Land and Environment Court of New South Wales CITATION : Blackmore Design Group v Manly Council [2008] NSWLEC 1330 Applicant: Blackmore Deign Group Pty Ltd PARTIES : Respondent: Manly Council FILE NUMBER(S) : 10408 of 2008 CORAM: Roseth SC KEY ISSUES: Development Application :- DATES OF HEARING: 21 August 2008 DATE OF JUDGMENT: 26 August 2008 Applicant: LEGAL REPRESENTATIVES: Mr M Staunton, barrister Respondent: Ms C Schofield, solicitor of Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 26 August 2008 10408 of 2008 Blackmore Design Group 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 demolish the existing buildings and erect a five-storey retail/commercial/residential building on lot 1 DP 176052, lot 1 DP 934215 and lot 1 DP 902233, known as 53, 55 and 57 Pittwater Road, Manly. The site 2 The site is on the western side of Pittwater Road, between Denison and Carlton Streets. The rear boundary is to Kangaroo Lane. The site is flat and its area is 908m2. The existing buildings occupy the entire site and are vacant. 3 The adjoining site to the north is 59 Pittwater Road, where a Salvation Army building stands. To the north of that is another Salvation Army building that is a heritage item. The adjoining site to the south is 51 Pittwater Road, a residential flat development called the Manly Mews. 4 The surrounding area is a mix of terrace houses, single dwellings, shops and offices. There are also apartment buildings of three and five storeys and a four-storey former hotel. The proposal and its history 5 The applicant proposes to demolish the existing buildings on the site and erect a partly two-storey and partly five-storey building containing shops, offices and apartments. The two-storey element faces Pittwater Road, while the five-storey element is to the rear. 6 The applicant lodged the development application in December 2007. Following notification, the council received 20 objections. The applicant lodged the appeal in April 2007. On 18 June 2008 the Court held a conciliation conference, pursuant to s34 of the Land and Environment Court Act 1979, at which five objectors (Mr R Lovett, Mr Eric and Mrs Elana Tu, Mr Paul Stevenson and Mr John Thompson) from Manly Mews were heard. The Owners' Corporation for Manly Mews had retained a planning expert, Mr Ross Fleming, who also attended the conference. While the parties reduced their differences, they did not reach agreement. A further conference was held on 9 July 2008, at which there was still no agreement, however, the parties agreed to the Commissioner disposing of the proceedings as long as it would be after a further hearing. That hearing took place on 21 August 2008. At the hearing the applicant tendered a letter from Mr Fleming stating that the residents of Manly Mews were satisfied with the amended proposal. Relevant planning controls and policies 7 State Environmental Planning Policy 65 – Design of Residential Flat Development (SEPP 65) applies to the proposal. It contains ten design principles. It is accompanied by a publication Residential Flat Design Code (the Flat Design Code), which contains detailed design guidelines. The guidelines relevant to this proposal are those for solar access and through-ventilation. 8 Manly Local Environmental Plan 1988 zones the site Business. Mixed-use buildings containing residential and commercial use are permissible. The site is within the Pittwater Road Conservation Area. 9 Manly Development Control Plan for the Business Zone 1989 – Amendment 5 (the DCP) applies. It establishes a maximum Floor Space Ratio (FSR) of 2:1 (which the proposal breaches) and a maximum wall height of 15m (which the proposal meets) for the site. 10 Manly Town Centre Urban Design Guidelines 2002 (the Design Guidelines) apply because the site is located in the Town Centre. Matters in contention 11 The council submitted its Statement of Contentions listing 17 matters. During the two conciliation conferences these were reduced to ten, namely: o The design quality is poor. o The proposal does not contribute to the Conservation Area. o The FSR exceeds the permissible of 2:1. o The design does not fit into townscape. o The amenity impacts on neighbours are unacceptable. o The urban design quality is unacceptable. o The proposal is an overdevelopment. o The applicant has provided inadequate information. o Internal overshadowing occurs and solar access is poor. o The drainage proposal is inadequate to prevent flash flooding of the basement. (This was resolved at the hearing on 21 August 2008.) 12 Since the above includes some duplication, I have simplified the matters in contention, as follows: o The proposal exceeds the maximum permissible FSR. o The impacts on the neighbours are unacceptable. o Internal amenity is poor. o The design quality is poor. o The proposal does not fit into the Conservation Area context. Floor space 13 The applicant's planning expert, Mr Robert Player, calculated the FSR to be 2.4:1. The council's planning and heritage expert, Mr Brian McDonald, calculated it to be 2.48:1. The difference between the two is not large enough to be significant. Mr Player, says that the FSR of 2.4:1 is justifiable. He believes that the way the council applies the FSR control is that the FSR of 2:1 applies to the residential component of a building. There may, however, be an additional commercial component of undefined magnitude. The proposal complies with this interpretation of the FSR provision, since its residential component is just under 2:1. 14 In support of this interpretation of the FSR provision, the applicant's advocate, Mr Michael Staunton, referred the Court to the council's Statement of Facts and Contentions, revised on 12 August 2008, which states on page 5: The proposal fails to satisfy the maximum permitted floor space ratio, for the residential component, of 2:1. 15 The council's planning expert Mr Brian McDonald, disagrees. In his interpretation, the maximum FSR of 2:1 refers to the whole building, not its residential component. He bases his opinion on page 10 of the DCP, which states: (1) Except as provided in 3 below, the ratio of gross floor area of a building to the area of the site shall not exceed: (i) In the area within the 10 metre height zone, 2.5:1; (ii) In the area outside the 10 metre height zone (except the area fronting Pittwater Road between Raglan and Carlton Streets) 3:1; (iii) In the area fronting Pittwater Road between Raglan and Carlton Streets, 2:1. (2) Within the Manly Town Centre area, the floor space ration for residential uses shall not exceed 2:1. Except in circumstances where council considers that townscape design, diversity, interest and heritage values are not compromised. (3) Irrelevant. 