr McLaren where he assesses afresh, all components of the hotel, as if no previous consent applies. Mr Hallam considers that the correct approach is to compare the relative parking requirement for the 52 strata lots that are proposed to change from short term accommodation to long term accommodation. It is inappropriate, in his opinion to reassess the current consent, except for those elements that are proposed to change. 48On this basis, Mr Hallam calculates the parking for the existing approved development (i.e. all short term accommodation), using Policy 2 for Tourist Accommodation at 117.2 spaces, being made up of:
  • 104 x 1 bedroom units at 1 space per unit = 104 spaces.
  • 11x 2 bedroom units at 1.2 spaces per unit = 13.2 spaces 49For the proposed development, Mr Hallam calculates the parking for the proposed development (i.e. short term and long term accommodation) using Policy 2 for Tourist Accommodation and Residential Flat Buildings at 95.7 spaces, being made up of: Tourist Accommodation
  • 2 x 1 bedroom units at 1 space per unit = 21 spaces.
  • 21 x 2 bedroom units at 1.2 spaces per unit = 2.4 spaces Residential Flat Buildings
  • 4 x 1 bedroom units at 1 space per unit = 4 spaces.
  • 47 x 2 bedroom units at 1.2 spaces per unit = 56.4 spaces
  • x 3 bedroom units at 1.5 spaces per unit = 1.5 spaces
  • visitor spaces at 52 units at 0.2 spaces per unit = 10.4 spaces 50Based on the requirements in Policy 2, Mr Hallam concludes that the proposed development will result in substantially reduced parking (rounded up) from 118 spaces to 96 spaces. 51Mr Hallam carried out a further analysis using the 2006 Census data for the Ballina Local Government Area that resulted in the following assessment: 52For Tourist Accommodation, 81.2 spaces being made up of:
  • 104 x 1 bedroom units at 0.675 space per unit = 70.2 spaces.
  • 11x 2 bedroom units at 1 space per unit = 11 spaces 53For Tourist Accommodation and Residential Flat Buildings, 77.475 spaces being made up of: Tourist Accommodation
  • 2 x 1 bedroom units at 0.675 space per unit = 14.175 spaces.
  • 2x 2 bedroom units at 1 space per unit = 2 spaces Residential Flat Buildings
  • 4 x 1 bedroom units at 0.6 space per unit = 2.4 spaces.
  • 47 x 2 bedroom units at 1 spaces per unit = 47 spaces
  • x 3 bedroom unit at 1.5 spaces per unit = 1.5 spaces
  • visitor spaces at 52 units at 0.2 spaces per unit = 10.4 spaces 54Mr Hallam states that, in his opinion, the Census-based assessment is more accurate than the Policy 2 calculations, and is exactly the figure required for the hotel suites under the original approval, leaving the car parking allocated and approved for the ancillary hotel uses unchanged. Further, and based on an assessment of available public off-street parking within a 2 minute walk from the site, Mr Hallam concludes that there is adequate parking in the vicinity of the site, if peak parking is higher than anticipated.

The accommodation parking - findings 55Mr Hallam based his assessment of car parking on 2 x 1 bedroom units and 21 x 2 bedroom units (or 44 bedrooms) for the short-term accommodation and 4 x 1 bedroom units, 47 x 2 bedroom units and 1 x 3 bedroom units for the long-term accommodation. This needs to be compared to Mr McLaren's assessment of 1 x 1 bedroom unit, 10x 2 bedroom units and 1 x 3 bedroom unit (or 24 bedrooms) for the short-term accommodation and 12 x 1 bedroom units, 39 x 2 bedroom units and 1 x 3 bedroom unit for the long-term accommodation. The parking requirements based on Policy 2 were 95 7.and 85.4 car parking spaces respectively, including an agreed 10.4 spaces for visitor parking.

