Goarin v Manly Council
[2014] NSWLEC 1108
•13 June 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Goarin v Manly Council [2014] NSWLEC 1108 Hearing dates: 27, 28 May 2014 Decision date: 13 June 2014 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is dismissed.
2. DA 60/2013 for the construction of a dwelling house at 40 Pine Street Manly is refused.
3. The exhibits are returned with the exception of exhibit 1.
Catchwords: DEVELOPMENT APPLICATION: construction of a one-bedroom dwelling house - inadequate front, rear and side setbacks - inadequate vehicular access and lack of off street parking - absence of water and sewer facilities - inadequate open space and landscaping - inadequate access for waste collection - unacceptable overlooking - unacceptable impact on streetscape Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Plan and Assessment Model Provisions 1980
Manly Local Environmental Plan 1988
Manly Local Environmental Plan 2013Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Category: Principal judgment Parties: Herve and Rene Goarin (Applicant)
Manly Council (Respondent)Representation: Mr T Sattler, solicitor (Applicant)
Mr M Winram, solicitor (Respondent)
Tony Sattler & Associates Pty Ltd (Applicant)
Maddocks Lawyers (Respondent)
File Number(s): 10102 of 2014 Publication restriction: No
Judgment
COMMISSIONER: This is an appeal against the refusal by Manly Council of DA 60/2013 for the construction of a one-bedroom dwelling house at 40 Pine Street Manly (the site).
The council maintains that the application should be refused because of:
1. inadequate front, rear and side setbacks together with inconsistency with the objectives for the setback controls,
2. inadequate vehicular access and lack of off street parking,
3. absence of water and sewer facilities to the site,
4. inadequate access for waste collection,
5. inadequate open space and landscaping,
6. unacceptable overlooking of adjoining properties, and
7. unacceptable impact on streetscape.
The concerns expressed by the council were reiterated by a number of residents who provided evidence on the site inspection.
The site
The site is Lot 5 in DP 939161. It has a frontage to the northern side of a public walkway located within the unmade section of Pine Street that extends from the constructed section of Pine Street and Birkley Street. The site is rectangular in shape with a frontage of 12.19 m to the unmade section of Pine Street, an average depth of 8.155 m and an area of 99.4 sq m. The site was subdivided in 1908 from the rear of 9 and 11 Pacific Parade. The site was sold by the council for unpaid rates.
The site is vacant and consists of a grassed area, rocky outcrops, native trees and is located on top of a cliff, some 10 m above 9 and 11 Pacific Parade and overlooks properties with a frontage to Pacific Parade. The site has pedestrian access via the public walkway located within the unmade section of Pine Street but no vehicular access. There are no other lots that have been subdivided off the rear of the properties with a frontage to Pacific Parade along the unmade section of Pine Street.
The surrounding area includes residential flat buildings and residential dwellings in landscaped settings and the unmade road, which forms a landscaped and sealed pedestrian link within the area.
Relevant planning controls
The site is currently located within Zone R1 General Residential under Manly Local Environmental Plan 2013 (LEP 2013). However, as the development application was lodged, but not determined prior to be coming into effect of LEP 2013, cl 1.8A of LEP 2013 applies. Clause 1.8A provides that "the application must be determined as if this Plan has not commenced".
The environmental planning instrument that applied, prior to the coming into effect of LEP 2013 was Manly Local Environmental Plan 1988 (LEP 1988). Under LEP 1988, the site was within the No.2 Residential Zone. The construction of a dwelling house is permissible under both LEP 1988 and LEP 2013.
The applicable development control plan under LEP 1988 is Manly Development Control Plan for the Residential Zone 2007-Amendment 2 (DCP 2007). Manly Development Control Plan 2013-Amendment 2 (DCP 2013) came into effect with LEP 2013, although a savings provision is provided at cl 1.4 that generally adopts the same savings provision as cl 1.8A of LEP 2013.
There was agreement between the parties that the applicable planning controls are found in LEP 1988 and DCP 2007 although some consideration may be given to the controls in LEP 2013 and DCP 2013 although there was a significant degree of similarity between the two sets of planning controls, particularly the numerical controls in DCP 2007 and DCP 2013.
