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.