McKees Project Management Pty Ltd v Manly Council [2012] NSWLEC 1126 | Case summary

The character test - is the proposal compatible with the character of the local area? 20There was general agreement that the character test requires consideration of the following matters:

what is the "local area"?
what is the character of the "local area"?
is the design of the proposed development compatible with the character of the "local area"? What is the "local area"? 21The experts accept the approach in Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 where" local area" is described as: ....principally the visual catchment in which the development will be viewed.... The wider catchment is also relevant.... What is the character of the "local area"? 22The experts agree that the established built form within the immediate vicinity of the site is large detached dwellings on single allotments. There is also agreement that there were no residential flat buildings located within the vicinity of the site or within the wider Clontarf headland notwithstanding that this form of development is permissible, with consent, within the 2 Residential zone. 23There was some disagreement by the experts on the extent of the local area when viewed from Middle Harbour, The Spit and Parriwi Head. As I understood the evidence, the experts focused on the area of the headland east of The Spit Bridge although Ms Morrish maintained that the area of Clontarf west of The Spit Bridge should also be considered as this area has the same zoning as the site and the surrounding area. 24As the identification of the "local area" has some bearing on the ultimate question to be answered; it is necessary to determine whether the area of Clontarf west of The Spit Bridge should also be included in any assessment. With the benefit of the site inspection, I am satisfied that the area of Clontarf east of The Spit Bridge forms the appropriate local area to assess character. Manly Road and The Spit Bridge form a barrier between the two areas and this by itself may not necessarily be a sufficient reason to consider the area separately however it was clear from the site inspection that the steeper topography to the west of The Spit Bridge creates a character where building form is more dominant over the existing landscaping than the character to the east where landscaping is more prevalent and has a considerably more dominant influence on the character. I have little trouble in concluding that any assessment of the proposed development on the character of a local area should be limited to the area east of The Spit Bridge. Is the design of the proposed development compatible with the character of the "local area"? 25The experts differed on the answer to this question although they agreed that the word "compatible" had the meaning attributed to it within Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 where it states: Planning principle: compatibility in the urban environment 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees. 26The applicant's experts agree that the proposed development is compatible with the character of the "local area". Ms Morrish states that the proposed development is in harmony with the local area and does not create unacceptable impacts because of:
the large-scale and overall massing of existing houses in the area and on the escarpment,
the proximity of the existing houses to each other creates stepped and horizontal bands of development interspersed with bands and pockets of landscaping,
the length of the existing dwelling on the three lots is similar to the western building of the proposed development, particularly considering the proposed height is less than the existing house,
the visual impact on distant views is of a new development that is similar and lower than the existing dwelling house and certainly less in its perceived height and bulk than the three houses downhill from the site to the west,
when viewed from Holmes Avenue, the development is reasonably consistent with the existing development in massing and scale and in some ways is less. In the distant views across the escarpment, both buildings are seen reasonably discreetly due to the existing vegetation and different positions, as well as blending in as part of a staggered patchwork the massing and built form across the escarpment,
the form of the proposed development distributes the floor space, allowed by SEPP ARH, into two building forms and these forms are carefully located to relate as closely as possible to the adjoining dwellings while retaining the significant landscape on the site,
the depth of the two building form responds to the existing house depths at each boundary,
the generous separation between the two buildings complies with the RFDC,
the proposed side setbacks exceed the setbacks of adjoining dwelling houses and the DCP requirements,
the proposed height at the side boundary is reasonably similar or less than the adjoining dwelling houses and does not breach the 8 m wall height control in the DCP,
the rear setback generally complies with the 8 m requirement in the DCP,
the existing driveway point is retained thereby allowing the existing vegetation to remain,
the street setback and minimal form presented to Beatrice Street is compatible to the view of other houses in the street and retains water views, and
