Moore Development Group Pty Limited v Pittwater Council

APPLICANT Mr G Newport, barrister, instructed by Mr R Moore, applicant SOLICITOR N/A LEGAL REPRESENTATIVES: RESPONDENT Ms J Jagôt, barrister with Ms O Hancock, solicitor SOLICITOR Mallesons Stephens Jaques

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MATTER No: 10710 of 2002

MOORE DEVELOPMENT GROUP PTY LIMITED Applicant v PITTWATER COUNCIL Respondent WATTS C: 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Pittwater Council (the council) of an integrated development application to demolish the existing building and to excavate and erect a four-storey residential building containing nine apartments with basement car parking for thirteen (13) vehicles, at Lot 142, DP 752046, being No 1858 Pittwater Road, Church Point.

2 I visited the land in company with the parties on the second day of the proceedings.

3 I have concluded that the application should be refused as it would be of inappropriate height, bulk and imposing and the extent of the proposed private residential use would be incompatible with the public uses that surround the freehold land.

4 The development is 'integrated' under the Environmental Planning and Assessment Act 1979, as it is situated on 'protected land' as defined under the Rivers and Foreshores Improvement Act 1948. The proposal is on the foreshore of a 'river' being McCarrs Creek, and the Department of Infrastructure, Planning and Natural Resources, (DIPNR), (formerly the Department of Lands and Water Conservation, (DLWC)) has issued terms of approval in respect of excavation of the land to be applied in the event that the Court might favourably determine the matter.

5 The licensed land abutting and to the north and east of the freehold land at Church Point is not the subject of this integrated development application. The land

6 The land the subject of this integrated development is situated on the northern side of Pittwater Road at Church Point abutting land at Church Point wharf. It is rectangular in plan and has a frontage 32.865m, a depth of 19.595m and an area of 634.4m2.

7 The land abuts Sir Thomas Stephens Reserve a paved outdoor area immediately to the west of the building. This reserve is used as a meeting place and transport interchange for people in the area and for those living offshore.

8 Erected on the land is the mixed-use 'Pasadena' which is a predominantly two-storey brick cement-rendered building containing a licensed restaurant with indoor and outdoor eating areas, bar and bottle shop, real estate agency and motel accommodation comprising 15 suites, caretakers flat, and roof-top laundry. The restaurant and bar has a capacity of 164 persons within the indoor area and on licensed land abutting and to the north outdoor eating areas.

9 There is no car parking provided on-site however; long stay visitor car parking spaces are available on adjoining Crown Land (Lot 320) abutting to the east.

10 The existing jetty and pontoon used by 'Pasadena' is erected on Crown Licence No 312335, and the 'Pasadena' outdoor dining facility is erected on Crown Land within Lot 320, DP 824048 (Lease No 311606) and Lot 317, DP 824048 with an area of 1,004m2.

11 The existing car parking for the motel comprise fourteen (14) short-stay angled parking spaces abutting to the south-west on Pittwater Road and seven (7) long-stay visitor parking spaces located abutting the land to the southeast.

12 The fourteen (14) spaces are on DIPNR (Formerly DLWC), land soon to be dedicated to Pittwater Council as public road reserve and the seven (7) spaces are situated on DWLC land under license or lease to the 'Pasadena'. Relevant planning controls

13 The land is zoned 3(c) Neighbourhood Business 'C', under the Pittwater Local Environmental Plan 1993, (PLEP1993) and as the primary use of motel, is prohibited, any redevelopment of the land may rely on existing use rights, (EUR).

14 The Court has determined that the land and building enjoys existing use rights under ss 106, 107 and 108 of the Environmental Planning and Assessment Act 1979. This follows a decision of this Court in respect of a preliminary point of law. [Note: Moore Development Group Pty Limited v Pittwater Council [2003] NSWLEC 130]. The council intends to appeal this decision.

15 The subject use might be classified as, 'shop-top housing', as defined in Residential Development Control Plan No R4-Shop-top housing, (RDCP R4), however, that use is not permissible on the land.

16 Multi-unit housing under the provisions of cl 21O of the PLEP1993 is not permitted.

Other Development Control Plans that might have applied to the land were it not for EUR:

17 Under s 108(3) of the Environmental Planning and Assessment Act 1979 an environmental planning instrument may, contain provisions extending, expanding or supplementing the incorporated provisions dealing with EUR but any provisions that would derogate or have the effect of derogating from the incorporated provisions would have no force or effect while the incorporated provisions remain in force.

