Land and Environment Court New South Wales Medium Neutral Citation: Jean Stewart Pty Limited v Manly Council [2011] NSWLEC 1392 Hearing dates: 10 and 11 October 2011 Decision date: 11 October 2011 Jurisdiction: Class 1 Before: Dixon C Decision: 1. The appeal is upheld. 2. Development consent to DA162/10 is granted subject to the conditions in Annexure "A", including condition ANSO8 as a deferred commencement condition. 3. The exhibits are returned. Catchwords: DEVELOPMENT APPEAL - dwelling house, impact of the development on district views, bulk and scale, streetscape Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Manly Local Environmental Plan 1988 Manly Development Control Plan for Residential Zone 2007 - Amendment 1 Cases Cited: Pafburn v North Sydney Council [2005] NSWLEC 444 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 Category: Principal judgment Parties: Jean Stewart Pty Limited (Applicant) Manly Council (Respondent) Representation: Mr J Hones (Applicant) Ms C Scholfield (Respondent) File Number(s): 10671 of 2011 Ex-tempore Judgment 1On 16 June 2011 the Manly Independent Assessment Panel approved the applicant's development application No 162/10 for alterations and additions to an existing dwelling and separate accommodation at 27 Daintrey Street, Fairlight, subject to conditions. This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against one of the conditions imposed, condition ANSO8, which states: The height of the roof over the deck in the rear section of the house back to the western wall of bedroom 2 at first floor level is not to exceed RL22.9. 2The notice of determination issued to the applicant notes that the reason for the imposition of condition ANSO8 is "to reduce the visual bulk and impacts on the adjoining neighbours". While the application generated objections from several neighbours in the Ivanhoe Park precinct community forum, the neighbour most affected by this development is the resident at 25 Daintrey Street. 3The Court had the opportunity to appreciate the impact of the approved development on the neighbouring properties at 29 and 25 Daintrey Street because the appeal commenced on site as a conciliation conference before it moved, with the consent of the parties, to a hearing and determination under s 34AA of the Land and Environment Court Act 1979 (LEC Act). While the conciliation conference did not achieve a resolution of the appeal it gave a context to the appeal. Importantly, it allowed me to understand the constraints of the site, the needs of the applicant, the concerns of the immediate neighbours, and the evidence of the experts. At the request of the parties the matters discussed and observations made during the conference were received as evidence at the hearing and taken into account in my determination of the appeal. 4The applicant's statement of facts and contentions (exhibit F), the Council's statement of facts and contentions dated 7 October 2011 together with the report by the Manly Independent Assessment Panel dated 16 June 2011 set out the background facts, the planning controls and the contentions between the parties. I do not need to repeat that detail save to identify the relevant controls: Manly Local Environmental Plan 1988 (LEP), in particular cl 10(3), the objectives (c), (d), (e) and (h), and the Manly Development Control Plan for Residential Zone 2007 -Amendment 1 (DCP), cll 3.4, 3.5, 3.6, 4.3 and 4.1 5The experts who addressed the Court were the council's town planner, Miss Sample, and the applicant's town planner, Mr Minto. Architectural evidence was received from the Council's architect Mr Biddulph and the applicant's architect Miss Stewart. Their joint report is (exhibit 3). 6The applicant's principal contention is that condition ANSO8 unreasonably restricts the development of the applicant's constrained site and the functionality of the proposal. As Miss Stewart explained onsite, her design was driven by the applicant's desire to retain the existing dwelling and avoid overcapitalisation of the site. In her opinion, apart from a couple of minor breaches, the design achieves numerical compliance with relevant planning controls and does not adversely impact on adjoining properties. She explained that the stepping of the dwelling down the site avoids unacceptable overshadowing, or loss of privacy, visual bulk or loss of outlook. 7Mr Minto expressed the same opinions but suggested the impact of the design on the residents of number 25 could be improved if the applicant was required to have a flat roof over the rear extension. He also suggested removal of the privacy balustrade on the upper deck at the rear and a reduction of the roof over that deck to about one metre. That change would open up side views from the balcony at No 25 and the addition of a privacy screen on the lower balcony would improve the development. 8Subject to those amendments, Mr Minto was supportive of the removal of condition ANSO8. Both Mr Minto and Ms Stewart expressed the view identified at p14 of Exhibit 3 that compliance with condition ANSO8 unreasonably interferes with the design and functionality of the development and the applicant's preferred internal building configuration. They pointed out that the site is constrained and that the very minor departures from the Council's wall height controls at the southwestern corner of the kitchen and northwestern corner of bedroom 2 were localised and responsive to the rock ledges and sloping topography of the site. They stated that the levels as proposed in the amended plans have an acceptable balance between cut and fill. 9Mr Minto and Ms Stewart reject the Council's assessment that a more skilful design would keep more of the views currently enjoyed from the dwelling at No 25 across the subject property. They reject the Council's suggested design prepared by its architect - which propose a maximum ridge height of RL22.9 - because it introduces an increase in levels between the two dwellings, the addition of eight stairs internally, the insertion of narrow entry and a reduction in the ceiling heights. They assert the result is an unacceptable internal amenity for this particular applicant's needs. 