Richard Ciofuli v Canada Bay Council

[2004] NSWLEC 231

Land and Environment Court

of New South Wales

CITATION:	Richard Ciofuli v Canada Bay Council [2004] NSWLEC 231
PARTIES:	APPLICANT: Richard Ciofuli RESPONDENT: City of Canada Bay Council
FILE NUMBER(S):	11043 of 2003
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Streetscape and special area study objectives - Floor space ratio - Height - Proportion of residential uses - Carparking provision - Carparking ramp and - Setbacks.
LEGISLATION CITED:	Concord Planning Scheme Ordinance, (CPSO); Concord Local Environmental Plan No 103 (Heritage) 2000, (LEP103); Concord Development Control Plan No 3 - Majors Bay Shopping Centre 'Enhancing the Shopping Centre Environment', (DCP3); Concord Development Control Plan for Heritage Conservation, (HDCP); State Environmental Planning Policy 65 - Design quality of residential flat buildings, (SEPP65); Code for the erection of Residential Flat Buildings and Boarding Houses, (Code); Environmental Planning and Assessment Act 1979, ss 79C and 97.
CASES CITED:
DATES OF HEARING:	28/04/04, 29/04/04 and 30/04/04
DATE OF JUDGMENT:	05/14/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms A Pearman, barrister instructed by Mr B T Goldsmith, town planner SOLICITORS: N/A RESPONDENT Ms C Schofield, solicitor SOLICITORS: Pike Pike and Fenwick

JUDGMENT:

In the Land and
Environment Court
of New South Wales

14 May 2004

Richard Ciofuli

Applicant

v

City of Canada Bay Council

Respondent

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of City of Canada Bay Council (the council) to refuse a development application to demolish the existing building and construct a mixed-use Commercial/ shops/ residential flat building development of four storeys, with one basement car parking level, at No 43 Majors Bay Road, Concord, in the Majors Bay Road Shopping Centre.

2 I visited the land in company with the parties on the morning of the first day of proceedings. Objectors and detractors gave evidence that was recorded by hand and later came to Court as Exhibit 23.

3 I have concluded that the application should fail when considered under s 79C of the Environmental Planning and Assessment Act 1979. In determining the application I have made the controls of the DCP3 a focal point in my consideration and have given little weight to the FSR, height, residential proportion, car-parking provision of the council’s recent nearby approvals.

The land

4 The land is situated on the northeastern corner of Majors Bay Road and Jellicoe Street, Concord. The land is ‘L’ shaped with the main rectangle in plan being extended on the eastern side with a 4.57m-wide ROW extending to the north behind other Majors Bay Road properties with a frontage to Majors Bay Road. The existing building does not cover this ROW so although the site area includes the ROW the land available for building upon is restricted. The land has a frontage to Majors Bay Road of 13.355m, excluding a corner splay of 2.41m, a frontage to Jellicoe Street of 42.365m, excluding the splay, an eastern boundary of 27.795m, a northern boundary of 4.57m/ 39.92m, giving an area of 722.6m2, [Note: Exhibit C survey]. The land has a slight fall to the east.

5 Erected on the land is a building formerly used as a picture theatre, and as stated in DCP3 it is described as "unsympathetic", [Note: Exhibit 2, p 5]:

Development in the shopping centre, which is unsympathetic, will tend to disrupt the streetscape of the area. For example, the conversion of the former picture theatre building to a shop is visually dominant due to its excessive height in comparison with adjacent buildings and its insensitive use of materials.

6 The existing building has been used for various commercial activities, including a supermarket with a delicatessen/ cafe at the corner, and for the last few years as a furniture warehouse outlet.

7 The façade of the existing superstructure of the building has no window openings above awning level and is clad in green vertical ribbed metal siding.

8 Majors Bay Road Shopping Centre is described as, [Note: Clause 3.1 of DCP3]:

…a linear shopping centre with a strong boulevard quality. The street is well oriented for vistas, and fairly wide, and was laid out with the subdivisions of the surrounding estates for residential purposes between 1900-1915. The buildings within the centre, whilst not being particularly historic or architecturally impressive in themselves, impart a unified streetscape by virtue of their two-storey scale and architectural styles. These elements convey a sense of history and continuity, form part of the municipality's cultural heritage and provide a sense of identity to the shopping centre. The scale of the buildings also relates well to the surrounding low-rise character of Concord.