18 Thus the parties were in agreement that many of the provisions of the council's local environmental planning instruments would derogate and cannot be taken into account when considering this integrated development application that relies on EUR. Some provisions that would derogate are contained in:

· DCP No 2 - Carparking, · DCP No 8 - Height of Buildings, · DCP No 15 - Heritage Conservation, · DCP/LP 15 - Bayview and Church Point Locality Plan; · DCP No 20 - Commercial Centres, · DCP No 23 - Landscape and Vegetation Management, and · DCP No 28 - Energy Smart Homes.

19 The principles of AMCORD 1995 and the Australian Standards might also be seen to derogate.

20 Section 79C of the Environmental Planning and Assessment Act 1979 continues to apply in so far as it would not call up provisions of environmental planning instruments under s 79C(1)(a) that would derogate. In particular s79C(1)(b), (c), (d) and (e) of the Act would apply and would require the Court to take into account: (a) … (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality; (c) the suitability of the site for the development; (d) any submissions made in accordance with this Act or the regulations; and (e) the public interest.

21 Under s 5 the objects of the Act are relevant to a consideration of this integrated development application and in particular, the objects under s 5(a)(ii), reinforce the promotion and co-ordination of the orderly and economic use and development of land. The proposal and its history

22 Integrated development application No N0550/02 was lodged with the respondent council on 4 July 2002, to demolish the existing 'Pasadena' building, to excavate the land and to erect a four-storey building containing nine apartments with basement car parking for 13 vehicles. The proposal described in plans prepared by A Miles Benjamin Buffalo Design, in Exhibit A would include: Basement Level at 0.19m AHD · 13 carparking spaces; · Bicycle store; · Retail store; · Electrical services area; · Lift access, stairwell; and · Ramped access up to Pittwater Road.

Ground Floor at 2.8m AHD · Cafe/Retail area of 129m2; · Entry foyer; · Lift access and stairwell; · Ramped access to basement; · Unit 1 containing 2 bedrooms; and · Unit 2 containing 3 bedrooms.

First Floor at 5.6m AHD · Entry foyer; · Lift access and stairwell; · Unit 3 containing 2 bedrooms; · Unit 4 containing 2 bedrooms; · Unit 5 containing 3 bedrooms; and · Unit 6 containing 2 bedrooms.

Second Floor at 8.4m AHD · Entry foyer; · Lift access and stairwell; · Unit 7 containing 3 bedrooms; and · Unit 8 containing 3 bedrooms.

Third Floor at 11.0m AHD · Entry foyer; · Lift access and stairway; and · Unit 9 containing 2 bedrooms.

23 The typical habitable floor-to-floor height is shown on Section XX as 2.8m on the ground and first floor and 2.6m on the second floor and 2.1m at the third floor. Allowing 300mm for structure and ceiling the floor to ceiling height on the ground and first floor would be 2.5m. On the other floors the ceiling height would be less than 2.5m.

24 The overall height of the proposal would be about 2.4m greater than the ridge of the laundry on the roof of the 'Pasadena'. The ridge of the laundry above the roof of 'Pasadena' is shown on the survey as 11.85m AHD and the proposed ridge height is 14.25m AHD. This height relationship is confirmed by measurements taken from the elevations and sections in Exhibit A. Notification

25 The application was notified to 234 nearby owners and occupants and the council received 63 submissions. These submissions are contained in Exhibit 5, Tab 3.

26 Submissions included reference to: · Height, bulk and scale; · Foreshore building line; · Car parking, access, pedestrian safety; · Permissibility and existing use rights; · Site coverage; · Public interest; · Social impact; · Precedent; · Design, character and appearance; · Heritage impact; · Public access; · Construction impacts; · Landscaping; · Setbacks; · Density; · Overshadowing of public space; · Precinct plan; · Coastal Hazard - Inundation flooding; · Stormwater disposal; · Impacts associated with adjoining Crown land; · Compatibility with adjacent landuse; · Loss of retail/commercial opportunities; · Loss of views and vistas; · Excavation adjacent to Pittwater; · Accessibility; and · Foreshore Building Line. The council's decision

27 When the Class 1 appeal was filed the council had not formally determined the application. However, by notice dated 25 September 2003, the council refused the application for the following reasons:

1. The proposed height and four-story nature of the development is inconsistent with the existing height and character of development in the locality and the likely future character of the locality, and would be unacceptable in its visual impact. 2. The application does not adequately address whether rooftop plant or equipment is required and whether the lift overrun requirements of the WorkCover Authority can be satisfied below the proposed roof levels. 3. The siting of the development adjoining the Pittwater Rd boundary would dominate the street front and would be unsympathetic to the streetscape. 4. The development provides for an inadequate setback to the Pittwater Rd frontage and provides for inadequate pedestrian facilities and pedestrian amenity. 5. The development lacks any landscaping of the site, provision of canopy trees or intervening vegetation that may address the height, bulk or scale of the development or the relationship of the development with the area context and privacy considerations with adjacent lands. 6. The inadequacy of building setbacks and spatial separation to Sir Thomas Stephens Reserve and Crown Land to the north and east of the development. 7. The development would affect the community use of Sir Thomas Stephens Reserve by excessive orientation of the retail and residential components of the development to this area. 8. The application does not adequately address the future relationship of the property and with adjacent Crown Lands in terms of the existing licence's over such lands and does not provide owners consent for the proposed demolition of structures and landscaping on such lands. 9. The proposal does not provide sufficient on-site carparking spaces for the residential component of the development. 10. The height, bulk, scale design and appearance of the development is not consistent with the existing and likely future character of the locality. 11. The proposal would result in the loss of existing retail and commercial facilities that are of benefit to the local community and does not propose to replace such facilities with adequate floorspace, for the short, medium and long-term benefit of the community. 12. The basement stair access facilities and vehicle access ramp has not been designed in accordance with the recommendations of the Coastal Engineering Report submitted with the application. The impacts of flooding of the basement carpark are not in the public interest. 13. The ground floor plan has not addressed the recommendations of the access consultant report for separate access to each retail area. 14. The proposal relies upon direct access to the ramped colonnade and retail area from Sir Thomas Stephens Reserve, which unduly encroaches upon the use and enjoyment of the reserve land. 15. The location of the proposed garbage room relies upon day-to-day access across the footpath area to the unit foyer, which is not considered desirable given the narrow width of the pathway and volume of pedestrians using this thoroughfare. 16. The basement access ramp does not have a grade of 1:20 for the first 6m into the site. The arrangement is inadequate in relation to pedestrian safety and does not comply with clause 3.4(a) of AS2890.1-1993. 17. There are no angled vehicle sightlines for a vehicle exiting the driveway ramp. The arrangement is inadequate in relation to pedestrian safety and does not comply with clause 3.2.4 and Figure 3.3 of AS2890.1-1993. 18. The proposal to install a vehicle security roller shutter 2m into the site is not appropriate in relation to vehicles temporarily blocking pedestrian access. 19. The impact of the development upon the heritage values of the Church Point Post Office & Store and Church Point Graveyard has not been adequately addressed in the application. 20. The bulk, scale and design of the development would have an adverse impact upon the views and vistas enjoyed within the locality. 21. The area and dimensions of private open space for units 1, 2, 4 and 9 is inadequate. 22. Inadequate levels of privacy are afforded to the open space areas for units 1 to 5. 23. Inadequate information has been submitted concerning the geotechnical / subsurface conditions of the site in relation to the extensive excavation proposed immediately adjacent to Pittwater. 24. Inadequate storage facilities are proposed for the use of the residential portion of the development. 25. Proposed Unit 6 is afforded insufficient amenity in terms the lack of direct solar access to the internal living environment and lack of privacy and external amenity to the balcony due to it's position adjacent to a main road (noise impact). 26. The proposal would have an adverse impact upon the solar access currently enjoyed by users of Sir Thomas Stephens Reserve. 27. The application contains inadequate information to sufficiently identify the proposed strata subdivision of the development.

28 The appeal was filed on 30 September 2002, prior to the council making is decision. Hence it is a deemed refusal.

29 At the hearing the court heard evidence on behalf of the respondent council from:

· Mr F J Makin, resident of No 26 Eastview Road, Church Point, and President of the Bayview/ Church Point Progress Association Inc., [Exhibit 5 Tab 3 pp 20, 75-6, 136-7, 192] · Mr N R Dickson, consultant architect and landscape architect, [Note; Exhibit 8, Statement of evidence, and participation in joint statement with regard to visual aspects in Exhibit 11]; · Mr A M Cullen, resident of No 38 Robertson Road, Scotland Island, [Note: Exhibit 5 Tab 3 pp 31-45]; · Mrs J Hill, resident of No 2187 Pittwater Road, Church Point and President of Church Point Reserve Association, [Note: Exhibit 5 Tab 3 pp 98-100 and 149]; · Mr G B Roberts, resident of No 5 Florence Terrace, Scotland Island and President of the Scotland Island Residents Association Inc., [Note: Exhibit 5 Tab 3 pp 126, 179-180, 182 and 191]; · Mr L Eastwood, resident of No 32 Bona Crescent, Morning Bay, [Note: Exhibit 5 Tab 3 pp 151-2]; · Mr A G Yuille, resident of No 3 Wirringiulla Avenue, Elvina Bay, Member of the Sustainability Committee for Foundation 21; · Mr M J Bryant, architect and landscape architect, [Note: Exhibit 7, Statement of evidence].

