Land and Environment Court New South Wales Medium Neutral Citation: Aleksandar Design Group Pty Ltd v Manly Council [2012] NSWLEC 1339 Hearing dates: 26-28 November 2012 Decision date: 11 December 2012 Jurisdiction: Class 1 Before: Tuor C Decision: 1.Leave is granted to amend the development application and rely on amended plans. 2.The appeal is upheld. 3.The development application (DA 126/2011) for a residential flat building comprising 5 units and basement parking for 12 cars at 4 West Street, Balgowlah is approved subject to the conditions in Annexure A. 4.The exhibits, except Exhibits 2, F and M, may be returned. 5.Under s97B, the applicant is to pay the costs of the council that are thrown away as a result of amending the development application, as agreed or assessed. Catchwords: DEVELOPMENT APPLICATION - residential flat building, compatibility with character of local area, resident concerns. Legislation Cited: Environmental Planning and Assessment Act Manly Local Environmental Plan 1988 State Environmental Planning Policy - Design Quality of Residential Flat Development State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 Category: Principal judgment Parties: Aleksandar Design Group Pty Ltd (Applicant) Manly Council (Respondent) Representation: Mr M Staunton (Applicant) Mr Norton (Respondent) Solicitors Wilshire Webb Staunton Beattie (Applicant) Maddocks Lawyers (Respondent) File Number(s): 10676 of 2012 Judgment 1This is an appeal against the refusal by Manly Council (council) of a development application (DA 126/2011) under the Environmental Planning and Assessment Act 1979 (EPA Act) for a residential flat building at 4 West Street, Balgowlah (site). 2The issues in dispute between the parties have been resolved through amendments to the proposal. Site and locality 3The site is on the eastern side of West Street, between New Street and Upper Beach Street. It has a frontage of 20.115 m to West Street and side boundary lengths of 90.525 m and an approximate site area of 1,820.91 sq m. The site has a steep slope with a cross fall of 27 m from the south west corner to the north east corner. The site is vacant with a number of significant trees mainly located around its perimeter. A three storey residential flat building adjoins the site to the north (6 West Street). A duplex adjoins the site to the south west (2 West Street) and a detached house is located to the south east (2A West Street). The rear of the site is next to a drainage reserve and townhouse development (105A Woodland Street), which adjoins Brimbecom Park. 4The surrounding locality is predominantly detached single dwelling houses of varying styles, storeys and periods. There are a number of battle axe subdivisions on the eastern side of West Street and town house developments, including 1 West Street, which is opposite the site. Background and proposal 5At the commencement of the hearing the proposal before the Court was for a residential flat building containing eight dwellings with basement car parking for 12 cars in a single building which terraced down the site (Exhibit A). The resident submissions and the experts' Statements of Evidence and Joint Reports were based on this application. 6In response to matters raised by residents and in the experts' Joint Reports, the applicant proposed to delete two units (units 6 and 7) and thereby break the proposal into two buildings with a corridor of deep soil between these buildings suitable for canopy tree planting. The amendments also included combining two units (unit 1 and 2) into one unit and also reducing the size of the upper floor thereby limiting the height of the proposal and overshadowing of the kitchen window at 2/2 West Street. The amendments also relocated the OSD tank and the footpath along the southern boundary to reduce the potential impact on trees and altered the location of the accessible unit and provided an additional accessible unit. 7The applicant sought leave to amend the application and rely on amended plans. The council did not oppose the grant of leave subject to a costs Order under s 97B and re-notification of the amended plans. 8The applicant accepted that the amendments are not minor and that an Order under s 97B should be made. However, the applicant opposed re-notification of the proposal as there is no formal requirement and this would have resulted in an ajournment of the hearing. 9I was satisfied that the amendments did not require re-notification as firstly, the Manly Development Control Plan - Notification (Notification DCP) does not include a requirement to renotify an amended application. Secondly, the proposed changes reduce impacts and do not result in any additional impacts upon which the community has not been able to comment. Thirdly, despite there being no formal requirement, the amended plans were made available to those people who have made earlier submissions on the basis that they could make further submissions during the hearing. 10I therefore granted leave for the applicant to amend the application and rely on amended plans as the changes are made in response to matters raised by the experts and would address or reduce the contentions raised by council. The experts had been given time to assess the amendments and their evidence could be heard within the allocated hearing. I was satisfied that there would be no prejudice to council and that the amended application would facilitate the just, quick and cheap resolution of the matters in dispute. 11I also made an Order under s 97B of the EPA Act that the Applicant pay the council's costs thrown away as a result of the amended application. The costs are to be as agreed or assessed. 12As a result of the amendments and further joint conferencing, the experts have agreed that the issues in dispute have been resolved and council does not press the contentions in the Amended Statement of Facts and Contentions. 