Williams & Anor v Manly Council

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167; Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

APPLICANT Mr T. Sattler, solicitor of Sattler & Associates LEGAL REPRESENTATIVES:

RESPONDENT Ms C. Schofield, solicitor of Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11212 of 2006 Catherine Williams and Robert Williams v Manly Council This determination was given extemporaneously and it has been edited prior to publication

JUDGMENT 1 This is an on-site hearing this morning for an appeal against the Council's refusal of a Development Application for the premises known as 59 Collingwood Street, Manly.

2 The proposal before the Court is for alterations and additions to the dwelling house on the subject property. It is noted that there has previously been alterations and additions to the dwelling house t approved by the council however they have not been completed. This was raised during the proceedings in the context that the plans before the Court are a similar floor space ratio to the previously approved plans, although of a different configuration.

3 The development application is for the addition of a first floor above the existing ground floor of the dwelling in the front portion of the dwelling. The additional setback to the upper level wall proposed is by way of a 900 mm balcony to the proposed upper floor bedroom retreat area.

4 The council raised a number of issues in the Statement of Issues. In particular the floor space ratio (the FSR) exceedence. The current FSR of the dwelling is some 0.7:1 and the proposed FSR under the Development Control Plan ("the DCP") in force at the time the development application was submitted and assessed by the council is calculated to be some 0.916:1. Under the new DCP that council adopted this year the definition of floor space excludes walls etc and this would reduce the floor space of the application before me to 0.85:1. 5 The other issues that the council raises are with respect to streetscape in that the proposed development will have an adverse impact on the streetscape and in reference to this the objectives of the development control plan and the Manly Local Environment Plan are cited. Another issue council has raised is the deficiency in open space. The site would require 144 sq m and the proposal provides for some 77 sq m. In particular the amount of soft landscaping is deficient in terms of council's controls.

6 Council also raised the issue of overshadowing, overshadowing of the townhouse development at No. 57 Collingwood Street in that the council is of the opinion that the overshadowing would be increased to the living area or the living room of the adjoining townhouse.

7 On the issue of privacy, it was agreed this can be overcome by conditions and noise similarly is not pressed in these proceedings. The issue of setbacks is also raised by council and the proposed development does not comply with the front setback and the side setback having regard to the height of the wall. The side setback to the townhouse development next door is 0.9 m however under council's controls or guidelines 1.8 m to 1.96 m is required. Council also does allow for an averaging, that is to come close at one point if in fact it is further away at another. The front setback control within the DCP is for a 6 m setback although it is noted that if there is a prevailing setback in the street then that is the one that may be observed. It is noted that the subject site together with those to the north all have a reduced setback of some 3.5 m given the skewed frontage or boundary with the street which then increases to some 7 m at the northern end of those properties. 8 The townhouse development to the south immediately adjoining the subject property is setback some 11.5 m at the northern point although reduces to some 7 m further for the southern townhouse. This development was approved in 2003. I also note the side boundary setbacks to this townhouse are varied such that there is a courtyard provided that provides solar access from the north to the townhouse and at the rear there is also a courtyard area.

9 The council relies on the general aims and objectives of the DCP and the council also raised the issue that the carparking spaces do not comply with the Australian Standard. I note the general aims and objectives of the Manly LEP and objectives of the DCP.

10 Finally the council raises the issue of suitability of the site and the precedential effect of allowing the development.

11 The Court has the opportunity of hearing from Mr Collins on behalf of the applicant and also from Mr Rourke, council's assessment planner in these proceedings. The Court has also heard from the applicant's architect Mr Stellory, and the Court has had the benefit of the supplementary shadow diagrams. This morning the Court also has the opportunity of viewing the streetscape and the context in which the proposed development sits. 12 It has been submitted on behalf of the applicant that the DCP and the LEP anticipate development and whilst this is true they do so within the parameters of guidelines for development. It is also been submitted on behalf of the applicant that the development in a sub-zone in close proximity to two other higher density sub-zones should be given concessions. It is noted that the subject site is within the sub-zone that has an FSR of 0.6:1. The other sub-zones in close proximity in the local government area of Manly provide for an FSR of 1.5:1 and 0.75:1 respectively.

