PLN: P0486/09 of April 23, 2013The Design GroupPO Box HM 520Hamilton HM CDear Sirs:Appeal against the Decision of the Development Applications BoardApplicant: Atrium Gardens DevelopmentsSite: 45, 47, 49 Ewing Street, HamiltonProposal: Demolish Existing Structures and Construct Five (5) Storey Apartment House Building with Sixty-Five (65) Dwelling Units and Multi-propose Basement Level with Parking, Communal Space and Storage (In Principle)Decision: Refused by the Board 20th June 2012On behalf of the Minister of Environment and Planning, I refer to the above appeal and enclose a copy of the Inspector's report and recommendation dated 25th March 2013. The Inspector considered this appeal by written representation following an unaccompanied site inspection on 14th January 2013.I confirm the Minister has reviewed the documents comprising the appeal record and the Inspector's report and agrees with the recommendation of the Inspector.Accordingly, it is the Minister's decision to uphold the appeal, and to grant planning permission subject to the following conditions:1. The development hereby permitted shall be begun either before the expiration of 2 (two) years from the date of this permission, or the expiration of 2 (two) years from the final approval of reserved matters or, in the case of approval on different dates, the final approval of the last such matter to be approved.2. Notwithstanding the fact that this application seeks in principle approval only, those details relating to use, site coverage, density and building height are hereby approved. All details relating to siting of the buildings, design and external appearance of the building, provision of amenity space, landscaping, parking provision and design, means of access to the site, and provision of necessary services shall be reserved for the subsequent review of the Development Applications Board.3. An application for final panning approval must be accompanied by the necessary documentation (letters of agreement) from key service providers (Bermuda Fire and Rescue Service, Belco and the Corporation of Hamilton), as well as plans demonstrating how fire fighting accessibility, utilities, sanitary servicing and potable water will be provided to service the proposal.4. An application for final approval must be accompanied by a Traffic Impact Analysis, prepared by a suitably qualified professional, which demonstrates that the traffic flows generated can be accommodated as proposed and that the access and parking design are adequate to support the proposal.5. An application for final planning approval must be accompanied b a Method Statement and Risk Assessment Report for the excavation and foundation installation works, prepared by a suitably qualified professional. The report must identify the excavation and foundation construction methodologies to be utilised and accesses the range and degrees of potential impacts on adjoining properties, in particular, but not limited to, the structural damage that may result from vibrations. The report must outline the proposed mitigation measures and identify as part of the planning application, any temporary works that may be required to safeguard adjacent properties from impacts identified.Yours sincerely,Derrick S Binns, PhD Permanent Secretarycc: Director of PlanningAsst. Director of Forward PlanningAsst. Director of Development and ControlSenior Development Control OfficerClerk to the BoardRef: P0486/09 of 25 March 2013To: The Hon Sylvan Richards, JP, MPThe Minister of Environment and Planning The Ministry of Environment and PlanningDame Lois Browne-Evans Building58 Court StreetHamilton HM 12.Dear Sir,1. The AppealAgainst refusal to grant in principle approval to demolish existing structures and construct a five storey apartment house building with sixty-five dwelling units and a multipurpose basement level with parking, communal space and storage at 45-49 Ewing Street, City of Hamilton.2. The Appellant Atrium Gardens Developments.3. The SiteThe elevated site is at the eastern end of Ewing Street (Tills Hill) between Court Street, North Street, Union Street and Angle Street, all public roads within the City of Hamilton, and overlooks Hamilton Harbour towards the south and Pembroke Marsh towards the north. It comprises two lots totalling some 13,533 square feet (0.31 acres). Those parts of the property associated with 45, 47 and 49 Ewing Street are each at differing elevations, with a twenty foot difference between them. The adjacent land to the north is at a lower elevation; Ewing Street falls towards Court Street, and generally speaking the eastern part of the property is higher than the western part, although presently the highest point on the property is the yard associated with what had been 47 Ewing Street.Development in the immediate surroundings is predominantly single-storey and two storey residential, including a proposed listed Grade 2 building known as "Belvoir" at 53 Ewing Street, and a very small cottage on the lot surrounded on two sides by the proposed development site. A building associated with the 2-unit structure at 43 Ewing Street also directly abuts the development site, while properties to the north are separated from the site by both woodland and a difference in elevation. The exceptions to the typical low, small residential