Waterfront Developments Pty Limited v Wyong Shire Council

03/10523 Waterfront Investments Pty Limited v Wyong Shire Council

JUDGMENT 1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Wyong Shire Council of Development Application 194/04 for the demolition of four existing houses and erection of a mixed commercial/residential building at 1 to 7 The Entrance Road and 1 Tuggerah Parade, The Entrance (being Lots 1, 2, 3 and 5 DP23428). 2 The site has an area of ~ 2206 sq m and frontages to The Entrance Road (~ 50.8 m) and Tuggerah Parade (~ 46.3 m). The applicant proposes to effect the consolidation of four existing allotments - each of which has a single storey dwelling erected upon it and each of which has a setback varying from ~ 5 m to ~ 8 m from the relevant street frontage. 3 Public open space separates the site from the lake opposite each of its street frontages. 4 Immediately to the east is located a site owned by NSW Fisheries (the Fisheries' site) which is a single allotment to be disposed of as no longer required for public purposes. It has been offered for sale by a tendering process which, according to the sign at the front of the site, closed on 18 August 2004. No further information as to the fate of this site is available. 5 The Fisheries' site is separated from the site in this appeal by a drainage easement in favour of the council for stormwater drainage purposes. 6 To the south of the site, facing Tuggerah Parade, are three allotments each of which has a single storey dwelling erected upon it. At the conclusion of these allotments along Tuggerah Parade, Clifford Street, a cul-de-sac, runs to the east parallel to The Entrance Road. At the northern side of the head of the cul-de-sac and at the rear of the site is located a single storey dwelling on 1 Clifford Street - an allotment which is owned by Mr and Mrs D'Emanuele. 7 Although not orientated on a precise north-south axis, for the purposes of ease of explanation of this decision, I will refer to orientation on the basis that The Entrance Road runs east-west across the front of the site and Tuggerah Parade runs north-south across this frontage to the site. Future character of the area 8 At the outset, it should be noted that a number of matters of concern to the residents who gave evidence of their objections to the proposal arise necessarily as a consequence of the council's determination to zone the site for future multi level tourist accommodation development. 9 This zoning clearly and expressly envisages a number of quite significant changes to development within the precinct where the site is located. These changes include the possibility of zero boundary setbacks and, subject to qualifying of the height bonus, four-storey development. 10 This clearly contrasts with and is in stark distinction to the present nature of the development in the zone. These concerns, however, are not ones appropriate to be considered in these proceedings.

Wyong LEP 1991 11 The site is zoned 2(g) - Residential Tourist Zone under the Wyong Local Environment Plan 1991 (the LEP). The zoning permits the erection of buildings of three storeys in height and provides for a possible additional onus height of 2 m pursuant to cl. 42 of the LEP. Qualification for this onus is subject to the satisfaction of a range of design matters set out in cl. 42. The proposal is otherwise permissible with consent

DCP 60 - The Entrance 12 Unfortunately, in these proceedings, a number of matters arose which disclosed deficiencies in the provisions of Development Control Plan 60 - The Entrance (DCP 60) which is designed to guide future development for The Entrance. The relevant deficiencies will be dealt with in more detail later in this decision but were: o A number of building profiles, listed as A to D, which are described, by virtue by provisions of cl. 42 of the LEP, as being absolute prohibitions to non-conforming development. The question of the meaning of Profile D, applicable to the site, is discussed in detail later o A lack of any detail about onsite landscaping.

13 An issue arose during the proceedings as whether or not the development is prohibited because it exceeds an absolute 12 m height limit in cl 42CA(1) of the LEP which height limit is not amenable to amendment or variation pursuant State Environmental Planning Policy 1 (SEPP1).

14 I gave an immediate decision on this at the relevant time in order to assist in the expeditious disposal of the proceedings. I gave reasons and indicated I would incorporate them in my written decision and these are set out below.

15 I gave that decision on the basis of a supplementary statement made by Mr Flakelar, an employee of the firm of surveyors, who had undertaken a review of the relevant points in the survey.

16 I also had the advantage of having one of the principals of the firm of surveyors take me round the site during the second view to identify these survey points.

17 Each of the exceedances is a matter of less than 100 mm at any place and, in all instances, is significantly less than that that amount.

