PDE Investments No 8 Pty Ltd v Manly Council

7 The development application was lodged on 5 March 2003 and was notified to adjoining residents. One objection was received on behalf of the adjoining property at 75 North Steyne. Council refused the application on 7 August 2003. The application was amended and a Section 82A Review was lodged in October 2003. This was renotified and the owners of 75 North Steyne indicated that they were satisfied with the revised plans. The Ocean Beach Precinct Committee Forum supported the amended application. Proposal

8 The proposal is to demolish the two existing buildings and construct a 5 storey residential flat building with 11 units and basement parking for 25 cars including 3 visitor spaces. Statutory framework 9 Under Manly Local Environmental Plan 1998 (LEP 1998) the site is within the Zone No 2 - Residential Zone. Residential flat buildings are permissible with consent. The site is in the vicinity of the Ocean Beach reserve, which is identified as a heritage item under LEP 1998. Clause 19 requires an assessment of the impact of the proposed development on the heritage significance of the item and its setting. 10 Manly Residential Development Control Plan for the Residential Zone 2001 Amendment No 1 (RDCP) came into effect in October 2001 and Amendment 1 in June 2003. The requirements of the DCP are in three parts: Objectives - the desired outcomes, Performance Criteria - requirements to satisfy the objectives and Diagrammatic Interpretation - to clarify the objectives and provide examples of how the performance criteria can be achieved. 11 The requirements of the RDCP that are relevant are cl 3.2 Open Space and Landscape; cl 3.3 Floor Space Ratio; cl 3.4 Building Height; cl 3.5 Setbacks; cl 3.10 Privacy; cl 3.12 Parking and Access and cl 4.1.3 Road Realignment.

12 State Environmental Planning Policy No 65-Design Quality of Residential Development (SEPP 65) also applies to the site. Under SEPP 65 the Residential Flat Design Code (Flat Code) must be considered.

Issues 13 The Statement of Issues filed by the council contained 12 issues which can be summarised as: i. Whether the building is too bulky as the building envelope exceeds the setback, wall height and FSR controls for the site; ii. Whether the proposed development has an adverse impact on the heritage significance of the beach. The Court had the advantage of a site visit and heard evidence from: · For the Council Mr S Ooi, town planner Mr M Biddulph, architect · For the Applicant Mr S Layman, architect/town planner 14 Statements of Evidence were provided on heritage by Mr B Edgar, for the applicant and Ms Charmain O'Halloran, for the council. Mr K Kethuesan, Council's Development Assessment Engineer, provided evidence on the car park layout. His concerns were addressed by amended basement plans. These experts were not required for cross examination.

15 The key difference between the experts was the extent of the building envelope and whether it could be filled with floor space and exceed the maximum FSR specified in the planning controls. 16 In relation to the building envelope, the main area of disagreement related to the application of the front setback and the maximum wall height controls. The experts also disagreed on the impact of breaches to the building envelope and whether the bulk resulting from these breaches was acceptable.

17 I will deal firstly with the building envelope resulting from the application of the setback and wall height controls. Building envelope - setback

18 In RDCP, the primary objective of the setback control is to preserve and enhance the existing streetscape, which is to be achieved through the performance criteria that: a) front setbacks must relate to the corresponding setbacks of neighbouring properties. 19 Where there is no consistent setback, a minimum setback of six metres applies. Projections within the setback, such as balconies (unenclosed), roof eaves, sun-hoods, chimneys, meter boxes and the like are permitted provided there will be no adverse impact on the streetscape or adjoining properties. 20 The experts disagreed on whether there was a consistent streetscape and whether the balconies encroached within the setback area and thereby added to the bulk of the building. The proposal provides a minimum 6.9 m front setback from North Steyne to the terraces and balconies and a minimum of 9.7m up to 10.9m to the building itself at ground level and first floor level. These levels are stepped to respond to the alignment of North Steyne. The upper levels are setback further from North Steyne. This setback increases as the height of the building increases but does not follow the alignment set by North Steyne.

