Land and Environment Court of New South Wales CITATION : Baker Kavanagh Architects v Waverley Council [2004] NSWLEC 542 APPLICANT Baker Kavanagh Architects PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10441 of 2004 CORAM: Bly C - Murrell C KEY ISSUES: Development Application :- Construction of backpackers accommodation with associated car parking - intensity of development - impact on amenity of area. Environmental Planning and Assessment Act LEGISLATION CITED: Waverley Local Environmental Plan 1996 Bondi Beach Urban Design Development Control Plan Development Control Plan No. 12 CASES CITED: CSA Architects v Waverley Council [11102 of 2001] DATES OF HEARING: 9-11/08/2004 DATE OF JUDGMENT: 09/27/2004 APPLICANT Mr C McEwen, barrister SOLICITORS Pricewaterhouse Coopers Legal LEGAL REPRESENTATIVES: RESPONDENT Mr J E Robson, barrister SOLICITORS Staunton Beattie JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C Murrell C 30 September 2004 10441 of 2004 Baker Kavanagh Architects v Waverley Council JUDGMENT 1 This appeal relates to Development Application LD127/04 for the construction of a backpacker accommodation facility in a five level building, incorporating 366 beds in 80 rooms together with associated amenities and facilities and basement car parking for 27 vehicles at 6-8 Jaques Avenue, Bondi Beach. 2 The cleared site is situated on the eastern side of Jaques Avenue, close to its intersection with the Lamrock Avenue. It is rectangular in shape having a western boundary and frontage to Jaques Avenue of 24.38 m, a depth of 36.5 m and an area of 891.5 sq m. It is generally level with the gentle rise from its frontage towards the rear boundary. 3 Adjacent to the site to the south is an almost completed five level, mixed development containing retail and mainly residential tenancies. To the north is a two-level 1950's inter-war residential flat building. Generally opposite the site on the western side of Jaques Avenue existing development comprises two and three-storey residential flat buildings and detached single dwellings. The rear boundary of the site adjoins properties fronting Campbell Parade. Existing multi-storey buildings along this part of Campbell Parade are characterised by ground floor commercial activities with residential above. 4 There is an existing Court granted consent (proceedings No 10028 of 2003) for this site for a five level plus basement mixed residential and commercial development including 32 dwellings. Statutory provisions 5 The following statutory planning instruments are relevantly applicable to the site: * Waverley Local Environmental Plan 1996 ("the LEP") * Bondi Beach Urban Design Development Control Plan ("the Urban Design DCP") * Development Control Plan No 12 - Guidelines for Boarding Houses, Backpacker Accommodation and Bed and Breakfast Establishments ("DCP 12"). 6 The site is included in the General Business 3(a) zone of the LEP and in this zone the proposal is permissible with development consent. Opposite the site in Jaques Avenue land is zoned 2(b) Residential - Medium Density and 2(c1) Residential - Medium and High Density. 7 The relevant general objective of DCP 12 is: To ensure that any building that has been developed or adapted as backpacker accommodation maintains a satisfactory standard of amenity relative to surrounding residential development. 8 The application was advertised and some 43 objections were received. Expressed concerns include: * The residential character of Jaques Avenue will be significantly and adversely changed. * Adverse amenity impacts on Jaques Avenue resulting from the comings and goings of a large number of people at all hours of the day and night. * Loss of aural and visual privacy associated with the numerous balconies and windows in the proposal. * Adverse impacts on landscaping as a result of overshadowing. * The likelihood of rubbish being dumped over the rear fence. * Adverse traffic congestion and impacts associated with cars and busses. * Insufficient on-site parking and consequent increased demand on on-street parking. Backpackers typically have their own cars. * A large transitory population with different behavioural characteristics including antisocial behaviour will not respect the existing community. * The proposals population of 366 people will outnumber the present population of Jaques Avenue. * Such a large backpacker development will further and adversely affect the existing village atmosphere. * The proposals non-compliance with council's properly prepared controls. * The proposed building would be excessively large. * Large excavations need to be carried out with care to avoid damage to adjoining properties. * The excessive noise and smells associated with the generation of large amounts of garbage and its collection. * The proposed plan of management is unsatisfactory and cannot be relied upon to effectively manage the behaviour of the backpackers. The evidence 9 On behalf of the respondent council, expert evidence was provided by: * Mr A Biller - town planner; * Mr M Neustein - architect and town planner; * Mr C Hallam - traffic engineer; * Prof N Quarry – architect; and * Mr L Challis - acoustic engineer. 