DL Newport Pty Ltd v Pittwater Council

Issues 5The Council's contentions in the matter can be summarised as:

• The height of the shop-top housing development is excessive and will result in unacceptable impacts;
• The internal amenity of the apartments is unacceptable because some of the apartments have their only aspect to the south and some of the apartments are not cross-ventilated. 6There are a number of (without prejudice) conditions of consent in dispute between the parties regarding the issue of flooding and whether commercial stock can be located below the Flood Planning Level (FPL) within the retail tenancies. 7The remaining contentions, following the amended plans, all relate to the shop-top housing development on the Barrenjoey Road site.

The site and its context 8The site consists of two adjoining sites, separated by an open drainage channel. The site is on the corner of Barrenjoey Road and The Boulevard, Newport. 9The site is located at the southern end of the Newport Commercial Centre.

Background and the proposal 10The proposal is to construct a three and four storey shop-top housing development over a basement parking level on the Barrenjoey Road site and a three storey dual occupancy development on The Boulevard site.

Planning Framework 11The shop-top component of the proposal is subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) at cl 4(1)(a). 12Subclause 30(2)(b) of SEPP 65 requires consideration to be given to the design quality of the residential flat development when evaluated in accordance with the design quality principles; and at subcl 30(2)(c) the publication Residential Flat Design Code (RFDC). 13The relevant aims of SEPP 65 include, at cl 2: (1) This Policy aims to improve the design quality of residential flat development in New South Wales. (2) This Policy recognises that the design quality of residential flat development is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design. (3) Improving the design quality of residential flat development aims: (a) to ensure that it contributes to the sustainable development of New South Wales: (i) by providing sustainable housing in social and environmental terms, and (ii) by being a long-term asset to its neighbourhood, and (iii) by achieving the urban planning policies for its regional and local contexts, and (b) to achieve better built form and aesthetics of buildings and of the streetscapes and the public spaces they define, and (d) to maximise amenity, safety and security for the benefit of its occupants and the wider community 14The design quality principles of SEPP 65 are at cll 7-18. The design quality principles relevant to the proposal are: Principle 1: Context Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area. Principle 2: Scale Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area. Principle 7: Amenity Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility. Principle 10: Aesthetics Quality aesthetics require the appropriate composition of building elements, textures, materials and colours and reflect the use, internal design and structure of the development. Aesthetics should respond to the environment and context, particularly to desirable elements of the existing streetscape or, in precincts undergoing transition, contribute to the desired future character of the area. 15Clause 30A(2) of SEPP 65 states: (2) Nothing in this clause permits the granting of consent to a development application if the consent authority is satisfied that the proposed development does not demonstrate that adequate regard has been given to the design quality principles in Part 2 of this Policy. 16The RFDC supports the ten design quality principles identified in SEPP 65 and gives greater detail in how to achieve these principles in development proposals (RFDC at p 1: Exhibit 1, folio 0031). 17The RFDC includes the following relevant statement in relation to building height (at p 24: Exhibit 1, folio 0066): Height is an important control because it has a major impact on the physical and visual amenity of a place. It can also reinforce an area's existing character or relate to an area's desired character. 18The relevant RFDC objective for building height is to ensure future development responds to the desired scale and character of the street and local area. 19The relevant RFDC objective for building separation is to ensure that new development is scaled to support the desired area character with appropriate massing and spaces between buildings (at p 28: Exhibit 1, folio 0070). 20The relevant RFDC rules of thumb for daylight access include that the number of single aspect apartments with a southerly aspect (SW-SE) should be limited to a maximum of 10% of the total units and that 70% of living rooms and private open spaces should receive a minimum of three hours direct sunlight between 9 am and 3 pm (minimum two hours is acceptable in dense, urban areas). The objectives for daylight access include ensuring that daylight access is provided to all habitable rooms, to provide adequate ambient light and to provide residents with the ability to adjust the quantity of daylight. 21The relevant RFDC rules of thumb for natural ventilation include that 60% of residential units are to be naturally cross-ventilated (at p 87: Exhibit 1, folio 0128). The relevant objectives for natural ventilation include ensuring that apartments are designed to provide all habitable rooms with access to fresh air and to assist in promoting thermal comfort for occupants. 