Stockland Development Pty Ltd v Manly Council

LEGAL REPRESENTATIVES: D P F Officer QC/C J Leggat/B J Saunders (Resp) Abbott Tout (Sol - Resp)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10428/04 STOCKLAND DEVELOPMENT PTY LTD v MANLY COUNCIL

JUDGMENT 1 HIS HONOUR: Before the Court is an application to redevelop the site which is generally known as the Balgowlah or Totem Shopping Centre. The shopping centre and the additional lands, the subject of the application, comprise the majority of an entire suburban block in Balgowlah bounded by Sydney Road, Condamine and Griffiths Streets and Woodland Street North. Adjoining suburbs include Manly Vale to the north, Clontarf, Balgowlah Heights and Seaforth to the south, and Manly and Fairlight to the east. 2 The site is irregular in shape and has a total area of approximately 2.8 hectares. The site slopes from the south-western corner at Woodland Street North down to the north-eastern corner at Condamine Street. The level changes from approximately RL45.7 AHD to RL24.62 AHD. This has been calculated as a fall of approximately 13 metres in a northerly direction along the Condamine Street frontage and a ten metre fall from Woodland Street North to Condamine Street North. 3 The site has the benefit of frontage to all four of the surrounding streets. There are minor frontages to Sydney Road and Griffiths Street. It is proposed to provide retail buildings at 360 Sydney Road with a car entry point and baby health centre. The frontage to Griffiths Street provides the main car park entry to the shopping centre via a concrete ramp system. The major street frontages of the site are to Condamine Street and Woodland Street North. 4 The site also has the benefit of an existing laneway, which currently runs from Sydney Road through to Condamine Street. It is presently used as a service lane for the commercial properties fronting on to Sydney Road. The existing car park access to the site from Sydney Road uses an access ramp system, so that Griffiths Street appears to continue this laneway in a north/south direction. 5 The general area is characterised by rectangular allotments oriented in either a north/south or east/west direction. They are of a fairly standard size. Where the development adjacent to or surrounding the subject site is not commercial, it is generally residential, comprising either residential flat buildings or single dwelling houses. The site is a prominent one. The buildings on the site can be seen from significant distances to the north, north-west and north-east. 6 The site has the benefit of public transport through a Government bus system and is located in a situation convenient to many local residents who may either access the site on foot or by motor vehicle. The site is presently developed with a shopping centre, club and other facilities. The shopping centre has performed the function of a district centre with a supermarket for a number of years. It is accepted by everyone involved in this case that the centre is appropriate for redevelopment. 7 The proposal before the Court involves the demolition of all of the buildings on the site and the construction, substantially below ground, of a new shopping centre comprising two major supermarkets, together with some 65 specialty shops. It is also proposed to provide a public plaza, to rebuild the Masonic Club, and to provide approximately 794 car parking spaces. 8 The shopping centre, together with its associated car parking, is proposed to rise to the level of a concrete podium, above which it is proposed to erect 250 dwellings and associated residential facilities including approximately 376 car parking spaces. I note that some of the evidence suggests that there will be 260 dwellings, however I can identify only 250. The difference between those two numbers is not of significance in the ultimate resolution of this matter. 9 The residential development is comprised of townhouses and residential flats, including a number of taller buildings, of which the tallest will be 11 storeys in height. The tall buildings are located generally to the southern end and towards the centre of the site in a location which, as I will later explain, was identified as suitable for taller buildings when detailed planning was considered for the site. 10 I have heard this matter together with Commissioner Bly, who has assisted me in understanding and resolving the relevant issues. The matter was the subject of case management conducted by the Senior Commissioner, during which a large list of issues was reduced to eleven matters. During the course of the proceedings the issues have been further narrowed and, although of great significance, fall into a fairly narrow compass. 11 The eleven issues identified by the Senior Commissioner are as follows:

1. Floor space ratio. 2. The height of the proposal. 3. The internal amenity of the residential component of the development. 4. The lack of retail facilities on Condamine Street. 5. The treatment of Lane 34. 6. The design of access points to the site including the urban design of the proposed plaza. 7. The appropriateness of the design of the Woodland Street facility. 8. The impacts on residents to the north in terms of privacy and visual impact. 9. The SEPP 1 objection. 10. Open space. 11. The Condamine Street trees. 12 The issues which have proved of greatest significance in the course of the hearing, and which are critical to the determination of the application, are issue number 2, the height of the proposed development, and issue number 8, the impacts on residents to the north. Issue 8 must be considered together with issue number 9, the SEPP 1 objection. There was some evidence given about the situation in Condamine Street, but that is not critical to the resolution of this appeal. 13 The site is controlled by Manly Local Environmental Plan 1988. Under that plan, land on the eastern side of the site is zoned for business purposes (Zone No 3 Business Zone) and a smaller portion of land on the western side is zoned for residential purposes (Zone No 2 Residential Zone). The Local Environmental Plan does not contain any height or floor space controls. Residential accommodation is permissible in the business zone. 14 The Local Environmental Plan was amended in 2002 to extend the business zone and also to provide for car parking associated with the shopping centre to be developed on the residentially zoned land on the western part of the site. This amendment was consistent with the expectation of a detailed planning study previously completed for the site. 15 Pursuant to Schedule 5 of the Local Environmental Plan, strict controls were provided so that any basement car parking must comply with the following terms: "(a) the roof of the car park: (i) does not exceed 2 metres above the existing ground level, and (ii) is graded back to the existing ground level between 182 and 172 Woodland Street, Balgowlah, and (b) vehicular access to the car park (other than for residential purposes) is prohibited from Woodland Street." 16 The form of the design of the current application has the consequence that the car park exceeds the two metre height limit by a maximum of 1.9 metres. The proposal also provides for residential car parking to be incorporated above the parking associated with the shopping centre, with the consequence that although set back, the car parking structure will appear as a mostly three storey structure when viewed from the north. 