Lord v Manly Council

Lord v Manly Council - [2010] NSWLEC 1223 - NSWLEC 2010 case summary — Zoe

[8]

JUDGMENT 1 Commissioner: This is an appeal against the refusal by Manly Council (the council) of a development application (103/09) to demolish an existing dwelling, swimming pool and garage and construct a new dwelling, double garage, swimming pool and landscaping works at 71 Bower Street, Manly (the site). 2 Council contends that the proposal has unacceptable visual bulk, view loss, privacy and overshadowing impacts due to its non compliance with the number of storeys, wall height, floor space ratio (FSR) and setback controls in Manly Development Control Plan for the Residential Zone 2007 Amendment 1 (the DCP). The site and its locality 3 The site is located on the southern, upper side of Bower Street. It is trapezoid in shape and has a frontage of 16.365m to Bower Street and Montpelier Place, a depth of about 45.8m and a site area of 699sqm. 4 The site slopes down approximately 5.5m from Montpelier Place to Bower Street and has a moderate fall from east to west. 5 The site is developed with a two storey brick dwelling with a pitched tile roof. There is a swimming pool at the northern part of the site and two single garages that are accessed off a right of way from Montpelier Place. 6 Adjoining development to the east is a three storey house (69 Bower Street) and to the west is a two storey house (73 Bower Street). To the south, on the opposite side of Montpelier Place are recently completed houses that are two stories above basement car parking and storage. 7 The locality is a mixture of older residential flat buildings and detached houses. Planning controls 8 The site is within Zone 2 Residential under Manly Local Environmental Plan 1988 (LEP1988). The proposal is permissible with consent. 9 The site is within a Foreshore Scenic Protection Area. Clause 17 of LEP 1988 requires that the development not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area. 10 The site is within Density and Height subzone 5 in the DCP. The DCP includes controls for FSR (cl 3.4), Building Height (cl 3.5), Setbacks (cl 3.6), Swimming pools and Spas (3.8), Sunlight and Overshadowing (cl 4.1), Privacy and Security (cl 4.2) and Maintenance of Views (cl 4.3). The evidence 11 The Court visited the site and heard evidence from residents of Montpelier Place whose principal concerns were the impact of the height of proposal, particularly the three storey element, on their views and the precedent that approval of the development may set for the redevelopment or alterations to other dwellings in Bower Street. The residents stated that their understanding when purchasing their properties was that a two storey height limit applied. The adjoining resident at 69 Bower Street was also concerned about the visual bulk of the proposal and its impact on their views, privacy and overshadowing. The adjoining resident at 73 Bower Street was concerned about the decreased setback and the increased height of the proposal in comparison to the existing house, which he considered would result in unacceptable bulk and no opportunity for landscaping. 12 The Court heard expert planning evidence from Mr S Layman, for the council and Mr R Fleming, for the applicant. They disagreed on the proposal's compliance with the FSR, wall height and side set back controls in the DCP. This disagreement centred on different interpretations of these controls. They agreed that the proposal did not comply with the two storey height control but held different opinions about the impact of this non compliance, particularly in relation to view loss and overshadowing. 13 Part 3 of the DCP requires that variation from the numerical controls will need to meet the objectives of the control and also demonstrate that a more desirable outcome is achieved. The experts disagreed on whether the objectives of the controls would be met and also on whether a more desirable outcome would be achieved by the proposal.

[9]

