Land and Environment Court of New South Wales CITATION : Romeo v Pittwater Council [2004] NSWLEC 297 APPLICANT G & A M Romeo PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 11362 of 2003 CORAM: Hussey C KEY ISSUES: Development Application :- Parking - flooding - heritage impact - characterisation - public interests LEGISLATION CITED: Environmental Planning and Assessment Act Pittwater LEP 1993 CASES CITED: DATES OF HEARING: 29, 30 April and 03/05/2004; Date of Judgment 18/6/04 (Interim Finding) Orders 16/11/04 DATE OF JUDGMENT: 06/18/2004 APPLICANT Mr P Tomasetti, barrister SOLICITORS Carbone Anderson LEGAL REPRESENTATIVES: RESPONDENT Mr D Parry, barrister SOLICITORS Mallesons Stephen Jaques JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11362 of 2003 Hussey C 18 June 2004 G & A M Romeo Applicant v Pittwater Council Respondent Judgment Background 1. This appeal is against council's refusal of a development application for alterations and additions, including the extension of the rear deck over the waterway at the "Church Point General Store". 2. The subject property is a listed heritage item, located at the northern – most point of Church Point, adjacent to the public ferry wharf. The General Store offers groceries, fruit and vegetables and food for on-site consumption and takeaway. It is within a relatively small commercial precinct, which contains, the "Pasadena" restaurant and associated commercial activities. 3. To the east of the site, is a public carpark with some 320 car spaces. Parking is regulated by a way of coupon payment or resident permits. 4. The applicant has apparently obtained a 20 year commercial lease on the property from DLAWC, which requires significant expenditure to upgrade this existing heritage item. 5. Insofar as a number of issues were initially identified, the outstanding issues at the appeal concern: - social impact, - parking/access, - flood liability, - heritage. The site 6. The site is known as 1860 McCarrs Creek Road, Church Point. It has an area of 418 sq m. It is below MHWM and is controlled by DLAWC. The General Store erected on the site comprises: - at ground level, RL 1.72, a post office facility aligned along the eastern wall, a servery and kitchen facility along the northern wall, providing snack food and general store in the remainder, including newspapers, magazines, basic foodstuffs and the like. At the southwest corner is a roller shutter door to a loading bay, which joins a storage area of western side of the property. - on the northern side, there is a "timber jetty" that is used for customers seating, for consumption of food, etc, purchased from the general store. This area also allows for tie up of customer boats and the lease extends to cover the area to the western side of the jetty that is also used for this purpose. - at the first floor level, RL 4.81, is a "room in the roof" accessed by stairway of the eastern side of the General Store. It contains a kitchen on the southern side and a small cafe over the remainder, with a front timber balcony to the north. The proposal 7. This proposal is for alterations to the building and the use of the property are shown on Attachment 1, as follows: Building alterations: - construct a new cafe, having a gross floor area of some 63 sq m (including a new kitchen of 20 sq m) and incorporating a store on the northern side of the building, which is to be constructed at the same level of the existing store i.e. at RL 1.72. - conversion of the existing jetty to a timber deck by infilling the open section at the north eastern corner of the lease area and increasing the deck area by about 66.4 sq m. - on the first floor, replace the existing balcony with a larger roof deck. - construct a new veranda on the eastern side of the building, - Alterations to use: - transfer the existing bottleshop from the Pasadena Building into the ground floor. - operate the bistro facility at ground level, - operate the first floor as a café. 8. The proposed hours of operation are: General Store, 7 AM -- 8 PM, seven days a week. Café, 7 AM to 8 PM, Monday to Thursday, 7 AM to 11 PM, Friday to Sunday Planning controls Pittwater Local Environmental Plan 1993 (PLEP) 9. Under this instrument the site is zoned 3(c) Neighbourhood Business and is within the Foreshore Scenic Protection Area. The 3(c) Zone is limited to the subject site and to the adjoining site of Pasadena. "Refreshment rooms" and "shops" are both permissible with consent. 10. Schedule 9 identifies the Church Point General Store as a heritage item. Clause 32 (3) requires that before granting consent, the consent authority must take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item. Clause 32(4) provides "The Council must not grant consent to a development application required by this clause unless it has considered a conservation plan that assesses the impact of the proposal on the heritage significance item and its setting …" Development Control Plan 20, "Commercial Centres" 11. This DCP provides that "applications for development in land zoned Neighbourhood Business (c) in particular must take into account the surrounding established character and design character of the area and must be in keeping with any close or nearby residential character". It contains a number of design performance standards. Development Control Plan - Car parking 12. This DCP requires the following carparking rates: Shops; 1space per 20 sq m of gross floor area, Restaurants