Land and Environment Court of New South Wales CITATION : Marchese and Partners Architects v Mosman Municipal Council [2006] NSWLEC 260 APPLICANT Marchese and Partners Architects PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 11146 of 2005 CORAM: Hoffman C KEY ISSUES: Development Application :- Adjoining heritage item, transitional requirements between commercial and residential zones, setbacks, streetscape bulk and massing controls, amenity impacts on adjoining residential, impacts on heritage item and its setting LEGISLATION CITED: Mosman Local Environmental Plan 1998 Mosman Business Centres Development Control Plan CASES CITED: Remath Investments (No. 6) Pty Ltd v Botany Bay City Council [2000] NSWLEC 137; Seaside Properties Developments Pty Limited v Wyong Shire Council [2004] NSWLEC 117. DATES OF HEARING: 15/05/2006 DATE OF JUDGMENT: 05/30/2006 APPLICANT Mr G Newport, barrister Instructed by: Mr K Webber, solicitor Of: Wilshire Webb LEGAL REPRESENTATIVES: RESPONDENT Mr S Griffiths, solicitor SOLICITORS Pike Pike & Fenwick JUDGMENT: JUDGMENT THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 30 May 2006 11146 of 2005 Marchese and Partners Architects v Mosman Municipal Council JUDGMENT 1 This is a class 1 appeal No. 11146 of 2005 between Marchese and Partners Architects v Mosman Council in regard to a deemed refusal of Development Application No. 8.2005.20.1 in regard to a proposal for a part-3 and part-4 storey mixed use building containing 11 commercial units on the ground floor and 16 residential dwellings on the upper floors and basement parking with 37 spaces at a site known as Nos. 361-363 Military Road, Mosman. 2 The site is on the south-eastern side of Military Road between Prince Street and Belmont Road. It has frontage to Prince Street and a right-of-way access from Belmont Road behind Nos. 357-359 Military Road. The right-of-way (ROW) is between that four storey office building and a three storey block of units above ground level car parking at No. 137 Belmont Road. 3 The site is L shaped with a frontage of 49.6 m to Military Road and 12.9 m to Prince Street. 4 The access to the ROW is along part of the property that runs back to the ROW. That part of the site is adjoining Nos. 357-359 Military Road between it and a block of units at No. 66B Prince Street. 5 This length of the property is about 9 m wide and about 24 m long. 6 On the common boundary with No. 357-359, that building has a two storey high wall above which there is a wide terrace, to offices on its third floor. Above that terrace is fourth floor, again with substantial terraces at that level. As a result the offices in the two upper floors of No. 357 look towards the subject site and across this narrow rear portion of it towards No. 66B Prince Street. 7 Number 357 is setback at the ground level from the street approximately 6 m. 8 Number 66B is a 2-storey residential flat building which is a heritage item. It was built on the site of an earlier house called Clumpa House and the property of the original house had included the subject site. 9 The 1996 Mosman Heritage Review describes as: A block of eight flats, built of red-brown brick, roofed with variegated terra cotta tiles and designed in the Old English style but with a strong Georgian Revival flavour. Its façade to Prince Street is symmetrical, with a projecting rendered porch and gabled end bays, but asymmetrical to Military Road. 10 The Register of Significant 20th Century Architecture listed by the Royal Australia Institute of Architects had previously put Clumpa Court on its list. The inventory sheet includes the following historical notes: Erected between the wars, this block of flats typifies the move away from single house towards denser residential development, while still preserving simple rectilinear shape such as gables, hipped roofs and eaves, bowing to traditional Mosman forms. 11 The Review assesses the building as being of regional aesthetic significance and local historic significance and as being a representative example of its type and provides the following summary statement of significance: A pleasing architect-designed building characterising the burgeoning movement towards flat building in Mosman. It is aesthetically pleasing and well-built. 12 The flats had been built in the 1930's and the subject site had not been subdivided off it until the 1950's after which the subject site became a service station and later on a garden supplies and nursery. This latter use is existing at the time of the hearing. 13 Prince Street is a cul-de-sac before it intersects with Military Road, and there is an area of parkland with trees in the street closure which is approximately the same width as the frontage of the subject site to Prince Street. There is however a driveway access from the cul-de-sac onto the subject site. 14 The proposal intends to retain this access for the purpose of services to, and garbage collection from the ground level commercial units only. The service bay will also enable service and delivery vehicles to enter the site by reversing into the bay from the cul-de-sac. 15 The access to the basement car park is via the right-of-way from Belmont Road. Currently the driveway descends from the footpath level to the basement level in an open air excavation to a central driveway entry in No. 357 on its rear elevation. The driveway then runs back up to natural ground level to allow access to the subject site. Currently an amount of waste material from the nursery is at the end of the driveway and it is obviously used to some extent for the receipt of garden furniture etc. for the nursery and the stacking of garbage before it is taken away. However, all other access to the subject site is currently from either Military Road or Prince Street. 16 The site and No. 357 are zoned No. 3(b) Commercial/Residential under the Mosman Local Environmental Plan 1998. The land behind those properties is zoned Residential 2(e). 17 The land across Prince Street from the subject site is also zoned Residential 2(e) as is the land across Military Road. The land across Belmont Road is zoned 3(a2) Cremorne Business Centre. The land further to the south along Prince and Belmont Streets is zoned Residential 2(a3). 