Land and Environment Court New South Wales Medium Neutral Citation: Kirzner v Manly Council [2013] NSWLEC 1016 Hearing dates: 21-22 January, 2013 Decision date: 29 January 2013 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. 45/12 for a new dwelling and pool is refused consent. 3. The exhibits, other than exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: new multi-level dwelling, foreshore scenic protection area, height, bulk and scale, removal of tree identified as part of a tree stand to be retained. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Zhang v Canterbury City Council (2001) 115 LGERA 373 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 Category: Principal judgment Parties: Aleksandr Kirzner (Applicant) Manly Council (Respondent) Representation: Mr Graham McKee (Applicant) Mr Adam Seton (Respondent) McKees Legal Solutions (Applicant) Marsdens Law Group (Respondent) File Number(s): 11093 of 2012 Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 45/12 (the proposal) by Manly Council (the Council) to construct a new dwelling and swimming pool, at 61 Gurney Crescent, Seaforth (the site). 2The appeal was subject to mandatory conciliation on 21 January 2013, in accordance with the provisions of s34AA of the Land and Environment Court Act 1979. Mr Seton advised that the Respondent did not have delegated authority to enter into a conciliated agreement with the applicant, as the development application had been refused consent by the Manly Independent Assessment Panel (MIAP). Consequently, the conciliation conference was terminated pursuant to s34AA(2)(b) following the site inspection and the proceedings dealt with as a hearing held forthwith, pursuant to s34AA(2)(b)(i). Issues 3The Council's contentions in the matter can be summarised as: * The proposal does not comply with the Council's controls for density; floor space ratio; wall height; number of storeys; front, side and foreshore setbacks; open space; pool height above ground level and buildable area. As a consequence of these non-compliances, the proposal is inconsistent with the desired future character of development in the area; * The proposal is excessive in bulk and scale and is an overdevelopment of the site; * The extent of cut and fill proposed is significant; * The proposal will result a disruption of the visual character of the site in terms of retention of vegetation and will have a detrimental impact on the amenity of the Foreshore Scenic Protection Area. The site and its context 4The site is located on the Middle Harbour waterfront, with a site area of 714.5 square metres. The site is approximately 14 metres wide and is irregular in shape. It falls steeply from Gurney Crescent to the south, towards Middle Harbour. 5There is a three storey dwelling under construction and nearing completion to the west of the site, at 63 Gurney Crescent. There is an older style residence to the east of the site, at 59 Gurney Crescent. Background and the proposal 6The proposal is for a multi-level dwelling and swimming pool. Minor amendments were made to the proposal following the joint conferencing of the planning experts and tendered as Exhibit A. Planning Framework 7The site is within Zone No 2 Residential Zone, pursuant to Manly Local Environment Plan 1988 (LEP 1988) and the proposal is permissible with consent. The relevant objectives for Zone 2, at clause 10, include the following: (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, (h) to encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment, 8Clause 17 of LEP 1988, Visual and aesthetic protection of certain land, states the following: The council shall not grant consent to the carrying out of development unless it is satisfied that the development will not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area. 9The site is zoned E3 'Environmental Management' under the provisions of the draft Manly Local Environment Plan 2011 (draft LEP) and the proposal would be permissible with consent. The objectives for the E3 Zone are as follows: To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values. To provide for a limited range of development that does not have an adverse effect on those values. To protect tree canopies and provide for low impact residential uses that does not dominate the natural scenic qualities of the foreshore. To ensure that development does not negatively impact on nearby foreshores, significant geological features and bushland, including loss of natural vegetation. To encourage revegetation and rehabilitation of the immediate foreshore, where appropriate and minimise the impact of hard surfaces and associated pollutants in storm water run-off on the ecological characteristics of the locality, including water quality. To ensure that the height or bulk of any proposed buildings or structures have regard to existing vegetation, topography and surrounding land uses. 10The proposal is subject to the provisions of the Manly Development Control Plan for the Residential Zone 2007 - Amendment 2 (DCP 2007). The relevant objectives of DCP 2007 include the following: f) To protect the amenity of existing and future residents; h) To minimise the impact of new development, including alterations and additions, on privacy, views, solar access and general amenity of adjoining and nearby residences; i) To provide view sharing for both existing and proposed development; j) To maximise the provision of open space for all residential development; 11The Summary of Development Standards, at clause 3.1 of DCP 2007, applicable to the site, which is identified as 'density sub-zone 7 - mauve' by the Residential Density and Height Sub-Zone Map of DCP 2007, are as follows: * Minimum site area of 1150m2 (for allotments with a 1:4 slope or greater); * Maximum FSR 0.4:1; * Minimum open space 60% of site and 40% of the open space as permeable area; * Maximum wall height of 8m (Figure 4, for allotments with a 1:4 slope or greater). 