Barecall Pty Ltd v Manly C

[2006] NSWLEC 673

Land and Environment Court

of New South Wales

CITATION:

Barecall Pty Ltd v Manly C [2006] NSWLEC 673

PARTIES:

APPLICANT
Barecall Pty Limited

RESPONDENT
Manly Council

FILE NUMBER(S):

10571 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Alterations and additions to 4th floor of residential flat building, Height, FSR, view impacts

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Manly Local Environmental Plan

DATES OF HEARING:

27/10/2006

EX TEMPORE JUDGMENT DATE:

10/27/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Patterson, solicitor
of Wilshire Webb

RESPONDENT
Mr R. Graham, solicitor
of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

27 October 2006

10571 of 2006 Barecall Pty Ltd v Manly Council

JUDGMENT

Background.

1 This appeal was lodged against council's refusal of a s96 Modification application for alterations and additions to a residential flat building, particularly the addition of 2 units on the fourth floor of an approved development located at 42 North Steyne, Manly. A number of issues were identified, which can be summarised as follows:

• height bulk and scale,
• excessive floor space (FSR),
• excessive height,
• loss of use and privacy,
• car parking,
• Foreshore Scenic Protection Area,
• public interest.

2 For the assessment of these issues, the parties agreed to Mr C Young being the Court appointed expert for planning. Following his initial assessment of the proposal and conferencing between the parties, further amendments were undertaken. Consequently Mr Young has presented his final report (Exhibit 1), which supports the conditional approval of this development.

The property.

3 The subject site is located on the western side of North Steyne, between The Cors Raglan Street. The site has rear frontage to Henrietta Lane. The site has a frontage of 12 to North Steyne, 12.165m to Henrietta Lane and a depth of approximately 39.0m. The area of the site is approximately 464m2.

4 A four storey mixed use building occupies the site. There is development consent for a nightclub in the basement, cafe on ground floor and restaurant on the first floor. The second and third floors are occupied by residential units. There is large plant room and exhaust equipment that occupies the middle portion of the roof.

5 The neighbourhood comprises mainly commercial development with the Manly Beach to the east, immediately across North Steyne. An eight storey residential flat building known as the "Pacific Waves" is across Henrietta to the immediate west of the site at 9-15 Central Avenue, Manly. The North Steyne hotel adjoins the site to the south, and a four storey building is to the north of the subject site

The proposal.

6 Development Application DA 278/05 is described as "alterations and additions to the existing mixed commercial/ Residential Flat Building including new fourth floor containing two (2) one-bedroom units". The proposal is to replace the existing plant room on the top (4th) floor and replace it with two one-bedroom units.

7 Proposed units are in a semi-detached arrangement. The units will utilise the existing roof structure for a roof terrace at the front and rear of the building.

8 The proposed height of the building is 15.2m. The DCP allows 10m at the front of the site and a maximum of 12m for the rest of the site. The proposed top floor is in the 12m height limit.

9 The existing FSR of the site is 3.31:1, which exceeds the maximum permitted FSR of 2.5 for area within the 10m height zone and a FSR of 3.0:1 for areas outside the 10 height zone. The proposed FSR is 3.85:1.

Planning Controls

10 Manly LEP 1998. The site is located within a Business Zone pursuant to the Manly LEP 1988. The site is within the Foreshore Scenic Protection Area.

11 The Manly DCP for the Business Zone 1989 (Amendment No 4) is the main DCP for the site.

12 Manly DCP for Energy Efficient Buildings (1998), Manly DCP for Access, SREP 23

The evidence.

13 The main issue in this matter concerns the impact of the proposed 2 units on the fourth level of the existing building, in terms of their intrusion into the view corridors of surrounding residential units. As I noted, some amendments were undertaken to the proposal in response to this principal issue, resulting in Council acceptance of the CAE’s opinion that the amended proposal merited conditional consent.

14 Mr Youngs detailed assessment of the various elements of the issues is as follows:

Issue 1: Height, bulk and scale

This issue is related to issue 4 in relation to amenity impact upon the apartment building to the rear.
The site inspection revealed that the rooftop area approved as plant room and storage contains little if any plant but does contain storage of items for maintenance and commercial operations.
It is considered that no additional increase in building bulk nor height should be permitted to accommodate additional or existing plant displaced due to this proposal and should the application be approved conditions to this effect can be imposed.

