Land and Environment Court New South Wales Medium Neutral Citation: Manenti v Canada Bay City Council [2011] NSWLEC 1351 Hearing dates: 2 December 2011 Decision date: 05 December 2011 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is upheld. 2. The development application for alterations and additions to an existing dwelling at 18 Rosemeadow Drive, Cabarita, is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 1, 3 and A may be returned. Catchwords: APPEAL - development application. Impact on streetscape and symmetry of existing townhouses. Precedent and public interest. Legislation Cited: Environmental Planning and Assessment Act 1979 Canada Bay Local Environmental Plan 1995 Category: Principal judgment Parties: Peter and Antoinietta Manenti (Applicant) Canada Bay City Council (Respondent) Representation: Counsel Mr M Staunton, barrister (Applicant) Mr A Hudson, solicitor (Respondent) Solicitors Joseph P Saad & Co Solicitors (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10887 of 2011 Judgment 1This is an appeal against the refusal by Canada Bay City Council (council) of a development application under s 97 the Environmental Planning and Assessment Act 1979 (EPA Act) for alterations and additions to an existing dwelling at 18 Rosemeadow Drive, Cabarita. The site and its locality 2The site is a Torrens title allotment that is part of a housing estate known as Cape Cabarita. It is a battle-axe shaped allotment with an area of 375 sq m and a frontage of 2.85 m to Rosemeadow Drive. The site is developed with a two storey attached dwelling that is at the end of a group of five dwellings (18-22 Rosemeadow Drive). The northeastern boundary of the site adjoins an access way, which provides vehicle access to the garage of 17 and 18 Rosemeadow Drive and pedestrian access to the foreshore reserve and Parramatta River. There is a similar group of attached dwellings on the other side of the access way (13-17 Rosemeadow Drive). 3Cape Cabarita is a master planned housing estate that includes two storey dwellings and multi unit apartments with shared communal facilities and open space. Planning framework 4The site is zoned R3 Medium Density Residential under Canada Bay Local Environmental Plan 2008 (the LEP). Dwelling houses are permissible within this zone. LEP 2008 includes controls for height (cl 4.3), floor space ratio (cl 4.4) and foreshore building line (cl 6.5). Clause 1.9A suspends covenants, agreements and instruments applying to land under LEP 2008. 5Cape Cabarita (Formally known as the Wellcome Site) Development Control Plan (the DCP) applies to the Cape Cabarita Housing Estate. This includes controls and performance criteria for Design and siting (s 2.1) and Building material and finishes (s 2.2). Background and the proposal 6On 14 October 1997, council granted a staged development consent under s 91AB of the EPA Act to a Masterplan for the integrated residential re-development of Cape Cabarita and the erection of buildings A-F in Stage 1 of the Masterplan, including the site. 7A detailed history of the current development application is in the Statement of Facts and Contentions. The development application was lodged on 5 July 2010 and seeks approval to construct an additional first floor bedroom over the existing double garage on the site. The application was assessed by council planners and a subsequent s 82A Review was assessed by an independent planning consultant. These planners recommended approval of the development application. Council resolved to grant consent to the application on 19 April 2011 but following a recision motion it refused the application on 3 May 2011. The s 82A Review was refused by council on 18 October 2011. Evidence 8The Court visited the site and heard evidence from people opposed to the development and those in favour of the development. Mr M Broadly, an architect who worked on the design of Cape Cabarita spoke on behalf of a number of residents. He also provided written objections to the proposal which state: In determining our conclusions we had regard to the following principles which were an integral part of the urban design principles at the time Cape Cabarita was designed.; 1. The design of the townhouses block comprising 18-22 is mirrored with the adjacent townhouses block 13-17, such that it creates a symmetrical form in the streetscape and around the main point of access to the waterfront; 2. The roof lantern of the adjacent garage was designed as a focal point in the streetscape. Whilst we appreciate the careful attention which has been given in the proposal to continuing architectural character and built form of Cape Cabarita, it is out opinion, that the proposal is unsatisfactory in that it: - Will detract from the symmetry of the composition with the adjacent townhouse block; - Compromises the design of the roof lantern focal point over the adjacent garage; - Creates a narrow awkward junction with the Rosemeadow Drive faade of the adjacent townhouse. 9The main concerns of the residents who objected the proposal are that Cape Cabarita is a Masterplanned and completed community and as such no further development should be permitted other than that which is supported by the Community Association and the Community Executive. The current proposal is not supported by the community as it conflicts with the design intent of Cape Cabarita for symmetry, focal points and continuity. The individual needs of the owners should not prevail over the wishes of the community to maintain the Masterplan. In particular, the residents considered that building over the garage would adversely impact on the streetscape. 10The residents who supported the application considered that it is the right of owners of Torrens Title properties to submit an application which should be assessed against its merits. The proposal does not adversely impact on adjoining owners or on the streetscape. 11Mr T Tuxworth provided expert planning evidence on behalf of the applicant. Council did not provide any expert evidence prepared in accordance with the Practice Direction nor did it seek to cross-examine Mr Tuxworth. 