Benson McCormack Pty Ltd v Manly Council

Land and Environment Court (NSW)|2015-02-06

Solicitors: McKees Legal Solutions (Applicant) Marsdens Law Group (Respondent) File Number(s): 10653 of 2014

Introduction

SENIOR COMMISSIONER: A small sub regional centre is located at the intersection of Sydney Road and Condamine Street at Balgowlah. On the southern side of Sydney Road, to the east of the intersection with Condamine Street and between the end of the commercially zoned and constructed development and Boyle Street, there are five allotments on which residential development is located.

The proposed development

The development that is the subject of this appeal is proposed to be erected on two of the single allotments fronting Sydney Road between the commercial centre and Boyle Street. The two allotments (323 and 325 Sydney Road - the site) are those in the middle of the four single allotments shown in the above photograph.
Although refined during the course of the hearing to change the typology of the development as later discussed, the proposed built form remained unaltered. That which is proposed is the demolition of the existing dwellings and, in their place, construction of two built elements with an east/west orientation. The two elements are to be joined by a common central deck area. Excavated basement car parking is proposed - with the access driveway to be located along the western boundary of the site.
Each of the elements is proposed to be three storeys high with a fourth level located in the roof. The roof form, in each instance, is proposed to slope away from the relevant adjacent boundary to the north or south. Once constructed, the two elements are proposed to be on separate titles by stratum subdivision. The proposed stratum subdivision pattern also changed, slightly, during the course of the proceedings but nothing turns on this either.
The two proposed built form elements are intended to have quite distinct uses.
The rear element, containing 14 habitable spaces (boarding rooms) with an additional shared living area, is proposed to be a boarding house. The designation of this element of the development enables a proponent to take advantage of the beneficial and facultative provisions in Division 3 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP). By doing so, additional floor space is permitted to be approved beyond the floor space that would otherwise have been permitted had this element of the development been required to comply with the floor space ratio provisions contained in the Manly Local Environmental Plan 2013 (the LEP).
The boarding house element is proposed to be constructed on the southern portion of the site and set back 7 m from the site's boundary with the neighbouring single residences located to the south, residences having frontages to Bentley Street. The non-compliance of this southern setback with the control contained in the Manly Development Control Plan 2013 (the DCP) adopted by Manly Council (the Council) and the consequential incremental change in the extent of overshadowing of the open space at the rear of relevant Bentley Street fronting residences is one of the issues in contention in these proceedings.
The front element of the development was originally proposed as a residential flat building containing 9 single bedroom dwellings with the bedrooms of the units on the third storey proposed to be mezzanine spaces located within the roof structure. Whether these spaces are, in definition of terms, mezzanines or attics does not, in my view, require resolution in these proceedings. Each of the units is proposed to have a north facing balcony addressing Sydney Road.
To understand the presentation of this element of the proposal (a matter critical to a contested issue in the proceedings), it is appropriate to reproduce an architectural impression of the proposed development. This impression, an oblique view toward the proposed development's north-western corner, is taken from the plans for which development consent is sought (Exhibit C).
Because, on one construction of the proposal, the land area that would be regarded as allocated to the residential flat building at the Sydney Road frontage of the proposal was inadequate to provide a proper foundation for the floor space ratio sought for that building, Mr McKee, solicitor for the applicant, sought leave to amend the application to bring the residential flat building within the scope of the SEPP. This amendment was to dedicate two of the units within this building to be used as affordable rental housing for the 10 year period required by the SEPP. Mr Seton, solicitor for the Council, did not oppose this application and leave to amend in this regard was granted.
The amended proposal was thus not only permissible with consent (as it had been from the outset as boarding houses and residential flat buildings are permissible uses within the zone within which the site is located) but the proposal no longer faced any impediments concerning floor space ratio compliance or compliance with height controls (as, since the appeal had been filed, amendments to the plans for which leave had been granted had rendered the proposal compliant with the relevant height restriction brought into play by the LEP).

