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[2013] NSWLEC 1099
Land and Environment Court (NSW)
2013-05-30
Original judgment source is linked above.
Mr Pickles (Respondent) Solicitors Lindsay Taylor Lawyers (Applicant)
Pikes & Verekers (Respondent) File Number(s): 10864 of 2012
Judgment 1SENIOR COMMISSIONER: In 1940, the Port Jackson and Manly Steamship Company adopted the description of Manly, what it described as Australia's premier seaside resort, as being "seven miles from Sydney and one thousand miles from care". For those arriving at that time, and more so now, on vessels to the wharf that that company would have used, there are a variety of options for temporal nourishment to supplement the spiritual nourishment provided by Manly. 2In these proceedings, an application by TMG Developments to supplement the options for temporal nourishment at Manly Wharf is in contest. Development Application 142 of 2011 was determined, under delegation by the Manly Independent Assessment Panel, by refusal. That application was described, in the development application itself, as the proposed development of the existing roof of Manly Wharf's eastern wing (to consist of four restaurants and their associated amenities and services). 3The relevant planning regime for this location comes through the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. Clause 2 of the plan sets out a variety of general aims in 2(1) and then, with respect to the Foreshores and Waterways Area, an area within which Manly Wharf is located (as the relevant map extract from the plan demonstrates), adopts a range of principles to be observed - one of which set out in cl 2(2)(b), is that the public good has precedent over the private good wherever and whatever change is proposed for Sydney Harbour or its foreshores. 4Whilst in these proceedings a number of submissions were made to me by Mr Galasso SC, counsel for the applicant, that to some extent there should be an implication of public good in the proposed development of these restaurants and that that should be something to be considered in the context of that clause, I am satisfied that, in reality, that with which I am required to deal is a competition between private goods - that is the good that is proposed by the applicant, and each of the relevant goods (to which I will come later) being those that flow from the views enjoyed from private developments on the northern side of East and West Esplanade, that being the road to which the wharf has frontage. 5I should observe, at this time, that there were a number of matters raised both in the written objections and in the course of the informal evidence given by objectors during the course of the site inspection, of matters that are completely irrelevant and outside the scope of these proceedings. 6The first of them is the concern expressed by more than one owner of property that the value of that property would be lowered as a consequence of approval of this development if it were to proceed either at all or in modified form. 7That is said to arise as a consequence of impact on views of those premises. 8Second, the proposition that was advanced by several of the objectors and discussed in a number of the written objections that the approval of any additional public eating facilities at this location would constitute some form of unfair competition or unacceptable burden on existing (and expected to be competing) premises of a broadly similar or analogous type within the Manly CBD/Corso area. 9Both of those matters are entirely, in the context of these proceedings, matters to be disregarded in consideration of the planning issues involved. 10As a consequence of cl 5 of the Regional Plan, Manly Council is the consent authority for the proposal. 11There are only two matters of definitional construction that arise in these proceedings, one of which is appropriate to be noted at this time for the purposes of disregarding an aspect of something that was raised during the course of the site inspection and at several other places in the material in the proceedings. 12Manly Wharf itself is a heritage item for the purposes of the Regional Environmental Plan. A number of the buildings on the northern side of East Esplanade are recognised by Manly Council as being heritage items of significance in the eyes of that council. However, the definition of heritage item that is contained in the Regional Environmental Plan makes it clear that only those matters that are swept up by that definition are to be regarded as heritage items and that those matters that are listed in the Manly instrument do not have any role to play in these proceedings. 13Although cl 7 of the Regional Plan is in the general form that provides for the supremacy of this plan in the event of inconsistency with any other environmental planning instrument, it is not said to me that there is any other relevant instrument that requires the invocation of that provision. 14As a consequence of the Regional Plan, a Sydney Harbour Foreshores and Waterways Area Development Control Plan has been prepared and has come into effect. It divides the areas that are covered by the plan into a series of landscape character areas. Manly Wharf, a photograph of which is used to illustrate landscape character type 8, falls within that landscape character area. The statement of character is in the following terms: These areas have a high level of built form with waterside commercial, industrial and residential uses. The commercial and industrial uses play an important role in terms of tourism and maritime services which support water-based activities. There are special features of these areas that contribute to the visual character of the area that should be maintained. 15The landscape character type 8 statement then sets out a series of four performance criteria, none of which, in my assessment, are engaged to any relevant extent by these proceedings. As a consequence, there are no matters (consistent with the guidance given by the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589) that arise from the Development Control Plan that need detain me in these proceedings. 16Clause 13 of the Regional Plan sets out some general aims for the totality of the area covered by the plan and states in (f) that "development that is visible from the waterways or foreshores is to maintain, protect and enhance the unique visual qualities of Sydney Harbour." With respect to the Foreshores and Waterways Area, specifically, cl 14 of the plan adopts in general terms in (d) that sentiment but does so in slightly different terms, it saying "development along the foreshores and waterways should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands and foreshores." Those give rise to matters to which I will return. 17The Regional Plan establishes a variety of zones, with the Manly Wharf being in zone W2 - Environment Protection. The zoning objectives for this zone are set out in cl 17 of the REP and they are in the following terms: (a) to protect the natural and cultural values of waters in this zone; (b) to prevent damage or the possibility of longer term detrimental impacts to the natural and cultural values of waters in this zone and adjoining foreshores; (c) to give preference to enhancing and rehabilitating the natural and cultural values of waters of this zone and adjoining foreshores, and (d) to give preference to enhancing and rehabilitating the natural and cultural values of the waters of this zone and adjoining foreshores. 18It is in the furtherance of objective (d), that is the long term management of those values, that this application comes to be considered in my assessment, the earlier objectives of the zone not being engaged. 19Clause 18 sets out development control in the waterways. It classifies nominated development types as being permitted without development consent, permitted with development consent, and development that is prohibited. One of the types of development consent that is permitted with development consent (thus is a nominated land use within the zone) is a "public water transport facility". "Public water transport facility" is defined as meaning any structure used primarily in connection with transporting the public by water. For those nominated uses that are permitted with development consent, including public water transport facilities in this zone, a lesser burdensome process is imposed as cl 18(2) does not apply to them. 20Mr Galasso submitted that that which was sought in this proposal constituted a public water transport facility and thus did not require to be assessed pursuant to cl 18(2). I am unable to accept that proposition. The structure for which consent is sought in these proceedings will not be used in any fashion whatsoever for the transporting of the public by water. 21To the extent that I might be wrong in construing the term "any structure" in the definition of public transport facility as being applicable solely to the structure for which consent is sought and that I should correctly regard it as referring to the totality of that which is encompassed in all aspects of the structures at the Manly Wharf, I am not prepared to conclude that the totality of that structure, in its present highly-commercialised form, and certainly not in the expanded form proposed by this application, could in totality be regarded as being used primarily, that meaning in my view dominantly, in connection with the transporting of the public by water. 22Therefore on whichever basis one considers the word "structure" in that definition, it does not in my view apply and thus the requirements of cl 18(2) of the Regional Plan are invoked. 23Clause 18(2) requires that I, acting as the consent authority, must be satisfied relevantly with two requirements for the development. Firstly, set out in subclause (a) that the development is not inconsistent with the aims of this plan or the objectives of the zone in which it is proposed to be carried out, and (c) will not otherwise have any adverse impacts. 24I have earlier set out what I consider to be the relevant objectives of the plan and the zone and with respect to those, save for the exception of the fourth objective in the W2 zone, none of them are in my view engaged by cl 18(2)(a). However, cl 18(2)(a) and zone objective (d) come together to require me to be satisfied that the development is not inconsistent with the long term management of the natural and cultural values of waters in this zone and its adjoining foreshores relevantly and then to move to 18(2)(c) with respect to other impacts. 25Division 2 of the Regional Plan sets out matters for consideration to assist me in this regard. It makes it clear, in cl 20, that the matters set out in the division are to be taken into consideration and are not mandated to satisfaction or requiring setting any elements of prohibition, merely that they are to be considered by me. Clause 21 deals with biodiversity, ecology and environment protection. 26These proceedings involve an area where biodiversity and ecology are of some considerable importance. The parties have entered into discussions about what might be appropriate conditions to provide relevant protections in satisfaction of cl 21 and those matter have, accordingly, been deferred if there were to be any need for argument about conditions relating to them. 27The primary matter that has arisen in contest in these proceedings arises out of cl 26 of the Regional Plan dealing with the maintenance, protection and enhancement of views. It is appropriate to set it out in its entirety. The clause reads as follows: The matters to be taken into consideration in relation to the maintenance protection and enhancement of views are as follows: (a) development should maintain, protect and enhance views, including night views, to and from Sydney Harbour; (b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items; (c) the cumulative impact of development on views should be minimised. 