18 The two allotments within the site on which the exceedances are located are allotments that are already developed and have clearly had some variation in natural ground level across their surfaces as a consequence of this development.

19 I am satisfied that the exceedances of the 12 m height limit from the various points where they were disclosed as having been measured are so minor as not to be able to be determined, from the evidence before me, as not arising out of the earlier development of the sites.

20 As a consequence, I held that, absent compelling evidence from the council as to the original AHD levels of the natural ground on the site, the measured exceedances are such as to be de minimis and not capable of demonstration as departures from the original natural ground level of site.

21 I therefore ruled that I was not prepared to refuse the application on the basis of breach of cl 42CA(1) of the LEP. Remaining issues

22 Although the council filed a formal statement of issues in the proceedings, Mr Cole, solicitor of the council, later specified the matters which he submitted were determinative thus warranting refusal of the application. There were 12 of these.

23 Those matters which he said were determinative were: o The four storey unbroken wall on the east of the site which would face the New South Wales Fisheries' site across a drainage easement. He submitted that this is both an unsatisfactory addressing of the Fisheries' site and an unsatisfactory contribution to the streetscape when approaching the site from the east in the public domain. o Adequacy of design of the access to commercial tenancy 4. o Adequacy of design of the main ground floor entrances which it is submitted are unsatisfactory because: * Residential access is not separated from commercial access; * At times of a 1:100 flood, floodwaters will enter the building and the proposed ramping system is an inadequate response to protect the building; * The temporary and permanent resident entrances are not separated; * There is no access from commercial tenancy 1 or commercial tenancy 2 to the waste disposal facility except through the main residential lobby. o The driveway design is inappropriately located as a consequence of its noise and fume impacts on the amenity of Mrs Guy to the south and that rectification of these impacts by the erection of a baffle would have adverse amenity impacts diminishing the amelioration of the loss of views from Mrs Guy's premises. This is coupled with the broader issue raised by Mrs Guy of loss of views from her property. o The impacts of the height of the wall along the southern side of the site to Mrs Guy's property. o Inadequacy of landscaping. o The presentation of the wall on the southern boundary of the property at 1 Clifford Street and privacy impacts from the proposal's private open space on amenity of 1 Clifford Street. o The impact on the future development potential of the property at 1 Clifford Street would be contrary to the orderly economic development of that site as being an objective arising from s 5(1)(a)(ii) of the Act. o The absence a maritime themed appearance to the building which is contrary to the provisions of Annexure 1 of DCP 64 o Non-compliance with Profile D in DCP 60 which is an absolute prohibition as a consequence of cl 42CA of the LEP and is not amenable to variation pursuant to the State Environmental Planning Policy 1. o The existence of 14 tandem car parking spaces on the ground floor level being parking spaces designed to service the commercial tenancies. o An insufficiency in parking spaces on the site to comply with the council's Parking Development Control Plan (DCP 61).

24 Matters which Mr Cole put as contributing to refusal but not, in themselves determinative, were: o Viewing through a bedroom window immediately adjacent to the access to an adjacent apartment. o Inadequate drainage to the two staircases serving the roof terrace. o The use of the loading bay as a car washing facility. o The potential of conflict between vehicles using the loading bay and other vehicles seeking to enter the eastern car parking spaces on the ground level. o Direct access from public areas to a number of bedrooms, on all three residential levels, thus creating the opportunity for the establishment of a significant additional number of separate tenancies when the configuration of the bedrooms so served is considered. o General inadequacy of the operational waste management planning. Weight to be given to DCP 60 25 In Harb v Wyong Shire Council [2004] NSWLEC 568, Brown C and I summarised the relevant approach to consideration of the provisions of a DCP. We said, at paragraphs 38 and 39:

38 From what was said in Zhang by Spigelman CJ at para 75 on pp 386 and 387, three propositions emerge which are relevant to this appeal. o First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. o Second, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process. o Third, a provision directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

39 However, if a proposal does not meet a DCP's requirements, the Court is not precluded in appropriate cases from granting consent, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Act. Consideration of the issues

26 In considering the issue of setbacks, it was put that I should have regard to the provisions of the Development Control Plan 64. However it is quite clear from the provisions of cl. 2.6 of DCP 60 that these provisions are excluded and that, in appropriate cases, building to the side boundary is permitted by DCP 60. The relevant provisions of DCP 60, which might require some side setbacks on this site, are to be gleaned from the development principles for Precinct 1 set out at page 21 of DPC 60. 27 The relevant one reads: To minimise the potential impacts from higher buildings, taller components should be slender in design and setback from street frontages and boundaries.

