Land and Environment Court New South Wales Medium Neutral Citation: Fang v Manly Council [2011] NSWLEC 1335 Hearing dates: 19-20 October 2011 Decision date: 23 November 2011 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal dismissed Catchwords: DEVELOPMENT APPLICATION: alterations and additions to a dwelling; height, FSR, bulk and scale; impacts on views and privacy; tree retention Legislation Cited: Environmental Planning & Assessment Act 1979 Land and Environment Court Act 1979 Manly Local Environmental Plan 1988 Cases Cited: Tenacity Consulting v Warringah [2004] NSWLEC 140 Category: Principal judgment Parties: Xiu Yan Fang (Applicant) Manly Council (Respondent) Representation: Applicant: Ms Saw (Counsel) Respondent: Ms Schofield (Solicitor) Respondent: Pikes Lawyers File Number(s): 10744 of 2011 Judgment 1COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning & Assessment Act 1979 (the Act) against the refusal by Manly Council (the council) of Development Application No 11/10 for alterations and additions to an existing residential dwelling at 44 Alma Street Clontarf (the site). 2The appeal commenced as a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (the Court Act). As no agreement could be reached between the parties, the conciliation was terminated in accordance with s 34(4) of the Court Act and the matter proceeded to a hearing. However, during the conciliation process, minor adjustments to the proposal were discussed and leave was granted for the applicant to rely on amended plans. The respondent agreed that the amendments were minor and their position was not prejudiced. The site and its locality 3The site is legally described as Lot 33 in DP 2610 and is located on the northern side of Alma Street at the end of a cul-de-sac. The site is rectangular in shape with an area of 518.5m 2 . The site slopes down from north to south and down from east to west. 4The site contains an existing 2 storey brick and tile dwelling with an attached double garage located between the dwelling and the street frontage. A mature Angophora costata (Sydney red Gum) is growing in a narrow garden bed on the north-western corner of the driveway. It overhangs the existing front verandah. 5The existing ground floor/ basement level is accessible from the driveway. This level contains one habitable room and a laundry on the western side. The laundry is slightly below ground level at the northern end. The eastern side of the building is sub-floor space. Internal stairs lead from that level up to the next level. The upper level comprises the main living area, kitchen, bedrooms etc. The southern or street frontage elevation contains a balcony and the stairs to the main entrance. The front of the dwelling presents as 2 storeys. The rear or northern elevation presents as predominantly a single storey with a deck approximately one metre above ground level leading from the living area. The rear yard contains an in-ground pool. The tiled roof is pitched. 6The dwelling to the east, No 42 reads as a 3-storey dwelling although the ground level comprises an entrance and non-habitable garage space. The dwelling to the west presents generally as a 2-storey dwelling with a part subterranean garage. The street is characterised by single and 2-storey dwellings although many of the dwellings on the elevated (northern side) of the street have two storeys above garages and therefore appear as virtually three storeys. Setbacks vary but most properties are set well back from the street with landscaped gardens. Most dwellings have pitched roofs although there are some flat roof elements. 7The main view shed is to the west and southwest across Middle Harbour to the Spit and Mosman. The proposal and relevant background 8The proposed development includes the following: * Partial demolition of the existing dwelling. * Retention of the 'basement' habitable room and laundry with an extension to the north for a new pool plant room with additional sub-floor space. * An extension to the south of the eastern side of the first (described on the plans as 'ground' floor) floor with part of a bedroom and an associated terrace over part of the garage roof. The roof above the bedroom and terrace is to have a hipped tiled roof. * An extension to the north of the living room and family room with a semi-circular northern full-length glass wall and changes to the internal arrangement and sizes of rooms. A concrete roofed cabana extends from the family room on the eastern side. * A new storey (described in the plans as the 'first' floor) above the existing living room comprising another four bedrooms, robes and bathrooms. The rear master bedroom has a semi-circular full-length glass wall above the semi-circular wall below as well as a paved terrace with a curved wall above the family room below and partly above the flat concrete roof of the proposed cabana. This new storey has a flat concrete roof with a low parapet as well as a large skylight and a chimney. * Landscape plans show an extension of the paved area around the existing pool. 9Prior to the s 34AA conciliation conference, the original plans included the removal of the Angophora to enable the construction of the proposed curved terrace on the middle floor of the dwelling. After discussions with the arborists and the likely extent of pruning, the plans were amended to remove the front terrace and set the building back to the line of the existing lower level faade. 