Visual impact of the bed and breakfast proposals as a whole
75Because of the conclusion that we have reached concerning permissibility of the bed and breakfast elements of the proposal is one which might be challenged pursuant to s 56A of the Land and Environment Court Act 1979, we also consider it appropriate, consistent with the objectives set by s 56 of the Civil Procedure Act 2005 for the just, quick and cheap resolution of the issues in dispute between the parties to consider the remaining merit aspects relating to the overall bed and breakfast element of the proposal.
76We have done this so that, if we were to be wrong in concluding that that a relevant and critical pre-requisite threshold requirement under the 1990 LEP had not been satisfied, the parties would not need a further hearing, on a remitter, concerning those matters as our conclusions on these merit matters are also fatal to the bed and breakfast element of the proposal.
77As a consequence, the first element to which we turn our attention is the council's contention that the visual impact and presentation of the bed and breakfast elements of the development proposal is unacceptable.
78As earlier noted, Mr Dickson, the expert proposed to give evidence on these matters on behalf of the applicant, ceased to be available to give evidence during the period after the site inspection took place and prior to the courtroom evidence on this topic.
79As a consequence, with respect to urban design and visual impact assessment expertise, the evidence given on behalf of the council by Ms Morrish and Dr Lamb, respectively, is uncontradicted. On the other hand, although there is no expert evidence produced by the applicant to rebut these opinions, Mr Pickles had tendered photographic evidence on behalf of the applicant of earlier periods in the hotel's development and earlier built form on the headland site. Mr Pickles submitted that these photographs established both the past presence of (and earlier acceptability of) buildings on the headland further to the east than the present accommodation wing on the site - a built element that has survived from the earlier development phases of the hotel.
80In addition, it is relevant for at least part of our visual impact assessment to have regard to the schematics that were produced by Mr Dickson and which remained in evidence despite his cessation of participation in the proceedings. One of his schematics we found of particular assistance during the site inspection was that produced from the perspective of the headland immediately to the south of the site (although it is produced as a perspective taken from a point some 30 m or so to the west of the place where this was discussed during the course of the site inspection). This schematic is reproduced below:
Figure 3 Mr Dickson's schematic
81In summary, the position put by Dr Lamb is that the visual impact of the collective row of bed and breakfast elements of the proposal is unacceptable when viewed from the immediate north or in an immediate streetscape context. His position on this, as we understood it, was that the development was too suburban looking in its presentation with a series of separate driveways and lack of opportunity for vegetative screening. He expressed a preference for a greater massing and was of the view that a single, larger building (that made it obvious that this was a tourist complex rather than a row of residences) was a preferable design outcome.
82He did, however, express the view that eliminating all vehicle access (or at least significantly lowering the number of driveways) from Headland Avenue in its entirety would render these elements of the proposal acceptable - at least to the extent of those proposed on proposed Lot 3 through to proposed Lot 5. He retained a specific objection, on visual impact grounds, to the proposed developments on proposed Lots 6 and 7.
83Had we reached some different conclusion on the unacceptability of the overall visual impact of the of the collective bed and breakfast elements of the proposal, Lots 6 and 7 would have required separate detailed visual impact assessment, in addition to this overall general visual impact consideration. However, given our overall conclusion on the unacceptability of this row in its entirety, we do not need to undertake this further consideration.
84Ms Morrish's position, as we understood it, was that the design of the built form proposed for the bed and breakfast elements of the development proposal was repetitious and not of high design standard which, in urban design outcome terms, she considered was necessary given the dominance of the headland when viewed, particularly, from the north.
85As earlier noted, because Mr Dickson ceased to participate in the proceedings, these opinions were uncontradicted. They also, in general, are consistent with the opinions we formed during the course of the site inspection and our consideration of Dr Lamb's photomontages and the various schematics produced by Mr Dickson depicting the development when viewed from the north. These general opinions are quite separate from any distinct and specific concerns relating to the proposed bed and breakfast elements on proposed Lots 6 and 7.
86We do not consider that, taken by themselves, Ms Morrish's concerns warrant refusal of the bed and breakfast elements as a totality. The standard of design against which we are obliged to assess the proposal is mere acceptability rather than a requirement for design excellence. Whilst we do accept the proposition that the nature of this site warrants special assessment because of its prominence, nonetheless the repetition of the design elements and the modesty of the design aspirations, in themselves, do not warrant refusal of the totality of this element of the development proposal. However, the combination of the ordinariness of the design when coupled with the uncontradicted criticisms by Dr Lamb, which we accept from our own observations during the course of the site inspection to be valid, does provide the basis for refusal of the bed and breakfast elements.
87Although we do not propose to undertake the separate assessment of the elements of the bed and breakfast proposal located on proposed Lots 6 and 7, the broader possibility of rendering those elements of the bed and breakfast proposal located on proposed Lots 3 to 7 - being those proposed allotments that have driveway access proposed from Headland Avenue - acceptable should be undertaken. This arises as the unacceptability of the bed and breakfast proposal would, in Dr Lamb's opinion, be sufficiently addressed if it were possible to remove all driveway access (or at the very least, dramatically reduce) the number of driveways from Headland Avenue. Access to the elements of the bed and breakfast proposal located on proposed Lots 1 and 2 is to be from Yuruga Street.
88For the reasons which we set out below, we do not believe we are in a position to be satisfied that either of these alternatives could be available as an outcome to be imposed by us in these proceedings.
89We turn, first, to the proposition that all driveways for these eastern five proposed bed and breakfast premises could be provided underground from the rear (utilising some form of mandated right-of-way over and redesign of the car park of the proposed serviced accommodation/spa resort development).
90Whilst there are nine separate proceedings rather than a single appeal, we do not consider that that fact is likely to provide a procedural hurdle (in that it was clear that the applicant would accept necessary conditions in all relevant appeals to give effect to such an outcome) to doing so.
91The insurmountable difficulties in these proceedings to addressing Dr Lamb's concerns by requiring access from the rear is that we have:
- no evidence of what parking layout design would be required to do this;
- no evidence of what would be the impact, if any, on the configuration or availability of parking, on the present proposed parking arrangements within the proposed serviced apartment/spa resort development; and
- no evidence, assuming that there were no engineering or any other construction issues that would arise, of how access to 5 separate residences operated as bed and breakfast establishments could be managed so as to provide reasonable accessibility to those establishments coupled with appropriate levels of security and parking control for the proposed serviced apartments/spa resort development.
92Further, as the creation of underground rear access parking for these five proposed bed and breakfast establishments would necessitate redesign of interior spaces as a consequence of the removal of garages accessed from the Headland Avenue frontages of the relevant allotments, we have no evidence as to what would be either the design alterations to the buildings or the use of the spaces that would become available.
93For those reasons, we are unable to adopt that option as a possible method of overcoming the combined impact of the design and visual imperfections of these elements of the proposal.
94A similar outcome, although for less complex reasons, necessarily follows in consideration of the possibility of cutting the number of driveways from Headland Avenue. We have no information on what might be the impact, if any, of doing so on any of the Norfolk Island pine trees; we have no evidence of whether acceptable designs or gradients are capable of achieving such reductions; and we have no evidence of whether any alterations might be necessary to any of the garage access apertures or the overall building facades if this were to occur.