Palmer v Mosman Municipal Council - [2008] NSWLEC 1509

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Palmer and Anor v Mosman Municipal Council [2008] NSWLEC 1509

PARTIES:
APPLICANT
Palmer, Bryan and Anor

RESPONDENT
Mosman Municipal Counicl

FILE NUMBER(S):
10185 of 2008

CATCHWORDS:
Development Application :- Driveway construction in unformed road reserve; Visual impacts alienation of public open space; traffic/access, public interest

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Roads Act 1933 No 33
Mosman Local Evronmental Plan 1998
SREP NO 55
SREP (Sydney Harbour Catchment 2005)

CORAM:
Hussey CTaylor C

DATES OF HEARING:
2/09/2008 17/11/2008

JUDGMENT DATE:
30 December 2008

LEGAL REPRESENTATIVES

APPLICANT
Mr C Leggat SC
instructed by Mr C Shaw
of Shaw Reynolds Bower and Gerathy

RESPONDENT
Ms J Hewitt SC
of HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C
Taylor C

30 December 2008

10185 of 2008 Palmer Bryan &Anor v Mosman Municipal Council

JUDGMENT

Background

This appeal was lodged against the deemed refusal of a development application for the construction of a basement car park for 6 vehicles and ancillary driveway and landscaping works to a residential flat building (known as Clifford Apartment building) located at No 1 Musgrave Street, Mosman. This 3-storey building was constructed without on-site car parking.

The property has a direct water frontage adjacent to Little Curraghbeena Point and also frontage to the southern end of Musgrave Street, which is unformed and in a natural state. This unformed section is part of a small waterfront reserve, which consequently restricts direct, vehicular access to the property.

Approximately 30 m to the north of the property, Musgrave Street terminates in a cul-de-sac. However a widened section has been constructed adjacent to this, which provides for limited parking for two vehicles in connection with the nearby Mosman South ferry wharf.

As the proposal involves the construction of the driveway within the road reserve, the following issues were identified for the appeal:
Visual impacts as viewed from Sydney Harbour, Mosman Bay and the foreshore.
      The alienation of the public road space for the vehicular accessway is unsatisfactory.
      Traffic and pedestrian impacts.
      Adverse impacts on the structural stability of the seawall.
      Impacts on adjacent Aquatic Ecological Community.
      Public interest.

The site.

The subject site is situated on eastern side of Musgrave Street and comprises the following 4 parcels (as shown in Attachment A):
Property 1: The site on which the 4-storey apartment building is located and described as follow;
Lot 1 in DP 951864.
       It is zoned Residential 2 (b)
       It is irregular in shape due to its southern boundary being defined by the Mean High Water Mark.
       The area of this parcel is approximately 400 sq m.
Property 2 : The site on the northern boundary of property 1 which is described as follows;
Lot 1 in DP 115870
      It is zoned Residential 2 (b).
      It is rectangular in shape.
      The site area is 201.78 sq m.
      This lot does not have any substantial buildings on it but has been developed as a pedestrian access to        both No. 1 Musgrave Street (otherwise land locked site with no formal right of way).
Property 3: The site is on the southern boundary of property 1 which is described as follows;
It is reclaimed land and its southern boundary with the Harbour is a stone retaining wall and is unzoned      land.
      The is no legal description of the subject property
      It is site area is approximately 33 sq m.
      The applicant has submitted in the SEE that the property is leased from "The Marine Ministerial Holding     Corporation".
Property 4: This site is located along the western boundaries of the above three properties and forms part of the Musgrave Street road reserve.
The portion adjacent to the western boundaries of properties 1 & 2 is zoned 6(a) Public Recreation.
There is a narrow portion between the 6(a) Public Recreation portion and the Harbour. This is road reserve.
This last portion is considered by Council's Strategic Planning Unit to be an anomalous zoning and is part of a series of similar items which are being considered for rezoning to "tidy up" the zoning map of the LEP as part of the introduction of the Standard LEP which is before the Department of Planning. It is intended to rezone this portion 6(a) Public Open Space to match the adjacent portion and reflect its land use and function.
The formed portion of Musgrave Street does not extend past any point where it has a common boundary with properties 1 and 2. Both the road reserve and the 6(a) Public Recreation zone portion of Property 4 are developed, landscaped, maintained and function as public open space known as Little Curraghbeenah Reserve.
The site is in the vicinity of locally listed items being the divided part of Musgrave Street and the adjacent Herron Walk Steps.
The proposal
The proposal involves:
Alterations and additions to convert the existing basement level of the apartment building to provide 6 car spaces.
The construction of an access driveway on the existing unformed Musgrave Street alignment. This includes the construction of a turning area at the southern end, adjacent to the waterfront with a diameter of approximately 10m.
Associated landscaping of the site, including removal and replacement of mature vegetation on the road reserve.
Planning controls
Mosman LEP 1998 (MLEP 1998). Under this LEP, properties 1 and 2 are zoned 2(b) Residential. The proposed works are defined as ancillary to the use of the site for a multi-unit dwelling and are permissible with consent.