Issues

There were, in the final analysis, three matters that were pressed by the Council as warranting (or contributing to warranting) refusal of the proposal. These were:

The proposed development was not compatible with the locality where it was proposed to be erected;
The front and rear setbacks were non-compliant with the relevant controls; and
The impact on the solar access of the private open space enjoyed by a number of the residences fronting Bentley Street, to the south, was unacceptable.

The reasons for each of these bases for objection to the proposal are set out in the relevant subsequent element of this decision.

The site inspection

The hearing commenced with a site inspection that included the properties fronting Sydney Road on either side of the site and of the rear private open space of one of the properties fronting Bentley Street to the south of the site. During the course of the site inspection, I was accompanied by the legal representatives of the parties and those advising and/or instructing them.
During the inspection of the neighbouring property to the west and of the Bentley Street fronting property, we were also able to observe the private open space at the rear of other relevant properties fronting Bentley Street (properties that were not, themselves, visited).
Prior to undertaking these inspections, I heard evidence given informally by residents of the properties to be inspected and from two office bearers of the relevant local precinct committee formed by the Council. Material that had been read during the course of the objectors' submissions was subsequently tendered as attachments to a list of those who had given such evidence. This material became Exhibit 1.
Although the SEPP contains provisions, in the relevant Divisions (Division 2 for residential flat buildings incorporating affordable rental housing and Division 3 for boarding houses), that potentially set aside a number of council controls, these provisions are only engaged if the relevant criteria for the triggering of these provisions are satisfied. When satisfied, a number of council controls no longer have any role play. In this instance, such satisfaction does not occur and relevant controls of the Council in the DCP concerning front and rear setbacks and impact on solar access to neighbouring properties are brought into play for my consideration.
As to the emphasis I should give to the DCP, Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at para 75, three propositions emerge.

First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered;
Second, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan; and
Third, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative.

Further, the mere fact that a proposal meets the requirements of the DCP does not automatically mean that Development Consent will be granted. However, if a proposal does not meet the DCP's requirements, the Court may still grant consent, in appropriate cases, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Environmental Planning And Assessment Act 1979 (the Act).
Although s 79(3A) of the Act contains a provision that, arguably, softens the approach set out by the Court of Appeal in Zhang, there was no suggestion that this provision is engaged in the present proceedings.

