Humel Architects Pty Ltd v Manly Council [2006] NSWLEC 130

Land and Environment Court of New South Wales

CITATION : Humel Architects Pty Ltd v Manly Council [2006] NSWLEC 130

APPLICANT Humel Architects Pty Ltd PARTIES : RESPONDENT Manly Council

FILE NUMBER(S) : 10919 of 2005

CORAM: Bly C

KEY ISSUES: Development Application :- Excessive wall height, loss of privacy, excessive excavation, excessive floor space ratio, pedestrian safety, insufficient side and rear setbacks, loss of mature trees, unsatisfactory garbage requirements

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 65 Manly Local Environmental Plan 1998 Manly Development Control Plan for the Business Zone 1989

DATES OF HEARING: 15/03/2006

EX TEMPORE JUDGMENT DATE : 03/15/2006

APPLICANT Mr C McEwen, barrister

LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

15 March 2006

10919 of 2005 Humel Architects Pty Ltd v Manly Council

JUDGMENT This decision was given extemporaneously on site and has been revised and edited prior to publication.

1 This appeal relates to development application No. 276/05 which is for the demolition of a decommissioned electrical substation and public toilets and for the erection of a three storey mixed commercial and residential building at 57A Ethel Street, Seaforth. The building is to contain five dwellings and two commercial units plus a basement containing 12 carparking spaces. The basement involves excavation to all four boundaries of the site. Access to the carpark is off Ethel Street along the western boundary. 2 The site comprises Lot E in DP420436. It has an area of about 485 sq m with a frontage of about 13.7 m to Ethel Street and a depth of about 35.4 m. It is relatively flat with an upward slope at the rear where there are a number of trees that are proposed to be removed. 3 The locality comprises a mixture of commercial, retail and residential development. The site immediately adjoining to the west is vacant and to the east there is a 3 m driveway which provides access to a hatchet shaped lot at the rear (57 Ethel Street) which contains a two-storey dwelling house. 4 The site is included in the Business Zone under Manly Local Environmental Plan 1998. ("the LEP"). Also applicable to the site is the Manly Development Control Plan for the Business Zone 1989 ("the DCP"). 5 The proposal exhibits substantial compliance with the various requirements of the DCP with the exception of the floor space ratio ("FSR") requirement, building wall height and setbacks. The proposed FSR is 1.5:1 and the proposal has a FSR of 1.54:1 plus two carparking spaces in excess of the minimum requirement. A relatively small proportion of the building does not comply with a 3 m setback requirement and similarly the relatively small proportion of the building exceeds the maximum wall height of 10.5 m by about 300 mm. 6 The application was advertised and three objections were received. Matters of concern raised in those objections include overlooking and loss of privacy, inappropriate removal of trees from the site, non-compliance with council's requirements including those contained in the DCP and the inappropriate use of planter boxes where deep soil planting should be provided. 7 Of particular note was the objection from Ms M J Allison of 57 Ethel Street. Whilst on site she provided the Court with a comprehensive explanation of her concerns. In particular she complains of the height and number of floors involved in the building, the insufficiency of site setbacks, the insufficiency of the rear setback and the lack of deep soil planting and the carparking arrangement. 8 Having also read her letter it seems that her principal concerns comprise overlooking opportunities produced by this proposal particularly from upper level balconies and the removal of existing vegetation that would otherwise provide privacy. This overlooking is towards her north facing living room windows and towards her north facing outdoor activity and entertainment space where she has tables and chairs positioned to enjoy the amenity afforded by the northern orientation. She was also concerned that the windows and balconies in the proposal would enable occupants to overlook her driveway and that she and her visitors would thus be observed whilst using this driveway. 9 Following its consideration of a report prepared by a consultant town planner that the application be approved, the council nevertheless decided to refuse the application for 11 reasons involving matters of excessive wall height, loss of privacy, excessive excavation, excessive FSR, pedestrian safety associated with the driveway, insufficient side and rear setbacks, loss of mature trees, unsatisfactory garbage arrangements, non-compliance with State Environmental Planning Policy No. 65 and the proposal having failed to respond to resident objections and finally because the proposal is not in the public interest. 10 The hearing began on-site with an inspection of the locality and of Ms Allison's property. Following that inspection the hearing resumed at the offices of the council where the issues of concern to the council were discussed variously with the experts: § Mr E Armstrong and Mr R Flemming, town planners, § Mr J Tramonte, landscape architect, § Mr W Humel, architect, § Mr A Morton and Mr F Beatty, arborists and § Mr J Inglese, a council traffic engineer. 11 In addition I was able to take into account the written evidence of Mr L Marshall, a traffic engineer. 12 Leaving aside the matters that arose in relation to the without prejudice conditions of consent, the matters of concern to the council comprise the extent of excavation especially at the rear of the site and the resultant removal of existing vegetation and its replacement with planting in a large scale planter box. The windows in the east wall of the building where it has a zero setback on to the access way to No. 57, overlooking from the upper level terraces, vehicular egress from the site and associated pedestrian safety concerns, flow through ventilation and access to light for the dwellings. A concern regarding storage areas and garbage storage areas has been resolved by a revision to the design. 13 The southern end of the building is setback from the side boundaries and stepped back from the rear boundary in a manner indicated by the DCP and, in terms of built form I do not accept that this is in any way a problem. What is of greatest concern at this southern end of the site is the extent of the excavation which will here result in the loss of all existing vegetation. This vegetation includes a number of trees but there is only one tree which was agreed to be of significance and which would otherwise be protected by the council's tree preservation order. If this tree were to remain it would provide a significant degree of privacy for the property at No. 57 and would also soften the appearance of the building when viewed from that property. 