form found in the area include a 4-storey, 9-unit residential development on the northwest corner of Court Street and Ewing Street, completed in 2009, and a 12-unit building on the southeast corner of the same intersection. A 4-storey, 11-unit residential and commercial/office project was also recently approved further along Ewing Street. These sites are all at lower elevations.A ten-storey mixed-use building at the corner of 5 Court Street was approved on appeal in February 2011. The building in question has a ground floor elevation of 20.5 O.D., a roof parapet elevation of 146 feet O.D. and a pinnacle/top of elevator roof elevation of 155 O.D., relative to the maximum 138 O.D. height of the Cathedral ridge line set in the City Plan. Planning approvals for two further cases in the area, which proposed building heights similar to the subject proposal, have since expired. A proposal for the southeast corner of Court Street and Angle Street had a roof top elevation of approximately 111 feet O.D., whilst a proposal for the southwest comer of Court Street and Elliot Street had a rooftop elevation of approximately 105 feet O.D. Because the site is located in North East Hamilton, the draft North East Hamilton Plan, although not yet formally approved and adopted, and its Cabinet approved supporting strategic document, Bringing Northeast Hamilton to Life, are relevant, as well as the City of Hamilton Plan 2001.4. ParticularsThe application, as submitted on the 10th September 2009, and revised on the 5th January and the 28th October 2011, originally sought final approval for the demolition of the existing structures and construction of a 34,938 square foot structure with 5 levels of residential units (10 studios and 55 one-bedroom units for a total of 65 units of some29,442 square feet), and parking for 24 cars and 71 cycles at a below-grade level and at ground level, each level having separate driveway access.Above the parking and storage level, the building has 4 components, with open stairways and hallways between, grouped around an open, unroofed central core or atrium. Stairways and two elevators provide access within the building and to the ground and parking levels.Private open space is provided through balconies or patios associated with each unit. Communal open space is provided by the open-air atrium and an adjacent multipurpose room. Building height is indicated as approximately 60.5 feet, with an O.D. height at eaves of 112.8 feet and at the ridge line of approximately 122 feet.Communal garbage storage is indicated near the roadway adjacent to the drive into the lower parking level. A mail centre is indicated in the larger lobby on the ground floor. A berm across the more easterly and higher driveway, along with a grate and sump, are the provisions indicated for storm water management for the site. No drainage provisions are indicated within the open-air atrium or to catch water flowing down the driveway ramp into the lower parking level. Utility provision is not indicated on the plans. The site is neither connected to potable water nor public sewer services, has 54,000 gallon storage capacity (the plan indicates 72,000 gallons) and proposes no cesspits. The applicant has suggested that the intention is to tie into public water and sewer services.The site boundaries are defined by rock cuts, 6 foot high chain link fencing or a 6 foot high boundary wall, with the northern boundary provided with a row of 1 gallon pittosporum along the fence line.See plans and elevations 1, 2, 3, 4, 5, and 6 all dated November 2008.Although the application was originally filed seeking final approval, the applicant subsequently indicated a change to a request for in-principle approval for use, density, building height and site coverage.By way of background, a similar proposal for a 5-storey, 65-unit structure was refused by the Development Applications' Board (DAB) on the 24 1h December 2008. The refusal cited insufficient information to make a full and accurate assessment of the proposal, non compliance with the maximum number of storeys at street setback, and non-compliance with upper storey setback policies.Technical officers assessed the proposal against the prevailing policies in the City of Hamilton Plan 2001. The latter identifies a 3-storey maximum at street level, and a 4- storey overall maximum, with allowance for a fifth storey as a residential bonus at the DAB's discretion. No minimum street level setback is required, and standard parking provisions apply. The site is not within the View Corridor. Against this backdrop, compliance with the Plan is mixed. Infrastructure is not in place to support the proposal, and no plans are at hand to provide the necessary infrastructure in most instances although, with the exception of the moratorium on new water services, the necessary infrastructure provision could be agreed in negotiations between the developer and the infrastructure suppliers. The moratorium however is not amenable to this approach. There are also concerns about the likely construction impacts of the development as proposed on neighbours and the neighbourhood, and the social impacts of 65 small units targeted at single adults and childless couples.The application was reviewed by the Corporation of Hamilton, the Bermuda Fire and Rescue