Bombell v Manly Council

Land and Environment Court (NSW)|2014-03-27

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 50/2013 for the demolition of existing structures and the construction of a three storey house, pool and landscaping (the proposal) at 121 North Steyne, Manly (the site), by Manly Council (the Council). 2The appeal was subject to mandatory conciliation on 22 October 2013, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached during the conciliation phase, the conciliation conference was terminated on 5 December 2013 pursuant to s 34(4) of the LEC Act.

The site and its context 7The site is located on the northern corner of North Steyne and Pacific Street, Manly, with a frontage to North Steyne of 8.74m and a frontage to Pacific Street of 33.185m and an area of 267.3sqm. The site contains a two storey building with a single garage at the western end, accessed from Pacific Street. 8The site is at the southern end of the block fronting North Steyne, bounded to the north by Ceramic Lane and to the south by Pacific Street. There are five buildings, including the site, fronting North Steyne on this block. The site and 122 North Steyne, to the north of the site, back onto 4 and 4A Pacific Street, a two storey duplex, on the corner of Pacific Street and Pine Lane. The dwelling on the upper level (referred to in this judgment as 4A Pacific Street) has a terrace, opening from the living room, on the eastern side of the building, which overlooks the site. The three properties to the north of 122 North Steyne, 123, 124 and 125 North Steyne, back onto Pine Lane. 9On the western side of Pine Lane is a large, contemporary, five storey residential flat building, occupying the block between Pacific Street and Ceramic Lane, at 6-12 Pacific Street. 10On the southern side of Pacific Street, opposite 6-12 Pacific Street, is a large, contemporary, nine storey residential flat building, at 9 -17 Pacific Street.

Background and the amended proposal 11DA 50/2013 was lodged on 13 March 2013. The proposal is designed by Popov Bass Architects. 12The proposal before the court has been amended since it was lodged with Council and refused by the Manly Independent Assessment Panel. The amended proposal consists of the following:

Ground Floor: entry (accessed from North Steyne), rumpus room, bedroom and bathroom, laundry, store, plant and a two car garage (accessed from Pacific Street);
Level 1: open living areas including living, dining and kitchen, guest bathroom, terrace and pool;
Level 2: four bedrooms, bathrooms and study. 13The amended proposal has a flat roof, with a skillion roof over a north facing skylight above the stair on the northern side and eight solar panels tilted to the north on the southern side of the roof. 14The amended proposal consists of a masonry base to the building, enclosing the ground floor and pool; a lightweight, glazed, recessed first floor, Level 1; and a floating, sculptural second floor, Level 2, with curved fins along the southern boundary, which cantilevers out over the lower levels to the extent of the southern boundary.