30 Ms M D Laidlaw consultant town planner for the council, who prepared a statement of evidence in Exhibit 2 and reply in Exhibit 19 and participated in the joint statement in Exhibit 9; and Mr M Edmonds, town planner with Pittwater Council, who prepared the planning report to the council in Exhibit 5 Tab 6, were not required for oral evidence.

31 On behalf of the applicant evidence was given by:

· Mr A D Smith, consultant town planner, [Note: Exhibit B, Statement of evidence]; · Professor J C Haskell, town planner and architect, [Note Exhibit C, Statement of evidence and participation in joint statement with regard to visual aspects in Exhibit 11]; and · Mr R Varga, traffic and parking consultant, [Note Exhibit E, Statement of evidence].

32 Dr P-A Johnson, urban designer and architect, [Note, Exhibit D, Statement of evidence], Mr S Davies, heritage consultant, [Note Exhibit F, Statement of evidence] were not required for oral evidence. The issues

33 On 13 November 2002 the council filed a statement of issues. Existing use Rights

Issue 1. Whether there are existing use rights which: a. apply to Level 2 of the existing building; and /or b. apply to the whole of the existing building; and /or c. apply to the whole of the land sought to be developed.

Issue 2. Whether the application should be approved having regard to the height, bulk, massing and scale of the proposed development.

Issue 3. Whether the application should be approved having regard to the aims, objectives and requirements of Development Control Plan 20 - Commercial Centres with respect to building height and setbacks which, but for existing use rights; would apply to the site and other development of the same nature in the same zone within the locality.

Issue 4. Whether the application should be approved having regard to the aims, objectives and requirements of Development Control Plan 8 - Height of Buildings with respect to building height and scale which, but for existing use rights, would apply to the site and other development of the same nature in the same zone within the locality.

Issue 5. Whether the application should be approved having regard to the design, colours, materials, detailing, roof design and appearance of the proposed development.

Issue 6. Whether the application should be approved having regard to the aims, objectives and requirements of Development Control Plan 20 - Commercial Centres with respect to appearance of buildings which, but for existing use rights, would apply to the site and other development of the same nature in the same zone within the locality.

Issue 7. Whether the application should be approved having regard to its response in design terms to its position within a Foreshore Scenic Protection area.

Issue 8. Whether the application should be approved having regard to the reduction in the availability of land for neighbourhood business purposes, which will result from the proposed development relative to the demand for such facilities within the vicinity.

Issue 9. Whether the application should be approved having regard to its consistency with permissible uses in the 3(c) Neighbourhood zone, and section 5 (a) (ii) of the Environmental Planning and Assessment Act 1979.

Issue 10. Whether the application should be approved having regard to the public interest in retaining existing commercial operations, and opportunities for similar shops and other service functions in that assist, in particular, the offshore community with their day-to-day needs.

Issue 11. Whether the application should be approved having regard to the loss of views and reduction in the quality of outlook from adjacent dwellings.

Issue 12. Whether the application should be approved having regard to the consistency of the character of the proposed development with the existing and desired future character of the locality.

Issue 13. Whether the application should be approved having regard to the range of land uses in the vicinity and the potential for conflict between the new occupants and existing land uses.

Issue 14. Whether the application should be approved having regard to the proposed setback to Sir Thomas Stephens Reserve.

Issue 15. Whether the application should be approved having regard to the proposed landscaping and the aims, objectives and requirements of Development Control Plan 23 - Landscape and Vegetation Management which, but for existing use rights, would apply to the site and other development of the same nature in the same zone within the locality.

Issue 16. Whether the application should be approved having regard to its failure to adequately provide for pedestrian access between the Church Point car park and Reserve/ Wharf area.

Issue 17. Whether the application should be approved having regard to the requirements of Development Control Plan 2 - Car Parking, in particular, the number of visitor and resident spaces provided and the proposed development's excessive reliance on public car parking areas which, but for existing use rights, would apply to the site and other development of the same nature in the same zone within the locality.

Issue 18. Whether the application should to be approved having regard to the unworkable and impractical vehicular access arrangement in the basement car park.

Issue 19. Whether the application should be approved having regard to the aims, objectives and controls of Development Control Plan 20 - Commercial Centres with respect to car parking which, but for existing use rights, would apply to the site and applies to other development of the same nature in the same zone within the locality.

