Centro MCS Manager Limited & Anor v Gold Coast City Council [2007] QPEC 64 (2007) QPELR 648

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Centro MCS Manager Limited & Anor v Gold Coast City Council [2007] QPEC 064 PARTIES: CENTRO MCS MANAGER LIMITED ACN 051 908 984 And CPT CUSTODIAN PTY LIMITED ACN 077 870 243 Appellants V GOLD COAST CITY COUNCIL Respondent FILE NO/S: BD 2965/2006 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court of Queensland DELIVERED ON: 3 August 2007 DELIVERED AT: Brisbane HEARING DATE: 24, 25, 27 and 30 July 2007 JUDGE: Alan Wilson SC, DCJ ORDER: 1 Appeal allowed 2 Adjourn for further review at 9:15am on 6 September 2007 CATCHWORDS: PLANNING LAW – PLANNING AND ENVIRONMENT – CODE ASSESSMENT UNDER Integrated Planning Act 1997 – VISUAL AMENITY – PARKING – whether proposed high rise building in conflict with Local Area Plan – whether in conflict with various Codes used for assessment under Plan – whether, if conflict with applicable Codes arises, there are nevertheless sufficient grounds to justify a decision to approve Integrated Planning Act 1997, (Reprint 5C) s 3.5.4, 3.5.13 Gold Coast ‘Our Living City’ Planning Scheme 2003, version 1.0 Cases considered: -- 1 of 10 -- 2 Reservilt v Maroochy SC (2002) 123 LGERA 233; [2003] 1 Qd R 548 Westfield Management Limited v Pine Rivers Shire Council [2004] QPELR 337 COUNSEL: PJ Lyons QC and M Williamson for appellants CL Hughes SC and N Kefford for respondent SOLICITORS: Deacons for appellants McDonald Balanda Lawyers for respondent [1] This is an appeal against Council’s refusal1 of a code assessable application to construct a 14 storey residential development2 atop an existing two storey retail and commercial building (the ‘Paradise Centre’) in Cavill Mall, Surfers Paradise3 . The primary grounds of Council’s opposition have to do with the impact the new building might have on the amenity, and in particular the visual amenity, of the Mall; and, the adequacy of parking for residents or guests in the new building. [2] The Mall is within the central Surfers Paradise tourist area and runs between Orchid Avenue and the Esplanade along the Surfers Paradise beachfront with, presently, two storey buildings on each side featuring a myriad of signage at head-height, and above and below; various kinds of awnings protruding over the paved Mall area, to provide shade and shelter; a number of different outdoor dining options; and, enticing entries into adjoining shopping centres, eating establishments, entertainment venues (and an occasional real estate office). Within the Mall proper the predominant features are tall pine trees and lower palms and a variety of street furniture, and land and street-scaping. [3] Council’s position is, in short, that although the Mall is in an area ‘zoned’ (to use the traditional phrase) for high-rise buildings of unlimited height and there are a number of tall buildings within the immediate vicinity, they do not immediately impinge upon what some witnesses called the ‘skyscape’ of pedestrians strolling the Mall, which is lined with buildings of only two storeys. Council says the Mall presently enjoys a relatively unimpeded view of the heavens and that an open, overarching vista is an important element of its amenity. The effect, Council says, of the proposed building would be, in the words of Mr Simpson (an architect called in Council’s case), to introduce an ‘overbearing’ structure which will ‘… block out sunlight and views of the sky from the surrounding area’ and ‘dominate’ the Mall ‘… in a manner quite inconsistent with the type of relatively open pedestrian amenity presently provided by the scale and height of buildings fronting the Mall’4 . [4] The contention confronts four major hurdles. First, the planning scheme plainly envisages (and indeed encourages) high-rise buildings throughout this part of Surfers Paradise, and nowhere suggests that the immediate environs of the Mall are not intended to contain buildings of that kind, or that it must or should be preserved 1 Communicated by a Decision Notice dated 13 September 2006; fourteen grounds of refusal were supplied, largely mirrored in the settled reasons for refusal delivered in this appeal in April 2007, and set out in Exhibit 6 at Tab 5 2 Containing 26 apartments 3 The address is 8-10 Cavill Avenue; the parcels to which it relates are Lot 3 on RP 166140, and common property on Lower Plan No 2, ‘Surfers Centre’ 4 Exhibit 14, report of Mr John Simpson, architect, at pp 9, 10 -- 2 of 10 -- 3 from them. Second, it is at odds with persuasive evidence given by some of the appellants’ expert witnesses (and supported by an inspection of the Mall conducted in the course of the hearing) which showed that the contents of the Mall itself comprise the major elements of its amenity. Third, the contention is belied by the presence of tall buildings close to the Mall, which markedly interfere now with views of the sky for any pedestrian who cares to look up. Finally, Council’s position is, it seems, inconsistent with its current policy as it is reflected in the recent approval of an extremely tall building (‘Soul’, of 77 storeys) just to the north of the eastern end of the Mall. [5] The planning scheme5 has a special Local Area Plan (LAP) for Surfers Paradise