Planning Framework 15The site is with the No. 2 Residential Zone, pursuant to the Manly Local Environment Plan 1988 (LEP 1988). The proposal is permissible with consent. The relevant objectives of the zone include: (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 16Clause 17 of LEP 1988 requires that Council not grant consent to a development unless it is satisfied that the development will not have a detrimental effect on the amenity of the FSPA. 17Clause 19 of LEP 1988, 'Development in the vicinity of an item of the environmental heritage', requires that Council not grant development consent for a development in the vicinity of an item of environmental heritage unless it has made an assessment of the effect which the development will have on the significance of the item and its setting. The proposal is in the vicinity of two heritage items, Manly Beach Reserve and a house at 118 North Steyne. There are no heritage contentions raised by Council. 18Manly Local Environment Plan 2013 (LEP 2013) commenced on 19 April 2013 and DA 50/2013 was lodged on 11 March 2013. Clause 1.8A of LEP 2013 is a savings provision requiring development applications, made before the commencement of the plan and not finally determined, to be determined as if the plan had not commenced. Section 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (EPA Act) requires that any proposed instrument that is or has been the subject of public consultation be a mandatory, relevant consideration in evaluating the proposal (Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 para 29). 19Under LEP 2013, the site is zoned R3 Medium Density. The proposal is permissible with consent. The relevant objectives of the R3 zone are as follows: · To provide for the housing needs of the community within a medium density residential environment. · To provide a variety of housing types within a medium density residential environment. · To encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment. 20Clause 6.9 of LEP 2013 includes the following in relation to the Foreshore Scenic Protection Area, which includes the site (Foreshore Scenic Protection area Map Sheet FSP_005 LEP 2013, exhibit 6): (1) The objective of this clause is to protect visual aesthetic amenity and views to and from Sydney Harbour, the Pacific Ocean and the foreshore in Manly. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered the following matters: (a) impacts that are of detriment to the visual amenity of harbour or coastal foreshore, including overshadowing of the foreshore and any loss of views from a public place to the foreshore, (b) measures to protect and improve scenic qualities of the coastline, (c) suitability of development given its type, location and design and its relationship with and impact on the foreshore 21Under LEP 2013, the site has a maximum building height of 13m (Height of Buildings Map Sheet HOB_005 LEP 2013, exhibit 6) and a maximum FSR of 1.5:1 (Floor Space Ratio Map Sheet FSR_005 LEP 2013, exhibit 6) and the parties agreed that the proposal complies with these development standards. 22The proposal is subject to the relevant objectives and controls of Manly Development Control Plan for the Residential Zone 2007 - Amendment 2 (DCP 2007). 23The following relevant definitions and interpretations are included in the Dictionary of DCP 2007: Open space means that part of a site which is designed or designated to be used for active or passive recreation, access ways or as a garden. It does not include the area of roof top terraces. Open within a development of more than one dwelling may comprise both communal and private open space. Land must have a minimum horizontal dimension of 3m in all directions and a minimum area of 12sqm to be considered open space. Open space provided above ground level must have a minimum horizontal dimension of 3m in all directions. Open space is classified as hard or soft. Hard open space means that portion of open space covered by paving or other similar materials and includes: a) barbeque areas b) pergolas c) swimming pools, which are not to contribute to more than 30% of open space d) un-enclosed pedestrian walkways e) access paths f) un-turned clothes drying areas Soft open space means that portion of open space that is grassed or planted or is retained as bushland, is not covered by paving or similar material and is capable of absorbing stormwater runoff. Soft open space includes fixed masonry planter boxes with a minimum soil depth of 1000mm and a minimum horizontal soil dimension of 600mm which forms part of open space and is required to be a 3m or greater width. Private open space means part of land or a building (such as a balcony or terrace) which is located adjacent to living areas, intended for the exclusive use of the occupants of the dwelling and located and designed so as to offer visual privacy to the occupants. 24The relevant objectives of DCP 2007, at cl 1.2, are as follows: d) To increase the availability and variety of dwellings to enable population growth without having adverse effects on the character, amenity, and natural environment of the residential areas; f) To protect the amenity of existing and future residents; h) To minimise the impact of new development, including alterations and additions, on privacy, views, solar access and general amenity of adjoining and nearby residences; i) To provide for view sharing for both existing and proposed development; j) To maximise the provision of open space for all residential development; o) To encourage a responsible development approach resulting in design of architectural merit that interprets and complements site characteristics, streetscape and the surrounding built and natural environment; q) To ensure compliance with the objective of each standard; 25Subclauses 2.4.14, 15 and 16 of DCP 2007, under 'Building form', state that open space terraces or pools should not dominate adjoining sites; that careful consideration should be given to minimising any loss of sunlight, privacy and views of neighbours and that the apparent bulk and design of a development should be considered and assessed from surrounding public and private view points and that it should not detract from the scenic amenity of the area. 26Subclauses 2.4.21 and 22 of DCP 2007, under 'Fences and walls', state that the siting, height and form of boundary fences and walls should reflect those dominant in the locality and adjacent properties and should not be erected where they would be in conflict with the character of the locality. 27In assessing development applications, Council is required to apply the controls in a consistent manner while balancing the interests of the applicant with the community as a whole and it is therefore expected that development proposals will by and large comply with the numeric controls. Any departures need to satisfy the DCP objectives and provide a more desirable environmental outcome (Assessment Considerations p 24 DCP 2007). 28The site is within sub-zone 1 (red), as defined by the density sub-zone map and sub-zone 1 has the following development standards, relevant to this proposal (table 1):

