Savage v Manly Council

CASES CITED: Zhang v Canterbury[2004] NSWLEC 500

APPLICANT Mr A. Pickles, barrister Instructed by Mr G. McKee, solicitor of McKee's Solutions LEGAL REPRESENTATIVES:

RESPONDENT Ms C. Schofield, solicitor of Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10227 of 2008 Matthew Savage v Manly Council This determination was given extemporaneously and it has been edited prior to publication

JUDGMENT 1 This is an extempore judgment for an Appeal under s 97 of the Environmental Planning and Assessment Act, 1979 against Manly Council's refusal of a development application for the semi enclosure of the existing hardstand area. When I say enclosure, this is by the provision of a roof, garage doors and security mesh to the hardstand apron area.

2 By way of background a residential apartment building has been erected on the subject site and was approved by this Court. There are three residential levels, each level containing a single unit. By way of background, (and I appreciate I must assess the merits of this development application) when the application for the apartment building was originally submitted to the Council, Council required an amendment such that basically the whole of the frontage of the site, some 15 - 16 metres be hard paved to provide parking for 6 vehicles. This is the amount of car parking generated by the development in accordance with the Council's development control plan which requires under s 3.9.4 for two car parking spaces for units of this size. At the hearing of the appeal for the apartments the parking arrangement was not an issue because prior to the previous hearing the applicant amended the plans to provide for 6 car-parking spaces across the full frontage of the site. 3 When the Court approved the original development application for the apartments I made the comment in the judgment that it is a most unusual circumstance for the whole of the street frontage to be used for car parking. However, as I stated this was not an issue in the proceedings. The Court at that time also commented about the need to provide a view corridor from Bower Street through to the water which was an advantage of the proposed development although as I stated in my previous judgment normally one would not allow a vehicle crossing across the majority of the frontage of the site. Given the benefits of the view corridors that are achieved it is appropriate that a condition of consent to the effect that there be no covering of those spaces so that the objective of the view corridor philosophy is followed through into the future.

4 The applicant has now submitted a new development application which he is entitled to do as there is no requirement that it be a s 96 application. This new development application is for the provision of garages across basically the whole frontage of the site. 5 The Court met on site initially with the parties and had the opportunity of inspecting the area in terms of the streetscape, in terms of the predominant built forms within the area. At that time the Court gave preliminary findings. The plan that was before the Court at the onsite hearing was one that provided for garage doors, albeit glass garage doors, across the majority of the site interposed by the front entry to the residential flat building: The Court expressed a preliminary view that the plan represented an overwhelming built form to the street and as such it was seen to be excessive.

6 The applicant sought an adjournment to provide for an amended plan which has come forward today and the respondent was also given the undertaking by the applicant that its costs for assessment of the amended plans would be paid. As such amended plan were submitted. This morning I have heard from Mr Steven Layman, a consultant architect town planner and Dr Richard Lamb, a visual consultant.

7 From meeting on-site the first day the Court also has the benefit of an understanding of the context of the site itself in which the proposed development will sit. There have been further amendments proposed to the plans today, however, the respondent still does not consider that the proposed plan before the Court or as to be amended, as shown in red provided by the architect Mr Squillace, this morning is not appropriate. The concerns remaining or contested by the Council are with respect to the garage doors for car spaces 3 and 4 which are in very close proximity to the boundary of the site. The Council contends that the requirement of the development control plan requires for front setbacks "shall relate to the front setbacks of neighbouring properties and the prevailing setbacks in the immediate vicinity and if there is no consistent or established setback, a 6 metre setback applies".

8 The Council also contends that the wall at the rear of the car spaces should be clad in sandstone for the entire length, that is car spaces 1, 2, 3 and 4. The applicant proposes that the sandstone cladding extend in front of car spaces 1 and 2 and that it is not necessary to extend in front of 3 and 4. 9 The Council also contends as a third issue that the finish of the floor surface of the parking spaces should be paving as approved originally. The floor of the current apron is washed aggregate and the applicant objects to this being changed to paving because of the fall / juxtaposition of levels with the footpath and considers that it is a better treatment, a preferred treatment architecturally to retain the washed aggregate.

10 This morning I have, as I stated, the benefit of hearing from the experts including the architect in this matter and the Court is conscious not to interfere with architectural integrity. However, the amendments that have been forthcoming this morning are considered to be consistent with the overall integrity of the development.