13 The applicant argues that Council has approved great variations or a number of variations to councils controls, which is evidence in the schedule showing where council has approved applications which are in exceedence of the FSR control. Council on the other hand submits that there have been variations and council does provide for flexibility in the implementation of its planning regime having regards to the merits of applications. Mr Rourke's evidence is that where there have been variations to the FSR there has also been consideration given to the fact that those particular developments also complied in terms of open space areas commensurate with the size of dwellings.

14 My comment here is that this is not an inquiry into the zoning the land. The Court must give proper genuine and real consideration to councils planning regime and the Court of Appeal judgment Zhang v Canterbury City Council [2001] NSWCA 167 clearly provides that the DCP must be the central or focal point of consideration for the assessment of a development application. This is not to say that variations should not be permitted. Clearly discretion is to be exercised on the merits of the application. 15 The Court also has regard to His Honour McClellan J. then the Chief Judge of the Land and Environment Court in the matter of Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 wherein it is a relevant consideration as to how consistently DCP's, policies and guidelines are applied in the determination of the applications.

16 In terms of the Local Environmental Plan I will not recite all the controls but I have been taken to the provisions of the plan this morning. In particular the aims and objectives of the LEP for Manly 1998 include: o to increase the availability and variety of dwellings to enable population growth without having adverse effects on character and amenity on the municipality. o To ensure new development does not detract from the very special visual quality of the municipality and o To encourage re-vitalisation, rehabilitation, re-development of residential areas while ensuring that the dwellings form including alterations and additions does not degrade the amenity of surrounding residents or the aesthetic quality of the municipality. 17 The Court was also taken to the residential zone objective that include: + to allow a variety of housing types while maintaining the existing character of the residential areas. + to ensure development for including alterations and additions does not degrade the amenity of the surrounding residences and the existing quality of the environment.

18 The Court must access the application under the provisions of the DCP. This provides guidance in terms of solar access. In my assessment with the benefit of the additional shadow information this would not warrant refusal of the application. Although I note that where there are exceedences of council's controls the shadow impact should be more sensitively considered in an assessment. The adjoining dwelling has solar access adjacent to living areas and I am satisfied this will be reasonably maintained.

19 The Court was also taken to the provisions of the DCP for 2007 however parties do not press an assessment under this DCP. This DCP contains similar provisions to the DCP under which the development was assessed. But as I have stated the FSR is to be calculated differently. Mr Sattler also took the Court to the provision which refers to first floor additions: First floor additions should complement the architectural style of the ground floor and where possible retain the existing roof form…Notwithstanding setback provisions the addition may follow the existing grounds floor wall setbacks providing adjoining properties are not adversely impacted. The dwelling shall retain the existing scale and character of the street and it may be preferable that the addition be confined to the rear of the premises or be contained within the roof structure…the council does not favour 'pop tops'… 20 The Court must have as I have stated genuine and proper consideration, and realistic consideration to the DCP. A holistic reading of the DCP is also necessary.

21 In my assessment the reason why the application fails is the impact on the streetscape. The setback of the dwelling is not to be changed from what we see today but the addition of a first floor at the same setback or with a balcony of 900 mm. In my overall assessment the mass and the bulk of the building having regard to the FSR control and the purpose and the objective of FSR control as contained in the DCP. I am not satisfied the proposal provides for an appropriate presentation to the streetscape. The reason is that generally the dwellings to the north of the property, while many with alterations and additions do not dominate the streetscape, but the impact of providing a first floor level at the juxtaposition proposed in the plans in my assessment would be dominant and out of character with the streetscape rising two storeys with a limited setback. This is exacerbated by the fact that the angle of the allotments is such that the visibility from the opposite side of the road and from the south and adjoining townhouse development (that itself more than respects the minimum setback requirement) means this development would detract from the streetscape and provide for an inappropriate bulk with the second storey element located as shown on the plans. 22 Council's control anticipates if the new DCP states that "the dwelling shall retain the existing scale and character of the street and it may be preferable that the addition be confined to the rear". The rear to this dwelling has a second floor level and carried out in a sensitive way in terms of the stepping down and the splitting of floor levels and this is consistent with council's guidelines. But the provision of extending the second storey forward to the minimal setback of some 3.5 m to the street is inappropriate and is not contemplated by and is inconsistence with council's planning regime having regards to its objectives.

