Tricon Services Group Pty Ltd v Manly Council

The applicants submissions 7Mr Doyle submits that there are two determinative issues remaining to be considered in the remitted hearing and the re-opened hearing, in accordance with the appeal judgment; being height and view loss. The Court first determine whether the height of the proposed is reasonable having regard to the relevant controls before considering whether the resulting view loss is acceptable because the reasonableness of the proposal is the principal matter to be taken into account when assessing view loss. Importantly, Mr Doyle submits that neither the planning principle in Tenacity Consulting Pty Ltd v Warringah Council [2004] 134 LGERA 23 that addresses view loss or the Business DCP dictates that a development which exceeds a numerical control in the Business DCP must be refused. A breach of a numerical control does not necessarily mean that a development is unreasonable. 8The matters that must be taken into consideration in addressing height and view loss are;

• the context of the surrounding built heights in the locality
• analogous prior determinations of the council, and the consequent consistency of decision-making,
• the policy objectives of the controls within the Business DCP,
• the numerical height controls in the height control map for the Manly Town Centre, and
• expert evidence on view loss. 9Mr Doyle submits that an analysis of surrounding buildings to the south, north, west and along South Steyne reveal an inconsistency in the council's approach to the assessment height. The applicant has mimicked, as closely as possible, the approved overall relative levels for the adjoining site at 43-45 North Steyne to achieve equivalence in height between the two buildings. In approving this application, the council accepted that duplication of the height of the building with adjoining 42 North Steyne was appropriate. Similarly, the building at 49-53 North Steyne, in all material respects, marks the northern corner height of the block between the Corso and Raglan Street. To the west, the building at 1 Raglan Street has a 33.4 m roof height plus lift overrun and the Wave building is some 25.4 m high. 10Elsewhere in the Manly Town Centre there are a number of building extending over a height between 12 m and 16 m, with a number at the higher end of the range. This needs to be compared to the Business DCP that provides that the front area of the buildings are to be only 10 m high. Mr Doyle submits that it is hard to see why the carefully considered sentiments adopted by the council in the past for the assessment of height, are not applied to the current development. The precedent of a 15 m building height has now been established by not one but two buildings in the block, notwithstanding the same planning controls that apply to the proposed development. 11Mr Doyle further submits that approval of the proposed development is consistent with the aims and objectives of the Business DCP which, in part, requires applicants "to design a development having regard to how it will appear when viewed from and in conjunction with surrounding buildings..." and " to introduce building heights, setback, and other controls relating to the building form and height in order to achieve a consistent and coherent townscape appropriate to the locality". 12The emphasis provided by the Business DCP on "townscape" further supports the approval of the proposed development where there is a constant approach of seeking to ensure that new buildings equate with the height of adjoining buildings. Without a sense of obligation to achieve the township objectives, there is no opportunity to ensure that new buildings equate with the height of adjoining buildings. 13Mr Doyle provides an analysis of building heights within the Manly Town Centre and a comparison with the numerical height controls in the height control map. He submits that any new buildings, which complied with the height control map would produce absurd results and be at odds with the objectives of maintaining consistent heights in the Manly Town Centre. 14The decision in Barecall for 42 North Steyne. provides further support for the councils approach of not consistently applying the 10 m and 12 m height requirements as the height of the building is around 15.2 m. The decision, which was supported by the council, allows for alterations and additions to the approved development by allowing 2 additional units on part of the upper level to replace the existing plant area and increase the floor area although without an increase in overall height. 15In terms of view loss, Mr Doyle submits that compliance with the height requirement would require the removal of a complete floor from the proposed development and the social and public benefit of providing the additional units is a relevant consideration, particularly considering the housing targets for the Manly the local government area. 16It must also be remembered that the affected views from the Waves building, at the rear, are obtainable from a building which is 10 m higher than the proposed building and which itself blocked the views from the building further to the west when it was constructed. This is material to the assessment of what is "reasonable" in terms of view loss in accordance with Tenacity.

