Whittaker v Northern Beaches Council

Background

1. The applicants emphasise that this is the second iteration of the proposal. Following the refusal of an earlier development application, the second applicant, Ms Wilton, met with a council officer with a view to making changes to the application so that it would meet the concerns of the Council. That meeting occurred in May 2016. An email was sent on 12 May 2016 by Ms Wilton confirming the changes made to the plans in response to that meeting, and a second application, which is the subject of the present appeal, was lodged.
2. The assessment of the application involved public notification to the surrounding neighbourhood, and three submissions were received in response. The application was assessed by council officers, including a heritage officer. The heritage officer concluded that, although changes had been made to the proposal, it nonetheless had "the same potential impact to the Conservation Area" and recommended its refusal. The potential impact was described in the following terms: "[T]he proposed raising of the property will substantially alter the building's presentation to the street. It will also diminish the relationship with the neighbouring weatherboard cottage and will result in an in an unsympathetic development negatively impacting on the wider Pittwater Road Conservation Area."
3. Notwithstanding this, the Council's development assessment unit recommended approval of the proposal to the Northern Beaches Independent Assessment Panel (NBIAP), to whom the application was referred. That recommendation was supported by an assessment report clearly setting out all of the issues for consideration in the determining the application. Despite this, the panel considered the application on 20 October 2016 and resolved to refuse the application. A notice of determination was then sent to the second applicant on 26 October 2016. Twelve reasons were cited in the notice as to why the application was refused.
4. The applicants, who represented themselves, placed emphasis on the recommendation for approval contained in the report by the council officers. However, in considering the appeal, the role of the Court is not to review the reasonableness or otherwise of the Council's refusal of the development application following the recommendation for approval. Instead, the role of the Court is to assess and determine the application on its merits based on the evidence in the proceedings and the issues raised by the Council in the statement of facts and contentions. In doing so, the Court re-exercises the functions of the Council in determining the development application (s 39 of the Court Act). As such, none of the history of the development application or its earlier iteration is relevant to the Court's consideration.

The site and its context

1. The site is quite small, with an area of 211.1m², and is legally known as Lot B in DP 330039. It has a 9.75m frontage to Carlton Street, has an approximate average depth of 22.5m and is orientated north/south with the rear yard facing to the north. The existing dwelling is a two storey detached weatherboard dwelling house with a pitched roof, and includes a setback first floor addition.
2. The dwelling is sited close to the front and side boundaries, with setbacks at ground level of 0.42m to the west, 0.72m to the east, and ranging from 1m to 5.2m at the front. These setbacks preclude off street parking on the site. The dwelling has a finished ground floor level approximately 0.85m-1.2m above the natural ground level, and is raised above the natural ground level with brick piers.
3. The adjacent property to the west, 12 Carlton Street, located on the corner of Smith Street, is a single storey timber weatherboard cottage with a pitched metal roof. The adjacent property to the east, at 8 Carlton Street, is a three storey residential flat building with a flat roof. This is uncharacteristic of the area, which consists predominantly of detached and semi-detached single and two storey dwellings. Across the road from the site, at 7-19 Carlton Street, is a row of single storey attached cottages.

Planning Controls

1. Section 79C(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 79C(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. The site is within the R1 General Residential Zone under the MLEP 2013, in which dwelling houses are permissible with consent. Clause 2.3(2) requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The Council agrees that the proposal is not antipathetic to the zone objectives, which are: "● To provide for the housing needs of the community. ● To provide for a variety of housing types and densities. ● To enable other land uses that provide facilities or services to meet the day to day needs of residents."
3. Clause 4.3 of the MLEP 2013 provides for a maximum height of 8.5m and Clause 4.4 provides for a maximum floor space ratio ("FSR") of 0.6:1. The proposal increases the height of the dwelling to above 8.5m. In the calculations made by Mr McDonald, town planner, based on the survey at its highest point the building will be 9.06m above the natural ground level. The proposal also breaches the FSR control, but no issue is raised by the Council in that regard as the current dwelling breaches the FSR and the area added by the proposal (subject to the storage area not being enclosed) will not increase the floor space used to calculate the FSR.
4. Carlton Street, on which the property is located, forms part of the Pittwater Road Heritage Conservation Area under Schedule 5 of the MLEP 2013. Clause 5.10 outlines the importance of heritage conservation and cl 5.10(4) provides: "The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6)."
5. The Manly Development Control Plan 2013 ("MDCP 2013") also applies and controls within Parts 3, 4 and 5 are applicable to this application. Clause 4.1.2.2 provides that buildings within the area where a maximum height of 8.5m applies must not exceed two storeys, and cl 4.1.2.1 provides for a maximum wall height of 6.5m. The proposal will result in a wall height of 7.6m at a setback of 0.42m to the west.

