(2004) 134 LGERA 23
Triton Services Group Pty Ltd v Manly Council [2011] NSWLEC 69
Wehbe v Pittwater Council [2007] NSWLEC 827
Source
Original judgment source is linked above.
Catchwords
(2004) 134 LGERA 23
Triton Services Group Pty Ltd v Manly Council [2011] NSWLEC 69
Wehbe v Pittwater Council [2007] NSWLEC 827
Judgment (22 paragraphs)
[1]
Judgment
COMMISSIONER: Made Property Group Pty Ltd (the Applicant) has appealed the decision of the Northern Beaches Independent Assessment panel, under delegation from Northern Beaches Council (the Respondent), to refuse consent to its development application DA 56/2007 for the demolition of existing structures and the construction of a residential flat building (the proposed development) at 89-90 North Steyne and 90-92 Whistler St, Manly (which together form the Subject Site).
The appeal had been the subject of a conciliation conference on 13 October 2013 under s34 of the Land and Environment Court Act 1979, which had not resolved contentions between the Parties, and so was terminated.
The appeal is made pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act). The Parties advised that the contention between them have been resolved and they seek consent orders from the Court.
The hearing commenced with an on-site view during which a submission was made by one objector, Dr Stephan Görner, the owner of a unit at 88 North Steyne, and which is located adjacent to the Subject Site.
Dr Görner noted that his unit was located at the rear of the building at 88 North Steyne and included a north facing balcony with views towards Manly Beach, across the Subject Site.
Dr Görner said that he had received notification of the consent hearing on the Friday 15 December 2017, and he stated that this had limited his opportunity to give full consideration to the amended plans.
He noted that on the morning of the hearing he had been provided by the Respondent with a montage depicting the view corridor from his north facing balcony as it would remain after the construction of the proposed development on the Subject Site.
Dr Görner expressed the following concerns in relation to the proposed development:
1. View impact: Dr Görner said that the proposed development would severely impact on the views available from his north facing balcony towards Manly Beach;
2. Floor space ratio (FSR): Dr Görner said that he had received 'expert planning advice' that an area of the subject site fronting North Steyne which was the subject of an order under the Roads Act 1993 made by the former Manly Council, should be excluded from the applicant's calculation of the floor space ratio for the proposed development. He noted that if this were the case of the floor space ratio of the proposed development would be greater than that calculated by the Applicant.
Dr Görner concluded that, in his view, the bulk and scale of the proposed development unreasonably impacted on the view available from his north facing balcony, and, as a consequence, he objected to the application.
[2]
Application for consent orders
The Court's Practice Note - Class 1 Development Appeals (paragraph 99), provides as follows in relation to applications for final orders by consent of parties in circumstances where the appeal concerns the refusal of a development application:
99. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:
(i) the content of the proposed orders (including the proposed conditions of consent);
(ii) the date of the hearing by the Court to consider making the proposed consent orders; and
(iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.
During the hearing the Respondent advised that it had notified all objectors that, following the termination of the s34conciliation conference on 13 October 2017, this appeal had been listed for a consent orders hearing on 18 December 2017, and that the hearing would commence on site at 9:30am.
A copy of that communication was tendered as evidence in the hearing. The respondent noted that the communication:
1. included advice to objectors that the Court had granted leave for the applicant to rely on amended plans (referred to as the version G plans);
2. attached a copy of the amended plans which were within a copy of a joint report prepared by the planning experts, Mr Greg Boston for the Applicant, and Miss Deborah Laidlaw for the Respondent, and dated 28 November 2017;
3. noted that full copies of the plans could be viewed at the Respondent's offices and at the offices of the Respondent's solicitors.
The Respondent also confirmed that the objectors had been advised that the experts had reached agreement on a basis for resolution of all of the contentions raised by the Respondent in its Statement of Facts and Contentions, filed on 6 October 2017, subject to amendments being made to the plans for the proposed development, provided in Appendix B of the joint report of the planning experts.
In response to the notification of the hearing, a submission was received from Mr Mark Hanna, on behalf of the owners of Strata Plan SP90330 at 91 North Steyne, Manly, in which Mr Hanna requested that the conditions of consent for the proposed development include a requirement for a dilapidation report on the building at 91 North Steyne..
Mr Hanna's submission also requested that the conditions of consent require that the colour scheme for the proposed development be such as to reduce the visual impact and prominence of its roof areas.
