Luxe Manly Pty Ltd v Manly Council

The application

1. The development application sought consent for two 6 storey residential flat buildings containing 14 units, and basement parking for 25 cars. After termination of the conciliation conference, on 20 November 2015 the applicant was granted leave to amend the application to rely on amended plans, with an order that the applicant pay the Council's costs thrown away as a result of the amendments as agreed or assessed. The amended plans are exhibit A.
2. On the first day of the hearing the applicant sought leave to amend the development application to rely on further amended plans, incorporating some matters discussed in the conferencing of the parties' planning experts as identified in the experts' joint report dated 3 February 2016. That application was opposed. For reasons given at the time, leave to amend was granted. The issue of whether an order pursuant to s 97B of the Act was required on the basis that the amendments were other than minor was reserved, and the parties provided written submissions on 19 February 2016. That issue is considered below.
3. The amended plans are exhibit F. The design modifications shown on those plans were summarised by Mr Player, the planning expert retained by the applicant, at paragraph 2.5 of the joint report (ex 7). For the block fronting North Steyne (the Eastern building) the uppermost floor is setback a minimum of 1m on its northern and eastern façade, and the north eastern corner of the upper floor setback more than 1m to improve the view corridor from unit 15, 32-34 Bonner Avenue. For the block fronting Bonner Avenue (the Western building) a section of the parapet was removed and breaks provided in the roof parapet, and the roof plant relocated, to improve view corridors from units 14 and 15, 32-34 Bonner Avenue, and the west facing balcony on the upper floor level was redesigned to increase the front boundary setback.
4. The application now provides for two blocks with a total of 13 units. The Eastern building has 5 units on five levels; the Western building has 8 units on four levels. There are 25 car parking spaces (including 4 visitor spaces) in a basement car park accessed from Bonner Avenue. The total gross floor area is 1652.64sqm, giving a floor space ratio (FSR) of 1.32:1.
5. The area of open space is 748.60sqm, or 59.88% of the site; 368.75sqm of that area, or 49.26% of the open space, is landscaping consisting of trees, shrubs, and on the northern and southern boundaries, raised planter boxes. Between the Western and Eastern buildings proposed plantings include Pyrus calleryana (mature height 6m), Glochidion ferdinandi (mature height 5m) and Plumeria obtusa (mature height 2m); an area of turf; and paving.
6. During the course of oral evidence by the planning experts, further amendments to the plans were discussed, in particular a change to the balcony of the west facing unit on level three of the Western building, which would have privacy benefits between Bonner Avenue and the Western building (ex 9). The further amendments were incorporated in amended plans provided after the hearing, on 8 March 2016, being drawings DA02, DA03, DA04, DA05, DA06, DA07, DA08, DA09, DA11, DA12, DA13, DA14, DA15, DA17, DA100, and DA22, all Issue F.

Issues

1. The Council contends (ex 1) that consent should be refused on the basis that the proposed development: 1. does not comply with the height development standard in cl 4.3 of the Manly Local Environmental Plan 2013, and fails to achieve an acceptable streetscape impact, is of excessive bulk and scale, and fails to minimise disruption of views or privacy impacts, and that the request to vary the height development standard is not well founded; 2. fails to comply with the requirements for wall heights, number of storeys, setbacks, and deep soil planting in sections 4.1.2.1, 4.1.2.2, 4.1.4, 4.1.4.2, and 4.1.5 of the Manly Development Control Plan 2013; 3. fails to comply with building separation requirements and other requirements of the Residential Flat Design Code; and 4. has unacceptable adverse impacts on neighbouring apartments; and 5. is an overdevelopment of the site.
2. The Council's position at the conclusion of the evidence was that the critical issue is the setbacks, particularly in relation to 140 North Steyne and 32-34 Bonner Avenue, which do not achieve those required by the Council's controls and which have generated much of the objector complaints whether expressed in terms of visual bulk, overlooking and privacy issues or lack of adequate landscaping. The Council maintained its position that the request to vary the height development standard for the Eastern building should not be upheld.

Planning controls

1. The site is zoned R3 Medium Density Residential under the Manly Local Environmental Plan 2013 (the LEP). The objectives of the R3 zone are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment. • To encourage the provision and retention of tourist accommodation that enhances the role of Manly as an international tourist destination.
2. Clause 4.3 of the LEP provides a maximum height limit of 13m. The objectives of the height development standard are: (1) The objectives of this clause are as follows: (a) to provide for building heights and roof forms that are consistent with the topographic landscape, prevailing building height and desired future streetscape character in the locality, (b) to control the bulk and scale of buildings, (c) to minimise disruption to the following: (i) views to nearby residential development from public spaces (including the harbour and foreshores), (ii) views from nearby residential development to public spaces (including the harbour and foreshores), (iii) views between public spaces (including the harbour and foreshores), (d) to provide solar access to public and private open spaces and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings, (e) to ensure the height and bulk of any proposed building or structure in a recreation or environmental protection zone has regard to existing vegetation and topography and any other aspect that might conflict with bushland and surrounding land uses.
3. Clause 4.6 of the LEP permits exceptions to the development standards in order to "provide an appropriate degree of flexibility in applying certain development standards to particular development" and to "achieve better outcomes for and from development by allowing flexibility in particular circumstances" (cl 4.6(1)).
4. The Manly Development Control Plan 2013 (the DCP) applies. Relevant provisions are section 3.3 Landscaping, section 3.4.3 View sharing, section 4.1.2 Height, and section 4.1.4 Setbacks.
5. The State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) applies. The relevant provisions of the Residential Flat Design Code (RFDC) are those relating to building separation.