13The amended application for which consent is sought is for a residential flat development in two buildings. The upper building contains 1 x 4 bedroom and 3 x 3 bedroom units, including one affordable housing unit (unit 4), and a basement car park for 12 cars, including one visitor space. The lower building comprises 1 x 3 bedroom unit (unit 5). The planning controls 14The site is zoned Residential 2 under Manly Local Environmental Plan 1988 (LEP) and development for the purpose of a residential flat building is permissible with consent as an innominate use. 15Manly Development Control Plan for the Residential Zone 2007 Amendment 1 (DCP) applies to the development. Part 3 provides development controls for residential development in different sub zones. The site is within residential density sub zone 5 which includes a minimum residential density of one dwelling per 500 sq m; a maximum floor space ratio (FSR) of 0.45:1 (cl 3.4); a maximum wall height of 8.0 m (cl 3.5); a parapet may extend 0.6 m above the proposed external wall height where it is considered by the council to be appropriate to the design of the development (cl 3.5.6); a minimum front setback of 6m or the prevailing street setback; a minimum rear setback of 8 m and a side setback not less than 1/3 the height of the adjacent external wall of the proposed building (cl 3.6.4); and minimum open space of 55% of the site area of which 35% is to be soft open space. With the exception of the residential density control, the amended proposal complies with these numerical standards. 16Draft Manly Local Environmental Plan (Draft LEP) has been exhibited and is a relevant consideration under s 79C of the EPA Act. Under the draft LEP, the site will be within Zone R2 (General Residential). Residential flat buildings are prohibited in the R2 zone. 17Draft Manly Development Control Plan (Draft DCP) contains similar provisions to those in the DCP that are relevant to the application. 18Although the application was lodged on 18 May 2011, the parties agree that the current version of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies to the site. 19Division 1 of Part 2 applies to infill affordable housing. Clause 10 specifies that Div 1 applies to development for the purpose of a residential flat building if permissible with consent on the site under an environmental planning instrument (cl10(1)(a)). Division 1 also applies if the site is within an 'accessible area' (cl10(2)). The parties agree that the site meets these criteria. 20Clause 14 of SEPP ARH provides standards that cannot be used to refuse development consent which include site area (cl 14(1)(b)); landscaped area (cl 14(1)(c)); deep soil zone (cl 14(1)(d)); solar access (cl 14(1)(e)); parking (cl 14(2)(a)) and dwelling size (cl 14(2)(b)). The proposal more than complies with these standards. 21Clause 16 provides that the requirements of State Environmental Planning Policy - Design Quality of Residential Flat Development (SEPP 65) continue to apply to the proposal. 22Clause 16A - Character of local area provides: A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The evidence 23The Court visited the site and surrounding area and heard evidence on the unamended application from a number of objectors, including representatives of 1, 2 and 6 West Street and the North Harbour and Balgowlah Heights Precinct Committees. 24The key concern of the residents was that the proposed residential flat building was uncharacteristic of development in the local area which is predominantly detached dwelling houses. The owner of 2A West Street undertook a survey of residential development within 250 m radius of the site, which indicated that of the 300 residential properties surveyed, 218 are detached housing, 20 are duplexes, 44 are townhouses, 10 are flats and 8 are flats/units. 25The objectors considered the building to be too high and too big and that it would result in unacceptable impacts on their amenity, particularly a loss of privacy from the number of dwellings overlooking their properties and the increased noise that would result from the increased number of people and cars. Concerns were also raised about overshadowing, loss of outlook, removal of trees and the extent of excavation. 26In the objectors' opinion, the proposal did not meet the requirements of the DCP and was not an appropriate development on the site. 27The above issues were reflected in the contentions raised by council in relation to the unamended scheme. 28The objectors also noted that the existing traffic arrangement near the site in West Street and at the intersection of New and Lewis Streets are dangerous and that this would be exacerbated through the increased car movements generated by the proposal. They raised concerns about drainage, potential damage to their properties from excavation, impacts during construction, the provision of affordable housing and its costs. Council did not include these as Contentions. 29The further submissions made in response to the amended application maintained the concern that the development of a residential flat building on the site was uncharacteristic of the area and would result in unacceptable impacts. 30The Court was provided with Statements of Evidence and Joint Reports from experts in relation to traffic, arboriculture and access. However, these experts were not required for cross examination as the issues in dispute were resolved through the amended plans and the imposition of conditions. 31The Court heard expert planning and urban design evidence from Mr J Vescio, for the applicant, and Mr Stray and Mr MacDonald, for the council. These experts explained how the matters raised in the Contentions had been resolved through the amended plans. In particular, they explained why the design of the proposed development would be compatible with the character of the local area, which had been the key dispute between the parties prior to the amendments. 32The experts agree: * on the extent of the local area and that the predominant character of the area is buildings in landscaped settings, the majority of these buildings are detached dwellings. * the changes to the application have reduced the bulk, height and footprint of the proposal. In particular, the provision of a landscape corridor between the buildings reflects the existing subdivision and built form to open space pattern on the east side of West Street. * the provision of a landscape corridor between the upper and lower buildings addresses outlook and privacy issues for 2A West Street, retains Tree 25 and provides opportunities for canopy tree planting which will soften and screen the upper building. * The reduction in height of the upper building and changes to the roof form eliminate the overshadowing to the kitchen window of 2/2 West Street. The reduction in the size of the terraces and the provision of privacy screens will eliminate privacy impacts. * The height and bulk of the lower building (unit 5) and its 20m setback from the eastern boundary will not impact on the landscape character of the site or the residences at 105A Woodland Road. 33The experts note that there are non compliances with the numerical controls in the DCP for height, setback and number of storeys. The experts agree that these variations are minor, will not result in unacceptable impacts and meet the objectives for the controls. The amended proposal has a FSR of 0.423:1 which is below the permissible maximum of 0.45 in the DCP. The proposal provides 54.5% of site area as landscape area (992 sq m including 806 sq m of deep soil) which exceeds the requirement in the DCP for a landscape area of 30% of site area (546 sq m) of which half must be deep soil (273.15 sq m). 