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[2014] NSWLEC 1214
Land and Environment Court (NSW)
2014-09-19
Original judgment source is linked above.
Judgment 1COMMISSIONER: On 9 August 2013, the Court granted consent to Development Application No. 21/2012 (the consent) for the demolition of a dwelling house and swimming pool and construction of 3 x 2 storey dwellings over a part basement garage, including courtyards, balconies and landscaping works, at 46 White Street, Balgowlah (the site) (Donohoe v Manly [2013] NSWLEC 1113 [Donohoe]). This is an application made to the Court, pursuant to the provisions of s 96(8) of the Environmental Planning and Assessment Act 1979, to modify that consent, by enlarging the basement, adding a study to each townhouse, modifying the form of the roofs and making minor changes to the internal layout of each townhouse (the proposal).
Issues 2The Council's contentions in the matter can be summarised as:
The site and its context 3The site is on the northern side of White Street, on a hill falling to the east and south-east, with views to the south-east. The area of the site is 910.5sqm (exhibit G). 448 White Street and 58 West Street are both to the west of the site and higher up the hill; 58 West Street is to the north of 48 White Street. 5The Court, in the company of the parties and their experts, viewed the site at the commencement of the hearing. The site is currently being excavated.
The proposal 6The approved development and the proposal have been designed by Woodhouse & Danks Architects and the landscape by Selena Hannan Landscape Design. 7The approved development is for basement parking for 5 cars and a visitor parking space, with three detached townhouses over, stepping up the site as it rises to the north. Each townhouse is two storeys high. 8The proposal includes widening the basement 1m to the west and to the north to provide additional vehicle manoeuvring area, adding a car parking space, adding a study to Level 2 of each townhouse, modifying the roofs of each townhouse and adding a pergola over the north-eastern terrace of each townhouse.
Planning Framework 9Development Application No. 21/2012 was assessed under Manly Local Environment Plan 1988 (LEP 1988) and Manly Development Control Plan for the Residential Zone 2007 (DCP 2007) (exhibit 2, p 1). 10The proposal is zoned R1 General Residential pursuant to LEP 2013. The maximum FSR for the site is 0.5:1 (LEP 2013 FSR Map Sheet FSR_003, exhibit 1) and the objectives of the FSR development standard, at cl 4.3(1) of LEP 2013 are as follows: (a) to ensure the bulk and scale of development is consistent with the existing and desired streetscape character, (b) to control building density and bulk in relation to a site area to ensure that development does not obscure important landscape and townscape features, (c) to maintain an appropriate visual relationship between new development and the existing character and landscape of the area, (d) to minimise adverse environmental impacts on the use or enjoyment of adjoining land and the public domain, (e) to provide for the viability of business zones and encourage the development, expansion and diversity of business activities that will contribute to economic growth, the retention of local services and employment opportunities in local centres. 11Clause 6.2 of LEP 2013, 'Earthworks', includes the following: (1) The objectives of this clause are as follows: (a) to ensure that earthworks and associated groundwater dewatering for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, (b) to allow earthworks of a minor nature without requiring a separate development consent. (2) Development consent is required for earthworks unless: (a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or (b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given. (3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters: (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 12'Earthworks' is defined in the dictionary of DCP 2013 as excavation or filling. Excavation is defined as the removal of soil or rock, whether moved to another part of the same site or to another site, but does not include garden landscaping that does not significantly alter the shape, natural form or drainage of the land. 13'Landscaped area' is defined in the dictionary of LEP 2013 as a part of a site used for growing plants, grasses or trees, but not include any building, structure or hard paved area. 14The relevant objective for amenity at cl 3.4 of DCP 2013 is to protect the amenity of existing and future residents and minimise the impact of new development, including alterations, on privacy, views, solar access and general amenity of adjoining and nearby properties. 15The relevant objectives for open space and landscaping, at cl 4.1.5 of DCP 2013 are to maximise soft landscaped areas, encourage appropriate tree planting and maintain existing vegetation and to enhance the amenity of the site, streetscape and surrounding area. 16The minimum total open space requirement for the site is 55% of the site area, of which 35% is to be landscaped area, at cl 4.1.5.1 of DCP 2013. 