Land and Environment Court of New South Wales CITATION : Innis Holdings v Manly Council [2007] NSWLEC 762 APPLICANT Innis Holdings PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 10365 of 2007 CORAM: Murrell C KEY ISSUES: Development Application :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Manly Development Control Plan for Residential Zones Stockland Development v Manly Council (2004) NSWLEC 472; CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167; Tenacity Consulting v Warringah [2004] NSWLEC 140; Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 DATES OF HEARING: 10/09/2007, 12/09/2007 and 13/09/2007 EX TEMPORE JUDGMENT DATE : 20 September 2007 APPLICANT Mr A. Galasso, SC Instructed by Mr T. Sattler of Sattler and Associates LEGAL REPRESENTATIVES: RESPONDENT Ms S. Duggan, barrister Instructed by Ms R. Vickers of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 20 September 2007 10365 of 2007 Innis Holdings v Manly Council JUDGMENT 1 Findings on merits of development application The following judgment was handed down extemporaneously and prior to publication minor changes have been made in the interest of clarity. 1 As agreed at the conclusion of the merits hearing on this matter I would give preliminary findings on the merits of the development application, and following submissions on the s94 issue a further judgment and orders will then be made. 2 For the reasons set out in this judgment I have decided that on a merits assessment the development is capable of being approved subject to conditions. 3 This is an appeal under s 97 of the Environmental Planning and Assessment Act, against Manly Council's refusal of the development application for the property known as 40 Gurney Crescent, Seaforth. 4 The subject site has a dual road frontage to Gurney Crescent by virtue of the fact the crescent has a hairpin turn to accommodate the very steep topography with the land overlooking Middle Harbour towards Castlecrag. The subject property faces west. It is approximately 963 square metres and has a width of some 21.5 metres, with side boundaries of some 22 metres. 5 As I stated it is steeply sloping, and the difference in levels from one street to the other is approximately 18.5 metres. The proposed development before the court is for a multi-levelled dwelling house. During the proceedings, it was agreed between the experts that the FSR of the proposed development before the court is 0.45:1. This is in terms of the definition of floor space included in Council's planning regime 6 There was a great deal of discussion about whether voids should be included, and in this regard I agree with the council's officer that voids can in fact increase the bulk of a building, but nonetheless in terms of council's definition these are not included for the purpose of calculating the FSR at 0.45:1. 7 The court heard from a number of residents on site. In particular the owners, Mr and Mrs Kirzner, of the adjoining property to the immediate northern boundary known as No. 36 Gurney,.. The dwelling house erected at number 36 was approved approximately two years ago under a similar planning regime to what the current application before the court is to be assessed. 8 The court has the opportunity of an inspection of No. 36 Mr and Mrs Kirzners main concerns are with respect to the side setbacks; and they are of the opinion that council's DCP should be complied with in terms of side setbacks, as indeed they stated they had to comply with for their dwelling house. They are also concerned about the loss of the City view they have over the side boundary of the subject site, and the impact that the proposed development would have in terms of this view. 9 The court also heard from others in attendance at the on-site inspection including Mrs Rupert of 25 Fromelles Avenue and Ms Sue Humphreys of Richmond Road, representing the Seaforth Association in an informal capacity, also expressed support in terms of inconsistency of decision-making by the council. 10 As was pointed out on the site inspection, the court must assess the merits of the development application before it. Having said that, it is also clear that the adjoining dwelling houses at numbers 34 and 36 are dwelling houses that are part of the character of the area. Number 34 was a much earlier approval and number 36 approved a couple of years ago. It was submitted on behalf of the applicant that this in many respects demonstrates the character of what council considers appropriate for the area. 11 The issue of precedent was raised, in that the respondent submitted that two bad decisions do not represent good planning. That is true but one must also have regard to the fact that people expect consistency in decision-making, and indeed the judgment of the former Chief Judge of this Court, McClelland CJ, in Stockland v Manly, considers the question of the consistency in which development control plans are implemented, and that is a relevant matter for the court or a decision-making authority to take into consideration in the determination of a development application. 12 On behalf of the applicant, Mr Fleming, a consultant town planner, gave evidence to the court and a statement of evidence was also provided. The planner/draftsman for the dwelling, Mr Mark Jukic, also provided evidence to the court. On behalf of the respondent council, Mr Rourke provided evidence. 13 Mr Rourke is of the opinion that the proposed dwelling should not be approved because of its bulk, scale and height, and it is not consistent with the council's planning regime. 