Clelland & Ors v Brisbane City Council & Anor [2013] QPEC 27 (2013) QPELR 650

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Clelland & Ors v Brisbane City Council & Anor [2013] QPEC 027 PARTIES: TREVOR CLELLAND, TRACEY SMITH, MARLENE HANCOCK, PAUL KERLIN, DIANA WALLIS, VICTOR SISKIND, MARLENE SISKIND, PAUL WRUCK, KERRY LAWFORD, JOHN ESLER (Appellant) v BRISBANE CITY COUNCIL (Respondent) and ZAPPALA FAMILY CO PTY LTD ACN 009 937 473 (Co-Respondent) FILE NO/S: 1215 of 2012 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court DELIVERED ON: 24 June 2013 DELIVERED AT: Brisbane HEARING DATE: 13 May 2013 – 20 May 2013 JUDGE: Everson DCJ ORDER: Appeal Allowed CATCHWORDS: ENVIRONMENT AND PLANNING – SUBMITTER APPEAL – hotel development including short term accommodation – whether development conflicts with planning scheme – whether sufficient grounds exist to justify approval despite conflict – impacts on amenity – inadequacy of on-site parking Sustainable Planning Act 2009 (Qld), ss 326, 462, 495 Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, considered Lewiac Pty Ltd v Gold Coast City Council [1996] Qd R 266; [1994] QCA 2, considered Lockyer Valley Regional Council v West Link [No 3] (2012) 191 LGERA 452; [2012] QCA 370, cited -- 1 of 12 -- 2 Weightman v Gold Coast City Council [2003] Qd R 441; [2002] QCA 234, applied COUNSEL: RS. Litster QC and JG. Lyons for the Appellant T. Trotter for the Respondent D. Gore QC and M. Williamson for the Co-Respondent SOLICITORS: McInnes Wilson for the Appellant Brisbane City Legal Practice for the Respondent Corrs Chambers Westgarth for the Co-Respondent Introduction [1] This is a submitter appeal pursuant to s 462 of the Sustainable Planning Act 2009 (Qld) (“SPA”) against the decision of the respondent dated 29 February 2012 to approve a development application for a material change of use for a Hotel including Short Term Accommodation on land situated at 26-30 McDougall Street, Milton. The proposed development is now for 132 rooms in a tower building extending 47 meters above natural ground height.1 [2] The appellants are the owners of home units in Coronation Residences, a 10 storey residential building located between the site of the proposed development and Coronation Drive. The appellants allege the proposed development will have unacceptable impacts on their amenity principally as a consequence of loss of views, shadowing and traffic impacts owing to the demand for parking in the vicinity which will be generated by the proposed development. The proposed development [3] The proposed development is for a Hotel which incorporates Short Term Accommodation on levels 2-13 consisting of a total of 5900m2 of gross floor area (“GFA”) and 132 rooms. Conference and meeting rooms and a hotel gymnasium are to be located on level one taking up an area of 690m2. The reception, dining area, lounge bar, and administrative areas are to be located on the ground level and the lower ground level taking up an area of 700m2 and 56 car parks, including 2 disabled spaces and 1 motorcycle space, are provided in the basement.2 The new tower is to be constructed over the existing basement and current hotel which will be modified to support the tower above. The size of the basement is not to be increased and 18 of the proposed 56 car parks are intended to be provided utilising car stackers; devices which stack an additional vehicle above a parked vehicle in a designated car space. The consequence of this requirement is that valet parking is proposed. 3 [4] Essentially, the proposed development is an extension of the existing non- residential hotel which operates on the subject site. It comprises 3 storeys and operates as a restaurant and function centre. The proposed development will therefore add a significant residential component.4 The height of the proposed development will extend to 15 storeys above McDougall Street and 14 storeys 1 Ex 2(a) P138. 2 Ibid P137. 3 Ibid P123. 4 Ex 4 P5. -- 2 of 12 -- 3 above the rear of the site adjacent to Coronation Residences.5 The difference in the number of storeys is attributable to the topography of the site. The restaurant currently conducted from the subject site, called Lure, purports to be extremely successful, advertising itself as Queensland’s Best Seafood Restaurant.6 [5] From the 1960’s until approximately 2002 the subject site, and that of the adjoining Coronation Residences, were occupied by the Coronation Motel and restaurant, a prominent building during this period.7 The site and surrounding uses [6] The subject site is located close to the Brisbane CBD and in the vicinity of Suncorp Stadium.8 It is in the block generally bounded by McDougall Street to the north, Cribb Street to the east, Coronation Drive to the south and Park Road to the west. It is located within the High Density Residential Area and defined in Brisbane City Plan 2000 (“City Plan”). At the time the development application was made the subject site was located within the Milton Local Plan area and identified within the Office Precinct (Precinct 6) of the Milton Local Plan. The Office Precinct was renamed from Precinct 6 to Precinct 3 in January 2011 but