Land and Environment Court New South Wales Medium Neutral Citation: Weriton Finance v Wollongong City Council [2011] NSWLEC 1046 Hearing dates: 21 & 22 October and 6, 9 & 10 December 2010 and 1 February 2011 Decision date: 09 March 2011 Before: Moore SC, Morris C Decision: 1 In Matter No 10459 of 2010, the orders of the Court are: (1) The appeal is dismissed; (2) Development Application 2009/1316 for bed and breakfast premises on proposed Lot 1 at Headland Avenue, Austinmer, is determined by the refusal of development consent. 2 In Matter No 10460 of 2010, the orders of the Court are: (1) The appeal is dismissed; (2) Development Application 2009/1317 for bed and breakfast premises on proposed Lot 2 at Headland Avenue, Austinmer, is determined by the refusal of development consent. 3 In Matter No 10461 of 2010, the orders of the Court are: (1) The appeal is dismissed; (2) Development Application 2009/1318 for bed and breakfast premises on proposed Lot 3 at Headland Avenue, Austinmer, is determined by the refusal of development consent. 4 In Matter No 10462 of 2010, the orders of the Court are: (1) The appeal is dismissed; (2) Development Application 2009/1319 for bed and breakfast premises on proposed Lot 4 at Headland Avenue, Austinmer, is determined by the refusal of development consent. 5 In Matter No 10463 of 2010, the orders of the Court are: (1) The appeal is dismissed; (2) Development Application 2009/1320 for bed and breakfast premises on proposed Lot 5 at Headland Avenue, Austinmer, is determined by the refusal of development consent. 6 In Matter No 10464 of 2010, the orders of the Court are: (1) The appeal is dismissed; (2) Development Application 2009/1321 for bed and breakfast premises on proposed Lot 6 at Headland Avenue, Austinmer, is determined by the refusal of development consent. 7 In Matter No 10465 of 2010, the orders of the Court are: (1) The appeal is dismissed; (2) Development Application 2009/1322 for bed and breakfast premises on proposed Lot 7 at Headland Avenue, Austinmer, is determined by the refusal of development consent. 8 In Matter No 10231 of 2010, subject to satisfaction of the directions concerning this matter, the appeal will be upheld and Development Application 2009/1313 for the consolidation of nine existing allotments and re-subdivision into eight allotments of land and for the demolition of the existing structures on the site at Yuruga Street and Headland Avenue at Austinmer will be determined by the granting of development consent for the proposed demolition only - subject to the filing, electronically and in hard copy, of settled conditions of consent for the approved demolition works. 9 In Matter No 10528 of 2010, subject to satisfaction of the directions concerning this matter, the appeal will be upheld and Development Application 2009/1315 for the erection of serviced apartments and associated spa resort and restaurant facilities will be determined by the granting of development consent subject to the provision of a revised version of plans DA-MP-201 and DA-MP-202 reflecting the changes required to the proposed spa resort facility elements discussed in para 116; and the filing, electronically and in hard copy, of settled conditions of consent reflecting the terms of this decision relating to consolidation of the site and landscaping of the area to the north of the proposed serviced apartment/spa resort building. Catchwords: DEVELOPMENT APPLICATION; visual impact; characterisation; impact on local heritage items (Norfolk Island pines); Aboriginal cultural heritage; compliance with mandatory LEP prerequisite to demonstrate a clear need for the service [bed and breakfast accommodation] in the area; consolidation and re-subdivision. Legislation Cited: Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Wollongong Local Environmental Plan 1990 Wollongong Local Environmental Plan 2009 Cases Cited: Ali v Liverpool City Council [2009] NSWLEC 1327 Weriton Finance v Wollongong City Council [2010] NSWLEC 1301 Weriton Finance v Wollongong City Council (No 2) [2010] NSWLEC 1313 Category: Principal judgment Parties: Weriton Finance Pty Limited (applicant) Wollongong City Council (respondent) Representation: Counsel: Mr A Pickles (applicant) Mr A Galasso SC (respondent) Solicitors: Mr D Briggs D G Briggs & Associates (applicant) Mr M Cottom Kells the Lawyers (respondent) File Number(s): 10231; 10459 to 10465; 10528 of 2010 Judgment Introduction 1The Headland Hotel (the hotel) at Austinmer has seen better days. Indeed, it is clear from the historic photographs that are in evidence that the slide from its former glory through (and, indeed, possibly past) genteel shabbiness has left the site as one ripe for redevelopment. The attraction for redevelopment of the land upon which the hotel is located lies in its position on a prominent coastal headland in the northern suburbs of Wollongong. The overall parcel of land upon which the hotel is located (the site) presently comprises 9 different allotments - all of which collectively comprise a tourist use zoned island, separated by Yuruga Street from the residentially zoned precinct immediately to its west. The headland, prior to its development for the hotel, played host to a saltworks at a location that can currently not be ascertained from any archaeologically obvious remnants or from any historical texts. 2The existing hotel development is fringed, along its Yuruga Avenue frontage and the southern portion of its frontage to the unmade Crown Road by plantings of Norfolk Island pine trees. These trees have been listed, collectively, as a heritage item under the 1990 LEP but they are not state heritage recognised. In addition, there are a small number of Norfolk Island pines within this group that are located on the fringe of the site along its Headland Avenue frontage. 3The site has an area of 6845 sq m. It is generally triangular in shape with the apex of the triangle to the south. It has a frontage of ~ 110 m to Yuruga Street and one of ~ 97 m to Headland Avenue. The proceedings 4For reasons that are not known (and are also irrelevant), proposals for redevelopment of the site were the subject of a number of concurrent development applications lodged with Wollongong City Council (the council). Together, they constitute a package redevelopment proposal, including re-subdivision to change the allotment pattern as discussed later. The council rejected that combined package and this rejection resulted in these proceedings that involve nine separate appeals. For the most part, the fact that there are numerous proceedings rather than a single set of proceedings does not cause any problems in the consideration of the merits of the various proposals. 5We have already given two preliminary decisions concerning various elements of these appeals. One of them, Weriton Finance v Wollongong City Council [2010] NSWLEC 1301, related to costs issues as a consequence of various amendments proposed to portions of a number of the elements of the proposal resulted in a number of costs orders pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 in a number of these proceedings (but not in all of them). Those matters do not bear, in any respect, on the consideration in this decision of the merits of the development. 6However, the second of the earlier decisions, Weriton Finance v Wollongong City Council (No 2) [2010] NSWLEC 1313, dealt with whether or not elements of the overall proposal required to be examined through the lens of cl 11 Wollongong Local Environmental Plan 1990 (the 1990 LEP) or not. Our earlier determination, in that case, that elements of the development required such consideration raises specific matters for consideration discussed later in this decision. The proposal 7Although there are nine separate appeals representing nine aspects of the total development, it is convenient, at least in the initial phases of this decision, to describe the proposal as a single development package although, later, for reasons that will be apparent, not all issues are applicable to all of the elements of the proposal. 8The development package, overall, comprises a proposal to aggregate and re-subdivide the site so that, in lieu of the present subdivision pattern these proceedings would result in one that would have a new subdivision pattern comprising seven allotments facing Headland Avenue, each of which is proposed to be residential in scale, and a residual allotment with its street frontage to Yuruga Street (this allotment, proposed Lot 8, is to have an area of ~ 2940 sq m and be triangular in shape). One of the seven allotments proposed to be facing Headland Avenue, proposed Lot 2, would have the benefit of a right of carriageway over its western adjacent allotment facing Headland Avenue (proposed Lot 1) and over the residual allotment (proposed Lot 8). The proceedings that are the vehicle for the subdivision application (and demolition of the present hotel buildings) are Matter No 10231 of 2010. 9Shown below are two plans that illustrate the present subdivision pattern (Figure 1) and the proposed subdivision pattern (Figure 2). Figure 1 Present subdivision pattern Figure 2 Proposed subdivision pattern 10It is pertinent to note that the eastern boundary of the overall development site is defined by an unmade Crown Road that separates the site from a narrow coastal reserve that commences at the southern end of the headland (at Markeys Beach) and continues to Headland Avenue where, at the eastern end of the present formation of Headland Avenue, there is a Crown reserve that covers the remaining land of the headland to the north and east. This reserve slopes from the headland and Headland Avenue to the adjacent beach, frontal dune parking area and boat ramp in a sheltered rocky cove to the north and immediately below the headland. 