28 DCP 60 also requires that, considering a proposal for re-development within the precinct, regards should be had not nearly to the desired future character but also to existing development within the precinct. 29 With respect to the Fisheries' site's development potential, the present development is not a matter of particular concern as it is evident that this site will be re-developed or sought to be re-development in the near future.

30 In evidence are plans for a large development consolidating a number of sites to the east of the Fisheries' site - leaving the Fisheries' site as an island between that re-development and the site in these proceedings. 31 NSW Fisheries have objected to the proposal and requested, in their letter of objection, that the application for the site (and that for the site to the east of the Fisheries' site) be deferred to enable further negotiations to take place concerning possible consolidation. 32 As noted earlier, the Fisheries' site has been offered for sale by a tendering process which, according to the sign at the front of the site, closed on 18 August 2004. No further information as to the fate of this site is available. 33 34 It is clear from the application for the development for the east and the present application that the Fisheries' site is not presently proposed to be aggregated with either of the developments. 35 However, the option will remain for the Fisheries' site of aggregation with 1 Clifford Street as considered with in the portion of this decision dealing with impacts on that site. In addition, the absence of specific knowledge as to what is actually occurring to this site following the close of the tender process makes it inappropriate to draw an adverse conclusion concerning development potential impacts on this site. 36 I therefore do not consider that this limit on options for aggregation of the Fisheries' site constitutes a conflict with the objectives in s 5(1)(a)(ii) of the Act. 37 On the other hand, for the purposes of impacts on the Fisheries' site, the proposed construction of a four-storey wall, effectively on the boundary of the Fisheries' site, is an element which raises concerns about future options for development on that site. 38 In addition, Mr Cole submits that I should have regard to the comparatively unrelieved presentation that this element of the building would present to those walking along the lakeside in an east to west direction when approaching the building along The Entrance Road. 39 The difficulty for the applicant in these proceedings as to its proposals to build lengths of four storey unrelieved wall on portion of its eastern boundary and portion of its southern boundary adjacent to 2 Tuggerah Parade is the fact that this site is the first major site to be re-developed in the portion of Precinct 1 to the west of Clifford Street. 40 Although the eastern development proposal includes a portion of this block to the west of Clifford Street, this application has not yet been determined by the council and, as a consequence, although concept plans are in evidence, it is not appropriate I have any regard to them. 41 No proposals exist ,of which I have any evidence, which would involve consolidation of the Clifford Street and/or remaining Tuggerah Parade properties. Indeed, the evidence from Mr D'Emanuele and Mrs Guy leads to the conclusion that no such possibility is likely to occur in the immediate future. 42 Building to the boundary adjacent to the Fisheries' site, even allowing for the fact that the drainage easement may require or create a mandated gap between developments on the two sites (although this is not necessarily the case as the council has the beneficiary of the easement could permit otherwise) would necessarily influence the nature of the development which could take place on the Fisheries' site.