10 Whilst on site, resident objector evidence was given by: * Mr B Minglis of 13 Jaques Avenue; * Mr M Butler of 11 Jaques Avenue; * Ms M Housman of 4/16 Lamrock Avenue; * Mr I Johnson of 3/5 Jaques Avenue (Also in Court); * Ms C Gladstone of 6/82 Campbell Parade; * Ms E Horsfield of 7/92 Campbell Parade; * Mr Aberdeen of Campbell Parade; * Ms K Broad of 1/84-88 Campbell Parade; * Mr B Crawford of Campbell Parade; and * Ms S MacGregor 17/4 Campbell Parade. 11 On behalf of the applicant, expert evidence was given by: * Mr J Lovell - town planner; * Mr S Cooper - acoustic engineer; * Mr R West - traffic engineer; and * Mr S De Lapp - tourism management consultant 12 Mr B Murray, an acoustic engineer, gave evidence as the Court appointed noise expert. The issues 13 A Statement of Issues containing eight separate issues incorporating a number of sub-issues was filed and served. Having inspected the site and its environs and having considered all of the evidence and the submissions made by the advocates the principal issue which emerged was: Whether the proposal would, because of its size and intensity, have adverse impacts on the amenity of surrounding dwellings and on the amenity of Jaques Avenue. 14 Whilst some concerns were expressed as to the utilisation of the essential building envelope created by the existing consent we heard no evidence to persuade us that leaving aside the intensity and nature of the proposed land-use that the bulk and scale of the building in its context was inappropriate. 15 We also heard argument in relation to the appropriate bed density standard that should be imposed here we agree with the submissions made on behalf of the applicant that the 5.5 m sq. floor area per bed standard should not be imposed and that the 3.25 m sq. floor area per bed per bed standard would be entirely reasonable. In this regard we saw no reason why we should not follow the decision reached by Brown C in CSA Architects v Waverley Council [11102 of 2001]. 16 Relevant to any consideration of the scale and intensity issue are the following statutory provisions: 17 Clause 10(2) of the LEP requires that: The council shall not grant consent to the carrying out of any development within a zone unless the council is satisfied that the development meets one or more of the objectives of the zone. 18 The objectives of the 3(a) zone are: (a) to allow for retail, entertainment, tourist and commercial uses; (b) to allow for residential development mixed with other permissible uses so as to encourage urban consolidation and increase the vitality of localities within this zone; and (c) to control the physical and functional characteristics of business centres so as to minimise the impact on neighbouring residential areas. 19 Clause 32 of the LEP requires that regard must be had to the objectives of adjoining zones and measures to reduce the adverse impact of any proposal on development in the adjoining zone. Objective (b) of Zone No. 2(b) Residential - Medium Density is: (b) to maintain and improve the amenity and existing characteristics of the locality. 20 Objective (b) of Zone No 2(c1) Residential - Medium and High Density is: (b) to maintain and improve the amenity of the locality 21 Clause 15 of the LEP which is specific to the Bondi Beach Precinct requires that: The council must not grant consent for the erection or alteration of the building on land in the Bondi Beach precinct if the floor space ratio of the building, when erected or altered, will exceed 3: 1. 22 Clause 19(a) of the LEP, requires that: In determining a development application for development for the purposes of backpacker's accommodation, the council must consider: (a) the impact that the development will have on the amenity of the neighbourhood. 23 Various guidelines in DCP 12 particularly those relating to noise control in cl 3.3.4. 24 Clause 3.2.1 of DCP 12 sets a maximum floor space ratio of 1:1 for backpacker accommodation in the 3(a) zone. The objective associated with this standard is: The layout of a building used for the purpose of backpacker accommodation should be designed and constructed in accordance with the amenity of the surrounding locality. 25 These floor space ratio requirements have the following proviso: If a component of residential accommodation is or will be proposed within the development in the form of mixed development, the floor space ratio outlined in column 2 (1:1) applying to the site can be increased by the amount outlined in column 3 (1:1). This additional floor space may be used only for the purpose of residential accommodation. The evidence 26 Mr Neustein's main concern in relation to the proposal was that it was not in an appropriate location. A backpackers' development especially of the scale proposed would not be appropriate in this street where the residential character has been further reinforced by the approval of the residential flat building to the south and therefore the residential amenity needs to be protected. He expected that the behaviour of backpackers, even reasonable behaviour, would result in adverse noise impacts which would be exacerbated by the numbers of people generated by this development. 