Land and Environment Court of New South Wales CITATION : Koumana Holdings Pty Ltd v Warringah Council [2005] NSWLEC 407 APPLICANT Koumana Holdings Pty Ltd PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 11294 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- Demolition of existing shops - erection of three storey mixed use building with carpark access off Pittwater Road - potential for rear vehicle access - desired future character of locality Warringah Local Environmental Plan 2000 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 CASES CITED: Billgate v Woollahra Municipal Council [2004] NSWLEC 436 DATES OF HEARING: 13/07/2005 EX TEMPORE JUDGMENT DATE : 07/14/2005 APPLICANT Mr G Newport, barrister SOLICITORS Landerer & Company LEGAL REPRESENTATIVES: RESPONDENT Mr D Thomas, solicitor SOLICITORS Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 14 July 2005 11294 of 2003 Koumana Holdings Pty Ltd v Warringah Council JUDGMENT 1 This is a class 1 appeal No. 11294 of 2003 between Koumana Holdings Pty Limited and Warringah Council in regard to refusal of the proposal to demolish three existing shops at 1091-1095 Pittwater Road, Collaroy, and erect a three storey development of ground floor commercial and retail space and carparking, with a total of four apartments on the two floors above, and a semi-basement carpark. 2 The site is in the shopping strip on the arterial road off Pittwater Road that runs three city blocks from Eastbank Avenue to Fielding Street. It is opposite the beachfront parkland of Collaroy. The shopping centre is Locality D2 zone under the Warringah Local Environmental Plan 2000. 3 Adjoining on the north of the site is a heritage item, namely the Art Deco style cinema on the corner of Pittwater Road and Alexander Street. There is a set of stop lights controlling the intersection. 4 Adjoining the site on the south side is a set of old shops similar to those existing on the subject site. Of importance in this appeal is that the shops to the south all the way to Eastbank Avenue have a development consent for demolition and the erection of a large development of ground floor commercial and retail shops, and 37 apartments on two floors above, and carparking in two basement floors below. The development is referred to by the name Cornerstone. 5 Behind the subject site at No. 4 Alexander Street is a house in the Locality D5 zone. Its land extends behind the cinema, the subject lot, and part of Cornerstone. 6 The issues have been considerably reduced by amended plans and expert reports prior to this hearing. The development application has been on foot since 2003. The amended issues before me in Exhibit 1 are: DESIRED FUTURE CHARACTER Issue 1 The proposed development has inadequate regard to, and inconsistent with, the desired future character described in the D2 Collaroy Village Locality Statement cll 12(3) and 20(1) of the Warringah Local Environmental Plan 2000 , in that: (a) The driveway (which is required to be widened from 3.5 m to 6.5 m for traffic standards) and limited shop front does not maintain the continuity of existing building facades reflecting the traditional pattern of shopfront development. (b) The driveway and limited ground floor retail/commercial area does not retain and/or reinforce the retail character of the village. (c) The driveway and limited shopfront do not contribute to creating a pedestrian environment which is safe, comfortable, and interesting or allows for commercial use of the footpath for outdoor eating and the like. Part (d) of issue 1 was deleted. Issues 2, 3 and 4 and 5 , dealing with traffic access and parking, were deleted. Issue 6 . The proposed development fails, or is inconsistent with the general principle of development control in cl 70 of the Warringah Local Environmental Plan 2000 . Issue 7 . The proposed waste storage facility is inconsistent with the general principle of development control in cl 70 of the Warringah Local Environmental Plan 2000 in that: (a) It is too far from the property boundary with the street, (maximum allowable distance being 6.5 m). (b) Access is barred by a security door. (c) Part of the servicing access is upon the vehicular driveway. Issue 8 . The unsatisfactory driveway indicates alternative vehicular access to the site should be provided from Alexander Street or Eastbank Avenue. Issue 9 regarding heritage was deleted. Issue 10 regarding State Environmental Planning Policy No. 65, Design Quality of Residential Flat Development was deleted. Issue 11 regarding Inadequate Information , in connection with the application was deleted, except for item 11(e) being a NatHERS Certificate has not been submitted for the proposed development. Issue 12 regarding Integrated Development was deleted. A letter from the Department of Infrastructure, Planning and Natural Resources under s 91 of the Environmental Planning and Assessment Act having been tendered in the hearing indicating approval. Issue 13 regarding Strata Subdivision was deleted as it did not form part of the application. Issue 13A , Geotechnical Constraints . The proposed development involving the construction of a basement carpark, and de-watering of the site is likely to cause the following environmental harm: (a) Lowering of the water table in the general locality with particular impact within 100 m of the appeal land, having the resultant effect of altering the moisture content in the adjoining land which is likely to lead to structural and cosmetic damage to the Collaroy cinema building located immediately north of the appeal land. (b) The proposed excavation and construction methodology is likely to cause significant structural and cosmetic damage to the adjoining Collaroy cinema building located immediately north of the appeal land, having regard to the proximity of the proposed excavation and the geotechnical characteristics of the land. Issue 14 , public submissions. Whether the proposed development should be refused having regard to the weight and substance of the submissions received by the respondent including: (a) Adaptability of the building for commercial premises. (b) Inadequate details of the relationship to the cinema and approved building to the south. (c) No assessment under State Environmental Planning Policy No. 65 . (d) Loss of privacy and amenities to the neighbouring residential property to the west at No. 4, Alexander Street. (e) Inadequate free board to mitigate flooding problems. (f) Inadequate information regarding acid sulphate soils and geotechnical considerations. (g) Setback to the rear should be increased in line with the approved development to the south, that being the Cornerstone development. (h) Noise impact on the adjoining properties, including vehicular noise associated with the open sections of the carpark. (i) Overshadowing. (j) Vehicular access from Pittwater Road inappropriate considering busy pedestrian area and road. (k) Unsatisfactory level of commercial floor space in the proposal. (l) Poor design quality of the architecture. 7 Attending for the respondent are: * Mr D Thomas, solicitor of Wilshire Webb, and * Mr C Hallam, consultant traffic engineer. 8 Appearing for the applicant are: * Mr G Newport, barrister, and * Mr J Hewitt, consultant traffic engineer. 9 The parties had agreed that the Court should appoint Mr J S Kennedy, architect and urban designer, and he was in attendance but not required for cross-examination. His reports on prior drawings, and the amended drawings, are tendered in Exhibits 4 and 5. 10 There are joint expert reports from traffic engineers in Exhibits 7 and 8. There are joint reports from the geotechnical engineers, Mr T Collenbrander and Mr W Newell, but they were not required for cross-examination. They proposed conditions in regard to excavation, especially to protect the structure of the heritage item cinema adjoining. These were accepted by the parties. 11 There were joint expert reports from the hydrological engineers, Mr S Button, and Mr D Davoodi in regard to hydrostatic pressure on the basement carpark, de-watering of the groundwater during construction, and the floor level and stormwater drainage affecting the proposal. They provided draft conditions that are accepted by the parties, and did not necessitate cross-examination. 12 There are joint reports by Mrs C Colville and Mr G Patch, heritage experts, who had examined the amended proposal and its appropriateness adjoining the heritage item of the Collaroy cinema. They had proposed conditions that are adopted by the parties and did not necessitate cross-examination. 13 No objectors attended the hearing. However, letters were tendered from: - D and C Stiles of No. 8 Eastbank Avenue; - A Schuller and E Gibbs of 5 Eastbank Avenue; - D Rogglero of 18 Collaroy Street; and - V Hayer and B Thompson of No. 4 Alexander Street. 14 Submissions were also received from the New South Wales Heritage Office in regard to the cinema, and from the Roads and Traffic Authority in regard to its requirements for the entry driveway to the site off Pittwater Road. 15 A brief summary of the evidence, and submissions, is that the need for a drive entry off Pittwater Road has brought the proposal, in the respondent's opinion, and Mr Kennedy's, to say that at the ground floor level the proposal fails to achieve the desired future character of the Locality D2 zone. Therefore it should be refused. Or, a finding made fore-shadowing consent subject to a s 40 application under the Land and Environment Court Act (1979) to a judge to obtain an easement for access to the rear of the site over Lot B of the cinema property, or No. 4 Alexander Street, or partly on both properties. 16 The applicant gave evidence and submissions that it had taken all reasonable steps to investigate and obtain such an option, and that such an option had limited benefit to the ground floor level of the proposal due to the constraints of the site. 17 Further, that in view of that evidence, a concession should be given for any inconsistency with the Locality D2 desired future character statement. 