David Rudder Associates v Manly Council [2005] NSWLEC 105

Land and Environment Court of New South Wales

CITATION : David Rudder Associates v Manly Council [2005] NSWLEC 105

APPLICANT David Rudder Associates

PARTIES : RESPONDENT Manly Council

FILE NUMBER(S) : 11386 of 2004

CORAM: Nott C

Development Consent :- alterations and additions to existing dwelling - partial loss of waterviews for neighbouring properties

KEY ISSUES:

Environmental Planning and Assessment Act 1979, s97 LEGISLATION CITED: Manly Development Control Plan for the Residential Zone 2001 Manly Local Environmental Plan 1988

DATES OF HEARING: 10 March 2005 EX TEMPORE JUDGMENT DATE : 03/10/2005

APPLICANT Mr S. Kondilios of Maddocks Lawyers

LEGAL REPRESENTATIVES:

RESPONDENT Mr B. Tobin of Abbott Tout

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Nott C

10 March 2005

11386 of 2004: David Rudder Associates v Manly Council

JUDGMENT 1 This is an appeal against council's refusal of a development application in respect of alterations and additions to an existing residence at 90 Cutler Road, Clontarf. 2 The hearing occurred on the site, and I heard evidence from the court-appointed expert, Ms K Gordon, a town planner. I also heard evidence from adjoining neighbours who live at 23 and 25 Moore Street. These adjoining properties are on higher ground and have a view over part of the subject site towards the water. 3 The original application that was lodged with the council provided for a roof form (for upper-floor bedrooms) which would have impacted to a greater extent on the views of the adjoining neighbours than the amended proposal which is now before the Court and in respect of which the applicant seeks development consent. The amended plans are exhibit 2. 4 At the uppermost level, two bedrooms are proposed, together with a robe and en-suite. The roof in the amended plans is now a flat roof over the uppermost level. In respect of the roof over the bedrooms, it is at approximately the same level as the level of the roofs on the properties on either side but the roof over the en-suite is lower. In addition, it could be remarked that the flat-roofed proportion of the proposal does not extend towards the water as much as the roof forms on the adjoining properties. The result of the smaller projection towards the water means that less waterviews will be lost from the properties above the subject site. 5 On behalf of the neighbours at 25 Moore Street, I also heard evidence from chartered architect Mr S Fayle. Objection was taken to this from the solicitor for the applicant. However, I note that Mr Fayle's firm had previously lodged an objection on behalf of the adjoining neighbours, so I see no reason why Mr Fayle's evidence should be excluded. 6 There are three breaches of the council's Development Control Plan for the Residential Zone 2001. This DCP gives greater detail to the Manly Local Environmental Plan 1988. The main provisions of the LEP and the DCP that were in issue are set out in the statement of evidence of Ms Gordon. In addition, I have had regard to other provisions of the actual DCP, which was tendered. 7 In relation to the wall height on the eastern elevation, the proposal is in breach of the control by 0.18 m. 8 In regard to the setback requirements, 400 mm of the wall of the robe and en-suite at level 4, extending into the room by 270 mm, is in breach of the control. 9 Having viewed the subject site from the adjoining neighbours' properties in Moore Street, I am of the opinion that those breaches are minor as regards the loss of views. 10 Of more concern was the breach of the floor space ratio control, which (subject to a power to vary it) requires 0.4:1, whereas the proposal is approximately 0.5:1. Ms Gordon was of the opinion that notwithstanding the breach of this control it would be appropriate to grant development consent for several reasons. One of those reasons was that there is, as I mentioned, a power to accept a variation to the floor space ratio where the site is a small site such as the subject one, which has a land area of 458 sq m. This is provided for in clause 3.3.2 of the DCP. 11 A large contributing factor to the floor space ratio of 0.5:1 is the fact that the garage which exists on the site has been excavated, and the definition of existing ground level means the level of the ground on a site as at the date on which the DCP commenced exhibition, that is, 28 May 2001. If the garage had not been excavated and this was a site without a house on it, it would be possible in erecting a new house to excavate the garage and it would appear that the garage (being required carparking) would not be included as floor space. As Ms Gordon said, the DCP appears to penalise existing houses compared with new houses. 12 I have taken into account the suggestion that the roof form over the bedrooms could be further lowered. However, having observed the likely extent of view loss from the adjoining properties at 23 and 25 Moore Street, the difference in my opinion does not warrant the further amendment to the proposal along the lines suggested by Mr Fayle. 13 The proposed development affects the lower foreground waterviews from these adjoining properties, more so at the ground-floor level than at the upper level. Mr Simpson owns the property at 23 Moore Street, and a lot of his time is spent at the upper level because he is generally confined to a wheelchair. In my opinion, the loss of waterview from the upper level would be minor as viewed from a wheelchair position or from lying in bed. 14 I have also taken into account that the solicitor for the council made a submission that the council accepted Ms Gordon's view that it would be reasonable to approve the proposed development as amended. The council however, did not formally consent to the granting of consent orders, probably because of the objections that remained from neighbours at the two properties that I mentioned. 15 The conditions that the council seeks to impose have been agreed to by the applicant. In the circumstances, it is appropriate to allow the appeal. 16 Accordingly, the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted for alteration and additions to the dwelling house at 90 Cutler Road, Clontarf, subject to the conditions in Annexure A hereto. 3. The exhibits, other than exhibits A, 2 and 7, may be returned.