Land and Environment Court New South Wales Medium Neutral Citation: Talbert v Manly Council [2011] NSWLEC 1326 Hearing dates: 31 October 2011 Decision date: 15 November 2011 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to conditions Catchwords: Development Appeal: condition of consent relating to nil side setback Legislation Cited: Environmental Planning & Assessment Act 1979 Land and Environment Court Act 1979 Manly Local Environmental Plan 1988 Cases Cited: Zhang v Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: Tracey Kathleen Talbert (Applicant) Manly Council (Respondent) Representation: Applicant: Mr G McKee (solicitor) Respondent: Ms J Hewitt (solicitor) Applicant: McKees Legal Solutions Respondent: HKL Ebsworth Lawyers File Number(s): 10711 of 2011 Judgment 1COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the approval by the Manly Independent Assessment Panel (MIAP) (under delegation from Manly Council (the council)) to grant development consent, subject to conditions, to Development Application No. 159/2011 in relation to a property at Lot 1 DP 1147301, being 28A Alexander Street Manly (the site). Specifically, conditions ANS 01 and ANS04 are appealed. 2The approved development is the subdivision of a currently vacant lot into 2 rectangular shaped allotments and the construction of two semi-detached two-storey dwellings with associated pools and carports. 3The specific conditions subject to this appeal are: ANS 01 The proposed basement and kitchen walls located along the side boundaries for both dwellings as shown on the approved plans are to be setback 1m from side boundary to maintain the existing natural ground level between the side boundary and dwellings and the areas are to be suitably landscaped including boundaries adjacent to the internal courtyards. Full details demonstrating compliance with this condition shall be detailed upon the plans to the satisfaction of the Council/Accredited Certifier prior to the issue of the Construction Certificate. Reason: To ensure stability of adjoining property, provide closer compliance with provisions of Council's DCP, provide adequate separation between dwellings and maintain overland flow paths. ANS04 Retain and protect during construction street trees located on the Rolfe Street and Alexander Street frontage. No excavation should occur within 3m of the trunk of these trees. Reason: Protection of existing street trees. 4Following joint conferencing by the parties' arborists, it was agreed that the street tree in Rolfe Street, a Eucalyptus robusta could be removed and replaced with two trees of several council's nominated species. The parties agree to the protection of the street trees in Alexander Street. As a result, condition ANS04 is no longer contested and a replacement condition has been agreed (see [46]). 5The history of the application and the actions of the council are noted in the council's Statement of facts and Contentions. The development application was approved, subject to conditions, by the Manly Independent Assessment Panel (MIAP) at its meeting on 15 September 2011. The site and its locality 6The site is currently a vacant lot with boundaries to both Alexander and Rolfe Streets. The frontage of the property is Alexander Street with rear access via Rolfe Street. 7The site adjoins 30 Alexander Street, listed in the Manly Local Environmental Plan 1988 (MLEP) as a local heritage item. This property has received recent development approval for additions and alterations to the rear of the dwelling. The street trees in Alexander Street are also listed as heritage items in MLEP. 8The property to the east (28 Alexander Street) is another vacant lot on which approval has been granted for two semi-detached two-storey dwellings with pools and carports very similar in style to the development subject to this appeal. 9Alexander Street is characterised by semi-detached and single dwellings, some single and some two-storey, on lots of either 6m or 12m wide, with similar front setbacks and side setbacks of about 1m. Front gardens are generally well landscaped. Rolfe Street operates essentially as rear lane access for dwelling in Alexander Street to the south and Golf parade to the north. Rolfe Street is characterised by double, full width garages or carports, and wide grassy nature strips with some trees. The proposal 10The proposal is for two semi-detached two-storey dwellings, the dwellings being a mirror image of each other. The dwellings comprise two pavilions joined by a relatively narrow gallery and a central courtyard. The pavilion facing Alexander Street is setback in line with adjoining dwellings (about 4m) and a side setback (one side only) of approximately 900mm. The second or rear pavilion is set back approximately 18m from the street frontage and approximately 17.5m from the rear boundary when measured to the ground floor wall adjoining the side boundaries. The ground floor walls of the second pavilion containing the kitchen and dining areas extend the full width of the block and a length of approximately 8.85m (19.23% of the side boundary). It is this element of the proposal most contended by the council. 