Land and Environment Court New South Wales Medium Neutral Citation: One Three Pty Ltd v Manly Council [2012] NSWLEC 1191 Hearing dates: 9 and 10 May 2012 Decision date: 20 July 2012 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is dismissed. 2. The development application for a mixed residential commercial development at 69 Pittwater Road, Manly, is refused. 3. The exhibits, except Exhibit 2, may be returned. Catchwords: DEVELOPMENT APPLICATION - mixed residential commercial development. Impact on heritage conservation area, building height, setback, and floor space ratio. Privacy impacts Legislation Cited: Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 1988 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings Cases Cited: Seaside Property Developments Pty Limited v Wyong Shire Council [2004] NSWLEC 117 Tricon Services Group Pty Ltd v Manly Council (No 2) [2011] NSWLEC 253 Category: Principal judgment Parties: One Three Pty Ltd (Applicant) Manly Council (Respondent) Representation: Counsel Mr G McKee, solicitor (Applicant) Mr A Seton, solicitor (Respondent) Solicitors McKees Legal Solutions (Applicant) Marsdens Law Group Lawyers (Respondent) File Number(s): 11004 of 2011 Judgment 1This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Manly Council (council) of a development application (DA138/11) for the "demolition of the existing buildings, construction of two separate buildings consisting of a three (3) level (Building A) and a five (5) level building (Building B) for mixed use development comprising of 150sqm retail/commercial space, thirty eight (38) dwellings, a two level basement carpark with forty four (44) spaces and strata subdivision" at 69 Pittwater Road, Manly (site). 2The key issues in dispute between the parties are whether: (i) the proposal adversely impacts on the heritage conservation area through the demolition of a contributory building and the design of the new building. (ii) the height, setbacks and floor space ratio of the proposal are acceptable. Site and its locality 3The site is located on the western side of Pittwater Road, between Carlton Street and Denison Street, and opposite Steinton Street. The site comprises three allotments (Lots A & B DP 307310 and Lot 1 DP 368360) with a total area of 1404sqm, a frontage of 28.9m to Pittwater Road and 30.2m to Kangaroo Lane. 4The site is currently occupied by a single storey building used for commercial purposes, a dwelling house and a garage structure fronting Kangaroo Lane. 5To the north, the site adjoins a three storey residential flat building (71 Pittwater Road). The building is located to the front of the lot and contains nine units. The rear of the land contains a large area of open space, with garages on each boundary and a communal laundry. 6To the south, at 61-63 Pittwater Road, the site adjoins a four storey residential flat building fronting Pittwater Road carparking in the rear off Kangaroo Lane and two storey townhouses behind the former Salvation Army Hotel facing the carpark. 7Opposite the subject site, along Pittwater Road is a service station on the northern side of Steinton Street and a two storey residential building on the southern side of Steinton Street. 8At the rear of the site, on the opposite side of Kangaroo Lane, is the escarpment of Kangaroo Park. 9The surrounding development along Pittwater Road is characterised by a variety of land uses in predominantly two to three storey buildings, interspersed with some larger buildings. Planning framework 10The site is in Zone No 3 - Business Zone under Manly Local Environmental Plan 1988 (LEP 1988). The proposed development is permissible with consent as an innominate use. The site adjoins land zoned Residential to the north and Open Space to the west. 11The site is within the Pittwater Road Conservation Area and is in the vicinity of heritage items including the Salvation Army Hotel, Kangaroo Sculpture and a house at 77 Pittwater Road. Clause 19 of LEP 1988 requires an assessment of the effect of the development on a heritage item in its vicinity. Clause 21 of LEP 1988 requires a consideration of the extent to which the development will affect the heritage significance of the conservation area. 12Manly Development Control Plan for the Business Zone1989 (Amendment 7) (BDCP) provides controls for development within the Business Zone. It requires that regard must be had to the "objectives and relevant controls" of Manly Development Control Plan for the Residential Zone 2007 (Amendment 1) (RDCP). 13State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) establishes ten design principles for residential flat development. Under SEPP 65, the Residential Flat Design Code (RFDC) must be considered. Evidence 14The Court visited the site and heard evidence from objectors who live in the adjoining residential flat building (71 Pittwater Road). Their main concerns centred on the impact of the proposed development on their amenity, principally resulting from its height, bulk and setback. They considered the proposal would result in aural and visual privacy impacts. Particularly the number of units that would directly overlook the open space/service area at the rear of their building, which they stated is well used by occupants and their children. They were also concerned about the loss of outlook from their units, particularly to the vegetated escarpment of Kangaroo Reserve and district views along Pittwater Road. In their opinion, the proposal did not meet the requirements for setbacks and building separation in the relevant planning controls, including SEPP 65, the RFDC and the DCPs. 15Other residents raised concerns about loss of views to the escarpment and the Kangaroo Sculpture in Kangaroo Reserve. They noted that the site is the only remaining location where views of the escarpment and the sculpture are available from Pittwater Road. 16The residents also raised concerns about the traffic impacts of the proposal and the analysis of traffic generation and the "statistical" increase referred to in the traffic report considered by council. 