Lozevski v Manly Council

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 Lozevski v Manly Council [2007] NSWLEC 446

APPLICANT Mr J. Robson SC Instructed by McKees Solicitors

RESPONDENT Miss C Schofield, solicitor of Pike's Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 This appeal relates to a development application for the demolition of two existing residential flat buildings and the erection of a new residential flat building containing four dwellings with basement car parking for seven cars at 110-112 Bower Street, Manly (Lot 27 DP 3806). Each of the four three-bedroom/study dwellings will have large decks with north-easterly aspects over the foreshore and the ocean. The existing residential flat buildings are two/three storeys in height, have access off Bower Street and together contain eight dwellings.

2 The essentially rectangular shaped site has an area of 874 square metres with a fall of about 9 m over its 57 m length between Bower Street and Marine Parade. It has a width of 15.24 m.

3 In addition to its Bower Street frontage the site has a second frontage to Marine Parade that is constructed in the form of a pedestrian promenade above the rocky foreshore. This foreshore is an item of environmental heritage. It connects Shelly Beach to Manly Beach. 4 Existing development surrounding the site comprises a mixture of older style, large, multi-storey residential flat buildings (up to eight storeys) and smaller two-storey houses and duplexes. Adjoining the site to the north-west at 114 Bower Street is a two-storey dwelling house with a three-storey dwelling house at the rear. Adjoining the site to the south-east at 108 Bower Street there are two five-storey residential flat buildings. Opposite the site generally, existing development comprises two-storey elevated dwellings and a three-storey residential flat building.

5 The proposed building has a two-storey (south-west) presentation to Bower Street together with a driveway ramp down to the basement (Drawing No DA 06). The South-East (side) Elevation (and the long section through the building - Drawing No DA 07 & 08) reveals that it is to have five distinct levels but given the extent to which the building steps back at each level from Marine Parade up to Bower Street, the full five-level elevation (North-East Elevation Drawing No DA 07) will only be fully apparent (but visually significantly diminished) from quite some distance out to sea.

6 This judgment concludes that the appeal should be dismissed essentially because of the extent to which the proposed development fails to meet the requirements of the applicable development control plan. Advertising 7 The application was advertised on several occasions and some 16 submissions were received. The main concerns for the objectors involve excessive height, bulk and scale resulting in an inappropriate appearance in the streetscape and causing loss of ocean and beach views for the residents of dwellings opposite the site in Bower Street and in Reddell Street. Of concern to adjoining neighbours in addition to view loss is the loss of privacy and overshadowing as well as possible impacts from the proposed site excavation. Planning controls Manly Local Environmental Plan 8 The site is subject to the provisions of Manly Local Environmental Plan 1988. The aims and objectives of the LEP relevantly include: o to increase the availability and variety of dwellings to enable population growth without having adverse effects on the character and amenity of the municipality o to ensure that new development does not detract from the very special visual quality of the municipality. 9 Under the LEP the site is included in Zone No. 2 Residential and in this zone a residential flat building, not being prohibited development, is permissible with development consent. The objectives of the Residential zone relevantly include: o to allow a variety of housing types while maintaining the existing character of residential areas throughout the municipality, o to ensure that building form including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment, o to encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment. 10 In relation to the residential zone objectives, cl 10(3) of the LEP relevantly requires that consent shall not be granted unless the consent authority forms the opinion that the carrying out of development is consistent with these objectives.

11 Because the site is in a Foreshore Scenic Protection Area, cl 17 of the LEP relevantly requires that consent shall not be granted unless the development will not have a detrimental effect on the amenity of that foreshore area. Similarly because the site is located within the vicinity of an item of the environmental heritage, being the close-by ocean foreshore, cl 19 of the LEP requires that consent shall not be granted unless an assessment of the effect of the development on the item has been carried out.

