Bell v Northern Beaches Council

[2023] NSWLEC 1212

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bell v Northern Beaches Council [2023] NSWLEC 1212

Hearing dates:

28 November 2022

Date of orders:

09 May 2023

Decision date:

09 May 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders:

(1) The Applicant is granted leave to rely on amended plans as set out in Condition 1 of Annexure A.

(2) The appeal is upheld.

(3) Development Application DA 2021/2590 for the construction of a single storey dwelling at 40 Pine Street Manly is approved, subject to the conditions in Annexure A.

(4) All Exhibits are returned, with the exception of Exhibits A, D and 2.

Catchwords:

DEVELOPMENT CONSENT – proposed new single storey dwelling house – carparking – landscaping – undersized allotment – public interest

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

Manly Local Environmental Plan 2013

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9, s 9.13

State Environmental Planning Policy (Resilience and Hazards) 2021

Cases Cited:

Goarin v Manly Council [2014] NSWLEC 1108

Texts Cited:

Manly Development Control Plan 2013

Northern Beaches Community Participation Plan 2019

Category:

Principal judgment

Parties:

James Frederick Bell (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
F Berglund (Respondent)

Solicitors:
Sattler and Associates Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2022/226498

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Northern Beaches Council (Council) of development application DA 2021/2590 (the DA) seeking consent for the construction of a single storey dwelling house including external access stairs through the adjacent public reserve, on a vacant allotment. The subject site is legally described as Lot 5 in Deposited Plan 939161 known as 40 Pine Street, Manly (the Site).

Site and Setting

2. I rely on the Statement of Facts and Contentions dated 16 September 2022 (SOFAC) (Exhibit 1) for much of the factual material below.

3. The Site is rectangular in shape with a frontage of 12.19 metres (m) and respective depths of 8.165m and 8.145m along the eastern and western boundaries. The site has a surveyed area of 99.4m². The site is atypical to the size and configuration of surrounding private properties and was subdivided from 9 and 11 Pacific Parade in 1908 and has remained vacant since this date.

4. The site consists of a grassed area, rocky outcrops, shrubbery, and a Sydney Blue Gum tree, and experiences a fall of approximately 4.5m that slopes towards the north (i.e. rear), representing an approximate slope of 55%. The site does not have vehicular access or a street frontage, but rather is located adjacent to a public walkway that forms part of the road reserve of Pine Street. The nearest public roads are Kangaroo Street and Pine Street, which are located approximately 45m to the north and approximately 60m to the east of the site respectively.

Background and Proposed Development

5. The site has been the subject of a previous development application (DA. 60/13) for the construction of a two-storey dwelling house. DA. 60/13 was refused by former Manly Council’s Independent Hearing and Assessment Panel on 19 September 2013.

6. The refusal of DA No. 60/13 was the subject of a Class 1 appeal in Goarin v Manly Council [2014] NSWLEC 1108 (Goarin). The appeal was dismissed.

7. On 22 December 2021, the current Development Application 2021/2590 (the DA) was lodged for the construction of a one storey dwelling house (the Proposed Development) with the Respondent.

8. The DA was publicly exhibited in accordance with the Northern Beaches Community Participation Plan 2019, from 20 January until 3 February 2022. As a result of the public exhibition, submissions from 16 households objecting to the DA were received. The submissions raised a number of concerns that are broadly categorised as follows:

1. Unsuitable access for the occupants of the dwelling and external parties (i.e. emergency services);

2. Unsuitable provisions for waste collection;

3. Inappropriate site for residential development;

4. Landslip hazards;

5. Amenity impacts to surrounding residential properties due to the minimal rear setback proposed;

6. Unsuitable provisions for stormwater management;

7. Concerns about the dwelling being used for short term rental accommodation;

8. Impact on existing native vegetation and wildlife;

9. Unreasonable visual impact when observed from the public footpath;

10. Construction management impacts;

11. Adverse planning precedent for the Local Government Area;

12. Undersized allotment;

13. No off-street parking, impacting local traffic and the available parking on surrounding residential streets; and

14. The application should be refused on the basis of the previously dismissed Class 1 appeal to the NSW Land and Environment Court for a two storey dwelling house.

