Vescio v Manly Council

The Townhouses appeal 11Development Application DA343/10 seeks to demolish the existing dwelling and construct four townhouses. The townhouses are arranged in an east to west orientation with vertical party walls dividing each townhouse. Each townhouse consists of basement carpark with internal access, living areas on the ground floor and bedrooms on the first floor. A shallow pitched skillion roof falls to the west. The basement car parking is accessed from Parkview Lane via a shared driveway, which runs the length of the site, adjacent and parallel to Parkview Road. 12Entry to each townhouse is from the western side of the site, adjacent to the shared boundary with 116 Sydney Road, with access provided via a stair from Sydney Road, to Units 3 and 4 and a ramp from Parkview Lane to Units 1 and 2. 13The plans identified in the proposed conditions include a Landscape planting plan and a Schedule of Finishes. 14There are no common areas proposed in the townhouse application. Development Application DA343/10 does not seek consent for any form of subdivision.

The Subdivision appeal 15The proposed four lots run in an east to west direction and create a separate lot for each of the proposed dwellings, along the centre of the party walls proposed by the townhouse application. 16The proposed site areas are as follows:

• Lot 1, at the northern end of the site, with a street frontage to Parkview Road and Parkview Lane has a site area of 325m2;
• Lot 2, to the south of Lot 1 and fronting Parkview Road has a site area of 184.1m2;
• Lot 3, to the south of Lot 2 and fronting Parkview Road has a site area of 184.2m2;
• Lot 4, at the southern end of the site, with a street frontage to Sydney Road and Parkview Road is 312.3m2. 17The Subdivision application does not propose any physical changes to the townhouse application. The Subdivision application includes easements across the adjoining lots to provide pedestrian access to the centre two lots on the western side of the development, and the shared driveway. 18The proposed conditions for the Subdivision application include a condition requiring that the subdivision certificate not be issued before the issue of a final occupation certificate in respect of the building and ancillary works, and a condition requiring the registration under s88B of the Conveyancing Act 1919 (the Conveyancing Act) of the easements, and restrictions and a positive covenant. The positive covenant requires the proprietors of the lots burdened to repair and maintain the building in good repair; not rebuild any building unless in accordance with the development consent for the townhouses; provide and maintain landscaping, footways and driveways; and to maintain the building and colour scheme in accordance with the development consent. 19The draft conditions included a proposed covenant under s88E of the Conveyancing Act, which identified the Council as the prescribed authority in whose favour the positive covenant is to be created. At the conclusion of the hearing the applicant proposed an amendment to require the creation of a positive covenant pursuant to s88BA of the Conveyancing Act identifying each of the four lots as the Benefited lots.

Issues 20The Council accepts that the townhouses proposal complies with the density controls as a development on a single allotment, and meets the relevant criteria for approval as a single development. The only issue in dispute between the parties is whether the first floor western windows to bedrooms 2 of Units 1 and 4 should be deleted or have fixed louvres to reduce overlooking of the adjoining property at 116 Sydney Road. 21In the Subdivision appeal, the Council contends that subdivision of the allotment into four lots results in two of the four lots not complying with the minimum allotment size requirement and consequently not complying with the desired future character for the precinct. The Council contends that the townhouses proposal was assessed on a north-south orientation, and that the east-west orientation of the subdivision results in non-compliances with the relevant front and side setback controls. The Council contends that the non-compliances would be acceptable in a strata subdivision of the site, but are not acceptable otherwise.

The planning framework 22The site is located within the Residential Zone under Manly Local Environmental Plan 1988 (LEP 1988) and the proposals are permissible with consent. 23The site is subject to the provisions of Manly Development Control Plan for the Residential Zone 2007 (DCP 2007). The site, along with the properties fronting Parkview Road to the north, is located within Density Sub-zone 2, which permits 1 unit per 150m2 of site area and Floor Space Ratio (FSR) of 0.75:1. 24Sub-zone 3 commences immediately to the west of the site, so that the adjoining property at 116 Sydney Road is located within Sub-zone 3. Density Sub-zone 3 permits 1 unit per 250m2 of site area and FSR of 0.60:1. 25Part 3 Development Controls (including Assessment Considerations) includes the following Assessment Considerations: Section 79C(1) of the Environmental Planning and Assessment Act 1979 sets out the matters Council takes into account when assessing applications. This includes the relevant Local Environmental Plan (LEP) and any Development Control Plan (DCP). The provisions of the DCP will be taken into account for the forms of development to which it relates. Nevertheless the planning legislation also requires each application to be treated on its merits. This means that Council must satisfy itself that the particular development is suitable for the site, that the impacts have been mitigated and that there is compliance with the relevant planning controls. Previous approvals do not create a precedent for an application for a similar form of development. The planning controls set out in this DCP were adopted following the required planning procedures including public consultation. They therefore represent the Council's and the community's expectations as to what will be the nature, scale and form of future development in the Local Government Area. Council is required to apply the controls in a consistent manner while balancing the interests of the applicant with those of the community as a whole. It is therefore expected that development proposals will by and large comply with the numeric controls. Any departures will not only need to satisfy the DCP objectives but it needs to be demonstrated (in the application) that by Council agreeing to a variation of a standard or requirement, that a more desirable environmental outcome is achieved. 26The controls for the site, summarised in Table 1 in Section 3.1 of DCP 2007 are:

• Minimum site area 250m2
• Residential density (dwellings/sqm) 1/150
• Maximum FSR 0.75:1
• Percentage of open space per site (minimum of any dimension 3m) minimum 50 and percentage of open space as permeable area 30
• Wall height (metres) (plus 3m for roof structure) 9 -10.5m
• Setbacks (metres) Front 6 (or prevailing street setback), side 1/3 adjacent wall height and rear 8. 27The objectives with regard to residential density, as provided in clause 3.2.1 of DCP 2007, are: a) To regulate the number of dwellings in specific areas; b) To promote a variety of dwelling types and residential environments in the LGA; c) To assist in maintaining the character of the locality; d) To limit the impact of residential development on existing vegetation and topography; and; e) To maximise the use of existing infrastructure. 28The objectives with regard to subdivision in clause 3.3.1, are: a) To regulate the density of allotments in specific areas; b) To promote a variety of allotment sizes, residential environments and housing diversity; c) To maintain the character of the locality and streetscape; d) To limit the impact of subdivision on existing vegetation and topography; and e) To maximise the use of existing infrastructure. 29The relevant controls for subdivision are provided in clause 3.3.4, and include: a) Each allotment shall have a minimum 1m wide, fee simple, frontage and adequate vehicular access to a public road, which may not necessarily include the minimum 1m frontage; c) In density sub zones 1 to 3 the minimum permissible allotment size for a real property subdivision is 250m²; d) An application for subdivision that creates any allotment less than 500m² must identify on the subdivision plan that a dwelling can be successfully accommodated on each allotment, in compliance with this Plan; 30The relevant objectives for setbacks as provided in clause 3.6.1 of DCP 2007 are: a) To maintain and enhance the existing streetscape; b) To provide privacy; c) To provide equitable access to light and sunshine; d) To promote flexibility in the siting of buildings; e) To facilitate view sharing; f) To accommodate planting, including native vegetation and endemic trees; h) To maintain adequate space between buildings to limit impacts on views and vistas from private and public spaces; and i) To provide for bush fire asset protection zones. 31The objectives for open space and landscaping, clause 3.7.1 of DCP 2007, are: a) To provide open space for the recreational needs of the occupier and provide privacy and shade; b) To retain important landscape features and vegetation; c) To encourage appropriate tree planting and maintenance of existing vegetation. d) To enhance the amenity of the site, streetscape and surrounding area; e) To retain and augment remnant populations of endemic native flora and fauna; f) To minimise the spread of weeds and the degradation of private and public open space; g) To maximise wildlife habitat and the potential for wildlife corridors; h) To maximise water infiltration on-site and minimise stormwater runoff; i) To maximise soft landscaped areas; j) To encourage the establishment of vegetable gardens and the planting of fruit trees; and k) To encourage the use of recycled materials in landscape construction works.

Evidence 32The hearing commenced on site with a view of the site and the surrounding locality, including Crescent Street to the west, and Parkview Road, Sydney Road and Birkley Road to the east. Expert planning evidence was provided by Mr Chris Young for the applicant and Mr David Stray for the Council. 33Council did not receive any resident objections for either the townhouses application or the subdivision application.