Service, the Department of Environmental Protection (DEP), the Department of Health, the Ministry of Public Works, the Historic Buildings Advisory Committee (HBAC), the Bermuda Post Office, the Bermuda Telephone Company and BELCO, none of whom objected to the development in principle, but all of whom had reservations about some of the details. The Architectural Advisory Panel (AAP) did however express concern about the visual impact of the proposed building, the readiness of infrastructure to serve the site, the sufficiency and practicality of the design, its buildability and serviceability, and the possible social impacts. The open-air atrium was viewed as a space within which noise would be amplified and nothing would grow. Neither the bonus floor nor the substitution of cycle parking spaces for car parking spaces to the degree proposed was supported. The applicant was informed of the AAP's concerns and did not respond.As previously noted, the North East Hamilton Plan (yet to be approved and adopted) is pertinent in this locality. The Plan supports a mix of residential uses and compatible non residential uses in low (1 to 3 storey) to mid-size (4 to 6 storey) formats, "sensitively designed with respect for the amenity of their neighbours as well as themselves". Plan policies allow maximum 60% site coverage and 50 foot/5 storey building height, with setbacks at least 5 feet from interior lot lines and 10 feet from the street. Communal space equivalent to 20 square feet per unit (i.e. 1,300 square feet) and private outdoor living space equivalent to that required in the City Plan are called for. Meanwhile, the Plan encourages improved residential living conditions, attractive streetscape and landscaping, and the facilitation of maximum development potential with sensitive design.In principle approval is requested for use, density, building height, general siting and site coverage. Technical officers concluded that the proposal is compliant with policies regarding use, unit size, private outdoor living space, communal space, number of storeys at street level, building height, provision of garbage store, mail centre, and some setbacks. However the proposal is not compliant with parking design standards, upper storey setbacks, 40% front facade setback, or accessibility for the less mobile. Meanwhile the Board 's discretion is requested for approval of the residential bonus floor, substitution of cycle parking spaces for car parking spaces, waiver of the upper storey setback requirement and the setback of 40% of the front, and allowance of two accesses to Ewing Street.The application was advertised on the 16th September 2009 and there were no objections to the proposal.In addition to the various aspects of non-compliance with the City Plan, technical officers remain concerned by the project's visual impact, which is considered overwhelming for the site and its setting. Moreover, many of the site's development facets remain unaddressed or unsupportable, with the proposal at hand not really a viable, buildable project without such issues being satisfactorily addressed ex ante, or so it is argued.The application was refused on the 2Qth June 2012, and notice of intention to appeal submitted on the 19th July 2012.5. Grounds for RefusalThe application was refused for the following reasons:1. The proposed development fails to comply with Policy 4.2 in that the following elements are not satisfactory: siting and layout, provision for parking or for pedestrian access, vehicular access; communal amenity space, the scale, massing or height of the building, and the impact on the amenity of the surrounding areas.2. The proposed bonus floor is not supported, in that the additional floor is not found to be appropriate to its location and context; would create an overly dominant feature on the city skyline; would create an unpleasant environment for pedestrians and neighbours by virtue of its scale and height; and is not supported by the Architectural Advisory Panel. As such, the proposed development fails to comply with Policies 1.16 and 3.9.3. The applicant has not demonstrated how basic infrastructure necessary to support the proposal would be provided or accommodated on site, including fire fighting accessibility, given the inability to access the majority of the property and the insufficiency of road width or on-site space to reverse vehicles, and water service, given the present moratorium on new service connections.4. The proposed development fails to comply with Policy 3.15 in that the upper storey setback requirement therein is not met.5. The construction proposed would have a negative physical impact on the adjacent residences, given the excavation required in proximity to those residences, and the likely construction methodology required.6. The proposed development fails to comply with Policy 1.8 in that the proposal would detract from the amenity of existing residential property due to its scale, massing, height, visual impact, and inadequate provision for safe off street parking and turnaround.7. The proposed development fails to comply with Policy 3.21 in that the external appearance of the development does not relate well to its context, nor enhance the visual quality of the skyline of the city. In particular, the result of the combination