9. On 17 February 2022, Council’s Development Assessment Planner undertook a site inspection at the subject site. On 13 May 2022, Council’s Development Engineering referral response was received, which stipulated that further geotechnical assessment was required to address the proposed level spreader and to confirm the stability of the land. On 18 May 2022, the respondent provided written correspondence to the applicant indicating that the proposed development could not be supported.

10. On 6 July 2022, the Development Application was referred to the Northern Beaches Local Planning Panel (the Panel) for determination with a recommendation of refusal in Council’s assessment report. The Development Application was subsequently refused by the Panel for the following reasons.

“1. Pursuant to Section 4.15(1)(c) of the Environmental Planning and Assessment Act 1979 the site is not considered to be suitable for the proposed development.

2. Pursuant to Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed development is inconsistent with the Clause 1.2 Aims of The Plan of the Manly Local Environmental Plan 2013.

3. Pursuant to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 the proposed development is inconsistent with the provisions of Clause 4.1.6 Parking, Vehicular Access and Loading (Including Bicycle Facilities) of the Manly Development Control Plan as the proposed development fails to provide adequate access and off-street parking to meet the needs of the future occupants of the dwelling house and external parties. Additionally, the proposal would increase the demand for on-street parking.

4. Pursuant to Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed development is inconsistent with the provisions of Clause 6.12 Essential Services of the Manly Local Environmental Plan 2013 as the site is unable to provide adequate off-street parking and access to meet the needs of the future occupants of the dwelling and external parties. Furthermore, the applicant has not been able to demonstrate that the proposed development can adequately manage and dispose stormwater generated from the development.

5. Pursuant to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 the proposed development is inconsistent with the provisions of Clause 3.4.2 Privacy and Security of the Manly Development Control Plan as the proposed dwelling would allow the future occupants to directly overlook into private open space at 9 and 11 Pacific Parade.

6. Pursuant to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 the proposed development is inconsistent with the provisions of Clause 4.1.1.1 Residential Density and Dwelling Size of the Manly Development Control Plan as the undersized nature of the allotment makes it difficult for the development to comply with a number of Council's primary planning controls or provide an acceptable level of internal amenity for the future occupants of the dwelling.

7. Pursuant to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 the proposed development is inconsistent with the provisions of Clause 4.1.4 Setbacks (front, side and rear) and Building Separation of the Manly Development Control Plan 2013 as the front and rear setback non-compliances will create adverse amenity impacts for adjacent properties and the future occupants of the dwelling house.

8. Pursuant to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 the proposed development is inconsistent with the provisions of Clause 4.1.5 Open Space and Landscaping of the Manly Development Control Plan as the proposal provides insufficient total open space and landscaping to enable the establishment of adequate landscape treatment to screen the built form from downslope properties. Furthermore, the proposal provides inadequate areas of private open space to meet the recreational needs of the future occupants of the dwelling house.

9. Pursuant to Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed development is inconsistent with the provisions of Clause 6.4 Stormwater Management of the Manly Local Environmental Plan 2013 as there is insufficient information to determine whether stormwater generated from the development can be appropriately managed and disposed of.

10. Pursuant to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 the proposed development is inconsistent with the provisions of Clause 3.7 Stormwater Management of the Manly Development Control Plan 2013 as there is insufficient information to determine whether stormwater generated from the proposal can be appropriately managed and disposed of.

11. Pursuant to Section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979 the proposed development is not in the public interest.”

Proceedings

11. The hearing commenced with an on-site view. Present were legal representatives, town planning experts, stormwater experts and landscape experts for the parties. Oral submissions from six objectors were heard on-site from the residents of 11 Pacific Parade Manly, 3A James Street Manly, 9 Pacific Parade Manly, 12 Kangaroo Street Manly, 13 Pacific Parade Manly and 4 Kangaroo Street Manly. The Court was also invited to view the Site from the rear yards of 9 and 11 Pacific Parade. A list of objectors (Exhibit 3) and a copy of the submissions received by the Respondent during public exhibition of the DA were also provided to the Court (Exhibit 4).