within commercial centres: 1 space per 20 sq m of gross floor area at ground level and 1 space per 32 sq m at other levels. Locality Plan 13. The planning controls for this area rely on the Bayview and Church Point Locality Plan for detailed land and development activity. Although, this explicitly refers to the "residential areas" and the subject site is not included. However, reference is made to the waterfront areas as follows: "Parts of the waterfront are used for commercial activities including marinas, restaurants and other water-based activities. Waterfront properties need controls in order to maintain the 15 m foreshore building line, to avoid excessive bulk …. It is important that development is controlled in respect of the height, colour and treatment of development in order to maintain these good views both into and out of the area. Bulk and mass of building should be minimised…" Pittwater LEP 1/DCP 14 - Pittwater waterways. Draft Pittwater LEP 21 14. This draft LEP has been exhibited. It proposes to retain the zoning of the subject site as Neighbourhood Business. The description of this zone is: "This zone includes established neighbourhood retail and commercial centres. For this reason a range of retail and commercial activities that serve the local neighbourhood are suitable in this zone". 15. The objectives of this zone are: * To promote viable small local businesses to support the needs of the local community and allow for local employment; * To provide for an integrated mix of retail, commercial and office development; * To create attractive, vibrant and safe neighbourhood centres; * To recognise the lands heritage, infrastructure and/or environmental constraints. The evidence 16. Detailed evidence on behalf of council was presented by: * Ms D Laidlaw, consulting town planner (Exhibit 1). * Mr A Hack, consulting economic planner (Exhibit 2). * Mr C Hallam, traffic consultant (Exhibit 3). * Mr R Moore, heritage consultant (Exhibit 4). * Mr J Payne, manager urban infrastructure (Exhibit 6). * Dr D Treloar, consulting hydraulic engineer (Exhibit 21). 17. Other submissions contained in Exhibit 7 were also considered. 18. For the applicant evidence was presented by: * Mr N Warren, project architect (Exhibits C and H). * Mr G Brooks, heritage consultant (Exhibit D). * Mr G Britten, consulting hydraulic engineer (Exhibit Q). Discussion of the evidence 19. One of the primary matters examined in this case concerns the characterisation of the General Store operation, in order to assess the resultant impacts of the incremental changes proposed. It is apparent from the evidence that the General Store has provided a range of basic services to local residents and visitors over a considerable period. Included in this group of residents are the offshore dwellers from Scotland Island and other western locations, which are inaccessible by car. 20. According to Ms Laidlaw, the quasi use of the general store as a shop/eatery is appropriate. However, she qualifies this by saying that different types of eatery will generate different types of parking demand. In view of the acute parking problems in this area, the style of eatery within the general store should only be oriented to "passing trade", rather than of the style that will generate an independent parking demand. She classifies the current cafe within the General Store as a casual dining eatery, doubling as a takeaway facility and the proposal as a bistro. 21. However, she says that the proposed upgrading and operation of bistro, being on the waterfront and north facing has the potential to become a more attractive destination eatery. Under these circumstances, customers are more likely to make a special trip to this venue, than to a cafe. Consequently, this will likely generate additional demand for nearby parking, which the development should provide on-site. Because she initially considered there is a shortfall of 10-12 car spaces as a result of the new bistro, she concludes that the proposed additional floor space will cause a worsening of the already "chaotic" parking conditions, which is unsatisfactory. 22. But the evidence from the applicant's witnesses is that cafe type activities have been undertaken over the years on both the ground level, with customers are allowed to dine on the existing deck, or in the upstairs café /deck. The evidence of the proprietor, who referred to the "Top Room Cafe" menu, together with the evidence of staff indicates that the existing refreshment rooms have operated on more intensive basis than a takeaway shop. Apparently the Top Room cafe does have a licence for 40 seats. 23. From my assessment of this evidence, I consider Ms Laidlaw's observations on the extent of food sales limited and I give preference to the applicant's evidence, which indicates that the level of additional carparking generated is not that estimated by Ms Laidlaw. I also note that even though some of the uses have been challenged in the past, no action has been taken to stop or restrict them, particularly after council considered this in 1993. From this, it appears that the current level of parking service is accepted by council. 24. In my assessment of this evidence, the critical issue concerns the incremental changes due to the relocation of the kitchen and upgrading of the ground floor dining area. This concern initially relates to any additional parking demands. 