12The objectives of the FSR control, at clause 3.4.1 of DCP 2007, are as follows: a) To assist in controlling the bulk of buildings; b) To ensure the scale of development does not obscure important landscape features; c) To ensure the scale of development is consistent with the existing and desired character of the residential areas; d) To minimise disruption to views and loss of privacy to adjacent and nearby development; and e) To provide sunlight access to private open spaces within the development and maintain adequate sunlight access to private open spaces and to habitable rooms of adjoining dwellings. 13Clause 3.4.2(b) of DCP 2007 states the following in relation to calculating FSR for allotments that are less than the minimum site area: On sites which are less than the minimum site area required in the relevant density sub-zone, the Council may consider a variation to the floor space ratio provided the application can demonstrate the objectives of the DCP can be achieved. This variation shall be limited to the allowable FSR for the minimum lot size in the relation density sub-zone. In sub-zone 7, the minimum site area for the purpose of this clause is 750m2. 14The relevant objectives for the building height control, at clause 3.5.1, are: a) To regulation the height of buildings by specifying maximum wall and roof heights; b) To assist in controlling the bulk of buildings; c) To provide for building heights that are consistent with the prevailing building heights in the locality; d) To minimise disruption to views from adjacent and nearby residential development and from public spaces; 15Clause 3.5.4 of DCP 2007, Number of Storeys, states that buildings shall not exceed two storeys, unless specific site constraints warrant voiding this requirement. 16The relevant objectives for setback controls, at subclause 3.6.1, include the following: a) To maintain and enhance the existing streetscape; b) To provide privacy; e) To facilitate view sharing; h) To maintain adequate space between buildings to limit impacts on views and vistas from private and public spaces; 17Subclause 3.6.4 of DCP 2007 states that side setbacks are to provide sufficient access to the side of properties to allow for property maintenance, planting of vegetation and sufficient separation from neighbouring properties. In all residential sub-zones, the setback between any part of a building and the side boundary must not be less than 1/3 the height of the adjacent external wall of the proposed building. 18Subclause 3.6.9 of DCP 2007 states that the setback from the foreshore shall be a minimum of 15m from the mean high water mark. Gazebos, pergolas, barbeques, aviaries, cubby houses and the like make be permitted within the foreshore setback, provided they are designed to complement the natural or established landscape character. 19The relevant objectives for the open space controls, at subclause 3.7.1, are: a) To provide open space for the recreational needs of the occupier and provide privacy and shade; b) To retain important landscape features and vegetation; c) To encourage appropriate tree planting and maintenance of existing vegetation; d) To enhance the amenity of the site, streetscape and surrounding area; e) To retain and augment remnant populations of endemic native flora and fauna; j) To maximise soft landscaped areas; 20Subclause 3.7.3(a) of DCP 2007 requires developments to maximise the retention and protection of vegetation including trees. 21The relevant objectives for swimming pools and spas, at subclause 3.8.2 of DCP 2007, are: a) Swimming pools and spas shall be built on or in the ground and not elevated more than 1m above natural ground level; b) This height may be varied if it can be demonstrated the pool and its curtilage would not detract from the amenity or character of the neighbourhood; f) On properties adjacent to the foreshore, in-ground swimming pools and spas may be located within the 15m setback provided no part of the pool structure projects more than 1m above existing ground level; 22Clause 5.3 of DCP 2007 provides specific aims, objectives and controls for Gurney Crescent and Clavering Road, Seaforth. The general aims and objectives for this precinct, at subclause 5.3.1, are: a) To identify areas on each site where development is preferred in order to provide both site specific and cumulative ecological, visual and water quality benefits; b) To identify the characteristics of the subject land that require protection and to develop standards that encourage that protection: and c) To protect the amenity of the subject land and its locality for existing and future residents. 23The specific aims and objectives for this precinct, at subclause 5.3.2, include: a) To encourage residential design that responds to each site and its surrounds; b) To encourage preservation of the ecological values of each site and its surrounds; d) To encourage maintenance of the visual character of the locality; and e) To implement the findings of the study entitled Development Analysis of E and F Precincts in Abandoned Warringah Transport Corridor (ERM 2000). 