Baxter & Jacobson Architects Pty Limited v Manly Council

Land and Environment Court (NSW)|2011-07-08

Pikes Lawyers (Respondent) File Number(s): 10244 of 2011

Judgment 1This is an appeal against the refusal of Development Application 259/2010 (the application) by Manly Council (the council) that proposes the construction of alterations and additions to an existing residential flat building at Lot 2 DP 602980, No. 11 Pine Street Manly (the site) and amendment to the plan of strata subdivision of the site. 2The issues between the parties are the height and number of storeys, bulk, floor space, density, carparking, setbacks, open space and impacts on streetscape and character of the area. Issues in relation to overshadowing were agreed between the experts during preparation of their joint report and tree planting was resolved prior to the hearing and agreed that it could be addressed through a condition of any consent that may be issued. Evidence was provided in the hearing that addressed the council's concerns in relation to owner's consent.

The site and its context 3The site is located on the southern side of Pine Street between Pittwater Road and Whistler Street and has a frontage of 18.875m and area of 322.7 square metres. The site is relatively flat. 4An existing two storey residential flat building containing four units, two on each floor, is erected on the site. Each unit is a two-bedroom unit. No on-site carparking is currently provided. 5Development in the immediate vicinity of the site comprises a mix of single and two storey dwellings and two storey residential flat buildings. Residential flat buildings up to eight storeys are located to the east of the site and a variety of dwellings ranging from single storey sandstone workers' cottages along Pittwater Road to three storey residential flat developments are also located in proximity to the site. 6Two items of environmental heritage (dwelling at No. 7 Pine Street and Malvern Avenue) are in the vicinity of the site. The dwelling is separated by a narrow allotment to the east of the site. That adjoining property contains a two-storey dwelling house erected to the common boundary and the heritage item is a dwelling house incorporating roof attic as the second storey. Malvern Avenue is directly opposite the site and is, on the evidence of the council, listed because of the stand of Norfolk Island Street trees that line both sides of the roadway. To the immediate west and south of the site are two storey residential flat buildings.

Background and the proposal 7The application seeks to reconfigure the internal layout of the existing flats, entry lobby and stairs. It is also proposed to demolish the existing roof structure, increase the height of the external perimeter walls by 1.4m, construct a new roof and attic rooms within that roof space. Other work proposed includes the construction of a new front fence, enclosure of front courtyards to the two ground floor units with a 1.6m high fence, site landscaping, demolition of an existing laundry and fire stairs, installation of water tanks, construction of three upper level balcony areas and two attic balconies adjacent to dormer windows to be installed within the new roof, relocation of some windows and the gas meters. It is not intended to provide any on-site parking however the existing concreted surrounds of the building are to be removed and the site landscaped. 8Works to the ground floor units involve the demolition of a number of internal walls and reconfiguration of the spaces to orientate the living areas to the northerly aspect, provide internal laundry facilities and direct access to courtyard spaces from the living areas. Those units would be maintained as two bedroom units with a slight increase in the total floor area, ranging from 0.2- 4.0 square metres. 9Whilst similar works are proposed within the two upper floor units, it is also intended to construct stairways within these units to provide access to a third or attic level to be constructed within the new, higher roof space. The lower level of unit 3 (eastern) would contain a larger living area, kitchen with study nook, bathroom, laundry and bedroom whilst unit 4 (western) would include the same rooms with the exception of the study area. The upper level of unit 3 would comprise a second bedroom, bathroom and walk-in wardrobe whilst unit 4 consists of a bedroom, bathroom and large study area with built-in cupboards and desks. Small, north facing balconies are proposed to open off each attic bedroom and those areas would appear as dormer windows from Pine Street. The areas of those units would increase by between 30.5sqm (unit 3) and 42.87sqm (unit 4) and the overall increase in floor space of the building would be 78.81sqm. 10The council refused consent to the application on grounds that form the matters in contention.

