CROWN MARINA P/L v CITY OF PORT ADELAIDE ENFIELD & ANOR [2009] SAERDC 3 (22 January 2009)

Last Updated: 27 January 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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CROWN MARINA P/L v CITY OF PORT ADELAIDE ENFIELD & ANOR

[2009] SAERDC 3

Judgment of Commissioner Green

22 January 2009

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Act 1993 - applicant appeal - retirement village and associated facilities, serviced apartments, marina berth users' lounge, storage, car parking facilities - refusal by the Council - Marina (North Haven) Zone and Policy Area 41: Business Policy Area - land use and acoustic compatibility; visual amenity, character and appearance of built form; access, traffic, parking, manoeuvring, servicing, cycle, storage and recreational vehicle storage; other impacts such as odours, overshadowing and overlooking; and various functionality and management aspects all considered - proposal found to be insufficiently compatible and built form and other characteristics unacceptable and with sufficient departure from the Development Plan to warrant refusal - appeal dismissed - decision of the Council upheld.

Development Act 1993; Development Regulations 1993, referred to.

Town of Gawler v Impact Investment Corporation Pty Ltd (2007) SASC 356; Lumbers & Ors v City of Port Adelaide Enfield & Ors [2008] SAERDC 90, considered.

CROWN MARINA P/L v CITY OF PORT ADELAIDE ENFIELD & ANOR
[2009] SAERDC 3

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter is an applicant appeal against the decision of the City of Port Adelaide Enfield (“the Council”), to refuse to grant Development Plan Consent to Development Application No. 040/3200/07, made under the Development Act 1993, for the erection of a three-storey, four level building for retirement village units with associated parking, swimming pool and landscaping, and other communal facilities; marina lounge and serviced apartments and ancillary facilities and parking, at North Haven.
2. The Council’s Development Assessment Panel refused the application citing the following reasons:

The proposed development is seriously at variance with the Port Adelaide Enfield (City) North Haven Marina Area Structure Plan Map PAdE/1 (Overlay 1) Enlargement B along with the relevant Objectives and Principles of Development Control of Council’s Development Plan and in particular:

1.1 Zoning and Land Use

Zoning Objectives: 2
Zoning Principles of Development Control: 1, 2, 4,
Policy Area 41 Objectives: 1, 2, 3
Policy Area 41 Principles of Development control: 1, 3, 4

The proposal is at variance to the Zone and Policy Area Objectives and Principles of Development Control as the development is of a residential nature without being integrated as part of a business development, nor being designed in such a manner so as to create active public frontages nor does the development sufficiently minimise impacts on the operation of existing businesses.
1.2 Access, Car Parking and Manoeuvring Areas
Council Wide Principles of Development Control: 80, 81, 82, 99, 102
Zoning Principles of Development Control: 18

The proposal is at variance to the principles in that it does not facilitate safe and convenient traffic circulation, has a detrimental impact on the existing developments, is not suitably landscaped to provide shade, shelter or enhance the appearance and amenity of the car park, and does not provide safe and convenient access for service vehicles, emergency vehicles and public utility vehicles.
1.3 Landscaping
Zoning Principles of Development Control: 37
Policy Area 41 Principles of Development Control: 6

The proposal is at variance with the provisions with respect to landscaping, in that the proposal does not meet the minimum area requirement nor provide a 6 metre wide landscaped area to the Residential Policy Area boundary.
1.4 Amenity, Character, Visual Appearance and Built Form
Zoning Objectives: 1
Council Wide Principles of Development Control: 25
Zoning Principles of Development Control: 2, 4, 7, 15, 17, 18.
Policy Area 41 Objectives: 1
Policy Area 41 Principles of Development Control: 4, 6

The proposal is at variance with the Development Plan provisions with respect to amenity, character, visual appearance and built form, in that the design and configuration of the proposal fails to adequately enhance or contribute to the subject land or the locality in which it is situated.

3. A summary of some of the relevant details in this matter is as follows:

Registration date of application:	5 November 2007
Subject land address:	Part Allotment 503, Alexa Road and Liberty Avenue, North Haven (part of CT Vol. 5887 Fol. 747)
Existing use:	Vacant land
Proposal:	Develop a mixed use retirement village (32 units) with associated car parking, swimming pool, landscaping and recreation and communal facilities; and marina lounge and storage as well as car parking for marina users and serviced apartments (six units)
Relevant authority:	City of Port Adelaide Enfield
Relevant/appropriate Development Plan:	Port Adelaide Enfield (City) consolidated version 1 November 2007
Relevant Zone/Area:	Marina (North Haven) Zone/Policy Area 41: Business Policy Area
Date of decision:	7 May 2008
Appeal lodged:	4 July 2008
Conference concluded:	1 August 2008 (and second respondent party joined)

4. The Court viewed the subject land and the locality on the morning of Monday, 13 October 2008 in the presence of the parties.
5. Witnesses providing evidence to assist the Court, and to which regard is given comprised, for the appellant, Mr A Rumsby, an experienced consultant town planner (refer Exhibit A5), Mr P Weaver, an experienced consultant traffic engineer (refer Exhibit A6), Mr C Turnbull, an experienced consultant acoustic engineer (refer Exhibits A7 and A9) and Ms J Varvaris, of 46 Liberty Avenue, North Haven, who gave oral evidence as a nearby resident layperson; for the respondent Council, Mr M Rolfe, an experienced consultant town planner (refer Exhibit R5), Ms M Mellen (Exhibit R4 but not sought or required to be called to give oral evidence), under subpoena Mr M Browne of the Environmental Protection Authority, Mr P Bolton, the operator and half owner of Blue Sky Marine (“BSM hereafter”) the adjoining business, and Mr S Moore, an experienced consultant acoustic engineer (refer Exhibits R17 and R18); and for the second respondent, Ms K Hage in person, resident of 58 Liberty Avenue, North Haven, to the west (refer Exhibit A).