The council submissions 17Mr Staunton submits that the 15 m wall height requirement in cl 1.2.1(i) does not apply. Similarly, the requirements in cl 1.2.1(ii) that a lesser or greater height provides a better relationship to adjoining development in terms of fulfilling the council's townscape objectives are not engaged because the Court, in the original judgment, found that a development that satisfied the 10 m and 12 m height requirements will not have an unacceptable impact on the townscape (par 31). Having determined that the proposed development exceeds the permitted building height of 10 m at the front by 2.7 m and the 12 m requirement at the rear by 3 m, Mr Staunton submits that there is no justification for allowing an increase in the height. 18Mr Staunton further submits that as His Honour, in the appeal judgment, accepted that even though the Manly Development Control Plan the Residential Zone 2007 - Amendment 1 (the Residential DCP) does not directly apply to the site, cl 4 in Sec C of the Business DCP incorporates by reference, certain provisions of the Residential DCP, including provisions for the maintenance of views in cl 4.3. This clause incorporates, by reference the planning principles in Tenacity. In this case, the portion of the building that breaches the maximum height limit causes the impact on view loss. The impact was assessed in the original judgement and found to be unreasonable based on the principles in Tenacity. Mr Staunton further submits that the proposed development contravenes objectives 4.3.1(a), 4.3.1(a). 4.3.1(b), 4.3.1(c), 4.3.2(a) and 4.3.2(a) of the Residential DCP. 19For these reasons, the appeal should be dismissed and development consent refused.

