46 For the owners/tenants of commercial suites (medical clinics) in No. 357-359 Military Road on the third and fourth floors:
* Increased use of the ROW will cause congestion for both properties.
* Body corporate of Nos. 357-359 has not received any correspondence seeking increased use of the ROW.
* Numbers 357-359 is not fully tenanted and a recent traffic count of the patients of two medical suites showed 74 traffic movements for one and 180 traffic movements for the other in one day. This makes 250 movements in or out for just two of the tenancies.
* The 74 traffic movements of one medical practice were generated by 37 patients over a total of 41. So there is a high percentage of patients come to No. 357 by car.
* When No. 357 becomes fully tenanted, plus the proposal, congestion in the ROW and queuing into Belmont Road will occur regularly.
* Belmont Road has a traffic median in the centre opposite the ROW so cars can only do left in and left out.
* Cars parked in Belmont Road make the moving lane opposite the ROW only one car width.
* Any queuing in Belmont Road to enter the ROW will stop all traffic trying to enter Belmont Road from Military Road which is a main arterial road with very high traffic numbers.
* The commercial suites in No. 357 value their north-eastern outlook across the subject site to the trees and No. 66B. That will be lost.
* The commercial suites in No. 357 have large terraces on the north-east side that will have towering above them the upper two storeys of the four storey rear wing of the proposal. Apart from the loss of views there will be shadows and loss of amenity.
* The stepping of the two existing buildings of Nos. 375 and 355 Military Road creates the streetscape and amenity that Mosman Municipal Council is trying to achieve. The proposal, by building to the street boundaries and going up to 4 storeys without any stepping back is contrary to that streetscape and does not blend with the existing buildings at Nos. 357 and 355.
* The huge billboard on the proposal is also out of keeping with the streetscape and the discrete signs on the neighbouring buildings.
47 The objectors of suites 21 and 22 level 3 and suite 15 level 2 of No. 357 had an architect submit sketches of what they felt is reasonable on the subject site. It involved no building on the rear part of the subject site except for the access driveway from the ROW to the basement and it also involves stepping the Military Road wing of the proposal from 4 storeys down to 2 storeys abutting No. 357 in order to simulate the stepping in the bulk of the building of No. 357. Also the submission suggested a Military Road front setback to provide for landscaping to match that of No. 357.
48 In response to these objections the applicant put that the reasonable expectations for the site to achieve its maximum potential should not be constrained by the unreasonable wishes of the objectors.
49 It was put in submissions and by evidence from Mr Darroch, Mr Hallam, Mr Stanic, Mr Davies and Mr Hill that:
o The views for No. 357 across the subject site to the trees on No. 66B Prince Street and the heritage item are fortuitous and could not reasonably be expected to remain when the subject site is zoned No. 3(b) Commercial/Residential, with a 4 storey height limit.
o The 4 storey height of the proposal is within the height limit. The likelihood of a 2 storey wall above the terraces of No. 357 is something the owners of No. 357 should have anticipated when buying their commercial suites.
o They are commercial suites, not residential apartments in No. 357 and should not expect the same amenity as residential flats.
o On its Military Road wing the proposal had been stepped away from No. 66B Prince Street in order to provide good sunlight to the residential flats therein and to obtain a satisfactory relationship with the heritage item and to comply with the council's control for a 45 degree stepping away above the second storey where the No. 3(b) zone adjoins the No.2(e) Residential Zone.
o In order to maintain the height and floor space ratio potential yield of the site those constraints cause the design to take the reasonable options of going to the maximum height at the south-west boundary with No. 357 and building to the Military Road boundary. It is the applicant's case that the statutory objectives of the streetscape issues and the relationship of the proposal to Nos. 357 and 339 Military Road had been met in the design.
o The units in No. 66B would retain two hours of sunshine midwinter to the north-east windows of the units and that was the council's requirements. The existing situation of their receiving sun all day midwinter is not a council requirement.