11 The Council has controls that the Court must have regard to, in its assessment in particular the Development Control Plan of 2007 for the Residential Zone 2007. This contains setbacks provisions and there are objectives to setbacks that are important to inform the controls. The objectives to setbacks are: - to maintain and enhance the existing streetscape, - to provide privacy, - to provide equitable access to light and sunshine, - to promote flexibility in the siting of buildings, to facilitate view sharing, - to accommodate planting including native vegetation and endemic trees, - to maintain adequate space between buildings and to limit impacts on views and vistas from private and public spaces. 12 Other controls in the DCP relate to car parking and access include: - To ensure adequate provision of accessible onsite parking for residents and visitors. - To ensure parking areas, carports and garages are designed as an integral part of the development to ensure vehicle and pedestrian safety, - To integrate access car parking and landscaping. - To ensure that all parking provision is designed and sited to respond to and respect the prevailing streetscape and - To minimise the visual impact of parking within the front setback area. 13 As I stated the Council required the 6 parking spaces be provided on site. In terms of the objectives for car parking that I must have regard to in the context in carports and garages are designed as an integral part of the development.

14 The other controls within the DCP that are of relevance to this development application are the maintenance of views. The objectives for the maintenance of views are: - To maintain continued access to existing views from public places - To minimise loss of views from adjoining or nearby properties and public places whilst recognising development may take place in accordance with other provisions of this plan; and - To maintain and share views with existing and future Manly residents. 15 There are a number of controls and these include: For the maintenance of views the design of any development is to maintain the views from neighbouring and nearby dwellings and from public spaces; and views between and over buildings are to be maximised and variations to side boundary setbacks are to contribute to the area. 16 In my assessment of this application and its evolution has been to maintain the view corridor. View corridors are an important part of the enjoyment of coastal locations in particular where there is steeper topography and the opportunity to provide for view corridors is important to maintaining the character of an area.

17 I am satisfied that the plan that has evolved will satisfy the provisions of Council's development control plan. The development control plan whilst it is discretionary I must at the same time give it central focus in accordance with the Zhang v Canterbury[2004] NSWLEC 500 judgment of the Court of Appeal and I am satisfied that the plan with the further modifications discussed today will provide for a view corridor; the sharing of views from the public domain. Vegetation has now been incorporated in the plan that was previously absent and the design in my assessment it will fit with the streetscape and also relate and to the building itself, as required by the development control plan. 18 The only area where there is a variation to the DCP which as I said is a discretionary matter in terms of the merits of the case is the 6 m setback and whether in fact there is an established setback.

19 From the site inspection I could see that there are many garages that are near the boundary of the footpath with Bower Street and the dwelling houses are set behind to enjoy the views to the north over the ocean. The proposed garage for space No. 6 will comply with the 6 m setback. The entry and portico and landscaping with a glass roof has been relocated to be slightly setback from the boundary with the street. For car spaces 3 and 4 the garage door setback is minimal to the street and then for car spaces 1 and 2, apart from the roof structure over car space 2 to provide for an open carport, then the setback of 6 m to the wall is complied with. The major issue in the proceedings now is whether there should be garage doors allowed to spaces 3 and 4. 20 On balance in terms of an assessment of the application, having regard to Council's controls for garages and for setbacks and for view sharing, I am satisfied that the proposed plan with today's changes presents a balanced development in that the view sharing will still be available from or over the top of car space No. 1 through by a to the water from the street and the streetscape is not dominated by a built structure across the width of the site on the boundary. The garage doors are to be transparent glass and I am satisfied they will not overwhelm the streetscape and they will represent a smaller element in the total context of the street frontage. They also fit in with the built form behind of the residential apartment building and they are significantly removed from the frontage of the side boundaries.

21 I am satisfied that the elements now contained within the amended plan and to be further amended, to include appropriate landscaping. The further setting back of the roof form for space 5 and the fact that there is no roof form over car space 1 will represent a development that is not inconsistent with the streetscape and will sit comfortably in the streetscape in terms of its overall context and in terms of its relationship to the existing residential flat building and adjoining properties. 22 With respect to the issue of sandstone cladding given the fact that there are opportunities from the public domain to view, perhaps in a limited way but to view the wall behind spaces 3 and 4 and in terms of the overall presentation the sandstone cladding should be provided behind car spaces 3 and 4.