21 In Mr Layman's opinion, there was no consistent setback of the two adjoining buildings except for the fact that that they step to acknowledge North Steyne as they move northwards. Mr Layman therefore considered that the setback requirement was a minimum of 6m and that this was more than met by the proposal. The north west corner of the proposal was in a similar location to the existing building on the site and would therefore have a similar impact on the streetscape. Mr Layman also stated that the two adjoining buildings responded differently to their corner locations and in doing so did not establish a consistent streetscape. 22 Mr Ooi and Mr Biddulph considered that there was a consistent setback line that was established by the two adjoining buildings and the setback requirement was therefore not a minimum of 6m but rather that the proposal should relate to the corresponding setback of adjoining properties. These properties are set back about 13m and generally follow the alignment of North Steyne. Mr Ooi projected a line from the north east corner of No 75 to the north east corner of No 89-90 as being the appropriate setback line. Both he and Mr Biddulph acknowledged that the ground and first floor of the proposal generally followed the street alignment but considered that the upper levels and the north east corner encroached into the alignment, particularly when viewed from the north. In their opinion, this exceeded the envelope envisaged by the RDCP and resulted in additional bulk and unacceptable impact on the streetscape.

23 I accept the evidence of Mr Ooi and Mr Biddulph, although the setbacks of No 75 and No 79-80 are expressed in very different styles and architectural treatments, both buildings generally follow the street alignment and have greater setbacks than what is proposed. The north east corner of the development does not follow the street alignment and while this is similar to the existing building at No 77-78, it will have a greater impact than the existing building as it is higher. Levels 2 to 4 of the proposal relate to the setback of the north east corner of No 75, as the proposal moves towards the north its setback to North Steyne is reduced. Above ground level, the south east corner of No 79-80 North Steyne is set back between 4 to 5 m more than the proposal. The proposal does not relate to this setback and does not mediate between the two buildings and, when viewed from the north, it will step out. Due to the bend in North Steyne, the proposal will be read against the backdrop of No 69-74, however, it will still protrude in a manner that does not unify or add to the consistency of the street. This would be further exacerbated if the proposed re-alignment of the street were to be implemented as the proposal would be built to the street but would not follow the alignment. 24 The experts disagreed on whether the balconies were enclosed and under RDCP could intrude into the setback area. Mr Ooi was of the opinion that a balcony that is roofed is enclosed. Whereas Mr Layman considered that a balcony would need to be framed on all sides to be enclosed. Mr Biddulph considered that the importance of balconies was to add interest to the façade and to be used to break down the overall bulk of the building. He cited No 84-85 North Steyne as a good example of the use of balconies for this purpose. 25 I understand the intent of the RDCP provision to be that minor structure such as balconies (unenclosed), roof eaves, sun-hoods, chimneys, meter boxes and the like which do not add to the bulk of the building and add interest to the façade can intrude within the setback area. This is illustrated in the Figure 16 in cl 3.5 of the RDCP. A balcony that runs along the full length of the facade on a number of levels is not a minor structure and it does add to the bulk of the building. While I accept Mr Biddulph's opinion that balconies such as those on No 84-85 add interest and breakdown the overall bulk, they are structures that also add to the bulk of the building and should not protrude within the setback. Similarly, the balconies of the proposal add to the bulk of the building and should not protrude into the setback to the extent proposed. Building envelope - wall height and roof structure 26 The RDCP permits a maximum wall height of 12m. Roof structures may extend a further 3m above the maximum wall height. A roof is defined as having a maximum pitch of 35 degrees. A steeper pitch is considered as a wall height. Habitable rooms in the roof are only permitted above the wall height where they do not detrimentally affect the amenity of the locality. The main difference of opinion between the parties was whether level 4 (fifth storey) was rooms within a roof and therefore complied with the requirements of the RDCP or an extra floor that exceeded the wall height. 27 Mr Layman's opinion was that the rooms were contained within the envelope set by the 35 degree pitch and therefore met the requirements in the RDCP. Further, he stated that the proposal was consistent with other recent developments along North Steyne and would not detrimentally affect the amenity of the locality. 28 Mr Ooi and Mr Biddulph considered that while the structure was within the envelope it did not appear as a roof as the wall height was exceeded, the wrap around balconies added to the bulk of the building and it would appear as a five storey building rather than a four storey building with rooms in the roof. They were also concerned that the front part of the building to North Steyne exceeded the height of the adjoining buildings and would be viewed along the street. Mr Ooi considered that even though the adjoining residents no longer objected, the additional floor would impact on privacy, particularly the side balconies. 29 I accept that the proposal will appear as a five storey building, however the controls do not specify the number of storeys but only the overall height and maximum wall height. The relevant objectives of the height control are: a) To control the height of buildings by specifying maximum wall and roof/ridge heights. b) To provide for building heights that are consistent with the locality. 30 As I understand the intent of the controls is to establish a dominant wall height of 12m above which a secondary structure is permitted in the form of rooms in the roof. The overall height is not to exceed 15m and the rooms in the roof should not result in adverse amenity impacts. These impacts include privacy, overshadowing, views and bulk. This intent has been implemented in different ways by recent development in the street. There is no consistent roof form but a dominant wall height with a secondary structure above, is generally expressed by these other developments. 31 The experts agreed that the proposal would not impact on views. They disagreed on privacy and overshadowing impacts which I discuss later. The main disagreement between the experts related to the amenity impact from the bulk of the additional floor.

