Land and Environment Court of New South Wales CITATION : Peter Weir and Associates v Parramatta City Council [2007] NSWLEC 353 APPLICANT Peter Weir and Associates PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 11065 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Vehicular bridge over roadway, aesthetics, public artwork, safety, precedence. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Sydney Regional Environmental Plan (SREP) 28 –Parramatta. DATES OF HEARING: 14/05/2007 DATE OF JUDGMENT: 19 June 2007 APPLICANT Mr J. Maston, barrister Instructed by Robinson Legal LEGAL REPRESENTATIVES: RESPONDENT Mr A. Pickup, solicitor of Storey and Gough JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C Date 19 June 2007 11065 of 2006 Peter Weir and Associates v Parramatta City Council JUDGMENT Background. 1 This appeal was lodged against council's deemed refusal of a development application, which proposes the construction of a private cantilevered bridge over Anderson Street, Parramatta. The purpose of the bridge is to allow vehicular and pedestrian access between two automotive premises and for rooftop car storage of 91 spaces at 40-52 Church Street, so as to minimise traffic and pedestrian conflicts at the street level. 2 The proposed bridge would have the following characteristics: o 5m in width; o 21.114m in length; o 9.02m above the carriageway; o construction of steel frame, concrete roadway and coloured (blue and gold) metal side cladding, which is to be highlighted. 3 The proposed bridge is to span Anderson Street and if approved, would require agreement with council for the lease of this airspace. 4 Insofar as a number of issues were identified for the appeal, they can be summarised as: o Aesthetic impacts; o Safety; o Access, parking and traffic; o Precedent; o View impacts. The site. 5 The sites comprise 40 – 52 Church Street, Parramatta, which has a dual frontage to Anderson Street and 6 –16 Anderson Street, which is on the opposite, eastern side of the street. 6 The Church Street frontage building contains a car showroom, administration offices and rooftop carpark, which is serviced by a vehicle elevator. The associated Anderson Street building is part 3/part 4 storey and contains car administration, service and storage facility areas. Planning Controls. 7 Sydney Regional Environmental Plan (SREP) 28 – Parramatta. Under this SREP the sites are zoned Automotive Business and are within the City Centre Precinct. Anderson Street is unzoned land. 8 The planning aims for the Parramatta Primary Centre include: (2) (c) to facilitate improvement to accessibility and urban design throughout the Parramatta Primary Centre, while preserving and promoting the heritage elements of the region,… (h) to improve the quality of urban design and ensure the public domain is safe and attractive,… 9 The City Centre Precinct 1 aims are contained in clause 15 and relevantly includes: ( d) to ensure development enhances, protects and capitalises on Parramatta's heritage, the river corridors, park system, public spaces and special areas, 10 Clause 25 contains the provisions for urban design wherein the consent authority is required to give consideration to a number of objectives including: (a) the major facades and entries of buildings are to address the major public places, such as street, squares, parks and the river,… (c) buildings are to be built predominantly to the street alignment and side boundaries, and are to provide continuous street frontages for enhanced pedestrian amenity, (d) buildings are to have regard to adjoining buildings and works with transitions of height, massing and scale, where appropriate, (f) space allocated for vehicular entrances is to be minimised, with those entrances provided predominantly from lanes or centres of blocks, (h) visual impact of car parking is to be minimised by the use of underground parking, and by screening above-ground parking from the street by locating the parking behind other active uses on street, square, park or river frontages, 11 Parramatta City Centre Plan DCP 2001. The purpose of this DCP is to facilitate the continuing development of Parramatta City Centre as an attractive, safe and vibrant city, with a high-quality urban environment. The urban structure and objectives are contained in clause 4.2 and the following controls in clause 4.2.4 were identified as relevant in this matter: iv. Ensure a high level of environmental amenity in the public and private domain; vii. Encourage development, which expands and enhances the public domain; x. Enrich publicly accessible places in the Parramatta City Centre with artworks, which interpret Parramatta's historic, cultural, and social identity. 12 Clause 9.2 deals with pedestrian access, parking and servicing and states that the location and design of vehicle and serviced entrances needs to be carefully considered to avoid disrupting pedestrian movement and promote pedestrian safety. The associated objectives are: a. To promote active frontages, pedestrian safety and undisrupted pedestrian movement in the locality and design of vehicle and service entrances. b. To minimise the size and quality of vehicle and service crossings to retain streetscape continuity and reinforce a high-quality public domain. 13 A number of controls are specified to restrict vehicular access. 14 Clause 11.3 deals with public artworks where the stated objective is "To encourage high quality artworks in new development". The associated controls are "to provide high quality artworks in new development in publicly accessible locations, near main entrances and street frontages and in lobbies". 15 Draft Parramatta City Centre Local Environmental Plan 2006. This draft LEP contains aims to facilitate the development of building design excellence appropriate to a regional city and to improve the quality of urban design and ensure the public domain is safe and attractive. 16 Clause 22B deals with design excellence and requires the consent authority to have regard to a number of matters including: 3 (c) whether the proposed development detrimentally impacts on view corridors, 3 (e) (x) the impact on, and any proposed improvements to, the public domain. The Evidence. 