10The original development application was lodged with council on 18 January 2010 and internal referrals commenced shortly afterwards. After notification and submissions, amended plans were submitted on 19 October 2010. On 5 May 2011, council's Development Assessment Unit recommended approval and deferred commencement subject to a significant number of alterations and deletions detailed in proposed conditions. 11The Manly Independent Assessment Panel subsequently determined the application by refusal on 19 May 2011. The contentions 12The council contends that the proposal should be refused on the following grounds: * Unreasonable impact on views from No 42 Alma Street; * Excessive bulk and detrimental impact on the character of the area, and loss of privacy for adjoining dwellings; * The design provides a poor integration with the architectural character of the existing house and relates poorly to the streetscape; * Non-compliance with controls for Floor Space Ratio, building height, number of storeys; open space and landscaping, and side setbacks; * Loss of the Angophora; and * Non-compliance with the relevant zone objectives. The assessment framework 13The site is zoned Zone No 2 Residential Zone in the Manly Local Environmental Plan 1988 (MLEP). Clause 10(3) states: (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 development is consistent with the objectives of the zone within which the development is proposed to be carried out. 14The following zone objectives are considered relevant: (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, (e) to improve the quality of residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations, (h) to encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment. 15It is noted that the site is located within the Foreshore Scenic Protection Area however no contentions are raised regarding impacts on the amenity of that area. 16The MLEP contains few controls relevant to the proposal. The controls are contained in the Manly Development Control Plan for the Residential Zone 2007 - Amendment 1 (MDCP). The applicable objectives are found in cl 1.2: (c) To encourage retention and adaptation of existing dwellings; (d) To increase the availability and variety of dwellings ...without having adverse effects on the character, amenity and natural environment of the residential areas; (f) To protect the amenity of existing and future residents; (h) To minimise the impact of new development, including alterations and additions, on privacy, views, solar access and general amenity of adjoining and nearby residences; (i) To provide for view sharing for both existing and proposed development; (j) To maximise the provision of open space for all residential development; (q) To ensure compliance with the objective of each standard. 17In regards to first floor additions, cl 2.4.18 states: 2.4.18 First floor additions shall compliment the architectural style of the ground floor and where possible retain the existing roof form. Notwithstanding setback provisions, the addition may follow the existing ground floor wall setbacks providing other adjoining properties are not adversely impacted by overshadowing, view loss or privacy issues. The dwelling shall retain the existing scale and character of the street and it may be preferable that the addition be confined to the rear of the premises or be contained within the roof structure. 18Both parties raised the preamble to Part 3 Development Controls (including Assessment Considerations). 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. 19The view objectives and controls are in cl 4.3.1 and 4.3.2 and go to maintaining access to views, minimising view loss as well as view sharing while recognising that development may take place in accordance with other provisions of the MDCP. The planning principle in Tenacity Consulting v Warringah [2004] NSWLEC 140 is the basis of the assessment of view loss. 20The site is located in Residential Density Sub-zone 7, which permits one dwelling per lot. The site is 518.5m 2 , considerably smaller than the smallest nominated lot size in the sub-zone of 750m 2 . The areas of more than minor non-compliance with the controls for the sub-zone are: Floor space ratio (FSR), wall height western side, eastern side setback, western side setback, total open space, and soft open space. 21Clause 3.4.2 - controls for FSR enables a consideration of a variation to the nominated FSR on sites less than the minimum site area for the sub-zone provided the applicant demonstrates the objectives in the DCP can be achieved. The relevant objectives for FSR are to assist in controlling the bulk of buildings, enuring consistency with the character of the area and minimising disruption to views and privacy. 