Objector evidence

1. The Council notified the development application, and copies of the submissions received in response are in evidence (ex 4, tab 15). The Council notified the plans as amended following the s34 conference, and the submissions received in response are in evidence (ex 4, tab 16). The submissions made to the Council raised concerns as to height, inadequate separation and landscaping, bulk, privacy impacts, impacts on views, inconsistency with the provisions and the aims and objectives of the DCP, and inconsistency with the central landscape zone established between the units on North Steyne and Bonner Avenue.
2. At the site view for the s34 conciliation conference submissions were made by the owners of 14/133 North Steyne, 6/140 North Steyne, 13/32-34 Bonner Avenue, 13/140 North Steyne, and on behalf of the owner of 16/32-34 Bonner Avenue. Notes of the submissions made are in evidence (ex 2). Those submissions included objections as to height, inadequate setbacks, impact on the green corridor, precedent, inadequate community consultation, and impacts on views and privacy. The view included units 14/140 North Steyne, 6/140 North Steyne, 22/140 North Steyne, and units 13, 15 and 16 in 32-34 Bonner Avenue. The parties consented to observations from the site view forming part of the evidence in the hearing.
3. Following the granting of leave to amend the application on the first day of the hearing, the parties' planning experts, Mr Robert Player and Ms Deborah Laidlaw, explained the amendments in exhibit F. Five objectors gave evidence in court, maintaining their objections to the proposed development; and stating that while some matters have been addressed and some improvements made there are still non-compliances, and impacts in relation to privacy, and views; and there remain concerns as to the bulk and scale of the development, and setbacks.
4. An opportunity was provided for further submissions from objectors after the hearing. On 12 February 2016 the Council provided copies of 19 submissions (including submissions from three persons who had given evidence on 4 February 2016). The additional submissions restated concerns as to traffic and pedestrian safety, view loss, visual and acoustic privacy, the appearance of the proposed development, height, the need for adequate parking, landscaping, setbacks, and bulk. The applicant responded to those submissions on 19 February 2016.

Expert evidence

1. The planning experts, Mr Player on behalf of the applicant, and Ms Laidlaw on behalf of the Council, prepared individual statements of evidence (exhibits C and 5), and prepared a joint report following their conferencing (ex 7). In her contribution to the joint report Ms Laidlaw raised a concern as to the accuracy of the applicant's modelling of the allowable height plane in relation to view impacts for unit 15, 32-34 Bonner Avenue. Ms Laidlaw, Mr Player, and the applicant's architect Mr John Taylor discussed that matter and provided a further joint report (ex E). Ms Laidlaw and Mr Player gave oral evidence.
2. In their joint report (ex 7) the planners addressed the contentions under the following headings: 1. Applicable development standards and controls 2. Building height, and the cl 4.6 variation 3. Building bulk and attendant impacts including those arising from variations to planning controls over height, wall height, setback and separation 4. Landscaped area 5. View impacts 6. Visual privacy.
3. The planners were in general agreement as to the extent to which the proposed development varies from the height development standard in the LEP and the DCP controls. They agreed that the proposed Western building has a height of 13.15m to the parapet and the Eastern building has a height of 15.45m to the top of the parapet and 15.9m to the top of the lift overrun (1.6), and the proposal does not comply with relevant provisions of the DCP (1.9), being the maximum wall height of 12m (section 4.1.2.1), maximum number of storeys of 3 (section 4.1.2.2), the side setback control which would require a setback of 5m (section 4.1.4.2), and the required landscaped area of 25% of the required Open Space (section 4.1.5). Mr Player considered that the development complies with the street front setbacks control; Ms Laidlaw considered that the Western building does not comply with the front setback for Bonner Avenue.
4. In relation to building height, the planners agreed that the height variation in respect of the Western building was not numerically significant, and that it had no adverse impact on streetscape, and other than for the question of views, did not offend the objectives of the height standard in cl 4.3 of the LEP. Ms Laidlaw expressed concern that the variation above the height standard occurred at the eastern end of the building and had impacts on views from units 15 and 16, 32 Bonner Avenue. On consideration of view analysis drawings, the planners agreed on amendments to reposition the plant room from the western side to the eastern side of the lift and provide breaks and lowering of the roof parapet. Those amendments are now incorporated in the further amended plans provided on 8 March 2016 (drawing DA08 F). It was common ground that the Western building largely complies with the height development standard.
5. The Eastern building does not comply with the 13m height development standard. The planners agreed that the Eastern building is below the height of the two adjoining properties fronting North Steyne, which were already erected at the time the LEP was made, and that it must be assumed that the 13m height standard reflects the planning intent of the LEP for desired future character, irrespective of what currently exists. They disagreed as to whether the cl 4.6 request is well founded, and whether the amendments proposed by Mr Player as Appendix 3 to the joint report, which are now incorporated in exhibit F, were sufficient to address the concerns raised in the contentions.
6. In relation to building bulk and attendant matters, the experts agreed that this is a difficult urban infill site, given the constraints of the site's own configuration and the siting and design of adjoining properties; and that the separation distances recommended by the RFDC cannot realistically be achieved, and neither of the adjoining buildings provide setbacks consistent with those recommendations. Privacy impacts arising from greater proximity can be addressed by the design, positioning and screening of windows and opening. They agreed that the setback/separation of the Eastern building on the southern site boundary adjoining 137 North Steyne is not compliant with the DCP or RFDC requirements, but is satisfactory; and overshadowing impact on adjoining properties is not a reason for refusal. They agreed that the greater proximity of the Western and Eastern buildings to neighbours manifests in the adjoining buildings and the apartments in them being presented with a greater building bulk than would be the case for a compliant development, compounded for apartments in 137 and 140 North Steyne by the fact that the Eastern building is also non-compliant with building height, and being adversely impacted by way of interruption of ocean and beach views for unit 15, 32 Bonner Avenue and the uppermost unit of 140 North Steyne. They disagreed as to whether the proposed design is acceptable, and on whether the planning controls contemplate or support a reduction in building bulk as height increases.
7. In relation to landscaping, the experts agreed that the total landscaped open space, including above ground open space and open space above building/structure, complies with the DCP requirements; the soft landscaped area is 164.2sqm contrasted to a requirement of 187sqm or 140sqm of minimum required open space. The deep soil soft landscaped area cannot be increased without loss of car parking spaces, and having regard to the acute shortage of parking supply in the locality a reduction in car parking is not warranted. They agreed that the division of the development into two buildings with a gap in between is a desirable site planning outcome, allowing for a space between the buildings that reflects the pattern of development in the immediate locality including provision for greening of that space, and the failure to meet the numerical requirement for deep landscaped area should not be determinative. Ms Laidlaw expressed concerns as to the provision of planting along the northern boundary of the Western building; the experts agreed that it would be reasonable to replace the "roof below" on the second floor level with landscape screen planter boxes and a small Juliette balcony with fixed privacy screen in unit 138.31 to improve the landscaping treatment along the northern boundary. That amendment has been made to the plans provided on 8 March 2016 (drawing DA06 Issue F).
8. The experts considered and agreed on view impacts for each of the adjoining buildings: 1. 140 North Steyne: the development would have a severe impact on views for upper level units which currently have a view south easterly across the side boundary and over the roofs of the existing buildings on the site, however they considered that the view impact is acceptable, for the following reasons: 1. all units having an aspect which includes the southern elevation extend through from the eastern to western side of the building, and the eastern side would maintain uninterrupted views to the ocean and some would have improved view corridors to the beach and ocean due to increased setbacks of the Eastern building relative to the existing buildings on the site; 2. the views from the southern elevation are across a side, not front or rear, boundary; 3. with the exception of the upper most floor, the view impact in relation to the southern elevation is not associated with the non compliance with building height; 4. for the uppermost floor, approximately half of the available view to North Head would be retained as well as the beach and ocean view; the view due south the Manly Beach would be removed, however much of that view would also be removed by a building that was compliant with the height standard. Given that a view to North Head would be retained as well as expansive views to the ocean, Queenscliff and Manly Beach, the experts agreed that the view impact is "minor" and reasonable; 1. 