17The Court heard expert heritage evidence from Mr R Staas, for the applicant and Mr Z Popovic, for the council. Mr A Minto and Mr G Baker, for the applicant and Mr S Layman, for the council, provided planning and urban design evidence. Impact on the conservation area 18Mr Popovic and Mr Staas agree that the significance of the conservation area is set out in the heritage inventory sheet (HIS) and that the buildings on the site, other than the existing inter war shop at 65 Pittwater Road, are detracting buildings that can be demolished. They disagree whether 65 Pittwater Road contributes to the conservation area to the extent that it should be retained and incorporated into the new development. 19Mr Popovic and Mr Staas disagree whether it is reasonably feasible to incorporate the original fabric of the façade at 65 Pittwater Road into the development. If not, whether a "replica" of the facade should form part of Building A. The experts also disagree on the extent that the proposed façade of Building A responds to the conservation area and therefore affects its significance. 20Mr Staas notes that contributory buildings are not identified in the HIS for the conservation area. In his opinion, the existing building has lost much of its original character and detail and no longer represents an intact or significant example of an inter war style building. At best, it makes a neutral contribution to the conservation area. Further, Mr Staas considers that the retention of the facade would be unreasonable given constraints such as excavation, internal layout and increased height. 21Further, Mr Staas considers the retention of the facade or its "rebuilding" would be meaningless, given that it would be a single storey facade within a three storey development. He did not accept that the development at 52-57 Pittwater Road was an appropriate conservation outcome, given that a replica of an existing building on that land had been incorporated into the development but with increased height and no original fabric (other than vents). In his opinion, this achieved a dubious heritage outcome as it gives the impression that an original inter war building had been retained, whereas it was a new building. 22In Mr Staas' opinion, the proposal was an appropriate infill development, as Building A responded to the height of the adjoining buildings and presented as three "articulated but related building elements" with vertical proportioning that is characteristic of development in the area. He considers that the infill development achieves the aims and objectives in the BDCP for the conservation area. 23Mr Popovic held the contrary view that the existing building contributed to the conservation area, despite its alterations and condition. He recognised that "it would be inappropriate to replicate period character and detail for an infill building in this location" however he does not object to the "incorporation of the existing façade into new development, even if this meant that important parts of it will need to be reconstructed." He considered the recent development at 52-57 Pittwater Road to be a successful infill building within the conservation area. 24Mr Popovic did not object to a contemporary approach to the design but considered elements in the proposal, such as the louvres and extent of glazing to be uncharacteristic of the area. He also considered the facade should read as separate elements with greater verticality and different appearance. Mr Popovic also considered that a two storey development along Pittwater Road to be more appropriate as this would better retain views to the Kangaroo Sculpture from Pittwater Road. 25Mr Staas and Mr Popovic agree that the proposal will not aversely impact on the heritage significance of the heritage items in the vicinity, including the Kangaroo Sculpture, the Salvation Army Hotel and the house at 77 Pittwater Road. Findings 26The description and Statement of Significance for the conservation area in the HIS states: Statement of Significance The street pattern is distinctive and underpins the urban character of the area. The streets remain unaltered in their alignment... Physical Description The streetscape of Pittwater Road is a winding vista of late 19th and early 20th century commercial and residential architecture of generally one and two floors - although there are exceptions such as the four storey private hotel. The streetscape provides a 19th century atmosphere due to its scale, width and the number of extant Victorian structures. Within the streetscape there are a number of individually significant buildings which are listed separately. Adjacent streets generally comprise a consistent pattern of one and two storey residential cottages, with the occasional terrace. Some streets have intermittent street plantings and remnant stone kerbs. The flat topography is accentuated by the escarpment to the west which provides an important visual, vertical and vegetated backdrop. 27The HIS and the BDCP do not identify contributory buildings. The Aims and Objectives in Preliminary Section D of the Business DCP includes: To recognise the diversity, interest and heritage value of the existing townscapes and ensure that new developments are compatible with these features as expressed in the Council's Townscape (1977) and Heritage (1986) studies; 28Section 1.4 - Design for Townscape in the BDCP provides: 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... 29The existing building at 65 Pittwater Road is an interwar building which has been altered significantly. I accept that, if conserved, it could make a contribution to the conservation area, however, retaining only the facade, parts of the facade or building a "replica" would not retain the building in any meaningful way. 30In the recent development at 52-57 Pittwater Road, the facade was not retained but rebuilt at a different height. While this may or may not be an appropriate infill development, it is a new building and not retention of an existing contributory building. 