Tricon Services Group Pty Limited v Manly Council [2011] NSWLEC 1271

Land and Environment Court New South Wales

Medium Neutral Citation: Tricon Services Group Pty Limited v Manly Council [2011] NSWLEC 1271 Hearing dates: 29, 30 August 2011 Decision date: 30 August 2011 Jurisdiction: Class 1 Before: Brown ASC Decision: 1.The appeal is dismissed. 2. DA13/2010 for the demolition of all existing improvements and the construction of a mixed commercial/residential development at 46, 47 and 48 North Steyne, Manly is refused. 3. The exhibits are returned with the exception of exhibit 1. Catchwords: DEVELOPMENT APPLICATION - demolition of all existing improvements and the construction of a mixed commercial/residential development - height - view loss - breach of floor space ratio Legislation Cited: Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 1988 Manly Development Control Plan 1989 Category: Principal judgment Parties: Tricon Services Group Pty Limited (Applicant)

Manly Council (Respondent) Representation: Counsel Mr P Tomasetti SC with Mr J Doyle (Applicant)

Mr M Staunton, barrister (Respondent) Solicitors Hunter Lawyers (Applicant)

HWL Ebsworth Lawyers (Respondent) File Number(s): 10584 of 2010

Judgment 1ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by Manly Council of Development Application DA13/2010 for the demolition of all existing improvements and the construction of a mixed commercial/residential development at 46, 47 and 48 North Steyne, Manly. 2The contentions raised by the council relate to: 1. excessive height and subsequent view loss, and 2. excessive floor space ratio (FSR). 3Contentions relating to the layout of the basement car park, access and turning movements were addressed through additional information and conditions. The contentions relating to loss of privacy and overshadowing were still seen as negative impacts of the proposal by the council but not sufficient reasons to refuse the development application. The site and surrounding area 4The site comprises three allotments, being Lot 1 in DP72878, Lot B in DP447915 and Lot A in DP447915. The site is regularly shaped, with a total area of approximately 521.5 sq m, a frontage to North Steyne of 14.705 m, a frontage of 14.88 m to Henrietta Lane at the rear of the site and a depth between 34.835 m and 36.105 m. 5The adjoining development to the north (49-53 North Steyne) consists of a five to six storey mixed use development with the ground and first floors comprising retail and commercial uses and with the upper levels comprising residential development. Adjoining development to the south (43-45 North Steyne) consists of a five storey mixed use development, comprising ground floor retail and commercial uses and residential development on the upper levels. Beyond Henrietta Lane, to the west, is the Waves building (9-15 Central Avenue). This building is an eight storey residential and serviced apartment building, which is accessed via Central Avenue, but orientated to Henrietta Lane. Some east-facing apartments have views towards the Pacific Ocean. To the east of the site, across North Steyne, is Manly Beach and the boardwalk adjoining the beach. 6The site is located within a mixed-use area with the majority of the surrounding development being a combination of commercial, retail, residential and tourist uses. The proposal 7The proposed development involves a three to five storey building with two levels of basement car parking. The basement car park contains 19 car parking spaces and includes three visitor spaces and two disabled person spaces. The ground floor of the building contains retail premises extending to the North Steyne boundary, loading dock, service access, fire egress and access driveway off Henrietta Lane. The residential levels contain 16 dwellings comprising 10 x 1 bedroom dwellings and 6 x 2 bedroom dwellings. A common garden courtyard separates the four residential floors of the development with access provided by a lift and common stairs. An elevated walkway through the courtyard provides pedestrian access to the dwellings on Levels 2 to 4. The main pedestrian entry to the residential component of the development is from North Steyne. Relevant planning controls 8The site is within Zone No. 3 Business Zone under Manly Local Environmental Plan 1988 (LEP 1998). Clause 3 provides aims and objectives for the plan and cl 10(3) provides that development consent must not be granted unless the development is consistent with the zone objectives. 9The site is also within a Foreshore Scenic Protection Area and cl 17 provides that consent must not be granted if the development will have a detrimental effect on the Foreshore Scenic Protection Area. The site is also in the vicinity of items of environmental heritage and within a conservation area, and specific requirements are provided in cll 19 and 21 respectively, although the council raised no contentions in relation to these clauses. 