Findings 20The effect of the appeal judgment is that there are two relevant height controls, being the wall height control in cl 1.2 and the maximum building height in the "Maximum Building Height" section of the Business DCP. Clause 1.2 prohibits wall heights exceeding 15 m unless the exceptions in cl 1.2.1(i) and (ii) apply. In this case, the exception in (i) applies as heights of 10 m and 12 m are specified on the height control map for the site. This means that the 15 m prohibition on wall height does not apply however the maximum building height of 10 m and 12 m continue to apply. 21The parties dispute whether sub par (ii) is engaged. Mr Staunton submits that sub par (ii) is not engaged because the Court, in the original judgment, found that a development that satisfied the 10 m and 12 m height requirements will not have an unacceptable impact on the townscape (par 31). Mr Doyle, on the other hand, submits that that sub par (ii) is engaged because the proposed development (with the breaches of the 10 m and 12 m height requirements) "provides a better relationship to adjoining development in terms of fulfilling the Council's townscape objectives". To support this contention, Mr Doyle relies on the inconsistent application by the council of the height requirement. 22In considering the competing submissions, I agree with Mr Staunton. No new evidence was provided at the remitted hearing and the re-opened hearing that would alter my findings in the original judgment. For completeness and clarity, these findings (at par 31) state: .......With the benefit of the site inspection, I accept that a building that satisfies the 10 m and 12 m height requirement would have only a minimal impact, if any, on the townscape. The views from different parts of North Steyne and the beach will be dominated by the street faade and upper levels. The proposal will provide consistency with adjoining buildings, even accepting that the streetscape of North Steyne represents only a part of the broader concept of townscape. While the upper levels of the building will be visible from some locations in the Manly Town Centre, I generally accept that the differences in overall height with adjoining properties will not have any unacceptable impacts on the townscape. I do not accept that a building of 10 m and 12 m in height will offend the townscape objectives. 23While Mr Doyle raised the issue of inconsistency of the councils assessment of height in the Manly Town Centre, I am not satisfied that the evidence supports this for two main reasons. First, and of the large number of properties identified by Mr Doyle, only the council reports for the two properties to the south were provided to allow some understanding of the councils approach to the assessment of height. For the building at 43 - 45 North Steyne, that adjoins the site to the south, the council officers report (Exhibit F) states in the Development Control Plan Numerical Assessment that the proposed development complies with the 10 m and 12 m height requirement in the Business DCP. The report also addresses the approach, at the time, where additional height was allowed at the road frontage based on a 35° roof pitch and 3 m roof allowance, as it was consistent with approvals in the Business Zone at Balgowlah. As I understand, this approach to additional height no longer applies to the Manly Town Centre. 24For the building at 42 North Steyne, one building removed from the site to the south, the council officers report (Exhibit 8) states in the Development Control Plan Numerical Assessment that the proposed development complies with the 10 m height requirement but was non-compliant with the 12 m requirement in the Business DCP, having a height of 12.5 m. The breach was addressed through condition 3 of the development consent that provides the "height of the roof deck is not to exceed 12 m, with the building plans notated accordingly". The officers report addresses the height above 12 m by stating: .... The 14.69 m wall height to the rear of the roof deck is required to enclose the plant and storage facilitates located on the roof of the building. This is considered desirable in regards to the aesthetics of the development and meets the objectives of the Development Control Plan for rooftop structures. As this is to the rear of the development, it will not be visible from street level and is considered acceptable for this proposal 25The building at 42 North Steyne was also the subject to the Barecall appeal after an application to modify the approval was refused by the council. In the original assessment report, the council officers report clearly distinguishes between the Business DCP height requirements of 10 m and 12 m wall height requirements and rooftop plant and storage facilitates. The Barecall appeal was allowed, with support from the council, on the basis that the impacts of the additional floor area (with no increase in overall height) created no additional unacceptable impacts in terms of townscape, bulk and view loss from adjoining properties, including the Waves building. 26The interpretation of height, that excludes the rooftop plant and storage facilitates, is an interpretation that is reasonably open to the council, as is the use of this area for residential use on the basis that there are no additional unacceptable impacts. It could not be said that the 10 m and 12 m height requirements in the Business DCP were not considered in the assessment of the original application and the appeal. 27Second, the terms of the height requirements in the Business DCP are clearly problematic given that the interpretation adopted by the Court, the interpretation adopted by the applicant and the interpretation adopted by the council in the original appeal were all rejected in the appeal judgment where His Honour adopted a different interpretation. In this context, it is difficult to reasonably support the argument that the council has inconsistently applied the height requirements in the Business DCP when the proper interpretation has only just been settled by the appeal judgment. I note the Business DCP has been operational since 1989, although with some amendments. 28In summary, I am satisfied that a building that complies with the 10 m and 12 m height controls will satisfy the townscape objectives (par 3, p 3), the definition of townscape (p 5), F Design principles (p 6) and particularly objective 6 in the Business DCP (p 3) that states: 5. To introduce building heights, set back and other controls relating to building form and height in order to achieve a consistent and coherent townscape appropriate to the locality; 29On the question of view loss, I am also satisfied that no new evidence was provided at the remitted hearing or the re-opened hearing that would alter my findings in the original judgment. For completeness and clarity, these findings (at pars 29 and 30) state: 29..... Using the view assessment principles in Fig 14 of cl 4.3 of the Residential DCP, the first three steps in assessing view impact; being the assessment of views to be affected, what part of the property the views are obtained and the extent of view impacts are agreed by Mr Layman and Mr Winnacott based on Mr Jago's photomontages. The fourth step; being the reasonableness of the proposal that is causing the impact was the significant difference between Mr Layman and Mr Winnacott. Having found that there is no obligation in the DCP to maintain a similar height to adjoining buildings, the conclusions of Mr Layman are more appropriate in terms of view loss impact. 30 I agree that the impact on views from Levels 4, 5 and 6 is unacceptable. From unit 407 all water views would be lost, but a 10 m and 12 m building would likely provide a view of the horizon. From units 506 and 507, at best, the horizon may be visible. However, with a 10 or 12 m building, a significant band of water would be retained. The loss of water views reduces with height and units 606 and 607 would likely lose the wave area near the beach while retaining the more distant water views to the horizon. The loss of views, in my opinion, could be described as severe for Levels 4 and 5 and moderate for Level 6. 30I also accept the submission of Mr Staunton that the proposed development contravenes objectives 4.3.1(a), 4.3.1(a). 4.3.1(b), 4.3.1(c), 4.3.2(a) and 4.3.2(a) of the Residential DCP. 31I have given no weight to Mr Doyles submissions that the proposed development would provide a positive social and public benefit by the additional units on the upper level above the 10 m and 12 m height requirements. While social impacts and the public interest are relevant considerations in the assessment of a development application, they are not matters of such significance, in this case, that they should dilute the importance of the height and view loss issues.

Orders 32The orders of the Court are: 1.The appeal is dismissed. 2. DA13/2010 for the demolition of all existing improvements and the construction of a mixed commercial/residential development at 46, 47 and 48 North Steyne, Manly is refused. 3. The exhibits are returned with the exception of exhibit 1. G T Brown Acting Senior Commissioner 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. Decision last updated: 01 June 2012