Land and Environment Court of New South Wales CITATION : SMS Architects Pty Limited v Manly Council [2008] NSWLEC 1164 APPLICANT SMS Architects Pty Limited PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 10043 of 2008 and 10044 of 2008 CORAM: Hoffman C KEY ISSUES: Section 96 Modification :- An apartment building that has commenced construction, lift overrun and mechanical equipment on the roof, view loss and visual impact. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Manly Local Environmental Plan 1988 Manly Residential Development Control Plan 2007 DATES OF HEARING: 17/04/2008 EX TEMPORE JUDGMENT DATE : 17 April 2008 APPLICANT Mr B. Hones, solicitor with Mr B. Swain, solicitor of Hones LA Hood LEGAL REPRESENTATIVES: RESPONDENT Mr R. K. Graham, solicitor of Home Wilkinson Lowry Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 17 April 2008 10043 of 2008 SMS Architects Pty Limited v 10044 of 2008 Manly Council JUDGMENT 1 This is two appeals, Appeal No. 10043 of 2008 is in regard to a development application and Appeal No. 10044 of 2008 is an appeal in regard to a s 96 modification application in regard to an apartment building that has commenced construction at Nos. 133 and 137 North Steyne. 2 The property also includes Nos. 22 and 26 Bonner Avenue, Queenscliff, at the rear of the 5-storey apartment building that is being constructed. Number 22 and 26 are semi-detached two dwellings and apparently they will remain as part of this development, therefore the major focus is on the apartment building at the front. 3 The council had granted consent in development application 56/06 for the building and in it were two conditions: ANS02 which said: "Any ventilation, air conditioning or other structures on the rooftop are to be the subject of a separate development application" ANS03 which said: "Lift overrun and other structures except for any parapet is not to exceed reduced level 20.250". 4 The applicant sought initially to have approval for lift overruns on the roof and an enclosure between the two lift shafts screened by aluminium louvre fence and within that area were to be solar panels and hot water heaters and air conditioning equipment. 5 The proposals had been notified and there were a number of objections which are contained in Exhibit 1 of the respondent's documents mainly from residents of No. 20 Bonner Avenue. It is a tall, high rise building of apartments on the south of the development and the objectors were concerned principally about loss of view. Because the proposal is 5-storeys high it obviously only affects those at the lower level of No. 30 Bonner Avenue, however other objectors were concerned about the appearance of the roof that they would be looking down upon. 6 As would be known by anybody who has been to Manly, North Steyne Street runs parallel to the beach parkland reserve and looking to the east is a direct view to the ocean and to the north is the headland of Queenscliff and to the south is the headland at Shelly Beach. 7 In giving its original consent the council had considered view loss and presumably these two conditions were related to the concerns of the neighbours for view loss. 8 At the on site component of the hearing appearing for the respondent was Mr R K Graham, solicitor, and Mr O'Rourke, town planner of the council, together with a number of residents who gave their evidence on site and I was taken to two locations in order to consider the evidence and the impacts. 9 Appearing for the applicant was: o Mr B Hones, solicitor, o Mr B Swain, solicitor, o Mr Lovell, town planner, and o Mr Sandburg, architect of the proposal. 10 The objectors who gave evidence were: o S E Webb of 46/20 Bonner Avenue, o J Kilmister of 41/20 Bonner Avenue, o L Webb for Leo Lacey, unit 33/20 Bonner Avenue, o Rick Cleary of 13/20 Bonner Avenue, o M Dutch of 50/20 Bonner Avenue, o J Castleman of unit 34/20 Bonner Avenue,. o B Healey of unit 58/20 Bonner Avenue, o N Colmer of unit 38/20 Bonner Avenue and o Dr D O'Brien of unit 28/20 Bonner Avenue. 11 I was also taken to the apartment of Mr Watson on the fifth floor of 20 Bonner Avenue, he owned the north-west corner unit and he was the critical unit for view loss as a result of the current applications. 12 Also giving evidence was: o M Strauss of 34 Percival Road, Caringbah, o Z Bunford of unit 2/30 Bonner Avenue, o F Bannon of unit 2/138 North Steyne and o K Kearney of unit 3/138 North Steyne. 13 As a result of the objectors' concern the parties had required their experts to joint conference and this had been carried out by Mr Rourke, Mr Lovell and Mr Sandberg and in the Exhibit A they provided their agreement to amendments to both applications hopefully to address the concerns of the objectors and the council. 