Castellan v Manly Council

[2006] NSWLEC 686

Land and Environment Court

of New South Wales

CITATION:	Castellan v Manly Council [2006] NSWLEC 686
PARTIES:	APPLICANT Frank Castellan and Gail Castellan RESPONDENT Manly Council
FILE NUMBER(S):	10108 of 2006
CORAM:	Brown C
KEY ISSUES:	Appeal :- modification application - conditions imposed for alterations and additions to an existing dwelling relating to roof design and third storey - loss of views from both nearby residential properties and the public domain - character/streetscape - excessive bulk and scale
LEGISLATION CITED:	Manly Local Environmental Plan 1988
DATES OF HEARING:	16/10/06
EX TEMPORE JUDGMENT DATE:	10/16/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr P Clay, barrister SOLICITORS Stuart McDonald & Associates RESPONDENT Ms C Schofield, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

16 October 2006

10108 of 2006 Frank Castellan and Gail Castellan v Manly Council

JUDGMENT

1 COMMISSIONER: This is an appeal against a number of conditions imposed by Manly Council on DA 28/06 (the application) for alterations and additions to an existing dwelling at 29 Edgecliffe Parade, Seaforth (the site). The application provides for alterations and additions to the existing dwelling including an additional level to the existing dwelling, a swimming pool, cabana, fencing and landscaping.

2 The matter was originally set down as a Court hearing however the parties agreed to amend the hearing to an On Site Hearing. The judgement reflects the details in the Statement of Basic Facts and the findings given on site on 16 October 2006.

3 The site is Lot A in DP 354048. It has a 40.3 metre western side boundary, a 25.8 metre eastern side boundary, a 20.1 metre southern rear boundary and a 14.5 metre irregularly shaped northern front boundary giving a total site area of 725.9 square metres. A part one storey and part two-storey brick dwelling currently is located on the site.

4 The surrounding area is predominantly residential in nature with dwellings consisting of some older style dwellings interspersed with substantial new dwellings and other dwellings having major alterations and additions. Extensive views over Middle Harbour are available from a number of the dwellings in the area.

5 The conditions in dispute are:

• a change to the roof form from a pitched roof to a flat roof with a 0.5 metre parapet (Deferred Commencement Condition 1),
• the entry porch on the eastern side to be a flat roof (Deferred Commencement Condition 2),
• a portion of the third story component (1.3 metres by 8.3 metres) to be removed (Deferred Commencement Condition 3), and
• additional landscaping along part of the western elevation adjoining the proposed laundry (Condition ANS01).

6 The site is within Zone No 2 Residential under Manly Local Environmental Plan No. 1988 (LEP 1988). Clause 9(3) of LEP 1988 provides that consent must not be granted unless the proposal is consistent with the objectives of the zone.

7 Manly Development Control Plan for the Residential Zone 2001 (the DCP) applies and provides requirements for view sharing, floor space ratio (FSR), wall height and number of storeys.

8 The council provided a Statement of Issues that identified eight separate issues. These can be grouped into following main areas:

1) whether the proposed pitched roof is unacceptable because of the impact on the Edgecliffe Parade streetscape, excessive bulk and scale, loss of views from both nearby residential properties and the public domain.
2) whether the breaches to the FSR, wall height and storey requirements can be supported.

9 The parties agreed to the appointment of Mr Ross Fleming as the Court appointed town planning expert. Mr Kerry Nash provided additional town planning evidence on behalf of the council. In addition, Ms Dianna Brown of 31 Edgecliffe Parade and Ms Paula Beaumont of 66 Edgecliffe Parade provided evidence on site.

10 Deferred Commencement Condition 1 requires the proposed pitched roof to be replaced with a flat roof and 0.5 metre parapet. Deferred Commencement Condition 2 provides for a similar roof structure for the entry porch on the eastern side.

11 The Court had the benefit of a view from 31 Edgecliffe Parade and 66 Edgecliffe Parade and along Edgecliffe Parade. An estimate of the form of the proposed dwelling (with the pitched roof) could be undertaken through the use of height poles from the different locations around the site. The height poles also allowed an estimate to be made of the difference between the two roof forms.

