Land and Environment Court of New South Wales CITATION : Shamia v Manly Council [2005] NSWLEC 240 Applicant: Joseph Shamia PARTIES : Respondent: Manly Council FILE NUMBER(S) : 11426 of 2004 CORAM: Roseth SC KEY ISSUES: Development Application :- residential flat building DATES OF HEARING: 26/04/05 and 12/05/2005 DATE OF JUDGMENT: 05/12/2005 Applicant; Mr N Howie of Wilshire Webb LEGAL REPRESENTATIVES: Respondent: Mr R Graham of Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 12 May 2005 11426 of 2004 Joseph Shamia v Manly Council JUDGMENT) 1 Senior Commissioner: This is an appeal against the refusal by Manly Council (the council) of a development application to demolish the existing building and erect and subdivide under Strata title a two-storey residential flat building containing two dwellings over basement parking for four cars on lot 4 DP 603146, known as 3 Cove Avenue, Manly. The site 2 The site is on the upper southeast side of Cove Avenue. It has a frontage of 15m and an area of 643m2. It falls from rear to front about 5m. There is now a house on the site. 3 Cove Avenue has mixed development, including blocks of flats up to four storeys. Adjoining to the north at No 1 Cove Avenue is a three-storey apartment building. To the south at No 5 Cove Avenue is a two-storey apartment building. There is also a three-storey apartment building on the opposite side of the street. The proposal and its history 4 The applicant proposes to demolish the existing building and erect a two-storey residential flat building containing two dwellings over basement parking for four cars. Each dwelling has three bedrooms and terraces and balconies to the front, side and rear. 5 The applicant lodged the development application in October 2004. Following notification, the council received eight submissions. In February 2005 the council considered a report by its planning staff recommending approval. It did not accept the recommendation, deferred the matter and eventually refused the application in April 2005. The applicant lodged the appeal in November 2004. The issues 6 The council prepared a Statement of issues containing eight issues. The Court-appointed planning expert, Mr A Ludvik, assessed these. Mr Ludvik considered that the proposal was acceptable subject to a number of amendments. The council's position on Mr Ludvik's recommendations was that it did not wish to argue with them, though it did not seek consent orders. Mr W Gosling, a consultant planner retained by the applicant, responded to the seven amendments proposed by Mr Ludvik, of which he took issue with four. In the event, the issues in the case are the four points on which Mr Ludvik and Mr Gosling were in dispute. The objectors 7 The Court heard the objections of several neighbours and residents of Nos 1 and 5 Cove Avenue. A recurrent complaint was fear of the effect of excavation. The council imposed three conditions to deal with these concerns. Given the lack of expert evidence to suggest that excavation might cause damage, I do not think that this concern justifies refusal. 8 The remaining concerns were about scale, overshadowing and overlooking. As regards scale, the proposal is less dense than either No 1 or No 5 Cove Avenue. I am satisfied that Mr Ludvik's conditions have dealt with the overlooking concerns. The shadow impact of the proposal does not affect No 1 Cove Avenue, and is acceptable on No 5. The experts' evidence and findings 9 The following four of Mr Ludvik's proposed amendments were in dispute: Amendment 1 in dispute 10 The front terrace and balcony should be set back a minimum of 6m from Cove Avenue at the north elevation. Mr Gosling agreed to the setback, though he suggested that it should be achieved by shifting the building to the rear by 1.8m. Mr Ludvik said that this would shift the terrace/balcony facing east to a less appropriate position. In my opinion, it is possible to shift the building by 0.5m to the rear without materially affecting the position of the terrace/balcony. The width of the rear terrace should be adjusted so that the building does not breach the rear 8m-setback line. The actual line of the front terrace is left to the applicant's discretion, so long as it does not breach the 6m building line. The north wall to the living/dining room is also left to the applicant's discretion to enable it to obtain the best balance between internal and external space. Amendment 2 in dispute 11 The terraces of the dining/family rooms should not protrude beyond the building's east wall. Planter boxes and fixed screening should be established. Mr Gosling argued that, once privacy screens are included, it does not matter how close the terraces are to the boundary. Mr Ludvik said that he was concerned only with the upper balcony, not the terrace on the ground floor. In my opinion, Mr Ludvik's recommendation should remain in respect of the upper floor balcony, while the ground floor terrace may stay as drawn in the original application. Amendment 3 in dispute 12 The terraces off the living/dining room in the east side setback should be eliminated and at ground floor level be replaced by a planter box. Mr Gosling argued that with fixed louvres the eastern parts of the terrace/balcony provided just as much privacy as if they were removed and the east-facing windows behind them were provided with privacy louvres. In my opinion, Mr Gosling's position on this issue is correct. I accept that the architectural design relies on these eastern returns and the ability to walk to the terrace. With effective screening, the eastern returns of the front terrace/balcony would not have an unacceptable impact on the privacy of No 1. Amendment 4 in dispute 13 There should be fixed screening to the east-facing windows of the living/dining rooms. This requirement becomes superfluous in view of the decision on the eastern returns to the front terrace/balcony. Amendments not in dispute 14 The following three of Mr Ludvik's proposed amendments were not in dispute: · The entry portico should be deleted. Mr Gosling agreed. · There should be fixed screening to the east and west elevations of the front and rear terraces. Mr Gosling agreed. · The building should not encroach on the right-of-way. Mr Gosling agreed. 15 I do not think that it is appropriate to achieve these amendments through conditions. The applicant has undertaken to prepare amended drawings. The council has looked at the amendments and agrees that they reflect the findings of the Court. The appeal is therefore upheld. Orders 1. The appeal is upheld. 2. Development application to demolish the existing building and erect and subdivide under Strata title a two-storey residential flat building containing two dwellings over basement parking for four cars on lot 4 DP 603146, known as 3 Cove Avenue, Manly is determined by the granting of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 3, 6, B, C and D. _______________ 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.