Floor Space Ratio 14 Mr Layman estimated the FSR of the proposal to be about 0.64:1 (446sqm), which is 131sqm over the FSR permitted under the DCP of 0.45:1 (314.55sqm). Mr Fleming estimated the FSR to be about 0.5:1 (353sqm), which is 38.45sqm over the control. 15 The difference principally arises from whether the stairs and part of the car park and plant room used for storage should be included as gross floor area (GFA). 16 The DCP includes a definition of GFA which excludes items including: d) any area for common vertical circulation, such as lifts and stairs, and e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and g) car parking to meet any requirements of the consent authority (including access to that car parking), and … Note: For the purpose of calculating gross floor area, any proposed car parking which is greater than the required DCP rate of parking provision and standard dimensions (30sqm in area) will be included as gross floor area. While Council recognises that in some circumstances additional parking may be justified, the additional parking will be counted as gross floor area and FSR. 17 In Mr Layman's opinion, the stairs should be included as GFA, as they do not provide "common" vertical circulation, which would be the case in a residential flat building. Mr Fleming states that "common" does not refer to residential flat buildings but to any vertical circulation space that links common areas. 18 The experts disagreed whether the whole of the plant room should be excluded from GFA. Mr Layman referred to cl 5.7 of the DCP which provides that: Plant and machinery rooms shall have floor area no larger than the actual area the plant and/or machinery occupies plus the equivalent of a 500mm access/maintenance area surrounding the plant/machinery item. 19 In Mr Layman's opinion, the plant and access occupy about 15.5sqm of the 65sqm plant room and that the remainder is storage, which should be included as GFA as it is not within a basement. Mr Fleming considered that the majority of the area should be excluded as it is either plant or within a basement. The difference of opinion relating to whether the area was a basement resulted from whether the excavation for the existing building or the unexcavated ground level adjoining the existing building was considered to be "existing natural ground level". 20 The experts also disagreed on the area that should be excluded for parking. Mr Layman stated that 30sqm was required to meet the requirement for two car spaces in the DCP and that there were no particular characteristics of the site which require greater manoeuvring requirements for access. 21 Mr Fleming accepted that the storage area in the garage should be included as GFA but considered the swept path area for vehicles accessing the car parking spaces (Exhibit F) should be excluded.

[10]

Findings 22 There was agreement that the proposal exceeds the numerical FSR control. In adjudicating on what items should be included within GFA, other than for the stairs, I accept Mr Layman's opinion that the plant room, not used for plant and access, the non basement storage areas and some of the manoeuvring area for vehicles should be included as GFA. 23 The exclusion of "common vertical circulation" in the DCP does not refer only to residential flat buildings, while I accept that the use of the word "common" is confusing, a practical interpretation would be to exclude the stairs from GFA. 24 There is no definition of basement within the DCP, however generally a structure, which extends more than one metre above natural ground is considered to be a storey and not a basement. The DCP defines "existing natural ground level" to be: Existing natural ground level means the level, at Australian Height Datum, of the ground at 28 May 2001. 25 Based on this definition, the excavated area of the existing dwelling would be the existing natural ground level. Therefore those parts of the plant room that are more than one metre above this level and that are storage rather than plant would be GFA. 26 The swept path diagram is based on a 99% vehicle. No expert evidence was called about manoeuvring and access requirements. Even based on the diagram, the extent of manoeuvring area is excessive given that the car parking could be located further forward in the garage. 27 From the information it is not possible to accurately estimate the amount of area that would be included or excluded as GFA. However, the exceedance of the control would be greater than that estimated by Mr Fleming and less than that estimated by Mr Layman. 28 The key question is whether the proposal meets the objectives of the FSR control given that there is an agreement that it exceeds the numerical control. In answering this question, the appropriate approach is to look not only at those areas where there was a dispute about whether they should or should not be included as GFA and therefore in the calculation of FSR, but rather at the development as a whole. There is no reason to limit the assessment of bulk to the garage or plant room that exceeds the FSR control. Those parts of the building, which do not comply with other controls in the DCP, would attract particular attention.

[13]

