Blackmore Design Group Pty Ltd v Manly Council

[2014] NSWLEC 1180

This decision has been amended. Please see the end of the decision for a list of the amendments.

Land and Environment Court

New South Wales

Case Title:	Blackmore Design Group Pty Ltd v Manly Council
Medium Neutral Citation:	[2014] NSWLEC 1180
Hearing Date(s):	3, 4 June and 11 August 2014
Decision Date:	26 August 2014
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	1. The appeal is upheld. 2. The development application (DA 81/2013) for the demolition of existing buildings, the construction of a seven level mixed residential and commercial building with ground level retail, six commercial studios and ten residential units over basement parking and car stacker for 18 cars is approved subject to the conditions in Annexure "A". 3. The exhibits, other than Exhibits 1, K and O, are returned.
Catchwords:	DEVELOPMENT APPLICATION - mixed commercial residential building, floor space ratio, setbacks, streetscape, internal amenity
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Manly Local Environmental Plan 1988 Manly Local Environmental Plan 2013 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development
Cases Cited:	Davies v Penrith City Council [2003] NSWLEC 1141 Jaques Avenue Bondi Pty Ltd v Waverley Council (No 1) [2003] NSWLEC 421). Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289
Category:	Principal judgment
Parties:	Blackmore Design Group Pty Ltd (Applicant) Manly Council (Respondent)
Representation
- Counsel:	Mr M Staunton (Applicant) Mr M Wright (Respondent)
- Solicitors:	Sattler & Associates (Applicant) Marsdens Lawyers (Respondent)
File Number(s):	10916 of 2013

JUDGMENT

1. This is an appeal under the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Manly Council of a development application (DA 81/2013) for a mixed residential and commercial building at 17-19 Central Avenue, Manly.

2. The key issues in dispute are whether the proposal would be an appropriate response to the streetscape and have acceptable impacts on the residential amenity of the adjoining property. These issues principally relate to the adequacy of the setbacks to the street and the southern side boundary and the bulk of the building resulting from its floor space ratio (FSR). The parties also disagree on the extent of commercial FSR relative to residential FSR and whether this achieves the objectives for the zone. Other issues relating to parking, accessible units and waste management have been resolved through amendments or proposed conditions.

Site and locality

1. The site is located on the eastern side of Central Avenue, near Raglan Street in the Manly Town Centre. It has a frontage of 12.175 m and a variable depth of between 25.3m and 29.315 and a total site area of 332.5 sq m. The site is developed with two semi detached two storey terraces.

2. Adjoining the site to the north is a twelve storey mixed use development known as the "Allegra" (1-3 Raglan Street). To the south and the east of the site is a part nine storey mixed use development known as "Pacific Waves". This development includes a public car park, which is accessed off Central Avenue immediately adjacent to the site. The residential levels are located over a two storey podium with a recessed colonnade off Central Avenue. An open space area with a swimming pool is located on the podium adjacent to the rear of the site. To the west, on the opposite side of Central Avenue, is a mixed use building known as the "Manly National Building".

3. The surrounding area is a mixture of retail, commercial and residential uses in developments with varied building heights, setbacks and designs. Manly Beach is a short distance to the east of the site.

Background and proposal

1. The development application was lodged on 17 April 2013, seeking approval for "demolition of existing 2 storey brick building and construction of new multi-residential, commercial building". The application proposed 20 residential units with a height of 30.39m above ground level and a FSR of 3.75:1. The applicant lodged an appeal against the deemed refusal of the application on 26 November 2013 and council subsequently refused the application on 19 December 2013.

2. Following the termination of a conciliation conference held under s34 of the Land and Environment Court Act 1979, (LEC Act) the applicant sought and was granted leave to rely on amended plans. The amendments included a reduction in the height to 25m above ground level, a reduction in FSR to 3.06:1, an increase in the front setback and a reduction in the number and mix of units to 12 units and an additional four commercial studios. These were the plans that were before the Court at the commencement of the hearing on 3 June 2014.

