33 Mr Artur Kateiva was the designer of the proposed development. It was Mr Kateiva's evidence that "there is no established streetscape" in Monger Street, and that different land uses have produced "a variety of different style developments and additions ... resulting in a wide variety of reduced setbacks". Mr Graham Emery, a project manager and development consultant who gave evidence on behalf of the applicant, considered that "the minimal front and side setbacks and varying design styles in Monger Street result in an unusual and interesting mix of buildings". He stressed that the proposed front setback of 0.9m for the commercial component of the development was greater than that required by the RCodes for mixeduse development. He gave evidence that "the upper level Multiple Dwelling has an articulated front façade with setbacks ranging from 4.62m to 5.67m above and behind the commercial component" and that "this setback exceeds by far the recently completed large two level building (front setback 1.0m) directly across the street".
34 Mr Trevor Moran, who is an experienced town planner, also gave evidence for the applicant. He noted that the RCodes "are very specific" about mixeduse development and that although the respondent had an opportunity to vary the provisions of the RCodes through Scheme provisions, it did not do so. He also noted that the respondent's local planning policies pre-dated the mixeduse provisions of the RCodes and that neither the Beaufort Precinct Policy nor the Lindsay Policy Statement directly addressed mixeduse development. He considered that the proposed development "not only accords with the planning provisions of the RCodes, but is an example of the type of innovative development not only anticipated, but encouraged by the Residential Design Codes for mixed-use development in inner city localities".
35 Mr Bain's evidence, for the respondent, recounted the provisions of the respondent's "strong policy framework" particularly in relation to street setback and streetscape. He considered that "the proposed development is not consistent with the pattern of development in the street" and in particular, that "the zero setback, as proposed in the subject development, is in stark contrast with the pattern in the street".
36 The Tribunal considers that the development, as presently proposed, would have an unacceptable impact on streetscape, in consequence of inadequate setbacks. As noted above, a number of elements of the proposal have a zero setback or 900mm setback to the street boundary. Although the RCodes permit a minimum zero setback for mixeduse development, cl 38(5)(g) and cl 38(5)(i) of TPS 1 require the Tribunal to consider the orderly and proper planning of the locality and the design, scale and relationship to existing buildings and surroundings of any proposed building structure. Moreover, the Tribunal is required to have regard to any relevant planning policy of the respondent (TPS 1 cl 38(5)(b)). As noted above, the "strong policy framework" referred to by Mr Bain requires that "development is generally compatible with predominant, characteristic development in the Locality in terms of street setback" (Local Character Policy) and that "new development ... not overpower the existing streetscape" (Street Setbacks Policy).
37 Although I accept the applicant's submission that the front setbacks of the residential components of the development (with the exception of the solid balustrade to the terrace of Unit 1) are acceptable, the projecting 3.35m high masonry elements, Office 1 and solid balustrade above would, relevantly, "overpower the existing streetscape". While it is true that there is a wide variety of setbacks and building styles in the immediate locality, the proposed setback of these elements would be notably less than the predominant front setback of 2.0m to 3.0m in Monger Street.
38 In my opinion, a minimum setback equivalent to the front wall of the existing dwelling house on the site, namely 2.2m, would be appropriate for a development of the nature proposed and consistent with the applicable policies. Although the overall development is considerably larger than the existing dwelling house, the height of the office and balustrade of the residential unit's terrace above is approximately the same as the height of the front wall of the existing dwelling house. Moreover, the width of the office and balustrade above is approximately 5.5m, which is a little more than half of the width of the existing building.
39 During the hearing, I asked the applicant's witnesses whether the development could be approved subject to a condition that it be setback a minimum of 2.2m from the street frontage. Although the applicant's witnesses did not consider that this was necessary or desirable, they conceded that the development could be carried out subject to such a condition. Mr Bain considered that such a condition would result in a development which is more consistent with the established streetscape in that it could be seen as a replacement of the existing setback on the site.
40 I have determined that, if all above ground built form (other than a lightweight awning) were setback 2.2m from the frontage, the development would be consistent with the respondent's policy framework in relation to setbacks and would have an acceptable impact on the streetscape of Monger Street. Accordingly, in my opinion, the development application should be approved, subject to conditions which include a condition to this effect. In my opinion, the boundary walls/fences on the eastern and western boundaries of the site should also commence no less than 2.2m from the street boundary (with the possibility of a 1.0m high wall adjacent to the driveway if required for safety reasons). This would permit the establishment of a landscaped area for approximately half the width of the site in a central location 2.2m in depth so as to significantly soften the streetscape impact of the development. It would also permit a landscaped strip on the eastern boundary of the site right up to the street frontage. Finally, in my opinion, the western and southern balustrades of the terrace to Unit 1 should be of an open nature, such as the balustrade proposed in the development plans immediately adjacent to the living room of Unit 1, in order to reduce the bulk and scale of the development when viewed from the street. Conditions to this effect have been included in Annexure "A" to these reasons.