12. The key concerns of the resident objectors can be summarised as follows:

• Visual privacy and overlooking;

• Impact on adjoining public reserve and wildlife corridor;

• Insufficient private open space and landscaping to screen the development;

• Inadequate front and rear setbacks resulting in privacy impacts on neighbouring properties;

• Inadequate carparking;

• Unsuitability of the site (should be zoned public open space);

• Impact on views of the reserve;

• Impact on stormwater drainage; and

• Difficulty in servicing the site (emergency services and deliveries) due to lack of a street frontage and inadequate access

The Evidence

13. In preparing for the hearing, the experts, Mr Greg Boston, planner for the Applicant and Mr Thomas Burns, planner for the Council, conferred and prepared a “Joint Expert Town Planning Report” (Joint Expert Report) filed on 9 November 2022 (Exhibit 5). The planning experts agreed that all eight contentions could be resolved subject to the preparation and settlement of amended plans reflecting the agreed amendments identified in the Joint Expert Report.

14. The landscape experts, Ms Melissa Wilson for the Applicant and Mr Joseph Tramonte for the Respondent prepared a Landscaping Joint Expert Report dated 10 November 2022 (Exhibit 6). The landscape experts agreed in the Joint Expert Report that Amended Landscape plans to provide screen planting to the rear of the dwelling will mitigate the height of the proposed dwelling, mitigate any privacy concerns and screen the development when observed from the adjoining downslope properties to the north (9 and 11 Pacific Parade).

15. The landscape experts also agreed that Amended Landscape Plans should be prepared to provide additional landscape buffer planting to a height of at least 2m along the southern front boundary to satisfy Contention 4 (Inadequate Total Open Space and Landscaping). Mr Tramonte, from the Council, agreed that the Joint Report conferencing discussions have led to an agreement between the experts on the additional landscape design that is required to satisfy Contention 3 (Rear Setback) and Contention 4 (Failure to Provide Adequate Open Space and Landscaping).

16. The stormwater engineering experts, Mr Leon Savage for the Applicant and Mr Alex Kwok from the Council prepared a Stormwater Engineering Joint Expert Report dated 11 November 2022 (Exhibit 7). Mr Kwok agreed that the Joint Expert Conferencing discussions have led to an agreement between the experts on the method of stormwater disposal design that is required to satisfy Contention 8 (Failure to provide adequate information to assess the Stormwater Management System).

17. A number of documents were tendered in evidence, of which the following were of particular relevance to my consideration of this matter:

1. The Town Planners Joint Expert Report (Exhibit 5).

2. The Landscaping Joint Expert Report (Exhibit 6).

3. The Stormwater Engineering Joint Expert Report (Exhibit 7).

4. The Amended Plans and Landscape Plans (Exhibit A), for which leave was sought and provided, prepared by Carlisle Architects, Revision D and Amended Landscape Plans prepared by Melissa Wilson, Issue C (Exhibit A).

5. Amended Stormwater Drainage, Rainwater Re-use and Onsite Detention Plans prepared by Structerre Consulting (Exhibit B).

6. An Amended Basix Certificate (Exhibit F).

7. Council’s Bundle of Documents (Exhibit 2) that included an extract from the Manly Local Environmental Plan 2013 (MLEP), Manly Development Control Plan 2013 (MRDCP) and the public submissions (Exhibit 4).

8. Various documents lodged as part of the Class 1 Application, including the Statement of Environmental Effects prepared by 33F Town Planners (Exhibit D).

9. The agreed draft conditions of consent, filed with the Court on 1 May 2023 (Exhibit 8).

The Planning Controls

18. The site and immediately surrounding properties are zoned R1 General Residential under the MLEP. The proposed dwelling house is permissible with consent.

19. I am satisfied that the proposed dwelling house is consistent with the objectives of the R1 Zone which are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

20. The maximum permissible height of buildings for the Site is 8.5m under cl 4.3(2) of MLEP. The proposed single storey dwelling complies with the height standard.