in which land immediately adjoining Cavill Mall, including the subject land, is expressly designated as an area to which no maximum height or maximum residential density applies6 . The LAP and its Desired Environmental Outcomes (DEOs), rather, expressly encourage high-rise developments7 which are identified in the LAP as adding to the attraction of Surfers Paradise for both visitors, and residents. [6] Presently, it is true, the Mall is delineated by two storey buildings throughout its length on the northern, and southern sides. The nearest high-rise buildings are about 80 metres to the south and south-west of the Mall itself and range in height between 26 and 36 storeys 8 . A little further to the west are newer, and very tall, apartment and hotel towers. As the evidence showed, and inspection confirmed, these buildings already encroach to a marked degree into the ‘skyscape’ of pedestrians in the Mall – if they look up, they see that large portions of the sky are blocked out by these nearby structures. [7] The 77 storey Soul development, which will be on the site of the current two storey Raptis Plaza shopping centre at the north-east corner of the Mall, closest to the ocean, was illustrated in models seen in the course of inspection, and shown in photographs in some of the experts’ reports. It involves opening up part of the north-east corner by removing sections of the two storey façade there and spreading the pedestrian Mall itself over private land some 70-80 metres to the north-east leading directly towards, and facing, the new 77 storey building. [8] That approval, and the significant changes it will make to the structure of the present Mall, seriously undermine the central tenet of Council’s case: if, in truth, low two storey buildings and immediate uninterrupted views of the sky are integral to the amenity of the Mall, that amenity must on any view be dramatically affected by a building of such great height, and the removal of part of the low façade to complement it (and, as a model of it suggests, actually highlight and emphasise its presence). [9] A number of expert architectural and town planning witnesses were called to address these matters9 . Inspection reinforced the description of the Mall’s dominant character and amenity provided by the architect called by the appellants, Mr 5 Gold Coast ‘Our Living City’ Planning Scheme 2003, version 1.0 6 Exhibit 7, maps 25.3, 25.4 7 Exhibit 7, LAP, ss 3.2 and 4.3 8 Ballah, Allunga, and the Courtyard Marriott 9 Mr Robinson, architect; Mr Schomburgk, town planner; Mr van Pelt, landscape architect (and expert in ‘visual amenity’); Mr Simpson, architect; and, Mr Brannock, town planner -- 3 of 10 -- 4 Robinson, who spoke of it as ‘… predominantly a place for people, a place for people to meet, to shop, to eat, to watch other people, it is a gathering place’. These elements were fairly categorised by another witness with expertise in matters touching visual amenity, Mr van Pelt, as ‘visual attractants’ which, as he said in compelling evidence, ‘… have the effect of keeping the major focus on the Mall space and not on elevated levels above the Mall’. This conclusion, shared by Mr Robinson and Mr Schomburgk (the town planner called by the appellants), was more persuasive than the views of Mr Simpson, and Mr Brannock (the planner called by Council) that, in Mr Simpson’s words, the ‘… low edges optimise the appreciation of the sky and horizon, not only but especially, when walking in an easterly direction towards the beach’. [10] The views conveyed by the appellants’ expert witnesses accord with the evidence, reinforced on inspection, showing that the tall buildings some 80 metres to the south already intrude to a marked degree upon the skyscape. The Soul building will have a similar effect, to an extent which can only be anticipated as dramatic – as the model of it and its surrounds, viewed during inspection, vividly suggest. The existing pine trees in the Mall are also quite tall, and have the same effect. [11] These factors lead inexorably to the conclusion that wide open views of the sky are not an important element of the amenity of the Mall; and, that the proposed building will, therefore, have little or no effect or impact upon an amenity based primarily upon an ‘experience’ – perambulating through the Mall – in which the critical elements are the ‘visual attractants’ described in the evidence of the appellants’ experts, and enjoyment of the facilities they offer. [12] The proposition that high-rise buildings are intended to be a feature of the amenity of the Mall is deeply embedded in the Gold Coast ‘Our Living City’ Planning Scheme 200310 . The scheme has, as its two major components, fifteen Key Strategies which apply across the entire City, and eighteen Land Use Themes applying to particular parts of it. One of the Key Strategies incorporates Activity Centres, focussing upon employment and investment activity. Surfers Paradise is identified as a ‘Specialist Centre’ within the Activity Centre strategy and described as a ‘… pre-eminent tourist centre in the City’. [13] Within the Scheme, particular areas are the subject of LAPs. The purpose of the Surfers Paradise LAP is to ‘… provide integrated and detailed planning of Surfers Paradise as the major