FSR 1.5:1;
45% open space with a minimum 3m dimension;
25% of open space as permeable area;
wall height 12m (plus 3m for roof structure);
front setback 6m; side 1/3 wall height and rear 8m. 29Subclause 3.4.1 of DCP 2007 'Floor Space Ratio' includes the following relevant objectives: a) To assist in controlling the bulk of buildings; 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. 30Subclause 3.5.2 is the control for the maximum wall height on level sites, measures to the underside of the eaves to the topmost floor. In density sub-zone 1, which includes the site, the maximum wall height is 12m. In density sub-zone 2, the maximum wall height is 9m and in the remaining density sub-zones, the maximum wall height is 6.5m. Residential Density and Height Sub-Zone Map of DCP 2007 shows that density sub-zone 1 includes the properties fronting North Steyne, density sub-zone 2 includes a narrow strip of properties behind the properties fronting North Steyne and density sub-zone 3 includes a large area of properties behind density sub-zone 2. 31Clause 3.6 of DCP 2007, 'Setbacks' includes the following relevant objectives: a) To maintain and enhance the existing streetscape; b) To provide privacy; c) To provide equitable access to light and sunshine; 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. 32Subclause 3.6.4 of DCP 2007, 'Side setbacks', requires a setback between a side boundary and any part of the building to be 1/3 of the wall height, to provide sufficient access to the side of properties to allow for property maintenance, planting of vegetation and sufficient separation from neighbouring properties. For secondary street frontages, on corner allotments, the side boundary setback standard will apply unless a prevailing setback exists. In such cases, the prevailing setback of the neighbouring properties shall be used and architecturally, the building shall address both streets. 33Subclauses 3.6.7 and 8 of DCP 2007 state that rear setbacks must allow space for planting of vegetation, including trees, other landscape works and private open space and that the rear setback shall not be less than 8m. 34Clause 3.7 of DCP 2007, 'Open Space and Landscaping' includes the following relevant objectives: Open space and landscape design is a significant component in ensuring developments are environmentally sustainable. Proper planning and careful design can provide for the preservation of natural vegetation and wildlife habitat, the provision of recreation opportunities and contribute to stormwater management. a) To provide open space for the recreational needs of the occupier and provide privacy and shade; c) To encourage appropriate tree planting and maintenance of existing vegetation; d) To enhance the amenity of the site, streetscape and surrounding area; e) To retain and augment remnant populations of endemic native flora and fauna; h) To maximise water infiltration on-site and minimise stormwater runoff; i) To maximise the landscape areas. 35Controls for open space and landscape, at subclause 3.7.2 of DCP 2007, relevantly include the following: a) Land must have a minimum horizontal dimension of 3m in all directions and a minimum area of 12sqm to be considered as open space; b) Swimming pools shall not contribute to more than 30% of the total landscape area; c) If it can be demonstrated that there will be no loss of amenity to adjoining residents, up to 25% of open space can be provided above ground level by verandahs, balconies and terraces, providing these areas are not enclosed. In sub-zone 1, this figure may be increased to 30%, d) For multi-dwelling developments, including residential flat buildings, this figure may be increased to 40%; e) Open space provided above ground level must have a minimum horizontal dimension of 3m in all directions; h) Soft open space is to be capable of supporting new endemic tree species that are typically expected to reach a height of 10m, with minimum tree numbers in accordance with Table 6. 36Table 6 of DCP 2007 specifies that 1 endemic tree is to be provided on the site (based on the density sub-zone of the site and the site area). Trees should not be positioned where they will, at maturity, interfere with the views from neighbouring and nearby dwellings. 37Clause 3.8 of DCP 2007, 'Swimming Pools, Spas and Water Features', has the following objectives, at subcl 3.8.1: a) To be located to minimise the impact of filter noise on neighbouring properties; b) To be located and designed to maintain the privacy (visually and aurally) of neighbouring properties; c) To be appropriately located so as not to adversely impact on the streetscape or the established character of the locality; d) To be integrated with landscaping. 38The relevant controls for swimming pools, at subcl 3.8.2, are as follows: a) Swimming pools and spas shall be built on or in the ground and not elevated more than 1m above natural ground level; b) This height may be varied if it can be demonstrated the pool and its curtilage would not detract from he amenity of character of the neighbourhood; d) Generally the setback of the outer edge of the pool/pa concourse from the side and rear boundaries shall be at least 1m, with the water line being a minimum of 1500mm from these property boundaries; e) If a pool or spa is proposed to extend more than 1m out of the ground, the setback of the outer edge of the pool concourse from the side boundary must be equivalent to the height of the concourse above existing ground level. In such situations, appropriate landscape works will be required to protect the amenity and privacy of adjacent properties. 39Clause 4.2 of DCP 2007, 'Privacy and Security', includes the objective of mitigating direct viewing between outdoor living areas of adjacent buildings, at subcl 4.2.1(c). 40Clause 4.3 of DCP 2007, 'Maintenance of Views', has the following relevant objectives: a) To maintain continued access to existing views to the city, harbour, ocean, bushland, open space and recognised landmarks or buildings from both private property and public places (including roads and footpaths); b) To minimise loss of views from adjoining or nearby properties and public places, whilst recognising development may take place in accordance with the other provisions of this Plan; and c) To maintain and share views with existing and future Manly residents. 41The relevant controls for the maintenance of views, at subcl 4.3.2, are as follows: a) The design of any development is to minimise the loss of views from neighbouring and nearby dwellings and from public spaces. b) Views between and over buildings are to be maximised and variations to side boundary setbacks, including zero setback will not be considered if they contribute to loss of primary views from living areas. 42DCP 2007 adopts the Land and Environment Court's planning principle for view assessment, at Figure 14 (Tenacity Consulting v Warringah [2004] NSWLEC 140 pars 26-29) (Tenacity planning principle). The Tenacity planning principle is as follows: 26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. 27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. 28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. 29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. 43Clause 4.4 of DCP 2007, 'Streetscape and Fences', has the following relevant objectives at subcl 4.4.1: b) To minimise any negative visual impact of walls and fences on the street frontage; c) To ensure all fences and walls complement the identified streetscape; 44Subclause 4.4.2 of DCP 2007 includes the following relevant controls for the streetscape: a) Building height at the street frontage and building alignment shall maintain a compatible scale with adjacent development, whilst having regard to this Plan's height controls; and b) Buildings and fences should be designed to complement and/or visually improve existing streetscapes through innovative design solutions. 45Clause 5.8 of DCP 2007, 'Development in the Foreshore Scenic Protection Area', requires that the affect of the proposal on views of the harbour or ocean from any road, park or land zoned for open space be considered and includes the following relevant requirements, at subcl 5.8.2: a) Minimise the contrast between the built environment and the natural environment; b) Maintain the visual dominance of the natural environment; c) Maximise the retention of existing vegetation.

Evidence 46The hearing commenced with a view of the site, a view of North Steyne to the north and south of the site and a view of the site from the following neighbouring residences:

4A Pacific Street
24/6-12 Pacific Street (Level 3)
32/6-12 Pacific Street (Level 4)
8/9-17 Pacific Street (Level 3)
11/9-17 Pacific Street (Level 4)
14/9-17 Pacific Street (Level 5)
18/9-17 Pacific Street (Level 6) 47Eight resident objectors provided evidence at the commencement of the hearing. They are each concerned that the proposal will interfere with their views, due to the height of the amended proposal and its non-compliance with setbacks. They are also concerned that the height of the proposal may create a precedent for the rest of the properties fronting North Steyne on the block bounded by Ceramic Lane and Pacific Street, which would further impact on their views.

