Land and Environment Court of New South Wales CITATION : Bellconnen Pty Ltd v Manly Council [2008] NSWLEC 1226 APPLICANT Bellconnen PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 10019 of 2008 CORAM: Bly C KEY ISSUES: Development Application :- semi-detached dwelling houses and subdivision, streetscape, setbacks, heritage and conservation LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 1988 DATES OF HEARING: 5/5/08 DATE OF JUDGMENT: 12 June 2008 APPLICANT Mr N. Hemmings QC instructed by Allens Arthur Robinson LEGAL REPRESENTATIVES: RESPONDENT Ms C. Schofield, solicitor of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 12 June 2008 10019 of 2008 Bellconnen Pty Ltd v Manly Council JUDGMENT Introduction 1 This appeal relates to a development application for the demolition of an existing building (used as a convalescent home) and the construction of four new dwellings in the form of two pairs of two-storey semi-detached buildings at 28 Alexander St Manly. The dwellings in Alexander Street each have two off-street parking spaces within the building. The dwellings in Rolfe Street each have a double garage. Torrens title subdivision creating a site for each of the dwellings is also proposed. 2 The rectangular shaped site is relatively level and has an area of 1,088 square metres. It has frontages of 23.8 m to both Alexander Street and Rolfe Street. The two frontages enable two new lots and dwellings to have frontages to Alexander Street (lots 1 and 2) and two new lots and dwellings to have frontages to Rolfe Street (lots 3 and 4). 3 Alexander Street is characterised by mainly single and two-storey dwelling houses of various styles and Rolfe Street is predominantly characterised by parking/garages associated with dwellings in Alexander Street and Golf Parade. 4 This judgment concludes that the appeal should be dismissed for reasons involving the Rolfe Street streetscape. Planning controls 5 The site is zoned Residential under Manly Local Environmental Plan 1988 and in this zone the proposal is permissible with development consent. The objectives of the LEP relevantly include the need to: increase the availability and variety of dwellings without adversely affecting character and amenity; conserve items of environmental heritage; and protect the visual quality of the municipality. The relevantly identified policy of the plan is to encourage revitalisation, rehabilitation and redevelopment of residential areas whilst maintaining the amenity of surrounding residences and the aesthetic quality of the municipality. 6 Part 10(3) of the LEP requires that consent shall not be granted for the carrying out of development unless that development is consistent with the objectives of the relevantly applicable zone. The relevantly identified objectives of the Residential zone are: (c) to allow a variety of housing types while maintaining the existing character of residential areas throughout the municipality, (d) to ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment. 7 Part 19 of the LEP requires that consent shall not be granted unless an assessment of the effect of the carrying out of a development proposal on an item of the environmental heritage has been carried out. The house at 30 Alexander Street has been identified as a heritage item in a draft local environmental plan. 8 The site is included in one of a number of areas identified by the Council for consideration as a potential conservation area. These prospective conservation areas are currently on public exhibition. 9 Also applicable is the Manly Development Control Plan for the Residential Zone 2007. Advertising 10 Part 27 of the LEP sets out certain requirements for the advertising of residential flat buildings. There was some dispute as to whether the proposed development comprises a residential flat building or a multi-dwelling development, and it was submitted on behalf of the applicant that for abundant caution, for the purposes of cl 27, the proposal should be considered to comprise a residential flat building. On the assumption that the initial advertising carried out by the Council (notwithstanding that it appears to have been effective), did not meet the strict requirements of cl 27 the application was readvertised. 11 As a result of the advertising of the proposal, three objections were received from owners/occupiers of properties in Alexander Street and one objection from nearby. Matters of concern raised in these objections include: o Amenity impacts on adjoining properties including noise, overlooking, overshadowing and the apparent bulkiness of the proposed buildings, o The excessive bulk and scale of the proposed building by comparison with the existing buildings in Alexander Street, o The inappropriate presentation of the buildings in the Alexander Street and Rolfe Street streetscapes, o The inappropriate provision of garaging and vehicle crossovers in/off Alexander Street, o The failure to recognize the heritage and conservation significance of Alexander Street and the proposed heritage item at 30 Alexander Street, o The inappropriate use of elevated balconies and the insufficient provision of landscaped areas. Council's contentions 12 The Council makes the following contentions: o The proposed development would have an adverse impact on the streetscapes of Alexander Street and Rolfe Street. o The proposal would have an adverse impact upon the heritage value of the streetscape of Alexander Street, the proposed conservation area and the draft item of the environmental heritage at 30 Alexander Street, Manly. o The proposed dwellings on lots 3 and 4 do not comply with the front setback requirements to Rolfe Street. o The proposed subdivision pattern is not consistent with the subdivision pattern of the surrounding locality. 13 The Council also invited the Court to take into consideration the matters of concern raised by the objectors. The evidence 14 Expert town planning evidence was provided by Mr D Rohloff (respondent) and Mr L. Roberts (applicant). Expert heritage evidence was provided by Ms D Smith (respondent) and Mr R Stass (applicant). Streetscape and character 15 In relation to the issue of the Alexander Street and Rolfe Street streetscapes, the relevant plans, reflecting the amended proposal are contained in Exhibit G. In relation to the Rolfe Street building, the plans include an alternative flat roofed version that could be utilised if it were concluded that the building's presentation is excessively bulky . 