11The upper level of the rear pavilion is set back approximately 900mm off the side boundary. A skylight in the ground level portion of the roof between the side boundary and the first floor transmits light to the kitchen bench below. 12The proposal also includes a basement level for a plant room and storage beneath the rear pavilions. The basement extends to the boundary for the full width of the lot with a length of about 11m. Contentions 13The council contends that the proposed nil setback off the side boundaries of the rear pavilions does not comply with the relevant controls in the Manly Development Control Plan for Residential Zone 2007, is out of keeping with the character of the area, adds to the bulk of the building, is one of a number of other non-compliances with the MDCP, and fails to provide adequate separation between adjoining properties. The assessment framework 14The site is zoned Zone No 2 Residential Zone in the Manly Local Environmental Plan 1988 (MLEP). The relevant zone objectives are: (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 development and renovations, Clause 10(3) states that consent cannot be granted to development unless that development is consistent with the objectives of the zone. Clause 4(a)(viii) states that one of the strategies of the MLEP is (in part) to encourage revitalisation and redevelopment of residential areas while ensuring that building form does not degrade the amenity of surrounding residences or the aesthetic quality of the municipality. Clause 19 considers development in the vicinity of a heritage item. 15The Manly Development Control Plan for the Residential Zone 2007 - Amendment 1 (MDCP), provides specific controls. The following clauses and controls in Part 2 Primary Considerations and Actions are relevant: 2.5 Excavation and Earthworks 2.5.1Objectives (a) Limiting excavation,.... (b) Discouraging the alteration of the natural flow of ground and surface water 2.5.2 Controls (d) Earthworks shall be limited to that part of the site required to accommodate the building and its immediate curtilage; (e) Natural (undisturbed) ground level shall be maintained within 900mm of side and rear boundaries. 2.8 Heritage Items.... 2.8.1 Objectives (d) To ensure that development in the vicinity of heritage items,..recognises and protects the significance of those items... 16The preamble to Part 3 Development Controls (including Assessment Considerations) is raised by both parties. The following statements are considered relevant: * The planning legislation requires each application to be treated on its merits. * Previous approvals do not create a precedent for an application of a similar form of development. * Council is required to apply the controls in a consistent manner while balancing the interests of the applicant with those of the community as a whole. * It is therefore expected that development proposals will by and large comply with the numeric controls. Any departures will not only need to satisfy the DCP objectives but it needs to be demonstrated...that a more desirable environmental outcome is achieved. 17The site is located in density sub-zone 3. The maximum density is one dwelling per minimum 250m 2 allotment size. The maximum floor space ratio for the sub-zone is 0.60:1. The relevant FSR objectives are to assist in controlling the bulk of buildings; to ensure the scale of the development does not obscure important landscape features and is consistent with the existing and desired future character of the area. The minimum open space is 55% of the site area with 35% of the open space area to be soft landscaping. 18As the key contention relates to side setbacks, the relevant objectives and controls are clauses 3.6.1, 3.6.4 and 3.6.5 of MDCP. 3.6. The objectives for setbacks are: (a)To maintain and enhance the existing streetscape; (b)To provide privacy; (c)To provide equitable access to light and sunshine; (d)To promote flexibility in the siting of buildings; (e)To facilitate view sharing; (f)To accommodate planting, including native vegetation and endemic trees. 3.6.4 Side setbacks shall provide sufficient access to the side of properties to allow for property maintenance, planting of vegetation and sufficient separation from neighbouring properties. (g)In all residential sub-zones, the setback between any part of a building and the side boundary must not be less than 1/3 the height of the adjacent external wall of the proposed building; (h)Windows facing a boundary are to be setback a minimum of 900mm from that boundary; (i)Windows of living and dining areas in new dwellings are to be setback a minimum of 3m from side boundaries. 