the design breaks up the length of the western building into vertical bays which have similar proportions to the houses and respond to the lot pattern. 27In response to the hypothetical plan that identifies building envelopes that provide a high degree of compliance with the council DCP requirements on each of the existing three lots, Ms Morrish states that the building envelopes demonstrate that the proposed development, in comparison, is neither unreasonable or inappropriate in terms of design, appearance and impacts. 28Mr Chambers agrees with the comments of Ms Morrish. He notes that the proposed development is compatible with the character of the local area as it is predominantly below the level of Beatrice Street, ensuring that pedestrians using Beatrice Street will continue to look through the street frontage vegetation and tree canopy to enjoy distant views. Very little of the proposed development will be seen from Beatrice Street and surrounding streets. In relation to more distant views, the proposed development will sit below the ridgeline and the major tree canopy formed by the retained stand of Angophoras and in the context of large, multi-level dwellings cascading down the slope, so that one dwelling appears to sit immediately below/above another, be partially obscured in views from lower locations by canopies of down slope vegetation, and be finished in muted tones. 29Mr McDonald states that the assessment required is more than a simple comparison with numerical planning controls but involves the location of the proposed development and how it will look. The "character test" in SEPP ARH necessarily involves a reference to councils planning controls. 30Mr McDonald notes that the Manly local government area has only one residential zone and appropriate development relies on the different density and height sub- zones in the DCP to respond to topographic, locational, environmental and scenic factors. While residential flat buildings are a permissible on the site, the Sub zone 7 requirements indicates that residential flat buildings are not realistically envisaged by the council as a development outcome, although a 2 unit residential flat building (or 3 unit residential flat building with a variation) could be provided but at an FSR of 0.4: 1. The controls applying to density for Sub zone 7 contemplate a low density character for the visually prominent areas where Sub zone 7 applies. A reference by the applicants experts to other development on the Middle Harbour slopes that have produced built forms that compete with or displace the tree canopy promote poor development and should not be followed. 31While accepting that SEPP ARH allows for a greater FSR of 0.7:1, the additional floor space comes about by the provision of additional residential accommodation and the uncharacteristic distribution of floor area on the site, the height and width of the proposed buildings and their overlapping relationship on the sloping site. Mr McDonald notes that as the outdoor spaces of the western building are dug into the site, the grass slope would no longer be seen and there is limited scope for planting that could screen the bottom level of this building. 32Mr McDonald also rejects the evidence of the applicant's experts where it makes reference to an overall height control of 11 m. The height control provides for a wall height of 8 m and a roof zone of 3 m. The roof zone applies to roofs of a maximum picture 35° which have a different appearance land vertical surfaces. 33In response to the hypothetical plan that identifies building envelopes Mr McDonald states that little can be drawn from these plans plan because they represent only one of an infinite number of possibilities. It would require a proper development assessment to address, in any meaningful way, the benefits or disbenefits of this plan as the hypothetical plans contain no floor plans to show layouts, windows, dimensions or floor levels related to site levels. Mr McDonald notes a number of irregularities on the hypothetical plans, such as the height of walls that are in breach cl 3.6.4 of the DCP and the erection of car ports, around street level, and within the front setback to Beatrice Street that are in breach cl 4.3.3 of the DCP. 34Ms Jones agrees with the comments of Mr McDonald. Ms Jones states that determining the development application solely on the basis of the compliance with the FSR requirements in SEPP ARH is inconsistent with s 79C of the Environmental Planning and Assessment Act 1979 as it is necessary to take into consideration all environmental planning instruments, development control plans, any environment impact, site suitability and public interest. An encompassing assessment should also include the simultaneous consideration of all applicable objectives, principles, development standards and control and then an examination of the impacts arising from the development. 