Parisi v Woollahra Council - [2008] NSWLEC 1269

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Parisi v Woollahra Council [2008] NSWLEC 1269

PARTIES:
APPLICANT
Christopher Parisi
RESPONDENT
Woollahra Council

FILE NUMBER(S): 11047 of 2007 and 11048 of 2007

CORAM: Hoffman C

KEY ISSUES: Development Consent :- modification of consent, s 94 contribution, carparking, removal of existing private carpark, new retail premises, tree loss, views, overshadowing, bulk, transition of zone boundary, Council master plan, streetscape, truck manoeuvring, pedestrian safety.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan
Woollahra Development Control Plan
Rose Bay Centre Development Control Plan

DATES OF HEARING: 29/05/2008 and 30/05/2008

DATE OF JUDGMENT:
4 July 2008

LEGAL REPRESENTATIVES:
APPLICANT
Ms S. Duggan, barrister
Instructed by H. Robilliard
of Robilliard Lawyers
RESPONDENT
Mr S. Simmington, solicitor
with R. Dawes
of Lindsay Taylor Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

4 July 2008

11047 of 2007 Christopher Parisi v Woollahra Council
11048 of 2007
JUDGMENT

1 Commissioner: This is two Class 1 Appeals Nos 11047-11048 of 2007 in regard to the deemed refusal of both applications.

2 Appeal 11047 relates to an existing fruit and veg. shop known as “Parisi’s” at No 15 Dover Road, Rose Bay and erection of a new awning over the public footpath and the removal of a condition of its development consent no. DA90/169 that requires 13 carspaces to be provided on a nearby block of land at No.8 Wilberforce Avenue that is owned by the applicant. The land at No.8 was paved for, and has been used as a carpark for some years in accordance with that consent.

3 Appeal 11048 relates to the demolition of an existing 2-storey vacant medical centre on 19-21 Dover Road and the removal of the 13 carspaces on No.8 Wilberforce. The two lots are to be amalgamated and be developed with a new fruit and veg. shop with delicatessen 2-storeys high and having a basement storage area under part of the western end of the building adjoining Wilberforce Ave.

4 This site is oriented with Dover Road at the north east end and Wilberforce Avenue at the south west end. For ease of reference I shall call Dover road the east end, Wilberforce the west end, the public carpark the north side and No. 23 Dover and No. 10 Wilberforce the south side. It is a rectangular site about 80 meters long and about 14 metres wide.

5 The appeals had been subject of a s 34 conciliation conference under the Land & Environment Court Act 1979, and being unable to reach agreement under conciliation, the parties terminated the conference and asked the Commissioner to convert to a hearing under s34. The parties agreed I could take into evidence the view of the site, the locality and the objectors’ properties and their objections.

6 The appearances at the hearing were:

Ms S Duggan barrister instructed by Mr H Robilliard solicitor;
Mr Pindar, traffic engineer;
Mr D Richards, arborist;
Mr P Thalis, architect, and
Mr C Parisi applicant.

Mr S Simmington, solicitor with Ms R Dawes solicitor;
Mr L Marshall, traffic engineer;
Mr N Williams, arborist;
Mr D Booth, town planner;
Mr I English arborist representing Dr. Penklis objector whose clinic is on No.23 Dover Road.

Dr Penklis,
Mr B Bland #1/20 Ian Street,
Ms M McKenna 27 Dover Road,
Ms D McNaught 25 Dover Road,
Mr Schidor 14 Wilberforce,
Ms M Clark Vice-Pres. Rose bay Residents’ Assoc and Woollahra History & Heritage Society.

7 A considerable number of written objections were tendered, and appeared to be about similar issues as the objectors gave on-site.

Details of new fruit & veg & deli shop

8 Truck access is from Wilberforce reversing into a loading bay in the new building. Customer access is from Dover Road, one of the main shopping streets of Rose Bay. The shop floor is on the Dover Road level, with the loading dock and preparation area at the Wilberforce end. There is a basement area under about half of the building at the Wilberforce end.