• 56In accepting that there may be some difficulty in converting the configuration of the accommodation from the original approval that identified "suites" to units identified by the number of bedrooms, I accept Mr Hallam's approach as it is consistent with cl 5.7 of Policy 2, being based on the area of the units (see Appendix C, Exhibit 4). 57Of the other matters addressed by Mr Hallam, I accept that preference should be given to the requirements in Policy 2 above the analysis using the 2006 Census for the Ballina Local Government Area. The weight to be given to a development control plan is clearly established in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 and Zhang v Canterbury City Council (2001) 115 LGERA 373. 58I am also not satisfied that the availability of public parking in the vicinity of the site is a sufficient reason to vary the provision of parking on site (although I accept that this was not Mr Hallam's primary position) except where it is contemplated by council planning documents or is a situation where there is a relatively small departure from the required parking provision. 59For these reasons, the appropriate provision of car parking, based on Policy 2 for the short-term and long-term accommodation uses is 96 spaces. Should the other uses on the site be considered in the assessment of car parking? 60Mr Hallam and Mr McLaren also differed on how the overall car parking should be assessed with Mr Hallam disagreeing that the other uses on the site should be considered in the assessment of car parking. 61On this question, I disagree with Mr Hallam for three reasons. First, and as the assessment of the car parking required for the short-term and long-term accommodation is greater than that set aside for the hotel suites in the original approval, it is necessary to determine whether sufficient car parking spaces are provided for the other uses on-site even though these uses are not the subject of this application. Second, the evidence indicates that the basis for the original assessment of car parking for the other uses has changed since the approval of the application. For example, Mr McLaren's assessment of the restaurants and shops provides for a floor area of 984 sq m compared to the original area of 663 sq m. Third, the original assessment of car parking for the hotel restaurant included an assumption that up to 50% of the hotel guests will be occupying the restaurant at any one time.
• 62The original approval provided for a total of 112 spaces, consisting of 94 spaces on-site and contributions for 18 car parking spaces. The original approval, as modified, allocated 78 spaces for the suites and 34 spaces for the other uses on the site (112 - 78 spaces). Based on be revised car parking requirements for the proposed development, there are 16 spaces available for the other uses on-site use (112 - 96 spaces). 63The other uses relate to the:
• restaurant/shops .- (pt Lots 62, 63-65, 66-71),
• function room (pt Lot 72),
• meeting rooms - Fenwick Room and Ainsworth Room (pt Lot 72),
• boardroom (pt Lot 72), and
• gym (pt Lot 72). 64I accept Mr McLaren's assessment where he finds that the existing restaurant and shop floor area is significantly greater than the area originally approved. I agree that this area in Mr McLaren's assessment appropriately includes the alfresco areas (see Plan 2.1 Exhibit 6) as required by cl 4.5 of Policy 2 although the agreed area of 840 sq m is not that significantly different to the 984 sq m in Mr McLaren's assessment. The amount of parking required for 840 sq is 30.2 spaces at 1 space per 25 sq m. and allowing a further discount of 0.9 for some joint use of the short term accommodation and the restaurant. 65I also accept that the meeting rooms (Fenwick Room and Ainsworth Room) appear to not have been fully considered in the original assessment of car parking. In his assessment, Mr McLaren adopts a conservative rate based on a maximum of 30 seats at 1 space for each 6 seats (or 5 spaces) although he states that the rate of 1 space for each 3 seats is more appropriate and consistent with the RTA Guidelines for Traffic Generating Developments given the absence of shared use of the rooms and the conference facilities. For this reason, I would adopt 30 seats but at a rate of 1 space for each 3 seats given the reduced reliance on joint use of the short term accommodation and the meeting rooms. This requires 9 car parking spaces for the meeting rooms, including a discount of 0.9 for joint use. 66The function area has a maximum capacity of 45 seats and for the same reason in the preceding paragraph, the parking should be at the rate 1 space for each 3 seats thereby requiring 13.5 car parking spaces, including a discount of 0.9 for joint use. 67I agree that the gym and board room should not attract any parking providing that these areas are used by staff and occupants of the building. 68In my assessment, the revised parking requirement is 148.7 spaces, based on: Total long and short accommodation = 96 spaces,
• Restaurant/shops = 30.2 spaces, and
• Meeting rooms = 9 spaces
• Function room = 13.5 spaces 69When the required parking of 148.7 spaces is compared to the available 114 spaces, there can be no other conclusion than inadequate on-site car parking is provided for the proposed development. 70In my view, the inadequate on-site car parking is a sufficient reason to refuse the application on this ground alone however for completeness I will briefly deal with the other contentions.

