Felton Constructions v Manly Council

[2009] NSWLEC 1195

Land and Environment Court

of New South Wales

CITATION:	Felton Constructions v Manly Council [2009] NSWLEC 1195
PARTIES:	APPLICANT Felton Constructions (Syd) Pty Limited RESPONDENT Manly Council
FILE NUMBER(S):	10962 of 2008
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- demolition of an existing dwelling and the construction of two attached dwellings - consistency with zone objectives - streetscape/character - solar access
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 1988
CASES CITED:	Project Venture Developments v Pittwater Council [2005] NSWLEC 191
DATES OF HEARING:	5 May 2009
EX TEMPORE JUDGMENT DATE:	5 May 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr M Staunton, barrister RESPONDENT Mrs L Finn, solicitor SOLICITORS HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

5 May 2009

10962 of 2008 Felton Constructions (Syd) Pty Limited v Manly Council

JUDGMENT

1 This is an appeal against the refusal of Development Application 57/8 by Manly Council (the council) for the demolition of an existing dwelling and the construction of two attached dwellings and the Torrens Title subdivision of the new dwellings at 6 Waratah Street, Balgowlah (the site).

The site

2 The site is lot 33 in DP 9860. It is rectangular in shape with a frontage of 13.41 m to Waratah Street, side boundaries of 40.235 m and a total site area of 539.6 sq m. The site has a gentle fall from the street to the rear boundary.

3 The locality comprises exclusively residential development but varied styles consisting of older style single level housing, some semi-detached dwellings, some two-storey dwellings and recently altered dwellings. There are also some older style residential flat buildings.

Relevant planning controls

4 The site is within Zone No. 2 Residential within the Manly Local Environmental Plan 1988 (LEP 1988). The proposal is permissible within this zone. Clause 10(3) provides that the consent cannot be granted unless the development is consistent with the zone objectives.

5 Manly Development Control Plan for the Residential Zone (Amendment 1) (the DCP) applies. Part 3 provides requirements for density (pt 3.2), floor space ratio (pt 3.4), building height (pt 3.5), setbacks (pt 3.6), open space and landscaping (pt 3.7) and car parking and access (pt 3.9). Part 4 provides requirements for sunlight access and overshadowing (pt 4.1), privacy and security (pt 4.2) and streetscape and fences (pt 4.4).

The contentions

6 Mr Steve Layman provided evidence for the council and Mr Geoff Goodyer provided evidence for the applicant. Mr Layman maintained that the development was inconsistent with zone objectives (c) and (d). Objective (c) states:

To allow a variety of housing types while maintaining the existing character of residential areas throughout the municipality.

7 Objective (d) states:

To ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment.

8 There was agreement between Mr Layman and Mr Goodyer that the proposed development satisfies the relevant requirements in the DCP except for car parking and access and open space and landscaping.

9 Overshadowing of the property at 4 Waratah Street was raised as an issue by the owners of this property.

Streetscape/character

10 The issue of car parking and access relates to the wider issue of streetscape and character. Mr Layman considers that the two car parking spaces in front of the building line are inappropriate in the streetscape. The street is characterised by visually recessive parking arrangements, typically with a side driveway leading to a rear garage. The proposal is inconsistent with the zone objectives in that it does not “maintain the existing character” and degrades the “existing quality of the environment.”

11 Mr Goodyear disagrees. He states the configuration of the built form is what could reasonably be expected under the council’s planning controls. There is compliance with the DCP requirements for floor space ratio, height and setbacks. The front setback is greater than the neighbouring buildings and the front façade has been broken up by stepping the southern dwelling back a further 1.2 m from the street than the northern building.

12 With the benefit of the site view and an understanding of the council’s planning controls, I agree with the conclusions of Mr Goodyer. Part 3.9 of the DCP provides objectives and its controls for car parking and access. Each dwelling is required to provide a minimum of two spaces (or 1.5 spaces each based on pt 3.9.4(c)). The applicant has chosen to provide a single garage for each dwelling and a hard stand area in front of the garage. The DC provides no barrier to this configuration subject to it being “sited and designed so as to not dominate the street frontage.” In my view, any attempt to construct a double garage for each dwelling would clearly result in a design that would dominate the street frontage.

