Savage M v Manly C

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Manly Local Environmental Plan 1988 Manly Development Control Plan for Residential Zone dated 2001

Zhang v Canterbury City Council [2001] NSWCA 167; CASES CITED: Tenacity v Warringah City Council [2004] NSWLEC 140

DATES OF HEARING: 24/02/2005 25/02/2005 EX TEMPORE JUDGMENT DATE : 02/25/2005

APPLICANT Mr A. Pickles, barrister with Mr M. Savage, solicitor of Savage Lawyers

RESPONDENT Mr R. K. Graham, solicitor with Ms B. Warry of Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 This is a verbal judgment for an appeal under s.97 of the Environmental Planning and Assessment Act, against Manly Council's deemed refusal of a development application for alterations and additions to an existing residential flat building at the property known as No. 92 Bower Street Manly.

2 A Court appointed expert, was agreed to between the applicant and the council and Mr Grech provided expert advice on matters raised in the statement of issues that was filed by the council. Mr Grech recommended a number of amendments to the plans and yesterday when we met on site the applicant had prepared a revised set of plans which partially met some of Mr Grech's requirements.

3 This is a matter, which involves views which are always highly prized in a waterfront area and I will describe the site. The site has vehicle access from Bower Street and it also has pedestrian access to Marine Parade, Marine Parade being largely for pedestrian access although there is emergency vehicle and some vehicle assess provided as we saw yesterday on the site inspection and there is a sea wall to the sea. The locality is one that can be described as 'magical' and it has magnificent vistas to the north and the north facing aspect of this property is certainly ideal in terms of development. The site provides many opportunities and of course there are constraints in terms of development of sites such as this.

4 The Court must have regard to the planning regime of the council in determining an appeal for a development application. In this regard I have looked at the council's planning regime in terms of the site being zoned residential under the Manly Local Environmental Plan 1988 and there are no requirements as such in the Manly LEP apart from the objectives of the zone and the relevant ones in these proceedings 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 or the existing quality of the environment and

(e) To improve the quality of the residential areas by encouraging landscaping and permitting greater flexibility of designing both new developments and renovations.

5 Clause 10(3) of the LEP requires that consent shall not be granted unless the consent authority is of the opinion that the development would be consistent with those objectives.

6 The other relevant guideline for the Court to have consideration to is the Manly Development Control Plan for Residential Zones dated 2001 and as amended 2003. It is noted that this replaces the 1986 DCP for residential development. The importance of this document is that the Court must give it a central focus in the determination of development applications as provided for in the judgment of his Honour Chief Justice Spigelman in Zhang v Canterbury Council and in that regard I must be conscious of the provisions of this plan and give genuine and proper consideration to the provisions. I say at the outset that I have considered the provisions of this plan and it also requires a holistic reading of the plan in terms of the objectives of the various components of the plan and the overall intent of the plan.

7 From other judgments of this Court it is quite clear that one must not consider development control plans inflexibly and clearly the purpose of development control plans is to guide development and there is discretion in terms of its application especially when one has regard to all the various components, the overall objective is to provide for development that is appropriate in its context having regard to the provisions.

8 The specific objectives of the DCP of relevance include: (a) to encourage innovative design and design of architectural merit that responds to the site and character of its surroundings;

(c) to minimise the impact of new development on privacy, views, solar access and general amenity of adjoining nearby residences;

(d) to provide for view sharing for both existing and proposed residences and

(j) to encourage responsible development approach resulting in design of architectural merit that interprets in response to the site characteristics and surrounding built and natural environments.

9 The particular controls that I must also have regard to are: the floor space ratio, the relevant floor space ratio for the subject site is 0.45:1; and the objectives to control the bulk of buildings and: (d) to minimise disruption to views, loss of privacy et cetera, to existing residential development as well as the proposed development.

10 The building heights in terms of the subject site and having regard to its gentle slope provides for a wall height of 6.7 m and generally two storeys is regarded as the appropriate form of development with rooms in the roof encouraged for third floor extensions.

11 As I stated, in terms of orientation this site has the benefit of not only water views but a northerly aspect as do the adjoining properties and overshadowing is not an issue in the proceedings. It is noted that there were concerns from the objectors regarding light penetration.

12 The proposed development has setbacks generally which comply with council's development control plan and they are articulated in 3.5 of the DCP. With respect to setbacks it is noted that a 15 m setback is required from a foreshore area or alternatively 6 m. The proposed development as amended will achieve both a 15 m and for the swimming pool some 5 m setback, however that is not an issue in the proceedings.

13 The provision which attracted the greatest discussion during the proceedings was that relating to view sharing; 3.8 of the DCP and the objectives are "to ensure continued private and public assess to the expansive views, ocean bushland et cetera and recognised landmarks; to minimise view loss from adjoining or nearby properties and public spaces; and to maintain and share views of existing and future residents."