3.6.5 The following clauses do not apply to residential density sub-zones 1 and 2, but apply to all other residential density sub-zones. (b) Walls without windows may be constructed to one side boundary only and in accordance with Table 4 [maximum wall height 3m and wall length as a % of boundary length 35m], providing the objectives of this part can be met and the applicant can demonstrate no disadvantage to the adjacent allotment through increased overshadowing, or loss of view and no impediment to property maintenance. The hearing and evidence 19The hearing commenced as a s 34AA conciliation conference under the Land and Environment Court Act 1979. It was agreed between the parties that evidence from objectors be heard on site rather than returning to Court should the conciliation conference be terminated, as it eventually was. 20Two owners of nearby residences gave oral evidence in support of their written submissions. Essentially the concerns go to non-compliance with the controls on side setbacks and landscaping and the undesirable precedent this may set. Concerns were raised over the future impacts on the character of the street should this set a precedent. The owner of the adjoining heritage property also voiced concerns over potential impacts on amenity. 21The site inspection included a walk along Alexander and Rolfe Streets to observe the character of the streetscapes and typical setbacks. A property in Golf Street was inspected, as it was representative of the style of the proposed dwellings at 28A Alexander Street. The Golf Street property has a nil side setback on the front pavilion. Planning evidence 22Mr Ross Fleming gave planning evidence for the applicant and Ms R Shankar for the council. The planners prepare a joint report. 23Ms Shankar is a Senior Planner for manly Council and prepared the report for the Manly Independent Assessment Panel (MIAP). The report notes a number of non-compliances with controls for FSR, side setbacks, total open space and excavation. Notwithstanding the non-compliance, the report recommends approval subject to conditions imposed to reduce the areas of non-compliance. 24In Ms Shankar's opinion, the key issue is the nil side setback. She considers that this is not in character with the existing dwellings, including semi-detached dwellings, in Alexander Street. She contends that side setbacks enable views through to the rear of properties and provide better internal amenity for residents in that the setback enables landscaping and or flexibility of movement within the space. A complying side setback would provide sufficient separation between dwellings to reduce and adverse impacts on amenity and would go someway to reducing the extent of non-compliance with the FSR and open space controls. 25In Ms Shankar's opinion, 28 Alexander Street achieved an appropriate side setback and the same compliance should be achievable at 28A. 26Mr Fleming is of the opinion that the portion of the dwellings where there is a nil setback will have little impact on the streetscape because of the distance from the street and the proposed landscaping. He considers there are no issues with privacy, particularly in regards to 30 Alexander Street because of the approved nil setback on that property's eastern boundary. In his view, there is no functional requirement for side access given the two street frontages and the lack of sunlight to the area would make landscaping difficult. 27Mr Fleming considers that overall, there are no impacts on views or sunlight due to the nil side setback and in his opinion, the deviation from the controls is reasonable in the circumstances of the functional and effective use of the space. He considers the proposal meets the relevant objectives of the MDCP. Submissions 28Mr McKee for the applicant contends that the use of the words 'by and large' in the preamble of Part 3 of the MDCP suggests a flexible approach whilst ensuring positive outcomes. In regards to the nil setback he considers that, in the context of semi-detached dwellings, cl 3.6.5 (d) could be interpreted to permit the construction to the boundary of the outer wall as the other boundary is formed by the dwelling itself (that is, the common wall doesn't count). Therefore, he contends that the proposed nil setback of a wall representing about 19.2% of the length of the boundary complies with the controls. 29In regards to the privacy and acoustic impacts on 30 Alexander Street, Mr McKee contends that only 4m of the proposed wall extends beyond the approved boundary wall of no. 30 and a nil setback with a masonry wall provides better acoustic and visual privacy than a set back side wall with a window. 