22The relevant RFDC objective for facades is to promote high architectural quality in residential flat buildings. The better design practice key points for facades includes a requirement that facades are composed with an appropriate scale, rhythm and proportion, which respond to the building's use and the desired contextual character (at p 89: Exhibit 1, folio 0130). 23The Boulevard site is zoned 2(a) Residential and the Barrenjoey Road site is zoned 3(a) General Business, pursuant to the Pittwater Local Environment Plan 1993. 24The proposal is subject to the relevant provisions of Pittwater 21 Development Control Plan (DCP 21). Part A of DCP contains context statements for the various precincts within the municipality and desired character statements for those precincts. Section A3.2 of DCP 21, Desired Character of Pittwater, includes the following statement: A vital array of interrelated land uses should be encouraged within the village centres, yet maintain their village feel and community focus. 25Section D10.2 of DCP 21, Character - Newport Commercial Centre, includes the following statement under 'outcomes': To provide urban design elements at a human scale at which people do not feel overwhelmed by buildings. 26Section D10.2 of DCP 21 includes the following statement under 'controls': Development in the Newport Commercial Centre shall be in accordance with the approved Masterplan for the Newport Commercial Centre (refer to Appendix 12 of this DCP). 27The Barrenjoey Road site is within the study area of the Newport Commercial Centre Masterplan (the masterplan) (Appendix 12 of DCP 21) and The Boulevard site is outside the study area of the masterplan. 28Section 2.12 of the masterplan states that as part of the process to prepare a masterplan for Newport village, two consultation activities were undertaken and both of these events had a high level of participation. 29Section 2.6 of the masterplan, Building Heights, includes the following statement: Building within the study area range from 1-4 storeys. The scale is generally low and the variety of heights and roof forms creates interest on the skyline. 30The masterplan identifies the Barrenjoey Road site as an 'entry site' to the Newport Commercial Centre and includes, at s 4.6 Land uses, the following statement in relation to 'entry sites': In relation to high visible 'entry sites' at the north and south ends of the commercial centre to have uses with a high degree of 'useability' to promote pedestrian activity and interaction between the public and private domain at different times of the day and night. Buildings must be of very high design quality. Building should 'turn the corner' to direct views towards community and recreational facilities, notably the beachfront areas, the bowling club and the propose community centre. 31Figure 4.9.1 Built Form of the masterplan identifies the Barrenjoey Road site as two storeys with two areas of three storeys setback from the Barrenjoey Road and canal boundaries. The built form of the site is indicated in this figure as the two storey element abutting the adjoining development to the north and the street and canal boundaries and two separate three storey elements setback from the two storey facades. Section 4.9 Built Form includes the following relevant controls: The built form strategy is to establish a scale and height to Newport Village that is appropriate to its desired future character [and] supports the public domain strategy. Design buildings to a maximum height of three storeys, with a two storey street wall height to reduce their apparent scale and to break up the building massing. Spaces between buildings at the topmost level are required to promote view sharing and to give openness to the streetscape. The maximum length of the topmost portion of a three storey building is 24 metres, with full breaks between them of minimum 6 metres. Provide building envelopes of appropriate depths to support high amenity living and working environments with cross-ventilation and good daylight access. 32Section 5.5 Height of the masterplan includes controls for building heights. The maximum height for the commercial centre, for three storey buildings, is an overall height of 11.5m above the FPL. Figure 5.5.1 shows an indicative section through a three storey building, with a 3.5 m setback from the street boundary (with an awning over); a street elevation of two storeys with a parapet and a third storey setback 4 m from the face of the street facade. The overall height of the section is shown as 11.5 m to the ridge of the roof above the FPL. 33Section 5.5 includes the following controls in relation to the height of elevations to Barrenjoey Road: The following further street frontage height restrictions apply, to modulate building form and minimise bulk: On Barrenjoey Road, limit the street frontage height to 2 storeys, with a maximum height above the flood planning level of 7 metres to the top of the structure (equivalent to the floor level at the floor above). Above this, a balustrade is permitted to the top level so long as the balustrade is at least 50% transparent. On Barrenjoey Road, limit the height at the 4 metre setback (to the topmost storey) to 10.5m above the flood planning level, with the roof form being contained within a height plane of 15 degrees, to a maximum overall height of 11.5m.