The evidence 71Mr McLaren states that the introduction of permanent residents and their visitors creates a significant difference to the approved development. The "introduced dynamics" will be different and there will be the expectation of permanent residents to be allocated a permanent and specifically designated on-site car parking space. Visitors to the permanent residences that have no dual use of other on-site areas would also require a dedicated parking area for that specific purpose in accordance with Policy 2. 72Mr Hallam states that the existing parking arrangement of leaving the parking area open to residents, guests, visitors and patrons of ancillary hotel facilities is to be maintained. Mr Hallam states that currently parking is satisfactorily controlled through a Carpark Management Plan and the By-Laws of Strata Plan 79299. In his opinion, the "introduced dynamics" are not relevant when all parking remains unallocated. The suggestion that visitors to units within a mixed use development require dedicated parking is also not accepted by Mr Hallam as he states that it is highly desirable for parking spaces to be in a central pool, to optimise the use of the spaces.

Findings 73The principles identified in Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 are important for considering whether a Plan of Management is appropriate for a particular use and situation. The questions to be asked are:

1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval?
2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?
3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?
4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome?
5. Can the people the subject of the Management Plan be reasonably expected to know of its requirements?
6. Is the Management Plan to be enforced as a condition of consent?
7. Does the Management Plan contain complaint management procedures?
8. Is there a procedure for updating and changing the Management Plan, including the advertising of any changes? 74On this matter (and assuming that adequate car parking can be provided), I share the concerns expressed by Mr McLaren that there may be the expectation of permanent residents to be allocated a permanent and specifically designated on-site car parking space however even accepting this is not optimal, it is not a matter that warrants the refusal of the application. It must be assumed that any prospective purchasers would be aware of any constraints to the parking of vehicles on the site. 75I accept that a Carpark Management Plan and appropriate Strata Plan By-Laws could adequately address those questions identified in Renaldo except for the stacked spaces on Level 2 where the specific allocation of spaces is required and how those spaces, not the subject of this application, are to be addressed as part of the approach of providing a general pool of vehicle spaces in the basement levels (see Questions 4 and 5 in Renaldo ). 76If this was the only determinative matter in the appeal, I would provide the opportunity for the applicant to address these concerns although if there was not a satisfactory response, this matter that could warrant the refusal of the application.

Noise 77Dr Renzo Tonin provided expert evidence for the applicant and Mr Neil Gross provided expert evidence for the council. They agreed that the potential noise sources were from:

• hotel and restaurant operations,
• mechanical plant,
• behaviour of guests, and
• Building Code Of Australia (BCA) issues.

Hotel and restaurant operations 78The relevant areas of the hotel are the function room, meeting rooms and restaurant. The operator of the restaurant supplies alcohol to the tourist rooms, function room and meeting rooms pursuant to its Office of Liquor, Gaming and Racing (OLGR) Liquor-hotel licence and provides alcohol to the restaurant pursuant to its Liquor-on site license. 79Dr Tonin and Mr Gross acknowledge that the function room is limited to a maximum 45 persons and that there is an existing restriction (Condition G5) relating to levels of musical entertainment noise emitted from the premises. This condition states: G5 Noise Control - Music and Entertainment Any recorded music, live music or other entertainment played or provided with the premises shall be controlled to comply with the requirements of the Environmental Noise Control Manual (1985) and the Protection of the Environment Operations Act, 1997. Noise shall not exceed 5dB(A) above the background noise level when measured at the boundary of the nearest residential property. 80The agreed noise sources are:

