Frank Back v Northern Beaches Council

Case •

[2017] NSWLEC 1311

•

22 June 2017

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Frank Back v Northern Beaches Council [2017] NSWLEC 1311
Hearing dates: 24 May 2017
Date of orders: 22 June 2017
Decision date: 22 June 2017
Jurisdiction:Class 1
Before: Morris C
Decision:

Appeal upheld

Catchwords: CONSENT ORDERS: residential flat building, impact on adjoining properties
Legislation Cited: Environmental Planning and Assessment Act 1979
Manly Local Environmental Plan 2013
Texts Cited: Manly Development Control Plan 2013
Category:Principal judgment
Parties:

Frank Back as Administrator ad Litem for the Estate of the late George Tsivis (Applicant)

  Northern Beaches Council (Respondent)
Representation: Solicitors:
Mr T Sattler
Sattler & Associates (Applicant)
Mr S Patterson
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 262161/2016

Judgment

  1. Development application DA 61/2016 was lodged with the then Manly Council on 14 March 2016 seeking consent for demolition of an existing duplex and construction of a new four storey, three unit residential flat building with internal lift, three-car garage at ground level, landscaping and strata subdivision at 50 Collingwood Street, Manly. The Council refused consent on 21 July 2016 and the applicant is appealing that decision pursuant to the provisions of section 97(1)(a) of the Environmental Planning and Assessment Act 1979 (EP&AAct).

  2. The contentions in the case have been resolved through the submission of amended plans or which leave was granted at the commencement of this hearing subject to the applicant paying the council's costs thrown away as agreed for assessed pursuant to section 97B(2) of the EP&AAct and it was agreed the changes made to the plans were not minor. The parties are seeking Consent Orders from the Court.

The site and its context

  1. The site is legally identified as Lot 1 in DP 909018 and is located on the southern side of Collingwood Street, Manly approximately 45m from its intersection with North Steyne. It is irregular in shape with a frontage of 10.11m, a variable depth of 9.03m and 13.715m resulting in a site area of 116m².

  2. There is an existing two-storey duplex on site and no off-street parking is provided. The building is built in close proximity to the boundaries.

  3. The locality is characterised by a mix of residential flat buildings and residential dwellings varying in architectural style and height.

  4. The adjoining property to the west is occupied by a four storey residential flat building with a six storey residential flat building located to the south east. The property immediately to the east of the site is occupied by a two storey residential flat building located on the corner of Collingwood Street and North Steyne.

  5. Development located on the northern side of Collingwood Street is characterised by one and two storey detached dwelling houses and there is a small commercial centre on the north-western corner of Collingwood Street and North Steyne. The site is located within the immediate walking distance of Manly Beach, North Steyne Surf club and Manly Lagoon.

Background and the proposal

  1. At the commencement of this hearing, the applicant sought leave to rely on amended plans, exhibit A. Those plans were prepared following a conciliation conference that had been held on the site on 5 December 2016. At that time the parties were unable to resolve all of the contentions however, additional work has been carried out between the parties which has now led to resolution of all of the contentions in the case.

  2. The amendments that have been made the plans as originally refused by the Council are summarised as follows

  • Removal of ground level car park component of the development reducing building height from 4 to 3 storeys and by a total of 2.42m.

  • Deletion of the proposed driveway crossing and retention of the street tree.

  • The adaptable apartment is now located at ground level.

  • The building setback to the side and rear boundary have been increased.

  • The staircase has been flipped to the western side of the building with apartment layout reconfigured accordingly.

  • All side boundary facing windows have been removed.

  • A new dedicated external accessed garbage bin storage area has been provided at ground level and recessed into the building structure.

  1. According to the joint town planning report prepared by Mr G Boston for the applicant and Ms A McCabe for the Council, the reduction in building height significantly reduces the height, bulk and scale of the development as viewed from the street and neighbouring properties and improved solar access and view lines for a number of apartments within the adjoining residential flat building at No. 48 Collingwood Street. The provision of the adaptable apartment at ground level negates the need for a lift and improves internal layout efficiencies and the removal of side boundary facing windows maintains appropriate visual privacy to neighbouring properties.

  2. The proposed three storey building contains 3 x one bedroom apartments, each unit occupying separate floors. No provision is made for on-site parking.

The planning controls

  1. The site is zoned R3 Medium Density Residential under the provisions of Manly Local Environmental Plan 2013 (LEP). The proposed development is permissible with consent in that zone. Clause 2.3(2) of the LEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R3 zone are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment.

• To encourage the provision and retention of tourist accommodation that enhances the role of Manly as an international tourist destination.

  1. The LEP provides Principal development standards, with clauses 4.3 Height of buildings and 4.4 Floor space ratio (FSR) relevant to the application. Those standards provide for a maximum building height of 13m and a maximum FSR of 1.5:1. The application before the Court complies with these a development standard.

