Payten Holdings Pty Limited and Joe Grech v Manly Council

Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 1988 LEGISLATION CITED: Sydney Regional Environmental Plan No 23 State Environmental Planning Policy No. 65

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 ; CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373

APPLICANT Mr A Galasso, barrister SOLICITORS PricewaterhouseCooper Legal LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11006 of 2004 Payten Holdings Pty Limited and Joe Grech v Manly Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Manly Council (the council) of DA No. 620/02 for the demolition of two existing dwellings and erection of residential flat building at 10 and 10A Addison Rd, Manly (the site).

2 I record that inspection of the site and surrounding areas, including some adjoining residential properties, was undertaken on the morning of the hearing.

3 For the reasons set out in this judgement I have concluded that the appeal should be dismissed and development consent refused. The site 4 The site comprises lots 1 and 2 in DP 602702. The site is irregular in shape with a frontage to Addison Road of 30.4 m and side boundaries that extend to Little Manly Cove. The total site area is 1552 sq m. The front portion of the site is relatively level, while the rear portion of the site features a very steep to sheer drop into Little Manly Cove.

5 The general locality consists of residential land uses comprising residential flat buildings, detached housing and some townhouse style development. The development directly to the south west consists of a three level residential flat building and the development to the north east consists of two detached residential dwellings in a battle-axe configuration. The proposal 6 The proposal seeks the demolition of the existing buildings and the erection of a residential flat building comprising 6 x 3 bedroom apartments. The apartments are spread over four levels, the lower apartment being constructed partially below natural ground level, the next two levels contain two apartments on each level and a single apartment is located on the upper level. All apartments face towards Little Manly Cove.

7 Basement car parking is provided at the same level as the lower apartment. Relevant planning controls 8 The site is located within Zone No. 2 - Residential Zone of Manly Local Environmental Plan 1988 (the LEP). The proposed development is defined as a "residential flat building" and is permissible within this zone, with consent. The relevant objectives of the zone are: (c) to allow a variety of housing types while maintaining the existing character of residential areas throughout the Manly Council area;

(d) to ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents would the existing quality of the environment

(h) to encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment; 9 Clause 10(3) provides that consent must not be granted unless the proposed development is consistent with the objectives of the zone. Clause 17 provides that consent must not be granted unless the development will not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area. Clause 19 requires an assessment of the effect of carrying out the development on an item of environmental heritage and it's setting. The harbour foreshore is identified as a landscape item of heritage significance in Schedule 4 of the LEP.

10 Manly Development Control Plan for the Residential Zone 2001 (the DCP) also applies. The DCP provides specific controls and guidance for the construction of developments within the Residential Zone. The site is located within Residential Density Sub-zone 3 that provides for 1 unit/250 sq m of site area and Height Sub-zone 1 that provides for a maximum wall height of 6.5 m. however on sloping sites this is increased on a sliding scale. For the subject site the maximum wall height is 6.7m.

11 There was agreement that the proposed development satisfies the requirements for density, roof height, open space and landscape design and parking and access. The areas of disagreement relate to roof type (cl 2.5.3)), building form and style (cl 2.5.4)), floor space ratio (FSR) (cl 3.3)), number of storeys (cl 3.4.1(ii)(c)), wall height (cl 3.4.2(i)), rooms in the roof (cl 3.4.2(iv)) and privacy and security (cl 3.10)).

12 Sydney Regional Environmental Plan No 23 - Sydney and Middle Harbours (SREP 23) also applies. The plans aims to establish a framework that encourages a consistent and coordinated approach to the planing, development and management of the waterways, islands and foreshores of Sydney and Middle Harbours. Clause 2(2)(f) has specific aims for the visual environment that state; (f ) in relation to the visual environment: (i) to protect and enhance the landscape and special scenic qualities of the Harbours, and (ii) to ensure that adequate consideration is given to the visual impact of development, and (iii) to preserve the natural foreshores of the Harbours and to ensure development does not detract from their natural character, and 13 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)). The issues 14 The council filed a Statement of Issues containing 7 individual issues and particulars. These can be conveniently grouped into following main areas: 1) whether the visual impact of the proposed development is acceptable when viewed from the harbour (Issues 1, 2, 3 and 4), and 2) whether the proposed development creates unacceptable privacy impacts on adjoining properties, (Issue 5) and 3) whether the proposed development provides adequate solar access and amenity (Issue 6). 15 The issues raised by local residents (Issue 7) are addressed as part of the above issues. The evidence 16 The council provided the following evidence: - Mr Eric Armstrong, town planner and - Ms Gabriel Morrish, urban designer. 17 Additionally, a number of local residents provided evidence on the site view. 18 The applicant provided the following evidence: - Mr James Lovell, town planner, - Mr Rohan Dickson, urban designer, - Mr Steve King, solar access consultant and, - Ms Narelle Sonter, landscape consultant. Visual impact 19 Mr Dickson states that the proposed development creates a high quality contemporary built form that responds to the site and its surrounds in terms of height, scale, form, setbacks and external appearance. It is suitable for the site and locality as the built form does not appear excessive or intrusive to the existing character of buildings in Addison Road and will not have an adverse impact on the natural foreshore environment.

