Signorelli Investments Pty Ltd v Sutherland Shire Council

During the course of the hearing the applicant was granted leave to rely upon an amended set of plans, notwithstanding that the council's case had been prepared on the basis of the original plans.

The applicant seeks approval to the installation of a lift, the extension of the building to provide lift lobbies at ground and first floor level within the present setback from Belgrave Esplanade and what is described as an acoustic enclosure at the western end of the building.

The original plans contemplated enclosing the parking area in the undercroft at the western end of the building and the provision of an open deck at the first floor level above the parking area.

The amended plans are an attempt to recognise the potential adverse impact on the adjoining residential property to the west by the perceived activities of staff and patrons on the new deck area. Furthermore, the amended plans reduce the length and depth of a proposed porte cochere at the front of the building. The provision of the enclosure at the western end of the building is promoted by the applicant as an acoustical measure to reduce the emission of vehicle noise in the parking area. Neither the original nor amended plans were developed after consultation with or in conjunction with the applicant's noise consultant.

The council's noise consultant agreed that the additions to the western end of the building, as depicted in the original plans, could provide some acoustical benefit for the occupants of the adjoining residence. However, it is his opinion that the amended proposal will provide no benefit in that respect. He is not confident that the proposed additions at the front of the building will provide any acoustical benefit. In cross-examination he agreed that it is desirable for there to be some acoustical treatment of the western function room. The possibility of placing a pitched roof over the parking area to impede access by people using the centre was canvassed in cross-examination.

Ultimately, Mr Hale made the submissions that the applicant is prepared to carry out such acoustical treatment to the western end of the building as the Court thinks most appropriate. It is not the Court's responsibility to participate in the design process.

The additions to the front of the building will facilitate disabled access. Otherwise, they appear to be no more than an attempt to improve the facilities for the benefit of patrons, thereby improving the amenity of the function centre and increasing the attraction for its commercial use.

Issues have been raised regarding the increased floor area, the visual impact of a projected glass wall along virtually the whole frontage of the building and the increase in the height of the centre of the building above the liftwell. Each issue bears some validity but does not amount to a cause for refusal of the development application given that the reception centre, although adjacent to residential areas, is within an appropriate zone.

The matter that most concerns the Court arises in the same context as it did in matter No 10042 of 2000. That is, that any improvement to the amenity of the building for the benefit of patrons, foreseeably can lead to intensification of the use. An intensification of the use in any respect raises the issue of the parking of motor vehicles. This issue has already been canvassed in detail in regard to the first development application. It is inevitable that the outcome will be the same and that development consent must be refused on that ground.

A number of other matters have been raised in the course of the hearing that demonstrate there are problems with the future functioning of the centre which need to be addressed. These include the use of an open terrace area at the eastern end which has been constructed on council land. Further, it is necessary to use council land in order to move goods around the site including by means of a forklift. A significant area of the council land is used for the storage of rubbish which at times is trajected from the rear of the kitchen on the first floor through a roller shutter door at that level.

Taking these matters into account, together with the problems associated with the necessity to use the council land for parking, it is the Court's view that the intensive use of the site results in an overdevelopment.

It is, therefore, not appropriate to approve further development on the site which does not address the consequences of the overdevelopment and, in the Court's opinion, will lead to further exacerbation of the problems that are already being experienced.

It is relevant and pertinent to note that the use of the site for the purpose of a reception centre is appropriate and that it has widespread support, even within the local community including some objectors. The problem for the applicant is that the intensity of the use has outgrown the site. In the absence of some drastic remedial measures, but particularly in respect of the parking arrangements, no new development should be permitted where the result is an exacerbation of the existing overdevelopment.

The Court has decided that the second development application must be refused.

Matter No 10042 of 2000 1. Development application No 00/2138 for extension to the building at No 223 Belgrave Esplanade, Sylvania Waters is determined by refusal of consent.

Matter No 10988 of 2000 1. Development application No 01/0166 for additions and alterations to premises at No 223 Belgrave Esplanade, Sylvania Waters is determined by refusal of consent.

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