The assessment approach
There was agreement that the dwelling satisfied the floor space ratio (cl 3.4) and building height (cl 3.5) standards in DCP 2007 however the council raised contentions involving other numerical controls in DCP 2007. The contentions identified multiple large variations, particularly in relation to the setbacks and open space. This is understandable given that the site is around 99 sq m whereas the numerical controls were designed for sites with the minimum area of 250 sq m. The council approached this problem by addressing the variations against the particular objectives for the numerical standards.
In accepting that a meaningful assessment against some numerical standard is difficult, I am also inclined to accept that any assessment against the relevant objectives of the standard must also be considered carefully because of its small size, unconventional location and context.
The proposed dwelling can also be assessed against the more general heads of consideration under s79C(1) of the Environmental Planning and Assessment Act 1979 as well as DCP 2007. The relevant heads of consideration being:
(c) the suitability of the site for the development,
.
(e) the public interest.
The evidence
Mr Greg Boston, a town planner, provided evidence for the applicant and Ms Nancy Sample, also a town planner provided evidence for the council. Mr Boston maintained that the site could accommodate the proposed dwelling while Ms Sample adopted the position that the site could accommodate a dwelling but not the dwelling proposed in this application notwithstanding that some contentions addressed matters that are independent of the dwelling design, such as no vehicular access and inadequate access for waste collection.
Landscaping evidence was provided by Ms Catriona Mackenzie, for the applicant and Ms Chantelle Hughes, for the council.
Setbacks
Clause 3.6.2 provides for a 6 m front setback where "there is not a consistent or established setback". In this case there is no consistent or established setback as the site is the only lot with the ability to accommodate a dwelling that would front the northern side of the unmade section of Pine Street. Clause 3.6.10 provides that a site that has a common boundary with land zoned 'Proposed Open Space', 'Open Space' or 'National Park', buildings shall be set back 6m from this boundary although I accept that the 'Open Space' zone (or Zone RE1 Public Recreation) of the unmade section of Pine Street occurs under LEP 2013. The building (excluding the decks) has a varied setback of around 900mm to 3m.
Clause 3.1 provides for an 8 m rear setback and cl 3.6.7 states that "rear setbacks must allow space for planting of vegetation, including trees, other landscape works and private and/or common open space".
In my view, the front setback is inadequate. The setback creates an unacceptable relationship with the public walkway as the proposed building physically imposes on the public nature of the walkway particularly when there are no other structures on that side of the walkway. The pleasant views to the north are interrupted by the proposed building, even though the building complies with the height requirement in DCP 2007 and is at a lower level than the walkway. The 2-storey form still is a dominant feature when moving along the walkway, in part, because of the inadequate setback and the inability to provide any useful landscaping. In this case, I have adopted the "streetscape" as being the northern side of the walkway for the purposes of considering this matter even though it is not actually a street, in the normal understood sense.
On this basis, I find that the proposal is inconsistent with setback objectives (a), (f) and (g) in cl 3.6.1 that state:
a) To maintain and enhance the existing streetscape;
f) To accommodate planting, including native vegetation and endemic trees;
g) To control the nature of development adjoining open space lands and national parks so as not to unduly detract from the nature of those lands and to satisfy the provisions of SEPP 19 - Urban Bushland;
Similarly, I also find that the rear setback is unacceptable. Clause 3.1, Table 1 provides for an 8 m rear setback. Clause 3.6.7 identifies that rear setbacks must allow space for planting of vegetation, landscape works and private and/or common open space. The building (excluding the rear deck) has a varied setback of around 1 m and 2 m. The ability of the rear setback to provide landscaping was not established as the applicants arborist/landscape designer, Ms Mackenzie was uncertain as to whether there was sufficient soil depth to plant landscaping or whether planter boxes would be required to provide sufficient soil depth for planting because of existing rock.
