Finlay v Manly Council

Tenacity Consulting v Waringah [2004] NSWLEC 140; CASES CITED: Savage v Manly Council [2005] NSWLEC 131; Zhang v Canterbury City Council (2001) 115 LGERA 373; .

APPLICANT Mr A Sattler, solicitor Sattler & Associates LEGAL REPRESENTATIVES: RESPONDENT Ms C Schofield, solicitor Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Manly Council (the council) of Development Application 361 of 2005 for the erection of an opening and closing roof structure - known as a Vergola - (with side enclosures) at the uppermost residential level of Unit 1, 73 Fairlight Street, Fairlight (the site). 2 Above the uppermost residential level on the site, there is a further level upon which is located a swimming pool and further outdoor living area. It was not necessary for the purposes of this appeal to inspect that area. 3 I had the opportunity of inspecting the site and also to inspect three of the bedrooms on the upper-level and the outdoor living area on the lower level of the adjacent property to the north (which is 75 Fairlight Street).

4 A number of matters are put in contention in the appeal. Several preliminary matters require determination in order to define the parameters within which I am to decide this matter. 5 They relate to a number of questions of interpretation and number of assumptions of fact. 6 First, there was an initial issue as to whether or not the proposed structure was an enclosure within the meaning of the Manly Development Control Plan for the Residential Zone 2001 (the DCP). 7 I ruled that, as it was not intended to have any material across the western face of the proposed structure, the structure was not an enclosure for the purposes of the DCP. 8 That finding has two effects. The first is that this proposed structure does not, in my assessment, bring into play the provision of the DCP which indicates that the council does not approve of the enclosure of verandas and similar areas. 9 The second is that the area of the floor under the proposed structure does not become incorporated into calculation of the floor space ratio of the existing building. Although the existing building, "as approved", is in excess of the permitted floor space ratio, there would be no increase in the floor space ratio of the result of the proposal. 10 The next matter that arises to be determined is whether the side structures supporting the proposed Vergola are or are not walls. 11 When this matter was agitated, toward the commencement of proceedings, I indicated that I was of the view that, although the sides were initially proposed to be entirely of glass louvres (and are now proposed, on each side, to be one panel of glass louvres and two panels of fixed clear glass), nonetheless, as they were mounted upon a pediment, which was contiguous with the floor of the outdoor space and rose uninterrupted to the Vergola structure above - a structure which for its maximum utility (at least for a significant portion of time) would be closed and consequently should be regarded as constituting a roof - and that the uninterrupted elements which would support the Vergola should, therefore, as a matter of logical necessity, be regarded as walls. 12 Although not accepted by Mr Sattler, solicitor for the applicant, as being an appropriate interpretation, he accepts that the consequence of such an interpretation is that there is a 1.55 m exceedance of the maximum permitted wall height at the relevant point for this structure when the provisions of cl 3.4 Building Height of the DCP are considered. 13 The three issues to be determined arise from objectives of the DCP to minimise disruption to views; loss of privacy; and loss of sunlight to existing residential development. 14 At this stage, I note that there was an objection from the owner of the property immediately to the south of the site on the basis of loss of sunlight. 15 It is my assessment, although without the benefit of shadow diagrams (an assessment that was concurred in by the solicitors for both the applicant and the respondent), that there would be no relevant loss of sunlight as at midwinter on the living areas of that property. I am not persuaded that, in this regard, I should give any weight, let alone determinative weight, to that resident's objection. 16 The next matter that arose for my consideration is whether or not an existing lattice structure on the northern side of the current balcony area should be regarded as being lawfully erected and therefore part of my consideration when assessing the loss of views from the property to the north. 17 Despite an application by Ms Schofield, solicitor for the council, for me to permit a short adjournment, after the closing of evidence but prior to the making her submissions, to permit the retrieval of the council's file in order to enable this matter to be determined, as I had extended an invitation, on several occasions earlier during day for this to be done, I declined to permit that at this time. 18 I have, therefore proceeded to consider this matter on the assumption that that lattice is lawfully erected. 19 The final assumption that I have made is that the clear plastic elements that are affixed to the outer edge of the southern railing of the current balcony area are lawfully in place. 20 It was put, by Mr Sattler, that the proposed structure will increase the usable area and increase the amenity for the present occupants of the site. That is undoubtedly a correct assertion.