25. According to Mr Hallam's evidence, he initially assessed the proposal on the basis that the alterations for the new "bistro" resulted in an additional floor area of approximately 150 sq m. 26. By reference to DCP 2, he estimates some 23 carparking spaces would be required. However when this is located in the Neighbourhood Business 3(c) Zone, the controls allow this to be reduced. Therefore with certain qualifications, he says that the additional parking space demand would be 7. Furthermore, he expresses concern that with the upgraded facilities, this would likely attract more customers, exacerbating the already unsatisfactory parking situation. Therefore he does not consider the proposal appropriate for approval. 27. However when cross-examined about the previous consent for 40 seats in the top cafe and the ability to place an extra 12 seats on the ground level deck, he then conceded that there would be reduced demand for an additional 4 - 5 concessional, car spaces. Also there could be further demand for 3 extra spaces in relation to the upper deck extensions. 28. In considering this issue of additional parking demand, I note the evidence from a number of local residents that the site is attractively located and many walk and cycle to the site, thereby reducing demand for car spaces. Also, the proprietor stated that customers arrive on a regular basis by bus, which also minimises public car parking demand. Notwithstanding this restricted parking situation, it appears to me that there is significant support from the local residents for the upgrading of the store amenity, who accept this level of parking amenity. 29. The parking limitation arises because there are only about 12, time limited spaces on the road reserve, adjacent to the General Store. The other available parking is in the nearby public reserve, which contains some 320 spaces. These spaces are open to the public and regulated by a coupon and preferential residential parking voucher. 30. The evidence indicates that a significant number of these spaces are regularly used by the island and offshore community, who also use the store for general provisions, papers and foodstuffs. In this event there is likely to be some duplication of demand for some of these carparking spaces. 31. Notwithstanding this, I accept the evidence that on a regular basis there is inadequate parking in the vicinity of the general store, taking into account also the limited on-street spaces and the other carpark, to the west of the site. This results in competition for these available carparking spaces, a situation which has occurred for a long-time and which there is no definite initiative to remedy. 32. Therefore taking into account the potential availability of the 320 spaces in the public reserve, and additional on-street parking and spaces in the carpark the west, I consider the demand for a possible extra 4-5 spaces is relatively minimal i.e. approximately 5 in 370. This is on the basis of restricting the extension of the upper deck and mainly rationalising the extended ground floor deck area, which may generate this additional parking demand. The restriction on the upper deck limits possible extra seating and consequential short-term parking demand. It also satisfies the Locality Plan intent to avoid excessive bulk on waterfront properties. 33. Taking into account the current competition arrangements for the available car spaces and manoeuvring area adjacent to the site and in the carpark, there is no compelling evidence presented that this minimal increase in parking demand would create any pedestrian or safety problems. If spaces are not available, then customers for the development will likely steadily move on, as now occurs. It also appears from the view that there may be some opportunities for improving the capacity of the carpark, as a number of motorcycles were observed occupying full car spaces 34. In my assessment, there are extraordinary circumstances in this case, with the community benefits likely with the upgrading of the general store, even though it is physically constrained and cannot provide the possible additional 4-5 carparking spaces. Therefore I am satisfied that the common principle for a development to provide any additional parking on site, can be relaxed in this case, because of the relatively minor increased demand and minimal change in parking behaviour. 35. The next issue concerns heritage impact. Initially a detailed Heritage Assessment and Statement of Heritage Impact was submitted by DESIGN 5 (Exhibit 18). Then for the appeal, Mr Brooks submitted a further statement addressing the heritage issue, from which he concluded that the proposed development will have no adverse impacts on the heritage significance of the listed item. 36. However, following clarification of a number of disputed matters, the heritage consultants conferred and agreed on the following: The Church Point Store and Post Office is an important component of the cultural heritage of Pittwater and the setting of Church Point. The following characteristics of significance are regarded as important: Historic Significance as a traditional component of the Pittwater Landscape, Aesthetic Significance for its siting, modest scale traditional waterside character. It is particularly evocative of Pittwater. Social Significance for its role as a local general store and post office and as a neighbourhood service provider. It also has a broader, regional social significance as a waterside eating venue. It has limited scientific significance , which is largely limited to a research value of itself. 