Gleeson and Paris v Manly Council
[2013] NSWLEC 1232
•04 December 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Gleeson & Paris v Manly Council [2013] NSWLEC 1232 Hearing dates: 26, 27 November 2013 Decision date: 04 December 2013 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld.
2. The application to modify of DA 507/2005 granted by the council on 15 July 2007 for the erection of 2 attached dwellings and strata subdivision at 31 Boyle Street Balgowlah is determined by approving the modifications subject to the modified and consolidated conditions of development consent set out in Annexure A.
3. The exhibits, other than exhibits 1 and F, are returned.
Catchwords: MODIFICATION: previous approval for 2 attached dwellings and strata subdivision - modification sought for extension of the approved second floor to include a third bedroom, including an additional access stair - reconfiguration of the internal layout by relocating the kitchen and dining room - bulk, scale and overshadowing impacts - streetscape impacts - unacceptable loss of privacy Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Gleeson & Paris (Applicant)
Manly Council (Respondent)Representation: Mr M Wright, barrister (Applicant)
Ms C Rose, solicitor (Respondent)
Tony Sattler & Associates Pty Ltd (Applicant)
Maddocks Lawyers (Respondent)
File Number(s): 10315 of 2013
Judgment
COMMISSIONER: This appeal relates to the refusal by Manly Council of an application to modify the approval of DA 507/2005 granted by the council on 15 July 2007 for the erection of 2 attached dwellings (dwellings 31A and 31B) and strata subdivision at 31 Boyle Street Balgowlah (the site). The two dwellings are partially constructed.
The proceedings commenced on site on 26 November 2013 however due to the illness of the councils town planner, the proceedings were adjourned until the following day where the parties agreed that the hearing could proceed as a On Site Hearing, pursuant to s 34B of the Land and Environment Court Act 1979.
The significant modifications involve:
- an extension of the approved second floor to include a third bedroom, including an additional access stair,
- reconfiguration of the internal layout by relocating the kitchen and dining room.
The council maintains that the application should be refused as:
- the third bedroom creates unacceptable bulk, scale and overshadowing impacts,
- the third bedroom access stair creates unacceptable streetscape impacts,
- the loss of privacy from the new kitchen location and the new third bedroom window are unacceptable, and
- the plans are inaccurate.
The site is within Zone R1 General Residential under Manly Local Environmental Plan 2013 (LEP 2013), which was gazetted on 19 April 2013. The coming into effect of LEP 2013 post dates the modification application which was lodged with the council on 26 February 2013. The environmental planning instrument that preceded LEP 2013 was Manly Local Environmental Plan 1988 (LEP 1988) where the site was within Zone No 2 - Residential Zone. The councils submits that the application is subject to the savings provisions in cl 1.8A however this clause applies only to "a development application has been made before the commencement of this Plan" and not a modification application. The applicability of cl 1.8A was not argued to any extent at the hearing.
In any event, s 96(3) provides that "the consent authority must take into consideration such of the matters referred to in s79C (1) as are of relevance to the development the subject of the application". This calls up general matters such as "any development control plan" (s79C(1)(a)(iii)), "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality" (s79C(1)(b)) and "the suitability of the site for the development" (s79C(1)(c)).
In a similar fashion to cl 1.8A, cl 1.3 of Manly Development Control Plan 2013 Amendment 1 (DCP 2013) that came into force at the same time as LEP 2013, revokes Manly Development Control Plan for the Residential Zone (Amendment 1)(the Residential DCP) that applied to the site, prior to the coming into effect of DCP 2013. The savings provisions in DCP 2013 also makes reference to cl 1.8A and "development applications" rather than modifications so for the same reasons mentioned earlier, the question of whether a modification application is captured by cl 1.4 of DCP 2013 is questionable and was not argued to any extent at the hearing.
Given the potential non applicability of the savings provisions in LEP 2013 and DCP 2013, the issue of whether the applicable planning instruments for this appeal are those at the time of lodgement of the modification, being LEP 1988 and the Residential DCP or those that applied at the time of the hearing, being LEP 2013 and DCP 2013 was also not addressed.