o The potential loss of some of that sunshine should have been taken into account by the objectors in purchasing the units next to a zone 3(b) property with a four storey height limit. Also the proposal had been designed to step away from No. 66B to retain the two hour solar access requirement so all reasonable steps had been taken by the applicant.
o In regard to Unit 10, No. 137 Belmont Road, the shadow diagrams reveal there would be little or no shadowing of that unit. The proposal would be about 10-15 m away from the balcony of unit 10 and the four storey height of the proposal should reasonably have been anticipated by the purchaser of Unit 10 as the property adjoins a zone 3(b) allotment.
o The amended drawings in Exhibit L would enable the retention of tall Hoop Pine tree on No. 66B. That is the most prominent and closest tree to Unit 10. That and the distance of separation should ameliorate the visual impact of the proposal to acceptable levels.
o The increased traffic on the ROW on the boundary of No. 137 is another factor that should have been considered by anyone buying a unit next to a zone 3(b) allotment. With the amended drawings both traffic engineers are satisfied the ROW is suitable for the traffic to serve the proposal and No. 357 Military Road. The left-in-left-out only control on the ROW where it meets Belmont Road is safe provided drivers exercise normal care.
o Both traffic engineers did not expect queuing of cars entering the ROW to extend out onto Belmont Road and block turning into Belmont Road from Military Road.
50 On this latter point I put it to the traffic experts that whilst on the view of the site and its neighbours the parties were in the ROW when a car entered the ROW and stopped just inside the boundary of No. 357 to operate an intercom. The intercom had numbers to dial for each suite in No. 357 and the driver had to wait for someone to answer and to operate the sliding grill gate to the car park of No. 357. That took some time, and in peak periods it would only take one other patient of the clinics to arrive behind that car and any third car would have to queue in Belmont Road.
51 Both experts said they had not observed the incident and had assumed the intercom was a defunct boom gate as there was no boom. They both assumed cars just drove in without stopping in the ROW.
52 Obviously, however, the sliding grill gate to No. 357's basement car park was the control and no boom gate is necessary. The experts agreed the observed incident illustrates a problem with the ROW. The intercom for No. 357 would have to be moved further along the ROW to allow two or three cars to queue within it before the entry to No. 357's basement. There had been no contact with No. 357's body corporate about that.
53 Mr Coady for the respondent said in regard to the service vehicle bay off Prince Street for the commercial units of the proposal that the estimated five deliveries per day would not cause a problem in Prince Street. His concern was the service bay is proposed at 6.4 m long and the smallest garbage truck he knew of is 8.4 m. The garbage truck is intended to use the bay to pick up the commercial bins stored in a room adjacent the bay. The truck would project partly on to the footpath.
54 The applicant's traffic engineer Mr Hallam said it was intended to use a contractor with a utility sized vehicle that would take the bins away to be emptied elsewhere then return them. It would mean minimum disturbance to the residents of No. 66B he said.
55 Mr Coady had never heard of that kind of garbage collection where bins are not emptied on site.
56 In regard to potential smell from the waste being close to units in No. 66B, the applicant said the commercial units would have mainly paper and non-putrescible waste. Being in an enclosed room it was unlikely to smell.
57 Mr Coady noted the predominance of medical suites in No. 357 and commented if the commercial suites of the proposal became medical suites then medical waste was likely and it could be a concern. The applicant replied medical waste disposal is highly controlled and would be less likely than commercial waste to be of concern to No. 66B.
58 In regard to the objectors concerns about overflow parking in Prince Street, both traffic experts agree the proposal complied with the council's parking requirements and that was all that could be expected, as it was based on normal traffic generation statistics.
59 Mr Coady said as long as the amended drawings achieve the correct driveway gradients and head clearances and the column in the centre of the entry ramp to the basement was moved to the boundaries then he accepted the on-site parking would be adequate.
