Mars Capital Corporation Pty Limited v Sutherland Shire Council

Adrienne Ebsworth v Sutherland Shire Council, Appeal No 11664 of 2005; Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 ; Baker Kavanagh v Sutherland Shire Council [2006] NSWLEC118 Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported); Jantz Constructions Pty Ltd v Randwick Municipal Council (1976) 35 LGRA 70; Sofi v Wollondilly Shire Council (1975) 31 LGRA 416; North Sydney Council v Ligon 302 Pty Limited (1995) 87 LGERA 435; CASES CITED: North Sydney Council v Ligon 302 Pty Limited (No 2) (1996) 93 LGERA 23; Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117; Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472; Tenacity Consulting v Warringah Council [2004] NSWLEC 140; Terrace Tower Holdings Pty Limited v Sutherland Shire Council 129 LGERA 195; The Uniting Church of Australia Property Trust (NSW) v Sutherland Shire Council [2005] NSWLEC 289; Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001; Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123

DATES OF HEARING: 3 and 4 August 2006, 22 and 23 November 2006

APPLICANT: Mr J Bingham, solicitor with Ms Z Baker, solicitor SOLICITORS: Deacons, Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr C McEwen, SC, assisted by Mr G A Green, solicitor with Ms E J Ranken, solicitor SOLICITORS: Pike Pike and Fenwick

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10977 of 2005 - Mars Capital Corporation Pty Limited v Sutherland Shire Council

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Sutherland Shire Council (the council) of a development application to erect a new mixed commercial - residential development comprising two (2) commercial tenancies, a cafe and eight (8) new dwellings at Lots B and C, DP 199549, being Nos 96-98 Loftus Street, Bundeena, (the land). 2 We visited the land in company with the parties on the mornings of 3 August 2006 and 22 November 2006. On both occasions local residents gave evidence. 3 We are satisfied that the application, when assessed under the heads of consideration of s 79C of the Environmental Planning and Assessment Act 1979, may be granted consent. However, we consider that in order to improve the western view from No 94 Loftus Street that Bedroom 4 and the balcony of Unit 1 should be deleted. The land 4 The land is situated on the south-eastern corner of Loftus and Brighton Streets and has a frontage to Loftus Street of 25.89 metres and a frontage to Brighton Street of 58.17 metres and an area of around 2,252m2. 5 The land slopes down from east to west, towards Brighton Street about 6 metres along the southern boundary and about 3.5 metres at the midpoint of the land. 6 Seventeen (17) trees, including two (2) Cocos palms that are not controlled under the council's tree preservation order, (TPO) are growing on the land. The other trees are a mix of exotic and endemic Australian native species, including Bangalow palm, Weeping fig, Native daphne, Southern mahogany, Date palm, Sydney Red Gum, Cheese tree. There are two (2) dead Gum trees. There is a River She Oak on the Brighton Street footpath. 7 Erected on the land was an historic corner store comprising a supermarket, mixed business and residential. This building was extended in the 1980's but was recently destroyed by fire and now the land is vacant. 8 The subject land is located at the northern edge of the existing business and commercial centre fronting Brighton Street. It is near the public wharf and is considered by some residents and the council to be a 'gateway' to Bundeena and the Royal National Park for those arriving by water. 9 Land adjoining to the south at Nos 22-30 Brighton Street is also found within the same neighbourhood business zone. Erected on that land is a mixed commercial/residential development comprising a supermarket, mixed businesses and residential flats. A development application in respect of this neighbouring land for a new residential/commercial development consisting of four (4) shops, a supermarket, a bottle shop, outdoor seating areas, seven (7) residential flats with basement parking that was under appeal to the Court, (Adrienne Ebsworth v Sutherland Shire Council, Appeal No 11664 of 2005) at the commencement of the hearing has now been discontinued. 10 To the rear and the east is an disused church campsite that is subject to development consent for the demolition of existing buildings and the erection of a community title subdivision of the land into fifteen (15) residential lots and 1 allotment for church purposes. The Land and Environment Court issued consent for this development on 19 April 2005, (The Uniting Church of Australia Property Trust (NSW) v Sutherland Shire Council [2005] NSWLEC 289, Appeal No 11303 of 2005). This development consent includes an envelope constraining the size of future dwellings. 11 Further south is Nos 36-40 Brighton Street. On 16 March 2006, the Court issued consent for a development on that site with a floor space ratio (FSR) of between 0.88:1 and 0.95:1 (Baker Kavanagh v Sutherland Shire Council [2006] NSWLEC118, Appeal No 10082 of 2005). Across Brighton Street to the west is a children's playground, parkland and beach. Residential development extends further westward from the children's playground and parkland. Relevant planning controls Sutherland Shire Local Environmental Plan 2000, (SSLEP2000) 12 The Minister made the SSLEP2000 on 13 December 2000 and on 12 September 2003 amendments were gazetted, [Note: Exhibit 14]. SSLEP2000 was in place when the application was lodged. Under SSLEP2000, as amended, the land is zoned 3(b) Neighbourhood Business, and the proposal is permissible with consent. The objectives of the zone are: (a) Appropriately located land for the provision of small scale retail and business activities that principally aim to serve the day to day needs of the surrounding local community. (b) Business centres with integrated public transport and pedestrian networks. (c) Viable neighbourhood centres supported by appropriate forms of residential development. 13 The land is within a Foreshore Scenic Protection Area, (FSPA) under this planning instrument. 14 Clause 43 of SSLEP2000 states: (1) Except where a maximum height is specified in a development control plan, the maximum height for a building in a business zone is: (a) 7.2 metres to any point on the uppermost ceiling, and (b) 9 metres to the highest point on the roof (2) The consent authority must consider any maximum height specified in any development control plan applying to the land. 15 Height is defined as being measured vertically from the ground level, which is defined as being "the ground surface of a site as it was prior to any cutting filling or grading". 16 Bundeena + Maianbar Development Control Plan (BMDCP) applies to the site. This specifies a height of a "maximum 7.2m to underside of ceiling from natural ground level". It also specifies the maximum a number of storeys. 17 Clause 44 of SSLEP2000 states: (1) Except where a maximum floor space ratio is specified in a development control plan, the maximum floor space ratio for buildings in a business zone is: (a) …. (b) 1:1 in the 3(b) Neighbourhood Business zone. (2) The consent authority must consider any maximum floor space ratio specified in any development control plan applying to the land. 18 The definition of gross floor area (GFA) in cl 5 of the SSLEP2000 states: Gross floor area means the sum of the areas of each floor of the buildings on a site where the area of each floor is taken to be the area within the outer face of the external enclosing walls, excluding any of that area occupied by: (a) lift towers, motor rooms and stairwells within a basement or above the roof level, and (b) car parking needed to meet requirements of the Council, up to 20 square metres per required parking space, and (c) storage areas needed to meet requirements of the Council, and (d) plant rooms, garbage storage areas, switch rooms or the like within a basement. 19 Clause 45 of SSLEP2000 states: What controls apply to residential development in the business zones? (1) Except where a development control plan specifies a maximum amount of residential floor space for a site area, the residential floor space of any buildings on a site area must not exceed 50% of the total gross floor area of the buildings on that site area. (2) The consent authority must consider any maximum amount of residential floor space specified in any development control plan applying to the land. 20 At the time the development application was lodged there was no DCP which specified a floor space ratio (FSR) or a maximum amount of residential floor space for the site. Bundeena and Maianbar Development Control Plan, (BMDCP) 21 The BMDCP was first adopted on 16 March 1998. It was amended on 30 April 2001, and that amendment came into effect on 8 May 2001 (BMDCP2001). A further amended came into effect on 14 December 2004 (BMDCP2004), after the development application the subject of this appeal was lodged. On 21 February 2006 a further amendment came into effect (BMDCP2006). 22 The primary objectives of the BMDCP2001 are: The primary objectives of this plan is to ensure the future of Bundeena and Maianbar as being more ecologically sustainable with an appropriate range of facilities and services, able to meet the varied needs of their communities. Achievement of this overall objective can be reached through recognising the following objectives. Development or change must contribute to an improvement in the overall environmental quality of Bundeena and Maianbar and surrounding environs by: · contributing to an improvement in the social equity in Bundeena and Maianbar by providing appropriate residential and retail environments, contributing to the community facilities, and adding to the vitality and diversity of Bundeena and Maianbar; · improving the overall economic base of Bundeena and Maianbar including opportunities for more jobs; · enhancing the physical character, identity and amenity of the area while respecting the historic and cultural heritages of Bundeena and Maianbar and providing a balanced mix of uses; · creating a supportive environment for local natural elements including natural tree canopy and associated ground covers and understorey landscape; and · ensuring all new development is compatible with the township context by having an appropriate urban design and architecture. 23 Section 05 - Business Centres, includes specific objectives and standards for the Bundeena neighbourhood business centre, including a plan, which provided an indicative building footprint for the site. The objectives and standards are: Objectives a. Diversified and sustainable neighbourhood commercial centres that provide a service to residents and visitors. b. Improved visual appearance of the neighbourhood commercial centres while reflecting the local character, scale and heritage of Bundeena and Maianbar. c. Integrated building design with a sense of arrival and a public domain, taking advantage of vistas and views. d. Improved utilisation of the public domain/footpath area. e. Encouragement of a wide range of commercial activities to sustain the primary needs of the community and of visitors. f. Provision of high quality urban design elements/street furniture. g. Provision of community services within the centre. h. Integrate and upgrade public transport interchanges with movement systems. i. Continuous pedestrian footpaths outside the shopping centre, where crossovers are minimised by the provision of a new rear service road. j. A new service road at the rear of the shopping centre to allow parking and rear loading without multiple footpath crossovers. (deleted in BMDCP2004)

Standards

1. The number of storeys in the Bundeena Neighbourhood Business Centre shall not exceed 2 storeys. (Maximum 7.2 m to underside of ceiling from natural ground level).
2. The residential floor area in the Bundeena 3(b) zone shall not exceed 70% of the total gross floor area of that development.
3. Trees and plantings to be appropriately located along Brighton and Loftus Streets adjacent to the commercial centre to facilitate sense of arrival and a public domain to the commercial centre.
4. Any refurbishment of the existing shops and any proposed development in Bundeena must have appropriate urban design elements such as verandahs, uniform signage, building materials and finishes compatible with the existing character of the corner store. (See Plan 10 opposite and Section 11 Urban Design Elements).
5. At the time of development, sites 96-98 Lofts S, 18/20, 22/30, 32/34, 38/40 and 42/44 Brighton St. (Development sites 1-5). As the service lane will be provided progressively interim arrangements may be necessary for individual properties, including two way access and other temporary arrangements. The service road is to be provided at the time of the development. (deleted in BMDCP2004)
6. A detailed integrated urban design scheme within the public domain to be aligned to the principles of the concept plan opposite. The final plan is to be prepared by Council in liaison with the community and the Bundeena Chamber of Commerce.
7. Advertising structures shall adopt styles, colours and lettering styles as specified in this plan.
8. Suitably landscaped areas to be provided in areas adjacent to commercial development in Maianbar, where appropriate, to facilitate a public domain.
9. Any road works proposed to be implemented that are associated with the Bundeena Shopping Centre are to be the subject of a report to Council and comments from the traffic committee.