Development Control Plan for the Residential Zone 12 Also applicable is Council's Development Control Plan for the Residential Zone 2007 - Amendment 1 that was adopted in August 2008. The DCP sets out design considerations and contains development controls involving: floor space ratio; wall height and number of stories; building setbacks; car parking; and excavation, cut and fill. The design considerations in s 2.4.8 of the DCP require that development should be responsive to and integrated with the slope of the site in order to minimise height and bulk that is to be assessed from surrounding public and private viewpoints. Attention is to be given to setbacks and undercroft areas that are to be carefully designed. Impacts on neighbours including loss of sunlight, privacy and views are to be carefully considered. The DCP also identifies landscape character and topography as important considerations and as a consequence excavation, cut and fill and other earthworks are subject to certain limitations. The more particular requirements of the DCP are considered later in this judgment in the context of the expert evidence. Previous judgment for this site 13 On 20 July 2007 Senior Commissioner Roseth gave judgment in Lozevski v Manly Council [2007] NSWLEC 446, this being an appeal for a six level residential flat building containing four dwellings on this same site. That proposal was very much the same as the subject proposal and in this regard the applicant's architect says that the principal difference between that proposal and the current design is the removal of the top storey resulting in the now proposed building having five rather than six levels.

14 That appeal was dismissed by the Senior Commissioner essentially on the grounds of view impacts, particularly the absence of view sharing. In this regard, and having heard no evidence to persuade me that I should take a different approach, I agree with the senior commissioner when he said, (in relation to the relevantly applicable maximum floor space ratio of 0.60:1 in the DCP), that: I am inclined to agree with him (Mr Goodyer, the single parties' expert) 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 impact on the views of any of the dwellings in Bower and Reddall streets. 15 He reached this conclusion on the basis that this test would be easy to achieve, since the template of the existing buildings is sufficient to accommodate the desired floor space. However he did accept that there are other ways to achieve a neutral impact as long as there would be no unfair distribution of impacts.

16 The Senior Commissioner also dealt with the proposed building's appearance from Marine Parade concluding that this is not a major negative feature. He reached this conclusion taking into account that Marine Parade is highly urbanised, particularly near the site. He also noted that the provision of open space complies with the requirement of the DCP. Shadow impacts were reasonable and that privacy screens would mitigate overlooking. More generally he accepted that the design of the proposal, if it could be adjusted to eliminate adverse impacts, would be satisfactory. Conciliation conference 17 During June and July 2008 a conciliation conference was held pursuant to s 34 of the Land and Environment Court Act 1979. That conference was terminated, no agreement having been reached between the parties. The resultant issues report noted that the issues in dispute with those contained in the Amended Statement of Facts and Contentions dated 12 June 2008, although the applicant maintained that the issues in dispute related mainly to view loss. Matters in dispute 18 According to the Statement of Facts and Contentions the council says that there are 12 separate matters in contention. Having reviewed these matters in the light of the evidence these contentions can be dealt with as follows: o The proposal does not comply with the objectives of the LEP in relation to visual quality, variety of housing types and building form and is not appropriately responsive to the design quality principles in State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development. o The proposal fails to comply with the floor space ratio, dwelling density, wall heights, number of storeys, setbacks, open space and excavation standards in Manly Development Control Plan for the Residential Zone 2007 - Amendment 1. As a consequence there will be a loss of amenity for the community and surrounding residents in terms of building bulk, loss of views, privacy and overshadowing. 19 The Court was also invited to take into account the public submissions but I do not accept that these raise any matters of significance that are not covered by the above contentions. The evidence 20 On behalf of the respondent Council Mr S. Layman provided expert town planning and architectural evidence. On behalf of the applicant, Mr V. Squillace gave expert architectural evidence and Ms D Laidlaw gave expert town planning evidence. These three experts, following a conference, prepared a joint report. Whilst this report was not prepared in the spirit of the Court's requirements for such reports it was nevertheless of considerable assistance.

21 My attention was also drawn to a report prepared by Mr S Ooi a town planning consultant who was engaged by the council to report on a development proposal very similar to the proposed building now before the Court. That report assesses that alternate design in the light of the senior commissioner's decision observing that the proposed floor space ratio (calculated at 0.76:1) has been reduced so as to be similar to that of the existing buildings and all levels above the lower ground floor have been setback approximately 2 m from Marine Parade. In addition the setback from the northern boundary has been increased on all levels creating a new water view corridor. Whilst the top floor has not been deleted it has been redesigned. 22 Mr Ooi concludes that the amended proposal (not the proposal now before the Court) is satisfactory in terms of view sharing, overshadowing and privacy. It would not be an overdevelopment of the site having no significant impact on the amenity of surrounding residents or the existing quality of the environment. Despite this I have decided that because a different design is now involved and because Mr Ooi's opinions were unable to be tested (for example in relation to the important issue of floor space ratio) I should not give his conclusions any weight.