16 The streetscape objectives in Part 4 of the DCP include the need to ensure that development contributes positively to the street and locality and to minimise any negative visual impacts resulting from walls and fences at the site's frontage. Building height at the street frontage and building alignment should maintain a compatible scale with adjacent development. The setback objectives in Part 3 seek to maintain and enhance the existing streetscape by having setbacks that relate to the setbacks of neighbouring properties and those in the immediate vicinity. More particularly if there is no consistent or established set back a 6 m setback applies. The proposed building in Rolfe Street is set back 4.5 m although the two, single storey double garages are to be built to the site's frontage. Alexander Street 17 In arguing that the proposed development would have an adverse impact on the streetscape of Alexander Street Mr Rohloff is of the opinion that it is only the northern side of the street that should be taken into account. Here the majority of dwellings if they extend over two levels, have the upper floor level contained within the roof space. Because the proposed building clearly presents as two storeys and taking into account its width it would be inappropriately bulky and thus out of character. He was also concerned that by providing car parking spaces this would also be out of character with the north side of Alexander Street that is not characterised by parking structures or car parking accesses. 18 In response Mr Roberts argues that the streetscape analysis should take into account the development on both sides of the street that reflects a variety of built forms including two-storey buildings similar to the proposal as well as car parking structures and accesses. Also to be taken into account is the fact that the proposal complies with the maximum building height and setback controls in the DCP. Rolfe Street 19 Mr Rohloff of is the opinion that the proposed building would present an undesirable building bulk in Rolfe Street. He contends that the failure to comply with the requirements of the DCP results in an adverse impact on Rolfe Street particularly in relation to building bulk and by comparison with existing development in the street generally. In this regard the setbacks of dwellings is to be differentiated from the setbacks of garages. 20 Mr Roberts acknowledges that most of the properties in Rolfe Street have two frontages with the Rolfe street frontages being secondary and being generally utilised for car parking. Despite this there are dwellings in the street that front and have access from Rolfe Street in a manner similar to the proposal. In this context the proposal would be appropriate. He contends that the setbacks are responsive to the requirements of the DCP and does not accept that there should be any differentiation between setbacks for garages as distinct from the dwellings themselves. Hence the consistent set back established by the numerous garages that are built to their frontages can be applied to this site. Taking this into account together with the setback of the two-storey elements of the building produces a satisfactory and appropriate result. Streetscape and character - conclusions 21 Plainly the development is responsive to the LEP objectives of allowing a variety of housing types. As for the character of residential areas throughout the municipality, and I am satisfied that the proposal does not offend this objective. Plainly the proposal involves revitalisation, rehabilitation and redevelopment although questions of visual quality do arise for both Alexander Street and Rolfe Street. 22 In relation to the streetscape of Alexander Street, whilst weight can be given to the form and character of development on one side of the street, I agree with Mr Roberts that it is appropriate to take into account as I do, development on both sides of the street. This includes the two-storey buildings and car parking arrangements. Whilst the proposed building would, by comparison with the majority of buildings in the street be taller (two storeys) and wider, I do not accept that it would, taking into account the height and setback controls, have an incompatible scale or character. The positioning of the single car parking spaces underneath the building will minimise their visual impact. Whilst it is a relatively wide single building it will, taking into account the party wall and the twin hipped roofs, provide some compensating rhythm to the streetscape, akin to development in the street generally. More generally notwithstanding its different appearance, I accept that the building will not detract from the scenic amenity of the area. 23 Whilst the predominant character of Rolfe Street is garaging and driveways rather than dwellings I do not accept that this is an impediment to providing housing in this street. However the adjoining pair of double garages will read together making them unacceptably bulky and thus out of character with the other mainly single garages in Rolfe Street. I agree with Mr Roberts' interpretation of the setback controls and notwithstanding compliance with the height control I have been persuaded by the evidence of Mr Rohloff that the garages will have a negative visual impact. Whilst the town planners agreed that a flat roof building would reduce the Rolfe Street building's bulk, I believe there would be no significant benefit as against the proposed hipped roofs arrangement. Heritage and conservation area 24 The objectives in Part 1 of the DCP encourage a design approach that interprets and complements site characteristics, streetscape and the surrounding built environment. The objectives in Part 2 seek the protection of the significance of potential conservation areas. The DCP also requires that new subdivisions should complement the prevailing subdivision pattern and should maintain the character of the locality and the streetscape. 