21 However that is not the dominant matter which I am obliged to determine these proceedings. What I am obliged to determine in these proceedings is whether or not the impact on others who might be affected (as the proposal is not compliant with the relevant planning controls) is such that the provision of that additional usable area and amenity into the occupants is not accompanied by an unreasonable price to be paid by those others. 22 In that regard, there are several matters which are put by the council, in the Statement of Issues, requiring my consideration and determination. 23 A number of them are, in my assessment, of comparatively minor concern. 24 The question, for example, raised in Issue 6, of the view of the site from either the harbour or, at a long distance, from the other side of the nearby bay, is one which would be, at the very most, of minor weight in considering whether or not the proposal to be permitted and any impact would, in my assessment be so little as to be de minimus and therefore not contributing to refusal or warranting any amendment to the proposal. 25 Second, with respect to the issue of impact on the privacy of the neighbours, I am satisfied that, if there were to be an impact that that could be dealt with, as to aural impact, by way of conditions as to the thickness of glass and, further, if there were to be visual impacts, those visual impacts are really a matter entirely encompassed within the question of view loss. 26 As to the bulk of the proposal, I am satisfied that its visual bulk impacting on the most easterly of three bedrooms at the adjoining property to the north is also of comparatively minor impact. The assessment of this impact is somewhat diminished by my assumption as to the lawfulness of the lattice.

27 In reality, the totality of determinative matters arising to be dealt with concern the impact on the proposal on the views of the residents of the properties to the north of the site. 28 There are two properties, to the north of the site, with respect to which objections have been raised on the basis of view loss. 29 I turn to deal with those properties from north to south. There is a written objection, noted at page 68 of the council's bundle, from Mr Polkinghorne, a resident of 77 Fairlight Street - that is the property two to the north of the site. 30 Mr Polkinghorne is unable to the present at today's hearing but has repeated his objections in a letter received into evidence this morning. 31 I have considered the proposal, as it is now put to me (having been amended twice during the course of today's hearing) and its impact on Mr Polkinghorne's balcony. 32 I have, on the site, from the most southerly points from where the supports for the Vergola and the supports of the glass panelling would be located, turned and looked toward Mr Polkinghorne's balcony. 33 I am satisfied that the only impact that would be caused to his balcony would be in an extremely small area located in the outermost, south-western corner of the balcony. 34 I am satisfied that whatever is contained in the DCP or the objectives of the Manly Local Environmental Plan 1988 (the LEP), the impact on Mr Polkinghorne's views, if the application as presently amended were to be permitted, is so little as not to warrant refusal of the application nor to contribute significantly to any such refusal. 35 The critical views, in this appeal, are those of the residents of 75 Fairlight Street. 36 In this regard, it is appropriate to consider the planning principles set out by Roseth SC in Tenacity Consulting v Waringah [2004] NSWLEC 140. This decision sets out a number of tests considering view sharing principles and how that analysis should be applied. 37 Both Mr Sattler and Schofield referred me to the decision of Murrell C in Savage v Manly Council [2005] NSWLEC 131. On my understanding, that case dealt with setbacks and their impacts rather than questions that are relevant in this case. I am satisfied that Savage does not take these issues any further than those principles as are already set out in Tenacity Consulting. 38 Although I am not required, as a matter of law, to follow the principles set out Tenacity Consulting, I am satisfied, on the merits, it is appropriate to have regard to them. 39 In my view, this is entirely appropriate arising out of the provisions of cl 3.8 of the DCP where it sets out its objectives concerning views: - The first is to ensure continued public and private access to the expansive views of Sydney Harbour and the ocean etc; - The second is to minimise view loss from the adjoining or nearby properties or public places while still recognising the development potential of a site; and - The final objective reinforces the concept of view sharing. 40 It is also appropriate to note, when I consider the third step in the Tenacity Consulting process, that cl 3.8.2 of the DCP, in the second of the performance criteria, gives particular emphasis to views from main living areas and associated terraces and balconies of existing and proposed developments. 41 Having said that, I now turn to address the steps in Tenacity Consulting and the provisions of the DCP. 42 It is now established, as a consequence of the decision of Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, that I am right to take the DCP as the fundamental element in, or a focal point of, my consideration of relevant provisions of the DCP. 43 On one hand, the mere fact that a proposal meets the requirements of the DCP does not automatically mean that development consent will be granted. However, on the other hand, as discussed by Spigelman CJ at para 75 on pp 386 and 387 in Zhang, if a proposal does not meet the DCP's requirements, the Court may still grant consent, in appropriate cases, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Act. 44 It is that discretion, which is described by Roseth SC in the third step in the Tenacity Consulting process, as well as to a lesser extent in the earlier steps in that process that is relevant here. 45 I am satisfied that, as a consequence of my determination as to wall height, the present proposal is a non-complying development. I am further satisfied that the views potentially to be impacted will, in fact, be impacted as an effect of approval of the structure. I have reached that conclusion for the following reasons. 46 Although Mr Sattler suggests that the applicants would have an interest in maintaining the cleanliness of the proposed clear glass elements to the proposed structure (and that, therefore, I should not regard the existence of two proposed clear glass elements of the structure as providing any impedance to views from neighbouring property), I am not prepared to make that assumption for two reasons - even on the assumption that that cleanliness were maintained. 47 The first arises from what Mr Sattler describes as one of purposes for the erection of the structure in first instance - namely the protection of the residents of the site from rain. By necessary inference, for that to be of utility there must rain falling from either the north or the south falling onto and running down the glass windows. 48 I am satisfied that, as a matter of fact, during times of rain, the rain on those windows is going to act as an interruption to the views through that glass. 49 Second, I do not accept that a presence of a number of panes of glass would have no distorting element on the views when viewed through them. 50 However, the third and certainly most critically point is the fact that the structure is located in an area that effected by sea breezes. It is a matter of fact that sea breezes leave salt deposits on glass. Therefore, I am not prepared to make the assumption that that cleanliness would be sufficiently maintained - even accepting goodwill and neighbourliness on behalf of the applicant.

