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					Ireneinc Planning obo Vivo Building Designers v
Kingborough Council [2006] TASRMPAT 139 (21 Jul 2006)
File No: 79/06 P                                                                    J 139/2006

  16 Ocean Esplanade and 1A Pearsall Avenue Blackmans Bay - Demolition of existing
shops – replacement of three shops – one apartment above – construction of grocer store
                                – two apartments above

                                       BETWEEN
Ireneinc Planning obo Vivo Building Designers                                          Appellant

                                             AND

Kingborough Council                                                                  Respondent

This was an appeal against a refusal to grant a permit for the demolition of existing shops with
replacement of three shops and one apartment above and construction of grocer store with two
apartments above at 16 Ocean Esplanade and 1A Pearsall Avenue Blackmans Bay

The appeal was heard at Hobart on the 21 st and 22nd June 2006

S B McElwaine of Counsel appeared on behalf of Vivo Building Designers

T Ferrier appeared on behalf of the Kingborough Council

M Griffiths, party joined, appeared on his own behalf

C Winter, party joined, appeared on his own behalf

D Dilger appeared on behalf of the Blackman‟s Bay Shopping Centre

                                        DECISION
Introduction
1.     Vivo Building Designers made application to the Kingborough Council („the Council)
       on 22 December 2005 for a permit allowing for the demolition of existing shops with a
       replacement of three shops and one apartment above and the construction of a grocery
       store with two apartments above at 16 Ocean Esplanade Blackmans Bay and
       1A Pearsall Avenue Bay.

2.      A request for further information pursuant to section 54 of the Land Use Planning and
        Approvals Act 1993 (the „Land Use Act‟) was made of the developer on the
        11th January 2006. That request was subsequently answered to the apparent
        satisfaction of the Council.

3.      The Council, acting as a planning authority pursuant to the Land Use Act decided to
        refuse the application for a permit. On the 14 th February 2006 it notified the Developer
        of its decision. Each of the various persons who made representations to the Council
        about the application were notified on or about the 20 th February 2006.

4.      By Notice of Appeal dated the 2 nd March 2006 the Developer appealed against
        Council‟s refusal to grant the permit.

5.      The grounds of appeal were:
                   1.     That the proposed use and development are not
                          inappropriate for this location, nor contrary to the
                          Desired Future Character Statement for Blackmans Bay
                          as contained in the Kingborough Planning Scheme 2000.

                   2.     That the carparking to serve the existing proposed
                          development complies with the provisions of Schedule 3
                          and 4 of the Kingborough Planning Scheme 2000, and
                          will not have an adverse impact on pedestrian safety and
                          convenience for disabled users.

                   3.     That on-site turning and manoeuvrability is acceptable
                          and complies with the provisions of Schedule 4 of the
                          Kingborough Planning Scheme 2000. And as such will
                          not adversely impact Acceptable Standards of waste
                          management.

                   4.     That the impact on neighbouring residential dwellings in
                          terms of loss of daylight/sunlight, overshadowing,
                          overlooking, loss of view, light spill etcetera, is
                          acceptable under the provisions of the Kingborough
                          Planning Scheme 2000.

                   5.     The provision of open space for the propose apartment is
                          acceptable and complies with the appropriate alternative
                          solution within the Planning Scheme.

6.       Various persons applied to be joined as parties to the appeal under Section 14(2) of the
         Resource Management and Planning Appeals Tribunal Act 1993 (the Planning Appeal
         Act). In the event some six parties were joined to, and participated in, the appeal.

The law
7.     The Resource Management and Planning Appeals Tribunal (the Tribunal) is required
       to hear and determine the appeal pursuant to Section 23(1) of the Planning Appeal Act.