24At subclause 5.3.5 of DCP 2007, trees identified as 'major trees - retained' on plans Gurney Cres 1 and Gurney Crescent 2 (Figures 22 and 23 of DCP 2007) shall be retained and only removed with the approval of Council, following consideration of an ecological assessment, a visual assessment, an aborist's report and identification of mitigation measures aimed at achieving the objectives and findings of the ERM 2000 study. The Angophora tree, referred to as T14, is identified by Figure 23 as part of the tree stand to be retained and is located outside the buildable area for the site. Public submissions 25The neighbour at 63 Gurney Crescent provided evidence on site. His objection to the proposal can be summarised as: * The proposal significantly exceeds the FSR, height and side setback controls and encroaches on the foreshore setback and this is unfair as he had to substantially comply with these controls when his dwelling was approved in 2008; * The proposal is not consistent with the building height in the locality and it will be excessively bulky and visually dominate his dwelling; * The proposal will have an adverse impact on the Foreshore Scenic Protection Area of Middle Harbour; * He objects to the removal of the tree identified as T14; * The proposal will compromise his privacy on his rear terraces; * The proposal will overshadow his property. Expert evidence 26Mr Andrew Minto provided expert planning advice on behalf of the application and Mr Steven Layman provided expert planning advice on behalf of the Council. Is the bulk and scale of the development compatible with the character of the locality? Evidence 27The planning experts agree, in relation to the amended proposal (Exhibit A), on the following: * The amended proposal has a FSR of 0.55:1 (based on the minimum site area of 750m2 as per subclause 3.4.2(b) of DCP 2007); * The amended proposal has a FSR of 0.58:1 (based on the actual site area of 714.5m2); * The amended proposal has a maximum wall height of 11.81m (at the south-western corner of bedroom 2); * The amended proposal is 4 storeys; * The required side setback, being 1/3 of the wall height, is 2.66m on the eastern side and 3.94m on the western side and the side setbacks are 1.2m on the eastern side and 1.1m and 1.6m on the western side; * The amended proposal has 70% open space, however Mr Layman says that some of the open space area does not meet the minimum dimensions of 3m and 12m2 to qualify for inclusion in the open space area calculation; * The pool and deck encroach 3.3m into the foreshore setback and the deck is 2m above the natural ground level at the south-eastern corner. 28In relation to the amendments made to the proposal (Exhibit A), Mr Layman says that the changes are not substantive and do not result in any reduction of the impacts of the proposal. In Mr Minto's opinion, the proposal was acceptable prior to the amendments made to the scheme and the only benefit of the amendments is that the numerical non-compliance with the controls has been reduced. 29Mr Minto notes that the site is narrow, with a width of approximately 14m and that complying with the side setback control of DCP 2007 (1/3 wall height) would result in an ill-proportioned building. 30In Mr Layman's opinion, the position of the site on the foreshore, with a high level of visibility from Middle Harbour, distinguishes this site from nearby dwellings further up the hill. Mr Layman says that the proposal is not consistent with adjoining development on the waterfront and the proposal does not satisfy the DCP 2007 objectives for FSR, wall height, setbacks and open space. 31In Mr Minto's opinion, notwithstanding the non-compliances with the numerical controls of DCP 2007, the proposal will result in a built form which is, in terms of height, bulk and scale, in keeping with the built form character of the locality, when viewed from both Middle Harbour and Gurney Crescent. 32The experts disagree on whether T14 should be retained. Mr Layman says that because the proposal extends beyond the buildable area for the site identified by Figure 23, it requires the removal of T14 and the proposal does not satisfy the requirements for exceptions to the buildable area. Mr Minto says that the proposal is largely compliant with the buildable area depicted by Figure 23 and the two Angophora trees to be retained, at the waterfront, will provide substantial screening when the proposal is viewed from Middle Harbour. Findings 33The emphasis to be given to a DCP is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decisionmaking process but it is not in itself determinative. 34The objectives of the FSR control (at subclause 3.4.1 of DCP 2007) are to ensure that the scale and bulk of the development is consistent with the existing and desired character of the area; that the scale of the development does not obscure important landscape features; to minimise disruption to views and to maintain privacy and solar access to adjoining dwellings. 35The objectives of the building height control (at subclause 3.5.1 of DCP 2007) are to assist in controlling the bulk of buildings; to provide for building heights that are consistent with the prevailing building heights in the locality and to minimise disruption to views from other dwelling and the public domain. 36The objectives of the setback control (at subclause 3.6.1 of DCP 2007) are to maintain adequate space between buildings to limit impacts on views from other dwelling and the public domain; to provide a sufficient setback from neighbouring properties and to allow for maintenance access and planting of vegetation. 37The objectives for the open space control (at subclause 3.7.1 of DCP 2007) are to retain important landscape features; maintain existing vegetation and to maximise soft landscaped areas. 38The amended proposal represents a substantial footprint in proportion to the site area, which is relatively small when compared to the minimum site area of 1150m2, for allotments with a slope of 1:4 or greater. The side setbacks are narrow and unrelieved for the length of the building and do not allow for the planting of vegetation, nor a comfortable setback from the western neighbour. 