60 There is he said, a vehicle manoeuvring problem at the right angle bend from the ROW into the basement entry. Two cars cannot pass in opposite directions around the bend, one car as to wait for the other. The traffic experts agreed this could be dealt with by convex mirrors and traffic lights. Mr Coady said this was normally acceptable, but in this case the car having to stop in the ROW for an outgoing car would be on a 20% gradient. That is normally not acceptable. Mr Hallam had calculated likelihood of two cars meeting on the bend at 1.38% and said the frequency would be so low it would not justify refusal of the proposal.
61 Mr Coady noted the ROW is 5.85 m wide. AS/NZS2890.1/2004 cl 2.5.2(a)(ii) requires 5.5 m between kerbs and 300 mm clearance past the kerbs giving 6.1 m total. Lights on the south-east wall of the ROW project 300 mm restricting clearances. Mr Coady said these shortcomings were not sufficient for refusal but added to a difficult driver environment. Unless appropriate measures were taken he said the various problems in the driveway may be sufficient for refusal.
62 Mr Hallam noted the restricted width of the driveway was at one section of the ROW only and other sections complied with the width requirements. The problem of the narrower section would only be important if peak traffic exceeded 30 vehicles per hour and Mr Hallam had calculated the development generated a maximum of 20 vehicles per hour and Nos. 357-359 10 vehicles per hour.
63 Mr Coady noted that the estimate for the Nos. 357-359 traffic component in the ROW was based on a survey traffic count and he had only just become aware No. 357 was not fully tenanted. However, he had not done a calculation to check the peak traffic.
64 When the amended drawings were tendered in Exhibit L the traffic experts had been excused from the hearing. The respondent noted that contrary to the joint traffic statement the column in the basement entry ramp had not been moved out to the side boundary. It had been moved only to one side to give the 6.1 m clear width, but the vehicle turning path around the 90 degree bend just before the column had not been shown to indicate it would work. The applicant said a condition could require relocation of the column if needed.
65 Garbage collection for the residential units was to be located in the basement opposite the end of the entry ramp. Once again the bins were to be transported away in a utility sized vehicle to be emptied and then returned. Any noise and smell should be confined to the site.
66 Bearing in mind Mr Coady's evidence on the cars not being able to pass on the 90 degree corner between the ROW and the entry ramp, I took judicial notice of the turning circles in AS2890 for the 99.5%-ile of vehicle such as a garbage collection vehicle might be and the 85%-ile of vehicle such as a Commodore or a Falcon.
67 If the entering car got to the corner of ROW and subject property first, the exiting car would have to stop at least 10 m from the corner measured from the inside of the bend at the boundary to the subject property from the ROW, to enable the entering car to sweep over to the right hand side of the entry ramp and back to the left hand side.
68 The exiting car would have to stop on the 1:5 gradient ramp. Likewise the position at which an entering car would have to stop is also on a 1:5 gradient. Neither car would be able to see the other and so the drivers would have to be familiar with using convex mirrors. Without that it was likely that both cars would have commenced the turning manoeuvre so that they both would have to stop and one would have to reverse to enable the other to pass. Automatic green and red lights would be needed to minimise this possibility. As Mr Coady said it would not be a very user/friendly vehicular entry, particularly for persons who might be unfamiliar with the ROW.
69 There was no evidence on approval of the body corporate of Nos. 357-359 Military Road to the works required within the ROW or the increased use of it. Although the lack of contact with the body corporate was drawn to my attention, I assume the parties do not see that as a major estoppel to the proposed use of the ROW by the subject site.
70 From the evidence so far it appeared to me that although the traffic and parking issues indicated the proposal could add to local congestion and may be a difficult driver environment. Subject to the use of the ROW being legally possible the respondent had not presented a case that traffic matters alone would be sufficient for refusal.
71 Turning to the evidence on streetscape and the heritage item at No. 66B Prince Street, I note that the council's transitional requirements for higher intensity uses on zone boundaries with residential zones requires 45 degree stepping of the building envelope above the second storey for buildings in the higher use zone.
