Supplementary Agenda of Council

Council 30 July 2014 Item 8.5

8.5. Hotel Australasia Land and Environment Court Appeal – Outcomes of Section 34 mediation conference. Late Report

Applicant Great Southern Developments Pty Ltd

Owner AAP Investments (Aust) Pty Ltd

Site Lot 14 DP 250841 142-144 lmlay Street Eden

Zone 2(e) Urban Zone- Bega Valley Local Environmental Plan

2002 (application lodged prior to gazettal of BVLEP 2013)

Site area 2,886m

Proposed development Demolition of existing building and construction of new supermarket, liquor store, specialty retail shop and associated signage

PRECIS

A Section 34 Conference has been held with the Applicants and a Land and Environment Court Commissioner. The next part of the process is for Councillors to consider the offer made by the Applicants in respect of retention of the existing 1951 façade of the existing hotel building and advise the Court of Council’s position.

Planning Consultant

Background

Council Resolutions

Council considered a request to list the Hotel Australasia as a heritage item in LEP 2013 on 24^th July 2013 and resolved:

1. That the Hotel Australasia located at 142-144 Imlay Street Eden not be included in Schedule 5 of the Comprehensive Local Environmental Plan 2013 as a heritage item.

2. That those persons who requested nomination of the Hotel Australasia as a heritage item be advised of Council's decision.

3. That Council negotiate with the developer to incorporate the recommendations of the heritage advisor in the design of the proposed redevelopment.

At its meeting of 25th September 2013 following negotiations with the developer Council resolved:

1. That for any development application for the redevelopment of the Hotel Australasia incorporating the appropriate retention and restoration of the 1904/05 section of the building in the design, Council would consider a reduction in car parking requirements in recognition of the additional development costs associated with the retention and restoration.

2. This resolution of Council must not be construed as support for any development application for the redevelopment of the Hotel site.

3. That Council advise Great Southern Developments Pty. Ltd. of this resolution.

On the 18th December 2013 Council considered a report from the Group Manager Planning and Environment recommending approval of the DA subject to conditions and resolved:

1. That following public deputations the matter be deferred in keeping with the Code of Meeting Practice for a further report to Council incorporating further assessment of the economic impact analysis.

2. That the General Manager be asked to provide a report to the next available meeting advising the Council of matters under Section 79C of the Environmental Planning and Assessment Act 1979, if any, that would enable consideration to be given by Council to the refusal of DA 2013.199.

3. That the report include reasons for refusal in the event that Council determines to refuse the development application.

The application was refused by the respondent at the meeting of 12th February 2014 for the following reasons:

1. The proposed development would be contrary to Clause 23 (2) (b) of the Bega Valley Local Environmental Plan 2002 as demolition of the existing building would result in a significant change to the existing and historic character of the Eden Urban Area.

2. The proposed development would be contrary to Clause 65 (1) (a) (vi) and Clause 28 (2) (f) of the Bega Valley Local Environmental Plan 2002 and the provisions of Council's adopted Development Control Plan 40-Port of Eden Town Centre 2007 as it involves the demolition of the existing building which has a significant historical value within the street scape and to the greater Port of Eden.

3. The proposed development would be contrary to the requirements of Council's adopted Development Control Plan No. 7-0ff Street Parking July 2007 in that insufficient on-site parking is to be provided to cater for the requirements of the development.

4. The impact of the proposed development will be detrimental to the viability of other businesses in the locality and the retail centre. (Note: This was not listed as a contention as two studies, one Economic Impact Assessment by the applicant and a review of the applicants assessment by experts on behalf of Council concluded that the

Economic Impacts on the Eden Commercial Centre and other centres in the locality were acceptable and there was an overall benefit to Eden taking into account negative impacts on local businesses).

Informal Mediation

On 27th June, 2014 an informal mediation was conducted by Trevor Bly. He has architecture and legal qualifications and was previously a Commissioner at the Land and Environment Court. The purpose of the mediation was to try to anticipate what might be achieved in the first phase of the Section 34 Conference.

