Panarea Investments Pty Ltd v Manly Council

Relevant planning controls

1. The site is within Zone B2 - Local Centre under Manly Local Environmental Plan 2013 (LEP 2013). The proposed development is permissible with consent in this zone.
2. Clause 2.3(2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone
3. The zone objectives are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.
• To encourage employment opportunities in accessible locations.
• To maximise public transport patronage and encourage walking and cycling.
• To minimise conflict between land uses in the zone and adjoining zones and ensure amenity for the people who live in the local centre in relation to noise, odour, delivery of materials and use of machinery.

1. The council raised no issue over any conflict with the zone objectives.
2. Clause 4.3(2) 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 identifies a height of 12 m and the proposed development provides for a maximum height of 22.5 m to the lift overrun. A written request was provided that seeks to support the variation of the development standard in accordance with cl 4.6(3). The issue of height was also subject to other considerations (see par 45)
3. Clause 4.4(2) provides that "the maximum FSR for a building on any land is not to exceed the FSR shown for the land on the Floor Space Ratio Map". The Floor Space Ratio Map identifies an FSR of 3:1 and the proposed development satisfies this requirement with an FSR of 2.99:1.
4. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP Affordable Housing) applies. Clause 8 states: 8 Relationship with other environmental planning instruments If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
5. Division 3 addresses boarding houses. Clause 29 relevantly states: 29 Standards that cannot be used to refuse consent (1) (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).
6. Clause 30A states: 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
7. Manly Development Control Plan 2013 - Amendment 4 (the DCP) applies. Clause 4.2 addresses Development in Business Centres (LEP Zones B1-Neighbourhood Centres and B2-Local Centres) and cl 4.2.3 addresses setback controls, cl 4.2.5 addresses Manly Town Centre and Surrounds. Map 2A in Sch 2 identifies the Sydney Road, Short Street and Central Avenue frontages as "Important corner".
8. Manly Urban Design Guidelines 2002 (the Design Guidelines) apply. Clause 1.2.3 addresses Views from the water and land, cl 2.1.9 addresses Building expression, cl 3.2.1 addresses Sydney Road area, cl 3.2.1 addresses Short Street area and cl 3.2.5 address Central Avenue area.

The evidence

1. Mr Scott Barwick, the applicant's town planner states that the northern side of Sydney Road has a much greater diversity of building heights and forms than the southern side of Sydney Road. Existing development to the north of Sydney Road includes significant variety in building heights and includes numerous examples of a strong street wall presentation with recessed taller elements above. The site should appropriately respond to the character of development north of Sydney Road and not to the south of Sydney Road.
2. In his opinion, the proposed development is consistent with the character of Sydney Road through the incorporation of a strong street wall presentation to Sydney Road as well as Central Avenue to the east and Short Street to the west. The proposed levels 4 and 5 are setback by 6.4m from Sydney Road, 6.2m from Central Avenue and 6.2m from Short Street. These setbacks of the upper level ensure that the upper levels are visually recessive when viewed from Sydney Road adjacent to the site as well as from Central Avenue and Short Street. The street wall height presented to all three street frontages is very distinctly a three storey form.
3. The proposed development is consistent with cl 3.1.3.1 (c), particularly (ii) and (iii) of the DCP in that the proposed visible facade will be appreciated in the immediate public domain as a three storey element that is consistent with the desired character and complementary to the locality and the nature of existing development on the northern side of Sydney Road. The deeply recessed upper levels are not out of character with development to the north of Sydney Road and in fact, act as a transition element to the taller built forms that immediately adjoin the site.
4. Mr Barwick states that cl 4.2.5.2 of the DCP sets out the considerations for exceptions to the numerical height controls contained in LEP 2013. In his opinion, the proposed development satisfactorily addresses these considerations for a variation to the height as:

• the building does not dominate the end (corner buildings in the street block) as the development occupies the full frontage between Short Street and Central Avenue
• the proposed building does not dominate development on the northern side of Sydney Road but rather acts as a transition to the substantially higher buildings in the vicinity,
• the proposal has demonstrated an appropriate relationship with development to the south through the presentation of a strong 3 storey street wall and deeply recessed upper levels which will facilitate views over the recessed elements of the building,
• there would be no planning benefit achieved to construct the new building within the existing envelope as the proposed FSR complies with the numerical development standard contained within LEP 2013, and
• the building occupying the entire block frontage is not required to match levels of adjoining buildings. Despite this, the 3 storey street wall height is consistent with the predominant street wall presentation in the locality, particularly to the northern side of Sydney Road.