32 When viewed from the east and west, the upper level will appear as a secondary structure. The wall height is exceeded but this level is setback from the north and south and is within the overall envelope specified by the controls and therefore does not add to the bulk of the building. The wrap around balconies add to the bulk of the building and contribute to the top level appearing as an additional floor rather than as a roof form. Other recent examples in the street limit top floor balconies to the front and rear of the building and not the sides. These side balconies also have the potential for overlooking, which I discuss below. 33 When viewed from the north and south, the upper level of the proposal will not appear as a secondary structure or as a roof form and will add to the overall bulk of the building. The upper level on Whistler Street and North Steyne is not setback within a 35 degree angle and the proposal cannot be considered as a gable end. On Whistler Street the upper level is in the same plane as the level below and will clearly appear as a 15m wall height and not as a secondary structure of rooms within a roof. While there is a minimal increase in setback of the top level on North Steyne it will appear in a similar manner to Whistler Street and will clearly be visible due to the lower height of No 75 and the greater setback of the top level of No 79-80. 34 While the overall height of the proposal is consistent with the adjoining buildings and other development in the street, the extent of the upper level does not appear as a secondary structure above a street wall and it will add to the bulk of the building and thereby impact on the amenity of the area. Building Envelope - Floor Space Ratio 35 The site is identified as being within the Density sub zone 1, which permits one dwelling per 50sqm of site area. The maximum FSR permitted in Density sub zone 1 is 1.5:1. The proposal has a FSR of 1.86:1 above ground. Additional car parking spaces and storage areas that are included in the definition of floor space are located within the basement and therefore the building has an FSR in the order of 2:1. 36 The objectives of the FSR control that are relevant are: a) to control the bulk of buildings. c) to be consistent with the existing and desired character of the residential areas. d) to minimise disruption to views, loss of privacy and loss of sunlight to existing residential development as well as the proposed development. e) to provide sunlight access to private open spaces within the development and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings. 37 In Mr Layman's opinion the proposal complied with the density requirement, was generally within the building envelope, was consistent with adjoining and nearby development, did not adversely impact on privacy and overshadowing and therefore met the objectives for FSR even though it did not comply with the performance criteria of 1.5:1. He stated that the FSR below ground did not add to the bulk of the building and that the FSR objectives were only relevant for floor space above ground. Mr Layman provided examples of recent developments where Council has regularly and recently approved significant variations to the FSR and other controls in the locality. In his opinion these developments are indicative of the desired future character that council envisages through the implementation of its planning controls. 38 Mr Ooi and Mr Biddulph considered that the FSR controls and the building envelopes must work together and that it was not the intention of the planning controls to fill the envelope. Mr Biddulph referred to the Flat Code which states that building envelopes should be at least 20-25 percent greater than their achievable floor area to allow for building articulation. This supports the approach in RDCP which states that: Floor Space Ratio (FSR) assists in controlling bulk within a building envelope set by other standards, such as height, open space requirements and setbacks. Building envelopes refer to a three-dimensional space within which a development must fit.