17Clause 4.1.5.1(b) of DCP 2013, 'Minimum dimensions and areas (for total open space; landscaped area and principal private open space) must have a minimum horizontal dimension of 3m and unbroken area of 12sqm. 18Minimum dimensions and areas of landscaped area, at cl 4.1.5.2 of DCP 2013, is a soil depth of 1m for all landscaped areas either in ground or above ground in raised planter beds and a minimum horizontal dimension of 0.5m measured from the inner side of the planter bed/box, wall or any other structure which defines the landscaped area. 19DCP 2013 includes, at cl 4.1.6.5(b), that particular attention should be given to separating pedestrian entries and vehicular crossings. 20Clause 4.4.5 of DCP 2013, 'Earthworks (Excavation and Filling)', has as its objective to retain the existing landscape character and limit change to the topography and vegetation of the Manly Local Government Area by limiting excavation, discouraging alteration of natural flow of ground and surface water, ensuring sediment does not enter drainage lines and limiting the height of retaining walls and encouraging native plant species. Earthworks are to be limited to that part of the site required to accommodate the building and its immediate surrounds to protect significant natural features of the site including vegetation and prominent rock outcrops, at cl 4.4.5.1(a). Natural and undisturbed ground level must be maintained with 0.9m of side and rear boundaries, at cl 4.4.5.1(b). Excavation is generally limited to 1m below natural ground level with the exception of basement parking areas (which will be contained within the footprint of the building) and swimming pools, at cl 4.4.5.2(a).
Public submissions 21Two written objections to the proposal are included in the Council's bundle of documents (exhibit 1, ff 18-20). The first is from the owner of 58 West Street, who objects to the extent of excavation required by the proposal at the foot of the rocky cliff which supports their house (referred to in this judgment as the rock formation) and the second, is from the owner of 48 White Street, who has moved out of his house for the duration of the construction and objects generally to the loss of views from their house as a result of the approved development and presumably, would be concerned if the proposal further exacerbates their view loss.
Expert evidence 22Dr Ritu Shankar (planning) and Mr Ben Hubbard (traffic) provided expert evidence on behalf of the Council and Mr Greg Boston (planning) and Mr Ray Dowsett (traffic) provided expert evidence on behalf of the applicant.
Vehicle manoeuvrability in the basement 23Conditions 19-22 of the consent (exhibit E) require the development to comply with AS/NZS 2890.1:2004 - Parking Facilities - Off-street car parking (the standard). The traffic experts agreed that the approved development, as shown on the plans, does not comply with the standard, as the driveway (apron) width of 4.39m is insufficient. They originally agreed, at the time of the first appeal, upon a driveway width of 4.39m as a minimum workable apron width, on the assumption that vehicles would be able to overhang the adjacent pathway to assist in manoeuvring, on the basis the planter between the footpath and driveway would be a maximum of 150mm high (exhibit 4, pp 3-4). Notwithstanding their agreement, the landscape plan that forms part of the consent (exhibit 5), specifies a '600[mm] high masonry planter box' between the driveway and the pedestrian pathway. 24The pedestrian pathway is positioned along the eastern side of the basement and provides pedestrian access to the development. The driveway is adjacent to the pathway and provides vehicular access to the garages on the western side of the driveway. The pedestrian pathway starts at the approximate level of the existing footpath in White Street (RL44.99) and gradually rises, as does the driveway, towards the rear, northern end of the basement (RL46.05), where it joins a stair accessing the rear, landscaped area of the site. The entry lobby of each townhouse is accessed by crossing the driveway. There is a retaining wall on the eastern side of the pedestrian pathway, which increases in height towards the rear of the site, as the site rises more steeply to the north than the level of the basement. There is a planter and landscaping on either side of the pedestrian path. The basement is open to the sky above the pathway. 25The traffic experts agreed that the development would need to be amended in some form to widen the width of the driveway to 5.6m, in order to comply with the relevant conditions of consent, either by lowering the planter and including the pedestrian pathway in the apron width calculation, or by widening the basement in order to accommodate a wider driveway. 26Council submits that their preferred option is either one or a combination of the following (illustrated in section, exhibit 6):