23 The hearing began on-site when I had the opportunity of inspecting the site and its environs, including both Marine Parade and Bower Street in the company of the parties' advocates and the experts. I also heard from a number of resident objectors who were concerned about the proposal and had the opportunity of visiting their homes to understand their concerns mainly involving view loss. The requirements of the DCP 24 In Zhang v Canterbury City Council [2001] NSWCA 167 the Court of Appeal in observing a consent authority's wide ranging discretion under s 79C(2) of the Environmental Planning and Assessment Act 1979 noted that this discretion is not at large and is not unfettered. In this context a development control plan has to be considered as a fundamental element in or a focal point of the decision-making process. Hence a provision that is directly pertinent to the application is entitled to attract significant weight in the decision-making process even though it might not necessarily be determinative. In this case the DCP contains a number of objectives, controls and standards that are pertinent to this application and must therefore be given particular consideration.

Floor space ratio 25 The objectives of the floor space ratio standard in s 3.4 the DCP include the control of building bulk and scale in response to the existing and desired future character of the area. They also involve aspects of view loss privacy and solar access. The DCP's relevantly applicable floor space ratio for this site is 0.6:1.

26 In their joint conference Miss Laidlaw and Mr Squillace agreed that the proposal exceeds the floor space ratio standard by 140 square metres, having a floor space ratio of 0.759:1. Mr Layman disagreed explaining that with the inclusion of certain store rooms, stairs and decks that are essentially enclosed and the unnecessarily large plant rooms the proposal has a floor space ratio of 0.93:1, an exceedence of 287 square metres. 27 In supporting the lower floor space ratio calculation Miss Laidlaw emphasised the gross floor area definition that excludes plant rooms and terraces. She did not accept Mr Layman's approach whereby the plant rooms and decks are included in the calculation. In observing that floor space ratio is a fairly blunt mechanism used to control bulk by excluding areas that physically present as bulk and sometimes areas that do not, she argues that it is much better to consider how the building under consideration actually performs in terms of bulk and fit within its particular context. In this regard she considers the development to be appropriate not only in terms of bulk and scale but also in terms of the streetscape, character and amenity. As a consequence the exceedence of the floor space ratio standard should not preclude the approval of the proposed building.

28 Whilst the definition of gross floor area in the DCP excludes plant rooms, I agree with Mr Layman that in this instance they should, for the most part, be included in the floor space ratio analysis. As he explains there are five plant rooms that account for a total of 132 square metres of floor space. This amounts to 33 square metres per dwelling. Exhibit M shows how these plant rooms would be utilised, no doubt providing ample access space for servicing. However, by comparison with the examples of similar developments in this locality that I was referred to, I agree that these spaces are excessive. Whilst some of the plant room floor space is below ground, in my opinion the majority of it makes a significant contribution to the apparent bulk and scale of the building. 29 As for the decks that Mr Layman says should be included, these have permanent walls on three sides and are fully roofed. They are also within the lines of the external enclosing walls and have sliding screens that can effectively complete the enclosure. As a consequence he argues that the associated floor space should be included in the assessment of floor space ratio in so far as it relates to building bulk.

30 These decks are, prima facie, excluded from the definition of gross floor area. However I again agree with Mr Layman that they should, for the most part, be included as floorspace. I have reached this conclusion taking into account the weather protection and privacy benefits that are afforded by the provision of the screens that in turn effect the enclosure of the decks notwithstanding that they will, from time to time be open. 31 In this context taking into account the objectives of the DCP especially the need to control bulk and scale, I cannot accept that the authors of the floor space definition would have anticipated plant rooms and decks that make such a significant contribution to floor space and building bulk should be excluded. In the circumstances I conclude that the effective floor space ratio of this development is likely to be around 0.9:1, significantly above that permitted by the DCP and above the floor space ratio of 0.82:1 that the Senior Commissioner considered to be reasonable. The floor space ratio of the proposed building is thus excessive.