137 North Steyne: views to the ocean, beach and Queenscliff in an easterly and northerly direction are retained; there is a minor impact on headland views across a side boundary, for the most part not affected by the breach of the building height standard; and the views on the east side from the principal living areas are unaffected; 2. 32 Bonner Avenue: the views impacted are from the roof terrace of units 15 and 16, the balcony of unit 13, and unit 14: 1. Units 15 and 16: the view is from a roof terrace leading from an upper level bedroom and not from a principal living room area. For Unit 15 two views are available, one being to the south across the side boundary of the site towards Manly Beach, the land/water interface and North Head, and the second being in an easterly direction across the side boundary of the site towards the ocean over the roof of the existing buildings on the site that front North Steyne. For Unit 16, only the southwards view is obtainable across the side boundary of the site. Ms Laidlaw noted that the view loss is of highly valued elements, and the view loss to the east arises from the Eastern building which is non-compliant with the height standard; it is the height of both buildings that causes the view loss. Mr Player agreed that the existing views to the south would be highly valued, however he considered the view loss to be partial only and to have a moderate impact. Mr Player noted that the Eastern building would result in a partial loss of the ocean/beach views to the east from Unit 15, however the increased splayed setback on the top floor of the East building would result in retention of some of the ocean/beach views. A fully compliant 13m high Eastern building would still result in the loss of views to the ocean/beach interface but would likely retain a small section of the ocean along the horizon line; and the function of the increased setback of the northern and eastern elevations on the upper floor of the Eastern building is to compensate for any additional view loss by providing a viewing corridor of the ocean/beach; 2. Unit 13: views towards Manly Beach, the ocean and North Head are currently obtained in a southerly direction across the side boundary of the site from a bedroom, living room and balcony. While the primary view corridor is to the west, the limited views to the south would be regarded as highly valued by the residents; part of the view would be retained, through the floor 3 balcony. The experts agreed on a re-orientation of the western side elevation of the Western building to retain a greater proportion of the water/beach/North Head view, and to improve the privacy relationship of both units. That re-orientation was flagged in Appendix 5 of the joint report, and further developed in oral evidence (ex 9). The plans provided on 8 March 2016 show (drawing DA07 Issue F) a reconfiguration of the balcony on level 3 of the Western building so that it is primarily located on the southern side of the living and dining room of unit 138.42; and 3. Unit 14: the view from the living area/enclosed balcony to the south across the side boundary of the site towards Manly Beach, comprising a view to the beach, land/water interface and North Head, will be entirely removed by the Western building; approximately 60% of the view towards the ocean in an easterly direction will be maintained in the gap between the Western and Eastern buildings. The view loss is of highly valued elements, and to the south and east is from a living room/enclosed balcony; and it is severe to the south and moderate to the east. The view loss is not attributable to the non-compliances with height or setback standards; and the design incorporates elements which serve to maintain an ocean view by breaking the built form into two with a landscaped central open space area and through the angled design of the south eastern corner of the Eastern building. Having regard to those factors, the experts agreed that the impact on Unit 14, although "moderate to severe", is not unreasonable.
9. The experts agreed that privacy is able to be addressed by conditions requiring a screen, frosted/fixed glazing or high level glazing with the privacy device active to a height of 1.6m, for the north side of the west and east facing balconies and north facing living windows and the east/north-east facing kitchen windows of the West building, and for the northern window to bedroom 1 and the south facing living room/balcony edge of the Eastern building (ex 7, p 19). The agreed privacy treatments are incorporated on the amended plans filed on 8 March 2016.
10. In oral evidence the planners discussed further amendments to the plans to address some of the matters raised in the joint report. Mr Player's evidence was that for the Eastern building, the southern façade provides a good streetscape presentation to North Steyne and a good relationship in terms of protection of amenity for solar access, views and visual bulk for the adjoining property to the south; the amended plans were aimed at addressing the northern façade and eastern façade at the topmost floor level from a streetscape point of view and achieving a better amenity relationship, and also to some extent improving the opportunity for increasing the retention of view corridors to both 140 North Steyne and 32-34 Bonner Avenue. For the Western building the main concerns were the retention of views in particular for the rooftop terraces of units 15 and 16, and the experts had tried to get some improvement by repositioning of the plant room and to provide breaks and lowering of the roof parapet.
11. Ms Laidlaw's evidence was that she had seen a need to make the upper floor of the Eastern building more recessive because less of it would be seen and it would be less bulky from the streetscape and from 140 North Steyne. That amendment had been done, however she would prefer that that setting in continue around to the north-west corner adjacent to 140 North Steyne. Her opinion was that it is a very difficult site, and dividing the site into two had a benefit in a number of respects to all of the adjoining buildings both in terms of bulk and view loss. Ms Laidlaw described the outcome as a building "that is slightly taller and skinnier, as opposed to one that might have been lower and fatter". The lower and fatter option including the loss of a visual break between the built form and in terms of view impact would have had a worse impact, and probably in terms of bulk to both the adjoining North Steyne buildings and to 32 Bonner Avenue would have been worse; overall she did not think it was a bad outcome. Ms Laidlaw would have preferred an increased setback on bedroom 2 on the top floor of the Eastern building. In terms of the Western building, Ms Laidlaw's opinion was that the view impact for Unit 15 is at least as good as, if not better than what would have been achieved or could have been achieved by a strictly compliant building, because a lower fatter building would have removed all the view to the east and south-east; the same applies to the corresponding roof terrace from Unit 16. Unit 14 with a strictly compliant envelope would have lost all its view, however with the break in the building and the raking of the form of the Eastern building, it maintains at least some view to the south-east. For Unit 13, changing the shape of the western end of the building has a far better, lesser, impact than pulling back the balconies. A compliant setback for the northern setback would not make much of a material difference to the view; a longer building would have a worse impact to make up for the increased setback.

Consideration

1. The first issue to determine is whether the applicant's request pursuant to cl 4.6 of the LEP to vary compliance with the height development standard should be upheld, as a threshold requirement before development consent could be granted. The agreed expert evidence is that the Eastern building does not comply with the 13m height development standard in cl 4.3 of the LEP; the exceedance being the substantial part of unit 139.51 on the fifth floor of the Eastern building (Drawings DA11 Issue F and DA12 Issue F).

The Clause 4.6 Request

1. Clause 4.6 of the LEP enables the Court, exercising the functions of the consent authority, to grant development consent for the development even though the development would contravene the height development standard. Clause 4.6 relevantly provides: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. …
2. Development consent cannot be granted unless the Court has considered the written request (cl 4.6(3)), and is satisfied first, that it adequately addresses the matters required to be demonstrated by cl 4.6(3) (cl 4.6(4)(a)(i)), and secondly, that the development will be in the public interest because it is consistent with the objectives of the development standard and the objectives of the R3 zone (cl 4.6(4)(a)(ii)).
3. The applicant submits that the evidence establishes that the proposed development is consistent with the objectives of the height standard and the zone objectives, and compliance is unreasonable or unnecessary because the development achieves outcomes equal to or better than a development that complies. The Court is not limited to the written request in the evaluative assessment of whether compliance is unreasonable or unnecessary and whether there are sufficient environmental planning grounds to justify departure, as it would be contrary to the objective of the appeal process of achieving the best environmental outcome to construe cl 4.6(4)(a)(i) to confine the consideration of the Court to what might have been written early in the life of a development application, when there has been a much more searching examination. The applicant submits that the proposed development is consistent with the zone objectives, in providing for housing needs in a medium density residential environment, and in replacing the existing two rundown two storey buildings on the Bonner Street and North Steyne frontages. The relevant objectives of the height development standard are cl 4.3(1)(a), (b) and (c)(ii). In relation to objective (a), there is no particular issue with topographical landscape, and the streetscape analyses in the written request establish consistency with the prevailing building height, and the planners were in agreement as to desired future streetscape character. In relation to objective (b), the planners agree that this is a deliberate design to put a building that is taller but thinner compared to a compliant building; the proposed development does not seek to maximise what would be permissible in terms of bulk under the FSR control. In relation to objective (c), there is a net benefit for the view looking east from unit 15, 32 Bonner Avenue; and for views to the south from units 15, 16 and 13 in Bonner Avenue through the combination of design adjustments, lowering of the lift overrun, providing the breaks in the parapet and configuration of the west facing apartment of the Western building, the views from those locations are preserved. That is as good an outcome as a compliant building would achieve, and is consistent with objective (c).There is consistency with the objectives of the development standard and therefore the development is in the public interest within the meaning of cl 4.6(4)(a)(ii). The Court should be satisfied that compliance with the standard is unreasonable or unnecessary, on the basis that, similar to Moskovich v Waverley Council [2016] NSWLEC 1015, the proposal creates a benefit in terms of views, solar access, privacy and landscaping when compared with what a height compliant building would achieve. The written request identifies in detail the environmental planning grounds that justify the variation, in particular the benefits of splitting the proposed development into two buildings so that the impacts of the proposal are acceptable notwithstanding the difficulties of the site.
4. The Council submits that the request to vary compliance with the height development standard should not be upheld. The written request has had little regard to bulk or perceived bulk issues, or the adequacy of compliance with setback requirements on the northern side. The proposal is not consistent with the bulk and scale objectives of the standard, or the objective to minimise disruption of views. The proposal does not demonstrate a high degree of architectural skill, as stated in the resident objections. The Council rejects the assertion which is without any foundational reference to other sites or proposals that the proposal is a positive precedent. The Council submits that a compliant building would achieve a better outcome, and submits that it is also relevant that the proposal does not comply with wall height and storey controls in the DCP, indicating that the design is insufficiently cognisant of all the controls.
5. The applicant has provided a written request that seeks to justify the contravention of the development standard as required by cl 4.6(3) (Appendix 4 to Mr Player's Statement of Evidence, ex C).
6. The written request, dated 25 November 2015, notes that it is an updated statement following the amendment of the plans to delete the fourth and fifth storeys of the Western building and the fifth storey of the Eastern building, and to reduce the building height by lowering the basement car parking level and reducing each of the residential floor levels (p 1). The written request addresses the height of the proposed buildings shown on the amended plans for the Eastern building at 15.00m to roof, 15.45m to parapet, and 16.90m to the top of the lift overrun; and the Western building at 13.00m (complying) for the roof, 13.15m to parapet, and 13.05m to the top of the lift overrun (p 3).
7. The written request states that the objectives of the development standard are achieved. For paragraph (a), the height is compatible with the prevailing 4 and 5 storey (or more) height of the more recently constructed apartment buildings directly adjoining and in the vicinity of the site, as illustrated in streetscape views of North Steyne and Bonner Avenue (p 5), and the proposal is consistent with the prevailing building height and desired future medium density residential streetscape character in the locality. For paragraph (b), the bulk and scale is minimised by the siting and design of the two smaller, rather than one much larger, apartment buildings with a wide landscaped open space buffer centrally located between the buildings; both the building have front setbacks consistent with adjoining residential flat developments to both street frontages; the modulated building form of the Eastern building emphasises the curved street corner and adds visual interest to the external appearance of the building and its compatibility with the streetscape; and the proposed Western building responds to the Bonner Avenue streetscape and the narrow street frontage of the site. For paragraph (c), the design modifications will on balance minimise disruption of views to and from nearby residential development from and to public spaces as well as views between public spaces. While the amended proposal will have a minor to moderate impact on some views from windows and balconies of upper floor units at 140 North Steyne, and a minor to moderate impact on views from the rear and south east corner of units on the top floor of 32 Bonner Avenue, views from the adjoining residential buildings are otherwise retained and in several cases improved due to the position and design of the two buildings with the large setback to North Steyne and the large gap between the two buildings. The parts of the buildings that exceed the 13m maximum will not impact to a significant degree on existing views from the principal living room areas and directly accessible balconies of the adjoining residential buildings with view lines across the front and rear of the site. The amended design achieves reasonable and equitable view sharing and the loss of views from some of the windows/balconies on the upper floor levels is generally not from principal indoor and outdoor living areas and is across the common side boundary, as considered in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. For paragraph (d), the shadow diagrams demonstrate that the proposed Western building will not result in inadequate sunlight access to habitable rooms of adjacent dwellings and to private open spaces of adjoining residential properties; the proposed Eastern building will have a minor impact on the adjoining 5 storey building with swimming pool and landscaped area at 133-137 North Steyne and the 1 storey dwellings at 22-24 Bonner Avenue given the shadows cast by existing residential buildings and as would be cast by a complying DCP envelope. While the Eastern building would result in additional shadows to windows and balconies on the second floor of 133-137 North Steyne at midday, at 3.00pm the Eastern building provides increased solar access to the ground, first and second floor level units of 133-137 North Steyne compared with the existing shadows of neighbouring residential buildings and those cast by a DCP compliant envelope. Objective (e) is not applicable to the proposal.
8. The written request states that the relevant objectives of the R3 zone, being the first, second, fourth and fifth objectives, are achieved. The proposal involves the consolidation of 3 allotments currently developed with 2 storey walk up residential flat buildings with 4 and 5 storey apartment buildings, providing for the housing needs of the local community consistent with existing medium density residential development in the locality. The proposal provides a total of 13 units in the existing medium density residential environment in the locality. The proposal redevelops ageing housing stock and involves the consolidation of 3 small lots.
9. The written request states (pp 8-9) that compliance with the building height development standard is unreasonable or unnecessary as the breach of the 13m height standard will not, on balance, have any significant impacts on existing views and solar access of neighbouring properties; the overall building height, bulk and scale is consistent with the existing and emerging medium density residential streetscape; and the 1.32:1 FSR complies with the maximum 1.5:1 FSR development standard. The environmental planning grounds stated (at p 9) to justify a variation of the 13m building height development standard are that the proposal is consistent with the aims and objectives of the LEP and the relevant zone objectives; the architectural siting and design of the proposal demonstrates a high degree of architectural skill that will complement the existing and emerging medium density residential streetscape of the Queenscliff locality; the proposal will achieve a balanced sharing of residential amenity for residents of neighbouring residential buildings and future residents; there is no public benefit in maintaining the 13m height standard given that the amended proposal satisfies the objectives of the standard and the zone objectives; and the proposal provides a positive rather than negative precedent as the design will visually enhance and complement the existing and emerging medium density residential streetscape which is characterised by existing modern residential buildings exceeding the 13m height standard and the proposal achieves a high level of internal and external residential amenity in the locality.
10. The written request addresses (at pp 10-11) the matters specified in cl 4.6(5), and the Department of Planning and Infrastructure Varying Development Standards: A Guide (2011).
11. Clause 4.6(4)(a)(i) requires that the Court be satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3), namely (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. As summarised above, at pp 9-10 the written request discusses those matters.
12. The applicant submits, relying on the decision of Sheahan J in Lane Cove Council v Orca Partners Management Pty Ltd (No 2) [2015] NSWLEC 52, (2015) 208 LGERA 114, that the proper approach to cl 4.6(4)(a)(i) is that the Court is required to undertake an evaluative assessment, which is not confined to the written request which may have been written early in the process of preparing a development application, but having regard to subsequent material going to the issues including the expert evidence. Clause 4.6(4)(a)(i) was recently considered by Preston CJ in Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7, delivered after the hearing in this appeal, where at [39] his Honour held that it is not necessary to be satisfied directly that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, but only indirectly by being satisfied that the written request has adequately addressed the matter in subclause (3)(a) that compliance is unreasonable or unnecessary.
13. It is not necessary in the circumstances of this case to decide whether I am satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). Both subparagraphs (i) and (ii) of subclause 4.6(4)(a) must be satisfied: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90. For the reasons which follow, I am not satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the development standard (cl 4.6(4)(a)(ii)).
14. The applicant submits that the term "consistent" is to be understood in terms of "not being antipathetic" to the particular objectives. That is the approach adopted in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21. More recently, in Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45] Biscoe J noted the definition of "consistent" in the Macquarie Dictionary as "agreeing or accordant; compatible; not self-opposed or self-contradictory", and agreed with Bignold J in Gillespies v Warringah Council (2002) 124 LGERA 147 that the word "consistent" is not confined to the notion of the proposed development not being antipathetic, and is synonymous with compatible.
15. The focus of consideration in the evidence and submissions was on the Eastern building. Objective (a) of the building height development standard is to provide for building heights that are consistent with "…prevailing building height and desired future streetscape character in the locality". Based on the streetscape views including a photomontage of the proposed development provided at p 5 of the written request, and the view, I accept the agreed expert evidence that the height and number of storeys of the proposed Eastern building is comparable to the adjoining properties at 133-137 and 140-142 North Steyne, and at 32-34 Bonner Avenue. While the proposed development may be consistent with the prevailing development in the locality, I accept the agreed planning evidence (ex 7, p 4) that the 13m height standard is imposed in the LEP made in 2013, when the adjoining properties and others along North Steyne that are of a height greater than 13m were already erected, and that it must reasonably be assumed that the 13m development standard reflects the planning intent of the LEP for desired future character, irrespective of what currently exists. In cross examination Mr Player relied upon the flexibility provided in cl 4.6. There is a tension, if consistency is required with both, between the prevailing building height and the desired future streetscape character as expressed in objective (a), in the context where existing buildings exceed the height limit more recently imposed. Whichever meaning of "consistent" is adopted, I am not satisfied that the proposed height of the Eastern building could be regarded as consistent with the desired future character, which as expressed in the LEP height limit would not permit buildings of the height presently in the locality. However, it is not necessary to resolve the tension within objective (a), and how that fits with the flexibility conferred by cl 4.6, given my conclusion below on objective (b).
16. Objective (b) of the development standard is "to control the bulk and scale of buildings". In their joint report the planners agreed that moderation of the impact of height through increased setback of the uppermost floor would be appropriate, noting that the two adjoining buildings although of similar height have a recessive form to their uppermost levels, the more critical areas for increased setback being the northern and eastern side of the Eastern building (ex 7, p 4);. Their agreed setback on the northern and eastern side is now incorporated in the amended plans. However, Ms Laidlaw continued to have concerns as to the remainder of the uppermost floor, and her preference both as stated in the joint report (ex 7 p 7), and in oral evidence, where she expressed it as a caveat about supporting the cl 4.6 variation, was that from the perspective of bulk, the increased upper level setback should be continued around the wall to bedroom 2 to the uppermost unit of the Eastern building. In oral evidence Ms Laidlaw explained that her concern was not with views or overshadowing, but with bulk. A further 1m setback would be a benefit to all of the units on the southern side of 140 North Steyne; at the lower levels the residents either would not see that part of the building or would see only a part of it, and rising up the building, the benefit would be that the wall would be seen but further away. On the amended plans from the lower units the full height of the wall would be seen; if the top floor was set in, because it would be an acute angle, the wall of the floor below would be seen. Ms Laidlaw acknowledged that it was a lesser concern that some of the other issues presented by the building, in the difficulty of maintaining views, however it was there. In oral evidence Mr Player acknowledged that as the only point of variation between himself and Ms Laidlaw.
17. In her Statement of Evidence (ex 5, pp 5-6) Ms Laidlaw noted that the south side facing units of 140 North Steyne have their living balcony on the southern side, while the balconies on the eastern side are very modest. Ms Laidlaw noted that due to some "unfortunate" design aspects of 140 North Steyne, including walls built on boundaries, the separation between the existing and currently proposed buildings falls well short of SEPP 65 guidelines as well as the DCP setback requirements. Ms Laidlaw's opinion was that 140 North Steyne does at least step away from its boundaries as its height increases, whereas the proposed development does not, and as a consequence the design presents a significant additional bulk; and the proposed uppermost level, which is the level in breach of the height standard, has a significantly greater impact than it might otherwise have had if it had adopted the same or similar form to both of its neighbours with the uppermost level or levels stepping further in as height increases. While Ms Laidlaw agreed that there is variety in building height along North Steyne, the LEP height standard reflects the planning intent for the desired future character, being one that moderates the impact of bulk and scale to that which is commensurate with, essentially, a four storey building. The design of the proposed development is for a 5 storey building without any moderation of its impact at its uppermost level.
18. Ms Laidlaw's observations on the design of the south side facing units of 140 North Steyne, and the relationship with the side boundary to the site, are supported by the site view which included unit 22, 140 North Steyne. As noted above, the applicant has amended the design of the Eastern building to increase the setback by 1m on the northern and eastern facades of the uppermost level on the Eastern building. However, the section of the northern façade at bedroom 2 on the fourth level is not set back to the extent of the setback for bedroom 1, and is 2.729m from the side boundary which the southern side of 140 North Steyne adjoins, and 895mm at the narrowest point at the rear of the Eastern building. Having regard to the elevations (drawing DA11), the aspect for residents of units on the southern side of 140 North Steyne is of a solid wall, some 15m high. I accept the evidence of Ms Laidlaw that the design presents additional bulk in the context where the setback does not comply with the RFDC building separation or DCP side setback controls, section 4.1.4.2 of which would require a setback of 5m (ex 5, p 8; ex C, p 13). While I accept Mr Player's evidence (ex C, p 14) that the irregular shape and narrow dimensions of the consolidated infill development site and its context with adjoining residential flat buildings that also do not comply with cl 4.1.4.2 create difficulties in complying with the side setback control, given those non-compliances, compliance with the height development standard takes on greater significance in controlling the bulk and scale of the building. Whether consistency is a matter of compatibility with, or not being antipathetic to, the objective, I am not satisfied that that part of the Eastern building above the 13m height standard is consistent with the objective of "control", as defined in the Macquarie Dictionary to mean "to hold in check; curb", the bulk and scale of the building.
19. The applicant submitted that it would invite an amber light approach if that were the conclusion reached. Having regard to drawing DA08, any adjustment to the setback would have implications for the only source of light and outlook for bedroom 2; and such a fundamental re-design would not in my view be appropriately managed in that manner.
20. I am not satisfied that the proposed development is consistent with objective (b) of cl 4.3(1). Accordingly, cl 4.6(4)(a)(ii) is not satisfied, and development consent cannot be granted. That conclusion makes it unnecessary to consider the other objectives of the building height development standard. However, for completeness, I note the agreed planning evidence that the increased height of the proposed development does not result in overshadowing impacts on the adjoining properties that would warrant refusal of the application, and on that basis the proposal could be regarded as consistent with objective (d) of cl 4.3, being to provide solar access to public and private open spaces and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings.
21. In relation to objective (c), to minimise disruption to views, including (ii) views from nearby residential development to public spaces, the view impacts following the amendments to the plans were agreed between the planning experts, summarised above at paragraph [30]. I accept that there are minimal non-compliances with the 13m height standard for the Western building, and the adjustments to the plant room and to provide breaks and lowering of the parapet have minimised impacts on views across that building. For the Eastern building, the position is more complex. In Tenacity Roseth SC included in his four part assessment approach to reasonable sharing of views consideration of from what part of the property the views are obtained, noting at paragraph [27] that the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries, and the expectation to retain side views and sitting views is often unrealistic. In the context of this proposed development, for many of the neighbouring properties the only available views are across side boundaries, and in some instances from balconies or terraces rather than from living areas. The views to the beach and to North Head were acknowledged by the experts to be highly valued. While any view loss would be regarded as significant by the affected residents, I accept the agreed planning evidence that some of that view loss would arise with a building that complied with the 13m height limit, and in other instances the location of the two buildings and the gap in between retains and in some instances improves views. Having regard to the significant number of amendments to the design agreed between the planners during the conferencing process, I am satisfied that the proposed development is not inconsistent with the objective to "minimise" view loss. Whether the remaining impacts on views would, on an assessment of the merits of the application if the cl 4.6 variation were upheld, be appropriate, and not such as to warrant refusal of the application, would be a separate issue.
22. For the reasons above, I am not satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard as required by cl 4.6(4)(a)(ii), and development consent cannot be granted. Clause 4.6(4)(a)(ii) also requires satisfaction as to consistency with the zone objectives. While not necessary to decide, I would conclude, for the reasons given by the applicant, that the proposed development is consistent with the objectives of the R3 Medium Density Residential zone.
23. In circumstances where compliance with the height development standard cannot be varied, and consent cannot be granted, it is not appropriate to consider further the remaining contentions raised by the Council and in the submissions of the objectors, as to setbacks, landscaping, wall heights, and building separation, or to address the disagreement between the parties as to whether it would be appropriate to impose the Council's proposed condition ANS12 requiring that the building separation comply with the Apartment Design Guide.

Section 97B Costs

1. As noted in paragraph [7] above, the question of whether an order under s97B of the Act is required as a consequence of the granting of leave on the first day of the hearing to amend the development application was reserved. The parties provided written submissions on 19 February 2016.
2. Section 97B provides: 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application. (3) The regulations may provide for circumstances in which subsection (2) does not apply. (4) This section has effect despite the provisions of any other Act or law.
3. In written submissions filed on 19 February 2016, the applicant accepts that the amendments for which leave was granted on the first day of hearing are not "minor" for the purposes of s 97B and the Court must therefore make an order in the terms required by s 97B. The applicant notes that no agreement has been reached with the Council as to the quantum of costs, an aspect of the non-agreement relating to the nature of costs which properly come within a s 97B costs order. The applicant does not agree that the costs of the Council's expert planner in participating in the joint conferencing, in attendance on the first day of hearing, and in reviewing and assisting in the drafting of final without-prejudice conditions, properly come within the concept of "costs of the consent authority that are thrown away as a result of amending the development application".
4. Having regard to the principles as stated by Pepper J on her review of the earlier authorities in Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 at [42], I agree with the Council, as accepted by the applicant, that the amendments are not minor. In particular, the purpose of the amendments was to address the significant impacts of view loss and bulk and scale on the adjoining property at 32-34 Bonner Avenue, as identified in the Council's contentions and in objector submissions; and the amendments largely reflected recommendations in the joint report of the planners which they considered likely to address a number of contentions in the proceedings, and required re-assessment of the likely impacts by the experts. Those are matters which support the conclusion that the total effect of the changes could not be regarded as minor. The Council further relied on the fact that the amendments were seen to have bearing on the concerns of residents such that it was deemed necessary to circulate the amended plans to objectors and invite them to make further submissions in response. I would not regard that factor as necessarily indicating that the amendments are other than minor, but rather arose as a consequence of the timing of the amendments.
5. The applicant wishes for its position as to "costs thrown away" to be noted by the Court. The Council's written submissions address only the question of whether the amendments for which leave was given are minor, and do not address the issue of the extent of "costs thrown away". The appropriate order is one in the usual form, namely that costs be as agreed or assessed.
6. As noted above in paragraph [11], on 8 March 2016 the parties filed further amended plans that incorporated matters that would otherwise have been addressed in conditions, and included design changes discussed by the planning experts in the course of their oral evidence. In an eCourt communication dated 9 March 2016 the parties jointly requested that the Court grant leave to the applicant to rely on the amended plans, noting that the plans were prepared at the request of the Council to depict amendments agreed at the hearing and to accommodate the request for greater clarity in the drafting of conditions; the Council did not oppose such leave being granted; and the parties would consent to s97B costs being awarded in the sum of $1 on the basis that the amendments are an administrative formality to give effect to changes to be originally imposed by way of condition. Since the plans filed on 8 March 2016 would be the plans identified in the conditions requiring that development consent be carried out in accordance with specified plans, it is appropriate that leave be granted, by consent, for the applicant to amend the application to rely on those plans identified in paragraph [11]. The consolidated plans incorporate changes that would otherwise be required by conditions, and the additional amendments to levels three and four of the Western building agreed between the planners, and it is appropriate to make the agreed order requiring payment of costs pursuant to s 97B of the Act.

Orders

1. The orders of the Court are: 1. Leave is granted to the applicant to amend the development application to rely on the plans filed on 8 March 2016, being DA02, DA03, DA04, DA05, DA06, DA07, DA08, DA09, DA11, DA12, DA13, DA14, DA15, DA17, DA100, and DA22, all Issue F; 2. In accordance with s97B(2) of the Environmental Planning and Assessment Act 1979 the applicant is to pay the costs of the respondent thrown away as a consequence of the amendment of the application in order (1), in the agreed sum of $1; 3. In accordance with s97B(2) of the Environmental Planning and Assessment Act 1979 the applicant is to pay the costs of the respondent thrown away as a result of the amendment of the development application on 4 February 2016 to rely on the plans in exhibit F, being DA02, DA07, DA08, DA09, DA11, DA12, all Issue D1, as agreed or assessed; 4. The appeal is dismissed; 5. Development Application DA 243/14 for the consolidation of three lots and construction of two residential flat buildings at 138-139 North Steyne and 30 Bonner Avenue Manly is refused; and 6. The exhibits are returned except for exhibits A, F, G, 1, 6 and 8. Linda Pearson Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2016