No particulars regarding what constitutes overdevelopment of the site are available at present but it is assumed that suggested non-compliance with the numerical standards of height, FSR and carparking are considered to constitute overdevelopment. These matters are dealt with separately in the specific issues related to each.
It is also assumed that if each of these standards is considered to meet the performance standards or objectives of the DCP then the proposal is not overdevelopment but may still have other impacts.
A photomontage from the North Steyne frontage has been supplied (Appendix 9) to determine impact of bulk and scale on that frontage. It is not considered that the proposal has a detrimental impact in regards to bulk and scale from Henrietta lane nor the unit development of 9-15 Central Avenue nor views further distant.

In regards to the sections of the MLEP and DCP cited;
• The proposal does increase availability and variety of dwellings. The question remains as to whether the North Steyne frontage has an adverse effect on the amenity and character of the Municipality. Based on the information available at this time it is considered the proposal to the rear of the site has a positive impact. (MLEP Cl 3(1) (e) & Cl 3(1)(j)). It is also considered that the proposal does not have an adverse impact upon the amenity and character of the Municipality when viewed from the public domain of North Steyne or beyond.
• The proposal does revitalise and rehabilitate the site in a residential area and, in my opinion does not degrade the amenity of surrounding residences. The aesthetic quality of the Municipality is not considered to be degraded by the facade to the public domain as shown in the North Steyne photomontages. (MLEP Cl 4(a)(viii)).
• In regards to the cited objective (b) of the Business zone, it is considered, on the information available, that the development is compatible with the amenity of the surrounding areas.
• In considering the Objectives of the DCP, D2 is noted, D5 in regards to FSR is considered in Issue 2, D6 & D7 are considered in later issues.
• Clause 1.4 in the DCP and the definition of "townscape" can be considered by a site inspection, the North Steyne photomontage and the streetscape elevations of Appendix 8. Building form, heights, design, setbacks and other design matters in this location are varied and best described as `eclectic'. On this basis it is considered the proposal will still retain a "unified" quality of the location. Applying the 3-part test of the definition of "townscape", the distant views are along North and South Steyne and from building tops in the Manly town centre. It is considered the proposal is in harmony with the surroundings. The second test looks to spaces formed by the building and elements and the rooftop area is considered to fit the character. The third test is details and relationships. The proposal seeks to down play the existing building detail on the roof top area, with similar elements to adjoining development and is considered to meet the "townscape " definition and character. It is also considered the proposal meets the Design Principles of the DCP. In addition these matters relate to the "compatibility" of the proposal in its surroundings. This Planning Principle is set down in Project Ventures Developments v Pittwater Council [2005] NSWLEC 191. The Senior Commissioner in that matter stated that Compatibility is different from sameness and that the most apposite meaning in an urban design context is capable of existing together in harmony. The principle states that two questions should be asked;

• "Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites ".

  In this matter it is my opinion the physical impacts are positive on the surrounding development and do not constrain development potential of surrounding sites.
  • " Is the proposal's appearance in harmony with the buildings around it and the character of the street?
  It is my opinion that the proposal is in harmony.
  On this basis I consider the proposal to be compatible with the surrounding area.

  The Applicant has now supplied information relative to existing location of plant and is included in Appendix 11 to this statement.
  Issues 2: Excessive Floor space:
  It is agreed by the parties that the FSR exceeds the overall FSR figure in the DCP.
  Clause 1.1 of the DCP is set out in Section 5.2 above.
  The site falls within two height zones (see plans DA02 & DA03 issue E) and hence has a complicated requirement for FSR.
  Council has approved the building shell as presently existing although the upper level plant room would not be included in FSR calculations. See CC No 100/01 dated 19 April 2001.

  Use of the plant rooms as existing for floor space would increase the FSR without a change in building bulk or scale.

  The proposal is to use this plant room and add additional floor space to provide for two 1 bedroom units.