39The proposal occupies the maximum width of the site, leaving only a narrow setback on either side and is substantially higher that surrounding development, relative to natural ground levels, in order to maximise the building envelope, resulting in a building of significant bulk and scale on a relatively small site. This has been ameliorated to some degree by the stepping back of the development on the upper levels of the southern elevation, however, the proposal will present as a four storey block when viewed from Middle Harbour, dominating the natural scenic qualities of the foreshore. 40The proposed removal of T14 contributes to the impression that the proposal seeks to maximise its building envelope without sufficient regard to existing landscape features and vegetation. 41The encroachment of the pool and deck into the foreshore setback is acceptable, if not ideal, in my opinion, because subclause 3.8.2(f) of DCP 2007 permits a swimming pool to be located within the 15m setback and the 2m projection of the deck above natural ground level, while greater than the 1m permitted by the subclause, is a function of the steep slope of this site. 42There are a number of inefficiencies in the planning and layout of the proposal and I am satisfied that a new design can still achieve a generous dwelling, whilst paying greater attention to sensitively siting the proposal and acknowledging the natural scenic qualities of the foreshore and the context. 43Subclause 3.4.2(b) provides that the minimum site area of 750m2 may be used for calculating the FSR, if the applicant can demonstrate that the objectives of the DCP can be achieved. I am not satisfied that the objectives for the FSR control have been met and consequently the FSR calculation for the proposal should be based upon the actual site area, resulting in a FSR of 0.58:1. 44Having regard to the relevant development standards and their objectives and the evidence provided, I find that the proposal would have a detrimental impact on the amenity of the foreshore and that the proposal is excessive in bulk and scale and represents an overdevelopment of the site. Is the proposal consistent with the desired future character of development in the area? Submissions 45Mr Seton submits that the exhibition of the draft LEP closed on 29 June 2012 and it has now been adopted by the elected Council and sent to the Department of Planning and the Minister for making. It is therefore certain and imminent and consequently the objectives for the E3 Zone should be given significant weight in the determination. Mr Seton notes that the foreshore allotments are distinguished in the draft LEP from the allotments further up the hill, as the foreshore allotments are proposed as Zone E3 'Environmental Management', while the allotments on the eastern side of Gurney Crescent and northern side of Bligh Crescent are proposed as Zone R2 'Low Density Residential'. 46Mr McKee submits that the scale and bulk of the proposal is consistent with the existing and future character of the locality and that the proposal is screened from Middle Harbour by the two retained Angophora trees on the foreshore. Findings 47Pursuant to s 79C(1)(a) of the EPA Act, the following must be considered in terms of the draft LEP: (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved) 48The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted. Relevantly, Spigelman CJ states, at par 5 of Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289, the following: Mason P outlines the line of authority in the Land and Environment Court to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its "certainty and imminence". I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft. 49On the question of whether the draft LEP is imminent and certain, I accept that the draft LEP is well advanced in the plan making process and that it should be given weight. In my opinion, the issue of imminency is less critical than the issue of certainty in determining the weight that should be attributed to the draft LEP. 50I therefore give significant weight in the determination of this appeal to the objectives of the E3 Zone under the draft LEP, which are to provide for low impact residential development that does not dominate the natural scenic qualities of the foreshore; to ensure that tree canopies are protected; to ensure that development does not negatively impact on nearby foreshores and that the height and bulk of any proposed buildings are to have regard to the topography and existing vegetation. 51The development standards under the provisions of the draft LEP limit the bulk and scale of dwellings, with a FSR development control of 0.4:1 and a maximum wall height of 8.5m for the site. The amended proposal, as agreed by the planning experts, has an FSR of 0.58:1 and a maximum wall height of 11.81m. For reasons discussed earlier in the judgment, I am satisfied that the amended proposal represents an over development of the site and that it cannot be considered a 'low-impact residential development'. It would not be in harmony with the desired future character of the locality and the proposal would have an adverse impact on the visual catchment of Middle Harbour and the Foreshore Scenic Protection Area. Conclusion 52Having regard to the relevant development standards and their objectives and the evidence provided, I find that the proposal is excessive in bulk and scale and would have a detrimental impact on the amenity of the foreshore and that it would not be consistent with the desired future character of the foreshore allotments and should therefore be refused. Orders 53The orders of the Court are: 1.The appeal is dismissed. 2.Development Application 45/12 for a new dwelling and pool is refused consent. 3.The exhibits, other than exhibits 1 and A, are returned. Susan O'Neill 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: 29 January 2013