George Munoz & Ors. v Manly Council

CASES CITED: Zhang v Canterbury City Council [2004] NSWLEC 500

DATES OF HEARING: 02/05/2006 and 13/07/2006

APPLICANT Mr M Seymour, barrister Instructed by: Mr J Pappas, solicitor SOLICITORS James Pappas Solicitors LEGAL REPRESENTATIVES:

RESPONDENT Ms L Finn, solicitor SOLICITORS Abbout Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT This determination was given extemporaneously and it has been edited prior to publication

1 This is an ex-tempore judgment for a matter that came before the Court on 2 May 2006 as consent orders. During the hearing of the consent orders on that day, the Court expressed concern about the streetscape and the 'fit' of the proposed development as the subject site is located in a conservation area. The Court however, gave the applicant the opportunity to amend the plans to address concerns expressed by the Court.

2 By way of comment, when the plans came before the Court on 2 May they were substantially different plans to those the subject of the original appeal. The proposal was amended as a result of the Court-appointed expert's recommendations. However, the Court did not accept the Court-appointed expert's recommendations or the plans before it on 2 May 2006.

3 The plans that have come before the Court today, known as Exhibit E, have been assessed by council's heritage officer, Ms Smith, and also council's town planner, Mr Watson. Mr Phillips, a heritage architect consultant has also provided expert evidence to the Court on behalf of the applicant.

4 By way of a description of the subject site, the subject site is known as No. 20 Denison Street, Manly. The site is rectangular in shape and has an area of some 331 sq m. It is a relatively narrow site and it is within the 'Pittwater Road Conservation Area' under the Manly Local Environmental Plan.

5 On its eastern boundary the site is adjoined by a right of carriageway approximately 900 mm and this serves a number of properties to the east.

6 At the commencement of the hearing on site the Court heard from an objector to the proposal, Mr Walters, who owns an adjoining property, and he is concerned about the proposed development providing continued access over the right-of-way for his property. As such a condition has been incorporated into the consent orders provided by the council to ensure owners of the adjoining properties have free access to the right-of-carriageway by providing a look that all have tags or a combination to.

7 The area, as I stated, is in the 'Pittwater Road Conservation Area' of Manly, and it is a relatively short street running through to the Manly Beach. On the western side of the subject site there is a two storey residential flat building, and on the corner further to the west there is a commercial and residential flat building. The subject property faces Denison Street and is on the southern side. To the east of the subject site there are single storey dwellings that contribute significantly to the heritage conservation area with front picket fences and verandas, and details of chimneys, gables, reflecting the era in which they were constructed. On the opposite side of Denison Street, there are semi-detached dwellings of a low scale with pitched roofs and low front fences as well as two storey buildings built to the boundary.

8 The site is zoned to permit two dwellings as proposed on the subject site under the Manly Local Environmental Plan 1988, and of particular importance are the provisions relating to development within conservation areas. The standard heritage provisions are contained within the LEP.

9 The Development Control Plan for the subject site is the Manly Development Control Plan Residential Zones 2001. In this plan there are provisions, or guidelines, with respect to conservation areas, and the protection of heritage items, and conservation areas.

10 The objectives are: - to retain and conserve items, and conservation areas, - to ensure modifications to heritage items and buildings within conservation areas is undertaken with proper knowledge of the significance of the item or the area; - to ensure that development in the vicinity of heritage items, conservation areas, recognises and protects the significance of those items identified at local, state or national levels.

11 There are a number of performance criteria in the DCP for development applications, in particular "alterations and/or additions should not detract from the heritage significance of the conservation area, and details of building materials should not seek to replicate period details of buildings but rather respect the form and scale of the original buildings on the site". Alterations or additions to buildings within conservation areas must not overwhelm or dominate the existing building, and there are references to architectural detailing.

12 Under protection of heritage items and conservation areas provision M relates to garages and carports and these are not permitted in front of the building alignment of a listed heritage item or buildings within conservation areas and should be carefully designed to minimise impact to the item or the area. There are also provisions for parking and access.

13 The Court, in accordance with Zhang v Canterbury City Council [2004] NSWLEC 500, must give "real, genuine, and proper consideration to the development control plan provisions". I am satisfied the amended plan does comply generally with the development control plan provisions for conservation areas with the exception of provision M, that is with respect to the garaging at the front of buildings. However on a holistic assessment of the proposed development I am satisfied in the circumstances of this case that a variation to that provision is warranted and that the proposed development will sit comfortably within the conservation area as now amended.

14 In this regard I am persuaded by the expert evidence that the proposed development respects the form and reflects the elements of the conservation area, without mimicking same, and that the detailing provided in the sketch submitted to the Court as Exhibit H does provide for the garage door element to be read as a less intrusive element than a double garage door with minimal setback to the streetscape. I am satisfied with the proposed detailing in the context of the streetscape, to reduce its visibility, and in terms of also reinforcing the rhythm with the adjoining properties to the east I am satisfied that the proposed development is one that will sit comfortably within the conservation area and it will not dominate the conservation area in terms of its architecture as it provides for a reflection of the elements of the conservation area which are considered to be valued within the Pittwater Road Conservation Area.

15 The development as now amended in the plans is a more passive development than the plans that came before the Court on 2 May which sought to provide a statement rather than a comfortable fit in the conservation area.

16 The experts, Mr Watson, Ms Smith, and Mr Phillips, have conferred jointly in these proceedings for today, and have assisted the Court in its assessment of the application, and I see no reason now as to why the Court should not agree to the consent orders as proposed between the parties subject to the conditions agreed to between the parties.

17 The final plans are to be approved by the Council as a deferred commencement. The deferred commencement is to ensure that the proposal from a heritage conservation perspective is carefully considered in terms of the details, as well as providing an appropriate form, and in that regard the recommendations that have come forward from the joint experts will provide the basis for those plans.

18 The amended plans are to be submitted for the council's approval in accordance with the sketch plan provided in Exhibit H, and the comments provided by Mr Watson, Ms Smith and Mr Phillips for details to be incorporated in such plans. On the basis of the deferred commencement the proposal is satisfactory in my assessment with the knowledge of the information that has been submitted to the Court today.

19 Such details as materials, finishes and colours, will also need to be approved as part of the deferred commencement prior to the consent operating. In addition the plans will need to clearly identify that the FSR of 0.75:1 is complied with. The deferred commencement plan will also need to identify the appropriate landscaping, (vines/vegetation) as referred to by Mr Phillips in his recommendations.

20 I should for the Court record go back and state that the proposal is for the demolition of the existing single storey dwelling on the subject site, and for the erection of a two storey x two dwellings on the subject site, with the provision of a car parking space for each dwelling in a double garage relatively close to the street boundary. In this regard I should note that Ms Smith was of the opinion that garaging is not consistent with council's development control plan guidelines, and that double garaging should not be provided on the street boundaries, or near the street boundaries. However in my overall assessment I am satisfied that the proposed development with garages having regard to the rhythm and proportions of the development, will not be dominant in the streetscape, and the proposed development is satisfactory in this regard.

21 The formal orders of the Court on the basis of the Court's assessment with the assistance of the experts here today is that: 1. The appeal in respect of the property known as 20 Denison Street, Manly, is upheld by consent. 2. The development application submitted to Manly Council, and as amended, is determined by the granting of consent subject to a deferred commencement and the other conditions contained in Annexure 'A'. 3. The exhibits, with the exception of E, H, L and 1 are returned to the parties. ___________________ J S Murrell Commissioner of the Court rjs

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