17 Detailed evidence was presented by Mr M Harrison, urban design consultant for the applicant (Exhibit B) and Mr J Goodwill, councils senior development assessment officer. These experts conferred and prepared a joint report on the outstanding issues (Exhibit 2). 18 According to Mr Harrison's assessment, the locality is an automotive business area, which is undergoing substantial transformation from open car sales lots and basic buildings to high quality showroom buildings and service centres. Consequently, the proposed bridge is part of this transformation and will make a special attractive addition to the public domain due to its contribution to public art. 19 By reference to the objectives in clause 14 of REP 28, he supports the proposal on the grounds that accessibility would be improved by the proposed bridge because potential vehicle/pedestrian conflicts at street level would be reduced and the urban design would be improved due to the artistic features providing increased visual interest in the street without impacting on streetscape vistas. 20 However Mr Goodwill does not consider the bridge improves the urban design or the public domain because: o The bridge will be an obstacle to the view corridor along the street in both directions. o The selected colours of the bridge and its angular louvred panels are not compatible with simple rectangular forms and recessive grey/silver colours of building to which it will be attached. o The material selected for the bridge will require a high level of maintenance in order to maintain a pleasant appearance from the street. o The bridge is over 20m long, the length of the bridge is significant, as will be the impact of the bridge on the streetscape. o Anderson Street has a 'T' intersection with Parkes Street, Park Street conveys a significant amount of traffic from Church Street because Church Street is closed to traffic north of Darcy Street and right hand turning lane into Park Street is provided on Church Street for vehicles travelling in a northerly direction. Parkes Street also provides a link from south Parramatta to James Ruse Drive. Anderson Street is highly visible to motorists and pedestrians due to the width of the road reserve. The bridge will be visible to a large number of passers by each day. o The most significant view of the bridge is looking south from Park Street, the bridge would obscure future development of the southern side of Marion Street. 21 In response to the controls in clause 15 of SREP, Mr Harrison acknowledges that the street level environment should be "friendly" to pedestrians by enhancing the experience of using the public domain through ease of movement, visual interest and level of amenity. Usually this means that street activity should take place at that level and that bridges and tunnels only be used in highly specific circumstances. He then says, that "consequently, it is common town planning practice to restrict overpasses or underpasses (for pedestrians for vehicles) unless there are strong reasons such safety and congestion that need to be overcome or there is a particular functional requirement". 22 As the existing development involves some 110 - 136 vehicle movements per day across Anderson Street between the two existing buildings and such vehicle manoeuvring introduces potential pedestrian conflicts and necessitates wide vehicle crossovers which are unsightly, Mr Harrison supports the proposal on the basis of improved safety and functionality. 23 Furthermore, Mr Harrison says the circumstances of this case are unusual because Anderson Street is a relatively short block that predominantly comprises automotive uses and that the proposal will provide positive public benefits in terms of the movements of vehicles away from the street level. He qualifies this by stating that, "a development condition could be imposed that the bridge be dismantled at councils discretion when the automotive uses are discontinued". 24 Against this, Mr Goodwill says that the bridge will not enhance the aesthetic qualities of the street because it will be a foreign element in the streetscape and it will obstruct the view corridors. The existing use of the public street for the transfer of vehicles and people between the buildings is consistent with the objectives of the City Edge zone, which encourages the provision of a network of pedestrian friendly streets. Street level activity is crucial in achieving a safe public domain and due to the width of the footpaths along Anderson Street ground level vehicle movements are not considered to represent a safety hazard. He considers that the estimated 110 vehicle movements per day, or approximately 14 vehicle movements per hour, does not justify the construction of a private bridge across a public street. Conclusions. 25 Having considered the evidence, submissions and undertaken of view, I am satisfied that this proposal represents a well-designed and attractive vehicle/ pedestrian bridge, which is likely to improve the functions of the associated automotive enterprises. In doing so however, the assessment as to its public artwork contribution to the streetscape/public domain involves a very subjective assessment, ideally resulting in a determination, which reflects broad community expectations. 26 In my assessment, the primary function of the bridge is for benefit of the property owners of the adjacent buildings to enable more efficient transfer of vehicles and internal pedestrians across the roadway, because it does not involve any significant public usage. 