9 A lift takes goods down to the basement and up to the first floor and both these levels are for storage. Although no cool rooms are shown in the storage areas there would be some, as seen in the existing Parisi’s. The basement is only about half underground. I am told this has several advantages viz: excavation is minimised and does not open up acid-sulphate soils known to be underground; and the loading bay drive being at street level makes the truck tray about level with the unloading & preparation area, and that makes for ease of operation.

10 The design of the building has two separate areas at the first floor level, the storage area at the west end (Wilberforce) is separated by 12m from a plant room and staff amenities at the Dover Road end. The 12m gap is just the roof of the ground floor shop and is not proposed as trafficable. The gap is there for town planning, architectural and urban design reasons.

11 On the south elevation facing No. 10 Wilberforce and No.23 Dover and for the same 12m of the gap, there is a recess, or setback of 3m from the boundary. The building is built to each boundary in all other locations. The recess is to accommodate the large trunk of an existing huge camphor laurel tree that sits astride the common boundary of Nos 21 and 23 Dover and close to their common corner with Nos 8 and 10 Wilberforce. Additional trees are to be planted in the recess to screen and soften the proposed new building for the southern neighbours.

12 Another design feature is that the ground floor (Dover level) is suspended on piers between the part basement at the Wilberforce end of the building and the Dover Road boundary. This is:

to span an existing overland floodway that passes through the site from the southern uphill areas discharging into the council carpark on the north side of the new building, and
to avoid building over a trunk sewer line that follows the same route, and
to accommodate the large root system of the camphor laurel so that it can survive.

13 On the north side of the new building adjoining the public carpark, this spanned area creates a recess at ground level and vegetation is to be planted. This will provide shrubbery to give a soft edge to the site at pedestrian level. The north facade facing the carpark is highly articulated with recesses, windows, sunshade devices, and north terraces to both first floor areas with overhanging roofs.

14 The applicant has provided to council a proposal to renovate the public carpark adjoining the north façade with a pedestrian path alongside the building (currently pedestrians have to mix with cars in the driving aisle), and 5 trees along the 80 m long façade between 90o carspaces giving only 3 net loss of public carspaces. The applicant said the council has not responded to this proposal and respondent said nothing about it during the hearing. Deleting some trees give no loss of public carspace.

15 On the south façade adjoining No.23 Dover and No.10 Wilberforce, the top floor has a 6m setback from the boundary where it is adjacent rear yards of both properties. This is in order to minimise overshadowing and bulk. The resulting height of the new building’s boundary wall is about 6m or equivalent to the walls of a 2-storey house. The rest of the south façade has articulation due to the 3m recess for a 12m length as previously described. There was going to be a timber deck at shop floor level in the recess, but it was deleted during the Hearing to provide more space for vegetation to grow and soften the façade and to eliminate potential overlooking of the neighbours’ back yards.

16 The driveways of No.23 and No.10 are parallel to their northern boundaries. No.10’s has a slight offset from the common side boundary. No.23’s has no offset but has a widened area adjacent the front boundary so patients can be dropped off for Dr Penklis’s clinic.

17 During the Hearing the applicant said it would accept a condition to insert a fire protected window in its corner wall adjoining No.23’s driveway so drivers and pedestrians on the footpath could see each other; also the applicant would widen No.23’s vehicle footpath crossing to give more room to manoeuvre, and if warranted install a convex mirror on a post in the footpath to further aid driver vision.

The carparking

18 The applicant proposes to pay a s 94 contribution for 13 carspaces upon the granting of a Construction Certificate for the proposal due to the loss of 13 spaces at No. 8 Wilberforce that relate to No. 15 Dover Road.