this does not appear to be of any consequence. At the time the development application was made, the subject site adjoined the boundary of the draft Milton Station Neighbourhood Plan on the opposite side of McDougall Street. The Milton Station Neighbourhood Plan was adopted and took effect on 1 January 2011.9 [7] Milton Railway Station is located approximately 400 metres to the north of the subject site. Currently a range of light industrial and commercial uses, high rise and low rise residential and isolated domestic residential dwellings characterise the land to the north between the subject site and Milton Railway Station. This land is located within the Milton Station Neighbourhood Plan area and had been identified for high density residential development.10 Pursuant to the Milton Station Neighbourhood Plan, the Core Residential Precinct is immediately opposite the subject site and the Acceptable Solutions therein permit development up to a maximum building height of 20 storeys. Closer to Milton Railway Station, in the Mixed Use Residential Precinct, development up to 30 storeys is prescribed.11 [8] There have been a number of recent approvals for high rise developments in the immediate vicinity of the subject site. These approvals were summarised in the evidence of Mr O’Brien, the architect who appeared on behalf of the co- respondent,12 and in the evidence of Mr Kay, the planner who appeared on behalf of the respondent.13 Of particular significance in the regard is the Coronation Residences building which is 10 storeys high and immediately adjacent to the subject site to the south, and the approval on 18 September 2012 by the respondent of four 20 storey buildings at 50 McDougall Street, which adjoins both the subject site and that of Coronation Residences to the west. 5 Ibid P6. 6 Ex 16 P1. 7 Ex 4 P5. 8 Ex 1 P1. 9 Ex 2(a) P134. 10 Ibid P135. 11 Ex 10 P102; Ex 11 P113. 12 Ex 4; Ex 4A. 13 Ex 11. -- 3 of 12 -- 4 The issues in dispute [9] The appellants’ case, at its core, is that the proposed development is in conflict with the Milton Local Plan and, in particular, that it is not consistent with the intent and not of a scale commensurate with the intent of the Office Precinct in which the subject site is situated. [10] It is further submitted that the proposed development conflicts in a number of respects with the Short Term Accommodation Code because of its density, bulk and scale, and the impacts the proposed development will have on the amenity of the occupants of Coronation Residences. Further conflicts with the Residential Design- High Density Code, and in particular performance criteria 15 and 16, are also alleged. The specific ways in which the appellants contend that the proposed development will detract from the amenity of the occupiers of Coronation Residences are particularised as including loss of breezes, light, noise and odour, overlooking, loss of privacy, loss of sunlight and sun penetration and impacts as a consequence of night light, noise and odour. It is also asserted that the proposed development will have unacceptable traffic impacts as a consequence of the inadequate provision of parking. Particular mention is made of unlawful parking in an adjacent easement which provides access to Coronation Residences. [11] It is submitted that the draft New City Plan, which has recently been placed on public notification, reaffirms the intention of the respondent that the subject site is to be used for office development and that a decision to approve the proposed development would cut across the relevant provisions of the draft New City Plan. [12] The co-respondent and the respondent contend that the proposed development is not in conflict with City Plan and, if it is, there are a number of grounds justifying approval of the proposed development despite any conflicts. It is further asserted that the proposed development provides adequate on-site provision for car parking.14 The relevant planning provisions [13] Pursuant to s 495 of SPA, the court must decide the appeal “based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate”.15 The development application subject of this appeal was lodged with the respondent on 30 June 2010.16 At that date the subject site was included in the High Density Residential Area, was included within the Milton Local Plan Area and was included within the Office Precinct (Precinct 6) of the Milton Local Plan. [14] City Plan divides the city into a number of area classifications; the High Density Residential Area is one of the Residential Area Classifications. The intent for the High Density Residential Area is in the following terms: “High Density Residential Areas are located close to the City with very good access to public transport and facilities. High Density 14 Ex 22 P4. 15 s 495(2)(a). 