Land and Environment Court of New South Wales CITATION : Provincial Planning Pty Ltd v Manly Council [2004] NSWLEC 413 APPLICANT Provincial Planning Pty Ltd PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 10318 of 2004 CORAM: Murrell C Development Application :- Demolition of existing dwelling KEY ISSUES: construction of two new dwelling houses impact on adjoining residential properties LEGISLATION CITED: Manly Developmentlocal Environmental Plan Development Control Plan CASES CITED: DATES OF HEARING: 29 &30 June 2004 EX TEMPORE 06/30/2004 JUDGMENT DATE : APPLICANT Mr G Newport, barrister LEGAL REPRESENTATIVES: RESPONDENT Ms C Schofield, solicitor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 30 June 2004 10318 of 2004 Provincial Planning Pty Ltd v Manly Council JUDGMENT 1 This matter has come to me as consent orders. It was an appeal lodged against council's deemed refusal for the property known as 4 West Street, Balgowlah Heights. The subject land is some 1820 m sq with a street frontage to West Street of 20 m and a depth of some 90 m. The proposal is for the demolition of the existing dwelling on the subject land and the erection of two dwellings and the subdivision of the land into two parcels of land. Lot 1 would be 838 m sq and Lot 2, 986 m sq. An access handle is to be provided over the front lot to the rear allotment. The two new dwellings proposed to be erected are three and four bedroom dwellings with associated pools, terraces and landscaping areas. 2 To the north of the subject site there is a residential flat building of some four levels. To the south of the subject site there is also a residential flat building. The area is one that was described by the Court appointed expert Mr Chris Young, as being eclectic. There are a number of residential flat buildings within the area and medium density developments, as well as dwelling houses. There has been recent redevelopment of a number of sites to erect large dwelling houses within West Street. The area is one that can be said to be undergoing change. 3 To the Court there was evidence given on the view yesterday morning, where the proceedings commenced, by a number of resident objectors. In particular from the adjoining four level residential flat buildings at No 6. Mr Caruana was concerned about his dining room and kitchen living room area being overlooked by the proposed development. The applicant has agreed to a number of conditions that would provide for further privacy screening between his property, that is from bedroom 3. I agree with Mr Young that the privacy concerns have been ameliorated and the Court also takes note of the fact that it is a bedroom area that adjoins the subject property. Mr Caruana was also concerned about the driveway in terms of noise and lights and the applicant has agreed to a lap and capped fence opposite his main bedroom window. 4 The Court also heard from Mr Wood. His unit is no.6 of 6 West Street and Mr Wood is concerned about overlooking from the pool area and the height of the pool area. It is noted that this is some15 m from the subject residential flat building. In this regard I am satisfied on the basis of the site inspection, having the benefit of Mr Young's report, the separation/privacy concerns have been addressed by the proposed development application and this issue would not warrant refusal of the application. 5 Mr Paul Grey, also representing the body corporate, is the owner of unit 2. He was concerned about the height of the terrace that adjoins the pool. It is noted that the applicant agreed to lower this by one metre, although the objectors were of the opinion it should be dropped by some 2 m. 6 Mr John White of 105A Woodland Street is the owner of a townhouse No. 8. There are eight townhouses in this medium density development that adjoins the rear of the subject site. The access to the townhouses is in the middle of the sitevia a private road and this is the portion that is largely opposite the subject site. The proposal in his opinion is an overdevelopment and did not address or comply with all of council's controls in the development control plan. 7 Mr Leckie of No. 7 in the townhouse development was concerned about the setback to the rear boundary not being consistent with other development that has occurred along West Street that he indicated was some 30 m. He was also concerned about overlooking and the adequacy of landscaping being executed. 8 Mr Kevin Bloor of No. 3 also addressed the Court and raised concerns about the imposition of the proposed development on the townhouse development at 105A Woodland Street. 9 The Court also heard from resident objectors in the Court who reiterated their concerns and the Court has had regard to their written objections contained in council's bundle. The resident objectors' concerns have been in some respects, addressed by amendments to the plans and by details that have been provided to the Court proceedings here. 10 The issues of the residents of 105A Woodland Street are very much related to the fact that they have enjoyed this parcel of land, specially its rear portion, as a de facto bushland area and the Court can understand their concerns about development of the subject land. By the same token, there is potential for the land to be developed and the development proposal as submitted to the Court, in terms of the development of that portion of the land with a setback of some 15.5 m to the face of the dwelling and 11 m to the balcony, is not unreasonable. However, I also need to address the relevant development control provisions in terms of the Judgment of his Honour Spigelman CJ in Zhang in the Court of Appeal. "That proper genuine and realistic consideration must be given to the development control plan." 11 In this regard, the regime of planning is that the site is zoned under the Manly LEP 1998 as residential. In that regard there are a number of objectives for the residential zone to which I have had regard to. The LEP does not provide any other controls but rather the Aims and Objectives at 3(b) state "To give the Council greater responsibility for environmental planning by creating only broad controls in this plan and leaving more detailed local environmental planning provisions in the development control plans provided by the council." In that regard the relevant development control plan is the Manly Development Control Plan for the Residential Zone 2001, as amended to June 2003. There are a number of controls in the plan that must be given proper consideration and the focal point for the Court's assessment in this application. 