17 The site is also controlled by two development control plans. The first Plan is the Council's Development Control Plan for the Residentially Zoned Land within Manly ("Residential Development Control Plan"). That Plan was adopted in May 2003 and replaced an earlier Local Environmental Plan originally adopted in 1986. The 2003 Residential Development Control Plan accepts an increase in the availability and variety of dwellings as necessary in Manly to enable population growth. Many years earlier the Council had itself identified the potential for residential growth in four large blocks, one of which includes the site of the proposed development in the Balgowlah area. Within those four blocks, the residential strategy contemplates 190 dwellings. The Residential Development Control Plan identifies the residential land on the subject site as being within Residential Density Sub-zone 4 (1 Unit/300m²), where a maximum floor space ratio of 0.5:1 is provided. 18 When calculating the floor space ratio of any existing or proposed building, it is necessary to have regard to the definitions within the Residential Development Control Plan, including the definition of "floor area." That definition provides: " floor area means the sum of all areas of a building or buildings on a site within the outer face of external and enclosing walls, or in the case of carports the outer face of support structures, measured at a height of 1400 mm above each floor." 19 "Floor area" is further defined as including garages and carports, but does not include: s "columns, fin walls, sun control devices and any other elements, projections or work outside the general line of the outer face of the external wall s balconies, decks or unenclosed verandahs s lift towers, cooling towers, machinery and plant rooms and associated ancillary storage space and vertical air conditioning ducts s basement car parking (ie no more than 1m above existing ground level) needed to meet the parking requirements of the Council and any internal access thereto s space for loading and unloading of goods as required by this DCP." 20 The Residential Development Control Plan includes a definition of "maximum wall height", but that plays no part in the determination of these proceedings. 21 The business component of the site is controlled by the 1989 Manly Development Control Plan for the Business Zone ("Business Development Control Plan"). The Business Development Control Plan, which has been amended on a number of occasions, provides separate controls for each of the business areas within the Manly Council area. Accordingly, controls are provided for the Manly town centre, with separate controls for the Balgowlah shopping centre and other areas. 22 With respect to the Balgowlah shopping centre, a maximum floor space ratio control of 2:1 is provided. That control has to be understood in light of the definitions within the Business Development Control Plan, which include the definition of "gross floor area." That definition provides: " 'gross floor area' shall be as defined in the Environmental Planning and Assessment Model Provisions 1980, being the sum of the areas of each floor of a building where the area of each floor is taken to be the area within the outer face of the external enclosing walls as measured at a height of 1400 millimetres above each floor level excluding: (i) columns, fin walls, sun control devices and any elements, projections or works outside the general line of the outer face of the external wall; (ii) lift towers, cooling towers, machinery and plant rooms and ancillary storage space and vertical air-conditioning ducts; (iii) car-parking needed to meet any requirements of the council and any internal access thereto; (iv) space for the loading and unloading of goods." 23 There is a note to the definition which reads as follows: "Arcades and other types of thoroughfares which are available for public use at all times are not included as 'gross floor area' in the above definition." 24 There is also a height control which has been the subject of some controversy in these proceedings. It is contained in cl 2.2 of the Business Development Control Plan, which reads as follows:

" Building heights (1) The maximum wall height of a building shall not exceed 10.5 metres on street frontages. Council will consider a variation to this height on another part of the site where: (i) a greater height provides a better relationship to adjoining development in terms of fulfilling the Council's townscape objectives, and does not adversely affect adjoining properties in terms of loss of sunlight, views and privacy; and (ii) the Council agrees to the addition of plant rooms, lift overruns, and pitched roofs or the like." 25 The controversy relates to whether or not by prescribing the wall height, the Business Development Control Plan provides a control upon the height of buildings generally across the site. The applicant's submission is that although there is a control upon the height of a wall at a street frontage, once you have moved from that wall, even a short distance into the site, there is no control at all upon the height of buildings on this site. The Council's position is that the applicant has misunderstood the height control. It is submitted that the Business Development Control Plan should be construed so that the maximum height of any building, subject to the exceptions included in the clause at the street frontage, is 10.5 metres, and a line should then be extended from that point horizontally across the site. The consequence is that to the extent that the site, or indeed any site, falls from the street frontage, a building may rise more than 10.5 metres above ground level away from the frontage, but the building, subject to the exceptions, must not rise above the relative height provided for the building at the street frontage. 26 As I have indicated, the Business Development Control Plan provides height controls for areas other than Balgowlah. Examination of the control in relation to the Manly town centre is instructive. That town centre is of course comprised of both commercial and residential development, and there are many buildings which predate the Business Development Control Plan. Many of those buildings were constructed at a time when Manly was a significant holiday destination for country people. Since those days, development in the town centre has continued and there are many buildings which provide both residential and tourist accommodation. 27 The height control in the town centre is also expressed by reference to a maximum wall height of a building. The maximum wall height is said to be limited to 15 metres, with certain exceptions, but without reference to the street frontage. The exceptions include maximum building heights, which are indicated on a height control map. On that map, a height in metres, indicated by numbers, is provided in relation to particular parcels of land or a number of parcels comprising part or all of a block within the town centre. 28 In relation to the town centre, it is plain that it is intended that there will be a 15 metre height limit on any site unless particular provision is made for a different height on the map. The consequence is that even if the site falls from its street frontage, the 15 metre height limit must be complied with. In my opinion, the fact that some sites are identified for a height above 15 metres reinforces this construction of the control. There would be no point in providing for identified numerical controls unless this was the case. 29 With respect to the height control for the Balgowlah shopping centre, in my opinion the construction contended by the Council should be accepted. An examination of the terms of cl 2.2 of the Business Development Control Plan indicates that although a maximum wall height at a street frontage is defined, the exceptions extend to other parts of the site. There is no purpose in providing for exceptions expressed in this manner unless the expectation is that the 10.5 metre control, when properly understood, would otherwise apply to the site. That control does not provide a wall height at any part of the site, but rather a control fixed by the wall height on the street frontage, which may allow for a greater wall height on another part of the site if the site falls from that frontage. This construction of the control is confirmed by the consideration of a possible amendment of it by the Council in 2002. 