72 Mr Dickson's evidence shows this applies to the rear leg of the subject lot as well as the Military Road wing. The rear leg of the proposed building does not step as required and has the 1½ m side setback to the boundary four storeys high.
73 When taken onto No. 66B on the view of the heritage item, the living room and sun room windows of four units face the rear leg of the subject property and therefore would have six balconies and six living rooms of six units (ignoring the ground floor disabled access unit) and six bedroom windows looking directly across at No. 66B at a separation distance of 12 m to some rooms and 10½ m to others.
74 The rear yard of No. 66B which comprises the only semi-private communal open space of that site would be overlooked from between 1½ m and 12 m separation by the same six units of the proposal. From the Military Road wing of the proposal the same communal open space of No. 66B and the sun room windows of two units on the western corner of No. 66B would be overlooked by two decks, five bedrooms and one living room of the proposal. The communal space would go from being private, except for other residents of No. 66B, to being heavily exposed. The balconies and living room windows of the six units in the rear wing and two in the Military Road wing, of the proposal cannot be given privacy screens without cutting off solar access and outlook to themselves.
75 The applicant put that the preservation of the Hoop Pine tree would retain privacy screening for most of No. 66B, but I agree with Mr Richards. The proximity of the proposal to the boundary means all the branches that might give privacy would need to be pruned back to the trunk of the tree. In any case it is not usual to rely on only vegetation for privacy as vegetation lives and dies.
76 The respondent said that the proposal would, in effect, appropriate the amenity of No. 66B's setting for its own benefit whilst creating an overbearing structure that severely detracts from the significance and setting of the heritage item and also overshadows the communal space of No. 66B and in mid winter would prevent the existing late afternoon sun to the south-west facing living rooms of No. 66B.
77 The sunlight that the stepping of the Military Road wing of the proposal preserves is to the bedrooms and sunrooms of two of No. 66B's units fronting Prince Street and two at the rear. The ground floor windows in the north-west elevation of No. 66B would have sun until about 12.30 pm.
78 Of the upper floor units of No. 66B one would keep sun until 3.30 pm, the other would commence to lose sun at 1 pm and being full shade at 2.30 pm. This is not an unacceptable outcome on solar access for the north-western windows of No. 66B, but the respondent said there were other impacts.
79 Mr Dickson said having the major private courtyards/decks of the apartments in the Military Wing of the proposal all facing No. 66B meant the units had very little sun to their own private open spaces in mid winter. There would be sun to their north facing living rooms but the control plan required it to the private open space also.
80 A further impact would be the direct view lines to the bedroom windows of No. 66B. These would mean privacy loss and noise potential from entertainment in the units.
81 Although the distances of separation were at normally adequate distances, the site would not be able to provide its own softening of its built form with its own boundary vegetation in the 1.5 m wide planted troughs. The vegetation in those would be lucky to reach one to two storeys screening only bedroom windows of the proposal. The deck levels would rely on secondary planter troughs and vegetation in them at the deck levels.
82 Mr Robinson said the bulk and mass of the proposal would visually wrap around the heritage item three and four storeys high on two sides having substantial affects on its setting and therefore its significance.
83 If the council streetscape controls on a 45 degree step in the building envelope above the second storey on the Military Road frontage were to be observed, plus the other requirements on this transitional allotment next to the residential zone boundaries, the impacts would be far less on both streetscape and heritage significance and amenity.
84 A bi-product of such compliance would be less impact on the north-east elevation of Nos. 357-359 and lesser visual impact on No. 137 Belmont Road, but those matters are not determinative of this appeal.
85 The applicant's evidence is that No. 66B currently has a very noisy environment from Military Road traffic and the proposal will shield it from that noise. Entertainment on the proposed units would be only occasional, and in a residential situation that is normal.