16 The above suggests that the maximum permissible total FSR of a building on a site fronting Pittwater Road between Raglan and Carlton Streets is 2:1. In places where the FSR is higher than 2:1, the residential component is restricted to 2:1, except where a higher proportion of residential use within the building does not compromise townscape design, diversity, interest, and heritage values. The location of the sentence starting with the word "except" in the second paragraph indicates that it relates only to the residential component of buildings whose maximum FSR is higher than 2:1. 17 I am strengthened in the above conclusion by the absurd planning result to which the applicant's interpretation would lead. It would allow the total bulk of buildings to be unconstrained as long as their residential component is below 2:1. I do not think that such a planning outcome could have been intended in a conservation area. 18 I accept that the council's Statement of Facts and Contentions is misleading. However, there are other documents in evidence that convey the council's position clearly and unequivocally. Among these is a letter on council letterhead addressed to the applicant's architect, Mr Paul Buljevic, and dated 10 December 2007. The letter follows a pre-DA meeting. Among other things, the letter states: FSR maximum: 2:1, of which the minimum commercial/retail component is to be 0.5:1. 19 The correct interpretation of the DCP's provisions for FSR is that the maximum total FSR for a building on this site is 2:1. The reference to the council's varying the FSR provision where townscape design, diversity, interest and heritage values are not compromised, relates to residential FSR and therefore not to this site but to areas where the maximum FSR is higher than 2:1. However, nothing turns on this, since I accept that the council (and the Court) may vary the provisions of a DCP whenever it believes that variation is justified. There needs to be no statement to this effect in a DCP since it is self-evident. 20 Mr Player believes that the proposal's FSR at 2.4:1 is justified because the building fits into the uneven scale of the Pittwater Road Conservation Area, where there are small as well as large buildings. He takes his cue from the large buildings in the vicinity, in particular from the adjoining Manly Mews. Mr McDonald believes that the building is too large in its context and that it would intrude into the view from the other side of Pittwater Road. In my opinion, the reduction of the building by about 400m2 (necessary to bring its FSR to 2:1), would result in a slightly better fit into the Conservation Area, though I do not think that the difference would be highly noticeable. The large buildings on which Mr Player relies for his justification for varying the maximum FSR control are not so prevalent that they dominate the context. The more new buildings are allowed to exceed the FSR of 2:1, the more the smaller scale of the older buildings is likely to disappear from the Conservation Area. In my opinion, the proposal should comply with the maximum FSR of 2:1 including residential and commercial components. Impact on Manly Mews 21 It is common ground that the amended proposal has a lesser impact on Manly Mews than the original proposal. Despite this. Mr McDonald still maintains that the impact remains unacceptable. Mr Fleming, who represents the objectors living in Manly Mews, is satisfied with the amended proposal. I accept his evidence. The impact on Manly Mews is not a reason for refusal. Internal amenity 22 The proposal contains 28 apartments. It is common ground between Mr Player and Mr McDonald that 3 apartments receive at least three hours of sunshine, 17 apartments receive at least two hours of sunshine; while 11 apartments receive less than one hour of sunshine. The Flat Design Code suggests that 70% of apartments should receive at least three hours of sunshine in their living areas at mid-winter. In high-density areas this may be reduced to two hours of sunshine. 23 Clearly, the proposal fails to satisfy the Flat Design Code even on the assumption that this is a high-density area. If that assumption is made, 20 apartments should receive two hours of sunshine. The large proportion (40%) of apartments that receive practically no sunshine further highlights the proposal's poor performance on solar access. Such poor performance would be acceptable only if an existing building cast a shadow on the site, a circumstance that often occurs in high-density areas, but does not occur on this site. The reason for the poor performance is the design of the building. 24 Mr Player justifies the poor solar access by the fact that the apartments have a good view over Manly Town Centre and the Ocean. However, the apartments with a view are the ones that receive the sunshine. Those without sunshine are also without a view. 25 Mr McDonald and Mr Player agree that a reduction in the FSR would improve solar access. Mr Player did not quantify the improvement. Mr McDonald thought that, while it was unlikely that more apartments would receive three hours of sunshine, the number that would receive two hours would meet the 70% rule of thumb in the Flat Design Code. It seems to me that this is a strong argument in favour of requiring the proposal to comply with the maximum FSR of 2:1. 26 Mr McDonald also criticises the proposal because several apartments are single aspect and have no through ventilation. I agree with him that a higher proportion of cross-ventilated apartments would be desirable in any future application. Design quality and context 27 Mr McDonald was dissatisfied with the design quality of the building itself, as well as it fits into its context. I have already dealt with the proposal's fit into the Conservation Area when discussing FSR. Apart from the criticism that the building is too bulky, Mr McDonald also considers that the rear façade is too flat and uninteresting. While I agree with him, I do not think that the quality of the rear façade, by itself, would be sufficient reason for refusal. Orders 1. The applicant is granted leave to rely on amended plans. 2. The appeal is dismissed. 3. Development application to demolish the existing buildings and erect a five-storey retail/commercial/residential building on lot 1 DP 176052, lot 1 DP 934215 and lot 1 DP 902233, known as 53, 55 and 57 Pittwater Road, Manly is determined by refusal. 4. The exhibits are returned. ___________________ 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.