The Subject Land

6. The subject land comprises an irregular shaped and vacant parcel of land fronting Alexa Road and Liberty Avenue, North Haven. It encompasses a large rectangle of perhaps 26 by 97 metres. It is located between the boat maintenance operations of BMS and low-density residential development to the north-east fronting Victory Crescent, and the various medium density residential dwellings on Liberty Avenue and its private road extensions generally to the west.
7. The land in the balance of the title includes walkway links around the marina, a substantial part of the marina basin and other land and water. The subject land has a land area of some 4,400 square metres on the estimates of Council planners and one expert. The land is affected by various service easements and rights-of-way.
8. The subject land has a primary road frontage of 21.5 metres to Liberty Avenue (and an 80 metre abutment to the private roadway extension of Liberty Avenue), and a 9.61 metre frontage to Alexa Road, excluding a common property parcel. The subject land is an unusually configured parcel with somewhat limited public exposure and to which almost all adjoining properties back onto or present the rear of them. For example it is behind the abutting boat yard and workshop with associated boat lift and open storage yard of BSM; it is behind the brush fence and landscaping of the extended private roadway at the end of Liberty Avenue and it is to the rear of dwellings fronting Victory Crescent to the north-east and to the side of dwellings located to the south.
9. The primary Liberty Avenue frontage is located in the vicinity of a group of residential flat buildings. It also lies at the interface between and behind marina and business service land uses and residential properties. I agree with Mr Rumsby that it is in a busy and lively location close to the marina basin edge albeit with more distant vistas to the marina partly across the BSM open boat storage site. Photos of the subject land are contained in Exhibit R5 at pp 5-7.
10. The land is vacant, cleared and relatively level.

Development Proposal

11. The development proposal is set out in Exhibit A1 and it comprises a mixed-use development in a four level building generally as follows:
    • basement/undercroft level – 109 space car park including 40 spaces for marina berth users together with stores and refuse/garbage collection areas;
      
    • ground level – a 5.8 metre wide two-way, boom gate access from Alexa Road with 4.8 metre wide boom gate egress only to Liberty Avenue, proposed to service a 30 space at-grade parking area and linking to a ramp to the basement car park together with the ground level elements of the building including:
      

- two separate lifts and three separate stairwells accessed from the at- grade 30 space car park, the main building entry, from a more central location, as well as from the basement car park;

- 2, one bedroom and 4, two bedroom serviced apartments of between 68 and 82 square metres in floor area including mini kitchen and laundry facilities, living space, bathroom/toilet together with north-westerly facing courtyard balcony spaces;

- a reception office, games/recreation area and toilet facilities associated with the retirement village living units and with the six serviced apartments on the ground level;

- a marina users’ lounge and associated bar and kitchen facilities and toilets for marina berth owners/visitors;

- a restaurant/dining facility with associated kitchen and toilets for retirement village residents;

- an in-ground swimming pool set in a raised podium level with flat roof, accessed from the ground floor serviced apartment level as well as the paved terrace level a little lower;

- the various at-grade paved terraces with associated landscaping;

- a pedestrian pathway linked by a self-closing gate to the marina gangway and the proposed marina berths (separate application and decision of this Court on appeal);

- a 3.0 metre high masonry wall along the whole length of the eastern side of the subject land to the BSM site with such acoustic barrier reduced to 2.4 metres for the car park and portion of the driveway boundary, then changing to a Colorbond fence of the same height but stepped down to the Alexa Road frontage to provide driver sightlines;

- a 2.4 metre high Hebel wall proposed to the subject land’s north-eastern boundary; and a 3.7 metre high masonry wall around the swimming pool area and part of the north-west and south-western boundaries; and

• first and second floor levels – provide for a total of 10, one bedroom and 22, two bedroom retirement living units of between 65 and 86 square metres in floor area. All units are provided with balcony spaces of no less than 5 and generally between 11.5 and 14 square metres. Enclosed balconies are provided to units 18-21 and 34-37 given their location relative to the BSM site, and with acoustically sealed doors designed in accordance with the specifications of Mr Turnbull. Acoustic end walls to all eastern facing balconies and double glazed windows are also provided to the projecting easterly building sections in the vicinity of the BSM site.
  

12. Whilst not accurately detailed and left to an extent to Mr Rumsby and the appellant’s counsel to present, it is expected that other provided services for retirement unit occupiers are to include the availability of a care attendant; access to emergency call out systems; laundering and catering services and that the occupants of the retirement age will exceed 55 years.
13. Variations made to the proposal plans post the refusal by the Council were said to included:
    • basement car park and access ramp redesign;
    • width of the Alexa Road driveway and removal of parallel parking along that driveway;
    • the pool level and its access arrangement and podium design;
    • all ground level floor area designated as serviced apartments/short term accommodation units rather than retirement units, together with communal features such as a reception and office area, library, marina lounge and dining areas etc;
    • further detailing of acoustic measures for those projecting bedrooms and living room windows exposed to the neighbouring BSM site; and
    • storage facilities at ground level for the marina berth owners.
14. Flowing from the marina berth application and decision of this Court (Lumbers & Ors v City of Port Adelaide Enfield & Ors [2008] SAERDC 90), approving 104 berths and parking areas, in that some conditions of consent and the development overlap with that now before the Court in this matter – apparently relying on 69 car spaces within the area of the development proposal before this Court. That has been taken into account by the traffic engineers and town planners.