3. In response to the evidence and matters raised during the hearing the applicant sought an adjournment and leave to rely on further amended plans, which were renotified (Amended Application). The main changes include:

   i. increase in setback to the southern boundary with Pacific Waves to a minimum of two metres ;
   ii. set back of south western corner to maintain a partial view corridor for the units in the north western corner of Pacific Waves;
   iii. reconfigure the front balconies to increase the set back to Central Avenue, reduce bulk and increase solar access to the units;
   iv. reduce the number of units from 12 to 10;
   v. reduce the building parapet height of 1.46 metres;
   vi. relocate the car parking ventilation.

Planning controls

1. At the time the application was lodged the site was within Zone No.3 "Business Zone" under Manly Local Environmental Plan 1988 (LEP 1988) and the development was permissible with consent.

2. Clause 10(3) of LEP 1988 provides:

   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.

3. The objectives of the Business Zone in LEP 1988 are:

   (a) to provide for and encourage the development and expansion of business activities which will contribute to the economic growth and employment opportunities within the Municipality,
   (b) to accommodate retail, commercial and professional services in established locations in the residential neighbourhoods where such development is compatible with the amenity of the surrounding areas,
   (c) to ensure there is adequate provision for car parking in future development in the business areas, and
   (d) to minimise conflicts between pedestrians and vehicular movement systems within the business areas.

4. Manly Local Environmental Plan 2013 (LEP 2013) commenced on 19 April 2013. It includes a "savings provision" (cl 1.8A) which provides:

   If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

5. LEP 1988 therefore remains the instrument under which the application is to be assessed and LEP 2013 is a relevant consideration, and as it has been made, should be given considerable weight (see Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289 and Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142).

6. The site is within the B2 Local Centre Zone under LEP 2013 and commercial premises and shop top housing are permissible with consent. Under LEP 2013 a maximum height limit of 25m (cl 4.3) and a maximum permissible FSR of 3:1 continue to apply. Clause 6.16 requires that consent must not be granted to a development in the B2 Zone unless 25% of the gross floor area (GFA) will be used for commercial purposes.

7. Manly Development Control Plan for the Business Zone 1989 Amendment No. 7 (Business DCP) contains provisions that are relevant to the matters in dispute between the parties including Aims and Objectives (cl D), Design Principles (cl F), Floor Space Ratio (cl 1.1), building heights (cl 1.2) setbacks (cl 1.3), Design for Townscape (cl 1.4) and Car Parking and Access (cl 1.5). Clause 1.3.3 of the Business DCP provides controls for setbacks and requires, in certain circumstances, consideration of the "principles" in Manly Development Control Plan for the Residential Zone 2007 Amendment No. 2 (Residential DCP). The parties disagree as to what are the "principles" referred to in the Residential DCP, which is discussed later.

8. The Manly Town Centre Urban Design Guidelines 2002 (Guidelines) are also relevant and the parties agree should be given significant weight (see Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472). These provide General Urban Design Guidelines, which include Solar Access and Overshadowing (cl 2.1.7) and Precinct and Area Design Guidelines. The site is within the Central Avenue Area (cl 3.2.6) of the Mainland Grid Precinct (cl 3.2).

9. Manly Development Control Plan 2013 (DCP 2013) includes a savings provision and therefore does not apply to the application, although it contains similar considerations to those in the Business and Residential DCPs and Guidelines.

10. State Environmental Planning Policy No.65 - Design Quality of Residential Flat Development (SEPP 65) and the Residential Flat Design Code (RFDC) apply to the development.

The evidence

1. The Court visited the site, surrounding area and units in Pacific Waves. A number of occupants of Pacific Waves and their representative, Mr K Nash, raised concerns about the proposed development, in particular, its height and proximity to their outdoor terraces, living areas and bedrooms, which are orientated towards the site. They were concerned that the proposal would impact on residential amenity by reducing access to sunlight, views towards Kangaroo Point and Beacon Hill, privacy and noise impacts, including noise resulting from the car lift and the ventilation chute. Objectors also raised concerns about the loss of the existing buildings on the site and the streetscape impacts of the proposal. The Amended Application was renotified and the objectors maintained their concerns about the impact of the proposal on the residential amenity of Pacific Waves.