39 The Diagramatic Interpretation of the FSR controls in Figures 8, 9 and 10 indicates a building envelope much larger than the building within this envelope. It enables greater setbacks from the boundaries and of the building itself and variations in height to break down the perceived bulk and impact on neighbours' amenity. 40 Mr Ooi did not agree that the proposal met the objectives of the FSR control. While his evidence concentrated on the impact of the bulk of the development that exceeded the building envelope, he stated that the bulk of the proposal was inconsistent with the existing and desired future character of the area. He accepted that there was now no resident objection to the proposal but considered that the wrap around balconies on the top levels would result in overlooking and that the proposal would have overshadowing impacts on No 75. He stated that the impact on privacy and sunlight would be less from a building that complied with the FSR control, but he did not press this issue as the adjoining owners no longer objected. 41 In relation to overshadowing, Mr Layman's evidence was that the proposal will not significantly adversely alter solar access of No 75 North Steyne. As no shadow diagrams were submitted into evidence, I cannot adjudicate between these two positions or determine whether the objectives of the FSR relating to overshadowing are met. Although I note that overshadowing was not raised by council as an issue. 42 In relation to privacy, Mr Layman's evidence was that extensive negotiations had been held with the adjoining residents of No 75 and they did not object to the proposal. Obscure glass screens were proposed on the southern side of levels 3 and 4 to protect privacy, however, the experts agreed that the plans were unclear as to the extent of these screens. To be effective the screens would need to be along the full length of the side balconies, except where they directly abut the adjoining building. This would add to the bulk of the building. 43 The privacy impacts on the terraces of No 75 from the front terraces of the proposal are not clear. The terraces are about four metres apart. The proposed terraces have blade screen walls to the sides but they do not run the full length of the terraces. The separation and degree of screening would have privacy impacts, which under objective criteria would not be desirable. I note that the views from the terraces of No 75 are orientated towards the east and that there is already a high degree of exposure, therefore the level of privacy expected may not be as great as in other less public areas. However, this would be the same for other developments along North Steyne and screening may not be desirable as it adds to bulk and blocks sun. A greater degree of separation and privacy could be achieved through increased side setbacks of the building. From the evidence provided, I do not accept that the absence of resident objection is sufficient to assume that the objectives for privacy have been met to the extent that the Performance Criteria in the FSR control can be varied. 44 Mr Layman gave examples of recent approvals to indicate council's implementation of the controls. Of those that are in the same density zone, two developments (No 81 and 120) are under construction and the appropriateness of their bulk and their consistency with existing development was not apparent on the site visit. I note that they are corner sites where Mr Ooi and Mr Biddulph considered a higher FSR may be achieved. No 81 was approved by Council with an FSR of 1.85:1, the other developments (Nos 84-85, 110 and 120) were approved with FSRs above ground in the order of what is permissible for the zone. The floor space of Nos 110 and 120 has now been measured and found to exceed what was approved. In the case of No 110, the extra floor space is contained within enclosed balconies, which clearly add to the bulk of the building and adversely impact on the streetscape and as stated above No 120 is under construction. 45 The development which most closely relates to the proposal is No 84-85 with an FSR of 1.58:1. This building has a larger frontage but it is also an infill development and is built with zero boundary setback for part of its side boundaries. Mr Biddulph considered this development to be appropriate in its bulk, particularly as its bulk was broken down by the use of balconies, setbacks and materials.