of site elevation, low scale of surrounding development, poor design and proposed height is inappropriate in the context of the site's location.6. Site Inspection14lh January, 2013. Unaccompanied7. Appellant's CaseThe appellant's case is set out in a submission dated the 17th September 2012, which first points out that the appeal is simply seeking permission for those elements which define a building envelope, i.e. height, setbacks, site coverage, parking etc, since this will automatically dictate the maximum floor area and massing. The submission then addresses and challenges the reasons for refusal under these so-called building envelope headings, dismissing each in turn, with the exception of site coverage which is Plan compliant.Height it is claimed should not be an issue because of precedents both in the locality and elsewhere in the City of Hamilton that have similar or more visual prominence. Moreover, the proposal is fully compliant in this respect with the North East Hamilton Plan. Setback infringements are also dismissed as relatively insignificant and, once again, claimed to be compliant with the yet to be published North East Hamilton Plan. Meanwhile, it is argued that the traffic impact of the development is manageable, and the parking provision more appropriate for the building's proposed clientele than would be the formulaic application of prevailing standards. The possible negative impact on neighbouring properties occasioned by the required excavation of the site is also dismissed, it being noted that such issues need to be considered and are invariably successfully addressed whenever development takes place in the City of Hamilton. The appellant then makes reference to quality of life issues, which it is claimed are inadequately addressed in the Board Report. Finally, the appellant points out that other matters relating to building design, operational details and infrastructure provision can and should be addressed at detailed plarming stage.In conclusion, the appellant points out that the development would not only provide appropriate/affordable housing for a key market segment but, in doing so in the proposed location, would be a big boost for North East Hamilton and inspire confidence in an area that has been paralysed and neglected by irrelevant and/or insensitive planning policies for more than 40 years.8. The Department of Planning's CaseIn a submission dated the 13th December 2012, the Director of Planning has advised that he is content to rely on the Board Report, which he argues properly addresses the issues that are relevant to the Department's original recommendation that the proposal be refused, but adds some additional points in response to the appeal submission, rejecting most of the appellant's arguments for want of more specific evidence and/or detail. In many respects, and not withstanding that the appeal is only for in-principle approval and is broadly compliant with the draft North East Hamilton Plan, the Director suggests that there is insufficient information vis-à-vis infrastructure and service provision, as well as certain indicative design elements, that are essential in determining if an application is in any event supportable. Against this backdrop, the recommendation to the DAB to refuse the proposal is reaffirmed. However, should the Minister be mindful to grant the appeal, the Director suggests that the following conditions be imposed:1. The development hereby permitted shall be begun either before the expiration of 2 (two) years from the date of this permission, or the expiration of 2 (two)years from the final approval of reserved matters or, in the case of approval on different dates, the final approval of the last such matter to be approved.2. Notwithstanding the fact that this application seeks in principle approval only, those details relating to use, site coverage, density and building height are hereby approved. All details relating to siting of the buildings, design and external appearance of the building, provision of amenity space, landscaping, parking provision and design, means of access to the site, and provision of necessary services shall be reserved for the subsequent review of the Development Applications' Board.3. An application for final planning approval must be accompanied by the necessary documentation (letters of agreement) from key service providers (Bermuda Fire and Rescue Service, Belco and the Corporation of Hamilton), as well as plans demonstrating how fire fighting accessibility, utilities, sanitary servicing and potable water will be provided to service the proposal.4. An application for final approval must be accompanied by a Traffic Impact Analysis, prepared by a suitably qualified professional, which demonstrates that the traffic flows generated can be accommodated as proposed and that the access and parking design are adequate to support the proposal.5. An application for final planning approval must be accompanied by a Method Statement and Risk Assessment Report for the excavation and foundation installation works, prepared by a suitably qualified professional. The report must identify the excavation and foundation construction methodologies to be utilised and accesses the range and degrees of potential impacts on adjoining properties, in particular, but not