As the councils contentions and the expert evidence considered the application under both sets of planning controls, I propose to do the same. Ultimately, this is not of great moment as the development is permissible under both sets of planning controls and there was a degree of consistency with the development standards although sometimes expressed differently in the different documents.
Overshadowing
Cl 3.4.1 of DCP 2013 relevantly states:
3.4.1 Sunlight Access and Overshadowing
See paragraph 2.1.4 for DA lodgement requirements for shadow diagrams.
Relevant DCP objectives to be met in relation to this part include the following:
Objective 1) To provide equitable access to light and sunshine.
Objective 2) To allow adequate sunlight to penetrate:
- private open spaces within the development site; and
- private open spaces and windows to the living spaces/ habitable rooms of both the development and the adjoining properties.
Objective 3) To maximise the penetration of sunlight including mid-winter sunlight to the windows, living rooms and to principal outdoor areas by:
- encouraging modulation of building bulk to facilitate sunlight penetration into the development site and adjacent properties; and
- maximising setbacks on the southern side of developments to encourage solar penetration into properties to the south.
3.4.1.1 Overshadowing Adjoining Open Space
In relation to sunlight to private open space of adjacent properties:
a) New development (including alterations and additions) must not eliminate more than one third of the existing sunlight accessing the private open space of adjacent properties; or
See LEP definition of private open space and paragraph 4.1.5.3 Principle Private Open Space.
b) Where there is no winter sunlight available to open space of adjacent properties, the calculations for the purposes of sunlight will relate to the equinox in March and September.
The Residential DCP has similar requirements although cl 4.1.2(e) states:
(e) New developments must not eliminate 1/3 of the existing sunlight accessing the private open space of adjacent properties, measured at 9am, 12 noon, and 3pm at the winter solstice (21 June);
The expert evidence of Ms Sample, for the council and Mr King for the applicant, focussed on cl 4.1.2(e) and specifically on the rear yard of 268 Sydney Road at 9am. The council accepted that this was the only property that was unacceptably affected by overshadowing from the proposed additional second floor bedroom. Mr King provided shadow diagrams that amended the shadow diagrams submitted with the application. These amended shadow diagrams reduced the overshadowing impact on 268 Sydney Road to the extent that the additional overshadowing has an area of around 6 sq m towards the south-western corner of the rear yard. The rear yard is around 11m x 15 m or an area of 165sq m based on the plans in Exhibit C. These plans also show the shadow cast by a 1.8m fence. An inspection of this property also highlighted vegetation along the common boundary that currently restricts solar access to the rear yard.
Mr King and Ms Sample agreed that the proposal did not satisfy the control in cl 4.1.2(e) that "new developments must not eliminate 1/3 of the existing sunlight accessing the private open space of adjacent properties, measured at 9am, ...". As I understand the evidence of Ms Sample, this was sufficient reason to refuse the application. While Mr King did not measure the additional overshadowing, he maintains that it was unnecessary as the original approval by the council accepted a breach of this control and that the additional overshadowing is minimal in the overall extent of overshadowing.
On this matter I agree with Mr King. Even though the proposed development adds to the breach of the control in cl 4.1.2(e) at 9 am, the additional area is minimal, at best. In coming to this conclusion, I have also taken into consideration that the additional overshadowing at this location does not result from a breach of the wall height or height control or the floor space ratio (FSR) control. The proposal also does not breach the requirement for a clothes drying area (cl 4.4.1.4 of DCP 2013).
The concerns of Ms Sample that the additional overshadowing would somehow affect the enjoyment of the rear yard by the owners or affect the future development of this property was overstated, in my view. I am also mindful that the requirements in the more recent document, DCP 2013, do not require the assessment to be made at 9am, 12 noon, and 3pm, as suggested by the council, although the general requirements for shadow diagrams in cl 2.1.4 require the shadows to be shown at these times. Overall, and even accepting the conservative approach of Ms Sample that there is a breach of cl 4.1.2(e), the proposal satisfies the objectives in cl 3.4.1 of DCP 2013 and the objectives in cl 4.1.1 of the Residential DCP.