21. The Manly Development Control Plan 2013 (MDCP) also applies to the proposed development. The relevant parts of the MDCP are:

• Clause 4.1.5 Open Space and Landscaping

• Clause 3.4.2 Privacy and Security

• Clause 4.1.1.1 Residential Density and Dwelling Size

• Clause 4.1.4 Setbacks (front, side and rear) and Building Separation

• Clause 4.1.5 Open Space and Landscaping

• Clause 4.1.6 Parking, Vehicular Access and Loading (Including Bicycle Facilities)

The Issues 

22. The SOFAC listed the following eight contentions:

1. The unsuitability of the site for the development;

2. Inability to provide off-street carparking;

3. Rear setback;

4. Inadequate Total Open Space and Landscaping;

5. Undersized Allotment;

6. Privacy;

7. Public Interest; and

8. Failure to Provide Adequate Stormwater Management Information.

23. A majority of the contentions listed in the SOFAC (Exhibit 1) were no longer pressed by the Respondent following the Amended Plans and Amended Landscape Plans (Exhibit A), the Stormwater Drainage Plans (Exhibit B) and the outcome of joint expert conferencing (Exhibits 5, 6 and 7). The experts agreed that subject to appropriate conditions and the amended plans, seven of the eight Contentions were resolved (Contentions 1 – 6 and Contention 8).

Is the proposed development in the Public Interest (Contention 7)

24. The remaining unresolved Contention (Public Interest) relates to the public submissions received by the Respondent in relation to the Proposed Development. The Court, as the consent authority, in determining a development application, is to take into consideration the public interest (s 4.15(1)(e) EPA Act).

25. At the on-site view, the Court heard from six objectors, and I summarise their concerns below in [26].

26. The major issues raised by the residents related to the impact on privacy, the stability of the site and stormwater drainage, inadequate carparking, inadequate landscaping/impact on native vegetation, the suitability of the site for residential development and its impact on the adjoining reserve and the wildlife corridor. Submissions also raised the inadequate size of the site and inadequate access for servicing and emergency vehicles. Several submissions suggested that the Council should purchase the Site.

27. In relation to the suggestion, by a number of objectors, that the Council should acquire the land, I note this is unlikely because the former Council zoned it residential and subsequently sold the land.  This is not a matter for consideration for the Court on appeal and is a matter for the Council who zoned the land Residential R1, consistent with surrounding residential properties.

28. Regarding potential impacts on vegetation on the Site, in the adjoining reserve and on wildlife, Council’s landscape officer was of the view that the proposed development was not likely to have an adverse impact on local biodiversity. The large Sydney Blue Gum on the Site is being retained and appropriate conditions have been included in the consent stating that all existing trees are required to be retained and maintained in a healthy and vigorous condition. Further the Council’s landscape architectural expert, Mr Tramonte concurs that the Joint Report conferencing discussions have led to an agreement on the additional landscape design, including further screen planting around the Site boundaries, that is required to satisfy Council’s Contention on the provision of adequate open space and landscaping for the Site (Exhibit 6).

29. Regarding the issue raised in relation to the inadequate rear setback and the privacy concerns for the properties in Pacific Parade to the north, I note that the proposed rear setback has been amended from 900mm to 1.5m, which provides an adequate setback for additional landscape planting. The planning experts in relation to the rear seatbacks, agreed that the proposed rear setback will provide reasonable levels of overlooking (refer Exhibit 5). It was also agreed by the experts that by providing a higher sill height of 1.5m on the north‑facing windows, the proposed dwelling will not overlook the open space of 9 and 11 Pacific Parade. I am satisfied that the amended landscape plans which provide for screen planting within the rear setback area and the Amended Plans with highlight windows on the northern elevation, will mitigate any concern of overlooking into the two neighbouring properties to the rear.

30. In relation to the issue of access for future occupants of the proposed dwelling, the Council experts noted that while the site was constrained and the site must be accessed via public footpath, the additional information submitted by the Applicant during the course of the appeal has satisfied the Council that access for deliveries and emergency services is satisfactory. A condition has also been included that requires the owner of the Site to provide access details to the subject property to NSW Ambulance on a 12 month basis from the date of the consent.

24. Waste collection and the Council's waste officer was also satisfied and raised no objections to the provision of waste services from nearby Kangaroo Street. I am also satisfied that access to the property, including for deliveries and emergency vehicles is reasonable in the circumstances.