The Townhouses appeal 34The experts agreed that the townhouses proposal complies with the aims and objectives of LEP 1988 and the development controls under DCP 2007. 35The experts disagreed on the inclusion of a proposed condition of consent (ANS04) seeking to prevent the future subdivision of the property. The parties agreed, during the proceedings, to the re-wording of the proposed condition to read as follows: This approval does not include approval to subdivide the subject property. 36The experts disagreed as to the impact of the two windows on the first floor of the western elevation to bedrooms 2 in units 1 and 4, on the privacy of the neighbouring property at 116 Sydney Road. In Mr Young's opinion the windows are set back sufficiently from the shared boundary, the window at the northern end of the site is adjacent to the garage of 116 Sydney Road, and the window at the southern end is located above the window in the eastern elevation of the dwelling at 116 Sydney Road. Further, between the two bedrooms are six bedrooms with either window or door openings in the western elevation overlooking 116 Sydney Road. 37Mr Stray's evidence was that the windows will unduly impact on the visual privacy of the adjoining property and should be deleted, as both the bedrooms have doors opening onto a balcony on the eastern side of the proposal. The experts agreed that should the Court find that the windows do impact on the privacy of the adjoining property, a condition requiring external vertical louvres to the windows, orientated in a north-west to south-east direction, would be acceptable.

The Subdivision appeal 38The experts agreed that the proposed subdivision will result in the two central lots being less than the minimum allotment area of 250m2. The experts agreed that the surrounding area is not consistent in lot size and contains up to 20 percent of the total number of lots that are less than 250m2, as demonstrated by the plan 'Surrounding Lot Areas', included in exhibit 1. 39The experts disagreed as to the impact of the proposed subdivision of the allotment into four lots. Mr Young's evidence was that the subdivision will not have any material impact on the townhouses. The townhouse development will be the same development, whether it is located on a single allotment and managed by a strata management scheme, or if the townhouses are located on individual allotments and subject to the proposed easements and covenants. Mr Young was of the opinion that the townhouses proposal, with a Torrens title subdivision into four lots, is consistent with the existing and future character of the area. 40Mr Stray's evidence was that the creation of two lots that are less than the minimum 250m2 area results in an inconsistency with the prevailing subdivision pattern and is not consistent with the desired future character of the area. The existing lots in the area that are less than 250m2 pre-date DCP 2007, are developed as semi-detached dwellings, and do not front Sydney Road. Mr Stray's evidence was that the assessment of the townhouse proposal on four individual lots results in breaches of the FSR, setbacks and open space controls of DCP 2007. Mr Stray also contends that the four individual lots are orientated east to west, which is inconsistent with the prevailing orientation of sites fronting Sydney Road. 41The experts disagreed on the significance of the different forms of subdivision. Mr Young was of the opinion that the proposed subdivision is an integral and ancillary staging to the approval of the townhouses, and approval would be contingent on the approval and construction of the townhouses. The Council has approved an identical subdivision in the strata subdivision DA88/11 and there is no material difference between that and the present proposal. The change of title would not be discernible from any public place or neighbouring property, and would not necessitate any physical works, and any impacts arise from the built form which ash already been assessed and considered to be acceptable. Control of the development conditions can be addressed by the imposition of positive covenants. 42Mr Stray's evidence was that while the form of subdivision would not be immediately visually evident it would be evident in the manner in which the lots and building are managed and maintained. There are concerns relating to proper maintenance of the building as a whole, the shared driveway, and landscaped open space areas, and the suggested easements and restrictions on the individual lots are not an adequate substitute for single management of the site under strata title. Strata title would enable effective management under By-laws by an Owners Corporation, and the move away from single management would result in greater potential for conflict between the property owners and make resolution of conflict more difficult. The proposed subdivision would remain in place beyond the economic life of the building. 43The experts considered the proposed driveway access to the four lots, which is proposed to be managed by creation of rights of carriageway across the four lots. Mr Young was of the opinion that the vehicular access is the same as previously approved, and that it would appear the same and operate in the same manner as approved regardless of the outcome of the subdivision application. Mr Stray was of the opinion that the proposed right of carriageway affects one quarter of the proposed lots 1, 2 and 3 and one eighth of proposed lot 4, which is effectively the whole frontage of the total development site facing Parkview Road, and which would severely restrict any future development of the site.

