I & V Weir, A Davie, F Lyons, M Hancock, P Taylor, L Cuthbertson, K A Llewelyn, Phillip Island Conservation Society Inc., N J Nicol

No. 114 - 122 Thompson Street & No. 89 Church Street, Cowes

Kingsley Down (Cowes) Pty Ltd v Bass Coast SC [2004] VCAT 2643

In permit application no. 031215, a permit is not granted and no permit is to issue.

Mr S Stewart, solicitor of Minter Ellison lawyers. Evidence was called from Ms C Peterson, town planner, and Ms D Donald, traffic engineer.

Mrs M Hancock & Mr F Lyons on behalf of St Philip's Anglican Church.

Mrs M Hancock in person and with Mr I Weir for the Phillip Island Conservation Society Inc.

Ms A Davie in person and for the Friends of Thompson Avenue Golden Elms Inc.

A written submission from Ms L Cuthbertson was received prior to the Hearing.

1 This is an Application under Section 79 of the Planning and Environment Act 1987 ("the Act") brought by P & J Milkins Design Drafting against the failure of the Bass Coast Shire Council ("the Council") to determine permit application no. 031215 within the prescribed time. The Application for Review was lodged on 4 June 2004.

2 Several matters were dealt with at the commencement and during the course of the Hearing that we record below.

3 At the commencement of the Hearing, Mr Stewart sought leave to amend the name of the Applicant for Review to "Kingsley Down (Cowes) Pty Ltd (in liquidation)". There being no objection to the request to amend the documentation we granted leave to make the necessary amendments pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998.

4 At the commencement of the Hearing, there was objection by Objectors to the late service of witness statements and the inclusion of revised façade details prepared by Perkins Architecture in Ms Peterson's evidence ("the Perkins design"). After some discussion, we ruled that we would receive the evidence but agreed with the parties to vary the order of proceedings. Ms Peterson was called to give her evidence after the Council's submission and prior to the submissions by Respondent Objectors. We indicated that, at the conclusion of the Hearing, any party could request leave from the Tribunal to file supplementary submissions if they felt disadvantaged by the material. No party sought to take up that opportunity.

5 During the course of the Hearing, it was noted by Mr Mason that no permission had been sought for the proposal under Clauses 52.06 and 52.07 of the Bass Coast Planning Scheme and we also drew attention to Clause 52.17. To the extent necessary, we granted leave pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998 to amend the permit application to clarify the permissions sought, in addition to the use and development of the land as a motel/conference facility and removal of vegetation under the Vegetation Protection Overlay (Schedule 2).

6 We record that a letter of 15 November 2004 was received by the Registrar from a Mr R K Brown in relation to the proceeding. As leave was not granted for further submissions the material has not been considered.

7 The description of the review site is largely the same as considered by us in a previous Application for Review[1]. The following draws from our reasons in that Application. The site comprises two properties, being No. 114-122 Thompson Avenue and No. 89 Church Street, on the south-west corner of those streets. The land has a frontage to Thompson Avenue of 80.5 metres, a frontage to Church Street of approximately 121 metres and a total site area of around 9,754 square metres. The fall across the land is around one metre. The subject site was previously occupied by a motel comprising single and two storey structures. Other uses associated with the motel included a restaurant, tennis court and swimming pool. The land at No. 89 Church Street was previously occupied by a single storey dwelling. The subject land is now partly used as a car park by the Council by lease while the redevelopment of the land is being considered. The remainder of the land is otherwise vacant, except for a stand of mature Eucalypts located to the south-west of the site. There are several other Eucalypts on the property, including two trees abutting the Church Street frontage, as well as a cypress along the east boundary and some palm trees.

8 Residential properties abut two boundaries of the site. To the west, at No. 91 Church Street, is a two storey dwelling with a lantern style feature atop. It has an open garden and large shed to its rear. Other residences are located further to the west along Church Street. Part of the southern boundary of the subject site abuts single and double storey dwellings with frontage to Hollydene Court.