14 Mr Fleming, on the other hand, considers that the proposed dwelling is consistent with the character of the area, and while he concedes that there are exceedences to certain council standards and guidelines, however, given the package of council controls he is of the opinion the proposal is appropriate in its context. In particular, in his opinion with the buildable area so clearly defined for the subject site, that is, the dwelling house must be positioned to the upper eastern portion of the block, leaving approximately the larger portion of the block facing west and steeply slopes being available as an unbuilt and vegetated, zone. 15 Indeed, the council's development control plan is clear and specific in terms of its desires to preserve vegetation and natural rock outcrops within this vegetative zone /band. 16 The court also had the opportunity of viewing other dwelling houses currently under construction, in particular No.89 Gurney Crescent, which is a waterfront property. For this particular dwelling house the lot is much narrower, but the dwelling house extensively steps down the block with a foreshore building line providing for the open space in front of the dwelling on the waterfront. 17 The court in its deliberations has had due regard to the package of council's controls, and the statement of facts and contentions at exhibit 1 that provides a description of the area and a general description of the proposed dwelling house. 18 The area it that can be seen as undergoing change, with the recent construction of number 36 and also what would appear to be the recent construction of the dwelling house opposite. Also there has been a rezoning and recent release of a number of residential lots, formerly effected by a road reservation. 19 The subject site is all but one from the severe bend in the road creating a triangular corner. This corner lot currently has one dwelling house, but it is noted that there are three lots of land in total. The closest lot of land to the north is of similar configuration to the subject lot, and then the actual corner of Gurney contains two lots.. 20 The statutory controls are as generally set out in the statement of facts and contentions. The site is zoned residential under the 1988 LEP. In particular, I have considered the following objectives: objective C, " the existing character of the area to be maintained"; objective D, "to ensure that development does not degrade the amenity of the area"; objective E, "to ensure the quality of the area is improved by encouraging landscaping and permitting greater flexibility of design"; and objective H, "to encourage the revitalisation of residential areas". 21 The Manly Development Control Plan for Residential Zones of 2007 is also a relevant matter for consideration. The DCP contains a number of provisions including: the floor space ratio of 0.4:1, the proposed development is 0.45:1. 22 There are also height restrictions contained within the DCP. The proposed development exceeds the maximum height level and the wall height level. In terms of the roof, the proposed roof height is consistent with council's controls. 23 The dwelling at number 36 was referred to throughout the proceedings. By way of comment I do not consider this dwelling should become the cue for future development of the area, and Mr Rourke commented in his evidence that it is not a dwelling house that he would have approved. Number 36 is significantly in exceedence of many of council's controls, but I do not wish to focus on number 36. 24 The court's role is to assess the application before it, and in terms of the Zhang v Canterbury City Council judgment of the Court of Appeal, the court must give proper, genuine and real consideration to the provisions of the DCP, and must make it a focal point for assessment. 25 I have made the DCP a focal point with a holistic reading in my assessment of the proposed development against the objectives, as well as the numerics. 26 The planners have provided a joint table to indicate where the proposed development complies and does not comply, and this became exhibit 8. I note that the dwelling house does not comply with the side setbacks to the north and south, and there is an exceedence in the wall height and the buildable area. The buildable area in terms of the northern portion of the site is exceeded by some one and a half metres. The dwelling house to the north exceeds the buildable area near the boundary with the subject site by some five metres. 27 The council's controls provide for the objectives in terms of the buildable area; that is, to identify areas on each site where development is preferred in order to provide both site specific and cumulative ecological, visual and water quality benefits. The subject site has a clearly defined buildable area, and it is a relatively small area for the size of the site. The DCP controls clearly do not anticipate or contemplate that development would step down the site, but in fact would be contained to the eastern portion of the site. 28 The DCP also identifies the buildable area, and the subject site, as I stated, is approximately 21.5 metres. The site to the north, number 36, is 22 metres, and it is noted that the dwelling house to the north has reduced setbacks in certain portions. 