2. The Court heard expert planning and urban design evidence from Mr S Layman, for the council, and Mr G Boston and Mr PJ Cantrill, for the applicant. The experts prepared a Supplementary Joint Report on the Amended Application and generally maintained their respective opinions despite the changes.

   Floor Space Ratio

3. Under the Business DCP and LEP 2013 the maximum FSR is 3:1, however, the definition of gross floor area (GFA) is different. The experts agree that under cl 1.1.1 of the Business DCP the proposal has a FSR of 3.35:1 (residential 2.54:1 and commercial 0.81:1). Under LEP 2013 the FSR is 2.85:1 (residential 1.97:1 and commercial 0.88:1).

4. Mr Layman's key concern was that the commercial studio units have the attributes of a dwelling and that if used as residential the proportion of residential to commercial would exceed the 2:1 maximum in the Business DCP (cl 1.1.2) and not meet the 25% requirement for commercial in LEP 2013 (cl 6.16). In his opinion, the objectives of both Zone No 3 Business Zone in LEP 1988 and the B2 Local Centre Zone in LEP 2013 seek to encourage business uses and not residential use and that the proposal is inconsistent with these objectives.

5. Mr Boston considered that mixed commercial/residential development is permissible in the business zones under both LEPs, however, the objectives for the zones do not refer to residential uses. The application includes commercial studios that are part of the commercial component of the development and cannot be used for any other purpose without development consent. The desired future character for the area is established by LEP 2013 and the overall FSR of the building, as well as the FSR of the residential component, is less than the maximum. The FSR meets the objectives of the control in both LEP 2013 and the Business DCP.

   Setbacks

6. The experts agree that it would be undesirable to apply the "stipulated setback" in the Business DCP, which would require the building to be constructed along the southern boundary and adversely impact on Pacific Waves. The application of the residential DCP would result in setbacks greater than the width of the site and the experts agree that the setbacks should be considered against the objectives in cl 3.6 of the Residential DCP, but disagree on whether the objectives are met.

7. Mr Layman, considers the proposal does not achieve "equitable access to light and sunshine" (objective(c)) and does not "facilitate view sharing" (objective (e)). The Amended Application will reduce solar access to the balconies on the north western corner of Pacific Waves and there will be a total loss of solar access in midwinter to the studio apartments on levels 3 and 4. He acknowledges that increasing the side setback would not retain solar access to these units and to do so the front of the proposed development would need to be deleted (Exhibit H). This would result in the building above the podium being setback up to 13m from the street boundary, which Mr Layman considered to be reasonable. He noted that "the significant view of Beacon Hill and Kangaroo Point would be lost from the body of the huge balcony of apartments 510 and the units above", which he considered to be unreasonable.

8. Mr Boston and Mr Cantrill stated that at least three hours of sunlight access in midwinter will be maintained to the living room windows and adjacent balcony area of each unit located on the north western corner of the Pacific Waves. The units on the north eastern corner of Pacific Waves will not be reduced but these apartments are currently overshadowed by the Allegra Building. They consider that it is not reasonably feasible to maintain solar access to the studio units as these are located on the lower levels and at the centre of the Pacific Waves with balconies close to and overlooking the site. As such they are particularly vulnerable to impact and to maintain solar access would require the deletion of the front of the development and would not achieve equitable access to light and sunshine and would result in adverse streetscape impacts.

9. Mr Boston and Mr Cantrill consider the Amended Application has increased the setback of the front façade and balconies to retain part of the view corridor to the distant views of Beacon Hill and Kangaroo Point from the affected units and that reasonable view sharing is achieved.