The Locality

15. Comprising that part of the area surrounding the subject land of tangible influence on it and that this specific proposal affects, to a notable degree, I find that the locality is to be primarily determined on a visual and acoustic amenity, character and traffic impact basis. I note that the locality boundary put forward by both the town planners was reasonably different – that of Mr Rolfe much more extensive around the marina basin to the north-west, west and south but more curtailed to the north and east than Mr Rumsby’s. I adopt the locality boundary of Mr Rumsby to the north and east, but that of Mr Rolfe to the west and south, primarily on visual amenity grounds.
16. All of the locality is within the Marina (North Haven) Zone but partly straddling Policy Areas 40, 41 and 42 as set out on MAP PAdE/43.
17. The locality includes the residential developments on both sides of Liberty Avenue up to its junction with Australia II Avenue and including the private road extensions and adjacent residential development; the BSM site and activities adjoining to the south east including its offices, workshops, boat store, open boat storage area and lift, and associated boat ramp and parking areas; the majority of the Victory Crescent dwellings particularly the areas backing onto the subject land; most of Alexa Drive and land adjacent from Lady Gowrie Drive to the north-east, mostly an open car parking area servicing and including the North Haven Marina Business Area (tavern, retail, businesses), together with residential development adjacent the eastern side of BSM site; and the marina basin environment including berthing facilities and boats, as broadly identified on Mr Rolfe’s locality plan, together with the edge land residential development of Acadia Court to the south and Gulfpoint Drive to the west.
18. Mostly residential development is a mix of one and two storey buildings but with a few three storey buildings and the balance of the area is made up of the marina businesses/boat berthing areas with some additional retail/business/tavern uses to the south-east and, importantly for the case, the BSM site and land use adjoining to the east and south-east. The BSM site (refer photos 6-11 of Exhibit R5) contains what is said to be a relatively long-standing boating maintenance activity business and land use. Whilst the appellant raises some doubts about the legitimacy of the underlining land use – boat yard/boat maintenance – the respondent Council appears to accept some lawful boating maintenance activity land use and prior approvals for structures including boat maintenance and marine business sheds and buildings imply a valid land use base. It would appear that the history and records are complicated by (perhaps) the Council amalgamation changes, the planning authority changes both giving rise to gaps or inadequate-incomplete records.
19. Given the significant nature of the BSM use and the involvement–oversight by both the Council and State Government agencies with the North Haven Marina project, it is considered likely to be a lawful land use per se save for the issue of noise levels (from time to time) and compliance with various plans, details, conditions of planning consent and policies of the EPA, as to whether it conforms with or breaches any or all such material. I proceed on the basis that the inherent land use of BSM is lawful, I note the various planning conditions and policy guidelines that it was said that its activities should meet with respect to noise emissions and the views and opinions of the acoustic engineers on these matters. Most important, I do not believe that this question is absolutely critical to determining this matter and making a detailed and decisive assessment of the application under the relevant Development Plan.

Relevant Development Plan Provisions

20. Having regard to the evidence and the submissions I find that the following provisions in the relevant Development Plan provide the most useful guidance particularly with respect to the main issues in focus in this matter and they are:

COUNCIL WIDE (“CW” hereafter)
Objectives: 1, 2, 4, 5, 22, 24-26, 40, 41, 43, 46, 51, 80, 81, 94, 95, 99-102, 104, 108 and 111-115; and
Principles of Development Control: 3-5, 11, 13, 16, 25-31, 33-36, 74, 80-83, 97-102, 104, 108, 109, 111-115, 130, 132, 149, 150, 187, 189, 190 and 239.

RESIDENTIAL ZONE: (“RZ” hereafter) – via CW Principle 33
Objectives: 1-5, 7, 8 and 10; and
Principles of Development Control: 44-48, 57-69, 71-81, 87, 89, 92-94, 115-121, 125 and 127-131.

MARINA (NORTH HAVEN) ZONE (“M(NH)Z” hereafter)
Desired Character Statement: Especially paras 2-5;
Objectives: 1, 2 and 4; and
Principles of Development Control: 1-4, 6-10, 12, 15,17, 18, 20, 21, 25, 31, 33, 34, 36, 37, 40, 41 and 46.

Policy Area 40: Residential Policy Area (“PA 40” hereafter)
Objective: 1; and
Principles of Development Control: 1 and 2.

Policy Area 41: Business Policy Area (“PA41” hereafter)
Objectives: 1-3; and
Principles of Development Control: 1 and 3-6.

Table PAdE/3 Car Parking Requirements
MAPS PAdE/1 (Overlay 1) Enlargement B; PAdE/1 (Overlay 5); PAdE/5 and 43.

Processing

21. The development proposal was assessed to be a Category 3 development by the Council, and following public notification as required it appeared that some 21 representations were received. It would also appear that no referrals were required or undertaken to Government agencies having regard to Schedule 8 of the Development Regulations.

