Manolev Associates Pty Ltd v Manly Council [2010] NSWLEC 1055

Land and Environment Court of New South Wales

CITATION : Manolev Associates Pty Ltd v Manly Council [2010] NSWLEC 1055

APPLICANT Manolev Associates Pty Ltd PARTIES : RESPONDENT Manly Council

FILE NUMBER(S) : 10839 of 2009

CORAM: Hussey C - Fakes C

KEY ISSUES: DEVELOPMENT APPLICATION :- Dwelling house, height, bulk scale, visual impact, excavation, setbacks, vehicle access

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Manly Local Environmental Plan 1988 Sydney Regional Environmental Plan (Sydney Harbour Catchment) Manly Residential Development Control Plan

CASES CITED: Fodor Investments Pty Limited v Hornsby Shire Council [2006] NSWLEC 8 Pafburn v North Sydney Council [2005] NSWLEC 444

DATES OF HEARING: 23 and 24 February 2010

DATE OF JUDGMENT: 18 March 2010

APPLICANT Mr A Gallasso (Senior Counsel) SOLICITOR Mr M Callnam of Ellison Tillyard Callanan LEGAL REPRESENTATIVES:

RESPONDENT Ms C Schofiled (solicitor) SOLICITOR Pikes Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C Fakes C

18 March 2010

10839 of 2009 Manolev Associates Pty Ltd v Manly Council

JUDGMENT

Background 1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against Manly Council's refusal of Development Application No 408/08 for the demolition of an existing dwelling and construction of a new multi-level dwelling with an inclinator at 45-47 Seaforth Crescent Seaforth. 2 Council raised a number of issues for the appeal, which are summarised as: Excessive height and bulk resulting in adverse visual impact when viewed from adjoining land and from the harbour, taking into account the location within the Foreshore Scenic Protection Area; Non-compliance with the number of storeys, height of walls, front and side setbacks and parking arrangements; Excessive excavation; Multiple vehicle access driveways and the detrimental impact on on-street parking, streetscape amenity and views from the street; Inadequate documentation, particularly with respect to the inclinator; Absence of the owner's consent for the access works within the road reserve; and Concerns that approval of the development, as proposed by the applicant, will create an undesirable precedent. The site 3 The site comprises 2 lots described as Lot 29 in DP4889 and Lot 2A in DP438286. These lots have a combined frontage of 20.32m to the southern side of Seaforth Crescent and an approximate total area of 1685sq m. The site is of irregular shape and traverses a steep slope (in the order of 60%) from Seaforth Crescent to the mean height watermark of Middle Harbour. 4 The existing structures comprise (from Seaforth Road down to the harbour) a 6m x 8m concrete hardstand with cross-over at street level constructed over a double garage. This hardstand currently provides rooftop parking for 2 vehicles. To the east of this is a narrow grassed strip with no formal footpath. There are currently 2 on-street parking spaces between the hard stand and the concrete driveway that leads down to the existing garage located on the western side of the property. 5 Stairs lead down from the driveway and garage to a 3 storey brick, timber and sandstone dwelling with a pitched tiled roof. At the lowest level of the house there are a number of decks and a swimming pool orientated in an east-west direction. The levels are retained with a variety of materials including railway sleepers and sandstone blocks. External access to the pool and the lower parts of the property is via stairs along the western side of the property. 6 Below the pool, the land slopes steeply to a flat, grassed area and then below that, the land slopes steeply to the harbour. On the foreshore, the harbour edge is retained by a sea wall, unsecured timber planks bridge a storm water outlet and connect two sections of reclaimed land, one of which leads to a jetty. The levels are retained by a mixture of sandstone blocks, timber and natural sandstone boulders. The stairs and pathways are in poor condition. 7 Most of the existing vegetation is located on the eastern and western boundaries and to the south of the pool. The area below the pool is vegetated with a mixture of native species, bamboo, planted palms and shrubs and numerous weeds. These plants provide screening from adjoining properties and from the water. The property to the east of the site is heavily vegetated with many canopy trees. The property to the west is mostly cleared but with some vegetation of stature along the foreshore. The proposed development 8 This development initially involves the demolition of the existing dwelling and structures on the site to enable construction of the new 5 – level dwelling described as follows. Level 1 is the lowest and most southerly level and comprises a media room, studio/rumpus room, cellar and 2 bathrooms. This floor opens onto an extensive terraced area with a spa, below and to the east of which is a pool, water feature and deck. The pool is orientated in a north-south direction along the eastern side of the property. To the south of the pool are a series of landscaped terraced areas. 9 Level 2 consists of 2 bedrooms, bathrooms, laundry and a family room. A deck to the west adjoins the bedrooms. Another deck for drying purposes adjoins the eastern side of the family room. Level 3 comprises the master bedroom, another bedroom, bathrooms and study. A deck adjoins the main bedroom to the south-east. 10 Level 4 is the main living area and comprises dining, lounge, kitchen, TV room and bathroom. A large deck for outdoor dining adjoins the lounge. This deck is located to the western side of the southern elevation. 11 Level 5, the uppermost level, includes a car turntable at the western end of the driveway to the north of the double garage. To the east of the garage is the main entrance and foyer. The foyer leads to a lift and internal stairs. This level also contains a void over the living/dining area. There is a raised 'clerestory' section over this void. The remaining roof of this level is flat concrete with gravel with a parapet edge. There is a large skylight above the internal staircase and a bank of solar panels. 12 The proposal also includes the construction of an inclinator adjacent to the western boundary and landscaping with soft open space comprising approximately 61.4% of the site area. Planning controls 13 The primary planning controls are the Manly Local Environmental Plan 1988 (MLEP) and Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP-SHC). The site is in the Zone No 2 Residential Zone and is in the Scenic Foreshore Protection Area (SFPA). The proposal is permissible with consent The following controls are relevant: 3(1) The general aims and objectives of this plan are: (e) to increase the availability and variety of dwellings to enable population growth without having adverse effects on the character and amenity of the Municipality, (h) to manage change within the Municipality so that Aboriginal relics and items of the environmental heritage that contribute to its special sense of place are protected and conserved, (i) to preserve and enhance the amenity of defined environmentally sensitive areas, public places and areas visible from public places or from navigable waters around the Municipality, (j) to ensure that new development does not detract from the very special visual quality of the Municipality, 14 The MLEP provides: 10 (3) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 15 The relevant objectives of this No 2 zone are: 1(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, (e) to improve the quality of the residential areas by encouraging landscaping and permitting greater flexibility of design in both new developments and renovations.