14 There are a number of diagrams within the DCP and being a seaside local government area clearly there has been more attention given to views in council's controls than in many other council controls. The concept of view sharing has a number of performance criteria and as I stated it shows that there is provision in the DCP to allow view sharing between view corridors. The case of Tenacity v Warringah Council was raised with the Court and this judgment sets out well articulated principles for view sharing. One must also have regard to the fact that this was in the absence of well articulated principles in council's own controls and I must have regard to not only Tenacity but council's development control plan. Whilst views across boundaries may not be something that are envisaged in terms of Tenacity, however, it is quite clear from council's development control plan that it prefers to angled views between buildings, that is between the setbacks of areas. 15 On the view yesterday we took a great deal of time to look at the impact of the proposed development in terms of views and that was in respect of Mr and Mrs Ford's property which is unit 3/94 Bower Street and the ground floor property at No. 194 Bower Street.

16 It is noted that there were other objections to the proposed development in the council's bundle. The Court also heard evidence on the view from the owners of No's 88 to 90 Bower Street, Mr and Mrs Carroll and their concerns related to view loss and/also and more particularly the bulk of the proposed building.

17 During the course of these proceedings which often occurs in matters such as this and it is clear that matters that come to the Court are often put under a greater microscope and have the benefit of a number of experts and it was clear to the Court during the course of the view yesterday that the proposed development should be setback further than the two metres that were the result of the amended plans yesterday. Mr Grech's report recommended a 3.5 m setback and at the end of the day an additional 1 m will provide for the maintenance of the important land/water interface, in particular the context of the water in terms of the cliff face and the rock platform at the end of Shelley Beach from the properties at No. 94 Bower Street. There was some discussion about the use of the rooms but at the same time this was clearly the valued part of the view from the premises of No. 94 and the applicant has agreed to set the development back an additional metre at the lower levels and an additional 2 m at the top level.

18 The Court this morning before handing down judgment raised with the applicant the matter of the imposition of bulk on the residence of No. 88-90 Bower Street. From the Court's inspection yesterday of the property it was clear that the third floor level was a building bulk that should be ameliorated in terms of the impacts on the owners of No. 88-90. In that regard the applicant has agreed to a condition which would reduce the top floor which would allow for the top floor to be set back an additional 2 m and in this regard I consider that this will represent a reasonable balance in terms of the development of the subject property.

19 In terms of the floor space ratio the proposed development is well in excess of the floor space ratio and with the amended plans it will be some .8:1, which is the current floor space ratio of the building on the smaller parcel of land.

20 I should have prefaced my judgment by saying the site has a total of 902 sq m, 809 sq m is where the current residential flat building is located and there is an additional drainage easement also owned by the same property owner, the Roman Catholic Church, which is to be added to the subject site yielding the 902 m; 92 sq m being in the drainage easement.

21 I notice in Mr Grech's report that he considered that the floor space ratio should be in the vicinity of the existing building and I also have regard to council's DCP which requires a .45:1 ratio.

22 These proceedings are proceedings which very much require a balance in terms of looking at the controls. A balance in my opinion is that the third floor level should be allowed despite the fact that it will exceed council's wall height. The proposed building is in the vicinity of 9.7 excluding the lift overrun and the provision in the DCP allows for a 6.7 m wall height.

23 However, I am satisfied having regard to all the factors in this case with the greater setback from the foreshore that the proposal provides for a balanced development. And in terms of a 0.45:1 floor space ratio in the context of this area and in terms of the floor space ratio yielded by the many developments or all the developments in the vicinity of the subject site it is not unreasonable to allow a higher floor space ratio.

24 I have given, as I stated, central consideration and focus to the DCP but I have also had regard to its overall objectives in particular the overall aims of the development control plan in terms of design, in terms of view sharing and I am satisfied that the increased height will not be a detriment provided the top floor is set back to provide what I consider reasonable amenity for the occupants of No. 88-90.

25 In terms of this application, it has gone through an evolution in terms of the Court appointed expert's concerns, which were partly addressed. I will say that I consider that the proposed development must not only be an exemplary development in its own right in architectural terms but it must have regard to the impacts on the adjoining properties and in that regard I do not believe that sufficient attention had been given to the impacts of the adjoining properties in the original architectural design of the building. 26 Whilst the design of the building as I stated in itself had merit, it must have regard and be neighbourly in terms of the impacts. For example, even in terms of the photo montage of the existing as opposed to the proposed, there is a tree located where one can see the residential flat building at the rear at No. 94 Bower Street and I am of the opinion that in terms of the views from that property that the proposed development with the amendments will satisfy the criteria for view sharing and the applicant being allowed to have an additional floor provides rather than the building being closer to the foreshore still provides development potential of the site without unreasonable impacts on views.

27 The impact on No. 88-90 the Court gave further consideration to overnight and allowing for the third floor decreases the impacts that would result from a building being erected more forward on the subject site but the third level must be set back further than shown on the plans.