1. In addition to these considerations, the recessed upper levels relate to the recessed presentation to Central Avenue of the adjoining residential building above the public car park and will reduce the visual prominence of the car park entry structure in Central Avenue.
2. Dr Ritu Shankar, the council's town planner states that the appearance of the proposed development fails to provide harmony with the buildings in vicinity. The scale and bulk for the proposed development would not be compatible with the character of the street and will provide a development which is inconsistent with other shop top housing and residential flat buildings in vicinity. It is noted that the proposed Clock tower and other residential flat buildings in close vicinity remain no more than 4 storeys.
3. The proposed development seeks to align itself with the multi-level car park along with the multi-storey residential flat building on Central Avenue. This building provides an aberration to the predominant character to the area and the proposed development will fail to provide a transition with developments between the northern to the southern side of Sydney Road. The 5 th storey element will be visible from Sydney Road both to the east and the west and will also be clearly visible from Short Street and Central Avenue.
4. The site forms an important corner in the Manly Town Centre and the proposed 5 th storey element fails to meet Objectives 5 and 7 of the Townscape requirements In cl 3.1 of the DCP, as the proposed development fails to maintain the predominant two storey development along the southern side of Sydney Road, to 3 to 4 storey development along the northern side along Central Avenue and facing Short Street. The proposed 5th storey addition further fails to provide massing and articulation to the setting within the neighbouring sites and fails to meet cll a(i)(iv) and (vi) of the Design of Townscape requirements of cl 4.2.5 - Design of Townscape of DCP 2013.
5. The proposal development also forms an unfortunate relationship with building within Short Street and Central Avenue (as referred to in Figure 5 in the DCP), where the 5 th level will result in unattractive pattern in development of infill elements. The building will continue to dominate the end corner block from all three street corners, especially from Short Street and Central Avenue frontages and will fail to respond to the desirable elements of the streetscape and desired future streetscape character.

The height requirements

1. Clause 4.3(1) of LEP 2013 provides objectives for the height development standard. The objectives are: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to provide for building heights and roof forms that are consistent with the topographic landscape, prevailing building height and desired future streetscape character in the locality, (b) to control the bulk and scale of buildings, (c) to minimise disruption to the following: (i) views to nearby residential development from public spaces (including the harbour and foreshores), (ii) views from nearby residential development to public spaces (including the harbour and foreshores), (iii) views between public spaces (including the harbour and foreshores), (d) to provide solar access to public and private open spaces and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings, (e) to ensure the height and bulk of any proposed building or structure in a recreation or environmental protection zone has regard to existing vegetation and topography and any other aspect that might conflict with bushland and surrounding land uses.
2. Clause 4.2.5.2 of the DCP, for the Manly Town Centre and Surrounds provides considerations when seeking exemptions to the height standard in LEP 2013. These are: Consideration of the appropriate heights within the maximum Building Height development standard and exceptions to the standard in the LEP includes the following: a) Whether the final building height including any architectural embellishments adversely dominate the heights of end (corner) buildings in the same street block or that of adjoining buildings. b) Whether the proposed development successfully demonstrates the most appropriate relationship to adjoining development in terms of fulfilling the Council's townscape objectives. New development provides opportunities to achieve the maximum height of building in the centre of the street blocks to obtain views and outlook over buildings on the block edge at a lower height. c) Whether new development should be constructed to the same building envelope as existing buildings on a site in order to maintain interest and variety, provided the other objectives and requirements (including FSR) of this plan are achieved. d) Whether new buildings equate with both the overall height as well as the level of each floor of adjoining buildings and in relation to particular architectural details like parapet details and with particular regard to important end-buildings in the particular street block. Note: The height relationship of particular architectural details with adjoining buildings may often require particular consideration of floor to ceiling heights. The creation of an additional storey by reducing the typical floor to ceiling height in a manner inconsistent with adjoining buildings will not be permitted. The use of internal mezzanine levels may be considered in order to achieve the desired height levels, where necessary, within the total height of the building.

What is the streetscape character in the locality?