30With respect to the impact on the streetscape, Mr McKee agrees with Mr Fleming that the distance from the street is considerable and it is only the ground floor portion that has a nil setback. He also submits that the front pavilions of the proposed dwellings and the associated landscaping will be read as the main elements contributing to the streetscape. 31In conclusion, Mr McKee contends that the objectives of the MLEP encourage flexibility of design in new developments and that this proposal delivers good design and good internal amenity without any unreasonable impacts on the amenity of neighbours or impacts on the streetscape. Overall, he contends the proposal is a better outcome. 32Ms Hewitt for council contends that the extent of the non-compliance with a number of controls cannot be said to enhance the streetscape. She submits that the prevailing character of Alexander Street is of single and detached dwellings with side setbacks that enable views through to gardens at the rear. The conditions the council seeks will enable landscaping and connectivity and will satisfy the controls in regards to excavation. In her submissions, the fact that the applicant wants a bigger kitchen does not outweigh non-compliance with the controls. 33With regards to the applicability of cl 3.6.5(d) of MDCP, the council's view is that the common wall is the one allowable nil side setback. Ms Hewitt contends that the council has been flexible in its consideration of the proposal in allowing variations to the numerical controls in the DCP, however, that flexibility is limited and the conditions imposed are reasonable in the circumstances. Findings 34The finding in Zhang v Canterbury City Council [2001] NSWCA 167 at [75] states that a DCP must be a 'focal point' of the decision making process. In this regard, the preamble to Part 3 of the MDCP discusses the assessment considerations with respect to the development controls. Relevantly, each application must be treated on its merits; previous approvals do not create a precedent; council must apply the controls consistently but in a balanced manner; and development proposals will by and large comply with the numeric controls. Any departures will need to satisfy the DCP objectives and demonstrate a more desirable environmental outcome is achieved. 35It is clear from the walk along Alexander Street that most if not all properties have a side setback on at least one boundary however, it is also noted that front fences and landscaping limit views to the rear of properties. The character of Rolfe Street is one dominated by double garages and carports, most built from boundary to boundary. 36It is common ground that the development proposal does not comply with all of the numerical controls in the MDCP. I do not agree with Mr McKee's position that the common wall of Lots A and B is, in effect, not a wall for the purpose of cl 3.6.5. It would seem to me that a wall is a wall is a wall, however I agree that the DCP does not make any specific reference to semi-detached dwellings. Therefore the proposal must be assessed on its merits and for satisfaction of the objectives of the MDCP 37The relevant objectives for side setbacks relate to streetscape, privacy, equitable access to light and sunshine, flexibility of siting buildings, view sharing, and planting. 38The facts of the matter are that the ground level of the rear pavilion of each semi-attached dwelling is proposed to extend to the side boundary. The side boundaries for the length of the site will be smooth-rendered and painted masonry walls 1.8m high. That part of the wall has the dimensions of about 8.8m long by about 3m high. Therefore there will be a projection above the boundary fence of about 1.2m for about 8.8 m. The nil setback section is approximately 18.5m from the Alexander Street front boundary and about 17. 5m from the Rolfe Street rear boundary. 39No. 30 Alexander Street has development consent for an extension that includes a nil setback that, in part, adjoins the proposed nil setback portion of Lot A. The wall on No. 30 is approximately 7m long. The proposed nil setback on Lot A overlaps by about 4m. Approximately 4m would extend to the south and face the window of a study and existing 3 rd bedroom of No. 30 that are setback about 3m off the boundary fence. On the western boundary adjoining No 28, the nil setback section would be opposite what is assumed to be the kitchen of the yet to be constructed dwelling. The plans before the Court are not clear as to whether the western side setback of No 28 is to be landscaped or paved. 