14 In place of these trees there is to be a planter box some 13.5 m wide by at least 4 m by 1.5 m in depth (above the basement). This planter also extends along the west and east side of the property although on the east side its depth is reduced to 300 mm over two detention tanks. There was no dispute that the vegetation proposed to be planted in these planter boxes is likely to be successful although there was some dispute as to the height to which the eight Blueberry Ash trees might grow. That dispute involves a difference between 5 and 6 m. There was also a disagreement as to whether the depth of the planter box at 1.5 m would be sufficient. In this context I accept the evidence provided on behalf of the applicant that it would be. 15 I am satisfied that not only will be landscaping scheme be successful but importantly that the Blueberry Ash trees will gain a height of between 5 and 6 m. This height is measured from a new ground level in the planter box something higher than the existing ground and certainly higher than the ground level from which the more important of the existing trees springs. To my mind this landscape setting will be appropriate for this form of development and whilst the building will be able to be seen from No. 57, I have concluded that it will be entirely satisfactory notwithstanding the non-compliances with the planning controls. 16 There were some concerns by the council that it lacked sufficient articulation but having considered the plans, I do not agree. 17 This brings me to the concerns of Ms Allison about overlooking. There can be no doubt that this development will provide a number of opportunities for people particularly on the first and second floor balconies to overlook the outdoor areas, if the proposed landscaping is not taken into account. The rear boundary of the site comprises a zone boundary which separates the subject Business Zone from the Residential Zone of No. 57. This requires reciprocal considerations of the fact of there being different zones on the opposite sides of each boundary. In other words development in the commercial zone needs to respect the form of development in the adjoining zone and vice versa. In my view and taking into account my later comments about overlooking from the terraces, the proposal achieves an appropriate balance here. It does this by providing a significant setback not only from its own boundary but from the resident and outdoor areas of No. 57 and together with the landscaping arrangement, the outcome will be satisfactory. 18 Conversely, living in a residential zone that adjoins a commercial zone the relationship cannot be the same as if the adjoining property were also residential. In this context I note that the form of the development by being responsive to the requirements of the DCP seem to have been designed to be responsive to the adjoining residential area, given the manner in which the building steps away from the common boundary. 19 In all of the circumstances I have decided that the proposed built form, the arrangement involving the excavation of the site and the provision of additional carparking is satisfactory and does not require any modification to the design or the refusal of the application. 20 The non-compliance with the FSR issue was not assisted by the absence of any clear objectives of the standard. In the circumstances I cannot but conclude that the principal purpose of the FSR standard is, as is the case in most instances, to control and manage building bulk and scale. That being so the matter of additional car spaces in a basement and taking into account that I accept the landscaping arrangement, those additional car spaces are not matters of concern. The additional floor space above ground level is so small that if it were excluded from the design the difference would be inconsequential in terms of bulk and scale. Hence the non-compliance with the FSR requirement is not a matter of concern. 21 As for the windows in the eastern wall I note that the applicant has provided and agreed to a condition which would require future owners of the dwellings utilizing those windows to remove them should a development be approved that would abut them. Taking such a condition into account, together with the fact that any overlooking of the driveway by one bedroom window would be of little consequence, I do not require that those windows be omitted from the design. 22 There were two other aspects of overlooking towards No. 57 that were of concern: overlooking from the sides of the terraces at first and second floor levels and from the roof terrace. The applicant has agreed that if the Court is concerned about overlooking to the south from the roof terrace that this could be shortened. I agree that such shortening would be appropriately beneficial. As for the overlooking from the sides of the remaining terraces the council sought a condition that would require the provision of side screens but I do not accept that these are required given their limited benefit in terms of improving privacy and the enclosing effect that they would have and the resultant loss of amenity for the dwellings. 23 The next issue involves the question of flow through ventilation for the dwellings. The ground floor dwelling was not of concern other than in relation to two of its bedrooms which have single windows facing south. The remaining parts of the dwelling, essentially having walls on three sides will clearly have sufficient access to light and ventilation even though it will have limited direct sunlight access. The arrangements for the two bedrooms are not uncommon and looking at the dwelling in its entirety I agree with Mr Flemming that it would be satisfactory. 24 As for the upper level dwellings, Mr Armstrong's principal concern seems to be that they were too long and as a consequence flow through ventilation from one end of the building to the other would be ineffective. Up to a point he is right but I do not accept that the consequences of building length in this case is so problematical that a redesign is required. As Mr Flemming pointed out there are openings approximately half way along the building associated with kitchens and dining room areas and although the central part of the building including the middle bedrooms may be somewhat restricted, overall the outcome should be satisfactory. Taking these matters into account together with the fact that a NaTHERS certificate has been issued I do not find the design to be problematical. 25 Finally, the issue of the vehicular egress from the basement involves cars exiting the building via a ramp which in its presently proposed configuration is enclosed on both sides right up to the footpath alignment. No concerns were expressed that driver visibility in relation to vehicular traffic in Ethel Street would be compromised. However, Mr Inglese explained that drivers would have limited views of pedestrians and was concerned for their safety. He suggested that a splay in the north-western corner of the office adjoining the ramp would facilitate an appropriate degree of visibility. He was not concerned about visibility to the west and did not believe that an opening in the structure in that location was necessary. 26 He discussed the matter with Mr Marshall and during that discussion as well as other discussions with other experts an alternative design involving a roller door at the boundary together with a stop sign, a flashing light and a convex mirror were considered. It was agreed that such an arrangement which requires vehicles to stop and taking into account the warning that would be provided for pedestrians by the moving roller garage door and the flashing light that pedestrian safety would be adequately provided for. 27 Mr Armstrong, however, said that the use of such a door would be inappropriate in streetscape terms and would be inconsistent with council policy. The applicant's architect explained how such a door could be incorporated into the design in an aesthetically satisfactory manner.