Highbury Group Pty Ltd v Manly Council
[2014] NSWLEC 1094
•20 May 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Highbury Group Pty Ltd v Manly Council [2014] NSWLEC 1094 Hearing dates: 19 May 2014 Decision date: 20 May 2014 Jurisdiction: Class 1 Before: Tuor C Decision: 1.The appeal is upheld.
2.The application under s 96(8) of the Environmental Planning and Assessment Act 1979 to modify, under s 96(2), the development consent DA 126/2011 for the construction of a residential flat building at 4 West Street, Balgowlah, is determined by approving the modifications subject to the changes to the conditions of development consent;
3.As a consequence of order (2), Development Consent No DA 126/2011 is now subject to the consolidated, modified conditions of development consent set out in Annexure A; and
4.The exhibits, other than Exhibits 1, A and B, are returned.
Catchwords: DEVELOPMENT CONSENT- amend consent for residential flat building to increase number of units. Whether increase in height, floor space ratio and density of the proposal is acceptable. Resident concerns. Legislation Cited: Environmental Planning and Assessment Act
Land and Environment Court Act
Manly Local Environmental Plan 2013
State Environmental Planning Policy - Design Quality of Residential Flat Development
State Environmental Planning Policy (Affordable Rental Housing) 2009Cases Cited: Aleksandar Design Group Pty Ltd v Manly Council [2012] NSWLEC 1339 Category: Principal judgment Parties: Highbury Group Pty Ltd (Applicant)
Manly Council (Respondent)Representation: Mr M Staunton (Applicant)
Mr Winram (Respondent)
Maddocks Lawyers (Respondent)
Wilshire Webb Staunton Beattie (Applicant)
File Number(s): 10800 of 2013
Judgment
This is an application under s 96(8) of the Environmental Planning and Assessment Act 1979 (the Act) to modify, under s 96(2), the development consent DA 126/2011 (Development Consent) granted by the Land and Environment Court (Court) on 11 December 2012 (Aleksandar Design Group Pty Ltd v Manly Council [2012] NSWLEC 1339).
The Development Consent approved the "construction of a residential flat building containing five (5) units and basement car park with twelve (12) spaces and landscaping" at 4 West Street, Balgowlah (site).
The modification application (the Application) seeks to amend the development consent and includes the main following changes:
- delete the circular access ramp and provide a car lift;
- lower floor levels;
- internal reconfiguration of units; and
- increase the size of level 1 to provide an additional unit (unit 1)
A description of the changes is provided in the Statement of Facts and Contentions (Exhibit 1) and the Appendix A to the Joint Report of the Planners (Exhibit 2). Plans incorporating the changes are Exhibit A.
The key issues in dispute are whether the increase in the height and bulk of Level 1 would have an adverse visual impact when viewed from the units in the adjoining property at 6 West Street and whether the increase in the number of units provides an acceptable density for the site and locality.
Site and locality
The site is on the eastern side of West Street, between New Street and Upper Beach Street. It has a frontage of 20.115 m to West Street and side boundary lengths of 90.525 m and an approximate site area of 1,820.91 sq m. The site has a steep slope with a cross fall of 27 m from the south west corner to the north east corner. The site is vacant with a number of significant trees mainly located around its perimeter.
Adjoining the site is a four storey residential flat building with six units to the north (6 West Street), a three storey residential flat building with two units to the south west (2 West Street) and a detached house to the south east (2A West Street). The rear of the site is next to a drainage reserve and townhouse development (105A Woodland Street), which adjoins Brimbecom Park.
The surrounding locality is predominantly detached single dwelling houses of varying styles, storeys and periods. There are a number of battle axe subdivisions on the eastern side of West Street and town house developments, including 1 West Street, which is opposite the site.
The planning controls
A the time the Development Consent was granted, the site was zoned Residential 2 under Manly Local Environmental Plan 1988 and development for the purpose of a residential flat building was permissible with consent as an innominate use. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applied to the site and the Development Consent includes a condition, which requires that Unit 4 be used as affordable housing. The Application does not seek to amend this condition, which is a fundamental component of the approved development.
The site is now within Zone R2 Low Density Residential Under Manly Local Environmental Plan 2013 (LEP 2013). Residential flat buildings are prohibited in the R2 zone.