Section 34 Conference (Land and Environment Court Act, 1979)

Commissioner Tuor conducted a Section 34 Conference on site on 17th July, 2014. Mr

Peter Whiter addressed the Commissioner about his concerns associated with the proposed development as did Mr Peter Barber on behalf of the Eden Chamber of Commerce and Tourism. Angela George was present and she supported the objections of the other two objectors. Commissioner Tuor said that she had read the objection by Angela George in the Council's bundle of documents that had been emailed to the court.

The Applicant made an offer to the meeting to retain the 1951 front and scalloped side facades of the original building. There was discussion about saving some of the rooms behind the facade but the Applicant claimed the expense involved with achieving that would exceed $1,000,000 and produced figures which the Commissioner looked at. That figure was well in excess of any possible off set in Section 94 car parking contributions which was possible under the Development Control Plans. In the Development control plan No 7 - Off street car parking of July 2007 clause 6.6 provides:

"In the case of significant heritage conservation works or other particular benefits for the public, Council may consider lesser car parking requirements in any application".

The Commissioner then asked whether anyone from the council had delegated authority. The response was that retaining the 1906 facade was the basis of the council position and nobody was able to sign off on retaining the 1951 facade, even though by saving the 1951 facade that could have the effect of saving the 1906 facade (part of which lies below the 1951 facade) which may leave open that restoration if funds become available in the future.

The Commissioner was informed that a report could be considered by Council at its meeting on 30th July and the Commissioner agreed to keep open the first phase of the Section 34 conference until after Council has the opportunity of considering that report. The Commissioner directed the applicant to provide drawings and calculations prior to that meeting so that they can be considered by Council. The Commissioner vacated the Registrar's order that the proceedings be listed on 21st July and directed the parties to participate in a telephone directions hearing to be conducted by her at 4.15pm on Friday, 1st August, 2014.

ISSUES

Options That Council Could Consider in Determining this Matter

Council’s Solicitor and consultant town planner are of the opinion that the following five choices are available:

1. Give consideration to the drawings and calculations provided by the Applicant before the council meeting and agree with those being the basis of disposal of the proceedings under section 34(3)(a).

2. Agree with the application being approved by the court under the same section subject to the conditions that were to provide to the court under the practice direction (in other words ask the Court to adopt the staff recommendation submitted to the meeting of 18th December 2013).

3. If neither of those choices is acceptable let the proceedings proceed to section 34(4)(b)(ii) which means that firstly both parties must consent to Commissioner Tuor disposing of the proceedings and (ii) with the consent of the parties, that Commissioner can make a decision on the basis of what has occurred at the conciliation conference.

4. If none of those three choices is acceptable then section 34 (4)(b)(i) is possible where both parties consent to Commissioner Tuor disposing of the proceedings following a hearing by Commissioner Tuor at a later time.

5. The last choice is to use section 34(4)(a) which means that the Commissioner must terminate the conference and must make a written report to the Court for the Registrar to appoint a different Commissioner to go back to square one with an onsite hearing.

Conclusion

Council is at the stage where it is appropriate to advise the Court whether it wants to:

1. Accept the Applicant’s offer made at the Section 34 Conference basically involving retaining the 1951 façade (which also preserves but does not display the 1906 façade) and as a trade-off to compensate for part of the Applicant’s expense, not require the total cash-in-lieu car parking contributions applicable to the development ($476,595.00 as of December 2013).

2. Recommend that the Court approve the application in accordance with the staff recommendation and conditions submitted to the meeting of 18th December 2013. (Note: Council could alter the recommended conditions if it thought it appropriate to do so).

The last choice is to use section 34(4)(a) which means that the Commissioner must terminate the conference and must make a written report to the Court for the Registrar to appoint a different Commissioner to go back to square one with an onsite hearing.

ATTACHMENTS

1 . Without prejudice Correspondence from applicants solicitor Hotel Australasia Land and Environment Court Appeal

Recommendation

That Council determine its preferred option in respect of proceeding to determine the Development Application

Council	30 July 2014
*Item 8.5 - Attachment 1*	*Without prejudice Correspondence from applicants solicitor Hotel Australasia Land and Environment Court Appeal*