Public submissions 34Six resident objectors provided evidence on site at the commencement of the hearing. Their concerns can be summarised as:

• The proposal does not comply with the Newport Commercial Centre Masterplan. The masterplan was the subject of considerable community involvement and comment and reflects the local community's desired outcome for the Newport Commercial Centre. As it is the first proposals to be submitted to Council following the preparation of the masterplan, its approval would set a precedent for future proposals to exceed the masterplan controls.
• The height of the proposal may be acceptable for a public building, however a residential flat building with commercial at ground level should comply with the masterplan controls.
• The third floor neighbour on the adjoining site has a balcony and windows adjacent to the shared boundary and he says he will be looking into a blank wall. In his opinion, the proposal should be set back 12 m from the adjoining building.

Expert evidence 35Expert urban design evidence was provided by Mr Nigel Dickson on behalf of the applicant and Mr Michael Zanardo on behalf of the Council. 36The experts agree on the following:

• The PFL is RL5.3 and the additional height at ground level is a necessary inclusion;
• The proposal exceeds the controls for height and setbacks in DCP 21;
• The height of the north-east portion of the building (three storeys) is acceptable;
• Amendments to the latest set of architectural plans include privacy devices, which it is agreed provide an acceptable level of privacy to the attached dual occupancy development. 37The experts disagree about the appropriateness of the fourth storey element at the apex of the triangular site. Mr Zanardo says that the tower element is highly visible and it does not attempt to minimise the bulk and scale of the proposal. He says that four storeys is not envisaged by the masterplan for this site, nor is the proposal an appropriate response to the context. 38Mr Dickson says that the fourth storey and the curved element at the apex of the site is an appropriate response to the site's landmark position at the entry to the Newport Commercial Centre and that the fourth storey is not overwhelming within the streetscape. There are no direct amenity impacts on neighbours as a result of the fourth storey. Notwithstanding that Mr Dickson is of the opinion that the fourth storey element is appropriate, he accepts that the deletion of the fourth storey is also a reasonable outcome. He notes that the three storey option still exceeds the DCP 21 controls for height and setback on this corner. 39Mr Zanardo says that the proposal does not meet the RFCD rules of thumb for daylight and solar access, as too many apartments have their only orientation to the south.

Submissions 40Mr Eastman submits that if the Court accepts the evidence of Mr Zanardo, the Court may take an 'amber light' approach to this matter (The Benevolent Society v Waverley Council [2010] NSWLEC 1082 at para 66) and amend the proposal as follows:

• Delete the partial fourth storey of the shop-top housing development; and/or
• The Soho apartments within the shop-top housing development to be commercial tenancies only. 41The shop-top housing development requires access across an existing bridge over the drainage channel near the Boulevard and this 'use' requires land owner's consent, pursuant to subcl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000. If the Court is minded to uphold the appeal, the parties agree development consent cannot be granted in the absence of owner's consent and consequently a judgment upholding the appeal cannot include final orders. Mr Eastman tendered a number of documents demonstrating that considerable effort has been made to establish the ownership of the drainage channel and to obtain owner's consent, however, additional time is required to fulfil this obligation. In the case of an approval, Mr Eastman submits that the judgment would have to provide a time frame for owners consent to be obtained, consistent with the approach of Brown C in I V Trading Pty Limited v Parramatta City Council [2010] NSWLEC 1170 at para 41.