28 It is understood that people's concerns with respect to new development or alterations and additions are about maintaining their amenity but at the same time the Court must have regard to the potential of sites in the context of the development controls provided for in council's planning regime. In terms of the property at No. 88-90 there will be an obscuring of some views from secondary rooms, however the main entertaining area will still enjoy expansive views to the water and the impact of the development in terms of its bulk will be reduced by setting the top floor back as discussed earlier.

29 The Court was handed up a recent decision of Payton Holdings Pty Limited v Manly Council dated 24/02/05 and in that judgment the Commissioner considered the DCP's objectives should be adhered to. I also note, this case is distinguishable from the case that I have before me here in that the impact on the foreshore in terms of SREP 23 was also a consideration in that matter, here there is no issue with respect to the impact of the proposed development on the foreshore or the public domain of Marine Parade. As I said this case to my mind is most distinguishable also in terms of the adjoining development, that is the residential flat buildings in the vicinity of the subject site and the dwelling at No. 88-90 that presents with greater bulk than a normal single residential house. The subject proposal has been designed architecturally such that it will complement the area the issues here are the retention of views on one side and the amelioration for the neighbours at No. 88-90 on the other and I am satisfied the proposal as amended will provide for a development that is reasonable and satisfactory in its setting.

30 In terms of the decision handed up to me yesterday, the Court is conscious of making consistent decisions and it is an important part of the administrative planning process, whether that be council's or the Court's and I am satisfied that it is distinguishable on its facts.

31 With respect to consistency, it also became a matter that was discussed during these proceedings and it would appear that council has not necessarily consistently implemented its development control plan. That does not mean that I do not give it proper consideration in these proceedings but it would appear that with one residential zone with the floor space ratios relate very much to perhaps a lower density residential area. The subject site I am satisfied is one that relates to Manly as opposed to the elevated part of Bower Street, Fairy Bower. I do note that the controls were amended as late as 2003 and it is an overall development control plan for the residential zone.

32 The Court in determining this application must have regard to the context of the development and what would be appropriate as well as regard to the objectives of the provisions of the DCP even if the numerical standards are not strictly complied with.

33 I am satisfied that the development as amended, which includes a number of conditions will be appropriate and does represent a balanced development in terms of maintaining amenity and views for adjoining properties. And in terms of providing a view corridor from Bower Street through to the water which is an advantage of the proposed development, although I will comment that normally one would not allow a vehicle crossing across the majority of the frontage of the site but given the benefits of the view corridors that are achieved it is appropriate and it is also appropriate that a condition of consent be to the effect that no covering of those car spaces should occur such that the objective of the design philosophy is followed through into the future.

34 The Court had the advantage of hearing evidence from the applicant's planner, Mr Vescio and also as I stated, the Court appointed expert, Mr Grech as well as Mr Ben Rourke, council's planner. Council also had the benefit of the expert evidence of Mr Vince Squillace, the architect for the proposed development.

35 The Court is most mindful in cases such as this that it does not interfere with the architectural integrity of the development and I am satisfied on the advice of Mr Squillace that the architectural integrity of the building is maintained by the amendments that have occurred during these proceedings or he is satisfied I should say that the architectural integrity is retained. And more importantly in terms of my assessment under the controls, the amenity and views from adjoining properties will also be retained and I consider that the proposed development represents a balanced development that will be an asset to the area.

36 The applicant has handed up a number of conditions and these are agreed conditions between the council and the applicant. One is that there be a deferred commencement to incorporate a number of design amendments that occurred during the proceedings and this includes: * the privacy screen to the western elevation of the northern deck to the first floor unit is to be deleted. * the screen to the eastern elevation of the northern deck to the first floor unit is restricted to a maximum of three metres from the northern face of the unit. * the louvres to the pergola of the first floor unit to project no more than one metre from the north edge of the deck. * the northern wall of the ground and first floor units shall be set back a further one metre from the northern elevation shown in plans, exhibit A and a courtyard to the unit shall be reduced accordingly. * the north wall of the second floor unit, that is the top level, shall be set back a further two metres - this will be achieved by a reduction in the length of the unit of one metre and by relocating the entire unit one metre south.

37 The council must be satisfied in terms of the deferred commencement that the amended plans reflect the amendments before the consent can operate. There are also conditions with respect to the landscape plans. A copy of the amended plans once approved by the council, must be forwarded for the Court's file and record.

38 On the basis of my assessment and with the benefit of the experts that gave evidence to the Court, and having the opportunity of viewing the subject premises and viewing the adjoining premises, I am satisfied the proposed development is one that does warrant approval.

39 Therefore the formal orders of the Court are: 1. The appeal in respect of the property at No. 92 Bower Street, Manly, is upheld. 2. The development application submitted to Manly Council and as amended is approved subject to a deferred commencement and other conditions contained in Annexure A. 3. The exhibits with the exception of Exhibits B, C and S are returned to the parties. _____________________ J S Murrell Commissioner of the Court Ljr/rjs

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.