19 The applicant would surrender the consent for the existing Parisi’s at No. 15 when the new shop opens. Presumably No.15 would be leased out for another commercial or retail use, although that is not part of these applications. As part of the original consent at No.15 Dover Road the applicant made a contribution under s94 of the Environmental Planning & Assessment Act 1979, for 6 extra carspaces that it could not provide on No.8 Wilberforce. The applicant’s proposition is, if and when No.15 Dover Road makes application to council for another use, it would have a credit for those 6 spaces and have to contribute more s 94 funds for carparking if required.

20 The parties agreed that the existing parking on No.8 Wilberforce is PRIVATE parking owned by the applicant. However the applicant has never restricted who uses No.8, and to the public it is just another section of the large public carpark adjoining.

21 The land separating No.15 and Nos 19-21 Dover Road is public carpark that runs through to Wilberforce, and it widens out behind the buildings between New South Head Road, Dover Road and Newcastle Street. It is only carpark from Newcastle St along Wilberforce to the subject site.

22 The applicant says it would pay a s94 contribution for 17 carspaces for the new fruit & veg shop including the 13 previously mentioned. The council has a s94 plan for carparking in Rose Bay, but no plans to build a multilevel carpark on its existing public carparks, or buy new land near the site.

23 Across Wilberforce from the new building site in Appeal 11048, is Pannerong Park reserve. Council has another carpark opposite Nos 19-21 on the corner of Dover Road and Ian Street. All these carparks are at existing ground level.

In Appeal 11047

24 Council contends that unless appropriate conditions are imposed, DA264/2007, in so far as it seeks the removal of the requirement for the provision of 13 car spaces at 8 Wilberforce Avenue, Rose Bay (associated with the use of 15 Dover Road, Rose Bay), the proposal must be refused as follows:

Land and Environment Court Act

minimum

as an off-site contribution

In Appeal 11048.

minimum

as an off-site contribution

(iv) The eastern corner of the Dover Rd elevation does not comply with the provisions of Section 3.2.4 of AS 2890.1 2004 in terms of providing adequate pedestrian safety sight lines from vehicles exiting 23 Dover Rd. The proposed mirror on the footpath does not alleviate this contention on the basis that it would provide a distorted image and pose maintenance responsibility issues.

The Evidence

25 The zoning of the site is 3(a) General Business and the proposal is permissible with consent. The Floor Space Ratio allowed is 2:1 and the proposal is 1.51:1. The maximum height allowed is 12m and the proposal is 11m at the Wilberforce end, and 10m at the Dover end, but as mentioned previously is 6m adjoining the back yards of No.10 Wilberforce and No.23 Dover.

26 The Business A zone boundary with the Residential B zone boundary is the east boundary of the site. There are substantial houses and some apartments uphill in both streets to the south of the site. The large council carpark on the north of the site is also zoned Business A, the one on the corner of Ian St and Dover is zoned Special Uses-Carpark.

27 In regard to trees, there is a street tree in Wilberforce outside No.8 that would lose much of its overhanging canopy due to the building. The parties agreed the tree had been hacked around so much due to the power lines above it, the loss is acceptable. A new tree can be planted.

28 There is an existing large Cheeze Tree in Nos19-21 that the council wants to keep. The council witnesses said the building should have a “notch” in the north side to accommodate the tree. The council’s reasons are to retain trees around the public carpark, and to soften the north elevation of the proposal. The council pointed to its Rose Bay Development Control Plan (DCP) that shows a 24m long building on both No.8 and Nos19-21 located at the street frontage of each with a gap between for an open area, and the tree could be in that space.

29 The applicant said the public carpark used to have a lot of trees, but the council has progressively removed them to provide more parking spaces. Aerial and ground level photos from previous years were tendered to show this. The applicant asked why it should be expected to allow council to “borrow” for landscaping it should provide on its own land? The zoning is for Business A on the site and the public carpark and 100% site coverage is allowed. The council’s Rose Bay DCP shows the council ultimately intends for Ian St to be extended through the carpark to Wilberforce and the public carpark developed for 12m high buildings. And, a proper reading of the DCP map and legend shows that the “gap” referred to by council is for a Roof Terrace, not an open space at ground level. Thus the DCP does not provide land for retention of the Cheese Tree.

