Barkway v Manly Council
[2012] NSWLEC 1070
•22 March 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Barkway v Manly Council [2012] NSWLEC 1070 Hearing dates: 14 March 2012 Decision date: 22 March 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed.
2. Development Application No. 280/10 for a third storey addition is refused consent.
3. The exhibits, other than tab 18 of exhibit 1, 2 and 4 are returned.
Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling, height/bulk, view sharing, residential character. Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979Cases Cited: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21
Tenacity Consulting v Warringah [2004] NSWLEC 140Texts Cited: Manly Local Environment Plan 1988
Manly Development Control Plan for the Residential Zone 2007 Amendment 1Category: Principal judgment Parties: Mr Trevor Barkway (Applicant)
Manly Council (Respondent)Representation: Counsel
Mr J Thompson, solicitor (Applicant)Mr I Hemmings, barrister (Respondent)
DLA Piper Solicitors (Respondent)
Solicitors
Richie & Castellan Solicitors (Applicant)
File Number(s): 11141 of 2011
Judgment
COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 280/10 (the application) by Manly Council (the council) for alterations and additions to provide a third floor to an existing dwelling house at 37 Peronne Ave, Clontarf.
The appeal was subject to mandatory conciliation and arbitration on 14 March 2012 in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. The conciliation conference commenced on site and the Court, in the company of the parties and their experts, conducted a view of the adjacent area and neighbouring properties and heard from three resident objectors.
As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(ii).
Issues
The contentions in the matter that remain, following the conciliation phase, are whether:
- The proposal would unreasonably impact on views from both public and private properties in Peronne Avenue, Clontarf;
- The non-compliance with numerical controls of the Manly Development Control Plan for the Residential Zone 2007 would result in excessive bulk and impacts on the character of the area; and
- The height and number of storeys of the proposal is considered to be excessive.
The site and its context
No. 37 Peronne Avenue, Clontarf is located on the western side of Peronne Ave, on the low side of the road, overlooking Sandy Bay. The site slopes steeply from the street towards the intertidal zone, which reveals a large beach at low tide. The site has a frontage of 21.25 m and an area of 784.1 m2. The site contains a two storey dwelling with a basement area used for storage occupying the north western corner under the house. The roof is a low pitched gable form with the ridge of the main roof running parallel to Peronne Ave. The dwelling presents as a single storey dwelling when viewed from Peronne Ave.
Peronne Ave follows the contour of the land above the intertidal beach at Sandy Bay. Surrounding development comprises detached residential dwellings in landscaped settings with views of Middle Harbour and the Spit.
Background and the proposal
The Manly Independent Assessment Panel (MIAP) refused DA280/10 on 13 May 2011. Amendments were then made to the proposal, including increasing the third floor set back from the southern boundary and submitted to council for a s 82A of the Environmental Planning and Assessment Act 1979 (EPA Act) review of MIAP's determination. The s 82A review was refused by MIAP on 20 October 2011. The s 82A amended proposal (the proposal) is now before the Court.
The proposal is for a third floor addition, occupying part of the existing footprint on the northern side of the dwelling and provides a new master bedroom, ensuites, wardrobes and deck.
The planning framework
The site is located within Zone No 2, the Residential Zone pursuant to Manly Local Environment Plan 1988 (LEP 1988) and the proposal is permissible with consent.
Clause 10 of LEP 1988 provides zone objectives, including:
(3) 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.
The objectives for each zone are set out within a table contained in Clause 10 of LEP 1988. The relevant objectives for Zone No 2, the residential zone, include:
(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,
The site is subject to the provisions of Manly Development Control Plan for the Residential Zone 2007 - Amendment 1 (DCP 2007). The relevant objectives of DCP 2007 include, at 1.2:
(d) To increase the availability and variety of dwellings to enable population growth without having adverse effects on the character, amenity and natural environment of the residential areas;
(e) To identify the characteristics of the residential zone and ensure protection and to develop standards that encourage that protection;
(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;
(o) To encourage a responsible development approach resulting in design of architectural merit that interprets and complements site characteristics; streetscape and the surrounding built and natural environment;
(q) To ensure compliance with the objective of each standard;
Part 2 of DCP 2007, Primary Considerations and Actions, includes, at 2.4 Design Considerations. Clause 2.4.8, under subsection 'The Site', includes:
The design of development shall respond to the slope of the site, with the aim of minimising loss of views and amenity from public and private spaces. The lower side of the site, whether to the foreshore or a street, needs to integrate the design of the building with the topography by minimising its height and bulk. Large under-croft spaces can be avoided by integrating the building into the slope. Development on steeply sloping sites will require preliminary geotechnical investigation in accordance with the Manly DCP for Landslip and Subsidence 2001.