18 The site therefore, is on the boundary of its zoning with the residential areas and certain statutory and control plan requirements apply. The applicable statute is the Mosman Local Environmental Plan 1998, in particular: o the desired future character of the zoning, o the floor space ratio, o the height limit, o the requirement for decontamination of the site due to its previous petrol station use, o requirements in regard to excavation, o heritage conservation, and o development in the vicinity of heritage items. 19 It might be noted that the plan as presented at the hearing exceeded the floor space ratio and the height limit. During the hearing, amended plans were prepared without objection from the respondent. They reduced the floor space ratio and the height of most of the building to comply, except for the elevator over run that projected about 1 m above. 20 The contamination of the site has been dealt with by a Stage 1 Investigation Report that required Stage 2 studies to determine the extent of pollution and the means of extracting it. 21 The council had proposed to deal with this by deferred commencement consent in order to enable further decisions to be made after the Stage 2 investigations. The applicant initially opposed this however on reference to Remath Investments (No. 6) Pty Ltd v Botany Bay City Council, [2000] NSWLEC 137 Talbot J, opposition to the condition was withdrawn. 22 The applicable control is the Mosman Business Centres Development Control Plan for the Cremorne Business Centre. It required a site analysis to be undertaken and had particular provisions in regard to: o Development on arterial roads o Development in the vicinity of heritage items o Disabled access o Advertisement and business signs o Privacy and security o Energy efficiency o Solar access o Site management and excavation o Stormwater management o Waste storage and disposal o Demolition procedures 23 Mosman Transport Development Control Plan also applied in regard to provision of car parking, access for persons with disabilities, bicycle and motorcycle parking, loading and unloading facilities, and car parking design. 24 The design of the proposal had caused concern on a number of matters in regard to the access of the parking facilities. However, at the time of the hearing, the basement car parking had been amended such that internally there were no objections by the respondent. However, there was concern over access by the ROW and gradients of the entry ramp to the basement and the impact of its excavation on trees within No. 66B Prince Street. 25 During the hearing the plans were amended to reduce the extent of excavation for the entry ramp to the car park and to relocate it such that a large Hoop Pine on No. 66B could be preserved although other trees along the boundary within No. 66B would be lost. 26 The respondent's evidence was heard from: o Mr R N Dickson, consultant architect/town planner and urban designer o Mr J Coady, consultant traffic engineer, o Mr M Robinson, consultant heritage architect and o Mr B Richards, arborist for the council 27 Objectors gave evidence on site to supplement objections tendered in evidence. There had been quite a number of written objections from nearby residents and occupants of the commercial properties, those giving oral evidence were: o Mr G Gattegno of Unit No. 8 at 66B Prince Street o Ms P Sellars-Jones of Unit 2 at No. 66B Prince Street o Mrs M Symth of No. 49A Prince Street o Mr W Sellars-Jones on behalf of Mr Pizzorni of Unit 1, No. 66B Prince Street who was absent overseas o Ms P Bojka also owner and resident of Unit No. 10. at No. 137 Belmont Road adjacent to the right-of-way at the rear of the subject property. o Mr Fletcher, owner of a medical clinic in No. 357-359 Military Road o Ms Jackson, co-owner of another medical clinic on level 3 of No. 357-359 Military Road. 28 The applicant's evidence was heard from: o Mr C Hallam, traffic engineer o Mr A Darroch, town planner o Mr S Davies, heritage architect. o Mr A Stanic, architect gave evidence, o Mr K Hill, arborist, 29 The proposal was designed to have a three storey wing at the Prince Street end going to a four storey height adjoining No. 357 Military Road. 30 The ground level commercial spaces were long and narrow and each had frontage to Military Road at footpath level running through to the rear of the building to individual courtyards adjacent to No. 66B. 31 The entrance to the upper floor apartments was via a lobby adjacent No. 357 Military Road. There was one apartment off the lobby at the ground level designed to be accessible for disabled persons. It was directly above the basement entry ramp, but its windows faced towards No. 66B. There was an elevator running up the four storeys to give access to the other apartments. 32 Adjacent the fire stair and elevator shaft was a vertical wall four storeys high angled at 45 degrees to Military Road and this was proposed as a four storey billboard. The ultimate material that might be advertised on that billboard would be the subject of a separate application to council. Since the billboard as shown on the plans would measure some 12 m high x 5 m wide its streetscape impact was of some concern to the council. At the end of the hearing the applicant withdrew the billboard as part of the proposal saying it could be subject of a separate application to the council at a later date. It was to be considered as just an external wall of the building. 33 On the second storey of the proposal, there is an access corridor from the elevator running the length of the Military Road frontage to fire stairs near Prince Street. This corridor gives access to a number of the units that are built as two storey maisonette apartments with the front door and bedrooms at the second storey level. At the third storey level the apartments have their living rooms and kitchens. 34 In the case of two apartments they have a bedroom at the third storey too. Even in Exhibit L the third storey bedrooms of these 2 units are shown with dining table furniture and a full wall of bi-fold glass doors onto the deck so the intended use is not clear. 