22Clause 3.5.4 - Number of Storeys states: 3.5.4 Other than within density sub-zones 1 and 2, and notwithstanding the provisions of the numerical height controls, buildings shall not exceed two storeys unless specific physical site constraints warrant voiding this requirement. 23Clause 3.5.5 - Roof Height 3.5.5 Roof structures shall not extend 3m above the actual (not the calculated maximum) external wall height. 3.5.6 Parapets may extend 600mm above the proposed external wall height where it is considered by the Council to be appropriate to the design of the development... The hearing and the evidence 24The owners of the adjoining properties made oral submissions. The owner of No 42, the property upslope and to the east of the site voiced concerns over the general issues of non-compliance with the controls, the loss of views from the upper level of his dwelling, and loss of privacy from the proposed front and rear terraces. The views from that property were inspected. The main views to the west and northwest are obtained from an upstairs family room/ study, the top of the stairs, from the upstairs fourth bedroom and from the ground floor living area. The Angophora on the site and other trees in a nearby reserve filter and limit views to the west-southwest. 25The owners of No 46 to the west of the site voiced concerns over the loss of privacy from the proposed front and rear terraces to their front courtyard, front bedroom windows and to the backyard and pool. 26Mr Nash gave planning evidence for the applicant, and Mr Layman for the council. The main areas of discussion were impact on views, bulk, architectural character, FSR, building and wall height, number of storeys, open space and landscaping, setbacks, and loss of privacy. 27The planners disagreed on the proposal's compliance with the MDCP controls for FSR, wall height and side setbacks and the impacts on adjoining properties and the street character. This disagreement relates to different interpretations of the controls and opinions as to where ground level should be determined. Architectural character 28Mr Layman considers the street and the locality is characterised by pitched roof forms; dwellings are typically two storeys over elevated footings or a non-habitable garage. In his opinion, the combination of the flat roof and retained portions of pitched roof appears unintegrated and unrelated to the original dwelling and the streetscape. 29Mr Nash is of the opinion that there are a diversity of styles, bulk, setbacks, colours and materials in the street and the proposed alterations are consistent with this diversity. Floor Space Ratio 30After discussions as to what should or should not be included in the FSR calculations, a figure of 0.53:1 was agreed. The control is 0.4:1 for residential sub-zone 7. Mr Nash considers the variation enabled by cl 3.4.2 should apply as site is substantially smaller than the minimum lot size in that sub-zone. In his interpretation of that clause, the site could have up to 300m 2 gross floor area (GFA) which would lead to a maximum permissible FSR of 0.58:1. By his calculations, the GFA is 289.59m 2 , less than the possible 300m 2 . Mr Layman calculated a GFA of 307m 2 . The planners disagreed on whether the proposal meets the objectives for FSR and therefore warrants the variation. Building height and number of storeys 31The planners agree that the proposal is for a part two part three-storey dwelling. Mr Nash considers that a variation in the two-storey control is warranted due to the cross-fall of the site, which he says is a specific physical constraint. In his view, the only area of non-compliance is the existing ground level rumpus room and laundry with an area of about 43m 2 . Mr Layman contends that the variation anticipated by cl 3.5.4 is for far steeper sites and or those with physical features such as rock shelves and cliffs, and as a consequence, does not think the variation should apply to the site. 32In his statement of evidence Mr Layman states the visible part of the eastern wall to be compliant if the ground level shown in the plan of the eastern elevation is used. However, Mr Layman considers that technically, the existing natural ground level should be used, which in this case appears to be 1.5m below that level. With respect to the western wall, Mr Layman considers the maximum wall height of 7.1m using a gradient of 1 in 10. Mr Nash calculates a gradient of 1 in 6 enabling a maximum wall height of 7.5m at the lowest point of the site. Allowing an extra 600mm for a parapet, as provided in cl 3.5.6, enables a maximum height of 8.1m at the front (and 7.5m at the rear). The proposed western wall, including the parapet varies from 8.45m at the rear to 9.05m at the lowest point. It is agreed by both planners that the western wall is non-compliant, however as outlined, the degree of non-compliance varies between the experts. 