40The council's position is, in part, that the nil setback is out of character with the streetscape and will prevent views from the street to the rear of the property. In this regard I accept the applicant's arguments that the non-complying section is a considerable distance from the Alexander Street frontage and will in part be screened by landscaping. In my opinion it will have little impact on the streetscape including the perception of bulk when viewed from the street. The side setbacks of many of the properties along Alexander Street are obscured by landscaping, side gates and by front fences. The front fence of Lots A and B is required to be a maximum height of 1.5m with 30% transparency above 1m. 41Another element of the council's position is that a side setback of at least 1m will enable landscaping and external access and therefore provide better internal amenity and soften the impact of the building when viewed from the street. In this regard, I consider 1m to be a limited space for both landscaping and a pathway. Any low-growing vegetation will not provide screening, and tall-growing plants, with the exception of perhaps bamboo, will limit access. The property is accessible from both streets. I agree with the applicant's planner that there is little material or practical benefit to be derived from requiring side access to that portion of the site. Access for maintenance of the external wall should not be a determining factor in this matter. 42In regards to the relevant zone objectives in the MLEP at [14], I find that the proposal does not degrade the amenity of surrounding residents or the existing quality of the environment in any unreasonable way. While I accept that there will be some impact of the western section on the outlook of the third bedroom at No 30, it is a bedroom and not a living room and the window is setback some 3m from the boundary. The eastern fence line of No 30 is currently screened by bamboo that would reduce the visual impact. Shading of that window has not been raised as a contention. As there are no windows in the proposed nil setback walls, privacy and acoustic impacts don't arise. While I accept that the council has been flexible in its application of the controls, the design of the dwelling is a creative use of the available space. 43Therefore on balance, I find that the proposal satisfies the relevant objectives in cl 3.6.1 of MDCP in regards to side setbacks. 44Two other elements of condition ANS 01 to be addressed concern the extent of excavation for the basement plant room and the potential impacts on the stability of the adjoining property at No 30 and the impact on overland flows. The advice at the hearing was that the proposed method of construction is, as I understand it, to form piers by a drilling and injecting technique that avoids the use of a pile driver and is used in sandy soils. Therefore, I am satisfied that this is no longer an issue providing compliance with the relevant conditions of consent to be satisfied prior to the issue of a construction certificate. In regards to maintaining overland flow, I note Mr Fleming's response in the joint planning report that council's engineers had no objection to the drainage plan submitted with the DA as well as the fact that the underlying soil is sand to at least a depth of 3.25m (depth to which it was tested). In the absence of any compelling evidence to indicate that excavation of the basement to the extent proposed will create a drainage problem, I am not satisfied that the limited extent of non-compliance with the excavation controls warrants refusal of the appeal. Conclusions and Orders 45On balance, and on the merits of the particular circumstances of this matter, I find that the proposal satisfies the zone objectives of the MLEP and the relevant objectives of the MDCP. In that regard, condition ANS 01 is to be deleted from the consent. 46The parties agreed to the rewording of ANS04 as follows: Retain and protect during construction street trees located on the Alexander Street frontage. No excavation should occur 3m of the trunk of these trees. Replacement of the existing Eucalyptus robusta on the Rolfe Street frontage with two 100 litre advanced plantings of either Brushbox ( Lophostemon confertus ), Water Gum ( Tristaniopsis laurina ) or Bull Bay Magnolia ( Magnolia grandiflora ) or similar suitable plantings of a height of 3m at planting. 47Therefore the Orders of the Court are: (1)Appeal 10711 of 2011 is upheld. (2)Development Application No DA 159/11 for the construction of two x two storey semi-detached dwellings with double garages, swimming pools and Torrens Title subdivision at Lot 1 DP 1147301 28A Alexander Street Manly is determined by approval subject to the conditions of consent specified in the determination by Manly Council on 15 September 2011 with the exception of condition ANS 01 which is to be deleted. ANS04 is to be amended as agreed by the parties. (3)Exhibits A and 4 are returned; all others are retained. ______________________ J Fakes Commissioner of the Court 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: 17 November 2011