Assessment Approach

22. Section 33(a) of the Act requires the relevant authority (the Council) and on appeal this Court, to assess a development application against the provisions of the appropriate/relevant Development Plan and s 35(2) specifies that where a development is assessed as being seriously at variance with the Development Plan, it must not be granted consent. The whole of the Development Plan must be assessed, including on appeal. The relevant guidelines in the Plan provide the firm basis for decision-making together with a consideration of any other relevant matters.
23. In terms of s 35 and the relevant provisions of the Development Plan, this proposal is for consideration on its merits against the Development Plan guidelines and involves weighing up the pros and cons and considering whether it is sufficiently conducive to the overall intent, purpose and desired character and amenity of the M(NH)Z and PA41 and tested in the specific site and locality context. The Development Plan is also to be utilised as a flexible, advisory planning policy document, not as a mandatory legal statute and as a practical guide for practical application, superimposed upon an existing state of development on the site and in the relevant locality. Ultimately, a planning judgment is to be made on a fact and degree basis as to whether the specific proposal sufficiently meets the Development Plan and having regard to all relevant matters, warrants consent.
24. Whilst I have noted that the Development Plan guidelines are not mandatory, and are directory and persuasive, nevertheless it would normally be expected that a planning authority would apply them unless, as a matter of planning judgment, there is good reason to depart. I have also noted the approach of the Supreme Court in Town of Gawler v Impact Investment Corporation Pty Ltd (2007) SASC 356 at para 81 which outlined a 10 point approach to consideration of relevant matters in assessing whether a departure from a clearly expressed policy is justifiable.
25. I have also had general regard to case law and the differing approaches with respect to the flexibility/moderation/transition of application of policies moving from one zone/policy area to another across the lines drawn on zoning/policy area plans. I consider it to be reasonable, logical and utilising commonsense to have some regard and make some allowance for a transition across and in the vicinity of such boundaries. That has some application and relevance in this matter.
26. The non-traditional, mixed use concept for the M(NH)Z – refer later to extracts and respective policy areas, mean that a clear distinction and separation between land uses is not envisaged but that probably highlights the need to remain conscious of compatibility issues and impacts between each to ensure an overall satisfactory arrangement of land uses and development as envisaged in the Zone and Policy Area provisions. In this matter, and would obviously be the case from time to time, that is no straight-forward or easy matter to determine.
27. I proceed on the basis that the BSM land use exists and can operate lawfully – but I adopt a conservative approach with regard to sporadic noisy activities, even if, nominally at face value, exceeding the guidelines/conditions.
28. It seems to me that there is a degree of interaction with the prior proposal and approval of this Court for the marina berths and associated car parking and whilst each stand alone, it may be the case that if both are proceeded with by the appellants, and there is any contradiction or misalignment, there may well need to be minor modifications made to one or other proposal and further approvals to such variations sought from the planning authority.

Planning Assessment

29. As identified and focused on by both the town planners and the acoustic engineers, the determination of this matter revolves around consideration of land use compatibility, particularly acoustic compatibility, visual amenity, character and appearance of proposed built form together with consideration of materials, finishes and colours as well as architectural styling and consideration of some other minor impact and functional and management aspects.
30. In considering these and all relevant issues it is important to fully appreciate and be aware of the specific guidance for development in the M(NH)Z as a nodal zone for “formal recreational, tourist, marina and similar development” (CW Principle 239).
31. Key relevant land use guides in the Desired Character Statement for the zone are:

DESIRED CHARACTER STATEMENT
...
Underpinning the desired character of the Zone is the need for a highly compatible, coordinated and integrated development pattern. Intensification of development and redevelopment should be sympathetic to adjacent development and should not erode the amenity of the locality by way of loss of privacy and detrimentally impacting on the physical infrastructure.
A key element contributing to the desired character of the Zone, is the diverse type of high quality residential dwellings, the presence of boats and marina berths and the coastal views (particularly from properties fronting the water with views over the break waters and revetment wall) that promote a visually open setting for a large portion of the zone.
Development should ensure that it minimises interference with the coastal views obtained from existing urban developments. These views from urban areas to the coast are integral to the existing and desired character of the zone.
Development, particularly at Policy Area interface areas, should protect the amenity of existing developments, particularly residential land uses, while also recognising the need to promote suitably designed commercial business in appropriate locations.
...

32. Zone Objectives 1 and 2 are also highly relevant:

Objective 1: A zone in which the form and character of development expresses and enhances the relationship between land and water and where the integration, mixture and association of uses creates focal points of activity and an attractive urban waterfront and maritime environment.
Objective 2: A zone accommodating a range of integrated and compatible marina, residential, tourist, recreational, commercial, retail, light and service industrial and community facilities in the appropriate Policy Areas.

33. Important Principles of Development Control with the prime purpose of achieving the Desired Character Statement and the Objectives for the Zone are:

PRINCIPLES OF DEVELOPMENT CONTROL
Form of Development

1. Development should be in accordance with the Desired Character Statement and conform with Map PAdE/1 (Overlay 1) Enlargement B.
2. Development undertaken in the Marina (North Haven) Zone should include integrated and compatible residential, tourist, recreational, commercial, retail, light and service industry for marine service purposes and community activities.

...

18. Development should be designed to minimise any detrimental impacts on existing developments, including impacts relating to traffic movement and access and egress points.
34. Being almost wholly within the Policy Area 41: Business Policy Area – refer MAP PAdE/43 (though straddling and partly within Business and Living Areas on the Structure Plan – MAP PAdE/1 (Overlay 1) Enlargement B, PA41 Objectives and Principles are of even greater specificity and relevance, as follows:

OBJECTIVES
Objective 1: A policy area maximising tourist and general public attraction to waterfront orientated retail, commercial, tourist, recreation, entertainment and tourist or short-term visitor accommodation developments.
Objective 2: A policy area accommodating shopping facilities to serve the day-to-day needs of the local community, marina berth owners and users, visitors and tourists.
Objective 3: A policy area accommodating a range of business and service activities to service the marina and the boating public that is compatible with existing developments.
...
PRINCIPLES OF DEVELOPMENT CONTROL

1. Development undertaken in the Business Policy Area should include retail, commercial, tourist, recreational and entertainment facilities orientated toward the waterfront and marine service activities.

...