11On each of the allotments fronting Headland Avenue, it is proposed to erect a dwelling house and associated bed and breakfast facilities. These are proposed to be located on allotments to be known as Lot 1 to Lot 7, from west to east, along Headland Avenue. These dwelling houses and associated bed and breakfast facilities are the subject of Matters No 10459 to 10465 of 2010. It is convenient, for the remainder of this decision, to refer to these proposals as "the bed and breakfast proposals" and, as necessary, to refer to them by Lot number only when one or more specific bed and breakfast proposal needs to be discussed. The appropriate assessment process for the bed and breakfast proposals was the subject of our earlier decision in Weriton Finance v Wollongong City Council (No 2) [2010] NSWLEC 1313. 12On the large proposed residual allotment (comprising approximately the southern 40% or so of the total site), it is proposed to erect a serviced apartment complex with associated restaurant and spa facilities. This element of the proposed development package is the subject of Matter No 10528 of 2010. The issues 13Before setting out the issues with any specificity, it is convenient to note that, unless substantial portions of the development proposals embodied in the total package are approved, Mr Pickles, counsel for the applicant, has indicated that the applicant does not wish to be given development approval that would be confined, solely, to approval for the revised subdivision pattern earlier shown in Figure 2. However, we do not understand there to be any issue raised by the council (if some or all of the total development proposal is approved) in opposition to demolition of the existing structures on the site that forms part of the subdivision application proceedings. 14It is also appropriate to note that a number of the issues that were raised with respect to the totality of the proposal could also have required consideration and determination with respect to specific subordinate elements of the proposal. In light of what follows, not all needed to be dealt with for reasons that are self evident from the remainder of this decision. We have endeavoured to define, in the list reproduced below, the issues that are raised and the way they require to be assessed and determined with respect to the totality or any relevant component parts of the overall development package. 15The issues, therefore, can be listed, in summary - noting what aspects of the development require consideration in each instance, as follows: * Visual impact (the whole development package; the bed and breakfast proposals in total; the serviced apartment/spa resort; and the bed and breakfast proposals on Lots 6 and 7); * The impact on the heritage listed Norfolk Island pine trees (the serviced apartments/spa resort); * Parking (the serviced apartments/spa resort); * Permissibility (the bed and breakfast proposals as a group; and aspects of the serviced apartments/spa resort); * Aboriginal cultural heritage (the whole site; and Lots 6 and 7); and * European industrial use heritage issues (the whole site). 16An issue concerning a threatened species that occurs on the headland was resolved during the course of the joint conferencing between the relevant experts and does not require further consideration by us. The planning controls 17The various applications were lodged at a time when the 1990 LEP was the relevant environmental planning instrument. This planning instrument has subsequently been replaced by the Wollongong Local Environmental Plan 2009 (the 2009 LEP). The 2009 LEP is the new local environmental plan for the council's area based on the Standard Instrument required to be implemented throughout the state. The 2009 LEP contains, as is the common position with all local environmental plans derived from the Standard Instrument template, a savings and transitional provision contained in clause 1.8A. This provision is in the following terms: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not finally been determined before that commencement, the application must be determined as if this Plan had not commenced. 18Although several development control plans, past and present, were discussed in both the evidence and the submissions of the proceedings, they do not need to be recorded here for reasons that will emerge from that which follows. 19State Environmental Planning Policy 71 - Coastal Protection (SEPP 71) is also relevant but does not impact on the outcome of these proceedings. The site inspection 20We undertook a site inspection that commenced with a view from Sublime Point Lookout, at the top of the Illawarra escarpment, over the coastal plain of the northern suburbs of Wollongong. This enabled us to obtain an appreciation of the pattern of hinterlands along this portion of the coast and the extent to which the Headland Hotel's promontory was a significant element of the coastal headland/beach pattern. 21From Sublime Point Lookout, we made the transit down the Bulli Pass to the coastal plain. The inspection that followed comprised not only an inspection of the site (including lay evidence opposing and supporting the proposal) but also included evidence from the relevant experts during the course of the site inspection and, with respect to visual impact issues, from coastal locations to the north and south of the site. 22It is here appropriate to observe an unusual twist in the evidentiary unfolding of the proceedings. For the site inspection, one of the experts who participated on behalf of the applicant was Mr Rowan Dickson, an urban designer. Mr Dickson had produced an extensive report critiquing design aspects of the proposal including a number of schematics depicting the proposed development from various locations. Mr Dickson's report constituted a platform for significant elements of evidence given on behalf of the council by Dr Lamb, the council's visual impact and heritage impact expert, and Ms Morrish, the council's urban design expert. 23Mr Dickson's report was tendered in the proceedings and admitted as evidence. However, subsequently, for reasons about which we neither enquired nor now need to speculate, Mr Dickson played no further evidentiary part in the proceedings. However, a number of the schematics contained in Mr Dickson's statement of evidence were also the subject of informal evidence given by him, by Dr Lamb and by Ms Morrish during the course of the inspection. 24As a consequence, although Mr Dickson played no further part in the proceedings and gave no oral evidence in the courtroom, we considered it appropriate, indeed necessary, for the understanding of the evidence of Dr Lamb and Ms Morrish, to retain his statement as part of the tendered evidence. In addition, for reasons that will emerge later, one of the schematics in his report, reproduced in this decision, is of importance in our understanding of (and findings concerning) a significant element of the visual impact assessment case as it relates to the proposed serviced apartment/spa resort development on proposed Lot 8. The bed and breakfast proposals - compliance with cl 11 of the 1990 LEP 25Mr Galasso SC, for the council, submitted that the proposed bed and breakfast development elements are not permissible because of what he says are three non-compliances with cl 11 of the 1990 LEP. These non-compliances were said to be: * inconsistency with the zone objectives of the 6 (c) (Tourism Zone); * non-satisfaction of cl 11(2)(c); and * non-satisfaction of cl 11(2)(g). 26Each of these alleged non-compliances, if made out, is fatal to the bed and breakfast elements of the proposed development. 27The terms of cl 11(2) are as follows: (2) The Council shall not grant consent to a development application to which this clause applies unless it is satisfied that: (a) the development is consistent with one or more of the objectives of the zone in which it is proposed that it be carried out, (b) the development is necessary for any one of the following reasons: (i) it provides a service primarily for the area, (ii) it meets an urgent community need, (iii) it comprises an owner-occupier operated small scale tourist related development, (iv) the most exceptional circumstances apply, (c) no more appropriately zoned site or (if appropriate) accommodation is available in reasonable proximity to the proposed development or the proposed development constitutes a change from an existing use, within the meaning of Division 10 of Part 4 of the Act, (d) adequate car parking (if relevant) can be provided and any increase in traffic will be small compared to existing traffic, (e) there will be minimal interference with the amenity of the area, (f) the development is generally in character with the scale and ambience of the immediate area, and (g) if the development will provide a service, there is a clear need for the service in the area. 28As can be seen from the language of cl 11(2), each of elements from (a) through to (g) must be satisfied - although only one element of (b) must be satisfied. 29The incompatibility with the zone objectives is said to arise as a consequence not only of the broader necessity to satisfy the zone objective but also as a consequence of cl 11(2)(a). The zone objectives said to be transgressed are in the following terms: (a) to identify areas of, and encourage tourist orientated development in, designated tourism precincts, and (b) to allow some diversity of activities that will not prejudice achievement of the objective referred to in paragraph (a) or significantly detract from the character of the locality or the amenity of any existing or proposed development in the locality. 