27 Mr Biller accepted that the envelope of the proposal was essentially consistent with that of the residential flat development approved by the Court. This was, in his opinion, the maximum potential built form of the site and while this may be acceptable for residential units it does not follow that the same envelope is appropriate for another use. In this context he contrasted the 70-person capacity of the approved development with the 366-person capacity of the proposal. He pointed out that the backpackers would have different habits or behaviours to those of the local residents of the street/Jaques Avenue and the impacts from a large number of backpackers especially noise at night, would significantly adversely affect the residential amenity of the street at the intensity proposed. He accepted, however, that the site is appropriate for a backpacker's facility but not the design or number proposed. 28 Professor Quarry recognised that the proposal was permissible in the street but was of the opinion that noise that could potentially be generated by the development from the large number of occupants, potentially 24 hours per day, would adversely affect adjoining residents. He was critical of the applicant's proposal to utilise minimum window openings or closed windows with mechanical ventilation for air conditioning as a retrofit solution. He accepted that backpackers accommodation could fit in this neighbourhood but this particular development had an intensity problem and like Mr Biller he advocated a block edge or courtyard type of design which focused inwards onto a courtyard. He was also critical of the internal amenity of the proposal having insufficient common areas and would thus be unsatisfactory for the potential number of guests. 29 Mr Lovell believed that the site was entirely suitable for this form of development being in a premier tourist location in close proximity to Bondi Beach. He did not accept that the proposal would have an inappropriate relationship with existing surrounding residential land uses. Whilst this proposal does not simply replicate the approved building he said that to follow its form is a sensible approach. He rejected suggestions that the internal amenity would not be good. In dealing with the question of floor space ratio he argued that strict compliance with the floor space ratio of 1: 1 in the DCP would result in a waste of land and an inappropriate building form hence the 3:1 floor space ratio should be applied. 30 Mr Dickson also supported the proposal arguing that the site is particularly suitable for this form of development given its proximity to shops, transport, the beach and other facilities. He pointed out that because the zoning allows a range of different land use types it is to be expected that there will be a proximity or interface between such uses and that this is what is occurring here. He was of the opinion that the proposal would provide reasonable levels of light and amenity for adjoining developments. Like Mr Lovell he argued that the application of the lesser of the two floor space ratios would result in an under-utilisation of the site and the resulting building would be inappropriate in its context. He did not accept that a block edge or courtyard form of development would be appropriate. This is important in the context of site outlook for the occupants and efficient design is the best way to achieve this is by utilising the "H" shaped footprint. Like Mr Lovell he was of the opinion that the rooms can function adequately and their amenity would be satisfactory. 31 Mr De Lapp explained that he has prepared a number of management plans for a variety of backpackers' accommodation including larger upmarket establishments. It was his experience that it is usually the smaller backpacker operations that are not properly managed by comparison with larger establishments such as is proposed here where qualified experienced staff and management are utilised. It is this professionalism that is important to enable protection of the surrounding amenity. Also the professional approach will include the establishment of an ongoing relationship with local police. The use of security cameras is a useful tool to assist in controlling on street activity together with the fact that staff are trained to deal with people who may be behaving inappropriately including those who might be alcohol affected. He also explained that most backpacker guests are either by themselves or travel as a couple and as a consequence adverse group behaviour was less likely. In his experience backpackers normally have very active days and tend to want to rest at night and not have many late nights. They also tend not to change their habits when travelling and continue to respect their neighbours. He did acknowledge however that backpackers come from a very wide demographic including young people who can be exuberant and interact with one another and may utilise the numerous late nights attractions available in Bondi and elsewhere. Conclusions 32 The matter of floor space ratio was not initially raised as an issue but became one during the proceedings. In our opinion the floor space ratio is clearly a relevant and important matter having particular relevance to the concerns raised in relation to the intensity of the proposal. 