Density 32 The objectives of the residential density control in s 3.2 of the DCP include the regulation of the number of dwellings in particular areas, the promotion of a variety of dwelling types and the maintenance of the character of the locality.

33 The proposed building does not comply with the dwelling density standard in the DCP that limits dwelling density to one dwelling per 250 square metres of site area thus permitting three dwellings (or more precisely 3 1/2 dwellings) for this site.

34 Mr Lehman said that this is a fundamental control that goes directly to the quantum of development and future character of this area. This, together with other breaches of the DCP's controls is indicative of an inappropriate overdevelopment of the site. Miss Laidlaw disagreed arguing that the proposal halves the existing density and in the light of the DCP's associated objectives that include the need to increase the availability of dwellings to enable population growth, the theoretical provision of an extra half of a dwelling as is proposed is not unreasonable. 35 Given that there are already eight dwellings on the site, I agree that the noncompliance with this density standard is not a fundamental problem for this proposal. I have reached this conclusion taking into account that this standard (which does not control matters such as floorspace, site coverage and the like) has little control over the ultimate built form including bulk and scale that could be achieved on a site such as this.

Wall height and number of stories 36 The building height objectives in s 3.5 of the DCP include the need to control the height and bulk of buildings and to ensure that buildings have heights that are consistent with prevailing building heights in the locality. Also, view disruption is to be minimised and solar access maintained for neighbouring properties.

37 The experts agree that Level 2 of the proposed building exceeds the maximum wall height in cl 3.5.2 of the DCP on the south-east and north-west elevations. Although the extent of exceedence was not agreed, the difference between them is minor. They also disagreed as to how the DCP's parapet allowance should be applied. By scale (Drawing No DA 39) the exceedences vary between zero and about 1.8 - 2.0 m for the majority of the second (top) floor. Mr Layman believed the exceedence to be more like 2.5 m, approximately equivalent to one storey. 38 The experts also agreed that the proposed building substantially exceeds the two-storey height limit in cl 3.5.4 of the DCP. An examination of the North-West Elevation (Drawing No DA 07) reveals that more than half of the length of the building is three storeys although when assessed against the existing ground level the apparent extent of three-storey built form is reduced. An examination of the South-East Elevation (Drawing No DA 06) indicates a similar (but slightly less) noncompliance. In this regard it is to be noted that the part of the building that is most conspicuously three storeys coincides with the greatest exceedence of the wall height standard. In terms of the building's presentation to its neighbours this is of concern.

Open space and landscaping 39 The objectives for open space and landscaping in s 3.7 of the DCP include the need to provide for the recreational and privacy needs of occupiers and is to encourage appropriate tree planting. Also important is the enhancement of the amenity of the site, streetscape and surrounding area.

40 Section 3.7.2 of the DCP requires that 55% of the site area must be open space and of this, 35% must be soft open space. Also, 40% can be provided above ground level provided that it has a minimum horizontal dimension of 3 m and there will be no loss of amenity for adjoining residents. Open space land must have minimum horizontal dimensions of 3 m and a minimum area of 12 square metres. Soft open space is to be capable of supporting new endemic tree species that can reach a mature height of 10 m. 41 The experts agreed that on the basis of the site area, 481 square metres of open space should be provided of which no more than 192 square metres can be provided above ground level. Again on the basis of the site area, 168 square metres of soft open space must be provided.