The site is within the Foreshore Scenic Protection Area and the Foreshores and Waterways Area as defined by the SREP (Sydney Harbour Catchment).

Property 4 is zoned 6(a) Public Open Space.

Mosman Residential DCP. This DCP contains a performance based approach to guide development to achieve desired planning outcomes. Of relevance, section 3 requires a site analysis for the proposal. Section 4 contains the primary planning controls and section 5 site planning and design requirements. Section 6 contains the townscape controls that apply to the Mosman Bay Precinct.
Other controls include:
State Environmental Planning Policy No 55 - Remediation of Land.
Sydney Regional Environmental Plan (Sydney Harbour Catchment 2005)
Sydney Harbour Foreshores and Waterways Area DCP 2005.
The evidence
Detailed evidence on behalf of council was presented by:
Ms C Muir; Council planner
Mr S Sathanesan; Council's traffic engineer
Evidence for the applicant was presented by:
Mr L Hunt;  Consulting planner
      Mr M Logan;  Traffic consultant
      Ms N Sonter;  Landscape consultant
      Mr D Ford;  Consulting arborist.
      Dr D Martens;     Consulting geotechnical engineer.
Traffic issue
Traffic issues are one of the primary concerns raised in this matter. This involves a number of aspects including safety risks for vehicles and pedestrians arising from the increased usage of the driveway, loss of parking space and construction impacts in terms of the road grading alignment.

Musgrave Street is the main access road to the Mosman South ferry wharf, where it terminates in a cul-de-sac near the steps. From the cul-de-sac there is a narrow pavement, approximately 2.5 m wide adjacent to the bus shelter, extending approximately 16m beyond the cul-de-sac head. This allows access for 2 parking spaces on the western side of the road reserve. These spaces are currently being used as "construction zone" parking.

The proposal involves the widening of this section to a single carriageway driveway with a minimum of 3 m adjacent to the bus shelter. This single carriageway is to continue to the basement entry location, where a turning area with a diameter of approximately 10 m is to be constructed adjacent to the waterfront. It is proposed to retain a widened section in the vicinity of the 2 existing car spaces, to allow passing.

As the use of this driveway would allow shared-use by both vehicles and pedestrians, concerns were raised about permissibility and safety. Consequently, the traffic proposal was referred to the RTA for comment because it has jurisdiction over low speed (10 km/hr), "shared zones".

The RTA responded that approval for a 10 km/hr shared zone was subject to the following assessment criteria and included its assessment:
.1 A shared zone is to be less than 250m in length.
The length of Musgrave Street, Mosman has been assessed as suitable for the installation of a shared zone
.2A shared zone road environment is to be significantly changed from a normal road environment.
The proposed plan supplied by John Coady Consulting shows paving of the entire length of Musgrave Street, Mosman providing visual indicators to motorists that they are entering a different road environment. This is considered appropriate as it would significantly change the appearance of the existing road environment.
.3A shared road environment should be a self enforceable 10 km/h speed zone.
A shared zone is required to deliver a self-enforcing low speed environment. The RTA notes that the road is currently proposed and no 85th percentile traffic exists. It is considered that the proposed road width and alignment will provide a self enforceable 10 km/h speed zone.
.4The traffic volume in the shared zone is to be less than 3000 vpd.
The RTA notes the data supplied by both Mosman Council and John Coady Consulting and considers this suitable for a shared zone.
.5There are no designated pedestrian facilities within a shared zone.
There are currently no pedestrian facilities to be proposed on Musgrave Street, Mosman which is suitable for a shared zone.
.6Speed zone signage is to be installed by the RTA in accordance with Technical Direction TD 2000/6 -Shared Zone Signs.
Under the delegation for speed zoning in New South Wales, the RTA will co-ordinate the installation of all 10 km/h shared zone signs and pavement markings associated with the reduction in speed limit in accordance with Technical Direction TD 2000/6 - Shared Zone Signs.
Parking Restrictions
.7Parking within a shared zone must be in accordance with Australian Road Rules. It must be within marked bays or regulatory signs.
The proposed plan supplied by John Coady Consulting shows there will be no parking inside Musgrave Street, Mosman. This suitable for a shared zone.
On the basis of this assessment, the RTA subsequently confirmed on 14 November that the proposal meets its requirements for the installation of a 10 km/h shared zone and it was therefore supported on traffic consideration grounds, including safety, signage and speed issues. Mr Sathanesan ultimately raised no objection on traffic grounds to the proposal.