The Townhouses appeal 44We accept the agreed evidence of the planning experts that the proposed four townhouses comply with the aims and objectives of LEP 1988 and the objectives of DCP 2007. 45The windows to bedrooms 2 of Units 1 and 4 provide for cross flow ventilation within these bedrooms. The issue is whether they have a significant impact on the privacy of 116 Sydney Road. The two windows are at either end of a total of eight openings in the western elevation on the first floor. The floor height of the first floor of the proposal is RL56.30 and the head of the window on the eastern wall of 116 Sydney Road, nearly opposite the bedroom 2 window of Unit 4, is RL56.35, resulting in anyone standing at the proposed window looking onto the roof of the neighbouring property. The window in bedroom 2 of Unit 1 looks onto the garage of the adjoining property at 116 Sydney Road. There is a greater than 3m setback from the shared boundary. In addition to the height difference, outlook, and angle of view from these windows, any overlooking would be from a bedroom where people tend to spend less waking time, which is factor to be considered in assessing impacts on visual privacy: Meriton v Sydney City Council [2004] NSWLEC 313. We do not consider that the impacts on privacy are such as to require the deletion of these windows, or any screening. 46Having regard to the relevant planning controls and the evidence provided, we find that the Townhouse application is acceptable and that it should be granted consent. 47The windows to bedrooms 2 in Units 1 and 4 will not have any substantial impact on the privacy of 116 Sydney Road and do not require external louvres to prevent overlooking. Condition ANS02 is to be deleted. 48Condition ANS04 is to be amended in accordance with the wording agreed by the parties: This approval does not include approval to subdivide the subject property.

The Subdivision appeal 49As noted above, the Council has approved Development Application DA88/11 for strata subdivision of the site. The plan for the subdivision the subject of the Subdivision appeal is identical in form. Both the strata subdivision approved in DA88/11 and the subdivision proposed in the Subdivision appeal are forms of Torrens title. The essential difference between the approved strata subdivision and the proposed subdivision relates to management of the development. 50The proposed subdivision would create four lots, with ongoing obligations and restrictions imposed in the form of positive covenants. The legal existence of those lots would continue beyond the life of the built form approved in the Townhouses appeal. We agree with the Council that the proper approach to adopt to assessment of the Subdivision application is to focus on the development that is the subject of the development application, namely subdivision, rather than engage in an assessment of the application against the strata subdivision consent or the Townhouses appeal. That approach is consistent with Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780, and also Tuite v Wingecarribee Council (No 2) [2008] NSWLEC 321, where Preston CJ confirmed that the obligation is to determine the particular development application before the Court, and not by reference to a comparison with a previous consent. 51The subdivision proposed is for four lots in an east- west orientation. Based on the view, and the aerial photograph and Surrounding Lot Areas plan in exhibit F, we do not consider that this orientation is inconsistent with the prevailing orientation of sites fronting Sydney Road. There are examples of allotments orientated east to west on the northern side of Sydney Road, including the four Arts and Crafts townhouses on the corner of Sydney Road and Birkley Road, and the residential apartment block at 122 Sydney Road, on the corner of Crescent Street, which has a Sydney Road address and orientates its front elevation and entry to Crescent Street. The rock outcrop of the site on the Sydney Road elevation, resulting in any development being perched up above the Sydney Road footpath, suggests an eastern orientation to Parkview Road would be appropriate for the future development of this site. 52The proposed area of lots 2 and 3 of 184.1m2 and 184.2m2 respectively fall well short of the minimum permissible allotment size for a real property subdivision of 250m2 referred to in clause 3.3.4 of the DCP. There is some ambiguity in the reference in this provision to "a real property subdivision", however there was no dispute that this provision applies to the site. While the surrounding area includes lot sizes that are smaller than the minimum permissible allotment size, none of the allotments identified in the Surrounding Lot Areas plan included in exhibit 1, are equal to or less than the proposed areas of lots 2 and 3. Furthermore, the smallest lot identified by the plan on the northern side of Sydney Road is 196m2. 53When the site is considered as a single lot (the townhouse application), Council contends that the site remains oriented to Sydney Road. The proposal does not conform with the conventional arrangement of pedestrian entry, vehicular entry and orientation to a primary elevation towards the street, because of its unique nature; in that it is bounded by three streets, the view is to the east and the Sydney Road boundary is atop a rock outcrop. In addition, the proposal has been designed to orientate to the east and yet the entry is from the rear, accessed via a pathway from Sydney Road and Parkview Lane. 54The setback controls, contained in Table 3.1 of the DCP applied to the site as a single lot, with the front taken to be Sydney Road to the south, are as follows: Requirement 112 Sydney Rd Complies Yes/No Front setback 6m Sydney Road (south) no Side setbacks 1/3 wall height Parkview Rd (east) yes Shared boundary with 116 Sydney Rd yes (west) Rear setback 8m Parkview Lane (north) yes