33Mr Nash supports the non-compliance on the basis that the proposal does not contribute to adverse over-shadowing. He also considers the proposed flat roof to be a better option than a pitched roof which can be 3.0m above a complying wall height. By the planners' calculations, this could be 1.7-2.5m above the proposed parapet. Setbacks 34Mr Nash contends that the proposal uses the existing footprint of the building to establish the side setbacks of the ground floor; the upper floor is setback 1500 mm on the eastern side and 750mm on the western side. He accepts the western side setback is non-compliant. However, he considers the side setbacks do not contribute to any adverse impacts on the neighbouring properties, also that the side setbacks satisfy the relevant controls in the DCP. Given the height of the proposed walls, Mr Layman considers both side setbacks to be non-compliant with the western side being the most non-compliant. In his opinion, these non-compliances exacerbate the visual bulk of the building. The front setback issues were largely dealt with by the amendments. Mr Layman considers the existing garage with its minimal setback off the street to be uncharacteristic of the street. Bulk 35The issue of bulk relates to the planners' differing opinions concerning FSR, wall height, scale number of stories etc. Mr Nash considers No 42 to be the largest and bulkiest dwelling in the immediate vicinity and the proposed additions to the site will be subservient to that dwelling. Mr Layman considers relying on the scale of No 42 to be wrong as that development clearly predates the current controls. He considers many developments in the street would now be considered to not represent the desired future character implicit in the MDCP. Views and privacy 36It was agreed that the most significant view impact would be from the upper level of No 42. Mr Layman contends that, using the Tenacity levels of impact, the loss would be 'devastating' while Mr Nash contends it would be severe. In Mr Nash's opinion, the main impact will be from the compliant two-storey element on the eastern side, whereas Mr Layman considers the main impact will be from the non-compliant western elevation of the proposed dwelling. Mr Nash considers a compliant pitched roof would have a greater impact on the view than the proposed flat roof. It was agreed that distant views of Middle Harbour from Seaforth to Castlecrag would remain visible however views of Mosman to the Spit Bridge would be obscured. 37With respect to privacy, Mr Nash considers W20 could be treated to have less impact on the windows of No 46 but otherwise, the extent of overlooking remains much the same and there will be no adverse impacts on 42 or 46. Mr Layman considers that the proposed rear balcony would overlook the rear private open space of 42 and 46. He agrees some limited mitigation of potential overlooking from some windows could be achieved by a number of possible treatments. Open space, landscaping and tree protection 38It was agreed that the allowed amendments to the front of the proposed additions, would enable the retention of the Angophora. The arborists subsequently identified and marked the branches that could be removed without any adverse impacts of the health and visual integrity of the tree. Similarly, detailed tree protection measures and conditions were prepared. 39In regards to landscaping and open space, Mr Nash contends that the existing landscaping is about 50% of the site and will be retained. He considers the imposition of 60% is unreasonable in the circumstances. Mr Layman disagrees with Mr Nash's figures and considers there is no compliant area of open space, including soft open space. Findings 40There are very few points of agreement between the planners. The fact remains that notwithstanding the improvements made with respect to the proposed front terrace and setbacks shown in the amended plans that enable the retention of the Angophora, there are still a number of areas of non-compliance with the proposed development. Number of storeys, height, setbacks, FSR, bulk and scale 41The proposal is for alterations and additions to an existing dwelling built many decades before the current controls on a lot that is considerably smaller than the minimum lot size for the housing density sub-zone. It is agreed that the dwelling on No 42 would not comply with the current controls, however, Part 3 of the MDCP states that previous approvals do not create a precedent for an application for a similar form of development. 