3. Residential development should generally not be located within the Business Policy Area.
4. Residential development and tourist accommodation should only occur in conjunction with a non-residential development listed in Principle of Development Control 1. Such development should be within a building of two or more storeys and enable a suitable balance between business and residential uses while ensuring that:

(a) development at the ground level promotes an active public frontage and consists predominantly of non-residential uses including commercial, business or retail use;
(b) residential development does not include group dwellings, detached dwellings, row dwellings and semi-detached dwellings; and
(c) development minimises the impact on the operation or expansion of existing commercial or retail businesses;
(d) development minimises the potential for conflict with existing businesses and residential land uses including traffic movements and access and egress points;
(e) development does not detrimentally impact on the amenity or character of the area.

5. Boat launching, marine servicing, chandlery, storage facilities and associated trades of sail making, spar rigging and maintenance should be designed and located to maximise access to the boating public whilst retaining public areas, views and access to the waterfront.
35. From these Development Plan extracts, I do not assess that the zoning or policy area guidelines principally promote one land use over several others, but rather envisage a true mixed range of land uses integrated and compatible with each other.

Land Use/Zoning – Compatibility

36. The proposal is primarily for the permanent, residential accommodation of retirees (32 dwelling units), together with a mixed range of support services and facilities (dining, library, games/recreation) and ancillary terraces/swimming pool/storage and car parking, frequently referred to as retirement accommodation or as a retirement village. There would also be six ground level units termed serviced apartments for general casual use by marina berth owners or visitors or others. However, they are a small element and proportion of the development, as are the additional marina lounge and trolley storage rooms and spaces for marina berth users.
37. The most specific land use guide (PA41) does not envisage permanent residential development in any of its three objectives, though tourist or short-term visitor accommodation is envisaged. The policy area picture is qualified by:
    • the text under Objective 3 envisaging in (d) “a yacht club which may incorporate (xi) on-shore residential accommodation” – I do not assess that to mean permanent, stand alone, residential development such as a retirement village; and
    • Principle 3 expressly indicating that (permanent) residential development should generally not be located in the policy area but Principle 4 proceeds to allow a window of opportunity for residential development and tourist accommodation only in conjunction with a non-residential development listed in Principle 1 (namely retail, commercial, tourist, recreation, entertainment facilities and marine service activities) – not met to any significant degree by the addition of the small serviced apartments and marina users’ service elements; and with important caveats as follows:
      

(a) with active non-residential use (commercial, business or retail) at ground level (partially met);

...

(c) with minimisation of impact on the operation or expansion of existing commercial businesses (problematic – refer later);

(d) with minimising the potential conflict with existing businesses (also problematic – refer later); and

(e) not detrimentally impacting on the amenity or character of the area (refer discussion later).

38. I assess that the retirement village residential development component, the major component, does not obtain clear or strong support from the PA41 provisions. Within the M(NH)Z, residential development is clearly more strongly envisaged in PA40: the Residential Policy Area, at least to the extent of its sole Objective 1 (a broader range and diversity of housing types envisaged), though not by Principle 1.
39. I have carefully considered the guides in M(NH)Z at the next policy level up and whilst there is some support for residential development in the mixed use M(NH)Z (via Objective 2 and Principles 2 and 16) there is a clear emphasis on integration and high compatibility with other uses such as marina, commercial, retail, light and service industries (Desired Character Statement para 2, Objective 2 and Principle 2).
40. That is the crux to the decision in this matter, in the light of the near proximity (2-5 metres to courtyards, 3-8 metres to bedrooms and 4-10 metres to balconies from outdoor needle gunning and grip blasting activities) and nature of the activities of BSM.
41. Whilst the development itself incorporates and integrates a retirement village and car parking with some marina service elements and short stay serviced apartments, it is not integrated with, nor in my assessment sufficiently compatible with the BSM use, nor well co-ordinated with the adjacent development pattern. It would largely exist as a stand-alone permanent residential use element for retirees, on land with relatively limited connectivity to other development and to the street pattern. I do not put it as highly as Mr Rolfe, who envisages an inherent conflict between the residential use and the so-called indicative BSM use. In my view it depends very much on the details of the design and management of both.
42. Turning now to a consideration of acoustic compatibility. The evidence of Mr Turnbull is that, from the noise levels recorded over several days including so-called worse case scenario activities on the BSM site:
    • the highest equivalent noise level over a 15 minute period was 69dB(A) which equates to 30dB(A) in the nearest proposed bedroom with windows/balcony closed, and 55dB(A) on the closest terrace;
      
    • the 16 hour average equivalent noise levels range from 49-57dB(A) and an average of 53dB(A), but with the 3 metre high acoustic wall proposed this equates to a range of 33-41dB(A) and an average of 37dB(A), meeting the WHO guidelines of 50dB(A) to protect the majority of people from being moderately annoyed; and
      
    • that the proposed land use was compatible with BSM from an acoustic perspective.
      
43. However, Mr Moore (Exhibit R17 in particular and R18), disagreed with Mr Turnbull’s analysis on the basis that:
    • the length of needle gun noise measurement was short (42 seconds) and if adjusted for a one minute operation or over a continuous 15 minute period as is possible, would justify a 12dB(A) adjustment providing figures of 42dB(A) in the closest bedroom with the window closed and 67dB(A) on the nearest terrace. Even without a penalty of +5dB(A), he considered that the 67dB(A) reading would exceed the policy requirement within the relevant EPA Policy.
      