The planning controls 11The site is in Zone No 2 - Residential Zone pursuant to the provisions of the Manly Local Environmental Plan 1988 (the LEP). The relevant objectives of that zone are: (b) to delineate, by means of development control in the supporting material, the nature and intended future of the residential areas within the Municipality, (c) to allow a variety of housing types while maintaining the existing character of residential areas throughout the Municipality, (d) to ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment, (e) to improve the quality of the residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations,....... (h) to encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment, and....... 12In addition to aims and objectives, the LEP includes, at clause 4, policies and strategies and those relevant to the application are: (a) in relation to residential and community life: .......... (viii) to encourage revitalisation, rehabilitation and redevelopment of residential areas while ensuring that dwelling form, including alterations and additions, does not degrade the amenity of surrounding residences or the aesthetic quality of the Municipality, 13Residential flat buildings are permitted with consent in Zone 2 - Residential. 14The site is within a Foreshore Scenic Protection Area (clause 17), in the vicinity of an item of environmental heritage (clause19) and within the Pittwater Road Conservation Area (clause 21). 15As the proposed works would result in a residential flat building of three storeys that contains four self-contained dwellings, the provisions of State Environmental Planning Policy No 65-Design Quality of Residential Flat Development (the SEPP) apply. 16Manly Development Control Plan for the Residential Zone 2007 Amendment 1 (the DCP) also applies and for the purposes of that plan, the site is within Density Sub-zone 3 which permits one unit/250 square metres of site area and a maximum floor space ratio (FSR) of 0.6:1. In addition, the DCP includes a number of development controls and those relevant to the application include building height, number of storeys, setbacks, open space and landscaped areas, parking, solar access and overshadowing, rooms within roofs, fencing and retention, preservation and adaptation of existing dwellings.

The evidence 17The hearing commenced on site and included a view of the existing building including its interior and surrounds. The site was observed from Malvern Avenue where the planners gave their opinions of the changes proposed to the building. There is no contention that the application would have any impact on the heritage significance of the street. The Court then proceeded to walk around the block bounded by Pine Street, Pittwater Road, Carlton Street and Whistler Street observing the built form in those streets. It is apparent that the area includes a diversity of housing types in terms of age, scale, height, density and condition. 18Expert town planning evidence was heard from Mr Fleming for the applicant and Mr Hugo for the council.

Floor space ratio 19The experts agree that the FSR of the existing building is 0.785:1 and that is in excess of the DCP control of 0.6:1. With the inclusion of the roof attic space the proposed FSR increases to 1.03:1. Mr Hugo says this is unacceptable and a 71.56% variation to the control, it also exceeds the FSR for the adjoining density sub-zone 2, which is 0.75:1, adds additional bulk to the building and is inconsistent with the existing and desired future character of the area. 20Mr Fleming says that the additional floor space is only adding 0.245:1 to the FSR and that most of that space is within the roof. He says that this is consistent with the provisions of clause 3.5.8 of the DCP which provides for rooms within a roof of an existing building. He considers that the consideration of the FSR should not be based on the numerical controls as the existing building already exceeds that control. He says that the objectives of the control should be used to measure the suitability of the works. Those objectives are found in clause 3.4.1 of the DCP and state: a) To assist in controlling the bulk of buildings; b) To ensure the scale of development does not obscure important landscape features; c) To ensure the scale of development is consistent with the existing and desired character of the residential areas; d) To minimise disruption to views and loss of privacy to adjacent and nearby development; and e) To provide sunlight access to private open spaces within the development and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings. 21Mr Fleming says that there are no impacts associated with parts (b) and (d), that (e) is achieved and that the scale of the proposed building is consistent with that already established in the locality and the immediate vicinity of the site. Accordingly, he considers that the proposed FSR achieves the objectives of the control. Mr Hugo disagrees and says that the additions will add visual bulk to the building, which already exceeds that anticipated by the control and is inconsistent with the scale of development in the area.

Building Height and Number of Storeys 22The experts agree that the wall height of the proposed building would be between 6.64m and 6.79m and that it is non-compliant with the maximum 6.5m allowed under the control. They also agree, applying the sections depicted on the plans, which form Exhibit A, that the variation ranges from 140-280mm. It is also agreed that the proposal is for a three storey building, that clause 3.5.4 provides for two storey development within sub-zone 3, that the maximum permitted building wall height for the adjoining site to the east is 12m, that the maximum ridge height of the proposal is 16.25m and the maximum ridge height of the adjoining residential flat building to the west is 16.36m AHD. 23Mr Hugo accepts that the variation to the building height is a "slight" increase to that allowed under the DCP controls however, when considered against other areas of non-compliance, the cumulative impact is an unsatisfactory development which is inconsistent with the existing and desired future character of the area and the streetscape. He also says that the additional building height increases the overshadowing impacts of the development on the adjoining property to the south however acknowledges that the controls in the DCP for solar access are met. 24Mr Fleming disagrees and says that the building would be consistent in scale to the building to the west and other buildings in the adjacent residential area which contain buildings that range in height from single to five storeys. 25Mr Hugo says that the control for rooms within the roof structure (clause 3.5.8) does not apply as the works are not wholly within the roof structure and, as the proposal involves the construction of additional wall height and a new roof, would be inconsistent with the control which, he says, only applies to existing structures and not in circumstances where a roof is demolished and wall height increases. He also says that the two storey control applies and that the provisions for rooms within a roof only allow two storey development. 26Mr Fleming disagrees and says that the purpose of the clause is to allow exactly what is contemplated by the application and draws specific reference to the words "situated substantially above the maximum allowable wall height and/or within the roof structure". Clause 3.5.8 states: Habitable rooms situated substantially above the maximum allowable wall height and/or within the roof structure shall only be permitted in buildings which existed prior to the operative date of this Plan and where it can be demonstrated that they do not detract from the character nor integrity of the roof structure and will not adversely impact on the amenity of adjacent and nearby properties and the streetscape. He says that the clause does not restrict development to two storeys as to do so would be inconsistent with the clause, which he says, applies to any existing building. He says that there is no contention in relation to roof integrity and that there is no impact on the amenity of adjacent or nearby properties, other than some overshadowing of No. 140 Pittwater Road, the property to the south of the site, however that impact does not breach the council's controls for sunlight. Mr Hugo disagrees and says that the clause only applies where the other controls of the DCP are satisfied and that the additional height would affect amenity due to the visible bulk of the building and the additional overshadowing impacts.

