Cooke v Manly Council

[2005] NSWLEC 445

Land and Environment Court

of New South Wales

CITATION:

Cooke v Manly Council [2005] NSWLEC 445

PARTIES:

APPLICANT
David Cooke

RESPONDENT
Manly Council

FILE NUMBER(S):

10397 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Alerations and additions to a single level timber dwelling house - view loss - loss of privacy - floor space ratio - solar access - visual impact - height - bulk - scale

LEGISLATION CITED:

Manly Local Environmental Plan

DATES OF HEARING:

11/08/2005

EX TEMPORE JUDGMENT DATE:

08/11/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Hones, solicitor
SOLICITORS
Hones Lawyers

RESPONDENT
Mr B Tobin, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Hussey C

11 August 2005

10397 of 2005 David Cooke v Manly Council

JUDGMENT

1 This is appeal is against council’s refusal of a development application for alterations and additions to an existing single level timber dwelling house situated at 111A Seaforth Crescent, Seaforth. The application proposes two levels below the existing house and a new level above the existing house and incorporating a new curved roof.

2 However, since the original application was lodged, amendments have been made following discussions with the council officers and that has resulted in consent orders being presented to the Court. Before this, the parties agreed to the appointment of Mr A Ludvik as the Court-Appointed Expert for planning matters and he has prepared a detailed assessment of the proposal, which I have marked and considered in conjunction with the consent orders.

3 The property is in the Residential Zone No. 2 under the Manly Local Environmental Plan and the dwelling house alterations are permitted with consent.

4 A number of issues were identified initially and they deal with exceedances of the development controls in terms of the FSR and height. Also issues concerning visual impact and public interest, which deal primarily with view losses due to the proposed new roof level.

5 It appears to me that the principal issue concerns the view losses as raised by the neighbours. I have had the opportunity of viewing at the site inspection and assessing the view intrusions from the different positions in the neighbours’ properties. I also note that Mr Ludvik has dealt with this view loss issue in terms of the " It appears to me that the principal issue concerns the view losses as raised by the neighbours. I have had the opportunity of viewing at the site inspection and assessing the view intrusions from the different positions in the neighbours’ properties. I also note that Mr Ludvik has dealt with this view loss issue in terms of the " Tenacity Principles " that the Court has adopted as a guide to assessing reasonable view sharing outcomes. From my observations at 113A, the most significant view loss is from the lower level, which is currently used for the bedrooms. It appears to me that even with the curved roof profile, No. 113A still maintains good panoramic views of the harbour. In my opinion, the amount of view loss is in a secondary view corridor and does not affect the primary harbour views.

6 Accordingly, I do not consider this secondary view loss is sufficient to reasonably require further amendment or redesign of the proposal to maintain those existing views. This conclusion is consistent with the application of the view sharing principles approach undertaken by Mr Ludvik, whose opinion I accept as being fair and reasonable in this particular case.

7 The other issues raised concern over floor space ratio (FSR) and the height of the proposal. But Mr Ludvik has dealt with these in the context of this properties steeply sloping topography, its natural vegetation - which provides extensive screening and also that a substantial part of the new building is in the undercroft area of the existing building envelope. Accordingly, he considers that any external impacts are minimised, because the design of the additions limits privacy intrusions, partly because there are no side windows to cause overlooking problems.

8 I am also satisfied that in the context of this properties situation, that the exceedances on the development controls are reasonable and also that the relevant objectives in the prevailing controls are adequately met as stated by the Court Appointed Expert. Therefore I rely on Mr Ludvik’s assessment and his following conclusion:

The proposal represents a satisfactory design response to the opportunities and constraints offered by the site and its setting to provide additional accommodation for the residents of the site.

The building, as altered and added to, would be consistent with the existing and desired character of this area and would be compatible with the existing built form character of residential development in this locality.

The proposal will not have any undue or unreasonable affect on the amenity of surrounding properties in terms of view loss, loss of privacy, solar access or visual impact as a result of its height, bulk and scale and complies with the objectives for floor space ratio and height controls contained in the Residential Development Control Plan despite its non-compliance with the numerical values of those controls.

The proposal will not have any deleterious affect when viewed from Middle Harbour and its foreshores or on the Foreshore Scenic Protection Area.

Accordingly, I have concluded that the proposal is suitable for approval subject to conditions, among other things, relating to colours to be used in the construction of the building.


9 As I now understand the outstanding conditions have been agreed to in the consent orders, it is therefore appropriate to make the following consent orders, which also includes the order that there be no award of costs.

10 By consent the Court orders:
1. The appeal is upheld.

2. Development consent is granted for alterations and additions to the existing dwelling house at 111A Seaforth Crescent, Seaforth, in respect of development application No.96/2004 in accordance with the conditions in Annexure “A”.

3. Each party pay their own costs of the appeal.
_______________________

R Hussey
Commissioner of the Court
rjs
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