30The next provision of cl 11 that is said to be transgressed is cl 11(2)(c) which is in the following terms: (c) no more appropriately zoned site or (if appropriate) accommodation is available in reasonable proximity to the proposed development 31The final provision of cl 11 that is said to be transgressed is cl 11(2)(g) which is in the following terms: (g) if the development will provide a service, there is a clear need for the service in the area. 32We have considered how we should approach our analysis of and determination concerning the transgressions said by the council to exist with respect to these three provisions. 33We have concluded, for the reasons that follow, that there is no proper evidentiary bases upon which we could be satisfied that the bed and breakfast elements of the proposal satisfy cl 11(2)(g). 34As a consequence, for the reasons that also follow in our analysis of the relationship between the 1990 LEP and the 2009 LEP, we are satisfied that the appeals in Matters No 10459 to 10465 of 2010 must fail. Having reached that conclusion, we are of the view that it is unnecessary to express any opinion on the other two transgressions that are said to exist of cl 11 because, even taking the applicant's case at its highest concerning those two provisions, the bed and breakfast appeals must still fail for the reasons that follow. Compliance with cl 11(2)(g) 35As noted above, for cl 11(2)(g) to be satisfied, we must conclude that "there is a clear need for the service in the area". 36Mr Pickles submits that the clear need for the bed and breakfast premises in the area is demonstrated by the matters discussed in a report prepared for the council entitled the Economic Development Roadmap Final Report - November 2003 (the Roadmap). This report was prepared by a consultancy for the council - this self evidently dates from no later than November 2003. 37First, we observe that a critical element of this part of the proposal is that it is capable of being approved as bed and breakfast accommodation - this being a specific and defined term in the 1990 LEP. 38It is not suggested that, because of the nature of the structures proposed to be utilised on what are proposed to be Lots 1 to 7 that the proposal is to be characterised by reference to some broader tourist-type development. The applicant's case is based on a very specific foundation that this development is specifically to be regarded as dwellings to be used as bed and breakfast accommodation. As a consequence, we are of the view that the service with respect to which there must be a clear need in the area established by the applicant is that for bed and breakfast accommodation rather than for tourism accommodation generally. 39However, if we were wrong on this point, our following analysis is also generally applicable to establish the irrelevance of the November 2003 report as providing any contemporary basis for drawing any conclusion as to the state of any current "clear need for the service in the area" - this phrase in the 1990 LEP being in the present tense - for tourism development generally. 40As a consequence, we have carefully considered the terms of the November 2003 report to see whether or not that document, but even assuming it were capable of providing a sufficient contemporary foundation for satisfaction of this provision, a proposition that we reject for the reasons discussed below, it could support the proposition that there is a clear need for bed and breakfast accommodation in the area. 41In this regard, we have had to consider what might constitute a reasonable geographic definition of the area for these purposes. Whilst we are of the view that it is reasonable to consider that the area is not merely confined to the suburb within which the proposed development is located, we also do not consider that the area should extend to the totality of the Wollongong local government area (that is from Helensburgh in the north to the southern end of Lake Illawarra in the south). However, as a broad proposition, we consider that the area should be regarded as encompassing at least the northern suburbs of Wollongong and, possibly, the city's central business district and its immediate fringes. 42What has been provided to us, as supporting the submission that cl 11(2)(g) is satisfied, is merely an extract from the Roadmap. The extract comprises pages 81 through 88 of a self-evidently much longer document. The extracted chapter is entitled 5.6 Experience Industries and deals with what the Roadmap defines as comprising such experience industries - these being: * Tourism - restaurants, accommodation, conferences * Arts and culture * Entertainment 43The extract commences with a diagram that shows what are the drivers for such industries and defines the policies that influence those industries. It then proceeds, separately, in 5.6.1 Cultural Industries and, in 5.6.2, Tourism , to discuss these two separate topics. A careful reading the whole of the elements of the Roadmap dealing with cultural industries, particularly that section which deals with constraints for cultural industries, makes it clear that there is nothing within this element of the extract from the Roadmap that relates to bed and breakfast accommodation, specifically, or tourism oriented accommodation, in general. 44The section of the Roadmap that deals with tourism commences on page 84 in the extract from the document. It commences, in the overview, saying: Wollongong's strength as a tourist destination is its day visit appeal. The city still rates relatively poorly as a short break destination compared with other NSW locations. Developing the short term visitor market along with business conferences, presents major opportunities to expand tourism. In 2001 there were over 280,000 overnight stays in the Wollongong Local Government Area (Source: Tourism Wollongong based on IRIS estimates). In that year, just over $19 million was spent on tourist accommodation (source: Tourism Wollongong based on IRIS estimates). 45We note that the quoted number of overnight stays of visitors to the Wollongong Local Government Area that were estimated to have occurred in 2001 was 280,000 - data that is now a decade old. We also note, in this regard, that the applicant has provided no more recent material. 46After the overview, the Roadmap continues, under the heading Accommodation, to make an opening statement and to provide a table that is headed Accommodation Summary Wollongong. The first matter to be noted with respect to this element of the Roadmap is that the opening sentences read: Analysis of the latest Wollongong Accommodation Guide shows there is a wide range of accommodation types available in Wollongong. The following table summarises the types of accommodation, the numbers of establishments, and the numbers of beds/rooms on offer. 47This comment is immediately qualified by the additional comment that it should be noted that this is not an exhaustive list of accommodation facilities in Wollongong . 48There is then set out a table that shows that, at an whatever was the date of the then latest Wollongong Accommodation Guide [the cited source for the table], a date not known but obviously earlier than November 2003, there were nine bed and breakfast establishments with 20 rooms available. Within this tabular analysis of available accommodation, there is no commentary concerning unsatisfied demand for or additional need for any accommodation of this type. 49Having dealt with a number of comments concerning what might be termed recreational tourism, the advantages of that and the attractions within the Wollongong Local Government Area that, at that time, would have stimulated such tourism, the Roadmap moves on to consider business tourism. 50Under the heading Business Tourism, after an analysis of the comparative range of venues and capacities in Wollongong and five other regions that might be regarded as competitive with Wollongong for the non-Sydney metropolitan convention or conference market, the Roadmap makes its first comment that can be inferred as reflecting a then, in 2003, need for additional accommodation for the business tourism market. It notes that There has been little change in the room availability over the last 4 years . The Roadmap then says: Our consultations with major conference facility operators suggested that large conferences can have positive economic impacts for Wollongong, but that a lack of accommodation in the city has meant that large events have been turned away in the past. The city is seen as requiring another 4 star hotel with conference facilities to operate successfully in this market. The proposed hotel development at the university's Innovation Campus has the potential to provide additional accommodation and facilities. 51Under the constraints for tourism, the Roadmap identified four constraints. These were, in November 2003, listed as follows: * The lack of package deals for day trips and short visits * The lack of a major iconic tourist attraction * The availability of accommodation during peak times * Lack of conference facilities. 52The Roadmap also identified a number of other constraints that are not presently relevant. 53The data then discussed (on page 86) - concerning the image of Wollongong for potential recreation or business tourism visitors - is derived from the Wollongong Image Study June 2002 (IRIS), this study being at least a year older than the Roadmap itself. 