Evidence

1. In assessing and determining the application, I am assisted by the evidence of Mr McDonald, town planner and Ms Hill, heritage expert.
2. Although the applicants submit that the Court should adopt the position taken by the officers who assessed the application and contained in the assessment report, they do not adduce any expert evidence in support of that position. Whilst it is open to them to take such an approach, it means that there is no evidence given to contradict the expert evidence adduced in the Council's case.
3. Even though the rules of evidence do not apply in development appeals (s38 of the Court Act), expert evidence is given when a party wants to adduce evidence of an opinion regarding an issue raised in the proceedings that falls within the expertise of that expert. Ordinarily, the opinions of witnesses are not considered in evidence. In that respect, there is a distinction between evidence of facts and evidence of opinion. Usually witnesses give evidence of facts, that is, things that have been seen or heard. It is then the role of the Court to make an inference or draw a conclusion based on the evidence of the facts. However, an exception to this is when a witness has specialised knowledge. Where an issue arises that concerns a specialised area, the Court may not have that specialised knowledge and is therefore assisted in drawing the inferences or conclusions by the opinion of an expert with specialised knowledge. If a party seeks to adduce the opinion of such an expert, the evidence must be given in accordance with Part 31 Division 2 of the Uniform Civil Procedure Rules 2005 ("UCPR").
4. The assessment report prepared by the Council's officers does not amount to evidence of expert opinion. It was not prepared or filed in accordance with Part 31 Division 2 of the UCPR, the experience and background of the authors are not known, the council officers did not participate in a joint conference with the other experts in accordance with the Court's policies, and were not available for cross-examination. As a result, the assessment report, which is contained in the Council's bundle of documents tendered in evidence, can only be taken into account insofar as it records facts.
5. This means that there is no expert opinion in evidence to contradict the expert opinions of Mr McDonald and Ms Hill. The applicants questioned the experts in cross-examination. These questions did not lead the witnesses to change or modify their expert testimony.

Public submissions

1. As set out above, public notification of the proposal resulted in three submissions being made. Two residents also gave evidence at the commencement of the site view. The issues raised by these submissions can be summarised as follows: 1. Adverse effect of the proposal on the character, amenity and heritage of the area, 2. Adverse effect of the proposal on the amenity and privacy of neighbouring residents by overshadowing, overlooking, and increased noise, 3. Non-compliance with controls, including controls on height, floor space ratio, wall height, setbacks, open space and the number of storeys. 4. The proposal is inconsistent with the heritage conservation objectives for the conservation area and has excessive bulk, size and scale for the conservation area, and 5. Concerns regarding inaccurate information and undisclosed information, including concerns about the future use of the undercroft area for habitable purposes. These submissions were considered in the proceedings, and some were the subject of evidence from the experts.

Request to vary the height control (cl 4.6)