tourist centre of the Gold Coast city’. The site is within Precinct 1 – the Entertainment Precinct, intended to develop as a ‘… vibrant, lively tourist centre’. Within that Precinct, Sub-Precinct 1 (Main Entertainment Precinct) is described as being the ‘core’ of Surfers Paradise where development ‘… should create a theme park atmosphere that is innovative, exciting and glamorous’. This district will, it is said in the Plan, have these elements: Retail and tourist activities, commercial services, entertainment, restaurants and eateries are encouraged at ground floor level and within podium level to create a vibrant commercial core, with high-rise towers permitted above (emphasis added) [14] Each LAP contains a number of DEOs and a Table of Development which determines the level of assessment for various land uses. Section 4.3 of the LAP 10 Version 1.0 -- 4 of 10 -- 5 notes that ‘… high-rise towers create an identity that adds to the attraction of Surfers Paradise for both visitors and residents’ and ‘… the high-rise profile acts as an icon or trademark for the entire Gold Coast city’. The two broad DEOs for the Surfers Paradise LAP include one which encourages ‘… distinctive high-rise residential and tourist development to enhance Surfers Paradise’s famous skyline and townscape’ (emphasis added). Statements of this kind are reflected in other parts of the planning scheme where, for example, this precinct is designated as one in which there is no maximum height limit or maximum population density limit. [15] The absence of limits is physically reflected in the built form which exists, and maintained by recent approvals like that of the Soul building. The fact unlimited high-rise buildings are code, rather than impact, assessable in this precinct is another indication they are, at least, anticipated. Further, the fact the planning scheme contains no provisions requiring increased setbacks or reduced building heights adjacent to the Mall is additional, strong support for the conclusion that this anticipation – in fact, a high level of actual encouragement of high rise throughout this Precinct – extends to the immediate environs of the Mall itself. [16] The Integrated Planning Act 1997 (IPA) requires, under s 3.5.4, that the application be assessed against these Codes (which all parties accepted were relevant here). Under s 3.5.13 (4) refusal may follow if the assessment manager is not satisfied that compliance with the codes has been achieved, or cannot be achieved by imposing conditions11 ; but the decision may, however, survive conflict with a code if there are ‘…sufficient grounds to justify the decision, having regard to the purpose of the code’: s 3.5.13(2). [17] The issues raised by Council involve, in summary, alleged conflict with the Surfers Paradise LAP Code and its Performance Criteria (PCs); conflict with the High-Rise Residential and Tourist Code (HRRTAC); inconsistency with the Specialist Centre Land Use Theme, and the Intent statement for Precinct 1; and, conflict with DEO 3.1 of the Surfers Paradise LAP concerning impacts on the ‘openness’ of the Mall. The Codes are a part of the planning scheme and must, of course, be read in the light of, and a way which sensibly reflects and conforms with the clear planning intent for the area expressed in the LAP, and its DEOs 12 . [18] Code assessment also means that impacts upon the Mall will be unacceptable only if that is the effect of one of these Codes. For reasons which follow, I am satisfied the proposal largely meets the Code requirements, and in the two respects in which actual compliance with the Acceptable Solutions (AS) nominated under the PCs might not be perfectly achieved (setbacks, and parking) the non-compliance is minimal, does not offend the broader planning scheme provisions and may be excused on the grounds effectual compliance is established. Even if that conclusion is incorrect I am, in any event, persuaded that any conflict is very minor and readily overcome by grounds which are sufficient to warrant approval of the proposal. [19] The first seven grounds for refusal primarily concern impacts on the visual amenity of the area involving, Council alleges, a failure to comply with PCs 2, 5, 12, 13, 15, 16 and 29 of the Surfers Paradise LAP Code. They relate, in essence, to the siting on the building relative to the Mall and involve assertions that, for example, it will 11 See Reservilt v Maroochy SC (2002) 123 LGERA 233, per Davies JA at 237 12 Westfield Management Limited v Pine Rivers Shire Council [2004] QPELR 337, at 342; -- 5 of 10 -- 6 become ‘… a dominant streetscape element that will have a significant impact on the character of the Mall’13 , or ‘… overwhelm the pedestrian scale of the Mall and diminish its character and amenity as a public space’ and ‘… have a detrimental impact on the visual amenity of the area’. [20] The ASs include a requirement (AS2) that buildings have specific setbacks from boundaries, diminishing with height. There are very minor intrusions (about 0.4 m) in this proposal on the northern frontage to the Mall at levels 3-6 but, as Mr Simpson fairly conceded, the intrusion has no practical effect on amenity. Similar conclusions apply to very minor intrusions by a boxed element of the building at the