• music from inside the function room transmitted to the adjoining rooms 106 and 206 via the common wall,
• noise from patrons on the terrace of the function room transmitted to the adjacent apartments, and
• noise from patrons in the restaurant, including those seated in the outdoor section transmitted to the adjacent apartments. 81There was agreement between Dr Tonin and Mr Gross that music from inside the function room transmitted to the adjoining rooms 106 and 206 via the common wall would not comply with the noise criterion and that if the application was to be approved, then one of the three following alternatives would be required:
• the prohibition of bands in the function room,
• additional sound insulation in the common wall common wall, or
• the removal of rooms 106 and 206 from the application. 82Of the other noise sources, Dr Tonin and Mr Gross disagreed on the potential impact. On the potential patron noise in the outdoor spaces and the function room terrace, Dr Tonin states that the licensee of the restaurant is obliged to comply with the OLGR noise criterion. In his opinion, this requirement is reinforced with By-law 4.02 that states: 4.02 Owners and Occupiers must not: (a) make noise or behaving a way that might unnecessarily interfere with another Owners or Occupiers use and enjoyment of their Lot or the Common Property; 83Mr Gross states that there is currently no obligation to meet the OLGR noise criterion at any of the suites within the hotel complex so the change to permanent residential use would effectively sterilise the use of the outdoor restaurant area and function room terraces as the OLGR standard noise criterion could not be achieved at the units now sought to be used for long term accommodation. He notes that the 2003 noise assessment (TTM Acoustics report) prepared for the development application specifically addresses the issue of compliance with the OLGR requirements in the Section 4.3, where it states that: The assessment criteria is applicable to the off-site residential premises only, as the guest rooms of the Hotel are part of the same facility as the licensed bar area. 84Mr Gross states that he would adopt a similar approach in the same circumstances of the original application that provided all short term accommodation. In relation to By-law 4.02, Mr Gross states that, in his opinion, the by-law was drafted to address noise between two neighbouring hotel suites in instances, such as the playing of loud music or partying and wasn't intended to relate to the commercial lots and circumstances such as the proposed development. 85Dr Tonin and Mr Gross also addressed the potential transfer of noise from the common area between the function room and the toilets to the adjacent suites 105 106. Dr Tonin stated that any potential noise impacts could be addressed through closing the existing fire door in the corridor however Mr Gross maintained that it would be preferable to construct a second door as an airlock 86On the contention of behaviour of guests, Dr Tonin and Mr Gross agree that noise from doors closing in the building is an unacceptable source of noise. Both experts note that all doors have an automatic closers however these are either ineffective or not properly set and it is recommended that maintenance be undertaken and door closers re-set so doors shut with the minimum possible sound. 87Dr Tonin and Mr Gross agree that the use of the swimming pool by short-term guests may result in greater noise impact on the use by permanent residents and this has the potential to be annoying although both accept that potential permanent occupiers would be aware that they are purchasing within an existing hotel, which allows for holiday use. 88Dr Tonin and Mr Gross agree that there are no substantive issues relating to mechanical plant or BCA compliance that could not be addressed through conditions of consent.

Findings 89Dr Tonin and Mr Gross agreed on a number of the noise contentions. As I understand, noise from mechanical plant, the behaviour of guests, BCA issues were not matters that warranted the refusal of the application and could be addressed by conditions although some contentions required a decision to be made on the appropriate means of achieving a satisfactory solution, such as the method of addressing the music from inside the function room transmitted to the adjoining rooms and whether the existing fire door in the corridor should be supplemented by a second door as an airlock 90There is however a fundamental disagreement on the relationship between the function room, particularly the outside areas, and adjoining and nearby units to be used for long-term accommodation. Dr Tonin's approach is to rely on the existing condition G5 that provides that noise shall not exceed 5dB(A) above the background noise level when measured at the boundary of the "nearest residential property". In the original assessment, the nearest residential property was the adjoining residential flat building directly to the west and because of the separation, the function centre could operate, at night, in accordance with condition G5. 91The evidence of Mr Gross (and not refuted by Dr Tonin) is that compliance with condition G5 was not possible, if the application was approved and compliance with condition G5 was required. The approval would effectively prohibit the use of the outdoor restaurant area and function room terraces. 92Where there is a fundamental incompatibility between two land uses the Court is bound to consider the proposed development application in accordance with s 79C(1) of the Environmental Planning and Assessment Act 1979 ( Inghams Enterprises Pty Ltd v Kira Holdings and anor [1996] 90 LGERA 68). In this case, the undisputed acoustical evidence was that there would be an unacceptable impact on the amenity of some adjoining suites, although the exact number and location were not quantified in the acoustical evidence. This, however does not fully address the acoustical issue. The reliance by the applicant on condition G5 adds a further dimension to the ultimate consideration by the Court. 93In my view, and while it is not without some doubt, I accept that it would be unreasonable to adopt the approach suggested by Dr Tonin. I do not accept that the words "nearest residential property" are words that can simply be transferred to another residential property because of the lodgement of the proposed development as the words, even taking into account their general nature, refer to a specific residential property based on the acoustical assessment carried out in the 2003 TTM Acoustics report. In practical terms, it would also seem unreasonable that a business that has apparently operated within the requirements of its consent for many years, could be found to be in contravention of the same requirements because of the additional acoustic protection required by the proposed development. 94On this basis, I find that the impact on an unquantified number of adjoining and nearby suites will be unacceptably impacted by noise generated from other operations within the hotel and that the impacts are sufficient to warrant the refusal of the application for this reason alone.