37. However they disagree on the extent of examination of the existing fabric to inform decision-making about the changes proposed. Also Mr Moore regards the existing detail of the place as unclarified and potentially important and worthy of protection. But Mr Brooks considers that the place can continue to evolve in a manner that respects it significance in regard to the overall traditional waterfront imagery and neighbourhood service function. 38. Considering these differences, it is apparent that the existing general store structure is in poor condition and in need of upgrading so as to continue operating and providing service to the community. In this context of the need for some essential repairs and upgrading, I note the following assessment from the Assessment of Heritage Impact Report, dealing with the proposed works on the significance of the place: (a) The building will remain an important component, both visually and socially, in the village centre for the use of locals, offshore residents and visitors. (b) The proposed works will not change the building's relationship to the water and the contribution to the village atmosphere. (c) The mass of the building will be slightly changed, but the minor addition will not modify the generally more modest scale of the building. The addition will not visually dominate heritage building. (d) The extension will mainly be visible from the water, against the backdrop of the existing building. The contour of the building will not be changed and sunshades, plants, trees and creepers on the upper and lower decks will provide the familiar imagery of the store and cafe when viewed from the water. (e) The ground floor extension will be set back under the upper deck and will feature number of folding doors reducing the impacts of its mass. (f) The existing lattice fence (with creepers) will largely obscure the extension when viewed from the public space. (g) Given the limited extent of significant original/early fabric the proposed changes to the existing fabric are considered reasonable and acceptable. (h) Changes that are proposed to the western facade (replacement of sheet material wall) will improve the appearance of the building. (i) In terms of design and building material the proposed editions, including the eastern veranda are sympathetic to the architectural character of the existing building. 39. In addition to this, I have considered Mr Brooks' reference to the NSW Heritage Office evaluation criteria. By reference to his response to this criteria, I am satisfied to rely on his conclusion that: "the proposed development provides a responsive and positive outcome for the Church Point Store and Post Office. It will retain and enhance the heritage and community significance of the place. As such it is worthy of approval on heritage grounds." 40. Notwithstanding this, I consider Mr Moore's concerns about the need for some further investigation of the fabric can be undertaken as a deferred commencement condition and reviewed on the basis of the essential upgrading works necessary to allow the continued use of this general store. 41. The next issue concerns the flooding liability of the proposal. This arises because the existing ground floor level and deck is approximately 1.72 m AHD. The effects of inundation in various storm offence was assessed by the hydraulic engineers, who agreed that in the 100 year ARI, the total water level would be the order of 1.78 m AHD, i.e. about 60 mm of inundation. 42. Some relevant guidelines are contained in "The Pittwater Estuary Wave Action and Tidal Inundation Policy (Exhibit 13). From this, the stated policy is: 1. To adopt a designated wave action and tidal inundation of 1 in 100 years as the Standard for Pittwater Foreshore, ie the wave action and tidal inundation which has a 1% probability or 1 in 100 chance of occurring each and every year. 2. The wave action and tidal inundation site-specific levels for 1% wave action and tidal inundation in the Pittwater Waterway are contained in the "Design Guidelines for Water level and Wave Climate at Pittwater, Australian Water and Coastal Studies Pty Ltd, 1991". 3. That the Design Floor Level (inclusive of 0.5 m free board) and other relevant requirements for properties marked on Wave Action and Tidal Inundation Map – Plan No. 96-080 to be determined in accordance with the "The Pittwater Estuary Wave Action and Tidal Inundation Policy". 43. However in this case, the experts considered the effects of the existing structure configuration i.e. the bargeboards and agreed that the designated free board of 0.5 m could be reduced to 0.3 m (Treloar) or 0.2 m (Britten), to establish the planning level. 44. Following consideration of a number of the development consent conditions presented by Mr Britten, Dr Treloar agreed that the development is satisfactory from a planning level point of view. These conditions include raising the kitchen floor level and making specific arrangements for storing all perishable goods above the RL 2.2 m AHD. 45. Therefore in considering the benefits of the continuing operation of the general store in a more efficient manner, I accept the hydraulic engineers conclusion that reasonable conditions can be imposed, which minimise flooding risks. In this regard, I particularly rely on conclusion of the engineers that in the 100 year ARI event the degree of inundation is: "very small and that water would not be fast flowing. Accordingly these conditions would be low hazard. The inundation is also of a short duration due to the significant component of astronomical time. In addition there would be considerable warning time related to the design storm event". 