Compatibility

The SEPP contains provisions in each of the Divisions relevant to the elements of this proposal. In each Division, the provision requires consideration of a proposal's compatibility with the character of the local area. The provision in Division 2 concerning the residential flat building element is contained in cl 16A whilst that in Division 3 dealing with boarding houses is contained in cl 30A. The two clauses are in identical terms and read as follows: A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
Unsurprisingly, given that this issue was, in effect, the principal contested issue between the applicant and the Council, there was vigorous disagreement between the consultant planners (Mr Layman for the Council and Mr Minto for the applicant) as to what might be defined as the local area; what was to be regarded as the character of that area once defined; and, having undertaken those two steps, whether or not the proposal is compatible with that character.
In this context, there are two preliminary observations appropriate to be made.
First, at least as I understood the tenor of the evidence given both orally and in writing by Mr Layman and Mr Minto, the character of the area encompassed not merely that which is presently to be observed but also what is the desired future character of the area as is able to be discerned from a consideration of the Council's relevant planning controls.
Second, the test of "compatibility" is distinctly different from the concept of "consistency" with the character of the local area. Compatibility is a less rigid and less demanding standard of assessment than that which is engaged by a test of consistency.
Mr Layman and Mr Minto were each asked to mark, on a copy of a copy of the air photo reproduced above, what they considered to be the local area for the purposes of the assessment triggered by the provisions of the SEPP. They did so and this marked up air photo became Exhibit 5. It is reproduced below with the area proposed by Mr Minto being marked in red and the (smaller) area marked by Mr Layman in black:
At this point, it is appropriate to note that, although the allotments on the southern side of Sydney Road to the east of the Sydney Road/Condamine Street commercial centre have the same zoning as the allotments to their rear fronting Bentley Street, the Height of Buildings Map that forms part of the LEP makes it clear that, although the allotments fronting Sydney Road and Bentley Street might be regarded, at the present time, as generally containing development of a similar height and scale, the allotments fronting Sydney Road are anticipated, for the future, to have higher development erected upon them as is shown on that map. As earlier observed, the proposal in these proceedings is now compliant with the height limit shown on that map.
Despite the differences (to which I will later return) between Mr Layman and Mr Minto on the question of character, there were a number of relevant matters of agreement between them. These may be shortly stated.
First, they agreed that, because of the comparatively more recent and modestly more intense nature of the development immediately to the west of the site (the two townhouses), it was unlikely that that site would be redeveloped in the foreseeable future.
Second, with respect to the site to the east (the single residence between the site of the proposed development and the townhouse/unit development on the corner of Boyle Street), this site would be likely to be redeveloped in the foreseeable future and that such redevelopment would be taller and more intense than the existing single dwelling located on it.
Their positions, however, beyond that measured level of agreement are in stark contrast.
As is required for such proceedings, Mr Layman and Mr Minto had conferenced prior to the hearing and prepared a joint expert report that canvassed the matters in contention (the contentions being part of the Council's Amended Statement of Facts and Contentions - Exhibit 2); identified those aspects of those contentions where they disagreed; and set out the reasons for those disagreements. The joint expert report was Exhibit 4 in the proceedings.
Although the joint expert report contained a detailed discussion of the matters raised in the Council's Contention 6 concerning incompatibility with the character of the area (a contention that was supported by eight particulars), it is unnecessary, in my opinion, to set out the eight particulars and the written evidence given by Mr Minto and Mr Layman in response to them - written evidence that was, also unsurprisingly, evidence expressing opinions held by Mr Minto rebutting each of the particulars and opinions held by of Mr Layman supporting them.
During the course of their concurrent oral evidence, Mr Layman and Mr Minto explained, further, the reasons why each of them held the view that they had expressed (Mr Layman reaffirming his view that the proposal was not compatible with the character of the local area with Mr Minto disagreeing and amplifying his reasons for assessing the proposal as, in fact, being compatible with that character).
Although separately pleaded as Contention 5 by the Council, issues of visual bulk and streetscape emerged, in my view, as the critical elements to be considered against cll 13A and 30A of the SEPP and whether the proposal is compatible with the character of the local area.
For the purpose of this discussion, I indicate, at the outset, that I do not consider that, in the final analysis, it matters whether the local area is that proposed by Mr Layman or the more expansive area proposed by Mr Minto. As is discussed in the remainder of this section, on an analysis based on the local area as defined by Mr Minto, the residential flat building element of the proposal is incompatible with the character of the local area (with respect to its direct Sydney Road frontage presentation) and, thus, does not warrant approval.
The Council's Contention 5: Visual Bulk and Streetscape was pleaded in the following terms: The development application should be refused because the proposal displays excessive visual bulk and scale and is incompatible with the streetscape. Particulars (a) The development application lacks suitable modulation, proposes excessive visual bulk and provides an insufficient and inadequate front setback. These design elements result in an adverse impact on the streetscape. (b) The proposed development is substantially taller than the existing surrounding buildings and the proposed scale and height provide an abrupt and unacceptable increase from the surrounding buildings. (c) Having regard to the excessive visual bulk, that the proposed building will have an adverse visual impact when viewed from residential properties bordering the subject site, and will be highly visible from the public domain in Bentley Street. (d) Having regard to the excessive bulk and scale, the proposal is not consistent with: (i) Clause 1.2(a)(i) and (iv) and (b)(ii) of the Manly LEP 2013 (ii) Objectives 1), 2), 3), 5) in clause 3.1 of the Manly DCP 2013 (iii) Clause 3.1.1.1 of the Manly DCP 2013