20 While the proposal contains minor non-compliances with the council planning controls, the design outcome responds to the character of the locality and is comparable in scale to existing developments and is not visually intrusive or excessive when viewed from vantage points in the locality.

21 Mr Lovell agrees with Mr Dickson. He states that when viewed from the water and associated public spaces, the headland of Mainly Point is characterised by a wide variety of building forms and architectural styles, collectively benefiting from extensive water views. In the context of the varied character of the headland, and the articulation and physical setting, he considers that the proposed development will make an appropriate visual contribution.

22 In relation to the non-compliance with FSR control, Mr Lovell states that the extent of the non-compliance is relatively minor. When combined with a design that provides for only approximately 46% of the building envelope being utilised and parts of building accommodated below existing ground level and within the roof structure, he concludes that the proposal is acceptable in the locality.

23 Mr Morrish takes the opposite view. She states that the proposed development should not be approved as it does not meet the objectives or provisions of SEPP 23, SEPP 65 and the council planning controls in relation to: - the design of the upper floor apartment as it is not a "room in the roof", - the design of the top apartment when viewed from the water frontage is seen as a full facade with extensive glazing and balconies and creates a greater bulk than adjoining development, - the bulk of the building is increased by the basement apartment, - the architectural expression of the elevation facing the waterfront has a high void to solid ratio and as such is not in character with the surroundings development, and - the design of the basement apartment. 24 Mr Armstrong supports the conclusions of Ms Morrish. He notes that the proposal has an FSR of 0.67: 1 compared to the requirement of 0.6:1 for the Residential Density Sub-zone 3. In his assessment, the additional floorspace unacceptably adds to the scale of the building as it equates to an area of some 117 sq m; this being comparable to the area of the smallest unit of 130 sq m. He also raises concern over the roof form and wall height, which he describes as being inconsistent with the DCP requirements.

25 In considering this issue, the form of development is almost exclusively controlled by requirements in the DCP. Clause 3 of the LEP contains aims and objectives and relevantly cl 3(2)(b) aims to make development control plans to regulate development by "restricting the carrying out of a development to a specified area within the zone" (cl 3(2)(b)(i)) and "by fixing standards or specifying requirements for the development" (cl 3(2)(b)(ii)).

26 The role of a DCP is set out in some detail by the Chief Judge in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at pars 83 to 92 and includes a review of recent judgements on this issue. Relevantly, at par 87, His Honour states: A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a larger area or confined to an individual site. The provision of a development control plan must be consistent with the provisions of any relevant local environmental planning. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental planning. 27 His Honour further states, at par 87, the principles relevant to consideration of development control plans. These include the matters raised in the preceding paragraph and a number of specific matters that determine weight to given to the development control. These are the level of consultation with interested persons, including the effected community, any inconsistency in which the development control plan has been applied by a council, the consistency with other policy outcomes adopted at a State, regional or local level and the consistency of decision-making.

28 The emphasis to be given to a DCP is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly, 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. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

29 The visual impact of the proposal is a matter raised by SREP 23, the LEP and the DCP. Its context, scale, built form, density and aesthetics are matters raised by SEPP 65. Without diminishing the strength of the individual requirements in these planning instruments, it could be said that they collectively seek to protect the visual qualities of the foreshore area from inappropriate development. To determine whether a development is inappropriate, a development should be measured against the form of development envisaged by the relevant planning controls. In this case, the DCP provides the meaningful planning controls and as such is the fundamental element or focal point in the decision-making process. 30 Accepting that the proposed development satisfies the DCP requirements for density, roof height, open space and landscape design and parking and access, the form of development envisaged by the DCP provides for a building form of generally two-storeys (cl 3.4.2(ii)(c). A two-storey form would correspond to a wall height of 6.7m (cl 3.4.2(b). The roof form is to have a 3m maximum roof height or 1m for parapets above the maximum wall (cl 3.4.2(iii)(a). The roof form should have a flat roof and parapet unless the locality would make this roof form inappropriate (cl 3.5.3). If another roof form is appropriate, habitable rooms above the maximum wall height shall only be permitted where they will not detrimentally affect the amenity of the locality (cl 3.4.2(a).