Concord Planning Scheme Ordinance, (CPSO)

9 Under cl 23 of the CPSO the land is zoned Business 3(a) and the proposed mixed-use commercial/ residential/ retail use is permissible in that zone with the council's consent.

Concord Local Environment Plan No 103 (Heritage) 2000, (LEP103)

10 Clause 2 of LEP103 - Aims, objectives, policies and strategies identifies the Majors Bay Road Shopping Centre as a Special Character Area, and in cl 2(a) states that the plan aims to "…integrate heritage conservation into the planning and development control processes that apply within the Concord local government area."

11 Clauses 12 of LEP103 - Matters for consideration for development in a special character area are specified.

Concord Development Control Plan No 3 - Majors Bay Shopping Centre 'Enhancing the Shopping Centre Environment', (DCP3)

12 The DCP3 was amended to 1 September 2003, and specifically refers to the Majors Bay Road Shopping Centre.

13 The basic FSR for the land under DCP3 is 1.5:1, and a bonus of 15% - up to a maximum of 1.8:1 permitted for a mixed-use commercial/ shops/ residential flat building development. However, the upper FSR limits are only permitted if the development would not:

i) be detrimental to the visual amenities of the locality and character of adjoining buildings;
ii) reduce levels of privacy, sunlight, daylight and aspect enjoyed by adjoining properties; and
iii) obstruct views from adjoining buildings and places.

14 Additionally, DCP3 provides that there should be:

…no well-founded objection (in the opinion of the Council) raised to the proposed development by persons likely to be affected by that development.

15 In respect of height cl 3(c) - Building Height of DCP3 states:

…generally speaking, most buildings in the centre are two (2) storeys high and constructed with a flat pitched or parapet-type roof. However, provided the scale of the buildings in the centre is maintained, the number of storeys within the building itself is not crucial except in terms of its elevational appearance.

16 Clause 2 of DCP3 - Study Objectives, requires that development should "enhance and improve the environmental quality of the centre" (Objective 2.1(a)) and should be "the basis for the efficient operation of the centre" (Objective 2.1(b)).

Concord Development Control Plan for Heritage Conservation, (HDCP)

17 Although titled "Draft", the council has adopted the HDCP.

State Environmental Planning Policy 65 - Design quality of residential flat buildings, (SEPP65)

18 SEPP65 applies to the proposal, as it would be greater in height than three storeys and in residential use. Part 2 sets out Design Quality Principles and the most important of those:

· Clause 9: Principle 1 – Context;

· Clause 10: Principle 2 – Scale;

· Clause 11: Principle 3 - Built Form;

· Clause 12: Principle 4 – Density; and

· Clause 18: Principle 10 – Aesthetics.

Code for the Erection of Residential Flat Buildings and Boarding Houses, (Code)

19 Mr McDonald for the council stated:

It is understood that the Council has generally allowed the controls of [DCP3] to prevail over the Code's more limiting setback and unbuilt upon area requirements as set by Section 6 of the Code - Standards for Residential Flat Buildings and Boarding Houses in Business Zones. Where adverse impacts are likely to be experienced by neighbours it is appropriate to use these controls as points of reference for the matters the council is required to consider under Section 79C of the Environmental Planning and Assessment Act 1979.

The proposal and its history

20 Development application No 744/02 was lodged with the respondent council on 30 September 2002 and has been since amended to demolish the existing building and erect a mixed-use commercial/ shops/ residential flat building of four-storeys, with one basement car parking level, on the land.

21 The original proposal was for a four-storey building with one basement level accommodating fourteen (14) car parking spaces. The plans had been amended in response to public submissions and discussions with the council officers to increase to twenty five (25) the number of car parking spaces (including 4 double length spaces and 10 as double mechanical stackers). Since that amendment the proposal was further amended to include only one car parking level.

22 The amended proposal is described in plans prepared by Ken Powell, Architect:

· 0213/DA00 F

· 0213/AR.02 Revision. Prelim. [replaces 0213 DA01 E & DA02 E] 0213/DA03E

· 0213/DA04 F;

· 0213/DA05 E;

· 213/DA06 E;

· 0213/DA07 E;

· 0213/DA08 E; and

· 0213/DA09 E.