33 In dealing with the floor space ratio issue we do not accept that the different floor space ratios in the LEP of 3:1, and DCP of 1:1 are inconsistent or in conflict and fail to meet the general conformity requirement for development control plans in s 72 of the Environmental Planning and Assessment Act 1979 ("the Act"). In our opinion they can be applied together. Whilst it would be wrong to say that development on this site can only have a floor space ratio of 1:1 we see no reason why this floor space ratio, which is particular to backpacker's accommodation, should not be used in conjunction with other permissible uses in the zone to achieve a higher floor space ratio. 34 There is no identified relationship in the LEP between the 3:1 floor space ratio and the backpackers' accommodation floor space ratio of 1:1, and we accept that a mixed-use building cannot be forced on an applicant by these controls. Rather, if backpackers' accommodation is proposed, it will be subject to the applicable controls and if the maximum floorspace of 3:1 is sought to be achieved then a mixed use building may be a logical outcome. 35 In this context we do not accept the submission that a mixed-use building would be inappropriate for this site where such a building has a floor space ratio of 3:1 with other land uses such as residential units or serviced apartments making up the difference in floor space. Clearly the DCP envisages mixed use buildings by providing a bonus floor space ratio of 1:1, which can be used for residential accommodation. 36 It is our view that giving appropriate weight to the DCP means that the 1:1 floor space ratio should be given genuine consideration. The aim here is to limit the intensity of development which would, in turn, reduce amenity concerns for the surrounding residential development as required by the objectives of the LEP and the DCP. Having said this, we accept that the 1:1 floor space ratio would not necessarily mean that it could not be exceeded having regard to other relevant merit considerations including design. However in this case it seems that the 1:1 floor space ratio has been disregarded and in particular, the performance objective has not been addressed in the design of this single purpose backpackers' accommodation. 37 The fact that backpackers' accommodation is only permissible in the business zones this must, subject to a proper assessment of an application, under s 79C of the Act, comprise a prima facie indication that the site or at least the locality is suitable for such accommodation. In our opinion the site is in an appropriate location for a well-designed and well managed backpackers' development. 38 There can be no doubt that the Bondi Beach locality attracts and will continue to attract significant numbers of tourists and that there is a deficit of backpackers' accommodation available. Also we note that there are, perhaps as a direct consequence of this demand, a number of unlawful backpackers' accommodation establishments in this locality. In these circumstances it is clear that there would be a public benefit in the provision of a quality purpose built, well-designed and managed, backpackers' accommodation development. 39 However we have concluded that the proposal has not sufficiently considered and incorporated design elements or embraced management practices to sufficiently ameliorate adverse amenity impacts. The proposal therefore fails in our assessment because of the consequential non-compliance with the amenity objectives of zones 3(a), 2(b) and 2(c1). 40 Any development in a commercial zone that interfaces with a residential zone must be carefully designed and managed so as to coexist with and not have significant adverse or unreasonable impacts on the residential amenity of the area. At the same time it must be recognised by the local residents that this amenity is affected by the very nature of the Bondi Beach locality, particularly the commercial and recreation activities in Campbell Parade and Hall Street and one cannot expect the same residential amenity as in a residential area without a commercial interface. 41 Despite this we agree that the inevitable intensity of the backpackers' establishment of the scale and design proposed is not appropriate for the site. More particularly we are persuaded that the likely level of activity in Jaques Avenue resulting from this proposal, especially late at night, would cause unreasonable disturbances in Jaques Avenue sufficient to warrant refusal of the application. In this regard we do not accept that the proposed security arrangements would be sufficient to prevent such impacts. 