30 I will shortly come to the consideration which was given to possible development of this site in 1999. However, in the course of consideration by the Council of a development application for land within the block affected by the Business Development Control Plan, but not part of the site, the Council apparently became fully aware of the consequence of the height control as expressed in the Business Development Control Plan. It was then recognised that although a control was provided on the height of the wall at the street frontage of 10.5 metres, because a site may slope away from the street, the wall height at the rear or side boundary of a property, which did not adjoin a street but rather another property, may be greater than 10.5 metres. 31 The Council considered whether or not the Business Development Control Plan should be amended so that the height control on any boundary would be confined to 10.5 metres. Although that suggestion was rejected, its consideration makes plain that the Council intended that the height control expressed in the Business Development Control Plan should provide for a limit on a building at a street frontage and, that height having been fixed, it would control the height of the building across the balance of the site. 32 I will come later to the precise form of the proposed development. However, it is plain that when construed as I have indicated, in many parts of the site the proposal exceeds the height control provided by the Business Development Control Plan by significant margins. The applicant has not attempted to justify the exceedences by reference to the exceptions in cl 2.2 of the Business Development Control Plan which would have allowed additional height where a better relationship to adjoining development can be provided and there is no effect upon sunlight, views and privacy. Nor is there any suggestion that the breaches of the height controls can be justified, being lift overruns, plant rooms, pitched roofs or the like. 33 In 1998 the Council commenced a process of consultation with the property owner and other persons about the appropriate development controls for the subject site. I infer that there was pressure at the time for redevelopment and, no doubt having regard to its present condition, there was a recognition by everyone that it was appropriate that the shopping centre at least be upgraded. As a consequence, there was a consultation process followed by the exhibition of two policy documents: the Urban Design Controls and the Urban Design Plan for the Balgowlah shopping centre. As recorded in the acknowledgments of the Urban Design Plan, it was prepared by the Planning Design and Environment Group of the Manly Council in association with the Balgowlah Rejuvenation Committee. Contribution and assistance from the Balgowlah Chamber of Commerce and a number of other persons was recognised. There was also involvement by the Mayor of the Council and a number of councillors. 34 The process of consultation and detailed consideration resulted in the adoption by the Council in March 1999 of both the Urban Design Controls and the Urban Design Plan. The more significant document in the resolution of the present appeal is the Urban Design Controls. In that document, the setting for the shopping centre is described and the intention is expressed that the urban design controls "ensure that the future development [of the shopping centre] is carried out in a manner that ensures the amenity of the Town Centre of Balgowlah is improved". The Urban Design Controls are said to be supplementary to the Manly Local Environmental Plan 1988 and the relevant Development Control Plans. It is also said that the Urban Design Controls are to be read in conjunction with the Urban Design Plan for the Balgowlah shopping centre. 35 The aims and objectives of the urban design controls emphasise the expectation of a high standard of architectural design. They also recognise the need to create public spaces and to deal with the street level facilities around the site. Various objectives are provided which include the desire to make efficient use of air space adjacent to public transport routes for residential and business uses, investigate opportunities to combine workplace with residence, enhance the urban frontage to Sydney Road, improve pedestrian access and incorporate basement car parking for commercial and residential development given the natural slope of the land away from Sydney Road. Finally, it is indicated that it is a desirable objective to take advantage of the north facing aspect of the site for upper level residential development. 36 Detailed consideration is given in the Urban Design Controls to the design controls necessary for the site. Particular consideration is given to building height and bulk. In cl 4.3 of the Urban Design Controls, it is stated that the building height and floor space ratio controls in the Residential Development Control Plan will apply to all land zoned residential within the area affected by the controls. However, the building height and floor space ratio controls contained in the Business Development Control Plan are to apply to the land zoned "Business", although "buildings to a height of RL58m AHD may be built in the area shown on Appendix - Dwg No. 5". Appendix drawing No.5 is an important document in these proceedings. It identifies the area where a building height of RL58 AHD is contemplated in cl 4.3. In fact that height is defined on drawing No 5 as 58.5 AHD, but nothing turns on that difference. 37 The Urban Design Plan also provides for maximum wall heights. On the northern boundary, a maximum wall height of 10.5 metres is contemplated and, after incorporating a setback to the street, a maximum height of 10.5 metres is also contemplated on the Condamine Street frontage. The residential zones are provided with maximum heights defined in relation to the residential zone on the north-eastern section of the site as 9 to 10.5 metres, and on the north-western section of the site as 6.5 to 8 metres. 38 There has been discussion in the course of this hearing of the purpose of the 58.5 metre maximum height control in the central section of the site. I am satisfied that this was defined by reference to the Telstra building which is of approximately that height to the immediate north of the site. It has also become apparent during the course of the evidence in these proceedings that a building to that height in the location proposed in the Urban Design Controls would allow for high rise development on part of the site which would not be visible to any significant extent in the immediately surrounding streets. Accordingly, although from a distance the site would be identified as having taller buildings on it, this would not generally be the experience of those using the adjoining streets. 39 The Urban Design Plan contains detailed provisions designed to ensure that when redeveloped, an appropriate urban environment is provided in and around the Balgowlah shopping centre. It is an important document in the resolution of the future of this site and the areas surrounding it, but its provisions do not play such a significant part in the resolution of the issues in this case. As I have indicated, the Urban Design Controls are more important in these proceedings. 