54The Roadmap then continues to deal with strategic directions quoting from a document described as of the then current Tourism Wollongong Action Plan 2002-2005. It promotes this plan as outlining a three year strategy comprising: Tier One - develop and implement strategies for niche markets, operate the Visitor Information Centre as a business unit, continue to provide membership services Tier Two - develop conference and events market, develop backpacker market, develop new products, international markets, improve communication and distribution, funding, cooperative marketing with Illawarra Tourism and Tourism NSW Tier Three - research, community awareness and tourism product knowledge 55The Roadmap then proceeds to set out, in an adapted form, what the authors of the Roadmap derived as the market segments that the Tourism Wollongong Action Plan 2002-2005 had identified as being appropriate as the strategic focus for that plan. 56Before setting out those identified market segments, it is appropriate to note, specifically, that the Tourism Wollongong Action Plan 2002-2005, it is reasonable to infer in our view, was necessarily developed and adopted at some time prior to 2002. The market segments identified by the Roadmap as derived from the Tourism Wollongong Action Plan 2002-2005 are (omitting the commentary - as being, in our view, irrelevant for this analysis): * Free independent travellers * Package business * Conferences and meetings * Backpacker/student * Coach tours and groups * International visitors * Education groups * Sporting events 57The Roadmap then, in 5.6.3, deals, very briefly, with what is described as Future Potential - Experience Industries. Given the brevity of this element of the Roadmap, it is appropriate to quote it in full: Experience industries are important to Wollongong's future. They currently account for around 4700 jobs. Key issues for the future + Redevelopment of the city centre + Development of cultural programs and facilities + Waterfront development + Development of business tourism-conventions + Additional hotels + Development of entertainment precinct + City positioning and marketing + Regional population and income growth Employment growth potential and policy requirements are discussed in section 6. Experience industries will be impacted by a range of forces and programs including: Key development programs + Central city redevelopment + Government cultural funding + Council program funding + City promotion + Tourism programs + Development of the city precincts 58We have set out these extracts from what is, in itself, self-evidently an extract from a much larger document in order to make clear the basis upon which we have drawn a number of conclusions as intermediate steps in our overall assessment concerning whether or not the proposed bed and breakfast accommodation element of this development proposal can satisfy cl 11(2)(g) of the 1990 LEP. The propositions that can be drawn from the Roadmap that are relevant to our consideration of the need to satisfy cl 11(2)(g) are: * The data upon which the November 2003 Roadmap is based on is, at least in part, up to some two years older; * There was, at the time the Roadmap was being prepared, an apparently (then) current Wollongong Accommodation Guide, a guide that was, by its description as being the latest, obviously one of a series of such publications; * Although this accommodation guide provided information that showed only 9 bed and breakfast establishments in the Wollongong Local Government Area at that time, that data is acknowledged as being incomplete; * We have been provided with no version of any Wollongong Accommodation Guide, if later versions to that cited in the Roadmap are available, that could provide any more contemporary analysis of accommodation availability in the Wollongong Local Government Area than that contained in the Roadmap based on analysing data available in 2003; * Although the Roadmap sets out the number of bed and breakfast facilities available at that time, its identification of the need for a further 4 star hotel to cater for the business tourism market provides no support whatsoever for any inference that, in November 2003, there was any clear need for any additional bed and breakfast accommodation to service the business tourism market; * Nothing identified in the then Tourism Wollongong Action Plan 2002-2005 strategy components cited in the Roadmap extract specifically identifies a need for additional bed and breakfast accommodation. To the extent that the Tourism Wollongong Action Plan 2002-2005 envisages development of additional markets that might potentially be satisfied by bed and breakfast accommodation (these being, in our assessment, niche markets and the backpacker market), there is no evidence that any such development has been undertaken to create a current clear need for accommodation of the type envisaged in these proposals; * In addition, an examination of the nature of the development here proposed makes it clear, in our opinion, that this proposed accommodation could not reasonably be regarded as targeting a backpacker market, in any event; * The Roadmap enumeration of the market segments proposed to be the subject of a strategic focus of an action plan also makes it clear that the inference set out immediately above for development of new accommodation for the backpacker market element of the action plan is not consistent with this proposed bed and breakfast accommodation as the description given of this market segment is in the following terms: Backpacker/student - create a home base for young travellers while participating in an adventure activities, hang gliding, parachuting etc 59The two possible elements of these strategic focuses that might create demand to which this proposed bed and breakfast accommodation might be addressed are the Free independent travellers and International visitors . However, the Roadmap is merely quoting what we consider must be a document at least a decade old (and one expressed, by its title, to have run its course by 2005) and merely as having an objective of developing a market . The Roadmap provides no evidence that, at that time [2003], there was actually an unmet market, even at that time, that could be regarded as demonstrating a clear need for such accommodation as is proposed in the bed and breakfast elements of this development proposal. 60To the extent that there is any specific identification of an unmet market, this is clearly identified as being a need for a 4 star hotel with convention facilities, quite clearly not a market segment addressed by this proposal. 61As a consequence, we decided that we should take the applicant's position with respect to cl 11 at its highest, that is that the necessary cl 11 assessment is a composite one of dwellings to be used as bed and breakfast accommodation rather than sequential and separated one of assessment of dwellings followed assessment of the proposed use as bed and breakfast accommodation and apply the matters distilled above to that position. Even doing so, the following propositions drawn from the analysis of the Roadmap material must necessarily be derived, in our opinion: * In 2003, there was a comparatively small number of bed and breakfast accommodation establishments in the Wollongong Local Government Area; * The only tourism development for which there was a clear need in 2003 identified by the Roadmap was for a 4 star hotel with convention facilities, a need not relevant to the present proposals; * To the extent that the Roadmap identifies elements that might be capable of inferring that there could be some future need for increased tourism accommodation by the pursuit of identified strategies, such strategies being merely conceptual and not specific in the Roadmap, there is no evidence that such strategies were developed - let alone implemented; * To the extent that the Roadmap identifies such strategies, in any event, there is nothing in the document that could provide any inference that such strategies should be targeted at the creation of demand for bed and breakfast accommodation of the nature here proposed; * There is no evidence later than 2003 of what accommodation facilities are/were available in the Wollongong Local Government Area, generally, or of bed and breakfast accommodation specifically; * The most recent data in or inferences to be drawn from the Roadmap are those at the end of 2003 and some of the material is some two years earlier than that; and * There is no evidence of what further tourism action plan, if any, was adopted by the council for the period after the Tourism Wollongong Action Plan 2002-2005 cited by the Roadmap - a plan expiring at some time in 2005. 62As a consequence, we cannot be satisfied that, in 2003, there was any clear need for further bed and breakfast accommodation and there is absolutely no evidence to demonstrate that that position has altered over the period since the publication of the Roadmap. 63As a further consequence, there is, in our view, not a scintilla of evidence of any nature whatsoever provided on behalf of the applicant that could found the satisfaction of cl 11(2)(g) for the bed and breakfast elements of the proposal as a specific category of tourism development or as part of some broader, general of tourism development range. 64As a consequence, we are of the view that, with no relevant, contemporary evidence addressing cl 11(2)(g) being provided - a position which for the reasons set out above at some length has not occurred - we are of the view that, at least from the time our decision in Weriton Finance Pty Ltd v Wollongong City Council (No 2) [2010] NSWLEC 1313 was read and considered by the applicant, the appeals in Matters Nos 10459 to 10465 of 2010 have been without any prospect of success whatsoever absent the production of relevant, contemporary evidence aimed at satisfying the prerequisite test in cl 11(2)(g). 