Expert evidence 48Expert planning evidence was provided by Mr Steven Layman for the Council and Mr Andrew Minto for the applicant. 49The experts agreed on the following:

the proposal complies with the wall height control and maximum FSR in DCP 2007 and the maximum building height and maximum FSR development standards in LEP 2013;
the northern side setback and the eastern front setback are appropriate, notwithstanding the numerical non-compliance of these setbacks with the setback controls of DCP 2007;
it would be an unreasonable constraint for the amended proposal to comply with the side setback control on the southern side, however Mr Layman's view is that the southern setback should be greater than what is proposed; and
the shadow diagrams comply with the requirements of DCP 2007. 50The experts disagreed on the following:
the extent of the impact of the amended proposal on views from nearby properties;
whether the amended proposal has any impact on the FSPA;
whether the southern and western setbacks are appropriate and what the impacts of the non-compliance with the setbacks are;
whether the amount of open space provided by the amended proposal is adequate; and
the impact of the proposal on the privacy of the terrace of 4A Pacific Street.

Evidence 51The planning experts rated the view loss from each property, using the Tenacity planning principle's qualitative descriptions of view loss, as follows: Address Mr Minto Mr Layman 4A Pacific Street negligible impact, there is a filtered view along Pacific Street, through the street trees moderate impact caused by the non-compliant setback from the southern boundary 24/6-12 Pacific Street (Level 3) negligible impact, the main view corridor to the NE is unaffected views of the ocean above the site affected by the height of the proposal 32/6-12 Pacific Street (Level 4) 8/9-17 Pacific Street (Level 3) negligible impact moderate impact, wave zone/ocean as a result of the height of the proposal 11/9-17 Pacific Street (Level 4) 14/9-17 Pacific Street (Level 5) 18/9-17 Pacific Street (Level 6) minor impact

4A Pacific Street 524A Pacific Street has a terrace, opening from the living room, on the eastern side of the building, which overlooks the site. The existing view from the terrace at 4A Pacific Street is to the south-east and is limited on the northern side of that view by the first floor stair landing and awning of the existing building on the site, which is midway along the southern boundary and extends to the southern boundary. The existing view from the terrace at 4A Pacific Street is of the beach and wave zone, however the street trees on the southern side of the site significantly impede this view, so that one sees bits of the beach and wave zone filtered through the trees. 53The terrace at 4A Pacific Street is at a height of RL9.53 (exhibit 5). Level 1 of the proposal is at RL9.3 and the top of the masonry wall, enclosing the pool and the southern side of the proposal is at RL10.0, with a handrail over along the southern elevation (exhibit A, DA 103 and DA 105). When standing on the terrace at 4A Pacific Street, eye height is, on average, at RL11.13, which is 1.13m above the masonry wall enclosing the base of the building of the proposal. Therefore standing on the terrace at 4A Pacific Street, one will see the view to the south of the glazed walls of Level 1 of the amended proposal. 54On Level 1 of the amended proposal, the southern glazed wall is setback 1.4m from the southern boundary and the western glazed wall of the proposal is setback 10m from the western boundary. The south western corner of the amended proposal on Level 1 will be the point at which the view from the terrace at 4A Pacific Street is limited on the northern side of that view, instead of the first floor stair landing and awning currently on the site. This represents a point closer to the terrace at 4A Pacific Street, but setback further from the southern boundary of the site. Therefore there will be a slightly improved view of the beach and wave zone, through the street trees, from the southern side of the terrace at 4A Pacific Street and a slightly decreased view from the northern side of the terrace at 4A Pacific Street. This represents a negligible impact on the filtered views of the beach and wave zone from the terrace at 4A Pacific Street.

6-12 Pacific Street 556-12 Pacific Street is on the western side of Pine Lane and occupies the block between Pacific Street and Ceramic Lane. It is a large, contemporary, five storey residential flat building. Each floor is equally divided into eight units and the top floor is divided into four units. The units on the north-eastern side of the building are orientated to look across the wide view corridor to the east-northeast, across the gardens in the generous southern setback of 126 North Steyne (a 16 level residential flat building). 56Unit 24 is located on the eastern side of the building, with two balconies facing east and north-east. As one enters this unit and moves through the living areas and onto the north-eastern terrace, the orientation of the entry sequence is to the north-east and captures the wide and dramatic views across the southern setback of 126 North Steyne. 57The view from both terraces at unit 24 is a panoramic view of the entire beach and ocean of Manly Beach, with the development fronting North and South Steyne in the foreground, which interrupts sections of the beach and wave zone. The roofs of the buildings on the block fronting North Steyne and bounded to the north by Ceramic Land and the south by Pacific Street and including the site, are visible in the foreground of the view from the terraces of unit 24. 58The increased height of the amended proposal, when compared to the existing building, will obstruct part of the view of the Fairy Bower headland to the south-west, from the north eastern terrace and it will obstruct part of the ocean view from the eastern bedroom terrace. This impact is minor, when considering the extent of the impact on the panoramic views from the whole of the property (Tenacity planning principle, par 28). 59Unit 32 is a penthouse on the top floor of the residential flat building, above units 24 and 25, on the eastern side of the building. As unit 32 is one level higher than unit 24, the impact of the amended proposal on the panoramic views of Manly Beach and the ocean will be less, when compared to the impact on the view from the terraces of unit 24. This impact is negligible, when considering the extent of the impact on the panoramic views from the whole of the property (Tenacity planning principle, par 28). 60The non-compliance of the southern and western setbacks of the amended proposal with the setback controls in DCP 2007 has an insignificant impact on the obstruction of views from 6-12 Pacific Street. While a smaller footprint for Level 2 would obstruct a marginally smaller area of the view, it is fundamentally the overall height of the amended proposal that creates the impact on views from 6-12 Pacific Street. 61In weighing up the fact that the amended proposal complies with the wall height control of DCP 2007 and the maximum building height and maximum FSR development standards of LEP 2013 with the minor and negligible impacts on the views from 6-12 Pacific Street, I am satisfied that the amended proposal represents a fair balance in terms achieving a reasonable development potential for the site and preserving the views from 6-12 Pacific Street, further away from the beach.