18 In any case the applicant put the term "consistent" had been defined in case law to be "Compatible with, or not antipathetic to", and the proposal could not be said to be inconsistent taken in the context of the whole shopping strip. 19 Going to the evidence, another aspect that I put some weight on, when put by the applicant, is that council has no development control plan requiring new development to provide rear access to the shops fronting Pittwater Road. Nor does the council have any s 94 contributions plan to acquire a rear laneway. 20 Looking at the constraints of the site I note several matters. The subject site is isolated between the Cornerstone development and the heritage cinema. Substantial evidence was tendered and agreed by the respondent to show both Cornerstone and the cinema would not negotiate an easement. In fact the cinema had a current development application before the council to add 3-storey high extensions at the rear on the small piece of land that might provide access to the subject site. 21 Also an offer to No. 4 Alexander Street had been made in the amount of $200,000 for the grant of an easement over part of the existing front yard and driveway areas at the eastern boundary of the property. It had been rejected with the advice that further approaches would be treated as trespass and harassment. 22 The traffic engineers agreed rear access was preferable considering the busy traffic and footpath pedestrians along Pittwater Road. 23 The applicant's evidence on the practical problems of achieving rear access, apart from acquisition of rear access, were: 1. The site has an existing council stormwater easement across it at about one third the length of the site. Any basement carpark can only be excavated to the rear of the easement so the floor area of any carpark is limited. 2. Extensive vehicle ramps are required due to the flooding of the area. The entry of the carpark has to go up from the natural ground whether at the front or at the rear of the site. The ramp has to crest above the flood height and then descend to the basement. As a result any design has part of its carpark at an elevated ground floor level at the rear of the site, and a semi-basement below that. 3. The reason for a semi-basement is twofold. Firstly, it is automatically created by the elevated ground floor carpark, and secondly the hydrostatic groundwater pressure and the geotechnical requirements to not affect the cinema structure mean that excavation has to be limited to about a half storey below existing ground level. It is not practical in the hydrological or geotechnical experts' opinions to go deeper on this site and have a third carpark level. 4. The need for extensive vehicle ramps to some extent was favoured by the basement having to be at the rear past the drainage easement. It meant the main ramp is in the front section of the site. With a rear access the main ramp has to be within the basement area and absorbs space that could otherwise be carparks. 24 In Exhibit M, Mr Hewitt sketched a rough design with rear access to the subject site that could get 9 cars versus 11 possible on the proposal. That means less off-street parking than the proposal such that it would not meet the parking requirements of council. 25 When the respondent said to ignore the council drainage easement Mr Hewitt said the carparking with rear access could increase to a total of perhaps 12 car spaces, but its access off Alexander Street and manoeuvring within the site would not achieve compliance with the applicable Australian Standard. 26 Mr Hewitt added that if rear access was obtained the existing driveway off Pittwater Road would become commercial floor space and push the parking requirement up to 17 cars so there was still a non-compliance with council's requirements. 27 The proposal, as in the plans in Exhibit A, could meet the necessary carparking requirements of council. 28 I had no evidence to say that the council drainage pipe and easement could be removed, in fact I was told it was an important part of the existing, and the future proposal for stormwater drainage of the shopping centre especially in consideration of its flood prone nature. 29 In regard to rear access the applicant put, and I accept, that it would require separate development consent, and in the face of no co-operation from the neighbours, that could only occur, as the respondent put, through the process envisaged in case law Billgate v Woollahra Municipal Council [2004] NSWLEC 436. 30 To make any finding that this appeal should be adjourned to enable a s 40 application under the Land and Environment Court Act (1979) would require evidence of the merit and fact regarding the heritage item cinema and the house, land and occupants on No. 4 Alexander Street. In this case I only had evidence that a substandard vehicle manoeuvring access is possible via the rear access. I do not believe I should consider rear access to the subject site further in this appeal. 