35 At this third storey level all the apartments fronting Military Road have their large private courtyards as decks on the south-eastern side of the proposal overlooking No. 66B Prince Street. They have narrow balconies overlooking Military Road. 36 Within the leg of the allotment that goes to the rear of the property there are two apartments on each level above ground floor with living rooms and balconies and bedrooms overlooking No. 66B on its south-western side. 37 On the fourth storey overlooking Military Road in the western corner of the site adjacent No. 357 there are two more apartments. One overlooks Military Road only, the other has a master bedroom, dining room, living room and balcony overlooking No. 66B Prince Street. 38 The design of the proposal is such that in the Military Road wing of the development, each floor steps further away from the boundary of No. 66B except for the latter two apartments and the two maisonette apartments below them that have bedrooms on the third storey. 39 As referred to above there are two more apartments in the rear wing on the fourth storey overlooking No. 66B. In the rear wing of the proposal it rises four storeys without any stepping away from No. 66B. The rear wing comprises the ramp to the car park, and the disabled access unit on the ground floor, and two apartments on each of the three floors above. 40 The development has flat roofs including on levels that are stepped. There is 1½ m side setback at the ground floor level from the boundary with No. 66B. In that space is a planter trough to enable some vegetation to be grown. The planter trough sits on top of the car park below which is excavated to the boundary line. On the rear wing of the building the planter trough and the disable access unit are only about 6 m long due to the need for head clearance for the car park entry ramp. For the rest of the rear wing boundary with No. 66B the driveway is full width of the allotment to enable vehicles to achieve turning circles in making the right angle bend from the ROW into the approach to the basement ramp. On the common boundary with No. 66B along the Military Road wing of the proposal the planter trough ends just before the commercial units' garbage store. There is a boundary wall only between the store and the vehicle service bay off Prince Street so that bins can be wheeled on a path in the 1½ m setback. 41 The issues are: BULK, SCALE AND HEIGHT 1. The proposal does not comply with the maximum building height within the zone, of 12 m. The proposal is 13.8 m. The proposal is not consistent with the objectives of the relevant height control. Particulars Mosman Local Environmental Plan 1998 ("MLEP") Clause 18, Mosman Business Centres Development Control Plan ("MBCDCP") Section 5.2 Objective 01, Planning Guideline P4, SEPP 65 Clause 10. 2. The proposal does not comply with the maximum FSR of 2:1. The proposed FSR is 2.024:1. The proposal is inconsistent with the objectives of the floor space ratio, for buildings within the zone. Particulars MLEP Clause 17, MBCDCP Section 5.2 Planning Guideline P6, SEPP 65 Clause 12. 3. There is an inappropriate transition with the adjoining residential 2(e) zone which has a height limit of 11 metres and a maximum FSR of 1:1. See Seaside Properties Developments Pty Limited v Wyong Shire Council [2004] NSWLEC 117. SETBACKS 4. The controls require walls above the second storey that face the street and other public places to be set back so as to achieve a 45 degree height plane. The third and fourth storeys are not set back, and as such are out of character with surrounding development and do not meet the desired urban design criteria for the Cremorne Business centre. Particulars MBCDCP Section 5.2 Planning Guideline P 11 5. The controls require sites adjoining residential zoned land to be setback at a minimum of 1.5 m from the common boundary for the first 2 storeys, then set back so as to achieve a 45 degree height plane. The adjoining No. 66B Prince Street is zoned residential. The proposal is setback 1.5 m from its common boundary with 66B Prince Street, but does not achieve a 45 degree height plane. Particulars MBCDCP Section 5.2 Planning Guideline P 12 and 03. STREETSCAPE AND URBAN DESIGN 6. There is an unsatisfactory relationship between the southern end of the development and adjoining commercial development at 357-359 Military Road with regard to urban/architectural design. Particulars SEPP 65 Clauses 9 and 10, Residential Flat Design Code, Parts 2 & 3 7. The proposal has a negative impact on the streetscape. It does not contribute positively to the existing character of the area and is inconsistent with the desired character of the Cremorne Business area. Particulars MBCDCP Section 4.6 Objectives and Desired Character, SEPP 65 Clauses 9, 10, 11 and 12, Residential Flat Design Code, Parts 2 & 3 8. The two storey facade treatment on the proposal is inconsistent with the controls. As such, the proposal is incompatible with the existing streetscape. Particulars MBCDCP Section 5.2 Planning Guideline P18 9. The controls require a pitched roof. The proposal has a flat roof. The proposal is inconsistent with the existing streetscape and desired future character of the area. Particulars MBCDCP Section 5.2 Planning Guideline P26 AMENITY IMPACTS 10. The proposal will have an adverse impact on solar access on the north-western and south-western elevations of the adjoining units at 66B Prince Street and the northern elevation of the commercial building at 357-359 Military Road. In particular, the proposal will limit the solar access to some adjoining units' north-western facing windows in the afternoons. Particulars MBCDCP Section 6.8 Objective 05, Planning Guideline E 3 and ES, Australian Model Code for Residential Development (AMCORD), Residential Flat Design Code, Part 3 11. The proposal will have a negative impact on the aural and visual privacy of the adjoining units at 66B Prince Street. The windows on the south-eastern side of the proposal will look into windows of 66B Prince Street. The proposal is not set back from 66B Prince Street sufficiently to mitigate its privacy impacts. Particulars MBCDCP Section 6.7 Objective 01 and 04 and Planning Guidelines E1, E2, Australia Model Code for Residential Development (AMCORD), Residential Flat Design Code, Part 3 12. The proposal will have an unacceptable visual impact on