29 The DCP of 2002, also for Gurney Crescent and Clavering Road, Seaforth, provides an objective to preserve identified significant trees on each site, in order to provide site specific and cumulative ecological and visual benefits. This also contains provisions for the protection of landforms and vegetation, to minimise disturbance of natural landforms and to minimise disturbance to native vegetation. I note that the provisions of this plan are incorporated in the more recent comprehensive DCP. 30 The issues/contentions in the proceedings as identified by the Council are as follows: Contention 1 -- the characteristics of the site are not recognised or protected in terms of the proposed development. Contention 2 -- the proposed dwelling house is inappropriate for the subject steeply sloping site. Contention 3 -- the proposed dwelling house is inappropriate having regard to council's development controls for floor space ratio, building height, setback, private open space, swimming pools, excavation and earthworks, and is considered to result in an overdevelopment of the site. Contention 5 – the proposal will have a detrimental effect on the visual and aesthetic qualities of the foreshore, and it is not consistent with council's planning regime. 31 On the question the view sharing issue, I am guided by the planning principle articulated the Senior Commissioner in the judgment of Tenacity Consulting v Warringah Council . 32 The Court must have regard to where the primary view is for the property at number 36, and clearly the primary and expansive view is to the west to Middle Harbour, Castlecrag and I agree with the experts that this will not be interfered with by the proposed development. 33 A relevant consideration in assessing view loss is the extent of views from the property and whether the view is over a side boundary. This assessment must be carried out in weighing up the impact on distant city skyline views, that may even contain icons, when the viewing opportunity is over a side boundary . 34 The distant city views are clearly ones that are valued by number 36, but nonetheless the expectation to retain this view over the side boundary in the circumstances of this case is unrealistic. In my assessment it could reasonably be expected and anticipated in the circumstances of this case that a dwelling house would be erected on the subject lot that would effect the distant city view currently enjoyed by No.36 over the side boundary. The subject dwelling house encroaches on the northern portion of the buildable area identified in the DCP by 1.5 metres, however, I note the dwelling house next door at No.36 extends some five metres beyond the buildable area. 35 The Court has seriously considered the concerns of the owners of number 36, but in the circumstances of the case, that is, in terms of the uninterrupted primary views to the west, the buildable area controls and the fact the view is obtained over a side boundary, in my assessment, it is not a reasonable expectation to maintain the views of the city skyline. It is noted that the city skyline views, whilst it may not be of much comfort to the owners of number 36, will still be retained from the upper bedroom area of their dwelling. 36 A modification of this dwelling house in terms of the length of the northern wall, that is, from the street through to where it currently ends some one and a half metres past the buildable area, is such that to retain the views from the office, for example, it would be a significant impediment to the development of the subject site given its other constraints and the local planning regime objectives. 37 The above factors with the view sharing planning principle in mind have guided my assessment of the view impact and in the circumstances of this case. I have concluded it would be unreasonable to expect the distant secondary city view to be retained over the side boundary. 38 The issue of insufficient information was raised earlier, in particular the location of rock outcrops for the subject site. The Court also has the benefit of a landscape plan prepared by Botanica, that identifies the significant trees to be retained on the site. It is noted that there are some twenty four trees on the site and four native trees are to be removed. I note in the Botanica plan that there would be an additional planting by way of fourteen canopy trees. 39 Tree 13 was in contention at the beginning of the proceedings; that is, the Angophora Costata - the Sydney Red Gum. It was described as a "good specimen with a long life expectancy". The applicant agreed that the pool in fact could be shortened, made smaller, and the deck area also changed to service the swimming pool area, such that tree No.13 could be retained on the subject site. This would also provide for a greater setback from the side boundary to the south. 40 The applicant's architect was also asked questions if the court was to impose a condition to require greater setback as to whether the architectural integrity of the dwelling house would be significantly impacted, and from his evidence I am satisfied that greater setbacks can be provided without unreasonably interfering with the integrity of the design. This will provide for greater separation of dwellings. 41 In this residential precinct the opportunity for view corridors to the water, that is, from walking in the street and from dwellings opposite, is a matter that should be taken into consideration when dwellings are sited. 42 Furthermore, setbacks provide for a greater separation of buildings and built form in the streetscape and whilst the subject lot is not an overly large lot, and indeed in terms of council's controls it would be classified more on the side of a smaller lot. However, I note that the subject and adjoining lots are wide blocks, and as such there should be commensurate side setbacks to ensure the built forms do not dominate but rather there are reasonable breaks between the dwellings to provide an appropriate contextual setting. 