30 Apart from this the applicant said it has already provided a large “notch” in the south side of the building to protect the huge camphor laurel that both parties and the objectors want to keep. Another “notch” on the north side of the shop floor would create an unsuitable internal layout for the fruit & veg. & deli. The floor space of the proposal is 25% less than the maximum permitted so the applicant is already giving a large concession to create an attractive building that suits its transitional location on the boundary of the Business and Residential zones.

31 Another benefit to the residential neighbours the applicant said is the planting of new Cheeze Trees on the south side to give additional softening of the building. Other benefits to the shopping centre and streetscape are a new tree on the Dover Road frontage where none exists now, and a replacement tree for the disfigured one on Wilberforce.

32 The arborists agreed on evidence from Mr English that the new Cheeze Trees would have to be planted within the root system of the camphor laurel and the two species are not particularly compatible. They agreed on sp. Satin Ash as a native specie compatible with the laurel.

33 In regard to the huge laurel Mr English and Mr Williams were not happy about the amended proposal. The plans showed the basement wall within the root system of the laurel, but kept 6m away from the centre of the huge trunk. The 6m is the accepted radius of the Critical Root Zone (CRZ) for this tree. They said that a retaining wall at 6m meant over-excavation closer to the tree for shoring while the wall is built, and then for the insertion of subsoil drainage. Also the soil is very sandy and would dry out almost overnight when dug out, and the excavated face would collapse even further into the CRZ.

34 Mr Richards said the wall could be a geo-cast type to avoid over-excavation. Mr English said that type is driven into the ground meaning that any roots encountered could not be cut cleanly and treated to prevent root rot. I asked about sub-soil drainage beyond the geo-cast, and Mr Richards said it is a porous outer wall that creates the sub-soil drainage by allowing water through where it is collected and drained inside the basement. If needed an inner waterproof basement wall can be built. I said that means the floor space in the basement would be reduced because the plans showed only a single thickness basement wall about 150 mm thick. The geo-cast plus a cavity for drainage and an inner wall had to be thicker. He agreed.

35 The applicant said that it accepted a condition of “no excavation within 6m radius of the tree trunk” and that would be observed by whatever structure is approved at the Construction Certificate stage.

36 Also I asked about the assurance to the Court that there is NO EXCAVATION within the 6m radius of the tree, and the drawings show no structure on plan view, but on section view they show short piers and large pad footings at 2.5m and 4.5m centres. The latter must mean excavation within the 6m CRZ, and a private certifier might issue a Construction Certificate to that effect. So how is the structure to change to hold up the ground floor over the 40m distance between the basement and the Dover Road foundations? Mr Thalis said the drawings should have shown friction piers or screw-piers at about 6m centres. They are to be hand dug, and the piers can be relocated to miss any major roots, and any minor roots can be cut cleanly and treated.

37 I asked if the soil is sandy, the piers would have to be very deep to carry the load, so how could such holes be hand dug, would heavy equipment have to come over the root system? Mr Thalis said since the tree roots are in the first 1m from ground level, the piers could be hand dug to that depth to find and treat the roots or relocate the pier. Then the piers would be bored the rest of the way. I was told that No.8 currently is paved macadam and cars drive over it and the root system all the time, and the camphor laurel is healthy.

38 The applicant said it would accept a condition to put effect to the above for the whole area of the tree’s dripline, that is the area beneath the canopy of the camphor laurel. The arborists did not disagree with this.

39 Mr English was still concerned about the lack of exposure of the root area to rain. It was put to him that most of the root system is on No.10 and No.23 and will be within the 3m south side setback of the proposal, and that would expose 2/3 of the root area to rain. Plus it gets overland flow under the building when there is heavy rain. Plus the macadam on the existing carpark in No.8 would be removed and the area mulched. Mr English agreed the mulching would promote new root growth and this could compensate for the impact of the building provided the area got moisture. In the end it was agreed the mulched area could be automatically drip irrigated from pipes under the ground floor slab using water from the on-site stormwater detention tanks.