1. MLEP 2013, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes for and from development in certain circumstances. Clause 4.6 provides, at (3) and (4): "(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and …."
2. For the purpose of cl 4.6(4)(a)(ii) above, the objectives of the height standards in cl 4.3 are: "(a) to provide for building heights and roof forms that are consistent with the topographic landscape, prevailing building height and desired future streetscape character in the locality, (b) to control the bulk and scale of buildings, (c) to minimise disruption to the following: (i) views to nearby residential development from public spaces (including the harbour and foreshores), (ii) views from nearby residential development to public spaces (including the harbour and foreshores), (iii) views between public spaces (including the harbour and foreshores), (d) to provide solar access to public and private open spaces and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings, (e) to ensure the height and bulk of any proposed building or structure in a recreation or environmental protection zone has regard to existing vegetation and topography and any other aspect that might conflict with bushland and surrounding land uses."
3. Given that the proposal results in a breach of the height standard, the Court cannot grant development consent unless the Court accepts that cl 4.6 has been satisfied in relation to the variation of the height. This satisfaction is a precondition to the exercise of the Court's power to grant consent.
4. Clause 4.6 is a standard clause included in local environmental plans since its introduction in the Standard Instrument Local Environmental Plan. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7, Preston J, Chief Judge, found that in applying the provisions of cl 4.6, the power to allow an exception to a development standard can be exercised where the Commissioner is satisfied that: 1. the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)) (at [7]), 2. the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)) (at [7]), 3. the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) (at [38]), and 4. the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)) (at [38]). In outlining (3) and (4) above, His Honour stated that the Court need not be directly satisfied that compliance is unreasonable or unnecessary and sufficient environmental planning grounds exist, but rather "only indirectly by being satisfied that the applicant's written request has adequately addressed" those matters.
5. The applicants' written request is contained at pages 11 to 13 of the Statement of Environmental Effects prepared by Michelle Walker Architects dated July 2016. The request asserts that the "proposal will not be offensive, jarring or unsympathetic to the Carlton Rd Streetscape and the retention of the existing home & will continue to significantly contribute to the heritage character of the area." The request also asserts that the proposal will not appear as larger building bulk because the "building steps off the side boundaries and has a pitched roof form" as compared to the adjacent residential flat building, and that it maintains solar access to adjacent properties because of its north/south orientation. It then draws the conclusion that for those reasons, the proposal meets the objectives of the zone and the height of building standards, and that it therefore follows that it is unreasonable or unnecessary to comply with the standard and that there are sufficient environmental planning grounds to contravene the standard.
6. The Council submits that the request does not adequately address either cl 4.6(3)(a) or (3)(b), as per considerations (3) and (4) above. The Council also submits that the proposal is not consistent with the objectives of the height control, as per the second consideration above.
7. The Council submits the applicants' written request, firstly, does not establish how compliance is "unreasonable or unnecessary" by addressing how the development proffers an alternative means of achieving the objective of the standard, nor by demonstrating that no purpose would be served if strict compliance was enforced. In support of this submission, the Council relies on the decision of Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, in which His Honour explains (at [43]): "The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served)."
8. The Council submits that the written request, secondly, does not identify any environmental planning grounds which justify a departure from the standard. The Council refers to the decision of Pearson C in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1008, in which she found that environmental planning grounds as identified in clause 4.6 must be particular to the circumstances of the proposed development on a site. The Council also relies on the decision of Tuor C in Glenayr Avenue Pty Ltd v Waverley Council [2013] NSWLEC 125, wherein the Commissioner found that the term "environmental planning grounds" encompasses grounds beyond the mere absence of environmental harm or impacts.
9. The Council submits that even if the written request did address the matters in cl 4.6(3), the Court could not be satisfied that, based on the evidence of the experts, the proposal is consistent with the objectives of the height control in clause 4.3, as required by cl 4.6(4).
10. The applicants submit that the cl 4.6 request should be upheld because the written request is "in kind" with that clause. They submit that I ought to take into account that it is not a normal block of land and consider the 'big picture' that the dwelling should support a family with parking needs. The applicants submit that there is limited impact on the streetscape because at least half of the new ground floor will be obscured by the front fence.
11. Although it is not explicitly outlined, I accept that the request satisfactorily addresses why compliance is unreasonable or unnecessary. The assertion in the request is that the particular design of a pitched roof on a building that steps away from the side boundaries meets the height objectives, rather than using a different design that would be monolithic and antipathetic to the streetscape yet complied with the height control.
12. However, the request does not satisfactorily address what environmental planning grounds exist to justify contravening the standard. Nowhere within the section titled "Written request to vary development standard" is there identification of any environmental planning ground, unique or otherwise, that justifies the contravention. As discussed by Tuor C in Glenayr Avenue Pty Ltd v Waverley Council, a lack of impact is not a sufficient environmental planning ground.
13. I am also not satisfied that the proposal is consistent with the objectives of cl 4.3. It is this consideration to which expert evidence is relevant. The relevant objectives are (a), (b) and (d), which I repeat for completeness: "(a) to provide for building heights and roof forms that are consistent with the topographic landscape, prevailing building height and desired future streetscape character in the locality, (b) to control the bulk and scale of buildings, (d) to provide solar access to public and private open spaces and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings"
14. I accept the opinion of Mr McDonald that the prevailing height in the immediate locality is one and two storey buildings with pitched roofs in Carlton Street, between Pittwater Road to the east and Smith Street to the west. There is only one 3-storey building, the residential flat building adjacent to the site and built in the 1960s, but this 3-storey building is lower in height than that of the proposal. Mr McDonald is also of the view that the desired future streetscape character in the locality, consistent with the MDCP 2013, is for a maximum of two storeys. As the proposal will result in the dwelling becoming three-storey dwelling, Mr McDonald opines that it is not consistent with either the prevailing building height or the desired future streetscape character, and therefore does not meet objective (a). I accept that the proposal will present as a 3-storey building that is inconsistent with the prevailing streetscape and the future desired character of the streetscape. In so doing, I accept the opinion of both Ms Hill and Mr McDonald that the three storey residential flat building is out of character with the prevailing streetscape and should not be considered as part of the essential character of the street.
15. In respect of objectives (b) and (d), Mr McDonald opines, and I accept, that the development is beyond the bulk envisaged by the planning controls and that it will result in additional overshadowing of adjoining properties. The applicants' shadow diagrams are inadequate to demonstrate that there is no or little impact of the proposal on solar access to the neighbouring property. I accept also Mr McDonald's evidence that the combination of the breach of the height control and the large wall height of over 7m sitting only 30-40cm from the boundary creates unacceptable bulk as viewed from the street and neighbouring properties, inconsistent with objective (b). In addition, Ms Hill expresses the view that based on its three-storey presentation, the proposal results in bulk that is excessive and has an adverse impact on the Carlton Road streetscape and Pittwater Road Conservation Area. I accept Ms Hill's evidence that the impact of this bulk is not mitigated by obscuring part of the ground floor by the front fence. I accept the evidence of both experts and find that the proposal is not consistent with the objectives of the height control, contained in cl 4.3.
16. In determining that the cl 4.6 request does not adequately address the matters in 4.6(3)(b) and that the proposal is not consistent with the objectives of cl 4.3, there is no basis upon which the variation to the height standard can be granted. Accordingly, consent must be refused on that basis.