40 Examination of all of these controls reveals the following matters. There was an expectation that there would be a redevelopment of the site at some stage which would involve a combination of retail development, commercial development and residential accommodation. On the area of land zoned for business purposes, the maximum floor space ratio was contemplated as 2:1, with a height control on the site defined by the level of 10.5 metres at the street frontage. As it happens, Condamine Street is the only relevant frontage for the purpose of the height control on the land zoned for business purposes. The Urban Design Controls contemplate that a building significantly in excess of 10.5 metres, in fact rising to RL58 AHD, could be developed in the centre part of the site. 41 It is also contemplated that there can be residential development on the north-western section of the site, which could be constructed over car parking, including car parking for the shopping centre, provided that car parking did not rise more than two metres above existing ground level. 42 I should have indicated that as a result of the adoption of the Urban Design Controls in 1999, it was also necessary to amend the Manly Local Environmental Plan to make shopping centre parking permissible on the residential land and also to extend the area of land zoned for business purposes in the manner I have earlier indicated. 43 During the course of these proceedings there has been some discussion between the experts about the floor space ratio generated by the proposal. In the residential zone it is agreed that the floor space, excluding the retail car parking which has been provided on that site, computes at 1.21:1. However, if the car parking which is proposed for the residentially zoned land but which serves the retail shopping centre is included, the number as agreed computes at 1.7:1. Included within that calculation is residential parking provided for the residents of the proposed high rise buildings which are contemplated on the business zoned land. Accordingly, a contribution is made to the floor space calculation by car parking provided on the residential land but which is intended to service development on another part of the site. 44 However, an analysis of the floor space ratio for the residentially zoned land demonstrates that it significantly exceeds the control provided in the Residential Development Control Plan which is 0.5:1. 45 On the business zoned land where the control is 2:1, including residential corridors and retail arcades, the experts have agreed the calculation is 2.168:1. There was debate as to whether or not the retail arcade should be included because of the note to the definition to which I earlier referred. It was submitted that the proposed development provides through this site a number of thoroughfares which, despite requiring the use of steps in some instances and being closed when the shopping centre is closed, nevertheless fall within the note added to the definition of "gross floor area" in the Business Development Control Plan. 46 I do not accept the applicant's argument in this respect. Although it will be possible to pass from one side of the site to another utilising some of the corridor or arcade areas within the shopping centre, in my opinion those facilities are designed and intended to give access to the shopping centre. They are not designed for the purpose of providing a public facility in the manner contemplated by the exception. This is apparent both from their design, some of them requiring quite a tortuous route to be utilised, and the fact that they are not intended to be available "at all times". No doubt the intention to close them when the shopping centre is closed is for good reason, but in my opinion that reason reinforces my conclusion that the area should not be exempt from the floor space calculation. 47 As far as the residential corridors are concerned, there was a suggestion that they should also not be included in the floor space calculation because they are open at either end in some locations. However, senior counsel for the applicant did not press that argument in final submissions. 48 The consequence is that the calculation of 2.168:1 is the appropriate floor space ratio in relation to the extent of development proposed in the business zone. I will comment later on the relevance of the floor space calculations in the ultimate decision, but a departure to that extent from the requirements of the Business Development Control Plan would not itself justify refusal of the application. However, the departure from the requirement of the Residential Development Control Plan is far more significant and needs to be carefully considered in the ultimate conclusion. 49 As I have indicated, in relation to matters of height, the urban design controls contemplate a variation from the Business Development Control Plan to allow a building rising to 58.5 metres in the central part of the site. The applicant has provided for three, or perhaps they should be described as four, buildings which breach this control. At its highest with Block A, the development is proposed to rise to 77.9 AHD. Block B rises to 74.9 AHD. Blocks D and E rise to about 60 AHD. The departures are significant and mean that there are in the order of five or six storeys of development which would not otherwise be anticipated for this site. The consequence is that the tower structures will be visible from the immediately surrounding streets, will rise in the order of 20 metres above the Telstra facility, and will become the dominant structure on the skyline when viewed from the north in various public and other locations. 50 With respect to the balance of the site, the 10.5 metre control provided in the Business Development Control Plan is significantly breached in many places. Although there are setbacks, the consequence is that when viewed from the north, the proposed building will have a wall height at a maximum of 10.5 metres on the north-eastern end which will be set back, above which there will be townhouse development, also set back to a modest degree, rising two storeys above the 10.5 metre control. Beyond those facilities there will be further residential development, being Block F, rising a further two storeys when viewed in various places from the north. As a consequence, the building will appear to be significantly greater than 10.5 metres in height. 51 Bearing in mind that the control is expressed as a wall height at the street boundary, the expectation would be of a wall at the boundary at the north-eastern corner, with the height control then extending back into the site maintaining a 10.5 parameter by reference to the street. That height control is consistent also with the height control contemplated for the residential development immediately to the north and the Urban Design Controls adopted in 1999, where, as I have earlier indicated, it was suggested that the appropriate height control in that zone was of the order of 9 to 10.5 metres. The expectation in all of the controls is that whilst allowing commercial development of the shopping centre site, the ultimate form of the development, including the residential development on that site, should be compatible with the surrounding residential properties. 