43 If construction as proposed were permitted, what would be the consequences for the Fisheries' site? 44 Professor Toon gave evidence is that it is inevitable that development to the side boundary, linking visually with that proposed for this site, is the likely future character for the Fisheries' site and any development on the aggregated sites fronting Tuggerah Parade. 45 I accept that, if the present proposal were to be approved, it is close to certain that any development on those sites would effectively be forced to adopt such a development style. This is because to provide adequate setbacks for amenity to any dwellings which would have windows or balconies facing the development on this site would require major and unreasonable side setbacks on each of those adjacent sites. 46 As a consequence, the major difficulty faced by the applicant is that, as the first development in this portion of the precinct, its design response will set the design tone for re-development, whenever if it occurs, through the whole of the adjacent portion of the precinct. 47 Whilst strictly and formally within Profile D (as discussed later), Profile D is not a building line as of right but is a capable of being built to building line subject to compliance with the range of matters contained in cl. 42 of the LEP and as supplemented by the various design principles in DCP 60. 48 I am satisfied that the effect of building to the boundary to the east on this site would impose inappropriate restrictions on future development on the NSW Fisheries' site. A similar conclusion inevitable applies to limitations on future redevelopment opportunities incorporating Mrs Guy's property. As a consequence, the application warrants refusal as conflicting with the objectives in s 5(1)(a)(ii) of the Act. 49 In addition, although a wall of the nature proposed might just be immediately acceptable in the context of the view of a pedestrian approaching from the east, the nature of the development which would be forced on the NSW Fisheries' site, if the proposal were permitted, would inevitably have the effect, on Professor Toon's evidence, which I accept, of creating an unbroken length of development cross both these sites. 50 In the long term, this presentation would also inevitably, again on Professor Toon's evidence, wrap round the corner into Tuggerah Parade as far Clifford Street. Such a presentation would be a poor general planning response in the context of the design guidelines in Annexure 1 to DCP 60. I would, therefore, reject the application on that ground as well. 51 The issue of the proposal's specific compliance with these design guidelines is dealt with later. 52 Given these conclusions, the issues relating to the impact of the eastern end of the proposal on breezes to properties to the south and suggestions that such impacts may compromise the amenity of those sites does not require to be dealt with in these reasons.

53 As part of the applicant's response to the matters raised by the council, Ms Taylor, solicitor for the applicant, offered, as a condition, the requirement that there be a restriction on user created on the title which would require that commercial tenancy 4 be restricted to being used as the management office for the serviced apartment element of the proposal.

54 This response, if given effect, would limit the likely access to this tenancy compared to its other possible uses which might be available under the zoning. The question of design of the entrance of using the dual ramp system is something which is dealt with as a general proposition in the context of the broader consideration of other aspects of the design of the entrances to the building and a consequence does not need to be dealt with here.

55 The proposed restriction on user, as I understand the position, is not accepted by the council as being a complete answer to its criticisms of proposed commercial tenancy 4 but does go some way toward addressing them.

56 I am satisfied that the likely lesser visitation rates to this tenancy which it would arise as a consequence of the restriction on use that the proposed design, including its access arrangements, are adequate for this purpose.

57 In addition, this restriction on use would take this tenancy out of play for consideration of parking requirements for a possible restaurant and would enable the satisfaction of the Parking DCP to the extent of meeting the requirements for a manager and an employee to have on site parking. Design of the main ground floor entrances

Residential access is not separated from commercial access

58 During the course of the hearing, I raised with Mr Layman and Professor Toon the question of whether the incorporation of a set of inner doors to each of the main entrance ways would assist in addressing the question of separation of residential access from access to commercial tenancies 1, 2 and 3.

59 Leave was granted to permit the applicant to amend the plans to reflect a sketch plan of this by Professor Toon.

60 Mr Layman conceded that such additional doors would assist but would, in his opinion, still leave an unsatisfactory design in other respects. These other respects are dealt below.

61 The redesign of the foyer also a separates access from the loading dock so that the loading dock access would now be entered from the more publicly accessible of area of the entrance foyer rather than from the proposed to be created inner foyer serving the residential areas.

62 I accept that the redesigned the foyer provides a significant degree of separation of the residential access from the general access to the commercial tenancies. 63 However, given the possibility (and perhaps even likelihood) that a number of these tenancies would be for restaurant style uses, even accepting Mr Hazell's seating spacing and back/front of house ratios as being the most advantageous to the applicant, and also accepting the council has not raised, as an issue, the adequacy of the number of toilet facilities serving the these tenancies, the issue which remains of concern to me for this aspect of the design of the entrance foyers is the necessity for all of the patrons of the commercial tenancies to access toilet facilities through the entranceway. 64 Access to the toilets which would serve the commercial tenancies will still be across the entrance foyer and, for tenancy 3, these toilets would need to be accessed through the inner residential foyer area as there are no toilet facilities provided for this tenancy. 65 This is conflict of access unacceptable as it does not provide an appropriate separation of uses. This poor design warrants refusal in its own right. Floodwaters entering the building 66 The site is located in an area that requires provision to be made against the possibility of a 1:100 flood event causing water to enter building.

67 The applicant proposes to prevent this by having a ramp and ramp down treatment to all the entrances to the building - thus effectively providing in informal levee system inside the perimeter of the building.