23 A Figure 1 is the amended plans. This shows a relatively open structure even though there are doors in front of spaces 3, 4 and 6. There are open gates in front of the other spaces that is spaces 1, 2 and 5 of a low level. The divisions between the spaces is to be of a see through construction that is wire mesh or something to that effect with the opportunity of viewing through.

24 With respect to the floor finish I am satisfied that the floor finish as we see on the site today, that is the washed aggregate, is passive and in fact it has the advantages of being more seamless but still identifying the private and public domain with the driveway and footpath. The difficulties of paving also would be apparent and in terms of the relationship with the sandstone wall at the rear that will become more the feature the floor finish is passive and will not detract from the other finishes or compete with the finishes of the sandstone as such. 25 The parties generally have come to an agreement with a number of the conditions. There are some that are outstanding and as such an amended set of conditions is to be provided to the Court.

26 On those conditions that are not agreed upon: - Condition 10, the toilet facilities, that can be reworded to the effect that the existing toilet facility on site is to be accessible. - Condition 11 is deleted, that is for the occupation certificate because there is another condition further down which ensures that the works will be carried out in accordance with the plans. - Condition 16, where any excavation extends, that is deleted because it is not relevant. - Similarly condition 17 is also deleted for the fact that the works do not involve require same. - With respect to condition 19 an adequate security fence is to be erected around the work area. That has been agreed to between the parties prior to commencement of construction works delete excavation. - Condition 20, that has been agreed to. - Condition 23 requires an amended stormwater management plan. Clearly the roof structures will need to drain into the existing infrastructure on the site. - Condition 24 is unnecessary because the hard paved area is already in place and there is no natural overland flow as such. - Condition 25 concerning footings is not required and is not relevant to this development application. - Condition 29, all disturbed surfaces on the land revegetated. That condition is not required. - Condition 30 referring to the felling, lopping, topping and ringbarking of trees. There are no trees, therefore this that is not required. There shall be a condition that the works will not interfere with the adjoining trees on the adjoining properties. In fact that might be picked up by condition 32 in any event. So condition 32 does provide for that. - Then the sediment erosion control plan is one that has been discussed previously that requires the amendment as such. - Condition 37 is to be reworded such that it states a final occupation certificate must be obtained from the principal certifying authority upon completion of works to verify they are in accordance with the approved plans. - Then part of condition 40 for the protection of the public stormwater system is to be referred to in condition 33 requiring the amended sediment plan. - Condition 45 can be deleted due to plann amendments. - Condition 46 the flue is to be amended and in fact should be shown in the amended plan. The existing flue proposed and the words have been agreed to between the parties such that it will be adjacent to the door jamb on the northern side between spaces 2 and 3. - Condition 49 can be deleted. - Condition 50 requires the planter to be constructed in masonry and remains. - Condition 51 can also be deleted. - Condition 52 is to be reworded such that it is clear that the roof structures do no extend across planter boxes in terms of viability. - Condition 53. I have already made a determination on it in terms of my judgment: they shall be finished in sandstone facing. So that is to remain. - Condition 54 is to be deleted because the existing surface is suitable. - Condition 55 is to be deleted because in my assessment the garage doors for spaces 3 and 4 represent a development that is suitable in the circumstances of this case having regard to the statutory framework including Council's development control plan which I must assess the application under. 27. I propose to issue the orders on receipt of a plan which incorporates the marked up red version that Mr Squillace has provided this morning. Exhibit F is the marked up plan and some of those conditions need to be shown on the amended plan such as the masonry planter boxes et cetera. Any conditions that can be incorporated into the plan should so be done to ensure there is certainty in the execution of the plan in particular in terms of the condition which requires the final certificate to be in accordance with the plan and that would also include the flue, for example. It is a minor matter but it is something that is in your face so to speak. On the receipt of the amended plans then Council is to amend the conditions in accordance with the determination here this morning and include the new numbered plans. 28. Therefore on the basis of my assessment the formal orders of the Court on the receipt of the amended plans and on the receipt of the amended conditions will be: 1. The appeal in respect of the property at 92 Bower St, Manly is upheld. 2. The development application submitted to Manly Council and as amended is approved subject to the conditions in Annexure 'A'. 3. The exhibits with the exception of 9 & F are returned to the parties.

          J.S. Murrell
          Commissioner of the Court
          kb/ljr

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