40 I asked Mr Thalis if the ground floor is to be a concrete slab poured in-situ how would he comply with another draft condition that there be no storage of building materials on, or pollution of the root system. When the concrete is poured there must be a lot of drips coming through the formwork to pollute the laurel’s root system. He said there would have to be a waterproof blanket put on top of the formwork before the reinforcement is laid to prevent drips.

41 The applicant submitted it would accept conditions on all these matters.

42 Mr Pindar and Mr Marshall gave traffic evidence. Mr Pindar said he had measured the actual large rigid truck that would come to the site once a day. It is 10.8m long and has a turning diameter of 18m. The usual turning circle for large rigid trucks is 22m. He assumed that in the future trucks with an 18m turning diameter would be available and a condition could be put on any consent for maximum truck size.

43 Using those specifications he had vehicle manoeuvring drawings to show that the truck could reverse in and drive out of the loading bay in Wilberforce clear of parked cars on the opposite side of the street. The footpath crossing needed to be splayed for the wheel track. In view of the reversing action he maintained his recommendation of a condition that a member of shop staff had to have RTA training to be a Traffic Controller (Blue Card) and to manage traffic whenever the truck is arriving or leaving. The truck would call ahead before arrival to ensure the marshal is on duty.

44 Mr Marshall said the loading bay would be 10.8m long, so a larger truck could not be used legally as it would project onto the footpath. He remained concerned that the bay is only wide enough for the truck and had no safety sightline splays so the driver could see pedestrians. Mr Pindar said with a traffic marshal, the splays are not needed.

45 Mr Marshall was concerned about No. 10 Wilberforce driveway safety with the proposal being built to the boundary. On-site and in photos in evidence it could be seen that No. 10 has high fences and vegetation on its side and front boundary at the driveway, such that a driver coming out of No. 10 now has to exercise caution.

46 Mr Marshall said that the 10.8m truck once a day might be OK, but there are 5 other smaller trucks per day in the operations specs of the shop, and the traffic marshal is not proposed for them. The number of small trucks could well exceed 5, and they would not have the benefit of driver safety sightlines at the entrance to the loading bay. They may choose to drive in and reverse out adding to the hazard.

47 The applicant said it would agree to a condition for the traffic marshal to supervise smaller truck movements too. Mr Marshall maintained his recommendation for splays of 2.5m at the loading dock for pedestrian safety.

48 In regard to No.23 Dover Road; the applicant said the Court has power, standing in the shoes of the council, to widen the public footpath crossing to Dr Penklis’s clinic.

49 In regard to No.23 Dover, Mr Pindar noted that the existing drive opening is almost double width. Apparently this has been done so disable patients can have the space to get in and out of a car within the front yard. Dr Penklis said that perhaps 10-12 patients per day are dropped-off/picked-up that way. Of those cars perhaps 2 ask to be allowed through the gate further along the drive, into the backyard of the clinic to turn around. As a result up to 10 cars have to reverse in, or reverse out when delivering/picking-up. The backyard is not usually available to patients as it is full with doctors and staff cars.

50 Mr Marshall said at the moment Nos.19-23 has a front yard that enables the drivers to see pedestrians. That will go as the proposal builds right to the corner boundary. He thinks it should have a splay also.

51 Mr Pindar noted that there is a tall and thick pencil pine tree right in the corner of Nos.19-23 that prevents the driver vision Mr Marshall alleges. Also the staff/amenities fire escape stair of the proposal comes down into that corner. Also on the opposite side of the drive, Dr Penklis has a front fence higher than drivers’ eyes, and the fence returns down the driveway, so currently drivers have the same vision angles as they would with the proposal. There have been no reported accidents with pedestrians at Dr Penklis’s driveway. The proposed widening of Dr Penklis’s driveway at the cost of the applicant would give drivers more space to manoeuvre and to have better vision.

