Land and Environment Court of New South Wales CITATION : Beluga Property v Manly Council [2008] NSWLEC 1392 Applicant: Beluga Property Pty Ltd PARTIES : Respondent: Manly Council FILE NUMBER(S) : 10705 of 2008 CORAM: Roseth SC KEY ISSUES: Development Application :- variation of DCP controls, innovative design DATES OF HEARING: 1 October 2008 DATE OF JUDGMENT: 8 October 2008 Applicant: LEGAL REPRESENTATIVES: Mr D Brigden, solicitor of Holding Redlich Solictors Ms C Schofield, solicitor of Pikes Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 8 October 2008 10705 of 2008 Beluga Property Pty Ltd v Manly Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Manly Council (the council) of a development application to consolidate lots 1 and 2 DP 602702, construct three three-storey dwelling houses and subdivide the consolidated land into three allotments after the construction of the dwellings, at 10 and 10A Addison Road, Manly. The site 2 The two allotments form a trapezoidal shape on the southeast side of Addison Road. The site's frontage is 30.5m; its width is 24m; its area is 1,552m2. The rear boundary adjoins Little Manly Cove. The site has a level platform towards the street and a tiered cliff face towards the water. It is vacant, two dwellings having recently been demolished on it. The only vegetation is a cheese tree near the street. 3 Adjoining the site to the northeast are two detached houses, 12 and 14 Addison Road. Adjoining to the southwest is an apartment building, 8 Addison Road. Addison Road is a cul-de-sac and the site is near the cul-de-sac end. At the end of the cul-de-sac, No 1 is a tall white apartment building, which, because of its unusual circular shape, is a landmark on Sydney Harbour. The building is now a heritage item. No 2 Addison Road, known as the Mandalay Private Hospital and a more traditional old building, is also a heritage item. There are several apartment buildings in the street, ranging from three to eight storeys high. There are also detached houses of one and two storeys. 4 The site is habitat for Little Penguins and Long Nosed Bandicoots, both of which are threatened species. The proposal and its history 5 The applicant proposes to · amalgamate the two existing allotments; · erect three detached dwelling houses; and · subdivide the amalgamated site into three allotments. 6 Parking for two cars for each house is at grade near the street frontage. No basement excavation is proposed. The cliff face is kept clear of development. 7 The council, and the Court on appeal, refused a development application for the site in 2005. The council approved an application in 2006 for a two-storey apartment building containing six dwellings, with rooms in the roof and over basement parking. That consent is extant. 8 The applicant lodged the subject application in February 2008. The proposal was notified several times and the council received representations from six households. Since the council considered the proposal to be integrated development, it referred the application to the Department of Water and Energy, which issued General Terms of Approval that are now part of the conditions of consent. The council referred the application also to the Department of Environment and Climate Change in respect of the Impact on threatened species. The Department responded to the effect that, subject to the imposition of the draft conditions proposed by the council, the impact on the critical habitat of the threatened species would be acceptable. Since the conditions in question are imposed, the existence of the critical habitat is not an impediment to approval. 9 The applicant lodged the appeal against deemed refusal in July 2008. In September 2008 the council considered a report by its Development Assessment Unit and accepted the recommendation to refuse the application. Relevant planning controls and policies 10 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the REP) applies to the site. Clause 25 of the REP lists the matters to be taken into account in assessing the impact of proposed development on the scenic quality of Sydney Harbour. They key concept is that development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries. The Sydney Harbour Foreshores and Waterways Development Control Plan 2005 accompanies the REP. 11 Local Environmental Plan 1988 (the LEP) zones the site Residential 2 and locates it within the Foreshore Scenic Protection Area. 12 Development Control Plan for the Residential Zone 2007 (the Residential DCP) establishes the residential sub-zones, their density and other planning controls. Matters in contention 13 The council's Statement of Contentions contains nine matters. The council's planning expert, Mr S Layman, states in the joint report with the applicant's expert, Mr A Minto, that the key issues area: · inconsistent subdivision pattern; · inconsistent streetscape and building character; · non-compliance with the provisions of the residential DCP; and · appearance from the foreshore. The objectors' evidence 14 The Court heard the evidence of three objectors. Mr G Stewart, who lives in unit 2, 8 Addison Road (not facing the site), said that he was concerned about the stabilisation of the cliff, the provision of dilapidation surveys and the placement of a plaque to commemorate Sir Roden Cutler, who lived in one of the houses on the site. The conditions of consent cater for all three concerns. Ms M Buckley, who lives at unit 3, 8 Addison Road (facing the site) said that she was concerned about losing view and sunlight from the kitchen and dining room windows. The applicant offered to reduce the length of the rear patio and privacy screens. This would meet her concerns to some extent. The loss of some view and sunlight from two windows facing the side boundary is, in my opinion, inevitable. I note that there are unimpeded views of the Harbour from the living room and the balcony. 15 Ms M Lavers, who lives at 14 Addison Road, said that she was pleased with the development, which was much better from her point of view than the apartment building that council approved in 2006. Subdivision pattern 16 The three proposed allotments are to have widths of around 8m, though their frontages will be in the order of 10m. The Residential DCP requires that new allotments should be consistent with the existing subdivision pattern. The council submitted a plan showing allotments in the vicinity. It is beyond doubt that most allotments are wider than 8m. However, there are some allotments with widths of just over 8m and several frontages that are smaller than 10m. A fair assessment would be that the proposed allotments are narrower than the majority in the locality but that there are a few allotments already in the area that are similar in width. 17 I should add that the comparison is not entirely fair to the applicant, since the subdivision proposed here is subdivision after the buildings are completed. This is quite different from the kind of subdivision that occurs in 99.9% of cases in Australia, where subdivision precedes building so that the shape of the allotment largely determines the shape of the future building. In that case a narrow allotment is a dangerous thing to permit, since an unskilled designer is likely to design a poorly performing building on it. Where the process is reversed (as it is here), the form of the building is already determined and its environmental performance may be assessed. 18 I conclude that the size and shape of the allotments are not so different from those existing as to justify refusal. Provisions of the LEP 19 Clause 17 of the LEP requires the consent authority to be satisfied with the impact on the scenic quality of the foreshore. Clause 10 requires the consent authority to be satisfied that the proposal is consistent with the Residential zone objectives. There are nine zone objectives, of which three are relevant. Clause 10(c) allows a variety of housing types while maintaining existing character. Clause 10(d) ensures that neighbours' amenity is not compromised. Clause 10(e) aims to improve the quality of residential areas by encouraging landscaping and permitting greater flexibility of design. 20 The residential zone objectives of almost all LEPs contain statements affirming the need to maintain amenity and character. Where the objectives of the Manly LEP are a little different is that they include variety of housing types and flexibility of design. This suggests that the makers of the LEP do not envisage every new proposal to be the same as what already exists in the area. New housing types are not only permitted; they are aspired to. The proposal provides for an unusual form of medium density housing, namely detached houses on their own allotment with one sidewall built on the boundary. I agree with the council that this is not a common housing form in Manly; however, it is a sensible form and the applicant's attempt to introduce it to this area is a reason for praise rather than rebuke. 21 As concerns zone objective 10(d), the proposal's impact on the neighbours' amenity is reasonable. It is a lesser impact than that of the apartment building that council allowed in 2006. Ms Lavers' enthusiasm for the proposal attests to that. Provisions of the Residential DCP 22 The council's advocate, Ms C Schofield, drew my attention to the fact that DCPs are the focal point for the assessment of applications (Zhang v Canterbury City Council (2001) 51 NSWLR 589). Their provisions should not be lightly discarded; however, they may be varied with good reason. 23 The Residential DCP establishes sub-zones with varying densities. It applies two controls for density: site area per dwelling and Floor Space Ratio (FSR). The site is in sub-zone 3, in which the permissible density is one dwelling per 250m2 of site area. On average, the proposal provides one dwelling per 500m2 of site area; so its dwelling density is about half that allowed. 