Issue 20. Whether the application ought be approved having regard to the proposal's failure to provide adequate private open space for each residential unit.

Issue 21. Whether the application should be approved having regard to the fact that the proposal relies upon the future lease of and for acquisition of Crown land for landscaping, open space needs of residents, and pedestrian and vehicular access, in circumstances where the lease /acquisition of the Crown land is yet to be secured by the applicant.

Issue 22. Whether the application should be approved having regard to the fact that the proposed retention of the existing jetty and pontoon is not consistent with the objectives and requirements of Development Control Plan 14 - Waterways Plan of management in respect of non - waterfront development which, but for existing use rights, would apply to the site and applies to other development of the same nature in the same zone within the locality.

Issue 23. Whether the application should be approved having regard to the objectives of Development Control Plan 15 - Bayview Church Point Locality Plan concerning Pittwater Waterfront Building Lines which, but for existing uses rights, would apply to the site and applies to other development of the same nature in the same zone within the locality.

Issue 24. Whether the application should be approved having regard to Clause 36 Of the Pittwater Local Environmental Plan 1993 and Development Control Plan 15 - Heritage Conservation which, but for existing uses rights, would apply to the site and applies to other development of the same nature in the same zone within the locality and, in particular, the impact of the development on the adjacent General Store, Post Office and cemetery, and views from and to the Church point.

Issue 25. Whether the application should be approved having regard to the public interest, in circumstances where more than 40 objections were received.

· Existing use rights; · Height bulk and scale; · Impact on the General Store and Post Office; · Reduction of the neighbourhood business zone; · Incompatibility of uses; · Tenure issues relating to the use of the adjoining Crown Land; · Parking, vehicular and pedestrian access; and · Waterfront building line. The evidence and findings Existing use rights

35 There was no issue between the parties that existing use rights apply to the land and the building. Height, bulk and scale

36 Under this heading Issues 2, 3, 4, 5, 6, 7, and 12 are dealt with.

37 Messrs Dickson, Bryant, Professor Haskell and Dr Johnson conferred in respect of visual impact of the proposal and the joint statement in Exhibit 11 agreement was reached in respect of Issues 2 and 5:

· That the height and bulk of the proposed building is greater than the existing 'Pasadena'; · The height of the parapet to the proposed first floor at about 9.40m AHD is satisfactory; · The overhanging roof to the proposed second floor on the south elevation and the horizontal protrusion at ceiling level should be removed to make the roof flush with the wall and to form a nominal parapet to reduce the impact of roof and 'apparent' bulk on the streetscape; · If the building were made more 'plinth-like' consideration be given to the ground floor 'colonnade' ramp, adjoining steps and openings to create a more visually integrated appearance to the street; · The main roof is too prominent and should be reduced by removing eaves overhangs; · The modulation and articulation of the north elevation to the second floor balustrade is satisfactory; · The vertical 'fins' or 'blades' to the northern elevation should be reduced in height to below parapet level at the second floor at 9.4m AHD; · If the building were made more 'plinth-like' the vertical treatment of the northern elevation should extend to the north west corner; · There would be only a minor loss of views to the south; and · The depths of the balconies on the northern side need to be increased. 38 Amended plans in MFIA were prepared to address these changes and these agreed changes were embodied in deferred commencement conditions in Exhibit H.

39 Messrs Dickson and Bryant, for the respondent, maintained their position in respect of:

· The need for a 2m setback from the western boundary; · The removal of the fourth floor to reduce the proposal's prominence when viewed from the Post Office and the water; · Further setbacks should be considered to reduce privacy and overlooking impacts on the northern side; · The landscaped treatment is unsatisfactory especially on the northwest corner; · The private open space for Units 1 and 2 on the ground floor is inadequate; and · The floor to ceiling dimension should be at least 2.7m. 40 Mr Dickson was of the opinion that the deferred commencement conditions are a step in the right direction but do not go far enough. He considered the proposal would need to be reduced in order for it to be of a reasonable height and bulk in its prominent context.

41 Ms Laidlaw examined the original proposal from the waterway, and the land, took into account the materials and finishes and concluded, [Note Exhibit 2 p 18]: This height and bulk of building cannot be justified, therefore either on the existing environmental circumstances or on the type of built environment envisaged as 'a maximum' by the controls that would apply to other properties in the same locality. 42 She also considered the amended plans as incorporated in deferred commencement conditions in Exhibit H and was of the opinion that the increase in the café / retail area, amendments to the driveway access for reasons of safety, simplification of the design and reduction in parking shortfall are moves in the right direction, however she remained concerned that the number of storeys and height of the proposal would cause the building to be "…out of character with, and unsympathetic to this particular foreshore environment" , [Note: Exhibit 19 p 1]. She stated that, [Note: ibid]: The existing 'Pasadena' building adheres to fundamental elements of this environment in terms of its height, storeys, simplicity of from and quasi-public use and it would clearly be possible for a new building to adhere to these parameters also.