16 Ex 2(a) P133 -- 4 of 12 -- 5 Residential Areas are in locations with outstanding views to the Central City or Brisbane River. Development will be to a maximum plot ratio of 1.5. Development will be no higher than 10 storeys and will address the street.”17 When considering the proposed development in the context of City Plan it is important to have regard to the definition of Hotel which is: “a use of premises for the sale of liquor for consumption on-site, which may also include sale of liquor for consumption off-site, short term accommodation and dining/entertainment activities”18 [15] The term Short Term Accommodation is defined as: “a use of premises for short term accommodation (typically not exceeding 2 weeks) for tourists and travellers, e.g. holiday cabins, motel, hotel (where it entails mainly accommodation), serviced apartments, guesthouse or backpackers hostel and caravan park (that is also often appropriate for use as long term accommodation)”19 [16] In the High Density Residential Area the proposed development comes within the general description of “any other material change of use” and is “impact assessable generally inappropriate”. [17] Chapter 4 of City Plan provides for Local Plans which, in turn, provide “detailed guidance for development outcomes across particular locations of the city.”20 Furthermore the Local Plan “overrides any other part of the City Plan with which it may conflict.”21 The Milton Local Plan provides that where it conflicts with the requirement of the City Plan, the Milton Local Plan prevails.22 Significantly the Milton Local Plan identifies the following development principle: “2.3 The amenity of residential areas is protected and conflicts between incompatible land uses are minimised. However, the residential environment in the Local Plan area is not characterised by the same level of peace and quiet or privacy as is experienced in suburban locations which have less accessibility to the City Centre.”23 [18] Curiously, despite being in the High Density Residential Area as noted above, the subject site was not placed in the High Density Residential Precinct pursuant to the Milton Local Plan. Rather it was placed in the Office Precinct. This occurred in circumstances where the Office Precinct was stated to accommodate “medium rise 17 Ex 2(d) P1177. 18 Ibid P1183 19 Ibid P1186. 20 Ibid P1190. 21 Ibid. 22 Ibid P1295. 23 Ibid. -- 5 of 12 -- 6 office development”.24 The Office Precinct was divided into sub-precincts, yet, inexplicably the subject site was not included in a sub-precinct. [19] Short Term Accommodation is stated to be generally inappropriate in the Office Precinct. Further guidance as to the appropriateness of development in the Milton Local Plan is purported to come from the Milton Local Plan Code which states: “This Code provides additional and/or alternative Performance Criteria/Acceptable Solutions to the generic codes in Chapter 5. Where directly varying with a Code in Chapter 5, the Performance Criteria/Acceptable Solutions in this Local Plan Code take precedence”. [20] Relevantly, performance criterion P1 states that building size and bulk must be “of a scale commensurate with the intent of the precinct, sub-precinct or special area in which the development is proposed.” Acceptable Solutions are thereafter provided. In the Office Precinct, Acceptable Solutions provide for a maximum gross floor area of 1.5 times the site area and a maximum building height of 4 storeys and 14 metres.25 [21] The appellants claim that the proposed development conflicts with a number of city wide strategies to achieve broad Desired Environmental Outcomes (“DEOs”).26 It is also asserted that there is a conflict with s 4.2.2.1 of Chapter 2 of the Strategic Plan which addresses meeting realistic expectations for future amenity. Other provisions of City Plan which provide for broad DEOs to protect and enhance residential amenity are called up.27 [22] Section 2.5.2 of City Plan requires development, subject to impact assessment, to be assessed against the whole planning scheme and generally inappropriate impact assessable development to have regard to the reasonable expectations and DEOs for the area in which the land is classified.28 The appellants identified conflicts with Performance Criteria P15 and P16 of the Residential Design – High Density Code which provide that habitable spaces must not directly overlook dwellings on adjacent land, and that relevant development must maintain adequate levels of ventilation and light penetration to neighbouring habitable rooms, balconies and private open space.29 Similarly, conflict with a number of Performance Criteria contained in the Short Term Accommodation Code are identified; namely, P1, P3, P4 and P5. These criteria address density, bulk and scale of a building, orientation of windows, noise and intrusion on the privacy of residential neighbours. Conflicts and grounds generally [23] Pursuant to s 326 of SPA the decision of the court in this appeal must not conflict with City Plan unless there are “sufficient grounds to justify the decision, despite the conflict”. The term “grounds” is defined in Schedule 3 of SPA as meaning matters of public interest and not including the personal circumstances of an 24 Ibid P1296. 25 Ibid PP1300-1303. 26 ss 3.2.2.1(b), 3.2.2.8(d), 2.3.2.2(g) City Plan, Ex 2(d) PP 1135-1138. 27 See, s 5.1.1 [5] which states dwellings are to have reasonable access to daylight and breezes and have privacy, Ex 2(d) P 1168; See, s 5.6.2 which is in more general terms, Ex 2(d) P1177. 