10Manly Development Control Plan for the Business Zone 1989 (the DCP) applies. The "Introduction" relatively states: The specific controls in the DCP place a particular emphasis on townscape considerations requiring applicants to design a development having regard to how it will appear when viewed from and in conjunction with surrounding buildings, spaces and streets. The Council is required under s 79C of the Environmental Planning and Assessment Act 1979 to specifically take such matters into consideration when determining any application (s 79C also lists a wide range of other matters for specific consideration including generally the provisions of this DCP). The Council's Townscape (1977) and Heritage (1986) studies indicates that many areas of the Council area have a particularly important townscape character as a result of the general scale and interest of the buildings and the spaces they border. This character exists even though there might be only a limited number of buildings listed in the Heritage Study as having an individual importance.... 11Under the heading of "Preliminary", the site falls within Part 1 - The Manly Town Centre. Clause C(4) states: 4. Council and applicants must have regard to the objectives and relevant controls of Council's DCP for the Residential Zone for residential development within the Business Zone. 12Clause D provides aims and objectives, and cl D.6 states: 6. To introduce building heights, setback and other controls relating to building form and height in order to achieve a consistent and coherent townscape appropriate to the locality. 13A definition is provided for "townscape" that states: Townscape is the total appearance of a locality and contributes to its character. A high level of townscape quality will result in an area being experienced not as a number of disconnected parts but as a whole with one recognisable area leading into another. For the purposes of this planning control it is considered that the business zones of the municipality still maintain an essentially unified townscape giving rise to a particular individual character, which should be maintained and reinforced. The determination of the townscape of a locality should examine this sense of place and a sense of unity from the following perspectives: (i)from a distance outside the locality and then along the routes and from the viewpoints leading towards the locality; (ii)the spaces within the locality formed by the buildings and the elements; (iii)the buildings themselves, their details and relationships to each other. 14Clause F provides design principles that state: It is an objective of the Council in this plan to maintain and enhance the townscape of the business zones in the municipality. The Council considers the following design principles and requirements should be achieved in all developments in order to achieve this objective. 1. The local role of the site and the existing buildings should be determined when viewed (i)from a distance and along the routes and from the viewpoints leading towards the locality; (ii)in relation to the adjacent spaces it borders and the need to define those spaces; (iii)in relation to the adjacent buildings and the need to be complementary to those buildings in terms of height, scale and design detailing. A scale and design of buildings appropriate to this role should then be achieved. 2. Proposed developments should be consistent where applicable to the townscape principles and the opportunities illustrated in the accompanying maps. 3. Design details of the proposed development shall be complementary to those adjacent buildings in the locality. In particular reference will be made to (i)the scale and proportion and line of visible facades; (ii)the pattern of openings and the visual pattern of solids to voids on facades; (iii)overall wall and parapet height and heights of individual floors in relation to adjoining development and important corner buildings (refer also to the provision on building heights in each of the localities); (iv)materials, textures and colours; (v)architectural style and degree of architectural detail; (vi)the scale of the footprint of the building. 15Accompanying the clause are three diagrams and commentary that indicate an increased or decreased height from what is described as the " stated height limit ." 16Part 1 provides general provisions for the Manly Town Centre. Clause 1.1 provides provisions for FSR and cl 1.2 provides provisions for building height. Clause 1.2 states: 1. The maximum wall height of a building shall not exceed 15 m except where (i)a lesser or greater height is specified on the height control map, or (ii)a lesser or greater height provides a better relationship to adjoining development in terms of fulfilling the Council's townscape objectives; (iii)the Council agrees to the addition of plant rooms, lift overruns, pitched roofs or the like. 2. The Council will only agree to increase in building height as detailed in 1(iii) above where it is satisfied that (i)the structures are designed as an integral part of the building in such a way as to appear an appropriate part of the overall townscape and not conflict with overall townscape objectives; (ii)any roof space is not designed or used as habitable space. 3. In relation to item 1(ii) above, the Council is seeking in its townscape objectives to ensure that the height of new buildings equates with both the overall height and the height of particular architectural details (eg floor levels, parapet details) of adjoining buildings and the important end buildings in the particular street block. This will often require greater floor to ceiling heights than the minimum permitted in current building regulations. The use of internal mezzanine levels should be considered in order to achieve the desired height levels where necessary. 