north-eastern façade, and the louvered structure at the top. Mr Robinson said (and I accept) that the proposed building is of a ‘modern, exciting’ design which, in combination with its location, maintains some development opportunities for neighbouring properties to the east and west, and minimises overshadowing impact on sites to the south and the interruption of views from nearby buildings. While Mr Simpson was not so impressed by the design, that is a question which is subsidiary to the primary one concerning impacts on the Mall. [21] For reasons already explored that impact on, in particular, visual amenity in the Mall is, at the highest, minimal. Certainly, I was not persuaded to Mr Simpson’s view that the effect will be oppressive, intrusive, or create a kind of ‘concrete jungle’ – or, for that matter, that the building will have a dominant, looming or hulking effect on, and over, the Mall. The minimum non-compliance with AS2 is, in any event, irrelevant to this conclusion; and, in the result, PC 2 is not materially offended. [22] Similarly the evidence is, again for reasons already explored, strongly against the central proposition (advanced in Ground 4 of Council’s reasons for refusal, and reliant upon PC5) that the siting of the building will result in it becoming a dominant built form on the Mall frontage which is incompatible with the scale and proportion of existing development and the urban character of the pedestrian streetscape, and will not complement the special tourist centre character and built form of the surrounding area. The evidence simply does not point to that conclusion. There is no apparent reason this building will interfere with enjoyment of the amenity of the Mall. Even if the converse was true, Council’s additional difficulty is that the LAP not only supports but, indeed, encourages high-rise buildings throughout this area and powerfully implies that they are seen to enhance, rather than harm, that amenity. [23] PC 12 is directed towards maintaining the ‘special tourist centre character and the built form of the surrounding area’. PC 13 requires that ‘building setbacks, building design, and frontage design will contribute to an interesting street perspective and to the visual amenity of Surfers Paradise. PC 15 looks to ‘…high quality structures which contribute to a lively streetscape and complement developments on adjoining sites. PC 16 aspires to buildings of a ‘high aesthetic standard (which) complement or enhance the character of the local neighbourhood’. Lastly, PC 29 relevantly requires that new structures and uses not ‘… detract from the amenity of the local area having regard, but not limited, to the impact of … visual amenity…’. 13 Ground 1 -- 6 of 10 -- 7 [24] This proposed building does not (unlike the Soul building) detract from the continuity of the existing two-storey edge of the Mall. On any view it is a building of relatively modest height, and is not unattractive. As helpful photomontages reveal, the new building can most clearly be seen from the north-east and north- western ends of the Mall, and in that context existing high-rise developments is already intrusive. When these factors are mixed in with the inevitable conclusion that the primary visual amenity of the Mall hinges upon its existing, low-level elements, it is impossible to conclude any of these PCs are offended. Indeed, the evidence is persuasive that this proposal comfortably satisfies them. [25] It is next asserted that PCs 7, 19 and 22 of the HRRTAC have not been satisfied. The first involves a claim that the southern façade of the building is too austere, and will have a negative impact on the viewshed of inhabitants of buildings further to the south. The design of this façade is obviously prompted by considerations of privacy, for all users and it did not impress as other than reasonably well modulated and articulated and broken by the use of different colours and angles. It cannot fairly be described as austere. The modest size of the building, in an area where expectations must incorporate the absence of any limits on building height, and its effective compliance with setback requirements mean impacts have been kept well below what can reasonably be categorised as ‘negative’. [26] PC 19 deals with shadows and requires minimisation of shadow intrusion onto surrounding sites. The building is, again, quite small when set beside its immediate high-rise neighbours; it occupies only a small part of its total site; and, it incorporates the increasing setbacks required by the LAP codes. There will be virtually no shadow impact on the Mall itself, and very little on surrounding buildings. It is impossible to leave this alleged ground for refusal without mentioning, and contemplating, the future effect the 77 storey Soul building, set near the north-east corner of the Mall, will have in terms of shadow. [27] Ground 10 concerns communal open space which, in this proposal, involves a variety of external landscape spaces incorporating a pool, spa, gymnasium, lounge, kitchen and separate male and female change rooms. According to AS22.1, a building containing this number of residential units will attract, pursuant to a formula, an open space requirement of 957m2 whereas the proposal has only 617m2 . In