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. 17 The following emerged as the salient issues: · Whether the rooms in the roof should extend to the spaces under the proposed dormer roofs; and · Whether the bulk of the existing building would be exacerbated by what is in effect a fourth floor. The evidence and findings Whether the rooms in the roof should extend to the spaces under the proposed new dormer roofs 18 Under the provisions of the MRDCP2007 under the heading of 'Rooms within the roof structure' it is stated, [Exhibit 1, Tab 6, p 19]: Habitable rooms situated substantially above the maximum allowable wall height and/or within the roof structure shall only be permitted in buildings which existed prior to the operative dated of this plan [2 April 2007], and where it can be demonstrated that they do not detract from the character nor integrity of the roof structure and will not adversely impact on the amenity of adjacent and nearby properties and the streetscape. The placement and design of dormer windows shall complement the roof structure and reflect the character of the building. 19 The proposal was for six dormers around 3m in width, with one dormer on the eastern roof face and another on the western roof face. The existing building is already over the FSR for the zone and the room width dormers would add around 23m2 to the gross floor area (GFA) in addition to the habitable floor space under the roof timbers of the existing roof. If the dormers to the east and west were permitted to remain the additional habitable roof space would be increased by around 8m2. 20 Mr Sattler submitted: · The development application (DA) for 'rooms in the roof' was submitted under the Part C, Building height, MRDCP2007, p 19, adopted 2 April 2007. The DA lodged in December 2006 but there are no savings provisions under the new instrument. · The proposal is to use of the roof space and six dormers with three decks are proposed. The existing roofline would be broken to allow for headroom. · MRDCP2007 allows for rooms in the roof. It also allows for variety of housing types. The proposal would allow for greater amenity for Units 5 and 6 and would provide for views of the Manly Cove. · The only issues are those relating to streetscape. That is a subjective matter and dealt with in detail in the statement of environmental effects. · The proposal would visually break up the existing roofline and provide for a human scale. · The proposal would breach of FSR in a MRDCP2007 but these controls are to be relaxed when there are good reasons for this. The further breach of the FSR would be 23m2 and would improve the amenity of the upper units. This would result in a positive impact. · If the proposed dormers are visible that is not a reason to refuse the DA. There are many other buildings of far greater bulk and scale than this in the vicinity. A three-storey building has recently been approved on the other side of the lane [to the south fronting Sydney Road]. So the proposal would not be out of scale. · The applicant is prepared to make some concessions, including a reduction in the width of the dormers to 1.8m from the currently proposed 3m. This would decrease the breach of the FSR. · The applicant would also be content for the decks on the south to be pulled back so there would be no protrudance above the roof surface at the handrail. · It is proposed to utilise the bedroom in each unit on the third floor as a dining room so there would be no increase in the intensity of the use. 21 Mr March submitted: · One might say that the approval of this application would produce a building that would last for the next 100years. The council is putting in place a planning regime for the next 10 and 20 years and seeks to reinforce that. · The council is concerned not just for the bulk and scale of the proposal. The council seeks to encourage a building that would fit in and not provide a negative precedent. · The statement of facts and contentions lists the numerous breaches of this proposal with the planning requirements of the council. · The proposal would physically increase the FSR and it already breaches the FSR by an extra 95m2. The car parking is under-provided and the height is excessive. The council maintains that the proposal would be an overdevelopment of the site as summarised in Annexure C of the statement of basic facts. · If this were a new development it would have to accord with the planning controls. · Salient issue relates to MRDCP2007 on p 19 and 'Rooms within the roof structure'. · Our interpretation is that rooms can be placed in the roof structure if the integrity of the roof structure is maintained and the streetscape is not adversely impacted. · The design and placement of the dormers must complement the roof structure. · In terms of its visual effect the proposal would add to the bulk of an already bulky building with a 'fourth storey'. · The submissions of the applicant do not address that visual bulk impact. Although the applicant is willing to reduce the width of the dormers there would still be dormers on all the roof elevations. · The council says that does not go far enough. As a fall back position the council would be content for the dormers to be replaced by 'Velux' windows set in the roof plane. However, the council's position is that there should not be any rooms in the roof at all as the site is already developed to capacity. · Any development must be done in a way that there would be no further environmental impacts and to avoid an undesirable precedent. 22 Mr Sattler submitted in reply: · The applicant accepts that the proposal would breach density, in terms of FSR, however, the additional habitable floor space would not that great. The additional floor space would be within the roof and there would be a minor shortfall in car parking, however, "…we are on a transport corridor". · The applicant does not accept that the proposal would result in an overdevelopment of the site. The number of bedrooms in the overall development would not change. The result is a "…more intelligent design". · Many of the objectives of the MRDCP2007 would be met. As an example there would be an increased variety of housing. MRDCP2007 anticipates dormers so what is proposed is not beyond reasonableness. · The applicant is prepared to reduce the width of the dormers. The existing residential flat building was constructed at a time when dormers were incorporated in designs and the proposal would not be out of character. It would make the building more usable. · The proposal as amended would be worthy of consent. 23 I am satisfied that if the integrity of the roof were maintained by the removal of the dormers to the north and south, it would be acceptable to permit the proposed dormers to the east and west to be maintained. 24 In coming to this conclusion, I have had regard for the MRDCP2007 at p 19 and the section dealing with 'Rooms within the roof structure'. I have also had regard for the council's contention that the land is already developed to the maximum with the existing building and that the car parking is deficient by around 6 spaces. 25 However, I accept that the proposal would not increase the intensity of the use of the building when the number of bedrooms is taken into account. With the proposed rooms in the roof, the number of bedrooms would remain the same. However, some regard need be had for the fact that the existing building already exceeds the FSR for the land. 26 Thus, I consider it reasonable and appropriate to limit as far as possible the additional habitable floor space to that under the existing roof. By allowing the dormer windows to the east and west to remain, the habitable floor space under the roof would be extended by around 8m2 yet the amenity of the bedrooms in the roof would be greatly increased. 27 Thus I am satisfied that the proposal may be approved subject to conditions to reflect this conclusion. Bulk 28 The proposal with two dormer windows in the roof to the north and two to the south would be seen, from some viewpoints, to increase the bulk of the building. Mr Cother of the council was concerned that with so many dormer windows the roof space would appear as another habitable level. 29 The policy of the council is that the integrity of the roof should be maintained. There is an argument that this integrity would be better maintained with all the dormers deleted from the proposal. However, I am satisfied that with only the dormers to the north and south deleted the proposal would be of satisfactory bulk. 30 I am also satisfied that the dormer to the east would be largely screened from view from most vantage points to ensure that its bulk would not detract from the integrity of the roof form. 31 For the above reasons, the appeal may be upheld with the amendments to the plans showing the dormer windows to the north and south deleted and replaced with 'Velux' skylights or equal in the roof face. Conditions 32 The conditions are those in Exhibit 1, Tab 7 as amended during the hearing. Orders 33 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 432/06 lodged with the respondent council on 29 September 2006, to alter and add to the existing residential flat building at Lot 1, DP1067998, being No 1 Parkview Road, Fairlight, is approved subject to Conditions DA1 to DA323 in Annexure A. 3. The exhibits except for Exhibits A, B, C, D, 2 and 3 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.