4. The Council will consider allowing new development to be constructed to the same building envelope as existing buildings on the site in order to maintain interest and variety provided the other objectives and requirements (including floor space ratios) of this plan are achieved. 17Clause 1.4 relates to townscape and states: Regardless of whether a building is listed as an item of environmental heritage in the Manly Local Environmental Plan 1988, the Council must be satisfied that the design of any new development has given due attention to the site's position within and contribution to the overall existing and future townscape quality of the Manly Town Centre and Pittwater Road areas. A definition of townscape and a list of those matters to be dealt with when designing the townscape is given in the preliminary to this plan. 18Under the heading of 'Maximum Building Height', the DCP (at p 15) provides maximum building heights as shown on a plan for the Manly Town Centre. The site is indicated on the map as having a maximum building height of 10 m towards North Steyne and 12 m towards Henrietta Lane. This section of the DCP further states: There is an opportunity for new development to be constructed to the height of the existing non-complying buildings (refer cl 2(iv). 19The parties agree that the DCP does not contain a cl 2(iv). 20Manly Development Control Plan for the Residential Zones (the Residential DCP) applies by way of cl C.4 of the DCP and cl 4.3 addresses maintenance of views and contains objective controls and adopts the principles set out in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. The evidence - height and view loss 21Mr Steve Layman provided expert evidence for the council and Mr Lawrence Winnacott for the applicant. On the site inspection, a number of residents from the Waves building provided evidence from their respective units in the building. Their principal concern was loss of views towards the ocean currently available over existing buildings on the site. 22Mr Layman and Mr Winnacott provided individual statements and a joint report that addresses the height and view loss contentions. Both experts generally accepted the impact on views from The Waves building as depicted in the evidence of Mr Graham Jago, the project architect. The photomontages indicated the effect of the proposed building (shown as a dashed green line) and a building of 10 m and 12 m height (shown as a full red line). The photomontages were prepared from units 708, 608, 606, 607, 508, 507, 506, 407 and 308 of the Waves building. 23There was also general agreement on the extent of the variation to the 10 m and 12 m height requirement in the DCP created by the proposed development. The breach of the 10 m height requirement was a maximum of 2.7 m and the 12 m requirement was breached by a maximum 3 m. At the front of the site, the majority of the proposed building is lower than the 10 m height requirement. The building exceeds the 10 m height requirement only at the Level 3 loggia and part of the Level 4 bay windows. 24The building to the north (49-53 North Steyne) is approximately 5.5 m above the 12 m height requirement at the common boundary and the property to the south (43-45 North Steyne) is approximately 3.25 m above the 12 m height requirement at the common boundary. 25The difference in the conclusions of Mr Layman and Mr Winnacott essentially became a contest over the interpretation of the DCP requirements. Mr Winnacott maintains that the emphasis should be on the townscape objectives where the height of new buildings should equate with the height of adjoining buildings. In his opinion, the DCP provides the opportunity for increased height to satisfy these objectives. In Mr Winnacott's opinion, the proposed building, which largely matches the height of the building to the south and is below the height of the building to the north, satisfies the DCP townscape objectives and, as such, consent should be granted. Mr Layman takes the view that the height is controlled totally by the height control map that provides for a maximum wall height of 10 m and 12 m as required by cl 1.2(1)(i) and that the opportunity for a greater (or lesser) height as specified in cl 1.2(1)(ii) does not arise as the height issue is settled by cl 1.2(1)(i). Further, the impacts on view caused by the additional height are unacceptable based on the test in cl 4.3 of the Residential DCP. Findings - height and view loss 26In balancing the different approaches of Mr Layman and Mr Winnacott in the interpretation of the DCP, I am satisfied that neither Mr Layman nor Mr Winnacott have correctly interpreted the DCP although I ultimately accept the conclusions of Mr Layman. In my view, the starting point in considering the question of height is the maximum building height map referred to in cl 1.2. The clause provides for a maximum wall height of a building of 15 m except where another height is identified on the height control map. In this case, the map specifies a height of 10 m and 12 m for the site. I have taken the 10 m and 12 m heights to mean those heights identified in the diagrams accompanying cl F in the DCP and identified as " stated height limits ". 