68 It is the council's position that this is inappropriate. The council, however, offers no suggestion as to how such flood protection could be achieved whilst still having a building designed to the number of floors which would otherwise be permitted within the inflexible maximum building height limit for the site.

69 To require raising of the building to provide such flood protection would, effectively, require either ceiling heights that were unacceptable for one or more of the residential levels or require the removal, in its entirety, of one of the residential levels.

70 The first of these options appears to me to be entirely inappropriate and a poor design response and the second to fall within the "sledge hammer to crack a peanut" category.

71 As there is no other available method for protecting the building against the flood risk, I am satisfied that the treatment proposed by the applicant is acceptable.

The temporary and permanent resident entrances are not separated 72 Although separation of the entrance lobbies for the two classes of residential accommodation might, in the abstract, be desirable, I am satisfied that, in the present circumstances, provision of an additional lift is unnecessary given the number of the proposed residential units in the building. 73 The only possible alternative to a separate lift would be to provide separate stair access only to the lower residential floors. 74 This is, self-evidently, an undesirable position given the likely residential mix for the building and would not permit disabled access to that area of the building.

Commercial waste disposal facility via the main residential lobby

75 As a consequence of Professor Toon's redesign of the entrance foyer area, a new door from the rear of commercial tenancy 1 is proposed to the car park. This will enable the removal of waste generated from this tenancy and its transportation to the waste and recycling room without any conflict with those entering the building.

76 However, waste to be removed from commercial tenancy 2 will still require to be transported across the entranceway from The Entrance Road to the waste disposal and recycling area. Although this is not optimal design, it is not a sufficient defect to warrant refusal on its own. It does, however, make a contribution the overall inadequacies of the proposal warranting refusal.

77 I have considered the question of the impact of the proposal on views from Mrs Guy's property in the context of the location of the proposed driveway and its now proposed further setback from the road.

78 DCP 60 also lists, generally, in Part 3 - Design Considerations under the heading of critical design considerations in 3.1 at (b) the compatibility of the proposed development within the broader urban context ie the relationship of the building with existing and future development in the locality.

79 Part 3.1 (f) adopts the concept of view sharing and the degree to which the proposed development interrupts existing and critical views as being a matter which I should have particular regard pursuant to DCP 60.

80 I have tested the impact on the views from Mrs Guy's property pursuant to the principles set out by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140. I do not proposed to set those principles out in their entirety. However, I adopt those principles as being appropriate to be applied, relevantly, in this case.

81 It is sufficient, in the present circumstances, to note that the view loss which would be experienced by Mrs Guy is one which is across the side boundary of the property but is, nonetheless, a valuable view being a significant water view. It is, on her evidence, however one which she regularly enjoys but does so from a seated position in the living area.

82 I therefore turn to consider the reasonableness of this impact on her views. Significant views will still be available from her property, across the council's park to the lake. These views, I accept, however, are not as attractive nor as likely to be as uninterrupted as those which will be impacted by the proposal. I conclude this because of the nature of a number of structures erected in the foreshore park by the council and the fact that, at least at high visitation periods, there is likely to the a significant level of human and committee in the area between Mrs Guy's property and the lake to the west.

83 However, on fine balance, I consider that view losses caused to Mrs Guy would be acceptable because of the views are across her side boundary and from a seated position.

84 I have already dealt with the setback issues relating to the southern wall in the context of the discussion of impacts of a similar wall adjacent to the Fisheries' site. However, it is also necessary to consider the overshadowing impacts of the proposal on Mrs Guy's property. 85 Professor Toon concedes, in his written statement, that the degree of overshadowing of 2 Tuggerah Parade would, in normal residential circumstances, be unacceptable. He commented, however, that he did not consider residences in this area to be in normal circumstances and he did not expect the adverse affectation to be long-lasting.

86 However, the development control plan requires that consideration be had not merely of the impacts on future developments but also the impacts on existing development during the transition periods. The description of principles in DCP 60 for Precinct 1, the precinct within which the proposal is located, requires that designs for any development shall have regard to the relationship of the proposed buildings with adjoining and surrounding development in the locality - both existing and future.

87 As consequence, although I accept that it is inevitable, in the fullness of time, that some differing form of development will be located on 2 Tuggerah Parade, nonetheless the proposal for the site must have regard to the existing development and the amenity of those residing in it.