14 At the hearing the parties indicated that they were content with the amendments and the amendments were explained in detail on the plans on site to the objectors. These changes were: (1) relocation of the hot water tanks proposed on the roof to a basement plant room; (2) relocation of the air conditioning units proposed on the roof to two locations, namely the lower level apartment air conditioning units would go on the roof of the pool services building, a single storey building in the yard of the proposal, and air conditioning units for levels 3 and 4 were to be brought down and put on the balconies of those apartments; (3) deletion of the aluminium louvre enclosure proposed on the roof around these air conditioning and hot water units; (4) increasing the level 3 setback to the northern boundary from 3.9 metres to 4 metres; (5) deleting the planter boxes shown on the northern side on level 3 and moving the privacy screen and balustrade on the northern side of the east and west balconies of apartment 13 to a setback of 4 metres from the north side boundary; (6) adding two planter boxes to the western elevation of level 4, one for penthouse 1 to extend the full width of the balcony from the northern wall of the family room southward to the corner of the terrace, the other for penthouse 2 to extend for the full width of the balcony from the southern wall of the family room northward to the corner of the terrace. 15 The experts said on the basis of those amendments the remaining structures on the rooftop will comprise only the solar hot water collector tubes which will lie parallel to the roof surface at a level below the top of the parapet around the edge of the roof, there would also be a roof access hatch which would project slightly above the roof with a ladder up to it from one of the stairwells below and the two lift overruns one of which incorporates the carpark exhaust outlet as part of the structure. 16 The contentions which have been resolved by these amendments in the parties' view were: (1) whether the visual impact of the proposed works will be acceptable particularly when viewed from Pembroke, the 16-storey home unit building at 20 Bonner Avenue on the corner of Ceramic Lane, the residential flat buildings and detached housing to the west in 1-19 Bonner Avenue, the residential flat buildings at 30-34 Bonner Avenue and 138-142 North Steyne and the foreshore scenic protection area in which the subject property is located under the Manly Local Environmental Plan and as seen from the Queenscliff Beach and associated public places; (2) there was also contention of non-compliance with the maximum building height limit under council's residential development control plan, the building substantially complied with the height limit, it was only the upper 700 millimetres of the lift overruns that would penetrate the height limit, they are located more or less in the middle of the roof of the approved building; (3) loss of views arising from the proposed development to the residents of the Pembroke building; (4) non-compliance with cl 3.5.5 of the applicable development control plan which prohibits the extension of rooftop structures any higher than 3 metres above the external wall height, this applied now only to, as I have mentioned before, the upper 700 millimetres of the lift overruns; (5) proposed lift overruns will have a height of 15.7 metres whereas the maximum permissible under the development control plan is 15 metres; (6) metal screen proposed to conceal the rooftop extensions will extend above the maximum wall height of 15 metres; (7) increase in the visual bulk to the approved building which already exceeds the floor space ratio as prescribed in the development control plan. 17 Related to this latter contention was the fact that the penthouses at the top had been reconfigured in the floor plan to create a better room layout, however I was assured at the hearing that the floor space ratio the council had originally approved was not changed as a result. 18 The experts said that there would be a minor increase in visual bulk on the rooftop as a result of the lift overruns. The increase in bulk related to only the upper portion of the overruns extending marginally above the height of the parapet. The increase in visual bulk is considered minor given the relatively small volume of the lift overruns in the context of the whole rooftop resulting in minor impact on views overlooking the approved rooftop area. Views from level 5 of the Pembroke Building, 20 Bonner Avenue, are unlikely to be affected to any significant degree. The lift overruns will be visible, however they are considered to represent minor structures that will have a minor impact on the existing outlook. 