I retain my previously expressed concerns as to the impact of the height, bulk, scale and setback and the relationship to Thomas Stephens Reserve and to the heritage item of the Post Office and Store. The amendments remove some of the extraneous features of the roof and profile, however, the height, bulk and scale have not been addressed. The development will have a dominant and overbearing effect on both the reserve and the heritage building. 43 I have also taken into account the evidence of the local residents who were critical of this aspect of the design.

44 Mr Makin, President of the Bayview/ Church Point Progress Association Inc., strongly emphasising the height, bulk and scale of the proposal. The Association stated above Mr Makin's signature, that the height and bulk is massively greater than the existing building, thereby impacting unfavourably on the visual amenity of the Church Point Headland. [Note: Exhibit 5 Tab 3 p 75]

45 Mr Yuille stated that he had objected to the height and scale of the development. He emphasised that regard should be had for this beautiful setting.

46 Mr Smith, for the applicant, agreed in oral evidence that the existing 'Pasadena' is visually dominant and the experts agreed that the height and bulk of the proposed building would be greater than the existing. I am satisfied on the basis of that evidence and other evidence that the proposal would be more visually dominant than the existing 'Pasadena'.

47 Mr Davies stated, "…the scale, massing, materials, setbacks and orientation all respect the heritage item." [Exhibit F, p 6]

48 Professor Haskell stated: [Exhibit C, p 4], …the design proposal shows an outstanding appreciation of the two critical aspects of the subject site; it's 'outward' aspect towards Pittwater, and it's 'inner' aspect towards the street, where it links-in with the old Post Office to form a 'bend in the road'. The synthesis of high quality architectural design, combined with lively adjoining public spaces, jetties and other uses will ensure the vitality and enhancement of this important locality centre. 49 I prefer and accept the evidence of the respondent's experts including Ms Laidlaw, Messrs Dickson and Bryant supported by the evidence of the local residents and I am satisfied that the application should fail for reason of its inappropriate height and bulk in this prominent location at Church Point. I am satisfied also that the proposal would not be in the public interest for reason of the likely adverse impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality under s 79C(1)(b) and (e) of the Environmental Planning and Assessment Act 1979 . It is not necessary for me to consider the other issues, however, these are briefly considered below. Impact on the general store and post office

50 This head embraced Issues 14 and 24 and included consideration of the impact of the proposal on the general store and post office that is a listed heritage item and on the public open space of Sir Thomas Stephens Reserve.

51 Mr Davies heritage consultant for the applicant concluded that the application would comply with council's heritage requirements and would not have a detrimental impact on the adjacent heritage item. He considered the design would be appropriately contemporary, [Note: Exhibit F p 6].

52 I accept the contrary evidence of Ms Laidlaw that the proposal would be of a greater scale than 'Pasadena' and of a "relatively elaborate and attention seeking design". She was of the opinion that the height and design of the proposed structure would draw the eye and diminish the significance of the store, [and post office]. [Note: Exhibit 2 p 20]

53 I also accept the evidence of Mr Dickson that the relationship of the proposal to the reserve, and the buildings that enclose the other side of the reserve would be improved by:

· Setting back the proposal from the reserve a distance of some 2.3m or around the same distance as the existing building; · Lowering the height of the proposal by at least one floor; and · Improving the relationship of the proposal to the reserve at the northwestern corner of the proposal. 54 The proposed western elevation would be between 3.6m and 4.5m higher than the existing building and closer to the reserve. The slight setback above the parapet for the two upper floors would not offer much visual respite from the building bulk. I am satisfied that the proposal, as presently proposed in the drawings in Exhibit A, as amended by the proposed deferred commencement condition in Exhibit H, would overbear the reserve and the heritage building that encloses the reserve on the west to an unreasonable degree. I would refuse the application for this reason as well. Reduction of the neighbourhood business zone

55 This relates to Issues, 8 and 10 and the potential for a reduction in the availability of land for neighbourhood business.

56 Ms Laidlaw was of the opinion that where the land is held under the control of a single entity, as at present, rather than as proposed in multiple ownerships under a strata title, the potential for an increase in retail and services would be maintained. [Note; Exhibit 2 p 20]. As proposed that potential would decrease.