8.       That section provides:

         “23.      Determination of appeal
                   (1)   For the purpose of determining an appeal, the Appeal
                         Tribunal may exercise all the powers that are conferred by
                         the relevant legislation on the person who made the decision
                         that gave rise to the appeal.
                   (2)   The Appeal Tribunal must make a decision in writing –
                          (a)     affirming the decision appealed against; or

                          (b)     varying the decision appealed against; or
                          (c)     setting aside the decision appealed against and
                                  –

                                  (i)     making a decision in substitution for the
                                          decision appealed against; or




File No: 79/06 P                               Page 2                          J No. 139/2006
                                  (ii)   remitting the matter for reconsideration
                                         in accordance with any directions or
                                         recommendations of the Appeal
                                         Tribunal.

9.       It follows that on the hearing of the appeal the Tribunal hears the matter de novo.
         Accordingly it is necessary to consider and determine the matter by reference to the
         relevant provisions of the applicable Planning Scheme.

The Planning Scheme
10.    The Planning Scheme that applies to the development application and consequently
       this appeal is the Kingborough Planning Scheme 2000 which came into operation on
       the 1st July 2004 (the „Scheme‟). It is a performance based scheme. As such it requires
       assessment of development applications by reference to „acceptable solutions‟, which,
       if met, result in a development or use being permitted. If all or some of the acceptable
       solutions are not met or alternatively, as is the case here, there are no acceptable
       solutions prescribed for a particular development or use, then the application must be
       assessed by reference to the „alternative solutions‟. Where resort to any alternative
       solution is necessary then development or use is, a priori, discretionary.

11.      The land that is the subject of the appeal is within the Residential Zone. That zone is
         governed by Chapter 5 of the Scheme. The use and development proposed are ones
         that fall within the business and civic classes of development and use. The operation of
         the Scheme means they are allowed in that zone subject to a planning permit being
         issued.

12.      The relevant Objectives for the Residential Zone are stated in 5.1.2 to be:

                   “(b)   retain the character of townships and emphasise the gateways and
                          individuality of each area:
                   (e)    allow other use or development that is compatible with theses values.”

13.      5.3.1 of the Planning Scheme provides that

                   Planning permit required Use Classes in this zone are:
                    Residential
                    Utilities
                    Recreation
                    Environmental Protection
                    Business and Civic

         As indicated above the use and development proposed falls within the Business and
         Civic class.

14.      Clause 5.4.1.2 of the Scheme provides that „all applications for use or development
         must be considered under the Alternative Solution‟.

15.      The relevant provisions of the alternative solution, in this case, are:
         Council may approve an application for use or development not meeting the
         Acceptable Solution where it can be demonstrated that:
          (a)     the application will not prejudice the zone objectives or applicable
                  desired future character statements; and
          (b)     the application is not inconsistent with the transport strategies
                  defined in Part 2 of the Scheme; and


File No: 79/06 P                              Page 3                           J No. 139/2006
           (c)     provisions contained in Part 5 of the
                     Scheme are addressed with respect to:
                     (i)     subdivision; and
                     (ii)    provision of utilities; and
                     (iii)   building height; and
                     (iv)    setbacks; and
           (d)     all provisions contained in Part 6 of the Scheme area addressed
                   with respect to:
                     (i)     loading and unloading of goods; and
                     (ii)     orientation to the road; and
                     (iii)   carparking location; and
           (e)     the proposed use or development is needed by the community and
                   is not more appropriately provided within the Business and Civic
                   Zone; and
           (f)     all relevant provisions of the Scheme are met.

The Issues and the Evidence
16.    It is convenient to deal with each of the issues in paragraph referred to above and
       consider what evidence the Tribunal had about each.

Zone Objectives
17.   The Tribunal has little difficulty in concluding that the proposal does not compromise
      any of the matters of the zone objectives and, specifically, neither of the objectives
      identified above as the objectives relevant to this proposal. The evidence that supports
      such a conclusion came from Ms Duckett, a planner called by the developer. Her
      evidence about this was not seriously challenged. The only other evidence about the
      matter was from Mr. Ferrier, called in support of the Council‟s position. He agreed in
      cross examination with the substance of Ms. Duckett‟s evidence.