65Whilst it is entirely inappropriate for us to speculate how the applicant might have sought to provide more contemporary material in order to satisfy us on this point or for us to delineate some specific point of time to found evidence that could provide such satisfaction to us, a document that is seven years old and which is necessarily based on data derived from some time earlier than the date of that final report cannot be used to provide support for a contemporary conclusion as to what is the state of the demand for tourism accommodation, generally, or bed and breakfast accommodation specifically. 66In reaching this conclusion, we also observe that we have not found it necessary to determine whether or not the assessment process required is one that necessitates an initial assessment of the dwelling house element (and the conclusion that this should be approved) as a precursor step to an assessment of the merits of the bed and breakfast component. We have concluded, in this context, that the outcome described above does not require this and the conclusion we have reached must follow even taking the applicant's case on this point at its highest. The effect of the 2009 LEP 67At the time these various applications were made to the council, the 2009 LEP was a draft document and had not come into effect. It has subsequently done so and this occurred on 26 February 2010. As a consequence, as we understand the position, it is agreed that we should treat the 2009 LEP as being imminent and certain for the purposes of our consideration of these applications. 68The 2009 LEP is the local environmental plan for Wollongong based on the Standard Instrument and, as a consequence, it contains the Standard Instrument's transitional provision contained in cl 1.8A. This transitional provision is in the following terms: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not finally been determined before that commencement, the application must be determined as if this Plan had not commenced. 69It follows that the 2009 LEP is, in our view, entitled to considerable weight in our assessment of these proposals but is not determinative. 70The relevant significant element of the 2009 LEP concerns uses that are permitted in the SP3 Tourist zone - the land use zone within which the site has been mapped under this plan. One of the uses permitted in this zone, with consent, is Tourist and visitor accommodation . This term is defined as follows: tourist and visitor accommodation means a building or place that provides temporary or short-term accommodation on a commercial basis, and includes hotel or motel accommodation, serviced apartments, bed and breakfast accommodation and backpackers' accommodation. 71In addition, the 2009 LEP does not include any provision in the terms of or having the assessment effect of cl 11 of the 1990 LEP. The overall effect of this is that the bed and breakfast elements of the proposal would be permissible pursuant to the 2009 LEP subject only to a conventional merit assessment under the provisions of s 79C of the Environmental Planning and Assessment Act 1979. 72However, because of there being no evidence whatsoever, as earlier discussed, that could satisfy the mandatory requirement of cl 11(2)(g) of the 1990 LEP, an assessment confined to the terms of the 1990 LEP would mean that we are forbidden to approve the bed and breakfast elements of the proposal because this mandatory pre-requisite has not been satisfied. 73Whilst we are of the view that significant weight is to be accorded to the 2009 LEP in any discretionary assessment of matters of merit, this weight, in our view, should be less than determinative as earlier observed. We do not consider that the provisions of the 2009 LEP warrant being given sufficient weight to set aside the absolute failure to satisfy a mandatory pre-requisite for approval of the development under the 1990 LEP. 74If the failure to comply with the mandatory prerequisite has the effect of rendering the proposal incapable of being granted consent, as is here the case with the bed and breakfast elements of the proposal, we do not consider that the terms of the 2009 LEP can be called upon to rectify such a fundamental and fatal defect in the applications for each of these elements of the proposal. Visual impact of the bed and breakfast proposals as a whole 75Because of the conclusion that we have reached concerning permissibility of the bed and breakfast elements of the proposal is one which might be challenged pursuant to s 56A of the Land and Environment Court Act 1979, we also consider it appropriate, consistent with the objectives set by s 56 of the Civil Procedure Act 2005 for the just, quick and cheap resolution of the issues in dispute between the parties to consider the remaining merit aspects relating to the overall bed and breakfast element of the proposal. 76We have done this so that, if we were to be wrong in concluding that that a relevant and critical pre-requisite threshold requirement under the 1990 LEP had not been satisfied, the parties would not need a further hearing, on a remitter, concerning those matters as our conclusions on these merit matters are also fatal to the bed and breakfast element of the proposal. 77As a consequence, the first element to which we turn our attention is the council's contention that the visual impact and presentation of the bed and breakfast elements of the development proposal is unacceptable. 78As earlier noted, Mr Dickson, the expert proposed to give evidence on these matters on behalf of the applicant, ceased to be available to give evidence during the period after the site inspection took place and prior to the courtroom evidence on this topic. 79As a consequence, with respect to urban design and visual impact assessment expertise, the evidence given on behalf of the council by Ms Morrish and Dr Lamb, respectively, is uncontradicted. On the other hand, although there is no expert evidence produced by the applicant to rebut these opinions, Mr Pickles had tendered photographic evidence on behalf of the applicant of earlier periods in the hotel's development and earlier built form on the headland site. Mr Pickles submitted that these photographs established both the past presence of (and earlier acceptability of) buildings on the headland further to the east than the present accommodation wing on the site - a built element that has survived from the earlier development phases of the hotel. 80In addition, it is relevant for at least part of our visual impact assessment to have regard to the schematics that were produced by Mr Dickson and which remained in evidence despite his cessation of participation in the proceedings. One of his schematics we found of particular assistance during the site inspection was that produced from the perspective of the headland immediately to the south of the site (although it is produced as a perspective taken from a point some 30 m or so to the west of the place where this was discussed during the course of the site inspection). This schematic is reproduced below: Figure 3 Mr Dickson's schematic 81In summary, the position put by Dr Lamb is that the visual impact of the collective row of bed and breakfast elements of the proposal is unacceptable when viewed from the immediate north or in an immediate streetscape context. His position on this, as we understood it, was that the development was too suburban looking in its presentation with a series of separate driveways and lack of opportunity for vegetative screening. He expressed a preference for a greater massing and was of the view that a single, larger building (that made it obvious that this was a tourist complex rather than a row of residences) was a preferable design outcome. 82He did, however, express the view that eliminating all vehicle access (or at least significantly lowering the number of driveways) from Headland Avenue in its entirety would render these elements of the proposal acceptable - at least to the extent of those proposed on proposed Lot 3 through to proposed Lot 5. He retained a specific objection, on visual impact grounds, to the proposed developments on proposed Lots 6 and 7. 83Had we reached some different conclusion on the unacceptability of the overall visual impact of the of the collective bed and breakfast elements of the proposal, Lots 6 and 7 would have required separate detailed visual impact assessment, in addition to this overall general visual impact consideration. However, given our overall conclusion on the unacceptability of this row in its entirety, we do not need to undertake this further consideration. 84Ms Morrish's position, as we understood it, was that the design of the built form proposed for the bed and breakfast elements of the development proposal was repetitious and not of high design standard which, in urban design outcome terms, she considered was necessary given the dominance of the headland when viewed, particularly, from the north. 85As earlier noted, because Mr Dickson ceased to participate in the proceedings, these opinions were uncontradicted. They also, in general, are consistent with the opinions we formed during the course of the site inspection and our consideration of Dr Lamb's photomontages and the various schematics produced by Mr Dickson depicting the development when viewed from the north. These general opinions are quite separate from any distinct and specific concerns relating to the proposed bed and breakfast elements on proposed Lots 6 and 7. 