57 Mr Smith in oral evidence agreed that the Neighbourhood Business 3(c) land available for commercial and retail is a scarce resource. He accepted that in respect of the objects under s5(a)(2) of the Environmental Planning and Assessment Act 1979, the 'orderly and economic' use of land, is not concerned for what is economically desirable from the point of view of a land owner. He agreed that it involves the broader public interest and the public and private interface of uses.

58 The applicant argued that the concern for the reduction in the availability of land for neighbourhood business would be addressed in the deferred commencement conditions by providing an area of café/ retail equal to the existing retail floor area.

59 I am satisfied that there is the potential for the proposal to diminish the area of land zoned for neighbourhood business uses. The applicant's proposal would not compensate for the potential loss neighbourhood business zoned land so important for this relatively remote transport interchange in close proximity to residential populations. Incompatibility of uses

60 This relates to Issues 9 and 13 and picks up the evidence of the council's experts and of the local residents that Sir Thomas Stephens Reserve is a hub of community activity and if the proposal were occupied privately, there would be a basic incompatibility between the public and private uses.

61 The essence of Mr Cullen's objection was that the proposal would result in a diminution of the neighbourhood business and the vital maintenance of a maritime village at Church Point. [Note: Oral evidence and Exhibit 5 Tab 3 p 38]. He was concerned also that the proposal would adversely affect the area's heritage.

62 Mrs J Hill, President of Church Point Reserve Association stated that, [w]e feel that it would put a damper on the public activities in the Sir Thomas Stephens Reserve. There is a dog race held in the reserve once a year. [Note: Oral evidence and Exhibit 5 Tab 3 p 99]. There is also an ANZAC day ceremony and at Christmas, carols by candlelight. The locals sit around the reserve and have a drink and chat. One of the things that we are keen on is to have shops and commercial activity. She was concerned that an apartment block would "kill the area".

63 Mr Roberts, President of the Scotland Island Resident Association, pointed to the fact that the Sir Thomas Stephens Reserve has been a social gathering spot for over 175 years. [Note: Oral evidence and Exhibit 5 Tab 3 pp 126 and 179]. He stated that it is a place where there is a lot of activity. There is noise associated with water taxis, buses and cars arriving and leaving and this noise surrounds the 'Pasadena'. If a block of home units were built there, there would be complaints from the occupants. He said that if he were to buy a unit there, the first thing on the agenda would be how to get rid of noise. If such a push were successful, he said, there would be a radical reduction in the public amenity of the area.

64 Mr Eastwood said that Church Point and the reserve has been a meeting place and transport link for at least 150 years, and it is as important to Church Point as Circular Quay is to Sydney. [Note: Oral evidence and Exhibit 5 Tab 3 p 152]. The 'Pasadena' site and mini market are part of mercantile activity of the area and will continue to be so. Today, it is important to the community and in the life of Church Point. It is a social gathering place; a meeting place and transport interchange for 500 communities who live offshore. Many activities are likely to be curtailed if this proposal were to go ahead. Once residential apartments [are built] on this site there would be conflict between the private people and the community. [The land] is surrounded by community land. To compound this with [permanent] residential would set a precedent for the whole of Pittwater. He said, "it is unthinkable". The [land] would be alienated from the community forever more and [he] can't see the community accepting it. The community is not against development of the site per se, but would like to work with anyone who is willing to address the problems. Commercial development would not be unviable. [The community is] not against some form of residential [use] on the upper floor, advisably, but it has been used for short-term accommodation, and that would allow people to visit people on the island. Short-term accommodation means people [would not be] taking possession of the area and not be put out by the normal workings of the area. He said that there have been discussions with the DLWC on the basis that the footprint [of 'Pasadena'] could be expanded if the community allowed it. We don't want it any higher, but we want it to be viable and a benefit to the whole of the community. His own personal idea would be to capitalise on the community's love of boats. It is a passion. Boats are part of their life, and there are two commercial boat yards offshore. It could become a centre of excellence for wooden boats. We don't accept that commercial is not viable.

65 Mr Yuille stated that this is the best community offshore and this reserve is the 'hinge for that community'. [Note: Oral evidence]

66 Mr Makin was concerned, among other things, that the proposal would further overshadow Sir Thomas Stephens Reserve in the summer months and referred the Court to Drawing No 14. [Note: Oral evidence]

67 Cole JA at p 77 of the Court of Appeal decision in Inghams Enterprises v Kira Holdings Pty Limited (1996) 90 LGERA 68 stated. If, at the time of considering whether consent should be granted, the incompatibility between the proposed development and that on an existing adjacent property cannot be resolved by the imposition of conditions upon the developer/applicant, the development should be refused. In my opinion it must be recognised that the decision maker considering the grant of a consent has no power to impose conditions upon a neighbouring land holder or his exercise of a legally permitted use on that land.