31 In comparing the proposed development to the requirements in the DCP, I agree with the conclusions of Ms Morrish and Mr Armstrong. The proposal will not read as a two-storey development from Manly Cove, largely because the upper level will read as a full storey rather than a room in the roof. I accept that this perception will diminish with distance from the site however this does not overcome the obvious conflict with the DCP requirements closer to the site. The roof forms in the locality are largely, but not exclusively, pitched or gabled roofs. Where existing roof forms contains accommodation, the designs provide for subtle adaption. In my view, the proposal achieves the opposite affect through the large balcony that aligns with the balconies on the lower levels, the prominent and expansive area of glazing to the balcony and the minimal roof structure. Under any assessment, this level could not be described as a room in the roof.

32 The perception of bulk of the proposed building is also exacerbated by the lower level. Even though this level is located partially below natural ground level, it nonetheless adds to the bulk of the building when viewed from the Manly Cove. Again, the perception of the bulk diminishes with distance from the site but still remains an issue closer to the site. In this case, I do not accept that the provision of landscaping is inappropriate means to deal with the bulk of the building as the design is fundamentally in conflict with the DCP requirements.

33 I also agree with Mr Armstrong that the breach to the FSR control adds unnecessarily to the perception of bulk from Manly Cove. As a general proposition, a complying development with less floor space would likely result in a development that presents in a less obtrusive way to Manly Cove. 34 In coming to these conclusions I make no criticism of the design of the building only that it is a design that is inconsistent with the form of development envisaged by the councils planning controls and consequently the future character of the area.

35 For these reasons the proposal is contrary to the aims in cl 2(2)(f) of SREP 23, inconsistent with zone objectives (c), (d) and (h) and inconsistent with objective (a) of cl 3.3 of the DCP. In accordance with cl 10(3) of the LEP development consent must not be granted.

36 For completeness I will briefly deal with the remaining issues. Privacy impacts 37 Overlooking and privacy impacts were largely restricted to the adjoining property at 14 Addison Rd. There was agreement between the experts that the provision of fixed privacy screens on the balconies has the potential to address the issue of overlooking if extended far enough to block the view line from the dining areas of the proposed apartments across the adjoining property. A plan was provided to the Court indicating the extent of privacy screen on the balconies.

38 While accepting that the proposed screens address the overlooking issue to 14 Addison Rd, Ms Morrish provided a sketch that redesigned the curved section of the balcony area. In her opinion, this would have additional amenity benefits for the occupants of the proposed apartments and direct views away from the adjoining property.

39 Mr Dickson and Mr Lovell reviewed the sketch provided by Ms Morrish but indicated that the amendment is unnecessary and unwarranted for a number of reasons.

40 With the benefit of the site view it was clearly obvious that the proposed balconies created an unacceptable privacy impact on 14 Addison Rd. While the proposed screens satisfied the objective of restricting overlooking, I am not convinced that this is the appropriate design solution. The site is in a prominent and desirable location because of its panoramic views over Manly Cove and areas beyond and I see no reason why ameliorate screens should be used to protect the privacy of adjoining properties when this important consideration should not be an integral part of the design process.

41 The parties agreed that any impact on 14A Addison Rd could be appropriately addressed through the increase in the height of a wall adjoining this property. Again, with the benefit of the site inspection I agree with this conclusion. Solar access and amenity 42 Mr King, Mr Armstrong and Ms Morrish prepared a joint report on this issue. It was agreed that the proposed development with the exception of Unit 1, satisfies the relevant requirements. Ms Morrish raises further issue with the access arrangements to Unit 1, as access is only available through the front lobby, down the lift to the car park to the communal open space access door or via a long and sloping side pathway that includes ramps and stairs.

43 Mr Dickson states that the access arrangement is no different for any other visitor to the development who uses the car parking spaces. For visitors who park their cars in the street, Unit 1 can be accessed via the sidewalk way through a security gate.

44 On this issue, I accept that the access arrangements for Unit 1 are less than optimal however they could not support the refusal of the application for this reason alone. Orders 45 For the foregoing reasons, the Orders of the Court are; 1) The appeal is dismissed. 2) DA No. 620/02 for the demolition of two existing dwellings and erection of residential flat building at 10 and 10A Addison Rd, Manly is refused. 3) The exhibits are returned.

      G T Brown
      Commissioner of the Court

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