Land and Environment Court of New South Wales CITATION : Eggleton v Manly C [2005] NSWLEC 497 APPLICANT Jason Eggleton PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 10244 of 2005 CORAM: Hoffman C Appeal :- Demolish and existing house - construct two semi-detached townhouses - Height - Bulk and scale - streetscape - overshadowing - setbacks - landscaping. KEY ISSUES: Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 1988 LEGISLATION CITED: Manly Development Control Plan Sydney Regional Environmental Plan No. 23 Residential Development Control Plan DATES OF HEARING: 23/06/2005 DATE OF JUDGMENT: 08/17/2005 APPLICANT Mr G. McKee, solicitor of McKees LEGAL REPRESENTATIVES: RESPONDENT Mr B. Tobin, solicitor of Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 17 August 2005 10244 of 2005 Jason Eggleton v Manly Council JUDGMENT 1 This is a Class 1 Appeal, No. 10244 of 2005, between Jason Eggleton and Manly Council, in regard to the refusal of consent to demolish an existing house and erect two semi-detached two storey townhouses at No. 49 Golf Parade, Manly. 2 The design is unusual in that the living rooms of each townhouse are single storey components at the Golf Parade end of the site. The front setback contains a northern courtyard to each living room and behind each is another courtyard between the living room and the two storey section of the building. The living rooms connect to the two storey section with a glass corridor along the party wall in the middle of the allotment. 3 Inside the two storey section each townhouse has the entire ground floor as additional open plan living spaces being the dining, kitchen, stairwell and study area, the latter opening to the south to a rear deck, courtyard and two tandem car spaces for each townhouse. Upstairs are three bedrooms, en suite and main bathroom. 4 The allotment has rear frontage to Rolfe Street, as do most of the other lots except a few that have subdivided to create a lot fronting each street. The subject is a rectangular lot with 12.19 m frontage and 44 m length, giving about 541 sp m in area. 5 The locality is zoned Residential (2) under the Manly Local Environmental Plan 1998. The Manly Development Control Plan for the Residential Zone 2001 Amendment No. 1 applies, as does the Development Control Plan for energy efficient buildings 1998 and Sydney Regional Environmental Plan No. 23. 6 The design is said to be based on energy efficiency and the layout enables the two main living spaces to have northern orientation and through ventilation. 7 The locality is a mix of single and two storey detached houses with some attached and some old apartments. Directly opposite the site in Golf Parade is a large development of apartments on what was an old industrial site. Whilst the majority of the street has a Federation Californian bungalow character and the older houses date from that period, the new development opposite is in the Tuscan style popular in the 1990s. The proposal is contemporary rectilinear in design with rendered masonry ground floor walls, weatherboard 2nd storeys and low pitched metal roofs. 8 Whilst the two storey section of each townhouse has side setbacks on the east and west boundary varying between 2 m and 0.9 m, the single storey living rooms have zero side setback. 9 The neighbour at No. 47 on the east is a single storey semi-detached brick dwelling with a slate roof, dating from the early 1900s. It is on slightly elevated ground to the subject site. 10 The neighbour on the west at No. 51 is on land at about the same level as the proposal. It is a single storey brick home also of the early 1900s vintage. Both neighbours have side setbacks of about 1.2 m and have windows to various bedrooms and living rooms, and kitchens facing the proposal. 11 No. 47 is a family home. No. 51 is a family home that has an approved home based child care use for a small number of children. 12 The locality is on what is called the Manly Flat, which is the relatively level topography between the beach and the cliffs on the western side of Manly. The land between Rolfe Street and Golf Parade is generally level with the exception of the slight rise beneath No. 47. 13 The issues in the appeal are: 1. Height, bulk and scale . The location, bulk and scale of the proposed new semi-detached dwelling house is inappropriate and will impact on the amenity of the adjoining properties at Nos. 47 and 51 Golf Parade. Local Environmental Plan 1988, cl 3(1)(e)(j), cl 4(a)(viii), cl 10, Residential Zone Objectives (c) and (d), Residential Development Control Plan cl A5, General Lands (b) (d) and (f), and Specific Objectives (a), (c) and (j). 2. Excessive floor space . The additional floor space is excessive. The permitted Floor Space Ratio is 0.6:1. The proposed Floor Space Ratio is 0.65:1. (Residential DCP cl 3.3.1 (a), (c), (d) and (e), and cl 3.3.2(a)). 3. Inadequate setbacks . The proposed setbacks of the front living rooms from the side boundaries are inadequate. The required setback from the side boundary is 900 mm, the proposed setback is nil. (Residential DCP cl 3.5.1(a), (c), (d) and (h), and cl 3.5.2(b) and (ii)(a)). 14 Issue 4, loss of privacy, was eliminated by amended plans submitted at the hearing, and issue 5 was the front fence. 5. Front fence The proposed front fence exceeds the 1 m and 1.5 m (35% transparency) maximum fence height. Residential DCP cl 3.9.1(a), (b) and (c), and cl 3.9.2(1)(a), (b) and (ii)(a). 15 It was agreed that this issue could be dealt with by way of conditions. 16 Attendees at the on site hearing were for the respondent: + Mr B Tobin, solicitor, of Abbott Tout, + Mr S Ooi, consultant town planner for the Manly Council, + Mr M Pole of No. 47 Golf Parade, and + Ms M Pushon of No. 51 Golf Parade. 17 Appearing for the applicant was: + Mr G McKee, solicitor of McKees Legal Solutions, + Mr M Richard of Alex Popov and Associates, architects, + Mr J Eggleton, applicant, and + Mr J Lovell, consultant town planner. 18 The parties had agreed that Ms D Laidlaw, town planner, be appointed as a Court expert. 19 An abridged summary of the dispute is that the applicant had designed the proposal along the environmental sustainability principles of the Manly Development Control Plan for energy efficient buildings, and submitted that there were basic conflicts with the Manly Development Control Plan for the residential zone. 20 The conflicts were best understood by contrasting the proposal with the adjoining houses. The older houses were early 1900s design with bedrooms on the north end of the houses and living rooms at the south end. This meant that the main recreational yards of the old houses are on the south side of the buildings, where inevitably they must be overshadowed. Also the living rooms only had some east or west facing windows on side elevations that might catch the sun. These must inevitably be shadowed by adjoining houses. The old housing stock on Golf Parade is not designed to ESD principles and the subject proposal should not be unreasonably penalised the applicant said. The change to housing design caused by ESD principles must involve some compromise with poorly designed neighbours. 21 The respondent's case in summary is that the proposal is too big for the site. The permitted Floor Space Ratio is 0.6:1, the proposal is 0.65:1, and this creates additional bulk and height that creates some of the impacts. The required side setback is to be 1/3 of the wall height. The proposal should have 1 m side setbacks to the one storey living rooms and 2 m to the two storey bedroom wing. The proposal having zero side setback to the living room and 900 mm setback to the bedroom wing with a small section at the rear having a 2 m side setback also adds to the impacts created. 22 The Manly Development Control Plan for energy efficiency does not provide for a design to create unreasonable impacts on neighbours. The adjoining development is to be considered the respondent said. The fact that the older houses have their living rooms and recreational private open space on the south side is a fact that needs to be designed around. The proposal by placing its two storey component at the rear causes the loss of sunlight to the living room windows and private open space of its neighbours, and loss of sun to properties even two allotments away. The shadows are increased unnecessarily by eaves that are up to 1.5 m wide. The second courtyard at the north end between the living room and the bedroom wing pushes the two storey component further south, increasing the shadow impacts, the respondent said. 23 The design with zero side setback to the living rooms at the north end of the allotment means the development fails to maintain the predominant character of the street as required by the controls the respondent said. The street has detached houses or semi-detached dwellings with side setbacks that give a sense of space and vegetated areas and separation of buildings that would be lost if more developments like the proposal are permitted in the future. 24 Ms Laidlaw, the town planner whom the parties agreed should be appointed by the Court, had made recommendations for changes to the design that would make it acceptable in her opinion. The respondent supported her recommendations and said if all of them were not applied, then the proposal should be refused because of cumulative impacts arising from streetscape, overshadowing, non-complying side setbacks and bulk located at the south end of the building, and the Floor Space Ratio exceedence. 25 Ms Laidlaw said, there was merit in the design provided it is modified. On the streetscape she said the dominant character sought to be retained by the statute and controls was the single storey dwellings, and the separation of built forms in accordance with the regular pattern created by the matching allotment widths and front setbacks. 26 The proposal matched the front setbacks of its neighbours, but in having zero side setback and a parapet roof design it introduced an appearance that was not sympathetic to the streetscape. She recommended a 200 mm side setback to the living room walls on the east and west boundaries, and the parapets deleted in favour of a conventional eaves gutter detail with the roof of the living rooms having the pitch raised to 150. And, instead of having a pyramidal roof over each living room it should be a single hipped roof covering both. This would maintain the building mass as one instead of two forms, and be similar to the massing of other buildings on their allotments. 27 The front fence also needed attention, she said. It was designed to wall off the front courtyard from the street. The character of the street enabled most front gardens to be seen, even if screened by hedges or other vegetation. The 2 m high fence proposed was unsatisfactory in the streetscape. It should be solid only to 1 m height and above that height the front fence and returns along the side boundaries within the front setback should be no more than 600 mm high, giving a total height of 1.6 m. Fencing materials above the 1 m solid section should be 30% see through, that is, on the area of the fence above the 1 m height, 30% should be air space allowing vision from the footpath into the front yard and vegetation, and 70% can be a material. This can be achieved by a lattice or, in this case, by vertical louvres angled and spaced apart to achieve those percentages measured in elevation at right angles to the fence. The applicant agreed to these changes. 28 Ms Laidlaw also sought reduction of bulk at the southern elevation of the house by reducing the 1.5 m wide eaves to be about 400 mm to match the eaves where the side setback is 900 mm. She also asked that the first floor be moved north 2 m to step the rear elevation. The purpose of these changes is to reduce the visual bulk for the neighbours as those elements as designed would tower over the outdoor seating areas of the neighbours' private open space. 29 The resulting reduction in floor space would not achieve compliance with the 0.6 Floor Space Ratio. A 3 m setback of the 2nd storey would be required to do that, and Ms Laidlaw acknowledged that it would eliminate one bedroom in each dwelling. 30 Ms Laidlaw said that the setback of the top floor and eaves reduction would only marginally improve the midwinter solar access of the neighbours. Mr Ooi made the observation that in midwinter that was so, but during the 3 months either side of the winter solstice the changes made quite a difference to the solar access of the neighbours so that they were less affected for most of the year. 31 The Residential Development Control Plan required that where existing solar access to living room windows of neighbours was less than 4 hours on June 21, then no further impact is permitted. This applied to both neighbours as their existing sunlight would be reduced by the proposal, said Mr Ooi. 32 For private open space, new development must not eliminate more than 1/3 of existing solar access between 9am to 3pm on 21 June. This also applied to both neighbours and their existing sunlight would be reduced by the proposal. 33 Mr Richard and Mr Lovell referred to the shadow diagrams and held the opinions that less impact was not a reasonable requirement given the applicant's reasonable expectations of the development in accordance with the statutes and controls. It was put that the council's rear setback control was 8 m, the proposal was set back 14 m. In fact its rear façade was level with the rear façade of No. 51, although slightly further to the south than the rear façade of No. 47. 34 To achieve compliance with the solar access controls for the south facing yards and living rooms of the neighbours, it would require the second storey to be set back 22 m for No. 47 Golf Parade and 24 m for No. 51 Golf Parade. With those setbacks, the ESD principles for the proposal could not be achieved and the building would have to be two storeys right to the front setback to achieve the Floor Space Ratio, and that would not meet with the council's requirements for the streetscape. 35 Mr Lovell put that the terminology of the solar access control only required the protection of north facing windows to living rooms, and the neighbours had no north facing windows to living rooms. To have that they would need to convert existing bedrooms at the north ends of their houses into living rooms. 36 He noted No. 51 did use its front yard as a private open space barbecue area and so it had an outdoor area with full northern sun. Number 47 had a garden in its front yard, which was densely vegetated and could only be looked at, but its front veranda was obviously used. 37 Mr Richard put that the design did what it could for the neighbours. For No. 47, the second courtyard on the eastern unit of the proposal allowed afternoon sun to the three side windows nearest the street, being two bedrooms and a bathroom. Otherwise they would have had no sun in the afternoon, and that would be an all year round benefit, not just in winter, he said. 38 To No. 51, the second court yard of the western unit of the proposal would allow morning sun to two east facing windows that would otherwise not get it, and again the benefit was an all year around benefit. 