Number of Storeys 34 In their joint report, Mr Layman and Mr Fleming generally agreed on the extent of the three storey part of the proposal. Mr Layman provided a diagram (Exhibit 8), which illustrates that the north east corner of the building is three storeys. However, Mr Fleming subsequently stated that part of this area was over rooms, which would not be included as a storey. Both experts acknowledged that part of the top floor is two storey and complies with the storey control in cl 3.5.4 of the DCP. 35 Mr Layman and Mr Fleming held different opinions about the number of storeys of the houses in Montpelier Place. Mr Layman stated that these houses have two habitable floors over a partly excavated garage and storage level. The dwellings were recently approved under different controls. There are no houses to the rear and therefore impacts such as view loss and overshadowing did not arise. 36 Mr Fleming considers the dwellings in Montpelier Place and other dwellings fronting Bower Street, including 69 Bower Street, are three storeys and provide the context in which the proposal must be considered. Further, he states that the proposal provides an appropriate transition in height between 69 and 73 Bower Street. 37 Findings 38 The DCP defines maximum wall height as: Maximum wall height is the greatest vertical distance from the existing natural ground level to the underside of the eaves the top most floor. 39 Clause 3.5.5 of the DCP permits roof structures to extend up to 3m above the maximum wall height. Under cl 3.5.7, if the maximum roof pitch of 35 degrees is exceeded, it is part of the maximum wall height. Clause 3.5.6 of the DCP states: Parapets may extend 600mm above the proposed external wall height where it is considered by the Council to be appropriate to the design of development… 40 "Parapet" is not defined in the DCP and while the controls are clear in measuring maximum wall height in a building with eaves and a pitched roof, it is unclear how the maximum wall height is to be measured where there are no eaves and in what situations a parapet may be appropriate. 41 The characteristics of the site, given its topography and the previous excavation, also make a sensible interpretation of the numerical control difficult. Whether a parapet concession is included or not, the proposal exceeds the maximum wall height in the north west corner and part of the top level is three storeys. 42 I accept Mr Layman's evidence that the parapet above the wall height is not appropriate to the design of the development in this location, given that there are no other parapet roof forms in the area and that it increases the wall height of the building which results in greater bulk, view loss, overshadowing and non compliance with the maximum wall height control. 43 The key question before the Court is whether the height of the building; both the wall height and the number of storeys meets the objectives of the height control in cl 3.5 of the DCP. These objectives are to be met by both complying and non complying parts of the building. 44 The objectives for building height in cl 3.5 of the DCP are: a) To regulate the height of buildings by specifying maximum wall and roof heights; b) To assist in controlling the bulk of buildings; c) To provide for building heights that are consistent with the prevailing building heights in the locality; d) To minimise disruption to views from adjacent and nearby residential development and from public spaces; e) To allow sunlight to penetrate private open spaces within the development site; and f) To allow adequate sunlight penetration to private open spaces and windows to the living spaces of adjacent residential development. 45 As with FSR, the experts held different opinions on whether the proposal meets the objectives of the height control. The main disagreement being whether the proposal minimises disruption to views. Mr Galasso, for the applicant, submits that the breaches in the wall height and number of storeys would result in no greater impact than from those parts of the building, which comply with the controls. Further, he submits that a pitched roof would have a greater impact than the proposed flat roof with a parapet. 46 While this may be the case, there are clearly opportunities in the current design to further minimise the disruption on views without reducing the amenity and views available for the proposal. The height of proposal (RL 37.53) could be reduced by 600mm to generally the ridge height of the existing building (RL36.69) by a combination of measures including reducing the floor structure (now 470mm), the "parapet" (now 550mm), the floor to ceiling of the top level (now 2.7m) or a minimal increase in excavation of the lower level. With this change, the proposal would meet the objectives of the control. This change is reasonable to impose as a condition and does not result in a different proposal. I have therefore included a deferred commencement condition to limit the maximum height of the proposal to RL36.93.

[15]