25. Regarding the concerns raised by objectors in relation to the lack of any on-site carparking, the planning experts agree that reducing available on-street parking within the catchment of the site would be to the detriment of the neighbourhood. The planning experts also agree that this issue could be alleviated through the implementation of a condition of consent that precludes future residents of 40 Pine Street from obtaining a resident’s parking permit, thereby satisfying Objective 2 of Clause 4.1.6 of MDCP 2013, which is to reduce the demand for on-street parking and identify where exceptions to onsite parking requirements may be considered in certain circumstances. Noting that the proposed dwelling house is well-serviced by local transport infrastructure (i.e. GoGet car sharing pod and public transport services), coupled with the fact that the development contains one bedroom and is unlikely therefore to attract occupants with one or more vehicles, I am satisfied that an absence of off-street parking on the site should not preclude development on the land.

26. In relation to the potential for land slip concerns, the Council was satisfied by the geotechnical report prepared on behalf of the Applicant. by White Geotechnical Group dated 7 July 2021 and an addendum report dated 30 May 2022. I am satisfied from the evidence that the issue raised regarding geotechnical risk has been resolved and various conditions have been included in the consent, requiring all recommendations included in the Geotechnical Report to be complied with during work to ensure geotechnical risk is mitigated appropriately. A further condition has been included requiring that excavation work is to ensure the stability of the soil material of adjoining properties, the protection of adjoining buildings, services, structures and / or public infrastructure from damage using underpinning, shoring, retaining walls and support where required. Further, all retaining walls are to be structurally adequate for the intended purpose, designed and certified by a Structural Engineer.

27. Stormwater management and the impact on the properties downslope of the Site was an issue raised in the SOFAC, however I am satisfied that this issue has been adequately resolved by the stormwater experts during the joint conferencing (Exhibit 7).

28. The planning experts considered the public interest in the Joint Experts Report (Exhibit 5) and agree that subject to the preparation and settlement of amended plans, reflecting the agreed amendments identified in the joint report, that the proposal is capable of being in the public interest.

29. In relation to the suitability of the site, I am satisfied from the evidence of the planning, landscape and stormwater experts that the site, which is zoned for residential purposes, is suitable for the proposed development and the Amended Plans and conditions of consent address the concerns raised by objectors. The modest single storey dwelling house proposed for the Site is, in my view, an appropriate response to the site constraints and will have minimal impacts on the surrounding residential properties and the adjacent public reserve. The proposed dwelling has also been significantly reduced in height, bulk and scale to the previous development application for a two storey dwelling, that was dismissed by Commissioner Brown in Goarin.

30. I accept that the concerns raised have been considered and addressed by the Applicant’s amended plans and conditions of consent, and I conclude that there is no reason to refuse the Proposed Development, on the basis of public interest.

Other statutory instruments

38. In regard to State Environmental Planning Policy (Resilience and Hazards) 2021, I note and accept the agreed evidence that the land has been vacant for an extended timeframe and is not considered to be at risk of contamination.

39. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the Site. Clause 9.3 of SEPP B&C requires a consent authority to consider the matters referred to in Ch 9. I am satisfied that the matters for consideration under Ch 9 have been adequately addressed in the Statement of Environmental Effects which accompanies the DA. The Landscape experts also agreed during the joint conferencing that the landscape and open space outcomes for the Site were acceptable, subject to amended plans and conditions requiring the existing trees to be retained and maintained in a healthy and vigorous condition. Council’s landscape officer was of the view that the proposed development was not likely to have an adverse impact on local biodiversity.

40. In regard to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP), I note that an updated BASIX certificate was filed with the Court (Exhibit F) and has been accepted by the Respondent, in accordance with the requirements of the BASIX SEPP.

Conclusion

41. For the reasons given in this judgment, I conclude that development consent for the Proposed Development can be granted, subject to appropriate conditions.

Orders

42. The Court orders that:

1. The Applicant is granted leave to rely on amended plans and landscape plans as set out in Condition 1 of Annexure A.

2. The appeal is upheld.

3. Development Application DA 2021/2590 for the construction of a single storey dwelling house at 40 Pine Street Manly is approved, subject to the conditions in Annexure A.

4. All Exhibits are returned, with the exception of Exhibits A, D and 2.

L Sheridan

Acting Commissioner of the Court

226498.22 Annexure A (278778, pdf)

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Decision last updated: 09 May 2023