Bulk and scale
Ms Sample maintained that the additional bulk and scale of the proposed bedroom resulted in excessive and unacceptable bulk and scale impacts when viewed from the rear of 268 Sydney Road. Ms Sample also stated that the future development of this property may also be affected by the proximity and location of the new bedroom because of the bulk of the bedroom. Mr Milligan, the applicants town planner disagreed and states that the proposed second floor is not excessive and is consistent with what could be anticipated for a two storey residential development located on a lot orientated in an east-west direction.
On this matter, I agree with Mr Milligan. The proposal satisfies the 0.6:1 FSR requirement in cl 3.4 of the Residential DCP and cl 4.4 of LEP 2013. While Ms Sample raised some concern over some inaccuracies in the plans; the areas in question were minor and did not have any meaningful impact on the calculation of FSR. The height of the building, in the location where the claim of excessive bulk and scale is made by Ms Sample, also satisfies the building height control in cl 4.3 of LEP 2013 and the southern wall height control in cl 3.5 of the Residential DCP. While compliance with the numerical controls does not guarantee acceptability, more substantive evidence is required to support a conclusion of unacceptable bulk and scale when there is compliance with the numerical controls. In this case, I am not satisfied that any evidence was provided to support such a conclusion. Mr Milligan is correct in his statement that the additional bedroom is not excessive and is consistent with what could be anticipated in the zone. Again, no substantive evidence was provided to support the conclusion that the additional bedroom would somehow affect the enjoyment of the rear yard of 268 Sydney Road or affect the future development of this property.
Streetscape
Ms Sample maintained that there was an unacceptable impact on the streetscape brought about largely by the enclosed stair that leads to the new bedroom. Mr Milligan disagrees given the significant setback from Boyle Street and the relatively narrow elevation presented to the street.
On this matter, I agree with Mr Milligan. The staircase is a relatively unobtrusive element in the additions; it is some 9 m from the Boyle Street boundary (compared to around 4 m for the ground floor) and is only some 1.2 m in width. With the benefit of the site inspection, I can comfortably conclude that the new bedroom and access is consistent with the relevant streetscape objectives and controls in cl 4.4 of the Residential DCP and cl 3.1 of DCP 2013.
Loss of privacy
Any potential loss of privacy would relate to the adjoining property at 33 Boyle Street. The owner provided evidence on the site inspection and expressed concern over loss of privacy from the window of the proposed bedroom and windows facing his dwelling from the front northern bedroom. The applicant proposed that the windows to the front northern bedroom be translucent glass to overcome any overlooking issues and I am satisfied that any potential overlooking from the new bedroom widow is minimal given the use of the room and the separation distance. The owner expressed additional concerns over stormwater disposal and heritage impact however these were not matters raised by the council as they were not related to the modification application.
Ms Sample also raised concern over the potential overlooking to 33 Boyle Street from the deck off the living area and the reconfigured kitchen that now has a window facing this property. The deck is largely unchanged from the original approval however the applicant accepted a condition requiring the balustrade to be solid to limit overlooking. The kitchen was originally on the opposite side of the dwelling and any potential overlooking from the kitchen window can be addressed through a raised sill height of 1.3m. This will allow light and views to be maintained from the kitchen window and at the same time restrict overlooking into the adjoining property given that it is at a lower level and the kitchen cupboards prevent viewing directly at the window face.
With the agreed changes and the changes set out in the previous paragraph, which can be addressed through conditions of consent, I am satisfied that the proposal is consistent with the relevant objectives in cl 4.2.1 of the Residential DCP and cl 3.4.2 of DCP 2013.
It was unclear at the hearing whether the contentions relating to additional excavation and loss of views were being pressed however from the site inspection, I am satisfied that neither would warrant the refusal or further modification of the application.
Orders
The orders of the Court are:
1. The appeal is upheld.
2. The application to modify of DA 507/2005 granted by the council on 15 July 2007 for the erection of 2 attached dwellings and strata subdivision at 31 Boyle Street Balgowlah is determined by approving the modifications subject to the modified and consolidated conditions of development consent set out in Annexure A.
3. The exhibits, other than exhibits 1 and F, are returned.
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G T Brown
Commissioner of the Court
Decision last updated: 04 December 2013
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