34The proposal is for 5 units and therefore has a residential density of one dwelling/364 sq m which does not comply with the residential density control in the DCP of one dwelling/500 sq m. The experts agree that, despite this non compliance, the bulk and amenity impacts of the proposal are not inconsistent with existing development, particularly the nearby townhouses, nor with the desired future character of the local area. 35Mr Vescio notes that the existing and proposed planning controls envisage between 1-6 dwellings on the site and that various forms of residential development are permissible. In his opinion, the proposal would not appear as a residential flat building as, unlike the existing townhouse developments, there is no driveway along the length of the development that could provide a clear view of the extent of the development. 36The experts agree that the design of the proposal is compatible with the existing and desired future character of the local area. 37The experts also addressed the other issues raised by the objectors (Contention 8) and concluded that these had been satisfactorily addressed by the amendments. In particular, the setback of the upper level of unit 1 would open up view corridors for the townhouses at 1 West Street. The excavation, while considerable, would be contained within the footprint of the building and had been supported by geotechnical reports. Conditions requiring dilapidation reports and a construction management plan have been included. There will be no change to the predevelopment drainage. The car park ramp is fully enclosed and will not result in noise or light spill. Findings 38The experts agree that it is useful in the assessment of compatibility of the design of the development with the character of the local area to have regard to the principles in Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191. The development does not need to be the same to be compatible but it should have acceptable physical and visual impacts. 39The experts agree that the amended application will have acceptable physical impacts. In particular, issues relating to overshadowing, privacy and outlook have been resolved. The experts also agree that the proposal will have an acceptable visual impact based on the principles established by Roseth SC in Project Venture where at [26-28] he states: 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees. 40Within the local area agreed by the experts, the development will be visually most prominent when viewed from the street and from Brimbecom Park as well as from adjoining properties. Within this visual context, the essential element that makes up the character is buildings in landscaped settings. 41Buildings in the visual catchment of the site, particularly in West Street and when viewed from Brimbecom Park are predominantly two to three storey dwellings. Within this immediate catchment there are also townhouses and the site is between a duplex and a residential flat building. The key characteristic of the majority of these buildings is that they are separated and softened by landscaping, including canopy trees. The amended proposal responds to this character by breaking up the development into two buildings. 42The lower building is single storey and is setback about 20 m from the rear boundary. This setback is consistent with the building line established by the battleaxe and townhouse development that fronts onto Brimbecom Park. Trees in the setback area are to be retained and reinforced. The height, setback and landscaped character of this building achieves an appropriate relationship of built form to surrounding space and an acceptable visual impact which is compatible with development in the local area. 43The front setback of the upper building is consistent with the setback of 2 and 6 West Street. The building height is below that of these adjoining buildings and the upper floor provides considerable setbacks which will provide view corridors through the site from the townhouses at 1 West Street. The proposal when viewed from West Street is compatible with the height, setback and landscape character of the street and the varied building designs. 44The upper building steps down the site with landscaped terraces, and it is separated from the lower building by the landscaped corridor. This corridor reflects the adjoining subdivision pattern and provides opportunities for canopy trees, which will soften and partially screen the building. While the upper building contains four units, its height, footprint, setbacks and landscape setting is not dissimilar to that of adjoining development and the character within the local area. 45A greater number of dwellings could be provided on the site based on the minimum dwelling size in SEPP ARH. Further, under the existing LEP and DCP as well as the draft LEP and DCP, the site could be subdivided into three lots each with a dwelling and that opportunities to provide a "secondary" dwelling, dual occupancy development or multi unit development also exist. The proposal is therefore not incompatible with the desired future character of the area sought by the planning controls. 46For these reasons, I accept the evidence of the experts that the design of the development is compatible with the character of the local area and satisfies the requirements of cl 16A of SEPP ARH. 47The other issues between the parties have been resolved. In addition, a number of issues raise by the objectors have been addressed by the amendments and proposed conditions. The other issues would not warrant refusal of the application. Orders 1. Leave is granted to amend the development application and rely on amended plans. 2. The appeal is upheld. 3. The development application (DA 126/2011) for a residential flat building comprising 5 units and basement parking for 12 cars at 4 West Street, Balgowlah is approved subject to the conditions in Annexure A. 4. The exhibits, except Exhibits 2, F and M, may be returned. 5. Under s97B, the applicant is to pay the costs of the council that are thrown away as a result of amending the development application, as agreed or assessed. _______________________ Annelise Tuor Commissioner of the Court ANNEXURE A ********** 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: 11 December 2012