   Streetscape

10. Mr Layman acknowledged that the podium of the development "provides a reasonable fit to the streetscape" but considered the "tower" to be inconsistent. In his opinion, the height of the tower would be equivalent to that of other towers on much larger sites and it occupies a greater proportion of the site area than is characteristic of its context. The tower would be "visually dominant in the context" when viewed from the southern end of Central Avenue. He was particularly concerned about the projection of the balconies beyond the Pacific Waves, which due to their masonry character, he considered to be heavy and bulky elements that would dominate the streetscape. In his opinion, the tower was not consistent with the desired future character for the streetscape sought by the planning controls.

11. Mr Boston and Mr Cantrill held the contrary view that the proposal represents a relatively small infill development, which achieves the objectives sought for the area under the planning controls. They note that the building is not as high or as wide as the adjoining buildings and significantly smaller than Manly National Building, which is identified in the Guidelines as having a "scale and bulk very much out of character" with the street. Furthermore, the proposal will screen the "large and relatively unarticulated south west facade" of the Allegra building and maintains the alignment of the front façade between the Allegra Building and Pacific Waves. In Mr Boston's opinion, "the proposed development with its 2 storey podium with floors above setback in response to the front faced alignment established by adjoining buildings, is highly articulated and visually interesting building façade with an appropriate solid to void ratio, characteristic colonnade and activated shop front will not be perceived as inappropriate or jarring in a streetscape or urban design context". Mr Cantrill shared these opinions.

    Internal amenity

12. The experts disagree whether the proposed development provides appropriate internal amenity, particularly solar access. Based on the solar access diagrams (Exhibit L), Mr Boston and Mr Cantrill agree that 50% of the units will achieve a minimum of two hours of solar access between 9am and 3pm on 21st June and greater levels after 3pm. They acknowledge that this does nor meet the "Rule of Thumb" in the RFDC of 70% but consider that this would be difficult to achieve due to the significant overshadowing generated by the height and proximity of adjoining development. In particular, the Allegra building to the north of the site is about 39m high and overshadows all of the east facing windows.

13. Mr Boston and Mr Cantrill consider that despite some units not achieving the desired solar access in midwinter, all the units have an appropriate level of amenity. In particular, they noted that the east facing units have views to the ocean, eight of the ten units are double storey and the single level units on the upper floor have a clerestory, all units have through ventilation, 2.7m ceiling heights, exceed 50 sqm in area with balconies to bedrooms as well as living areas which are orientated to the front and back to achieve visual and acoustic privacy. In addition, the location of the development in close proximity to the beach, transport and facilities provides considerable amenity and the provision of ten one bedroom apartments is preferred rather than five larger apartments as suggested by Mr Layman.

14. Mr Layman did not consider that adequate solar access would be achieved to the units. He acknowledged the constraints posed by overshadowing from surrounding buildings but considered that larger units which occupy the whole floor should be provided which would achieve solar access from the north west to the south west. In his opinion, the other aspects of amenity are matters that need to be provided and do not compensate for the loss of solar access and any design on the site would benefit from the attribute of its location. Furthermore, he did not consider that ten one bedroom units would necessarily result in more people than five larger units as this would depend upon the occupancy.

    Findings

15. Commercial and residential are permitted as innominate uses in Zone No. 3 Business under LEP 1988 and cl 1.1.2 of the Business DCP provides:

    Within the Manly Town Centre area, the floor space ratio for residential uses shall not exceed 2:1. Except in circumstances where Council considers that Townscape Design, Diversity, Interest and Heritage values are not compromised.

16. Commercial and shop top housing are permissible uses in Zone B2 Local Centre under LEP 2013 and cl 6.16 requires that in the B2 zone at least 25% of the gross floor area (GFA) of the building will be used as commercial.

