Angelo v Manly Council
[2004] NSWLEC 528
•13 September 2004
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Angelo v Manly Council [2004] NSWLEC 528
PARTIES:
APPLICANT
Danny Angelo
RESPONDENT
Manly Council
CASE NUMBER: 10586 of 2004
CATCH WORDS: Development Application
LEGISLATION CITED:
Manly Local Environmental Plan 1988
CORAM: Tuor C.
DATES OF HEARING: 13/09/2004
EX TEMPORE DATE: 13/09/2004
LEGAL REPRESENTATIVES
APPLICANT
Mr M A Staunton
SOLICITORS
Staunton Beattie
RESPONDENT
Mr R Graham, solicitor
SOLICITORS
Abbott Tout
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
13 September 2004
10586 of 2004 Angelo –v- Manly Council
JUDGMENT
This is an appeal against the refusal by Manly Council (the council) of a development application to provide a loft, balcony and new roof on an existing house at 69 Wood Street, Manly.
The site, its context and the history of the application are provided in the Statement of Basic Facts. The site is zoned Residential under Manly Local Environmental Plan 1988 (LEP 1988) and it is within a Foreshore Scenic Protection Area. The Residential Development Control Plan (Residential DCP) is also relevant.
The Court heard from resident objectors:
Mrs R Lee, 1/62 Osborne Road, Manly; and
Mr I Cook, 63 Osborne Road, Manly.
Their main concern was loss of views. Mr N Islam, for the council, and Mr R Fleming, for the applicant, provided expert planning advice. The key issue in this case is whether the non-compliance with the floor space ratio (FSR) and height controls result in an unacceptable impact on views and the streetscape.
The experts initially did not agree on the existing and proposed FSR of the building. The difference in opinion was based on whether car parking was included or excluded in the FSR calculations. After a joint conference they agreed that the FSR of the existing building was 0.75:1, which would increase to 0.807:1. This represents a gross floor area increase of about 16 sq m.
The FSR control in the Residential DCP is 0.6:1. The FSR of the existing and proposed development therefore exceed this numerical control. The question is whether the proposal meets the objectives of the FSR control. The key objective being:
cl 3.3.1(d) to minimise disruption to views, loss of privacy and loss of sunlight to existing residential developments as well as the proposed development.
The experts agreed that the proposal technically did not comply with the height control in cl 3.4 of the Residential DCP, which permits a maximum wall height of 6.5 m. Roof structures may extend an additional 3m with a maximum roof pitch of 35 degrees. Rooms can be provided within this roof form, but only if they do not detrimentally affect the amenity of the locality or result in additional impact on views.
Mr Fleming’s opinion was that the additional loft space was contained within this permissible roof form and even though there was a technical non compliance with the wall height the impact was less than that which would result from a complying roof form.
Mr Islam’s opinion was that the height and roof form are a maximum control. Any proposal would need to be assessed against the objectives for height and view sharing in the Residential DCP. A 35 degree roof form would not necessarily achieve these objectives.
The objectives for height in cl 3.4 of relevance are:
b)to provide for building heights that are consistent with the locality; and
c)to minimise disruption to views, loss of privacy and loss of sunlight to existing residential development.
In relation to objective b), the proposal is of a similar height to other buildings in the street and therefore meets this objective.
The controls in relation to view sharing of relevance in cl 3.8 are:
a)variation to the development requirements of the DCP will only be considered where they do not result in further view loss from neighbouring properties; and
b)the assessment of the extent of a nature of views will be made from the standing position (1.6 m eye height) within the main living areas and from associated terraces and balconies of existing and proposed developments.
The property that would be most affected by the proposal is 1/62 Osborne Road. The experts disagreed on the importance of the view loss to this property. Mr Islam’s opinion was that the view loss needed to be considered in the context of non compliance with the FSR and height controls. In his opinion the proposal, if it complied with the controls, would achieve reasonable view sharing, but as the view loss was a direct result of non compliance with the DCP, its impact was unacceptable.
Mr Fleming held the contrary view that the impact on view loss was less than would result from a roof form. While he recognised the proposal would reduce views from 1/62 Osborne Road this view was, in his opinion, already compromised as it looked over the existing roof of No. 69 and that its main view was over No 71.
I do not accept Mr Fleming’s opinion. The main view, as stated in the DCP, is to be assessed from the living area of 1/62. The proposed development is in the centre of this view and will clearly impact upon it to the extent that the central view of the water and part of the landform on the other side of the harbour will be removed. Side views will remain but from this position trees obscure the view over No. 71. This loss of view is as a direct result of non-compliance with the FSR control and I therefore find it to be material and unacceptable.
The height control envisages a maximum roof form of an additional 3m within a 35 degree angle. Gables can only intrude into this form if they do not impact on views. I do not accept Mr Fleming’s opinion that the loft space is within a complying roof form. If the 35 degree pitch above 6.5 m wall height is applied to the north elevation the proposed loft does not fit within this space and results in additional view loss not contemplated by cl. 3.4.2(c). I accept that the maximum roof form would need to be assessed against its impact on views as stated by Mr Islam.
The proposal does not comply with 3.8.2(a) in that the variations to the DCP do result in further view loss to adjoining properties. This view loss does not achieve objective (b) of the view sharing control to minimise view loss whilst still recognising the development potential of the site. The site has more than achieved its development potential under the DCP and further development as proposed will be at the expense of the adjoining neighbours, particularly 1/62.
The variations to the FSR and height control are therefore not supported and the application must fail.
Orders
The orders of the Court are:
1. The appeal is dismissed.
2.The development application for alterations and additions to an existing house at 69 Wood Street, Manly, is determined by refusal.
3. The exhibits may be returned.
______________________
Annelise Tuor
Commissioner of the Court
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