28There is in these proceedings there is no contest about the appropriateness of the proposed development when viewed from the harbour, nor is there any suggestion that cl 26(b) is transgressed in any fashion. 29It is appropriate to note at this point that, although the development application proposes a structure atop the eastern wing of Manly Wharf and shows a variety of layout of internal facilities within that, the matters that are of concern to the council do not relate to the internal fitout or arrangement of facilities within that space. The concerns are related to the impact of the overall envelope of the structure that is proposed and of the plant rooms that are to serve it. 30As a consequence and in light of the evidence given by Mr Poole, architect for the applicant, that all external ventilation required could be accommodated in a fashion that did not required ducting on the roof of the proposed built form but could be accommodated entirely internally with the only manifestation being vertical venting of some form in the northern face of the plant room structure, I am proceeding to consider this application solely on the basis of the external envelope and external visual impact of that which is proposed and do not pay any heed of any particularity to the internal layout (as that is not a matter of contention in these proceedings and indeed might at some future time be the subject of further application to the council in light of this decision). 31During the course of the site inspection, we visited a number of premises that overlook the site and look to the sides and beyond the site both to its east and west. These are the ones that would require consideration in the terms of cl 26(a). There is a tension in the wording of cl 26(a) - in that it is difficult to understand how something that can merely maintain can also enhance, that provision being in the cumulative rather than in the alternative. It is also difficult to understand how, if the objective exhorted to be considered as a consequence of cll 20 and 26 is the maintenance, protection and enhancement of views, there can be any cumulative impact of development on view as discussed in cl 26(c). 32Mr Pickles, counsel for the council, valiantly attempted to persuade me that the cumulative impact on views might be to views of other aspects of the environment in the vicinity outside the foreshores area. I would find it a strain on the language to adopt that concept. 33I therefore propose, given that it is a matter that is required to be taken into consideration rather than to be invoked as some form of mandatory prohibition, to consider the proposed impacts on the views and then, having done so, to return to consideration of how any impact that is identified fits within that which is mandated in cl 18(2)(c). 34From our site inspection I am satisfied that the impacts on views can be divided, generally, into four categories. 35The first is those properties that are at the eastern end of the East Esplanade area that we inspected commencing with the apartments in 40 East Esplanade. Those apartments, particularly the lower one of them, would significantly have its view impacted to the south across what is the existing flat roof and plant area of the structures at the level proposed to be developed. I should note, that during the course of the site inspection, we had the advantage of height poles and string lines to show the various roof elements thus enabling an assessment of the view impact not only in elevation but also in perspective. Although the view from this location, at its western edge, is to some extent obscured by one of the iconic Norfolk Island pines for which Manly is famous, nonetheless there would be a significant impact on the view - particularly from the lower of those two apartments. 36I had the benefit of a written report from Mr Wyatt, visual impact assessment expert for the applicant, and Mr Layman giving similar evidence on behalf of the council. Mr Wyatt considered that this impact was moderate and Mr Layman considered that it was moderate to severe. 37My own assessment from the site view was to tend to accepting the view of Mr Layman. But even if Mr Wyatt's position were correct, I do not consider that a moderate impact on a view could be regarded as minimisation, that is something that is perhaps more appropriately adopted for those impacts that Mr Wyatt accepts should be categorised as minor. 38The next section of views are those from the properties that, in effect, enjoy a limited view because of the screening of vegetation directly to their south, vegetation that either has or will reach significant maturity and which will, when completely matured across all the plants that are planted (including a number of presently immature banksias and other vegetation), be significantly obstructed through the middle portion of the site but still retain views to the east and west around the vegetation. 39To the extent that there might be an impact on filtered views that are directly to the vegetation both present and future, I am satisfied that that impact on that element of the view is appropriate to be regarded as minor (and tending toward de minimis over time), as the dominant aspect will be of one to greenery in the immediate foreground rather than to any filtered elements of what might lie behind - the structure and waterway. 