Does the design of the shop-top housing development demonstrate that adequate regard has been given to the design quality principles of SEPP 65? 42In summary, the aims of SEPP 65 are to improve the design quality of residential flat developments, by ensuring developments are sustainable and achieve a better built form. The relevant design quality principles seek to ensure that development responds and contributes to its setting, provides an appropriate scale in terms of bulk and height that suits the context and that the design of a building's elements, textures, materials and colours achieves a harmonious composition.

Aesthetics 43High architectural quality requires the appropriate composition of building elements, textures, materials and colours and reflects the use, internal design and structure of a development (RFDC p 89: Exhibit 1, folio 0130). 44The proposal does not achieve an appropriate composition of building elements, for the following reasons:

• The "box like" elements on the Barrenjoey façade do not correspond to the vertical structure at the ground floor level. Intuitively, one would expect the vertical structural members to align up and down the façade, so that the structure 'is seen to be carried' to the ground. The design of the solid/void elements above ground level bears no relationship to the design of the solid/void elements at ground level (north elevation DA-904, Exhibit A, tab 1).
• The south elevation (facing The Boulevard) is awkward, with unnecessary complexity and no clearly expressed pattern or rhythm (refer to Annexure A, 'visualisation', Exhibit A, tab 1).
• There is no hierarchy between horizontal and vertical solid elements, which gives the elevations a heavy and squat appearance.
• The façade does not clearly articulate or express the internal layout of the building. 45I am not satisfied, for the above reasons, that the design of the proposal achieves a harmonious composition.

Daylight and solar access 46The RFDC rules of thumb for daylight access include that the number of single aspect apartments with a southerly aspect (SW-SE) should be limited to a maximum of 10% of the total units. Excluding the Soho apartments (as they are south facing and the applicant has agreed they can be commercial tenancies), of the eighteen apartments on the residential levels 1-3, three apartments have their only aspect to the south (apts 105, 106, 111), which represents 16% of the units. The south-facing apartment on Level 2 (apartment 203) has been amended to include a skylight. 47Mr Zanardo says that the proposal does not perform satisfactorily in respect of the RFDC rules of thumb pertaining to solar access and Mr Dickson says that no unit is sub-standard, notwithstanding his agreement with Mr Zanardo that the proposal does not comply with the RFDC rules of thumb. 48I agree with the experts that the proposal does not comply with the RFDC rules of thumb for daylight access and that the amenity of the three single-aspect apartments with a southerly aspect is compromised.

Natural ventilation 49The RFDC rules of thumb for natural ventilation include that 60% of residential units are to be naturally cross-ventilated. Excluding the Soho apartments, of the eighteen apartments on the residential levels, seven of the apartments have a dual aspect, which represents 39% of the units. 50I disagree with the experts that apartment 111 is cross-ventilated, as its façade orientates to the south and the south-west, which does not constitute a dual aspect, as the RFDC diagrams (3.40 - 3.43) for cross-ventilation illustrate either corner apartments or cross over apartments. 51I agree with Mr Zanardo that the proposal does not comply with the RFDC rules of thumb for natural ventilation and that the amenity of the eleven apartments with a single aspect is compromised.

Apartment layout 52In my opinion, the layout of the apartments gives rise to a number of design issues which have not been adequately resolved and which result in awkward spatial planning, including the following:

• The configuration of the master bedroom in apartment 101 has a long narrow 'dressing hall' to connect the bedroom with the small balcony on the southern facade;
• The bathrooms of apartments 103, 105, 109 and 206 lead directly from the kitchen areas;
• The balcony of apartment 111 is tiny and it does not correspond in the southern façade with any other recessed balconies;
• The balconies of apartments 204 and 205 are long and narrow and divided from each other along their length by a privacy screen;
• The bedrooms of apartment 207 are located within the celebrated curved form at the apex of the triangular shaped building, where one would expect to find a commercial space or at least the living area of a dwelling because it is the most visually prominent part of the building. On Level 1, the living area is located within the curved form. This is an example of the façade not expressing the internal layout of the building.
• The access to the Soho apartments is awkward and the bedroom floor level in the accessible Soho apartment is raised. 53I am not satisfied, for the above reasons, that the internal amenity of some of the apartments meets the requirements and objectives of the RFDC. I agree with Mr Zanardo that the proposal does not demonstrate that adequate regard has been given to the design quality principles of SEPP 65 for context, scale, amenity and aesthetics, pursuant to cl 30A(2). In my view, the proposal does not meet the aims of SEPP 65 to maximise amenity for the benefit of its occupants and to achieve a better built form.