Section 109B of the Act provides:
109B Saving of effect of existing consents
(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.
(2) This section:
(a) applies to consents lawfully granted before or after the commencement of this Act, and
(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and
(c) has effect despite anything to the contrary in section 107 or 109.
(3) This section is taken to have commenced on the commencement of this Act.
The parties agree that, despite the prohibition of residential flat buildings in the R2 zone under LEP 2013, the Development Consent is saved and s 109B(2)(b) provides the power to modify the consent under s 96 of the Act.
Clause 2.3(2) of LEP 2013 requires that the consent authority must have regard to the objectives of the R2 zone which are:
· To provide for the housing needs of the community within a low density residential environment.
· To enable other land uses that provide facilities or services to meet the day to day needs of residents.
Under cl 4.3 of LEP 2013 a maximum height limit of 8.5m applies. The development approved under the Development Consent exceeds this height limit. Under the Application, the building height of the north east corner of level 1 will increase from about 9.5m to 11m. Under cl 4.4 of LEP 2013 the maximum permissible floor space ratio (FSR) is 0.45:1 and the Application proposes an FSR of 0.468:1, which represents an increase of about 33sqm above that approved in the Development Consent. As cl 4.6 applies to a 'development application' there is no requirement for the applicant to request a variation to the height standard in cl 4.3 or the FSR standard in cl 4.4.
Manly Development Control Plan 2013 (DCP) applies to the development. Part 4.1 provides development controls for residential development. The site is within residential density area D5 which includes a minimum residential density of one dwelling/500 sq m (s 4.1.1.1). A maximum wall height of 8.0 m (s 4.1.2.1) and two storeys (s 4.1.2.2) are permissible.
State Environmental Planning Policy - Design Quality of Residential Flat Development (SEPP 65) also applies to the development.
The evidence
A conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) was held on 23 January 2014 and the Court visited the site and surrounding area and heard evidence from a number of objectors. The parties did not reach agreement and the conciliation conference was later terminated. The parties agreed to my hearing the matter under s 34(4)(b)(i) and that the objector evidence and the site view would be evidence in the proceedings.
Following the s 34 conciliation conference, the applicant sought and was granted leave to rely on amended plans (Exhibit A) which were renotified and the further objections were submitted into evidence during the hearing.
The key concerns of the objectors are that the approved residential flat building is uncharacteristic of development in the local area and that the changes will further exacerbate this inconsistency.
The occupants of 6 West Street considered that the increase in height and the additional unit would result in unacceptable impacts on their amenity, particularly increased visual bulk, loss of privacy from overlooking and increased noise. Concerns were also raised about overshadowing, loss of outlook, and the extent of excavation.
The objectors maintained their concerns that the existing traffic arrangement near the site in West Street and at the intersection of New and Lewis Streets are dangerous and that this would be exacerbated through the increased car movements generated by the proposal. Council did not raise issues in relation to traffic and parking and accepted the deletion of the vehicle access ramp, the provision of a car lift and 12 basement car spaces, would comply with council's requirements.
The Court heard expert planning evidence from Mr J Vescio, for the applicant, and Mr Stray, for the council. These experts also gave evidence in the Aleksandar appeal.
The experts agree that as a result of the amended s96 plans the amenity impacts resulting from overshadowing and visual and acoustic privacy have been resolved (Contentions 12, 13 and 14). Furthermore, they agree that when viewed from the street the proposal is consistent with the character of the area. The key disagreement between the experts centred on the density and bulk and height of the proposal.
Bulk and height (Contentions 10, 11 (a), (b) and (e), 16 (a) and (b)).
During the hearing, the experts agreed that the roof of Level 1 would be RL75.98 and that the proposed extension of the building in the north east corner would be about 11m above existing ground level (RL 65). The awning over the terrace would be about 13m, but this results from a sudden drop in the existing ground level. The experts also agreed that due to the lowering in the floor levels, the height of the Level 1 (between gridlines E and F) and the Ground Level (between gridlines F and G) had reduced in height compared to the Development Consent. The experts prepared a comparison diagram that illustrates the changes in height on the north elevation between the Development Consent and the Application (Exhibit C).