the nature of performance based codes, however, alternative provisions other than those stipulated in Acceptable Solutions must be considered and, as Mr Schomburgk pointed out, this development is in close proximity to the beach, the Mall, and a myriad of open space and entertainment options. As he also said, and I accept, visitors to central Surfers Paradise do not stay inside their apartment complexes for lengthy periods, in the face of the many entertainment options available day and night, rain or shine. It is also difficult to envisage what more could be provided to occupants in the way of communal recreational facilities, or what purpose more space would serve. In those circumstances the proposed solution is sufficient for the needs of residents and guests and, therefore, for the requirements of PC 22. [28] Council also alleges conflict with elements of the Specialist Centre Land Use theme in that the proposal is not, it is said, ‘… consistent with and in the public interest of protecting the key role of Surfers Paradise as a major tourist destination within the city’. As argued, the conflict is said to again involve encroachment on the ‘openness’ of the Mall and what is said to be its ‘main attraction’ – its ‘open, airy, -- 7 of 10 -- 8 beachside character’. For reasons already explored, I am not persuaded this proposal will have impacts of that kind. It is not unfair to note, in any event, that this ground of opposition rests upon a false premise – that existing nearby high-rise buildings to the south do not already intrude into the ‘skyscape’ or have a noticeable, present impact upon those rare users of the Mall who might gaze upwards rather than towards the myriad visual attractants surrounding them at ground level. [29] Ground 12 involves a very general assertion of inconsistency with the Intent Statement for Precinct 1 of the LAP arising from an alleged failure to promote or contribute to the ‘vitality’ of Cavill Mall – or, its ‘enhancement’. The statement refers to promoting or contributing to a ‘vibrant, lively tourist centre’. It is impossible to see how there can be a conflict between this requirement, and a development which adds to the numbers of people enjoying the Mall, and its amenities. Ground 13, involving DEO 3.1 of the LAP and the broad issue of the ‘promotion and enhancement of Surfers Paradise as Australia’s premier leisure tourist destination’ was, the town planners agreed at their joint meeting, not one which applied here. They reached the same conclusion about Ground 14 and that it was, in effect, subsumed to the more particular issues addressed in the earlier reasons for refusal. [30] Traffic issues principally relate to parking, but Council also contended that facilities and space for refuse collection, the attendance of service vehicles, and passenger pick up and set down were ‘sub-standard’. There is a large existing public14 car park underneath parts of Lot 3 and the land comprising that shown in Lower Plan 2, which also stretches further towards the east, west and south under other parcels. It is reached from Hanlan St, (a street to the immediate south of the Mall, running east-west and parallel to it) and is already, it seems, the subject of other approvals relating to those parcels and buildings on them. Inspection showed it apparently provides convenient parking for users of facilities both within, and outside, the Mall. [31] Well known traffic and parking experts, Mr Beard and Mr Healey, gave evidence about these matters15 . Refuse collection will, Mr Healey proposed, be affected in an area in Lower Plan 2 for which the relevant Body Corporate has signified approval. Initially refuse will be stored in a basement, and then transferred to an appropriate collection area. This accords with the requirements of PC 6 of the HRRTAC. If there is, in fact, any incidental non-compliance Mr Beard fairly conceded it was not sufficient to warrant refusal16 . [32] Service vehicles can appropriately use an existing delivery area in Lower Plan 2. Passenger set down and pick up will always be complicated because the pedestrian entry to the proposed building will be in the Mall, from which vehicles are excluded, and arrangements to access a lift in the basement car park are said to lack ‘legibility’ and be in conflict with HRRTAC PC 9. Again, Mr Beard fairly conceded the issue is not a substantial one: it falls to be considered in light of the provision that compliance is only necessary when a Code is actually relevant. It is difficult to see how PC 9 can apply in the unusual circumstances prevailing here, 14 Save for a small secured area for the use of the Courtyard Marriott 15 Exhibits 12, 12A,16, 17 and 18 16 Exhibit 16, p 5 -- 8 of 10 -- 9 where it is plainly unrealistic, if not impossible, to provide vehicular access permitting set down and pick up in the Mall (or Hanlan St, to the south). The proposed method of primary access for vehicles – through the basement car park – is plainly the practical and appropriate solution. [33] The question of parking is raised in Ground 8, which adverts to PC 35 of the Surfers Paradise LAP code. It is an issue which took on a degree of complexity late in the hearing of the case. The appellants’ uncontested evidence is that previous approvals