Don Fox Planning v Manly

[2004] NSWLEC 82

Land and Environment Court

of New South Wales

CITATION:	Don Fox Planning v Manly [2004] NSWLEC 82
PARTIES:	Don Fox Planning Pty Ltd Applicant Manly Council Respondent
FILE NUMBER(S):	11426 of 2003
CORAM:	Roseth SC
KEY ISSUES:	Development Application - Existing Use Rights :-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	10/03/2004 and 11/03/2004
EX TEMPORE JUDGMENT DATE :	03/11/2004
LEGAL REPRESENTATIVES:	Mr C Gough, solicitor Mr R Graham, solicitor

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11426 of 2003

Roseth SC

11 March 2004

Don Fox Planning Pty Ltd

Applicant

v

Manly Council

Respondent

Introduction

1 This is an appeal against the refusal by Manly Council (the council) of a development application to demolish the existing building and erect a building containing commercial areas, a carpark for eight cars and eight residential flats on lot 141 DP 192310, known as 18 Raglan Street, Manly.

The site

2 The site is on the corner of Raglan and Whistler Streets. The frontage to Raglan Street is 12m, the boundary to Whistler Street is 30m, and the site’s area is 376m2. A single-storey funeral parlour now occupies the entire site. The adjoining building to the west is a three-storey backpackers’ hostel, built on the street alignment at Raglan Street, but with the upper storeys set back 6m and 10m from the rear boundary. To the rear the site adjoins partly No 23-31 Whistler Street and partly public land.

3 On the other side of Raglan Street are three-storey commercial buildings in a commercial zone. The site itself is in a residential zone, which is the reason that it has existing use rights.

The proposal and its history

4 The applicant proposes to demolish the existing building on the site and to erect a building containing commercial space and car parking on the ground floor and eight one-bedroom apartments on the two upper floors.

5 The applicant lodged the development application in May 2003. Following notification, the council received three objections from residents of the apartment building at 23-31 Whistler Street. The council refused the application under delegated authority in October 2003. The applicant lodged the appeal in November 2003.

Relevant legislation, planning instruments and policies

6 The Manly Local Environmental Plan 1988 zones this site Residential, a zone in which residential flat buildings are permissible. The Development Control Plan for the Residential Zone 2001 applies to the zone. The site is within the area covered by the draft Development Control Plan for the Pittwater Conservation Area. It is also within the area covered by the Manly Town Centre Urban Design Guidelines 2003. The Development Control Plan for the Business Zones 1996 applies to the other side of Raglan Street, though not to the site.

7 The proposal relies on existing use rights. The two advocates, Mr R Graham for the council, and Mr C Gough for the applicant, disagreed on the relevance of the above planning controls. Mr Gough submitted that neither the LEP nor the DCP for Residential Zones applied, at least not to the extent that they contained numerical standards. In Mr Graham’s submission, the LEP did not apply but the DCP did, as it was not an environmental planning instrument. Both Mr Gough and Mr Graham presented judgments in support of their submission. I am inclined to accept Mr Gough’s submission that the numerical standards of the DCP do not apply. In the event, whichever submission I accept makes no difference to my decision.

8 The two planning experts were Mr D Fox, for the applicant, and Mr E Armstrong for the council, both planning consultants. Although they agreed that the planning controls could not constrain a proposal that relied on existing use rights, they nevertheless referred to these controls to justify their opinion. Mr Fox referred to the DCP for the Business Zones and a superseded draft of the draft DCP for the Pittwater Conservation Area. Mr Armstrong referred to the DCP for the Residential Zone.

9 In my opinion, the DCP for the Business Zone has no relevance since it applies to another area. The controls in the DCP for the Residential Zone have relevance only to the extent that they indicate the kind of development that is likely to occur on other sites that do not have existing use rights.

The issues

10 The council’s Statement of Issues contained eight issues, of which several were not pressed, while others relied on non-compliance with standards in the DCP for Residential Zones. The applicant amended the application by removing two balconies to the north and pulling back the balconies that extended over Whistler Street. In my opinion, this leaves only one issue in the appeal, namely the impact of the development on the apartments in 23-31 Whistler Street. That impact is mainly a question of the setback from the rear boundary.

11 I note that Mr Armstrong was concerned also about the development’s impact on the backpackers’ hostel to the west. I do not think that that impact is a reason for refusal. The occupancy of the hostel is short-term. Any reasonable development of the site would have a significant impact on the hostel.

Impact on 23-31 Whistler Street

12 The Court heard the evidence of four objectors, who live in apartments in the building adjoining to the north, No 23-31 Whistler Street. Ms M Walker lives in unit 1 on the ground floor, Ms L Drummond lives in unit 2 on the ground floor, Ms J Boots lives in unit 5 on the first floor, while Mr J Lannen lives in unit 4 on the first floor. Mr Lennan’s apartment faces north, so he would not be seriously affected. The other three apartments have a courtyard or balcony towards the subject site and two have their living areas facing in that direction.

13 It is common ground that there would be only minor impact from overlooking and none from overshadowing. The main impact would be from the bulk of the proposal in close proximity to the ground floor courtyards and the first floor balcony. The bulk would reduce their outlook and make them darker. The objectors’ main fear is of being hemmed in.

14 In my opinion the impact on the three objectors would be adverse and significant. The proposal would reduce the angle through which they can look at the outside world to a small acute angle. It would destroy what little amenity they now enjoy.

15 The question is whether the undoubtedly serious impact on the amenity of the three units justifies the refusal of this application. This can be answered only by assessing the reasonableness of the proposal, particularly that of its setback from the rear boundary, which is the common boundary with 23-31 Whistler Street. At the ground floor the proposal comes to the boundary. This would not justify refusal because the existing single-storey structure on the site also comes to the common boundary. (I should add, however, that it would have been a generous gesture for the applicant to pull the building back at the ground level and provide deep-soil landscaping at the rear of the site.) The two upper floors come to within 2-3m of the rear boundary. This is a much smaller distance than is usually found in residential flat buildings.

16 There are two factors that suggest that this building exceeds what can be reasonably expected of residential flat building on this site. The first is that the development is built to the street alignment on the Raglan and Whistler Street frontages and with only partial setback from the west boundary. Although this results in an unusually large footprint and would not be permissible without existing use rights, the council raises no objection. Having extended the building to the three boundaries where there is no serious impact, it would be reasonable to expect the proposal’s designer to provide a generous setback from the one boundary on which there is a potential to impact on the amenity of the adjoining property.

17 The second factor is the example set by the adjoining backpackers’ hostel, of which the first floor is set back 6m from the boundary and the second is set back 10m. The impact at these distances is acceptable.

18 The impact of the present proposal, however, is not acceptable. Given that the development potential is maximised by building to three boundaries, it is unnecessary and unreasonable to come so close to the fourth. In my opinion the adverse environmental impact to No 23-31 justifies the refusal of this application.

19 In coming to the above conclusion I have taken into account Mr Gough’s submission that the common boundary with No 23-31 is not the rear boundary of the site. I do not accept this. The front boundary of the site is to Raglan Street, the side boundaries are to Whistler Street and the west, and the rear boundary is to the north. However, if the north boundary were a side boundary, the setback would still be unreasonably small.

20 For the above reasons the appeal is dismissed.

Orders

1. The appeal is dismissed.

2. Development application to demolish the existing building and erect a building containing commercial areas and eight residential flats on lot 141 DP 192310, known as 18 Raglan Street, Manly is determined by refusal.

3. The exhibits are returned.

_________________
Dr John Roseth
Senior Commissioner