9-17 Pacific Street 629-17 Pacific Street is on the southern side of Pacific Street, opposite 6-12 Pacific Street and is a large, contemporary, nine storey residential flat building, with balconies on the northern facade. 63The views from the living areas and the balconies of 9-17 Pacific Street are of Manly Beach, the Queenscliff headland and the ocean. The views from the living rooms and kitchens are to the north-east and one must be standing right against the windows on the northern facade of 9-17 Pacific Street or on the balconies to obtain the east-northeast view across the site. 64The block, fronting North Steyne and bounded to the north by Ceramic Lane and to the south by Pacific Street, including the site, presents as a single mass when viewed from 9-17 Pacific Street, because the units of 9-17 Pacific Street look diagonally across the block, from the south-western corner to the north-eastern corner of the block. For this reason, it is the overall height of development on this block, fronting North Steyne, that impacts on the view from units in 9-17 Pacific Street. The non-compliance of the southern and western setbacks of the amended proposal with the setback controls in DCP 2007 has little or no impact on the view from units in 9-17 Pacific Street, because it is the overall height of the amended proposal that creates the impact on views from units in 9-17 Pacific Street. 65The impact of the amended proposal on the existing views from 9-17 Pacific Street will be negligible for the units on Levels 5 and 6 and minor for the units on Levels 3 and 4, when considering the extent of the impact on the views from the whole of the property (Tenacity planning principle, par 28). 66In weighing up the fact that the amended proposal complies with the wall height control of DCP 2007 and the maximum building height and maximum FSR development standards of LEP 2013 with the minor and negligible impacts on the views from 9-17 Pacific Street, I am satisfied that the amended proposal represents a fair balance in terms of achieving a reasonable development potential for the site and preserving the views from existing development further away from the beach.

Precedent 67A number of the resident objectors were concerned that the height of the proposal will create a precedent for the rest of the properties on the block fronting North Steyne and bounded by Ceramic Lane and Pacific Street, which would further impact on their views of the beach reserve, the trees, the wave zone and the ocean. 68The top of the skillion skylight structure on the roof of the amended proposal is RL17.2 and the flat roof is at RL16.2. The ground level of the site is RL5.61, which is at a point adjacent and approximately midway along the southern boundary (exhibit 5). The height of the roof of the proposal is 10.59m, with the skylight skillion ridge being an additional 1m higher for a short section of the roof, making the overall height of the proposal a maximum of 11.59m. 69The planners agreed that the proposal complies with the wall height control of DCP 2007 of 12m (which permits an additional 3m for the roof and this proposal has a flat roof). The planners agreed that the proposal complies with the maximum height control of LEP 2013 of 13m. 70The recently commenced planning regime, under LEP 2013, perpetuates the planning principles of the previous planning regime, of designating the beachfront properties, fronting North Steyne, as being denser development with a higher maximum building height, when compared to properties further to the west and away from the beach. Under LEP 2013, the maximum building height for the beachfront properties is 13m (Height of Buildings Map Sheet HOB-005 LEP 2013, exhibit 6) and the maximum FSR is 1.5:1 (FSR Map Sheet FSR-005 LEP 2013, exhibit 6). Behind the beachfront properties, there is a narrow strip of properties with a maximum building height of 11m and a maximum FSR of 0.75:1 and behind those and further to the west, properties have a maximum building height of 8.5m. 71The Council's argument is that this is a small and narrow site and therefore the suite of controls, particularly the maximum FSR control, would not permit a proposal for this site, lodged after the commencement of LEP 2013, from being able to achieve the maximum height of 13m. However, this site is the smallest property on the block fronting North Steyne and bounded by Ceramic Lane and Pacific Street, so it is highly likely that an development application will be made in the future, for one or more of the other properties on the block, for a proposal 13m in height (complying with the maximum building height development standard in LEP 2013), which is also able to comply with the 1.5:1 FSR development standard in LEP 2013. It is also conceivable that two or more of the properties fronting North Steyne on this block will be amalgamated and an application made which complies with the development standards in LEP 2013 and the setback controls in the recently commenced DCP. 72While I accept that the resident objectors concern regarding the impact of an increase in the height of buildings (on the block fronting North Steyne and bounded by Ceramic Lane and Pacific Street) on their beach and ocean views is well founded, it will be as a result of the recently commenced planning regime with a maximum building height of 13m for the properties fronting North Steyne, regardless of any precedent set by this proposal.

Evidence 73According to Mr Layman, the side setback to the southern boundary is insufficient. He accepts that because of the narrow dimension of the site, the proposal is unlikely to achieve a setback equivalent to 1/3 of the wall height, which would be 3.3m for a three storey building. 74In Mr Layman's view, the rear setback to the western boundary is also insufficient and should be closer to the 8m rear setback required by DCP 2007, because the proposal does not achieve reasonable privacy between the terrace of 4A Pacific Street and the proposal; it does not facilitate view sharing; and it adds visual bulk.