The provision of landscaping has added importance in this instance as the building is essentially perched on top of a 10 m high sandstone cliff and is readily visible from the properties with a frontage to Pacific Parade, particularly 9 and 11 Pacific Parade. There must be some considerable doubt whether adequate landscaping can be provided by either planting or by planter boxes (even ignoring their additional bulk) given the small area available and the potential shallow soil depth of the area between the dwelling and the rear boundary. Clearly, there is no ability to use this area for "private and/or common open space" consistent with cl 3.6.7.
The proposal is inconsistent with setback objective (f) in cl 3.6.1 that states:
f) To accommodate planting, including native vegetation and endemic trees;
Any consideration of the side setbacks against DCP 2007 is largely meaningless because there are no adjoining buildings and matters raised in the objectives such as privacy, solar access and view sharing do not arise as part of the adequacy of the side setbacks.
Open space
Clause 3.7.2, Table 5 provides that 55% of the site is to be open space and 35% of that open space is to be permeable. Clause 3.7.2 (a) provides that an area must have a minimum horizontal dimension of 3m in all directions and a minimum area of 12 sq m to be considered as open space.
Mr Boston states that the proposed development retains the existing Blue Gum, the existing rock outcrops and augmentation of trees and landscape features. Soft landscaped areas have been maximised by providing the dwelling on suspended piers and around the perimeter of site. Mr Boston states that the objectives of the open space and landscape controls are satisfied such that strict compliance is both unreasonable and unnecessary, given the constrained site.
Ms Sample states that the proposal does not meet the minimum requirements for new development for open space. Given the undeveloped nature of the site, the development does not provide a good planning outcome and does not meet all relevant objectives, particularly objective (a) that requires that adequate open space is provided for the future occupants.
I agree with the conclusions of Ms Sample and find that the proposal is inconsistent with objectives (a) and (d) in cl 3.7.1 that state:
a) To provide open space for the recreational needs of the occupier and provide privacy and shade;
d) To enhance the amenity of the site, streetscape and surrounding area;
The suitability of the site for the development
In accepting that the site is appropriately zoned for the construction of a dwelling; this is not the end of the enquiry. Any application must be considered against the matters in s 79C(1) and any relevant local environmental plan or development control plan. Mr Sattler relied on the findings in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at pars 117 and 118 which state:
117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.
118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.
In the context of this case, par 119 is also relevant and which states:
119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.
The basis for the 100 year-old subdivision was not identified however it must be uncontroversial that standards and expectations have changed considerably over this time and in the words used in BGP Properties ", it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project". If it was suggested that there is somehow an entitlement for a dwelling on the site because of the zoning, then this must be rejected.
In considering the evidence of Mr Boston and Ms Sample, I am satisfied that insufficient evidence was provided to satisfy the Court that the proposed development is suitable for the site for a number of reasons. First, the site has no vehicular access. There was no suggestion that Pine Street would ever be constructed in the future, particularly as the road reserve has been included in Zone RE1 Public Recreation under LEP 2013. Mr Boston states that given the size of the site and the number of dwellings in the vicinity that do not have off street car parking facilities it would be unreasonable to require off street car parking in this instance. There is some merit in this argument if the site had a more conventional location with a trafficable street frontage however the general difficulty in providing access to the site remains an issue. To gain access to the site it is necessary to either use the walkway between existing properties that have frontage to Kangaroo Street, descend around 7 steps and cross the walkway within the road reserve to the site. This distance is some 45 m. Any vehicles would need to be left near the walkway entrance in Kangaroo Street. Alternatively, access is available along the walkway from the constructed part of Pine Street, a distance of at least 60 m. Any vehicles would need to be left near the constructed part of Pine Street.
In my view, it is unacceptable that a new dwelling should be so difficult to access for its future occupants. The difficulty in performing simple day-to-day functions, such as unloading shopping or receiving deliveries is not consistent with what would be reasonably expected of a new dwelling. No evidence was provided to suggest how this concern could be addressed or any potential difficulty minimised.
Second, the site has unacceptable access for waste collection. While this would not normally be a matter that would make a development application unsuitable, I accept that it is in this case. To dispose of domestic waste from the site, multiple, and presumably full bins are required to be taken from the site across a steep part of the RE1 Public Recreation zoned land, partially along the constructed walkway, up 7 stairs and then up approximately 35 m of a moderate grade to Kangaroo Street where the bin will be left for collection.