The Respondent noted that these matters had been addressed within the draft conditions of consent prepared by Council.
During the hearing the Respondent also explained that the copy of the correspondence referred to at [11] which was to be sent to Dr Görner, had been addressed and dispatched to the unit owned by Dr Görner at 88 North Steyne, but had not been sent to Dr Görner's independently retained planning expert.
The Respondent advised that upon this misdirection being identified on Friday, 15 December 2017, Dr Görner was contacted by telephone and advised of the contents of Council's notification letter and attachments, which was then communicated to him electronically.
The Respondent advised that the details of the proposed amendments to plans were discussed with Dr Görner, and confirmed that this discussion, which extended across a period of some 40 minutes, had included the identification of specific changes that had been made to plans previously been provided to objectors.
Finally, the Respondent confirmed that the objectors had been advised of the proposed conditions of consent, and been sent a copy of the joint report of the planning experts. That report had included recommendations for additional conditions of consent and a proposal for one amendment to the plans for the proposed development.
The Respondent confirmed that objectors had been advised that the recommendations the expert planners would all be adopted for the purposes of the consent orders hearing.
The Respondent said that the above actions had ensured that the objectors had been made aware of the full suite of conditions of consent that would be tendered by the Parties at the consent orders hearing.
Having considered the Respondent's advice concerning the notifications provided to objectors, along with the further actions undertaken to communicate to Dr Görner the details of the consent orders hearing and details of the proposed amendments to plans and conditions of consent, I am satisfied that the Court's practice note requirements concerning the notification of applications for final orders by consent have been adequately addressed.
Before the Court can grant consent, the Respondent must also demonstrate that the relevant statutory provisions applicable to the proposed development have been met, and that the concerns of objectors have been properly taken into account. These points were addressed during the hearing.
[3]
Environmental Planning and Assessment Act 1979
Section 79C(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) states:
"79C Evaluation
(1) Matters for consideration--general
In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and
(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest".
Section 79C(3A) of the EP&A Act provides:
Development control plans
If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.
In this subsection, standards include performance criteria.
[4]
Manly Local Environmental Plan 2013
Under Manly Local Environmental Plan 2013 (MLEP 2013), the Subject Site is zoned R3 Medium Density Residential. The objectives of this zone are to:
provide for the housing needs of the community within a medium density residential environment.
provide a variety of housing types within a medium density residential environment.
enable other land uses that provide facilities or services to meet the day to day needs of residents.
encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment.
encourage the provision and retention of tourist accommodation that enhances the role of Manly as an international tourist destination.
A residential flat building, such as that proposed under this appeal, is a permitted use in the R3 zone.
The height of buildings on the Subject Site is controlled under cl4.3. of MLEP 2013 which has the following objectives:
(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.
MLEP 2013 also provides that the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
The Height of Buildings Map sets a 13m height control on the Subject Site.
The floor space ratio (FSR) control for the Subject Site is provided under cl4.4. of MLEP 2013. This control has the following objectives:
(a) to ensure the bulk and scale of development is consistent with the existing and desired streetscape character,
(b) to control building density and bulk in relation to a site area to ensure that development does not obscure important landscape and townscape features,
(c) to maintain an appropriate visual relationship between new development and the existing character and landscape of the area,
(d) to minimise adverse environmental impacts on the use or enjoyment of adjoining land and the public domain,
(e) to provide for the viability of business zones and encourage the development, expansion and diversity of business activities that will contribute to economic growth, the retention of local services and employment opportunities in local centres.
Clause 4.4 also provides that the maximum FSR for a building on any land is not to exceed the floor space ratio shown for the land in the Floor Space Ratio Map in MLEP 2013.
Clause 4.6 of MLEP 2013 (Exceptions to Development Standards), provides the basis for contravention of standards as follows:
(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.
[5]
Manly Development Control Plan 2013
Manly Development Control Plan 201 (Amendment 11) (MDCP 2013) was adopted in 2014, and has the purpose to:
Make more detailed provisions than in Manly LEP 2013 in respect of development to complement the provisions and achieve the purposes of the LEP.
Clause 4.1.2. of MDCP 2013 provides further guidance concerning the height of buildings in residential developments, and under cl 4.1.2.2 of MDCP 2013 buildings in land in areas 'L' and "N1' on the 2013 Height of Buildings Map should not exceed three storeys.
[6]
Contentions
The principle questions for resolution in the hearing, based on the contentions in this appeal, were as follows:
1. Should the Applicant's cl4.6 request to breach the height control in MLEP 2013 be upheld?
1. The Respondent said that the proposal exceeds the height limit under cl4.3 of MLEP 2013, and the applicant had prepared a request under cl4.6 of MLEP 2013 for an exemption to the height control. The Respondent contended that this request was not well founded.
1. Should the Applicant's cl4.6 request to breach the floor space ratio (FSR) control be upheld?
1. The Respondent said that the proposal exceeds the FSR control under cl4.4 of MLEP 2013, and the Applicant had prepared a request under clause 4.6 of MLEP 2013 for an exemption to the FSR control. The Respondent contended that this request was not well founded.
1. Is the streetscape presentation of the proposed development acceptable?
1. The Respondent said that the proposal exceeds the three storey control in section 4.1.2.2 of MDCP 2013, which the Respondent had said gave rise to an unacceptable impact on the streetscape.
1. Are the proposed side setbacks and street setback of the proposed development acceptable?
1. The Respondent said that the proposal does not comply with the side setback requirements in MDCP 2013 or the rear setback control.
1. Are the view loss and overshadowing impacts of the proposed development acceptable?
1. The Respondent said that the proposal results in a loss of views to properties at 88 and 91 North Steyne and overshadowing of 88 North Steyne.
1. Does the proposed development provide adequate landscaping?
1. The Respondent said that the proposal does not provide adequate landscaping and does not comply with clause 4.1.5.1 of MDCP 2013.
1. Is the proposed development in the public interest?
1. The Respondent said that the proposal should be refused having regard to the public interest in requiring compliance with the planning controls.
In addition to the above contentions, the Respondent said that insufficient information had been provided in terms of a view assessment. This contention was resolved through the provision of a view analysis prepared on behalf of the Applicant by Dr Richard Lamb.
The remaining contentions were addressed during the hearing and were the subject of testimony from the planning experts, Mr Greg Boston and Miss Deborah Laidlaw.
[7]
Should the Applicant's cl4.6 request to vary the height control be upheld?
The Respondent contended that the proposed development exceeds the height limit under cl4.3 of Manly Local Environmental Plan 2013 (MLEP 2013) and that this exceedance resulted in adverse impacts on the properties adjoining the Subject Site. The Respondent also said that the Applicant's written request under cl4.6 of MLEP 2013 was not well founded.
As noted at [34], under cl4.6 of MLEP 2013, 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:
1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
2. that there are sufficient environmental planning grounds to justify contravening the development standard.
In addition to being satisfied that the Applicant's written request has addressed these matters, a consent authority is also required to be satisfied that 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.
[8]
Is compliance with the height development standard unreasonable or unnecessary in the circumstances of this appeal?
In assessing whether compliance with a development standard is unreasonable and unnecessary, it appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 in which His Honour identified five pathways that could be applied to establish whether compliance is unreasonable or unnecessary. These are to establish that:
1. compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary;
3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable;
4. the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable;
5. "the zoning of particular land" was "unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary.
The Subject Site is mapped in two parts in terms of height controls. The majority of the site, excluding an area of 144m2 adjacent to North Steyne, has a maximum height control of 13m under MLEP 2013.
A portion of land adjacent to North Steyne, while zoned R3 Medium Density Residential, does not have a specified height control under MLEP 2013. However, it is not proposed to build upon that portion of the Subject Site.
The planning experts agreed that, except for the lift overrun and structures associated with the roof terrace in the centre of the site, the amended design, including the so-called "winged" architectural roof feature, complies with the height control under cl4.3 of MLEP 2013.
The planning experts agreed that the proposed breach of the height control would not cause any adverse impacts on adjoining properties. They said that because the structures that exceed the height control are well set back from both the side boundaries of the Subject Site and the street they would have no impact on the perceived bulk and scale of the development in the streetscape, nor would they give rise to any overshadowing impact on adjoining properties.
A revised written request to vary the height control under the provisions of cl4.6 of MLEP 2013 was tendered by the Applicant in respect of the lift overrun and roof terrace structures.
The planning experts agreed that the cl4.6 request was well founded because:
1. the height exceedance is located in the central portion of the building and so would not be visible from the public domain;
2. the height of the proposed development is consistent with the development achieving the objectives of the height control; and
3. the height of the proposed development is consistent with the development achieving the objectives of the R3 zoning of the Subject Site.
Based on the evidence of the planning experts, which I accept, I find that compliance with the height control of the Subject Site is unnecessary in the specific circumstances of this appeal and on the basis of the amended plans.
[9]
Are there are sufficient environmental planning grounds to justify contravening the height development standard?
Mr Philip Donnelly, representing the Executive Committee of the adjoining building at 91 North Steyne, had made a submission that "although reduced in size, [the roof structure] is still a dominant feature which negatively impacts by increasing the visual bulk and scale of the development and is not in keeping with other roof structures and the streetscape along iconic Manly Beach".
However, the planning experts agreed that any further reduction in height or setback of the winged roof would compromise the integrity of the design, and would be contrary to the control's objective of achieving high quality built form.
I accept the evidence of the planning experts that any further reduction in height or setback of the winged roof would compromise the integrity of the design, contrary to the objective of achieving high quality built form, and find that this provides an adequate planning reason for the proposed breach of the height control.
[10]
Is the cl.4.6 request to vary the height control in the public interest?
As discussed at [53], the planning experts agreed that, as noted in the Applicant's written request under cl4.6, any reduction in height the proposed development would not be consistent with the objectives of the height control in cl4.3 of MLEP 2013.
Based on the above, I conclude that:
1. the proposed development is consistent with the objectives of the height control in cl4.3 of MLEP 2013 and the objectives for development within the zone in which it is proposed to be carried out;
2. the proposed development will be in the public interest and;
3. the Applicant's cl4.6 request to vary the height control should be upheld.
[11]
Should the Applicant's cl4.6 request to breach the floor space ratio (FSR) control be upheld?
The basis for consideration of a request to vary a development standard under cl4.6 of MLEP 2013 was discussed above at [34] and [41].
As was the case in relation to the height control, the Subject Site is also mapped in two parts in terms of FSR controls. The majority of the site, excluding an area of 144m2 adjacent to North Steyne, has a maximum FSR control of 1.5:1 under MLEP 2013.
The 144m2 portion of land adjacent to North Steyne, while zoned R3, is not subject to a specific FSR control under the FSR control mapping within MLEP 2013.
The planning experts addressed this matter within their joint report, and in testimony during the hearing, and agreed that the basis for this area having no mapped FSR control arose from its intended future use by Council for road widening along North Steyne.
However, the planning experts also noted that, as a consequence of a judgement of Biscoe J in the matter of Triton Services Group Pty Ltd v Manly Council [2011] NSWLEC 69, in which Council was found to have not served notice under s262(3) of the Local Government Act 1919 (now repealed) for its proposed widening of North Steyne, no road widening order within the meaning of s25 of the Roads Act 1993 applies to the Subject Site.
As a result, development is not prohibited on that eastern 144m2 portion of the Subject Site that is not subject to a FSR control under MLEP 2013.
The planning experts noted in their joint report that the Applicant does not propose to build upon that eastern portion of the Subject Site. However, the dual FSR controls applicable the Subject Site, and the absence of a valid road widening order under the Roads Act, gives rise to a question as to the basis for calculation of the FSR for the proposed development.
This issue did not arise in relation to the cl4.6 request to vary the height control as that control does not require an area based calculation.
This matter was considered by the planning experts, who agreed that, for the purposes of this appeal, the FSR of the proposed development should be calculated by including the whole of the Subject Site area, including the 144m2 area of the Subject Site adjoining North Steyne. This provided an FSR for the proposed development of 1.64:1, which exceeds the 1.5:1 FSR control applicable over that part of the Subject Site for which an FSR control is provided within MLEP 2013.
The Applicant had provided a written request to vary the standard in line with the provisions of cl4.6 of MLEP 2013. This request said that the FSR of the proposed development was 1.64:1.
The planning experts said that any cl4.6 request by the Applicant to vary the FSR control, whether based on their agreed FSR of 1.64:1 or one based on the inclusion of the 144m2 are fronting North Steyne, would be assessed against the same tests, which were drawn from cl4.6 of MLEP 2013, and from case law. These are provided above at [41], [42] and [43].
The planning experts noted that, notwithstanding the quantitative nature of the FSR calculation, these tests were qualitative in nature.
The planning experts said that the calculated FSR of 1.64:1 was adequate for the purposes for preparing and assessing the written request to vary the FSR standard prepared by the Applicant.
I accept this evidence of the planning experts, and agree with the submissions of the Parties, that the approach applied to calculation by the Applicant is adequate for the purposes assessing the written request to vary the FSR standard in this appeal.
However, I would note that, in light of the judgment of Biscoe J in Triton Services Group Pty Ltd v Manly Council, the consequential anomaly presented by the absence of a FSR control in MLEP 2013, as it applies over the 144m2 portion of the Subject Site and other parts of North Steyne, merits rectification by Council either through:
1. the making of a proper road widening order under the Roads Act 1993; or
2. amending of the height and FSR control maps within MLEP 2013.
[12]
Is compliance with the development standard unreasonable or unnecessary in the circumstances of this case?
The approach for establishing whether a request to vary a development standard is unreasonable or unnecessary in the circumstances of an appeal have been set out above at [43].
It was the agreed evidence of the planning experts that, despite any differences of view in relation to the precise quantum of the proposed development's FSR, and the non-compliance with the standard under either approach, the objectives of the FSR control are achieved by amended proposal notwithstanding its non-compliance with the standard.
The planning experts also agreed that the proposed development, as amended, also achieved the objectives of the R3 zoning applicable to the Subject Site.
Having considered the above, I accept the evidence of the planning experts, and conclude that compliance with the FSR control in MLEP 2013 is unnecessary in the circumstances of this case.
[13]
Are there sufficient environmental planning grounds to justify contravening the development standard?
The planning experts were of the opinion that the height and design of the proposed development, as represented in the amended plans, ensured that the proposed development was of a bulk and scale, and a streetscape presentation, that was consistent with that of both North Steyne and Whistler St.
The experts also said that:
1. side boundary amendments incorporated in the amended plans ensure that, with some exceptions, the bulk of the proposed development as presented to neighbours is consistent with the presentation of a compliant development in terms of setback controls;
2. in relation to some lower level units in adjacent properties, the impact of the proposed development would be less than that which would be achieved through a strictly compliant building envelope;
3. the side setbacks in the amended plans present minor encroachments in relation to setback controls at level III of the proposed development, but lower levels were further setback so that overall, the bulk and scale of the proposed development is similar to that which would be achieved through a fully compliant development, and which, in their view, provided better urban design and planning outcomes; and
4. the view impacts and other impacts arising from the proposed development were consistent with a development that was compliant with the height standard applicable to the Subject Site.
The planning experts agreed that, on the basis of the amended design, the proposed development would not present as a bulky structure in the streetscape nor cause adverse impacts on adjoining properties.
Based on this evidence, I am satisfied that there are sufficient environmental planning grounds to justify the proposed development contravening the FSR control in MLEP 2013.
[14]
Is the cl.4.6 request to vary the FSR control in the public interest?
As the proposed development is consistent with the objectives of both the FSR standard and the objectives for development within the R3 zone in which it is proposed to be carried out, and as there are sufficient environmental planning grounds to justify the request, I am satisfied that the FSR of the proposed development is in the public interest, and that the Applicant's cl4.6 request to vary the FSR control in MLEP 2013 should be upheld.
[15]
Is the streetscape presentation of the proposed development acceptable?
In addition to the non-compliance with the height control in cl4.3 of MLEP 2013, discussed above at [40] to [55(1)], the proposed development's four storey design does not comply with the maximum three storey height control provided in cl4.1.2.2 of MDCP 2013. The Respondent said that this non-compliance would give rise to an unacceptable impact on streetscape
Section 79C(3A) of the EP&A Act, requires that a consent authority, or the Court on appeal, be flexible in applying the provisions of a DCP and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.
As noted above at [49], based on the testimony of the planning experts, I accept that the height of the proposed development is consistent with the objectives of the height control in MLEP 2013.
The planning experts noted in evidence that the proposed development would be located between a four storey building at 91 North Steyne, which is of similar scale to the proposed development, and a nine storey building at 88 North Steyne. They said that, for this reason, the exceedance of the height control in MDCP 2013 is consistent with the streetscape, and that the Applicant's proposed four storey development was acceptable.
Given that I have found that the height of the building is consistent with achievement of the objectives of the height control in MLEP 2013, and is consistent with its local context, I am satisfied that the height of the proposed development provides an acceptable alternative to that which would be achieved through application of the three storey control in MDCP 2013.
Therefore I conclude that, consistent with the provisions of s97C(3A) of the EP&A Act, the height controls in MDCP 2013 should be applied flexibly in relation to the proposed development and that the four storey form of the proposed development is acceptable in relation to its streetscape presentation.
[16]
Are the side setbacks and street setback of the proposed development acceptable?
The evidence of the planning experts was that requiring the proposed development to be in strict compliance with side setback controls would result in an inappropriate 'wedding cake' design, which would be inconsistent with the streetscape of North Steyne.
Clause 4.1.4.2 of MDCP 2013 provides that "setbacks between any part of the building and the side boundary must not be less than one third of the height of the adjacent external wall of the proposed building".
However, MDCP 2013 does allow exceptions for unenclosed balconies, roof eaves, sunhoods and the like if it can be demonstrated there will be no adverse impact on adjoining properties including loss of privacy from a deck or balcony.
The planning experts agreed that on the southern side of the building at ground level to level 2, the side setbacks are greater than required, although at level 3 the side setback is 500mm less than required. However, the planning experts also concurred with the Applicant's view analysis, prepared by Dr Richard Lamb and tendered as evidence during the hearing, which concluded that at the eastern margins of the proposed development the impact on the views from adjoining buildings would be comparable to those available from a complying development.
The planning experts confirmed that other non-compliances of the proposed development located further to the west, would not create any adverse impact on views from 88 North Steyne due to the extensive setbacks of that property.
The planning experts also said that the setback controls on the north side of the proposed development are exceeded on the lower 2 levels and are 500mm less than required at level 3. However, the planning experts also agreed that this does not result in adverse view loss impacts to the adjoining property at 91 North Steyne.
Clause 4.1.4.4 of MDCP 2013 provides a control for rear setbacks of developments on the Subject Site. The planning experts agreed that, in the circumstances of this case, Whistler Street should not be treated as a rear boundary, but rather the Subject Site should be treated as having two street frontages.
The planning experts agreed that properties in Whistler Street present varied setbacks and accordingly that the rear setback control of 6m should not apply to the proposed development. The Applicant said that even if the rear set back control in MDCP 2013 did apply to the proposed development, the rear setback controls in MDCP 2013 provide sufficient flexibility as to permit balcony projections into the setback zone.
The planning experts also agreed that, for the same reasons as were recognised in relation to the height and FSR contentions, the setbacks of the proposed development would not give rise to any adverse impact in the streetscape.
The Parties said that they adopted the agreed position of the planning experts that streetscape considerations should not be a basis for refusal of consent to the development.
Applying the provisions of s97C(3A) of the EP&A Act, I am satisfied that the proposed development provides an acceptable alternative to the setback controls in MDCP 2013, and that the it is consistent with the streetscape of North Steyne.
[17]
Are the view loss and overshadowing impacts of the proposed development acceptable?
The planning experts provided evidence in relation to the potential impact on the proposed development on views from units in the adjoining properties at 88 and 91 North Steyne. The assessments of the planning experts were based on the view loss assessment and sharing principles in Tenacity Consulting Pty Limited v Warringah Council (2004) 134 LGERA 23.
The planning experts agreed that the proposed development would have a minor impact on the views available from the units on levels 1 and 2 of 88 North Steyne, and that these impacts would be consistent with those anticipated by a complying scheme on the Subject Site.
The experts assessed that, while the impact of the proposed development on the views from levels 3 and 4 of 88 North Steyne to the north would be moderate to severe, these losses would also be consistent with a complying development constructed under the height and set back controls applicable to the Subject Site.
Finally, the experts assessed that the view loss impact on units in levels 5 and 6 of 88 North Steyne would be moderate/severe and moderate respectively, but they agreed that these impacts would also be consistent with view losses that would result from a development that complied with the relevant controls applicable to the Subject Site, other than for a 500mm encroachment into the southern side setback.
The planning experts concluded that the view loss impacts of the proposed development, as represented in the version G amended plans, were reasonable and acceptable for a development on the Subject Site.
In relation to the property to the north of the Subject Site at 91 North Steyne, the planning experts agreed that the apartments at levels 1, 2 and 3 would maintain uninterrupted views in an easterly and north easterly direction and would obtain a significant increase in available views due to the demolition of the existing buildings which sit further east on the site.
The planning experts said that apartment 5 in that building would experience a small reduction in view from the living room and roof deck. However, they agreed that, based on an application of the Tenacity view sharing principles, the impact on apartment 5 would be minor, and reasonable.
The planning experts agreed that the potential overshadowing impacts of the proposed development on the property at 88 North Steyne were consistent with those that would be anticipated by a development that complied with the relevant controls applicable to the Subject Site.
Finally, the planning experts said that any potential privacy impacts that may arise from the proposed development were adequately addressed by proposed conditions of consent that would require that planters be installed on the northern side of the northern balconies on levels 1, 2 and 3 of the proposed development.
Ms Laidlaw recommended that a further condition be included with the consent to reduce the extent of south facing glazing on the master bedroom of units 6, 10 and 14. Mr Boston agreed with this recommendation.
Based on the submissions of the Parties, and the expert testimony of the planning experts, I conclude that view loss and overshadowing impacts of the proposed development, as represented in the amended plans, and with conditions recommended by the experts, are acceptable, and should not be a reason for refusal of the proposed development.
[18]
Does the proposed development provide adequate landscaping?
The planning experts agreed that the contention as initially raised was based on Council interpreting the control in MDCP 2013 as requiring that 25% of the total of the amount of open space provided in the proposed development be landscaped. They agreed that the correct interpretation was that the proposed development should provide landscaped areas equivalent to 25% of the open space control applicable to the Subject Site, not of the open space proposed by the Applicant.
The planning experts further agreed that the amount of open space provided in the proposed development represented 73.5% of the site area, and that this significantly exceeded the amount required under the control, which was 45% of the site area.
Given the above, the planning experts agreed that the proposed development exceeded the landscaped area required under MDCP 2014, and that the contention was satisfactorily resolved.
[19]
Is approval of the proposed development in the public interest?
During the hearing, the planning experts said that the contentions raised by the Respondent had been addressed through amendments made to plans, along with the proposed conditions of consent.
They also said that the amended plans and proposed conditions of consent had adequately addressed the content of two additional submissions lodged in response to the further notification of the amended plans.
The Parties submitted, and I agreed (see [55(1)] and [79]), that there is no public interest in requiring compliance with the development standards for height and FSR as the objectives of those standards are achieved by the proposed development and so compliance is unreasonable and/or unnecessary in the circumstances of this appeal.
The Parties agreed that the proposed development would not give rise to any issues of precedent.
Based on their submissions and the evidence of the planning experts, I agree with the Parties that approval of the proposed development is in the public interest.
[20]
Conclusion
I am satisfied that:
1. the Court's requirements concerning the notification of applications for final orders by consent have been adequately addressed;
2. the Applicant's cl4.6 request to vary the height control in MLEP 2013 should be upheld;
3. the Applicant's cl4.6 request to vary the FSR control in MLEP 2013 should be upheld;
4. the height controls in MDCP 2013 should be applied flexibly in relation to the proposed development and that the four storey form of the building is acceptable in relation to its streetscape presentation;
5. the proposed development provides an acceptable alternative to the setback controls in MDCP 2013, and is consistent with the streetscape;
6. the view loss and overshadowing impacts of the proposed development, as represented in the amended plans, and with conditions recommended by the experts are acceptable and should not be a reason for refusal of the proposed development;
7. the proposed development exceeds the landscaped area required under MDCP 2013;
8. approval of the proposed development is in the public interest.
Consequently, I conclude that the proposed development should be approved, subject to conditions.
[21]
Orders
The orders of the Court are:
1. The Applicant is granted leave to amend the development application and rely on the amended plans referred to in Annexure 'A' in the proceedings.
2. By consent, the appeal is upheld.
3. Development application (DA 56/2007), as amended, for the demolition of existing structures and the construction of a residential flat building with basement car parking at 89-90 North Steyne and 90-92 Whistler St, Manly, is approved subject to the conditions of consent provided at Annexure 'A'.
4. The exhibits are returned, except Exhibits 1 and B.
………………………….
Michael Chilcott
Commissioner of the Court
Annexure A (C)
[22]
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Decision last updated: 12 January 2018