40The third views are those that are further to the west and come from commercial premises that are in 46-48 The Esplanade. They have limited views to the south-east and east, much of which is obscured by present vegetation or will also be obscured by future vegetation as it matures. However, they have valuable views almost directly to the south over the top of the present structure to the land water interface at Dobroyd Point and at Middle Head. The leading edge to the south of the western end of the proposed development will significantly obscure, if not entirely eliminate, the view of that land water interface, an interface identified by Roseth SC in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 as being a particularly valuable element of a view. Their views, however, to the south-east through the vegetated area as it matures, in my view, do not warrant significant consideration for reasons for which I have enunciated in the second of the categories of viewing location. 41The final viewing location are those that commence with the views from the residential premises at 50 East Esplanade and then continue westward to views from the apartments on West Esplanade, at 54 West Esplanade from which inspections were made. Those views are primarily views dominated by the view to the immediate south or south-west where expansive views of the harbour - including views over the Manly swimming enclosure interrupted only by the iconic Norfolk Island pines - are available of the water and the foreshore land water interface beyond. I do not consider that the impact on those views is of any significance as the valuable part of those views from the primary living areas involved will be impacted to a minor extent and that the most valuable elements of those views will be maintained. 42That leads me to a consideration, as I foreshadowed during the course of the proceedings, of how I might address the proposal through what is described as the amber light approach, that is asking myself first the question is the development as proposed capable of being approved, a question for the reasons I have outlined with respect to the view impact on the first and third viewing segments is to be answered in the negative; then to proceed to asking myself the question in light of that negative finding is there any form of the application capable of being granted approval with alterations imposed by me that are alterations capable of being made within the scope of the present application. 43I asked the advocates for the parties to address some broader propositions which were put to both the visual impact experts and to Mr Poole concerning adjustments to the width of the development at both its eastern and western ends, a matter to which in detail I will return shortly. The advocates were asked to what extent would it be appropriate in the amber light process to engage in change. 44As I understood their positions, Mr Galasso, in addition to pressing for approval of the totality of the development as submitted, indicated that something that was lesser, indeed as I understood him to the approximate of fifty per cent or so of that which was sought, would not warrant being treated as constructive refusal and would be a development consent that his client might take up. 45The proposition, as I understand it, from the council is that intervention with the application to that extent was possible to be undertaken within the scope of the present application such alterations being purely ameliorative if to be required. 46I am satisfied that it is not acceptable to permit development at the eastern end of the proposed roof form to any extent that goes beyond the level of the distance of the eastern wall of the existing plant room. To do so would be to have an unacceptable impact in my view even assuming Mr Wyatt's characterisation of the impact on the views from those premises on East Esplanade were to be adopted in preference to the impacts suggested by Mr Layman. Even on that basis, taking the applicant's case at its highest for that element of the development, it is unacceptable. However, in addition I should indicate that particularly from the perspective of the lower of the two residences at that location, I accept that Mr Layman's classification of the impact of the views from that point is more appropriate than that of Mr Wyatt (although I do acknowledge the assistance that I and others have obtained from Mr Wyatt's photo montages, ones that I have found of significant value, not only in these but in other proceedings involving similar issues). Thus, as a consequence, I do not believe that I can approve the development, any development within an envelope that extends beyond that point. 47More problematic is what is to happen at the western end. During the course of the discussion with Mr Poole whilst he was in the witness box, I canvassed with him a variety of matters relating to access to and from any development that might occur in the location for which consent is sought. I am persuaded by his evidence that it is not possible, in a human circulation and design integrity sense, to remove access to the roof area from the extended lift and new entry stair area that he proposes. These areas, however, can have a lower roof line than that which would be necessary for the remainder of the development and thus reduce the impact of that element of that which is proposed. 48Far more problematic is the question of the majority of the area in proposed Restaurant 1, the southern leading edge of which on my assessment would have a significant impact on the land/water interface views from premises on the northern side of East Esplanade and the vicinity. Although Mr Layman postulated that a better outcome, if there were to be development, would be moving it to the west rather than having it across the totality of the form of the building and Mr Galasso submitted that I should pay less regard to the developments whose views would be impacted as a consequence of permitting Restaurant 1, as it is described in the plans, because those premises to the north of the East Esplanade were commercial premises. 