Clissold v Manly Council

[2004] NSWLEC 310

Land and Environment Court

of New South Wales

CITATION:

Clissold v Manly Council [2004] NSWLEC 310

PARTIES:

APPLICANT
Roger Clissold

RESPONDENT
Manly Council

FILE NUMBER(S):

10304 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :- loss of privacy - overshadowing - overbearing bulk and scale - building height and setbacks

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 79

CASES CITED:

DATES OF HEARING:

07/06/04

DATE OF JUDGMENT:

06/07/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr T Howard, barrister

RESPONDENT
Mr R Graham, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

Bly C

7 June 2004

10304 of 2004 Roger Clissold v Manly Council

JUDGMENT

1 The introductory material in this judgement, which was delivered extemporaneously on-site, has been extracted from the statement of basic facts tendered as exhibit 2 at the hearing.

2 The appeal relates to Development Application No 24/03 for the demolition of an existing weatherboard dwelling house at No 7 Willyama Avenue, Fairlight and the erection of a new two-storey building comprising two, two-bedroom dwellings.

3 The site, being Lot A, DP 335776 is located on the southern side of Willyama Avenue between Rosedale Avenue and Lauderdale Avenue. It has an area of some 529 sq m. The locality in which the site is located comprises a mixture of dwelling houses and residential flat buildings.

Statutory provisions

4 The site is situated in the Residential Zone under Manly Local Environmental Plan 1988(“the LEP”). It is also located within the Foreshore Scenic Protection Area.

5 Also applicable is Manly Council's Development Control Plan for the Residential Zone 2001 (“the DCP”).

Advertising and Council’s decision

6 The application was notified to adjoining property owners and residents and advertised in a local newspaper. It was also referred to the Fairlight Precinct Committee for comments. In response, five letters of objection were received. Included in the objections were letters from Mr. and Mrs. H Holmes of 84 Lauderdale Ave. and Mr. and Mrs. Timpson of 80 Lauderdale Ave. who gave oral evidence when the Court visited their properties, emphasizing their concerns in relation to loss of privacy, excessive overshadowing and excessive building bulk.

7 The application was refused at Council's Land Use Management Committee meeting on 4 Aug 2003 for reasons relating to: unsatisfactory density, floor space ratio, wall height, setbacks and privacy requirements; impacts on the Willyama streetscape; undesirable precedent for future development; and adverse impacts on the amenity of adjoining properties.

8 A subsequent review of the application including renotification of revised plans resulted in the application being again refused for similar reasons to those referred to above.

The issues

9 Having considered all of the evidence in the light of the further amended statement of issues provided by the respondent I have decided that the issues in this case are essentially about compliance with the DCP and the impacts on neighbours in Lauderdale Avenue, particularly Mr and Mrs Timpson and Mr and Mrs Holmes. Drainage May also be an issue. The matters of access to parking spaces, density and streetscape are of some but not determinative concern.

10 Whilst the Holmes’ are affected, it is the Timpson’s that, in my view, are likely to suffer the greatest impact as a result of this proposal. In particular their concerns relate to loss of privacy, overshadowing and the overbearing bulk and scale of the proposal. Overlaying these concerns are the non-compliances with the DCP, particularly building height and setbacks. I will return to these matters shortly.

11 As for the car park access as I explained during the hearing I have no concerns that a reasonable arrangement to access to the garage can be provided.

12 In relation to building density I note that the site is about 70 sq m short of what would otherwise be required for a two dwelling development, however, that despite this non-compliance it would not be unreasonable to allow two dwellings on this site. Floor space ratio was also mentioned as an issue but again I have no concerns about the exceedance of the standard in the DCP because I was not able to discern any impacts which might be directly related to this non-compliance.

13 Also during the hearing I dealt with the matter of drainage, expressing some concern at the limited information available in relation to the existing absorption pit, which was said to have the capacity to accommodate the additional storm water from the proposal. The existing/proposed arrangement for accommodating rainwater drainage needs to be further detailed and expert advice will be necessary.

14 Turning now to the amenity impacts, and notwithstanding that overshadowing was not raised as an issue, its strikes me that, as I asserted early in the hearing following the inspection of the neighbours properties, it is one of the more important issues in this case.

15 I have examined the shadow diagrams and in relation to the Timpson’s property I note that there will be additional overshadowing of their rear courtyard as well as a penetration of shadows into their living room and probably also the children’s bedrooms at midday at the winter solstice. This impact will, by extrapolation extent before and after midday to varying degrees.

16 Whilst visiting their property I considered this likely overshadowing impact at as well as the apparent bulk of the building by reference to the existing building and the adjoining buildings and noted its likely height.

17 I also considered the position of the two balconies, which the Timpson’s were very concerned about in terms of opportunities to overlook their property. In this regard there is no doubt that persons utilising those balconies would be able to see into the Timpson’s leaving room, children’s bedrooms and first floor study.

18 This loss of privacy will be significant, however, the impact is not determinative of this application because given the topography and orientation of the site with views over the Timpson’s property it is inevitable and not unreasonable that there will be balconies provided for the two dwellings to take advantage of the available water views. This opportunity should not be unreasonably restricted on the basis of privacy.

19 This is a medium density locality where high levels of privacy can not always be anticipated. In this context I also note that the proposal meets the 8 m rear setback requirement and the separation to the Timpson’s dwelling would be about 17 metres.

20 The landscaping arrangement as proposed and as a conditioned in relation to the development consent for the redevelopment of the Timpson’s property were the subject of much discussion. There is no doubt that appropriate landscaping on the subject site will facilitate some privacy as could further landscaping on the Timpson’s property. However, whilst landscaping is not something that should be given great weight in relation to privacy, it can nevertheless be taken into consideration.

21 As for concerns about the apparent bulk and scale of the proposal I do not believe proposal to be unreasonably bulky particularly by comparison with adjoining and nearby development but at this point I do recognise that the proposal exceeds the hight limit of the development control plan and it is clear to me that a different development would easily have been able to comply with the height requirement without any unreasonable loss of views.

22 But what is of greatest concern to me and indeed fatal to the application is the extent of the overshadowing of the Timpson’s property bearing in mind the non-compliances with the development control plan. The solar access requirements of the DCP require that new development must not eliminate more than one-third of the existing sunlight to open space of adjacent properties measured at 9 am, 12 noon and 3 pm at the winter solstice. As I indicated earlier I have extrapolated the shadow diagrams between 9 am and 3 pm and it is likely that the requirement of the DCP would not be met by this proposal. In the circumstances and in terms of the amenity of the Timpson's property the overshadowing impacts are of concern.

23 Whilst the non-compliances with the DCP height requirements are not great, when there are consequences of the kind I have described, then strict compliance with the standard should be sought to be achieved. It seems to me that it would not be difficult to redesign this development in such a way as to meet the requirements of the DCP and possibly even exceed them thus reducing bulk and improving solar access to the Timpson’s property.

24 I nevertheless doubt that a design could be produced that would entirely satisfy the Timpson’s because the applicant has available to it the reasonable expectation that a development which complies with appropriate controls should be approved.

25 In the circumstances although I have decided that while this proposal is reasonably close to being something which could be approved, the non-compliances with the DCP are such as to warrant refusal of the application. I have therefore decided that the appeal is dismissed and the development application is refused.

Orders

26 The orders of the Court are:

1. The appeal is dismissed.

2. The development application for the demolition of an existing dwelling house and the erection of a new building containing two dwellings at No. 7 Willyama Avenue, Fairlight, is determined by the refusal of consent.

3. the Exhibits A and 2 are retained.

________________________
T A Bly
Commissioner of the Court

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