23 It is proposed to construct the building of concrete and brick with a low-pitched metal roof to the top floor.

24 Accommodation would now include:

Basement -	Eighteen (18) car parking spaces (Ten (10) in double car stackers), residential garbage room, bicycle store, storage rooms and commercial garbage collection bays.
• Ground floor -	Two retail and two commercial tenancies, lobby to residential floors.
• First floor -	Four apartments.
• Second floor -	Four apartments.
• Third floor -	Three apartments.

25 The third floor would be setback on the south, east and west sides to form terraces under a roof overhang. A planter box is proposed around the edge of the terrace - 1.2m overall width and 900mm high, with a 300mm high hedge as indicated in the drawings. A similar planter box is shown on the plans of the first and second floor eastern terraces. On the north and east a translucent glazed screen to 1.5m-height above the floor of the terrace would be provided to reduce overlooking.

26 Mr McDonald for the council calculated the gross floor area of the proposal to be 1,875m2. On 23 December 2003, Mr Powell, the architect, advised the total gross floor area, (GFA) had been calculated as 1,886m2.

27 A comparison of the calculated areas for each level is given in the following table:

Area calculated by Ken Powell Associates using graphic method (m2)	Area calculated by Mr B McDonald using figured dimensions and scaling (m2)
Ground Floor	525	480
First Floor	488	502
Second Floor	488	502
Third Floor	385	391
Gross floor area, (GFA)	1,886	1,875

28 Based on the site area shown in the applicant's survey by Patrick Cram Surveying of 722.6m2 and a GFA of 1,875m2 the FSR, would be 2.59:1.

29 This calculation contradicts the amended proposal figures given in the council officers’ reports to the council, which stated the FSR would be 2.49:1.

30 Based on Mr McDonald’s measurements of the amended drawings, the GFA of 1,875m2 would exceed the permissible GFA of 1,301m2 (at a FSR 1.8:1) by 574m2.

31 Previously the council had approved DA 162/01 for retail/ commercial refurbishment with twenty-one (21) car parking spaces in the existing building. This approval, which is still valid, is referred to in the applicant’s evidence in relation to height; bulk residential proportion and car parking.

Notification

32 The revised plans of the application were notified and the council received letters of objection from the owners or occupants of:

· Nos 13, 16, 17 and 18 Jellicoe Street;

· No 45 Majors Bay Road.

33 Objections from No 8 Jellicoe Street and No 46 Majors Bay Road to the original proposal were withdrawn and a letter of support from Abate Investments was also received.

34 The council also received a petition, opposing the application, with over forty signatures of local residents.

35 The matters of concern were:

· Impacts on privacy;

· The development is too big;

· Parking provision and traffic generation;

· Use of retail tenancy as a cafe;

· Location of garbage bins; and

· Relocation of the substation.

36 Some of these issues have been addressed in amendments to the plans.

The council’s decision

37 On 6 May 2003 the council resolved to refuse consent to the application after the applicant had made other amendments to the plans.

38 On 28 May 2003 the applicant lodged a s 82(A) submission under the Environmental Planning and Assessment Act 1979, with further amendments to:

· Increase of basement car parking to 29 spaces, plus loading dock and car wash bay; and

· Recess the third floor to form a terrace on the Majors Bay Road frontage.

39 On 7 October 2003 the council resolved to reaffirm its refusal of consent:

1. The proposal is an over-development of the site when considering areas of non-compliance:
a) The FSR is exceeded;
b) The height is exceeded;
c) The Residential Component is exceeded.
2 The on-site carparking is inappropriate as it relies on a high percentage of double length bays and mechanical stackers, and it is overall deficient in the provision of parking.
3 There are unacceptable impacts upon neighbouring areas resulting from the additional height, which also deflects from the attempt to maintain a degree of conformity within the village precinct.
4 There is a loss of amenity for adjoining properties due to increased vehicular use of Right-of-Way. No details have been provided to advise of the operational function of the Right of Way.

The hearing

40 The appeal was filed on 2 September 2003.

41 At the hearing the court heard evidence on behalf of the respondent council from:

· Ms Costaras, resident of No Jellicoe Street, Concord;

· Ms De Lucchi, resident of No Jellicoe Street, Concord;

· Ms Piccin, resident of No Jellicoe Street, Concord;

· Mr Moar, resident of No Jellicoe Street, Concord;

· Mr B J McDonald, town planner and heritage architect, [Note: Exhibit 15]; and

· Mr G L Marshall, traffic engineer, [Note: Exhibit 16].