43 It could be seen that the dwelling at number 36 presents as a large house and similarly the subject proposal will present as a large dwelling house, but the role of the court is to assess the merits of this application, and whether the impacts would be unreasonable in the circumstances of the case including the character of the area and when viewied from the waterway. 44 I am satisfied with increased setbacks and the proposed landscaping that the dwelling will sit comfortably on the site within a landscaped setting. It is significantly above the height limit as such, but one must have regard to the fact that the buildable area is confined to the upper part of the site, and the controls clearly contemplate for the dwelling mass to be confined to the high part of the site, as opposed to stepping down the site. This siting of the dwelling will provide for a vegetative band, and in fact canopy trees, that will ameliorate the height and impact of the dwelling house when viewed from the water. 45 Council's planning regime requires that in the development of sites in the area that the natural vegetation and landform are capable of still being read once sites are developed with dwellings. 46 For the question of precedent, I refer to the judgment of his Honour Lloyd J in Goldin v The Minister Administering the Ports, wherein precedent is held to be a relevant matter to be taken into consideration. In particular in my assessment I am fully cognisant of the need not to create an undesirable precedent. It was submitted on behalf of the applicant that this development application does not create an undesirable precedent and that council's own approvals have created the undesirable precedents. 47 While I accept precedence is a relevant matter, as is consistency in decision making , I am satisfied in the circumstances of this case where in my merits assessment I have given central consideration to the locaI planning regime that the proposed development is not inconsistent with council's controls and it will sit comfortably in its context and within a landscaped setting. As such I have determined that the application is worthy of approval, subject to certain amendments. 48 In terms of bulk and scale, I consider the dwelling house does not present unreasonable bulk in its context. I am satisfied that the design of the dwelling house whilst it significantly exceeds the maximum wall height in places, it will not present as a structure that is out of scale with the character of the area. Furthermore, and importantly, the height is appropriately ameliorated by the retention of significant trees, and the further planting of canopy trees, when viewed from the public domain and waterway. 49 I am satisfied in my merits assessment, subject to satisfactory amended plans consistent with my findings, that the proposed development is worthy of approval. As such, the court will require amended plans to be submitted to the court within a reasonable time frame to show the swimming pool relocated as provided for in exhibit 7, and the adjoining deck to also be reconfigured in terms of its relationship with the swimming pool, and for such a deck to be of a timber construction or a pervious or permeable surface, that will not only have the benefit of allowing water to infiltrate the ground below but the appearance of a lighter structure. 50 Also the amended plan is provide increased side setbacks to the proposed dwelling for the reasons stated above The setback to the garage, that is, on the northern boundary, is to be increased to two metres. The setback then to be the living area, that is, the dining/family area, is to be a minimum of 2.5 metres. 51 The setback to the southern boundary is to be a minimum of two metres. I note that the setback is to increase in terms of the southern boundary, with the swimming pool relocated this provides for greater compliance in terms of council's controls. 52 The amended plans are to provide for a three-car garage, which would be appropriate or commensurate with the size of the dwelling house. 53 The amended plans are to also show the retention of Tree No.13. The amended plans will require the consequential amendments to the landscape plan. I also note that a new BASIX Certificate will be required provided for the amended plans. 54 In terms of the locality of the area and the amenity of the area, I am satisfied that the dwelling with the above amendments will not be detrimental to the overall character of the area. 55 The respondent did not raise issue with the above amendments being considered as part of the appeal process. At the same time the respondent submitted that the changes do not overcome their fundamental reasons as to why the application should be refused. 56 During the hearing, the applicant provided submissions on the s 94 plan. However, at the end of the proceedings it was agreed that this matter should be left in abeyance until after my merits assessment of the application because in the event that the application failed on its merits the parties would not need to make submissions on the s.94 issue. However, given my merit findings above the respondent is now to be given the opportunity of preparing evidence and making submissions on the s.94 matter. 57 Accordingly formal orders of the Court will be issued following submissions and determination of the s.94 matter. ________________________ J. S. Murrell 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.