Donohoe v Manly Council [2013] NSWLEC 1113 | Case summary

Evidence 10The Court visited the site and heard objections from adjoining residents. The key concern of residents to the west at 48 White Street and 58 West Street was the loss of views, particularly to the harbour resulting from the height and bulk of the proposal, the number of storeys and the clerestory roof elements. The owners of 58 White Street also raised concerns about the extent of excavation and its potential to impact on the rock outcrop and their property. The residents to the north and east were concerned about the bulk of the development and potential privacy impacts, particularly to the outdoor areas of 42 and 42A White Street. The objectors at 62 West Street commented on the access handle to their property and requested that fencing be provided to prevent overlooking of the access handle and from the terrace of proposed Townhouse 3. 11The Court heard planning evidence from Mr G Boston, for the applicant, and Mr L Fletcher, for the council. 12Mr Fletcher's key concerns were that the proposal is an overdevelopment of the site, given its topographical constraints, in particular, the rock outcrop, and the extent of excavation. In his opinion, the rock outcrop is a "natural feature" and part of the car park is not a "basement" as it is partly open to the east and to the sky and will appear as a third storey when viewed from the street. He considered that the "basement" is inefficient and could be redesigned to minimise excavation and that the rock outcrop should be retained. 13Mr Fletcher also considered that the bulk of the building would impact on adjoining properties. In his opinion, the FSR in excess of the control in the DCP and the large areas, such as balconies, contribute to the bulk of the building. He accepted that the wall height and overall height of the townhouses was below the maximum in the DCP, but considered that the bulk could be reduced if the overall height of Townhouse 2 was reduced by 0.56m and Townhouse 3 by 1.64m. This could be achieved by reducing the unnecessary floor to floor heights of the basements of Townhouse 2 (3.55m) and Townhouse 3 (4.09m). Mr Fletcher supported the imposition of conditions (condition 2 i and ii) that require the reduction in height. 14Mr Fletcher agreed that the changes to the proposal, including the increased front setback beyond that required by the DCP, the privacy screen and the tree species, would maintain views to the harbour from 48 White Street to a reasonable extent. He noted that the clerestory roof element intruded into the view of 58 West Street but considered this to be acceptable. In his opinion, the view loss to 48 White Street and 58 West Street was minor and would not warrant refusal of the application. 15As a result of amendments to the plans and conditions, Mr Fletcher agreed that the amount of open space would comply with the DCP and would exceed the amount required for soft open space. However, he raised concerns about the quality of the open space given that a large amount is underneath balconies. 16Mr Boston considered that the parking level is a "basement" and complies with the controls and the objectives for excavation in the DCP. He stated that the extent of excavation is not excessive given the topography of the site, it is generally within the floor plate of the building and the natural ground level around the perimeter of the site is retained. The rock outcrop is not identified as a significant natural feature and is not visible from the public domain. The driveway is located at the lower side of the site and the development will generally appear as a two storey building. 17Mr Boston considered that the numerical non compliance with the FSR control was minor and the development meets the objectives of the control. The form and massing of the development has been broken into three separate elements, which step down the site in response to the topography. The bulk and scale of the development is consistent with the existing and future context of two and three storey dwellings and multi unit development. The proposal is below the height in the DCP and the bulk of the development does not result in impacts such as overshadowing or view loss. In Mr Boston's opinion, it would be unreasonable to reduce the height of the building, as suggested by Mr Fletcher, as this would impact on the amenity of the development, given that the floor to floor levels of the "basement" are set by the driveway and respond the ground level at the front and rear of the site. The floor to ceiling heights of the habitable levels are also below 2.7m. 18Mr Fletcher and Mr Boston generally agreed that the privacy impacts of the proposal had been addressed by measures such as planter boxes and screens. However, they disagree on whether further privacy measures should be imposed. In particular, Mr Fletcher considered that there would be a direct line of sight from the balcony of Townhouse 2 into courtyard of 42A White Street. Similarly, he considered that the balconies of Townhouse 1 and 2 could overlook any future development of 42 White Street. He supported the imposition of a condition (Condition 2 iv) to extend the planter box along the north east corner of the balconies of Townhouses 1 and 2 to provide privacy in north easterly direction from these balconies. He also supported the imposition of a condition (condition 2 iii) requiring the deletion of the north west end of the balconies of Townhouses 1 and 2, although he recognised that this privacy impact was resolved by the proposed screen but that it, and the balcony, added to the bulk of the building. 