42 The applicant's Drawing Nos DA 34, 35 and 36 provide details of Mr Squillace's interpretation of the DCP's open space requirements. Mr Layman also provided a detailed analysis of the various areas whether they be at ground level or above ground and whether they are soft open space or otherwise. I agree with his analysis with certain exceptions. The area of about 40 square metres under the deck off Unit 1 can be included because I accept that it is capable of being landscaped in conjunction with the adjoining landscaped areas that extends down to the north-east boundary of the site. The 33 square metre deck off Unit 4 should not be treated as a stand-alone roof top terrace and can thus be included. The two small planters that form part of the decks for Unit 2 (8 square metres) and Unit 3 (5 square metres) can be included as soft open space because, as required by the DCP, they form part of the open space that they adjoin. As for the so-called sun decks, whilst I agree that these can provide for the recreational needs of the occupiers of the apartments, the extent of their enclosure that results in them being effectively included as floorspace leads me to conclude that they should not be treated as open space. Whilst they can be used for private recreation, they do not contribute to the amenity of the site or the locality. 43 Accordingly by providing 467 square metres (247 square metres at ground level and 220 square metres above ground level), the required 481 square metres of open space is not met, and by providing 140 square metres of soft landscaping, the requirement of 168 square metres is also not met. It is also relevant to note that by providing 220 square metres of open space. In turn, above ground level this exceeds the maximum of 192 square metres that can be included as open space, this exacerbates the deficiency at ground level. The further exceedence of above ground limit is a further reason for excluding the sun decks. Hence all three of the open space requirements are not met. Bearing in mind the objectives of these open space and landscaping standards it is doubtful that this development notwithstanding its architectural quality, will enhance the amenity of the site the streetscape and the surrounding area as required by the DCP.

Excavation 44 The objectives for excavation and earthworks in s 2.5 of the DCP include the need to retain and enhance existing landscape character by encouraging the planting of endemic plant species to soften the impact of development. Also, changes to the topography are to be limited.

45 To this end the controls essentially require that excavation be limited to 1m below natural ground level and natural undisturbed ground levels should be maintained within 900 mm of side and rear boundaries. The exception to this is for basement parking areas, which are to be contained within the footprint of the building AND if such basements extend beyond the footprint they become subject to the aforementioned 1 m and 900 mm standards. The proposal includes extensive excavation to a depth of up to 6 m and the basement parking areas extend beyond the building footprint and exceed the 1 m limit. The excavation also extends to the front and to much of the side boundaries, plainly also contrary to the DCP standard. 46 Miss Laidlaw explained that these noncompliances resulted in part from the need to accommodate parking that is substantially compliant with Australian Standard 2890.1. More generally given that this is such a modified urban environment the noncompliances are not problematical there being no specific environmental, geotechnical or engineering concerns in relation to the excavation. Mr Squillace added that it is common practice to vary the excavation within 900 millimetres of the boundary where sites are narrow such as this site.

47 Mr Layman does not accept that excessive excavation in the past justifies the noncompliances. Whilst basement car parking necessitates excavation, the controls acknowledge this and in his opinion the extent of excavation here proposed is excessive. More generally the excavation is nothing more than an attempt to maximise gross floor area at the expense of the natural topography. 48 I am inclined to agree with Mr Layman and accept that a more carefully considered basement design could reduce the extent of the basement and probably benefit soft landscaping opportunities.

Building setbacks 49 The building setbacks objectives in s 3.6 of the DCP involve maintenance and enhancement of the streetscape, the maintenance of adequate spaces between buildings for views to and from public spaces and the accommodation of planting. Also, relevant amenity considerations include access to light and sunshine and view sharing.

50 Front setbacks are required to relate to the front setbacks of neighbouring properties otherwise a 6 m setback applies. Setbacks from side boundaries must not be less than one third of the height of the adjacent external wall of the proposed building. Windows facing a boundary are to be set back a minimum of 900 mm from that boundary. Because Marine Parade is zoned open space, and accepting as I do that this is effectively a front boundary, the building is required to be set back 6 m from it. 51 The experts agreed that there are breaches of the side setback requirements as shown on the architectural drawings but disagreed as to whether or not the variations arereasonable. With the exception of the topmost level of the building there is, for the most part, minimal exceedence of the setback requirements. At the top level (second floor) there is a variable noncompliance on the south-east side of the building between about 400 mm and 1 m, with the bedroom 1 deck encroaching by approximately 1.2 m.