1. Objective (a) in cl 4.3(1) speaks about both the "prevailing building height" and also "the desired future streetscape character in the locality". This must be a reference to the existing building form and also the building form anticipated by LEP 2013 and the DCP in the locality. I have taken the "locality" to be that part of the Manly Town Centre near the site, including both sides of Sydney Road, and the areas of Short Street and Central Avenue near the site.
2. Clause 30A of SEPP Affordable Housing provides that consent must not be granted unless the design is "compatible with the character of the local area". I have taken this to be a reference to the existing building form and also the building form anticipated by LEP 2013 and the DCP in the local area which I have accepted is the same as "locality" for the purposes of this assessment.
3. The existing character, while commercial in nature, is varied in its building form along Sydney Road and the areas of Short Street and Central Avenue near the site. The site to the east (9 Central Avenue) comprises a part 3 and 4 storey mixed use development with ground level retail and residential apartments above. The 4 storey element of the building is located on the north-east corner of the Short Street and Sydney Road. A clock tower and ground level awning is provided to emphasize the street corner.
4. To the west of the site is a mixed use development (48-53 Sydney Road). This development is a part 3 and 6 storey development. A 12 storey (around 36 m) mixed use development occupies the adjoining site to the north (22 Central Avenue). The 12 storey high tower includes a 4 storey podium that comprises ground level retail and a 3 storey car park. The entry to the car park is along the southern side of the site from Central Avenue. Development on the southern side of Sydney Road consists of a mix of modified small scale Victorian and Edwardian buildings with generally ground level shop fronts and residential or commercial accommodation at the first level.
5. The desired future streetscape character in the locality is best represented by LEP 2013 and the DCP. The site and surrounding land are within Zone B2 in LEP 2013 however different height and FSR standards apply. Most of the Manly Town Centre has a maximum FSR of 3:1 except for most of The Corso where the FSR is 2.5:1. The height controls are more varied with both sides of Sydney Road having a maximum height of 12 m, a maximum height of 25 m adjoining the site to the north and other sites behind the properties along the northern side of Sydney Road. Further to the west and behind the properties on the south side of Sydney Road, the maximum height is 15 m. Most of the properties along The Corso have a maximum height of 10 m.

Does the proposed development unacceptably impact on the streetscape and locality?

