Land and Environment Court New South Wales Medium Neutral Citation: Linforth v Manly Council [2012] NSWLEC 1352 Hearing dates: 4-5 September 2012 Decision date: 19 December 2012 Jurisdiction: Class 1 Before: Tuor C Decision: See paragraphs 53-55 Catchwords: DEVELOPMENT APPLICATION - residential flat building, design, amenity impacts, view loss, landscaping. Legislation Cited: Environmental Planning and Assessment Act Manly Local Environmental Plan 1988 Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Category: Principal judgment Parties: Steven & Stanislawa Linforth (Applicant) Manly Council (Respondent) Representation: Mr A Galasso SC (Applicant) Mr S Kondilios, solicitor (Respondent) Solicitors McKee's Legal Solutions (Applicant) Maddocks Lawyers (Respondent) File Number(s): 11221 of 2011 Judgment 1This is an appeal against the refusal by Manly Council (council) of a development application (DA 294/2011) under the Environmental Planning and Assessment Act 1979 (EPA Act) for a residential flat building at 31 The Crescent, Manly (site). 2The key contention is whether the development adversely impacts on the amenity of adjoining residents, principally through view loss. Site and locality 3The site is on the northern side of Commonwealth Parade and is set above the street behind a sandstone retaining wall. It is wedge shaped with frontages to The Crescent (9.155 m) and Commonwealth Parade (15.855 m) and a site area of 533.4 sq m. The site has a fall of approximately 6 m from north to south. 4The site currently contains a part one and part two storey detached dwelling with vehicular access from The Crescent. Pedestrian access to the site is from both Commonwealth Parade and The Crescent. 5The site is opposite a waterfront reserve on the southern side of Commonwealth Parade, which provides extensive views across Manly Cove to Sydney Harbour. Adjoining the site to its east, is a seven storey residential flat buildings (29 The Crescent), and to the west is a three storey residential flat building (33 The Crescent). To the north, on the opposite side of The Crescent, is a recent four storey residential flat building (12 The Crescent). 6Development within the vicinity of the site is a mixture of residential development, ranging from detached dwelling houses to residential flat buildings of varying heights, styles and periods. Background and proposal 7The development application was lodged on 7 November 2011 and notified to adjoining and nearby properties. The applicant appealed against the deemed refusal of the application on 21 December 2011. Council subsequently refused the application on 19 April 2012. The applicant was granted leave to rely on amended plans (Exhibit A) which were renotified. These are the plans for which consent is sought. 8The development is for the demolition of an existing dwelling and garage and the construction of a three storey residential flat building consisting of three dwellings with basement car park for six cars. The development includes: * Ground floor - unit 1 - one bedroom plus study accessed off Commonwealth Parade and below ground parking for six cars accessed off The Crescent. * First floor - unit 2 - three bedroom plus study accessed off The Crescent. * Second floor - unit 3 - three bedroom plus study accessed off The Crescent and via a lift. 9The proposal includes an outdoor common area fronting The Crescent, an access pathway adjacent to the eastern boundary and bin storage adjacent to the northern boundary. 10The building appears as three storeys from Commonwealth Parade and as two storeys from The Crescent. 11During the proceedings, the applicant agreed to the imposition of conditions which include a reduction in the height of the building by 650 mm and an increase in the west side setback to 1.5 m. Plans which illustrate these changes were tendered (Exhibit G). The planning controls 12The site is zoned Residential 2 under Manly Local Environmental Plan 1988 (LEP) and the proposed development is permissible with consent. 13Clause 10(3) of LEP 1988 provides: 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 the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 14The relevant objectives the Residential 2 zone include: (b) to delineate, by means of development control in the supporting material, the nature and intended future of the residential areas within the Municipality. (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 the residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations, 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 2 which includes a maximum floor space ratio (FSR) of 0.75:1 (cl 3.4); a maximum wall height of 9.8 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 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 50 % of the site area of which 30 % is to be soft open space. The proposal does not comply with these numerical standards and the key dispute between the parties is whether, despite this non compliance the proposal meets the objectives of the controls and results in acceptable impacts, particularly in terms of view loss. 16Draft Manly Local Environmental Plan (Draft LEP) has been exhibited and is a relevant consideration under s79C of the EPA Act. Under the draft LEP, the site will be within Zone R1 (General Residential). Multi dwelling housing and residential flat buildings are permitted in the R1 zone with consent. Clause 4.3(2) of the Draft LEP proposes a maximum height limit of 11 m (to the highest point of a building). Clause 4.4(2) identifies a FSR of 0.75:1. The Draft LEP has been forwarded to the Minister to be made and the parties agree that it is "imminent and certain" and must be given weight. 