Land and Environment Court of New South Wales CITATION : Turner v Manly C [2005] NSWLEC 50 APPLICANT Graeme and Trish Turner PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 10947 of 2004 CORAM: Tuor C. Development Application :- demolish a single dwelling and construct two storey semi-detached dwellings Development in the vicinity of a heritage item impact of height KEY ISSUES: bulk and scale and landscaping on heritage item and streetscape Impact on residential amenity Manly LEP 1988 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 02/02/2005 EX TEMPORE JUDGMENT DATE : 02/04/2005 APPLICANT Mr A Galasso, barrister Instructed by: Mr A Staunton of Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr S Griffiths, solicitor of Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 4 February 2005 10947 of 2004 Turner v Manly Council JUDGMENT 1 This is an appeal against the refusal by Manly Council (the council) of a development application (314/03) to demolish an existing single storey house and construct a two storey semi-detached dwelling and subdivision at 30 Boyle Street, Balgowlah. 2 A description of the site, its context, the background to the application and the statutory controls is contained in the Statement of Basic Facts. 3 The Court undertook a view of the site and heard from a number of residents on site. Expert evidence was provided by Mrs L Fraser, heritage planner, and Mr E Armstrong, town planner, on behalf of the council and Mr P Rappaport, heritage architect, and Mr R Fleming, town planner, on behalf of the applicant. 4 The site is in zone No. 2 - Residential, under Manly Local Environmental Plan 1988 (LEP1988). The proposal is permissible with consent. 5 Opposite the site there are seven single storey cottages, Nos 35 to 45 Boyle Street, which are listed as heritage items under LEP 1988. Clause 19 of the LEP deals with development in the vicinity of an item of environmental heritage and states: The council shall not grant consent to a development application to carry out development in the vicinity of an item of environmental heritage unless it has made an assessment of the effect which the carrying out of that development will have on the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the item of environmental heritage and its setting. 6 Manly Residential Development Control Plan 2001 (DCP) also applies to the site. The DCP permits two storey development with a maximum overall height of 8.5m, a floor space ratio (FSR) of 0.6:1 and a landscaped area of 55% of the site area of which 35% must be soft landscaping. 7 Mr Armstrong and Mr Fleming did not agree on whether the proposal complied with the FSR and landscape control. The differences in opinion were based on different interpretations of the definitions in the DCP and the LEP for FSR, which result in a difference of 20 sq m in gross floor area and 16 sq m in landscape area. 8 It is not necessary for me to adjudicate on these definitions and numerical differences but rather to assess whether the height, bulk, scale and landscape setting of the proposal has an acceptable impact on the setting of the heritage item, the streetscape and the adjoining residential properties and thereby meets the purpose of the controls. 9 The main concern raised by Mrs Fraser, Mr Armstrong and a number of the residents was the inappropriateness of a two storey development within the street which is predominantly single storey. Mrs Fraser considered that development should present as single storey to the street with any two storey element being set back and largely screened from the street. She cited the development on the opposite side of the street as an appropriate example of a two storey addition to an existing single storey house which did not impact on the streetscape. 10 In Mrs Fraser's opinion the two storey nature of the proposal and the garaging at the front were inconsistent with the character of the streetscape and would have an adverse impact on the heritage item and its setting. Mr Armstrong supported the opinion of Mrs Fraser. 11 Mr Rappaport acknowledged the single storey character of the street but he considered this to be of a different nature on the eastern and western sides: the eastern side was predominantly Californian bungalows whereas the western side was simple workers' cottages. 12 Mr Rappaport considered that the proposal would not adversely impact on the heritage items opposite, as the character of the two sides of the street was already different, he stated that "there exists an innate schism in character between the two sides of the street". 13 In Mr Rappaport's opinion the two storey height and bulk of the proposal was compatible with the single storey houses. The proposal's ridge height was not dissimilar to that of the two adjoining houses and it presents a single storey element to the street with the two storey element set back and stepped from the street. He stated that: the use of architectural references to the Californian bungalow style such as half timbered gable, multi-faceted roof planes and garden fences ensured its compatibility with the streetscape in which it is set. 14 Mr Fleming was of the opinion that the proposal was consistent with the form of development envisaged by the planning controls and that the setback, height, bulk and landscaping were compatible with the existing character. 15 The proposal generally complies with the numerical controls of council. The key question is whether it has an adverse impact on the heritage significance and setting of the items and the character and amenity of the streetscape. The western side of the street has a number of heritage items, the rest of the area is not listed as a conservation area but the council has resolved to prepare a report examining its conservation status. 