10After a consideration of the principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Mr Minto and Ms Stewart stated that the proposal does not cause unreasonable loss of views from the dwelling at No 25. This is because we are dealing with side boundary district views, which must be affected if the applicant's land is to be developed. The applicant's experts contend that the view impact to No 25 is of a moderate nature having regard to the principles in Tenacity. In the circumstances of the case a redesign of the proposal is not warranted. 11The Council's experts do not agree with the applicants' assessment of the impact of the proposal on the dwellings at Nos 25 or 27. Council's planner was of the opinion that the numerical compliance with the Council's controls on this site does not necessarily result in an acceptable development. Council's objectives must also be achieved. 12To appreciate the Council's case it is necessary to understand the topographical constraints of the applicants' site. 13The land is 623.5 sq m in area and located on the western side of Daintrey Street in Fairlight. The lot is irregular in shape. It narrows from 11.38 m width at the street frontage to 9.865 m at its western boundary. The site falls from front to rear approximately 11.25 m and falls from south to north approximately 2.4 m. The site contains a single storey brick residence with a separate laundry/shed located midway down the block towards the rear boundary. A single hardstand car space stands at the street frontage. Located to the rear of the existing dwelling is a rock ledge adjoining a stone retaining wall. Midway down the site is another rock ledge adjacent to the southern boundary. The southern boundary adjoins 25 Daintrey Street, which is a single storey residence with an elevated balcony in the rear northwestern corner of the dwelling. That balcony is about 1.6 m above the existing ground level and enjoys district views. 14The Court received into evidence the Council's assessment report prepared in 2000 in respect of the redevelopment the adjoining property at No 25 (exhibit 5). According to that report the redevelopment of the dwelling at No 25 was compliant with the relevant controls at that time. The report records that the redevelopment at that time achieved the aims and objectives of the relevant DCP so that the extensions were approved. The Council maintains that the current proposal does not achieve compliance with relevant controls or the objectives of the controls. 15The site inspection made clear the fact that the property at No 25 adjoins on its northern boundary a two storey flat building. The interrelationship between No 25 and the subject site is very different. Each case must be determined having regards to its individual circumstances. 16It is also relevant to appreciate the fact that the property at No 29 sits to the north of the site and is substantially lower. It is a small site with a small rear outdoor open area. The owner of No 29 told the Court onsite that she felt that her single dwelling would be overwhelmed by the proposed development at No 25 if condition ANSO8 was removed. I accept her evidence. 17The rear boundary of the site also adjoins 31 Daintrey Street. An objector to the development from that property did not address the Court at the on-site conference but it was apparent from my observations of the site that it too will, to some extent, be overwhelmed by the development as proposed by the applicant without the condition. This is also confirmed in the aerial photograph of the area provided by Council. 18Having regard to the features of the site and adjoining properties, the Council contends that the development is too bulky relative to the location of Nos 25 and 29. However, condition ANSO8 assists in reducing the impact of the massing of the rear section of the development and reduces the impact of the bulk on the neighbouring properties. The Council contends, through its experts, that the development needs to step down the slope in order to meet the intent of the specific zone objectives in Pt 2 of the development control table, particularly (c), (d), (e) and (h). The Council's experts are of the opinion that the proposal "degrades the amenity of surrounding residents" and this is at odds with zone objective (d). 19The Council submits that a more sensitive design (such as that proposed by its architect) with increased stepping down the slope to remove and reduce the visual bulk is necessary. The Council submits that condition ANSO8 achieves this result and therefore it should be imposed as a deferred commencement condition on any consent. 