Notwithstanding this, other aspects of the access way were discussed and these include possible impacts on the adjacent seawall, loss of the 2 public car parking spaces and planning considerations regarding visual impacts and alienation of open space. These matters are dealt with subsequently.

Dr Martens assessed the possible impacts arising from the driveway construction and any associated bearing impacts on the seawall. From his investigation, he says that the fill bearing pressures are adequate to accommodate the proposed roadway pavement and traffic load. Also, that allowing for the medium to dense sandy nature of the materials, then any surcharge loads on the walls would be relatively low and well within the capacity of the seawall to accommodate.

Consequently, the Court relies on Dr Marten's opinion that the geotechnical concerns can be covered by appropriate conditions of consent. This includes the piering of the road pavement to prevent any surcharge.

Insofar as there was some discussion about the respective roles of the Local Traffic Committee and Council in the overall approval process, the Court is satisfied that based on the evidence presented to the Court, the traffic issue can be addressed by conditions of consent and the proposal does not warrant refusal on this basis.

Access way, visual impacts and landscaping

The visual impact of the proposed driveway and associated changes to the natural topography of the open space is the threshold issue in this matter. This situation is due to:
The reduction in the current open space area comprising the combined area of the unformed road reserve and adjacent unzoned waterfront reserve strip from 343 sq m, to 117 sq m after construction.
       The operation of the driveway requires the construction of the turning area with a diameter of approximately           10 m, adjacent to the harbour.
       The driveway construction involves some cut and fill sections, which are to be retained with sandstone wall        facings. The surface is to be paved with 'dark organic coloured pavers'.
       The proposal also necessitates the removal of some mature vegetation along the driveway alignment. The applicant intends to replace this with nominated native species, including Angophra Costata.
       It is also proposed to replace the existing natural open space area with a more formal open space setting.    This incorporates planter beds adjacent to the driveway and the provision of a paved seating area adjacent               to the foreshore (Refer Attachment B).
There are 3 trees proposed for removal from the foreshore. They include 2 Norfolk Island Hibiscus that are in the order of 10-12 m high and with a spread of 6-8 m. The other is a Port Jackson Fig, which is about 6 m high and has a 6 m spread.

Mr D Ford, who is an experienced arborist, assessed these trees. He says that the fig has been unsympathetically pruned in the past and is in declining condition, having a useful life in the order of 10 -15 years. With regard to the hibiscus, he says that they are mature trees that have been badly pruned to the point of structural compromise and that they have a retention period of 5-15 years. According to Mr Ford, this hibiscus has allergenic properties that is leading to the progressive deletion of the species from other local council's lists of protected or suitable trees. In the current circumstances, he supports the removal of these 3 trees on the basis that suitable natives replace them.

Both the planners and Ms Sonter agreed that the loss of these 3 trees, together with the proposed open space reduction would "detrimentally affect the visual amenity/'green' appearance of this road reserve land in the short term".

Ms Muir does not consider this affectation will be ameliorated by the proposed plantings, even in the longer term. Furthermore, she says that the removal will open up views of the neighboring apartment building "Washington" and that the proposed driveway/road "will dominate the view of Little Curragbeena Reserve as viewed from Sydney Harbour, Mosman Bay and the foreshore". According to Ms Muir, Little Curraghbeena Reserve has been a public amenity for a long time since the 1930's.