52 Mr Layman was mainly concerned with the inadequate second floor level setbacks on the south-east side of the building, taking into account that there is no compensating increase set back along this part of the building's facade that would enable it to be permitted by the DCP. This noncompliance is also of concern because of the resulting impact on views between the proposed building and the neighbouring building to the south-east towards the ocean. Whilst the reduced setback at the first floor level is permitted because there are compensating increased setbacks elsewhere, this noncompliance nevertheless contributes to the adverse impact on views between these buildings. Importantly here the principle of averaging is something that can be considered subject to the objectives of the standard. 53 Miss Laidlaw was of the opinion that the noncompliances were reasonable given that this is a relatively small narrow site in a highly urbanised context and bearing in mind the averaging approach provided for in the DCP. Relevantly the areas shown on the plans indicate an exceedence of the setback much greater than the areas showing noncompliances. She also noted that there is no material consequence in terms of overshadowing and that the flexibility provision allows variable setbacks that can enable efficient floor plans. Also the noncompliances do nothing to adversely affect the modest form presented to both of the building's public facades. Mr Squillace agreed with Miss Laidlaw and added that in composing a building of undulating facades that break down building mass and provide textural change is important and this is facilitated by the averaging incentive within the standard. 54 It seems to me that the greatest impact in relation to setbacks is the extent to which the non compliance results in a reduced view corridor opportunity between the proposed building and the existing building at 108 Bower Street.

Views from neighbouring and nearby properties 55 The maintenance of views objectives in cl 4.3 of the DCP involve maintaining and sharing access to existing views to the ocean whilst recognizing that development can take place in accordance with the various other provisions of the DCP. The applicable controls require the minimisation of view loss and the maximisation of views between and over buildings. Variations to side boundary setbacks will not be considered if they contribute to loss of primary views from living areas. To this end the DCP adopts the Court's four-step view assessment principle in Tenacity: the assessment of views to be affected; the part of the property from which the views obtained; the extent of the impact; and the reasonableness of the proposal that causes the impact.

56 Mr Layman carried out a careful analysis of the impact of the proposal on views from 109, 113, 115, 3/114 Bower Street and 4/11, 5/11 and 8/11 Reddall Street noting the variable degrees of impacts from minimal to moderate. Importantly he notes that the worst of the impacts arise from the noncompliant portions (much of the second floor) of the proposed building. 57 Miss Laidlaw carried out a similar analysis taking into account the photomontages that, in her opinion, represent the worst affected parts of the views in each case. Overall she was of the opinion that there are no net negative impact on be available views from any of the properties in Reddell and Bower streets and all of the iconic views wherever they are available are retained. Mr Squillace agreed with Miss Laidlaw contending that all of the matters of concern to the Court in the previous appeal have been met and that this is essentially the same building (as considered by the senior commissioner) with the top storey deleted. More particularly in relation to view loss this building creates a neutral outcome at worst and a positive outcome for some properties and the public domain.

58 On the site inspection I had the opportunity of considering the proposal and the effect that it would have on the views from a number of dwellings opposite the site in Bower Street and from an adjoining residence, and took particular notice of the views from living rooms and decks. The height profiles that were erected to simulate the proposed building were of considerable assistance in assessing the changes to the views from these properties. I also had the assistance of photographs taken from these properties that include these height profiles. It became plain that the proposed building would, taking into account that the existing building's pitched roof is to be removed and the changed side setbacks, provide some additional water views for most of the affected properties. Conversely the proposed building would remove some water views. 59 During the hearing it became plain that the topmost level of the building, particularly its north-west portion, that exceeds the wall height and the stories control, was the part of the building that removed some water views. As a result the applicant provided drawings showing an amended design that provides some improvements in terms of views for some properties in Bowen Street. Taking these changes into account I can accept that that the senior commissioner's suggestion that there be no net negative impact on views is probably met for most of the affected properties. Despite this, a building that more closely complies with the height controls in the DCP would provide a much better outcome for these properties that would suffer the greatest impact.

Privacy 60 The privacy objectives in cl 4.2 of the DCP seek to deal with the mitigation of direct viewing between windows of adjacent buildings and between outdoor living areas. The associated controls suggest the use of narrow, translucent, or obscured glass windows to maximise privacy if necessary. Also, where necessary windows should be offset and architectural or landscape screens provided to balconies.

61 Mr Layman agreed with the concerns of the residents at 114 Bower Street who would suffer a loss of privacy from windows and sun decks within the proposed building. He was mainly concerned that the main impact comes from the noncompliant component of the proposal at the top floor level.

62 Miss Laidlaw was of the opinion that there was no material adverse privacy impact on 114 Bower Street. In this context she noted that this is a highly developed urban area where privacy levels are relatively low and due to the narrow width of the site it is not practical to impose Residential Flat Guideline benchmarks in terms of separation distances otherwise there would be no effective space left for the development of the site. Mr Squillace explained that the question of privacy was satisfactorily addressed in the previous application in terms of the use of privacy screens and now with the building setback on the north-west elevation. 63 In relation to privacy whilst I accept that there would be some material impact, the applicant's approach to mitigating this taking into account the DCP's controls and the typical levels of privacy in this fairly densely developed urban area, this is not a matter of determinative significance. Despite this a revised design might consider this impact more carefully. SEPP 65 and the LEP 64 According to Mr Layman the matters of concern that arise in relation to SEPP 65 and the LEP involve the contextual fit, scale, character, streetscape, height, density and landscaped area of the development. These are mostly reflected in the matters dealt with in relation to the requirements of the DCP. He is, however, concerned that because the predominant streetscape character of Bower Street is of pitched roofs with eave construction, the boxlike form of the proposed building and the materials (e.g. timber rather than masonry) to be used would be inappropriate and would detract from the special visual quality of the Manly Council area. More particularly the timber clad plant room element facing Bower Street and the fenestration (e.g. metal ventilation louvres) results in a presentation that does not appropriately address the Bower Street streetscape. He acknowledged that it was not necessary to mimic pre--existing development but because the development fails to utilise similar materials and consistent or complimentary fenestration the building would not be well mannered.

65 Miss Laidlaw disagreed with Mr Layman arguing that this is a well-designed contemporary building that provides a complimentary streetscape outcome with a good level of internal amenity whilst maintaining amenity for its neighbours. It is flat roofed because such a roof form is integral to its contemporary design and is responsive to the view issues. Also there are flat roofed buildings in the vicinity. Mr Squillace also disagreed with Mr Layman in relation to the appropriateness of the architecture on the streetscape. In this regard he noted that the area is characterised by an eclectic mix of 2/3 storey buildings some with pitched or skillion roofs and others with flat roofs and the proposal is thus consistent with the current and desired future character of this locality. This building contains a high level of articulation and textual changes that introduce a human scale. 66 In the context of this locality I am inclined to agree with Miss Laidlaw and Mr Squillace that conceptually a flat roofed contemporary building would not be out of character. Conclusions 67 The objectives of the LEP include the need to ensure that new development adds to the availability of dwellings in and does not detract from the very special visual quality of the Manly Council area. This development reduces the number of dwellings on the site but it has not been criticised on this basis. I also accept that in terms of its architectural form and detail it broadly meets these objectives although I am inclined to agree with Mr Layman's concerns about the incorporation of the two plant rooms into the Bower Street (front) elevation of the building. Thus, in relation to cl 17 of the LEP, and agreeing as I do with the Senior Commissioner's observations about the building's appearance in Marine Parade, and having made my own observations during the site inspection, I am satisfied that no determinative matter of concern arises.

68 However, considering the zone objectives that seek to protect residential amenity and character together with the requirements of the DCP and applying them to this development I have reached a different conclusion. As discussed above the relevantly applicable provisions of the DCP include floor space ratio, density, building and wall height, setbacks, open space, views and privacy. The proposed development, to various degrees, does not comply with these standards and I do not consider that any one of these noncompliances, considered separately, would be fatal to the application. 69 However, the interrelated floor space ratio, open space, excavation and setback standards should be considered together and in so doing, the effect of the noncompliances causes me to conclude that this development represents an overdevelopment of the site. Whilst the amenity impacts on neighbours considered separately are not critical, because they result from a non-complying development they attract greater weight than would otherwise be the case. Plainly, a different development that is more closely responsive to the requirements of the DCP would for example in relation to impacts on views, produce a better outcome.

70 Finally, for the above reasons I have formed the opinion that the carrying out of the proposed development would not be suitable development in accordance with the objectives of the residential zone particularly in relation to residential character and quality of the environment and hence on the basis of cl 10 (3) of the LEP the development application should be refused.

      T A Bly
      Commissioner of the Court
      ljr

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