9 A petrol station also abuts the southern boundary of the subject site and has frontage to Thompson Avenue and Hollydene Court.

10 To the north of the subject site, on the north side of Church Street, is St Philip's Anglican Church, a dwelling (set well back from the street and with extensive planting in the front setback) and a masonic lodge.

11 The subject site is located to the south of the Cowes main retail and activity precinct. It is within a section of the business area with some retail outlets, public and community uses, and other activities such as petrol stations. The scale of development is one to two storeys, with the canopy of golden cypress trees along Thompson Avenue being a defining feature. Thompson Avenue is the main street into that precinct and terminates at the foreshore reserve/The Esplanade. Church Street is a collector road.

12 Recent development in the wider area includes tourist accommodation facilities on The Esplanade and Steele Street that comprises three or more storeys. A permit issued in 1999 allowing a 54 room motel development on the subject site has expired.

13 It is proposed to develop the land for a five star resort hotel including conference facilities, retailing, two restaurants and associated facilities. A total of 126 rooms is proposed within a four storey building. The plans show accommodation in the form of 91 one bedroom units, 30 two bedroom units, 1 four bedroom unit and 4 penthouses.

14 A ground level restaurant (seating area of 251 square metres with 150 seats) is proposed to the north-east corner (street intersection). A second smaller restaurant of 161 square metres with 50 seats is proposed on the upper level (level 3). Conference room facilities, a gym, recreation area and indoor pool are shown at ground level. A deck at roof level is also proposed.

15 Ground level open space, a swimming pool, play area and tennis court are provided to the south and central areas of the subject site, involving the retention of the stand of Eucalypts.

16 Seven shops are proposed along the Thompson Avenue frontage, with a bin store to the south of shop 7, adjacent to the southern boundary. The retail premises are proposed to have an area of around 764 square metres.

17 A basement car park for 145 spaces is proposed. Access is shown via Church Street in addition to a porte corchere with bus parking. A loading bay is provided from the same access point adjacent to the kitchen to the hotel. In addition, a 9 space staff car park is proposed at ground level off Church Street adjacent to the western boundary. The plans also provide for on-street angle parking along part of the Church Street frontage of the subject site (in place of parallel parking at present) and along Thompson Avenue.

18 The elevations are not dimensioned. As described by Ms Peterson, the height would vary from 14 - 14.4 metres along the Church Street façade. The ground level setback would be mainly around 14 metres. The first and second floors would be partly cantilevered to a minimum of around 9.8 metres (excluding balconies) increasing to 18 metres (excluding balconies). Other than a stairwell and kitchen, the fourth level would be recessed mainly by around 4.5 metres. The setback from the western boundary would be 9.1 metres at first floor level (the building being partly cantilevered over the staff car park) increasing to a minimum of 13.65 metres at the second floor and 16.35 at the upper level.

19 The height along the Thompson Avenue façade would be 14.6 - 15 metres. The setback from Thompson Avenue would be 6 metres at ground level reducing to 5.4 metres at the first and second floors. Balconies at the upper levels extend into this setback area so that the setback from the title boundary would be 1.8 metres. The upper most level would be setback by 9 metres with larger balconies aligning with the outer edge of those below.

20 The building would partly abut the southern boundary at the eastern part of the site at first floor level and then step back from this boundary at the upper two levels.

21 A circular balcony element is proposed to the Thompson Avenue/Church Street corner with the design adopting a flat roof with parapet. Design details include central tower elements, portholes and sails. A detailed landscape plan has not been prepared although the proposal includes the retention of the group of Eucalypt and two Eucalypt to the north-west of the site. An LPG gas tank is located close to the driveway to the staff car park.

