Land and Environment Court of New South Wales CITATION : Tylina Operations Pty Limited v Manly Council [2004] NSWLEC 519 APPLICANT Tylina Operations Pty Limited PARTIES : RESPONDENT Manly Council . FILE NUMBER(S) : 11592 of 2003 CORAM: Moore C Development Application :- KEY ISSUES: Deem refusal to erect townhouses and residential flats . Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 1 Manly Town Centre Urban Design Guidelines 2002 . CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373; . DATES OF HEARING: 4 May 2004 EX TEMPORE 05/04/2004 JUDGMENT DATE : APPLICANT Ms S Hill, solicitor Susan Hill and Associates LEGAL REPRESENTATIVES: RESPONDENT Mr S Griffiths, solicitor Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C 4 May 2004 11592 of 2003 Tylina Operations Pty Limited –v- Manly Council JUDGMENT 1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Manly Council (the council) of a proposal to erect a number of townhouses and residential flats at a site on the corner of Carlton Street and Pittwater Road at Manly. 2 During the course of the view and during the subsequent proceedings in the Court, significant cooperative progress was made between the applicant and the council in resolving all outstanding issues other than one which remains for me to determine. 3 First, leave was granted to the applicant to delete from the application those matters relating to subdivision of any of the development and confining the appeal entirely to the approval of structures. 4 Second, agreement was reached by the parties in terms of exhibit B which is an external finishes plan (EF01) and the applicant was granted leave to amend the application to incorporate that plan. 5 Third, agreement was reached between the parties as to the reduction to the parapet heights to Units 1 to 4 in varying degrees. This agreement requires that the parapet heights for Units 1 and 4 lowered by an amount and that for Units 2 and 3 lowered by a corresponding amount to retain the relationship between the facades. 6 Four, there has been an agreed lowering of 0.5 m to Units 5 and 6. 7 Five, there has been an agreement to modify bedroom 2 of each of Units 1 and 5 in order to provide setbacks at the first floor level from the northern and eastern boundaries respectively. 8 Six, to the extent that there is any inconsistency between the plan presentation of the pergolas on the roof spaces of Units 5 and 6 and the elevations depicting the pergolas of Units 5 and 6, the plan presentations will prevail. 9 Seven, the handrail at the parapet to these units can be included, details of which will be settled between the parties. 10 Finally, the council has raised no objection to access stairways to the roof areas of Units 5 and 6. 11 There was also a short series of issues raised by an objector who lives opposite the site. These objections also need to be dealt with in this decision and I propose to deal with those matters first. 12 Evidence was taken on site (and notes of it subsequently tendered) from Ms Serena Jackson, a resident of Unit 3, 5A Carlton Street. Essentially her objections were threefold: o The view from her residence would be interrupted by a building that she considered was ugly; o The proposed building would be dominant in bulk and scale when viewed from Carlton Street particularly, in her assessment, matters relating to the central building on the Carlton Street frontage which is topped by Unit 12 (which unit is in dispute between the council and the applicant); and o Her privacy would be impacted by the views outward from the units opposite to her. 13 There was an additional issue, raised by her, concerning headlights from vehicles departing the parking area during the evenings. I am satisfied from what was explained to her on the site that the impact of that will be negligible to minimal and does not warrant any alteration of the layout of the driveway. This is not a matter that is raised or pressed by the council. 14 With respect to privacy issues, I am satisfied that the separation between the balcony and bedroom areas of her unit and those that are proposed in the development are more than sufficient to satisfy what would be regarded as acceptable separations for planning purposes. They are larger than those that would arise from a consideration or application of the AMCORD standards. 15 I am also satisfied that, when viewed from Carlton Street, there is no significant issue of bulk and scale from the central element on the Carlton Street frontage. 16 The council does not press the issue of aesthetics. Whilst what is proposed is a contemporary design, it is not out of character with the general area and is, in my assessment, an improvement on what is currently located on the site. 17 The single dominant issue between the parties relates to the question of whether or not proposed Unit 12 (which sits atop but set back on the central element of the Carlton Street frontage) should be deleted. 18 I note, prior to dealing with that issue that there is an objection pursuant to State Environmental Planning Policy 1, which relates to the setbacks from Pittwater Road (this road being an arterial road for the purposes of cl. 17 of the model provisions). There is agreement between the parties that the SEPP 1 objection should be sustained and, having considered the terms of the written SEPP 1 objection, I concur in that view. I, therefore, will include a sustaining of that objection in the terms of the orders of the Court. 19 The particular matters that are of concern relating to the central element (or at least of Unit 12 atop the central element) of the Carlton Street frontage relate to how that element is perceived in a view of the development along the Carlton Street frontage. There are a number of matters which are relevant to my consideration of this matter. 20 The first is that it is clear, from a note in the council's bundle of documents and accompanying plans illustrating the matters dealt with in that note, that there has been an inadvertent alteration to the boundaries of the height zones would otherwise have been available to the applicant's site. Mr Michael Batt, a strategic planner for the council, prepared this note. 21 It shows that, at 15 October 2003, on a proper consideration of what controls or performance measures ought to be applied to the site, proper consideration of the draft development control plans would result in me considering that there ought be a higher height limit applied to the eastern portion of the site if I had been so pressed by the applicant. 