88 In this instance, DCP 60 at 2.14 has, as its first objective, the avoidance of an unreasonable reduction in sunlight access to the open spaces of surrounding properties. 89 I satisfied that the effective elimination of sunlight access to the rear yard of Mrs Guy's property is such a conflict with the aspirations provided in DCP 60 as to be unacceptable. Whilst, perhaps, on its own, this would not warrant refusal, it does make a significant contribution to such refusal.

Landscaping 90 DCP 60 contains no detailed provisions relating to landscape design. It provides in Part 3 - Design Considerations, at 3.2 - Other Design Considerations, a list of other matters that should be considered in the design of any development. These include appropriate landscape design.

91 In the development principles for Precinct 1, the only reference to landscape works is a reference to such works within the road reserve and along the foreshore promenade.

92 Although the proposed landscaping for this development is minimal, in the absence of any more detailed requirements being contained in the DCP, I can see no basis upon which I could reasonably conclude that the landscaping, such as it is, is inappropriate.

93 This area of design is one instance of the obvious inadequacies of this DCP.

94 These amenity and privacy impacts were deferred during the hearing and, given the conclusions I have otherwise reached as to the unsuitability of the proposal, do not require to be addressed in this decision.

The future development potential of 1 Clifford Street 95 Mr Hancock, a town planner, gave evidence on behalf of the owners of 1 Clifford Street that the value for redevelopment purposes of that allotment would be lowered as a consequence of approval of the proposal.

96 He expressed this view for a number of reasons including the fact that, in his assessment, the proposed development was borrowing amenity rather than dealing with those matter on its own site. This and other possible amenity impacts, as earlier noted, have been deferred so I do not deal with them in the context of this issue.

97 I am satisfied that the present proposal, self evidently, limits one aspect of the development potential of 1 Clifford Street by not proposing to incorporate it with the site. Whilst there might be abstract advantages in doing so by, for example, locating of the vehicle entrance to be located in Clifford Street, the choice not to seek to do so is one already made by the applicant.

98 I accept that 1 Clifford Street has, effectively, no viable redevelopment opportunities by itself.

99 There is no opportunity for 1 Clifford Street to be incorporated in the major redevelopment proposed to the east as it does not share a boundary with it - having the Fisheries' site between it and that development.

100 There are, however, two possible opportunities for future redevelopment of 1 Clifford Street.

101 The first is the Fisheries' site itself. The second is with the three remaining properties facing Tuggerah Parade.

102 It was Professor Toon's evidence that the three residential properties facing Tuggerah Parade, to the south of the site, if aggregated without 1 Clifford Street, would fall short of 1800 square metres and thus fall short of qualification for possible development bonuses. I did not understand this position to be contested.

103 I accept his resulting conclusion that this is a viable redevelopment opportunity for 1 Clifford Street.

104 Whilst the development potential of 1 Clifford Street would be limited by approval of the proposal, I am not prepared to conclude that it would be so significantly adversely affected as to be contrary to the objective contained in s 5(1)(a)(ii) of the Act. There is certainly no suggestion that it would be left an orphan site as a consequence of the proposal currently being considered.

105 Although it is possible, under some future development scenarios, that 1 Clifford Street would run the risk of being left an "orphan", the present application would not effect this.

106 I am therefore satisfied that it would not be appropriate to refuse the present proposal on the basis of the limitations that it might cause to the future development potential of 1 Clifford Street merely by its existence as a development.

107 This conclusion, expressly, sets aside consideration of any amenity and privacy impacts which might arise from development on the site as these could, separately, conceivably, have a serious impact on the development potential of 1 Clifford Street. "Maritime themed" appearance 108 DCP 60 sets out, in various locations, the requirements for new developments to have, amongst other things, a maritime theme to the design.

109 In Part 2 - Controls and Design Guidelines, at 2.9 - Maritime Design Themes, the DCP clearly articulates a desire to have developments be consistent with the design features, colour schemes and construction materials set out in Annexure 1 to the DCP.

110 This annexure, when dealing with maritime features, sets as its objective to provide a range of features which create an identifiable maritime character for The Entrance Town Centre and immediately surrounding residential areas. It sets a number of controls for meeting this objective.