68 No evidence was brought forward to suggest how the peace and quiet of permanent residents of the proposal could be addressed while maintaining the community use of the reserve, which, as indicated in the evidence, is at times noisy and boisterous. Mr Smith saw this as not causing a problem for either community. In oral evidence he commented that the residents' evidence, heightened his concern for the use of the land and that any of the activities in the reserve would adversely impacts on future occupants of the proposal. He continued, people sit there and drink to 8.00pm. There should not be any alcohol consumed there but I don't see that as having any impact. The plans [show that the proposal would be] oriented north / south. There would be no dwelling on the ground floor, [adjacent to the reserve] and although there would be a balcony it would not be habitable space. He continued that the proposed outdoor space associated with the café / retail use would be grade separated [from the reserve].

69 The council's experts and the local residents, in particular, were less sanguine about this. They pointed to the fact that the proposal would be surrounded by public land and if the future occupants of the proposal were unsuccessful in annexing the leasehold land to the north and east the public and private uses would be cheek-by-jowl. Based on this evidence, I am satisfied that there would be a likelihood of conflict between the aspirations for quietude of those occupying this prime waterfront land and locals, that could not be resolved by reasonable conditions. The evidence of Mr Smith does not persuade me and although the design does have the potential to ameliorate some of the use conflicts because of its orientation and design, the land is surrounded by public uses in close proximity and would not be suitable for private use as proposed. As I am satisfied that the land would not be suitable for the proposed development and not in the public interest, I would refuse the application under s 79C(1)(c) and (e) of the Environmental Planning and Assessment Act 1979 . Tenure issues relating to the use of the adjoining Crown Land

70 During the hearing, Mr Smith clarified the applicant's intention with regard to this land. This land is now not part of the application and there would be no ground level landscaped open space associated with the proposal. Parking, vehicular and pedestrian access

71 Parking relates to Issues 17 and 19 and vehicular and pedestrian access relates to issues 16 and 18. The deferred commencement conditions in Exhibit H would resolve issues relating to flooding of the basement car park due to tidal surge down the ramp. These would also resolve the difficult sight lines of drivers using the ramp that would be likely to be unsafe.

72 The proposal with one less unit and parking for fifteen cars would be remain deficient of 4 car parking spaces based on a calculation under the council's code. Mr Varga was satisfied that the car parking provision would be adequate based on census figures of car ownership and occupancy rates for residential flat buildings.

73 A deficiency of car parking suggests to me that under DCP2 with a car-parking rate of 2 spaces for each two or more bedroom unit that two units would be deficient of car parking.

74 There remains a problem with tidal flood surge into the basement car park down the stairs in the northwestern corner. This would require further refinement of the design as was agreed by Mr Smith. Waterfront building line

75 Ms Laidlaw points to the fact that the proposal would exceed the 15m waterfront building line under DCP15. As this provision could be seen to derogate from the incorporated provisions under EUR the requirement would not apply, however the proposal does come close to the sea wall on the northwestern corner. It would be closer to the sea wall than 'Pasadena'.

76 Mr Smith addressed the changed character of the northwestern corner and was satisfied that the changes would not worsen the physical relationship of the proposal with the reserve. He pointed out that the proposed building would be 'articulated' when compared with 'Pasadena'. He said in oral evidence that there would be a void over two levels above the balcony and a glass balustrade to the balcony and this would leave the northwestern corner of the proposal open. Although this balcony might partially obstruct the view from the reserve towards the water it would be a small margin of the arc.

77 I am satisfied, based on the evidence of Ms Laidlaw, with the deferred commencement conditions in Exhibit H applied, the proposal would have a greater impact on the use and enjoyment of the reserve than the proposal described in Exhibit A. This is as a result of the elevated northwestern balcony to the café/ retail area and the potential to cut off ground level views to the north from the Sir Thomas Stephens Reserve. The proposal would overbear the reserve to a greater extent than either the existing 'Pasadena' or the proposal in Exhibit A.

78 For the above reasons, the appeal is dismissed. Orders

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Integrated development application No N0550/02 lodged with the respondent council on 4 July 2002, to demolish the existing 'Pasadena' building, to excavate the land and to erect a four-storey building containing nine apartments with basement car parking for 13 vehicles at Lot 142, DP 752046, being No 1858 Pittwater Road, Church Point, is refused consent.

3. The exhibits with the exception of Exhibits A and H may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.