Findings 49 Clause 3.6.4 of the DCP states that: Side setbacks shall provide sufficient access to the side of properties to allow for property maintenance, planting of vegetation and sufficient separation from neighbouring properties (as illustrated in Figures 9, 10 and Table 4). a) In all residential sub-zones, the setback between any part of a building and the side boundary must not be less than 1/3 the height of the adjacent external wall of the proposed building; 50 Clause 3.6.5(a) provides: a) Walls facing side boundaries shall be partially setback, where possible, to permit windows at 90 degrees to the boundary. In these circumstances, the Council will consider permitting part of a building to be constructed closer to the side boundary than one third of the wall height, provided another part of the building equal in area to the area protruding beyond the setback line, is setback horizontally an equivalent amount further than the one third setback requirement. 51 The proposal provides a varied setback along the western side, with parts of the mid level that are greater than the required side setback and parts that are less. No windows are provided along the mid level facing the boundary and a small window is provided at 90 degrees to the boundary in the living area facing north, as well as glass doors to the roofed courtyard facing south. However, I do not accept that the increased setbacks are necessary to provide windows at 90 degrees to the boundary and therefore the variation in cl 3.6.5(a) does not apply. 52 I accept Mr Layman's opinion that the louvred wall adjoining the courtyard should be included in calculating the setback as it will have similar impacts to a wall of other materials. The setback to the south of gridline E provides a courtyard to the development. The benefits of the greater setback do not outweigh the impacts of the reduced setback on 73 Bower Street, particularly the north west corner of the building and the lack of landscaping. The setback of the proposal does not provide sufficient space for planting and separation from the 73 Bower Street, which are a stated purpose of the side setback control. 53 The impact can be addressed by increasing the setback along the western boundary to be minimum of 1.8m on the lower and mid level. This will provide sufficient space along the boundary for a path as well as screen planting and adequate separation between the proposal and 73 Bower Street and therefore meet the objectives of the control. This will also reduce the GFA of the proposal to achieve greater compliance with the FSR control. I note that the increased setback will require minor internal redesign of the lower and mid level but will not materially impact on the accommodation provided. A deferred commencement condition to this effect has been included. View loss 54 Both Mr Layman and Mr Fleming agreed that the proposal would not have an unacceptable impact on views from 69 and 73 Bower Street. The main concern of Mr Layman is the impact that the proposal has on the views from the properties in Montpelier Place. 55 Clause 4.3.2 of the DCP requires that 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. 56 The note to cl 4.3.2 requires that view loss be assessed from a standing position (eye height of 1.6m) and refers to the principles in Tenacity v Consulting v Warringah Council [2004] NSWLEC 140. Both Mr Layman and Mr Fleming assessed each of the properties against the principles in Tenacity and drew conclusions as to the extent of the view loss and its reasonableness. 57 The experts concluded that the properties most affected were 7 and 8 Montpelier Place but held different opinions on the extent of the impact and its reasonableness. Mr Layman concluded that the impact on 7 Montpelier Place was severe and 8 Montpelier Place was moderate to severe and was unreasonable as it resulted from a non complying third floor. Mr Fleming, on the other hand, considered the impact on both properties to be moderate to minor and that the key elements of the view, including the land water interface and the headlands would be retained. For the reasons discussed above, Mr Fleming did not consider that the view loss resulted from non complying parts of the building.

[47]

19 Any injured or dead Long-nosed Bandicoots should be reported by phoning the Department of Environment and Climate Change (DECC) on 9977 6732 or Manly Council on 9976 1500. Reason: It is essential that injured Bandicoots are given expert care in order that they can be rehabilitated and returned to the population, where possible. It is also important that any deceased Bandicoots are reported, so that appropriate investigations can be undertaken to understand the cause of death to inform the future management and recovery of the endangered Long-nosed Bandicoot population. Note: The applicant is further advised of the following:- Long-nosed Bandicoots - Best Practices for Residents Residents are encouraged to follow a number of "Best Practices" to assist with the protection and management of the endangered population of Long-nosed Bandicoots: Long-nosed Bandicoots and other native animals should never be fed as it may cause them nutritional problems, hardship if supplementary feeding is stopped, and it may increase predation. Feral cats or foxes should never be fed or food left out where they can access it, such as rubbish bins without lids or pet food bowls, as these animals present a significant threat to Long-nosed Bandicoots and other wildlife. The use of insecticides, fertilisers, or snail baits should be avoided on the property. Garden insects will be kept in low numbers if Long-nosed Bandicoots are present. When the North Head Long-nosed Bandicoot Recovery Plan is released it should be implemented where relevant. Dead Long-nosed Bandicoots should be reported by phoning Manly Council on 9976 1500 or Department of Environment and Conservation on 9977 6732. Please drive carefully as vehicle related injuries and deaths of Long-nosed Bandicoots have occurred in the area. Cat/s and or dog/s that currently live on the property should be kept indoors at night to avoid disturbance/death of native animals. Ideally, when the current cat/s and/or dog/s that live on the property no longer reside on the property it is recommended that they not be replaced by new dogs or cats. Report all sightings of feral rabbits, feral or stray cats and/or foxes to Manly Council.