Transport Issues
18.   The Tribunal needs to be satisfied that the development is not „inconsistent with the
      transport strategies defined in Part2 of the scheme‟. The transport strategies referred to
      are as follows:

           (vi) To achieve better integration of land use and transport strategies by
                   ensuring:

                    (a)     the level of access to the planning scheme area‟s
                            resources and social and economic assets are not
                            diminished or allowed to be degraded by:
                              (i)    creating new and unplanned access points;
                              (ii)   allowing new use or development close to
                                     roads which would reduce service and safety
                                     levels;
                              (iii)  allowing the road reservation to be used for
                                     commercial advertising and promotion
                                     purposes; and
                              (iv)   adversely impacting on the capacity to use
                                     transport networks as infrastructure corridors;

           (b)     the location and form of construction of new transport
                   infrastructure does not dominate the landscape and generally
                   follows natural land contours;




File No: 79/06 P                              Page 4                          J No. 139/2006
           (c)     in urban environments new subdivisions promote inter and intra
                   suburban travel;

           (d)     the expansion of employment within the planning scheme area so
                   as to reduce growth in vehicle volumes along the Southern Outlet;

           (e)     new use or development enhances and is integrated with public
                   transport including promotion of urban consolidation principles
                   for residential development;

           (f)     major traffic generating development is located in the most
                   accessible locations for multiple modes of transport,

           (g)     public transport and other means of movement beyond private cars
                   are given greater consideration in decision making.

19.      The only evidence about this issue came from Ms. Duckett, who expressed the view,
         uncontradicted, that this requirement was satisfied. The Tribunal accepts her evidence
         on this point and finds accordingly.

Building Heights, Setbacks and Utilities

20.      It was common ground that the proposal does not comply with the requirements of the
         scheme in relation to Building Height in that the maximum height allowable on this
         specific site is 5 metres, due to it being located in close proximity to a Crown coastal
         Reserve. This development has a maximum height of 8 metres. Mr Griffiths submitted
         that „the commercial desirability of the units is not sufficient justification to relax the
         height requirements of the planning scheme‟. But it seems to the Tribunal, when this
         issue is looked at closely, there are a number of reasons why it is an appropriate
         exercise of discretion to allow this development to exceed 5 metres in height. These
         factors include that the evidence (Ms Duckett, Mr Ferrier, Mr Geason) disclosed was
         that there was no adverse impact upon neighbourhood values nor environmental values
         should this occur. Further no real issues arose as far as privacy, view corridors and solar
         access in the view of the witnesses called. Finally, an examination of the existing
         streetscape suggest, in the Tribunal‟s view, such a relaxation to be appropriate at this
         particular location.

21.      Setbacks were an area of contention after privacy issues. However the evidence from
         the designer, Mr Stephen Geason, called on behalf of the developer and also Mr
         Andrew Strugnell, called by Mr Griffiths, leads the Tribunal to conclude the issue of
         overshadowing is not of sufficient significance to allow it to conclude that building
         height and setback provisions are not sufficiently complied with.

Traffic
22.     The alternative solution requires the Tribunal to be satisfied that all the provisions
        contained in part six (6) of the Scheme are addressed with respect to:
         i)      loading and unloading of goods;
         ii)     orientation to the road;
         iii)    carparking location
        Specifically in that regard 6.4.3.1 of the Scheme provides “where delivery of goods is
        required arrangements for parking, manoeuvring, loading and unloading of delivery
        vehicles is not to interfere with pedestrian or vehicle movements on roads, nor be
        completely reliant on kerb side parking.