44. Mr Moore also disagreed with the degree of representativeness of Mr Turnbull’s numeric data as it, allegedly, did not include a day with significant noisy activities and with the conclusion, his conclusions being that:
    • the noisy activities from BSM will only be compatible with the proposed development when proposed acoustic treatments are being used (for example windows closed);
      
    • that due to the possibility that noisy BSM activities may increase in regularity and frequency, a conservative approach to reduce the risk of incompatibility is necessary; and
      
    • that would involve relocating the noise sensitive development or components away from the BSM noise sources. He found the design to be poor from an acoustic perspective and had concerns about the potential for complaints.
      
45. I am persuaded by the evidence and approach of Mr Moore in the circumstances and at this planning stage. The proposal and residential land use in such close proximity to BSM, clearly has the potential to restrict or inhibit its activities and potentially, ongoing viability. Whilst an encumbrance in the form of Exhibit A3, may minimise that likelihood, it is not something the Court can require by condition of consent and it may be problematic in terms of enforcement in the longer term.
46. The issue of potential noise from outdoor activities around the proposed swimming pool causing nuisance to residents external to the west and south, was not strongly agitated and did not rate a mention by the acoustic engineering experts. I assess that it is not dissimilar to that which can arise from domestic (single household) swimming pools and in addition a proposed 3.7 metre high masonry boundary fence with roofing over the pool are likely to minimise noise transfer and impact.
47. An appropriate and sufficient integration, co-ordination, balance and compatibility of land uses would not be achieved by the proposal in my assessment and having regard to the evidence.

Visual Amenity, Character and Appearance of Built Form

48. A significant range of factors and attributes of this proposal and its locality context go to determine acceptability under this broad band of considerations, all Development Plan based.
49. Firstly, in terms of building height M(NH)Z Principle 17 envisages development not exceeding 15.5 metres AHD. The proposal has a maximum building height to the top of parapets of 14.5 metres AHD, but with lift over-run and plant elements extending to some 17.2 metres AHD. It has a maximum building height of 13.1 metres above the slightly elevated ground floor level. PA41 Principle 4 envisages development of two or more storeys. I agree with the evidence of both town planners on this element – neither considered building height per se, to be a fatal element of the proposal.
50. With respect to bulk, given the length of the building of some 84 metres (as well as its height), and with nominal, not generous boundary setbacks, I assess that it will appear relatively bulky in its setting and locality, particularly from the north-western and south-eastern vantage points around the marina. There are no numeric (plot ratio) controls in the Development Plan controlling/guiding building bulk, though M(NH)Z  Principle 9 suggests:
    9. Large buildings should comprise a number of building units, or its facades and roofs articulated to break up large expanses of built-form.

That is only partially achieved on the south-eastern elevation.

51. I consider that the overall scale is moderate to large but envisaged by the guides regarding building height at least.
52. The intended roof form is flat/modern, which, whilst reducing overall height, is not in accord with M(NH)Z Principle 8 seeking gable and skillion roofs, nor Principle 9 seeking articulation of roof form (though a flat roof achieves the aim of breaking up large expanses of built form); nor Principle 10 which seeks visible roof forms of no less than 22.5 degrees and no greater than 40 degrees. Whilst non-compliant this element is also not fatal alone, in the locality context as noted by Mr Rolfe.
53. With respect to dwelling density, there are no applicable guides for retirement village development and the guide for the closest similar development (residential flat buildings – M(NH)Z Principle 16 ) is 150 square metres per dwelling – for this site of some 4,400 square metres, in the order of 29 dwellings, as opposed to the 32 small retirement village dwelling units (and excluding the six short stay serviced apartment dwelling units). Dwelling density does not, it would seem from the evidence, manifest itself in any other design deficiencies including car parking and communal open space, or infrastructure or other deficiencies.
54. Whilst not detailed thoroughly by either expert town planner, site coverage (excluding basement–undercroft car park), appears to meet the guide of 50 per cent and the intent of the Plan, though much of the unbuilt upon area is hard-paved/surfaced with limited perimeter areas for any deep planting.
55. In the above context, a setback guideline (M(NH)Z Principle 6) of six metres from the Residential Policy Area (PA40) which adjoins the site to the north-eastern boundary/rear of Victory Crescent properties, and a small part of the south-western boundary (to Liberty Avenue private road extension – car parking area), becomes more important. Except with respect to the basement undercroft car park, setback 1.2 metres from the north-eastern boundary and 0.8 metres to the south-western boundary, and serviced apartments Nos. 1-3 and retirement village units 7-9 and 23-25 at ground, first and second levels respectively (set back approximately 1.5 metres to balconies and 3.0 metres to the dwelling walls), the building is setback satisfactorily to other site boundaries, save for the BSM noise impact issue. With the reduced setbacks and the basement undercroft car park area covering much of the balance of the site, very limited space remains for desired landscaping, and certainly little for deep planting to enable the planting and growth of mid-taller trees.
56. For convenience, turning now to a consideration of the landscape concept. It appears to essentially comprise narrow perimeter planting only, together with low shrubs/bushes/groundcovers in internal terrace areas and with no clear emphasis on coastal resilient species. M(NH)Z Principle 37 is the most specific guide as follows:
    37. A minimum of 10 percent of each development site should be landscaped to complement and enhance the character of the area and to screen, shade and shelter areas, as well as to define open spaces.
57. The 10% area requirement was considered likely to be met (conceded by Mr Rolfe); some screening function is achieved to the south-eastern and north-eastern boundaries, but trees for shade/shelter in parking areas or adjacent terraces and outdoor areas are absent. Mr Rolfe at p26 of Exhibit R5 raises other shortcomings of the landscaping proposal. It is fair to say that in this case deficient landscaping is not a fatal element alone to the proposal, but it is certainly not a strong suite either.
58. Arising from the attempts to minimise noise transmissions, the following walls and fences become a visual impact issue requiring careful consideration:
    • 3 metre high masonry wall, 93.6 metres along the south-eastern boundary to the BSM site;
      