Against this, Ms Sonter's opinion is that the short-term detrimental impact on the road reserves green appearance, will be progressively ameliorated by the proposed landscaping. Following the removal of the 3 trees, the rock face and landscaping will be revealed, however this will be adequately screened by the plantings. Also, the proposed Angophras are capable of achieving 15 m in height and 10-12 m spread and as they are endemic to the area, they are far more appropriate and will subsequently make a positive landscape contribution. Ms Sonter says the proposed planting will enhance the visual amenity of this area.
Mr Hunt also supports the proposal, in part because the proposed road extension is a public road reserve to which adjoining owners are entitled to take access under the Roads Act. As a significant part of the land is unzoned road and the public road reserve remains over the whole of the land that has not been classified as operational or community land, then he does not consider the land constitutes public parkland.
Alienation of public open space
Insofar as the Court accepts that properties adjoining a road reserve have a right to access the road reserve, nevertheless the proposal will most likely cause a change in the usage pattern and amenity of the unformed road reserve. As such, the council considers that there will be an alienation of this public space area, which is not in the public interest. Accordingly, the Court has considered the evidence on the merits of the proposed driveway construction.

In considering this question of whether the approval of the application will result in an unreasonable degree of alienation of the public open space, the Court has considered the following aspects:
1 The location, context and usage of the public land; The road reserve, in conjunction with the adjoining open space area is prominently located on the waterfront near the Mosman South ferry wharf and has high visibility from the harbour. As such it apparently attracts regular local usage as both an active passive and active open area, particularly for children. The inclusion of the driveway would necessitate changing the nature of this area because the regular passage of vehicles would substantially reduce the active playing opportunities. In this regard, the court does not accept that active recreation opportunities are enhanced by the provision of the driveway, in this context.
2 The degree of land use differentiation; This refers to the amount of land that is likely to be restricted from general public usage. In this case, the apparent change in usage is from 342 sq m to 117 sq m. The Court accepts these figures because they identify the components of the driveway, which will be predominantly for different purposes. The paved driveway is most likely to present to the average person in the street as private access way, likely inhibiting its use. Whilst the construction of a similar type driveway in a more isolated road reserve may be acceptable, the Court considers that in the subject context, this degree of alienation is not in the public interest.
3Traffic/Parking; The proposal will result in the provision of 6 car spaces within the basement car park, however the 2 existing on-street spaces will be removed due to the need to provide an adequate passing bay. Accordingly, the applicant contends that there is a net benefit of 4 off-street car parking spaces. On review however, the evidence before the Court indicates that the removal of the 2 on-street public spaces is more likely to result in a loss of general public amenity, which is not offset by the provision of the 4 additional private car spaces.
4 Visual impacts; The construction of the driveway, within the road reserve alignment will involve some cutting and filling to achieve appropriate gradients. Consequently there will be new rock cuttings exposed, which is likely to differentiate sections of this overall area. Whilst the proposed landscaping is likely to ameliorate this to some extent, nevertheless the Court considers this construction work is likely to result in adverse visual impacts.
Another aspect is that the formalisation of the remaining open space is likely to appear as part of the private garden area of the apartment and inhibit its public usage, which would not be in the public interest.

Public interest

This application attracted a considerable number of written and oral objections. They are summarized as follows:
1.The construction of the driveway will exacerbate the vehicle and pedestrian conflict risk associated with the ferry usage.
2.The location of this open space is a significant visual entry point to Mosman Bay, which would be devalued by the tree removal and driveway construction, causing adverse visual impacts.
3.The driveway will be visually incompatible with surrounding natural environment and the environs of The Herron walk, which is a popular public walk.
4.The existing undeveloped park area is attractive and well-used by residents, parents and children. The introduction of vehicles on a regular basis will diminish its attractiveness and amenity.
5.The approval of the development is an undesirable step in the gradual "whittling away" of harbour-side open space, which has an overall negative impact on views from the harbour.
6.The regular users of this area prefer the undeveloped state of the open space than the more formal upgrading.
7.Some residents have lived in the immediate area for a long time, including one longer term resident of Washington, and they accept that there is no entitlement for private off-street parking in this area.