35In this context, and in her assessment, Ms Jones states that on the question of compatibility with the character of the local area, the proposed development is clearly is incompatible because it provides a non-compliance with the rear building setback, unacceptable massing, bulk and scale, uncharacteristic distribution of floor space, inadequate separation of buildings, excessive site coverage and the removal of the existing rock outcrops. Findings 36Any assessment of the proposed development against the character of the local area should include an assessment of existing building forms and also the character envisaged by the forms of development contemplated by the Residential zone, i.e., relevantly dwelling houses and multi-dwelling housing. While the applicant's experts acknowledged that multi dwelling housing was a permissible use within the zone, the absence of such development in the area was seen as being a direct result of the restrictive controls within cl 3.2.2 of the DCP. Mr Chambers describes the DCP requirements as effectively prohibiting residential flat buildings by requiring the same amount of site area for a unit in a residential flat building as for a detached single dwelling, irrespective of the unit size. 37Clearly, development under the ARH Policy should not slavishly follow the form of development anticipated by the DCP for multi dwelling developments. The test in cl 16A is compatibility and not replication. The ARH Policy is a State wide planning policy and clearly allows for a form of development that may not necessarily reflect the exact form anticipated by a local government authority. This is highlighted by cl 8 that gives primacy to the ARH Policy over any other environmental planning instrument but only so far as any development is compatible with the character of local area. The words in Project Venture about compatible developments being "capable of existing together in harmony" and "generally accepted that buildings can exist together in harmony without having the same density, scale or appearance" are importance considerations in assessing the character of the local area. Relevantly, cl 9 of SEPP 65 in relation to Principle 1: Context, states: Good design respondents and its context. Context can be defined as the natural and built features of an area. Responding to context involves identifying the desirable elements of a locations character..... New buildings will thereby contribute to the quality and identity of the area. 38In this case, and contrary to the evidence of the applicants experts, an assessment of existing building forms and also the character envisaged by the forms of development contemplated by the Residential zone must take into account the requirements of the DCP, i.e. the applicable density for Sub zone 7. Given that the Manly local government area provides for only one residential zone, the requirements of the DCP that identify different densities for different areas has added importance. In any event, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan and a provision of the DCP directly pertinent to the application is entitled to significant weight in the decisionmaking process although it is not in itself determinative. (Zhang v Canterbury City Council (2001) 115 LGERA 373). 39The site has two major visual catchment areas, firstly, from Beatrice Street and surrounding streets and secondly, from Middle Harbour, The Spit and Parriwi Head. Each area was visited on the site inspection. There was agreement that the Beatrice Street area is best characterised as exclusively residential with single dwellings on large detached dwellings on single allotments. There are no other forms of higher density residential development in the area. The topography of the area provides for a different streetscape on either side of the streets with dwellings perched above the street with garages at or above street level on the high side of the street and dwellings located below street level on the opposite side with more prominent fencing. Some dwellings on this side of the street are not visible from the street. 40The view from the west to the site is from Middle Harbour, The Spit and Parriwi Head. From this location the site and surrounding area shows a residential character where dwellings have been designed to take advantage of the views towards Middle Harbour and beyond. Due to the topography of the Clontarf headland, most dwellings have a 2, 3 or 4 level appearance. A band of mature vegetation is located along the foreshore as well as other significant clumping and banding of vegetation amongst the dwelling houses to the ridgeline of the headland. Some natural features, such as rock outcrops are visible but generally only closer to the foreshore. 41If the proposed development is considered against the matters set out in Project Venture and in the context of the character of the local area, then I accept the conclusions of Mr McDonald and Ms Jones. I am satisfied that the proposed development will not be in harmony with the character of the local area for a number of reasons. 42First, from the Beatrice Street and surrounding streets visual catchment area, the proposed development is largely located below street level with the exception of affordable unit 9. The roof of this unit is a height of RL58.00 AHD which is some 2 m above the level of the adjacent crown of the road. The width of unit 9 is some 5.6 m and its length is some 13 m. This part of the proposed development is in conflict with cl 4.3.3 of the DCP where it requires that a building (including the roof structure) shall not exceed the level of the crown of the adjacent road pavement. The objective of this requirement is to provide west of the views towards The Spit from Beatrice Street. While Mr Chambers may be correct in stating that views will still be available around unit 9 towards The Spit and that views may even be improved through the removal of some unsympathetic vegetation in the setback area, I am not satisfied that the proposed development properly addresses cl 4.3.3. I note that the existing dwelling satisfies the requirement in cl 4.3.3. In my view, compliance with the requirements in cl 4.3.3 has added importance because of the selective nature of the clause as it applies only to three specific locations identified in Figures 15 and 