Land and Environment Court of New South Wales CITATION : Gilet v Manly Council [2006] NSWLEC 642 APPLICANT Paul Gilet PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 10444 of 2006 CORAM: Hussey C KEY ISSUES: Subdivision :- Off-street parking, non-compliances with DCP's minimum requirement, open space arrangements, floor space ratio, streetscape, public interest Manly Local Environmental Plan 1988 LEGISLATION CITED: Manly Development Control Plan for the Residential Zone 2001 Manly Development Control Plan for Energy Efficient Buildings 1998 CASES CITED: Winn v Director General of National Parks and Wildlife & Anor. [2001] NSWCA 17 DATES OF HEARING: 29/09/2006 EX TEMPORE JUDGMENT DATE : 09/29/2006 APPLICANT Mr T Sattler, solicitor SOLICITORS Sattler & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 29 September 2006 10444 of 2006 Paul Gilet v Manly Council JUDGMENT This decision was given extemporaneously. It has been revised and edited prior to publication. 1 This appeal was lodged against council's refusal of a 2-lot subdivision at 56 Alexander Street, Manly. The subdivision follows council's approval in 1999 for two dwellings on this land, which has a total area of approximately 557 sq m. The land has frontages to both Alexander Street, where there is older dwelling that was to be retained and the approval included the construction of a new dwelling with frontage to the rear, Rolfe Street. 2 As the proposal involved demolition of a garage for the older house, the development consent incorporated garage parking spaces for both houses within the new building, having access to Rolfe Street. The full details of the site of the proposal, and the planning controls are contained in the Statement of Basic Facts on which I rely. The site 3 The site is known as 56 Alexander Street, Manly, and has 12.19 m frontages to both Alexander Street to the south and Rolfe Street to the north. It is described as Lot 8 in DP 5756. The newer dwelling fronting Rolfe Street is No. 6. 4 The site has a total area of 557.3 sq m. The surrounding neighbourhood generally consists of other attached and semi-detached dwellings. The proposal 5 The initial development application was for the Torrens title subdivision of the land so as to create Lot 56 with an area of 332.5 sq m - fronting Alexander Street and Lot 57 with an area of 244.8 sq m - fronting Rolfe Street. 6 After review, the proposed subdivision was amended to Lot 56 with an area of 307.3 sq m - fronting Alexander Street and Lot 57 with an area of 250 sq m. It was also proposed that Lot 56 have the benefit of right of carriageway over part of Lot 57 to provide pedestrian access to and the use of the existing garages fronting Rolfe Street. Planning controls Manly Local Environmental Plan 1988, under which the site is in the Zone No. 22 and the proposal is permissible with consent. The following clauses were identified as relevant in this matter: · Clause 3 (Aims & Objectives), · Clause 4 (Policies & Strategies), · Clause 10 (Zoning), · Clause 19 (Development in the vicinity of heritage listed items -- Alexander Street landscape and Pittwater Road Conservation Area). Manly Development Control Plan for the Residential Zone 2001 (Amendment 1) Manly Development Control Plan for Energy Efficient Buildings 1998 The evidence 7 Prior to the amendment of the subdivision lot layout, the council identified a number of issues concerning non-compliances with the DCP's minimum area requirement of 250 sq m, open space arrangements, floor space ratio (FSR), conservation of the streetscape, considerations of public interest. 8 In order to address these issues, the parties agreed to Mr L Winnacott, being the Court-appointed expert for planning matters and he prepared a detailed report which is Exhibit 2. Also, reports were presented from Mr H Watson, council's planner and Ms E Smith, council's heritage adviser. 9 Following Mr Winnacott's initial assessment, the subdivision plan was amended to that in Exhibit C, so that Lot 57 now complies with the minimum area (250 sq m) requirement and council no longer presses the issues relating to the non-compliance with the minimum area requirements and FSR, because the intent of the subdivision maintains the original density of the development approval. 10 The outstanding issue concerns the parking arrangements for the existing house and No. 6. The applicant says that prior s 96 modification applications eliminated the requirement for the garage at Lot 57. However, the respondent submits that the intent of the original consent should be maintained if the subdivision is to be approved and it should be conditioned by way of s 88B covenant, to maintain the existing garage arrangements. 11 On merit, Mr Winnacott supports the retention of the original parking arrangements. My findings are that with respect to parking, I note that there seems to be a limitation on parking availability in the Alexander Street frontage as evidenced by the restricted parking scheme, thereby maintaining the desirability - where possible, for off-street parking. Also, that on the northern side of the street, the house frontages are generally intact in terms of any protrusions for on-site parking. Instead they mostly have their parking access from the rear Rolfe Street. 12 On this basis, I consider more weight should be given to Mr Winnacott's recommendation that due to this limited off-street parking arrangement, then the parking intent should be maintained. The existing house had parking arrangements apparently with the garage that was demolished as part of the original consent. Under these circumstances I consider it is reasonable then to maintain that parking arrangements by way of imposition under Condition 9 of the draft conditions, a s 88B Instrument to maintain the original parking arrangements. In reaching this conclusion I note Mr Sattler's reference to the line authority in Winn v Director General of National Parks and Wildlife & Anor. [2001] NSWCA 17, that reference should be made to the originally approved plans, which differentiated the separate garage parking arrangements. However, I do not consider that the s 96 modification application clearly distinguished those original parking arrangements, instead the s 96 modification plans identify in colour the areas to be modified and that did not change the original parking arrangements. 13 Under these circumstances, I accept the council's submissions that the subdivision as amended, meets the aims and objectives of the relevant controls, provided the off-street parking space is maintained for Lot 56. Accordingly, the most reasonable way to achieve this is by way of the 88B Condition, which incorporates rights of access over Lot 57. 14 For those reasons then, the Court orders are: 1. The appeal is upheld. 2. Development consent is granted to DA No. 43/06 for a 2-lot subdivision at 56 Alexander Street, Manly, subject to the conditions in Annexure "A". 3. The exhibits may be returned except for Exhibits 2, 4, 5 and C. ___________________ R Hussey Commissioner of the Court rjs 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.