51 I am satisfied that the glass, wall elements of the structure will operate to provide an unacceptable impact on the views, particularly from the master bedroom and the second bedroom of the property immediately to the north. 52 The views that are affected are, in my assessment, views that are directly to North Head and to the residential apartment block known as Kilburn Tower. 53 Whilst it is true that there are other significant views from those rooms, those views are, themselves, an important part of the panorama from the second bedroom of the property to the north; they are a significant and dominant element of panorama; and, from the southern window of the master bedroom, whilst not the totality, they are also a significant part of panorama from that widow. 54 It is clear, in considering the second test set in Tenacity Consulting, that these views are not views across the front or rear property boundaries nor are they views across the public domain - they are views across side boundaries and therefore, as the Senior Commissioner correctly noted, they are more difficult to protect than direct views. 55 That position is also correct in terms of the provisions of the DCP which, as earlier noted, give greater emphasis to views from living areas than views from other rooms (which are to be given lesser protection than views from living areas). 56 The fourth step, however, is the determinative one in these proceedings and the one upon which the development application fails. This is whether or not the impact is such, as it arises from a non-compliant development, to be sufficiently moderate as to be considered reasonable. 57 I am satisfied that, although the roof structure and the support of the roof structure will not provide, in my opinion, any significant impact on the views, the distortion and interruption which will inevitably arise (if not on all occasions, from time to time and to a significant extent) as a result of the proposal for the glass panels on the northern and southern faces, will mean that it is at least (and probably more than merely) a moderate impact on views from the property to the north. 58 A different question might well have arisen had the proposal been a fully compliant one - however, in my opinion, it would still have remained on the cusp of refusal. 59 The applicant was afforded the opportunity, on several occasions during the course of today's hearing, to amend his application. Two amendments were made - both of which, to varying or lesser extents, retained the incorporation of the glass walls to the structure. I am satisfied that the glass walls of the structure would certainly provide a significant increase in the amenity and utility of the outdoor area for the residents of the site. Nonetheless, I am satisfied that, however, because they are the walls that themselves create the non-compliance, they are the reason for the failure of the application. 60 Therefore, the orders of the Court are that: 1. The appeal is dismissed; 2. Development Application 361 of 2005 for the erection of an opening and closing roof structure known as a Vergola (with side enclosures) at the uppermost residential level of Unit 1, 73 Fairlight Street, Fairlight is determined by the refusal of development consent; and 3. The exhibits are returned.

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