Lozevski v Manly Council

Applicant: LEGAL REPRESENTATIVES: Mr Adrian Galasso SC leading Mr Turvey To, barrister instructed by Flowers Legal Respondent: Ms Colleen Schofield, solicitor of Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Manly Council (the council) of a development application to demolish the existing buildings and erect a six-level building containing four apartments on lot 27 DP 3806, known as 110-112 Bower Street, Manly.

The site 2 The site is on the west side of Bower Street and has a frontage to Marine Parade. Marine Parade is a pedestrian promenade, highly favoured and frequented because of its great beauty, connecting Shelley Beach to Manly Beach. The site's are is 874m2. There is a fall of 9m from Bower Street to Marine Parade. Two apartment buildings containing eight apartments now occupy the site. 3 The development on Bower Street is mixed. There are some bulky (and ugly) buildings and there are also smaller two-storey houses and duplexes. The site's immediate neighbours reflect this character. The building to the north is two-storeys to the street, while the building to the south is five-storeys. Most of the buildings on the other side of Bower Street are small.

The proposal 4 The applicant proposes to demolish the existing buildings and erect a new six-level building. The building appears three-storeys to Bower Street, while the appearance from Marine Parade depends on the viewpoint as the upper levels are set back from the Parade. The lowest level is excavated from side boundary to side boundary. There are pools on the terraces at four levels, including one lap pool. 5 The applicant lodged the application in July 2006. Following notification, the council received 19 objections. The main topic of objection was excessive development resulting in view obstruction for the objectors. After considering a report by its planning staff and accepting its recommendation, the council refused the application in October 2006. The applicant lodged the appeal in November 2006.

Relevant planning instruments and policies 6 The Manly Local Environmental Plan 1988 (the LEP) zones the site Zone No 2 Residential. Development Control Plan for the Residential Zone 2001 (the old DCP) was in force when the application was lodged. Development Control Plan for the Residential Zone 2007 (the new DCP) replaced the old DCP in April 2007. It was common ground that this application should be assessed on the controls in the old DCP; however, regard should be had also to the new DCP.

Matters in Contention 7 The council filed an amended Statement of Contentions containing 14 matters. During the hearing it emerged that the major issue was the wall height and floor space of the proposal and its consequential impact on the views of neighbours. The council also contended that the appearance to the water was too bulky; that excavation was excessive; that there should be no above ground pools; that there was not enough open space and landscaping; that the setbacks were inadequate; that there was too much overlooking and overshadowing of neighbours; and that the proposal was not of good design.

The objectors' evidence and Mr Goodyer's comments 8 The Court heard the evidence of objectors on site. Robyn and Greg Hall, who live at109 Bower Street, were concerned about the view loss from their first-floor bedroom and balcony. The Halls mentioned that, when they renovated their house, they had to comply with council's controls. They expected the developer of this project also to do so. The Court-appointed planning expert, Mr Geoff Goodyer, assessed this view loss as moderate to low. 9 Mr Cameron Middleton, who lives at 113 Bower Street, was concerned about view loss from the bed-sitting room and from the balcony. Mr Goodyer identified this impact to be caused by the top level of the proposal and assessed it as unreasonable. 10 The Court inspected the house of Ms Hope McClintock, who lives at 115 Bower Street and who could not be present because she was in hospital. The view loss was from the living room. The loss of water view was caused by the second floor; however, there was significant loss of sky view caused by the third floor. 11 Ms Marietta Sutherlin, who lives at 8/11 Reddall Street, was concerned about view loss from her living room window. In Mr Goodyer's opinion, the view loss was caused by non-compliance with controls and was unreasonable. 12 Ms Esme Nichols, who lives at 4/11 Redall Street, was concerned about view loss from the lounge room. Mr Goodyer assessed the impact as low. 13 The Court inspected also unit 5, 11 Reddall Street in the absence of its owners. Mr Goodyer found this impact material and suggested a deletion of part of the top floor and part of the floor below the top floor to remedy it. 14 The Court also heard the objections from neighbours to the north and south. They were: Mr Dennis Astley and Ms Doreen Palmer, who live at 3/114 Bower Street; Ms Alexandra Ludlow-Highland, who lives at 4/114 Bower Street; Mr Michael Berney, who lives at 6/17 Marine parade; Mr Anthony Dick, who lives at 4/17 Marine Parade (also representing Mr Loveday of 5/17 Marine Parade); Mr Grant Ellsion, who lives at 1/17 Marine Parade; and Ms Helen Gilbert, who lives at 7/17 Marine Parade. These objectors were concerned about overshadowing, overlooking, the pools at the upper levels and the proposal being pushed too far forward towards Marine Parade. In Mr Goodyer's opinion, these objections were either not valid, or it was possible to respond to them with conditions.