19Mr Boston considered that the upper level balconies and living areas are orientated north and south and the planter boxes limit overlooking to the east. In his opinion, the separation distance (about 15m) between the balcony of Townhouse 2 to the terrace of 42A White Street would limit opportunities for overlooking. In addition, the view angle is downward and at an oblique angel and there is intervening established and proposed landscaping. He considered the extension to the planter boxes of Townhouses 1 and 2 would impact on the usability of the balconies and are not necessary to achieve acceptable privacy with 42A White Street or any future development of 42 White Street. The deletion of the north western end of the balconies is not necessary as privacy impacts are addressed by the proposed screen. Findings 20The key issues in dispute between the experts are the extent of excavation, including the removal of the rock outcrop, the bulk of the development and its impact on adjoining properties and the streetscape. Other issues in dispute have generally been resolved or relate to conditions. Excavation and removal of landscape feature 21Clause 2.5.1 of the DCP provides the following objective for excavation and earthworks: To retain the existing landscape character and limit change to the topography and vegetation of the Manly Local Government Area by: a) Limiting excavation, "cut and fill" and other earthworks; b) Discouraging the alteration of the natural flow of ground and surface water; c) Ensuring that development does not cause sedimentation to enter drainage lines (natural or otherwise) and waterways; and d) Limiting the height of retaining walls and encouraging the planting of endemic plant species to soften their impact. 22Clause 2.5.2 of the DCP relevantly includes the following controls for excavation and earthworks: a) Excavation shall be generally limited to 1000mm below natural ground level with the exception of basement parking areas (which shall be contained within the footprint of the building) and swimming pools; ..... d) Earthworks shall be limited to that part of the site required to accommodate the building and its immediate curtilage; e) Natural (undisturbed) ground level shall be maintained within 900mm of side and rear boundaries; ......... 23The objectives for FSR in cl 3.4.1 include: b) To ensure the scale of development does not obscure important landscape features 24The objectives for Open Space and Landscaping in cl 3.7.1 include: b) To retain important landscape features and vegetation; 25The extent of excavation was a principle reason for refusal of the application by the council's Independent Assessment Panel (MIAP). Subsequent amendments to the application include the relocation of Townhouse 3 closer to the western boundary, which increases the amount of excavation and further removal of the rock outcrop. No plan of cut and fill has been provided and Mr Fletcher questioned the accuracy of the existing ground level at the face of Townhouse 3 on the western elevation shown on DA11B. Based on this drawing, the excavation for parking under Townhouse 3 would be about 4 to 5m deep on the western face and about 3 to 4m on the eastern face of the building. However, based on the survey levels, the excavation in the north west corner of Townhouse 3, appears to be significantly greater as all three levels intrude into the rock outcrop. 26The parties disagree on whether the car park is a "basement" for the purpose of the exemption under cl 2.5.2 (a). However, they agree that the part of the car park under Townhouse 3 is a "basement". While the excavation for a "basement for parking areas" would not be limited to 1000mm below natural ground level, the proposed excavation for Townhouse 3 is also required for storage areas, lifts and stairs and, in the north west corner, for the residential floors. Clause 2.5.2 (d) limits earthworks "to that part of the site required to accommodate the building and its curtilage". I do not accept that a basement with a floor to floor height of over 4m is necessary to accommodate parking or that excavation has been minimised. I acknowledge that this level of excavation may be required to maintain the driveway grades and the relationship with ground level at the front and rear of the building, however, as suggested by Mr Fletcher, the basement layout could easily be redesigned to provide the same number of spaces along the western side of the "basement" without the need to excavate underneath Townhouse 3, other than for access from the car park to the residential level. While this would extend between the floor plate of Townhouse 1 and 2, this area is likely to be excavated and back filled under the current arrangement. 