[65]

The swimming pool is to be surrounded by a child-resistant barrier in accordance with the Swimming Pools Act and Regulations 1992 which: - separates the swimming pool from any residential building situated on the property and from any place adjoining the property, and - is designed, constructed, installed and maintained in accordance with the standards prescribed by the Regulations and appropriate Australian Standards. 2) All surface waters from areas surrounding the swimming pool must be collected and disposed of to the stormwater system. 3) Any doors providing access to the pool must be made child safe and comply with the following: - Doors providing access to the pool are not to have openings below a height of 1.5m above the floor that a round bar 105mm in diametercan be passed through, and - the door must be kept closed at all times when not in use and kept child-safe by means of a lock, latch, bolt or other child-resistant device located at least 1.5m above finished floor level; and - the door or door frame must not be provided with any footholds wider than 10mm between the release mechanism of the door and any point 100mm above finished floor level, and - the Regulations do not specify the use of self-closing devices on doors. However, Council recommends their use as an additional safety measure which will also ensure the door will remain closed when not in use; and - where the latching device release, or the latch itself, on a pool gate is located at a height less than 1500mm above the finished ground level, the latch and its release must be shielded in accordance with Australian Standard AS 1926. Windows giving access to the pool areas must be made child safe and comply with the following: - the bottom of the lowest opening panel of the window must (when measured in the close position) be at least 1.2m above finished floor level, and - have no footholds wider than 10mm between the bottom of the lowest opening panel of the window and any point within 1.1m below the bottom of that panel; or - be key locked or fixed by other approved means allowing no opening through which a round bar 105mm in diameter can be passed. However, if such windows are required for the ventilation of the room in accordance with the Building Code of Australia, they must be protected by way of a child safe grille only unless satisfactory alternative provision is made for ventilation.

[79]

All demolition is to be carried out in accordance with Australian Standard AS 2601-2001. 2) Demolition must be carried out by a registered demolition contractor. 3) A single entrance is permitted to service the site for demolition and construction. The footway and nature strip at the service entrance must be planked out. 4) No blasting is to be carried out at any time during construction of the building. 5) Care must be taken during demolition/ excavation/ building/ construction to prevent any damage to adjoining buildings. 6) Adjoining owner property rights and the need for owner's permission must be observed at all times, including the entering onto land for the purpose of undertaking works. 7) Any demolition and excess construction materials are to be recycled wherever practicable. 8) The disposal of construction and demolition waste must be in accordance with the requirements of the Protection of the Environment Operations Act 1997. 9) All waste on the site is to be stored, handled and disposed of in such a manner as to not create air pollution (including odour), offensive noise or pollution of land and/or water as defined by the Protection of the Environment Operations Act 1997. All excavated material should be removed from the site in an approved manner and be disposed of lawfully to a tip or other authorised disposal area. 10) Section 143 of the Protection of the Environment Operations Act 1997 requires waste to be transported to a place which can lawfully accept it. All non-recyclable demolition materials are to be disposed of at an approved waste disposal depot in accordance with legislation. 11) All materials on site or being delivered to the site are to generally be contained within the site. The requirements of the Protection of the Environment Operations Act 1997 must be complied with when placing/stockpiling loose material, disposing of concrete waste, or other activities likely to pollute drains or water courses. 12) Details as to the method and location of disposal of demolition materials (weight dockets, receipts, etc.) should be kept on site as evidence of approved methods of disposal or recycling. 13) Any materials stored on site must be stored out of view or in such a manner so as not to cause unsightliness when viewed from nearby lands or roadways. 14) Public footways and roadways adjacent to the site must be maintained and cleared of obstructions during construction. No building materials, waste containers or skips may be stored on the road reserve or footpath without prior separate approval from Council, including payment of relevant fees. 15) Building operations such as brickcutting, washing tools or paint brushes, and mixing mortar not be performed on the roadway or public footway or any other locations which could lead to the discharge of materials into the stormwater drainage system. 16) All site waters during excavation and construction must be contained on site in an approved manner to avoid pollutants entering into waterways or Council's stormwater drainage system. 17) Any work must not prohibit or divert any natural overland flow of water. Reason: To ensure that demolition, building and any other site works are undertaken in accordance with relevant legislation and policy and in a manner which will be non-disruptive to the local area.

At a glance

Court

Decision date

Source

Judgment (112 paragraphs)

Parties

Cases Cited (1)

Cited By (2)