31 I turn my attention to what weight I should give to Mr Kennedy's evidence, and the respondent's submissions on consistency with the D2 Locality statement, and the other relevant clauses of the Warringah Local Environmental Plan 2000. 32 In regard to the objections of No. 4 Alexander Street in regard to overlooking and overshadowing, the proposal before me, as amended, has setbacks at each level at the rear, and screen plantings to balcony areas, and conditions on windows, to ensure privacy such that these impacts are minimal and acceptable. 33 Detailed shadow diagrams in Exhibit C showed that the major affectation on No. 4 is caused by the very tall cinema building. The proposal has little effect. 34 Also the design has, on its south boundary, setbacks for privacy separation and solar access to the Cornerstone development that maintain acceptable amenity as envisaged in the Cornerstone evidence in obtaining its own consent. 35 The submissions by the New South Wales heritage office are incorporated in the heritage experts' findings, and conditions making the proposal acceptable as a neighbour to the heritage item cinema. 36 The remaining features of the desired future character statement the respondent is concerned with are: (a) That Collaroy village will retain its retail character incorporating a mix of small retail and business uses with shop top housing. (b) A range of retailing and after hours activities at street level will reinforce the character of the village. 37 Comment. The proposal does retain a shop front at the footpath level, although it is not as big as the respondent or Mr Kennedy would like. (c) Future development will maintain continuity of existing building facades by ensuring that they are broken into distinct vertical segments reflecting the traditional pattern of shop front development. 38 Comment. Although the shop front is not as big as desirable, it is broken into vertical elements, and could appear to be a wider shop front if the masonry elements at the front are replaced by thinner steel columns, and the shop front is wrapped around into the splay of the driveway entry. This could be done as a condition of consent. 39 As a note to this, the allotments fronting Pittwater Road are at about a thirty degree angle to the street front. Due to the proposed driveway being on the south side of the site it favours the wrapping of the shop front into the splay of the driveway entry. A pedestrian walking by would see a continuous length of shop front and entry doors 13 m long if taken from the north boundary to 6 m into the splay. The current plans show windows to that extent between large masonry panels. The total width of the site is 15.6 m. 40 Whilst the driveway entry would be obvious still with such a change to the shop front, the change would do much to minimise the visual presence of the driveway of concern to the respondent and Mr Kennedy. 41 Part of their concern arises from cll 71 and 75 of the Warringah Local Environmental Plan 2000 in regard to carparking facilities. Despite the submissions of the respondent I accept the applicant's pointing out the only component of cll 71 and 75 the proposal does not comply with is: "Where garages and carports face the street the opening shall not exceed 6 m, or 50% of the width of the building, whichever is the less". 42 Both Mr Hallam and Mr Hewitt agree due to the particular location of the site, if it has to have access off Pittwater Road, then it needs a 5.5 m wide driveway so that cars can pass if entering and exiting simultaneously. This is due to the high traffic volumes in peak periods on Pittwater Road. Also they recommend the splay in the drive taking it to 8 m wide at the footpath to give drivers and pedestrians mutual safety sight lines. 43 The latter is well in excess of the Roads and Traffic Authority requirement, which was in evidence. But the traffic experts argued that the Roads and Traffic Authority conditions are standard, rather than adapted to this particular site. 44 I note there are traffic lights at the corner of Alexander Street, so to some extent peak hour traffic is slowed, but since both experts recommend the 8 m splay at the drive entry I must accept it. 45 Also they want an 8 m No Stopping zone south of the drive entry to give safety sight lines to oncoming traffic when exiting the site, and a small deceleration lane when entering. Once again this is much more than the 2 m sought by the Roads and Traffic Authority, but in this case, I feel that both experts agreeing I must accept their opinion. They qualified this position saying that the 8 m No Stopping zone could be amended to such other distance as the relevant traffic committee might approve. That seems reasonable. 46 The respondent pointed out that the 8 m No Stopping zone plus the driveway will delete four existing on street carparks. 