Rothwell v Manly Council

Susan Rothwell Architects v Manly Council [2006] NSWLEC 373; CASES CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; Zhang v Canterbury City Council [2001] 115 LGERA 373; Segal & Anor v Waverley Council [2005] NSWCA 310

APPLICANT Mr P Rigg, solicitor SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr M Staunton, barrister SOLICITORS HWL Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Manly Council (the council) of a development application (DA 570/06) for alterations and additions to an approved residential flat building which is currently under construction at Lots 40 and 41, DP 4682, being Nos 85 and 87 Lauderdale Avenue, Manly (the site).

2 Council approved development application (DA 386/04) on 21 June 2005 for a residential flat building containing four apartments and basement parking for 10 cars (the original approval). The current application seeks consent to erect a fifth apartment (Apartment E) in an undercroft area with additional excavation. The proposal also includes other changes to the approved application, which were generally not in contention between the parties. The site and its context 3 The site is located on the low, southern side of Lauderdale Avenue, Fairlight. It comprises two allotments and is a rectangular shape with an area of 1,511.2m2. The site is 30.49m wide with side boundaries being 51.305m on the eastern boundary and 39.415m on the western boundary. It has an irregular boundary on the southern side to Esplanade Park, which adjoins the water.

4 The land slopes from Lauderdale Avenue to the Esplanade Park at the rear, falling about 10m. There is also a cross fall from the eastern side to the western side of approximately 3m. The two detached dwellings that were previously erected on the land have now been demolished and works in accordance with Development Consent 386/04 have commenced. 5 Surrounding development in Lauderdale Avenue is a mixture of detached two storey dwellings and residential flat buildings. Adjoining the site on the eastern side is a two-storey dwelling with undercroft (83 Lauderdale) and on the western side is a residential flat building of four, stepped levels (89 Lauderdale Avenue). On the opposite side of Lauderdale Avenue are residential flat buildings of three and four storeys and some detached dwellings.

Relevant planning controls 6 The site is zoned No 2 - Residential under Manly Local Environmental Plan 1988 (LEP 1988). The proposal is permissible with consent. Esplanade Park is identified as a Landscape heritage item in Schedule 4 of LEP 1988.

7 The relevant clauses of LEP 1988 are: Clause 3 (Aims & Objectives); Clause 4 (Policies & Strategies); Clause 10 (Zoning); Clause 17 (Foreshore Scenic Protection Area); Clause 19 (Development in the vicinity of an Item of Environmental Heritage).

8 Manly Residential Development Control Plan 2007 (DCP 2007) is also relevant. The key provisions in dispute relate to floor space ratio (FSR), height, excavation and fences. The site is within density subzone 4 which permits a FSR of 0.5:1. The original approval complied with this control. The proposed FSR is 0.64:1 which equates to about 216sqm of additional floor space.

a) To assist control the bulk of buildings. b) To ensure the scale of development does not obscure important landscape features. c) To ensure the scale of development is consistent with the existing and desired character of the residential areas. d) To minimise disruption to views and loss of privacy to adjacent and nearby 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. 10 A maximum wall height of between 6.5m and 8m is permitted depending upon the slope of the site. Maximum wall height is defined as:

Maximum wall height is the greatest vertical distance from the existing natural ground level to the underside of the eaves the topmost floor. 11 Parts of the approved building do not comply with the wall height control. However, the expert advice is that that southern wall height in the original approval complies with the relevant control. As maximum wall height is measured from existing ground level, the proposal also complies as the additional height results from excavation below existing ground level.

12 DCP 2007 provides that a building shall not exceed two storeys "unless specific physical site constraints warrant voiding this requirement". The original approval was for two storeys with an undercroft area. The proposal is for three storeys.

a) To regulate the height of buildings by specifying maximum wall and roof/ridge heights. b) To assist control the bulk of buildings. c) To provide for building heights that are consistent with the prevailing building heights in the locality. d) To minimise disruption to views from adjacent and nearby residential development and from public spaces. e) To allow sunlight to penetrate private open spaces within the development site. f) To allow adequate sunlight penetration to private open spaces and windows to the living spaces of adjacent residential development.

14 DCP 2007 limits the extent of excavation to 1000mm below natural ground level and fill 1000mm above natural ground level. The proposed excavation for Apartment E is up to 3-3.5m and the extent of fill behind the southern boundary wall is up to 2m.

