Matthew Grant Architects v Manly Council [2007] NSWLEC 610

Land and Environment Court of New South Wales

CITATION : Matthew Grant Architects v Manly Council [2007] NSWLEC 610

APPLICANT: PARTIES : Matthew Grant Architects RESPONDENT: Manly Council

FILE NUMBER(S) : 10719 of 2007

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Rooms in the roof Bulk

LEGISLATION CITED: Manly Local Environmental Plan 1988, (MLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97

DATES OF HEARING: 20 September 2007

EX TEMPORE JUDGMENT DATE : 20 September 2007

APPLICANT: Mr A Sattler, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Sattler & Associates RESPONDENT: Mr T March, solicitor SOLICITORS: Home Wilkinson Lowry, Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

20 September 2007

10719 of 2007 - Matthew Grant Architects v Manly Council

JUDGMENT

1 This involves an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Manly Council (the council) to refuse a development application to alter and add to an existing residential flat building at Lot 1, DP1067998, being No 1 Parkview Road, Fairlight. 2 I visited the land and the premises in company with the parties on the morning of the on-site hearing. The parties agreed for the commissioner to decide the matter under s 34(3)(b)(ii) of the Land and Environment Court Act 1979. 3 I have concluded that if the proposal were amended to remove the dormer windows on the north and south roof faces to maintain the integrity of the roof, conditional approval may be granted. The land 4 The land is situated on the western side of Parkview Road on the corner of Parkview Lane. It is rectangular in shape, with a street frontage to Parkview Road of 15.24m and frontage to Parkview Lane of 33.185m, giving an area of 504.68m2. 5 The land slopes gently down from the rear towards the southeastern corner. Erected on the land is a three-storey residential flat building. There are five car parking spaces on the western side of the land. 6 Nearby are dwellings and other residential flat buildings and on the northern side of the land in Parkview Road is a three-storey residential flat building. Relevant planning controls Manly Local Environmental Plan 1988, (MLEP) 7 Under the provisions of the MLEP the land is zoned Residential No 3 and the proposal is permissible with consent. 8 The relevant clauses of the MLEP are: · Clause 3(e), (i) and (j) (Aims & Objectives); · Clause 4(a)(ii), (v) and (viii) (Policies & Strategies); · Clause 10(d) and (e) (zoning); · Clause 17 (Foreshore scenic protection area). 9 Other relevant planning instruments: · Manly Development Control Plan for the Residential Zone 2001, Amendment 1, (MRDCP) Subzone 2. Section A5, pp (i) and (ii). · Manly Development Control Plan for the Residential Zone 2007, MRDCP2007 (Adopted 2 April 2007). · Draft Manly DCP for the Residential Zone (Amendment No 1) Exhibited 16 July 2007. · Manly Development Control Plan for Energy Efficient Buildings 1998. The proposal and its history 10 Development application No 432/06 was lodged with the respondent council on 29 September 2006 to alter and add to the existing residential flat building on the land, by providing rooms in the roof with six new dormer windows and three terraces. Notification 11 The application was notified to nearby owners and occupants and the council received no objections. The council's decision 12 By notice dated 16 January 2007 the council refused the application for seven reasons that are reflected in the contentions. The hearing 13 The appeal was filed on 27 July 2007. 14 At the hearing the Court heard evidence on behalf of the respondent council from Mr J Cother, planner of Manly Council. 15 On behalf of the applicant Mr M Grant, architect, gave evidence. The contentions 16 On 24 August 2007 the council filed a statement of contentions that have been amended having regard to MRDCP for the Residential Zone 2007. 1. No consideration has been given to State Environmental Planning Policy no. 65 - Design Quality of Residential Flat Development in that the design quality principles set out in part 2 thereof have not been addressed. 2. The proposed development is considered to be contrary to objectives (b), (c), (d) and (h) of the Residential Zone detailed in Clause 10 of the Manly Local Environmental Plan 1998 in that the proposed alterations and additions to the residential flat building are considered incompatible with the desired character and scale of residential development in the locality. 3. Having regard to the desired character for the area expressed within the Manly Development Control Plan for the Residential Zone 2007 [DCP 2007], whereby the existing gross floor area on the site already exceeds the level permissible in density sub zone, the further non-compliance with the Floor Space Ratio provisions of the DCP 2007 is contrary to the desired character. Particulars: a. Inconsistent with Clause 3(1)(e) and (j), Clause 4(a)(ii) and (vii) and Clause 10(b), (c), (d) and (h) of the Manly Local Environmental Plan 1998. b. Non-compliance with Floor Space Ratio Objectives and Controls of the DCP 2007 4. The dormer windows and associated decks contribute to the scale of the building and draw greater attention to the roof space which has the effect of increasing the scale of the building within its context. This increase in scale is anticipated to have a detrimental impact upon the future character of the existing built environment. Particulars: a. Non-compliance with the Streetscape Objectives and Controls of the Manly Development Control Plan for the Residential Zone 2007. 5. Having regard to the non-compliances detailed in Annexure B the proposed development constitutes an over development of the site and will set an undesirable precedent for the future character of the development within Parkview Road. Particulars: a. Inconsistent with Clause 3(1)(e) and (j), Clause 4(a)(ii) and (vii) and Clause 10(b), (c), (d) and (h) of the Manly Local Environmental Plan 1998. b. Non-compliance with the Building Height Objectives and Controls Manly Development Control Plan for the Residential Zone 2007. c. Non-compliance Open Space Objectives and Controls of the Manly Development Control Plan for the Residential Zone 2007. d. Non-compliance with the Car parking provisions of the Manly Development Control Plan for the Residential Zone 2007.