111 The relevant controls are in 11 separate points. I do not proposed to set them out in their entirety as it is not necessary to do so to deal with them concerning the present proposal. 112 It is sufficient to note that, of these controls, the present design could, at best, be described as, at least in part, meeting the controls for sail structures, circular features and colour schemes.

113 The council's position, however, is that the requirements forbid straight, unbroken street presentations and express the desire, in the first control, for the incorporation of wave and dune shapes and other features of the design controls ought be met by the proposal.

114 I am satisfied that the designers of the present proposal have made some, modest, attempt to address these controls. This is obvious from the nature of the development (although now somewhat modified) as depicted in the photomontage.

115 However, nonetheless, the development proposed is, dominantly, in its presentations to its two street frontages, a conventional upright building of straight parallel vertical or horizontal surfaces.

116 It was not suggested that the controls in Annexure 1 of the DCP are hierarchical and I have not so regarded them. 117 However, I am satisfied that a breaking of the traditional straight vertical horizontal lines of the building, at least to some greater degree, beyond merely a rounding at the corner of the two streets, is necessary to lift the design from, on fine balance, just failure to meet the objective to a just pass in meeting that objective.

118 Although I would not refuse the application if this were the only impediment to an approval, I am satisfied that this design inadequacy reinforces the other bases for rejection.

Non-compliance with profile D 119 DCP 60 contains an element, presented schematically, called profile D. It and the three preceding profiles are used by DCP 60 to delineate the profiles of acceptable development in various locations. Profile D is applicable to the site.

120 The LEP provides that any proposal cannot exceed the relevant profile. This is not amenable to SEPP 1 objection.

121 The profile sets not merely the maximum height for the building but also, Mr Cole submits, the setbacks at the second and third levels and the acceptable balustrading heights.

122 It is not suggested that this is a "build to as of right" profile but merely that it is the maximum to which an otherwise compliant proposal might aspire.

123 The depiction of Profile D is entirely unsatisfactory. This is one major instance of the obvious inadequacies of this DCP.

124 Mr Cole submits that I should regard the depictions in Profile D at the street edge of the third and fourth levels as depicting balustrading which must be restricted to the height scaled from the profile (and which must be capable of being seen through and of St Andrews cross design - to be consistent with his position). 125 If this is correct, the type of balustrading depicted is balustrading that would not comply with the Building Code of Australia's safety requirements. 126 The code requires that balustrades not be constructed in a fashion which would permit young children to get through them. This is, obviously, a clearly desirable position for balustrades, generally and, particularly, for those which are three or four levels above the ground.

127 The balustrading would also be limited to a height above its floor level that would provide no privacy between adjacent dwellings.

128 In the present case, I am satisfied that the proposed partitioning between the various balconies would be compliant with profile D.

129 I consider that the only logical way to construe Profile D and give it a proper purposive meaning consistent with lawful construction is that it is intended to depict the minimum acceptable setback of the primary walls parallel to the street alignment at the third and fourth levels of any otherwise height compliant building. 130 Having concluded that this is the real intention of the profile, I am satisfied that the present design complies with Profile D. 131 I have reached this conclusion because the balustrading depicted on the diagram could not, conceivably, be intended to be definitive to the extent necessary to conform to Mr Cole's submissions. To go beyond this involves concluding that the drafter intended to require unsafe and illegal balustrading - clearly an absurdity. 132 As a consequence, the profile cannot be regarded as excluding appropriately heighted privacy screens between balconies.

Tandem car parking spaces 133 Mr Hazell gave expert traffic and parking evidence on behalf of the applicant. 134 It was Mr Hazell's uncontradicted evidence that the provision of tandem car parking spaces was not in breach of any Roads and Traffic Authority guidelines, any Australian Standards or the council's own Parking DCP.

135 Mr Layman expressed the opinion that he thought to that such spaces were in breach of one of the standards but was unable to specify which one.

136 In addition, Mr Hazell expressed the opinion that there was likely to be an absence of conflict concerning the use of these spaces because it was probable the inner one of each of them would be used for employee parking and for client parking in the outer.

137 I accept Mr Hazel's evidence in both these aspects as it is uncontradicted. I am therefore satisfied that the provision of tandem car parking spaces, as proposed, is appropriate and acceptable.