17Draft Manly Development Control Plan (Draft DCP) contains similar provisions to those in the DCP that are relevant to the application. The evidence 18The hearing commenced on site and the Court heard evidence from residents who object to the proposal. The site view included the immediate locality and the units adjoining the site at 12, 29 and 33 The Crescent. The key concerns were the loss of views to the harbour. Mr W Collins, who spoke on behalf of owners of 12 The Crescent, indicated that if the proposed building height were reduced by 700 mm, acceptable view sharing would be achieved. 19The objectors also raised concerns about the proposal's non-compliance with the planning controls, overshadowing, proximity to side boundaries, noise from excavation, loss of privacy and inadequate landscaping. 20Expert evidence on urban design was heard from Mr S Kennedy, for the applicant and Ms G Morrish, for the council, and on town planning from Mr A Minto, for the applicant and Ms K Jones, for the council. 21The key dispute between the experts is whether the cumulative effect of the proposal's non compliance with FSR, height, side setback and open space provisions in the DCP results in adverse impacts on adjoining properties, particularly view loss from 12 The Crescent. 22The experts agree that the non compliance with FSR is not of itself an issue, provided the impacts of the development are acceptable. They also agree that the height and bulk of the building is consistent or less than other buildings in the area. Height 23The experts agree that the maximum wall height for the site is 9.8 m. The wall heights of the proposal range from 7 m (northern end) to 11.2 m (southern end). They disagree on whether the allowance for a 600 mm parapet is appropriate, which would achieve a maximum height of 10.4 m. 24Due to the slope of the land, the building is three storeys fronting Commonwealth Parade and two storeys fronting The Crescent. The experts agree that the variation to the wall height control occurs at the southern end of the building and that the northern end of the building is about 2 m below the maximum wall height control. 25The experts also agree that a building which complied with the wall height control at the northern end would have a greater impact on views than the current proposal. They accept that the proposal could be higher in the context of other buildings, if view loss were not a consideration. 26The experts disagree on the degree of non compliance of the height of the building at the southern end. Ms Jones considers that the wall height is the maximum control and that the additional 600 mm parapet is subject to council's acceptance that it is appropriate to the design of the building. Mr Minto considers that the additional 600 mm for a parapet is an allowance for a flat roof structure, if a pitched roof were proposed, an additional 3 m above the wall height is permitted, which would have a greater impact on views. 27Mr Minto considers the proposed height meets the objectives of the control but acknowledges that with changes to the design, the height of the building could be lowered to further reduce view loss. 28Mr Kennedy considers that with changes to the slab design, the basement entry and the floor to ceiling height of the first and second floor the overall height of the building could be reduced by 650 mm. The applicant would accept a condition to this effect. Ms Morrish considers that the proposal could be reduced by 700 mm. Side setback 29The DCP requires that the setback between any part of a building and the side boundary should not be less than 1/3 the height of the adjacent external wall of the proposed building. The experts agree that the DCP would require setbacks between 2.33 m and 3.73 m. The proposal is setback 1.5 m along the east boundary and 1.0m along the west boundary. 30 A reduction in the height of the building by 650 mm would also reduce the side setback requirement to between about 2.1 m and 3.5 m. The applicant has agreed to a condition which increases the western setback to 1.5 m. 31Mr Minto considers that despite the non compliance, the setbacks meet the objectives of the control. He notes that the shape of the site and its narrow width constrain the extent of side setbacks that can reasonably be provided. Further the side setbacks are consistent with those of the existing house and other setbacks in the area. In his opinion, the eastern side setback is acceptable as it adjoins the driveway of 29 The Crescent and there is adequate separation between the buildings. Similarly, the western side setback is acceptable as it provides sufficient space for landscaping and no unreasonable impacts such as overlooking of 33 The Crescent. 