Impact on streetscape, existing and desired future character. 27The DCP does not provide any detailed explanation of the desired future character contemplated by the plan. It does however at Part 3 state: The planning controls set out in this DCP were adopted following the required planning procedures including public consultation. They therefore represent the Council's and the community's expectations as to what will be the nature, scale and form of future development in the Local Government Area. Council is required to apply the controls in a consistent manner while balancing the interests of the applicant with those of the community as a whole. It is therefore expected that development proposals will by and large comply with the numeric controls. Any departures will not only need to satisfy the DCP objectives but it needs to be demonstrated (in the application) that by Council agreeing to a variation of a standard or requirement, that a more desirable environmental outcome is achieved. 28Mr Hugo says that the character of the area within Density sub-zone 3 is mainly one and two storey developments and on the southern side of Pine Street in the vicinity of the site consists of two storey development. He says that the third storey element of the proposal is inconsistent with the existing streetscape on the southern side of Pine Street in the vicinity of the site and the DCP contemplates two storey development within sub-zone 3. For this reason, it is his opinion that the proposed development is inconsistent with the existing and desired future character of the area and the objectives of the LEP. 29Mr Fleming says that the development is consistent with both the existing and desired future character and in particular with the scale of the building to the west. He says, that through re-orienting the living areas of the units to the north, the development will result in a more desirable environmental outcome and accordingly, variation to the controls is appropriate.

Carparking 30Mr Fleming says that there is no need to provide any parking on site as the existing development, being 4x2 bedroom units, does not provide any off-street parking and that as the proposed development does not alter the number of units or the number of bedrooms, there is no need to provide any parking. 31Mr Hugo disagrees and says that the proposal increases the demand for car parking by 1 car space due to the additional "study" located on the second storey, which he says, given its area of 16sqm, is clearly intended as a bedroom. The DCP controls for parking require 0.2 parking spaces for a two bedroom unit and 0.5 spaces for a three bedroom unit and round up all requirements. Whilst only 0.3 spaces would be required should the development propose a three bedroom unit, rounding up this requirement would generate the need for an additional space. Mr Hugo says that it is not appropriate to allow additional floor space at the site in circumstances where there is already no on-site parking and none can be provided.

Setbacks 32The experts agree that the existing building is non-compliant in terms of side and rear setbacks and that the extent of the side wall height increase results in greater non-compliance with the setback control. Based on the evidence of Mr Hugo, the existing side boundary setbacks are 1.6m (east) and 1.7m (west). The DCP control for setbacks is based on the external wall height and requires the setback to be 1/3 the height of the external wall. Therefore, the existing building, with a wall height of 5.4m requires a setback of 1.8m and the proposed building with a wall height of 6.8m requires 2.266m. Therefore, the variation to the side setbacks ranges from 566mm to 666mm. Mr Hugo says that the non-compliance is inappropriate given the close proximity of the neighbouring buildings. Mr Fleming says that the existing setbacks are maintained and that the proposal does not generate any detrimental impacts to neighbouring dwellings as a consequence of the adjusted wall and overall height of the building and therefore meets the relevant objectives of the control which are: a) To maintain and enhance the existing streetscape; b) To provide privacy; c) To provide equitable access to light and sunshine; d) To promote flexibility in the siting of buildings; e) To facilitate view sharing; f) To accommodate planting, including native vegetation and endemic trees;...... h) To maintain adequate space between buildings to limit impacts on views and vistas from private and public spaces; and.....