12 I will say that the Court has had the benefit of a Court appointed expert and his report that was tendered to the Court. The council agreed to the Court appointed expert being the independent consultant to undertake the assessment and report to the Court. Mr Young, in his assessment of the application, has considered all of the relevant controls that are articulated in the development control plan. 13 There are a few areas that the proposed development does not strictly comply with in a numeric sense. But as submitted on behalf of the applicant, the framework or structure for the development control plan is in three parts. That is there are objectives, performance criteria given and diagrams to assist in the interpretation of those criteria. In many respects, as stated by Mr Newport, the performance criteria, in terms of the numerics, are deemed to comply if the development satisfies those. However there is also the opportunity to look at the objectives of the various provisions to see whether they are satisfied by development. In terms of privacy, as I stated, I am satisfied the proposed development is one that is worthy of approval. 14 In the context of the area, the subject site has residential flat buildings adjoining on either side and the proposed development is one that 'fits' in the context of the area. The floor space ratio, as calculated by Mr Young, and I am in agreement with, is in terms of the model provision definition. The subject dwelling houses are 0.45:1 which is compliant and dwelling 1 on a calculation is .46:1. however I am satisfied that the floor space ratio is complied with in terms of the development control plan and its objectives. 15 With respect to the areas of non-compliance, the height, which is referred to on p 25 of the development control plan, provides for a number of objectives. The objectives are to control the height of buildings plus specifying maximum wall and roof ridge heights to provide for building heights that are consistent with the locality and to minimise disruption, loss of views, loss of privacy and to provide sunlight access to private open spaces within the development and maintain solar access to adjoining properties. In terms of the objectives of the height, I am satisfied the proposed development complies with the objectives and in that regard I agree with Mr Young's assessment. The circumstances of this case are that the topography is one that must be considered in terms of the constraints of the site. The development in my assessment, is one that will sit comfortably within that site, despite exceeding the height. In particular the height was of concern to the residents of 105A Woodland Street. However, I am satisfied that the regime of landscaping and the existing trees are ones that will ameliorate adverse impacts or unacceptable impacts of the proposed development. The dwelling at the rear will be higher than provided for in the DCP but the real test and the focal point, is that the objectives of the DCP are satisfied in my assessment. 16 With respect to the issue of swimming pools, the development control plan at p 57 provides a number of objectives that swimming pools should be located to minimise their impact on adjoining properties and to filter noise and maximise privacy to ensure no spillage or overflow to adjoining properties and swimming pools should be appropriate located for visual and aural privacy and not adversely impact on the streetscape. I am satisfied that the swimming pools as proposed,(there is a swimming pool for each dwelling house), meet the objectives of the DCP in terms of the area that will be out of ground. The swimming pools are, because of the steepness of the slope of the site, ones that will protrude above the levels suggested in terms of the numerics of the development control plan. But in my assessment, I agree with Mr Young that the objectives are satisfied. 17 With respect to overshadowing, once again I agree with Mr Young's assessment that the overshadowing is not a matter that would warrant refusal of the application. I must have regard to the circumstances of the case and in this instance the topography and the orientation is one that the proposed dwellings in my assessment, provide for adequate solar access to adjoining properties. 18 With respect to the issue of the driveway. The driveway width is contained in the DCP at p 10 and it relates to the subdivision of land and access handles. There is no strict compliance with the numeric criteria, however once again in terms of the traffic that would be generated by the proposed driveway and in terms of not creating a hazard, I am satisfied that the access handle from the street to the second dwelling that is at the rear of the front dwelling fronting West Street, is satisfactory and would not warrant refusal of the application. The criteria are set out in the DCP but it also contains a number of objectives in terms of the subdivision and access handles. In that regard I agree with Mr Young that the access handle complies with the objectives of the Development Control Plan and would not warrant refusal. 19 Mr Young, in his assessment, has noted that there have been a number of other dwellings in West Street, more recent dwellings in particular, that do not strictly comply with the DCP and the topography of the land must be taken into consideration in assessing this development application. When I say that, however, if there are adverse impacts created by the non-compliances, then that is a matter that may warrant refusal of an application. But in the circumstances where the non-compliances do not create adverse impacts and in this situation in the circumstances of this proposal, I do believe that the non-compliances do not impact on adjoining properties or the streetscape, then I am satisfied that the proposal is one that warrants approval. 