12Mr Hudson, for the council, accepted that the proposal complied the requirement of the LEP and DCP and the Architectural Guidelines in the Community Management Statement. Mr Hudson submits that the Architectural Guidelines are not aimed at new work and that this is not envisaged by the Community Management Statement or the approved Masterplan. He submits that the application should be refused on the basis of the issues raised by Mr Broadly and that the proposal is inconsistent with the approved Masterplan for the site. 13Mr Staunton, for the applicant, submits the proposal must be assessed against the relevant controls in the LEP and DCP not the provisions of the Masterplan, which is a Stage 1 development application under s 91AB of the EPA Act. The application meets the requirements of the LEP in that it is below the height limit (8.5 m), below the FSR (0.7:1) and within the foreshore building line. No expert evidence was provided by council that the proposal does not meet the requirements of the DCP. The assessment of the application by council planners, the independent planner and Mr Tuxworth have concluded that the proposal meets the requirements of the LEP and DCP and the proposal is compatible with the character of existing development in Cape Cabarita. 14The concerns raised by Mr Broadly in relation to the impact on symmetry are addressed in the report to council of 18 October 2011 which states: The alteration to the symmetry will be noticeable to the more discerning viewer, but will not be 'jarring' or 'unpleasant', with the works proposed appropriately reflecting the architectural character of the estate and using similar materials and colour. The introduction of change into an architecturally designed estate, if complimentary, even where that change affects the symmetry of the original design is not of itself an unacceptable impact. Such change has always occurred throughout the history of planning in Sydney and will always continue to do so as the needs of the community change. 15This report also addressed the impact of the proposal on the roof lantern. It concluded that the backdrop to the roof lantern would remain largely unchanged, although the wall would be closer. 16Mr Tuxworth agreed with the assessment and stated that: The altered building will be harmonious with the other dwellings in this locality and does not have an unacceptable visual impact on the existing symmetrical design of the existing group townhouse dwellings in Rosemeadow Drive. 17Mr Hudson also submitted that the proposal should be refused as it would create an undesirable precedent as is not in the public interest as it is overwhelmingly opposed by the Community Association. 18Mr Staunton stated that for the proposal to be an undesirable precedent it must firstly be objectionable in itself, which it is not. Even if it were objectionable there must be a reasonable chance that it could be repeated, which there is not (see Goldin and Anor v Minister for Transport [202] NSWLEC 75). 19Mr Staunton further submitted that 'public interest' is not simply the number of people who object to a proposal but is the proper planning of Camp Cabarita as reflected in the planning controls. Findings 20The key concerns of the residents who oppose the application is that it is inconsistent with the approved Masterplan for the Cape Cabarita and is not supported by the community. In their opinion, the wishes of the majority of the community should prevail over those of an individual. 21The application must be assessed under the requirements of s79C of the EPA Act and against the provisions of the LEP and DCP. Council did not provide expert evidence or submit that the proposal is inconsistent with these planning documents. Nevertheless, council submits that the proposal should be refused as it is does not comply with the approved Masterplan in that it is inconsistent with the existing streetscape of Rosemeadow Avenue and will adversely impact on the symmetry of the townhouses. 22The Masterplan is a Stage 1 approval under s91AB of the EPA Act. It is not a statutory planning instrument, which must be considered under s79C. Nevertheless the implementation of the Masterplan has resulted in the existing character of Cape Cabarita and new development should be compatible with this character. 23There is nothing in the approved Masterplan, by laws, the Community Management Statement or the Architectural Guidelines which prohibits changes to the existing buildings in Cape Cabarita. Clearly any change needs to be assesses against the relevant planning controls which require that the development is compatible with the existing development in Cape Cabarita. The DCP includes specific objectives and performance criteria for streetscape (s 2.1.1), bulk and scale, (s 2.1.5), building design (s 2.1.6), views (s 2.1.8) and building materials (s 2.2.2). There was not expert evidence that suggests that the proposal does not comply with these requirements. 24Mr Broadly raised concerns that the proposal would impact on the symmetry of the townhouse blocks at an important access point to the water. Further he considered that the proposal would compromise the roof lantern point as a focal point in the streetscape. Mr Tuxworth and the assessment of the other planners agree that the symmetry and the focal point of the lantern would be changed. However, they concluded that the change would not have an unacceptable impact on the townhouses or streetscape. 25I accept Mr Tuxworth's opinion. The proposed addition is designed to be compatible with the materials, colours and language of the existing townhouse and the other townhouses in the group and the adjoining group. The proposal does not exceed the height or FSR for the site and is consistent with the character of the streetscape. While it will alter the symmetry and the focal point of the roof lantern, the expert evidence is that the change will not have an adverse impact and the proposal is therefore acceptable. 26Given that the proposal is acceptable on its merits, I accept Mr Staunton's submission that it will not create an undesirable precedent and that any other applications must be considered on their merits. Further, it cannot be concluded that the proposal is not in the public interest on the basis that the Community Association has objected to it. Orders 27The orders of the Court are: 1. The appeal is upheld. 2. The development application for alterations and additions to an existing dwelling at 18 Rosemeadow Drive, Cabarita, is approved subject to the conditions in Annexure A 3. The exhibits, except Exhibits 1, 3 and A, may be returned. Annelise Tuor 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: 07 December 2011