Shamia v Manly Council [2004] NSWLEC 743

Land and Environment Court of New South Wales

CITATION : Shamia v Manly Council [2004] NSWLEC 743 APPLICANT Joseph Shamia PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 11158 of 2004 CORAM: Hussey C KEY ISSUES: Development Application :- Demolition of an existing house - construction of a 3-storey residential flat building containing 3 units LEGISLATION CITED: CASES CITED: DATES OF HEARING: 14/12/2004 and 23/12/2004 EX TEMPORE 12/23/2004 JUDGMENT DATE :

APPLICANT Mr A Galasso, barrister

RESPONDENT LEGAL REPRESENTATIVES: Mr S Griffiths, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

23 December 2004

11158 of 2004 Joseph Shamia v Manly Council

JUDGMENT 1 The appeal was lodged against council's deemed refusal of a development application proposing the demolition of an existing dwelling and subsequent construction of a three storey residential flat building containing three units on the property situated at 90 Lauderdale Avenue, Fairlight. 2 A number of issues were identified and some amendments made by the applicant in response to these issues. Consequently, the main outstanding issues concern the height of the proposal, its arched form roof, streetscape impacts, impacts on views from adjoining properties and amenity impacts on neighbouring properties. 3 The parties agreed to the appointment of Mr A Ludvik as the Court appointed expert for the planning issues and he undertook a detailed assessment of the proposal and that is contained in Exhibit 5. He concluded that the proposal was suitable for conditional consent, which includes some design amendments that he considers necessary to maintain reasonable amenity. 4 The hearing was commenced on site on 14 December, where the site and the surrounding properties were inspected. This inspection then resulted in further negotiations between the parties and subsequent amendments arose out of that meeting. The amendments to the proposal included the curved roof being replaced. There was a reduction in the overall coverage of the roof, reduction in the south-eastern elevation and balconies were decreased in area and the separation between the adjoining property at No. 88 increased. These amendments were then accepted by the council and agreement made for consent orders. However the matter was then adjourned to allow the objectors to consider the terms of the consent orders. 5 On the resumption of the matter today, four further submissions have been received. Mr Du Vernet from 14 Willyama Avenue is concerned about the admissibility of rooms in the roof if they impact on views and he considers that the proposal is still too high and too far forward at the front building line and it will create disamenity for the residents of Willyama Avenue. 6 There was a submission from Mr D Price who is concerned about the additional height and lift overruns. Mrs P Baker from 16A Willyama Avenue is concerned about the height because of its intrusion into her view lines and Mr Seminara from 88 Lauderdale Avenue is concerned about privacy loss overlooking and noise disamenity. 7 I have considered these further submissions in the context of the planner's agreements that the amenity impacts are reasonable so as to initially warrant the grant of the consent orders. 8 In particular I have taken special note of the Court appointed expert Mr Ludvik's assessment of the initial proposal where he considered that it was satisfactory for consent. In my opinion the further revisions reduce adverse amenity impacts further. I am satisfied that the proposed roof height is acceptable in this context because it covers less area and the amendment results in a marginal improvement in views, but in this regard I do note the original assessment of Mr Ludvik that: In terms of the height and visual impact, the adjoining dwelling house to the east, 88 Lauderdale Avenue has a parapet at approximately RL 32.2, while the adjoining dwelling house to the west, 92 Lauderdale Avenue has a ridge height of RL 34.11 and eaves at approximately 30.0. 9 As the proposed roof is to be RL 32, I agree with his assessment, there is consistency with this roof line and the height control is contained within the DCP that certainly allows some increase in height over that of the existing dwelling. 10 By reference to the photos in Exhibit 12, I consider that the revised roof does not result in an unreasonable encroachment on the water views that are currently enjoyed. Reference to those photos indicate that substantive views of that section of the waterway, together with the boats are maintained. There is a minimum loss of the foreground area which I do not think is unreasonable and taking into account the view sharing principles, that there is no guarantee that an extent of view would be maintained, within the controls that apply. 11 I also think that the amendments to reduce the balconies results in reasonable setbacks to the adjoining property and they are consistent with the level of separation, and amenity that exists within this established neighbourhood. 12 In the ultimate, then I consider that this proposal demonstrates reasonable compliance with the intent of the development control plan and I am satisfied that the consent orders should be granted. Consent orders 13 The orders of the Court are: 1. The appeal is upheld. 2. Development consent in relation to development application No. 342/04 for demolition of existing residential dwelling and erection of a three level residential flat building containing three units with basement parking, construction of a swimming pool and site landscaping at 90 Lauderdale Avenue, Fairlight, is granted subject to conditions in Annexure A hereto. 3. Exhibits to be returned except for Exhibits 5, 6, 11, A, B, C and D. 4. Costs reserved.