Lozevski v Manly Council

Lozevski v Manly Council - [2008] NSWLEC 1379 - NSWLEC 2008 case summary — Zoe

[13]

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.

[17]

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.

[31]

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.

[43]

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.

At a glance

Court

Decision date

Before

Source

Judgment (48 paragraphs)

Parties

Cases Cited (2)