Wynne v Manly Council

Manly Local Environment Plan 1988 LEGISLATION CITED: Development Control Plan - Residential Zone 2001

CASES CITED: Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62

DATES OF HEARING: 08/12/2005 EX TEMPORE JUDGMENT DATE : 12/08/2005

APPLICANT Mr A Galasso, barrister

LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor SOLICITORS Abbott Tout

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10832 and 10833 of 2005 Penny and Charles Wynne v Manly Council

JUDGMENT This decision was given extemporaneously. It has been revised and edited prior to publication. 1 These two appeals relate to development applications for the erection of a single two-storey detached dwelling house on each of the properties at No. 8 Yatama Street and No. 11 Benelong Street in Seaforth. The sites are zoned No. 2 Residential under Manly Local Environment Plan 1988. The LEP does not contain any development standards relevant to these applications. It does, however, contain policies and strategies as well as objectives for the No. 2 Zone. 2 The policies and strategies of the plan under the heading Residential and Community Life describe the maintaining, protecting and increasing the municipality's permanent residential population and a description of the nature and intended future of residential areas within the municipality by means of density and other controls. These controls are to be found in Development Control Plan - Residential Zone 2001 ("the DCP"). 3 The objectives of the No. 2 Zone relate to the setting aside of land to be used for housing and associated facilities. In particular the objectives refer to the allowance of a variety of housing types while maintaining the existing character of residential areas throughout the municipality and ensuring that building form including alterations and additions does not degrade the amenity of surrounding residents or the existing quality of the environment. The objectives also require the improvement of the quality of residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations.

4 The setback requirements in the DCP are variably infringed to a limited degree by these proposals but these non-compliances were not pressed as matters of any serious concern.

5 The principle issue in this case involves the requirements in cl 3.3 of the DCP that deal with floor space ratio ("FSR"). Being in Density Sub-zone 5 the two sites attract a maximum FSR of 0.45:1. It is now agreed that both proposals will have a FSR of 0.66:1 and the exceedance of the FSR equates to approximately 100 sq m of floor space in each case. In order to determine whether or not the proposed exceedances are reasonable, it is appropriate in my view to take into account the objectives of the FSR standards as contained in s 3.3.1 of the DCP. Objectives D and E involve matters of view loss, privacy, sunlight to neighbouring properties and access to sunlight within the development itself and there was no issue that these objectives were infringed by either proposal. The relevant objectives are: (a) to control the bulk of buildings and (c) to be consistent with the existing and desired character of the residential areas. 6 The importance of the FSR controls in terms of bulk and scale primarily involves the presentation of new development to the public domain: in this case Benelong Street and Yatama Street. Given that the buildings will be little seen from the rear in each instance and having considered the form of these buildings and their presentation to the neighbours, I have formed the view that their impact will be entirely within reason.

7 As for the impacts associated with bulk and scale in the streetscape, this is the most important aspect of this case and is indeed a difficult question that must of course be dealt with in the context of the objectives of the FSR.

8 It has become clear in this instance that FSR as such is not a very good measure of bulk and scale given the difficulty of observing these dwellings in their totality. FSR is but one indication of bulk and scale and given that this is so expressed in the DCP it needs to be given careful consideration by examining likely impacts in terms of presentation of both developments in their context in the streetscape.

9 I accept that the character of the locality in which these two sites are situated is somewhat mixed there being one and two storey detached dwelling houses together with medium density developments and a SEPP 5 development opposite in Yatama Street. This is indicative of a certain degree of flexibility to accommodate different forms of development but indicates a difficulty in achieving consistency. There is also a need to consider the desired character of this residential area. It was agreed that the area is in transition and this transition is indicated by a number of houses which have been extended, the availability of vacant land for development and indeed the opportunity for existing smaller, older style houses to be re-developed. 10 These matters together with the fact that approvals have been granted for developments having FSR's in excess of those indicated in the DCP seems to indicate that the present FSR limit is unlikely to be sustained in the longer term. Hence the desired character of the area apart from the fact that it will continue to be substantially comprised of detached dwellings is unlikely to be reflected by the present FSR standard in the DCP. In other words, the circumstances are such as to indicate that strict compliance with the standard is not warranted.

11 The question that thus arises is whether the extent of the non-compliance here is unreasonable. The future character of the area and more particularly the area immediately surrounding this site is, in substantial part, indicated by the recent council consent and construction of two storey houses at Nos. 10 and 12 Yatama Street and the council consent for a two storey house at 13 Benelong Street to the east of the proposal at No. 11.

12 Both of the proposed houses are setback are from the street in accordance with that of the DCP and consistent with that of their existing or proposed neighbours. They significantly exceed the landscape area requirement in the DCP. Both houses were the subject of criticism for being somewhat box like and lacking in modulation and that these factors do not assist in the mitigation of the impact of the buildings in terms of bulk and scale. 13 Having carefully examined the plans, I have reached the conclusion that the buildings are far from being devoid of modulation and architectural interest. Although a better design architecturally is possible for each of them, this is not the test. In my view what has been provided is sufficient and indeed satisfactory taking into account the landscaping that is also proposed to provide an appropriate setting for these buildings. In the circumstances I have not been persuaded that the bulk and scale of these buildings, despite the significant non-compliance with the FSR requirement, would be inconsistent with the existing and desired character of this residential area.

14 Consistent with the policies and strategies of the LEP, these proposals will serve to increase the municipality's permanent residential population and will, to an appropriate degree, form part of the revitalisation and redevelopment of this residential area without degrading the amenity of surrounding residences or indeed the aesthetic quality of the municipality. The objectives of the Residential Zone will be similarly met by the proposals. 15 Finally in this regard I should comment on the materials provided in relation to consents issued by the council where the FSR standards in the DCP were breached. This analysis deals with some 18 properties with exceedances ranging between 8% and 75%. Only a small number of these examples come from the density sub-zone in which the site is situated. But this makes little difference to the principle embodied in the approach that seems to be applied by the council that, in appropriate circumstances, the standard in the DCP can be varied. What I am doing today is little different to what council has done but my decision to uphold these appeals is not based upon the approach taken by the council in the past, rather the appeals have been determined on their own merits.

16 In relation to the conditions for the Yatama Street consent, consistent with the evidence provided by Mr D Ford, a qualified arborist, I would change Condition ANS01 to refer to one Eucalyptus species in the front yard. Condition DA17 is amended so that it requires the maintenance of pedestrian access across the footpath in front of the site. Condition DA243 is amended by the deletion of the second and third sentences consistent with the decision of Pearlman J in Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62. Condition DA323 is amended so as to apply a time period of 5 years rather than 2 years. 17 In relation to the Benelong Street consent, application Condition ANS01 is amended so that it only refers to the large tree on the rear western side of the site. DA17 is amended so as to refer to access across the footpath. Condition ANS01 is amended by deleting the reference to any trees other than the Melaleuca on the eastern side of the rear yard (tree 12). Condition DA243 that refers to tree protection bonds is amended as discussed above and Condition DA323 is amended is amended to refer to 5 years instead of 2 years.

18 Conditions DA274 in both applications require the payment of s 94 Contributions in accordance with council's s 94 Plan. The amount calculated on the basis of this plan for both applications amounts to $42,000. This was increased during the hearing from something less than $6,000 calculated on the basis of the s 94 Plan that was applicable at the date of both development applications. The applicant says that the amount of $42,000 for each application is excessive and unreasonable but has since advised that it withdraws its objections to these conditions, without prejudice to the applicant's rights to lodge an application pursuant to s 96 of the Environmental Planning and Assessment Act 1979. ___________________ T A Bly Commissioner of the Court rjs

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