47 I note the applicant's submission that the existing shops provide no on site parking, and that the new developments, Cornerstone and this site, provide for all parking demand off street, so that the on street car spaces become a bonus. Whilst not accepting this as a justification, it seems my having to accept vehicle access from Pittwater Road to this site, leaves no alternative. It is not reasonable in my opinion to refuse development consent on the basis of needing a drive entry off Pittwater Road and meeting reasonable requirements in the design of that entry, particularly since the development is not a large traffic generator. It necessitates only 11 on site car spaces. 48 Returning to the aspects of the desired future character that remain in contention: (d) New development will contribute to creating a pedestrian environment which is safe, comfortable, and interesting. (e) Commercial use of part of the footpath for outdoor eating and the like is appropriate. 49 Comment. The traffic engineers are satisfied the pedestrian environment will be safe. In regard to comfortable and interesting, I do not believe any evidence is before me that would make the proposal antipathetic to those objectives. The questions of use of the footpath for outdoor eating was pressed by the respondent as unachievable due to the driveway. That is correct for the width of the drive, but in front of the commercial space some on footpath facilities would be possible, and next to the cinema may be desirable. 50 There is a qualification on that, however, Mr Hewitt said he had for many years been the Warringah Council traffic engineer and still lived in the area. He often saw cinema patrons queuing outside the cinema along the footpath. Given the traffic lights and pedestrian crossing, and extent of pedestrian activity along the footpath, restaurant eating on the footpath may not be desirable. Such a decision is not before me, presumably it would be before the council in the event of an application for a footpath lease. Continuing with the desired future character: (f) The ground floor of buildings will be predominantly used for business purposes. If the first floor is used for housing, the building will be designed to enable the first floor to be adapted for business use in the future. 51 Comment. It seems to me given the constraints of the site any design on this site must have carparking, lifts, stairs, and garbage and services facilities, as the major floor space of the ground floor. The remainder, as in this case, is available for commercial use. To that extent it is not inconsistent with the future character of the Collaroy village. The street presentation will be a shop front or commercial. The first floor has been amended in the plans in Exhibit A to Mr Kennedy's satisfaction to be adaptable to commercial use. 52 I asked the respondent how many other zoned D2 properties within the Collaroy shopping strip might need a drive entry. That question could not be answered. There was only one other existing drive entry at present, as seen during the view. It is my opinion that one additional drive entry along the whole shopping strip will not be inconsistent or antipathetic to the Collaroy village retaining its character given that the rest of the proposal meets with the support of most of the experts. 53 Mr Kennedy was of the opinion the amended plans met his concerns about internal amenity and State Environmental Planning Policy No. 65, and that they resolved the objectors' concerns. He maintained his dissatisfaction with the achievement of the desired future character statement. He did agree the severe constrains of the site were the reason for a design that did not meet his satisfaction. 54 Mr Kennedy is a respected consultant, and I do not depart from his conclusion lightly, however, it is my opinion that the evidence shows there is little choice for the applicant except for doing nothing to the existing buildings, or hoping for a change of heart by its neighbours in regard to a rear access. 55 It is my opinion that in this case due to the considerable constraints of the site, appropriate consideration has been given to a design that is not inconsistent with the desired future character of the Collaroy village, and reasonable compliance with the applicable statutes and controls has been achieved. 56 In regard to the minor exceedance of the height limit by 1.5 m only at the lift shaft overrun, and the glass roof to the stairwell, those items are small structures and are located in the middle of the building, and are unlikely to be seen from the street. A dispensation under cl 20 of the Warringah Local Environmental Plan 2000 should be granted. The parties had agreed to conditions in Exhibit 13. 57 Therefore the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted for the demolition of 3 shops at 1091-1095 Pittwater Road, Collaroy, and the erection of a mixed use development comprising 4 apartments, ground floor commercial/retail space and 11 car spaces as shown in drawings Job No. 866-02 sheets 1G, 2M, 3L, 4M and 5N by Katris & Associates all subject to and as amended by the conditions in Annexure "A" hereto. 3. The Exhibits are returned to the parties except Exhibits A, B, C, D, E, M, 1, 5, 7, 8, 9, 10, 11, 12 and 13. 4. No order as to costs. ___________________ 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.