12 From the first floor balcony of 66 Edgecliffe Parade, I agree with Mr Fleming that the impact of the pitched roof form does not impact on views to Middle Harbour in any significant or meaningful way. I accept that some views are lost but these are lost largely through the additions to the dwelling (that are part of the approval granted by the council) rather than the roof form. The pitch of the roof is a largely obscured by existing vegetation and where the roof can be observed from 66 Edgecliffe Parade, the difference between the two roof forms uses is extremely small, at best.

13 At 31 Edgecliffe Parade, potential view loss is from the rear portion of the dwelling and in an oblique easterly direction. Again, the impact of view loss largely results from the alterations and additions rather than the roof form although some additional sky will be lost with the pitched roof form. Panoramic views will still be available from the rear of the house looking in a generally southerly direction. Mr Nash suggested that the portion of the third story component required to be removed by Deferred Commencement Condition 3 should be extended towards 31 Edgecliffe Parade. This would remove an area of the proposed living room and maintain some existing district views. In my view this is an unreasonable requirement as this part of the proposed dwelling does not exceed the storey requirement in the DCP and the view loss is minimal in the overall views that are available from 31 Edgecliffe Parade.

14 The DCP also raises view loss from the public domain. Mr Nash maintains that the pitched roof form will unacceptably impact on the views from the public domain, principally from Edgecliffe Parade. Mr Fleming disagrees and with the benefit of the site view I concur with his evidence that the use of a pitched roof will have little if any impact on views from Edgecliffe Parade. There may be instances where the pitched roof would obscure certain features on the distant foreshore however other view corridors are available along Edgecliffe Parade where these features would be clearly visible.

15 Consequently I find that the proposed pitched roof satisfies the objectives in cl 3.8.1 of the DCP in relation to view sharing.

16 Mr Fleming and Mr Nash agree that the proposed development provides an FSR of 0.45: 1 compared to the DCP requirement in cl 3.3 of 0.40: 1. There was also agreement that the proposed development did not satisfy the wall height requirements in cl 3.4. and the requirement in cl 3.4.2 that "Council does not favour a development having more than two storeys".

17 As I understand, the council did not press strict compliance with the FSR requirement but only sought to reduce the floor area of the proposed development in the area where it exceeded two storeys in height. This was limited to a length of some 1.9 metres along the southern elevation. The breach occurred largely due to the driveway excavation to the existing dwelling and the need to measure from the existing ground level. Mr Fleming described the non-compliances as technical breaches with no consequential amenity impacts.

18 With the understanding of the impacts of the breaches of the DCP provided on-site, I accept the evidence of Mr Fleming. Consequently I find that the breaches of the DCP in relation to FSR and wall height can be supported as the objectives in cl 3.3.1 and cl 3.4.1 of the DCP are satisfied.

19 Ms Brown addressed the requirement for additional landscaping along part of the western boundary by stating that it would in provide additional screening from the deck on her property and the proposed laundry. As the deck is significantly higher than the proposed laundry and is already partially screen by vegetation on Ms Brown's property, the requirement for additional landscaping is unnecessary. I note the council’s condition did not reflect this finding and I amend condition ANS01 to retain the deck but with the agreement of the applicant, to a maximum width of 1.5m.

20 In accordance with cl 9(3) of LEP 1988, I find that the retention of the pitched roof and the retention of the proposed third floor area is consistent with the objectives of the zone, in that the proposed alterations and additions do not degrade the amenity of the surrounding residents or the existing quality of the environment (Objective (b)).

21 As the councils draft conditions of consent required amendment and further plans were required to be prepared by the applicant, the parties were directed to file and serve the revised documents by 23 October 2006. The council subsequently filed the draft conditions on 24 October 2006 and the applicant filed the amended plans on 25 October 2006. These have been marked exhibits 8 and C respectively.

22 Other deferred commencement conditions have been deleted by consent as they are addressed by amendments or notations on the plans or are irrelevant following the findings made in the judgment.

23 The Orders of the Court are:

1) The appeal is upheld.
2) The application to modify DA 28/06 for alterations and additions to an existing dwelling at 29 Edgecliffe Parade, Seaforth is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits 8 and C.

____________
G T Brown
Commissioner of the Court