Submissions 75Mr Galasso submitted that the setback to the western boundary, described by the Council as a rear setback, is more appropriately characterised as a side setback, as it is a shared boundary with 4 and 4A Pacific Street and therefore the side setback control in DCP 2007 of 1/3 wall height should be applied at the western boundary of the site.

Findings 76I am satisfied that the southern, side setback to Pacific Street is acceptable for the following reasons:

the southern elevation of the amended proposal is a secondary street frontage and, in my opinion, the amended proposal successfully addresses Pacific Street by reinforcing the 'street wall' and by presenting an interesting and vertically well articulated southern elevation to Pacific Street;
the 920mm setback on the ground floor provides sufficient depth for planting along the southern boundary;
the extension of Level 2 to the southern boundary has no amenity impacts on neighbouring properties as the planners agreed that the shadows cast by the amended proposal at the winter solstice comply with the controls in DCP 2007 and the impact of this non-compliance on views from neighbouring properties is insignificant;
the impact of the non-compliance of the southern setback on Level 1 on the views from the terrace at 4A Pacific Street have been assessed as negligible;
A greater setback to the southern elevation at the ground level on a site that is 8.2m wide (when measured perpendicular to the southern boundary) would not result in a usable outdoor living space, as it would be narrow, south-facing and permanently shaded, with no privacy;
as the site is only 8.2m wide, the architect has sought to maximise the width of the building in order to accommodate circulation through the building on the northern side of the building and still have sufficient and reasonable space on the southern side of the building to create well proportioned and flexible living areas and rooms. 77While I understand Mr Galasso's submission regarding the western boundary being assessed as a side boundary because the relationship between the site and the duplex at 4 and 4A Pacific Street is not a conventional one, it is sufficient to assess the impact of the western setback of the amended proposal on its merits, in my view, without having to determine the character of the setback. 78The terrace of 4A Pacific Street is at RL9.53 and is setback 3m from the shared boundary (the setback is a right of way for the driveway access to the garage at the rear of 122 North Steyne). The terrace at 4A Pacific Street has a masonry balustrade with a glazed section on the eastern side and it currently overlooks the site, to the east. The existing building on the site has a large terrace on the first floor at RL9.2, which is setback 6m from the shared boundary. There is 9m between the existing terraces at 4A Pacific Street and the site. 79The amended proposal has a terrace in a similar position to the existing terrace on the site, at RL9.3 and 5.4m from the shared boundary. The amended proposal includes a pool on the western side of the terrace, approximately 3.3m in length. The pool water level is at RL9.2. The amended proposal has a masonry wall to a height of RL10.0 (700mm above the finished floor level of Level 1), that wraps around the base of the building and encloses the pool. The pool does not have a trafficable coping on its southern, western or northern sides, so anyone standing on the terrace of the amended proposal is a minimum of 5.4m from the shared western boundary. It will not be possible to see the terrace at 4A Pacific Street from within the pool of the amended proposal, due to the masonry wall around the pool, which is 800mm above the water level and anyone standing on the terrace at 4A Pacific Street will not be able to see into the pool of the amended proposal because of the height of the masonry wall above the water level. When someone is standing on the terrace of the amended proposal, they will be approximately 9m from someone standing on the terrace at 4A Pacific Street and the majority of this distance is accommodated on the site, because the terrace at 4A Pacific Street is closer to the shared boundary than the terrace of the amended proposal. 80I am satisfied that the setback of the amended proposal to the western boundary preserves a similar and satisfactory relationship between the terrace at 4A Pacific Street and the existing building on the site in terms of visual and aural privacy, given the medium density residential environment in which the site is located and the proximity of the terrace at 4A Pacific Street to the shared boundary.

Evidence 81The experts agreed that the amended proposal provides 80.63sqm of open space, which is 30.2% of the site area and this represents a shortfall of approximately 40sqm of open space. 82The experts disagreed on the quantity of soft landscaping, according to Mr Layman it is 0 if the controls are strictly applied because land must have a minimum horizontal dimension of 3m in all directions and minimum areas of 12sqm (DCP 2007, subcl 3.7.2(a)). However, Mr Layman was willing to include the small garden area at the street front of the amended proposal as soft landscaping, despite it not strictly complying with the required dimensions and on this basis he calculated the soft landscaping to be 9sqm. Mr Minto included all the soft landscaping regardless of its horizontal dimension and he calculated the soft landscaping to be 28.32sqm. 83Mr Layman notes that the pool comprises 45.23% of the total open space area and therefore does not comply with subcl 3.7.2(b) of DCP 2007.