Open Space 33Mr Hugo agrees that the proposal to convert the existing concrete areas is an improvement however says that the proposal does not meet the numerical requirements for the provision of private open space, open space and soft open space (all of which are defined in the DCP), that the spaces provided are not usable. He says that as the proposal is retaining the existing building footprint in order to maximise the development it fails to provide for usable open space or sufficient soft open space. 34Mr Fleming disagrees and says that the provision of private open space adjacent to the living areas of the two lower floor units and balconies to the upper floor areas is, in terms of adaptation of an existing building appropriate and consistent with the NSW Residential Flat Design Code and satisfies the objectives of the control.

Density 35Mr Hugo says that the existing building is non-compliant with the density control of one dwelling per 250sqm of site area and no reduction in density is proposed, rather, the floor space increases so there is likely to be an increase in the number of persons living on the site. He says that this would increase the impacts on the adjoining properties in terms of demand for on street parking and visual and acoustic privacy. Mr Fleming disagrees and says that the development maintains the current density of four units on the land.

Precedent 36Mr Hugo says that approval of the proposal would set an undesirable precedent due to the level of variation to the development controls for the site and that the grant of consent would undermine public confidence in the planning system and would particularly set an undesirable precedent for properties located on or near the boundaries of different density sub-zones. 37Mr Fleming cites the Assessment Considerations of the DCP, which includes a notation that previous approvals do not create a precedent for an application for a similar form of development , and considers that the proposal is consistent with the objectives of the DCP and accordingly, warrants consent.

Site suitability and design quality 38The planners agree that this contention relates to the cumulative consideration of the DCP controls. Mr Hugo says that the scale of the existing development on the site and the lack of adequate provision of car parking, open space, soft open space, private open space and the existing density of the site is such that it is not appropriate to add additional floor area to the building and accordingly, the site is not suitable for the proposed development whereas Mr Fleming says that the proposed development satisfies the objectives of the council's planning controls and therefore is suited to the site.

Conclusion and findings 39The application involves the retention and refurbishment of an existing building. The council, in accordance with the provisions of clause 2.1.1 of the DCP, promotes the retention and adaptation of existing buildings rather that their demolition and replacement with new structures. At clause 2.2.1-2, consideration of applications that involve alterations and additions, the following applies: A development application to alter and add to a building will be taken to be that relating to a new building (i.e. all standards and controls of this plan will apply) where more than half of the existing external fabric of the building is demolished. The area of the existing external fabric is taken to be the surface area of all the existing external walls, the roof measured in pan form and the area of the lowest habitable floor. Where new development constitutes the erection of a new dwelling, all of the standards and controls of this plan will apply. 40The difference between the parties is whether the numerical controls of the DCP are exceeded to such an extent that the development should be refused. The council's position is that so many controls are not met that the application must fail. The applicant's position is that the existing building already fails to meet the current controls and accordingly, the application should be assessed against the objectives of the controls rather that strict adherence to the numerical controls and in accordance with the council's objective to retain and adapt existing buildings. 41The main controls that are not met are density, the side and rear boundary setbacks, wall height, number of storeys and FSR. The following table indicates the existing and proposed variations and compares those to the controls in the DCP. Control Required Existing Proposed Variation Density 1.3 units 4 units 4 units 2.7 units Side setback 2.226m 1.6 & 1.7m 1.6 & 1.7m 566-666mm Rear setback 8m 2.8m 2.8m 5.2m Wall height 6.5m 5.4m 6.79m 290mm Floor space ratio 0.6:1 0.785:1 1.03:1 0.43:1 No. of storeys 2 2 3 1