28 Ex 2(d) P1160. 29 Ibid PP1268-1269. -- 6 of 12 -- 7 applicant, owner or interested party. A conflict must be clearly identified and non- compliance with an Acceptable Solution does not necessarily indicate conflict between the proposed development and the planning scheme.30 In Lockyer Valley Regional Council v West Link [No 3] (2012) 191 LGERA 452 at 462, in the leading judgment of the Court of Appeal, Holmes JA reaffirmed the approach propounded by Atkinson J, in Weightman31 in the following terms: “In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict…the decision maker should: 1. examine the nature and extent of the conflict; 2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds; 3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.” It is submitted by the respondent and co-respondent that any conflicts with City Plan are minor. [24] Before examining, in detail, the question of conflict with provisions of City Plan, I wish to explore the alleged unacceptable amenity impacts on occupiers of apartments in the adjacent Coronation Residences building. Mr O’Brien explored in great detail in his evidence the prospective impacts from the perspective of loss of views, overlooking, loss of privacy, loss of sunlight and sun penetration and visual intrusion. He was assisted in this regard by photomontages prepared by Mr Elliott, an experienced architectural draftsman who has both the expertise and the necessary equipment to prepare such representations. Mr Elliott also gave evidence. I am satisfied that there will be amenity impacts of the types explored in the evidence of both Mr O’Brien and Mr Elliott. Approximately 5 apartments out of the 48 in the Coronation Residences building will suffer a very significant loss of the views available to them.32 Obviously there are also similar losses in terms of breezes, sunlight and sun penetration. However, in respect of issues concerning overlooking and loss of privacy, I am satisfied that the co-respondent has undertaken appropriate treatments to the windows of the proposed development which address any legitimate concerns in this regard.33 [25] So far as issues relating to the light, noise and odour are concerned, evidence was called on behalf of the co-respondent by Mr King, and on behalf of the respondent by Ms Richardson, who are both suitably qualified engineers. Having regard to all of this evidence I am satisfied that if the proposed development is an appropriate form of development on the subject site. The legitimate amenity concerns of the appellants can be suitably addressed by appropriate conditions. [26] Various conflicts with provisions of City Plan, relating to amenity, presuppose that the proposed development is not appropriate in terms of its bulk height, scale and 30 WBQH Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126 at [38]. 31 Weightman v Gold Coast City Council [2003] 2 Qd R 441. 32 T4-103. 33 Ex 4 generally. -- 7 of 12 -- 8 character in this part of Milton. In this regard, it is important to note development principle 2.3 in the Milton Local Plan, quoted above, that the “residential environment in the Local Plan area is not characterised by the same level of peace and quiet or privacy as is experienced in suburban locations”. [27] The nature and extend of the conflict with the Milton Local Plan arises as a consequence of the subject site being designated for medium rise office development. This conflict occurs in circumstances where the subject site is not contained in any sub-precinct but merely in a precinct intended to accommodate medium rise office development. To the extent that performance criterion P1 of the Milton Local Plan Code states that building size and bulk must be to scale commensurate with the intent of this precinct, there is a conflict with the Milton Local Plan. The Milton Local Plan does not envisage a 15 storey hotel in the Office Precinct. [28] There is also a conflict with the intent of the High Density Residential Area designation in that the development will exceed 10 storeys. [29] Grounds which are relevant to the above conflicts are that the designation of the subject site in the Office Precinct of the Milton Local Plan is anomalous as it fails to take into account not only the long standing hotel use on the subject site but also the presence of Coronation Residences itself which shares this designation. The only planner who attempted to justify the status quo was Mr Brown who was called by the appellants. Mr Brown expressed the view that the purpose of this designation was to protect the amenity of unit holders in the Coronation Residences building. I find this explanation extraordinary from a planning perspective and I reject it. Significantly, the other planners who gave evidence, Mr Forsyth and Mr Kay readily conceded this designation of the subject site pursuant to the Milton Local Plan is incongruous. I am also of the view that the designation of the subject site is incongruous. The other ground which I find relevant to the conflict is that the development which has been constructed and which is approved in the vicinity, including Coronation Residences and the immediately