Height and FSR and its impact on views 15 Both the old and the new DCPs establish a Floor Space Ratio (FSR) of 0.6:1 for the site. (On 16 July 2007 the council resolved to lower the FSR to 0.4:1. Given that this has not been exhibited, I give the resolution minor weight.) The FSR of the existing buildings on the site is 0.82:1. The FSR of the proposal is 0.93:1. The wall height control in the old DCP is 7.3 to 7.4m. The proposal exceeds the control for most of the third floor. The old DCP favours two-storey buildings. The proposal appears three storeys from Bower Street. 16 As mentioned above, Mr Goodyer has assessed the proposal's impact on views. He based his assessment on the planning principle established in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC140 and, as a result, he assessed the impact of the non-complying elements of the proposal more strictly than that of complying elements. He concluded that the impact on views was unreasonable and the whole of the third floor, and possibly part of the second floor should be removed. The removal of the rhird floor would bring the building into compliance (or at least near-compliance) with the wall height control, though not with the FSR control. 17 During oral evidence it became clear that Mr Goodyer accepts that the FSR of the existing building on the site justifies a variation of the permissible FSR to the current level, ie 0.82:1. The applicant's expert, Mr Vince Squillace, who is also the proposal's designer, justifies the FSR of 0.93:1 on the basis of the surrounding development and skilful design. Mr Squillace provided diagrams proving that what he called the complying building envelope obscures more view than does the proposal. I do not think that this evidence is relevant, since the complying building envelope is not the outline of a building that would be permitted by the DCP's other controls such as setbacks and FSR. The building envelope is not a building; it is a shape within which a building must be contained. Other controls ensure that the building cannot actually fill the shape. Therefore the notion of the view obstructed by a building envelope is meaningless. 18 I accept Mr Goodyer's evidence that the view impact is unacceptable, because it is caused by parts of the building, such as the top floor, that are not mandated by the controls in the DCP. I am inclined to agree with him that the fact that the existing building has a FSR of 0.82:1 justifies a variation to 0.82:1, provided that there are no net negative impacts on the views of any of the dwellings in Bower and Reddall Streets. This should be easy to achieve, since the template of the existing buildings on the site is sufficient to accommodate the floor space. Designing within that template is, of course, not the only way to achieve a neutral impact; it is merely the simplest and surest way. What must be avoided is compensating for a negative impact on one apartment by a positive impact on another, as this would be an unfair distribution of impacts. 19 The applicant's advocate, Mr Adrian Galasso, submitted that the application of the Tenacity view principles resulted in an assessment of the view impact that was too rigid. I respond to this criticism by putting Tenacity aside and assessing the proposal's impact on the basis of view sharing advocated on page 37 of the old DCP. The objective of view sharing is to maintain and share views of existing and for future residents. 20 I ask rhetorically: in what way does the proposal promote view sharing? By extending the balconies within 2-3 m of Marine Parade, it provides its own residents with 180o views from six levels. Since the bedroom of the top unit on the third floor is above the living area, the top unit obtains views from two levels. Yet the third floor interferes with the much more modest views currently enjoyed by the residents of Reddall Street, who are in the fourth row of development that looks out to the Ocean. This seems to me more like view grabbing than view sharing.

Other impacts 21 Mr Goodyer's lack of support for the proposal was based on the view impact of components that do not comply with the wall height and FSR controls and the old DCP's preference for two-storey buildings. He did not think that the other issues raised by the council justify refusal. Since the council pressed the other issues, I deal with them briefly. 22 I turn to the proposal's appearance from the water. I do not think that this is a major negative feature. Marine Parade is highly urbanised, particularly near the site. As regards the setback of the balconies from Marine Parade, 2-3m seem to me inadequate, though I would not be inclined to impose 6m as mandated by the old DCP. I note that the old DCP requires a 900mm setback for excavation and that proposal's excavation is without any setback to the side boundaries. Mr Goodyer noted that the council's report appears to accept this and he concluded that this is not a requirement that the council's staff are in the habit of enforcing. If this were so (and there was no evidence about it), then it would be unreasonable to single out this application for compliance. 23 As regards the swimming pools at four levels, I note that the old DCP requires swimming pools to be at ground level. I do not agree with Mr Goodyer that the pools are unlikely to disturb the neighbours. They would be a source of noise from children jumping in and out. I note that Mr Squillace appears to have given little thought to where the filtering mechanisms would be located; these could also be a source of annoyance. Moreover, the pools are unnecessary, given the site's location within a few metres of one of Sydney's most desirable beaches. I see no justification to set aside the DCP in this regard. 24 The council considered the provision of open space inadequate. According to Mr Goodyer, the proposal complies with the requirement of the DCP. Given my general conclusion, there is no need for me to rule on the exact percentage of open space. The plans indicate that there is very little vegetation proposed on the site and that there would be little opportunity to soften the building form. 25 Mr Goodyer considered that the shadow impact was reasonable and that privacy screens would mitigate overlooking. I accept his evidence. Finally the design of the proposal, if it could be adjusted to eliminate adverse impacts, would be satisfactory.

Applicant's request for adjournment 26 In oral evidence Mr Squillace indicated that he could move the third floor to the south and thereby reduce much of the adverse view impact. On the basis of this evidence, the applicant requested an adjournment to allow amended drawings to be prepared. I did not think that it was appropriate to adjourn the proceedings on the basis of a suggested amendment of which the impacts were untested. However, I have given consideration to the possibility of establishing in my decision the parameters of an acceptable proposal and adjourning the proceedings to allow the applicant to respond to those parameters by producing amended drawings. 27 On reflection, I do not think that this would be an appropriate or even efficient way to proceed. According to Mr Goodyer, the least drastic amendment required to make this proposal acceptable would involve the deletion of the third floor, and possibly part of the second floor. Mr Squillace suggested only the moving of the third floor a few metres towards the south. This would not reduce the FSR and is unlikely to eliminate the view impact. Amended drawings would have to be re-notified and re-assessed, the site would have to be re-visited and the objectors heard again. The process would cost time and money without a good prospect of achieving a good community outcome. 28 For the above reasons the appeal is dismissed.

2. Development application to demolish the existing buildings and erect a six-level building containing four apartments on lot 27 DP 3806, known as 110-112 Bower Street, Manly is determined by refusal.

      Dr John Roseth
      Senior Commissioner

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