52 The experts agreed that a convex mirror would be of limited use as it would have to be placed on the uphill side of the driveway to see pedestrians passing the subject building. In that position it would only be of use to drivers who reverse into Dr Penklis’s. Drivers who might be reversing out would not be able to see the mirror.

53 Mr Marshall and Mr Pindar gave evidence on the appropriate carparking requirement for the new fruit & veg & deli. They agreed with no “reductions” the new shop required 33 spaces. This comprises 828 sq m selling area @ 2.31 cars/100 sq m = 19 cars. The 573 sq m of storage area @ 1.5 cars/100 sq m = 9 cars. The 240 sq m of staff + amenities area @ 2.31 cars/sq m = 5 cars. Total 33.

54 Mr Pindar says the staff + amenities area does not generate the same as selling area. This is because his client says the staff are the same people who work on the shop selling area. His instructions are that there are no office personnel, those duties are done between selling, managing the shop floor and storerooms, and after hours. Mr Pindar deletes all 5 staff car spaces, dropping the total to 28.

55 In regard to the storeage areas Mr Pindar’s instructions are that the existing fruit & veg operates with 6 employees. Assuming some come to work other than by car, he says 4 car spaces is enough. This drops the total to 23 car spaces.

56 The Mr Pindar says there should be a discount for the availability of good public transport, and some spare on-street and public carpark capacity. He surveyed 348 public carpark and on-street spaces within 150m of the site, and 95% utilisation rate. This gave him spare capacity of 24 spaces, and he thinks the site should use 6 of those. This reduces the total to 17 for the new shop. He said this is allowed under the applicable DCP cl 1.3.

57 If credit is given for the 13 spaces paid for by s 94 contribution at granting of Construction Certificate, then Mr Pindar says, a further contribution for 4 cars is all that is needed.

58 Mr Marshall said the council controls do not differentiate between selling area and storage. He expects from seeing the existing fruit & veg that this is an expansion of the business, plus a new deli, and the success of the existing business would indicate the new building would be fully utilised.

59 Even though the applicable rate is 2.31 cars/100 sq m of storage area, he has given a large concession by agreeing to 1.5 cars/100 sq m. It is reasonable in his expert experience on traffic generation to give this concession, and that rate is allowed in another category in the DCP for storage areas. But dropping it further from 9 cars to 4 spaces on client instructions is not reasonable.

60 Without the concession the total generation would be 38 cars.

61 Mr Marshall HAD applied the Rose Bay “reduction multiplier” allowed in the DCP for public transport/on-street parking etc in calculating the total of 33 spaces. Mr Pindar’s calculations are really “double-dipping”, he said. The error can be understood from Mr Pindar’s own survey of 95% utilisation of on-street and public carpark spaces. That IS FULL utilisation in traffic engineering terms.

62 Mr Marshall said one can see now the number of cars circulating around and clogging traffic, while looking for a parking space, full utilisation is correct. He had surveyed himself at 11am the day before the hearing and counted 7 spare spaces out of 348. One in Wilberforce, two in Dover and four in IanSt.

63 When the 13 spaces in No.8 Wilberforce go, it will actually be 16 because Mr Marshall had counted that many cars on No.8 several times. During construction of the new building at least, that alone will nearly take all of the “spare capacity” that Mr Pindar alleges.

64 In looking at the staff/amenities area, Mr Marshall said it was large in proportion to the rest of the shop in his experience. As office space it would calculate at 12 cars required, so he had allowed for a reduced rate at 5 cars for some staff to have dual duties. Such spaces are always calculated into traffic generation figures. One cannot apply traffic generation on what a client might instruct. The floorspace is there and can be used, if not by this client then by whoever occupies or owns the building next.

65 In cross examination Mr Pindar said he did not think the new shop would generate more traffic than the existing one. It would just provide better facilities and a wider range of goods to existing customers.

66 Also he agreed the DCP required long stay parking for 70% of employees and the new shop would have 22 compared to the existing 16 staff. That means 15.2 car spaces for staff needed, leaving 3 spaces for customers based on Mr Pindar’s calculation of 17 total requirement.

Conclusions

67 In regard to Mr Marshall’s recommendation of sightline splays to the loading dock, I note that on both sides of the loading dock exist openings for fire escapes. The doors of the escapes are set in 2.5m by scale from the Wilberforce façade. The door of the loading dock is recessed also, and on the plans in Exhibit A Ground Level an opening in the wall is shown between the loading bay entry and the basement fire exit passage.

68 I doubt the practicality of the applicant’s proposed condition to have the small truck drivers phone ahead, as well as the large truck driver, and to have a traffic controller, who has other duties in the shop to be available at short notice to go into Wilberforce Ave at least 12 times per day. Using the controller for the large truck would still be needed.

69 The smaller trucks will be fully inside the bay and could be reversing quickly on exit, contrary to the large truck that, as Mr Pindar said, would start from a standstill with its nose visible at the street end of the bay and the driver going forward to exit. 2.5m is the required sightline splay for pedestrian safety at drive entries in AS/NZS 2890.1:2004. It seems to me the walls of each escape beside the loading dock can be removed outside the loading dock door, or have glass windows with fire drenchers if necessary to give the small truck drivers safe vision.

70 In regard to No. 10 Wilberforce’s driveway; it seems to me that having high fences and vegetation at the gate, the status quo does not change with the proposal. The loading dock driveway is setback nearly 2m from the side boundary and does not pose a hazard for the single house drive. Being a single house, the number of cars per day using the drive is minimal, and drivers from the house must be familiar with the existing need for caution regarding pedestrians in the street.

71 In regard to No.23 Dover Rd, I have formed the opinion that the public footpath crossing should be widened at the applicant’s expense. Being conscious that Dover Road is one of the main shopping streets, more pedestrians will be using it to and from houses and cars and will be passing the medical clinic that has doctors, staff, deliveries and patients coming and going all day via its driveway. Since the convex mirror use would only benefit drivers who reverse into Dr Penklis’s, for more abundant caution the applicant’s other offer should be considered.

72 The proposal’s fire escape entry/exit door beside No.23 is recessed by 2m, but the entry is only 1m wide by scale. It would need to be recessed 2.5m to the door and the entry made 2.5m wide on the front boundary for the window to substitute for a splay. I have formed the opinion that the applicant’s offer of a condition for a window into the entry of the staff/ amenities fire escape resolves this concern adequately, provided it is subject to the above conditions. The window can be drenched for fire safety if necessary.

73 The parties agreed in submissions that in regard to parking requirement, the arrangement is in the draft conditions for paying a further s94 contribution on No.15 Dover for 13 spaces, and then taking a credit for them when paying the s94 for Nos 19-21. it is only the quantum that I need to decide and insert in the relevant condition.

74 I believe it is quite clear from the evidence of Mr Marshall that the “reduction multiplier” in the DCP can only be applied once, and he had done that in arriving at 33 spaces, plus he had given a reasonable concession on the storage area rate/ sq m and another in using an appropriate rate for the staff/amenities area rather than applying an office floorspace rate.

75 Apart from Mr Marshall’s evidence, there is Mr Pindar’s agreement in the end that a new larger fruit & veg & deli with a wider range of goods, more floorspace and additional services and more staff must logically attract more customers than the existing fruit & veg. On the applicant’s evidence the new shop would have 2 less spaces than the existing. The 33 spaces includes the allowance for on-street/public carpark spaces and public transport usage.

