Lord v Manly Council [2010] NSWLEC 1223

Land and Environment Court of New South Wales

CITATION : Lord v Manly Council [2010] NSWLEC 1223

APPLICANT Gary Lord PARTIES : RESPONDENT Manly Council

FILE NUMBER(S) : 10068 of 2010

CORAM: Tuor C

DEVELOPMENT APPLICATION :- new dwelling house KEY ISSUES: Compliance with floor space ratio, building wall height , number of storeys and setback controls in development control plan Impact on residential amenity, particularly view loss

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 1988

DATES OF HEARING: 8 -10 June 2010

DATE OF JUDGMENT: 19 August 2010

APPLICANT Mr A Galasso, SC Instructed by Mr Sattler LEGAL REPRESENTATIVES: of Sattler & Associated Pty Ltd

RESPONDENT Ms C Schofield, solicitor of Pikes Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

19 August 2010

10068 of 2010 Lord v Manly Council

JUDGMENT 1 Commissioner: This is an appeal against the refusal by Manly Council (the council) of a development application (103/09) to demolish an existing dwelling, swimming pool and garage and construct a new dwelling, double garage, swimming pool and landscaping works at 71 Bower Street, Manly (the site). 2 Council contends that the proposal has unacceptable visual bulk, view loss, privacy and overshadowing impacts due to its non compliance with the number of storeys, wall height, floor space ratio (FSR) and setback controls in Manly Development Control Plan for the Residential Zone 2007 Amendment 1 (the DCP). The site and its locality 3 The site is located on the southern, upper side of Bower Street. It is trapezoid in shape and has a frontage of 16.365m to Bower Street and Montpelier Place, a depth of about 45.8m and a site area of 699sqm. 4 The site slopes down approximately 5.5m from Montpelier Place to Bower Street and has a moderate fall from east to west. 5 The site is developed with a two storey brick dwelling with a pitched tile roof. There is a swimming pool at the northern part of the site and two single garages that are accessed off a right of way from Montpelier Place. 6 Adjoining development to the east is a three storey house (69 Bower Street) and to the west is a two storey house (73 Bower Street). To the south, on the opposite side of Montpelier Place are recently completed houses that are two stories above basement car parking and storage. 7 The locality is a mixture of older residential flat buildings and detached houses. Planning controls 8 The site is within Zone 2 Residential under Manly Local Environmental Plan 1988 (LEP1988). The proposal is permissible with consent. 9 The site is within a Foreshore Scenic Protection Area. Clause 17 of LEP 1988 requires that the development not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area. 10 The site is within Density and Height subzone 5 in the DCP. The DCP includes controls for FSR (cl 3.4), Building Height (cl 3.5), Setbacks (cl 3.6), Swimming pools and Spas (3.8), Sunlight and Overshadowing (cl 4.1), Privacy and Security (cl 4.2) and Maintenance of Views (cl 4.3). The evidence 11 The Court visited the site and heard evidence from residents of Montpelier Place whose principal concerns were the impact of the height of proposal, particularly the three storey element, on their views and the precedent that approval of the development may set for the redevelopment or alterations to other dwellings in Bower Street. The residents stated that their understanding when purchasing their properties was that a two storey height limit applied. The adjoining resident at 69 Bower Street was also concerned about the visual bulk of the proposal and its impact on their views, privacy and overshadowing. The adjoining resident at 73 Bower Street was concerned about the decreased setback and the increased height of the proposal in comparison to the existing house, which he considered would result in unacceptable bulk and no opportunity for landscaping. 12 The Court heard expert planning evidence from Mr S Layman, for the council and Mr R Fleming, for the applicant. They disagreed on the proposal's compliance with the FSR, wall height and side set back controls in the DCP. This disagreement centred on different interpretations of these controls. They agreed that the proposal did not comply with the two storey height control but held different opinions about the impact of this non compliance, particularly in relation to view loss and overshadowing. 13 Part 3 of the DCP requires that variation from the numerical controls will need to meet the objectives of the control and also demonstrate that a more desirable outcome is achieved. The experts disagreed on whether the objectives of the controls would be met and also on whether a more desirable outcome would be achieved by the proposal.