adjoining four 20 storey towers to the west, are such that the restrictions on the subject site, as a consequence of not only the Milton Local Plan but also the intent of the High Density Residential Area provisions, have been overtaken by events. There is no basis for contending that McDougall Street acts as some sort of buffer between less intensive development and more intensive development when regard is had to the Milton Station Neighbourhood Plan. [30] Notwithstanding the conflicts identified above, these grounds in favour of that application as a whole are, on balance, sufficient to justify approving the proposed development, but for inadequate provision of on-site parking discussed below. The draft new planning scheme [31] It is alleged by the appellants that to approve the proposed development would cut across the draft New City Plan which, in the draft Milton Neighbourhood Plan, corrects the existing anomaly in the Milton Local Plan by placing the subject site in a sub-precinct and specifying that development in it has a maximum building height of 4 storeys. The draft planning scheme was only publically notified on 6 May 2013. However, the appellant submits that approving the proposed development -- 8 of 12 -- 9 would offend the coty principle34 by frustrating a planning strategy well on the way to adoption. The coty principle was applied in Lewiac Pty Ltd v Gold Coast City Council35 where Thomas J described its application in the following terms: “It would be extraordinary if a planning strategy which was well on the way to adoption, or even adoption with amendment, could be frustrated by developments created in circumstances where neither the Council nor the court could give any weight to the plan as it had so far emerged”.36 There is no obvious planning strategy evident in the relevant provision of the draft Milton Neighbourhood Plan. Indeed, restricting development on the subject site to a maximum building height of 4 storeys is contrary to the intensification of development, as evident in the approvals of high rise development in the immediate vicinity of, and indeed immediately adjoining the subject site. Moreover given the recent public notification of the draft New City Plan, I am far from convinced that this provision will remain when public submissions have been taken into account. I am therefore of the view that no weight ought to be given to the draft New City Plan in this regard. Provision for parking [32] As noted above, the proposed development contemplates provision for 56 parking spaces, including 1 space for a motorcycle with 18 of them to be provided by two level car stackers. The appellants raised issues particularly with respect to overflow parking impeding the easements through which they gain their street access from Coronation Residences. By way of example the appellant, Ms Smith stated: “I’m worried that a 132 room hotel will alarmingly increase the number of vehicles and people using the easement and that will affect the ease of movement through that area by visitors to and residents of the Coronation Residences. Parking and traffic on McDougall Street is already a problem. It is almost impossible to park in the Coronation Residences visitor car park, let alone the street. I am concerned that further pressure will be placed upon the already overburdened easements and McDougall Street.”37 [33] The Transport, Access, Parking and Servicing Code of City Plan is relevant in this regard. Performance criterion P7 states: “The layout of development must achieve adequate provision for on-site vehicle parking that is clearly defined, safe and easily accessible and must be designated to contain potential adverse impacts within the site Vehicle parking:  must not detract from the aesthetics or amenity of an Area  must discourage on-street parking where parking has adverse traffic management, safety or amenity impacts  must be consistent with convenient pedestrian and cycle access” 34 See. Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117. 35 [1996] 2 Qd R 266. 36 Ibid at 270. 37 Ex 18 at [17]-[18]. -- 9 of 12 -- 10 [34] Various Acceptable Solutions are provided for this performance criterion. A7.2 provides that development comply with the Transport Access, Parking and Servicing Planning Scheme Policy (“TAPS Policy”). Acceptable Solution A7.3 states: “On-site carparking numbers for development in the City Centre or City Frame as indicated on Map A-City Centre and City Frame Areas do not exceed 1 car space for every 200m2 of gross floor area for any development other than multi-unit or single unit dwellings or Short Term Accommodation” [35] Relevantly, the TAPS Policy prescribes 1 space per 8m2 GFA for a restaurant and 1 space per unit for Short Term Accommodation. [36] In the course of the proceedings, three traffic engineers gave evidence. Mr Pekol was called by the co respondent. Mr Pekol attempted to demonstrate that the proposed development provided adequate parking by modelling, based on a number of different sources and source documents, and then applying Acceptable Solution A7.3 as well. Ultimately after being re-called for further evidence, he conceded that despite