23.      This issue was an issue of significant importance at the hearing.


File No: 79/06 P                               Page 5                            J No. 139/2006
24.      Evidence was called by the developer from Mr Tony Peters, a traffic engineer. The
         substance of Mr Peters‟ evidence was that he was conversant with the plan that was
         proposed and in his view the proposal created no issues from a traffic perspective
         particularly in the context of safety. Mr Peters was cross-examined at some length by
         other parties participating in the appeal but his evidence was not seriously challenged.
         Nor was any other evidence called by any other party on the subject of traffic issues,
         although the Tribunal notes that for the Council Mr. Ferrier expressed several views.
         He conceded though, quite properly, that he possessed no qualifications in the area.
         Although of course entitled to express views on such subjects, the Tribunal notes Mr.
         Peter‟s qualifications in the area and prefers his evidence on the subject, where it
         conflicts with Mr. Ferrier.

25.      An issue that arose during Mr Peters‟ evidence was the possibility of the construction
         of a pedestrian channelling device. Mr Peters conceded, quite properly in the view of
         the Tribunal, that the erection of two such pedestrian channelling devices would be an
         appropriate condition to place upon the grant of the approval of the matter the subject
         of the appeal. He expressed the opinion that it was better for that to be conditioned
         now and thus designed and properly planned rather than being what he described as a
         “retro” addition. The Tribunal agrees.

26.      What is clear from the evidence and examination of the site and a close examination of
         the plans is that the carpark provided and the loading and unloading that will be
         necessary to take place in the carpark will be exceedingly crowded. The carparking is
         the absolute minimum required for a development of this type on this site. In fact so far
         as the apartments are concerned it is sub minimum by one parking place. The carpark
         itself will be extremely crowded. It was common ground amongst the experts and the
         parties at the hearing that there will be regular and frequent deliveries. Mr Winter who
         runs the only business operating at or about the site gave clear evidence about this,
         which the Tribunal accepts. If the delicatessen is as successful as the developer
         doubtless hopes it will be, then the deliveries to that business on top of the existing
         deliveries to Mr Winters business as well as potential business delivers in the future
         and the provision of parking places for patron, customers and residence leads to, in the
         Tribunal‟s view, a very crowded environment both in the car park provided and in the
         parking area immediately adjacent, in The Esplanade and Pearsall Avenue.

27.      This overcrowding needs to be addressed by conditions.

Appropriate location
28.   The substance of Ms Duckett‟s evidence in relation to the appropriateness or otherwise
      of the location was that it depended to a large extent upon the function of the shops.
      She expressed the view, a view which the Tribunal accepts, that the local shops need to
      be accessible to people both with and without cars. Ms Duckett made the point in
      relation to local shop accessibility that Blackman‟s Bay is a commuter suburb and as
      such it is quite reasonable to assume that in many cases one partner in a household will
      have taken the household‟s motor vehicle to his or her workplace (whether that be in
      central Hobart or elsewhere) leaving the other partner at home without a vehicle. In
      addition she gave evidence about those without any cars. She said that local shops need
      to be accessible to people in these circumstances. It was noted by Ms Duckett that local
      shop is not defined in the Planning Scheme but the definition she suggested by
      reference to the Hobart City Planning Scheme whilst not strictly relevant was helpful.
      In addition it is accepted that an appropriate definition might also have regard to what
      goes on in the shop and what the shop sells. She opined that a local shop is to be
      contrasted with a larger supermarket, with the former being defined by a limitation to
      what one can buy on the basis of what one can carry.


File No: 79/06 P                               Page 6                           J No. 139/2006
Private Open Space
29.     On the issue of private open space Ms Duckett‟s evidence was that there had been a
        strong growth in demand for apartments in the greater Hobart area and that some
        household types, such as the household type typically attracted to an apartment simply
        do not need large open space. Her evidence was that the small deck, from a planning
        perspective, was sufficient in the circumstances of this design when one had regard to
        the fact that amongst other things there is a huge area of public open space in the form
        of the beach and the foreshore reserve literally across the road. She also gave evidence
        that the private open space requirement in the scheme is one with which it is impossible
        to comply, when a proposal deals with apartments such as those proposed here.