86We do not consider that, taken by themselves, Ms Morrish's concerns warrant refusal of the bed and breakfast elements as a totality. The standard of design against which we are obliged to assess the proposal is mere acceptability rather than a requirement for design excellence. Whilst we do accept the proposition that the nature of this site warrants special assessment because of its prominence, nonetheless the repetition of the design elements and the modesty of the design aspirations, in themselves, do not warrant refusal of the totality of this element of the development proposal. However, the combination of the ordinariness of the design when coupled with the uncontradicted criticisms by Dr Lamb, which we accept from our own observations during the course of the site inspection to be valid, does provide the basis for refusal of the bed and breakfast elements. 87Although we do not propose to undertake the separate assessment of the elements of the bed and breakfast proposal located on proposed Lots 6 and 7, the broader possibility of rendering those elements of the bed and breakfast proposal located on proposed Lots 3 to 7 - being those proposed allotments that have driveway access proposed from Headland Avenue - acceptable should be undertaken. This arises as the unacceptability of the bed and breakfast proposal would, in Dr Lamb's opinion, be sufficiently addressed if it were possible to remove all driveway access (or at the very least, dramatically reduce) the number of driveways from Headland Avenue. Access to the elements of the bed and breakfast proposal located on proposed Lots 1 and 2 is to be from Yuruga Street. 88For the reasons which we set out below, we do not believe we are in a position to be satisfied that either of these alternatives could be available as an outcome to be imposed by us in these proceedings. 89We turn, first, to the proposition that all driveways for these eastern five proposed bed and breakfast premises could be provided underground from the rear (utilising some form of mandated right-of-way over and redesign of the car park of the proposed serviced accommodation/spa resort development). 90Whilst there are nine separate proceedings rather than a single appeal, we do not consider that that fact is likely to provide a procedural hurdle (in that it was clear that the applicant would accept necessary conditions in all relevant appeals to give effect to such an outcome) to doing so. 91The insurmountable difficulties in these proceedings to addressing Dr Lamb's concerns by requiring access from the rear is that we have: * no evidence of what parking layout design would be required to do this; * no evidence of what would be the impact, if any, on the configuration or availability of parking, on the present proposed parking arrangements within the proposed serviced apartment/spa resort development; and * no evidence, assuming that there were no engineering or any other construction issues that would arise, of how access to 5 separate residences operated as bed and breakfast establishments could be managed so as to provide reasonable accessibility to those establishments coupled with appropriate levels of security and parking control for the proposed serviced apartments/spa resort development. 92Further, as the creation of underground rear access parking for these five proposed bed and breakfast establishments would necessitate redesign of interior spaces as a consequence of the removal of garages accessed from the Headland Avenue frontages of the relevant allotments, we have no evidence as to what would be either the design alterations to the buildings or the use of the spaces that would become available. 93For those reasons, we are unable to adopt that option as a possible method of overcoming the combined impact of the design and visual imperfections of these elements of the proposal. 94A similar outcome, although for less complex reasons, necessarily follows in consideration of the possibility of cutting the number of driveways from Headland Avenue. We have no information on what might be the impact, if any, of doing so on any of the Norfolk Island pine trees; we have no evidence of whether acceptable designs or gradients are capable of achieving such reductions; and we have no evidence of whether any alterations might be necessary to any of the garage access apertures or the overall building facades if this were to occur. Aboriginal cultural heritage issues 95Although there was a contention about whether adequate assessment had been made of the possible aboriginal cultural heritage significance of the headland, we are of the view, for the reasons that follow, that we do not need to determine this contention. Similarly, for those reasons, we do not consider it is necessary to make any determination with respect to the untested evidence given by Mr Carriage, serendipitously, during the course of the site inspection that he had discovered an aboriginal artefact in the earth on the shoulder of the track along the unmade Crown Road along the eastern boundary of the site. 96We have earlier set out our reasoning why the bed and breakfast elements of the proposal require refusal because there is no evidence capable of satisfying the mandatory requirements of cl 11(2)(g) of the 1990 LEP and our opinion that the terms of the 2009 LEP cannot provide a proper basis to overcome this fatal defect. We have also separately concluded that, if we are wrong with respect to cl 11(2)(g), the visual impact of the present proposed design for the bed and breakfast elements of the proposed development are unacceptable and are incapable of rectification within the scope of the amber light approach now taken by the Court (see Ali v Liverpool City Council [2009] NSWLEC 1327 at para 120) in the consideration of otherwise deficient development proposals. 97The consequence of our rejection of the bed and breakfast elements of the proposal is that the grassed areas to the north of the exposed concrete slab in the north-eastern elbow of the present hotel are not the subject of any approval for development in these proceedings (as the proposed development on this grassed area was confined to development on the more eastern proposed allotments of the bed and breakfast elements of the proposal). 98This grassed area, we are satisfied on the evidence, would be the only area where we could conclude that there might possibly be surviving elements evidencing or artefacts of Aboriginal cultural connection with the site. 99On the other hand, we are satisfied on the nature of the construction disturbance that must have occurred in the past for the present hotel buildings; the concrete slab to which we have referred; and the present tarsealed car park to the south of the present hotel, let alone any additional disturbance that may have occurred as part of construction and occupation of any earlier development on the site, that there is no realistic basis upon which we could conclude that there is any likelihood of Aboriginal cultural material remaining in those disturbed areas. 100Whether or not the northern grassed area was disturbed as a consequence of the installation of the sign on the site or because of the existence of gardens and a fence as part of an earlier development of the site or whether there had been a shed or outbuilding on part of this grassed area in that earlier development - any of these potentially rendering it improbable that there would be any surviving elements evidencing or artefacts of Aboriginal cultural connection with the site (if such connection existed, a matter we need not determine) or, on the other hand, whether the grassed area had been established in some passive and non-interventionist fashion making it possible that Aboriginal cultural material might remain, is a matter we need not consider. 101It therefore follows that the determination of any Aboriginal cultural potential for this grassed area must await some further, future development application for the portions of the land that were proposed as the sites for the bed and breakfast elements of the proposal. The disturbance of the portions of the site upon which the serviced apartment/spa resort development element of the proposal is to be located has been so disturbed in the past that Aboriginal cultural issues do not stand as a barrier to it. European industrial use heritage issues 102An identical reasoning approach and outcome to that immediately above applies to any possible remnants of the saltworks. The Norfolk Island pine trees 103The Norfolk Island pine trees that grow around the edges of the site are, as earlier noted, listed as a local heritage item. The arborists, Mr Richards for the applicant and Mr Leonard for the council, agreed that, subject to conditions, there were no unacceptable construction impacts likely to occur to these trees. The sole remaining issue between them related to the possibility that the proposed serviced apartments/spa resort element of the development would create alterations to the wind pattern in the vicinity of some of the trees so as to be a risk to them. 104Mr Leonard did not provide any references to scientific literature in support of his concerns but based it on his professional experience. Mr Richards, on the other hand, also based on his professional experience, did not consider that such damage was likely to occur but also made no reference to any professional literature on this point. 