42The above table shows that the proposed building envelope is between 566 and 666mm wider and 290mm higher than that allowed under the DCP controls. In addition, it contains a third storey, which is agreed however, the impact of that storey is in dispute. Mr Hugo argues that the provision of that storey is prohibited by the DCP and Mr Fleming says that it is what is contemplated by clause 3.5.8 (rooms within the roof structure). It is that storey that contributes to the additional FSR. 43It is necessary to consider the height, bulk and scale of the building and determine whether, when assessed as a whole, the building achieves the objectives of the LEP and the DCP. Firstly, I consider the objectives of the LEP and find, on the evidence provided, that the application is consistent with both the objectives of the LEP and the policies and strategies for residential and community life. 44Ms Schofield for the council referred me to the decision of Tuor C in PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355 and the planning principle established with regard to FSR and building envelope controls. These principles are: i. FSR and building envelope controls should work together and both controls and/or their objectives should be met. ii. A building envelope is determined by compliance with controls such as setback, landscaped area and height. Its purpose is to provide an envelope within which development may occur but not one which the development should necessarily fill. iii. Where maximum FSR results in a building that is smaller than the building envelope, it produces a building of lesser bulk and allows for articulation of the building through setbacks of the envelope and variation in building heights. iv. The fact that the building envelope is larger than the FSR is not a reason to exceed the FSR. If it were, the FSR control would be unnecessary. 45The application differs from that proposed in PDE in that it is for alterations and additions to an existing building rather than for a new building and the additional storey is within a roof. Whilst the planning principles apply to either, it is important to consider the controls and the objectives and make a finding as to whether the controls and/or the objectives of those controls are met. 46Section 79C (1)(a)(iii) of the Act requires consideration of the provisions of the DCP. The proper approach to that task is that while not being determinative, the DCP must be considered as a "fundamental element" or a "focal point" of the decision-making process: Zhang v Canterbury City Council (2001) 115 LGERA 373. 47With regard to the DCP controls, the objectives for FSR and building height require consideration of whether the scale of development is consistent with the existing and desired character of the residential areas. In determining whether the application is "consistent with" I refer to the decision of Lloyd J in New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 where, at p25 he states: In applying cl 9(2) to the objectives of the zone, it is important to note that a development will generally be "consistent with" the objectives if it is not antipathetic to them: it is not necessary to demonstrate that a development promotes or is ancillary to these objectives, nor even that it is compatible with them ( Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 192 per Clarke JA, Schaffer Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 27 per Pearlman J) 48In this regard, I prefer the evidence of Mr Fleming and do not accept that the additional "visual bulk" cited by Mr Hugo has sufficient impact on the streetscape, existing or desired future character of the area to justify refusal of the application. This is particularly due to the relationship of the site to the adjoining residential flat building to the west, which has a larger footprint. For these reasons, I find that the application would be consistent with the objectives of the DCP with regard to the scale of the building and accordingly, I find that the application satisfies the objectives of the LEP and the objectives of the individual controls in the DCP in relation to height, FSR and setbacks. 49In addition to the controls listed in the table above, the numerical requirements for open space are not met however, it is agreed that the proposal represents an overall increase in area available for private open space, soft open space and open space. I agree with Mr Fleming that the extent of landscaping proposed improves the amenity of the site and also its visual presentation and streetscape. I do not accept Mr Hugo's view that the areas provided are not useable on the basis of numerical compliance only and therefore, this non-compliance is not grounds on which to refuse consent. 50In relation to parking, I do not accept Mr Hugo's contention that the development requires the provision of any on-site carparking. The application is for 4x2 bedroom units and as the site currently comprises the same unit mix, the council's DCP does not require any additional parking. 51Density of the application remains unchanged to that of the existing development and, whilst there is a numerical non-compliance with the DCP control, no change would occur. In addition, the objectives of the control are met. 52Council has raised the issue of precedent. The Court of appeal decision in Segal & Anor v Waverley Council [2004] NSWLEC 363 confirmed each merit appeal must be decided on its particular facts and this case is clearly distinguishable on its facts. Based on the reasoning of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 [2002] NSWLEC 75 if faced with an application for a proposed development which may not be objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration. The view of the site and the locality suggests to me that there is little likelihood of a precedent being established should consent be granted. The owner of property to the immediate west of the site may be encouraged to pursue an application similar to that proposed however, I do not consider that similar circumstances exist at other sites so as to undermine the council's planning intent for the area. To be clear, the precedent issue is not determinative of this appeal. 53The final contention is that of design quality and suitability of the site and I agree that the latter requires a cumulative assessment of the density and building envelope controls. The issue of design quality was not the subject of evidence based on the SEPP but rather consideration of the design principles of context, scale, built form, density, landscaping and amenity and how those controls were found in the DCP and were not met in numerical terms. I have considered the relevant objectives of the DCP, which is a fundamental element to determination of the application, and have concluded that the variation to those controls would be consistent with the relevant objectives. For that reason, I find that the site is suitable for the proposed development.

Orders 54Having considered the evidence provided, the objectives of the LEP and DCP, I make the following orders: (1)The appeal is upheld (2)Development consent is granted to DA 259/2010 for the construction of alterations and additions to an existing residential flat building and amendment to the strata plan of subdivision at Lot 2 DP 602980, No. 11 Pine Street, Manly subject to the conditions included in Annexure "A". (3)The exhibits, other than exhibits A, C and 7 are returned. Sue Morris Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2011

(2001) 115 LGERA 373

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