19 When I was taken to Mr Watson's apartment, I was able to consider the view impact with a perspective drawing in Exhibit D, drawing 0726-DA2-13, which had been taken as if standing on Mr Watson's balcony looking towards the Queenscliff headland. That drawing still had the aluminium louvre screen on it, which is now deleted, and it also shows the two lift overruns. From Mr Watson's balcony it could be seen that it is only the top of the lift overruns which marginally project above the east side parapet and have a very minor increased impact on the loss of view, the major impact of course having been caused by the original approval by council of the development. 20 During discussions Mr Sandberg indicated that he may be able to lower the height of the parapet, however, he would not know by how much until he had prepared construction details. The parapet height is determined by the two degree pitch of the roof sheeting and it is clearly the parapet top which obstructs the major portion of any view it having been approved in the original development consent. 21 In discussions one of the objectors suggested that the lift should be hydraulically operated since they did not require any overhead equipment and perhaps the lift overruns could be reduced. In referring to the drawings it could be seen that the lift cars are approximately 2.4 metres high and the lift overrun provided is about 1.5 metres. The design of the lift is to have side mounted pulleys and motors instead of overhead. The pulleys at the top of the lift shaft sit within the 1.5 metre head clearance. This head clearance is required as part of the occupational health and safety requirements so that a man working on top of the lift can first of all have access to it and in case of a lift malfunction is not crushed by the lift equipment. 22 It seems to me that the lift shafts have been absolutely minimised as a result and the 1.5 metre clearance above the lift car would be required for a hydraulic lift in any case. Therefore it does not seem there is any other means than perhaps lowering the parapet on the east side to some extent to minimise the additional loss of view that Mr Watson is already affected by as a result of the council original consent. 23 Also while standing on his balcony we were able to look at Exhibit C which is a survey showing nearby buildings to the subject site. It includes 140-142 North Steyne, a 6-storey apartment building which on the survey shows the top of the roof at RL20.0. It means that it is marginally lower than the proposal but by no more than about half a metre it would seem. From projecting the eye line of the top of the roof one could understand the potential impact from Mr Watson's apartment and it seemed to me that the perspective drawing in Exhibit D was reasonably accurate and confirmed the opinion I have expressed. 24 The objectors agreed that Mr Watson's apartment was the worst affected by these applications and that other apartments fronting North Steyne were not affected except by looking down on the roof. It was explained to them the reduction of equipment on the rooftop and the materials of the roof sheeting and their colours, and no objection was raised to them. 25 One other objector from 30 Bonner Avenue was concerned about the reduction of the width of the driveway on her property to the rear garages there being very little room between her building and her side boundary. This was inspected during the view and the drawings show that the proposal is built to the side boundary for the driveway into the basement of the proposal. Whilst the driveway is very tight it would seem that the council approval, indeed by s 96 amendment which removed a requirement for a 200 millimetre setback to the northern boundary, has caused potential difficulties for anything other than a small car to enter No. 30. It seems that the best that the owners of number 30 could expect is to have their boundary surveyed so that they can be sure that the development does not transgress the boundary in any way that would reduce the driveway further. 26 The experts at their joint report had some modified drawings to consider, however the drawings did not show all of the amendments that they now recommended. As a result the Court does not have a final set of drawings to consider and the parties have agreed that a set of drawings showing all the amendments needs to be filed on both appeals, and that those sets of plans should be identical and incorporate all the agreed amendments. I foreshadow that I see no reason sufficient to refuse either appeal subject to those plans being satisfactory. 27 Therefore I make directions: 1. Applicant to give respondent amended plans by 22 April 2008. 2. Respondent to assess and advise applicant of any concerns and any conditions by 28th April. 3. Parties to file amended plans/conditions 29/4/2008. 4. If any disagreement leave to restore to List on 2 days notice. 5. If no disagreement Orders will be issued in Chambers. ___________________ K G Hoffman 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.