Part 3 of DCP 2007, Development Controls (including Assessment Considerations), includes numerical controls for the residential zone.
Floor Space Ratio (FSR)
The objectives for Section 3.4 Floor Space Ratio of DCP 2007 includes at 3.4.1:
(d) To minimise disruption to views and loss of privacy to adjacent and nearby development;
The site is located within the density sub-zone no. 7, identified by DCP 2007 as the colour mauve (clause 3.4.1 Table 3), which has a FSR control of 0.4:1. The proposed FSR is 0.41:1.
Building Height
The objectives for Section 3.5 Building Height includes at 3.5.1:
(c) To provide for building heights that are consistent with the prevailing buildings heights in the locality;
(d) To minimise disruption to views from adjacent and nearby residential development and from public spaces;
The control for building height for sloping sites is determined by a sliding scale graph (Figure 4), that accounts for the gradient of the site on the y axis and the maximum wall height on the x axis, based on wall heights and gradients measured on site (illustrated in Figure 7). The control for building height on the site, according to Mr Layman, for the respondent, is a maximum of 8 metres. This figure was unchallenged by Mr Kennan, for the applicant.
Clause 3.5.4 Number of Storeys states:
Other than within density sub-zones 1 and 2, and not withstanding the provisions of specific numerical height controls, buildings shall not exceed two storeys unless specific physical site constraints warrant voiding this requirement.
Clause 3.5.11 Existing Buildings states:
Where an existing building exceeds the maximum height permissible in this plan, any alterations and/or additions to the building shall not increase the overall height of the building.
Setbacks
Clause 3.6.1 Objectives for Setbacks includes:
(a) To maintain and enhance the existing streetscape;
(e) To facilitate view sharing;
(h) To maintain adequate space between buildings to limit impacts on views and vistas from private and public spaces;
Clause 3.6.4 Side setbacks includes:
(a) 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.
Maintenance of Views
The objectives for the maintenance of views at clause 4.3.1 include:
(a) To maintain continued access to existing views to the city, harbour, ocean, bushland, open space and recognise 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 the other provisions of this Plan
Relevant controls, at clause 4.3.2 include:
(a) The design of any development is to minimise the loss of views from neighbouring and nearby dwellings and from public spaces.
(b) Views between and over buildings are to be maximised and variations to side boundary setbacks, including zero setback will not be considered if they contribute to loss of primary views from living areas.
Evidence
Expert planning evidence was heard from Mr Neil Kennan for the applicant and Mr Steven Layman for the respondent.
The Court, in the company of the parties and their experts, conducted a view of three neighbouring properties on the high side of Peronne Ave and heard from an occupant at each property. The perceived impacts raised can be summarised as follows:
- The resident at 48 Peronne Ave is concerned that the proposal will breach the established ridge height on the low side of Peronne Ave and this will create a precedent for neighbouring properties. If the houses on the low side of Peronne Ave each adds an additional storey, this would impact on existing views of Sandy Bay enjoyed from the terrace at 48 Peronne Ave.
- The resident at 50 Peronne Ave is concerned that the proposal will obscure part of the existing views of the intertidal beach of Sandy Bay from their dining, living and terrace area; and
- The residents at 52 Peronne Ave are concerned that the proposal will obscure all their views of the intertidal beach of Sandy Bay and part of the view of the bay from their terrace and living room in both a sitting and standing position and from the kitchen and breakfast area from a standing position (as the view to the beach is currently not available from a sitting position due to the height of the window sill).
Bulk and FSR
The planning experts agree that the proposal does not comply with the FSR control for the site and they agree that the extent of non-compliance with the FSR is numerically minor.
According to Mr Kennan, the minor non-compliance with the FSR control would not be discernable and the proposal would be acceptable in terms of its bulk when viewed from Peronne Ave. The proposal would result in a dwelling that is consistent with the surrounding development.
According to Mr Layman, although the FSR non-compliance is minor, the elevation of the existing lower level above ground level at the rear combined with the height of the proposal elevate the bulk above ground and the impact of the proposal on the character of the area is as if the FSR were greater than what is proposed.
Number of storeys
The planning experts agree that the proposal will result in a three storey dwelling when viewed from the low side and that DCP 2007 controls permit a two storey building, 'unless specific physical site constraints warrant voiding this requirement' (DCP 2007 clause 3.5.4). According to Mr Kennan, there are many examples of dwellings in the vicinity that are greater than two levels when viewed from the low side.
Building Height
According to Mr Kennan, the side elevation of the proposal is not an extension of the existing side elevation as it is further setback from the boundary and therefore it is debatable as to whether the addition adds to the existing wall height. In Mr Kennan's opinion, the proposal is consistent with the objectives for building height in section 3.5.1 of the DCP.