86 On the option of placing the private open spaces of the units on the side facing No. 66B the applicant put that the same noise from Military Road made an outdoor space undesirable on the north side of the proposal where admittedly they would get more sun. But the applicant said, there was no need for sun mid-winter to the private open space decks of the proposal, as the living rooms had northern sun and the windows could be double glazed for noise reduction. This latter evidence carries some logic in my view, but it does not necessarily create a justification to ignore the control plan requirements for the setback from the Military Road frontage and stepping of the building from that side for streetscape reasons.
87 Mr Dickson said he was not against the loss of the front setback or the building having flat roofs, the latter because other buildings nearby had flat roofs. It was the failure to observe the step back of the building envelope at 45 degrees above the second storey that concerned him.
88 The Zone 3(b) is a transitional zone between the shopping strip and the residential zone. The change in use is reflected in the council's controls on building form that create a transition within the streetscape.
89 Numbers 357-359 in particular create that transitional effect and except for not having a pitched roof, more than comply with the council's requirements.
90 Number 355 Military Road on the adjacent corner of Belmont Road has large steps as it rises up and away from the street. There is a central section that does not step, but seen obliquely as most people do, the strong impression is that both Nos. 357-359 and No. 355 step up and away from Military Road and Belmont Road frontages. The vegetation in the front setback from the street boundaries of both properties accentuate the transition in the streetscape from the shopping centre area to the mixed use zone and then the residential.
91 The proposal by achieving its maximum floor space ratio and maximum height has done so at the cost of the heritage item and the streetscape objectives.
92 The proposal by rising four storeys directly beside Nos. 357-359 and by having no street front setback will frustrate the benefits to the streetscape objectives already achieved by Nos. 357-359 and No. 355. Coming from the east persons on Military Road will not see those transitional buildings until past the site. Coming from the west, the proposal, instead of continuing the reduction of bulk and height of buildings in the transitional zones down to that of the residential zone that commences at Prince Street, persons will see an abrupt four storey vertical wall originally proposed as a four storey high billboard. The façade leading eastwards from that four storey vertical wall will represent a building façade in a hard rectilinear form that would recommence the shopping centre forms of buildings that the controls are intended to prevent.
93 Mr Robinson said to have proper regard to the heritage item and its setting and the requirement for consideration of its visibility from the major public thoroughfare of Military Road, the proposal should observe a similar setback to Prince Street as No. 66B of about 10 m. The loss of all the trees except the Hoop Pine on the south-west boundary of No. 66B is another impact that results from the development.
94 The respondent's experts agreed these controls and statutory considerations would reduce the potential development yield of the subject site well below the theoretical maximum. But the latter is just that, a maximum that is intended to apply to an unconstrained site.
95 The subject site by being L-shaped, small and narrow in each leg, being a lot to which envelope and transitional requirements apply on five (5) boundaries out of six (6) to reduce building bulk and height, and a lot that adjoins a heritage item and its setting on two boundaries, is a heavily constrained allotment.
96 A building that complies with the controls would reduce many of the impacts of the proposal possibly to acceptable levels subject to council's further consideration.
97 Overall I agree with much of the respondent's evidence. In particular Issues 4, 5, 6, 7, 8 and 10 in regard to the south-west windows of No. 66B and the communal open space, Issue 11 in regard in regard to aural privacy impacts on No. 66B's north-west elevation, and aural and visual privacy of the south-west windows of and communal open space at the rear of No. 66B. Issue 16 becomes important if increased use of the ROW and works required to it can be denied by Nos. 357-359. Issue 20 is important in regard to the adverse impacts on the amenity of the heritage item and its setting and therefore its significance, and parts of Issue 22 that are related to all of the above, I also agree with.
98 Therefore the orders of the Court are:
1. The appeal is dismissed.
2. The exhibits are returned to the parties, except Exhibits E, H, J, L, M, 1, 2, 7, 8, 9, 13, 14, 15, 21 and 22.