Fallins D W v Manly Council

[2007] NSWLEC 366

Land and Environment Court

of New South Wales

CITATION:	Fallins D W v Manly Council [2007] NSWLEC 366
PARTIES:	APPLICANT: Dominic William Fallins RESPONDENT: Manly Council
FILE NUMBER(S):	10168 of 2007
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Bulk, scale and height Zone objectives Heritage
LEGISLATION CITED:	Manly Local Environmental Plan 1988, (MLEP) Environmental Planning and Assessment Act 1979, ss79C and 97
DATES OF HEARING:	01/06/2007 and 14/06/2007
EX TEMPORE JUDGMENT DATE:	14 June 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr J B Hones, solicitor SOLICITORS: Hones Lawyers RESPONDENT: Mr R K Graham, solicitor SOLICITORS: Home Wilkinson Lowry, Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

14 June 2007

10168 of 2007 - Dominic William Fallins v Manly Council

JUDGMENT

1 This was a s 34 Conference in respect of an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Manly Council (the council) of a development application to alter and add to an heritage listed dwelling house at Lots 1 and 2, DP134680, being No 10 Quinton Road, Manly. The parties did not reach agreement however, they requested the Commissioner to determine the matter.

2 I visited the land in company with the parties on the second day of the s 34 Conference.

3 I have concluded that the application must fail when considered under s 79C of the Environmental Planning and Assessment Act 1979, in particular, for the adverse impact that the works would have on the heritage significance of the dwelling.

The land

4 The land is situated on the eastern side of Quinton Road and the nearest cross street is Raglan Street to the south. The frontage to Quinton Road is 11.48m and the rear alignment to Ocean Lane is 10.55m. The depth on the northern side is 35.68m and the depth on the southern side is 35.69m with a site area is 366.8m2.

5 A two-storey Federation dwelling, was erected on the land in 1908 and is relatively intact. At the rear there is a two-storey flat-roofed brick addition and there is a single brick garage in the northeast corner of the land.

6 Nearby development opposite and to the rear are detached residential dwellings. To the south of Raglan Street is Ivanhoe Park with associated club and recreation facilities.

Relevant planning controls

Manly Local Environmental Plan 1988, (MLEP)

7 Under the provisions of the MLEP the land is zoned residential and the proposal is permissible with consent.

8 The subject land and dwelling is listed as an item of architectural heritage significance under the MLEP as is each dwelling on either side of Quinton Road from Raglan Street to Augusta Road, Manly, [Note: Exhibit 6, Schedule 4, p 33, Quinton Road, Manly].

The proposal and its history

9 Development application No 458/2006 was lodged with the respondent council on 26 October 2006 to alter and add to the rear of the existing dwelling on the land.

10 No Heritage Impact Statement accompanied the development application. Such would have been prepared under the Guidelines of the New South Wales Heritage Manual and the Burra Charter.

Notification

11 The development application was notified to nearby owners and occupants, the subject of public notification on 16 October 2006, and the council received six, (6) objections.

The council’s decision

12 When the appeal was filed the council had not yet determined the application. However, by notice dated 2 April 2007, the council refused the application for reasons that are reflected in the amended issues.

The hearing

13 The appeal was filed on 1 March 2007 as a deemed refusal.

14 At the hearing the court heard evidence on behalf of the respondent council from:

· Ms G Lynch, resident of No 8 Quinton Road, Manly;

· Ms D Smith, heritage advisor, Manly Council; and

· Mr J S Cother, town planner Manly Council.

15 On behalf of the applicant evidence was given by:

· Mr S Davies, heritage consultant;

· Mr J A Moody, consultant town planner;

· Mr D W Fallins, owner and applicant; and

· Ms J Shilson-Josling, occupier.

16 Before the conference commenced Ms C Hodgson, resident of No 12 Quinton Road, Manly withdrew her objection to the proposal. [Note: Exhibit 13: Letter of withdrawal dated 4 June 2007].

The amended issues

17 On 31 May 2007, the council filed an amended statement of issues in respect of the amended plans, [Note: Exhibit 11].

NOTE ON DEVELOPMENT CONTROL PLANS

ADDITIONAL INFORMATION REQUIRED TO ASSESS THE APPLICATION

Dwg. No. DA-01 Amendment B dated 25/05/07

Dwg. No. DA-02, Amendment B dated 25/05/07

Dwg. No. DA-03 Amendment B and DA-04 Amendment A dated 23/05/07

The issues in these proceedings are as follows:
INCONSISTENT WITH THE ZONE OBJECTIVES

Particulars
A. Clause 10 (3) of the Manly LEP 1998 requires:
(3) 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.
The proposed alterations and additions to the existing dwelling house, incorporating a third level, first and second storey decks, car space, swimming pool, terraces, landscaping and fencing will be inconsistent with the following relevant zone objectives:

B. The facts, matters and circumstances relied upon to formulate the opinion expressed in Item A are detailed below.

HERITAGE

Particulars
The proposal does not achieve the Aims and Objectives of the Manly Local Environmental Plan 1988 Part 1, 3. (1)

The proposal does not meet the requirements in the Manly Development Control Plan for the Residential Zone 2007 (Heritage items p 12 objectives (a) - (d))
The proposal breaches Article 22.1 of the Australian ICOMOS Burra Charter that states ‘New work such as additions to the place may be acceptable where it does not distort or obscure the cultural significance of the place, or detract from its interpretation and appreciation.’
No 10 Quinton Road is an item of environmental heritage listed in Manly Local Environmental Plan 1998 Schedule 4. The existing house is a relatively intact two-storey Federation dwelling. No. 10 Quinton Road is in the vicinity of a number of listed items that provide a wide range of architectural styles between c. 1900 and c. 1940. The rooflines and first floors are visible from Manly Town Centre.
The existing relatively intact two storey Federation dwelling has an existing unsympathetic two storey flat roof brick addition at the rear which more than fills the extent of change that this building is capable of absorbing. The proposal is for an additional deck on the second level at the rear and another level consisting of a bedroom, ensuite and deck on the two storey extension.
The additional unsympathetic level further compromises the architectural integrity of the original building. Little respect and consideration of the original building in terms of scale, massing and character has been give to the proposal. While the proposed addition does not protrude above the ridge of the existing house it competes with the height and size of the original building. In addition the roof profile is one of the key determinants of the overall form of the original building. The additional level will further obscure the extent that the principle form of the roof and the original building can be determined.
It is considered that the proposed third level is contrary to the Manly Local Environmental Plan 1988 Part 1, 3. Aims & Objectives (1) g) & h) and Clause 18 Items of the environmental heritage; the Manly Development Control Plan for the Residential Zone 2001 Clause 3.11.1 a) & d); and the Australian ICOMOS Burra Charter Article 22.1.

Particulars
The proposal does not achieve the Aims and Objectives of the Manly Local Environmental Plan 1988 Part 1, 3. (1):

The proposal does not meet the requirements in the Manly Development Control Plan for the Residential Zone 2007 objective d p13.
The proposal breaches Article 8 and Article 1.1 of the Australian ICOMOS Burra Charter.
Article 8 Setting: states that “Conservation requires the maintenance of an appropriate visual setting and other relationships that contribute to the cultural significance of the place. New construction, demolition, intrusions or other changes which would adversely affect the setting or relationship are not appropriate.”
Article 11 Related places and objects states that “The contribution which related places and related objects make to the cultural significance of the place should be retained.”
No. 10 Quinton Road is in the vicinity of a number of listed items that provide a wide range of architectural styles between c. 1900 and c. 1940. The roof lines and first floors are visible from Manly Town Centre.
The Burra Charter defines setting as ‘the area around the place, area, land, landscape building or other work, group of buildings or other works, and may include components, contents, spaces and views’ and defines related place as ‘a place that contributes to the cultural significance of another place.’
The original articulation, materials, details and setting of No 10 Quinton Road constructed during the significant development period of the area, contributes to the interpretation, appreciation and experience of the items in the vicinity. The proposed addition will have a major impact on the overall scale of the existing house as well as permitting the visual obstruction of the building. The roof profile is one of the key determinants of the overall form of the building and contributes collectively to the character of the area. The alteration to the roof form will have a detrimental impact on the building, its setting and the items in the vicinity.
In addition the NSW Heritage Office publication “Heritage Curtilage” describes ‘Curtilage’ as the extent of land around (a place) which “should be defined as encompassing its heritage significance.” No 10 Quinton Road and the items in the vicinity have an expanded heritage curtilage. The heritage curtilage is actually larger than the allotments and is relevant where views to and/or from a place are significant to the place. As a consequence there will be a detrimental impact on the cultural significance of No 10 Quinton Road and the items in the vicinity.
It is considered that the proposed third level is contrary to the Manly Local Environmental Plan 1988 Part 1, 3. Aims & Objectives (1) i) &j) and Clause 19 Development in the vicinity of an item of the environmental; the Manly Development Control Plan for the Residential Zone 2007; and the Australian ICOMOS Burra Charter Article 8 & 11

BULK, SCALE AND HEIGHT

Particulars

(a) Inconsistent with Clause 3 (1) (e) and (j), Clause 4 (a) (i.i) and Clause 10 (b), (c), (d) and (h) of the Manly LEP 1998.
(b) DCP 2007 states: Number of storeys: Other than within density sub-zones 1 and 2. and notwithstanding the provisions of specific numerical height controls, building shall not exceed two storeys unless specific physical site constraints warrant voiding this requirement.

Particulars

(a) Inconsistent with Clause 4 (a) (ii) and (viii) and Clause 10 (b), (c), (d) and (h) of the Manly LEP 1998.
(b) Non compliance with Section 3.3.1 and 3.3.2 (a) and (c) of the DCP 2001.
(c) Non compliance with the Floor Space Ratio Objectives and Controls of the DCP 2007.

Particulars

Inconsistent with Clause 4 (a) (ii) and (viii) and Clause 10 (b), (c), (d) and (h) of the Manly LEP 1998.

OPEN SPACE / LANDSCAPING / SWIMMING POOL

Particulars

OVERSHADOWING

Particulars
Non-compliance with ‘Sunlight Access and Overshadowing’ Control of the DCP 2007 (page 29).

FENCES AND WALLS

Particulars
The elevation above natural ground level of the rear terrace and swimming pool necessitate the construction of the high rear fence. Inconsistent with ‘Streetscape and Fences’ Objective (a) of the DCP 2007 (page 32).

Particulars

PRIVACY

Particulars

CAR PARKING

Particulars
(a) The proposed development is contrary to General Objectives (m) (page 4) and the ‘Car parking’ Objectives and Controls (page 26) of the DCP 2007.
ISSUES RAISED BY OBJECTORS

13. Only issues raised following the notification of the amended plans from 14 May 2007 to 28 May 2007 are included below.
(a) Non-compliance with the DCP 2001 and DCP 2007.
(b) Proposal not in character with the locality and Heritage Streetscape.
(c) Visual impact of front retaining wall and associated fence on adjoining property No. 8.
(d) Quinton Road and impact of the retaining wall and fence on the streetscape character and drainage.
(e) Amenity impacts on adjoining dwellings in terms of privacy, visual imposition and view loss from No 12 Quinton Road as a result of screen planting.
(f) Inaccurate and incomplete shadow diagrams.
(g) Inaccuracies in the plans.
(h) Drainage.

18 The following emerged as the salient issues:

· bulk, scale and height and inconsistency with the zone objectives;

· heritage;

· open space/ landscaping/ swimming pool;

· overshadowing;

· fences and walls;

· privacy;

· car parking; and

· issues raised by objectors.

The evidence and findings

Bulk, scale and height and inconsistency with the zone objectives

19 Mr Moody was satisfied that although the proposal would not comply with wall height and FSR, the proposed third storey addition would fit within the bulk, scale and height of nearby development. He considered that despite the breach of 0.04:1 of the FSR control, the proposal would be “…well within the character of the area.” He said, “it is a third storey, but [it would be visually] recessive, and it is within the volume if one were to build a roof.” He confirmed that the northern and southern walls of the third level would be setback further than required from the side boundaries and would be also setback at the rear. He considered the proposal to be a “…modest addition and well within the building bulk in this area.”

20 Mr Cother, for the council, considered that the FSR of 0.6:1 under the RDCP is a maximum and in combination with other controls seeks to limit bulk of development. He considered that adherence to these controls is paramount for reasons set out in the aims of the April 2007 RDCP. He pointed out that the proposal would be around 16.5m2 in breach of the FSR controls, and that the wall height of the third floor would be 31% excess of the allowable height on the north and on the south the proposal would breach the height controls by 51%. He agreed that on the south the percentage breach would be less if Moody’s method of calculating height by measuring vertically from the natural ground line were taken into account.

21 He said that the attic is a small element that will interrupt the line of the hipped and tiled roofs that are part of the character of the area. He suggested that from Manly oval it would be possible to see that this addition “…will interrupt the integrity of the hipped and tiled roofs”.

22 I carefully considered the evidence of both Messrs Moody and Cother and I am of the view that were the additional floor space contained within the roof form it might be acceptable. Unfortunately, as it is designed it presents as a third level and would be contrary to the aims of the RDCP and must be refused consent for reason of excessive bulk, height and inappropriate scale.

Heritage

23 As indicated in the statement of basic facts, the applicant has employed the services of various consultants including Mr Moody, town planner, Mr S Davies, heritage consultant, Messrs A Hogg and N Waller, builders and a pre-lodgement meeting was held with Mr H Watson town planner of Manly Council. However, the results of this consultation have been less than satisfactory.

24 Mr Davies stated, [Exhibit G, p 1]:

It must be noted that it is Quinton Road, from Raglan Street to Augusta Road, which is the heritage item. This involves all properties between the two streets and no details are given for individual properties in the LEP. The dwellings form a streetscape of significance in relation to materials and predominant date of construction, however, they vary in style and integrity. It is noted that the subject dwelling at No 10 Quinton Road is relatively intact in its frontage to Quinton Road however, has been significantly, and unsympathetically altered at the rear.

25 Mr Davies in oral evidence stated “I accept that the street is a heritage item or place and it is effectively a conservation area.” He considered the dwelling house as “…a contributory item in the streetscape.” He recognised that the rear ‘third level’ is at issue, but in the context he said, “…I have no concern because of the changes here.” He said that where there is no uniformity of building style, bulk and scale and most dwellings have had alterations and additions at various times there is scope for further change.

26 He accepted that there might be more solid to void style and the current [old] addition is reasonably unsympathetic and the proposed simple detailing will soften that and “…hold it together a bit better”.

27 He said that an earlier proposal was to have glazed balustrades and these now have been changed to timber.

28 He stated it is “…my view that the… roof is not so significant in this context that it can’t be changed by this form.” He contented himself that the side roofs would be maintained and the third floor addition would be set in. He said, that if we had a row of terraces or Haberfield villas where all the roofs are visible as a consistent entity “…a new form, as an exception, is generally not accepted”. However, when asked, he said that it would be “…preferable to have the roof unaffected”, and one might not have the attic level.