The consideration of these objections has been undertaken in conjunction with the merit review.
Planning controls
The site is in a prominent and visually sensitive area. As such it is subject to a number of planning controls. Firstly, SREP (Sydney Harbour Catchment) applies to this foreshore land and the cl 13 planning principles for the catchment include:
(a)development is to protect and, where practical, improve the hydrological, ecological and geomorpological processes on which the health of the catchment depends,
(b)the natural assets of the catchment are to be maintained and, where feasible, restored for their scenic and cultural values and their biodiversity and geodiversity,
(c)decisions with respect to the development of land are to take account of the cumulative environmental impact of development within the catchment.
These principles are supported by the following foreshore and waterways area principles:
(a)development should protect, maintain and enhance the natural assets and unique environmental qualities of Sydney Harbour and its islands and foreshores,
(b)public access to and along the foreshore should be increased, maintained and improved, while minimising its impact on watercourses, wetlands, riparian lands and remnant vegetation,
(c)development along the foreshore and waterways should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands and foreshores...
Associated controls in cl 26 deal with the maintenance, protection and enhancement of views as follows:
(a)development should maintain, protect and enhance views (including night views) to and from Sydney Harbour,
(b)development should minimise any adverse impacts on views and vistas to and from public, landmarks and heritage items.
(c)the cumulative impact of development on views should be minimised.
These controls are generally consistent with the MLEP provisions. Whilst the construction of the driveway is permissible in the open space zone, nevertheless cl 24 requires special consideration of:
(a)the need for the proposed development.
(b)the impact of the proposed development on the existing or future use of the land, and
(c)the need to retain the land for its existing or likely future use.