22 The applicant does not seek the indulgence on the eastern portion of the site of the maximum that taking into account the inadvertent alteration to the boundaries of the height zones might permit it. 23 As a consequence, to some extent at least, there is a position where the applicant would have been entitled to have built or sought consent to build a somewhat higher building on the eastern portion of the site than it has sought to do. 24 This position, although not a matter that was considered in detail on the view (as the council's bundle of documents was not available at that time), might well have led to some differing perception of height issues when travelling to the north along Pittwater Road – particularly as one approached or came to the intersection with Carlton Street and looked east along Carlton Street. 25 The intersection of Carlton Street and Pittwater Road is recognised quite specifically in the council's Manly Town Centre Urban Design Guidelines 2002 at 3.7.1.2 where on page 85 it is specifically noted that, The vista north, that is along Pittwater Road, is terminated by a nondescript building where Pittwater Road is offset at Carlton Street. Urban design treatment should be investigated to create a more appropriate termination to this view. 26 A photograph taken from a pedestrian hazardous position on Pittwater Road is reproduced on page 85 of this document. It is essentially the same point (although from a non-pedestrian hazardous perspective) that a photograph was taken by Mr McDonald and reproduced at view 1 at 3.9 of the photographs contained in his evidence. 27 It is clear, from the various elevations in the plans, that the tower structure envisaged in the application on the corner of Pittwater Road and Carlton Street will provide an acceptable resolution of the matter that is contained in that portion of the council's Urban Design Guidelines. 28 The question that remains for me to consider then is how I should regard the view of proposed Unit 12 as one travels to the north either by foot or vehicle along Pittwater Road. 29 It is clear from a combination of consideration of plan DA05C and photo 3.10 (that is the second of Mr McDonald's views) that the height of Unit 12 is some 200 mm below the upper height of the ridge of the existing building that is viewed as one travels north along Pittwater Road. 30 The second particular point of relationship that I consider is important is that the top of the roof of the tower at RL18.10 is some 2.8 m higher than the top of Unit 12 which is at RL15.30. The front of the tower is set some 18.5 m further to the west than the leading edge of the south-western corner of the roof of Unit 12 and some 14 m from the back of the tower. 31 The draft development control plan is a document which, until the closing submissions, was being treated as if I should have regard to it. Indeed as I regard that the retention of Unit 12 satisfies the priorities of the draft plan, I propose to have regard to it whatever its formal legal status might be. In doing so, I am mindful of the strictures of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 that one should give development control plans a focal consideration in determining such matters. 32 In this instance, I note that, in matters that an applicant should consider when preparing an application, there is an exhortation to make a positive contribution to the conservation area, inter alia, by reversing previous unsympathetic work. 33 Mr McDonald quite properly conceded that that which is presently constructed on the site will be improved upon by that which is proposed and certainly that that which is presently constructed on the site is unsatisfactory in its design. 34 Section 2.4 of the draft Development Control Plan deals with the replacement of intrusive development. The third of its dot points encourages changes that will reduce, reverse or remove the adverse impact of intrusive development and there is no dispute that the present application, if approved, would do that. 35 However, this provision is followed by a requirement that replacement buildings shall fulfil the objectives and controls for new development in the proposed development control plan. 36 There are a number of criteria that in the various planning documents, draft and in force, that Mr Griffiths, solicitor for the council, has taken me to and which have been dealt with by the witness' evidence relating to density, floor space ratio and exceedance of height controls. 37 However, the development control plan, mindful of the strictures in Zhang, is not the be all and end all in considering these matters. In appropriate circumstances, development control plans can be departed from. The Court of Appeal in Zhang makes that expressly clear in the judgment of Spigelman CJ from para 75 on pp 386 and 387. 38 I am satisfied that a consideration of the degree of separation of proposed Unit 12 from the tower and the additional height that the tower presents together with the nature of the buildings that would be viewed as their backdrop being least two large buildings either directly to the north (which is evident from the photographs that I have cited in Mr McDonald's evidence and in the Urban Design Guidelines) or to the north-east creates a much more eye catching backdrop compared to the Unit 12 element in the foreground as one approached close to the corner of Carlton Street. 39 I am not satisfied that good planning would not permit Unit 12 to be retained. Indeed, I consider that the proposal is consistent with the draft development control plan seeks to foster. 40 There is no reason from either a Carlton Street perspective or from a Pittwater Road perspective why Unit 12 ought not be retained. 41 In terms of a comparison to that which is presently on the site, I am satisfied that the proposed development (incorporating Unit 12) constitutes a sufficiently positive contribution to the redevelopment of the site in closing out the vista as one travels north along Pittwater Road that the development application ought be permitted with the retention of Unit 12. 42 It would seem to me, in a procedural sense, that there are going to need to be revisions to the plans to incorporate the matters that have been agreed to this afternoon. There will need to be a revised set of conditions. 43 As a consequence, I will give the parties a period of time to prepare amended plans and file them and I will give the council time to prepare the amended conditions and have them agreed by the applicant. Therefore, the matter is listed for mention before me on 8 June at 8.50am. I will vacate that mention date if revised plans agreed by the applicant and the respondent are filed before that date accompanied by revised conditions that are similarly agreed. If this occurs, I will issue orders in Chambers. I also give liberty to re-list before me on two days notice at 9.15am. Tim Moore Commissioner of the Court 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.