39 Mr Ooi noted that at the moment, due to No. 47 being a little higher than No. 49, and the existing house being single storey, all the side windows or No. 47 got afternoon sun now all year around, and No. 51 got morning sun to the upper parts of its side windows. With the proposal this would be greatly reduced for both neighbours. 40 Ms Laidlaw agreed that a two storey house was a reasonable expectation on the subject lot and the loss of sun to the side windows of the neighbours was to be expected. She agreed the design of the proposal in achieving some solar retention to the neighbours' windows was acceptable. 41 She was concerned that privacy of the No. 47 side windows from noise in the second courtyard of the eastern unit might be questionable. The applicant agreed with her suggestion of a 2.2 m high masonry wall on the boundary of the courtyard so that acceptable privacy protection could be achieved. 42 Also, the applicant pointed out the courtyard of the eastern unit was to be landscaped as a passive Japanese style garden so it would not be used for entertainment. The western unit's courtyard was to have decking and would be more actively used, but No. 51 only had a blank brick wall adjacent to the courtyard. 43 Mr Richard also said, on the side setbacks that the council control allowed averaging. This meant if one part of a side elevation was set back further than required, another part could come closer to the boundary than normally permitted. He had calculated the area of the second courtyard which provided a 4.7 m side setback to balance the 900 mm and 2 m setbacks elsewhere, so the average of 2 m was achieved. The respondent did not dispute this. 44 The applicant pointed out that Manly Council had approved extensions and alterations under the Residential Development Control Plan in Golf Parade at No.'s 49, 43 and 26 to 32 that exceeded the Floor Space Ratio and were in the range between 0.6:1 and 0.7:1. Therefore the proposal was reasonable in that regard. Also those other development applications had rear two storey sections that threw shadows on south facing private open space. The respondent observed some of those developments had larger backyards than the neighbours in this case so that there was still direct sun available in their yards for the periods required. In this case the proposal had a greater impact. 45 Ms Laidlaw expressed the opinion that the controls had the overall intent of minimising impacts rather than preventing any adverse effects, and in Golf Parade the orientation of the lots and the existing housing layout meant any design that was near the allowed maxima and minima under the applicable controls would necessitate compromises on one aspect or another. Overall she supported the proposal with her modifications. 46 At the end of the hearing the applicant submitted the second storey at the rear could be moved north by 1 m without destroying the aesthetic of the northern elevations and the interiors that both parties and Ms Laidlaw agreed had architectural merit as modified. To do more would eliminate the third bedroom in each unit and bring it below market expectations of accommodation. 47 In asking the parties whether the allotment was too small for two dwellings to be erected on it as a result of these impacts, the Court was told that the applicant had investigated four other alternatives in consultation with the neighbours and the subject alternative was the best option. Also that the reasonable expectations of an owner of an allotment under the controls was that two dwellings would be permissible. 48 I have formed the opinion that the 1 m northward movement of the second storey at the rear elevation is needed, together with the reduction of the 1.5 m eaves overhang at the rear on the east and west sides to be reduced to 400 mm to match the eaves where the side walls have only a 900 mm setback. With those changes plus the others recommended by Ms Laidlaw, the proposal is worthy of approval, subject to a deferred commencement consent that the plans be amended subject to the satisfaction of council's senior town planner. 49 Therefore the Orders of the Court are: 1. The appeal is upheld. 2. (a) Deferred Commencement Consent is granted for demolition of an existing house at No. 49 Golf Parade, Manly, and the erection of two semi-detached dwellings in 1 and 2 storey configuration as shown in drawing Nos. 0232 SK, 903A and 904A by Alex Popov & Associates and landscape plan No. LPSDO1A by Arterra Landscape Architects as in Exhibits A and D in this appeal as amended by and built in accordance with the conditions in Annexure A hereto. (b) The plans of the proposal to be amended in accordance with the deferred commencement conditions in Annexure A to the satisfaction of the Manly Council Senior Town Planner. 3. The exhibits are returned to the parties except Exhibits A, B, D, C, 2, 3, 4 and 5. 4. No order as to costs. _________________________ K G Hoffman 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.