  Consistency of application of FSR standards of the DCP, particularly in the immediate vicinity is a relevant issue. At the time of compiling this statement no information on that consistency has been submitted or available.
  Attached, as Appendix 8, is a streetscape elevation obtained from Councils files for a previous application refused by Council. The streetscape is included to indicate

  heights of adjoining buildings where information is available and can be compared to the Photo's of Appendix 2.
  The SEE states that while the total building FSR exceeds the FSR figure, the residential component meets the 2:1 maximum set down in the DCP.
  The applicant has supplied diagram DA01 issue C (attached as Appendix 7 to this statement) which states that the existing total FSR is 3.35:1 and the proposed is 3.84:1 with the residential component of that figure being existing 1.44:1 and proposedl.93:1. Based on this diagram, the additional floor space is 227.9 sqm or 0.49:1 FSR.
  Based on the information available, the application fails the total FSR DCP standard -but complies with the residential FSR standard. The amount of commercial floor space is not proposed to alter.
  The submitted plan shows 300 sqm of commercial floor space equivalent to 0.65:1 in the basement of the building, which has no impact on bulk or scale of the building.
  Consideration of Clause 1.1 of the DCP does give an exception for the residential component subject to non-compromising of listed values.
  An analysis of existing FSR in adjoining or nearby buildings has not been possible.
  Issue 3; Excessive height:
  The site is shown in the DCP as having two height controls of l2m and 1 0m. The location of these standards on the proposal and the existing building are shown on plan numbers DA02 & DA 03 issues E attached in Appendix 7.
  Council has approved the rebuilding of the former cinema and set a height control for the roof deck at 12m in DA 215/98.
  In that report the officers state;
  "The proposed development complies with the height limit for the front section of the site at 9.7m. The proposed maximum height for the plant enclosure of 14.69 curves down to a proposed 12.5m wall height for the roof deck. The 14.69m wall height to this rear of the roof deck is required to enclose the plant and storage facilities located on the roof of the building. This is considered desirable in regards to the aesthetics of the development and meets the objectives of the Development control Plan for roof top structures. As this is to the rear of the development it will not be visible from the street level and is considered acceptable for this proposal. "

  There is agreement between the parties that the building as existing does breach the numerical heights.
  Council has accepted these heights in the approval granted (CC 100/01 of 19 April 2001), albeit for plant room and storage.
  Amended plans show a reduced height for the bedrooms at the rear of the proposal and the additional areas proposed to be no greater in height than that approved, albeit over a larger area.

  The DCP does permit increases in height to fulfil Councils Townscape objectives subject to 2 criteria set down in 1.2(2) of the DCP.
  These are that the structure is designed as an integral part of the building in such a way as to appear an appropriate part of the overall townscape and not conflict with overall townscape objectives and secondly that any roof space is not designed or used as habitable space.

  The proposal would fail the second of these requirements as the roof space is clearly designed for habitable use (as is the case in the adjoining building and others in the locale) but Council has approved the height of the building based on these criteria so it is assumed that the existing approved building envelope satisfies these criteria.
  The matter to then be considered is whether the additional development beyond the approved envelope would satisfy the same test.
  Clauses 3 & 4 then are also to be considered. These add to the consideration for height variation by assessment against adjoining building heights and the existing building envelope.

  Further Section 1.5 of the DCP refers to maximum building height for heights of existing, non-complying buildings and refers back to Clause 2 (iv).
  A photomontage and streetscape elevations have been supplied for the frontage to North Steyne to assess the impact regarding the height association with adjoining buildings and consistency of application of Councils DCP in the area between The Corso and Raglan Street on North Steyne.
  Based on the information presently available it is my opinion that the proposal at the rear of the site is a positive improvement and meets the objectives of the Townscape other than the use as habitable space and is generally within a building envelope that Council has found previously satisfactory in regards to height.
  Any increase in development at the rear of the site will not impact upon the streetscape from Henrietta Lane.

  The impact on North Steyne is considered by site inspection, the North Steyne photomontage and the streetscape elevations in Appendix 8 to be acceptable townscape, of equivalent height to the adjoining building and lower than others in the immediate vicinity.
  Issue 4; Loss of View and Privacy:

  At the time of compiling this statement access to all the relevant objectors properties has not been available particularly units 506, 605 & 606 9-15 Central Avenue. Unit 505 has been visited and is the closest unit to the proposal.
  In considering the concept of view loss, privacy and the matters of bulk and scale as per Issue 1, the impact on the existing amenity is to be addressed.
  In the MLEP clause 4(a)(viii) which sets out the Policies and Strategies the consideration is to "not degrade the amenity of surrounding residences or the aesthetic quality of the Municipality."
  Objective D6 of the aims and Objectives of the DCP appears to be the most relevant here seeking controls of building form "to achieve a consistent and coherent townscape appropriate to the locality."
  Section 1.4 of the DCP again relates to position and townscape which is defined and proposes examination of an application from 3 perspectives;
  (i) from a distance, outside the locality, and then along the routes and from the viewpoints leading towards the locality;
  (ii) the spaces within the locality formed by the buildings and the elements;
  (iii) the buildings themselves: their details and relationship to each other.
  