105Taking this concern at its highest for the council, there is a possibility that there might be some impact on some of the Norfolk Island pine trees but this impact is unable to be predicted with any certainty as to when it might occur and what might be the consequences of its occurrence if it were to occur. 106Although it is clear that the wind pattern on the headland will be likely to be altered if the serviced apartment accommodation/spa resort were to be constructed, the uncertainty that necessarily would be associated the possible impact of that changed wind pattern on the Norfolk Island pines means, in our opinion, that such possible impact on those trees could, at its highest, make a minor contribution to warranting refusal of this element of the development proposal and certainly would not warrant refusal in its own right. Visual impact of the proposed spa resort 107We have considered what would be the visual impact of the serviced apartment/spa resort element of the overall development proposal if it were to be constructed in the absence of any of the proposed bed and breakfast elements. We are satisfied, from both Dr Lamb and Ms Morrish's evidence concerning the appearance of the serviced apartment/spa resort element of the proposed development from the south that this element (particularly without the additional visual intrusion of the proposed bed and breakfast element on proposed Lot 7) is acceptable. We are also satisfied, in light of the evidence given by Dr Lamb concerning the bed and breakfast development and his preference for a single more monolithic tourist development along the Headland Avenue frontage that the presentation of this element of the proposed development to the north, in the absence of all of the bed and breakfast elements, is acceptable. 108As a consequence, the visual presentation of the serviced apartment/spa resort element of the overall development proposal has no visual impact that could contribute to (let alone warrant in its own right) refusal of this element of the proposal. 109This conclusion is subject to the rider that a low key landscaping design incorporating planting of additional Norfolk Island pine trees along the Headland Avenue frontage is required as it is necessary to address the northern presentation of the serviced apartment/spa resort element. Such low key landscaping incorporating planting of additional Norfolk Island pine trees will not preclude consideration of some future, acceptable proposal that might be developed for the northern area of the site. Categorisation of the spa element of the proposal 110The spa resort element of the proposed serviced apartment/spa resort element of the overall development proposal is, on the plans for which consent is sought, to have 20 spa rooms to provide spa and associated massage or therapy facilities for the occupants of the serviced apartments. There are proposed to be 18 serviced apartments with a total of 32 bedrooms if the development were to be approved in its present form. 111In addition to the spa treatment rooms, there will be a number of pools of varying sizes as supporting facilities for the spa treatment room activities. 112It is the council's submission that the number of treatment rooms and the extent of the spa facilities is disproportionate when compared to the accommodation. This, in Mr Galasso's submission, makes it inevitable that these facilities would not only be used by those who came to occupy the serviced accommodation but would also necessarily be operated in a fashion that serviced a non-resident clientele. In addition to relying on the number of spa treatment rooms to support this inference, he drew an inference that such separate commercial operation was encouraged by the separation in the layout of significant elements of the spa facilities in the southern most elements of the proposed building and the presence of a nominated area for administration purposes associated with this portion of the proposal. 113In order to understand the nature of this submission, it is appropriate to reproduce elements of the plans of the two relevant levels of this proposed serviced apartment accommodation/spa resort building. These appear below (with the red circles added by us) to show the various elements of the spa treatment rooms and associated facilities cited by the council as supporting the proposition that the nature and extent of these facilities are proposed to be sufficiently extensive to warrant the conclusion that they are a separate commercial use rather than being purely ancillary to and part of the proposed serviced apartment element of the overall development proposal in this building. Figure 4 - Lower ground floor plan Figure 5 - Ground level floor plan 114Mr Pickles' submission, to the contrary, was that the relatively large number of spa treatment rooms facilitated sequential treatments of differing kinds for persons who occupied the serviced apartments. As differing fit outs might be required for rooms used for massage of varying types or beauty treatments or the like this was not unreasonable. A condition to limit their use to residents of the serviced apartments was appropriate and acceptable to the applicant. 115We do not accept this submission. The extent of the treatment room facilities proposed for the spa element together with associated pool facilities is, in our opinion, significantly disproportionate to the amount of residential accommodation being provided. We have no evidence, merely submissions, to support any proposition that these rooms and pools are needed solely for use by resident guests. 116Whilst it is trite to say that we are obliged to assume that persons operating with the benefit of a development consent will obey any conditions that attach to that consent, we cannot be satisfied that, in this case, the extent of the treatment room facilities proposed for the spa element of this proposed development could be regarded as purely ancillary to the serviced apartment element. Whilst a condition of consent would be appropriate to limit the use of these facilities to persons who were resident in the serviced apartments, the scale of this element of the development is, in our view, more than merely ancillary to and supportive of the proposed serviced apartment development. 117As a consequence, we have concluded that, consistent with the amber light approach now adopted by the Court, this overprovision of facilities is capable of appropriate rectification by deleting a portion of the proposed spa facilities. 118We have, therefore, considered what deletions would be necessary to achieve this and to ensure that the spa facilities were rendered of a scale that was obviously merely ancillary to that of the serviced apartment development. We have determined that the appropriate way to achieve this is to require the deletion of all of the spa treatment rooms in the southern eastern end of the ground floor level (circled in the left hand red circle in Figure 5) and the facilities proposed for the entrance level to this element of the development (those circled in red on the lower ground floor plan shown in Figure 4) transferred to this space. 119We require this change in order to ensure, to an appropriate and reasonable extent, that the spa facilities that will be retained will be those that are most proximate to (and therefore quantitatively appropriate for serving) the residential element of the development. 120As a consequence, we are of the view that all the space on the entrance level to the south of the main entrance (that is all the proposed spa facilities on this level) should be required to be an open area entirely devoid such spa facilities. 121In imposing this requirement, we are not to be taken to be expressing the view that some use, for example additional accommodation, is not possible in that area. This, however, is a matter for some future application to the council, whether by a modification to the consent that that will arise from these proceedings or whether by a fresh development application relating to that area (depending on the nature of any use that might be proposed for that space). Parking 122Although there were differences between the parties' traffic and parking experts, Mr Pindar for the applicant and Mr Bridgman for the council, we are of the view that our requiring the deletion of the element of the spa resort facilities described above has the effect of eliminating any possible concerns about the inadequacy of parking on the site or any likelihood of parking spill over into Yuruga Street provided the consent condition referred to above, limiting use of the spa facilities to occupants of the serviced apartments is imposed. The proposed restaurant and function room facilities 123Reproduced below is a further copy of the ground level floor plan with the proposed restaurant and function room facilities circled in green. As can be seen, they are a level higher than the main entrance and in proximity to portion of the residential apartments. The relocation of the spa resort facilities from the lower floor will also, in our opinion, make it clearer that all these facilities are for residents and their guests. Figure 6 - Ground level floor plan 124Given the conclusion that we have reached with respect to the necessary reduction in size of the spa resort facilities and their partial relocation, we are satisfied, on fine balance, that this renders the likelihood of external use of the restaurant and function room facilities by persons not resident in the serviced apartments (or their guests) as to be sufficiently unlikely that this can be dealt with by condition of consent - given the location and comparatively modest size of these proposed facilities. Subdivision 125Mr Pickles indicated, on instructions, that if the overall development including the proposed bed and breakfast elements was not to be approved, the applicant did not wish to have the subdivision appeal upheld. As earlier noted, there is no opposition to demolition of the existing structures on the site. We therefore propose to uphold the appeal in Matter No 10231 of 2010 solely to the extent that it seeks consent for the demolition of the existing structures on the site. 126However, given the present subdivision pattern of the headland (shown earlier at Figure 1), we do consider it is appropriate to have regard to that subdivision pattern in determining what should be the outcome of the serviced apartments/spa resort development element of the proposal. The present subdivision pattern of the development site is, in our opinion, an inappropriate one to remain if the serviced apartment/spa resort development element of the proposal is to be constructed. We consider that it would be appropriate to require consolidation of the totality of the site as a single allotment as a deferred development condition of development consent for this element of the proposal. 