Other contentions

1. As set out above, the Council raised contentions regarding the bulk and scale of the proposal, the inadequacy of the side setbacks and its impact on the heritage conservation area. Any consideration of these contentions would be of no benefit given that I have determined that there is no power to grant development consent.
2. Similarly, the applicants make a number of submissions concerning the desirability of the proposal and its consistency with the future development of the Manly area as high density. The applicants submit that the Council should prefer a development proposal of this nature, one that retains the heritage character of the dwelling, rather than a developer who would demolish the house and erect a residential flat building which they say has occurred in other parts of the conservation area. The applicants also submit that some leniency should be offered in their favour in circumstances where they are on a small block, and have no rear access to their dwelling to allow off street parking. The applicants feel that they have demonstrated their desire to retain the heritage character of the dwelling through their successful second floor addition in 2012/13, which featured in "Australian Grand Designs" magazine. Further, the applicants submit that they have a proposal that is the only way to provide parking to support the residential needs of the dwelling, and that they have done it in a way that conserves the heritage features of the property.
3. However, none of these submissions can be taken into account in circumstances where I have found that there is no power to grant development consent because (a) the request to vary the height control did not identify an environmental planning ground that justifies the contravention; and (b) the proposal is inconsistent with the objectives of the height standard. Similarly, none of these submissions were supported by reference to the planning controls, which are required to be considered in determining the application, or by expert evidence on the supposed future character of the area as high density.
4. The Court orders that: 1. The objection pursuant to cl 4.6 of the Manly Local Environmental Plan 2013 is not sustained. 2. The appeal is dismissed. 3. Development application 189/2016 for alterations and additions to an existing dwelling house at 10 Carlton Street, Manly, to raise the house to create a new undercroft area to accommodate two parking spaces and storage and to construct a new driveway, with associated works for new internal and external stairs, privacy screens and landscaping, is refused. 4. The exhibits are returned, except for exhibits A, B and 1. ………………………. Joanne Gray Commissioner of the Court

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