To retain the existing landscape character and limit change to the topography and vegetation of the Manly Local Government Area by: a) Limiting excavation, "cut and fill" and other earthworks. b) Discouraging the alteration of the natural flow of ground and surface water. c) Ensuring that development not cause sedimentation to enter drainage lines (natural or otherwise) and waterways. d) Limiting the height of retaining walls and encouraging the planting of endemic plant species to soften their impact. 16 The design considerations of DCP 2007 for a site provide:

The design of development shall respond to the slope of the site, with the aim of minimising loss of views and amenity from public and private spaces. The lower side of the site, whether to the foreshore or a street, needs to integrate the design of the building with the topography by minimising its height and bulk. Large under-croft spaces can be avoided by integrating the building into the slope. 17 State Environmental Planning Policy N° 65 - Design Quality of Residential Flat Development (SEPP 65) and Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Sydney Harbour REP) are also relevant. The proposal and its history 18 The development application was lodged on 22 December 2006 to erect a new apartment in the basement of the approved four unit apartment building on the site. The application was notified to nearby owners and occupants and council received three letters of objection.

19 The development application was referred to Fairlight Precinct Community Forum on 9 January 2007 and the following motion was adopted at the meeting:

Visually and in terms of amenity it is not objectionable but in view of excess FSR Precinct recommends rejection. Should the proposal proceed, it is recommended that the proposal to use sandstone to build a boundary fence to the walkway be a condition of approval. 20 The application was recommended for refusal and subsequently refused by council on 7 May 2007. The appeal was filed on 10 May 2007.

21 An earlier application for a similar proposal was refused by council on 28 February 2006. This refusal was upheld under appeal No 10254 of 2006 by Watts C on 19 June 2006 in Susan Rothwell Architects v Manly Council [2006] NSWLEC 373.

The issues 22 Council filed a statement of contentions that included 13 issues and a number of sub issues. The key issue between the parties can be summarised as whether the height, bulk and scale of the proposal is consistent with the character of the area and has an acceptable impact on the adjoining heritage item and the Foreshore Scenic Protection Area. The evidence and findings 23 The Court heard evidence on site from Mr D Pick of 6/76 Lauderdale Avenue, Fairlight who raised concern about the impact of the proposal on his views and the non compliance with the height controls in DCP 2007. Mr Pick's concerns relate to the original approval. There is no increase in the overall height as part of this application and therefore views are not affected by the proposal beyond the impact that results from the original approval.

24 Expert planning evidence was provided by Ms D Laidlaw, for the applicant, and Ms Y Middleton, for the council.

25 The key difference of opinion between the experts was the impact of the building when viewed from the Esplanade Park, the surrounding waterways and the opposite foreshore. Both Ms Laidlaw and Ms Middleton agreed the proposal would appear as a three storey building. However, despite the increase in excavation, Ms Laidlaw considered its appearance would be similar to that of the original approval. She considered the exceedance in FSR to be acceptable as the building envelope was generally the same as that which was approved under DA 386/04.

26 Ms Laidlaw stated that measures proposed, as part of the current application, would minimise the perceived height of the basement apartment. These measures include the construction of a double retaining wall along the southern boundary of the site adjacent to the reserve with soil backfilled to generally maintain the ground levels next to the proposal on the site prior to construction. The level of the terrace off the bedrooms of Apartment E is about a 500mm below the new ground level and is therefore partially obscured. The terrace and living areas are generally at ground level but this is similar to the original approval. The southern wall of Apartment E is set behind the approved southern wall and will be visually recessive. In Ms Laidlaw's opinion very little of the basement level would be visible from the walkway along the Esplanade Park and its appearance would be similar to the approval when viewed from the water and opposite foreshore.

27 Ms Laidlaw considered that the proposed southern boundary fence was consistent with the height of fences on the adjoining property to the east and west and rationalised the ground levels between these properties. She considered this treatment to be characteristic of the Esplanade Park and to be acceptable regardless of whether Apartment E proceeded.

28 Ms Middleton held the contrary opinion that the retaining wall and fill altered the landform and the site's relationship to the Esplanade Park in an unacceptable manner. She stated that the total height of the retaining wall and fence would be up to 3.5m, although this is broken down into the 1.5m fence along the boundary and a secondary fence, setback about one metre to form a planter box. This arrangement differed from the original approval, which proposed a boundary fence with the natural landform sloping up and under the undercroft area. This landform included a grassed area, exposed rocks, fern planting and a retained gum tree, which in Ms Middleton's opinion, softened the impact of the development, particularly from the reserve and across the water.

29 Ms Middleton was particularly concerned about the removal of the rocks and the tree and the excavation of the natural landform. She did not consider that the proposal to back fill the site and the treatment of Apartment E would mitigate its impacts. She was also concerned that the proposal was situated on a double block and that its width combined with its three storey height was uncharacteristic of other buildings which fronted the Park. In her opinion the exceedence in the FSR control was unacceptable as the use of the undercroft area as habitable space would limit the opportunity for planting. She considered it would be unrealistic to require significant planting between Apartment E and the Esplanade Park as this would conflict with future residents desire for views to the water. As Apartment E is south facing and excavated below ground, its amenity other than from its views would be poor.

Findings 30 The role of a DCP is set out by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. 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. 31 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. 32 The visual impact of the proposal from the water is a matter raised by Sydney Harbour REP, LEP 1988 and DCP 2007. Without detailing 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, DCP 2007 provides the meaningful planning controls and as such is the fundamental element or focal point in the decision-making process.