42 We have reached this conclusion taking into account the plan of management, which even though it provides for 24-hour staffing of the reception area and security cameras these measures in our opinion are inadequate to prevent such impacts. It was contented that tourists utilising this establishment are likely to retire early at night and rise early in the morning. Whilst many may fit this description we also accept that others will not. Some are likely to take advantage of the nightlife available in Bondi and in Sydney generally and that this will, especially taking into account the large scale of this development contribute to a significantly increased level of night-time activity in Jaques Avenue. Without an effective management regime the proposed establishment could not harmoniously coexist with the surrounding residential development. 43 Isolated instances of night-time activity in Jaques Avenue may be reasonable, however, with 320 persons the statistical probability of disturbance with the proposed management regime may lead to this being a regular occurrence as opposed to an isolated incident. Residents will inevitably be disturbed, even by conversations which might otherwise not cause disturbance but because it is happening at night when ambient noise levels are low and taking into account the scale of this development, this is likely to become unacceptable. 44 It is clear that the proposal would comply with cl 10(2) of the LEP in meeting objective (a) of the 3(a) zone by providing tourist accommodation. In relation to objective (b) it would not encourage urban consolidation. It could be said to increase the vitality of this locality as sought by objective (b) but in our view this would result in a failure to meet objective (c) because it would not minimise the impact on neighbouring residential areas for the reasons we have given. 45 In taking into account the residential zones opposite and their own objectives which seek to maintain and improve the amenity of the locality it must be recognised that this is to occur in a street which contains a business zone which allows for retail, entertainment, tourist and commercial uses. But this is not sufficient to overcome our concerns as to the impacts likely to result from this proposal. 46 We recognise the concerns of residents who reside or will reside in surrounding residential buildings regarding noise likely to be generated from within this development especially at night. We accept that noisy or other misbehaviour in the accommodation rooms is unlikely to be a major source of concern this being self managed by the fact of there being strangers in the rooms who would wish to sleep without being disturbed. Beyond this any such impacts are likely to be largely mitigated by physical separation and building enclosing measures. Such noise reducing measures as recommended by the noise experts mainly comprise fixed windows and air conditioning together with the denial of access to balconies at certain times. 47 In this context we agree with Professor Quarry's concerns as to the inadequacy of the recreation areas provided solely at ground floor level given the scale of this development. One possible consequence of this is that the bedrooms may be more likely to be used for recreation purposes. 48 Whilst noise generation from within the building is unlikely to result in significant impacts particularly at night we are nevertheless concerned at the belated need to enclose the building in the manner proposed. A smaller backpackers' accommodation development would be far less likely to generate such impacts and might have been acceptable even without such enclosing measures. Whilst this aspect is not determinative it supports our view that the proposal because of its design, size and intensity would have adverse impacts on the surrounding residential amenity. 48 We have no concerns as to the bulk and scale of the proposed building and its architectural presentation in Jaques Avenue and its physical relationship to adjoining buildings for the same reasons as those given in the Court's judgement when it approved the mixed commercial and residential development for this site. However, once again the building does not reflect the available opportunity for an appropriate purpose designed establishment. 49 Overall we have not been persuaded that a backpackers' accommodation development of the size here proposed would be responsive to the objectives of maintaining and improving amenity of the zone in which the development is proposed and the adjoining residential zones. As a consequence the appeal should be dismissed and the development application refused. Orders 50 The orders of the Court are therefore that: 1. The appeal is dismissed. 2. Development Application No. LD127/04 for the construction of a backpacker accommodation facility at 6 - 8 Jaques Avenue, Bondi Beach, is determined by the refusal of development consent. 3. The exhibits are returned. ________________ T A Bly Commissioner of the Court _________________ J S Murrell Commissioner of the Court rjs 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.