24 The maximum permissible FSR in sub-zone 3 is 0.6:1. The proposal's average FSR is about 0.5:1, considerably less than that permitted. In my opinion, this fact is relevant to the consideration of non-compliance with other provisions. It suggests that where non-compliances occur, the reason for them is to allow an unusual (or innovative) form of housing, rather than to increase the floor space. 25 Mr Layman states that the key inconsistencies with the DCP are · the number of storeys; · wall heights of dwellings; · inadequate side setbacks including zero lot line; and · inadequate open space in dwellings 1 and 2. 26 The Residential DCP `establishes a building envelope (though it does not call it by that term) of two storeys with a maximum wall height and a pitched roof at 35o. These are clearly controls for the most common form of housing, which is an apartment building. The proposal fits into the envelope, though it does not have a traditional roof, but rather a sloping wall at the top level. To assess whether there is justification for the variation of the storey and wall height control, two questions should be asked. First, is the impact on neighbours made worse by non-compliance? It is not made worse, as the impact is less than that of the complying proposal of 2006. Second, does the building appear bulkier? In my opinion, it does not. In fact, it appears less bulky, because it is broken up by the gaps between the three dwellings. The fact, that it is less bulky (as against appears less bulky) is attested by the fact that its floor space is less than the DCP permits. 27 I turn to the setbacks. While the proposal does not comply with all the setbacks on the external boundaries, my understanding of Mr Layman's evidence is that he accepts these variations as justified. His objection is to the internal setbacks, or rather lack of them, as the internal walls are built to the boundary. I accept that a three-storey high wall built on the boundary is unusual and should not be permitted where the designer has no control about what happens on the adjoining land. In this case, however, the three dwellings are designed together and the designer has absolute control. The subdivision occurs after the buildings are constructed. Moreover, any purchaser of the dwellings will see that there is a three-storey wall on the side boundary. There is justification for setting aside the control in the DCP, which limits walls on boundaries to 3m. 28 I turn to the inadequate open space. The DCP requires 55% of the site as landscaped area. Dwelling 2 exceeds the requirement, while Dwellings 1 and 3 breach it. In total the proposal provides 853m2, which is about 55% of the site area. It is appropriate to assess the proposal as one development, as long as there is no marked imbalance between the areas of open space provided on the various lots. This condition is met. Streetscape 29 Disputes about appearance in the streetscape are often highly subjective because people' tolerance to changes in the scale of buildings varies. In this case, however, the existing scale is so varied (and mostly much larger than that of the proposal) that I do not think that a valid objection can be raised to the bulk of the proposal. I agree that the proposal will look different from conventional apartment buildings, but this in itself is not a criticism. The bulk is less than that of many existing buildings in the street and no bigger than that envisaged by the Residential DCP. 30 In respect of the unusual form of this proposal, I note that about 100m from the site is the white circular apartment building at No 1 Addison Road, which the council holds in such high esteem that it has made it a heritage item. There is nothing like it in Addison Road or in Manly. The nearest circular building I am aware of is Australia Square in the CBD, more than 10km away, itself the only circular building in the city centre. If the same rationale had been applied to 1 Addison Road as to this proposal, it would not have received consent. View from Little Manly Point 31 The objection to the view of the proposal from this vantage point, and from the Harbour generally, is that it appears different from other buildings. In my opinion, the objection is invalid for the same reasons that it is invalid in respect of the streetscape. The proposed development may be different from the conventional buildings around it, but it is less bulky and has no adverse impact on the scenic quality of the foreshore. 32 For the above reasons, the appeal is upheld. Orders 1. The appeal is upheld. 2. Development application to consolidate lots 1 and 2 DP 602702, construct three three-storey dwelling houses and subdivide the consolidated land into three allotments after the construction of the dwellings at 10 and 10A Addison Road, Manly is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 4, B, C and D. ___________________ Dr John Roseth Senior Commissioner 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.