Is the proposal consistent with the built form envisaged by the masterplan? 54The decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 (Zhang) deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. Spigelman CJ made clear in Zhang (at para 75) that three propositions apply:

• First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered.
• Second, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the LEP.
• Third, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative and the other s 79C matters, when considered, may lead to a differing result from that contemplated by the DCP. 55It is also appropriate to note the commentary by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 where he sets out a summary of how development control plans should be approached by this Court in Class 1 appeals. The relevant portions of this decision are set out at pars 86 and 87. His Honour found, at par 87, that the principles relevant to consideration of development control plans are, in summary:
• A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan.
• A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.
• A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied.
• A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.
• Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property. 56It is in this context that I approach assessing the proposal against the relevant provisions of DCP 21 and the masterplan. 57The masterplan clearly envisages that buildings are a maximum of three storeys, with a two storey street wall height to break up the building massing, a third storey setback 4 m from the street wall and with spaces between buildings at the topmost level. 58The relevant control for height, at section 5.5 Height of the masterplan, is that a three storey building is to have an overall height of 11.5 m above the FPL. The masterplan provides an indicative section through a three storey building at Figure 5.5.1, which illustrates that the 11.5 m height control is at the ridge of the roof above the FPL, set back a substantial distance from the street wall. 59The ground floor retail tenancies, facing Barrenjoey Road are equivalent to two storeys in height. The first floor level, across the full depth of the building, is at RL9.3, which is 5.24 m above the retail tenancy ground floor level of RL4.06. Behind the retail tenancies, on the south-eastern side of the building facing the drainage channel, there are two levels, albeit with a slightly lower ground level of RL3.8. This is shown on s B-B, DA302 (Exhibit A, tab 1). The proposal is effectively four and five storeys above ground level, because the ground level is two storeys high, there are two levels of residential apartments above the ground floor and there is a partial uppermost level at the southern end. 60The ground floor level of the retail tenancies is at RL4.06. The refuge within the retail tenancies is at RL6.4, 2.34 m above the ground floor. The refuge need only be at RL5.3, the FPL, 1.24 m above the ground floor. The refuge is 1.1 m higher than it needs to be. Had the proposal made the refuge within the retail tenancies at the FPL level, the section within the retail tenancies would have more closely resembled the section envisaged in Figure 5.5.1 of the masterplan, with the refuge area easily visible from the ground floor and footpath, and the internal retail space effectively a single space. The way the proposal has been designed, the retail tenancies are a double height space at the entry, with a mezzanine upper level at the rear, which, depending on the future use of each retail tenancy, discourages shoppers from using the upper level of retail floor space at the rear of the tenancy because it is a level higher than the entry level and not easily visible. 61The Barrenjoey Road elevations read as a four storey building (disregarding the fourth storey element), as a result of the following:
• The two storey height of the retail tenancies;
• The projection of the Level 1 balconies beyond the ground floor façade;
• The horizontal beam (identified by the experts as the "box like" elements) enclosing the balconies at the ceiling level of Level 2 on the Barrenjoey Road facade in approximately the same plane as the street wall façade at ground level (the Level 2 "box like" element is setback 0.45m from the ground floor façade). The "box like" element on Level 2 reads as part of the façade of the building and visually extends the street wall to the top of the building, with the Level 1 balconies projecting out beyond the street wall facade. 62In contrast, the masterplan, throughout the controls, emphasises the two storey street wall built form for the commercial precinct and the setting back of the uppermost level. A proposal informed by the masterplan would be, at the Barrenjoey façade, 1.5 levels for the retail tenancies (allowing for a raised refuge at the rear of each tenancy) with a single residential level over and an uppermost residential level setback from the street wall. 63The bulk and scale of the proposed four and five storey development, even if reduced to a four storey development, is excessive and exacerbated by the heavy "box like" elements applied to the Barrenjoey Road façade. In my view, the proposal bears little resemblance to the form of development contemplated by the masterplan and it does not meet the desired future character for the Newport Commercial Centre.

