Land and Environment Court of New South Wales CITATION : Invegowrie Properties v Manly Council [2004] NSWLEC 646 APPLICANT: Invergowrie Properties Pty Ltd PARTIES : RESPONDENT: Manly Council FILE NUMBER(S) : 10757 of 2004 CORAM: Roseth SC KEY ISSUES: Development Application :- residential flat building LEGISLATION CITED: CASES CITED: DATES OF HEARING: 19/11/2004 DATE OF JUDGMENT: 11/24/2004 Mr G. McKee, solicitor of McKees Legal Soltuions LEGAL REPRESENTATIVES: Ms C Schofield, solicitor of Pike Pike & Fenwick JUDGMENT: - 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 24 November 2004 10757 of 2004 Invergowrie Properties Pty Ltd v Manly Council JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal of a development application to demolish the existing buildings and erect a four-storey residential flat building on lot 1 DP 921014 and lot 6 DP 666665, known as 104-106 Whistler Street, Manly. The site 2 The site is on the east side of Whistler Street, between Carlton and Pine Streets. The area is 430m2. The east side of the street is zoned for the highest density available in Manly, with a height of four storeys plus attic. The west side of the street is zoned also for flats, though the maximum height is three storeys plus attic. Despite the zoning, much of the existing development is of low scale, such as small single-storey houses on small allotments. The proposal 3 The applicant proposes to demolish the existing buildings on the site and to erect a residential flat building of four storeys over basement parking. The proposal complies with most planning controls, the exception being the setbacks from the boundaries. Relevant planning instruments 4 The two relevant instruments are the Manly Local Environmental Plan 1998, which zones the site Residential and Development Control Plan for the Residential Zone 2001 (the DCP). The issues 5 Following negotiations between the parties and the submission of several sets of amended drawings, only one issue remained. In the council's submission, the building should be set back from the north boundary by 900mm at ground floor level, 2m at first floor level, and 3m at second floor level. The actual setback is zero for part of the boundary, 1m setback for the other part at ground floor level, and 2m at first and second floor levels. The objectors' evidence 6 The Court heard the evidence of four objectors, all of whom live near the site. Mr P Armstrong, who lives at 98 Whistler Street, two properties to the south of the site, said that he objected to the 4.5m-setback from the rear (where the DCP requires 8m). This would cause him loss of sunlight, loss of sky view and loss of privacy. Mr A Yuille, who owns an apartment at 102 Whistler Street, objected to the loss of sunlight to his north-looking balcony. Mr H MacLauren, who lives at 71 Whistler Street, on the other side of the road, objected to the large bulk of the building. His own property would not, however, suffer adverse impact. Ms A Roelvink, who lives at 3 and 3a Pine Street and adjoins the site to the north, objected that the proposal was too close to the common boundary and would take away natural light from her rear yard and open space. 7 In my opinion, Mr Armstrong's criticism that the rear balconies come too close to the boundary is valid. I understand that this came about in the course of the give-and-take of negotiations, where the experts suggested that some of the DCP's controls might be relaxed in exchange for over-compliance with other controls (such as the height). The drawback of such an approach can be that the benefit from over-compliance accrues to one neighbour, while the adverse impact of non-compliance falls on another. During the hearing the applicant offered to set back an additional 1.5m from the rear. This would significantly improve Mr Armstrong's situation. A condition to that effect is imposed. 8 As regards sunlight to Mr Yuille's balcony, I note that it will continue to receive sunlight, though less than it does now. It is in a highly vulnerable position, close to the north side boundary in a high-density zone. To retain more sunlight on the balcony would require an unreasonable reduction in the development potential of the subject site. 9 Ms Roelvink's objection is the issue embraced by the council and is discussed below. The evidence and findings 10 Mr Peng Huat Ooi, the council's consultant town planner, recommended that the proposal set back 900mm from the common boundary with Nos 3 and 3a Pine Street, because the impact would be reduced if there could be some landscaping along the site's boundary. Ms Deborah Laidlaw, a town planner and the Court-appointed planning expert, said that, on balance, the setbacks of the various levels to the north boundary were acceptable. If the building had a continuous setback of 900mm at ground level, the space would not be suitable for landscaping and the impact on 3 and 3a Pine Street would probably be worse. Mr Neil Ingham, the applicant's town planning consultant, agreed with Ms Laidlaw. 11 I accept Ms Laidlaw's opinion that a partial zero setback along the common boundary is likely to reduce rather than increase the impact on Nos 3 and 3a Pine Street. This is because a wall that is set back 900mm is likely to contain windows, or, more correctly, it would be unreasonable to require that it does not contain windows. The 900mm setback would allow people to walk along the boundary. Being in the permanent shade of the boundary fence, it would not be a propitious place for landscaping. I note that the proposed wall on the boundary is 2.4m high. This is only 600mm more than the height of a standard boundary fence, and only 300mm more than the height of a fence with a lattice on top. 12 For the above reasons the appeal is upheld. Orders 1. The appeal is upheld. 2. Development application to demolish the existing buildings and erect a four-storey residential flat building on lot 1 DP 921014 and lot 6 DP 666665, known as 104-106 Whistler Street, Manly is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned except for Exhibit A. _______________ Dr John Roseth Senior Commissioner 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.