Mr Minto and Mr Layman disagreed in the joint expert report and in their oral evidence on this contention. It is unnecessary to reproduce the relevant extracts from the joint expert report on this point as they were generally reflected in the experts' oral evidence.
Although Mr Minto sought to draw support, in his oral evidence, from the nature and form of the buildings to the west in the commercial precinct, there is no doubt that the presentation of the form of the proposed residential flat building to Sydney Road is distinctly different and residential in character to that of the form in the commercial precinct (whether or not there is shop top in any of the development is, in my view, irrelevant).
The open nature of the balconies ensures that the building will be read as residential and not as commercial.
Similarly, despite the architectural device of a modestly dimensioned recess at the centre of the built form (as can be seen in the earlier architectural impression), the built form will present as a monolithic development across the total width of the site. The fact that the proposal is to be served by a single driveway to basement car parking is, in my assessment, a neutral factor in this analysis.
It is clear from the architectural impression that the nature of the balcony forms (forms which are the elements that contribute, in the Council's submission, the non-compliance with the front setback control - discussed below) are not unobtrusive but are, rather, heavy elements in the presentation of this facade in a streetscape context.
Although, on the applicant's case, the proposal is compliant with the front and side setbacks and height, it is acknowledged that the rear setback control is not met and thus, at least at the rear of the proposal, there is non-compliance with the envisaged maximum building envelope for the site. However, ignoring the rear non-compliance for the moment (although it is necessary to return to it later concerning the impact on the neighbouring properties on the south), it is appropriate to observe (as has been observed many times in proceedings such as these) that permitted building envelopes are limits to development and are not entitlements. Whether or not a development should be permitted to go to any or all of the boundaries of an envelope defined by the relevant controls can only be determined after consideration of all other relevant potential impacts of such a development.
In this case, even allowing for some character cues to be taken from the commercial development, there is nonetheless a distinct change in character evidenced by the zone boundary. The fact that, at the present time (and there will be for the foreseeable future), a lower scale two townhouse development on a single allotment between the site and the commercial development will make this proposed development, with its uniform and unstepped facade for its first three storeys, distinctly different from and out of character with that which is presently on or likely to be on that site to the west.
To the east, the likely nature of redevelopment of the property immediately to the east means that the likely near future redevelopment of that site warrants being given significantly greater weight than that which is currently erected on the site. Indeed, in my view, except to the extent that overshadowing of the existing private open space at the rear of this allotment might have warranted [but did not, in the final analysis require] some consideration, that which is presently erected on the site does not warrant weight of any significance in these proceedings.
As the proposed development for the site and the existing townhouse/unit development on the corner of Boyle Street would necessarily confine any redevelopment of the allotment to the east of the site to one that was confined to that site, the nature of a potential redevelopment (as discussed by Mr Layman and Mr Minto) would necessarily be of a different presentation to the streetscape of Sydney Road (if only because of the constraints imposed by its narrower, single allotment width). Even if (in what I consider to be an unlikely event) a future redevelopment of that site were to have a height and vertical facade approved of a similar type to that here proposed, the necessity to provide vehicle access when coupled with the constrained width of that site would result in a presentation distinctly different to Sydney Road to that here proposed.
Although the future character of the area will be significantly informed by the additional height envisaged by the Council's controls, nonetheless I do not discern anything that would promote a streetscape presentation of the bulk and form of the façade of the residential flat building element proposed at the front of the site.
Far from being compatible with the character of the local area, whether on a present day or on a desired future character basis, this development would be not merely incompatible with that character but strongly discordant with it. For that reason, I am unable to be satisfied that the residential flat building element of the proposal is capable of being approved after undertaking the consideration of it mandated by cl 13A of the SEPP.
As the proposed development is a package, it is unnecessary, in my view, to undertake a separate analysis of whether or not the boarding house element satisfies cl 30A of the SEPP. It is sufficient, in in my view, to observe that the factors that lead to the conclusion that the residential flat building is not compatible with the present or desired future character of the local area are absent from the necessary analysis of the rear element. As a consequence, in the context of the present application, I do not conclude that the boarding house element is not compatible with the character of the local area either at present or in the future.
Having said that, however, I specifically observe that that conclusion is solely reached in the context of the present application where the rear element is significantly obscured from viewing from Sydney Road by that which is proposed to be in front of it. If this were not the position and some hypothetical analysis needed to be undertaken in a different context, such an analysis would need to be undertaken based on the facts and circumstances then applicable. To offer advice or to speculate on that, through the lens of this proposal, would be inappropriate (see comments of Bignold J in Manzie v Willoughby City Council (1996) NSWLEC 26).