49I am not satisfied that the Regional Environmental Plan makes any distinction at all on the preservation, maintenance or enhancement of views from residential premises in preference to the application of that provision to the views from commercial premises. I am therefore persuaded, despite Mr Layman's view and Mr Galasso's advocacy, that it is not appropriate to permit any development, apart from the entry area necessary for accessing the upper spaces, that would be to the west of what is described as the goods loading area. 50I am, however, satisfied that between those two areas where development is unacceptable there is a zone where development is acceptable and that such development would enable me to be satisfied that the development would satisfy the provisions of cl 18(2)(c) because there would be no adverse impacts or at least none beyond de minimis as a consequence of the existing and future vegetation that would screen such development from premises to the north on the other side of East Esplanade. 51In order to assist the parties and those who might read this judgment to understand the nature of what I am describing I have prepared a diagram which I made available to the parties and which is reproduced below: 52The above diagram notes four areas. Those two that are marked in blue outline and crosshatching are areas where there is not to be permitted any development and that includes at the eastern end the removal of existing structures on the roof and their incorporation, as is intended as I understand it, in the plant room facilities along the northern edge. That will in fact provide some compensatory relief for those premises at the eastern end and will enable, in a quite unintended form, some modest enhancement of views in furtherance of the objectives contained in cl 26(a). 53At the western end, that which is marked in blue hatching, is also similarly to become flat surface whilst the green area, the area that requires to be roofed for access purposes, is to be consistent with that which was discussed with Mr Poole in his evidence where he indicated that it could be of a modestly lower roof height than that which was proposed for the restaurant areas, could be of a comparatively lightweight superstructure and could be roofed in clear glass. That is the nature of that which would be acceptable in that vicinity and it provides shelter from the elements for those accessing the proposed development that would be acceptable both from the lift and from the proposed entry stairs. The fourth area that I have marked is one that I have marked with an orange circle merely to indicate that it is an area that may require further consideration by the architect in any internal layout redesign is the removal of the blue hatched area at the eastern end leaves what I might describe as orphan elements in that vicinity. 54It is, in my view, dealing so far solely with the visual impacts appropriate to permit development within the area between the two inner blue lines of the crosshatched area. Doing so, in my view, consistent with the evidence given by Mr Marshall, the council's traffic expert, was that if there was to be a limitation on the area of development of that general nature, the parking requirements were satisfactory subject to the resolution of contributions matters that arise out of the Manly Council's provisions in that regard. 55In light of that evidence, it seems to me that it is unnecessary strictly for me to deal with the competing technical arguments about parking spaces and the like. But to the extent that it may provide assistance to the parties in any discussions that they need to have as a consequence of this decision, I am satisfied that the appropriate guidance to be received for the purposes of parking rates would be those that have recently come into effect in the Manly Development Control Plan for the business zone. I am unable to, and indeed have no desire to, commit mathematical errors by attempting to assess the serviced area within the lines that I have delineated - merely to indicate that, in whatever plans might arise as a result of this decision, there should be a capability to assess what is the serviced area for the purposes of applying a rate of one parking space per forty square metres of service area for guidance to the parties in resolving any outstanding matters of that nature. 56There are two other matters to which I need turn. The first arises as a consequence of the matters raised by Leading Senior Constable Orrick in her jointly authored letter to the council of 20 July 2011 in which the police set out a variety of concerns about the proposal. The one that I particularly address, in the first instance, is that which relates to noise issues. I have had the advantage of a joint acoustic report from Mr Cooper (for the applicant) and Mr Murray (for the council) in which they have agreed that, on the broader proposal to which I have referred, (the totality of that for which application has been made), acoustic impacts can be dealt with by appropriate conditions. 57Given the nature of the scope that is acceptable on a visual impact assessment basis, I have no doubt whatsoever that similar conditions will more than adequately address the developable scope I have identified, although it is possible that the conditions that are set out and to which I took Leading Senior Constable Orrick during the course of her evidence may require some modest amendment. They will certainly require incorporation into the second of the conditions, as I foreshadowed, a requirement that the noise limiter be locked for any amplification system in any restaurant premises and that the key to such lock to be held by the council. 58Leading Senior Constable Orrick also gave evidence that, for consideration of issues of antisocial behaviour, crime prevention and the like, the present activities at the Manly Wharf were not those which constituted a "hot spot" in the antisocial behaviour horizons of the Local Area Command. The greater areas of concern were two:
TMG Developments Pty Limited
Manly Council