25 Whilst it can be taken into account, it is difficult to give much weight to a prospective conservation area in circumstances where its substantiation, nature, extent and details remain unsettled. I nevertheless recognize Ms Smith's description of those essential elements that she sees, in this context, as being relevant and important. These include streetscape and subdivision pattern. Alexander Street 26 Ms Smith believes that the proposal will have an adverse impact on the heritage values of Alexander Street especially the predominant single storey Federation form of the houses and the general absence of off-street parking and driveways. Mr Staas disagrees, explaining that the streetscape is not as intact as suggested and thus has less significance, especially given the wide variety of building forms in the street and the existence of off-street parking and driveways. Rolfe Street 27 Ms Smith is of the opinion that the existing rear lane character of Rolfe Street is a rarity in Manly being a wide street without curbs with a narrow meandering carriageway and varying verge widths. The two adjoining double garages and the attached dwellings would inappropriately alter the established character of Rolfe Street. Also the distinct visual contrast between the front and rear of the houses will be diminished. 28 Mr Staas disagrees contending that the street has no particular heritage significance. He notes that there are several loft structures and dwellings that front onto the street that is otherwise made up of single and double garages of no aesthetic or historic value. He said that the proposed building would make little or no difference to the verge and carriageway and would enhance the presentation of this site to Rolfe Street. Impacts on draft heritage item 29 The DCP requires that development adjacent to heritage properties should complement the built form and style of such properties, facilitating the preservation of their integrity. It also acknowledges that new development should not seek to replicate heritage items but may be a contemporary response that compliments and respects the form and scale of original buildings. 30 Ms Smith was concerned that the proposed dwellings with their extensive use of glass, (although now reduced) flat roof and single hipped roof (now two hips) and car parking do not respond sympathetically to the draft heritage item. Mr Staas disagrees, explaining that the proposed building adopts a contemporary approach to infill as permitted by the DCP. It provides additional separation by comparison with the draft item, which is built to its boundary and has a transitional scale and traditional roof form. The extent of glazing has been reduced. Subdivision pattern 31 Ms Smith explained that the historic subdivision pattern for this side of Alexander Street has allotments extending from Alexander Street through to Rolfe Street. By subdividing the land into four lots this will alter the rhythm and pattern established during the key period of development. In the circumstances the arrangement whereby vehicular access is to the rear off Rolfe Street should be maintained. This approach also supports the argument that there should be no vehicular access off Alexander Street. 32 Mr Staas disagrees noting that the existing subdivision pattern already deviates considerably from the original subdivision pattern. This includes the subject site that comprises an amalgamation of two of the original lots. The effective reinstatement of two lots to Alexander Street will be a positive outcome for that streetscape taking into account that there will be no perception of the development at the rear in Rolfe Street. Similarly the presentation to Rolfe Street will be of two characteristics lots, reinstating the original lot width pattern. Heritage and conservation area - conclusions 33 Up to a point Ms Smith is correct in relation to Alexander Street, however I agree with Mr Staas that the use of traditional forms in the proposed (as amended) building in a contemporary fashion as permitted by the DCP and taking into account other exceptional examples in the street is indicative of an acceptable outcome. Despite the fact that the streetscape is not presently dominated by off-street parking and driveways, they do exist. I thus accept that the proposed off-street parking arrangement is acceptable especially taking into account the proposed landscaping that should have a unifying effect. In this context the site's inclusion in a potential conservation area makes no difference to these conclusions. 34 As for the relationship of the proposed building with the draft heritage item in Alexander Street I am satisfied that it is sufficiently responsive to the requirements of Part 2 of the DCP. Plainly the proposed building is of a contemporary character and in my opinion despite being two storeys its articulation and increased setbacks at first floor level (up to 3.2 m) produce a satisfactory built form relationship with the draft heritage item. 35 In relation to Rolfe Street I agree with Mr Staas that there is no relevant potential for the public to make a visual distinction between the front and rear of the houses in Alexander and Rolfe Streets respectively. As already discussed I agree that the two adjoining double garages would read as one structure and would not be typical of the street. I agree with Ms Smith as to the special character of Rolfe Street and accept that impact of this structure is inappropriate not only in streetscape terms but also, I expect, in terms of the probable future conservation significance of Rolfe Street. 36 In relation to subdivision pattern I have been persuaded by the evidence of Mr Staas. I accept that the external manifestations of the proposed buildings will, to a degree, be reflective of the prevailing subdivision patterns in both streets although a different design should give greater emphasis to this. Conclusions 37 I acknowledge that the particular characteristics of Alexander and Rolfe Streets are likely be sufficient to justify their inclusion in a conservation area and there was no dispute as to the heritage significance of 30 Alexander Street. In this context I recognize that there are aspects of this development that are not entirely responsive to these characteristics but I have not been persuaded that this is a reason to reject the Alexander Street building despite it being conspicuously contemporary. 38 However as concluded above, the proposed double garages in Rolfe Street in their presently proposed form would be out of character with that street sufficient to fail the building form test arising out of s 10 (3) of the LEP, by adversely affecting the existing quality of the Rolfe Street environment. 39 Whilst the immediate neighbour to the east expressed some concerns I do not accept that the amenity of that property will be adversely affected to an unreasonable extent. 40 In the circumstances I have decided that the appeal should be dismissed and the development application refused. ___________________ T A Bly 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.