Tinkering with the Sydney Road presentation

Mr McKee invited me to contemplate taking an "amber light" approach if I were to conclude that the present proposed presentation was unacceptable but that it could be rectified if there were to be some changes to the nature of the presentation of the balconies to the Sydney Road frontage. I must decline his invitation. I am unprepared to do so for two separate and distinct reasons:

First, mere redesign of the balconies facing Sydney Road would not be sufficient to rectify the unacceptability of the proposal in its streetscape; and
Second, even if it was sufficient, I would not be able to set out, with appropriate specificity, what changes would be required to effect such an outcome.

The proposed front setback

Although there was a dispute between the parties concerning how the front setback requirements should be construed and the extent to which the proposed development might or might not have been compliant with those requirements, I am satisfied that it is unnecessary to make any precise finding on this point. I have so concluded because it is not the extent of the front setback or what landscaping might or might not be able to be established within that setback that plays a determinative role in these proceedings.
For the reasons earlier outlined, it is the presentation in the streetscape of the proposed built form of the residential flat building element that is relevant rather than the extent that that facade is setback from the Sydney Road boundary.
I note that Mr Minto proposed that it might be possible to provide a modest increase to this setback (of some 650 mm, on my note). Such an adjustment is of no consequence as it would not ameliorate the consistent, heavy vertical presentation to Sydney Road.