20It was clear at the site inspection, both from inside the dwelling at No 25 and from its northern balcony, that this development will reduce side boundary district views, and impact solar access. While I appreciate that the solar access is compliant with the relevant controls, the amenity of the residents of No 25 would be severely compromised if this development was approved without the condition. The development does not, based on the evidence of Miss Sample and Mr Biddulph, include a sufficient level of stepping in relation to the surrounding development as required by Pt 2 cl 1.20 of the DCP. 21I accept, as the Council submits, that the design does not satisfactorily interpret and complement the site characteristics and the surrounding built and natural environment. While I accept the evidence of Mr Minto that the eave height of the rear addition when viewed from the rear deck of No 25 will be approximately 2.2 m above the property's floor level and it is less than one storey in height relevant to this level; it will still dominate the outlook from No 25. I accept Miss Sample's assessment that the development without the condition will dominate that adjoining property. 22There is no dispute that the site is difficult to develop and constrained. While the proposal numerically complies with the floor space ratio controls, the height and setback controls, its impact is unacceptable because of the sloping site. Clause 3.5.3 of the DCP refers to building height controls on sloping sites. The height poles erected for the purpose of the site inspection demonstrate the overwhelming impact and bulk of the proposal when viewed from the dwellings at Nos 29 and 25 if constructed without the condition imposed. I agree with the Council that the development without the condition does not achieve the design objective to respond to the slope of the site with the aim of minimising loss of views and amenity from private spaces (DCP Pt 2 cl 2.4.8). 23When seated inside the main living room of No 25, the district view presently enjoyed will be lost. While some loss of amenity is expected, condition ANSO8 balances the unacceptable impact of looking out onto a solid wall. 24The applicant contends that the compliance with condition will result in unacceptable excavation costs. Exhibit H estimates these costs to be in the order of $23,000. The Council is of the opinion that exhibit H is inaccurate and the cost is more likely to be in the order of $7,000. Development of a site, which is constrained by rock ledges and a slope, is expensive but that is not justification for unacceptable development. 25After a consideration of all of the evidence and the legal framework, I accept the Council's submission that the real problem with this development is the impact of its overall height and bulk of the rear addition. The views and outlook across the property are valuable for the residents of the dwelling at No 25 and should be preserved in part. The impact of the proposal to the rear section of the property at No 25, absent the condition, is unacceptable. The height which results after compliance with condition ANSO8 is about the height of the balustrade of the rear side terrace adjoining the living area within the rear of the dwelling at No 25. Without a reduction in the height as required by the condition at issue, the proposal does not share district views; it removes those currently enjoyed from the property to an unacceptable and inequitable level. 26It is in part caused by non-compliant wall heights throughout the proposal. Although the view loss is across side boundaries it is still an unacceptable impact from the terrace and main living areas of the dwelling at No 25. The north view is not able to be appreciated from inside the lounge living area when seated. While there are some views maintained towards the back of the property, I do not accept that it is an acceptable view sharing without the imposition of ANSO8. The imposition of the condition also addresses the overwhelming impact caused by the development on the property on the lower side at No 29 and, in particular its small outdoor living open space. 27The Council supports a dwelling generally in the form of that proposed. The Council's concern is directed to the height of the development, which is appropriately addressed by a condition generally in the terms of ANSO8 proposed in the draft conditions attached as a deferred commencement condition. Such a deferred commencement condition will allow the plan of the proposed dwelling, reduced in height, to be submitted and approved by the Council before the development consent becomes operative. I accept the Council's draft condition in the proposed form. 28With respect to the conditions in relation to colour the owner at No 29 has asked that the development not be white. Subject to that qualification, the owner of No 27 should be at liberty to elect the colours and finishes of the development. In relation to the privacy screen on the balcony, that is a matter for the Council to assess in terms of the appropriateness of the design having regard to the privacy issues raised by the residents at No 25. 29After a consideration of the evidence, the LEP, the DCP, the oral submissions of the parties and the relevant matters in s 79C of the EP&A Act, including the DCP which is a focal points of my consideration: (Zhang v Canterbury City Council [2001] NSWCA 167 ;(2001) 51 NSWLR 589) and having considered the view-sharing principles in Tenacity as discussed in Pafburn v North Sydney Council [2005] NSWLEC 444, I propose to make the following orders: (1)The appeal is upheld. (2)Development consent to DA162/10 is granted subject to the conditions in Annexure "A", including condition ANSO8 as a deferred commencement condition. (3)The exhibits are returned. Susan Dixon 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: 24 April 2012