Clause 27 of the MLEP requires an assessment having regard to the objectives of the SREP and cl 28 contains the following relevant objectives for the foreshore building line:
a)to protect the natural landform and landscape of the foreshore, and
b)to contribute to a bushland and wildlife corridor around the foreshore of Mosman , and
d) to protect the visual amenity of the foreshore, and
f)to minimise the visual scale and bulk of development when viewed from the water, and
g)to protect the public views and the visual amenity of the amenity of the foreshore when viewed from the water by ensuring that native vegetation growth (trees, shrubs and groundcover species along the foreshore is protected and enhanced,...
It is apparent to the Court that this raft of controls is very restrictive on foreshore development, with priority being given to preservation and enhancement of native vegetation and assets to achieve the desired visual qualities.
Controls on landscaping are contained in the DCP for the SREP and it refers to various landscape character types. The planning experts agreed that the subject land is covered by the Type 8 and Type 9 descriptions, which acknowledge the built up character of the areas adjacent to the harbour. However the desired character is to be achieved by any development reasonably satisfying the following performance criteria:
the vegetation being integrated with land-based development to minimise the contrast between natural and               built elements,
      remaining natural features that are significant along the foreshore are preserved and views of these features              are maintained.
      it is sited so remaining rock outcrops, clifflines or vegetated shorelines are protected and not obscured.
      it is sited to ensure that the continuous line of any natural feature is preserved and remains the dominant    feature in the landscape.
      major points and entrances to the bays are preserved in their natural state.
Both Ms Sonter and Mr Hunt agree that the relevant performance criteria and objectives are achieved by the sensitive design of the driveway and planting scheme. But Ms Muir maintained her opinion that the driveway will continue to unsatisfactorily dominate the landscape of the park as viewed from Sydney Harbour, Mosman Bay and the foreshore.
Conclusions
Having considered the evidence, the submissions and undertaken a view, the Court does not consider the public interest would be well served by the approval of this application and therefore it is refused on merit. In reaching this conclusion, the Court notes however that no substantive evidence was presented, regarding the merits of the proposed internal building alterations and considered alone, they are generally satisfactory.
Likewise, the traffic/access issue was satisfactorily resolved on the basis of the RTA agreement to the "shared-zone" for the traffic and pedestrians. Whilst there were some detailing concerns, Mr Sathanesan ultimately agreed that these could be covered by conditions of consent and that the traffic issue would not result in the refusal of the application. The Court relies on the evidence of the traffic experts, which is consistent with the RTA advice, that the construction of a "shared-zone" driveway would be satisfactory in the circumstances. Although, there are other associated traffic impacts of the loss of the 2 public car spaces, alienation of public space and visual impact considerations.
The threshold issue then concerns the visual impacts and alienation of land that has been used as public open space for a considerable period. The determination of this issue by the Court involves the assessment of the competing private and public interests. The private interest benefit is that attractive off-street parking for 6 vehicles is obtained in the basement. This is only achievable by the driveway construction within the various public lands, which the applicant intends to improve the amenity of.
The site is subject to a raft of planning controls due to its prominent waterfront location, which the Court accepts is a major entry point to Mosman Bay. In this location, it is within the Foreshore Scenic Protection Area under the provisions of MLEP 1998 and the Foreshores and Waterways Area as defined by the Sydney Regional Environmental Plan (Sydney Harbour Catchment Area) 2005.
Accordingly, it seems to the Court that in any consideration of development in this area, the controls give higher priority to the preservation and maintenance of natural assets and also that higher weighting should be given to the public interest over the private interests.
In this case, the driveway requires the utilization of a relatively large area of the overall site. This involves significant earthworks including the excavation of the exposed sandstone outcrops to achieve the necessary gradient. Consequently, this driveway will be supported by various retaining walls, which in the Courts assessment detracts from the natural features of the area. This would be particularly obvious to pedestrians and other users of the open space area and not consistent with the objectives to maintain the natural assets of the site.
The inclusion of the driveway, albeit paved in dark organic tones to minimise visual impacts, also unfortunately detracts from the natural character of this public space, because of the extent of the introduction of a considerable area of hard surfacing materials, relative to the retention of the existing natural setting. Consequently, whilst the Court accepts the functionality of the driveway, its form does not adequately protect or enhance the natural features of the foreshore area, particularly taking into account its overall length and the proximity of the turning area directly adjacent to the waterfront.
Insofar as the driveway is to operate as a low speed “share-way”, this requires significant signposting to prevent unsafe parking. Notwithstanding this, it will allow attractive vehicular access and probably result in some ‘temporary parking’ closer to the waterfront. Accordingly, the Court does not consider the introduction of the 6 vehicle movements from Clifford, together with the increased vehicular use by the public on a regular basis is consistent with the objectives to protect the natural landforms and bushland. These objectives would be better achieved by the prevention of vehicles entering the subject area.
The associated landscaping works involving the garden areas and plantings adjacent to the driveway, together with the paved area with seating would probably be an enhancement and improve utility for some members of the public. However the Court is inclined to rely on the evidence of Ms Muir and that of the objectors, that it is preferable to retain the open space area in its natural form, rather than providing the more formal improvements. Therefore the Court considers the overall public interest is best served by maximising the retention of the existing open space areas.
The retention or removal of the fig tree and 2 hibiscus is another important element in this appeal. The Court accepts that these trees have been mistreated by unsympathetic lopping in the past and that they have a relatively short useful life span. Presumably their replacement will need to be undertaken in the appropriate time frame, however unfortunately no such program was brought to the Courts attention.
Notwithstanding this lack of landscape planning, it appears to the Court that this replacement planting is not solely dependent on the development works. On the contrary, the retention of the existing larger area of open space would allow greater flexibility in replacement planting of appropriate native species, rather than the much smaller portion remaining after construction of the driveway. Consequently, the Court does not consider the proposed landscaping, as part of the overall development is of sufficient benefit to offset the effective use and natural character of the existing open space area.
Another important consideration required by the various controls concerns the visual impacts of the proposal. Apart from the aforementioned visual impacts apparent to the land-based public, it is apparent there will be visual impacts from the harbour.
The view from the harbour will include sections of the driveway, its retaining structures and some of the sign posting. It is also most likely that the reduced open space area will be discernible from many viewing positions on the harbour. Taking into account that this open space area is located at a visually prominent location at the entry to Mosman Bay, the Court considers the retention of a maximum area of open space is required by the various controls. Otherwise the visual impacts of the natural features will be diminished as in the subject case.
The Court is also required to consider the provisions of cl 24 of the MLEP regarding special considerations applying to development of open space. In particular, the need for the proposed development. The Court accepts the desirability of providing the 6 car spaces in the basement, however there was no compelling evidence concerning this need.
The Clifford Apartment building is attractively located on the waterfront in close proximity to the ferry wharf and also the bus stop in Musgrave Street. As some of the neighbours stated, neither Clifford nor other neighbouring apartments have had the benefit of off-street parking and they preferred this situation to prevail. Whilst the Court understands there is likely to be a net increase in parking of 4 off-street spaces, nevertheless this requires the loss of the 2 on-street spaces available to the public and the Court does not consider this sufficient justification to satisfy cl 24 of the LEP.
In summary then, the Court does not consider this proposal represents a reasonable balance between the competing interests. The planning controls require the public interest to be paramount. But as this proposal significantly reduces the area of accessible public foreshore area thereby effectively alienating a significant portion and compromising its future development by allowing the regular intrusion of vehicles much closer to the waterfront, then the retention of natural features and visual impact expectation objectives are not adequately achieved and the application fails.

Court orders.

The Court orders.
1 The appeal is dismissed.
2 Development application No 8.2007.427.1 for alterations and additions to convert the existing basement to 6-car spaces and construct an access driveway to No 1 Musgrave Street, Mosman is refused.
3The exhibits may be returned except for A and B.
___________________  ____________________
R Hussey  Dr Mark Patrick Taylor
Commissioner of the Court  Commissioner of the Court

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