30.      It was pointed out however that the proposal so far as it relates to private open space in
         fact complies with TASCORD, the Tasmanian Code for Residential Development.
         That Code suggests at Element 3.8 a minimum private open space for upper level
         apartments of 8m2, which is less than that proposed here. Although not bound to have
         regard to TASCORD, the Tribunal found the formulation helpful, Especially in light of
         the location of the proposed apartments adjacent to the beach and foreshore reserve.

Loss of privacy
31.     Ms Duckett was cross-examined by Mr Griffiths in relation to the issue of loss of
        privacy in terms similar to the questions that had been posed to Mr Geason. She said
        that whilst she accepted that it was possible to increase the height of the window in
        question from 1.2 metres to 1.7 metres she did not see that there was a need. She told
        the Tribunal that there was a balance that needs to be struck between privacy and what
        she described as „passive surveillance‟. Ms Duckett said that passive surveillance was
        the ability of neighbours to see what is going on in a neighbouring property in the event
        of something appearing to be inappropriate, such as a burglary.

Need
32.  The other issue at the hearing that occupied a good deal of time in terms of evidence
     and space as far as submissions were concerned was the issue of “need”. This issue
     arises as a consequence of the inelegantly and curiously drafted 5.4.1.2 (e) which
     provides:
               “the proposed use of development is needed by the community
               and is not more appropriately provided within the business and
               civic zone”.

33.      On behalf of the Blackman‟s Bay Shopping Centre it was submitted that
         need is not defined in the scheme which is a fact which is unarguable and
         that need has an ordinary dictionary meaning
               “a conditional situation which something is required or wanted
               something required or wanted; a requisite
               necessity; obligation
               a condition of poverty or misfortune”.

34.      The last definitions can be thought to be of a particular assistance in the consequence of
         this case.

35.      But it is necessary to determine what this clause means in the context of the planning
         scheme. Economics and economic considerations have little or no role to play in
         relation to planning issues. The classic authority for this preposition is Kentucky Fried
         Chicken Ltd v. Gantidis (1979) 140 CLR 675. In that case Stephen J said at pages 687
                    “The learned primary Judge described in a submission urged
                    before the Tribunal, namely that the establishment of the


File No: 79/06 P                               Page 7                            J No. 139/2006
                   Appellant‟s fried chicken shop would adversely effect existing
                   food shopping facilities in the neighbourhood as being just such a
                   consideration as I had earlier held in (Spurling) to be a proper
                   planning consideration. I would with respect agree with
                   His Honour. The significant word, quiet vital to the nature of the
                   submission to which his honour referred is “facilities”. If the
                   shopping centre facility is presently enjoyed by community or
                   planned for in the future are put in jeopardy by some proposed
                   development, whether that jeopardy be due to physical or financial
                   causes, and if the result in community detriment will not be made
                   good by reason of the proposed development its self, that appears
                   to me to be a proper consideration to be taken into account as a
                   matter of town planning”.

36.      This case is authority for the proposition that individual economic impacts are not
         relevant matters to be considered in the context of planning.

37.      It is submitted on behalf of Blackmans Bay Shopping Centre that there was no
         evidence upon which the Tribunal could be satisfied that need on the part of the
         community was demonstrated in this case. But the Tribunal takes the view that there
         was sufficient evidence upon which it could be satisfied that this clause in the planning
         scheme is satisfied. Ms Duckett gave evidence as to the need for a local shop in the
         area principally on spatial grounds. The Tribunal accepts her evidence on this point. It
         is sufficient in its view to allow it to be satisfied that there is compliance with this
         particular clause.

38.      The matter perhaps should not be left there. The Blackman‟s Bay Shopping Centre
         submits that the nearest alternative is only some 600m away i.e. the
         Blackmans Bay Shopping Centre itself, but this overlooks the fact that 600m is uphill
         and requires the crossing of a busy road. 600m (or a round trip of over a one kilometre)
         is, in the view of the Tribunal a significant distance particularly for an older person and
         especially someone not possessed of a car.