Extent of excavation 31The proposal is to enlarge the basement as follows:
Open space and landscaped area 43The Council contends that the proposal does not achieve the minimum open space required by the DCP 2013 and fails to achieve the objectives for open space and landscaping in DCP 2013. Furthermore, Dr Shankar is of the view that the changes made to the northern courtyards of Townhouses 1 and 2 result in poor amenity for those townhouses. 44Firstly, in order to properly understand this contention and its evolution during the hearing, it is necessary to explain the many iterations of the landscape plan. There are three versions of the landscape plan in evidence. Exhibit 5 is the landscape plan that was granted consent, with a LEC date stamp of 8.8.13 (LS01 Rev C dated 31.7.2013). At the commencement of the proceedings, the applicant, but not the Council, had understood that a different version of the landscape plan had been granted consent (LS01 Rev C dated 31.7.2013, exhibit E). It is my understanding that neither party realised, at the commencement of the hearing, that there were two versions of LS01 Rev C dated 31.7.2013. Despite the identical revision letter and date on both plans, exhibit 5 shows both courtyards as roughly 2/3 grass and 1/3 paving with a planter on the northern and western sides and exhibit E shows the courtyards as completely paved with the same planter on the northern and western sides. The landscape plan on the file from the original proceedings (11223 of 2012) is the same as exhibit 5 and the applicant conceded during the hearing, when this plan was produced by the Court, that the exhibit 5 version of the landscape plan, although an error, is the plan that forms part of the consent. 45The proposed landscape plan is LS01 Rev E dated 12.9.14 (exhibit B) and shows the courtyards as completely paved with a planter on the northern and western sides. 46In the original proceedings, the Commissioner handed down directions for the basement plan to be amended, by removing some of the areas of basement beneath Townhouse 3 and redistributing the basement area along the western side of the site, beneath the courtyards of Townhouses 1 and 2. In the original plans (exhibit H), the areas under the courtyards were proposed as backfill, to create an area of deep soil beneath the courtyards to support soft landscaping. When the basement plan was amended, logically the landscape plan should have also been amended and exhibit E should have formed part of the drawing set filed with the Court. The grassed areas of the courtyards, shown on exhibit 5 as RL47.65, became, in the amended plans that were granted consent (exhibit E), the level of the top of the slab of the basement that forms the floor level of the courtyards. On the basis of the two iterations of the landscape plan in evidence, exhibits 5 and E, it appears that the applicant filed the wrong version of the landscape plan with the Court, which was not helped by the fact that the revision letter and date were not changed when the landscape plan was amended from exhibit 5 to exhibit E, to show the courtyards as paved. 47In oral evidence, Dr Shankar acknowledged that the grass was probably not a viable option as no allowance has been made for the depth of soil required to support a grassed courtyard. She agreed that the planters on the northern and western sides of the courtyards, which are more than 1m higher than the courtyard level, could be increased in area to augment the amount of soft landscaping in the courtyards. In her view, this would provide an increased level of amenity for Townhouses 1 and 2. 48Notwithstanding the initial confusion over the extent of modifications proposed by the landscape plan (that is whether the paving of the courtyards in their entirety is a modification between the proposal and the consent, or not); the planning experts disagreed on the correct interpretation of the controls for minimum landscape area in DCP 2013. On Mr Boston's interpretation, the proposal complies with the landscaped area requirement and on Dr Shankar's interpretation, it does not. 49The Council submits that the correct interpretation of the provisions of 4.1.5.1(b) and 4.1.5.2 of DCP 2013, which is the one that Council staff have adopted, is to apply the minimum 3m in any direction and unbroken area of 12sqm in calculating both the minimum total open space (55% of the site area) and the landscaped area (35% of total open space). 50The applicant submits that the correct interpretation is to apply the minimum 3m in any direction and unbroken area of 12sqm in calculating the minimum total open space (55% of the site area), however once the minimum total open space requirement is determined, this total open space area may comprise of a combination of landscaped area, paved areas, retaining walls and so on, and so the landscaped area cannot also be subjected to the minimum dimensions required for total open space, as it makes up only a portion of this area. The applicant submits that this interpretation is supported by the heading at cl 4.1.5.1(b) "Minimum dimensions and areas (for total open space; landscape area and principal private open space)", because the brackets denote that the minimum dimensions and areas are applied to the total area referred to within the brackets. In addition and importantly, cl 4.1.5.2(b) provides different minimum dimensions for landscaped area, when compared to the minimum dimensions for total open space. 