22 During the course of the proceedings, we have been referred to possible changes to the façade treatment through the evidence of Ms Peterson. The plan attached to her evidence shows a treatment prepared by Perkins Architecture. Those plans are retained on file and have been taken into account. In addition, Ms Peterson recommended modifications to the north-west section of the fourth level (Church Street wing) to delete part of that portion of the building (mainly associated with penthouse 1) to provide a greater transition to the residential area to the west. That option has also been considered as have relatively minor changes to the basement layout referred to by Ms Donald including the necessary addition of disabled parking.

23 The subject site is substantially contained within a Mixed Use Zone pursuant to the provisions of Clause 32.04 of the Bass Coast Planning Scheme ("the Scheme"). That Zone aligns with the land known as No. 114-122 Thompson Avenue. The remainder of the site, at No. 89 Church Street, is located in a Residential 1 Zone under the provisions of Clause 32.01 of the Scheme. In both Zones, a permit is required for the use of the land as a motel, shop and restaurant for buildings and works associated with those uses.

24 A Vegetation Protection Overlay (Schedule 2 Phillip Island) applies to the lot at No. 89 Church Street, but not to the remainder of the site. The schedule to the Overlay states that the vegetation protection objective to be achieved is "To protect and enhance all existing vegetation on Phillip Island". Permit requirements are set out at Clause 42.02 and Schedule 2.

25 Car parking requirements are set out at Clause 52.06. Specific car parking requirements are set out for hotel, restaurant, shop and place of assembly uses. The decision guidelines of Clause 52.06-1 require a range of matters to be considered if an application seeks to waive or reduce the parking requirement to which we have had regard.

26 Clause 52.07 requires consideration of loading and access arrangements.

27 Pursuant to Clause 52.17, a permit is required to remove native vegetation on a lot of more than 4,000 square metres. Victoria's Native Vegetation Management - A Framework for Action[2] is based on the concept of "net gain" and other decision guidelines in the Clause must be considered.

28 A permit is required to alter a crossing to a road within a Road 1 Zone pursuant to Clause 52.29 however, no access is proposed to Thompson Avenue.

29 A number of other Clauses are relevant to the consideration of this Application, including Clauses 11, 15, 16, 17.01, 18.01, 18.02, 19, 21 and Clause 65 (general decision guidelines). A local policy at Clause 22.05 addresses tourist development. Melbourne 2030 has also been taken into account by the Tribunal.

30 The Phillip Island San Remo Design Framework ("the Design Framework") is an adopted Council document, unlike the previous Application when a draft was in preparation. It is an adopted policy to which we have had regard pursuant to Section 60 of the Act. We were also referred to current heritage investigations by the Council that intend to recognise the avenue of golden cypress along Thompson Avenue and the St Philip's Church.

31 The parties referred to the findings of the Tribunal in the case previously cited. It is relevant to the current proceedings that we refer to some of our findings.

32 In relation to the proposed motel use, we said (inter alia):

Tourist accommodation is strongly supported by the policies within Clause 21. Moreover, a Mixed Use Zone has been applied to most of the subject site specifically with the intent of providing for tourist accommodation. Therefore one outcome of this proposal would assist to implement the strategic directions of the Scheme. We give this significant weight.

We also add that the other land use components are acceptable, providing an active frontage to Thompson Avenue through the shop and restaurant activities.

33 In relation to the form of the development, we said, in part:

We recognise that development in locations sought by the Scheme, including the Mixed Use Zone, may bring some change to the existing character and 1-2 storey scale. Such a change is sought by local policies to be in the form of innovative, high quality and site responsive design. Although surprisingly not protected by an Overlay, it is apparent that the existing row of mature cypress trees along Thompson Avenue is a significant and prominent element of the environment to which significant regard must be given. The trees on the subject site also are important.

We do not give the draft Phillip Island San Remo Design Framework any weight. It is a document that is still in preparation as it remains in draft form.....

Our concerns relate to the upper levels of the development and the mass of a relatively unbroken form along Church Street. The edges of the development are also inadequately addressed, notably through solid blank walls.

The minor incisions into the northern façade (Church Street) do not readily reduce the mass that extends for some 100 metres. Other details, such as the solid divides between the penthouse units, further accentuate the building bulk. Moreover, the provision of a loading bay along the street frontage and car parking forward of the manager's residence are poor in terms of the streetscape presentation to Church Street. We are not persuaded as to the appropriateness of four storeys along this frontage and certainly three storeys would represent a more comfortable fit.

....While we do not find the inclusion of a fourth level along this façade (Thompson Avenue) as fatal, we consider that a more recessive fourth level would assist to integrate the development with the locale and the policies relating to the development of this coastal township.

We also have concern about the materials and finishes.... As noted by Mr Kelderman, this detailing can be very important in achieving a development that works positively in contrast to one that does not fit well. Given the location of the subject site on a major tourist route into Cowes, we consider this to be an important consideration and it is of concern that this remains in doubt.

Overall, for a development on a large site in this strategic and prominent location, we are not persuaded that the proposal represents an acceptable outcome in terms of building mass, articulation and design.

34 We also expressed concern about the internal amenity of some units, given a lack of daylight, and were particularly concerned at the extent to which most pick-up and drop-off arrangements were external to the site within the public realm. We found there to be practical issues associated with the servicing of some components of the use. Finally, we were less persuaded about the off-site amenity issues raised in submissions (observing that visual bulk could have been criticised was not among the matters in issue).

35 We concluded by noting that:

We have carefully considered this proposal, fully cognisant of the strong policy support for a visitor accommodation facility on the subject site. The proposal was fairly described by Mr Green as "one of the most prominent buildings on Phillip Island". We consider it important that it set a high quality benchmark, particularly as it is intended as a five star facility; a standard sought by the policies of the Scheme and that could be emulated by other major developments that may well be expected within the Cowes township.

36 The main differences between the current and previous proposals include:

•

A larger number of units and on-site car spaces (145 car parking spaces now instead of 119 and 126 units now rather than 119).

•

The deletion of the caretaker dwellings at No. 89 Church Street (this area is now proposed as a staff car park with building above).

•

A porte corchere and access way has been provided on-site to the Church Street frontage. This has increased the setback to the northern elevation and a recessive fourth level has been introduced.

•

The building form has varied with a lower height (primarily as a result of a flat roof), modifications to the southern elevation and a reduction in the upper level setbacks to Thompson Avenue (5.4 metres compared with 6 metres) but increased by 1 metre at the fourth level.

•

The architecture is similar but with "coastal-style" detailing.

37 These changes to the proposal are relevant as this case could be regarded as a "repeat appeal". That doctrine was described by Deputy President Webb in Appeal No. P86/2205 Benc v City of Doncaster & Templestowe and others as:

In the case of a different but similar application which has been prepared in accordance with the advice of the Board, equity or fairness demands that considerable weight be given to the fact that the applicant has endeavoured to accommodate suggestions as to what would be appropriate.

38 In K & B Reichert v City of Banyule and Ors (Application for Review No. 1996/38819), the Tribunal said:

While the Tribunal is not bound by precedent, there need to be reasonable grounds for a later appeal determination to depart from a Tribunal view on a very similar proposal earlier. During the hearing, I asked and received responses about what it is that is different in the circumstances of the present appeal to those prevailing at the time at which the very similar development was refused by the Tribunal...the factors which might justify a departure from an earlier determination could include:

* changes in the circumstances of the land and its surrounds;

* changes in the interpretation of the facts or law relevant to the Tribunal's consideration.

39 In the circumstances of this Application, we give our previous findings considerable weight because aside from the changes made to the proposal, relatively little has changed:

•

the circumstances of land are essentially the same other than its current temporary use. A new activity is a bistro opposite and some parking restrictions have been introduced on Thompson Avenue.