17. The objectives for Zone No. 3 in LEP 1988 and the B2 zone in LEP 2013 encourage commercial uses and are silent on residential use. Nonetheless residential uses, at least in association with commercial uses are permissible and anticipated within these zones, subject to restrictions on the amount of residential GFA. Mr Layman considers that the six commercial studios, which contain a kitchen and bathroom, but no laundry, are best characterised as residential and will be used as such. The units, in his opinion, should therefore be included as residential GFA which would consequently not meet the controls in cl 1.1.2 of the Business DCP and cl 6.16 of LEP 2013. I do not accept this position as the Amended Application seeks consent for commercial studio units, which are shown on the plans and can be conditioned to this effect. The use of the studios for another purpose would be contrary to any approval granted to the application before the Court. Consequently, the studios are included as commercial GFA, which more than meets the 25% requirement in under cl6.16 of LEP 2013. Due to different definition of GFA, the residential component exceeds the FSR under cl 1.1.2 of the Business DCP but I accept Mr Boston's evidence that the additional residential floor space does not compromise the townscape design, diversity, interest and heritage values sought by the Business DCP.

1. Similarly, the overall FSR of the development is below that permissible under cl 4.4 of LEP 2013, but under a different definition of GFA, exceeds that permissible under cl 1.1.2 of the Business DCP. There are no explicit objectives for the FSR control other than D5 in the aims and objectives of the Business DCP which provides:

   To introduce floorspace ratio controls in order to provide firm guidelines as to the potential development of a centre and of individual sites.

2. The implicit objectives of the FSR control in cl 1.1.2 of the Business DCP would reflect those for the FSR control under cl 4.4 of LEP 2013 which provide:

   (a) to ensure the bulk and scale of development is consistent with the existing and desired streetscape character,
   (b) to control building density and bulk in relation to a site area to ensure that development does not obscure important landscape and townscape features,
   (c) to maintain an appropriate visual relationship between new development and the existing character and landscape of the area,
   (d) to minimise adverse environmental impacts on the use or enjoyment of adjoining land and the public domain,

3. As LEP 2013 has commenced it must be given considerable weight and it establishes the desired future character for the area. For the reasons discussed below, the bulk and scale of the development is consistent with the existing and desired future streetscape character and does not result in unreasonable impacts and meets the objectives of the control.

4. In particular, the proposal is below the 25m height limit in cl 1.2.1 of the Business DCP and cl 4.3 of LEP 2013. The height controls for the Manly Town Centre in the Business DCP are detailed and the 25m height limit applies to the site and the Pacific Waves, with lower height limits being identified for adjoining and nearby properties. Similarly, LEP 2013 provides detailed height limits; the site and Manly National have a 25m maximum height and other nearby properties have lower height limits, which are already exceeded by the existing development on these properties.

5. It cannot be assumed that a development will achieve its maximum height limit, particularly if the height control applies to a wide area, however, it is not an unreasonable expectation where site specific controls have existed in a DCP since 1989, which have recently been incorporated into an LEP, that the site would be able to achieve a height reflective of that in the controls, and that impacts would be considered, within the expectation that a building up to 25m may be achieved on the site.

6. The key impact addressed by the experts was the impact of the proposal on the residential amenity of Pacific Waves. They agree that Pacific Waves is the key constraint to development of the site and that Pacific Waves is particularly vulnerable to impacts due to the proximity of its terraces and living areas and their orientation towards the site. The units that would be most affected are the studio units (3.09, 3.10B, 4.09 and 4.10B) which are located towards the centre and at lower levels of the Pacific Waves building with a single orientation towards the site. Other affected units have orientations towards the site as well as towards the street or towards the east. The experts generally agreed on the impacts to each unit but they disagreed on the reasonableness of the impact.

7. The experts agreed that a further increase in the setback of the building from its southern boundary would not assist in maintaining the level of solar access to the worst effected studio units in the Pacific Waves and that to do so would require the front of the proposed development to be deleted (Exhibit H). This would result in the building above the podium being setback up to 13m from the street boundary. I accept Mr Cantrill and Mr Boston's opinion that a substantial setback above the podium would have an unacceptable impact on the streetscape. It would not achieve a streetwall building, which is sought by the planning controls and would not screen the blank wall of the Allegra building, which has a detrimental impact on the streetscape. There are no similar examples of a significant setback in the locality, which has a variety of built forms. An increased setback would also result in the proposed units receiving no solar access to their balconies and living areas and privacy impacts, with the potential for overlooking from the proposal towards the units in the front of Pacific Waves. The significantly reduced floorplate is unlikely to be feasible and effectively the development potential of the site would be reduced to a form of development that currently exists on the site. Such a significant change to retain solar access to studio units in the Pacific Waves Building is unreasonable given the height and FSR controls in LEP 1988 and LEP 2013 as well as the design guidelines sought for the area under the DCP.