The proposed rear setback and its impact

Controls concerning setbacks are contained in Part 4 of the DCP. The specific control concerning rear setbacks is set out in 4.1.4.4 of the DCP and requires that the distance between any part of a building and the rear boundary must not be less than 8 m. In the present application, the setback of the built form of the boarding house element is 7 m from the southern boundary. In particular, as it is the impacting element on the solar access to the private open space of the properties to the south fronting Bentley Street, the leading edge, to the south, of the third storey is set back 7 m at that point.
For any redevelopment of the site, particular care will always need to be taken, in any design, of the potential for overshadowing of properties to the south - as these properties fronting Bentley Street are significantly downslope and, speaking as a matter of generality, have those elements of their private open space that currently enjoy sunlight at the winter solstice at levels that are generally lower than the site (and, in at least the instance of 8 Bentley Street, at a significantly lower level than the site).
The controls concerning overshadowing are contained in 3.4.1.1 Overshadowing Adjoining Open Space in the DCP. The relevant control is the first of the two controls in this provision and reads: New development (including alterations and additions) must not eliminate more than one third of the existing sunlight accessing the private open space of adjacent properties from 9 AM to 3 PM at the winter solstice (21 June)
A comprehensive set of shadow diagrams was provided (Exhibit D) showing the extent of the increased overshadowing that would be caused by the proposed development on other residential properties in the area (bounded by the commercial precinct to the west, Sydney Road to the north, Boyle Street to the east and Bentley Street to the south). The shadow diagrams, relevantly, showed the increase in overshadowing by the proposed boarding house element at one hour intervals on the winter solstice (21 June) between 9 AM and 3 PM, this being the relevant period requiring to be considered by the DCP.
In the joint expert report, Mr Minto expressed the view that the proposal satisfies the relevant provisions of the DCP. He had prepared a table that formed Attachment C to the joint expert report - a table which he described as providing an assessment based on the applicant's shadow analysis of the existing and proposed sunlight access to the principal private open space of the nominated dwellings. In this context, the nominated dwellings are those in the area I have noted above
It is unnecessary to set out, in detail, a property by property analysis of the additional overshadowing as I am satisfied that consideration of only the impact on 4 Bentley Street is necessary. This property is one of the ones that were inspected during the course of the site visit. Mr Minto's analysis of the impact on this property was that compliant solar access would be retained for the private open space at the rear of this property in a fashion consistent with the requirements of 3.4.1.1(a) of the DCP.
On the other hand, concerning 4 Bentley Street, Mr Layman expressed the opinion in the joint report that: …………The severest impacts are on 4 and 6 Bentley Street. Number 4 Bentley Street is impacted by 1/3 to more than a third of sunlight eliminated between 10 AM and 3 PM on June 21.
In their oral evidence, both experts adhered to their broad written conclusions on this topic.
I have carefully examined the element of the shadow diagrams in Exhibit D showing the additional overshadowing of 4 Bentley Street. This information is shown on Drawings A-1230 Issue B to A-1233 Issue B. The analysis in the table on Drawing A-1233 concerning 4 Bentley Street is of no assistance as it provides calculations based on the total area of private open space rather than being confined to the percentage increment of overshadowing impact on those areas of that private open space that currently receive sunlight at the winter solstice.
Although Mr Minto considers that the impact on this property is acceptable, a close examination of the relevant sheets in Exhibit D leads me to the conclusion that the opinion expressed by Mr Layman with respect to 4 Bentley Street may cautiously err on the conservative side. From my examination of these diagrams, I conclude that the DCP control is not satisfied for 4 Bentley Street.
Close examination of the relevant shadow analyses referred to above puts me in a position where I certainly cannot be satisfied, as a Zhang-based approach to the DCP requires, to the relevant degree of comfort, that the proposed additional overshadowing of the existing sunlight enjoying private open space at 4 Bentley Street does not breach the overshadowing control in 3.4.1.1(a) of the DCP. In this regard, the applicant bears a persuasive burden that I cannot conclude has been discharged.
In this instance, where it is clear that there would be an amelioration of the overshadowing if the rear setback of 8 m of the leading southern edge of the uppermost storey of the development were complied with (and would, in my assessment, remove any possibility of non-compliance with the overshadowing control in the DCP), it is not acceptable to disregard this impact.
Given that a rear setback compliant development would satisfy the overshadowing control in the DCP, the only conclusion that it is reasonable to draw is that the design does not appropriately respect the desired intention, (stated in the first of the objectives to the section of the DCP dealing with this topic - 3.4.1 Sunlight Access And Overshadowing) which is to provide equitable access to light and sunshine.
I should observe that the control in 3.4.1.1 is not an inherently unreasonable one (although if I thought that it was, it would not be appropriate to express that opinion - see Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338).
As consequence, it is not unreasonable to expect that any redevelopment on the site would satisfy the terms of this control. In circumstances where a rear setback compliant proposal would do so and a non-compliant proposal (as is that for which approval is sought) does not, this renders the boarding house element of the proposed development unacceptable and warranting refusal.

Conclusion

I have concluded, in summary, that the proposed affordable rental residential flat building proposed for the front element of the site is not compatible with the current or likely future character of the local area. Having undertaken this consideration as required by cl 13A of the SEPP and found the proposed development to be unacceptable, I am satisfied that, on this basis, approval could not be granted to the development.
With respect to the non-compliant setback from the southern boundary of the site to the proposed boarding house element of the development, I am satisfied that the impacts of the non-compliance causing extension of the overshadowing of the private open space at the rear of 4 Bentley Street to the south is, alone, sufficiently severe to warrant refusal of the proposal.
There is no good reason why a development on the site could not comply with that rear setback requirement. This impact reinforces my view that the overall totality of the development proposes too much to be able to be accommodated on this site.
If these two allotments are to be developed together, that which is proposed for the site will need to be more responsive to the character of the local area and exhibit more design courtesy to the neighbours to the south. Having said that, it is clearly not my place to provide any specific commentary on how that might be achieved.

Orders

The orders of the Court, therefore, are: 1. The appeal is dismissed; 2. Development Application No. 130/2014 for the erection of an affordable rental housing residential flat building and a boarding house (together with the stratum subdivision of the resultant development into two lots) at 323 and 325 Sydney Road, Balgowlah is determined by the refusal of development consent; and 3. The exhibits, other than Exhibits A and 2, are returned. Tim Moore Senior Commissioner 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: 16 February 2015

(2009) 172 LGERA 338

(2001) 115 LGERA 373

At a glance

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Cases Cited (4)

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