16 In relation to the impact on the heritage item I do not accept Mr Rappaport's opinion that there is a schism in the street due to the stylistic differences between the houses on the eastern and western side. The setting of the heritage items incudes the houses on both sides of the street. The predominant character of this setting is that of single storey houses on the same size allotments, some of which have been subdivided with semi-detached housing. The houses step up the street towards the south with a pattern of tiled roofs being visible. The street also has a consistency in setback from the street and rear boundaries with some houses having a greater side setback due to the driveway access and other houses being built to the side boundaries. There are some car spaces and carports in front of the predominant building line but this is not the dominant character of the area. 17 Mr Rappaport and Mr Armstrong analysed the existing density of development in the area. Based on this analysis, I find that the ground plane of the proposal: its setbacks; built upon area; open space and subdivision pattern, is consistent with the existing development in the street. In the vertical plane, the overall height of the proposal is not dissimilar to that of the other buildings, although the proposal has a greater wall height and a less dominant roof form. 18 The building will appear as a two storey development, but of itself this is not a reason to refuse the application given the planning framework under which it must be assessed. In the absence of a planning framework that mandates the conservation of single storey form, I find that the proposal is not of a height, bulk or scale to be so different as to be out of character with the streetscape or to adversely affect the significance or setting of the heritage item. 19 The juxtaposition of single storey houses and two storey houses is not an unreasonable expectation to be drawn from the planning controls. The two storey component is set back from the street behind the single storey carport and the proposal is stepped in elevation. These devices assist in breaking down the bulk of the building. 20 I do not accept that to be consistent with the character of the area the two storey component should not be visible from the street. Unless there are compelling conservation reasons to maintain a single storey appearance, the difference in scale between one and two storeys is not so great as to not be complementary provided the overall bulk of the proposal is acceptable in the streetscape. I accept that this is the case. 21 In relation to the carports, these do not project forward of the building alignment and a condition requires the removal of the roller doors. While these carports are not a predominant feature of the streetscape they provide a single storey element, which together with the landscaping, is acceptable and is not a reason to refuse the application. I recognise that the proposal is for semi-detached houses and that car access along the side cannot be achieved if the subdivision pattern is to be maintained. 22 In relation to landscaped area, the amount of soft landscaping exceeds the requirements of the DCP and is sufficient for the proposal to appear as a building in a landscaped setting in a similar manner to other houses, albeit with a wider driveway. The proposal also provides sufficient usable open space for its future residents. 23 A negative feature of the development is the blank façade that will be partly visible from the north above the roof of No 34 and the obscuring of the roofs that step up the street towards the south. This is a consequence of the wall height of the development and in the context of the planning controls is not sufficient reason to refuse the application. 24 In relation to the concerns of the residents as to the specific impacts of the proposal on their properties, in summary these impacts are not unreasonable and are to be expected from the development of the site. The privacy concerns of Mr Black, No 28 Boyle Street and Mrs Lawler, No 32 Boyle Street, can be dealt with by the proposed conditions to screen the front and rear balconies and provide obscure glass to the stair well. 25 Due to the separation between the proposal and Mr Martinec, No 34 Boyle Street, and Mrs Gwynn, No 15 Waratah Street, there will be no unreasonable privacy impact. The privacy levels will be similar to what currently exists between the other houses in the area. 26 In relation to the loss of sunlight to No 28 Boyle Street, the experts agreed that this complies with the planning controls and is reasonable. The loss of daylight to No 32 is not unreasonable to expect as a result of development of the site within the planning controls. 27 Some residents expressed support for the proposal and indicated that they would not wish to see development limited to a single storey or that any two storey development should be limited to the rear of the site as suggested by Mrs Fraser. 28 The difference in community opinion and the issues raised in relation to the conservation status of the area indicates that this is an area that would benefit from strategic analysis. However, for the above reasons, I find the proposal when assessed against the current planning framework to be acceptable. Orders 29 The orders of the Court are: (1) The appeal is upheld. (2) Development Application No 314/03 to demolish an existing house and construct two storey semi-detached dwellings and subdivision at 30 Boyle Street, Balgowlah, is determined by the grant of development consent subject to the conditions in Annexure "A". (3) The exhibits, except exhibits A, B, C, H, 1, 2 and 8, may be returned. _________________________ Annelise Tuor Commissioner of the Court ljr 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.