76 The existing Cheeze tree is a mature and healthy specimen. The applicant’s evidence for its removal is compelling in that:

The subject land is zoned commercial and allows 100% site coverage.
The council wants the cheese tree kept to beautify its own carpark when it has removed nearly all the trees previously in the carpark.
The carpark is not intended to be a long term use of the public land because the adopted council DCP for Rose Bay shows it developed for 12m high buildings and a road in the future.
The proposal has designed its building to present an attractive façade to the public carpark, and an extension (if it is built) of Ian St in accordance with the Rose Bay DCP.
If Ian St is extended the council can incorporate attractive streetscape and trees.

The proposal on Nos 19-21 has already provided reduced floorspace and a large “notch” in the building and special building construction methods to accommodate the large camphor laurel that everyone wants to retain. To require a second tree and large “notch” is unreasonable and would unnecessarily effect the successful design of the merchandising space.
The retention of the camphor laurel and its “notch” is preferable to retaining the Cheeze Tree, because of the size of the laurel and its contribution to the cityscape, the amenity, its being on the transitional boundary between the commercial and residential zones, the benefit to the neighbours in the residential zone.

77 Part of the objectors concerns is the bulk of the building at the zone transition and the aspect some currently have from uphill, down through the trees to the public carpark.

78 To some extent their concern is one about where the council placed the commercial zone boundary. At the moment the commercial begins visually on the north side of the public carpark. This gives a sense of separation or a buffer between the residential area and the shopping centre. The proposal brings the shopping centre to the south side of the carpark. I cannot change the zone line, and must assess the proposal according to the statutes and controls.

79 It is my opinion that Mr Thalis design has taken reasonable account of the need for transition:

The building is 2-storey adjacent the 2-storey residential neighbour on No.10 Wilberforce and the 2-storey medical clinic on No.23 Dover.
It is single storey adjoining the back yard of the residential neighbour on No.10.
It provides the “gap” between the eastern and west 2-storey sections of the building as shown on the Rose Bay DCP, and
A 3m side setback to reduce shadows on the back yard of No.10, and to retain the camphor laurel, and to plant additional trees that will soften the built form adjoining the residential.

80 Some uphill residents are concerned about loss of views to the distance. In seeing their concerns I believe the “gap” keeps what could be reasonably expected of distant buildings and perhaps very minor water glimpses. If the council DCP is ever realised the 12m high buildings beyond the proposal to the north will take the views the proposal retains.

81 Some uphill residents say the view into the public carpark enables them to alert the police when anti-social activity is observed. It is true the ability to see the activity in the carpark will be lost. But I do not think it could be a reason for a condition to retain a ground level space in the “gap” between the 2-storey sections of the proposal. In any case the carpark is designated to be buildings in the future.

82 Overall, I have come to the conclusion that there is no reason sufficient for refusal of the proposal subject to appropriate conditions.

83 Therefore the orders of the Court are:

___________________

K G Hoffman

Commissioner of the Court

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Parisi v Woollahra Council [2008] NSWLEC 1269

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CITATION:	Parisi v Woollahra Council [2008] NSWLEC 1269
PARTIES:	APPLICANT Christopher Parisi RESPONDENT Woollahra Council
FILE NUMBER(S):	11047 of 2007 and 11048 of 2007
CORAM:	Hoffman C
KEY ISSUES:	Development Consent :- modification of consent, s 94 contribution, carparking, removal of existing private carpark, new retail premises, tree loss, views, overshadowing, bulk, transition of zone boundary, Council master plan, streetscape, truck manoeuvring, pedestrian safety.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan Woollahra Development Control Plan Rose Bay Centre Development Control Plan
DATES OF HEARING:	29/05/2008 and 30/05/2008
DATE OF JUDGMENT:	4 July 2008
LEGAL REPRESENTATIVES:	APPLICANT Ms S. Duggan, barrister Instructed by H. Robilliard of Robilliard Lawyers RESPONDENT Mr S. Simmington, solicitor with R. Dawes of Lindsay Taylor Lawyers