Findings 84The setback of the proposal on the eastern side, fronting North Steyne, matches the front wall position of the dwelling at 122 North Steyne, despite the front boundary of the site being closer to the front facade of the amended proposal, as a result of a resumption of a strip of land at the front of the site, adjacent to the footpath of North Steyne, for future road widening. The planning experts agreed that the eastern, front setback of the amended proposal is appropriate. However, the front setback does not contribute a significant proportion of the soft open space requirement and does not comply with the minimum dimensions, because it has been made smaller by the resumption of the strip of land at the front of the site for future road widening. 85For the reasons provided above in paragraph 76, I am satisfied that the southern setback is appropriate, as it provides 920mm of soft open space for planting along the southern boundary, which is an adequate depth for a garden bed. Increasing the setback on the southern side of the amended proposal, on the ground floor, on a site that is 8.2m wide would not provide any additional amenity to the amended proposal and it would compromise the layout of the building. 86On the western side of the site, the site and 122 North Steyne to the north of the site, back onto the property of the duplex at 4 and 4A Pacific Street, on the corner of Pacific Street and Pine Lane. The site is the shortest property, compared to the other properties in the block fronting North Steyne. The western boundary of 122 North Steyne is further to the west when compared to the site, as 122 North Steyne has a garage beyond the western boundary of the site. The remaining properties to the north of 122 North Steyne, on the block facing North Steyne, are significantly longer that the site and 122 North Steyne, because they extend to Pine Lane. The amended proposal extends to the west, to the same extent as the dwellings at 122 and 123 North Steyne, on Level 2, leaving a shorter setback from the western boundary when compared to the setback of the two properties to the north. The terrace and part of the pool on Level 1 are positioned under the western end of Level 2, which cantilevers over. In this way, the main open space area of the amended proposal is located within the building footprint and not behind the building in a more conventional arrangement with a backyard at ground level. 87In my view, there is nothing gained by deleting the pool in order to increase the soft landscaping area at ground level on the western side of the amended proposal or by dropping the pool down to ground level, as this area is behind the garage and does not have a relationship with the living areas on Level 1 of the amended proposal. A pool at ground level would be overlooked by both the terrace at 4A Pacific Street and the terrace of the amended proposal, providing a worse outcome in terms of visual and aural privacy between the two terraces and it would not increase the area of soft landscaping on the site. 88I am satisfied that there is sufficient soft landscaping areas for planting around the sides of the pool, at ground level, along the southern boundary and at the front of the site and that the proposal provides adequate open space for the recreational needs of the occupants, which is supplemented by the proximity of the site to Manly Beach. For these reasons, the amended proposal broadly achieves the relevant objectives of the open space and landscaping controls.

Evidence 89According to Mr Layman, the amended proposal has a detrimental effect on the amenity of the area due to 'the bulky design of the building'. He considers that the architectural device of utilising a heavy, visually bland building base, predominately glazed middle level and precast concrete panelled top level is inappropriate in the context, as it results in a 'top heavy aesthetic form for which there is little if any precedent in the locality'. 90According to Mr Minto, the amended proposal is compatible with surrounding development, presents an appropriate bulk to the streetscape, is consistent with the prevailing setback to North Steyne and will not result in any unreasonable impacts of the FSPA.

Findings 91The design of the amended proposal is based on the theoretical concept of the hearth being raised off the ground by the substructure or platform, which is the solid mass over which the ephemeral form of the roof hovers. This is an architectural device that dates from antiquity and it is beautifully articulated by Jörn Utzon in his essay, 'Platforms and plateaus: ideas of a Danish architect' (1962) 10 The Zodiac (Albany, N.Y.) 112, where he describes the play between the roof hovering over the platform as magical. In the architectural composition of the amended proposal, the masonry base of the proposal creates the substructure or platform, which distinguishes between the more utilitarian functions contained within the substructure and the living space, the symbolic hearth, on the platform, with the bedrooms contained within the ephemeral roof form over. This allows the amended proposal to take full advantage of its position overlooking Manly Beach, as the living areas are raised above ground to provide the best vantage point for the views and to provide privacy from the public domain at street level. The building base is appropriately a simple, solid, earthen form, in contrast to the sculptural form of the roof hovering over and as such, the building will be appropriately balanced. 92For this reason and reasons setout elsewhere in the judgment, I am satisfied that the overall height, bulk and scale of the amended proposal is appropriate and it will make a positive contribution to the FSPA of Manly Beach and it fulfils the intent and objectives of cl 17 of LEP 1988, cl 5.8 of DCP 2007 and cl 6.9 of LEP 2013.

Submissions 93Mr Galasso submitted that the contention raised by Council, regarding the failure of the amended proposal to meet the objectives of the FSR control in DCP 2007 notwithstanding the compliance of the amended proposal with the FSR numeric control, constitutes the setting of a more onerous standard with respect to the maximum FSR of the development. As the proposal complies with the maximum FSR control in DCP 2007, the applicant is not required to demonstrate that the amended proposal satisfies the objectives of the DCP control, pursuant to Council's own 'Assessment Considerations' (p 24, DCP 2007, exhibit 6), as follows: 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 on need to satisfy the DCP objectives by 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. 94Mr Galasso submitted that, according to this statement in DCP 2007, that only applications which depart from a numeric control need to satisfy the DCP objectives for that control as well as demonstrate that a more desirable environmental outcome is achieved. 95I accept Mr Galasso's submission and on the basis that the amended proposal complies with the maximum FSR numeric control for the site in DCP 2007 (which is the same as the FSR development standard under LEP 2013), the applicant is not required to also demonstrate that the amended proposal satisfies the objectives of that control.

Gate between the amended proposal and the dwelling at 122 North Steyne 96The Council raised a contention, on behalf of the owner of 122 North Steyne, that a gate should be provided to allow access to the narrow gap of approximately 500mm between the amended proposal and the dwelling at 122 North Steyne, as there is an existing gate between the two dwellings. 97While I understand the desire of the owner at 122 North Steyne for a gate to access the narrow gap between the amended proposal and their dwelling, for future maintenance, I am constrained to deal with matters within the permitted planning framework and any condition to be imposed on the consent has to satisfy the 'Newbury test' (Newbury District Council v the Secretary of State for the Environment (1981) AC 578), one of which is that the condition has be for a planning purpose. As there is no proper planning purpose imposed by such a condition, there is no basis on which I could impose it.