39.      Mr Griffiths make the point that in the era of seven day a week supermarket shopping,
         need for such a development was not demonstrated but this point is susceptible to the
         same criticism and indeed supermarkets (with the exception of one situated at
         Blackmans Bay Shopping Centre) are a significant distance away further still.

40.      For these reason the Tribunal rejects the submissions made by Mr Griffiths and the
         Blackmans Bay Shopping Centre and prefers and accepts the submission in relation to
         need from the Developer and the evidence it called in support.

Conclusion
41.    It should be noted the Tribunal members conducted an inspection of the site.

42.      It is the view of the Tribunal that the general nature of the development that is proposed
         is that it is appropriate but, if permitted to proceed on the basis suggested, will amount
         to an over intensification of the use of the site. The principal concerns that the Tribunal
         have relate to the space within the car parking area that is provided for customers,
         residents of the apartments but most importantly service of the delicatessen and the
         existing café restaurant. The Tribunal‟s view is that the spaces that are provided are
         inadequate and will lead to overcrowding and difficulties in the car park area. The
         reason that this view is reached is that the carparking that is provided is the absolute
         minimum that is allowed. The manner in which the carparking is suggested does not
         allow for, in the Tribunal‟s view, adequate or indeed any screening of the adjacent


File No: 79/06 P                               Page 8                             J No. 139/2006
         properties. In the Tribunal‟s view this an extremely important matter that needs to be
         considered in the approval or otherwise of the development, especially in light of the
         residential zoning of the land.

43.      Another and very important matter that needs to be addressed in the approval of the
         development is the issue of waste management. The Tribunal remains concerned about
         the capacity of waste management issues to be properly addressed on the plans as they
         are currently submitted for approval. This concern relates to the tightness of the
         carparking and manoeuvring area to facilitate waste collection vehicles and also
         provide adequate space for the number of waste receptacles required.

44.      These concerns need to be addressed. The Tribunal‟s view is that in the exercise of its
         discretion it is appropriate to approve the application that is made with conditions being
         made in relation to the provision of additional car parking, proper space for waste
         management and space to allow for the appropriate screening of adjoining land holders.

45.      In the Tribunal‟s view the only way that this can be achieved is to reduce the number of
         shops on the Pearsall Avenue side of the development from three to two to allow for
         additional space and a redesign of the plan.

46.      Accordingly the orders of the Tribunal are that the appeal be allowed and a permit
         issued subject to the following conditions:

                   1.     There be a reduction from three shops to two on the Pearsall
                          Avenue side of the development and a corresponding
                          reduction in the proposed retail space and floor area of the
                          building.

                   2.     That there be screening on all boundaries to a height of
                          2.1 metres and suitable landscaping on all boundaries.

                   3.     That there be a loading zone provided in the bay in Pearsall
                          Avenue available for use between the hours of 9.00 am and
                          5.00 pm Monday to Friday and 9.00 am to 1.00 pm on
                          Saturdays.

                   4.     That the precise terms of the permit, (including the
                          pedestrian channelling device or devices) to be issued be
                          agreed between the Developer and the Council within 28
                          days and that failing such agreement the matter will be
                          relisted before the Tribunal and terms of the permit
                          determined.

47.      The Tribunal will entertain any application for an order for costs in this appeal, if made
         to the Tribunal in writing with supporting submissions within the next fourteen days. If
         appropriate the Tribunal will reconvene to hear any evidence in respect of any matter
         bearing on an order for costs.

48.      In the absence of any such application for an order for costs the order of the Tribunal is
         that each party bear its own costs.


                                        Dated 21 Jul 2006

      B McNeill                             SJ Coope r                           C Nicholson


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       Member      Chairman     Member




File No: 79/06 P   Page 10    J No. 139/2006

				
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