    • 3.7 metre high (measured from the adjoining site) masonry wall by some 24 metres long to the south-western residential boundary and returning 9 metres on the north-western boundary and dropping to 2.4 metres (scaled) on a retaining wall for the balance of the 70 metre north-western boundary up to the Liberty Avenue frontage;
      
    • 2.4 metre high Hebel wall, 120 metres long to the northern boundary to the rear of Victory Crescent dwellings;
      
    • 2.4 metres high Hebel wall, 40 metres long to the southern boundary of the driveway leg to Alexa Road and 2.4 metre high Colorbond by 50 metres long for the balance of that boundary up to the Alexa Road frontage; and
      
    • part brush fencing is retained to most of the Liberty Avenue frontage.
      
59. The solid walls/fencing of moderate to tall height will provide a high degree of enclosure and visual barriers at ground level, both inward looking to the site/development and for external viewing from it at ground/terrace levels. In some respects visual amenity will not be enhanced (M(NH)Z Principle 33) and it is more urban than open maritime in character. If consent was to be forthcoming, more articulation and detailing could be achieved to bring it to an acceptable level in the locality (business/interface) circumstances. To accord with M(NH)Z Principle 15, Colorbond material could be replaced with other materials more consistent with that guide.
60. Turning to consideration of materials, colours and finishes and architectural styling the following is apparent:
    • walls are to comprise symonite aluminium cladding – “cream lace” colour;
      
    • windows to comprise natural anodised aluminium;
      
    • balconies to comprise aluminium/glazing; and
      
    • styling is clearly modern and non-domestic not maritime nor Mediterranean in nature, and more akin to a commercial or institutional style building.
      
61. M(NH)Z Principle 15 provides a guide with respect to materials and that they should be consistent with a maritime theme and coastal environment, in a Mediterranean climate and Zone Principle 33 seeks appearance of buildings and objects to “enhance the maritime theme and boat haven environment”, a phrase not articulated or explained elsewhere in the Development Plan. These guides apply to all Policy Areas in the Zone with no more specific design guides in PA 41.
62. Like Mr Rolfe, I do not consider that the proposal demonstrates consistency with these guides (and Mr Rumsby acknowledges the difference – clause 5.32 of his statement) but finds the building to be of “pleasing architectural form”. However, unlike he and Mr Rolfe, I consider that it is an important and potentially fatal aspect having regard to the concept for the Zone and the degree of consistency of appearance and character established in it and more specifically in the locality. Needless to say, some desired uses and facilities (such as shops, boat repairs and maintenance facilities) may not have a strong maritime-Mediterranean architectural form, style or appearance as generally sought for residential development in the Zone.
63. Given the central location of the site and its relativity to lower scale/height residential development on three sides, in my view the proposed building form needs to reflect a greater compliance with those built form and appearance guidelines, if any consent were to be forthcoming.
64. I am unable to place much weight on Mr Rumsby’s reference (clause 5.32) to “masonry framing elements along its primarily western elevation”. I cannot ascertain them being depicted on plans before the Court (Elevation 4 on sheet 07/09 in Exhibit A1), and in any event, they could only comprise a small proportion of the built form facing that direction. It is clear that the greatest emphasis is on glazing, aluminium cladding and aluminium framing.

Access, Traffic, Parking, Manoeuvring, Servicing, Cycles and Recreational Vehicle Storage

65. These issues were appropriately addressed in the evidence of Mr Weaver and Ms Mellen. There are no significant outstanding items in dispute between them and Ms Mellen was not required to give oral evidence.
66. There are some minor shortcomings, which could be rectified or improved upon if consent were to be forthcoming. The key aspects (access, parking and traffic generation) are assessed to be acceptable and I agree with that evidence and those opinions.
67. Whilst pedestrian access (for occupiers) to/from Liberty Avenue or Alexa Road and local services are not especially user friendly or separated from vehicle movement, generally low and slow traffic volumes and movement is likely to mean relatively low/acceptable safety risks for occupiers/marine users accessing and using the site.

Other Impacts

68. Some other impacts were raised but not assessed to be of great significance to the decision on the matter.
69. Briefly, with respect to odours, the activities of BSM (including its new shed but with door and air vents still to be completed), may create some odour – for example, paint, glues, fibreglass, resins. No expert evidence was received on this factor and whilst some nuisance could arise for proposed residential occupiers of the development in outdoor terrace or balcony areas, given space and sea breezes, I would not expect it to be a significant detrimental affect on residential amenity. It may add, very slightly, to the incompatibility ledger between BSM activities and the proposed retirement village use.
70. It was also raised that the proposed building with depicted length, height and setback proposed to the BSM boundary, may cause some overshadowing to the BSM open boat yard and that as a result it may slow and increase drying times for certain outdoor activities and processes. I can envisage that may be so in the mid-late afternoon but again I do not place heavy weight on that impact given the Development Plan guidelines for overshadowing (Council Wide Principle 28(e)), the building height/setbacks envisaged and the nature of the Mixed Use Zone (and Principle 7(f)) and the structure of Policy Area.
71. There is also likely to be some overshadowing to the rear of the south-western side dwelling in the early morning, however the Development Plan test (Council Wide Principle 33, Residential Zone Principle 66 and Design Technique 66.1), are likely to be sufficiently met. With regard to the propensity and degree of overlooking likely to result from the development to adjacent residential development and private open spaces to the north-east, west and south-west, I am satisfied with the analysis and commentary of Mr Rumsby (clauses 5.38-5.40 of his statement). If consent was forthcoming, privacy screens could be required of balconies at the second floor level to dwelling units 21-33 and 38, and at first floor level to dwelling units 7, 16, 17 and 22.