8. Similarly, a further increase in the setback to maintain existing distant views across a side boundary to Beacon Hill and Kangaroo Point is unreasonable (see Tenacity Consulting v Warringah Council [2004] NSWLEC 140). The amended Application maintains a view corridor from the majority of the terrace and kitchen/living areas of the affected units. I accept Mr Boston and Mr Cantrill's opinion that appropriate view sharing is achieved.

9. The parties held different interpretations of the setback control in cl 1.3 of the Business DCP, which relevantly provides that within Manly Town Centre:

   All buildings shall be constructed to the public road and side boundaries of the allotment except where:
   ......

   2. The applicant can demonstrate to the satisfaction of the Council that an alternative setback does not conflict with overall townscape objectives, reduce the general availability of retail frontage or remove weather protection for pedestrians;

   3. The stipulated setback would be undesirable in terms of the amenity of any residential uses existing on adjoining land...(in which cases the principles of the Council's Development Control Plan for the Residential Zone will apply)

10. Mr Staunton, for the applicant, and Mr Wright, for the council, made competing submissions which centred on whether there is a "stipulated setback" and if so what the "principles" are in the Residential DCP. Mr Staunton submits that a zero setback is not a setback and therefore cl 1.3.3 does not apply and, if it does, the "principles" refer to "general design principles" in cl 2.4 of the Residential DCP, which include principles for built form that "in higher density areas careful consideration should be given to minimising any loss of sunlight, privacy and views of neighbours. This is especially relevant in the design of new residential flat buildings adjacent to smaller developments". Further, he submits that even if "principles" refers to the setback control in cl 3.6 of the Residential DCP, it is the objectives of the control (cl 3.6.1) and not the numerical control (cl 3.6.4) that is required to be considered.

11. Mr Wright submits that cl 1.3.3 of the Business DCP applies and "principles" refers to the setback control in cl 3.6 of the Residential DCP, which would include both the objectives and the numerical control.

12. I accept that the "stipulated setback" refers to the requirement that buildings "be constructed to the public road and side boundaries of the allotment" and that "principles" in cl 1.3.3 refers to cl 2.4 of the Residential DCP as this is where the term is used in the plan. Even if this is not the case and the "principles" would be limited to a consideration of the objectives for the setback control in cl 3.6 of the Residential DCP and compliance with the numerical control is not required. This approach is consistent with that adopted in cl 4.2.3 of DCP 2013 where the setback control for Zone B2 is in similar terms to that in cl 1.3.3 of the Business DCP but cl 4.2.3 (c) provides:

    The stipulated setback would be undesirable in terms of the amenity of any residential uses existing on adjoining land...In such cases the planning principles in this plan for residential development at paragraph 3.1.1 will apply.

13. 3.1.1 of DCP 2013 includes the same consideration as in cl 2.4 of the Residential DCP that "in higher density areas careful consideration should be given to minimising any loss of sunlight, privacy and views of neighbours"

14. For the reasons, set out above I find that the loss of sunlight, privacy and views of the neighbours have been minimised. The impacts on Pacific Waves are a result of its vulnerability due to the proximity of its terraces and living areas to the side boundary and orientation towards the site rather than a result of the poor design of the proposal (see Davies v Penrith City Council [2003] NSWLEC 1141). The development has retained reasonable sunlight access to the majority of the units, and sunlight to the studio units would not be improved through increased side setback but only if the development on the site is unreasonably restricted by deleting the front section. The proposed units are orientated towards the front and rear of the site, which achieves acceptable visual and aural privacy and the view corridor is retained to the extent that reasonable view sharing is achieved. The proposal therefore minimises impacts on Pacific Waves.