42I do not consider that the front and side setbacks should be determinative in this assessment and the extent of non-compliance with the side setbacks is not sufficient to warrant refusal although they do contribute to the perception of bulk and scale. By and large, I consider the setbacks to comply with the objectives for setbacks specified in cl 3.6.1 of MDCP. 43There is considerable non-compliance with the FSR. I am not convinced that Mr Nash's interpretation of the variation in FSR enabled by cl 3.4.2(b) is correct (see [30]). By his calculations, this would put the permissible FSR in the vicinity of that allowed in residential sub-zones 3 and 4, that is, much higher density areas where the minimum lot size is 250-300m 2 . The site, while smaller than average for its sub-zone, is much larger than the sub-zones with higher allowable FSRs. I am not convinced by his arguments that the constraints of the site, its topography and relatively small size are such that such non-compliance is reasonable although a small degree of non-compliance is probably reasonable. In my view, the proposal does not meet the FSR objectives a), c) and d) in cl 3.4.1 of MDCP and should be refused on this basis. 44In regards to the number of storeys and the height of the western elevation, the situation is awkward because of the cross-fall in both the east-west and north-south alignments. The eastern portion of the proposal reads as two storeys and is generally compliant with wall heights however, the western portion reads as three storeys from the street and is considerably non-compliant with wall height. Compliance with the number of storeys is made more difficult in this matter because of the configuration of the original dwelling. Had the garage been built under the house where the 'rumpus' room and laundry now sit, in itself, the addition of an upper storey is unlikely to have created problems. However, the area of the rumpus room/ laundry is quite small and of limited amenity. It is not unreasonable in the circumstances, for an additional storey to be incorporated into the existing dwelling however it appears to me that a more skilful design might achieve that outcome in a less intrusive manner and in a way that also meets the FSR objectives and reduces the overall bulk of the building. Architectural character , 45While there is inevitably some variation and diversity in the architectural style of dwellings in the vicinity, I agree with Mr Layman that the dominant roof form is a pitched roof. While the parapet roof enables a degree of view sharing, I agree that the combination of flat and pitched roof forms sits very uncomfortably in the streetscape; it is not one or the other. Clause 2.4.18 of the MDCP regarding first floor additions in part reads: First floor additions shall compliment the architectural style of the ground floor and where possible retain the existing roof form. This proposal does not achieve this. Mr Layman, in his statement of evidence, also considers the proposal to be a "pop top" - that is, a first floor addition with a 'skirt' of the existing roof around, or partially around, the perimeter of the addition. This is a design not favoured by council as stated in cl 2.4.19 of the MDCP. The proposal retains a 'skirt' of the exiting roof on the western elevation. While this enables an increase in the side setback, it accentuates the hybrid nature of the roof forms. 46The site poses a number of constraints including topography, the size of the lot and the presence of the Angophora. Clause 2.4.8 of the MDCP requires the design of a development to respond to the slope of the site in a way that minimises the impact of the development on amenity, with particular attention given to the lower side of the slope, so that height and bulk are minimised. The major areas of non-compliance are on the lower side of the slope. In my opinion, the design does not sympathetically respond to the site constraints, in particular the topography. 47Therefore in this regard, I consider the proposed design does not meet the necessary design considerations in cl 2.4 of the MDCP and should be refused on that basis. Views and privacy 48The views from No 42 were the subject of much discussion. In considering the principles of view sharing in Tenacity , and the four-step process of assessment articulated in that judgment, I make the following findings. From the upper storey, the affected views are water views, including the land water interface, of parts of Middle Harbour to the west of the Spit. The views to Mosman and that portion of Middle Harbour to the southwest, are partly obscured by the Angophora on the site and by the roof of the existing dwelling at No 44. From the ground floor living room, the view of Middle Harbour to the east of Mosman is filtered and obscured by the Angophora and other nearby vegetation. 49The second step to consider is the part of the property from where the views are obtained; the third step considers impact. The planning principle considers views across side boundaries to be more difficult to protect than views from front or rear boundaries; the impact on views from living areas is more significant then from service areas or bedrooms. The MDCP determines views are to be assessed from standing positions rather than seated positions. All of the views from No 42 are across side boundaries. The views described above are from standing positions. 