55The setback controls, contained in Table 3.1 of the DCP applied to the four individual lots, orienting east to west are as follows: Complies Yes/No Front setback 6m Parkview Rd (east) Lot 1 yes Lot 2 yes Lot 3 yes Lot 4 no Side setbacks 1/3 wall height Parkview Lane (north) N/A as townhouses with party walls and no setback Sydney Road (south) Rear setback 8m Shared boundary with 116 Sydney Rd Lot 1 no (west) Lot 2 no Lot 3 no Lot 4 no

56The configuration of the lots in the context of the topography of the site relies on vehicular access across each of the allotments from Parkview Lane, and pedestrian access for the central two allotments across the adjoining allotments. The proposed subdivision does not comply with clause 3.3.4 (a) and (d) of DCP 2007, as it does not demonstrate that the these allotments have vehicular access to a public road, nor that a dwelling can be accommodated on the allotment in compliance with the controls in DCP 2007. We agree with the Council that the inter-dependencies of the allotments make their future development, beyond the economic life of the current proposal, difficult. 57We accept Mr Stray's evidence that the development proposed on the four individual lots results in breaches of the FSR (for lots 2 and 3), breaches of the setback controls and open space controls of DCP 2007. 58We accept that the difference in title if the subdivision is approved would not change the built form approved in the Townhouses appeal, and would not be discernible from any public place. However, we agree with Mr Stray that retaining a single allotment would assist in ensuring that the built form remained an integrated whole. In Brendan Howell v City of Canada Bay [2005] NSWLEC 335 Commissioner Watts commented, in the context of an application for the Torrens title subdivision of an attached dual occupancy development: 32 Also one could look to the planning consequences of an un-subdivided attached dual occupancy with one where each of the proposed new dwellings in the attached dual occupancy development are situated on a separate Torrens title lot. In the first instance the ownership would be likely to remain in the hands of a single entity and in the second each dwelling in the dual occupancy might be owned be a single entity. In the first, it is likely that the physical form of the two dwellings in an attached dual occupancy would remain as an integrated whole, as proposed, and thus appear more like a single dwelling in the street and fit in with the desired future character. In the second instance, each individual owner might seek to 'individualise' their dwelling so that each dwelling would appear different and the development complex not as an integrated whole. Thus, there is the potential for different planning outcomes in each case, as a result of subdivision. Even if the attached dual occupancy were strata titled, the building owners' corporation might exert some control over the aspirations of each of the potential individual lot owners and so keep the development as an integrated whole and one that would better fit in with the streetscape. Significant 'improvements' to each dwelling would need the approval of the owners' corporation. 59We agree with the Council that the circumstances of this case raise similar issues, and that a single management entity would enable the development to be maintained and appear as a single development. 60The applicant relies in this regard on the proposed positive covenants, amended during the course of the hearing to add the individual lots as benefited lots, for the obligations imposed. That amendment overcomes to some extent Mr Stray's concerns that it is unreasonable to impose on the Council alone the power to enforce those obligations. The obligations include obligations to comply with the consent, which would include the landscape plan and schedule of finishes. 61While we agree that the proposed positive covenants would assist, for example, in maintaining the finishes and landscaping approved in the Townhouses appeal, we are of the view that this is a cumbersome approach to management of inter-dependencies between dwellings. Management under the Strata Schemes Management Act 1996 provides for agreements to be made and enforced without requiring the Council to intercede. 62Retaining a single allotment for the townhouses proposal would allow for the future development of the site beyond the economic life of the current proposal. That is a preferable outcome than one where the subdivision pattern would be a legacy extending beyond the life of the immediate built form: Sindesi Properties Pty Ltd v Campbelltown City Council [2007] NSWLEC 436 at [54]. If approved, lots 2 and 3 would be significantly smaller than the sites in the locality, whether oriented to Sydney Road or on an east west basis, and significantly smaller than the lot sizes contemplated in the DCP 2007. The culmination of the breaches of the applicable controls, and the inter-dependencies on adjoining lots for access, demonstrates that the small central allotments are unsuitable for development independent of the adjoining allotments, and on that basis the Subdivision application should be refused.

Orders 63The orders of the Court are: Appeal 10087 of 2012

1. The appeal is upheld.
2. Development Application No. DA 343/10 for the demolition of the existing dwelling and construction of four townhouses on 112 Sydney Road Fairlight is approved subject to the conditions in Annexure A.
3. The exhibits are returned except for exhibits 4, A, C and E. Appeal 10912 of 2011
4. The appeal is dismissed.
5. Development Application No. DA 48/11 for subdivision of 112 Sydney Road Fairlight is refused. Linda Pearson Commissioner of the Court Susan O'Neill Commissioner of the Court

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: 26 April 2012