According to Mr Layman, the proposal breaches the wall height control by 3.75 metres and this will result in the devastating view impact to No 52 Peronne Ave. In Mr Layman's opinion, the wall height is the overall height to the third storey eave and it is not relevant as to whether the proposal projects from the existing side elevation or is further setback.
Side Setback
The planning experts agree that the northern side setback of the proposal is 950 mm of the facade of the ensuite and 3 m of the facade of the main bedroom and wardrobe. The experts agree that the side setback on the northern side does not comply with the side setback control in the DCP.
The architectural drawing by Add-Style Home Additions (Drawing No 485 dated July 2011, provided to the Court, at tab 18 of Exhibit 1), does not indicate site boundaries, setbacks from boundaries, nor a dimension between the northern ensuite facade and wardrobe facade of the proposed third floor. I therefore must rely on the expert evidence of the planning experts as to the northern side setbacks.
In Mr Kennan's opinion, the northern side setback is consistent with the Zone 2 Residential Zone objectives (c), (d) and (h), contained in Clause 10 of LEP 1988:
(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,
(h) to encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment.
Mr Kennan is of the opinion that the northern side setback is a result of moving the proposal to the northern end of the existing footprint and it is consistent with the side setback objectives as the proposal will not adversely impact on the streetscape, nor the privacy of the adjoining dwelling and it would not unreasonably impact on views from private dwellings or the public domain.
In Mr Layman's opinion, the controls in clause 3.6.4 require a side setback of 1/3 of the wall height, which is a 3.88 m setback from the northern boundary. The side setback of the northern elevation does not comply and this results in adverse impacts on views from 50, 52 and the public domain and on streetscape character.
Character
According to Mr Kennan, the proposal will result in a part one storey and part two storey dwelling house when viewed from Peronne Ave and a three storey house when viewed from the beach and bay, which is consistent with surrounding development.
According to Mr Layman's oral evidence, the dwellings on the low side of Peronne Ave have a consistent ridge height and appear as single storey dwellings when viewed from Peronne Ave. The proposal will result in a two-storey appearance from Peronne Ave and this would result in adverse visual character impacts on the locality.
The Court, in the company of the parties and their experts, conducted a view of the site from the beach at Sandy Bay. While the style and form of dwellings varies considerably, the consistency of the overall heights of the houses on the low side of Peronne Ave, for the section of the road above the beach, is evident when viewed from the beach at Sandy Bay and forms a clear horizontal curve above the beach with a backdrop of vegetation.
View sharing
The assessment of the proposal's impact on views by the planning experts and residents was helped by the installation of height poles that identified the approximate location and height of the proposed development. The height poles indicate the profile of the original development application proposal and the s 82A proposal, before the Court, is located further towards the north. The position of the proposal, with reference to the height poles, was agreed by the experts during the site inspection.
Both planning experts referred to the principles on view sharing in Tenacity Consulting v Warringah [2004] NSWLEC 140 (Tenacity planning principle) in terms of the extent of the impact on views from private properties on the high side of Peronne Ave and the public domain. These state:
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.
The planning experts agree that the proposal will obscure existing views from the public domain towards Middle Harbour, including views of the Spit Bridge, from approximately the centre of the driveway crossover when heading north along the footpath. In Mr Kennan's opinion, the impact of the proposal on views to the beach, bay and Middle Harbour from the public domain of Peronne Street is minimal and in Mr Layman's opinion, the impact is devastating. A survey of pedestrian movement along Peronne Ave was provided to the Court (Exhibit B).
The planning experts agree that the impact of the proposal on the views from 48 Peronne Ave is negligible.
According to Mr Kennan, the proposal will have a minor impact on the views from 50 and 52 Peronne Ave. According to Mr Layman, the proposal will have a moderate impact on views from 50 an 52 Peronne Ave, in particular the intertidal zone of Sandy Bay when viewed from the living area and balcony of 52 Peronne Ave. Mr Layman also considered that the proposal would set a precedent for dwellings on the low side of Peronne Ave and the cumulative effect of this would be a devastating impact on the views from the houses on the high side of Peronne Ave.
Conclusion and Findings
Topography
The DCP 2007 controls, at 2.4.8 require buildings to respond to the slope of the site and integrate with the topography,
The design of development shall respond to the slope of the site, with the aim of minimising loss of views and amenity form public and private spaces. The lower side of the site, whether to the foreshore or a street, needs to integrate the design of the building with the topography by minimising its height and bulk. Large under-croft spaces can be avoided by integrating the building into the slope.
The proposal does not respond to the natural topography of the site, which falls steeply towards the rear of the site towards Sandy Bay. It seeks to add an additional level above the existing dwelling, rather than step down with the slope of the site. This is reflected in the breach of the height control.