Functionality and Management

72. In general, the indicative level of detail and the nature of the likely management arrangements espoused by witnesses and counsel for the appellant, I consider to be acceptable, but some aspects including, refuse collection/disposal; use and hours of the swimming pool and adjacent areas; use and hours of the dining hall and marina lounge and bar; security arrangements; security lighting; and landscaping maintenance, would need to be the subject of conditions if any consent were to be forthcoming.
73. The adequacy of so-called private open space for each dwelling unit raised some concerns for Mr Rolfe, not with regard to size of balcony/terraces but with regard to:
    • the acoustic treatment – enclosure of those for eight dwellings near the BSM site boundary and that the amenity and functionality of such space is compromised; and
      
    • that some balconies facing each other only had a separation distance of some 12 metres, which he thought undesirable.
      
74. These may represent minor shortcomings and ones that could be appropriately managed by the management of the development and incoming occupier/purchaser preferences. Some would see these aspects as a positive not a negative. I find these aspects to be acceptable in the context of ground level communal terraces/swimming pool and proximity to local marina walkways and reserves.
75. The stormwater management concept has not been detailed thoroughly but is capable of satisfaction and would be the subject of a condition of any consent granted. Energy efficiency is dealt with in the design to a moderate degree.

Conclusions

76. A summary of my conclusions are as follows:

Land Use and Acoustic Compatibility:

• the retirement village residential development component does not obtain clear or strong support from the PA41 guidelines;
  
• the retirement village development is not integrated with, or in my assessment, sufficiently compatible with the BSM use nor well co-ordinated with the adjacent development. It would exist as an independent residential retirement village use for retirees on land with relatively limited connectivity to other development and the street patterns;
  
• BSM activities would cause the majority of people enjoying outdoor spaces on the terraces to be moderately annoyed;
• BSM use would only be compatible with the proposed development when proposed acoustic treatments are used (and windows closed);
  
• given that BSM activities could increase in regularity and frequency a conservative approach to acoustic compatibility should be adopted;
  
• agreement with Mr Moore that the development design is relatively poor from an acoustic perspective and could give rise to the potential for complaints and, indirectly, long-term restrictions and limitations on BSM use and activities;
  
• an encumbrance is likely to limit or minimise complaints but not something the Court can require by condition; and
  
• an appropriate integration, co-ordination, balance and compatibility of land uses and developments would not be achieved by the proposal.
  

Visual Amenity, Character, Appearance of Built Form:

• building height marginally exceeds the guidelines for certain discrete elements;
  
• the proposed building will appear relatively bulky in its setting and locality and its scale is moderate to large in that context;
  
• the flat roof form is not in accord with guidelines seeking gable and skillion roofing and within a specified range of angles;
  
• dwelling density and site coverage are acceptable;
  
• boundary setback guidelines though limited are not met in some instances but more importantly leave very limited space for desired landscaping and deep planting to provide medium to larger trees to provide shade/shelter as envisaged by certain Plan guidelines;
  
• solid walls and fences of moderate to tall height will provide a high degree of enclosure and visual barriers at ground level around the proposed development site and visual amenity would not be enhanced but greater articulation and detailing could be achieved to make it acceptable; and
  
• the materials, finishes, colours and architectural styling do not demonstrate high consistency with the various guidelines and in the Zone, Policy Area and locality context, should achieve greater compliance with such guidelines.
  

Access, Traffic, Parking, Manoeuvring, Cycling, Storage and Servicing:

• generally and including the key aspects are appropriately addressed and found acceptable;
  
• shortcoming of pedestrian accessibility and safety to/from Alexa Road and services, a deficiency but not fatal; and
  
• potential for greater cycle parking to be provided and management arrangements detailed with respect to recreational vehicle storage or controlled/limited by management.
  

Other Impacts:

• some odours arising from the activities of BSM may slightly increase incompatibility with the proposed adjoining retirement village use;
  
• overshadowing issues are not significant; and
  
• remaining overlooking issues could be further addressed by the provision of opaque balcony balustrades or other screening devices to minimise direct overlooking.
  

Functionality and Management:

• management aspects generally acceptable but several would justify relevant conditions of consent to ensure acceptable outcomes; and
  
• certain private open space characteristics/limitations noted but not significant in the site and locality context.
  

77. I assess and conclude that the following provisions of the relevant Development Plan are not sufficiently met:
    • CW Objectives 24, 26, 46, 80 and 82, and Principles 5(c), 25-28, 33, 112(a), 187; Residential Zone Objective 5 and Principles 44, 48, 59, 64, 78, 80 and 127(d);
    • M(NH)Z Desired Character Statement paras 2 and 5, and Objective 2 and Principles 2, 8, 9, 15, 17, 18 and 33; and
    • PA41 Objectives 1 and 3, and Principles 1, 3, 4 and 6.
      
78. Having carefully considered the evidence, particularly of the acoustic engineers and the town planners, and on my assessment of the Development Plan and from what I saw on the view, I find that the proposal is sufficiently at variance with a number of Development Plan provisions as noted above, to warrant refusal. I hold significant reservations about the land use and acoustic compatibility, and lesser, but noteworthy concerns about the height, bulk, scale and appearance of the proposed built form (both main building and boundary wall/fences) and landscaping deficiencies. Many other aspects could be satisfactorily dealt with by conditions of consent.

Decision

79. The appeal is dismissed – the decision of the Council upheld. There will be an order to that effect.