Meldeep No 5 Pty Ltd v Manly Council [2006] NSWLEC 472

Land and Environment Court of New South Wales

CITATION : Meldeep No 5 Pty Ltd v Manly Council [2006] NSWLEC 472

APPLICANT Meldeep No 5 Pty Ltd PARTIES : RESPONDENT Manly Council

FILE NUMBER(S) : 11050 of 2004

CORAM: Tuor C

Development Application :- residential flat building KEY ISSUES: retention of low cost housing SEPP10 impact on heritage significance height, bulk and impact on streetscape

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Manly Local Environmental Plan 1988 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development State Environmental Planning Policy No.10 - Retention of Low Cost Rental Accommodation

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

DATES OF HEARING: 23, 24 & 26/05/2006

DATE OF JUDGMENT: 08/11/2006

APPLICANT Mrs M Taylor, solicitor Norman Waterhouse Lawyers

LEGAL REPRESENTATIVES:

RESPONDENT Mr J Cole, solicitor Abbott Tout Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

11 August 2006

11050 of 2004 Meldeep No 5 Pty Ltd v Manly Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Manly Council (the council) of a development application (No. 278/03) under the Environmental Planning and Assessment Act 1979 (the Act) to demolish two existing buildings and construct a residential flat building with basement car parking at 27 - 29 Victoria Parade, Manly (the site). The site and surrounding area 2 The site consists of two lots being Lot 8 DP 77172 (Eversham House, 27 Victoria Parade) and Lot 1 DP 65862 (Carlton Hotel, 29 Victoria Parade). Each lot is approximately 13.5m wide and 47.5m long with a combined site area of 1281.44 sqm. The site is relatively flat and contains no significant vegetation. It contains two buildings which are examples of boarding houses constructed in the late 19th and early 20th centuries. Eversham House has been significantly altered and is to be demolished as part of the proposal. The front section of the Carlton Hotel is to be retained and the rear section demolished as part of the proposal. 3 Adjoining the site to the east is Newstead Flats (31 Victoria Parade), a three storey residential flat building with an additional storey set back from the street behind a parapet. Also to the east, with a frontage to South Steyne is the Far West Childrens Facility. To the west is 25 Victoria Parade, a three-storey residential flat building with a hipped roof. Further to the west is Manly Public School. To the rear, at 22 Wentworth Street is Drummond House. The opposite side of the Victoria Parade contains a range of three to five storey residential flat buildings. The proposal 4 The proposal provides for the retention of the front section of the Carlton Hotel, demolition of the rest of the existing buildings and construction of a five level residential flat building containing 24 apartments and a two level basement car park with parking for 56 cars accessed from the Victoria Parade. Planning framework 5 The site is within Zone No. 2 - Residential under Manly Local Environmental Plan 1988 (LEP 1988). The proposed use is permissible with consent within this zone. Clause 10(3) provides that consent shall not be granted unless the development is consistent with the objectives of the zone. Clause 19 provides requirements for development in the vicinity of an item of the environmental heritage. 11 and 13 Victoria Parade; 22 Wentworth Street; 14 and 15 South Steyne and the pine trees are heritage items in the vicinity of the site. 6 The Carlton Hotel is currently not listed as a heritage item under LEP 1988 but has been included as an item in a draft LEP. 31 Victoria Parade is also listed as an item in the draft LEP. The Draft LEP has not been made by the Department of Planning on the basis that it does not support the making of spot LEPs for heritage items. As such it is not imminent or certain. 7 Clause 25 of LEP 1988 permits the floor space of a heritage item to be excluded from FSR calculations, if the conservation of the item is depends upon the exclusion. There is no FSR control in LEP 1988 for the site. The Carlton hotel is not an item so the provisions of this clause do not apply. Mrs Taylor's submission, on behalf of the applicant, was that the FSR of the item should not be included as it was being conserved as part of the development and was therefore consistent with the objectives of the clause. 8 Development Control Plan for the Residential Zone 2001 (DCP 2001) also applies. The site falls within Density Sub – zone 1. DCP 2001 provides a range of numerical controls for development. The relevant controls include height, FSR and setback which are discussed later in the judgement. 9 Manly Town Centre Urban Design Guidelines 2002 (Design Guidelines) have been publicly exhibited and adopted and are of relevance in light of the decision of McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. 10 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)). 11 State Environmental Planning Policy No.10 - Retention of Low Cost Rental Accommodation (SEPP 10) applies to the proposed development. SEPP 10 aims to provide a mechanism for the retention of low cost rental accommodation. 12 SEPP 10 refers to guidelines (the Guidelines) which provide greater detail to assist in the interpretation and implementation of the provisions in SEPP 10. The evidence 13 The Court heard evidence from the following experts: 14 For the council · Mr E Armstrong, town planner · Mr B McDonald, heritage architect 15 For the applicant · Mr A Darroch, consultant planner · Mr R Staas, heritage architect · Mr B Newbold, architect and urban designer 16 Mr G Vickas, the Court Appointed Expert, provided a Statement of Evidence which addressed the financial viability of the retention of the boarding house under SEPP 10. He was not required for cross examination. The issues 17 The council filed an amended Statement of Issues containing nine separate issues and a number of sub issues. The inadequacies and inaccuracies of the plans (Issue 8) was not pressed by the council following the submissions of further details. The matters raised by residents (Issue 9) are addressed in the consideration of the remaining issues. These can be grouped into following main areas: i) whether the proposed development will result in a significant reduction in low cost rental accommodation (Issues 1 and 2), ii) whether the proposed development will have an unacceptable heritage impact on Carlton Hotel and heritage items in the vicinity of the site (Issue 3), iii) whether the proposed development is an appropriate design for the site considering its FSR, height, setbacks and impact on streetscape and amenity (Issues 4, 5, 6 and 7). SEPP 10- Reduction in low cost housing 18 Eversham House and the Carlton Hotel have operated as a boarding house for a number of years providing over 80 rooms. The properties are now vacant but the parties agreed that the provisions of SEPP 10 apply. 19 Clause 7 of SEPP 10 requires that a proposal to demolish a boarding house requires development consent and the concurrence of the Director General of the then Department of Infrastructure, Planning and Natural Resources (DIPNR). 20 Relevantly Clause 7 of SEPP 10 provides that: ….. (4) In determining a development application required by this clause, the council is, in accordance with the guidelines, to consider the following in each case: (a) whether there is likely to be a major reduction in the number of households or units of low-rental accommodation on the land to which the application relates, (b) whether there is available sufficient comparable accommodation in the locality to satisfy the demand for such accommodation in that locality, (c) whether the development, if carried out, is likely to cause adverse social and economic effects on the general community, (d) whether adequate arrangements have been made to assist the residents (if any) of the building likely to be displaced to find alternative comparable accommodation in the locality, (e) whether the cumulative impact of the loss of low-rental residential accommodation in the council's area will result in a significant reduction in the stock of that accommodation, (f) the structural soundness of the building, the extent to which the building complies with any relevant fire safety requirements and the estimated cost of carrying out work necessary to ensure the structural soundness of the building and the compliance of the building with the fire safety requirements.