20 The other non-compliance was with respect to the front as referred to in the Development Control Plan. The front fence has been amended such that it generally complies with the requirements of the Development Control Plan and I am satisfied that there will be no adverse impact on the streetscape. 21 The development as I stated, is one that provides for the orderly and economic development of the land. It is an area that is mixed in terms of the densities. The proposal complies with council's FSR. There is no adverse impacts in terms of bulk and scale. The proposal, in terms of the streetscape and in terms of the area, generally will sit comfortably on the land. 22 The proposal has been designed to respond to the topography in terms of stepping down the block. But given the steepness of the block there are areas where the height is not strictly complied. In my opinion it is not a matter that would warrant refusal of the application. 23 In terms of the trees on the subject site, it is seen that a number of significant trees are to be retained on the site. There are 57 trees currently on the site and 26 are to be removed. However that must also be looked at in the context of 35 additional canopy trees between 10 and 30 m that will be planted on the subject site. Landscaping is an important component and it is an important part of the way in which the proposed development has been designed to allow for landscaping to be integrated with the development. I am satisfied that the landscaping proposed, with the retention of the trees that have been identified - additional trees were identified on site yesterday - ensure that there is immediate screening for certain properties. In particular, the olive tree for the property at No. 6 next door. The Jacaranda, Norfolk Island Pines, Cheese tree and Umbrella tree also to be retained at the boundary with the public reserve at 105A. I am satisfied that the proposed development will make a positive contribution to the vegetated landscape of the area. 24 In cases such as these, I can understand the concerns of the residents from both properties that gave evidence to the Court. Because for many years they have enjoyed what has been basically a bushland vacant parcel of land adjoining their properties. But nonetheless, it would be unreasonable to expect such a situation to be maintained. In my assessment the proposed development has had regard to the need to continue to contribute to the vegetated environment. It is always somewhat curious that trees on other people's land are more highly valued at times than trees on peoples own property. It is clear from the plans, that it is proposed that the vegetation is as I stated, an integral part of what will be the final outcome for these dwelling houses sitting within that environment. The proposal complies with the 55% landscaping requirement identified in the Development Control Plan. 25 With respect to precedent, which was an issue raised by the residents, approval of the proposal will not create an undesirable precedent. The setback from the rear boundary is in excess of the 8 m requirement contained in council's control and the setback is one which still allows for vegetation and screening. Yes the dwelling house will be visible. The purpose of vegetation is not to completely screen dwelling houses but to complement the architecture of the dwelling. I am satisfied that it will do so in the circumstances of this case. 26 The conditions are ones that are generally agreed to between the parties, except the council seeks to impose a condition requiring a landscape bond of $155,500 on the trees to be retained to be protected. Council sought this amount calculated on the basis of its policy for the height of trees. And presses this condition. 27 On the other hand, the judgments in this Court indicate that such a bond is not appropriate. There are other mechanisms which can seek to achieve the same outcome in terms of the finished development providing for a landscape setting with a number of mature canopy trees. The offer of $35,000 from the applicant is considered to be more than reasonable in the circumstances and therefore condition 41 will have a security bond of $35,000. It has also been agreed during the proceedings, that the $35,000 be returned on completion or at the occupation certificate stage, except for $10,000, which would be retained by the council. An agreed expert for landscaping is to be appointed to provide a report to the council in terms of the achievement of the landscaping plan and compliance in that regard after twelve months of occupation. The cost of such an inspection would be at the applicant's expense. On the satisfaction that the landscaping complies with the landscape plan, the $10,000, with the exception of the inspection fee, will be returned to the applicant. This is considered an appropriate condition, and it should allay the fears of residents that the landscaping will be carried out and executed in accordance with the landscape plan. The residents referred to other dwelling houses that had been allowed in the area where landscaping had not been completed or enforced but I am satisfied the above conditions will achieve the desired outcome. 28 The other conditions are as generally agreed to between the parties and there is not a need for me to rule on any other conditions that have been further considered this morning to finalise same. 29 On the basis of my assessment, with the benefit of the view, having regard to the resident's concerns, both written and oral, and with the benefit of hearing from the Court appointed expert, I am satisfied there is no reason why the Court should not agree to the consent orders being issued. 30 Therefore the formal orders of the Court are: 1. The appeal in respect of the property known as 4 West Street Balgowlah is upheld; 2. The development application submitted to Manly council and as amended, is approved subject to the conditions contained in Annexure A; 3. The exhibits, with the exception of exhibits 4, 14, A, E and G are returned to the parties. ___________________ J S Murrell Commissioner of the Court rjs/ljr 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.