32Ms Morrish and Ms Jones consider that a reasonable development of the site could occur with three metre side setbacks and that this would provide greater opportunity for landscaping and view corridors. Although Ms Morrish accepted, in her oral evidence, that a nil setback for the basement parking level and a two metre setback for the floors above would achieve an acceptable result. Open space and landscape area 33The experts agree that the proposal does not comply with the open space and landscape area control in the DCP, but disagree on the extent of non compliance. The disagreement centred on the provision of landscaping in the side setback areas. Ms Morrish and Ms Jones consider that the setback (at least of the upper floors) should be increased to provide landscaping between the proposal and the adjoining developments. For the reasons discussed above, Mr Minto considers that adequate side setbacks are provided and that the increased setback to 33 The Crescent will enable a landscaped screen to be the provided along this boundary. 34Further, Mr Minto considers that the proposal meets the objectives of the control, in particular, the large open space terraces and landscaping meet the needs of the development and enhance the amenity of the site, streetscape and surrounding area. In his opinion, the landscaping is appropriate in the context of the site. Views 35The experts assessed the proposal against the principles for view loss in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. The experts agree that the view loss from 29 The Crescent is minor and that the main impact on views would be from 12 The Crescent. Photomontages (Exhibit B) provide a comparison of views from 12 The Crescent between the existing views, a complying envelope, the proposal, and the proposal lowered by 150 mm and 350 mm. 36Photomontages of the proposal lowered by 650 mm to 700 mm were not provided but the experts generally agreed that this would reduce the view loss from 12 The Crescent and increase the scope of panoramic water views available over the top of the proposed development. Mr Collins indicated that the residents of 12 The Crescent would be satisfied if the proposed development was lowered by 700 mm. 37The experts disagreed on the reasonableness of the impact of the proposal on the "slot views" from 12 The Crescent. Ms Morrish and Ms Jones considered that the side setbacks should be increased, particularly on upper levels, to improve view retention. 38Mr Minto considered that view loss had been minimised through careful siting of the proposal as "the bulk is generally found on the southern façade where the building has been pushed down the hill to assist in minimising view loss." In his opinion, the reduced height of the northern edge retained more views than a complying development. These views which include South Head, the land water interface and the depth of harbour towards the city outweigh the loss of 'slot views' to the water. Privacy 39The experts agree that there are no unreasonable privacy impacts. Although Ms Morrish raised concerns about the size of the "gaps" in the privacy screen on the west facade, which may enable overlooking from secondary bedroom windows of the proposal to 33 The Crescent. 40Mr Kennedy stated that the screens on the facades are a design feature of the proposal and will limit privacy impacts on adjoining development. Further, he noted that the offsetting of windows, the use of the rooms and the difference in floor levels will also achieve acceptable privacy. Findings 41The parties agree that the DCP must be considered as a fundamental element in, or focal point to the decision making process. Mr Kondilios, for the council, submits that: The Court should give significant weight to the planning controls in the Council's DCP. The statutory framework in Manly is unusual in that: • there are no development controls in the Council's LEP, and • there is only one residential zone within the Manly local government area. Objective (b) to the Residential Zone in the Council's LEP states that the Council is: to delineate, by means of development control in the supporting material, the nature and intended future of the residential areas within the Municipality. The intended future of the residential areas within the municipality are set out in the DCP.The preamble to Part 3 of the DCP makes clear that: • Previous approvals do not create a precedent for an application for a similar form of development. • The controls in the DCP represent the Council's and the Community's expectations as to what will be the nature, scale and form of future development in the local government area. • Where development does not comply with the controls, the development must not only satisfy the DCP objectives, but must also demonstrate that a more desirable outcome is achieved. 42The key question before the Court is whether, despite the non compliance with the DCP controls, the development meets the objectives of the controls, principally in relation to view loss, and achieves a more desirable outcome. 43Clause 2.3 of the DCP requires developments to be designed with consideration of the context of the site and its constraints. For multi-unit development, an assessment of the context of the development within 100 m of the site is required. 