51I prefer and adopt the applicant's submission regarding the interpretation of cll 4.1.5.1(b) and 4.1.5.2(b). The definition of total open space in the dictionary of DCP 2013 is that part of a site which is designed or designated to be used for active or passive recreation, and includes landscaped area, hard paved areas (un-enclosed pedestrian walkways and access paths...), swimming pools occupying less than 30% of total open space and private open space; but excludes any area for parking, outbuildings and roof top decks on dwelling houses [italics added]. The minimum horizontal dimension for landscaped area of 0.5m, at cl 4.1.5.2(b) is incompatible with requiring a minimum horizontal dimension (for landscaped area) of at least 3m in any direction, at cl 4.1.5.1(b). Logically interpreted, DCP 2013 requires firstly a calculation of total open space on the site, according to the definition and coupled with the minimum dimensions of 3m in any direction and unbroken area of 12sqm, and then, as a subset of total open space, a calculation of landscaped area, which, according to the definition in LEP 2013, is the part of the site for growing plants, grasses and trees, but does not include any building, structure or hard paved area. 52Total open space in the proposal therefore includes:
Addition of study to each townhouse 60The proposal includes infilling a small courtyard on the northern elevation of each townhouse on Level 2, to provide a study. 61According to Dr Shankar, the small courtyard articulates the facade of each townhouse and provides a private and sheltered seating area for each bedroom level of the development and should be retained. 62The facade of the building around the courtyard does not correspond to a similar 'cut-out' on the level over, so it does not achieve any logical or discernable articulation of the form of the development and 'filling in' the area with a study does not alter the envelope, so while it may add minimally to the numerical FSR, it adds nothing to the bulk of the development. The northern facade of each townhouse on Level 2 is not visible from the public domain and probably not even visible from the neighbouring dwellings. In my view, the addition of the study to each townhouse makes very little, if any, impact on the overall form of the development.
Pergolas over approved terraces 63The proposal includes the addition of pergolas over the terraces on the north-eastern corner of Townhouses 1 and 2 and a Vergola (operable louvre roof system manufactured by Vergola (NSW) Pty Ltd) over the balcony on the north-eastern corner of Townhouse 3. 64The planning experts agreed that the proposed pergolas (and Vergola) will not give rise to unreasonable adverse impacts on any view corridors and agreed on a condition of consent to limit the height of the pergolas, to not exceed the eaves of each townhouse (exhibit 3, p 4). The condition of consent 2(vi) (exhibit 8) states the following: The proposed pergolas located above balconies at Level 3 of Townhouse1, 2 and 3 are to be limited in height to no more than the eaves in that location. 65I accept the agreement of the planners that the pergolas (and Vergola) will not further erode the view corridors across the site and the imposition of a condition of consent in regard to the maximum height of the structures is acceptable. I am satisfied that the position of the pergolas will not have any additional impact on the views to the south-east from 48 White Street, as the pergolas are on the north-eastern corner of each townhouse and are located within the building envelope, created by the northern and eastern facades of the approved townhouses and what remains of the view corridor from 48 White Street is across the front, southern balcony of Townhouse 1 (over the 1.6m screen on the western side of the Level 3 balcony) and the front setback. 