The evidence 95Mr Ingham and Mr Stephen King, an architect for the applicant, addressed this contention. Mr Ingham and Mr King agree that the relevant solar access standards are found in the Code where the Rule of Thumb; Daylight Access provides for:

• Living rooms and private open space for at least 70% of apartments in a development should receive a minimum of three hours direct sunlight between 9 a.m. and 3 p.m. in the winter. In dense urban areas a minimum of two hours may be acceptable.
• Limit the number of single-aspect apartments with a southerly aspect (SW-SE) to a maximum of 10% of the units proposed.
• Development which seek to vary from the minimum standards must demonstrate our site constraints and orientation prohibit the achievement of the standards and how energy efficiency is addressed (see Orientation and Energy Efficiency) 96Mr King prepared a table identifying each of the units in the application and commenting on available sun for each of the units. Mr King quantifies the amount of sun available to each unit in terms of "effective sun". He describes this as sun available to a point of interest, including sun earlier than 9 a.m. and later than 3 p.m. and reasonable periods of solar access to secondary bedrooms, where the living areas do not receive any sun, on the premise that with the target demographic, it is highly likely secondary bedrooms may be used as extensions of the living areas. He calculates 61% of apartments will receive a minimum of 2 hours, but more usually 3 hours of "effective sun" access. He notes that only a limited number of apartments are orientated for sun through the day, most receiving their effective sun in the early morning. 97Mr King further states that the longer term residents of the building also have access to an unusually high provision of serviced common areas, including an extensive swimming pool deck, all designed for enhanced winter sun. In his opinion, the holistic amenity for residents of the complex is likely to be better than for most conventional apartment buildings. 98Mr Ingham relies on the solar access conditions identified by Mr King and calculates that 20 of the 52 units receive 3 hours solar access at mid-winter, with a further qualification that 8 of the 20 units rely on solar access to the second bedroom through the structure of the building. Mr Ingham also notes that the reliance of Mr King on "effective sun" is inconsistent with the Rules of Thumb in the Code.