31While it is technically feasible to retain and repair the facade, I accept Mr Staas' evidence that this is not warranted due to its level of contribution, its condition and the constraints it would impose on the development. 32The key question then becomes one of whether the design of the new development "has given due attention to the site's position within and contribution to the overall existing and future townscape quality of .... Pittwater Road". I accept Mr Staas evidence and am satisfied that the design of the building on Pittwater Road achieves this outcome. 33The height of the proposal on Pittwater Road reflects that of the adjoining buildings. While a lower height would improve views of the escarpment and the Kangaroo Sculpture from the opposite side of Pittwater Road, these views are still available from Steinton Street. The retention of these views is not identified as a requirement in the BDCP. Rather the Townscape requirements of the BDCP identify the site as an "important end of vista sites. Appearance of street elevation requires special attention." 34Furthermore, the building wall height and the maximum building height in the BDCP are both 15m. The height of the proposal on Pittwater Road is generally 10.4m, which is below these heights to provide a better relationship to the height of adjoining buildings. It would be unreasonable to require a lower height and it would not achieve the Townscape objectives that seek to establish a relationship between building heights. 35The design of the elevation contributes to the streetscape. It is clearly a modern building with a greater proportion of glass to solid and the use of elements such as louvres. However, it responds to the pattern of development by breaking the building into three elements and is part of the evolution of the streetscape. While changes could be made to further reinforce the verticality of these elements or for them to be different in their design, I do not accept that this is necessary or has an adverse impact on the conservation area that would warrant refusal of the application. Height, side setbacks and floor space ratio 36The key disagreement between Mr Minto, Mr Baker and Mr Layman is whether the height of Building B and the setback of the proposal from its northern boundary are acceptable. They also disagree on whether the floor space ratio (FSR) of the proposal is acceptable. 37Mr Layman considered that Building B exceeds the wall and building height control in the BDCP and does not comply with the setback control in the RDCP or those recommended under the RFDC. The proposal also exceeds the FSR control in the BDCP. In his opinion, the height, setback and FSR resulted in a building of unacceptable bulk when viewed from 71 Pittwater Road. The height does not provide a "better relationship to adjoining development" and is beyond what is envisaged for the area under the BDCP. The setback, orientation of the units and the number of windows and balconies also resulted in overlooking and privacy impacts to 71 Pittwater Road. 38Mr Minto considered the height exceedance of Building B to be acceptable. The plant rooms are setback from the perimeter of the building and will generally not be visible nor result in unacceptable impacts. A parapet height of 15.55m would not be discernable in comparison to the 15m control. The increased height results from the ground level being 600mm above Kangaroo Lane to achieve acceptable amenity for the units. 39In Mr Minto's opinion, the FSR exceedance is also minor and the proposed development is consistent with the form of the recently completed development at 53-57 Pittwater Road which "in effect establishes and reinforces the future character which Council seeks to achieve within the business zone as opposed to the adjoining buildings to the south which in most cases pre date the existing DCP and...do not reflect the desired future character of the locality." Mr Baker shared these opinions. 40Mr Minto and Mr Baker agree that the proposal does not comply with the setback requirements in the RDCP but considers that the setbacks comply with the objectives of these controls and that this is what is required under s 1.3 of the BDCP. In particular, elements of the design, such as the two storey mezzanine units, offset windows, screening and landscaping reduce the privacy impacts on the adjoining development at 71 Pittwater Road. Findings 41The aims and objectives of the BDCP include: D6 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; 42There are two relevant height controls in the BDCP. The first is in s 1.2 "Building Heights" and the second is in the section "Maximum Building Height" which includes the height control map (see Tricon Services Group Pty Ltd v Manly Council (No 2) [2011] NSWLEC 253). 43Section 1.2 provides that the maximum wall height of a building shall not exceed 15m, except in certain circumstances. The height control map specifies a maximum height of 15m. 44The wall height and building height of Building A is 10.4m, which is below these controls. The experts agree that the height of Building A is appropriate. 45The maximum wall height of Building B is 15.25m and the building height to the top of the parapet is 15.55m. The height of to the top of plant is 17.95m. The key disagreement between the experts is whether the height of Building B is appropriate. Mr Layman considers it should be decreased to better relate to adjoining development. Whereas Mr Minto and Mr Baker consider it is acceptable as it responds to 53-57 Pittwater Road and is what is envisaged by the planning controls. 46The height control in s 1.2 of the BDCP provides that the maximum wall height of 15m may be exceeded only in certain circumstances. These include the addition of plant rooms which meet the requirements of s 1.2(2). The experts agree that the plant will not be visible from surrounding streets, although it will probably be visible from other developments in the area. I accept that it is designed as an integral part of the building and meets the townscape objectives. 