Again, it is unacceptable that a new dwelling should provide for such a difficult task for its future occupants. No evidence was provided to suggest how this concern could be addressed or any potential difficulty minimised.
The public interest
In my view, the potential difficulty in locating the site and the only means of access being along the pedestrian pathways could raises issues over the ability of emergency services, such as ambulance and fire fighting services to access the property in a reasonable time.
Again, no evidence was provided to suggest how this concern could be addressed or any potential difficulty minimised.
Provision of water and sewer
Clause 6 of LEP 2007 adopts the Environmental Plan and Assessment Model Provisions 1980 (the Model Provisions) except in a small number of circumstances that are not relevant in this case. Clause 30 of the Model Provisions state:
30 Services
The consent authority shall not grant its consent to the carrying out of any development on any land unless:
(a) a water supply and facilities for the removal or disposal of sewage and drainage are available to that land, or
(b) arrangements satisfactory to it have been made for the provision of that supply and those facilities.
Mr Winram, for the council, submitted that the Court had no power to grant consent as cl 30 is a condition precedent to the granting of consent. No evidence has been provided that the disposal of sewage is available from the site and it was agreed that there is no current water supply to the site. Consequently, cl 30(b) is not satisfied in that "arrangements satisfactory" have not been made for the provision of water and disposal of sewage.
Mr Sattler, for the applicant, accepted that there is no current water supply to the site however maintained that this can be addressed through a condition of consent or a deferred condition of consent as a line is located in Kangaroo Street. Documentation available from the council indicates that a sewerage line extends into the site from a line that runs behind the houses in Pacific Parade. On this basis, cl 30(b) can be satisfied through appropriate conditions of consent.
On this matter I agree with Mr Winram. Clause 30 is a condition precedent to the granting of consent and as such, the imposition of conditions is not appropriate. There was no dispute that there was no water supply to the site and Mr Boston accepted that no "arrangements", in any form, had been made to supply water to the site. This is sufficient to warrant the refusal of the application. The question of whether the disposal of sewage from the site was adequately addressed was, in my view, left unanswered. While a plan (Exhibit 2, p470) indicates that a sewerage line extends into the site from a sewerage line that runs behind the houses in Pacific Parade was produced; there was no evidence to say that the line actually existed and if it did, where the connection to any dwelling on the site was located.
Overlooking
Overlooking was an issue raised by a number of residents, particularly those in Pacific Parade. If there were no other reasons that warranted the refusal of the development application, I am satisfied that appropriate measures could be included in the design of the building to minimise any potential overlooking.
Inadequate information
There are a number of matters that were raised at the hearing that were not sufficiently settled, in my view, to allow development consent to be granted. It must be remembered that the site has characteristics that distinguishes itself from more conventional sites and consequently requires more details and information, prior to any approval, than would be required for more conventional sites. These matters are:
- the disposal of stormwater - the question of stormwater disposal was an ongoing issue during the hearing. The latest proposal sought to dispose of stormwater to the east towards the constructed part of Pine Street however no levels were provided to properly assess this proposal. The proper disposal of stormwater is an important consideration given the potential geotechnical issues affecting the site and the recent land slippage to the east.
- Construction Management Plan - it was suggested that materials for the construction of a dwelling would be carried to the site from Kangaroo Road. This could potentially raise issues associated with the residents in the street. The matter of where materials would be stored during construction on the small site was also not sufficiently addressed, in my view, given the need to avoid storage on the adjoining public open space land. For these reasons, a Construction Management Plan should form part of any development application.
- geotechnical - there was conflict between the geotechnical report that identified that some rock may need to be removed and the construction of a dwelling. Further clarification is required on this conflict.
- access - it was unclear how access could reasonably be gained to the dwelling from the public walkway due to the absence of any levels. From the site inspection, the grades of the walkway are relatively steep.
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. DA 60/2013 for the construction of a dwelling house at 40 Pine Street Manly is refused.
3. The exhibits are returned with the exception of exhibit 1.
_____________
G T Brown
Commissioner of the Court
Decision last updated: 13 June 2014
1
4