limited to, the structural damage that may result from vibrations. The report must outline the proposed mitigation measures and identify as part of the planning application, any temporary works that may be required to safeguard adjacent properties from impacts identified.9. The Appellant's ResponseThe appellant has responded to the Director of Planning in a submission dated the 28th February 2013, which addresses three concerns, claiming that the Department of Planning:I) did not follow the required planning guidelines mandated to them by Parliament;ii) supplied the Architects' Advisory Panel and Development Applications' Board with information which was too seriously flawed or too incomplete for them to make informed and relevant comments or decisions; andiii) ignored the special status of North East Hamilton afforded to it by Parliament in 2008.In substantiating these claims the appellant then resorts to a very selective interpretation of the prevailing planning standards and protocols contained in the City of Hamilton Plan and, despite initial suggestions to the contrary, reinforces the case for approval by making reference to the yet to be published Draft North East Hamilton Local Plan.The appellant suggests that for those matters that should be considered in determination of an application for in principle approval, the proposal is broadly compliant. Meanwhile, for all other design and engineering issues raised by the Department of Planning as areas of concern, these are not the province of such an application, but should be dealt with at final approval stage and during processing of the building permit.In summary, the appellant's case is that the proposal is entirely consistent with the goals, and the thrust and spirit of the objectives of both the City of Hamilton Plan 2001 and Bringing North East Hamilton to Life 2008, as well as the yet to be published Draft North East Hamilton Local Plan.10. My FindingsHaving read the documentation and following my site visit, I was somewhat surprised that the original application was for final approval given the paucity information provided, the quality of the drawings, and the whollyinadequate design details for such a determination. Quite simply, for an application for final approval on such a prominent site, the best description that I can use to describe the submission is "basic", although a less generous interpretation might describe it as unduly "simplistic". Notwithstanding such observation, I am nevertheless persuaded by the appellant of the importance of such a proposal as a catalyst for the regeneration of this locality and, when set against the impending publication of the local plan, have considerable sympathy for both the development concept and, more importantly, for its realisation on this site. I do however have some concerns about aspects of the limited approval that is being sought and would therefore recommend "in principle" approval subject to the more restrictive conditions suggested by the Director of Planning.11. RecommendationI recommend that the appeal be granted, subject to the following conditions:1. The development hereby permitted shall be begun either before the expiration of 2 (two) years from the date of this permission, or the expiration of 2 (two) years from the final approval of reserved matters or, in the case of approval on different dates, the final approval of the last such matter to be approved.2. Notwithstanding the fact that this application seeks in principle approval only, those details relating to use, site coverage, density and building height are hereby approved. All details relating to siting of the buildings, design and external appearance of the building, provision of amenity space, landscaping, parking provision and design, means of access to the site, and provision of necessary services shall be reserved for the subsequent review of the Development Applications' Board.3. An application for final planning approval must be accompanied by the necessary documentation (letters of agreement) from key service providers (Bermuda Fire and Rescue Service, Belco and the Corporation of Hamilton), as well as plans demonstrating how fire fighting accessibility, utilities, sanitary servicing and potable water will be provided to service the proposal.4. An application for final approval must be accompanied by a Traffic Impact Analysis, prepared by a suitably qualified professional, which demonstrates that the traffic flows generated can be accommodated as proposed and that the access and parking design are adequate to support the proposal.5. An application for final planning approval must be accompanied by a Method Statement and Risk Assessment Report for the excavation and foundation installation works, prepared by a suitably qualified professional. The report must identify the excavation and foundation construction methodologies to be utilised and accesses the range and degrees of potential impacts on adjoining properties, in particular, but not limited to, the structural damage that may result from vibrations. The report must outline the proposed mitigation measures and identify as part of the planning application, any temporary works that may be required to safeguard adjacent properties from impacts identified.Yours sincerely,Brian G FieldPlanning Inspector