concerning Lot 3 and other nearby sites required the provision, in the existing car park, of 446 parking spaces, and that about 470 presently exist (including, however, seven at street level in Hanlan St) although some are used for storage purposes. [34] The appellant proposes corralling thirty-two spaces (plus three visitor spaces) in the basement immediately under the proposed building; and, compensating for the impact on the whole parking lot by opening up some unused spaces and adjusting some parts of the existing layout in both the car park, and at street level, to create extra ones. [35] The first question concerns the adequacy of the initial provision. PC 35 simply requires ‘adequate’ numbers, but the Car Parking Code has a formula which suggests fifty-two spaces are necessary. Mr Healey’s evidence was persuasive that the nature and location of this proposal, with its access to transport and central position beside a pedestrian Mall, means a relaxation, of the order proposed, is not inappropriate – a view shared by Council’s own officers during preliminary consideration of the appellants’ development application17 . [36] Amelioration of the impact of deducting this number of dedicated spaces can be achieved, according to Mr Healey, by the addition of extra spaces in the existing car park in the manner described earlier (and by the use of some spaces at street level). Although the car park does not meet present Australian Standards, inspection showed it to be functional, and effective. Mr Healey’s evidence was persuasive that, in practical terms, his proposed changes could also be largely effective. [37] His research and enquiries show, and I also accept, that the car park has a spare capacity of about 83 spaces and that, at a time when it might be expected to be well used, had 127 spare spaces. Mr Healey said18 , and I am persuaded that: Given the tourist nature of the centre, some seasonal variability could be expected however it is my view that spare capacity is available and the additional demands associated with the residential proposal could be accommodated without risk of overspill (emphasis added) [38] Otherwise, the evidence also established that Mr Healey had discussed his proposed alterations and additions with the operator of the car park and, that, as Mr Beard and Mr Healey agreed, some parking demand generated by the existing Paradise Centre is being satisfied elsewhere, but the number of spaces involved is substantially less than the number used in the car park by development outside that Centre. [39] Very late in the hearing Council asked some questions of Mr Healey adverting, for the first time, to the fact some of the additional spaces he proposed were outside the 17 Exhibit 12A, p 76 18 Ibid, p 3 -- 9 of 10 -- 10 land which is the subject of the appellants’ application and, it was implied, could only be brought into his calculations by the attachment to this development of conditions which would operate against third parties – a course of action said to be untenable, and ineffectual. While the onus of establishing compliance with the Codes (or that compliance can be achieved by imposing conditions) must rest upon the appellants, no evidence was adduced by Council to show the existing conditions were immutable, or that it could not require that work to be carried out to achieve compliance with conditions associated with the car park which it has previously imposed upon other owners. That appears to be all that will flow here, in a way consonant with Mr Healey’s suggestions. [40] In any event the evidence presently shows the car park operates within its capacity and is, in fact, under-utilised; the proposed development satisfies PC 35; and, its failure to meet the formula appearing in the Car Parking Code does not, in the circumstances arising here, establish actual non-compliance with the PC in that Code. In the face, then, of evidence establishing the car park has spare capacity; and, that impacts on the balance of the car park are not excessive and are able to be met by existing capacity and, in addition, further ameliorated by compliance with other approvals, Mr Healey’s proposals reflect a practical, and acceptable solution. As the evidence fell out, that appears to satisfy the onus upon the appellants. [41] This discussion establishes that even if there is, contrary to the conclusions reached here, some conflict with any parts of the Codes it is impossible to categorise that conflict as other than minor. Conflict of that order can be readily overcome if there are ‘sufficient grounds to justify the decision’. Grounds of that kind do, I am satisfied, arise here. They involve the addition of an accommodation facility in a visually interesting, relatively small high-rise building in an area in which development of that kind is encouraged, and which advances the objectives of the LAP; design elements and setbacks which make the building attractive, and involve a thoughtful use of the land upon which it will sit preserving views for occupants of buildings to the south; and, its ability to complement the existing use of the Mall and, indeed, add a degree of security to Mall users through casual surveillance. [42] For these reasons the appeal should, then, be allowed. -- 10 of 10 --