27 Taking into account the relatively short length of Anderson Street (one block) and its obvious automotive/commercial character with specific user attraction, there is no evidence to indicate that it is a significant pedestrian or vehicular thoroughfare. Therefore the estimated traffic movements of some 110 - 136 vehicles/day would not seem to create such vehicle/pedestrian conflicts to warrant construction of this overbridge on safety grounds, as stated by Mr Goodwill. In my assessment, minimal public safety benefits are likely to be achieved because the vehicle road crossing movements are predominantly undertaken by regular staff members who are familiar with the conditions – not the general public and the pedestrian traffic is relatively low. 28 Any other public interest benefits are likely to be derived from the visual interest generated by the "work of art" bridge design and its location. According to Mr Harrison, " the quality of the urban design in the area will be improved by the bridge and its design because it is an intrinsic component of the predominant use of the area and is appropriate urban design practice for land uses to be highly legible in the public domain". In my assessment, this appears to be an overstatement in the subject context because I accept Mr Goodwill's opinion that it will be an unusual foreign element, rather than demonstrating any natural connection or place of belonging to the existing well-separated new buildings in the 20m wide road reserve context. 29 Another public interest benefit according to Mr Harrison, is its ability to block views along Anderson Street, particularly towards the existing multi-storey car park, north of the site. With regard to these blocking effects, I accept Mr Goodwill's opinion that the bridge will be a very visible foreign element and that its 'blocking' effect, if that is required, will be of a partial nature only, depending on the viewing position due to the height of the structure. Therefore I consider any screening effect from the proposed structure is of limited value. 30 With regard to the public artwork contribution of the structure, little guidance is provided in the relevant controls, except for clause 11.3 in the DCP where the stated objective is to encourage high-quality artworks in new developments in publicly accessible locations. Also the urban design controls in cl 4.2.4. 31 In the absence of other current guidelines, the councils senior urban designer – Mr C Bailey and councils project officer – Mr A Overton undertook an assessment for the section 82A Review in terms of the broader vision and principles outlined in the city's new draft LEP and DCP. They consider the development is coherent with the visions statement relating to: · Improving the quality of urban design; so a strong sense of local identity and variety, with robust, flexible, adaptable and resilient forms of development, · achieving a creative city; in supporting the development of creative activities, and facilitating opportunities for artists and the community to celebrate the arts. 32 Accordingly these officers consider that the proposal: o interacts in an energetic way with the public domain, through its form, kinetic quality and aesthetics, o responds to the contemporary urban culture of Parramatta with its form, visual permeability and use of quality materials, o explores the thematic context of local popular culture particularly through the abstraction and connection of memory to "the blue and gold". o strengthens the identity of Parramatta, through the integration of artwork, engineering and built form that is complimentary to other examples such as Councils Elizabeth Street footbridge. 33 Insofar as these officers referred to the draft LEP, I note that some consideration has been given to this form of structure in the associated draft DCP, wherein it is stated that "pedestrian overpasses are discouraged as they have a negative impact on the streetscape quality and on views and vistas along streets … new overpasses in streets will not be approved". Whilst this DCP is not a relevant development control in these proceedings, nevertheless these statements are consistent with the initial comments by Mr Harrison that overpasses are generally discouraged unless there are particular functional requirements and safety benefits. 34 As noted previously, a number of other issues and concerns were raised about the bridge details and also precedence. In the subject application, I am satisfied that the bridge detail specifications could be covered by appropriate conditions of consent and that little weight should be given to precedental concerns, considering that other similar applications are unlikely. No evidence was presented to the Court of other similar applications. 35 In the ultimate, I am satisfied that the proposal is for an attractive, well-designed connection bridge in a highly visible location over Anderson Street. As such, it nevertheless represents a foreign element in the streetscape, which provides major functional benefits for the private automotive operators but minimal public (safety, usage, minimisation of vehicular entrances) benefits except for any "public artworks" contribution to the streetscape. 36 Prior to the granting of consent for the exclusive use of this airspace, it would seem reasonable to consider other management initiatives to show how the functional requirements for these separate properties may otherwise be achieved. The lack of these details does not adequately satisfy the 'highly specific circumstances' referred to by Mr Harrison, in my assessment. 37 According to the urban structure controls contained in clause 4.2 of the DCP, the objective is to ensure a high level of environmental amenity in the public domain, which may be enriched with artworks. However it seems to me that the controls also require these artworks to interpret Parramatta's historic, cultural and social identity. In my opinion, the evidence before the Court does not satisfy this requirement so as to represent a reasonable balance between competing private and public interest, so as to merit approval of this proposal. 38 As I stated initially, the determination of the merits of this proposal depends on a subjective assessment whereby other public interest benefits may arise due to some more detailed longer-term vision of public artwork contributions and the leasing arrangements of areas of the public domain, including airspace. However these public policy issues are beyond the Court's role. Court Orders 1. The appeal is dismissed. 2. Development consent to DA/691/2005 for the construction of a bridge over Anderson Street, Parramatta is refused. 3. Exhibits maybe returned except for 2, A and B. ___________________ R Hussey Commissioner of the Court ljr 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.