  The photographs accompanying this statement as Appendix 2 seek to provide views from these locations to examine the proposal for Townscape.
  In addition the photomontages presented by the applicant are considered to assist in this consideration.
  Based on the photomontages and the photos in Appendix 2, the development to the rear of the site is considered to be a positive improvement to the amenity of the area from which it can be

  seen, being the adjoining units and distant higher level views of the Whistler Street Carpark Level 12 for example.
  The additional floor space in this area has no detrimental impact upon views. Indeed it is considered to be a positive impact. The reduced ceiling height in the amended plans and alteration to mechanical plant items assists to improve views.
  The proposal is designed to safeguard privacy and appears to meet the building separation suggested standards of the Residential Flat Design Code to SEPP65 of 12m between habitable roomsibalconies between the apartments at 9-15 Central Avenue and the proposed upper level development.
  The development to the North Steyne frontage is limited to generally the pergola area as existing and causes little if any loss of view. It is considered that any extension on this upper level should not reduce the view and if possible increase the views available from the adjoining apartment building at 9-15 Central Avenue. Amended proposals from the applicant seek to achieve such a view improvement.
  The proposal is not visible from Henrietta Lane but the upper frontage areas are visible from North Steyne and the beach promenade.
  In considering the proposal from the North Steyne frontage the photos of Appendix 2 show that with the sites pergola as a reference point, the proposal will be visible from soiree aspects but when viewed in association with the existing streetscape heights, bulk and scale, particularly to Raglan Street, will not be detrimental to the streetscape.
  Principles of view sharing have been set down by the Court in the case Tenacity Consulting v Warringah [2004] NSWLEC 140. Senior Commissioner Roseth in paragraphs 25 - 29 of that judgement sets a 4-step assessment. As follows;
  "25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) to decide whether or not view sharing is reasonable, I have adopted a four-step assessment.

  26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.
  27 The second step is to consider from what part of the property the views are obtained. for example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

  28 the third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
  29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. "
  Applying the steps based on the photomontages of the applicant;

  • Firstly the assessment of the views to be affected
    The photos of Appendix 2 and the photomontages show water views, headlands and in parts water/land interface. The photomontages show the views to be preserved and in some cases improved.

• Secondly to consider which part of the property the views are obtained. The views are across the site from the rear of the apartment building however Council height controls are established to promote a concept of lower buildings along the beachfront. The site inspection from unit 505 show that views from living areas, kitchen etc will not be impacted upon to any significant degree. Photos in Appendix 2 show views from other areas of the outdoor living area where tables and chairs are located will be affected to a negligible degree. Appendix 9 shows the view impact from unit 505 from the balcony and living area location.
  
• Thirdly to assess the extent of the impact.
  Based on the Senior Commissioner's suggested scale I consider the impact to be negligible on the apartments of 9-15 Central Avenue which have been able to be visited.
• Fourthly the assessment of the reasonableness of the proposal causing the impact.
  While the proposal does not meet the development standards it is within generally the building envelope as existing or where beyond that envelope, does not adversely impact upon the views. It is considered the impact upon the views in reasonable.
  Notwithstanding the above comments. A principle that should be considered in this application is whether the existing view impediments can be reduced and the views improved by better design and location of elements.
  The lift overrun is a point in question and the possibility of lowering the roof of the present building and relocation or rearrangement of ducting etc on the rooftop. The applicant has advised that a number of changes including lowering of the rear roof level and changes to mechanical plant elements will be proposed (See Appendix 10).
  Based on the information available, it is my opinion that the severity of the view loss in the current design is negligible and satisfies the objectives of view sharing of Councils DCP.
  It is also my opinion that the separation of habitable rooms is satisfactory for this form of development in a town centre situation and superior to existing privacy and habitable room separation existing in the immediate vicinity.
  On the issue of Privacy, the units of 9-15 Central Avenue do little to safeguard their privacy and are exposed for viewing from many locations. The adjoining site to the north on North Steyne has the possibility to be overlooked across the northern boundary (see photo 26 Appendix 2). This could be minimised by a privacy device and condition if approved.
  Issue 5; Carparking:
  The officers report on the matter states that there exist on site seven carparking spaces, a loading dock and a visitor parking space.
  That report states that the amount of carparking required under the DCP for the current use of the building is sixteen (16) spaces.
  The applicant in the submitted SEE to the application states that the proposal will comprise a total of 8 units creating a demand under the DCP of 4 spaces plus 1.25 visitor spaces.
  Based on the previous approvals provided (DA 215/98), Council in the consideration of the conversion of the former cinema which included 4 units, Council accepted no spaces for the commercial component, but considered parking for the residential to be essential and also that a visitor space was not required.
  