138 There is a difference in calculation of the number of parking spaces required for the development. This arises as Mr Hazel and Mr Layman use differing bases for calculating what may be the number of patrons for any food or restaurant facilities located in the commercial tenancies. On Mr Hazel's figures, there would be a maximum deficiency of ~9 places and, on Mr Layman's, one of ~18 spaces. This is a deficiency however calculated. 139 Although, if I were required to do so, I would prefer the restaurant seating calculations offered by Mr Layman based on his design experience for such facilities, it is not necessary for me to choose between the deficiencies in parking spaces put by these witnesses given the overall conclusion which I have reached, on other grounds, concerning the proposal.

140 Although there was some discussion of the possibility of a s 94 contribution plan enabling any car parking deficiency to be remedied by contribution to off site parking facilities to be provided by the council, it is obvious that such a contribution plan is not likely to come into effect prior to the middle of 2005, at the earliest.

141 Whilst such a plan might well provide an effective method of dealing with a parking space deficiency, it is not appropriate that I endorse that approach in this decision given the broad conclusion which I have otherwise reached.

142 Although by the time any further application is lodged to the council, it might well be that dealing with any resultant parking deficiency can be addressed through such contribution plan, this is a future matter for the parties.

Other matters Viewing through a bedroom window immediately adjacent to the access to an adjacent apartment .

143 As originally designed, a bedroom window of one unit was immediately adjacent to the entrance door to another. The applicant acknowledged that this was an inadequacy and responded by relocating the proposed bedroom window so that it would overlook its own doorway rather than doorway of another residence. Whilst this is not optimal design, this would have been acceptable, under the circumstances, and does not warrant nor contribute to warranting refusal.

Inadequate staircase drainage 144 This matter could be dealt with by condition and would neither warrant nor contribute to warranting refusal.

Car washing facility 145 Mr Hazell's evidence was that, provided appropriate bunding and water disposal arrangements are incorporated in the design, the use of the loading bay as a car washing facility is a design element considered acceptable. 146 Mr Layman indicated that he considered that it was, in principle, undesirable. 147 I accept the uncontradicted evidence of Mr Hazell that such design is accepted as conceptually appropriate and there is nothing specific to this application which would render it otherwise.

148 Although there is some prospect that there might be a conflict between vehicles entering and leaving the ground floor parking, I am satisfied that this could be resolved by a condition requiring, at an appropriate location, installation of a convex mirror and that this is a common resolution of such circumstances. Direct access from public areas to bedrooms 149 The council's position is that the having of external doorways to a number of the bedrooms, considering the layout of space within those bedrooms, would permit of those bedrooms to separate occupancies. This could be achieved by, for example, by converting the wardrobe space to provide unauthorised kitchenette facilities. To avoid this, the council proposed that the doorways should be removed and replaced with windows.

150 Professor Toon's evidence was that it was appropriate to have such doorways for ease of access from the bedrooms to outdoor facilities and for leaving the premises. 151 However, I am satisfied that the risk of unauthorized occupancies is unacceptable. I so conclude because, given the location and the nature of the holiday precinct within which the development is to be located, it is reasonable to expect there might be some succumbing to temptation to create opportunities for such separate occupancies. 152 I am also satisfied that it is desirable planning that that be prevented. 153 Had this being the only impediment to approval of the proposal, I would have dealt with this matter by a condition requiring the removal of the external doorways to these bedrooms and their replacement by windows. Operational waste management planning.

154 Although there has been no detailed operational waste management plan provided as part of the application, if this had been the only impediment to approval, I would he have granted an adjournment to the applicant, if sought, to enable it to address this matter and to enable the council to respond to any plan provided. Conclusions 155 There are a number of separate matters which each warrant refusal of the application together with others which, although not warranting refusal in their own right, support such a result. The appeal should, therefore, fail. Orders 156 The orders of the Court, therefore, are: 1. The appeal is dismissed; 2. Development Application 194/04 for the demolition of four existing houses and erection of a mixed commercial/residential building at 1 to 7 The Entrance Road and 1 Tuggerah Parade, The Entrance, (being Lots 1,2,3 and 5 DP23428) is determined by the refusal of development consent; 3. Costs are reserved; and 4. The exhibits are 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.