47Section 1.2(1)(ii) provides that the 15m maximum wall height may also be exceeded if it provides a better relationship to adjoining development in terms of fulfilling the Council's townscape objectives. The height of adjoining development is below 15m and these sites are unlikely to be redeveloped. 53-57 Pittwater Road does not adjoin the site and is not a consideration under s 1.2(I)(ii). I therefore do not accept that an exceedance of the 15m wall height control is justified as it does not provide a better relationship to adjoining development or satisfy the Townscape requirements of the BDCP. 48The controls for Setbacks in s 1.3 of the BDCP provide: All buildings shall be constructed to the public road and side boundaries of the allotment except where: 1. An alternative setback is identified on the townscape and opportunities maps; or 2. The applicant can demonstrate to the satisfaction of the Council that an alternative setback will not conflict with overall townscape objectives, reduce the general availability of retail frontage or remove weather protection for pedestrians; 3. The stipulated setback would be undesirable in terms of the amenity of any residential uses existing on adjoining land or proposed for inclusion in the development (in which cases the principles of the Council's Development Control Plan for the Residential Zone will apply). 49The experts agree that the building should not be built to the northern side boundary but disagree on whether the proposed setbacks meet the requirements of s 1.3(3). Specifically whether the "principles" of the RDCP refer to the controls or the objectives of those controls. 50The proposal does not meet the numerical setback controls in s 3.6 of the RDCP. Whether or not these controls apply under s 1.3(3) of the BDCP, the objectives are a relevant consideration and the key question is whether the objectives are met. The objectives relevantly include: 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 sitting of buildings; e) To facilitate view sharing; ... 51The principle disagreement between the experts is whether the setback of Block B will achieve appropriate privacy. The units in Block B are orientated towards the north which provides considerable amenity for the future occupants of the development. However, it results in the potential for overlooking of 71 Pittwater Road and privacy impacts. 52The rear of 71 Pittwater Road is an open area that, while it has garages and laundries, is used for recreation and provides considerable amenity to the residents of the building. The proposal will overlook this area of open space. The design has sought to mitigate these impacts, through the use of two storey mezzanine units, offset windows, screening and landscaping. However, I accept the evidence of Mr Layman, that the setbacks are inadequate to achieve acceptable privacy impacts and limit overlooking. 53The development at 53-57 Pittwater Road orientates its units east - west and thereby avoids overlooking of adjoining properties. The orientation of Block B towards the north is understandable and the overlooking of the adjoining property may be acceptable if it were also within the Business zone. However, given that the adjoining site is within the residential zone there is increased sensitivity. The setbacks in the RDCP are a minimum requirement to achieve acceptable privacy. 54The experts agree that the proposal does not comply with the floor space ratio (FSR) control in s 1.1 of the BDCP. However, they disagree on the extent of the non compliance. This difference of opinion, centres on whether the "external" corridors are included as gross floor area (GFA) in the FSR calculations. Mr Layman considers that they should be included, whereas Mr Minto states that they should not. 55Section 1.1 of the BDCP permits a maximum FSR of 2:1 (2808sqm). The applicant's position is that the proposal has an FSR of 2.05:1, which exceeds the control by 84sqm. Whereas, the council's position is that the proposal has an FSR of 2.16:1, which exceeds the control by 228sqm. 56While it is understood that the corridors are "external" they are enclosed other than at the east and west end. However, this is not clearly discernable from the plans or elevations and no condition is proposed which requires that they remain unenclosed. They clearly add to the bulk of the building and in the absence of any condition or clearly notated drawings, it could be easily interpreted that the corridors are enclosed and should be included as GFA. Even, if they are not included, the proposal exceeds the maximum FSR and there is no justification, given the resultant height and bulk of the development, particularly, when viewed from 71 Pittwater Road. 57The experts referred to Seaside Property Developments Pty Limited v Wyong Shire Council [2004] NSWLEC 117 where at [25] Bly C set out the following principle concerning development at zone interfaces: As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like. 58Adopting and applying those principles to the present case, I accept Mr Layman's opinion that the proposal may not be able to achieve its "full potential" and that it should at least comply with the requirements for height, setback and FSR. Similarly, the existing development at 71 Pittwater Road cannot expect to maintain the level of amenity it could expect if it adjoined land that was also zoned residential. However, on balance, I find that the building wall height, FSR and setbacks of the proposal do not achieve the Townscape objectives sought by the BDCP. In particular, the impacts on amenity resulting from the setbacks of Building B do not achieve acceptable privacy and the application must fail. Order 1. The appeal is dismissed. 2. The development application for a mixed residential commercial development at 69 Pittwater Road, Manly, is refused. 3. The exhibits, except Exhibit 2, 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: 20 July 2012