15. The front setback and appearance of the proposal in the streetscape is also acceptable. The Guidelines for the Central Avenue Area identify that its character is "dominated by the Manly National and Pacific Waves developments". The Allegra Building in the Raglan Street Area also dominates Central Avenue. While there are smaller buildings at the ends of Central Avenue, the northern end and the immediate vicinity of the site is dominated by buildings which exceed the height controls established in the Business DCP and LEP 2013. These building are also considerably wider with much greater floor plates than the proposal. Within this context, I accept Mr Cantrill's evidence that "the proposal is lower in height and narrower in width than the surrounding buildings and will as a consequence not be a dominant structure in the street scape and will be comparatively diminutive in bulk".

16. I do not accept Mr Layman's principle concern about the proposal's response to the streetscape character that the projection of the balconies forward of the Pacific Waves building and their masonry appearance would be uncharacteristic of the streetscape. The proposal forms a transition between the Allegra Building and Pacific Waves which assists in screening the blank façade of the Allegra Building and ensures that the "architectural expression and quality of the development responds to the vistas from Central Avenue" as required by the Guidelines for the Central Avenue Area.

17. While only 50% of the units would receive two hours of solar access this results from the overshadowing caused by existing buildings, particularly the Allegra Building. Solar access to the site in midwinter is only available from the north west and south west and the only way to increase the percentage of units that receive the desired level of solar access is to reduce the overall number of units. I accept the evidence of Mr Boston and Mr Cantrill that the proposed units achieve an acceptable level of residential amenity, considering the constraints imposed by their context and the high level of amenity provided by other aspects such as views, privacy, internal layout and location (see Jaques Avenue Bondi Pty Ltd v Waverley Council (No 1) [2003] NSWLEC 421).

18. The other issues in dispute between the parties or raised by objectors are either dealt with in the discussion above, are resolved by conditions or would not be reason to refuse the application.

    Conditions

19. The only condition that is not agreed is condition 3 in relation to the use of the commercial studios.

20. The applicant will accept a condition that authorises the use of the studios for commercial premises and not residential. Council seeks a condition that the commercial studios are not to be used for the following purposes:

    i. Any residential purpose (including serviced apartments), or
    ii Retail purposes, or
    iii Tourist and visitor accommodation.

21. Council's condition also seeks a covenant to restrict the use of the studios to commercial uses.

22. I accept Mr Staunton's submission that it is not necessary or appropriate to require that a covenant be placed to restrict the use of the commercial studios for uses that are permissible within the zone. However, I accept that a condition to this effect is necessary given that the development is approved on the basis of a certain proportion of commercial GFA and that the studios should not be used for other purposes such as residential or tourist and visitor accommodation, which under the definitions in LEP 2013 are not commercial uses. However, retail uses are a form of commercial use and are therefore consistent with the approved use. I have therefore amended condition 3 to read as follows:

    The studios on levels 2 and 3 are approved for use as commercial premises as defined under Manly Local Environmental Plan 2013 and are not to be used for residential premises or tourist and visitor accommodation.

23. The applicant has provided a drawing detail of the side walls (Exhibit O), which demonstrates how these walls are to be constructed to provide the modulated façade treatment shown in the Amended Application elevations and considered by the experts. As this treatment is essential to ensure an acceptable relationship between the adjoining buildings and the streetscape, I have amended Condition1 to include the drawing detail.

Orders

1. The Court orders that:

   (1)The appeal is upheld.

   (2)The development application (DA 81/2013) for the demolition of existing buildings, the construction of a seven level mixed residential and commercial building with ground level retail, six commercial studios and ten residential units over basement parking and car stacker for 18 cars is approved subject to the conditions in Annexure "A".

   (3)The exhibits, other than Exhibits 1, K and O, are returned.

   Annelise Tuor
   Commissioner of the Court
   Annexure A

Amendments

03 Sep 2014 Annexure A attached Paragraphs: