9 The parties had agreed that the Court should appoint Mr J S Kennedy, architect and urban designer, and he was in attendance but not required for cross-examination. His reports on prior drawings, and the amended drawings, are tendered in Exhibits 4 and 5.
10 There are joint expert reports from traffic engineers in Exhibits 7 and 8. There are joint reports from the geotechnical engineers, Mr T Collenbrander and Mr W Newell, but they were not required for cross-examination. They proposed conditions in regard to excavation, especially to protect the structure of the heritage item cinema adjoining. These were accepted by the parties.
11 There were joint expert reports from the hydrological engineers, Mr S Button, and Mr D Davoodi in regard to hydrostatic pressure on the basement carpark, de-watering of the groundwater during construction, and the floor level and stormwater drainage affecting the proposal. They provided draft conditions that are accepted by the parties, and did not necessitate cross-examination.
12 There are joint reports by Mrs C Colville and Mr G Patch, heritage experts, who had examined the amended proposal and its appropriateness adjoining the heritage item of the Collaroy cinema. They had proposed conditions that are adopted by the parties and did not necessitate cross-examination.
13 No objectors attended the hearing. However, letters were tendered from:
- D and C Stiles of No. 8 Eastbank Avenue;
- A Schuller and E Gibbs of 5 Eastbank Avenue;
- D Rogglero of 18 Collaroy Street; and
- V Hayer and B Thompson of No. 4 Alexander Street.
14 Submissions were also received from the New South Wales Heritage Office in regard to the cinema, and from the Roads and Traffic Authority in regard to its requirements for the entry driveway to the site off Pittwater Road.
15 A brief summary of the evidence, and submissions, is that the need for a drive entry off Pittwater Road has brought the proposal, in the respondent's opinion, and Mr Kennedy's, to say that at the ground floor level the proposal fails to achieve the desired future character of the Locality D2 zone. Therefore it should be refused. Or, a finding made fore-shadowing consent subject to a s 40 application under the Land and Environment Court Act (1979) to a judge to obtain an easement for access to the rear of the site over Lot B of the cinema property, or No. 4 Alexander Street, or partly on both properties.
16 The applicant gave evidence and submissions that it had taken all reasonable steps to investigate and obtain such an option, and that such an option had limited benefit to the ground floor level of the proposal due to the constraints of the site.
17 Further, that in view of that evidence, a concession should be given for any inconsistency with the Locality D2 desired future character statement.
18 In any case the applicant put the term "consistent" had been defined in case law to be "Compatible with, or not antipathetic to", and the proposal could not be said to be inconsistent taken in the context of the whole shopping strip.
19 Going to the evidence, another aspect that I put some weight on, when put by the applicant, is that council has no development control plan requiring new development to provide rear access to the shops fronting Pittwater Road. Nor does the council have any s 94 contributions plan to acquire a rear laneway.
20 Looking at the constraints of the site I note several matters. The subject site is isolated between the Cornerstone development and the heritage cinema. Substantial evidence was tendered and agreed by the respondent to show both Cornerstone and the cinema would not negotiate an easement. In fact the cinema had a current development application before the council to add 3-storey high extensions at the rear on the small piece of land that might provide access to the subject site.
21 Also an offer to No. 4 Alexander Street had been made in the amount of $200,000 for the grant of an easement over part of the existing front yard and driveway areas at the eastern boundary of the property. It had been rejected with the advice that further approaches would be treated as trespass and harassment.
22 The traffic engineers agreed rear access was preferable considering the busy traffic and footpath pedestrians along Pittwater Road.
23 The applicant's evidence on the practical problems of achieving rear access, apart from acquisition of rear access, were:
1. The site has an existing council stormwater easement across it at about one third the length of the site. Any basement carpark can only be excavated to the rear of the easement so the floor area of any carpark is limited.
2. Extensive vehicle ramps are required due to the flooding of the area. The entry of the carpark has to go up from the natural ground whether at the front or at the rear of the site. The ramp has to crest above the flood height and then descend to the basement. As a result any design has part of its carpark at an elevated ground floor level at the rear of the site, and a semi-basement below that.
3. The reason for a semi-basement is twofold. Firstly, it is automatically created by the elevated ground floor carpark, and secondly the hydrostatic groundwater pressure and the geotechnical requirements to not affect the cinema structure mean that excavation has to be limited to about a half storey below existing ground level. It is not practical in the hydrological or geotechnical experts' opinions to go deeper on this site and have a third carpark level.
4. The need for extensive vehicle ramps to some extent was favoured by the basement having to be at the rear past the drainage easement. It meant the main ramp is in the front section of the site. With a rear access the main ramp has to be within the basement area and absorbs space that could otherwise be carparks.
24 In Exhibit M, Mr Hewitt sketched a rough design with rear access to the subject site that could get 9 cars versus 11 possible on the proposal. That means less off-street parking than the proposal such that it would not meet the parking requirements of council.
25 When the respondent said to ignore the council drainage easement Mr Hewitt said the carparking with rear access could increase to a total of perhaps 12 car spaces, but its access off Alexander Street and manoeuvring within the site would not achieve compliance with the applicable Australian Standard.
26 Mr Hewitt added that if rear access was obtained the existing driveway off Pittwater Road would become commercial floor space and push the parking requirement up to 17 cars so there was still a non-compliance with council's requirements.
27 The proposal, as in the plans in Exhibit A, could meet the necessary carparking requirements of council.
28 I had no evidence to say that the council drainage pipe and easement could be removed, in fact I was told it was an important part of the existing, and the future proposal for stormwater drainage of the shopping centre especially in consideration of its flood prone nature.
29 In regard to rear access the applicant put, and I accept, that it would require separate development consent, and in the face of no co-operation from the neighbours, that could only occur, as the respondent put, through the process envisaged in case law Billgate v Woollahra Municipal Council [2004] NSWLEC 436.
30 To make any finding that this appeal should be adjourned to enable a s 40 application under the Land and Environment Court Act (1979) would require evidence of the merit and fact regarding the heritage item cinema and the house, land and occupants on No. 4 Alexander Street. In this case I only had evidence that a substandard vehicle manoeuvring access is possible via the rear access. I do not believe I should consider rear access to the subject site further in this appeal.
31 I turn my attention to what weight I should give to Mr Kennedy's evidence, and the respondent's submissions on consistency with the D2 Locality statement, and the other relevant clauses of the Warringah Local Environmental Plan 2000.
32 In regard to the objections of No. 4 Alexander Street in regard to overlooking and overshadowing, the proposal before me, as amended, has setbacks at each level at the rear, and screen plantings to balcony areas, and conditions on windows, to ensure privacy such that these impacts are minimal and acceptable.
33 Detailed shadow diagrams in Exhibit C showed that the major affectation on No. 4 is caused by the very tall cinema building. The proposal has little effect.
34 Also the design has, on its south boundary, setbacks for privacy separation and solar access to the Cornerstone development that maintain acceptable amenity as envisaged in the Cornerstone evidence in obtaining its own consent.
35 The submissions by the New South Wales heritage office are incorporated in the heritage experts' findings, and conditions making the proposal acceptable as a neighbour to the heritage item cinema.
36 The remaining features of the desired future character statement the respondent is concerned with are:
(a) That Collaroy village will retain its retail character incorporating a mix of small retail and business uses with shop top housing.
(b) A range of retailing and after hours activities at street level will reinforce the character of the village.
37 Comment. The proposal does retain a shop front at the footpath level, although it is not as big as the respondent or Mr Kennedy would like.
(c) Future development will maintain continuity of existing building facades by ensuring that they are broken into distinct vertical segments reflecting the traditional pattern of shop front development.
38 Comment. Although the shop front is not as big as desirable, it is broken into vertical elements, and could appear to be a wider shop front if the masonry elements at the front are replaced by thinner steel columns, and the shop front is wrapped around into the splay of the driveway entry. This could be done as a condition of consent.
39 As a note to this, the allotments fronting Pittwater Road are at about a thirty degree angle to the street front. Due to the proposed driveway being on the south side of the site it favours the wrapping of the shop front into the splay of the driveway entry. A pedestrian walking by would see a continuous length of shop front and entry doors 13 m long if taken from the north boundary to 6 m into the splay. The current plans show windows to that extent between large masonry panels. The total width of the site is 15.6 m.
40 Whilst the driveway entry would be obvious still with such a change to the shop front, the change would do much to minimise the visual presence of the driveway of concern to the respondent and Mr Kennedy.
41 Part of their concern arises from cll 71 and 75 of the Warringah Local Environmental Plan 2000 in regard to carparking facilities. Despite the submissions of the respondent I accept the applicant's pointing out the only component of cll 71 and 75 the proposal does not comply with is: