Manolev Associates Pty Ltd v Manly Council

16 The other relevant LEP clauses are as follows: 17 Visual and aesthetic protection of certain land The council shall not grant consent to the carrying out of development unless it is satisfied that the development will not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area. 19 Development in the vicinity of an item of environmental heritage The council shall not grant consent to a development application to carry out development in the vicinity of an item of the environmental heritage unless it has made an assessment of the effect which the carrying out of that development will have on the histories, scientific, cultural, social, archaeological, natural or aesthetic significance of the item of environmental heritage and its setting. 17 The 'Ocean foreshores' and 'Harbour foreshores' are listed as items of the environmental heritage in Schedule 4 of the LEP and accordingly apply in this assessment.

18 The detailed development controls are contained in the Manly Residential DCP (MRDCP), wherein the relevant general objectives and considerations are: 1.2 Objectives (d) To increase the availability and variety of dwellings to enable population growth without having adverse effects on the character, amenity and natural environment of the residential areas; (f) To protect the amenity of existing and future residents; (h) To minimise the impact of new development, including alterations and additions on privacy, views, solar access and general amenity of adjoining and nearby residences; (n) To ensure protection of environmentally sensitive localities (o) To encourage a responsible development approach resulting in design of architectural merit that interprets and compliments site characteristics, streetscape and the surrounding built and natural environment; (r) To encourage environmental best practice. 19 The detailed objectives and controls are contained in Parts 2, 3 and 4 of the MRDCP and relate to: Development should respond to the slope of the site with the main aim of minimising loss of views and amenity from public and private spaces (cl 2.4.8). Any built form should maximise setbacks to enable open space to dominate buildings (cl 2.4.13) Bulk and design should not detract from the scenic amenity of the area (2.4.16). Driveway cross-overs shall be minimised and garages and carports adjacent to the front boundary may not be permitted if there is a reasonable alternative location (2.4.23) (with special attention to encroachment on public land cl 2.4.25). Excavation in terms of cut & fill is to be limited (cl 2.5.1). 20 The specific objectives regarding earthworks are: Excavation and Earthworks - Objectives: 2.5.1 To retain the existing landscape character and limit change to the topography and vegetation of the Manly Local Government Area by: a) Limiting excavation, "cut and fill" and other earthworks; b) Discouraging the alteration of the natural flow of ground and surface water; c) Ensuring that development does not cause sedimentation to enter drainage lines (natural or otherwise) and waterways; and (d) Limiting the height of retaining walls and encouraging the planting of endemic species to soften their impact. 21 The building height is an important issue in this appeal and the relevant height controls include: Building height - objectives 3.5.1 The objectives for building height are: a) To regulate the height of buildings by specifying maximum wall and roof heights; b) To assist in controlling the bulk of buildings; c) To provide for building heights that are consistent with the prevailing building heights in the locality; d) To minimise disruption to views from adjacent and nearby residential development and from public spaces; f) To allow adequate sunlight penetration to private open spaces and windows to the living spaces of adjacent residential development.

22 The relevant sections of the SREP-SHC are: Division 2 Matters for consideration 20 General The matters referred to in this Division (together with any other relevant matters): (a) are to be taken into consideration by consent authorities and others before granting consent under Part 4 of the Act, and (b) are to be taken into consideration by public authorities and others before they carry out activities to which Part 5 of the Act applies. 21 Biodiversity, ecology and environment protection ( e) development should protect and reinstate natural intertidal foreshore areas, natural landforms and native vegetation (h) the cumulative environmental impact of development, 23 The matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways are as follows: (a) the scale, form, design and siting of any building should be based on an analysis of: (i) the land on which it is to be erected, and (ii) the adjoining land, and (iii) the likely future character of the locality, (b) development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries, 24 Under the Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (SHFWA-DCP), the subject land is classified as 'Landscape character type 4'. The statement of character and intent states: The intent in this area is to allow development which does not obscure the natural topographic features and vegetation which contribute to the landscape. 25 The associated performance criteria states that: Any development in this landscape is to satisfy the following criteria: It is sited and designed so that it does not break or contribute to the loss of the visual continuity of the landform; It is sited and designed so that the visual dominance of the tree canopy on the slopes and along the skyline is maintained; The visual significance of the cliff lines, rock outcrops and ledges is retained; It is sited to avoid disturbing and obscuring rock outcrops and areas of native vegetation; and Overall colour should match native vegetation and geological features as closely as possible with trim colours drawn from natural elements such as tree trunks and stone. 26 The detailed controls cover the following matters: 5.3; Siting of buildings and structures. Buildings should not obstruct views and vistas from public places to the waterway 5.4; Built form, which seek to minimise rectangular boxy shapes with flat or skillion roofs that usually do not harmonise with their surroundings. 5.13; Swimming pools, where the visual impact of swimming pools when viewed from the waterway is to be minimised. 5.14; Inclinators, stairs and driveways are to satisfy the stated objectives in terms of: o Minimise the visual intrusion; and o Minimise disturbance to topography and vegetation. o Inclinators and driveways should be sited as close as possible to natural ground level; o Inclinators, stairs and driveways should be sited to maintain privacy of adjacent dwellings o Inclinators, stairs and driveways should not obscure or break a view line of rock or cliff face o Encourage shared use of access facilities in environmentally or visually sensitive locations

The evidence 27 Detailed evidence was presented by Mr Layman, consulting architect/planner for the council and Mr Harding, planner for the applicant. There was a fundamental difference in opinion between the 2 experts as stated in the Joint Experts' Report: We agree that a fundamental difference in opinion between us is the desirability, or otherwise, of stepping the form down the site to the extent that compliance would be more closely achieved. This then turns to a question of the reasonableness of the variations to the DCP controls that result from a more upright building and whether the objectives behind those controls are met. It is the disparate positions on these issues that discerns the difference between our positions on the related issues. 28 Accordingly, Mr Layman contends that the development should be stepped down the slope and reduced in scale, whilst Mr Harding contends that the more vertical form has less impact on the land and leaves greater areas for landscaping. The critical differences relate to the following matters that were examined in more detail: Height, bulk, setbacks and design Visual impact on the foreshore from the waterway and opposite foreshore Excavation Car parking and access Amenity of neighbours Building height and bulk 29 The satisfaction of the building form objectives is dependent on a number of complementary controls. Figure 4 in the MRDCP provides that the maximum wall height (MWH) for dwellings in sub-zone 7 is 8m. This is derived as a function of gradient or slope. The maximum slope on the graph is 1:4. It is noted that the slope of the site exceeds this maximum. 30 Both experts agree that the wall height is exceeded in part and reference to the western elevation indicates an exceedence of the MWH by approximately 3.5 to 4.4m between levels 3 and 4. 31 Mr Layman contends that the wall height of level 3 on the eastern elevation exceeds the control by 1.3m to the top of wall and 2.3m to top of balustrade and level 4 exceeds the control by 3.9m to the lower roof and by 4.4m to the upper roof. He also calculates that on the western elevation the exceedences are an additional 100mm for all points, except level 4, to the upper roof is 4.35m. 32 However, the MRDCP allows additional height of up to 3m for the roof structure, according to cl 3.5.5. Also, there is an allowance for parapets over and above the wall height control. But Mr Layman considers the exceedence to be excessive for level 3 and, in particular, level 4 and its associated clerestory roof element. His opinion is that the height and non-compliant setbacks make the proposal appear excessively bulky. 33 Whilst he acknowledges the existing dwelling is non-compliant with respect to wall height, Mr Layman considers this has little relevance, as the proposal is a new development and subject to the current controls. 34 In this regard, the Court has considered Ms Schofield's submissions referring to the matter of Fodor Investments Pty Limited v Hornsby Shire Council [2006] NSWLEC 8, where at para 17 findings were made regarding existing use right benefits. However the Court is satisfied in the current matter that the merits of the application be determined on the basis of the current controls. 35 Mr Harding argues that the clerestory element is a 'roof' and therefore reduces the extent of non-compliance. He also states that the non-compliance with the proposed wall height is the same as the existing dwelling, that is, a maximum exceedence of 3.5m and therefore the existing visual amenity will be substantially maintained. In any case, he says that the majority of the western elevation complies with the wall control height. 36 Mr Harding says that the non-compliant wall height and setback of the clerestory, cause little impact on visual amenity when viewed from Seaforth Crescent and other public areas. Mr Harding contends that the setbacks are compliant with the MRDCP. Mr Harding also stated that the clerestory is necessary to provide additional solar access as the building is on the southern side of the slope. 37 Another point of difference between the planners relates to the height and bulk of the building concerning the interpretation of clause 5.5.4 of the MRDCP that relates to the number of storeys permitted. It states: Other than within density sub-zones 1 and 2, and not withstanding the provisions of specific numerical height controls, buildings shall not exceed two storeys unless specific physical site constraints warrant voiding this requirement. 38 Mr Layman does not consider the proposal satisfies this control because it reads as a 'two storey single level" in the vicinity of the 3 / 4 level interface. Consequently, he says greater compliance would be achieved by stepping the building down the slope, deleting level 1, removing the clerestory and reducing the height of level 4. 39 Mr Harding considers that the specific physical constraints of the site dictate the proposed design and that to increase stepping the building down the slope would have a greater actual and visual impact on the site.

40 When the building height controls are considered alone, the Court is inclined to accept Mr Layman's opinion that the level 3/4 interface appears excessively bulky and not demonstrating reasonable compliance with the development controls.

Setbacks 41 There was a disagreement between the planners with respect to the compliance, or otherwise, of the side setbacks with the controls in the MDCP. Clause 3.6.4 (a) states that: In all residential sub-zones, the setback between any part of the building and the side boundary must not be less that 1/3 the height of the adjacent external wall of the proposed building. 42 A section plan produced by the applicant shows the calculated side setback line. Insofar as Mr Layman was initially concerned about the accuracy of the calculations, this was resolved. The only areas of non-compliance are the western end of the level 4 roof and parapet and the external staircase at the eastern end of level 5. 43 Neither of these elements sufficiently contravenes the objectives of the setbacks listed in clause 3.6.1 of the MDCP to warrant refusal of the application, in the Court's assessment.

44 With respect to the front setback, clause 3.6.2 of the MDCP states that; Front setbacks shall relate to the front setbacks of neighbouring properties and the prevailing setbacks in the immediate vicinity. If there is not a consistent or established setback, a 6.0m setback applies.

45 Again there was a difference of opinion between the 2 planners on the application of this clause. Mr Harding said that by reference to the neighbouring developments at 51 and 53 Seaforth Crescent, the setback could be interpreted as zero. He also stated that as the majority of the proposed development is below street level, there will be no adverse impact on the streetscape, thereby satisfying the intent cl 3.6.2. He considers the proposal to be consistent with neighbouring properties. 46 Mr Layman stated that the properties to the immediate east and west of the site have extensive setbacks and, as there is no consistent setback in the immediate area, then the 6m setback prevails. He contends that as the manoeuvring area outside the garage is to be enclosed, it will read as a structure and therefore contravenes the setback provisions. 47 Also, Mr Layman is dissatisfied with the cumulative impact of the hardstand, dual crossings, angled driveway and turntable and the 2 - car garage on the streetscape. He says that the majority of these structures are within the 6m set back from the northern boundary and, as such, he considers this to be non-compliant with clause 3.6.2 of the DCP. 48 Another associated element of the development concerns the proposed retention of the existing hard - stand parking area at street level, which has zero setback. But cll 2.4.23/25 now restrict such hard stand areas and additional driveway cross overs. In this regard, the Court has considered the impacts of the retention of this hard stand, together with the proposed garaging on- site. 49 Consequently, the Court notes the location of the existing driveway, the topography of the site and the 6m setback of the majority of the garage. Hardstand aside, the Court is satisfied that the structures within the 6m setback will not have an adverse impact on the streetscape because of the level below the street. Consideration has also been given to the slope constraint of the site that makes it impractical to locate these elements in any other way. Excavation and earthworks 50 This concern arises mainly due to the excavation required for the lift shaft (approximately 9.2m). Whilst some other areas of excavation are required due to the steeply sloping topography of the site, nevertheless most is within the footprint/building envelope of the existing dwelling that is to be removed. Relevantly Control 2.5.2 (a) of the MRDCP states that: Excavation shall be generally limited to 1000mm below natural ground level…

51 Mr Layman's opinion is that the extent of excavation is unreasonable, resulting in the media room on level 1 being almost entirely below natural ground level. He also considers that other building elements require an unacceptable level of excavation including the lift well and the pool. In his opinion, level 1 should be deleted and the pool orientated in an east west direction to limit the extent of cut and fill and the use of bulky and visually intrusive retaining walls. 52 He says that the proposed cut and fill does not meet the objectives or controls in clauses 2.5.1 and 2.5.2 of the MRDCP. In this regard, Mr Layman reiterated his opinion that excavation could be minimised by stepping the development down the slope and interspersing the levels with landscaping to reduce the visual impact. 53 In response, Mr Harding produced marked up plans showing the likely extent of excavation at each level. He stated that, absent a detailed analysis of the existing extent of cut and fill with respect to the existing dwelling and pool, the exact extent could not be given. The majority of the excavation is on level 1, the lowest level on the northern side. This includes the lift well, media room and bathroom associated with the studio. Some excavation is required for the studio. The maximum depth of excavation appears to be 7.4m. The limit of the excavation is level 3 on the north-eastern end. 54 Mr Harding says that this excavation is predominantly behind the building and there will be no visual impact or significant impact on the topography, the drainage or natural environment. He says that as the slope of the site is close to 1:1, then some excavation is reasonable. Mr Harding considers that the pool design provides better amenity for neighbours and enables the horizontal stepping that the DCP seeks. 55 Based on the steepness of the site and the location of the excavation, the Court notes that whilst the proposed excavation exceeds the general limit of 1000mm specified in MRDCP at clause 2.5.2 (a), that clause does not preclude excavation to greater depths. In the circumstances of the site, the Court considers that the objectives of the MRDCP in clause 2.5.1 are not offended and that the extent of excavation proposed does not provide any reasonable basis for the refusal or modification of the application. Design considerations 56 The contentions addressed by the experts in this context are that the proposal, due to its height, bulk and design will have a detrimental impact on the visual and aesthetic amenity of the Foreshore Scenic Protection Area and does not compliment the site characteristics or integrate with the topography. 57 The experts agree that the site does not contain significant cliff lines or rock outcrops in the vicinity of the development and therefore does not offend the relevant objectives of the MLEP, MRDCP and SHFWADCP. The main difference of opinion is that already outlined in that Mr Layman considers the proposal is too bulky and visually intrusive in its current form and would be better stepped down the site. Whereas, Mr Harding contends that the setting back of the dwelling and its more upright form provides better outcomes for the foreshore area and results in more landscaping. 58 The Court is satisfied that the setback from the harbour foreshore complies with the relevant clauses in the MLEP and the SREP-SHC. To step the development further down the slope will unnecessarily extend the impact on the land closer to the foreshore. However, the Court considers that some design modification is required to reduce the visual impact of the proposed level 4 presentation, as viewed from the harbour and opposite foreshore. 59 In considering the building design issues, the Court has also taken into account Ms Schofield's submissions regarding the planning principle in Pafburn v North Sydney Council [2005] NSWLEC 444, which identifies for the assessment of impacts on neighbouring properties. In particular reference was made to the second theme whereby; "one should balance the magnitude of the impact with necessity and reasonableness of the proposal that creates it." 60 Accordingly, the Court is not satisfied with a number of the building elements and requires the amendment of these (including the reduction in the level 3 /4 elevation and integration of landscaping), as detailed elsewhere. Inclinator 61 This application includes the construction of an inclinator adjacent to the western boundary. Concerns were expressed on behalf of council that insufficient details had been presented for assessment. However during the appeal, further details of the proposed inclinator were submitted. This indicates that the carriage will be of an enclosed type, partially situated on elevated piers. 62 Insofar as the planners provided limited expert assessment, the Court notes that the proposal is adjacent to another inclinator on the adjoining property - No 49. Under these circumstances, it would seem that the inclusion of the inclinator would generally result in neutral amenity impacts, so as to allow its conditional approval. However, the Court does consider that some further investigation of its proposed alignment is required to ensure adjacent landscaping is protected and supplementary landscaping introduced to limit visibility of the structure.

Landscaping 63 The application includes landscaping, which augments that existing on the lower, foreshore part of the site. It includes the retention of the bamboo strip that provides effective screening for parts of the building. 64 However the landscaping plans included with the development application indicated that the planting area between the 2 retaining walls on the southern edge of the pool were 600mm and 800mm at their narrowest width. The adequacy of this width was considered in terms of the following cl 3.7.2 (h) of the DCP controls: Soft open space is to be capable of supporting new endemic tree species that are typically expected to reach a mature height of 10m, with minimum tree numbers in accordance with Table 6. (for this site = 4). 65 Modified landscape plans (dated 24th February 2010) were produced that increase the width of the planting areas to the south of the pool to 1200mm and amend the choice of species to plants capable of reaching 3m in height, therefore providing satisfactory screening of the retaining walls. The modified plans also delete a proposed extension of a retaining wall to the south and west of the grassed area. 66 In most respects, the concept landscaping plans now show reasonable compliance with the controls in the MRDCP to enable conditional consent in respect of this issue. Although the location of the 4 large trees that are required to provide some screening of the building requires careful finalisation.

Objections 67 An objection was received from the adjoining owner (No 49) to the west and concerns: The accuracy of the calculations of the site area; Overlooking from windows on the western side and no detail of the nature of the glass to be used in those windows; Impacts of mechanical noise from pumps and filters; Views into his property from the proposed inclinator; and The visual bulk of the proposal on the entry to his property. 68 For the consideration of this objection the Court was informed that a development application had also been lodged for a substantial residential infill at No 49. Whilst this was not approved, it is apparent that there is an expectation of increased building bulk on the upper sections of these lots, similar to the subject application. Subject to appropriate revisions to reduce the height of the 3 /4 levels to achieve greater compliance with the BHP, the Court considers the adjoining building relationship generally satisfactory. 69 Insofar as a significant part of the eastern side of No 49 overlooks the balcony, pool and deck on the south-western side of the existing dwelling on 47 Seaforth Crescent, any privacy disamenity is reduced by the garden bed between the two properties containing a range of trees, shrubs and tree ferns. Notwithstanding this, the majority of the views should remain uninterrupted by any structure on no.47.

Findings 70 Having considered the evidence, the submissions and undertaken a view, the Court considers that whilst the application demonstrates substantive compliance with the controls, it is nevertheless appropriate to present findings prior to the grant of any consent. 71 It is apparent that the controls recognise the steeply sloping topography of land in this area and provide detailed criteria that allows appropriate, multi-level, new dwellings. However the controls fundamentally require the protection and enhancement of native vegetation in this FSPA. It is apparent that there is an over-riding theme that new developments should not dominate the site at the expense of the vegetation. 72 Accordingly, the Court is satisfied that the general form of this multi - level dwelling is consistent with the controls and compatible with this neighbourhood. Furthermore that some excavation is reasonable to enable appropriate accommodation on the site. In this case the excavation is predominantly contained within the existing building envelope and limited to the internal lift shaft. As it will be screened by the new building, the Court does not consider it will adversely impact on the scenic qualities or the existing landscape character of the area, the site drainage or that it offends the objectives and therefore it is appropriate to exercise the discretion available in the DCP. 73 Insofar as Mr Layman took issue with the proposed setbacks, reference to the sections in Drawing No: DA/07 issue B dated 21.07.2009, indicates that the proposed building envelope does incorporate increased setbacks for the upper levels of the building. As such, the Court considers that the intent of the side boundary controls is reasonably satisfied, as stated by Mr Harding. 74 The outstanding issues for the Court concerns the overall height of the dwelling and the retention of the existing front, hard stand area. As previously stated, the proposed level 3/4 and clerestory 'roof' present a significant exceedence of the BHP controls. The resultant level 4 does not maintain the height consistency of the other levels on the southern elevation, resulting in an excessively bulky presentation, in the Court's assessment. 75 This bulk would have some impact on the neighbouring properties but importantly would appear visually dominant from the waterway and viewing areas across Middle Harbour in the Court's assessment. Consequently, the Court does not consider this part of the dwelling adequately achieves the desired visual and aesthetic outcomes identified in the LEP and DCP. 76 In this regard, the Court has considered the guidelines for integrated landscaping but recognises the topographic site limitations. Nevertheless, consideration of the evidence indicates that some revisions of these building elements, together with integrated landscaping, particularly the location of the 4 large trees could achieve a satisfactory outcome. 77 An associated concern with the overall height and visual impact concerns the retention of the on - street hard stand area. Notwithstanding the existing hardstand, it is apparent that its retention, particularly when in use, will contribute to the overall visual bulk of the development. Its retention also limits on -street parking spaces in an area where competition for parking is high. The removal of the hard stand also results in the opening up harbour views for the general public. 78 These impacts have been considered relative to the provisions of the DCP, wherein cll 2.4.23/25 require the minimisation of driveway cross-overs and garages/structures adjacent to the front boundary. Considering the competing private and public interests, the Court considers a reasonable balance would be achieved by the deletion of the hard stand area, the reinstatement of the footpath area and curb and reliance only on a carefully screened double garage within the front set back of the site. 79 As the details regarding the inclinator were presented late in the proceedings, the applicant is afforded an opportunity to finalise the design details, so that the Court can consider the imposition of any appropriate conditions of consent, rather than delete the inclinator element of the proposal, as shown in the draft conditions. 80 In summary then, the Court considers it is appropriate to grant conditional consent to this development application subject to the prior satisfactory amendment of the following elements: i. Reduce the height of the Level 3/4 and associated roof structure on the southern elevation so as to achieve a satisfactory visual outcome when viewed from the harbour and opposite shoreline. ii. Remove the existing hard stand area and re-instate the existing footpath area. iii. Specify the location and species of the 4 larger trees that are to be utilised to partially screen the building, in accordance with cl 3.7.2 of the DCP. iv. Specify the various colour scheme elements for the building. Directions 1 The applicant is to file and serve settled plans in response to the findings by 9 April 2010. 2 The respondent is to file revised settled conditions of consent by 16 April 2010. 3 Following compliance with Directions 1 and 2 Orders will be made granting conditional consent. 4 The matter is set down for a mention on 23 April 2010 (STL) which will be vacated if the Orders are made. 5 The parties have liberty to re-list before the Court at 2 days notice.

      R Hussey J Fakes
      Commissioner of the Court Commissioner of the Court
      ljr

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