COMMISSIONER: This appeal concerns a development application for alterations and additions to an existing dwelling house at 8 Bower Street, Manly. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
The Court was required to arranged a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 ("LEC Act"). The conciliation conference commenced on 21 November 2019, and continued on 22 November 2019. I presided over the conciliation conference.
At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application removes a secondary dwelling that was sought in the original development application, removes the pitched roof of the existing dwelling and replaces it with a flat roof, increases the setback to the carport and increases setbacks on the north eastern side of the proposal to enable a line of sight from the public footpath to the view towards Manly Beach.
As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons.
Firstly, the development works are for the purposes of a dwelling house, which is a permissible use in the E3 Environmental Management zone in which the site is located, pursuant to the Manly Local Environmental Plan 2013 ("MLEP 2013").
Secondly, I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 8.5m, pursuant to cl 4.3 of the MLEP 2013. The proposed maximum height of 10.92 represents a contravention of 2.42m above the numerical standard. The contravention is confined to a small portion of the development, and result from the topography of the land and the extension of the existing floor plate of the dwelling. In accordance with cl 4.6(4)(a) of the MLEP 2013, I am satisfied that:
The written request, lodged pursuant to cl 4.6 of the MLEP 2013, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach results from the steeply sloping topography of the land and from extending the floor plate of the existing dwelling, which is located at the top of the site. This causes the higher portion of the building to be located at the top of the site as an extension of the existing dwelling, with the building then stepping down the site to achieve a height and setback that retains the views from all side room windows of the dwelling on the adjacent property (10 Bower Street). A compliant building would require the development to have bulk further down the site, and obstruct views from the windows of the adjacent dwelling.
The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the non-compliance, for the reasons set out in the request.
For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the height development standard.
Thirdly, I am satisfied that consent should be granted notwithstanding the contravention of the special height provisions in cl 4.3A of the MLEP 2013. The special height provisions require that the height of the building "must not exceed the height of the highest point of the road adjoining the centre point of the lot boundary that adjoins the road that is the frontage to that lot". The relevant level is RL 26.28. The ground floor and roof of the existing dwelling, which is retained, are already above this point. Compliance with the special height provision would require demolition of the existing dwelling, which is not proposed, and is contrary to Clause 4.4.2 of the Manly Development Control Plan 2013 (Amendment 13) ("MDCP 2013"), which encourages the retention of existing buildings in order to meet ecologically sustainable development principles. In accordance with cl 4.6(4)(a) of the MLEP 2013, I am satisfied that:
The written request, lodged pursuant to cl 4.6 of the MLEP 2013, adequately establishes sufficient environmental planning grounds that justify the breach in the special height provisions by demonstrating that the contravention is caused by retaining the existing dwelling, which is consistent with the MDCP 2013 and principles of ecologically sustainable development.
The written request establishes that demonstrates that compliance with the height development standard is unreasonable and unnecessary in two ways. Firstly, it does so by demonstrating that the underlying objective of the standard is not relevant to the development. The lone objective of the special height provisions is to "maintain public views to Sydney Harbour", whereas there are no public views to Sydney Harbour from the street level over the property (the views are to Manly Beach and the ocean). Secondly, it does so by demonstrating that, if the objective is understood to refer to public views from the street to Manly Beach and the ocean, the proposal meets that objective as it removes the pitched roof of the dwelling which currently prevents views from Bower Street to the ocean, therefore opening up public views from the street to Manly Beach and the ocean over the top of the altered dwelling.
For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the height development standard.
Finally, the proposed development complies with the floor space ratio ("FSR") development standard in cl 4.4 of the MLEP 2013, with a gross floor area of 436.85m2 and a FSR of 0.448:1. I accept that the floors of the pool cabana and the courtyard adjacent to the north-eastern elevation at the pool house level are not gross floor area, for the reason that they are either "terraces… with outer walls less than 1.4 metres high" which are specifically excluded from the definition of gross floor area, or they are not floor area enclosed within external walls (consistent with the decisions in MGT 6 Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1211 and GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521).
Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
The Court orders that:
1. The Applicant is granted leave to amend the development application to rely upon the amended architectural plans referred to in condition 1 of Annexure A.
2. The clause 4.6 written request to vary the Special height provisions development standard set out in clause 4.3A of Manly Local Environmental Plan 2013 prepared by Vaughan Milligan dated 22 November 2019 is upheld.
3. The clause 4.6 written request to vary the Height of buildings development standard set out in clause 4.3 of Manly Local Environmental Plan 2013 prepared by Vaughan Milligan dated 22 November 2019 is upheld.
4. The Appeal is upheld.
5. Development Application No. DA2018/0628 for alterations and additions to an existing dwelling house including a swimming pool at 8 Bower Street, Manly is approved subject to the conditions in Annexure A.
[2]
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Decision last updated: 04 December 2019