127In reaching this conclusion, we do not wish to be thought to be excluding further development proposals for that element of the site to the north of this proposed development element nor are we to be taken as suggesting that this northern element should not be the subject of some further development application which might include subdivision of the site. Any such proposal would be one to be considered by the council and not one upon which we should speculate in some hypothetical fashion. 128However, as a condition of the development consent for the serviced apartments/spa resort element of the proposal, it is appropriate to require preparation of a low key landscaping plan for the area to the north of the built element with this landscaping plan to incorporate the planting of a number of new Norfolk Island pines along the head land Avenue frontage of the overall site. 129Given that the landscaping required by this decision is to be low-key, preparation of the landscaping plan can be the subject of a deferred commencement condition (with finalisation of the plan to be to the satisfaction of the council). Conclusion 130We have concluded as follows: * All the proposed bed and breakfast elements require refusal as they do not satisfy cl 11(2)(g) of the 1990 LEP; * If we are wrong in reaching this conclusion, all the proposed bed and breakfast elements require refusal as they have an unacceptable visual impact; * It is not possible, within the present applications, to rectify the unacceptable visual impact of all the bed and breakfast elements with driveway accesses from Headland Avenue by requiring, for proposed Lots 3 to 7, either the reduction of the number of driveways to Headland Avenue or all vehicle access to be underground from Yuruga Street; * As a consequence of these general conclusions, it is unnecessary to determine if either or both the bed and breakfast elements proposed for proposed Lots 6 and 7 separately warrant refusal; * The serviced apartment/spa resort development is approved subject to conditions requiring: + the deletion of the spa resort elements at the southern end on the lower ground floor level of the proposal with a requirement that this area is to be used as internal open-space (unless some further application is made to the council for development at this location); + Relocation of these facilities to the ground floor level in lieu of the treatment rooms proposed for the south-eastern area at that level; and + a deferred commencement condition requiring that the existing subdivision of the site be consolidated into a single allotment; * The requirement for the deletion of one portion and relocation to that space of another portion of the proposed spa resort facilities renders the remaining spa resort facilities ancillary to the serviced apartment proposal and also renders this proposed development element parking compliant; * Consolidation of the site into a single allotment does not constitute any commentary about or provide any inference concerning whether or not the northern portion of the site has compliant development potential and, if so, of what form and in what separated subdivision pattern (if any) from the serviced apartment/spa resort element; * The portion of the consolidated site to the north of the proposed serviced apartments/spa resort development element is to be the subject of a low key landscaping design incorporating planting of additional Norfolk Island pine trees along the Headland Avenue frontage with this landscaping plan to be subject to a deferred commencement condition requiring this plan to the satisfaction of the council; and * The more general consolidation and re-subdivision application should be refused (consistent with what we understood to be the request made on behalf of the applicant if the bed and breakfast elements of the proposal were not approved) but the appeal in the relevant matter upheld to the extent necessary to permit the demolition of the existing hotel buildings. Orders 131The orders of the Court in each of the relevant proceedings are, therefore, set out below. 132In Matter No 10459 of 2010, the orders of the Court are: (1)The appeal is dismissed; (2)Development Application 2009/1316 for bed and breakfast premises on proposed Lot 1 at Headland Avenue, Austinmer, is determined by the refusal of development consent. 133In Matter No 10460 of 2010, the orders of the Court are: (1)The appeal is dismissed; (2)Development Application 2009/1317 for bed and breakfast premises on proposed Lot 2 at Headland Avenue, Austinmer, is determined by the refusal of development consent. 134In Matter No 10461 of 2010, the orders of the Court are: (1)The appeal is dismissed; (2)Development Application 2009/1318 for bed and breakfast premises on proposed Lot 3 at Headland Avenue, Austinmer, is determined by the refusal of development consent. 135In Matter No 10462 of 2010, the orders of the Court are: (1)The appeal is dismissed; (2)Development Application 2009/1319 for bed and breakfast premises on proposed Lot 4 at Headland Avenue, Austinmer, is determined by the refusal of development consent. 136In Matter No 10463 of 2010, the orders of the Court are: (1)The appeal is dismissed; (2)Development Application 2009/1320 for bed and breakfast premises on proposed Lot 5 at Headland Avenue, Austinmer, is determined by the refusal of development consent. 137In Matter No 10464 of 2010, the orders of the Court are: (1)The appeal is dismissed; (2)Development Application 1321 for bed and breakfast premises on proposed Lot 6 at Headland Avenue, Austinmer, is determined by the refusal of development consent. 138In Matter No 10465 of 2010, the orders of the Court are: (1)The appeal is dismissed; (2)Development Application 1322 for bed and breakfast premises on proposed Lot 7 at Headland Avenue, Austinmer, is determined by the refusal of development consent. 139In Matter No 10231 of 2010, subject to satisfaction of those of the directions below concerning this matter, the appeal will be upheld and Development Application 2009/1313 for the consolidation of nine existing allotments and re-subdivision into eight allotments of land and for the demolition of the existing structures on the site at Yuruga Street and Headland Avenue at Austinmer will be determined by the granting of development consent for the proposed demolition only subject to the filing, electronically and in hard copy, of settled conditions of consent for the approved demolition works. 140In Matter No 10528 of 2010, subject to satisfaction of those of the directions below concerning this matter, the appeal will be upheld and Development Application 2009/1315 for the erection of serviced apartments and associated spa resort and restaurant facilities will be determined by the granting of development consent subject to the provision of a revised version of plans DA-MP-201 and DA-MP-202 reflecting the changes required to the proposed spa resort facility elements discussed in para 118; and the filing, electronically and in hard copy, of settled conditions of consent reflecting the terms of this decision relating to consolidation of the site and landscaping of the area to the north of the proposed serviced apartment/spa resort building. Directions 141In order to permit orders to be made finalising Matter Nos 10231 and 10528 of 2010, we give the following directions: (1)The applicant is to file and serve revised version of plans DA-MP-201 and DA-MP-202 reflecting this decision by the close of business on Friday, 25 March 2011; (2)The respondent is to file and serve, electronically by e-mail to the Court (marked for the attention of Commissioner Morris), and in hard copy, revised settled conditions of consent in Matter Nos 10231 and 10528 of 2010 reflecting this decision by the close of business on Friday 25 March; (3)Liberty to re-list on two days notice in the event of any dispute concerning the required conditions of consent; (4)The matter is set down for mention before Senior Commissioner Moore on Wednesday, 30 March 2011 at 4:15 PM; (5)If directions (1) and (2) are complied with, we will make orders in chambers and vacate the mention in direction (4); and (6)If directions (1) is not complied with and direction (3) is not invoked, prior to the close of business on Friday, 25 March 2011, to re-list the matter, we will make orders in chambers dismissing the appeals in Matter Nos 10231 and 10528 of 2010. Tim Moore Senior Commissioner Sue Morris 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: 10 March 2011