failing to take into account any prospective parking demand arising from the proposed bar area, the likely demand for parking spaces attributable to the proposed development was up to 70. [37] Faced with the problem of an inadequate number of parking spaces, the co- respondent then proposed condition 40A38which is in the following terms: “(a) the ground floor restaurant, as shown on Ceccato Hall drawing no.SK206 rev P3, shall only be used for resident guests (including their invitees) of the Short Term Accommodation; (b) none of the 6 meeting rooms shown on Ceccato Hall drawing no. DA105 rev P3 may be used as a restaurant, although catering services (including meals) may be provided to attendees at a private function or meeting.” [38] This condition was not supported by the respondent, which submitted that it was quite simply unenforceable. I agree. [39] Mr Beard, in giving traffic engineering evidence on behalf of the respondent, expressed the view that the partial solution proposed by the co-respondent, of utilising car stackers, would ultimately prove frustrating. He noted that they could not be utilised by vehicles in excess of 1.9 metres in height and would be organisationally difficult even with a valet operation.39 Mr Beard expressed the view that the demand generated by the proposed development would probably be up to 100 or 110 spaces on rare occasions and that the “design peak demand” which is likely to occur 30 – 50 times a year is in the region of 80 car parking spaces.40 Mr Beard also observed that the lack of adequate parking would make it difficult to operate the proposed development.41 38 Ex 29. 39 T5-70 L19-46. 40 T5-71 L12-37. 41 T5-76 L3-13. -- 10 of 12 -- 11 [40] Mr Holland gave evidence on behalf of the appellants. In his supplementary report he concluded that there would be a likely demand for parking well in excess of the number of parking spaces to be provided by the proposed development.42 Both Mr Holland and Mr Beard noted the extreme difficulties associated with parking on the street in circumstances where the proposed development was in the vicinity of Suncorp Stadium and parking restrictions regularly applied. Curiously however, both Mr Beard and Mr Holland expressed the view that the proposed development should not be refused because of the inadequate provision of parking. However, both Mr Beard43 and Mr Holland44 stated that the inadequate provision of parking was not a good outcome having regard to the increased development in the vicinity. Mr Beard expressed the view that the lack of parking provision would make the subject site “a difficult place to run this sort of facility”.45 Mr Holland was of a similar view.46 The basis for their position, in terms of whether the development should be refused because of the provision of inadequate parking, is therefore unclear. In any event, the ultimate decision in this regard rests with me, not them. Although the respondent identified a car park facility some distance from the subject site in Little Cribb Street, with the capacity to provide up to 348 car parking spaces,47 the utility of this facility to the proposed development was not explored with the traffic engineers who gave evidence and I find that it will have a negligible impact on the demand for on-street parking created by the proposed development. [41] I find that the proposed development is seriously in conflict with performance criterion 7 of the Transport Access, Parking, and Servicing Code. The conflict cannot be justified on the basis that it is in accordance with the respondent’s apparent policy to restrict parking for this type of development in the City Frame Area, in circumstances where Short Term Accommodation is expressly excluded from Acceptable Solution A7.3 and this particular use is a significant parking generator for the proposed development. Milton is an area which already suffers from significant parking constraints. The existing hotel and restaurant on the subject site already generates a demand for parking which is not always accommodated within the existing facility. The failure of the co-respondent to provide adequate parking is a result of its desire to build the proposed development over the existing basement, presumably to save construction costs. This outcome represents bad planning in circumstances where the parking situation in Milton is only going to deteriorate as development in the area intensifies. [42] I can find no grounds which are relevant to this conflict and the proposed development cannot be justified in these circumstances. On-street parking in Milton is a legitimate planning concern which could readily be addressed by a design solution which complies with the Transport, Access, Parking and Servicing Code. However, the co-respondent has chosen not to do so and simply hopes that significant overflow parking can be accommodated in the vicinity of the subject site when it clearly cannot be. 42 Ex 33. 43 T5-72 L10-18. 44 T5-86. 45 T5-76 L10-15. 46 T5-86. 47 T5-34; Ex 36. -- 11 of 12 -- 12 Conclusion [43] As a consequence of the inadequate provision of parking spaces in the proposed development, the appeal is allowed. -- 12 of 12 --