52 On the north-western part of the site, the proposal will contravene the controls which have been imposed. In particular, as I have indicated, the car parking provided in that location, which is open car parking in a conventional structure, will rise to three storeys and, at its lowest level, will exceed the two metre control contemplated by the Manly Local Environmental Plan by almost 100 per cent. The appearance to the properties adjoining to the north at that end of the site will be of a three level car park, although components of it will be set back, above which there will be townhouse development. An examination of the plans, assisted by consideration of the model which has been tendered, makes plain that on that part of the site the development will appear to form a significant horizontal mass sitting above a three level car parking structure immediately adjoining residential development. 53 Evidence was given in the proceedings by a number of eminently qualified persons. In relation to the issues of greater significance in this case, evidence was given by Mr Armstrong and Ms Morrish who were called by the Council. The applicant called Professor Webber, Mr Shiels, and Mr Cady. Mr Armstrong has spent many years advising local councils but now operates independently and was engaged by the Council to consider and give evidence in relation to this proposal. Ms Morrish is the Director of the Urban Design Advisory Service of the Department of Infrastructure Planning and Natural Resources. She has previously spent time with the Sydney City Council advising in relation to urban design matters and is a qualified architect. 54 Professor Webber is well known to the Court and has had many years of experience within State Government and other instrumentalities in advising in relation to urban design and planning issues. Mr Shiels is an experienced planner having been the Director of Planning at Leichhardt Council and spent many years as a more junior planner at Woollahra Council. Mr Cady qualified in planning in 1993 and, after spending a short time in the public sector, has worked for a number of years in the private sector. Mr Cady was responsible for the Statement of Environmental Effects in relation to this proposal and has been involved in the development of the appropriate design parameters for a significant period. I infer that his involvement has been greater than that of either Professor Webber or Mr Shiels. 55 The evidence of each of the experts was tendered in written form and, during the course of the proceedings, oral evidence was received in the form of concurrent evidence. For that purpose, Mr Cady and Mr Armstrong gave evidence concurrently and then, on a separate occasion, Professor Webber, Mr Shiels and Ms Morrish gave evidence concurrently. 56 Concurrent evidence is now the accepted manner by which the Court receives expert evidence. Not only is it significantly more efficient than the conventional processes, but it allows the Court to engage in a discussion with the experts and for the experts also to discuss matters directly with one another. Experience has indicated this is a far more satisfactory way of understanding the evidence which each expert gives and is of far greater assistance than the conventional method of resolving whose opinion should be accepted. It proved to be both efficient and of very significant assistance in the present case. 57 I have considered all the written and oral evidence of each expert and will not attempt to summarise all of it in these reasons. However, it is appropriate that I shortly state the position advanced by each expert. 58 Mr Armstrong expressed concern about the height of the proposal, particularly the height of the tower buildings and the footprint which they will impose on the site. He believed they are not appropriate in townscape terms. He also identified some privacy and overshadowing problems from the tower. Mr Armstrong believes that the appropriate height limit on the site is the 10.5 metre limit provided in cl 2.2 of the Business Development Control Plan. He believes this to be the absolute height limit across the entire site. By reason of the breaches of this control, Mr Armstrong believes that unacceptable impacts are imposed, particularly on the residential properties to the north, where he says that although the height may be acceptable at the rear of properties near the Griffiths Street access way, the building will have a dominating effect as one moves towards Condamine Street. At the rear of the property, on the corner of Condamine Street, the overall height of the building will be up to 17 to 23 metres above ground level. 59 Ms Morrish was also concerned about the height of the towers, believing that the height control of RL58.5 AHD was struck by reference to the Telstra facility. She noted the extent of the non-compliances, indicating that although individually they may not seem excessive, she believes that the cumulative effect delivers quite a poor response to the context and surrounding development. In her written evidence she emphasised the fact that by extending the buildings to the height proposed, there would be a direct impact upon the surrounding streets from which, in many places, the tower sections of the buildings would be visible. Her concerns were that this would significantly alter the character of the area, which would lose its present scale of architecture and urban form. If the application was approved, she believed that the tower buildings would create an unacceptable intrusion of large buildings into the existing low scale character of the surrounding area. 60 Ms Morrish also indicated, about which there was no dispute, that towers at the height proposed would be highly visible from all the surrounding streets, as would the car parking structures proposed. She was of the opinion that the development as proposed would not be compatible with the existing residential development at the lower levels. She believes the podium level is too high as a result of the excessive floor space in the proposal and that this results in the topography of the site being asked to accept a development that is inappropriate for it. 61 Mr Cady finds the proposal, including the towers, to be acceptable. Adopting the view that the 10.5 metre wall height control did not express any control for the balance of the site, he had no concerns in relation to the proposed built form nor its relationship to the surrounding streetscape. Mr Cady believed that by the setbacks proposed on the northern boundary, the height of the development in that location would be satisfactory. He holds the view that the proposed towers would be appropriate as marking the significance of the shopping centre. 62 Professor Webber said that the towers of the height proposed are compatible, in the symbolic sense, with the role of the development as a district centre. He was also of the view that the towers would screen and/or mitigate the visual impact of the telephone exchange building and a building a little removed from the site on the other side of Sydney Road, which also rises to a significant height. 63 Professor Webber also said he did not know of the reason for the selection of the 58.5 metre level for the towers, and assumed this to be negotiable subject to compliance with the overall objectives of redeveloping the site. Professor Webber accepted that further excavation of the site would be possible to enable the building to be stepped down the site but, in his view, further excavation was not necessary, nor in his opinion environmentally desirable. He had a concern that it may be difficult to dispose of excavated material. 