•

the relevant Scheme policies are substantially the same in relation to the main issues in these proceedings, except that the Native Vegetation Framework has been introduced and Clause 55 replaces the Good Design Guide but does not apply to a four storey building.

•

in terms of other policies, the main change is the Council's adoption of the Design Framework. The heritage investigations are not advanced to a Scheme amendment but at an initial glance it is not surprising that the golden cypress and Church might be recognised.

40 It is relevant to consider the proposal in the context of the previous Application. However, it is a fresh application and we are bound to assess its full merits. Having said that, we find ourselves covering much of the same ground as evident to anyone reading this and the previous decision.

41 We have considered the submissions presented, assisted by our previous and more recent inspections of the site and locality. The written submissions and statements of evidence tendered by the parties are retained on file in addition to the written statements of grounds. We do not recite all of the material presented although we do refer to some of the main points. We set out our findings in relation to the key issues having regard to the policies, objectives and decision guidelines of the Scheme.

42 We do not find that we need to review in any detail the policies of the Scheme that give significant support to the land use components included in the proposal. The Scheme's policies advocate the provision of additional and quality tourist accommodation and the review site is well located to provide for such uses given its proximity to the retail core and related services and facilities as recognised by Clause 22.05. As we said previously, and remains the case, the development of the review site for high quality tourist accommodation is an outcome specifically sought by the Scheme. The ground level restaurant and shops along the Thompson Avenue frontage are appropriate and complementary elements both in terms of the promotion of an active ground frontage as sought by Clause 19.03 as well as the policies adopted by the Council in the Design Framework.

43 Among a range of matters, the proposal was criticised in terms of its height and massing and also on the basis that it did not respond to the Tribunal's previous criticisms. Objectors and Council felt the architecture to be of insufficient quality for such a prominent site at the entry into Cowes and a high point in the locality. The Conservation Society tendered a document prepared by architect Mr Terence Nott commenting on the Perkins design.

44 In response, Mr Stewart, for the Applicant, submitted that the revisions have effectively addressed the Tribunal's concerns through (among various changes) increased setbacks along the Church Street frontage and improved articulation to the design including the southern and northern elevations. He conceded that further attention could be paid to materials and finishes and that could be dealt with by a permit condition possibly including some the detailed design changes suggested by Mr Nott.

45 Mr Stewart relied on the evidence of Ms Peterson that a substantial building form is appropriate given factors such as the large size of the land, the Mixed Use zoning and the absence of any Overlays in the Scheme. Ms Peterson referred to the importance of achieving a high quality outcome for such a large and prominent site and felt the massing was generally acceptable, subject to removing a section of the fourth level to Church Street, to the north-west of the site, to provide a better transition to the residential area to the west. Ms Peterson was frank in her opinion that:

The styling of the building in its current form does not represent, in my view, innovative or high quality architecture. Whilst the designer has attempted to use coastal themes in the design detail, in my opinion, these façade details are not well expressed or sophisticated in their application. Given the visual prominence of this corner site, a building of outstanding architectural excellence is warranted.

46 These opinions led Ms Peterson to request Mr Perkins to revise the façade without changing the proposed building envelope (save for some minor modifications to balconies). She acknowledged that these plans "present a substantially different appearance to the proposed building". Mr Stewart described the ability to alter the "skin" of the building while maintaining the overall mass and form (subject to Ms Peterson's recommendations) as a matter that could be dealt with by permit conditions.

47 In considering the submissions and evidence, our starting point is again what might be reasonably expected on this site in terms of a development outcome. We have previously found that a large building on the subject site, relative to the existing 1-2 storey character, is acceptable given the policy directions of the Scheme and nature of land use being proposed. We referred to the potential for a fourth storey, recessed in form, to Thompson Avenue and commented on the prospect that three storeys might produce the most comfortable fit to the Church Street elevation and in terms of providing a transition to the residential area to the west. Those comments were based on the form of the proposal involving wings along these two street frontages with an open central core where trees would be retained. The current proposal maintains that same design approach.