  Council in May 2001 approved a s96 Application which increased the number of units to six (6) with the comment in the report that seven (7) carparking spaces as well as one (1) visitor space exist on site which meets the car parking requirements for the residential component of the DCP. No condition related to car parking was proposed.
  Based on these approvals, it is considered that carparking is required for the residential component only of the building in accordance with the DCP.
  The residential component of the proposal including the existing residential units is 6 x 1 bedroom units and 2 x 2 bedroom units.
  Based on the DCP requirements, this is 4 spaces for the 1 bedroom units at the rate of 2 spaces per 3 dwellings and 2 spaces for the 2 bedroom units at the rate of 1 per unit. A total of 6 spaces are required for the building.
  Visitor spaces are required at the rate of 1 per 6 units. This would add 1.25 spaces rounded to 2 spaces to the total.
  Council accepts there exists on site seven (7) spaces plus one (1) visitor space being a total of 8 spaces. This is the number required to comply with the residential component on the building for the DCP.
  Councils view is that if a surplus of spaces exists on site above the minimum required for residential then those spaces are for the commercial activity on site and should be preserved, requiring either additional spaces on site for the increased development or a s94 contribution if commercial spaces are lost.
  The applicant does not consider this view reasonable.
  I do not consider this a reasonable approach considering previous Council consideration.
  The proposal complies with the DCP and Councils previous decision on commercial component car parking and meets the Zone objective and objectives of the DCP.
  It is my opinion a carparking issue does not exist.
  Issue 6: Foreshore Scenic Protection Area:
  No guidance is available to consider this specific impact on the Foreshore Scenic Protection Area other than detrimental impact as setout in previous issues.

  If the impact of the proposal is assessed from the North Steyne frontage to be neutral or positive, i.e. not detrimental, than the consent authority can be satisfied and grant consent.
  Based on the site inspection, North Steyne photomontage and streetscape elevations, it is my opinion that the proposal does not have a detrimental impact upon the Foreshore Scenic Protection Area, is of similar height and scale to adjoining development and is compatible with surrounding development under the Project Venture Test.
  

  Conclusions.

15 Having considered the evidence and undertaken a view, I am satisfied that Mr Young has adequately addressed the outstanding issues and in the absence of any substantive challenge to his conclusions, I am satisfied to rely on them in granting conditional consent.

16 As one of the main elements of concern, is the intrusion of the proposed units into the view corridors from neighbouring units, I have assessed this from Mr Kler’s property, which is likely to be the most affected. I am satisfied that the proposed works will marginally increase the eastern views to Manly Beach and the ocean, at the same time as improving the outlook from this unit. Mr Kler acknowledged this improvement, subject to stringent conditions of consent being imposed to maintain this outlook. Accordingly, conditions of consent have been imposed to limit the height and type of landscaping at the new units.

17 In the ultimate, I am satisfied Mr Young has addressed the discretion allowed in the relevant controls and the concerns raised by objectors, so that his conclusion that the development of the rooftop area for residential can occur without detrimental impact on the adjoining residential development, enables development consent to be granted.

Court Orders.

1. The appeal is upheld.

2. Development consent is granted to DA No 278/05 for alterations and additions to the existing residential flat ruling including new fourth floor containing 2 x 1(one) bedroom units at 42 North Steyne, Manly.

3. The exhibits may be returned except for 1, 2, A and D.

___________________

R Hussey
Commissioner of the Court
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