44The site is wedged shaped with a narrow frontage to The Crescent (9.155m), which widens as the site slopes towards Commonwealth Parade (15.855m). The site is located between two residential flat buildings with heights that exceed the proposal (No 33 has a building height of RL 29.03 and No 29 has a building height of RL36.97). The context within 100 m of the site is also predominantly residential flat buildings of varying heights and setbacks. While these developments predate the current planning controls, they are unlikely to be redeveloped. Further, the Draft LEP, which is agreed to be imminent and certain, permits a maximum building height of 11m. Within the existing and desired future context, the proposal is not excessive in its height, bulk or scale. 45The key concern of the council experts and the objectors was the impact of the proposal on views. The controls in the DCP for FSR (cl 3.4), building height (cl 3.5) and setbacks (cl 3.6) all include objectives in relation to view loss and view sharing. It was generally agreed that the other objectives of these controls were met. The DCP also includes objectives for the maintenance of views (cl 4.3): (a) To maintain continued access to existing views to the city, harbour, ocean, bushland, open space and recognised landmarks or buildings from both private property and public places (including roads and footpaths). (b) To minimise loss of views from adjoining or nearby properties and public places, whilst recognising development may take place in accordance with other provisions of the Plan; and (c) To maintain and share views with existing and future Manly residents. 46The key impact on views results from the height of the building. The proposed height is RL 27.575 this would be reduced to RL26.925, in accordance with the condition agreed to by the applicant, which I accept should be imposed. While there would remain a minor exceedence of the permissible wall height at the southern end, the building is significantly below the permissible wall height at the northern end, which minimises the impacts on views. Considering the wall height and roof structure permissible in the DCP, as well as the maximum wall height proposed under the draft LEP and the extent of views retained, I accept that view loss has been minimised and that the proposal meets the objectives for maintenance and sharing of views in the DCP and results in a more desirable outcome than a building which sought to maximise its height at the northern end of the site. 47The side setbacks will to a lesser extent impact on views. I accept that the condition to increase the western side setback to 1.5 m should be imposed. With this amendment, the impact is acceptable given that the proposed setbacks are consistent with that of the existing house, the loss of views directly attributable to the side setbacks is minor and, when balanced against the views retained through the reduction in building height, is acceptable. 48I am satisfied that the proposal, as amended, will provide adequate open space and landscaping which will provide for the needs of the occupants of the units and be consistent with the landscape character of other development in the area. It would be desirable for greater landscaping to be provided within an increased side setback area. However, the narrow width of the site, its slope and splayed shape place constraints on development, particularly the basement car park, which restrict the ability to increase the setback to provide greater soft landscaping. 49The experts agree that the proposal will generally achieve acceptable privacy, however, I accept Ms Morrish's concerns that the placement of the louvres for the privacy/architectural screen on the western elevation are generally not positioned next to windows or have "gaps' which may enable overlooking. A condition should be imposed to require the louvres to be positioned to limit overlooking. 50The other issues raised by objectors would not warrant refusal of the application. 51For the above reasons, I accept that even though the proposal does not comply with a number of numerical controls in the DCP, it achieves the objectives of these controls. The impacts of the proposal, as amended, on adjoining development will be acceptable, particularly, the retention of views and the form of development is consistent with the existing context and that envisaged by the planning controls. 52Although the proposed changes may be imposed as conditions, it is preferable that they be incorporated into a final set of drawings and conditions to ensure consistency and certainty in the development consent. Directions 53The applicant is to file and serve plans by 21 January 2013, which incorporate the changes set out in the draft conditions (Exhibit F) as illustrated in plans (Exhibits E and G). The plans shall also include a planter box along the western boundary sufficient to provide screen planting to a height of 2.5 m. 54The parties are to file agreed conditions, which reflect this decision by 28 January 2013. 55Liberty to restore on two days notice. _______________________ 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 December 2012