48 The inclusion of a strong corner element is desirable and it is also acceptable that such a component be higher to the corner then step down along the Church Street elevation. The current proposal provides the porte corchere and loading areas to the Church Street frontage with the three levels of building evident behind. The fourth level would be seen albeit recessed. Despite the deeper front setback, the ability to plant along much of the Church Street frontage is precluded by the paved areas associated with accessways and loading areas as well as a proposed footpath and revised parking along the site's northern frontage. It is proposed to retain two trees to the north-west and that area could be supplemented but the reality is that the building would be highly exposed to Church Street.

49 We do not believe that a highly visible three level form would be a problem if the design had strong vertical articulation to break up a building that extends across much of the breadth of the site for some 110 metres along Church Street. However, we are not satisfied that the current proposal has such articulation. Moreover, we are not persuaded that the extent of fourth level as proposed is acceptable and we are also not satisfied with the transition to the western boundary of this northern wing.

50 The recommendations of Ms Peterson in relation to the removal of part of the fourth level, primarily associated with penthouse 1, do not address our concerns about the extent of building bulk in this significant location. A three level form leading to a strong corner element at the street intersection would be more acceptable, assisted by improved articulation and modulation to break up the length of building. Some of the suggestions made in the Perkins design work toward such an outcome as do the suggestions by Mr Nott.

51 We now refer to Thompson Avenue. The Design Framework prefers three storeys to this Avenue and although that document can not be afforded determinative weight, we note that this would ensure that the cypress canopy remains the most dominant element. We remain of the view that a recessed fourth level on this site may be acceptable given the current Scheme provisions, however we have a number of concerns about the form proposed to Thompson Avenue as follows:

•

The proposal brings the middle two levels to within 5.4 metres of the eastern boundary with that setback reduced to 1.8 metres as a result of the balconies. The balconies are the same depth at the fourth level. We acknowledge that the building height is lower in so far as there is now a flat roof, however, we find that this would be overbearing when mindful of the deeper setbacks to buildings along other sections of Thompson Avenue.

•

The fourth level would be an apparent element in streetscape views particularly given the form of the southern elevation that would be exposed adjacent to the open form of the petrol station to the south as well as when viewed from the north-east (ie. open to the intersection of Thompson Avenue and Church Street). We had referred to the need for a more recessive fourth level previously and the additional 1 metre setback and balconies to 1.8 metres from the eastern boundary do not address our concerns when also considered with the reduced setbacks of the middle two levels.

•

We consider that there is some potential for this massing so close to the eastern boundary to impact on the canopy of the golden cypress trees and that should be avoided. Moreover, given the importance of protecting the golden cypress that are a very valuable and distinctive element to the locality we find the lack of arborist input surprising.

52 A number of Mr Nott's suggestions involving smaller and more articulated elements to the eastern façade would assist but we find that substantial changes are necessary to reduce the massing and increase setbacks if a proposal involving a long wing abutting Thompson Avenue is pursued.

53 We now refer to a strongly debated point in this Application being the architectural merit of the design.

54 We think that it is common ground that the review site is worthy of, and it is important to achieve, a high quality urban design outcome. The words "innovative" and "quality" can be easily said but architectural styling will always be a matter of debate and it will be somewhat subjective as to whether these laudable goals are achieved. In addition, in the current case, the Council is keen to seen the coastal setting reflected in the design but Mr Mason explained that it is not satisfied with the elements included such as sails, portholes or alternative elements involving materials such as sandstone proposed in the Perkins design. The evidence before us, for the Applicant, is that the styling as shown in the application plans does not achieve the necessary design quality. We accept Ms Peterson's evidence. We previously referred to the importance of detailing to the success or otherwise of a development (refer to paragraph 34 above). Our views have not changed and we find there to be only limited differences between the previous design and the current proposal. Moreover, as we have stated, our concerns go beyond that issue. Thus, it is not simply a matter of changing the outer "skin". We are certain that with changes in the massing to produce a less overbearing form and, "in the hands of a skilled designer" (using Ms Peterson's words) that a successful outcome can be achieved.