Fence 98Mr Layman is of the view that the fence on the eastern and southern boundaries should be amended to be no more than 1.2m high and of an open design with any solid component being no more than 900mm high. Mr Minto is of the view that the fence should be amended to a height of 1500mm. 99I am satisfied that the fence proposed (South Elevation DA105 and East Elevation DA106, exhibit A) is appropriate, as it is in proportion with the masonry base of the building, is of an open design above the solid section and along the middle of the southern elevation and is not in conflict with the character of the locality. For these reasons, the Council's condition requiring the height and design of the fence to be changed is deleted.

Skylights 100The Council added a condition that the skylights and solar panels are to be flush with the roof. 101For the reasons setout at paragraphs 68, 69 and 72, I am satisfied that the height of the building is appropriate and there is nothing to be gained by making the skylight skillion roof and solar panels flush with the roof. The Council's condition requiring the skylight and solar panels to be flush with the roof is deleted.

Privacy Screen 102The Council added a condition requiring a 1.7m screen to be added to a portion of the western side of the pool on the first floor to protect the privacy of the occupants of 4A Pacific Street. 103For the reasons setout at paragraphs 79 and 80, I am satisfied that the privacy of the occupants of 4A Pacific Street is appropriately preserved by the amended proposal and a 1.7m high screen on the western side of the pool would detrimentally impact on the filtered views of the beach from the terrace at 4A Pacific Street. Council's condition requiring a 1.7m high screen to be added to a portion of the western side of the pool is deleted.

Overall height of the proposal to be reduced by reducing the floor to ceiling heights 104The Council added a condition requiring the floor to ceiling heights of each level to be reduced to 2.7m, which would reduce the overall height of the building by 400mm. 105For the reasons provided in the judgment at paragraphs 68, 69 and 72, I am satisfied that the overall height of the proposal is appropriate and Council's condition requiring the floor to ceiling heights to be reduced to reduce the overall height of the amended proposal by 400mm is deleted.

Swimming pool 106The Council added a condition requiring the pool to be deleted and a screen 1.7m high added to the rear of the terrace on Level 1. In Mr Layman's view, a alternative option is to drop the level of the pool to the ground level. 107The pool has been integrated into the design of Level 1 and positioned to separate the living areas of the amended proposal from the terrace at 4A Pacific Street, to the west. There are compelling safety reasons to have the pool easily visible from the kitchen and living areas of the amended proposal, rather than to locate it at ground level, behind the garage. Furthermore, a pool at ground level would erode the design integrity of the proposal, by shortening the masonry base of the building, which in the amended proposal provides a visual counterbalance to the cantilevered sculptural form of the top level of the building. Without the masonry wall enclosing the pool, the building base, which forms the platform of the design, would finish on the western side of the garage and the hovering roof form would appear unbalanced, overhanging a shorter base. For these reasons, I am satisfied that the location of the pool is a reasonable design response to the constraints and opportunities of this site and Council's condition regarding the pool is deleted.

Conclusion 108Having regard to the relevant planning controls and the evidence provided, I find that the amended proposal can be granted consent, for the reasons set out in the judgment, which are, in summary:

the amended proposal represents a fair balance in terms achieving a reasonable development potential for the site and preserving the views from 6-12 and 9-17 Pacific Street, as the amended proposal complies with both the wall height control of DCP 2007 and the maximum building height and maximum FSR development standards of LEP 2013;
the non-compliance of the setback of on the southern side of the amended proposal with the setback controls of DCP 2007 has no amenity impacts on neighbouring properties, as the planners agreed that the shadows cast by the amended proposal at the winter solstice comply with the controls in DCP 2007;
the impact of the non-compliance of the setbacks of the amended proposal with the setback controls of DCP 2007 on views from 6-12 and 9-17 Pacific Street is insignificant;
the setback of the amended proposal to the western boundary preserves a similar and satisfactory relationship between the terrace at 4A Pacific Street and the existing building on the site in terms of visual and aural privacy, given the medium density residential environment in which the site is located and the proximity of the terrace at 4A Pacific Street to the shared boundary;
the southern elevation of the amended proposal is a secondary street frontage and successfully addresses Pacific Street by presenting an interesting and vertically well articulated southern elevation;
the setback of the amended proposal to the southern, side boundary is appropriate at ground level, given the narrow site, as it provides sufficient area for plantings along the southern boundary;
there is sufficient soft landscaping areas for planting around the walls of the pool at ground level, along the southern boundary and at the front of the site and the proposal provides adequate open space for the recreational needs of the occupants and this is supplemented by the proximity of the site to Manly Beach; and
the overall height, bulk and scale of the amended proposal is appropriate and it will make a positive contribution to the FSPA.

Directions 109Directions were handed down on 1 April 2014 requiring the parties to file agreed conditions of consent, in accordance with this judgment and without the five conditions added during the hearing and referred to in paragraph 6. The agreed conditions of consent were filed on 3 April, 2014.

Orders 110The orders of the Court are: (1)The appeal is upheld. (2)Development Application No. 50/2013 for the demolition of existing structures and construction of a three storey dwelling, pool and landscaping is approved, subject to the conditions of consent at Annexure A. (3)The exhibits, other than exhibits 3, A and F, are returned.

Susan O'Neill Commissioner of the Court ANNEXURE A

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: 04 April 2014

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