64 Mr Shiels said he knew of no rationale for the 58.5 metre stand other than that contained in the Environmental Services Division report dated 21 June 2004, which indicated that it was derived from the height of the Telstra telephone exchange building. Although not matching exactly the height of the telephone exchange, I have no doubt that the control was provided after consideration of that facility. Mr Shiels was of the view that the Telstra building is unattractive and not enhanced by the clutter of transmission structures on the top of it. He believed it would be appropriate if a higher, well designed building was located on the site in order to reduce the prominence of the Telstra structure. He believes that the proposed shopping centre would be a "facility and focus for shoppers in the immediate and surrounding Balgowlah area..." and that, from an urban design and planning perspective, there is compelling argument for "high, well designed residential towers on the subject site to provide the visual focus for the shopping centre on the subject site." Mr Shiels also believed that the podium level is at an appropriate height and was not concerned about the impacts from the development on the residential properties to the north. 65 As I have indicated, the car parking structure on the residential land breaches the two metre control provided by the Manly Local Environmental Plan. As a consequence, an objection was made pursuant to State Environmental Planning Policy No. 1 ("SEPP 1"). This objection was supported by the applicant's witnesses, but not by those witnesses called on behalf of the Council. 66 Evidence was also given about the appropriate configuration of the development in Condamine Street, the issue being the accommodation of tree planting in a safe pedestrian environment. In my opinion, this is a matter of detailed design which could be resolved at a later stage. However, care must be taken to ensure that an appropriate area is provided to allow the trees which are proposed to develop and mature, while ensuring a safe pedestrian environment. 67 Evidence was also given by a number of local people, some of whom had been involved in the process of detailed consideration which led to the creation and adoption of the Urban Design Controls and Urban Design Plan. Mrs Strachan, the owner of 111A Griffiths Street, gave evidence that she was concerned about the relationship of the proposed building to the northern boundary of the block. Mrs Strachan's property is located in the north-western section of the site. She believes that the proposal will have an excessive height and would be overwhelming. She was also concerned about noise from the car park, fumes on her property, and traffic in Griffiths Street. 68 Mr Engledew and his wife are the owners of 188 Woodland Street, on the corner of Griffiths Street. He was on the committee responsible for preparing the Urban Design Controls and the Urban Design Plan. He gave evidence that outside consultants were used to prepare these documents and of extensive consultation with relevant persons, including those responsible for the site. He indicated that the endeavours of those involved in the process of developing the controls was to prepare a plan which was intended to produce a friendly, safe and convenient district shopping centre. He indicated that from his involvement in the process, the heights in the plan were based on the need to maintain a village atmosphere for the centre and ensure that the proposal related adequately to its residential neighbours. He was concerned that the proposal would be out of context because of its absolute height and also the height and bulk of the buildings arising from the use of a raised podium to accommodate the shopping centre facilities. 69 Mr Jackman who lives at 1/126 Griffiths Street also gave evidence. His main concern was traffic safety and congestion resulting from increased traffic volumes in both Griffiths Street and Condamine Street as well as noise from vehicles using the ramp and headlights at night. 70 Mrs Lees lives at 11/20 Angle Street. She had three concerns. Firstly the excessive scale of the proposed building, secondly the excessive height resulting in the likelihood that she would lose some eastern ocean views, and finally the loss of the village atmosphere. 71 Mr Laybutt lives at 87 Curban Street, Balgowlah Heights. He supports the redevelopment of the site but says that the proposed intensity is unacceptable and is not in keeping with the character of the neighbourhood. He is concerned about the failure to comply with objectives of the various controls which results, in his view, in a scale of development inappropriate for a district shopping centre. 72 Mr Warburton lives at 25 Boyle Street. He gave evidence of his concerns that the development as proposed would significantly diminish the village character of the area. 73 Before turning to the resolution of the matter, I should mention some further aspects of the issue arising from the proposed interface on the northern boundary of the site. It is an important issue because on this interface the proposed development includes both significant car parking structures and residential development. The land is falling from the northern boundary of the site to the adjoining residential properties with the consequence that unless great care is taken with the height and bulk of development on the subject site, there is a potential to create incongruent relationships. 74 The design of the development on the western side of the proposed access from Griffiths Street is different to the design on the eastern side of that access and, as such, needs to be considered separately. That part of the site which comes to the north-western boundary is in the residential zone. The proposal presents to the adjoining residential development a varied configuration in terms of heights and setbacks but will mainly present as a partly open car park with three decks with north facing two storey townhouses above. 75 As I have indicated, in this location the amendment to the Manly Local Environmental Plan which permitted basement car parking for the shopping centre required the car parking to be confined to no more than two metres above the existing ground level. The car park exceeds this standard by just under two metres, although the 10.5 metre control imposed in relation to the business zone will not be breached on the boundary. However, the height of the total development in this location including the townhouses above the car parking, will extend significantly above 10.5 metres. 76 As I have indicated, a SEPP 1 objection has been provided which is supported by Mr Cady. 77 The applicant submitted that the purpose of the height control on the car park in this location was to protect the streetscape and was not so much concerned with the relationship with properties to the north. Accordingly, as the proposal did not breach the control at the street frontage, it was submitted that the SEPP 1 objection was appropriate. Both Mr Armstrong and Ms Morrish took issue with this position. Ms Morrish was particularly concerned about the inappropriate presentation of the car parking structures to the neighbouring residences. Those concerns were shared by the residents. 