55 We are not persuaded to adopt the Perkins design albeit we recognise that it improves significantly on the proposal and, as we discussed with the parties, we do not believe that the objectives of innovative or high quality design can be written into a permit condition with a final decision to be left to the Council. The site is too important for this matter to be so uncertain both in terms of the architectural styling, finishes and materials. It is, also, a matter that should be open to broader scrutiny not only to those who have participated in these proceedings.

56 To address all of our concerns requires a fresh approach, not remoulding or recasting what was previously before us. A new design could be radically different to the current concept. Given our primary findings above, we next only summarise our views in relation to the other major matters in issue.

57 The dwelling to the west of the subject site has the most potential to be affected by the proposed development as the dwellings to the south would be separated by the central courtyard and stands of trees.

58 It is evident that the private open space of the adjacent dwelling to the west would be exposed to the visual bulk associated with the four levels of the northern wing. While issues of overlooking can be dealt with and overshadowing would be within reasonable limits if Clause 55 was to apply, the physical presence of the proposal would be significant. An improved transition to the north-west, as discussed above, would result in an improved outcome for the adjacent dwelling.

59 We note that reference was made to an agreement for a 3 metre high fence along the common boundary with this property although the owner was not present during the Hearing for us to confirm such an agreement. That is, however, a matter that could be dealt with by conditions and such a fence, if acoustically treated, could assist to ameliorate noise from the staff car park.

60 We have a greater concern about the refuelling of the LPG gas cylinder that is proposed to the north of the staff car park and would wish to see confirmed that the necessary regulations can be complied within in relation to filling. We do not consider that a LPG gas tanker reversing into the car park is an acceptable solution if the cylinder must be refuelled from the subject land. Our concern is both in terms of noise for the adjacent dwelling and the ability to use the staff car park efficiently and fully.

61 The dwellings to the south of the site would experience the mass of the development at a distance, although the four storey form less than 10 metres from the north-east of the closest residential property to this interface that fronts Holydene Court. That would represent a substantial impost. Again this is another reason why the massing to the fourth level should be reduced to enable a better transition to the south of the site.

62 Other impacts to nearby properties are more acceptable.

63 In the previous determination we expressed concern about the internal amenity impacts associated with rooms with a high reliance on borrowed light. While the layout has been improved in this respect, nearly all units on the lower two residential levels rely on borrowed light to the internal bedrooms. Unit types C and D are examples of units that are more problematic as they have second bedrooms with borrowed light required from windows at some 6-8 metres away.

64 While we take into account the intended short term usage of the units, there is still an obligation to ensure that a sufficient level of amenity is achieved for occupants. We expect that the outcome could be improved although we accept that the Unit types C and D seem to apply to only limited number of rooms.

65 The proposal was criticised in terms of the reduction in parking sought, the reliance on on-street car parking, as well as a lack of parking for wheelchairs/motorised scooters and boats/trailers. As was also the case previously, we heard detailed submissions in relation to the adequacy of the proposed parking arrangements and the existing parking situation in the immediate vicinity of the subject site. Our attention was again drawn to activities at St Philip's Church, and parking demands in the vicinity as a result of other uses with such demands said to have increased with the growth of people visiting Cowes. The parties again provided varying assessments of the parking requirements for the proposal, and we do not describe the differences in detail.

66 The evidence of Ms Donald was that some 687 parking spaces are required by the provisions of Clause 52.06 with some credits that she said can also be applied. She gave evidence that an empirical assessment shows that the provision of around 115 spaces plus staff spaces on-site would be sufficient for most demands generated by the development. She concluded that parking for the development would generally be provided fully on-site. The exception would be at times of conference change-overs when there would be a reliance on on-street parking immediately abutting the site. The plans show parallel parking in Church Street being converted to 60o parking and Ms Donald recommended that this be amended to 90o parking to allow more flexibility for cars to depart either eastwards or westwards achieved through some minor adjustment on the site (additional widening).