adjoining units on the northern-eastern side of the building at 357-359 Military Road, by presenting a solid wall to these units and offices. Particulars 13. Several of the proposed units (specifically G12, 101, 102, 201, 202, 301 and 302) will have unsatisfactory solar access. Particulars MBCEDCP Section 6.8 Objective 03, SEPP 65 Clause 15, Australia Model Code for Residential Development (AMCORD), Residential Flat Design Code, Part 3. LANDSCAPING 14. The proposal will have an adverse impact on existing Araucaria sp (Hoop Pine) and the Conifer located on the adjoining No. 66B Prince Street. No arborist report has been submitted. Particulars MLEP 1998 Clause 9 and the Mosman Tree Preservation Order. ON-SITE LOADING 15. The proposed loading area has been designed to accommodate the 6.4 m long Small Rigid Vehicle, whereas the revised Statement of Evidence prepared by Christopher Hallam notes that the loading dock has been designed to accommodate the 8.8 m long Medium Rigid Vehicle. Further clarification of the loading and access arrangements is required. Particulars Australian Standard AS2890.2:2002 ACCESS 16. Insufficient information has been supplied as to the legality of the proposed usage of the ROW for access to the proposed mixed used development. The ROW is over the adjoining property, 357-359 Military Road. No owner's consent has been lodged in respect of that property. 17. The intersection of the existing Right of Way and the proposed access driveway and the right of way itself features a significant change in grade and does not satisfy the Australian Standard AS/NZS2890.1:2004 with regard to transitional grades and scraping of vehicle undercarriages. Particulars AS/NZS2890.1:2004 18. The queuing areas prior to the intersection of the existing Right of Way and the proposed access driveway do not satisfy the maximum gradients specified in Clause 3.3(c) of AS/NZS2890.1:2004. Queuing areas are required in this instance as the intersection is restricted to one-way traffic flows and sight lines to oncoming vehicles are constrained. Particulars AS/NZS2890.1:2004 19. Inadequate information has been provided as to how the garbage will be removed from basement level. HERITAGE 20 The proposal will have an adverse impact on the adjacent heritage item at 66B Prince Street, Mosman. BILLBOARD 21. The proposed billboard does not comply with the controls, which require all advertisements and business signs to be located beneath the window sill of the first floor. The proposed billboard is also inconsistent with the objectives of the controls. Particulars MBCDCP Clause 6.4, Objectives 01, 02, 04 and Planning Guidelines E2, E3, E4 and E7 SEPP 64 PUBLIC INTEREST 22. The proposal is not in the public interest, having regard to the objections received. Particulars Issues raised by residents + Overshadowing/ loss of internal solar access to neighbouring properties + Insufficient parking and problems with access/egress + Use of right of way as primary point of access + Obstruction of views + Impact on Heritage building and trees on that site + Impacts of construction (noise, dust) Bulk, scale and height + Inconsistent with village atmosphere in surrounding area + Inadequate garbage disposal mechanisms + Noise from garbage trucks + Smell from garbage + Overdevelopment + Safety of egress arrangements + Unacceptable arrangement in relation to service vehicles + Urban design and streetscape + Removal of trees + Creation of additional traffic + Increased pollution from increase number of vehicles + Privacy impacts on adjoining properties + Traffic on Prince Street (service vehicles) and Belmont Street + Concern of contamination from previous use of site as a Service Station. Sufficient commercial development in area already - extra is not needed + Lack of set back from Military Road and southern boundary + Non-compliance with 45 degree height plane + Plans are inaccurate in relation to other properties + Impact of excavation on adjoining properties Billboard is inappropriate 42 The objectors' concerns expressed orally could be summarised as follows: 43 For the residents of No. 66B Prince Street: - Loss of sunlight they currently get to their north-west and their south-west windows; - Loss of trees on No. 66B that provide a heritage setting and a buffer to the buildings in the Business Zone adjoining. - Loss of privacy to their living room and bedroom windows due to the proximity of apartments in the proposal. - Location of commercial units' garbage area and possible smells and noise from collection and traffic on Prince Street - Narrowness of Prince Street, with cars parked both sides, there is only one moving lane, so any extra vehicles cause congestion and delays for existing residents due to Prince Street being a cul-de-sac. - Bulk, height and proximity impacts of the proposal on the heritage significance of No. 66B Prince Street. - Overlooking rear communal open space of No. 66B. 44 For the residents of houses in Prince Street: o Commuters used to park out Prince Street such that residents had to park blocks away. Many houses in Prince Street have no on-site car parking. o Council recently imposed a residents' parking scheme that improved the situation. o The proposal only has three visitor car spaces which is wholly insufficient for 11 commercial suites and 16 apartments. Overflow car parking from the flats and the customers of the commercial suites will use Prince Street and make the parking situation worse once again. o Prince Street is narrow and a cul-de-sac, as a result with cars parked both sides there is only one moving lane. As a result any car or delivery truck or garbage truck coming up the street prevents anyone driving out until they have gone past. o The daily deliveries and garbage pickup for the commercial suites being off Prince Street will add considerable congestion and delays for residents of the houses. o Forty residents of Prince Street had written objections on the last three points in Exhibit 18. 45 For the resident of Unit 10, No. 137 Belmont Road: o Loss of sun to her second floor balcony. o Balcony is the only outdoor recreation space for units in the 1960's to 1970's apartment building. o The main living room windows face across the balcony towards the subject site and No. 66B Prince Street. o Privacy loss o Loss of trees in 66B that currently soften the outlook from No. 137. The outlook is partly across the rear portion of the subject site. o The rear portion of the subject site will have a four storey building on it that will fill part of the outlook and create visual impacts and privacy loss and shadow impacts. o The trees on No. 66B attract birdlife that is part of the existing enjoyment that will be lost. o The increased use of the ROW to the basement car park of the proposal will add noise and pollution to the loss of amenity. o Patients accessing the basement car park of No. 357 and its medical clinics already queue into Belmont Road at peak times. This will be make it worse. o The bend in Belmont Road at the entry to the right-of-way gives poor sight lines for drivers and pedestrians coming out of No. 137. Accidents will potentially increase. o The huge billboard proposed on the Military Road façade of the development application is inappropriate. 46 For the owners/tenants of commercial suites (medical clinics) in No. 357-359 Military Road on the third and fourth floors: * Increased use of the ROW will cause congestion for both properties. * Body corporate of Nos. 357-359 has not received any correspondence seeking increased use of the ROW. * Numbers 357-359 is not fully tenanted and a recent traffic count of the patients of two medical suites showed 74 traffic movements for one and 180 traffic movements for the other in one day. This makes 250 movements in or out for just two of the tenancies. * The 74 traffic movements of one medical practice were generated by 37 patients over a total of 41. So there is a high percentage of patients come to No. 357 by car. * When No. 357 becomes fully tenanted, plus the proposal, congestion in the ROW and queuing into Belmont Road will occur regularly. * Belmont Road has a traffic median in the centre opposite the ROW so cars can only do left in and left out. * Cars parked in Belmont Road make the moving lane opposite the ROW only one car width. * Any queuing in Belmont Road to enter the ROW will stop all traffic trying to enter Belmont Road from Military Road which is a main arterial road with very high traffic numbers. * The commercial suites in No. 357 value their north-eastern outlook across the subject site to the trees and No. 66B. That will be lost. * The commercial suites in No. 357 have large terraces on the north-east side that will have towering above them the upper two storeys of the four storey rear wing of the proposal. Apart from the loss of views there will be shadows and loss of amenity. * The stepping of the two existing buildings of Nos. 375 and 355 Military Road creates the streetscape and amenity that Mosman Municipal Council is trying to achieve. The proposal, by building to the street boundaries and going up to 4 storeys without any stepping back is contrary to that streetscape and does not blend with the existing buildings at Nos. 357 and 355. * The huge billboard on the proposal is also out of keeping with the streetscape and the discrete signs on the neighbouring buildings. 47 The objectors of suites 21 and 22 level 3 and suite 15 level 2 of No. 357 had an architect submit sketches of what they felt is reasonable on the subject site. It involved no building on the rear part of the subject site except for the access driveway from the ROW to the basement and it also involves stepping the Military Road wing of the proposal from 4 storeys down to 2 storeys abutting No. 357 in order to simulate the stepping in the bulk of the building of No. 357. Also the submission suggested a Military Road front setback to provide for landscaping to match that of No. 357. 48 In response to these objections the applicant put that the reasonable expectations for the site to achieve its maximum potential should not be constrained by the unreasonable wishes of the objectors. 49 It was put in submissions and by evidence from Mr Darroch, Mr Hallam, Mr Stanic, Mr Davies and Mr Hill that: o The views for No. 357 across the subject site to the trees on No. 66B Prince Street and the heritage item are fortuitous and could not reasonably be expected to remain when the subject site is zoned No. 3(b) Commercial/Residential, with a 4 storey height limit. o The 4 storey height of the proposal is within the height limit. The likelihood of a 2 storey wall above the terraces of No. 357 is something the owners of No. 357 should have anticipated when buying their commercial suites. o They are commercial suites, not residential apartments in No. 357 and should not expect the same amenity as residential flats. o On its Military Road wing the proposal had been stepped away from No. 66B Prince Street in order to provide good sunlight to the residential flats therein and to obtain a satisfactory relationship with the heritage item and to comply with the council's control for a 45 degree stepping away above the second storey where the No. 3(b) zone adjoins the No.2(e) Residential Zone. o In order to maintain the height and floor space ratio potential yield of the site those constraints cause the design to take the reasonable options of going to the maximum height at the south-west boundary with No. 357 and building to the Military Road boundary. It is the applicant's case that the statutory objectives of the streetscape issues and the relationship of the proposal to Nos. 357 and 339 Military Road had been met in the design. o The units in No. 66B would retain two hours of sunshine midwinter to the north-east windows of the units and that was the council's requirements. The existing situation of their receiving sun all day midwinter is not a council requirement. o The potential loss of some of that sunshine should have been taken into account by the objectors in purchasing the units next to a zone 3(b) property with a four storey height limit. Also the proposal had been designed to step away from No. 66B to retain the two hour solar access requirement so all reasonable steps had been taken by the applicant. o In regard to Unit 10, No. 137 Belmont Road, the shadow diagrams reveal there would be little or no shadowing of that unit. The proposal would be about 10-15 m away from the balcony of unit 10 and the four storey height of the proposal should reasonably have been anticipated by the purchaser of Unit 10 as the property adjoins a zone 3(b) allotment. o The amended drawings in Exhibit L would enable the retention of tall Hoop Pine tree on No. 66B. That is the most prominent and closest tree to Unit 10. That and the distance of separation should ameliorate the visual impact of the proposal to acceptable levels. o The increased traffic on the ROW on the boundary of No. 137 is another factor that should have been considered by anyone buying a unit next to a zone 3(b) allotment. With the amended drawings both traffic engineers are satisfied the ROW is suitable for the traffic to serve the proposal and No. 357 Military Road. The left-in-left-out only control on the ROW where it meets Belmont Road is safe provided drivers exercise normal care. o Both traffic engineers did not expect queuing of cars entering the ROW to extend out onto Belmont Road and block turning into Belmont Road from Military Road. 50 On this latter point I put it to the traffic experts that whilst on the view of the site and its neighbours the parties were in the ROW when a car entered the ROW and stopped just inside the boundary of No. 357 to operate an intercom. The intercom had numbers to dial for each suite in No. 357 and the driver had to wait for someone to answer and to operate the sliding grill gate to the car park of No. 357. That took some time, and in peak periods it would only take one other patient of the clinics to arrive behind that car and any third car would have to queue in Belmont Road. 51 Both experts said they had not observed the incident and had assumed the intercom was a defunct boom gate as there was no boom. They both assumed cars just drove in without stopping in the ROW. 52 Obviously, however, the sliding grill gate to No. 357's basement car park was the control and no boom gate is necessary. The experts agreed the observed incident illustrates a problem with the ROW. The intercom for No. 357 would have to be moved further along the ROW to allow two or three cars to queue within it before the entry to No. 357's basement. There had been no contact with No. 357's body corporate about that. 53 Mr Coady for the respondent said in regard to the service vehicle bay off Prince Street for the commercial units of the proposal that the estimated five deliveries per day would not cause a problem in Prince Street. His concern was the service bay is proposed at 6.4 m long and the smallest garbage truck he knew of is 8.4 m. The garbage truck is intended to use the bay to pick up the commercial bins stored in a room adjacent the bay. The truck would project partly on to the footpath. 54 The applicant's traffic engineer Mr Hallam said it was intended to use a contractor with a utility sized vehicle that would take the bins away to be emptied elsewhere then return them. It would mean minimum disturbance to the residents of No. 66B he said. 55 Mr Coady had never heard of that kind of garbage collection where bins are not emptied on site. 56 In regard to potential smell from the waste being close to units in No. 66B, the applicant said the commercial units would have mainly paper and non-putrescible waste. Being in an enclosed room it was unlikely to smell. 57 Mr Coady noted the predominance of medical suites in No. 357 and commented if the commercial suites of the proposal became medical suites then medical waste was likely and it could be a concern. The applicant replied medical waste disposal is highly controlled and would be less likely than commercial waste to be of concern to No. 66B. 58 In regard to the objectors concerns about overflow parking in Prince Street, both traffic experts agree the proposal complied with the council's parking requirements and that was all that could be expected, as it was based on normal traffic generation statistics. 59 Mr Coady said as long as the amended drawings achieve the correct driveway gradients and head clearances and the column in the centre of the entry ramp to the basement was moved to the boundaries then he accepted the on-site parking would be adequate. 60 There is he said, a vehicle manoeuvring problem at the right angle bend from the ROW into the basement entry. Two cars cannot pass in opposite directions around the bend, one car as to wait for the other. The traffic experts agreed this could be dealt with by convex mirrors and traffic lights. Mr Coady said this was normally acceptable, but in this case the car having to stop in the ROW for an outgoing car would be on a 20% gradient. That is normally not acceptable. Mr Hallam had calculated likelihood of two cars meeting on the bend at 1.38% and said the frequency would be so low it would not justify refusal of the proposal. 61 Mr Coady noted the ROW is 5.85 m wide. AS/NZS2890.1/2004 cl 2.5.2(a)(ii) requires 5.5 m between kerbs and 300 mm clearance past the kerbs giving 6.1 m total. Lights on the south-east wall of the ROW project 300 mm restricting clearances. Mr Coady said these shortcomings were not sufficient for refusal but added to a difficult driver environment. Unless appropriate measures were taken he said the various problems in the driveway may be sufficient for refusal. 62 Mr Hallam noted the restricted width of the driveway was at one section of the ROW only and other sections complied with the width requirements. The problem of the narrower section would only be important if peak traffic exceeded 30 vehicles per hour and Mr Hallam had calculated the development generated a maximum of 20 vehicles per hour and Nos. 357-359 10 vehicles per hour. 63 Mr Coady noted that the estimate for the Nos. 357-359 traffic component in the ROW was based on a survey traffic count and he had only just become aware No. 357 was not fully tenanted. However, he had not done a calculation to check the peak traffic. 64 When the amended drawings were tendered in Exhibit L the traffic experts had been excused from the hearing. The respondent noted that contrary to the joint traffic statement the column in the basement entry ramp had not been moved out to the side boundary. It had been moved only to one side to give the 6.1 m clear width, but the vehicle turning path around the 90 degree bend just before the column had not been shown to indicate it would work. The applicant said a condition could require relocation of the column if needed. 65 Garbage collection for the residential units was to be located in the basement opposite the end of the entry ramp. Once again the bins were to be transported away in a utility sized vehicle to be emptied and then returned. Any noise and smell should be confined to the site. 66 Bearing in mind Mr Coady's evidence on the cars not being able to pass on the 90 degree corner between the ROW and the entry ramp, I took judicial notice of the turning circles in AS2890 for the 99.5%-ile of vehicle such as a garbage collection vehicle might be and the 85%-ile of vehicle such as a Commodore or a Falcon. 67 If the entering car got to the corner of ROW and subject property first, the exiting car would have to stop at least 10 m from the corner measured from the inside of the bend at the boundary to the subject property from the ROW, to enable the entering car to sweep over to the right hand side of the entry ramp and back to the left hand side. 68 The exiting car would have to stop on the 1:5 gradient ramp. Likewise the position at which an entering car would have to stop is also on a 1:5 gradient. Neither car would be able to see the other and so the drivers would have to be familiar with using convex mirrors. Without that it was likely that both cars would have commenced the turning manoeuvre so that they both would have to stop and one would have to reverse to enable the other to pass. Automatic green and red lights would be needed to minimise this possibility. As Mr Coady said it would not be a very user/friendly vehicular entry, particularly for persons who might be unfamiliar with the ROW. 69 There was no evidence on approval of the body corporate of Nos. 357-359 Military Road to the works required within the ROW or the increased use of it. Although the lack of contact with the body corporate was drawn to my attention, I assume the parties do not see that as a major estoppel to the proposed use of the ROW by the subject site. 70 From the evidence so far it appeared to me that although the traffic and parking issues indicated the proposal could add to local congestion and may be a difficult driver environment. Subject to the use of the ROW being legally possible the respondent had not presented a case that traffic matters alone would be sufficient for refusal. 71 Turning to the evidence on streetscape and the heritage item at No. 66B Prince Street, I note that the council's transitional requirements for higher intensity uses on zone boundaries with residential zones requires 45 degree stepping of the building envelope above the second storey for buildings in the higher use zone. 72 Mr Dickson's evidence shows this applies to the rear leg of the subject lot as well as the Military Road wing. The rear leg of the proposed building does not step as required and has the 1½ m side setback to the boundary four storeys high. 73 When taken onto No. 66B on the view of the heritage item, the living room and sun room windows of four units face the rear leg of the subject property and therefore would have six balconies and six living rooms of six units (ignoring the ground floor disabled access unit) and six bedroom windows looking directly across at No. 66B at a separation distance of 12 m to some rooms and 10½ m to others. 74 The rear yard of No. 66B which comprises the only semi-private communal open space of that site would be overlooked from between 1½ m and 12 m separation by the same six units of the proposal. From the Military Road wing of the proposal the same communal open space of No. 66B and the sun room windows of two units on the western corner of No. 66B would be overlooked by two decks, five bedrooms and one living room of the proposal. The communal space would go from being private, except for other residents of No. 66B, to being heavily exposed. The balconies and living room windows of the six units in the rear wing and two in the Military Road wing, of the proposal cannot be given privacy screens without cutting off solar access and outlook to themselves. 75 The applicant put that the preservation of the Hoop Pine tree would retain privacy screening for most of No. 66B, but I agree with Mr Richards. The proximity of the proposal to the boundary means all the branches that might give privacy would need to be pruned back to the trunk of the tree. In any case it is not usual to rely on only vegetation for privacy as vegetation lives and dies. 76 The respondent said that the proposal would, in effect, appropriate the amenity of No. 66B's setting for its own benefit whilst creating an overbearing structure that severely detracts from the significance and setting of the heritage item and also overshadows the communal space of No. 66B and in mid winter would prevent the existing late afternoon sun to the south-west facing living rooms of No. 66B. 77 The sunlight that the stepping of the Military Road wing of the proposal preserves is to the bedrooms and sunrooms of two of No. 66B's units fronting Prince Street and two at the rear. The ground floor windows in the north-west elevation of No. 66B would have sun until about 12.30 pm. 78 Of the upper floor units of No. 66B one would keep sun until 3.30 pm, the other would commence to lose sun at 1 pm and being full shade at 2.30 pm. This is not an unacceptable outcome on solar access for the north-western windows of No. 66B, but the respondent said there were other impacts. 79 Mr Dickson said having the major private courtyards/decks of the apartments in the Military Wing of the proposal all facing No. 66B meant the units had very little sun to their own private open spaces in mid winter. There would be sun to their north facing living rooms but the control plan required it to the private open space also. 80 A further impact would be the direct view lines to the bedroom windows of No. 66B. These would mean privacy loss and noise potential from entertainment in the units. 81 Although the distances of separation were at normally adequate distances, the site would not be able to provide its own softening of its built form with its own boundary vegetation in the 1.5 m wide planted troughs. The vegetation in those would be lucky to reach one to two storeys screening only bedroom windows of the proposal. The deck levels would rely on secondary planter troughs and vegetation in them at the deck levels. 82 Mr Robinson said the bulk and mass of the proposal would visually wrap around the heritage item three and four storeys high on two sides having substantial affects on its setting and therefore its significance. 83 If the council streetscape controls on a 45 degree step in the building envelope above the second storey on the Military Road frontage were to be observed, plus the other requirements on this transitional allotment next to the residential zone boundaries, the impacts would be far less on both streetscape and heritage significance and amenity. 84 A bi-product of such compliance would be less impact on the north-east elevation of Nos. 357-359 and lesser visual impact on No. 137 Belmont Road, but those matters are not determinative of this appeal. 85 The applicant's evidence is that No. 66B currently has a very noisy environment from Military Road traffic and the proposal will shield it from that noise. Entertainment on the proposed units would be only occasional, and in a residential situation that is normal. 86 On the option of placing the private open spaces of the units on the side facing No. 66B the applicant put that the same noise from Military Road made an outdoor space undesirable on the north side of the proposal where admittedly they would get more sun. But the applicant said, there was no need for sun mid-winter to the private open space decks of the proposal, as the living rooms had northern sun and the windows could be double glazed for noise reduction. This latter evidence carries some logic in my view, but it does not necessarily create a justification to ignore the control plan requirements for the setback from the Military Road frontage and stepping of the building from that side for streetscape reasons. 87 Mr Dickson said he was not against the loss of the front setback or the building having flat roofs, the latter because other buildings nearby had flat roofs. It was the failure to observe the step back of the building envelope at 45 degrees above the second storey that concerned him. 88 The Zone 3(b) is a transitional zone between the shopping strip and the residential zone. The change in use is reflected in the council's controls on building form that create a transition within the streetscape. 89 Numbers 357-359 in particular create that transitional effect and except for not having a pitched roof, more than comply with the council's requirements. 90 Number 355 Military Road on the adjacent corner of Belmont Road has large steps as it rises up and away from the street. There is a central section that does not step, but seen obliquely as most people do, the strong impression is that both Nos. 357-359 and No. 355 step up and away from Military Road and Belmont Road frontages. The vegetation in the front setback from the street boundaries of both properties accentuate the transition in the streetscape from the shopping centre area to the mixed use zone and then the residential. 91 The proposal by achieving its maximum floor space ratio and maximum height has done so at the cost of the heritage item and the streetscape objectives. 92 The proposal by rising four storeys directly beside Nos. 357-359 and by having no street front setback will frustrate the benefits to the streetscape objectives already achieved by Nos. 357-359 and No. 355. Coming from the east persons on Military Road will not see those transitional buildings until past the site. Coming from the west, the proposal, instead of continuing the reduction of bulk and height of buildings in the transitional zones down to that of the residential zone that commences at Prince Street, persons will see an abrupt four storey vertical wall originally proposed as a four storey high billboard. The façade leading eastwards from that four storey vertical wall will represent a building façade in a hard rectilinear form that would recommence the shopping centre forms of buildings that the controls are intended to prevent. 93 Mr Robinson said to have proper regard to the heritage item and its setting and the requirement for consideration of its visibility from the major public thoroughfare of Military Road, the proposal should observe a similar setback to Prince Street as No. 66B of about 10 m. The loss of all the trees except the Hoop Pine on the south-west boundary of No. 66B is another impact that results from the development. 94 The respondent's experts agreed these controls and statutory considerations would reduce the potential development yield of the subject site well below the theoretical maximum. But the latter is just that, a maximum that is intended to apply to an unconstrained site. 95 The subject site by being L-shaped, small and narrow in each leg, being a lot to which envelope and transitional requirements apply on five (5) boundaries out of six (6) to reduce building bulk and height, and a lot that adjoins a heritage item and its setting on two boundaries, is a heavily constrained allotment. 96 A building that complies with the controls would reduce many of the impacts of the proposal possibly to acceptable levels subject to council's further consideration. 97 Overall I agree with much of the respondent's evidence. In particular Issues 4, 5, 6, 7, 8 and 10 in regard to the south-west windows of No. 66B and the communal open space, Issue 11 in regard in regard to aural privacy impacts on No. 66B's north-west elevation, and aural and visual privacy of the south-west windows of and communal open space at the rear of No. 66B. Issue 16 becomes important if increased use of the ROW and works required to it can be denied by Nos. 357-359. Issue 20 is important in regard to the adverse impacts on the amenity of the heritage item and its setting and therefore its significance, and parts of Issue 22 that are related to all of the above, I also agree with. 98 Therefore the orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties, except Exhibits E, H, J, L, M, 1, 2, 7, 8, 9, 13, 14, 15, 21 and 22. ___________________ K G Hoffman 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.