27Contrary to Mr Layman's evidence, I do not agree that this is the end to the question of the appropriate height for the site. Clause 1.2.1(iii), in my view, still applies and provides the opportunity for a greater or reduced height if the change in height " provides a better relationship to adjoining development in fulfilling the council's townscape objectives." Such an approach is consistent with the diagrams accompanying cl F of the DCP. 28At this point I depart from the approach adopted by Mr Winnacott. I do not accept that the townscape objectives should be given primacy over other planning considerations in the DCP. The DCP clearly does not advocate this primacy. To adopt Mr Winnacott's approach would be to largely ignore other relevant matters in the DCP, in this case, the loss of views from the Waves building. Clause C4 of the DCP makes a specific reference to the need to " have regard to the objectives and relevant controls from Council's DCP for the Residential Zone." The broader consideration required by s 79C(1)(b) of the Environmental Planning and Assessment Act 1979 relating to "the likely impact of that development on the built environment" is also relevant. In coming to this conclusion it does not necessarily follow that any impact on views would warrant the refusal of the application. The question to be answered, in this case, is whether the impact on the views from the Waves building is so significant that, on balance, this impact would outweigh the impact on the townscape by restricting a building on the site to the 10 m and 12 m height limits. 29In my opinion, the answer to this question should be yes. Using the view assessment principles in Fig 14 of cl 4.3 of the Residential DCP, the first three steps in assessing view impact; being the assessment of views to be affected, what part of the property the views are obtained and the extent of view impacts are agreed by Mr Layman and Mr Winnacott based on Mr Jago's photomontages. The fourth step; being the reasonableness of the proposal that is causing the impact was the significant difference between Mr Layman and Mr Winnacott. Having found that there is no obligation in the DCP to maintain a similar height to adjoining buildings, the conclusions of Mr Layman are more appropriate in terms of view loss impact. 30I agree that the impact on views from Levels 4, 5 and 6 is unacceptable. From unit 407 all water views would be lost, but a 10 m and 12 m building would likely provide a view of the horizon. From units 506 and 507, at best, the horizon may be visible. However, with a 10 or 12 m building, a significant band of water would be retained. The loss of water views reduces with height and units 606 and 607n would likely lose the wave area near the beach while retaining the more distant water views to the horizon. The loss of views, in my opinion, could be described as severe for Levels 4 and 5 and moderate for Level 6. 31This impact needs to be compared to the potential impact on the townscape. With the benefit of the site inspection, I accept that a building that satisfies the 10 m and 12 m height requirement would have only a minimal impact, if any, on the townscape. The views from different parts of North Steyne and the beach will be dominated by the street faade and upper levels. The proposal will provide consistency with adjoining buildings, even accepting that the streetscape of North Steyne represents only a part of the broader concept of townscape. While the upper levels of the building will be visible from some locations in the Manly Town Centre, I generally accept that the differences in overall height with adjoining properties will not have any unacceptable impacts on the townscape. I do not accept that a building of 10 m and 12 m in height will offend the townscape objectives. 32I note that there is no obligation to have a building that replicates the height of adjoining buildings; the DCP providing a range of tests including the buildings being "complementary", "match" and "equate" with existing buildings. There well may be instances where a building height may be increased to address the townscape objectives through the opportunities provided in the DCP, however, I do not accept that it is appropriate in this case because of the unacceptable impact on the view loss from some levels of the Waves building. Floor space ratio 33FSR was raised an issue by Mr Layman, although the separate FSR requirements in cl 1.1 relating specifically to the 10 m height zone and the 12 m height zone were satisfied. The concern of Mr Layman was that the residential FSR of 2:1 was exceeded. The extent of the exceedence was dependent on the inclusion of some balconies or loggias as gross floor area. In my view and if there were no other matters in dispute, the breach of the residential FSR would not be a matter that would warrant the refusal of the application. Orders 34The orders of the Court are 1.The appeal is dismissed. 2. DA13/2010 for the demolition of all existing improvements and the construction of a mixed commercial/residential development at 46, 47 and 48 North Steyne, Manly. 3. The exhibits are returned with the exception of exhibit 1. G T Brown Acting 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. Decision last updated: 16 September 2011