42 On behalf of the applicant evidence was given by:

· Mr Abate,

· Mr R A Ciofuli, part owner and IT consultant;

· Mr B Goldsmith, consultant town planner, [Note: Exhibit A];

· Mr K R Powell, architect; and

· Mr C A Hazell, traffic engineer.

43 On the site inspection other objectors and supporters gave evidence and Ms Schofield took notes.

The issues

44 On 11 February 2004 the council filed a statement of issues.

Overdevelopment of the s ite
1. Whether the proposal is an over-development of the site.
Particulars

• Clause 2(3)
• Part 2
• Clause 9 Principle 1 - Context
• Clause 10 Principle 2 - Scale
• Clause 11 Principle 3 - Built form
• Clause 12 Principle .4 – Density
• Clause 18 Principle 10 - Aesthetics;

Bulk and Scale
2. Whether the bulk and scale of the proposal is appropriate for the site.
Particulars

• Clause 2(3)
• Part 2
• Clause 9 Principle 1 - Context
• Clause 10 Principle 2 - Scale
• Clause 11 Principle 3 - Built form
• Clause 12 Principle 4 - Density
• Clause 18 Principle 10 - Aesthetics;

Residential component
3. Whether the proposal is suitable use within the 3(a) Business Zone
Particulars
a) Clause 4 of DCP N° 3 - Residential Uses in the Shopping Centre.
Loss of amenity upon neighbouring properties
4(i) Whether there are unacceptable impacts upon neighbouring areas resulting from the additional height, which also deflects from the attempt to maintain a degree of conformity within the village precinct.
(ii) Whether there is a loss of amenity for the adjoining properties due to increased vehicular use of the right of way. No details have been provided to advise of the operational function of the right of way.
(iii) Whether there is a loss of privacy for the nearby and adjoining properties due to overlooking.
Particulars

5. Whether the proposed parking, access and egress arrangements are satisfactory and in particular:

Mechanical car stackers - whether the use of mechanical stackers is appropriate and whether it would create difficulties in allocation of parking spaces to various uses;
Cross fall for parking space no 1 - the cross fall at parking space no 1 is 10% and exceeds the maximum permissible cross fall of 6.25% in clause 2.4.6.1(b)(ii) in AS 2890. 1;
Residential garbage bins - whether the proposed storage and collection arrangements for residential garbage are satisfactory. In particular, the bins will need to be wheeled up a 1:5 ramp to be placed in Jellicoe Street for pickup. This gradient exceeds the permissible gradient of 1:8 (12.5%) in the Building Code of Australia Part D2 10(b)(ii) and would cause difficulty for residents attempting to wheel fully laden bins up the ramp;

Whether the proposed car parking and garbage collection arrangements will cause a loss of amenity to the adjoining residential dwelling particularly in terms of noise disturbance.
Width of the right of way - whether the right of way is sufficiently wide to safely accommodate the vehicular movements associated with the proposed development together with other users of the right of way.

Unsatisfactory manoeuvring.
Particulars

The issues relating to car parking and traffic (Issue 4(ii) and Issue 5) (which is where amendments have been made to the previous Statement of Issues) are the subject of a separate Statement of Evidence.
Objectors and Public Interest
6. Issues raised by objectors.
7. Circumstances of the case and the public interest.

45 The following emerged as the salient issues:

· Streetscape and special area study objectives;

· FSR;

· Height;

· Residential proportion;

· Car parking provision;

· Car-parking ramp; and

· Setbacks.

Planning principles

46 I have adopted the planning principle that previous approvals of excessive density relating to the development of the same site have little relevance to a new development application. The heads of consideration under s 79C of the Act apply as if there were no previous consents.

47 Similarly, other recent development approvals of excessive density in the area should be given little weight.

The evidence and findings

Streetscape and special area study objectives

48 Mr McDonald was of the opinion, that the proposal would not "enhance and improve the environmental quality of the centre" [Note: Exhibit 2 DCP3 Objective 2.1(a)] and its development control breaches cannot be justified. These breaches would not be "the basis for the efficient operation of the centre" he added, [Note: Exhibit 2 DCP3 Objective 2.1(b)].

49 Mr Goldsmith sought to justify the proposal on the basis that it would replace a building of unsympathetic bulk, poor architectural merit and materials with a building of satisfactory scale and sympathetic design.