46. Accordingly I have considered this issue in the context of the following general principles set out in the New South Wales Development of Flood Liable Land Policy: 1. Land liable to flooding should not be sterilised from use. 2. Development of such land should be permitted provided it does not exacerbate problems upstream or downstream of the subject land by increasing flood levels or flood velocities. 3. Damage to property should be minimised. 4. Risk to live or personal injury should be avoided. 5. Regard should be had to the level of flooding and to the velocity of flows and to the interval between flood events. 47. Therefore, it appears to me that there will be adequate warning of any major storm event, enabling closure of the deck and store to prevent risk and danger. Then allowing for the extraordinary circumstances of this heritage building, which has survived since the early 1930's, and that the floor levels cannot be raised without interfering with these heritage significance, I consider the likely flooding impacts minimal, which can be reasonably managed and addressed by way of conditions of consent. 48. An associated issue raised concerns the social impact of the proposal. This mainly referred to the likely reduction in floor space for the general store, because of the relocation of the bottle shop. However I understand that currently there are no constraints on reconfiguring this general store, including the relocation of the bottle shop. 49. Notwithstanding this, the project architect Mr Warren has submitted a proposed floor/shelving plan, indicating that the total bottle shop will increase from 53 m to 118 m. Also the general store shelving will increase from 57 m to 129 m. This proposal includes arrangements for the storage of perishable goods above the design flood level. On the basis of the evidence presented to the Court, I am satisfied that this proposal provides opportunities for a more efficient shop layout, which would result in a positive aspect of the development. 50. In addition to these aforementioned issues, a number of public interest submissions were made from the respective local community groups and members of the public. In general, my understanding of these is that there is community support for the improvements to the general store, including extension of the cafe/refreshment room. But there is dissatisfaction with the current parking situation. 51. Apparently this limitation and competition for the public parking spaces has existed for many years. In the absence of any plans to address this, the residents initiated an investigation resulting in a draft master plan for the area, including a number of parking improvement options. These include a rather ambitious underground carpark adjacent to the public reserve site. However there is no certainty or imminence for this management plan, at this stage. Whilst I have considered it, I give it little weight. 52. Another concern raised by the residents relates to provisions for pedestrian access. However if the proposal proceeds, it should not interfere with the existing pedestrian access along the McCarrs Creek Road frontage. If some additional walkway is required in the future, to an accessible pontoon around the leasehold area, I do not consider the relatively minor infill of the deck will unreasonably preclude this. Conclusion 53. Having consider the evidence, the submissions and undertaken of view, I consider this application merits conditional consent. 54. Whilst the Church Point General Store is a well-established landmark and heritage item, it is obviously in poor structural condition and has an operating area that offers significant opportunities for improvement in its level of service. 55. I am satisfied that the proposed alterations can be undertaken in a manner, which maintains the items heritage integrity. This includes the imposition of a deferred commencement condition required a detailed assessment of the building fabric, including foundation assessment, to allow detailed consideration of the essential rectification works. 56. I also accept the hydraulic engineers general agreement that design features can be incorporated into the proposal to reduce flooding risk and provide a reasonable level of flooding security. 57. Insofar as there was some argument about the scope of the existing consent for operation of the food sales, I am satisfied that the relocation of the kitchen and reorganisation of the existing deck, together with its extension will result in the relatively minor increase in parking/traffic. However I do not consider that the inability to provide for this minor deficiency in carparking spaces on-site, is sufficient to warrant rejection of the proposal, considering the overall level of service for carparking in this area and the relative community benefits derived from the upgrading and maintenance of this heritage-item. 58. In the ultimate, I also am satisfied that this development is consistent with the zone objectives and therefore I consider the development can be approved subject to appropriate conditions. _______________ R Hussey 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.