50The ground floor is the formal living room. The residents of No 42 appreciate the tree and the filtered views they obtain. Their concerns go to any further encroachment at the front of the site that may impact on those views. In regards to the upper level, the best view is from a fourth bedroom. The other views from the upper level are from the top of the stairs and from a window of a study/ informal living area. The majority of the seating in that living area is away from the side window. The view from the top of the stairs is seen in passing. The proposal would have a severe but not devastating impact on those views with some distant water views still available. 51The final step is to assess the reasonableness of the proposal that is causing the impact. While the amended plans are an improvement, the retention of a roof over the proposed roof terrace at the front of the site would most likely obliterate the portion of Middle Harbour visible from that living room and therefore have a severe impact. The council proposed a condition to delete that element of the design, the applicant opposes this. In this regards, I consider the views from the ground level living room of No 42 could be maintained by a more skilful design of the front elevation of the proposed alterations to the site. With respect to the views from upstairs, I agree with Mr Nash, that a compliant development on the eastern side of the site would inevitably have an impact on the views from that level. I consider the impact on the views from the upper storey of No 42 should not in itself be a reason for refusing a development on No 44. However, while the flat roof of the proposed upper level achieves a reasonable degree of view sharing required to meet objectives h) and i) of cl 1.2 of MDCP, it presents other problems in terms of architectural style as discussed above. 52In regards to privacy, the amendments to the front of the site have reduced the likely impacts on the front of No 46 to a point where the proposal is not unreasonable in its impacts. However, I consider the upper rear terrace off the main bedroom is likely to have unacceptable impacts on the privacy of adjoining residents. Likewise the extent of full-length glazing and the projection of that room could have unacceptable impacts on privacy. Whilst it is possible to incorporate screening in a manner similar to that at the rear of No 38 Adelaide Street to the north of the site, this would have to be done in a way that does not add bulk to a building already bulky through its exceedence of the FSR. Again, in my view, the unacceptable impacts are a function of a design that has not adequately addressed the necessary issues. Open space, landscaping and tree protection 53The amendments to the front of the proposal have successfully dealt with the issue of the necessary retention of the Angophora and its protection during the construction process. This is clearly a key consideration in any future development on the site. 54In regards to the open space controls, I agree with Mr Nash that it is unreasonable to expect an increase in open space when the current development is non-compliant. However, I also agree with Mr Layman that more thought must be given to complying with the necessary minimum dimensions for open space. The proposal should not reduce the amount of open space currently available. Conclusions 55While Part 3 of MDCP states that development proposals are expected, by and large, to comply with the numeric controls and therefore anticipates some flexibility, it also states that departures must satisfy the objectives of the DCP and achieve a more desirable environmental outcome. 56The development proposal retains an existing dwelling, something encouraged by the MDCP, however, the design fails to meet the objectives of a number of key controls, in particular FSR. The non-compliance with the FSR controls and objectives are such that it compromises the amount of open space, privacy of adjoining neighbours, and impacts on views from the ground floor living room of No 42. Whilst it is accepted that some re-development of the site is entirely reasonable given the modest size of the existing dwelling, the bulk and form of the proposed additions, in particular the hybrid nature of the roof, are not compatible with the character of the surrounding residential area. 57Therefore I find on balance that the proposal does not satisfy the zone objectives in clauses 10(3) (d) and (e) of MLEP in that the building form does not ensure that the amenity of surrounding residents will not be degraded nor does it improve the quality of the residential area in which it is located. Similarly, I do not consider it satisfies a number of objectives of the MDCP including (d). (f), (h), and (q). 58As a consequence of the forgoing, the Orders of the Court are: (1)Appeal 10744 of 2011 is dismissed. (2)Development Application No 11/10 for alterations and additions to an existing residential dwelling at Lot 33 DP2610, 44 Alma Street Clontarf is determined by refusal. (3)The exhibits are returned except exhibits 1, 5, C and E. _____________________ 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: 23 November 2011