46 The key difference between the parties was whether the building envelope established the total floor space limit for the site. As I understand, Mr Hemmings' submission for the applicant is that, provided the building envelop does not have an adverse impact on the amenity of the area and objectives of the FSR standard are met, then the FSR performance criteria could be exceeded. Recent development approved in the area indicated that council considered that the bulk of building envelopes, which contained greater FSR than that permissible within the zone were appropriate and that this determined the desired future character. 47 While Mr Hemmings' submission is persuasive, I do not accept that the FSR Performance Criteria has no role to play and that the envelop can be filled with floor space. The experts do not agree on the building envelope particularly the front setback and roof form. There are parts of the envelope that are not filled and there are also parts of the envelope that are exceeded. Most of the evidence concentrated on whether the breaches to the envelope resulted in an acceptable bulk. This is not the issue but rather whether the bulk of the building is consistent with the existing and desired future character of the area and has acceptable amenity impacts and therefore meets the FSR objectives. In assessing this, the bulk and impacts of a 1.5:1 development cannot be ignored.

Planning Principle - Floor Space Ratio and Building Envelope 48 The question of whether a building envelope can be filled when the FSR control would produce a smaller building is one that arises from time to time in Court proceedings. The following planning principles are therefore of assistance:

i. FSR and building envelope controls should work together and both controls and/or their objectives should be met.

ii. A building envelope is determined by compliance with controls such as setback, landscaped area and height. Its purpose is to provide an envelope within which development may occur but not one which the development should necessarily fill.

iii. Where maximum FSR results in a building that is smaller than the building envelope, it produces a building of lesser bulk and allows for articulation of the building through setbacks of the envelope and variation in building heights.

iv. The fact that the building envelope is larger than the FSR is not a reason to exceed the FSR. If it were, the FSR control would be unnecessary. 49 I do not accept that compliance with the density control of 1 dwelling per 50sqm of site area is an indication of appropriate bulk. The control would permit a maximum of 18 dwellings on the site where only 11 are proposed. Mr Layman's evidence that compliance with the density control demonstrates that the proposal is not an overdevelopment of the site is correct in so far as there is a relationship between the number of units and the number of people and cars to be accommodated on the site but not to the bulk of the development. This is controlled by the size of the units and the floor space, which is controlled by floor space ratio. There could be a greater number of units with smaller floor space or a lesser number of units with larger floor space which comply with the maximum FSR control for the site. 50 The building above ground has approximately 332 sqm (24%) of floor space above that envisaged by the controls. It is clear, and not a matter of subjectivity, that this amount of floor space will increase the bulk of the building. The question then becomes one of whether this bulk is consistent with the existing and the desired future character of the area and what impact it would have on amenity, particularly privacy and overshadowing. 51 The existing character is mixed with a range of buildings of different heights, styles and architectural treatments. The predominant scale of development is three storeys and the current planning controls provide sufficient incentive for these sites to be redeveloped. This is evidenced by the number of sites that have been or are being redeveloped. The emerging character is of 12m high buildings (four storey) with a secondary structure above. While there are a number of recent developments, they do not define a dominant character and there are still a number of potential sites for redevelopment. 52 In relation to the non compliance of recent development approvals with the planning controls, particularly FSR. These developments may indicate council's implementation of the controls to date but they are not sufficient in number to determine the future character of the area. If this site was one of a few remaining sites left to be developed and the character of the existing area was buildings of greater or equivalent bulk to that proposed, then it could be concluded that the bulk of the building resulting from an application of the controls was not consistent with the existing or future character. This is not the case. 53 The bulk of the proposal is greater than its two immediate neighbours. These buildings are on corner sites that have less frontage than the proposal. No 75 is four storeys, narrow with modulation from setbacks and balconies. No 79-80 is four storeys with a fifth storey set well back from edge of the building below, the building is also well set back from North Steyne. Both these buildings appear of significantly less bulk than the proposal. 54 The bulk of the proposal is emphasised by the width of its frontage and minimum side setbacks, particularly the zero boundary setback. As an infill development the building appears to extend the full width of the site and to connect to the two adjoining buildings. The indents and variations in setbacks are not sufficient to reduce this appearance and the bulk of the building to any significant extent. 55 This treatment of an infill development is different to the existing character of the area where there is side separation between buildings that breaks up the bulk and provides view corridors and sky exposure between the buildings. This is evidenced by the existing buildings on the site where two buildings have three corridors resulting from their separation. By combining the sites and building to both boundaries a building of greater bulk results. While this is permitted by the controls (although the extent of the zero setbacks is exceeded) the extra floor space means that there is less opportunity to modulate or break down the overall bulk. 56 The expert's interpretation of side setbacks results in a ziggurat form where the wall height of each floor is calculated separately ie. the first floor is set back 1m, the second set back 2m and the third set back 3m. This produces a 9m high building of different bulk to one where the setback is calculated over the total wall height and the building is setback from both side boundaries 3m. This latter form appears to be what is intended by the controls in the diagrammatic interpretation on Figure 17 of cl 3.5 of RDCP. 57 I do not accept that the FSR below ground has no impact on the bulk of the building. The FSR results from the provision of car parking above council requirements and is included in the definition of floor space. This parking extends beyond the floor plate of the building to the Whistler Street boundary and to both the side boundaries. The basement is about 1.5m below ground to provide soil depth for planting in an approximately 4.5m strip. The landscape plan indicates that this planting is grass and shrubs with 3 trees up to 10m in height required by the RDCP on an approximately 500mm mound. I do not accept that these trees would achieve this height or are appropriate for small courtyards in close proximity to the building. The courtyards are screened behind a 2.1m high fence and therefore little landscaping would be visible from Whistler Street. Landscaping would assist in reducing and softening the bulk of the building. While it is an urban area with very little landscaping and there are recent poor examples of landscaping, most notably No 59-60, these do not reflect the objectives of the planning controls for landscaping to enhance the amenity of the site and, streetscape and surrounding area. The FSR of the building, the car parking underground and the ability to provide landscaping are linked and do impact on how the bulk of the building appears and can be reduced and screened. 58 The front of the site to North Steyne does not have below ground structures but this is the area required for the road realignment. If implemented, the proposal and other buildings along North Steyne would be built to the new road alignment with little opportunity for landscaping. Under the RDCP, the maximum FSR of the development should clearly be based on the site area of the title to the land. However, in assessing its impact, the bulk of the building if the road is realigned should not be ignored. Obviously, a building will appear less bulky if it has space around it or is softened by landscaping, such as corner sites that can borrow space from two street frontages. The bulk of this building and other buildings would be increased if built to the alignment with no opportunity for landscaping on their own site. 59 The proposal therefore does not meet the objectives of the floor space ratio control. It generally fills or exceeds the building envelop and results in a development which would not be consistent with the existing and desired character of the residential areas.