78 On the north-eastern boundary of the site, the proposal provides for an interface between adjoining residential development in the residential zone and the residential development sitting above the wall of the lower facilities on the subject site. The Business Development Control Plan contemplates a maximum wall height at the road frontage at this location of 10.5 metres. The applicant proposes to provide a wall along this boundary of maximum 10.5 metres at the north-eastern section of the site, which forms part of the basement car parking. The wall extends a distance of about 90 metres along the northern boundary, although it is of lesser height as it moves to the west. It is unarticulated and contains ventilation grilles associated with the car park. Above this wall, with a small setback, are two storey townhouses. Above those townhouses, with an additional, greater setback, there is another block of two storey townhouses. These townhouses will be at a height significantly greater than the 10.5 metre height control contemplated by the Business Development Control Plan. 79 The resident objectors expressed concerns about the nature of the proposal in this location and the scale of the development, especially the wall and the potential for overlooking from the residential apartments. Those overlooking problems are sought to be solved by providing louvres through which it will be possible to obtain an interrupted view in a horizontal direction but which would preclude looking down. 80 Mr Cady believes that the development in this part of the site is appropriate, although he accepts that it is bulkier than the adjacent existing residential development. However, he says that having regard to the height and setback requirements and the quality of the architectural design, the development will be appropriate. 81 A significant theme in the applicant's evidence was that the architecture of the proposed development is of a high quality and, in significant part, this justifies departure from the relevant controls. No issue was taken by the Council that the architecture is of a high quality. However, the concern is that irrespective of its quality, the impacts of a development of this size on the immediate and surrounding properties are such that it should not be approved. 82 Before resolving these matters, I should finally draw attention to the fact that at a time when consideration was being given to amending the Manly Local Environmental Plan to accommodate car parking on the residentially zoned land and allowing an increase of the area of the business zone, a concept plan for the site was lodged with the Council. That plan provided for a redevelopment of the shopping centre, including a single supermarket, together with a redevelopment of the Masonic Club and other facilities. It also provided for residential development above the shopping centre rising to a maximum height of five storeys in the centre of the site. A building of that height in the proposed location would have been located in the position suggested in the Urban Design Controls as appropriate for a higher level building and would have kept it at a height approximate to the Telstra facility. Otherwise, some two storey and four storey development was proposed. Because the proposal provided for less intense development, the relationship of the proposed development to the properties on the boundary was significantly different to that which is presently proposed. In particular, the impacts upon properties to the north were less than are proposed under the current plan. 83 Section 79C(1) of the Environmental Planning & Assessment Act 1979 provides the matters which must be considered in relation to all development applications. Of particular relevance in the present case are the following matters referred to in s 79C(1): "(a) the provisions of: (i) any environmental planning instrument, and … (iii) any development control plan … (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development... (e) the public interest". 84 I have already related the evidence relevant for consideration under s 79(1)(b) and (c). However, it is necessary before turning to resolve this matter to consider the correct approach to consideration of the Business Development Control Plan, the Urban Design Plan and the Urban Design Controls. 85 There is no difficulty when considering the relevant provisions of a Local Environmental Plan. Subject to the discretion to uphold an objection made pursuant to State Environmental Planning Policy No 1, a provision of any relevant environmental planning instrument must be given determining weight. The position is otherwise with respect to development control plans or any other detailed planning document adopted by the Council. However, in the present case, unlike many others, beyond the fact that the proposed development is permissible but for the control on the height of the car parking for the retail development in the land zoned residential, the Council has not provided specific controls on height or density in the Manly Local Environmental Plan. The Council's expectations for the site have been included in the development control plans and the urban design documents. 86 The role of a development control plan was recently considered by the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 at 386-387. The correct approach to consideration of, and the weight to be given to, a development control plan is assisted by the express inclusion of a reference to development control plans in s 79C of the Environmental Planning and Assessment Act 1979. In the early days of planning law in this State, that approach was defined by the decisions of the Land and Valuation Court and there are many decisions which deal with the role of development control plans and policies in the decision with respect to an individual development proposal. Some of them were considered by Lloyd J in Segal v Waverley Council [2004] NSWLEC 363: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-645; Hunter District Industries Pty Ltd v Newcastle City Council (1957) 2 LGRA 240 at 248-249; Shellcove Gardens Pty Ltd v North Sydney Municipal Council (1961) 6 LGRA 93 at 102; Crusade Construction Co Pty Ltd v Sutherland Shire Council (1961) 6 LGRA 372 at 376-377; Foreman v Sutherland Shire Council (1964) 10 LGRA 261 at 269; Boyce v Burwood Municipal Council (1964) 10 LGRA 280 at 282-283; Regent Project (No 6) Pty Ltd v Hornsby Shire Council (1970) 20 LGRA 316; Leeroy Television Service Pty Ltd v Leichhardt Municipal Council (1970) 21 LGRA 40 at 42-43; JOL Pty Ltd v Waverley Municipal Council (1971) 22 LGRA 152 at 155; Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303 at 309-310; Smith v Wyong Shire Council (No 2) (1980) 41 LGRA 202 at 212-214. 87 Consideration was also given to the approach to be adopted to a development control plan by the Court of Appeal in North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 and in the later decision North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23. These decisions, and others, provide the principles relevant to consideration of development control plans. In summary they are: · A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan. · A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation. · A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied. · A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies. · Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property. 88 The Environmental Planning & Assessment Act 1979 gave statutory recognition to development control plans. However, there was before that Act, and there remain, many cases where a council adopts statements of policy for its area, or part of it, which are not included in development control plans. They relate to many matters and may include master plans for sites or parts of a council area. They may be adopted after considerable public participation, detailed research and describe fundamental expectations of the relevant council. When there is a relevant policy which is not a development control plan, the question arises as to the approach to that policy and the weight to be given to it in the decision of the relevant council and in an appeal, if any, to this Court. 