29 Ms D Smith in her oral evidence stated that the heritage listing of Quinton Road includes all buildings within the area from Raglan Street to Augusta Road and from the rear boundary of the properties to the east and to the rear lane on the west. She confirmed that all the houses are locally listed items and not as a separate streetscape or conservation area as suggested by Mr Davies. However, she pointed out that within the Manly area, there are also two conservation areas that are to be distinguished from the heritage listing of the dwellings in Quinton Road. Thus, the statutory heritage listing clearly shows each building within the street is listed from front to back.

30 She was of the opinion that the heritage statement of significance indicates the streetscape is of major significance and that includes Federation dwellings, stone cottages and semi detached dwellings. She considered the terra cotta tiled, slated roofs and first floors are visible from Manly town centre and these roof forms are important.

31 She considered the proposed additions to be “…unsympathetic and works that will compromise the building further should not be permitted”. She added that the proposed third level is not a ‘room in the roof’ and would break the line of the roof and this is a critical point for any dwelling house.

32 She was of the opinion that the proposed additions “…don’t relate in any way to the building.” She pointed out that modern additions, as a design option, were not even considered here and these that are proposed are quite unsympathetic and the additional storey adversely impacts on the integrity of the house.

33 I accept the evidence of Ms Smith that all the dwellings in Quinton Road are individually listed heritage items and their rooflines are important elements. I accept her evidence that the proposal is not a ‘room in the roof’ as required by the RDCP and would appear as a third level and of inappropriate form. It is a third level that does little to improve the design of the rear of the dwelling or to hold it together a bit better as was Mr Davies hope. As a result the application must fail.

34 Under the planning controls, development contained within a two storey plus room-in-the-roof height, might result in an acceptable design. Under the RDCP the maximum roof pitch is set at 36 degrees and should match the materials and finishes of the existing dwelling house in order to co-ordinate and harmonise with the existing dwelling and with the streetscape. Otherwise, the extra bedroom as sought by the applicant should be within the existing envelope.

Open space / landscaping / swimming pool fences and walls and privacy

35 Mr Cother pointed to a loss of soft open space and was critical of the elevated nature of the rear yard.

36 In this regard the neighbour Ms Lynch sought a lowering of the levels. She considered the proposed development would present as four-storey building and as a result would be overbearing.

37 Mr Moody suggested that in addition to the screens proposed at the rear along the boundary on the western end of the common boundary near the existing dwelling on the land, further physical screening to a height of 1.5m could be provided near the car space in order to promote a greater level of privacy.

38 In order reduce privacy impacts and reduce reliance on physical screening to provide privacy, I consider it would be appropriate to lower the level of the proposed pool and its surrounds. I am satisfied that in order for the proposal to be less overbearing on the neighbouring property to the south at No 8 Quinton Road it would be appropriate to lower the level of the proposed pool and its surrounds in the order of 400mm.

Overshadowing

39 Ms Lynch was satisfied that the applicant had adequately addressed the question of overshadowing in so far as she could determine from the shadow diagrams. She pointed to some inaccuracies in the shadow diagrams, in that some of the windows at the rear of her dwelling were not shown and others were incorrectly shown.

40 I am satisfied that the proposal would not unreasonably overshadow the neighbouring property.

Car parking

41 Mr Moody considered that parking is not required for the additional bedroom and the car space provided would be adequate. He pointed to the fact that the council’s engineer also did not object to any lack of car parking.

42 I would not require additional car parking be provided were the dwelling on the land enlarged by one bedroom as proposed.

Issues raised by objectors

43 Ms Lynch attended the s 34 Conference and gave evidence. Her views were taken into account in rejecting the application. Other residents who objected did not attend the conference however their comments were received.

44 For the above reasons, the appeal is dismissed.

Orders
45 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 458/2006 lodged with the respondent council on 26 October 2006 to alter and add to the existing dwelling at Lots 1 and 2, DP 134680, being No 10 Quinton Road, Manly, is refused consent.

3. The exhibits except for Exhibit A, J, K, 1, 2, 3, 4, 5 and 10 are returned.

S J Watts

Commissioner of the Court

sw