The fourth storey element 64The classification of the site as an 'entry site' by the masterplan fundamentally seeks uses for the building that encourage pedestrian activity to each end of the commercial centre, presumably to make sure the commercial centre is commercially viable all the way along the shopping precinct. The entry site classification in the masterplan is about encouraging pedestrian activity and it is not intended to encourage 'landmark' buildings at either end of the commercial precinct. The masterplan does not suggest that the two and three storey form, envisaged by the masterplan for the commercial centre, should be abandoned for 'entry sites'. I disagree with Mr Dickson that the classification of the site as an entry site justifies a higher or bigger building. 65I agree with Mr Zanardo that the tower fourth storey element at the apex of the triangular site is highly visible and it does not attempt to minimise the bulk and scale of the proposal and that the uppermost level is not an appropriate response to the context. 66The 'entry site' classification by the masterplan does, however, specify 'high design quality' for entry sites and in my opinion, for reasons previously set out in the judgment, the proposal does not demonstrate a high level of design quality.

Relationship of the proposal to its north-eastern neighbour 67The resident residing in the uppermost level of the adjacent building (Unit 17) provided evidence at the commencement of the proceedings. He objects to the proposal, as his apartment, with windows and a narrow balcony on the south-western elevation, will be looking towards a wall a distance of 2.64 m and 4.07 m from the external face of his south-western wall and he will be overlooking the car park ramp below when he stands on his balcony. In addition, the proposal is a storey higher than the adjacent building. 68As previously set out, the masterplan envisages that buildings are a maximum of three storeys, with a two storey street wall height to break up the building massing and with spaces between buildings at the topmost level. 69The resident objector, has, in my opinion, raised a valid concern over the impact of the proposal on his amenity. The proposal demonstrates a poor attempt to respond or relate to the existing, adjoining development at the northern end of the site. 70A future proposal, consistent with the masterplan, for a two storey street wall height above the FPL, that abuts the adjoining building at the shared boundary and third storey, setback with an adequate distance between the buildings at the topmost level, may provide a way of addressing this issue, however that is a matter for some future application.

Conclusion 71The relevant design quality principles of SEPP 65 seek to ensure that development responds and contributes to its setting, provides an appropriate scale in terms of bulk and height that suits the context and that the design of a building's elements, textures, materials and colours achieves a harmonious composition. The proposal does not demonstrate that adequate regard has been given to the design quality principles of SEPP 65 for context, scale, amenity and aesthetics, pursuant to cl 30A(2), for the reasons set out in the judgment. 72The masterplan envisages that buildings in the Newport Commercial Centre will be a maximum of three storeys, with a two storey street wall height to break up the building massing and with spaces between buildings at the topmost level. The proposal bears little resemblance to the form of development contemplated by the masterplan and it does not meet the desired future character for the Newport Commercial Centre. 73I have considered the question of whether the proposal should be approved in the form that is before the Court and I have also considered whether the proposal is capable of approval, with the specified modifications suggested by the applicant as an 'amber light' approach. In my view, the proposal is not capable of approval with the suggested modifications, for the reasons set out in the judgment. 74Given the above findings, it is not necessary to deal with the agreement of the parties regarding owner's consent for the change of use of the bridge over the drainage channel, nor with the contentions regarding the conditions of consent.

Orders 75The orders of the Court are: 1.The appeal is dismissed. 2.Development Application No. N0466/11 for a three and four storey shop-top housing development and a three storey attached dual occupancy development is refused. 3.The exhibits, other than exhibit 3, are returned. Susan O'Neill Commissioner of the Court ANNEXURE A

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. Decision last updated: 21 March 2013