67 Although we are not persuaded to adopt credits for this site, we accept Ms Donald's evidence that the on-site parking provision may be acceptable except at peak times. However, we remain concerned about the necessary reliance on on-street spaces at peak times when the precinct is busy in the obvious summer and holiday periods and also on other occasions. We record that revisions to the parking layout are necessary to accord with the relevant standards based on Ms Donald's evidence.

68 We are surprised that there have been no surveys undertaken at busy times in the nearly two years since we heard the last Application. We only have some spot surveys recently undertaken by Ms Donald and in fact her report is entirely based on 2001 data without updating changes such as new parking restrictions. For a major development we find this approach to be a failing particularly when this concern was previously flagged by us.

69 We also have a concern about the way in which the car park might work in so far as allocating spaces for staff of the shops, restricting public use and managing the hotel usage. A management plan would be have desirable if we had determined to grant a permit and that could have been addressed by way of a permit condition.

70 In addition, parking for others, such as disabled motorists, motorised scooters, bicycles (as required by Clause 52.34) and even recreational watercraft is not something we have addressed but requires attention in any revised concept for the land. Off-site bus parking was a further issue but is also not a matter that we have explored in any detail but it may be a consideration for a management plan.

71 The proposal was criticised in terms of the potential for increased traffic congestion around the review site and in local streets with the potential for the safety of pedestrians to be jeopardised. While there may be more traffic in Cowes as local residents perceive (although we have no up to date data) any development on the land will increase traffic and it is not reasonable to prevent the redevelopment of the review site for that reason. The Council's policies relating to this site have been developed mindful that traffic would be an outcome, and the former use of the land would also have caused some level of traffic generation.

72 We do not go to Ms Donald's evidence but again comment that up to date data is lacking. We made findings on traffic and pedestrian safety matters previously and have not been persuaded to depart from the general conclusion that the impacts are likely to be within acceptable limits albeit we believe that the evidence should be based on up to date data. We have not ventured into possible conditions relating to a development impact statement and contributions to works as proposed by the Council as the information before us is inadequate to reach a conclusion and we doubt that these matters should be dealt with in the way proposed in the Council's draft conditions.

73 We have concern in relation to loading and servicing, which is inadequately dealt with in the following ways:

•

The Council requires garbage collection from Church Street and that is not provided for. The arrangements do not allow for collection in the location proposed, adjacent to Shop 7, and the need to provide more convenient facilities for the retail premises should be reviewed in any new design.

•

Loading is proposed from Church Street or in front of shops. Where large vehicles are involved, servicing from Thompson Avenue may impact on the street trees. The loading bay requires review as it is probably too small for intended purpose, a matter on which Ms Donald also remarked but felt could be adjusted.

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We have a concern about the siting of the LPG gas facility from a streetscape viewpoint as well as the unknown requirements relating to fuelling on-site.

74 We remain of the view that the review site is an important and strategic site in Cowes and it is clearly appropriate for redevelopment. As was the case in the previous Application, we have not been persuaded that the massing and design merit of the proposal is acceptable in terms of the outcomes sought by the Scheme. We are not satisfied that these matters can be solved by simply transforming the "skin" of the building, rather, again we stress that a more considered response is warranted and that should be through a fresh permit application. In addition, we have concerns about the extent of reliance on on-street parking and issues relating to the servicing of the proposed uses. We have therefore determined that the Application should not be allowed and we will direct that no permit issue.

[1] Application for Review No. P1449/2002 Phillip Island Conservation Society Inc. and Ors v Bass Coast SC and Anor

[2] Department of Natural Resources and Environment December 2002.