  2. Manly Development Control Plan 2013 (Amendment 7) (DCP) applies to the site.

The issues

  1. The original contentions in the case were that the proposed development represented an unacceptable overdevelopment of the site; was excessive in bulk, scale and massing and it failed to comply with the maximum number of storeys and roof height controls set out in the DCP; it failed to comply with the boundary setbacks and landscaped areas resulting in a built form that is uncharacteristic in the street; those non-compliances with setback, storey requirements and landscaping controls resulted in unacceptable amenity impacts to adjoining developments in terms of overshadowing, bulk and scale, visual and acoustic amenity and poor internal amenity to the proposed building and the proposed development would not be in the public interest having regard to the number of submissions received by the Council in response to its notification of the application.

The evidence

  1. At the commencement of the conciliation conference, the Court took a view of the site and the surrounding locality and heard evidence from a number of objectors to the proposal. The site view included observation of the site from within a number of units in adjoining residential flat buildings in the company of the owner of those apartments.

  2. At the commencement of the hearing, one of those objectors, a resident of a unit within No. 48 Collingwood Street gave evidence. She expressed concerns regarding the loss of privacy and sunlight to her property due to the small rear boundary setback. She considered that the building was too close to the balcony and the two windows in the rear elevation presented privacy concerns. In acknowledging the building was 3.4m below the building height control contained in clause 4.3 of the LEP she said the building was still too high, adversely affected the amenity of her property and would still be visible. In relation to privacy concerns, she agreed that the provision of angled louvres would address visual but not aural privacy.

  3. Mr Boston and Ms McCabe gave expert planning evidence. Ms McCabe agreed that the rear windows that face 48 Collingwood Street, despite being bedrooms, should incorporate some privacy screening. She noted that the living areas of each unit were directed towards the street, that the bedroom windows needed to be openable and, having regard to the density of development in the locality, considered the noise impacts of the proposal were acceptable.

  4. Mr Boston agreed that horizontal blades set out an appropriate distance apart or a performance-based solution to the visual privacy issue could be addressed through conditions of consent.

  5. The parties have prepared a condition to reflect this issue (condition 2A).

  6. In relation to solar impact, Ms McCabe accepted that the objectors property would be impacted, noting that the proposed building is under the Principal development standards for both height and floor space ratio, the height being significantly below the maximum permitted on the site. She says any development on the site would have an impact and on balance that impact when considered holistically is not unreasonable.

  7. Mr Boston agrees and says at 11am there is a sliver of sun available to the balcony which increases until 1pm. He notes the DCP control is for two hours and that that the sun reaches the larger part of the balcony at this time. At 2pm the angled part gets sun to 3pm so another one hour solar access is available. He says that satisfies the Council’s solar access requirements and is therefore acceptable. He also notes that the living areas of that property receive a certain degree of self-shading associated with the glazing to the living room windows.

  8. The experts agree there are no view loss issues that justify refusal of consent. In relation to side setbacks, they note the setbacks maintain those that are existing, that the design slopes the upper story away from those boundaries and that the separation distances between buildings are not out of context with the locality.

  9. The experts also agree that the proposed density is appropriate noting that the floor space ratio is less than the 1.5:1 maximum permitted under the provisions of the LEP. They also agree that the extent of landscaped open space is satisfactory noting that all areas are now 100% true deep soil. They say the site is 50m from Manly Beach and enjoys good amenity.

Conclusion and findings

  1. Having regard to the evidence, and had the benefit of a site view, I consider the amended proposal is satisfactory and warrants consent.

  2. Because of the small size of the property, and the proximity of adjoining developments to the site, it is inevitable that some impact would occur through redevelopment in accordance with the planning controls that apply to the site. On balance, I consider the impacts of the proposal are acceptable and meet the objectives of the controls and the design, bulk and scale of the building would be compatible with the character of the locality.

  3. Of particular relevance to the circumstances of the case is the fact that the proposed building height is some 3.4m below the maximum building height permitted and the FSR is also well below the maximum allowed.

  4. The site is within an area of higher density residential development with adjacent developments built close to boundaries and therefore, not satisfying DCP controls or setbacks recommended in the Apartment Design Guide. The siting of those buildings results in greater impacts to the occupants than would occur if they complied with setback controls. It would be unreasonable to further restrict development of the site to fully mitigate all impacts to adjoining property. To do so would be to render the site sterile.

  5. I am satisfied that the proposal is lawful and complies with the relevant provisions of the LEP and the objectives of the control in the DCP.

  6. There being no reason why the Consent Orders should not be made, by consent, the Orders of the Court are

  1. The applicant is granted leave to rely on the amended plans referred to in condition 1 to Annexure A subject to payment of the council’s costs thrown away pursuant to the provisions of s97B(2) of the Environmental Planning and Assessment Act 1979.

  2. The appeal is upheld

  3. Development application DA 61/2016 for the demolition of an existing duplex, construction of a three-storey residential flat building containing 3 x one bedroom apartments, landscaping and strata subdivision at 50 Collingwood Street, Manly is approved subject to the conditions in Annexure A.

  4. The exhibits, other than exhibits A and 2 are returned.

_________________

Commissioner Morris

262161.2016 (C) Annexure A (343 KB, pdf)

**********

Amendments

23 June 2017 - Replaced 'application' in Order 1 w 'applicant'

Decision last updated: 23 June 2017

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

2