89 In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, Mason P discussed the role of policy in the consideration process. The President emphasised that environmental planning instruments are not "the only means of discerning planning policies or the 'public interest'" (at LGERA 210). 90 The public interest is expressly acknowledged as a relevant consideration in s 79C(1)(e) of the Environmental Planning and Assessment Act. It was similarly acknowledged in s 91 of the Act in its original form. It must extend to any well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan. 91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options. 92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows: · the extent, if any, of research and public consultation undertaken when creating the policy; · the time during which the policy has been in force and the extent of any review of its effectiveness; · the extent to which the policy has been departed from in prior decisions; · the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; · the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; · whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. 93 Evaluation of the evidence in the present case leads to the conclusion that the controls expressed in the Urban Design Controls must be given significant weight. Relevant matters include, firstly, the fact that they were adopted after a detailed process of consultation with the local community, including the owner of the site. Secondly, not only have the controls not been departed from but, where appropriate, amendments have been made to the Manly Local Environmental Plan to give effect to them. Thirdly, the controls were expressed to be, and are, complementary to the Council's adopted Business Development Control Plan. Fourthly, the controls allowed for a relaxation of the Business Development Control Plan in relation to the height of the high rise section of the development. Fifthly, the controls provide an appropriate planning outcome having regard to the scale of the development contemplated, the relationship with adjoining development, and, although marking the significance of the site, do not significantly alter the character of the surrounding area. The planning outcome provided by the Urban Design Controls was appropriate for a district as opposed to a regional shopping centre. Sixthly, the Urban Design Controls and Urban Design Plan were consistent with Council's adopted residential strategy. Finally, they are compatible with the environmental planning instrument and development control plans, including the Residential Development Control Plan, which controls residential development to the north. The controls in the Urban Design Controls allow for effective integration of the development on this site with the residential development to the north. 94 In my opinion, the opinions of Professor Webber, Mr Shiels and Mr Cady failed to recognise the significance of the Urban Design Controls and give appropriate weight to them. As I understand their evidence, each of them supported approval of the application because they believed that the design provided an acceptable solution for the site. However, none of them sought to compare the consequences of the proposed development with the more confined impacts of a proposal which complies with the Urban Design Controls. That analysis was undertaken by Ms Morrish and leads to the inevitable conclusion that if the height controls contemplated by the Urban Design Controls were met, the impact of the development on the immediate neighbourhood would be significantly diminished. 95 Where, as in the present case, urban design controls which may not have been embodied in a development control plan have, nevertheless, been carefully thought out after detailed consultation with relevant parties, a council should make decisions which give them practical application. Unless cogent reasons suggest otherwise, a council is also entitled to expect the Court to require development to conform to the adopted parameters. The evidence of the expert witnesses called by the applicant failed to acknowledge the significance of the Urban Design Controls and the role of detailed policy in providing for the orderly development of land which is, of course, one of the fundamental objectives of the planning legislation. Content to argue that the quality of the design of the buildings justified departure from the Urban Design Controls, they failed to appreciate the proper role of urban design controls in the planning process. 96 There is no dispute that the architecture of the proposal is of a high standard. However, the site provides a district business centre which adjoins and is surrounded by residences. All of the planning controls in the present site have been developed over a period of years and after detailed consideration of the acceptable level of development following a process of public notification and consultation with all relevant persons. The fact that the architectural design of this project is of high quality does not justify departure from any of those controls. Having regard to the care with which they were generated and their obvious purpose in protecting the amenity of the local area, together with the fact that they will so obviously achieve that purpose, departure from them cannot be justified. 97 As I have indicated, the development exceeds the floor space ratio controls in the Residential Development Control Plan. This is not itself a problem, but the excess is significant and is the result of the quantum of floor space proposed for the site. Ultimately, it is reflected in the impacts to the north and is partly a result of the excessive height of the tower blocks. With respect to both the eastern and north-western sections of the proposal, the impacts are unacceptable. 98 On the north-eastern section, the expectation is for a 10.5 metre high development on the site which is the same height as development contemplated on the adjoining residential land. This control is significantly breached by the proposal leading to overlooking, which is solved in an awkward fashion, and an overbearing building of entirely inappropriate scale. 99 On the north-west section, car parking is proposed to rise three levels above ground. The landscaping proposed is insignificant and, in my opinion, will be ineffective to screen the impact of the car parking structure. There would be noise, fumes and, in my opinion, an inappropriate relationship of multi-level car parking with the adjoining residential properties to the north. The expectation when the Manly Local Environmental Plan was amended was that there would be car parking in this location rising no more than two metres above ground. At that height, the car parking could be effectively screened and designed in a way which would make it compatible with the adjoining residential development. However, because of the need to provide parking on the land zoned residential for the dwellings proposed to be developed on the land zoned for business purposes, the proposal has provided a car parking structure entirely out of the character with that which was originally contemplated. 100 As I have indicated, there were other issues raised during the course of these proceedings including the design of Condamine Street but, having regard to my view in relation to the fundamental issues, it is unnecessary to resolve them. 101 In the ultimate, the proposal fails, both because of its disregard for the controls carefully developed after consultation with all relevant parties but also because of the impacts occasioned by the height and scale of the development which are unsatisfactory.

1. Appeal refused. 2. Costs are reserved. **********

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.