27Similarly, the redesign of the first and second floor of Townhouse 3 to remove the stair void and redesign/relocate the kitchen/pantry and, if necessary, the study could easily remove the requirement to excavate the rock feature. While I accept that technically there is likely to be no constraint to this excavation, I do not accept that it meets the objectives in cll 2.5.1, 3.4.1 and 3.7.1 of the DCP. The rock outcrop is a significant feature of the site, it is not necessary for it to be formally identified as such or for it to be visible from the public domain for it to be a natural feature, which if reasonably possible, should be maintained. Given that the proposal exceeds the FSR control in the DCP, there is no reason why the development cannot be amended to retain this feature. Building bulk and FSR 28The objectives for FSR in cl 3.4.1 of the DCP are: 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. 29Clause 3.4.2 of the DCP permits a maximum FSR of 0.5:1 on the site. The development proposes a FSR of 0.53:1, which equates to 27.5sqm above the maximum (Mr Boston) or 0.54:1 which equates to 37sqm above the maximum (Mr Fletcher). 30The development is broken up into three separate buildings that step down the site and assist in reducing the bulk of the building. However, the benefit of this principally occurs at the bedroom level (Level 2) where the courtyards provide a separation distance of about 5m between Townhouses 1 and 2 and Townhouses 2 and 3. This level and consequently the separation between the townhouses is generally not viewed from adjoining properties or the public domain. At the living room level (Level 3), the separation distance between the northern balconies of Townhouses 1 and 2 and the adjoining townhouse ranges from about 2.5m to 5m. The extensive eaves of the roof reduce the perceived separation to a minimum of about two metres. 31The relationship between the floor plans of Level 2 and Level 3 in each townhouse also increases the bulk of the building. Parts of Level 3 and the balconies cantilever over Level 2 and the courtyards, parts are set back and parts are in the same alignment. The bulk of Townhouses 2 and 3 would be improved by the deletion of the north west corner of the balconies on Level 3 (proposed in condition 2 iii for privacy reasons) and a reduction in the width of the balconies to line up with the northern wall of the kitchen/pantry. This change would increase the separation distance of Level 3 between Townhouse 1 and 2 and Townhouse 2 and 3 to about 3.5 to 4m. Although it would reduce the overall landscape area, the balconies would still provide usable areas and the quality and amenity of the courtyards would be improved. A reduction in the eaves overhang to a maximum of 600mm would also increase separation and reduce the bulk. 32I do not accept that Mr Fletcher's suggestion to reduce the overall height of Townhouse 2 and 3 is necessary to reduce bulk. The townhouses are already below the maximum height permissible on the site, do not result in unacceptable impacts on views or solar access and are consistent with the height of buildings in the existing and likely future context of the site. A reduction in the height of Townhouses 2 and 3 would not achieve a reduction in the extent of excavation, retain the rock feature or break up the perceived bulk by increasing the separation between the townhouses. The changes outlined above to relocate Townhouse 3 away from the rock outcrop, reduce the size of the balconies and the roof overhang would reduce the bulk of the building to an acceptable level. Other issues 33The other matters raised by council would not be a reason to refuse the application. I accept the evidence of the planners that the view loss is reasonable. The proposal will appear as a part two part three storey building when viewed from White Street, but this is not inconsistent with the existing context. I accept Mr Boston's evidence that due to the separation distance, potential overlooking from the proposal to adjoining properties is reasonable. Consequently, the imposition of conditions 2 i and ii (height reduction) and condition 2 iv (planter box extension) are not imposed. The other parts of condition 2 should be imposed or incorporated into the amended plans discussed below.

Donohoe v Manly Council

At a glance

Court

Decision date

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Judgment (9 paragraphs)

Parties

Cases Cited (1)

Cited By (1)