Heritage 60 The site adjoins the ocean beach reserve, which is identified as a heritage item under LEP 1998. The NSW State Heritage Inventory states the significance of the beach and its park is its: High significance as natural sand beach and cultural backdrop of paved promenade and first coastal planting of Norfolk Island Pines 61 Mr Edgar considered that the western side of North Steyne provided a relatively consistent urban backdrop to the beach and its trees. In his opinion, the development would not have substantially any more impact on the heritage item (beach and park), than the other new residential developments in the immediate area on North Steyne. He considered the height of the proposal, its set back from North Steyne, the stepping of the building from the street and its materials to be similar to other developments and thereby provide a consistent backdrop for the surroundings. 62 Ms O'Halloran held a contrary view that the height and overall scale of the proposal would result in built form dominating the natural landscape of the beachfront, particular the Norfolk Pines. 63 As discussed above, the height of the proposal is consistent with the height of other buildings in the area. The silhouette of the Norfolk Pines will be visible above the height of the proposal and they will remain as the dominant element when viewed from the beach. 64 However, the bulk of the proposal, particularly being built boundary to boundary and its setback from North Steyne in relation to its adjoining neighbours does not provide a consistent backdrop for the heritage item. If the bulk and setback of this proposal were to be emulated by other proposals in the ad hoc manner in which other recent development has occurred the heritage significance of the beach reserve would be impacted upon. This would be exacerbated if the road realignment were to occur.

2. The development application for the demolition of the existing buildings and the construction of a five storey residential flat building at 76-78 North Steyne, Manly is refused. 3. The exhibits may be returned.

                                                      Annelise Tuor
                                                      Commissioner of the Court

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