66However, I am not satisfied that the proposed condition is sufficiently specific, as I note that the roof, in the north-eastern corners over the balconies, is a 'cut-out' of the corner of the otherwise conventional hipped roof, so that the eaves around the terraces are not horizontal, but will rise at the same pitch as the roof. The pergolas are shown on the elevations as horizontal with the top of the pergola matching the height of the eaves of the principal elevations (Section D and Section F, DA13 Rev G, exhibit A). Notwithstanding what is depicted on the drawings, it could be inferred from the wording of the condition drafted by the planning experts, particularly the inclusion of the words, "in that location", that the maximum height of the entire area of the pergola structure can match the eave at the south-east corner of each terrace, which will be significantly higher than the eaves of the principal elevations (as shown in Section C, DA12 Rev H, exhibit A). In order to avoid any confusion, the following wording for condition 2(vi) in the conditions of consent is to be substituted for the agreed wording, as I am of the view this version better reflects the evidence of Dr Shankar. The maximum RL for the pergolas for townhouses 1 and 2 (which have a lower floor to ceiling height than townhouse 3) are 2.6m above the finished floor levels of Level 3 in order to ensure a comfortable floor to ceiling height under the pergola. The proposed pergolas (or Vergola), above the balconies on Level 3 of each townhouse, are to be at a maximum height as follows: Townhouse 1 RL53.05 Townhouse 2 RL54.35 Townhouse 3 RL55.84
Changes to the roof form 67The proposal is to delete the section of roof over the stairs and extend the hipped roofs over the stair, so that the approved 'pop-up' skylights over the stairs are deleted. This will lower the overall height of the roofs of each townhouse. 68The roof of Townhouse 3 impacts on the views from the dwelling at 58 West Street. The planning experts agreed that the RL of the topmost part of the approved roof of Townhouse 3 scales on the drawing at RL57.24. The proposal reduces the topmost height of the hipped roof at the ridge to RL56.94. 69The planning experts scaled the RL of the proposal (as there is no RL for the roof ridge shown on the sections or roof plan) and agreed that using a scale ruler, the RL of the proposed roof of Townhouse 3 is shown at RL56.7. Dr Shankar is concerned that the plans may have been misleading for the adjoining neighbours when the plans were notified, because the RL sought by the applicant for the ridge of Townhouse 3 is now slightly higher than what was drawn on the plan. 70While I understand and appreciate Dr Shankar's concern, I am satisfied that the RLs submitted by the applicant at the end of the hearing for the ridge of the roofs of the three townhouses are acceptable, because the proposal reduces the overall height of the approved each of the townhouse roofs when compared to what is approved and will result in a small improvement in the views to be retained from 58 West Street.
Conclusion 71I am satisfied that the proposal can be granted consent, following amendments setout in the directions below, to the architectural and landscape plans and consolidated conditions of consent, for the following reasons:
Directions 72Directions were handed down on 24 September 2014, requiring the following: The applicant is to amend the architectural and landscape plans as follows: to be consistent; maximum RLs are to be shown on the roof ridges on the architectural plans, Townhouse 1 RL54.1; Townhouse 2 RL55.35; Townhouse 3 RL56.94; the landscape plan is to be amended to accurately show the extent of the rock formation on the western boundary adjacent to Townhouse 3 being excavated and any proposed plantings in that excavated area; the landscape plan is to include a dimension of 500mm for the setback of the stairs in the north-eastern corner of the site from the eastern boundary; and the architectural plans are to delete the additional paving shown at the rear of the site. The respondent is to file amended conditions of consent as follows: condition 2(i) is to be amended to delete "An additional" and replace with "A second" (for clarity, as two Melaleucas are shown on the landscape plan exhibit B); condition 2(ii) is to be deleted; condition 2(iv) is to be clarified by the Council's traffic expert, it should probably be "a minimum internal dimension of 5.4m" as the wording "a minimum length" lacks clarity; condition 2(vi) is to be amended in accordance with paragraph 66 of this judgment; the wording of condition 3B is to be changed to delete "until a new Construction Certificate is issued" and replaced with "prior to the issue of a Construction Certificate"; list the amended plans revision numbers and dates; and the conditions are to be in accordance with this judgment. The applicant is to file and serve the amended plans by Friday 10 October 2014 and the respondent is to file the amended consolidated conditions of consent no later than Friday 17 October 2014. Liberty to restore on 2 days notice. Orders will be made in chambers. 73The amended plans and the amended, consolidated conditions of consent were filed in accordance with the directions.
Orders 74The orders of the Court are: (1)The appeal is upheld. (2)Development Consent No. 21/2012, for 46 White Street, Balgowlah, is modified by enlarging the basement, adding a study to each townhouse, modifying the form of the roofs and making minor changes to the internal layout of each townhouse, in accordance with the consolidated conditions of consent at Annexure 'A'. (3)The exhibits, other than exhibits 2, 7 and A, 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: 20 October 2014
Donohoe
Manly Council