Bulk and FSR
I agree with the planning experts that the extent of non-compliance with the FSR control for the site is minor. FSR however, does not account for the location of the proposed addition nor its height above ground level.
Number of Storeys
I agree with Mr Kennan that there are many examples of three and more storeys in the vicinity of the site, when viewed from the low side. The steep slope of the site constitutes a 'specific physical site constraint warranting voiding this requirement'.
Building Height
I accept Mr Layman's evidence that the proposal breaches the wall height control by 3.75 m and that the 'maximum wall height' control does not distinguish between a vertical extension of an existing wall or a vertical extension that is setback from the existing wall. The height control contemplates the overall height to the eave of the highest roof. The breach of the height control results in the adverse impacts on views from the public domain and 52 Peronne Ave.
Side Setback
I agree with Mr Kennan that the breach of the side setback control has resulted from moving the proposed third floor addition to the north, in an attempt to minimise the impact on the views from the dwellings on the high side of Peronne Ave. However, the proposal does breach the side setback control on the northern side, regardless of the motivation for doing so and the impact on the views enjoyed from 52 Peronne Ave remains significant.
Character
The proposal is inconsistent with the established height of buildings on the low side of Peronne Ave, which form a horizontal plane within the gentle curve above Sandy Bay's intertidal beach, when viewed from the beach and bay.
The proposal will result in a two storey appearance from Peronne Ave, in contrast to the existing dwellings on the low side of Peronne Ave inside the curve of the road above the intertidal beach and this would result in adverse visual character impacts on the locality.
View sharing
I accept the planning experts evidence that the view of Middle Harbour would be obscured from the centre of the driveway crossover when walking in a northerly direction.
I agree with the planning experts that the impact of the proposal on views of Sandy Bay and the intertidal beach from 48 Peronne Ave is negligible and therefore can be assessed qualitatively, with reference to the Tenacity planning principle, as minor.
I agree with Mr Layman that the impact of the proposal on views of Sandy Bay and the intertidal beach from 50 Peronne Ave is moderate.
I find that the impact on the views from the terrace and living areas of 52 Peronne Ave can be assessed qualitatively as being severe to devastating, as the majority of the intertidal beach will be obscured from view. The Tenacity planning principle contemplates, at paragraph 26, that a view of the interface between land and water is more valuable than one in which it is obscured.
As the impact on the views from the public domain and private dwellings arises as a result of non-compliance with the planning controls, I consider that the impact is unreasonable.
Precedent
Mr Hemmings, on behalf of the council, referred to Lloyd J's judgment in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 (Goldin), at paragraph 28-31, in relation to the issue of the proposal setting a precedent for future similar proposals on the low side of Peronne Ave and their potential cumulative impact on views to Sandy Bay enjoyed from dwellings on the high side of Peronne Ave and the public domain.
...if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.... Importantly, the Senior Commissioner found (at par [44]) that the present proposals had an undesirable visual impact. In other words, the present proposals satisfied the criteria identified by Sugerman J which give rise to a valid consideration of precedent: the present proposals were not "unobjectionable" in themselves and there was a sufficient probability for further applications of undistinguishable developments of the same class and in the same locality... In the present case there has been a finding of fact by the Senior Commissioner that there is more than a mere "chance or possibility" of such later applications.
I am not convinced that Lloyd J's decision in Goldin is relevant to this matter, as it is important to consider the merits of each individual application. I have therefore not given the issue of any precedent this proposal may set for the neighbouring dwellings on the low side of Peronne Ave any determinative weight.
DCP 2007 objectives
Mr Thompson, for the applicant, referred to Pearlman CJ's judgment in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 (page 27) in relation to the proposal's non-compliance with the numerical controls in DCP 2007.
The guiding principle, then, is that a development will be generally consistent with the objectives if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.
I find that the proposal is apathetic to the objectives of DPC 2007, for the reasons set out in paragraphs 44 to 56 of this judgment.
Conclusion
I consider that the proposed third floor addition to 37 Peronne Ave, Clontarf, is not consistent with the established building heights on the low side of Peronne Ave; has not been designed to minimise its impact on the loss of views and amenity from public and private spaces and does not respect the topography of its site.
Having regard to the relevant planning controls and the evidence provided, I find that the proposal would have a detrimental impact on the character of Peronne Ave and the views of the intertidal beach from 52 Peronne Ave and that the impact is of such consequence, that the application should be refused.
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. Development Application No. 280/10 for a third floor addition is refused consent.
3. The exhibits, other than exhibits tab 18 of 1 (architectural plan), 2 and 4 are returned.
Susan O'Neill
Commissioner of the Court
Decision last updated: 22 March 2012
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