23 In terms of FSR the objectives are to control the bulk of buildings. In my assessment clearly the bulk of the proposed extension would be dominant in the streetscape and the proposed alteration and addition is not in sympathy with satisfying the FSR objectives/purpose. The proposal is also inconsistent with the existing of desired character of the area.

24 With respect to providing sunlight to open space areas of adjoining properties as I stated earlier I do not believe this is a reason for refusal of the application. It is also noted that the council may vary the FSR where the site is much smaller 20% substantially below the minimum I note. The proposed site is not below the minimum and in that regard that flexibility should not be activated. 25 The front setback provisions also states, "to preserve and enhance the existing streetscape". The addition above the ground floor as proposed in the plans does not preserve and enhance the existing streetscape in terms of the minimal setback to the street. The front setback as stated by council is a minimum setback of 6 m, one would say that it is unrealistic in terms of the existing dwelling already encroaching such a setback. However, there is no reason why an extension for the front of the dwelling should not be setback considerably so that it does not impose on the street. And the justification of the existing non compliance is not a justification for rising two storeys immediately towards the front.

26 On the issue of parking and access once again it is noted that council is concerned that the proposed two spaces do not meet the minimum standards. I note that whilst the applicant already parks two vehicles comfortably within this area nonetheless any approval runs with the land and the fact that it is adequate in the current circumstances is not justification for increasing the size of the dwelling. With the addition in my assessment the parking is not suitable.

27 It has been submitted that there is currently a four bedroom dwelling provided on the site and the proposal will only provide for four bedrooms plus a study, office or retreat. Nonetheless the size of the dwelling should be taken into consideration in terms of a commensurate open space area required. It is noted the proposal provides for a new courtyard however the soft landscaping proposed for the subject site is deficient in terms of councils DCP. It was submitted by the applicant that the area affords the opportunities for the use of public open space in this area and this is not disputed, but nonetheless a dwelling of the size contemplated should have a commensurate appropriate area of private open space because it is not just the current occupiers but it is the future occupants in terms of the amenity afforded by the dwelling in terms of the external spaces having a relationship to the size of the dwelling. 28 The setback to the side boundary to the townhouse at No. 57 is at a minimum of 900 mm when it should be 1.7 to 1.96 m. Furthermore, there is no variation along this boundary and the addition will be highly visible in the streetscape and imposing in terms of the streetscape and the adjoining townhouse. I note as submitted on behalf of the applicant that there are no objections and indeed there is support for the development application. This may be the case but the Court must have regard to the overall built form and this must be considered in the context of the ownership of properties changing and the Court must have regard to impacts and the relationship of built forms generally.

29 The Court spent considerable time in looking at the relative levels of the ridges or the roofs of the adjoining dwelling and having regard to the relationship of the proposed development and the plans clearly show that part of the roof will be at the maximum 1 m above the adjoining property at No. 57 and in fact below the property at No. 61. However, it is important to note is that this is looking at the development or the streetscape in plan and one must have regard to the fact that the higher element of No. 57 is considerably setback and not dominant in the streetscape. The application fails because of the relationship of the built element or the built form within such close proximity to the street and having regard to the side boundary elevation that makes it highly visible in the streetscape with an unreasonable presentation of bulk to the street. 30 Accordingly the formal orders of the Court in this matter are: 1. The appeal in respect of the property known as No. 59 Collingwood Street, Manly is dismissed. 2. The development application submitted to Manly Council and as shown in Exhibit A is determined by the refusal of consent.

3. The exhibits with the exception of Exhibit A and the Statement of Basic Facts are returned to the parties.

      J S Murrell
      Commissioner of the Court
      ljr

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