13 While Mr Layman sought to compare the proposed dwellings with the character and layout of the existing dwellings, I do not accept that this is a reasonable basis for assessing the impact on the character of the area. The existing dwellings are older style single dwellings and the planning regime has changed considerably since these dwellings were constructed; LEP 1988 and the DCP now contemplate different forms of development. There is no valid planning reason why redevelopment should not occur using the form of development contemplated by LEP 1988 and the DCP whilst still showing some respect to the existing older form of development.

14 The Court was taken to the planning principles in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 where the Senior Commissioner identified a number of elements that should be considered in assessing the question of compatibility of development. These include building height, setbacks, landscaping, architectural style and materials. The development needs to be considered as a whole and even if one element is different to the established elements in the area, this does not necessarily make a new development incompatible. In my view, if the proposed development is considered in the context of those elements identified in Project Venture, I am satisfied that the proposed development would be seen as compatible with other development in Waratah Street.

15 I would, however, suggest some minor amendments to further add to the proposals acceptable relationship with the streetscape. If the existing colonnades on either side of the building are located behind a more solid wall adjoining the garages at the ground floor level, then a more balanced elevation will be provided to the street, as the prominence of the garages will be reduced. Also, gates to match the existing fence should be provided to further reduce the prominence of the garages. This can be achieved by way of a condition of consent. The parties were directed to formulate an appropriate condition however each party provided their own version of a condition. While similar, I have adopted the applicant’s version as it more closely represents my comments when the extempore decision was handed down.

16 I find that the proposed development is consistent with the relevant zone objectives and also the objectives in pt 3.9.1 of the DCP.

Open space

17 It was agreed that the proposal does not satisfy the numerical requirements in pt 3.7 of the DCP for open space. The DCP requires 55% of the site be provided as open space. The proposal provides 46.8% or a deficiency of 44.28 sq m. Mr Layman states that a compliant development is possible and desirable and greater compliance could be achieved through some minor redesign. Mr Goodyer states that while the development do not satisfy the numerical open space requirements, the requirements for soft landscaping area is exceeded and importantly the objectives in pt 3.7 are satisfied.

18 In accepting that it would be desirable for the application to satisfy the numerical requirements for open space and landscaping, I am not satisfied that it is of such a significant issue that it warrants the refusal of the application. I agree with Mr Goodyear that even with the reduced amount of open space compared to the DCP requirements, the objectives of the DCP are satisfied. The open space areas are appropriately located in relation to each dwelling, provide an adequate area, are configured with dimensions that will encourage their use and will also achieve a high level of water infiltration.

Driveway grade

19 Issues relating to driveway grade have been further considered by the experts and can be addressed through conditions of consent. (See condition ANSO5).

Conditions

20 Conditions ANSO4 and ANS06 were in dispute between the parties. Condition ANSO4 requires the mirror reversing of the dwellings, presumably to provide increased solar access to the adjoining dwelling at 4 Waratah Street. The requirement in control 4.12(e) requires that new development must not eliminate more than 33.3% of the existing sunlight accessing the private open space of adjacent properties at 9am, midday and 3pm on 21 June. There was no disagreement that the proposal satisfied the requirements for 9am and midday and the difference between the experts at 3pm was whether the shadowing was 33% or 36%.

21 Loss of solar access to the adjoining property would not, in my opinion, be a reason to refuse the application, given that the solar access to this property complies with the requirements in pt 4.1 of the DCP or is so close to complying that the difference would not be discernible.

22 Condition ANS06 seeks to increase the amount of open space by reducing the length of the dwellings by 1 m. For the reasons mentioned earlier on the adequacy of the existing open space, the condition can be deleted.

Orders

23 The orders of the Court are:

1. The appeal is upheld.
2. Development Application 57/8 for the demolition of an existing dwelling and the construction of two attached dwellings and the Torrens Title subdivision of the new dwellings at 6 Waratah Street, Balgowlah is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibit A.
____________
G T Brown
Commissioner of the Court