24 BMDCP2004 removed the requirement to provide a service lane and slightly amended the building footprint to reflect the demolition of the corner store. The following amendments to the standards and additional standards were added: 1 The number of storeys in the Bundeena Neighbourhood Business Centre shall not exceed 2 storeys. (Maximum 7.2 m to underside of ceiling from natural ground level) and a total of 3 levels as a stepped façade when viewed in elevation. 2. The residential floor area in the Bundeena 3(b) zone shall not exceed 50% of the total gross floor area of that development. 4. Any refurbishment of the existing shops and any proposed development in Bundeena Business Centre must have appropriate urban design elements such as verandahs, uniform signage, building materials and finishes. 5. Building heights to a maximum 2 storeys and setbacks to Brighton Street shall maintain a scale consistent and complementary to adjacent development. Building bulk and scale shall allow for view sharing. The visual impact of development from the waterway, street and open space shall be considered. 6. Development shall include active street frontages to Brighton Street with low scale shopfronts incorporating landscaped terraces. The upper storey shall be setback to reduce the height and bulk impact on the streetscape. 7. Lightweight building materials shall be used. A lightweight appearance can include materials such as timber, glass, corrugated steel, louvres etc. Lightweight architecture is responsive to climate and environment. Building should have minimal cut and fill of the site, include cross-ventilation and good solar access. Building forms should integrated the interior of the building with the environment with features such as verandahs, breezeways and single storey pavilion style elements. 8. Significant vegetation especially large canopy trees shall be preserved. 13 The floor space ratio for development on Bundeena and Maianbar Business Centres is limited to 0.7:1. 14 Development of 98/98 Loftus Street and 18/20 Brighton Street (corner store site) shall: · Maintain a residential character and 7.5m setback to Loftus Street; · Reinforce the subdivision width and facade divisions along Brighton Street in order to break the building form and reduce building bulk; · Recognise the corner location as the gateway to the village and it's connection with the community; · Respect existing views enjoyed by the adjoining residential and commercial development. 25 Standard 14 applies specifically to the site and is therefore of particular relevance. No significant changes of relevance to this appeal were made to BMDCP2006. As BMDCP2006 is the current document we will refer to this in the judgement, unless there are specific provisions in the earlier versions. Car Parking Development Control Plan, (CPDCP) 26 The CPDCP was adopted on 30 April 2001 and came into effect on 8 May 2001. Sutherland Shire Local Environmental Plan 2006, (SSLEP2006) 27 Under the SSLEP2006 that came into effect on 29 November 2006, the land is in 'Neighbourhood Centre', Zone 10 and the proposal would be permissible with consent. 28 The objectives of this zone are: (a) to promote small-scale retail and business activities to serve the day-to-day needs of the surrounding local community, (b) to provide for pedestrian-friendly and safe shopping designed to cater particularly for the needs of all ages and disabilities, and (c) to encourage shop-top housing in association with small business uses.

29 Clause 7 of SSLEP2006 is a savings provision that enables the present application to be considered "…as if this plan had been exhibited under section 66 of the Act but had not been made." 30 Other relevant clauses of the newly gazetted planning instrument, SSLEP2006 include changes to height and FSR. Under cl 33(8)(a)(i) of SSLEP2006 the maximum height on the site is two storeys. 31 The 'Height and Density Controls - Bundeena Village' map which is referenced in cl 35(12)(a) of the SSLEP2006 provides for a maximum floor space ratio of 0.7:1 for the site. 32 The definition of GFA in the dictionary states: gross floor area means the sum of the floor area of each storey of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, excluding: (a) the floor area of lift wells on any level and lift towers, motor rooms and stairwells within a basement or above the roof level, and (b) so much of the floor area of car parking (including vehicular access to that parking), required to meet any requirements of the consent authority, as does not exceed: · a total of 40 square metres in the case of a dwelling house, or · a total of 20 square metres per dwelling in the case of a dual occupancy, or · a total of 20 square metres per parking space in any other case, and (c) storage areas needed to meet requirements of the consent authority, and (d) plant rooms, garbage areas, switch rooms or the like within a basement. 33 The definition is different to that which was exhibited in Draft Sutherland Local Environmental Plan 2003 (DSSLEP2003). The definition of GFA in the dictionary of this plan stated: gross floor area means the sum of the floor area of each storey of the buildings on a site where the area of each floor is taken to be the area within the outer face of external walls, including any attic space with a ceiling height greater than 1400mm, but excluding any of that area occupied by: (a) lift towers, motor rooms and stairwells within a basement or above the roof level, and lift wells on any level, and (b) car parking needed to meet the requirements of the Council, up to 20 square metres per required parking space, including any internal vehicular access to that parking, except for the development of dwelling houses and dual occupancy housing where the following is excluded: · for dwelling houses the area of garages up to a maximum of 40 square metres, · for dual occupancy housing, the area of garages up to a maximum of 20 square metres per dwelling, and (d) storage areas needed to meet requirements of the consent authority, and (e) plant rooms, garbage areas, switch rooms or the like within a basement. 34 The construction of the clause in the draft LEP measures GFA from the outer face of the external walls and excludes internal vehicle access as well as up to 20 square metres of parking space. This differs to the gazetted form of the LEP where GFA is measured from the internal face of the external walls and a maximum of 20square metres is excluded for both access and parking. No explanation was provided in the hearing as to the policy rational for this change, which in larger developments would have significant FSR implications. 35 Under cl 48 of the SSLEP2006 urban design is addressed: 48 Urban design - general The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development: (a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained by the proposed development, (b) the extent to which any proposed buildings are designed and will be constructed to: (i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and (ii) contribute to the desired future character of the locality concerned, (c) the extent to which recognition has been given to the public domain in the design of the proposed development and the extent to which that design will facilitate improvements to the public domain, (d) the extent to which the natural environment will be retained or enhanced by the proposed development, (e) the extent to which the proposed development will respond to the natural landform of the site of the development, (f) the extent to which the proposed development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas, (g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles. 36 Schedule 6 of the SSLEP2006 identifies Nos 96-98 Loftus Street, Bundeena Park Store, corner of Brighton and Loftus Streets-B276, as a heritage item. 37 Clause 54 of the SSLEP2006 establishes provisions for the conservation of heritage items. The parties agreed these provisions were of little relevance as the Bundeena Park Store had been destroyed by fire prior to the gazettal of SSLEP2006. Sutherland Shire Development Control Plan 2006, (SSDCP2006) 38 The council provided a summary of the relevant provisions of the SSDCP2006, which was adopted on 15 May 2006, and it came into force upon the commencement of SSLEP2006, to which it relates, on 29 November 2006. 39 SSDCP2006 has been prepared to provide more detailed provisions with respect to the carrying out of development permissible under SSLEP2006. 40 The council submitted that recent changes to the planning system in NSW have meant that the council must now ensure that there is only one development control plan for any land. Accordingly, SSDCP2006 is a single comprehensive document which brings together all of the existing controls for the land that it applies to. Thus, the provisions, largely unmodified, of BMDCP2006 have been incorporated into SSDCP2006. 41 Map 29 of SSDCP2006 contains the same footprint map for the neighbourhood business as in the BMDCP and restricts the area of land on which development on the land may be sited. State Environmental Planning Policy 65 - Design of Residential Flat Buildings, (SEPP65) 42 SEPP65 contains design principles that are relevant to the residential component of the proposal if the proposal is considered three storeys or more in height. Weight to be given to the planning controls 43 The local environmental plan that applied to the site when the development application was lodged on 14 August 2004 was SSLEP2000. SSLEP2006 was a draft instrument (Draft SSLEP2003) when the application was lodged and when the appeal was initially heard and the Court provided preliminary findings. The parties disagreed as to the weight that should be given to these controls, particularly the FSR control. However, both agreed that the decision of the Court of Appeal in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 provided the correct framework to assess the application. 44 In Terrace Towers Spigelman CJ, in concurring with the judgement of Mason P stated at pp 5-7: 5. Mason P outlines the line of authority in the Land and Environment Court to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its "certainty and imminence". I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft. 6 Notwithstanding "certainty and imminence", a consent authority may, of course, grant consent to a development which does not comply with the draft instrument. Different kinds of planning controls will be entitled to different levels of consideration and of weight in this respect. 7 Where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. 45 In summary, the relevant planning instrument for the purpose of this development application is to be found in SSLEP2000. Despite the savings clause in SSLEP2006, its applicable provisions are matters to be taken into consideration. Such provisions are to be given weight as if they were 'certain and imminent' as SSLEP2006 has now been gazetted. However, the numerical controls in SSLEP2006 are not to be given determinative weight, but approval of the application should not undermine the purpose or the achievement of the planning approach sought through the implementation of these controls. 46 Similarly, the version of BMDCP that was in force when the application was lodged was BMDCP2001, which was subsequently amended in 2004 and 2006. Lloyd J in Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 at para 16 provided guidance on the merit considerations when a new development control plan is adopted after a development application is lodged. 16.The consent authority must take into consideration the provisions of any development control plan (s 79C(1)(a)(iii)). Since an appeal to the Court is by way of rehearing, the appeal must be determined by reference to the facts as they exist when the appeal is heard (Land & Environment Court Act, s 38(3); Sofi v Wollondilly Shire Council (1975) 31 LGRA 416, per Waddell J; Jantz Constructions Pty Ltd v Randwick Municipal Council (1976) 35 LGRA 70, at 72-73 per Glass JA; Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123 at 130 per Mahoney JA). In the circumstances of the present case, however, where the relevant development control plan commenced after the development application had been made, it should not be given determinative weight. That is not to say that the standards and controls in Development Control Plan No 35 should be ignored. They should be taken into consideration. A failure to comply therewith, however, will not necessarily be fatal to the application provided that it is otherwise satisfactory. Although the previous development control plan (Development Control Plan No 20) is now repealed, its controls may also be taken into consideration as indicative of standards and controls, which applied when the development application was made. 47 In the circumstances of the present case, the parties generally agreed that the different versions of BMDCP should be taken into consideration. Mr McEwen emphasised the importance of BMDCP2004 (and subsequently BMDCP2006), which came into force shortly after the development application was lodged but recognised that BMDCP2001 should also be considered. He submitted that there has been significant time and a number of versions of the development application plans, which could have addressed the new controls. In his submission BMDCP2006 met the principles relevant to consideration of development control plans by McClellan CJ in Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472 (3 August 2004) and should be given considerable weight, particularly as these provisions had now been incorporated into SSDCP 2006. 48 Mr Bingham, recognised that the amendments to BMDCP2001 were relevant considerations but that weight should be given to the version of the development control plan in place when the application was lodged (BMDCP2001). Further he submitted that the amendments to the development control plan had been made to "thwart the development" and therefore did satisfy the principles in Stockland. 49 As the BMDCP2006 controls for FSR and residential/commercial mix are required to be considered by cl 44(2) of SSLEP2000 we find that these are to be given significant weight. The other amendments to BMDCP2001 by BMDCP2004 and BMDCP2006, expand the standards to be considered, but do not change the objectives for the Bundeena Business Centre in any material way. We have considered the different versions of BMDCP but not given determinative weight to these controls. Rather we have assessed how the proposal meets the objectives in BMDCP2001 for Bundeena Business Centre, which remain essentially the same in its later versions. The proposal and its history 50 Development application No 04/1213, originally for a new commercial/residential building comprising 4 shops and 11 residential units was lodged with the council on 16 August 2004. The proposal was amended during the assessment process and before the hearing. 51 At the commencement of the hearing the plans before the Court proposed two (2) shops and nine (9) residential units [Note: Version F plans in Exhibit A]. During the hearing the proposal was further amended (Versions G, H and I plans). The application and its amendments were notified on a number of occasions. A significant number of objections were received. 52 The proposal is described in the statement of environmental effects, dated 28 April 2006 and in the, now further amended plans DA - 1101, DA - 1102, DA - 1103, DA - 1104, DA - 1105, DA - 1201, DA 1202, DA - 1301, DA - 1302, DA -1303, DA - 1711, Issue I, dated 23 November 2006 prepared by Candalepas Associates and Landscape Concept Plan LCP.01.C, dated 23 November 2006 by Narelle Sonter of Botanica, [Note: Version I plans in Exhibits P and Q]. 53 The proposal for which consent is sought is shown in the Version I plans, and would now comprise a new mixed commercial and residential development with two (2) commercial tenancies, a cafe, eight (8) new dwellings [Unit 3 deleted] and parking for 23 cars. Each level contains: · Basement - 20 car parking spaces, storage and garbage areas, a car wash and a loading area. · Ground floor - 2 commercial tenancies, café, garbage room, parking for 3 vehicles and outdoor dining terraces. · Level 1 - 4 x 2 bedroom units and the lower floor of a 4-bedroom unit. · Level 2 - 3 x 2 bedroom units and the upper floor of a 4-bedroom unit. Notification 54 On 21 September 2004 in accordance with the council's development control plan for the notification of development applications, owners and occupiers of nearby properties were notified of the development application and invited to submit written comments by 5 October 2004. The council received many submissions opposing the development proposal with a few supporting it. 55 On 5 January 2006 the council notified previous objectors of the amended development application and invited written comment and this notification period expired on 24 January 2006. A further 145 submissions were received by the council. 56 On 10 May 2006 the council advised previous objectors of the further amended development application and invited written comment and the notification period expired on 30 May 2006. Many submissions were received, including some that were in favour of the proposed development. 57 The amendments to the application made during the hearing were renotified and the council received further objections. 58 The concerns raised to each of these notification periods can be summarised as: · Size, density and height is not appropriate to the environment and village character of Bundeena. · Flats are not compatible with other housing in Bundeena. · Entry/exit to the carpark will be a hazard to pedestrians. · Amount of excavated material will result in an inordinate number of heavy trucks on the local road system with consequent traffic hazards. · Construction noise and dust will interfere with quiet tranquillity of Bundeena. · Design does not take into account the wishes of the community. · Loss of views from adjoining properties. · Shadowing of neighbouring properties. · Lack of transition between commercial and residential zones. · The heritage value of the site should not be lost. · The buildings are 'box-like' and foreign to the area. · The plan exceeds the intended building footprint in the BMDCP. · The development does not meet the zone objectives. · The development does not enhance the overall environmental quality of the village. · The residential floor space exceeds 50% of the gross floor area (BMDCP requirement). The council's decision 59 On 14 October 2004, the council's Architectural Review Advisory Panel (ARAP) reviewed the development proposal and advised the building was not appropriate for Bundeena. 60 On 27 October 2004, the council staff held an information session with around 30 persons who had lodged a written objection and explained the development assessment process and answered questions about the development application. 61 On 11 February 2005, the ARAP reviewed the development proposal and recommended substantial changes be made because the design was not considered to be appropriate for Bundeena. 62 On 2 March 2005, the council's Independent Hearing and Advisory Panel (IHAP) considered the development application and recommended it be refused for the following reasons:

1. Pursuant to the provisions of s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, it is considered that the proposed development is inconsistent with the desired future character that has been expressed for this locality in the BMDCP. In that regard the objectives of the BMDCP in respect of the business centre include in paragraph (b) 'improved visual appearance of the neighbourhood commercial centres while reflecting the local character, scale and heritage of Bundeena'. In that regard the building does not reflect the local character or scale of the existing neighbourhood commercial centre at Bundeena in terms of its density or built form.
2. Pursuant to the provisions of s 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, it is considered that the proposed development is inconsistent with Sutherland Shire Local Environmental Plan 2000 with respect to Clause 43(1)(a) and (b) - Maximum height for a building in a Business Zone as specified in the Bundeena and Maianbar Development Control Plan.
3. Pursuant to the provisions of s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, it is considered that the proposed development is inconsistent with the provisions of the Bundeena and Maianbar Development Control Plan with respect to maximum height and number of storeys.
4. Pursuant to the provisions of s 79C(1)(b) of the Environmental Planning and Assessment Act 1979, it is considered that the proposed development would have an unacceptable impact on the views and visual amenity of the residential premises at 94 Loftus Street. 63 On 21 March 2005 the council considered the report from IHAP and resolved to defer determination and to request the applicant to address the concerns of IHAP and the residents. 64 On 25 July 2005 the applicant lodged further amended plans. 65 On 29 December 2005 the applicant lodged further amended plans with the driveway entrance off Brighton Street rather than Loftus Street. 66 On 8 March 2006, Mr Dixon, the Court-appointed expert in architecture and urban design, reviewed the architectural plans and provided a response to the statement of issues in the proceedings. 67 On 28 April 2006 the applicant lodged another set of amended plans in response to the comments by the Court-appointed expert. 68 When the appeal was filed the council had not finally determined the application and hence it is a 'deemed refusal'. The hearing 69 The appeal was filed on 22 August 2005. 70 On 3 August 2006, the first day of the hearing, the court heard evidence on behalf of the respondent council from around eighteen residents. In response to the concerns of the residents, issues raised by the Court-appointed expert, the site inspection and an examination of the planning controls the Court provided preliminary findings on 4 August 2006. These are: On the basis of written evidence, resident objections and the view of the site undertaken on 3 August 2006 we have concluded that the application in its current form would not be approved. However, we consider the proposal to have considerable merit and invite the applicant to make the following changes: · Delete Unit 3 to provide open space and building line more consistent with DCP and to better achieve view sharing from the first floor units in 22 - 30 Brighton Street. · Remove or reduce levels of open space on the corner of Brighton and Loftus Streets to provide better transition between the street and the proposed cafe and to a more usable open space on the corner. · Units 6 and 9 to be setback from the boundary to provide opportunity for landscaping and articulated to reduce impact on future adjoining development. The following comments are made in relation to the issues between the parties. · The 0.7:1 FSR in the 2006 version of the DCP is a matter to be taken into account but more weight is to be given to the 1:1 FSR in Sutherland LEP2000. The proposed FSR will reduce with the deletion of Unit 3. · The extent of excavation is reasonable given that basement parking is envisaged for a development of this nature and the extent is consistent with the FSR proposed. · The ratio of commercial to residential will increase with the deletion of Unit 3. · Investigate changes to Bedroom 4 of Unit 1 to improve views from the bedroom of 94 Loftus Street. However, given the use of the room and the extent of views retained this is not a determinative issue. The proposal achieves appropriate view sharing from 94 Loftus Street. · Accept that the three-storey part of the proposal is consistent with DCP, however, the stepping should be accentuated and landscaping introduced to minimise three-storey appearance from Brighton Street. 71 The hearing was adjourned for the amended plans (Version H), which were further notified. On 22 November 2006 the Court again visited the site and heard resident evidence. 72 Mr N R Dickson, the Court-appointed expert in architecture and urban design, and Mr G Pindar, the court-appointed traffic expert, provided expert evidence. Mr P K Brooker, architect, gave evidence on behalf of the council. For the applicant, Mr A Candalepas, architect for the proposal; and Mr J Kass, town planner, also gave evidence. 73 Mr A Tzannes, architect, provided a Statement of Evidence on behalf of the applicant. The landscape experts, Ms N Sonter, for the applicant and Mr P Castor, for the council, provided statements of evidence and a joint statement. These experts and Mr Tzannes were not required for cross-examination. 74 Ms D M Laidlaw, town planner, commissioned by the new owners of Nos 22 - 30 Brighton Street, Bundeena, gave evidence on behalf of the council. She was satisfied that the amendments in the Version H plans had, by the deletion of Unit 3, improved the outlook from her client's property and mitigated view loss. However, she had concerns for the relationship of her client's property to the open space in the south-western corner of the land and adverse amenity impacts due to privacy and noise. Her concerns were largely addressed in the Version I plans. 75 Following the second site inspection, all the experts except for Mr Castor, held a joint conference and examined the: · loading and service facility and arrangement; · open space and basement driveway location and width at south-western corner of the site; · proposed retaining wall located on Loftus Street frontage.

76 They were generally in agreement and their recommendations resulted in the south-western open space being redesigned as shown in the Version I plans. The objectors concerns 77 The Court heard from local residents on-site on two occasions being 3 August 2006 and 22 November 2006, [Note: Exhibits 24 and 25 respectively]. On the second occasion the Court was interested to hear from residents about the amendments that had been made to the plans in August 2006. Many residents gave evidence on both occasion and the amendments did not alleviate their concerns. The following is a summary: 78 Mr J Tarrant, of No 12 Loftus Street, Bundeena, who manages the Manna Café that abuts the subject land at Nos 22-30 Brighton Street, is a member of the Bundeena Progress Association and was concerned for the long-term impacts of the proposal that he considered it would: · be not in keeping with the desired future character of Bundeena; · be not viable as there has been a downturn in commerce in Bundeena and the economic viability of commercial spaces is problematical; · impact on adjoining properties due to the extent of excavation; and · not comply with the Bundeena DCP; and should be setback 6m from the eastern boundary. 79 Dr T Clarke who has lived in Bundeena for many years stated there is: · need to consider what is viable and appropriate development in Bundeena and it would be an abuse to build residential flats; · no need for a predominantly residential development; · room for view sharing; · need to apply to the whole of Bundeena an environmentally sensitive categorisation; · need to respect the planning controls to better define the village character; and · need to retain the character of Bundeena that should not be changed because of the loss of the corner store by arson. 80 Mrs E Kelly who lives with her husband at No 94 Loftus Street, Bundeena in a house that abuts the subject land to the east, objected to: · the proposed 1.5 metre setback of the proposal against her side boundary and sought a 6.5 metre setback as was proposed for a development on the IGA store land [further to the south at Nos 22-30 Brighton Street] as a result the overshadowing on our property will be much worse and "…our quality of life will be effected"; · the enclosure of the house at No 94 Loftus Street would be claustrophobic; · the view loss from the bedroom likely to be occasioned by the erection of the proposal would be severe and there were previously 180 degree views over the roof of the old corner store. 81 Mr H Stamateris who lives at Nos 19-21 Bundeena Drive, Bundeena, was in support of the proposal, said "…we need a first class development in Bundeena. I hope this proposal fills that void and I hope that we get a proposal worthy of Bundeena. We need more shops, more areas to gather, more places to eat." "I live next door to a B & B [bed and breakfast] and luckily there are water taxis and some of the visitors can go to Cronulla for dinner but there is a need for the B&B's [for] food provision." 82 Ms K Harrigan who lives at No 10 Woodfield Avenue, Bundeena, and is a welfare officer for the RSL club, said she came to Bundeena in 1966 and with her husband ran the corner store from 1967 to 1972. She said, "…she is against the development in that it takes away the rights of the people including the [Kellys]… and this proposal will have a terrible impact on them." 83 Mr H Riches who lives at No 28 Baker Street, Bundeena, was concerned on the part of the Kellys, for any likely reflection of sunlight off the roof of the proposal and asked the Court to consider appropriate materials that would reduce this impact. 84 Mr R Simpson who lives at No 8 Kerr Avenue, Bundeena, said he was "…basically… in favour of a development in Bundeena but these plans don't address the community concerns in terms of a meeting place and indigenous style of architecture and conservation of places". 85 Ms S Matthews who has lived at No 10 Baker Street, Bundeena, for 5 years said she concerned for [pedestrian/traffic conflict] and the safety of children that would pass by the proposal. She was also concerned for the extent of excavation and the impacts of the proposal during the construction period. Another concern was that as aboriginal relics were found on the Uniting Church site to the east of the land when excavation occurs "…I want that taken into account". She considered: · this is the gateway to the National Park; · the proposed three-storey bulk will block views from the east; · after the Toaster was built, [at Circular Quay] many visitors and friends of mine came out here and said how could they do this, how could they do that to Sydney. The same mistake should not be made here. · the RSL just tendered for a new contract for a restaurant and the bowling club has a new restaurant. In the winter, this place is dead and these restaurants need to make a living all year round and more businesses will only make it tougher for the existing businesses.

86 Ms O Tsetong who lives at No 6 Wonga Road, Yowie Bay, the new owner of Nos 22-30 Brighton Street, Bundeena, referring to a development application for her site said "I know there are proposals for our new place but we're keeping the place as it is and we are not changing it because what we want to do is consider the other people in the community. We are a family and this will be a family concern". 87 Ms J Northway, an artist and a carer who lives at No 72 Scarborough Street, Bundeena, stated, "…I too want a first class development but in reality this is a residential development which is not for tourists and not a first class development". She was concerned to protect: · the social, cultural and heritage qualities of the area; · Bundeena needs low-impact development that complies with the DCP; · the environment, as the site is 'nestled' into a National Park; · the low-key shopping centre and this would not be possible with a FSR for the proposal greater than 0.7:1; · the character of Bundeena and the proposal will have a massive visual and social impact; · a community gathering space that is spoken of [by the applicant] and is not really achieved; and · the corner store that has been the hub of public meetings and social occasions in the past.

88 She was also concerned that the 'bunker style' flats won't help the serious issues regarding drug and alcoholism, and parents and residents are pleading with the Court not to let in development that will ruin people's lives; 89 Ms J Stephenson who lives at No 86 Brighton Street, Bundeena, on the same side of the street as the proposal sought to ensure that the DCP was respected in any near development. She said, "…the footprint in the DCP is all we have got left after the corner store was burnt down by arson". "We expected that this corner store would stay low scale. This site has been historically used for village markets and dancing and lots of things and this area has been used for the community". 90 She added, "…basically, this proposal is too far dug into the ground. There will be huge excavation something like 5,000m3, which seems ridiculous [in an] environmentally sensitive zone". 91 Mr R Sainz who lives at No 36 Loftus Street, Bundeena, said, "…if the corner park store is gone and this proposal is approved, there is no guarantee of a view corridor". 92 Ms C Seidel who lives at No 10 Graham Street, Bundeena, said, "…if the proposed excavation went ahead, … filthy water [will runoff] which will end up in our bay". 93 Mr A Platt who lives at No 23 Loftus Street, Bundeena, said, "…the Court should enquire of the developers whether they have considered our quality of life in the village". 94 Ms M Scully who lives at No 70 Brighton Street, Bundeena, said, "I can tell you firsthand that business in Bundeena is a very seasonable affair". 95 Mr W Snow who lives at No 11 Graham Street, Bundeena, was concerned "…about the time this development would take to build". 96 Mr Van Ma, the new co-owner of the building next door at Nos 22-30 Brighton Street, Bundeena, sought "…to protect views from our units". 97 Mr and Mrs J and C Paige who live at No 15 Loftus Street, Bundeena, supported the proposal. They wrote, "…the space around the corner store was never used and I could count on one hand the times it was used before for public activities". 98 On 22 November 2006 most of the residents gave evidence and raised the same concerns and some other residents gave evidence including: 99 Mr N deNett who lives at No 74 Scarborough Street, Bundeena, and is secretary of the Bundeena Progress Association, was mainly concerned about what he perceived as the excessive bulk, size and scale of the proposed building. He gave evidence of the history of the planning controls for the land. 100 Dr J Leyendekkers, scientist, of No 153 Gannons Road, Carringbah, gave evidence in Court on 23 November 2006. She stated that she has been a visitor to Bundeena and a resident activist in the area for a number of years. Her main concerns were that the development was out of character with the area, being essentially a residential flat building. She stated that the 50% limit on residential to commercial in the controls should be maintained. The issues 101 On 9 October 2006 the council filed a second further amended statement of issues [Note: Exhibit 17]. 1. The proposal is out of character with the intended character of the Bundeena commercial centre as set out in the Bundeena + Maianbar Development Control Plan (the DCP), prepared pursuant to Sutherland Shire LEP 2000, and the Bundeena + Maianbar Development Control Plan as amended on 6 February 2006 and Draft Sutherland Shire Local Environmental Plan 2004 (the Draft Plan). Particulars: (a) The site is adjacent to a vast area of natural beauty comprising a beach, creek, headland and parklands. However the proposal, by virtue of its design and scale, will strike a discordant element in the streetscape as it is too high and therefore overpowers the site and does not satisfy objectives b, c, d in Section 05 Business Centres. (b) The site is the most prominent site in the Bundeena Commercial Centre, being the first site seen when arriving by ferry. It has a focal foreshore position in relation to the wharf and the water and provides a "sense of arrival" and a "sense of place". It has social significance, heritage significance and it is a major contribution to the landscape character of Bundeena. Notwithstanding this, the proposal does not comply with the objectives a, b, c, and d and Guidelines 1 and 2 in Section 02 History and Heritage of the DCP. (c) The proposal does not contribute to an improvement in the overall environmental quality of Bundeena as it does not meet the Primary Objectives of the DCP, set out on page 3 of the document, nor objectives (b) and (g) in clause 8.1(2) of the Draft Plan. (d) The proposal is not "designed to be "light footed" ... with minimum excavation, maximum tree retention and enhancement and blending into the natural landscape" as stated on page 05 of the DCP, as it relies on extensive excavation, cut and fill, and removes all of the trees on the site. (e) The proposal ignores Plan 9 on page 20, Section 05 of the DCP which contains an indicative footprint for future development on this site, and appropriate built form, reflecting the old corner store's historical character with continuous verandas and enabling almost all major significant landscape vegetation to be preserved. (f) The proposal ignores Standard 6, Section 05 of the DCP, which requires the upper storey along the Brighton Street frontage to be setback to reduce the height and bulk impact on the streetscape. (g) Two of the purposes of the DCP, at page 3, are to provide detailed objectives, standards and actions that enhance the unique local character and sense of place and maintain and regenerate the indigenous tree canopy. The proposal fails to meet these requirements and would amount to a significant change to the style of building inconsistent with the present and desired future character of the area. (h) The proposed development does not comply with Standards 2, 4 and 9 in section O5. Business Centres of the DCP. (i) The Bundeena + Maianbar Environmental Study, at page 3 under the heading of "Economy + Built Environment", lists some consistent forms in the Bundeena shopping centre that can be reinforced, ie · Maximum 2 storeys but predominantly single storey, · Verandahs rather than cantilevered awnings, · Free standing, small-scale appearance. The proposed development has not sought to reinforce these consistent forms identified both in the Environmental Study and the DCP. (j) Section 05. "Business Centres" in the DCP, at page 19, states: It is clear from a community survey carried out in April 1999, the community does not support monolithic style developments, but supports a relaxed, low scale, commercial centre, which fits in and reflects the local townscape character. Any new design for the commercial centre must consider how to integrate the surrounding historical, natural and commercial elements (eg the wharf, the headland, the beach, the park, Bundeena House and the corner store), together with pedestrian and vehicular links into an economically sustainable centre. The proposed development will not result in a relaxed, low scale commercial centre, which fits in and reflects the local townscape character. (k) The proposal is inconsistent with the following standards of the Bundeena + Maianbar DCP as amended on 6 February 2006: (i) Point 14 of these standards requires that development of the corner store site shall: "Respect existing views enjoyed by the adjoining residential and commercial development". The proposed southwestern terrace adversely impacts upon existing views enjoyed by the adjoining commercial development at 22-30 Brighton Street. ii. Point 7 of the standards requires that in the development of the subject premises: "Lightweight building material shall be used. A lightweight appearance can include materials such as timber, glass, corrugated steel, louvers, etc. Lightweight architecture is responsive to climate and environment. Buildings should have minimal cut and fill of the site, include cross-ventilation and good solar access. Building forms should integrate the interior of the building with the environment with features such as verandahs, breezeways and single storey pavilion style elements". (l) Objective (c) of the 3(b) Neighbourhood Business zone in clause 47 of Sutherland Shire Local Environmental Plan 2000 states: Viable neighbourhood centres supported by appropriate forms of residential development". The number, size and form of the residential units result in a built form that departs significantly from the desired future character of the Bundeena commercial centre as outlined in the various clauses of the Bundeena + Maianbar DCP, referred to above. Rather than 'support' the neighbourhood centre the residential development will dominate the site to the detriment of the 'village character', given that the residential floor space is around four times the size of the commercial floor space when clause 45(1) of the LEP now limits the residential floorspace to 50% of the total floor space. 2. The proposal does not comply with the height controls in Sutherland Shire Local Environmental Plan 2000 (the LEP), the Draft Plan or in the DCP and it adversely impacts on prevailing views. Particulars: (a) Ceiling heights in Units 1, 8 and 9 exceed the 7.2 metre maximum in clause 43(1)(a) of the LEP and standard 1, section O5 Business Centres of the DCP. (b) The sub-floor height at the eastern end of unit 6 exceeds 1.5 metres to the top of the floor above and therefore falls within the definition of a storey under the definition contained in clause 5 of SSLEP 2000. As a result the building containing units 6 and 9 is a three-storey building. Section O5 Business Centres of the DCP restricts the number of storeys in the Bundeena Neighbourhood Business Centre to a maximum of 2 stories. (c) The proposal also impacts on 94 Loftus Street and the future dwellings on Lots 9 and 10 on the Uniting Church site in terms of view loss contrary to clause 8.4(d) of the Draft Plan, which requires the minimisation of impacts of new developments on adjoining properties, particularly in terms of visual intrusion. (d) The proposal does not provide a satisfactory transition to the adjoining residential development in terms of building massing, height and scale and fails to comply with objectives (a) and (c) in clause 8.4(2). 3. Deleted. 4. The proposal does not achieve an acceptable interface with the adjoining residential zone, nor with the adjoining commercial development at 22-30 Brighton Street. Particulars: a. Units 1, 7 and 9 are too close to the rear boundary with insufficient separation between the buildings and the property behind. Further, unit 9 is located within a three-storey building. b. This is a circumstance where the maximum floor space yields and development potential may not be attainable due to the planning principle laid down in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 regarding developments at zoning interfaces. The proposal does not provide a satisfactory transition to the adjoining mixed residential commercial development at 22-30 Brighton Street in that: · The south western terrace results in loss of views to the north from the commercial premises. · The siting of the carpark entry and southern carpark wall in close proximity to the outdoor areas of the adjoining commercial development on a 1.75m side boundary setback adversely impacts on the amenity of these areas. · The height of the southwestern terrace and its proximity to the adjoining first floor residential development adversely impacts upon the visual and acoustic privacy of these residences. · The height of the southern terrace of unit 9, and of the stairs to units 6 and 9, and their proximity to the adjoining first floor residential development adversely impacts upon the privacy of the adjoining first floor residential units. 5. SEPP 65 Issues Note. SEPP 65 is now statutory for this development as it is 3 storeys in height. As the design principles of SEPP 65 are recognised as being reasonable indicators of good design the following comments reflect the response this design has for the site and the locality in this regard. The proposal is inconsistent with the following design quality principles of SEPP 65: Principle No.1 Context Due to a disregard of the qualities and features of the site the development does not recognise the uniqueness of the locality and consequently fails to respond appropriately to the site's constraints resulting in a development at conflict within its context. The building form and materials used are not in keeping with the village character of Bundeena, the two-storey nature of the other commercial buildings, nor with the heritage nature of other significant buildings such as Bundeena House. Principle No.2 Scale The proposed bulk and height of the development does not achieve the scale identified for the future character of the area due to its `compactness' of building forms, extensive excavation and visual dominance, particularly as it will appear higher than a two storey building from street level because of the way it is stepped up the slope of the site. Principle No.4 Density The proposal provides for individual residential accommodation in surplus to the space provided for other retail / commercial uses creating a higher density development within a predominantly low-density locality and adjacent to low-density residential zones. This results in a development that is foreign to the existing surrounding development due to its dominant visual mass. Principle No.6 Landscape The removal of the significant existing trees is unreasonable and results in a degradation of the particular environmental character of the area. Principle No.7 Amenity Due to a lack of reasonable separation, together with a poor configuration of spaces, there is a lack of visual privacy, reasonable quality private outdoor space, outlook and solar access especially to units 6 and 9. Due to the elevated public deck area over the driveway unacceptable impacts upon the privacy of adjoining site and the development unit areas have resulted. Principle No.8 Safety and Security There are many concealed areas screened from any overlooking or passive surveillance especially about the southern boundary resulting in significant concerns for the safety and security of future residents and users. Principle No.10 Aesthetics The design does not provide an appropriate composition of building elements, textures, materials and colours that reflects the use, internal design and structure of the development that responds in particular to the existing and desired future environment, context and character of the area. 6. Internal Amenity of Units 6 and 9 The proposal does not provide for an adequate level of internal amenity to units 6 and 9 in that: The living and outdoor areas of units 6 and 9 do not receive adequate solar access in mid winter. The extent of privacy screening to the unit 6 and 9 terraces results in enclosed, quality outdoor spaces with limited outlook. 7. Parking The proposal does not comply with the requirements for loading areas in Clause 9 (a), (b), (c) and (d) of the Development Control Plan for Carparking. Particulars: The Applicant proposes a Loading Dock within the basement car parking area of the development. The maximum useable dimensions of this loading area are 8m x 3.4m. At 8.8m no access is available to the commercial garbage area. These dimensions can only accommodate the Small Rigid Vehicle (SRV) as defined in Australian Standard AS2890.2-2002. This is the smallest class of delivery vehicle defined within the Standard and represents light trucks. The Standard states that the SRV design vehicle should be adopted where the service area is to be used by small commercial vehicles only. The Applicant proposes two large tenancies as part of the development. One of these tenancies would be suitable for a restaurant and is shown with a substantial terrace area containing tables. It can be reasonably expected due to the size of the commercial areas and their remote location from other commercial centres within the Shire, that deliveries would be undertaken by vehicles classed under AS2890.2-2002 as Medium Rigid Vehicles (MRV). The MRV is defined in the Standard as one that ".. represents the common service truck...". Previous site views have also revealed that other commercial facilities in the Bundeena commercial centre receive deliveries by Heavy Rigid Vehicles and it can be reasonably anticipated that deliveries by a similar Heavy Rigid Vehicle shall take place at the proposed development. A Heavy Rigid Vehicle has dimensional requirements under AS2890.2 of 10.7m for the 1989 Standard and 12.5m under the current Standard. The location of the loading dock in the basement area increases the minimum height of the southern terrace and contributes to the adverse impacts on the adjoining development at 22-30 Brighton Street outlined in issue 6. 8. Deleted. 9. Deleted. 10. Deleted. 11. Deleted. 12. Deleted. 13. Deleted. 14. The proposal provides insufficient on-site car parking for the residential and commercial elements of the development. Particulars: To be consistent with the other two concurrent development applications for mixed commercial/residential development for properties nearby or adjacent in Brighton Street Bundeena each of the 7 two-bedroom units requires 1.2 parking spaces. The four-bedroom unit will require 2 parking spaces. On this basis 11 parking spaces are required for the residential units together with two spaces for visitors; a total of 13 spaces for the residential element. For the commercial element of 384 m2 the Car Parking DCP requires one parking space per 30m2 resulting in a requirement for 13 commercial spaces. In addition, there are two outdoor terraces adjacent to a retail tenancies designed for accommodation of diners with a combined area of 190 square metres. These require a further 6 car parking spaces. The total parking space requirement for the development is 31 spaces but only 23 spaces are provided. 15. Inadequacies in the information provided. Particulars: i) The plans do not satisfy the requirements of the Land and Environment Court Practice Directions Number 17, Schedule B - Requirements for Plans in that the all rooms and spaces are not dimensioned, the heights on the landings on the stairs to units 6 and 9 are not indicated and the height of the privacy screen on the stairs to unit 9 on the northern elevation is not indicated. 16. The design of the development is unsatisfactory having regard to the following: i) Garbage Areas Particulars: The putrescible and co-mingled waste storage areas for the residential elements of the development are located at the rear of the commercial tenancies. The commercial putrescible and co-mingled waste is located in the basement carpark. Council's Waste Management Specification requires that waste is to be placed at the collection point. In this case the collection point has been determined as the kerb and gutter in Brighton Street as access and manoeuvring of Council's waste disposal vehicles to and within the basement car park is not available. To enable collection it shall be necessary to move all of the residential waste through the foyer and main entry areas of the residential component of the development to reach the kerb. Should it prove feasible to remove the residential garbage from the basement carpark it is still necessary to move the garbage from 6 storage areas to the basement via the residential lobby/foyer and in the resident's lift. The movement of these waste materials through the main access to the residential component of the development is considered to be a poor design outcome. As indicated, the storage area for the commercial putrescible and co-mingled waste is located in the basement carpark. Access to this area is only available via the resident's lobby/foyer and the resident's lift. The movement of commercial putrescible waste through the resident's lobby and lift is a poor design outcome. ii) Servicing of the Grease Trap Particulars: The Applicant proposes a restaurant as the retail tenancy that shall incorporate a commercial kitchen. This kitchen shall require the provision of a grease trap. No details have been provided as to the method/s by which this grease trap is to be serviced or its location. The Applicant is invited to provide further details demonstrating how the grease trap is to be serviced. Servicing of the grease trap across the footpath area of the Brighton Street or Loftus Street road reserve shall not be permitted. 17. There is a need for an archaeological survey to be done on the site before any consent is granted, given the location of the Aboriginal midden on the adjoining Uniting Church site. 18. Landscaping - the response to the existing landscape vegetation is extremely poor. Particulars: (a) The proposed landscaping does not achieve the desired landscape character of the site, given the site's prominence in the existing streetscape. 19. The height of the retaining wall which reaches 2.4 metres along the Loftus Street frontage and in the vicinity of the seating 'grotto' does not allow for an appropriate transition from the semi public to private areas and is out of character with the streetscape. 20. There is poor amenity to the proposed commercial spaces. Particulars: The limited ceiling height and extensive depth of the lower ground level retail / commercial areas create poor amenity for the proper function and purpose of these spaces. The extensively excavated area results in poor amenity for solar access, natural ventilation and unreasonable presentation to the important corner address element of the site. 21. The amenity of the proposed units and southern commercial space is not appropriate in terms of levels and accessibility. Particulars: The extent of modification to the units required to achieve the requirements for adaptable use has not been demonstrated. There is no accessible path of travel to the southern commercial terrace is accessed by a narrow walkway. 22. There is a poor relationship between the southern commercial tenancy and the street, resulting from the height of the terrace above the street and the lack of direct access from Brighton Street. 23. There is a poor relationship between the southern commercial tenancy and the basement facilities in that the loading dock is located at the far end of the basement, and no direct access from the loading dock to the commercial tenancy within the site. 24. Circumstances of the case and the public interest and issues raised by objectors: (a) Submissions opposing a variation to the commercial/residential mix on the site: · The proposed 80% residential flat development on the site is unacceptable and will destroy the unique village character of Bundeena. · The plan is for a predominantly residential flat development, located on what is arguably the prime commercial site in Bundeena and the entry point for visitors coming by ferry. The residents are not primarily concerned with reducing the number of shops on this site and do not accept that an increase in flats was preferable. The argument has consistently been that there should not be too many shops in the centre, not that the commercial value of this site should be reduced to a residential flat development. · Open space is fragmented and landscaping cannot hide the scale of the development. · The proposal does not achieve a balanced development with a reasonable number of shops and residences as well as useful private open space. b) Submissions supporting a variation to the commercial/residential mix · Support for the decision regarding 80% flats and 20% shops in the interest of keeping as much open space around any development as possible. · Upon redevelopment of the commercial area of Bundeena there will be an oversupply of commercial space that would threaten the viability of the existing businesses in Bundeena. Therefore rather than maintain a 50/50 residential/commercial split it would make more sense to downsize the proposed corner store development to make way for more open space, a community space, and less need for excavation, thus giving encouragement to present business owners and landlords to invest in upgrading their premises. c. Impact on 94 Loftus Street · Insufficient setback along the boundaries with no. 94 Loftus Street. A setback of 6.5 metres is requested along the south and western sides of no. 94 Loftus street, as was proposed by the Court Appointed Expert for the adjoining IGA store, to reduce the overshadowing and privacy impacts and the imposition of a claustrophobic feel on no. 94 Loftus Street. · The proposed view loss from no. 94 Loftus Street is described as severe. Previously there was a 180-degree vista to Horderns Beach over the roof of the old corner store. d. Impact on 22-30 Brighton Street Bundeena · The proposed 8.5m wide driveway and elevated terrace adjacent to the open seating area on the northern side of 22-30 Brighton Street, impacts significantly on the established open space at 22-30 Brighton Street. The adverse impact results from the presentation of the proposed development to no. 22-30 Brighton Street and vehicular impacts. · The proposed terrace does not create an effective plaza/open space within the development due to the lack of integration with either the adjoining property at 22-30 Brighton Street, the public footpath or the at grade open space within the proposed development itself. · The proposed terrace will lead to noise and view loss impacts to the residential units at the first floor of 22-30 Brighton Street, impacts which could be avoided by a truly 'integrated' open space. · Incorrect and/or misleading photomontages prepared to illustrate impact on 22-30 Brighton Street, which underestimate the extent of the adverse impact on the adjoining property. · The current driveway design is highly unsympathetic both in the context of the DCP objectives and directly upon No. 22-30 Brighton Street. There is capacity for the relocation of the driveway further north along Brighton Street, a reduction in its width and an increase in the driveway gradient, which would allow for the applicant to design around some of the adverse impacts arising from the driveway. · The height of the privacy screen on the southern side of the unit 9 terrace and of the adjoining stairwell is of insufficient height to prevent overlooking into a north facing living room in 22-30 Brighton Street. This matter could be addressed through a condition of consent requiring the extension of the screen height to a level of RL 17.8. · DA1605 contains a notation 'this line denotes the extent of the built form foreshadowed in the Bundeena and Maianbar DCP'. This notation carries with it the presumption that view impact on 22-30 Brighton Street would be considered irrelevant for a development consistent with the DCP footprint, which is an illogical proposition. There would still be a need to consider and address view impact for a development, which was consistent with the DCP footprint. · Inaccuracies exist in the view lines depicted in views 5 and 6 on DA1605, and in view 1 on DA 1604B. As a result the analysis overstates the impact of the DCP footprint. In addition none of the views indicate the height of the balustrade around the terrace or any furniture/weather protection that would be necessary for the terrace to function as a useful public space. (e) Assessment Context - the DCP Footprint · The DCP footprint is not considered to lack justification or basis. The DCP is founded on an understanding of the social as well as physical development of Bundeena, including feedback from community consultation, an understanding of the particular importance of the subject site and even absent the original corner store, the potential that exists to restore the role in the community that was so closely associated with it. The applicant has not demonstrated why those DCP principles should not be adhered to. · The significance of the DCP footprint is that it reflects the desire for a concentrated built form, securing large consolidated spaces for community congregation, consistent with the objectives in part 2 of the DCP 'to reinforce the cultural significance of the town centre of Bundeena as (a) community fathering place...' and part 5 'Recognise the corner location as the gateway to the village and its connection with the community'. The subject proposal, in contrast, adopts a fragmented building footprint and much smaller 'spaces' that for the most part are far more 'private' and exclusive than 'public' and inclusive. Adoption of the DCP footprint would provide recognition to the established social and physical infrastructure of Bundeena. · Strict compliance with the floorspace ratio and residential/commercial mix requirements may not be necessary if the proposed development complied with the DCP footprint. However in the circumstance where the site planning is quite at odds to the DCP, no justification can be seen as to why a significant variation should be permitted. f. Impact on 8 Mary Street · Obstruction of water views from 8 Mary Street Bundeena. g. Issues remaining from previous submissions · development is inappropriate, 'box-like', too large and against the letter and spirit of Bundeena DCP, · development is not sympathetic to the village nature of Bundeena and desired future village character, · the driveway across the footpath in Brighton Street will be dangerous for pedestrians, · too much excavation - trucks removing heavy rubble will cause a danger to other road users in the Royal National Park, · cumulative impact resulting from this and two other development proposals for the shopping centre could destroy Bundeena's village character, · height and bulk, · impact on neighbours with respect to sunlight and view loss, · social impact - oversupply of retail space, · site is the 'front door' for tourists and residents coming off the ferry and crucial for a sense of place and "arrival" to Bundeena and the Royal National Park, · social and economic impact in terms of loss of public gathering place and village green, · residential flats could set a bad precedent, · no detail regarding drying areas, · poor ventilation and natural light to commercial units, · increased energy consumption from use of air-conditioners and clothes dryers, · inappropriate urban design, · non-compliance with 0.7:1 FSR and 50:50 residential and commercial ratio, · amount of excavation has been severely underestimated, · approval will set a precedent for development in Bundeena, · loss of trees, · overdevelopment of the site, · extensive excavation limits amount of deep soil planting that can be achieved, · minimal open space, · lack of setbacks and transitional areas to zoning interface, · non-compliance with Sutherland Shire LEP, Bundeena + Maianbar DCP and the draft LEP, · noise and dust effects of excavation during construction, · drainage problems from extensive excavation, compounded by proposed developments at 22-30 and 36-40 Brighton Street. At present the run off from the old Uniting Church site to the east is spread between these sites. Residents are concerned that the cumulative impact of this and the other proposed developments could create major drainage problems and destabilise the floating sandstone escarpment on the old Uniting Church site, · the plan exceeds the intended footprint in the DCP, · ultimate use of flats may be for rental purposes. 102 Many of the issues were resolved by the amended plans, conditions, and following expert evidence were not pressed by the council. In respect of height, the council did not press non-compliance with the planning controls but raised as an issue the three-storey appearance of the proposal when viewed from the west. We understood the council's concern in respect of height to be related more to the overall bulk of the proposal and impact on views. 103 The following emerged as the salient issues: · Whether the proposal is of a bulk, height and footprint consistent with the existing and future character of Bundeena. · Whether the proportion of commercial to residential is appropriate. · Whether the proposal achieves an appropriate interface with the adjoining residential zone, particularly setbacks and view sharing. The evidence and findings Existing and future character of the area 104 In this appeal the key factors in determining whether the proposal is consistent with the existing and future character for Bundeena are bulk (FSR), height and footprint. 105 In relation to FSR, the controls, both the maximum and the definition, have changed since the development application was lodged. 106 The FSR, under cl 44(1) of SSLEP2000 that applied when the development application was lodged was 1:1. However, cl 44(2) of SSLEP2000 provides that: (1) Except where a maximum floor space ratio is specified in a development control plan, the maximum floor space ratio for buildings in a business zone is: (a) … (b) 1:1 in the 3(b) Neighbourhood Business zone. (2) The consent authority must consider any maximum floor space ratio specified in any development control plan applying to the land. 107 The parties did not agree as to the relevant FSR to be applied. Clause 44(1) of SSLEP2000 provides for a FSR of 1:1, except where a maximum FSR is specified in a development control plan, which in accordance with cl 44(2) must be considered. In summary, Mr Bingham submitted 0.7:1 in BMDCP2004 has to be taken into account but the 1:1 in BMDCP2000 should be given greater weight. Mr McEwen submitted, "The council says significant weight must be given to the FSR of 0.7:1 even if LEP2000 still applies and it takes us back to 1:1." When we gave our preliminary findings Mr McEwen submitted, the council would not require strict adherence to the 0.7:1 FSR, but the above ground structure should comply. 108 BMDCP2004, although made after the lodgement of the development application, specified a FSR of 0.7:1. The construction of the FSR clause envisages that a development control plan may specify a FSR different to that in the local environmental plan. It does not exclude development applications lodged before the adoption of the development control plan from its application, nor do BMDCP2004 or BMDCP2006 include a savings provision. We therefore find that under cl 44(2) the 0.7:1 FSR in BMDCP2006 "…must be considered". The fact that the development application was lodged before this control became effective is also a relevant matter, as is the 0.7:1 FSR in SSLEP2006. 109 The definition of GFA is different under SSLEP2000 and SSLEP2006 as well as draft SSLEP2003 and therefore the calculation of FSR applicable to the development is different depending upon what definition is used. 110 Mr Dickson calculated the FSR of Version I plans under both the SSLEP2000 and SSLEP2006 and concluded: · Under SSLEP2000: The aboveground GFA of Version I of the plans would be 2,012m2 and the FSR would be 0.89:1. The basement GFA would be 616m2 or a FSR 0.27:1. Thus the total FSR would be 1.16:1 [above ground around 0.2:1 in excess or 450m2, and in total 0.16:1 in excess of 1:1 or 360m2]. Thus calculated under the provisions of SSLEP2000 the Version I proposal would be in excess of the allowable GFA and FSR under SSLEP2006 of 0.7:1 by 711m2 or 0.316:1, respectively. · Under SSLEP2006: The aboveground GFA of Version I of the plans would be 1,802m2 and the FSR would be 0.8:1. The basement GFA would be 1,036m2 and when an allowance for 21 spaces or 616m2 has been made, the FSR for that portion of the building would be 0.27:1. Thus the total FSR would be 1.07:1. [above ground 0.1:1 in excess of 0.7:1 or 225m2; and in total 0.07 in excess of 1:1 or 157.5m2]. Thus calculated under the provisions of SSLEP2006 the Version I proposal would be in excess of the allowable GFA and FSR by 690m2 or 0.307:1, respectively. 111 According to Mr Dickson, it was the practice of the council to exclude completely from the calculation of GFA, basement car parking and access thereto. This practice is in line with the model provisions definition of GFA. Draft SSLEP2003 reflected this practice and was the version of the draft local environmental plan that the Court considered at the time of its preliminary findings. The measurement of GFA from the internal face to the outer face of the external wall has also changed between the exhibited draft and the gazetted local environmental plan. No explanation was provided in the hearing as to the planning reason for these changes between the exhibited draft and the plan that was gazetted. 112 If the GFA were calculated under the draft instrument it would properly be gross as it is measured to the outer face of the external enclosing walls and there is an argument that the internal access to the car parking area is excluded. The changes that have occurred over time indicate that the council has not consistently applied its FSR development standards. It was estimated that there would be a difference of at least 10% in the FSR by excluding the thickness of the external walls, resulting from the change in the definition. Thus, the FSR under SSLEP2006, as calculated by Mr Dickson would be around 0.907:1 rather than 1.007:1. 113 Our preliminary findings were made before the gazettal of SSLEP2006, at the time Draft SSLEP2003 was a relevant matter for consideration. We sought an overall development that would largely comply with the 1:1 FSR, with the aboveground structure complying with the 0.7:1 FSR. We noted that this approach was consistent with the practice of council, referred to by Mr Dickson, that the below ground floor areas including the car parking were not included in the calculation of GFA. This was also reflected in the definition of GFA in draft SSLEP2003. This approach rationalised the 1:1 FSR control of SSLEP2000, with the 0.7:1 FSR in BMDCP2006 and Draft SSLEP2003. 114 The FSR is generally accepted as being a guide to bulk and scale of development. Over the years the FSR in Bundeena has been changed from 2:1 when Bundeena was zoned General Business 3(a) with the gazettal of SSLEP2000, to 1:1 in an amendment of that planning instrument and 0.7:1 in SSLEP2006. However, as illustrated by Mr Dickson's evidence, the numerical amount varies considerably depending upon the definition of GFA and what is included and excluded in this definition. It is clear that under the definitions in both SSLEP2000 and SSLEP2006 the development as a whole exceeds the FSR maximum. The above ground structure slightly exceeds 0.7:1 but is below 1:1. 115 Despite this non-compliance with SSLEP2000, the parties agreed that an objection under State Environmental Planning Policy No 1 (SEPP 1) was not required as under cl 44(2) the FSR control is within a development control plan. 116 The key question before the Court is not only whether the proposal complies with the numerical controls but also whether it achieves the purpose of these controls. Despite there being no requirement for a SEPP1 objection the appropriateness of the proposed FSR can be tested in the light of the decision of his Honour Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001, as if it were a SEPP1 objection, principally whether it meets the objectives of the control. 117 The objectives of cl 44 in SSLEP2000 are not articulated. However, the usual purpose of FSR is to control the bulk and scale of a development. The objectives in cl 35 of SSLEP2006 for building density are: (a) to ensure that development is in keeping with the characteristics of the site and the local area, (b) to provide a degree of consistency in the bulk and scale of new buildings that relates to the context and environmental qualities of the locality, (c) to minimise the impact of buildings on the amenity of adjoining residential properties, (d) to ensure, where possible, that non residential buildings in residential zones are compatible with the scale of residential buildings of land in those zones. 118 These objectives offer further assistance in determining the purpose of the FSR control. However, we note that these objectives relate largely to maintaining the existing character and context of the area. While we consider that the natural environment and the relationship of the built form to landscape are attributes of the area to be maintained, the actual built form lacks consistency or architectural merit and is not an element to be emulated. The specific controls for Bundeena and particularly the site (Standard 14) in BMDCP2006 offer guidance to the character and context, to which the proposal should respond. They are valid considerations in determining whether the proposal meets the objectives of the standard. 119 The expert evidence before the Court is that the proposal achieved appropriate bulk, scale and acceptable amenity impacts. 120 In relation to amenity impacts on adjoining residential development, the key impact is view loss and setbacks, which are discussed below. While a proposal with less FSR could reduce the view loss and provide greater separation the amenity impacts of this proposal are minimised in that the proposal "…respects existing views enjoyed by the [occupants of] adjoining residential and commercial development" as required by Standard 14 of BMDCP2006. 121 The proposal is located on opposite a park, at the edge of the Bundeena shops, near the ferry wharf. It is a corner location, which provides a "gateway" to the village. The existing commercial area of Bundeena has no strong consistency of scale or architectural merit. The adjoining property to the north is of greater bulk and scale than the proposal and is unlikely to be redeveloped in the near future. Further to the north a development had been approved with an FSR of around 0.88:1. The aboveground bulk of the proposal would largely comply with the 0.7:1 FSR control in SSLEP2006 and BMDCP2006. The belowground area provides parking to service the proposal and would not add, in any material way, to the bulk of the building. The experts agreed that the proposal was of considerable architectural merit, with materials, form, height, bulk and scale that reinforces its corner and "gateway" location as required by Standard 14 of BMDCP2006. 122 The proposal would be broken up into pavilions with terraces in between and open space which would "…reinforce the subdivision width and façade divisions along Brighton Street in order to break the building form and reduce building bulk" as required by Standard 14 of BMDCP2006. These terraces and open space provide opportunities for landscaping. A number of canopy trees are to be provided to replace trees, which are being removed, either because of their poor condition or location within the building footprint. The landscape experts agreed that the removal and replacement planting was acceptable. The proposal would be consistent with the character of Bundeena created by buildings in a landscaped setting. 123 The proposal is for mixed-use development, which would maintain a residential character, and would be setback 7.5m to Loftus Street thereby meeting Standard 14 of BMDCP2006. 124 In reviewing the objectives and standards in the development control plan we are satisfied that these are met. Standard 7 of BMDCP2006 requires the use of 'light weight' materials and minimum 'cut and fill'. Also, on p 5 of BMDCP2006 in respect of residential development and redevelopment, under the heading of 'Structure Plan', buildings are required to 'light footed'. However, this requirement seems inappropriate when dealing with mixed-use development that requires on-site car parking and loading facilities to be provided within a basement car park. 125 The preliminary findings of the Court placed emphasis on the setback of the proposal from Brighton Street to better reflect the building footprint illustrated within the BMDCP2006. This resulted in the deletion of Unit 3 in south west corner of the land. This considerably reduced the overall bulk of the proposal, reduced view loss to the adjoining residential units at Nos 22 - 30 Brighton Street, provided a significant area of open space, which can be used by the public and links with the adjoining open space, and commercial area at Nos 22 - 30 Brighton Street. 126 The proposal would also comply with the height controls contained in SSLEP2000 and BMDCP2006. The council was concerned about the three-storey appearance of the proposal, while technically there are small sections of the proposal that are three storeys in height these are stepped in accordance with BMDCP2006. The proposal at the street frontage would be two-storeys in height, the proposal steps with the topography, and the location of the three storey section would be setback a considerable distance from Brighton Street behind the landscaped courtyards. For these reasons we are satisfied that the design would appear as two storeys from public viewpoints around the land and from the adjoining residential properties would appear as single storey and is an acceptable community outcome. 127 We note that the proposal would not comply with the two-storey height control in SSLEP2006, however, for the reasons given above we are satisfied that the proposal would meet the objectives of this control. 128 Mr Tzannes was of the view that the amended proposal would be "…an appropriate design for the specific site within Bundeena and demonstrates considerable merit in the arrangement of open space, built form, publicly accessible private open space and vehicular access." [Note: Exhibit M, p 2]. 129 Before the latest amendments, Mr Dickson defined the local character and scale of Bundeena as being: …predominantly free-standing single storey residential development that provides established landscaping within generous front and rear setbacks. There is no defined built form character, however, there is a dominance of small fibro cottages, depicting a 'beach shack' feel. From the 1990s onwards, the village beachside scale of Bundeena has been in the process of change. The construction of much larger brick and tile homes, consistent with more urban areas of the Sutherland Shire has seen the urban fabric of Bundeena altered. The proposal does maintain a village scale along its street frontage. It is responsive to the bulk and scale of the existing built form within Bundeena as it consists of 2 storey building elements separated across the site by landscaped courtyards. [Note: Exhibit 3, p 12] 130 Mr Dickson maintained this position with the amended plans and raised no issue with regard to any breaches of the FSR. In oral evidence he stated that the dispersed building form may actually increase the numerical FSR but in effect results in a less bulky building. 131 The proposal, therefore, would comply with the building envelope anticipated for the land by the planning controls. The bulk and scale of the proposal would not be excessive or inappropriate in the context of adjoining development and the characteristics of Bundeena as the "Gateway" to the National Park. 132 In coming to this conclusion, we have considered the objectives and standards of the BMDCP and SSLEP2006, including cl 48, Urban Design General. In summary, these controls are aimed at achieving high quality design outcomes appropriate to the context of Bundeena. The expert evidence before us is that the proposal would meet these requirements. Despite the breach of the FSR, we are satisfied that the outcome would be of a high standard of design. In reaching this conclusion, we note that a building of this size, but of less sensitive design, would be inappropriate for the site. Residential floor area as a proportion of the gross floor area 133 Under cl 45 of SSLEP2000 the proportion of total residential floor area to GFA is 50% except if a maximum amount is specified in a development control plan. Under BMDCP2001 the proportion of residential floor area was specified as 70% of the total GFA of a development. 134 In BMDCP2006 the proportion of residential floor area to gross floor area was specified as 50%. 135 SSLEP2006 does not include provisions for the proportion of residential floor area but these are maintained in SSDCP2006, which provides:

1. A mixed-use development is to provide a minimum percentage of retail and commercial floorspace in accordance with the following proportions: · Urban Centre 60% · Local Centre 60% · Neighbourhood Centre 50%.
2. The retail/commercial portion of the development is to be distributed so that active uses are provided at street level. 136 The total residential GFA of Version I proposal has not been calculated however, Mr Dickson calculated the Version F proposal contained a residential proportion of 79.5%. Since then, Unit 3 has been deleted and a café added so the proportion would be slightly less. 137 In a preliminary decision of the Court in August 2006, the parties were told that the proportion of the residential component to the commercial/retail component would not be a reason to refuse the application. There was conflicting evidence as to the viability of providing a larger commercial component. A number of residents raised concerns about whether more commercial development in Bundeena was sustainable. The Court was also mindful of the changing controls and that the proposal generally complied with the proportional mix applicable when the application was lodged. The amendments during the hearing reduced the residential component and increased the commercial component. Mr McEwen submitted that if a larger commercial component were not viable, the residential component should be reduced accordingly to comply with the 50% requirement. On this basis the development would achieve, in Mr McEwen's submission, 400m2 of commercial and 400m2 of residential, being a FSR in the order of 0.4:1. We do not accept that this is a reasonable proposition given the objectives of the planning controls. 138 The retail/commercial uses have been provided at ground level and considerable changes were made to the application so that the street frontages are allocated to active uses and the open space forms an important part of the development. In particular, the open space in the south-west corner of the land has been lowered to ground level to better relate to the adjoining outdoor area, used for cafes, at Nos 22-30 Brighton Street. This area together with the proposed open space on the subject land would be an active area able to be used by the public. The experts agreed that this area would provide significant amenity to the public domain. They described the advantages as being: · Relatively good pedestrian access from the north and south and from the adjoining development to the south; · Achieves a balanced trade-off in terms of deep root zones: the loss of deep root zones in the northern part of the site is offset against the gain in deep root zones located in the southwest corner of the site; · Integrates well with the south of the site; · Narrows the driveway width to 6.2metres; · Minimises acoustic and visual privacy issues to 22 -30 Brighton Street; · Provides for a flexible retail/commercial space at the eastern end of the terraces. This retail space will be locate under the proposed residential units; · Provides for views of the beach and bay and other landforms from the terrace and the adjoining shops. 139 The outdoor space at the north-west corner of the land was also amended to better relate to the street and its adjoining commercial tenancy and provides amenity for both the development and the public domain. These areas and the courtyards between the commercial tenancies provide opportunities for planting of canopy trees consistent with the objectives in the BMDCP. Interface with the adjoining residential zone 140 The land adjoins a residential zone to the east so the eastern boundary is a zone boundary and requires special attention, [Note: Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117]. The council and the residents were concerned that the proposal would result in an unacceptable view loss to No 94 Loftus Street and that its proximity would adversely impact on the amenity of No 94 Loftus Street and the residential development of the Uniting Church lands further to the south along this boundary. Setbacks 141 BMDCP2001 required a 6m-wide service road along the eastern boundary of the land to provide access to properties to the south, [Note: Exhibit 16, Map 09]. This service road requirement might well have been the reason for this requirement in respect of development on the land abutting to the south at Nos 22-30 Brighton Street in the Ebsworth case. In BMDCP2004 the 6m-wide service road was deleted. 142 The original proposal in the vicinity of the church lands, would have been setback a minimum of 1m at ground level, with a setback of 1.9m at the first floor level and incorporating a 900mm wide skylight over the ground floor living, dining and kitchen. The Version I plans show a different configuration with Unit 6 on level one being setback 1.6m where there are blank walls facing onto the boundary and 3m where there are windows proposed in the centre bay. 143 Building envelopes have been approved for the former church lands, which indicate that the proposed houses would be setback around 10m and 7m from the eastern boundary of the subject land. The former church land is at a higher level than the subject land and consequently the proposal would appear as single-storey from viewpoints on the former church property. Despite the proximity of the proposal to this boundary an acceptable relationship is achieved with future development of the former church lands due to the setback, single-storey appearance and landscape screening along the boundary. 144 In the vicinity of No 94 Loftus Street the variable setback of has been increased marginally so that the minimum is 1.5m. The eastern elevation of the proposal is broken up with internal courtyards and short blank end walls that are staggered along this side. 145 Mr McEwen submitted that BMDCP2006 required a 7.5 m setback from a rear boundary of a residential development and that the setback from the eastern boundary of the proposal, in the vicinity of No 94 Loftus Street, would be therefore inadequate. We do not accept this submission. The specific controls in BMDCP2006 for the land require a 7.5m setback to Loftus Street being the designated front boundary. The proposal exceeds this control. The land is located on a corner and the eastern boundary is therefore more akin to a side boundary than a rear boundary, which would require a 1.5m setback under the BMDCP2006. The proposal provides a minimum of 1.5m but for about 30% of the eastern façade the setback would be 16.5m. This setback breaks the building into separate pavilions, which provide space for canopy planting and landscape screening along the boundary to soften the visual impact of the proposal. 146 We consider that the design of the proposal, together with its landscaping, would be a appropriate response to the particular characteristics of the land and its topography and would achieve an acceptable relationship. Views 147 Applying the principles of Tenacity Consulting v Warringah Council [2004] NSWLEC 140, firstly, the view is of water, and includes the land/water interface. This is best appreciated from the patio. Secondly, the view is over the land across a side boundary and as such "…is more difficult than the protection of views from front and rear boundaries. …The expectation to retain side views and sitting views is often unrealistic." Thirdly, the view is from a study, bedroom and a patio. The view from the patio is largely retained. The Bundeena Café, the previous building on the land, largely obscured the western view of the water from the study, although there were in distant views to the bush. The impact on the view from the study when measured against the view across the Bundeena Café is largely unchanged by the proposal. The room which is most affected is the bedroom. This room would lose some of the western views it previously enjoyed of the water, and would retain some of the land/water interface view and gain in the extent of the view of the beach when compared to the view over the Bundeena Café. 148 During the course of the hearing, the applicant modified the design so as to increase the availability of views over the proposal and the land from the bedroom. This was achieved by skewing in plan of that part of the proposal in the vicinity of Units 1 and 2. Mr Dickson considered this to provide "…a greater benefit in the available critical view from No 94, than that which was available from No 94 under the previous proposal." [Note: Exhibit 30, p 7]. He noted that the skewing the building was an alternative to removing Bedroom 4 and the balcony in Unit 1 of the proposal. The removal of Bedroom 4 and the balcony would further improve the views to the land water interface from the bedroom. 149 In assessing the impact on views Tenacity states: The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. 150 The view loss is from a bedroom and if the development were complying with all the controls for the site, reasonable view sharing would be achieved. However, even though the proposal complies with the height control it exceeds the FSR control. We consider that the deletion of Bedroom 4 and the balcony of Unit 1 is therefore not unreasonable to further improve the view of the land/water interface from the bedroom window and provide similar views of the land/water interface to those that existed over the Bundeena Café. This change can easily be implemented by employing a similar floor plan to that of Unit 7. We have included a condition of consent to this effect. 151 Mr McEwen submitted that the proposal could be redesigned to require the loading dock to be located in the courtyard on the ground floor between the commercial tenancies, thereby affording the designer the opportunity of lowering, by around 1.4m, the podium of the building. This condition would have the effect of lowering the proposal by a similar amount and improving the views from No 94 Loftus Street. In the Version I plans, the height of the podium was designed to accommodate truck access to the basement loading dock. All the experts, except for Mr Brooker, agreed that placing the loading dock in the landscaped terrace would have a significantly adverse impact on the public domain. When balancing the benefits of lowering the building with those adverse impacts on the public domain, we consider this change to be inappropriate, particularly as the proposal complies with the height limit and we consider the view loss from No 94 Loftus Street to be reasonable. Conditions 152 The conditions are those in Exhibit 34, as amended by Exhibit S and the conditions filed by the parties on 4 December 2006. 153 The main condition that remained in dispute was whether there should be a deferred commencement condition requiring an Aboriginal archaeological survey and design changes to be subject to further approval of the council. We have deleted the deferred commencement condition and incorporated the requirements into general conditions. 154 The conditions relating to the provision of a loading dock in the courtyard on the ground floor have been deleted as discussed above as we are satisfied that the basement loading is more appropriate for a development of the size proposed. 155 We have included a new Condition 1B(q) to the effect that: Bedroom 4 and the balcony of Unit 1 is to be deleted and shall not be constructed. The reason for this change to the plans is to further improve the view of the land/water interface from the bedroom window of No 94 Loftus Street. 156 We have deleted part of the deferred commencement Condition 2m that would have required the southwestern corner at ground floor level not be used for any commercial purpose and maintained as an open, at-street-grade landscaped space. We consider it is appropriate that this area be used in association with the café. This will still enable it to be used by the public and ensure that it would be maintained and provide an active street frontage. 157 Also we have deleted part of the deferred commencement Condition 2n that would have required the size of the southern retail/commercial tenancy be reduced by the relocation of its southern wall 2.5m to the north. We consider that adequate views would be available from Nos 22 - 30 Brighton Street commercial tenancies. The size of the café is only 56m2 internally and moderate in size to provide for the sustainability of this use. We have also taken into consideration the commercial/residential proportions required in the BMDCP for this land. 158 We have amended Condition 4 to require a small rigid vehicle (SRV) as defined by Australian Standard AS2890.2 - 2002 for deliveries to the basement loading dock. This is to ensure that the use of commercial tenancies will not require servicing by large articulated vehicles which would impact on the area. 159 We have maintained Condition 89 that requires only one parking space per commercial tenancy be allocated for the exclusive use of that tenancy. This would ensure that the remaining commercial parking spaces remain available for use by the customers of any of the commercial tenancies. Orders 160 Our orders are:

2. Development application No 04/1213 for a new commercial - residential building, comprising two (2) commercial tenancies, a café and eight (8) new dwellings, and car parking for twenty three (23) cars, originally lodged with the respondent council on 16 August 2004 and amended, at Lots B and C, DP 199549, being Nos 96-98 Loftus Street, Bundeena, is approved subject to deferred commencement conditions and General Conditions 1 to 97 in Annexure A.

3. The exhibits except for Exhibits D, P, Q, R, S, 1, 7, 17, 18, and 34 are returned.

S J Watts Annelise Tuor Commissioner of the Court Commissioner of the Court

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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