Findings 99It is clear that the fundamental issue with solar access is that the majority of rooms within the building are orientated to the south where the expansive views of the Richmond River are available. There can be little argument that for a hotel, where short-term accommodation is the norm and where prolonged exposure to winter sunlight is largely unnecessary, this design solution is appropriate. In my view, it does not necessarily follow that a similar design solution is appropriate for a residential flat building where there is long-term accommodation and the need for winter sun is unquestionably greater. 100The Code was used by both experts to assess the application but with differing conclusions. In balancing the different conclusions, I am not satisfied that the use of the building for permanent accommodation can be supported on the basis of the solar access available to the majority of the units identified in the application. While Mr King attempted to rationalise the solar access in terms of the Code, I do not accept that his attempts were successful for number of reasons. First, the Code refers to "direct sunlight" rather than "effective sun". The use of "effective sun" significantly dilutes the effectiveness of the Code requirement of providing direct sunlight to living areas and private open space. Second, the provision of communal open space is not a reasonable basis for the absence of good solar to the living areas and private open space of a unit, given the different circumstances in which the two areas are likely to be used. Third, I do not accept the suggestion that the more tropical climate of Ballina should be used as a basis for inadequate solar access in mid-winter. Fourth, and accepting that the Rule of Thumb has some inherent flexibility, the extent of the variation is significant. Based on Mr King's assessment, 20 units (38 %) will receive no sunlight, 20 units (38 %) received three hours effective sun through contiguous bedrooms and 12 units (23%) will receive 2 hours or more effective sun. Fifth, the proposal is inconsistent with the objective for Solar access and overshadowing in cl 4.18.1 of the DCP in that it does not "ensure that new development provides design consideration for solar access for habitable rooms/living spaces and private spaces". Sixth, the amount of sunlight is inconsistent with Principle 6 - Amenity of SEPP 65 in that it does not provide acceptable "access to sunlight". 101I do not accept that the applicant has adequately demonstrated that the site constraints and orientation prohibit the achievement of the standards in the Code. The constraint is not the "site" but the design of the existing building. The site view included the residential flat buildings to the west of the site where these designs provided units that orientated some units to the north as well as south with presumably, satisfactory regard to solar access. 102The inadequacy of solar access to the units is a significant issue and would support the refusal of the application for this reason alone.

Incompatibility between long term and short term accommodation; 103Mr Connelly maintained that the By-laws to the strata plan regulate the management and use of all lots relevant to be subject application. He identifies specific by-laws relating to Noise (By-law 4.02(a)), Behaviour of owners and occupiers (By-laws 4.02(b) and 4.03), Children playing on common property in building (By-laws 4.02(b) and (h)), Behaviour of invitees (By-law 5) as a means for addressing any unacceptable behaviour. 104Mr Ingham comes to the opposite conclusion. He states that there are certainly conflicting interests and attitudes of permanent residents and tourists and there are a number of issues that would annoy permanent residents created by tourists or people staying for a short time in the development. In his opinion, holidaymakers often create noise to the annoyance of permanent residents and are continually carrying luggage and other goods, such as surfboards, through the lobby areas and corridors. Additionally, there is conflict between use of corridors for cleaning trolleys and breakfast and dinner trays and luggage left in corridors and lobby areas. 105Additional evidence on this issue was provided for the applicant by residents of the Riverside Apartments and for the council by persons associated with the same apartments where there is a mix of short-term and long-term accommodation. Unsurprisingly, their evidence varied significantly with the applicant's witnesses not being aware of any significant conflict between short and long term occupiers of the building whereas the council's witnesses identified a number of events that supported the council's contention of incompatibility between the different occupiers of the building. 106While the affect of any conflict may be seen as subjective and different people may be differently affected by any conflict, I am not convinced that it is a matter that can be simply addressed through the By-laws to the strata plan. There was no evidence to suggest that there was the opportunity for the quick enforcement of the By-laws in instances where there was a need to rectify an event that was disturbing a resident or occupier of building. Any need for enforcement, in my view, would be significantly reduced if there was, at a minimum, the separation of long-term and short-term occupants on different floors of the building. 107In 187 Kent Pty Limited v Council of the City of Sydney [2007] NSWLEC 88, I addressed a similar situation where short and long-term residents were to occupy the same levels of the building. The comments in the following paragraphs are equally relevant in this case, and state: 29 I accept the council's position on compatibility between residential accommodation and serviced apartments. While both are residential in nature, the fact that they are separately defined in LEP 2005 would suggest that they have different characteristics. I agree that there is likely to be a difference in behaviour, living and activity patterns between short-term and long-term occupants. A conclusion that short-term occupants are likely to have less concern about maintaining of the amenity of the building than long-term occupants is a finding that can be reasonably made, in my opinion. That is not to say that all short-term occupants are likely to have less concern about maintaining the amenity of the building than long-term occupants but only that there is likely to be a greater proportion who use the building differently through their behaviour and activities in and around the building 30 The greater frequency of short-term occupants in and out of the building is potentially disruptive for long-term occupants, particularly at times such as early in the morning or late at night. These movements may not always create excessive noise but may occur at a time when long-term occupants reasonably expect not to be disturbed. These disturbances could relate to matters such as doors closing, noise from adjoining apartments and general conversation in common areas. While there may be measures, such as door closers to minimise potential noise impact, it would be unlikely that all sources of noise could be removed. 31 In general terms, long-term occupants would generally have a greater expectation and promote a more quiet and peaceful amenity than short-term occupants, as they would regard their apartment as a home compared to a temporary place to reside for short-term occupants. Long-term occupants are also likely to be less tolerant of disturbances and likely to be more concerned with activities that may potentially cause damage to the building, as they would have a greater feeling of ownership and ultimately be responsible through the Owners Corporation for repairs. While Mr Crane states that there is no evidence to support such a finding, I am satisfied that by simply adopting a common sense approach, the council's conclusion of incompatibility between the two uses can be supported. 108In my view, the applicant's evidence did not provide any basis for me to come to a different conclusion than I reached in 187 Kent Pty Limited, in that there is a fundamental incompatibility between short term and long term accommodation, particularly when they share a common level of a building.

Can two consents operate concurrently? 109The proposal provides for the original approval and the proposed development to operate concurrently. This allows the use of 52 strata lots of the existing approval for long term accommodation and at the same time, the use the building in accordance with the original approval, which requires the use of the accommodation in the building only for short term accommodation.

The submissions 110Mr Hemmings submits that the development application is incompatible with the proposed development and is in direct contravention of the original approval. While accepting that the original approval does not prevent a further development consent being granted over the same site, he submits that the two consents are incompatible and cannot operate together without amendment ( Waverley Council v C M Hairis Architects [2002] NSWLEC 180). 111Mr Tomasetti submits that there is no inconsistency. LEP 1987 and the DCP specifically invite "mixed use" development comprising short-term and long-term residential accommodation in the one complex. The proposed development does not seek to exclude the tourist use of the premises but seeks approval to allow for long term accommodation as well as short term accommodation. As the proposed use is a mixed use development it is permitted with development consent in the zone.

Findings 112There was no dispute that multiple consents may apply to the same site and that there was the ability to amend the original consent even though it was an approval granted by the Minister for Planning. Section 80A(1)(c) of the EPA Act provides that a condition can be imposed requiring the modification or cessation of a development carried out on land other than the land which the development application relates although this was expressly not sought by the applicant. 113As I understand the submissions, the council's position is based on their expert evidence, that concludes that the proposed development is different to the original consent and that additional requirements need to be provided for this development, such as additional parking, and that would create an inconsistency between an approval granted for this development application and the original approval. The applicant takes the opposite position, based on their expert evidence, and maintains that no additional requirements are required for the proposed development than are currently provided for the original approval. 114Having found that the proposed development and the original consent have different characteristics that will, in some instances, require different conditions of consent (for example car parking), I find that the approval of the application would be incompatible with the original consent and could not operate together without amendment. 115In any event, some conditions in the original approval still create a barrier to the approval of the application. For example, there are conditions in the original approval that require that the development is to be used for short-term temporary accommodation only (Part A - condition A7 and Part F- condition F1) so any approval of long term accommodation would be in direct breach of these conditions.

OTHER CONTENTIONS 116The council raised additional contentions in relation to

• the removal of waste and discarded household items,
• the lack of an adequate security system for entry into the building,
• privacy issues relating to shared balconies,
• drying facilities,
• storage,
• adaptable housing,
• balcony areas,
• the need for an intercom system for permanent residents,
• the lack of a service lift for large items, and
• the lack of appropriate fire alarm system. 117Having considered the expert evidence on these contentions, I am satisfied that these contentions can be addressed either through conditions of consent or are unnecessary, however in any event, do not justify the refusal of the development application.

Orders 118The orders of the Court are:

1. The appeal is dismissed.
2. Development Application 2009/689 to use of an existing approved tourist hotel at 2 Martin St, Ballina for permanent residential use as well as tourist accommodation is refused
3. The exhibits are returned. G T Brown Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2011