1. Dr Shankar clarified her evidence during cross examination and stated that her concerns only related to the 5 th level of the proposed development. The three levels that are built to the Short Street, Central Avenue and Sydney Road frontages and the recessed 4 th level with building setbacks of 6.2 m to Short Street and Central Place and 6.4 m to Sydney Road were acceptable. What was not acceptable to Dr Shankar was the 5 th level that has similar setbacks to the 4 th level below. The concerns over this level were that it would be visible from certain locations in Short Street, Central Place and Sydney Road and this visibility would unacceptably impact on the streetscape and character of the locality.
2. The objectives of the height standard are an important consideration in determining whether a variation to the height standard should be allowed, particularly in relation to the discretion provided by cl 29(4) of SEPP Affordable Housing. The objectives are not all relevant as objectives (c)(ii) and (iii) address views from different locations, objective (d) relates to solar access to public places and objective (e) relates to a building in a recreation or environmental protection zone. These are areas not identified by the council as being affected by the proposed development.
3. The relevant height objectives are objectives (a), (b) and (c)(iii). These are: (1) The objectives of this clause are as follows: (a) to provide for building heights and roof forms that are consistent with the topographic landscape, prevailing building height and desired future streetscape character in the locality, (b) to control the bulk and scale of buildings, (c) to minimise disruption to the following: (i) ., (ii) . (iii) views between public spaces (including the harbour and foreshores),
4. If considered against the relevant height objectives, I agree with Mr Barwick that the variation to the height requirement is acceptable. In relation to objectives (a) and (b), and as explained to the Court, the proposal essentially seeks to redistribute the allowable floor of the 4 th level over the 4 th and 5 th levels through setbacks to these floors, in preference to a 4 th level that extended to the property boundaries. The effect is to have a largely 3 level elevation to Short Street, Central Place and Sydney Road. While glimpses of the 5 th floor will likely be available from more distant locations in Sydney Road, the area around the site will have a building that better responds to the largely 2 storey Victorian and Edwardian style retail and commercial scale buildings on the opposite side of Sydney Road. Even though the opposite side of Sydney Road has the same height and FSR controls as the site, the retention of the Victorian and Edwardian style buildings are likely because of their location in the Heritage Conservation Area under LEP 2013. I note that cl 2.1.3 of the Design Guidelines provides that "extensions and additions to…buildings in conservation areas must be designed to complement their style, form and proportions, materials and colours and the overall heritage context of their setting" (dot point one). Also, cl 2.8.1.8, states that "heritage shop fronts should be maintained and protected" (dot point one).
5. I also accept that the 3 storey elevation to Sydney Road will also have a scale that more closely reflects its pedestrian character and street frontage activities than a 4 storey elevation. The Design Guidelines acknowledge that this part of Sydney Road as a "major gateway into Manly from Sydney" (cl 3.2.1.1, dot point one), as having a "small scale and varied character of the street edge buildings" (cl 3.2.1.1 a), dot point two), a "very active centre" (cl 3.2.1.2 c)) and "a vibrant day and night life" (cl 3.2.1.2 d)). In my view, the reduced street elevation is more consistent with the existing and anticipated pedestrian character anticipated for this section of Sydney Road.
6. The 5 th level will be visible from parts of Sydney Road, Short Street and Central Place although it must be acknowledged that people using these streets will likely focus will be on the streetscape associated with its pedestrian function. With the benefit of the height poles provided on the site inspection, I do not accept Dr Shankar's conclusion that the 5 th level of the building will dominate the end corner block from all three street corners. This was simply not a conclusion that could be reached based on the height poles.
7. From Central Place, the 5 th level will be visible above the wall adjoining the driveway to the car park however the 5 th storey will be set back around 6 m from Central Place. The area directly adjoining the Central Place street frontage that would normally accommodate the 4 th storey of a complying building will however be vacant. From Short Street, the 5 th storey will rise about one storey above the adjoining car park but also setback around 6 m.
8. Under LEP 2013, the adjoining car park has a maximum height of 25 m, or more than double that of the applicable height standard for the site (notwithstanding the existing building is some 36 m in height). While Dr Shankar raised concern over the northern blank wall of the proposed development when viewed in a southerly direction from Short Street and Central Place, she acknowledged that cl 3.1.3.1 of the DCP addresses exposed end or side walls and requires treatment "in a consistent manner in terms of colour and materials, avoiding unattractive patterns of different structural elements and infill elements". Dr Shankar accepted that the side walls were acceptable in terms of cl 3.1.3.1. .
9. While I do not necessarily rely on the existing substantial tree planting in Sydney Road, the trees provide significant screening of the upper levels of the buildings from parts of Sydney Road near the site and also contribute significantly to the promotion of the area as pedestrian friendly environment.
10. For these reasons, I am satisfied that there is no conflict with objectives (a) and (b) of the height standard.
11. Objective (c) seeks to minimise disruption to views to nearby residential development from public spaces (Objective (c)(i)), views from nearby residential development to public spaces (Objective (c )(ii)) and views between public spaces (Objective (c)(iii)). Objective (d) is to provide solar access to public and private open spaces and Objective (e) seeks to ensure the height and bulk of any proposed building or structure in a recreation or environmental protection zone. It was agreed that the proposed development has no impact on the matters in addressed in the above objectives, with the exception of the objective relating to views between public spaces (Objective (c)(iii)).
12. Dr Shankar maintained that views of the Pacific Ocean when arriving at Manly Town Centre along Sydney Road would be unacceptably impacted on by the proposed 5 th level. The maintenance of view corridors and vistas of the Pacific Ocean is a consistent theme through the DCP and the Design Guidelines although Dr Shankar restricted her concerns to the 5 th floor when viewed from Sydney Road when approaching Manly Town Centre.
13. To understand the concern of Dr Shankar, a view from various locations along Sydney Road was undertaken in the company of the parties and their experts. It was observed that the view of the site was restricted by the existing vegetation near the site in Sydney Road but as the distance from the site along Sydney Road increased, together with increased elevation of Sydney Road, the screening provided by the existing vegetation diminished.
14. From the southern side of Sydney Road, at a distance of some 400 m, the site could be recognised through the identification of existing features such as the 12 storey mixed use building and the clock tower. Even though there was some disagreement between Dr Shankar and Mr Barwick on the effect of the 5 th floor on the views to the Pacific Ocean, I can comfortably conclude that the 5 th floor has no impact on views, largely because the 5 th floor presents a facade of only some 10 m to people travelling down Sydney Road. At a distance of some 400 m, there is no perceivable encroachment into the view of the Pacific Ocean from the southern side of Sydney Road. Views of the Pacific Ocean from the southern side of Sydney Road are restricted to the north however from the northern side of Sydney Road, the view corridor to the Pacific Ocean opens up to provide a more panoramic view. The impact on views of the Pacific Ocean by the 5 th level remains unperceivable from the northern side of Sydney Road.
15. For these reasons, I am satisfied that there is no conflict with objective (c)(iii)) of the height standard. Consequently, I find that the proposed development is consistent with the objectives of the height standard in cl 4.3(1) of LEP 2013,
16. While the objectives for the height standard are important, there are also a large number of other considerations in LEP 2013, the DCP and the Design Guidelines. From the conclusions in the pars 27 to 46, I find that the proposed development:

• is acceptable when considered against the zone objectives, pursuant to cl 2.3(2) of LEP 2013,
• is compatible with the character of the local area, pursuant to cl 30A of SEPP Affordable Housing,
• meets the Streetscapes and Townscapes objectives in cl 3.1 of the DCP, particularly objectives 5 and 7,
• satisfies the Design Principles in cl 3.1.3.1 of the DCP, particularly b), c) and e).
• satisfies the requirement in cl 4.2.3 b) Setback Controls in LEP Zones B1 and B2 of the DCP,
• does not adversely dominate the heights of end (corner) buildings in the same street block or that of adjoining buildings, pursuant to cl 4.2.5.2 a) of the DCP,
• successfully demonstrates the most appropriate relationship to adjoining development in terms of fulfilling the Council's townscape objectives, pursuant to cl 4.2.5.2 b) of the DCP,
• satisfies the objectives of Special Areas and Sites in cl 5 of the DCP, especially objectives 3) and 4),
• satisfies the requirements in cl 1.2.6 Built form, scale and character of the Design Guidelines, particularly dot points 1,2, and 3,
• satisfies the relevant Area guidelines in cl 3.2.1.2 of the Design Guidelines for the Sydney Road area,
• satisfies the relevant Area guidelines in cl 3.2.5.2 of the Design Guidelines for the Short Street area, and
• satisfies the relevant Area guidelines in cl 3.2.6.2 of the Design Guidelines for the Central Avenue area.

What is the appropriate test for the height variation?

1. The appropriate test for the height variation was raised by the parties although the hearing proceeded largely on cl 29(4) of SEPP Affordable Housing, in that the Court may consent to development to which SEPP Affordable Housing applies even though the development does not comply with the height standard in LEP 2013. The other scenario was that the non-compliance with the height standard required a written request, under cl 4.6 of LEP 2013, to support the variation. While it was not the applicant's principal position, a written request was provided for abundant caution.
2. I am satisfied the cl 29(4) of SEPP Affordable Housing allows the Court to determine whether the variation to the height standard is appropriate. The use of cl 29(4) of SEPP Affordable Housing is not unfettered and must come with some consideration of the variation sought. In this case, the variation has been assessed against the relevant requirement in LEP 2013, the DCP and the Design Guidelines and found to be acceptable.
3. If I am incorrect in relying on cl 29(4) of SEPP Affordable Housing, then I am also satisfied that the cl 4.6 written request supports the variation to the height standard.
4. Clause 4.6 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), the second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the height standard (cl 4.6(4)(a)(ii)), the third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) and the fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).
5. In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.
6. In this case, I have found that the proposed development is consistent with the zone objectives and objectives of the height standard. I am also satisfied that, for the reasons in pars 27 to 43, the written request demonstrates that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case and that that there are sufficient environmental planning grounds to justify contravening the development standard.
7. For the reasons in the preceding paragraphs, condition ANS01 can be deleted and development consent granted subject to the agreed conditions.

Orders

1. The Orders of the Court are: 1. The appeal is upheld. 2. DA30/2014 for the demolition of all improvements and the construction of a part 3 and part 5 storey mixed use development at 36-46 Sydney Road, Manly is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits A and B.

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G T Brown Commissioner of the Court

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2015