16. In Beatrice Street (one of the identified specific locations), the clause applies to 11 lots, including the three lots that make up the site. 43I am satisfied that the proposed development will not be in harmony with the character of the local area as it relates to the Beatrice Street and surrounding streets visual catchment area, as envisaged by the DCP, given the complete redevelopment of the site and the breach of cl 4.3.3. While the Court was taken to the redevelopment of a property to the north of the site, and within the area identified in Figure 15, I understand that this redevelopment consisted of alterations and additions to an existing dwelling and as part of the redevelopment the overall height was reduced, if only to a small extent. I accept that the circumstances in this case are different to those which exist for the proposed development and that it does not support the proposed development or the applicants position that the proposed development will be in harmony with character of the local area from this location. 44Second, and when the character of the local area is considered from Middle Harbour, The Spit and Parriwi Head, I am also satisfied that the proposed development will not be in harmony with the character of the local area for a number of reasons. In coming to this conclusion I have taken into consideration the particular characteristics of the site and the local area and the specific planning controls that relate to the site. It is located within a scenic foreshore protection area under LEP 1996, has the lowest density for residential development through the sub-zones in the DCP and requires a additional consideration in terms of its visual impact through the Foreshore Scenic Protection Area provisions, Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 and Sydney Harbour Harbour and Waterways Area Development Control Plan 2005. 45Project Venture states (at 26) that For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment".... The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 46While Mr Chambers and Ms Morrish placed some reliance on the similar height of the proposed development with adjoining residential property, I am not satisfied that this is necessarily a reasonable comparison, when considering visual impact, even though it may be numerically correct. In this case, a comparison of height with the peak of a pitched roof of the existing dwelling and the parapet of the proposed building ignores the bulk created by the proposed development. Also, a comparison of overall height also ignores the excavation of the proposed development and the consequent additional storey that would be visible from Middle Harbour, The Spit and Parriwi Head. While the number of levels may be replicated elsewhere within the local area, the number of levels when combined with the grouping or massing of the building form creates a form not visible any where else within this part of Clontarf. I note that the proposal also significantly breaches the 1 m cut requirement in cl 2.5.2 of the DCP. 47A further undesirable consequence of the excavation is the removal of existing sandstone outcrops that are visible from Middle harbour and form part of the character of the local area. The prominence of the proposed development is also exacerbated by the inability to provide landscaping to screen the proposed development. While landscaping is proposed, I agree with the evidence of Ms Morrish who honestly conceded that any landscaping proposed is unlikely to be successful if it is located within an area where views to the east impeded. This has the effect of providing no effective screening to the proposed development from Middle harbour and The Spit. 48Mr Chambers and Ms Morrish also argued that the side setbacks are consistent with the DCP. Again, this may be numerically correct however any perception that the proposed development replicates the patchwork form of single dwelling residential development in the local area is significantly diminished by the massing of the proposed development, consistent architectural style and use of materials for the proposed development. The westerly building has a width of around 30 m and is 4 storeys in height. No other building in the local area has such a large form when viewed from Middle Harbour and The Spit. While the upper level is set back, any relief in terms of bulk increasingly lost with greater distance from the site. The patchwork form of residential development that typifies the local area largely gains its individuality from different building material, designs and building form and not necessarily consistent side setbacks. The proposed development, with its consistent design and materials, is clearly perceived as a single development of portions considerably larger than any other form of development and visual catchment notwithstanding it consisting of two separate building at different levels on the site. 49Pursuant to cl 54A(3), I find that the design of the proposed development is not compatible with the character of the "local area" and the degree of incompatibility is such that the development application should be refused for this reason alone. 50For completeness I will briefly deal with the other issues in dispute.

McKees Project Management Pty Ltd v Manly Council

At a glance

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Decision date

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Judgment (12 paragraphs)

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Cases Cited (3)