50 Mr McDonald agreed with Mr Goldsmith that the existing building is very unsympathetic to the streetscape. The proposal, up to the masonry parapet line, would be better than the existing green metal-clad façade, but he said, the fourth floor and large voids created by the recessed balconies would be “…extremely unsympathetic elements and …not acceptable”.

51 As noted in DCP3 at para 5 above, the conversion of the subject “…former picture theatre building to a shop, is visually dominant due to its excessive height in comparison with adjacent buildings and its insensitive use of materials”, [Note Exhibit 2 p 5].

52 The proposal is situated in a special character area under LEP103 and as a result heightened consideration needs to be given to its streetscape impacts.

53 Mr Goldsmith maintained that the differences in built form and architectural expression for the proposed residential component would be acceptable in the context of the objectives of DCP3. He referred in support of the application, to the comments of the council's SEPP65 urban design panel set up to review the aesthetics of residential development over a certain size.

54 The important comments of the urban design panel considering the aesthetics of the proposal cannot be relied upon to justify the proposal in the context of the streetscape. As well I am satisfied that a complying development sketched by Mr Powell in Exhibit 19 could also be designed treated to reach the same standard of architectural design as that proposed. Mr Powell did not contest that proposition.

55 I am satisfied that from a town planning and urban design viewpoint, such a complying development would better relate in height, bulk and scale to other buildings in the Majors Bay Shopping Centre and could better "enhance and improve the environmental quality of the centre". This was the thrust of the evidence given by Mr McDonald, which I accept. On merit I am satisfied the proposal would be unsatisfactory as it would be too high and bulky.

56 The above planning principles in paras 46-7 apply and the application must be considered on its merits under s 79C of the Act. I have given little weight to recent approvals granted by the council including the refurbishment of the existing building on the subject land and a mixed-use development on the nearby BP site further to the west along Majors Bay Road. Both these developments would exceed the DCP3 FSR and height planning controls, among other controls.

57 I am satisfied that the proposal also would breach the planning controls and not meet the objectives contained in LEP103, and DCP3, and should be refused consent as a result of its adverse impacts.

58 Under s 79C of the Environmental Planning and Assessment Act 1979 I am satisfied that the planning controls that govern FSR, height, residential proportion, car parking ramp, car parking provision, and setbacks should be given appropriate weight. These are discussed below.

FSR

59 Mr McDonald pointed out that the council in adopting DCP3 sought to restrict the height of new development in the centre to no more than 3-storeys, around 11m in height and with a FSR of around 1.8:1. The proposal has a FSR as calculated by him of 2.59:1 or an excess of GFA of 574m2. Such as excess in gross floor area, (GFA) would be more than the GFA of either of the first or second floors of the proposal, which are both 502m2 and well over the GFA of the third floor of the proposal of 391m2.

60 Mr McDonald was of the opinion that the proposal’s non-compliance with the density controls is a major contributing factor to its unacceptable bulk and scale.

61 Mr Goldsmith was of the opinion that compliance with the FSR control would be unrealistic because of building cost issues, and the fact that the existing building volume already exceeds the FSR of the current approval. He relied in part on the existing valid consent for the retail/ commercial refurbishment of the existing building to justify the bulk of the proposal.

62 Mr Powell agreed that a complying development as outlined in Exhibit J and as shown in the sketch in Exhibit 19 could be erected on the land, and would be lower in overall height than the proposal and set further back from the adjoining properties in Jellicoe Street.

63 As submitted by Ms Schofield the council had reduced the FSR for the centre from 2:1 to 1.8:1 to avoid large bulky buildings. The proposal with a FSR of 2.59:1 would be excessive and it is not sufficient to point to the existing approval in an attempt to justify such a bulk. I am satisfied that the proposal would be too bulky in this part of the Majors Bay Shopping Centre. The demolition of the existing building could be seen as an opportunity to improve and enhance the centre by erecting a new building consistent in façade height with nearby buildings in the Majors Bay Road Shopping Centre.

64 I am satisfied that the proposal would be detrimental to the visual amenities of the locality and character of adjoining buildings and would not meet the DCP3 objectives of the FSR control. Additionally, some residents gave evidence on the site inspection that it would also reduce levels of sunlight, and aspect enjoyed by the residents of adjoining properties nearby in Jellicoe Street. I am satisfied that there were well-founded objections raised to the proposed development by persons likely to be affected by that development.

65 I would refuse the application for reason of its excessive FSR.

Height

66 Mr McDonald was of the opinion that the height of the existing structure of between 11.9m and 13.5m should not be used to justify a greater height than that contained in DCP3 of 11m. Mr McDonald considered it“…would be hard to imagine” how the applicant could use the unacceptably high and bulky existing building to justify a greater building height in the order of 12.55m-13.9m.

67 Mr McDonald was of the opinion that in this part of the Majors Bay Shopping Centre it is important to maintain the scale of the street and a consistent façade height.

68 Mr Goldsmith considered the proposed built form would provide good fit and high quality building. The proposal would be a useful residential addition to the Majors Bay Road Precinct and a landmark element or focus in the local streetscape, he said.

69 The proposal’s façade would be around 1.6m higher measured to the parapet level, than the façade to the shop building to the north and higher if measured to the roof of the top floor.

70 In respect of height measured in the number of storeys, cl 3(c) of DCP3 allows some flexibility provided the scale of the buildings in the centre is maintained. However, I am satisfied that the proposal would be higher than nearby buildings in the street, would not maintain the scale of buildings in the centre and inappropriate in the streetscape. In this regard I prefer the evidence of Mr McDonald.

71 I am satisfied that the height objectives of DCP3 would not be met and as a result the application should fail for this reason.

Proportion of residential use

72 Under DCP3 the proportion of residential use is required to be 50%, or half the GFA of the proposal is to be residential. As proposed the proportion would be much greater. A complying development as shown in Exhibits 19 and J could be setback further from the rear eastern boundary and as a result overshadowing and overbearing impacts could be ameliorated. I am satisfied that the proposal would not relate well to the residential properties at the rear in Jellicoe Street.

73 On the site inspection residents indicated their concern for the proximity of the proposal to their properties. I am satisfied that the proposal would not in the public interest and warrants refusal for this reason.

Car parking provision

74 A complying development as shown in the sketch in Exhibits 19 and J would provide 18 car parking spaces in a single level basement and would be deficient 11 spaces. The proposal with a single level basement would be deficient 16 spaces.

75 The council has resolved to dismantle its s 94 contribution plan that formerly required payment of a contribution for any deficiency of car parking and for all car parking to be provided on-site. It was accepted by both sides that it would be inefficient, given the size of the land, to provide car parking in more than one basement. If only one basement is provided the GFA of any development on the land might be restricted by the amount of car parking able to be provided.

76 As the residents who gave evidence on the site inspection point out car parking in the nearby streets is at a premium and I am satisfied to impose an additional demand on street parking would be unreasonable.

77 The proposal would not be able to meet the council’s car parking objectives and should be refused consent.

Car-parking ramp

78 Issue 5 is whether the proposed parking, access and egress arrangements are satisfactory and whether there is non-compliance with AS 2890.1 with respect to the gradient of the ramp among other matters such as sight lines.

79 Mr Marshall confirmed that the proposed car-parking ramp to the basement would not comply with AS 2890.1 as it does not provide for at least a 4m section of ramp at 1:20 slope near the right of way. Safety issues thus arise, as drivers of vehicles emerging from the basement car parking would be deprived of the visibility of pedestrians and vehicles that would be provided by a complying ramp.

80 A complying ramp would be longer, have at least a 3.8m to 4m ramp at 1:20 slope, and would require additional length and headroom and as a result would likely require significant amendment to the plans.

Setbacks

81 As may be seen in the sketch plans of a complying development in Exhibit 19, the proposed top residential level would be deleted, and the other residential floors would likely be setback from the rear or eastern boundary. This would provide a greater separation between the proposal and nearby dwellings especially those in Jellicoe Street. Such a greater setback would be likely to reduce amenity impacts due to overlooking without the need to resort to privacy screens, overshadowing and would be likely to reduce the impression of bulk.

82 With a reduced and complying FSR it might be possible to increase the side setbacks of the residential component and go some way to meeting the required setbacks under the Building Code of Australia.

83 For the above reasons, the appeal is dismissed.

Orders
84 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 744/02 lodged with the respondent council on 30 September 2002 (since amended), to demolish the existing building and construct a mixed use residential/retail development of four storeys, with one basement car parking level, at No 43 Majors Bay Road, Concord, is refused consent.

3. The exhibits with the exception of Exhibits B, C, J, 3 and 19 are returned.

S J Watts

Commissioner of the Court

sw