33 The proposal does not comply with fundamental requirements of DCP 2007 being the FSR, two storey height and extent of excavation. Although the measures outlined by Ms Laidlaw will mitigate the impact of the proposal, it will clearly read as a three storey building when viewed from the water and the opposite foreshore. Buildings on the opposite side of Lauderdale Avenue are more than two storeys and the site adjoins a four storey residential flat building, but this is of a form and scale not to be emulated along the foreshore. Other development, which fronts the Esplanade Park is generally two storeys. Three storey are not consistent with the character of development adjoining Esplanade Park and is not what is envisaged by the planning controls.

34 Exhibit E shows the difference in built form of the original approval and the current application however, it does not illustrate the approved landscape treatment. It therefore does not accurately compare the appearance of the two proposals.

35 While its overall height and bulk is generally the same as what is approved under DA 386/04 however, the manner in which the proposal meets the ground, the landform, the boundary treatment and the extent to which the lower level can be screened by landscaping are significantly different to what was envisaged by the previous approval.

36 In particular, the previous approval presented a blank wall to an undercroft area. The height of the blank wall varied depending upon the height of the ground level and as I understand the proposal was to be largely screened by landscaping and the exposed rocks with the land sloping down as a grass slope to the Esplanade Park.

37 The provision of habitable space within an excavated basement area reduces the ability to provide significant landscaping or earthworks to minimise the visibility of this level and its contribution to the overall height of the proposal. Apartment E relies on the openings to the south for its sole source of light and air and will realistically seek to maximise the extensive water views which are available to it. While this is not an unrealistic expectation it is beyond that which is envisaged by the planning controls for a Foreshore Protection Area. The additional floor space will be visible as a third storey and does not comply with the numerical controls in DCP 2007 nor with the objectives of these controls.

38 The proposal relies on the provision of a double retaining wall along the boundary of Esplanade Park to screen it from view. While this wall is consistent with the wall of the adjoining property to the west, I do not consider this to be a contributory element on the edge of the Park which is a heritage item. Masonry boundary fences are characteristic of the area, but are generally limited in height. They are an appropriate edge if the landform and landscape forms an interface between the Park, the boundary wall and the built form set higher up the slope. I do not accept Ms Laidlaw's evidence that the boundary fence forms an appropriate edge to the reserve when compared to a lower retaining wall with a sloping landform.

39 Consistent with the decision in Segal & Anor v Waverley Council [2005] NSWCA 310, the Court is not bound to follow the decision of Watts C or even to take it into account if irrelevant to the resolution of the contested issues. This application must be considered on its merits in the particular circumstances of this case. However, I note that the decision in Segal also stated that it is desirable to apply consistent principles and to refer to a previous decision, where relevant. In providing reasons for my decision it is appropriate that this be done in the context of Watts C previous decision. He considered a different application for an additional apartment, which I understand was larger and extended the basement apartment beyond the approved walls.

40 This is a different application and I accept its impacts will be less than those enunciated by Watts C. Circumstances have also changed such as the removal of the "rock shelves". However, the conclusion of Watts C is of some relevance where he stated:

The proposal for an additional dwelling at the proposed lower floor level would require excavation below the existing natural ground level at the line of the southern elevation. Thus, the lower floor level would be visible from some viewpoints to the south and the waters of Sydney Harbour. In the original approved design the proposed ground floor level, one above the proposed new lower floor level, would have over-sailed the rock shelves located on the land, however the present proposal would require the natural ground surface to be excavated. Instead of the building apparently 'touching the ground lightly', as originally approved by the council, it would present as a new wall below the lowest approved level. The shelving rock out-crops would be cut into. As a result the maximum wall height of the development would increase by around 50% and would the proposal present to viewpoints to the south, as a full three-storey building in lieu of the originally approved two-storey building. The landscaping as shown on the plan in Exhibit F would do little to provide a screen of this lower level. I am satisfied that the proposal would visually dominate the Manly Scenic Walkway of the Esplanade Park and would not be in the public interest.

41 While the current application seeks to reinstate the existing ground level. The experts agree that the building will appear as three storeys with limited opportunity to screen the lower level. This is clearly not envisaged by DCP 2007 and there are no circumstances of this case or specific physical site constraints which would warrant approval of the application. The appeal therefore must fail.

42 As the application fails on this basis I will not address the other issues raised by council in any detail other than to say that the amenity of Apartment E as a south facing unit would of itself not be sufficient reason to warrant refusal of the application. Orders 43 The orders of the Court are therefore: 1. The appeal is dismissed. 2. The development application (DA 570/06) for alterations and additions to an approved residential flat building which is currently under construction at Lots 40 and 41, DP 4682, being Nos 85 and 87 Lauderdale Avenue, Manly is refused. 3. The exhibits may be returned.

              Annelise Tuor
              Commissioner of the Court

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