In the joint report, Mr Stray expressed the opinion that "the proposed height, bulk and scale of the north elevation is excessive and would result in a loss of visual amenity for the adjoining property to the north." In particular, he was concerned that the proposal would be viewed as four storeys and that the increase in built form of Level 1 to provide an additional unit resulted in an exceedance of the FSR control. Under cross examination, he acknowledged that the full height and number of storeys would not be visible from the units at 6 West Street. The retention of the Olive tree and the additional tree planting to be provided as a result of the deletion of the driveway ramp would, once established, provide effective landscaping that would screen the development.
Mr Vescio, further noted that the building to building setback of level 1 (9m) and the rear alignment of the built form with the adjoining buildings would reduce the impact of the additional built form. The terrace of Level 1 projects beyond the adjoining buildings but does not materially add to the bulk or height of the building. The additional height of Level 1 would also be offset by the reduction in height of other parts of the building, which are below the height limit.
Density (Contentions 11(c), 15 and 16)
The Development Consent approved five units and therefore had a residential density of one dwelling/364 sq m. In Aleksandar the experts agreed that "despite this non compliance, the bulk and amenity impacts of the proposal are not inconsistent with existing development, particularly the nearby townhouses, nor with the desired future character of the local area."
The Application seeks approval for six units, which results in a residential density of 1 dwelling/ 303.5sqm that does not comply with the residential density control in the DCP of one dwelling/500 sq m.
Mr Stray holds the opinion that the density is now unacceptable given that the built form of development, being a residential flat building, is not permissible within the R2 zone. He stated that the development approved in the Development Consent is not consistent with the "desired future character" for the area sought by the current planning controls and that the development proposed in the Application would also not "fit in". Although, under cross examination, he acknowledged that a casual observer would not perceive the difference between the approved development and the proposal.
Furthermore, Mr Stray acknowledged that objective (a) of the height control in cl 4.3 of LEP 2013 seeks consistency with the "prevailing building height and desired future streetscape character in the locality" which the experts agree is achieved. Objective (c) of the FSR control in cl 4.4 of LEP 2013 seeks to maintain "an appropriate visual relationship between new development and the existing character and landscape of the area". Mr Stray accepted that the existing character of the area includes the adjoining residential flat buildings and the development approved under the Development Consent and that the changes sought by the Application would be consistent with this existing character and the desired future character of the streetscape.
Furthermore, Mr Stray agreed that the proposed changes, such as the deletion of the ramp, reduction in excavation, increased landscaping and lowering of parts of the building were improvements over what was approved.
Mr Vescio, considers that a density of six dwellings is not inconsistent with the existing character given the adjoining residential flat buildings and townhouses which have a density of 1 dwelling/326sqm. Furthermore, developments that are permissible within the zone, such as subdivision into three allotments and a dual occupancy on each allotment, could achieve the same density as that proposed. In his opinion, "the site is comfortably able to absorb the additional dwelling within an envelope agreed by the experts that does not create any significant adverse amenity impacts that are not able to be mitigated by simple treatment and conditions".
Findings
The Development Consent was assessed under SEPP ARH and the LEP and DCP in force at the time. LEP 2013 was then a draft and was also a relevant consideration. For the reasons in Aleksandar, I accepted the evidence of the experts that the design of the development proposed in the Development Consent was compatible with the existing and desired future character of the local area. The residential flat building approved in the Development Consent is "saved" under s109B of the Act and is to be considered as part of the existing character of the area. The Application proposes amendments to the approved residential flat building, it is the impact of these amendments and not the whole development that are to be assessed under the current controls in LEP 2013 and the DCP.
The objectives of the height control in cl 4.3 of LEP 2013 relevantly include:
(a) to provide for building heights and roof forms that are consistent with the topographic landscape, prevailing building height and desired future streetscape character in the locality,
(b) to control the bulk and scale of buildings,
(c) to minimise disruption to the following:
(i) views to nearby residential development from public spaces (including the harbour and foreshores),
(ii) views from nearby residential development to public spaces (including the harbour and foreshores),
(iii) views between public spaces (including the harbour and foreshores),
(d) to provide solar access to public and private open spaces and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings,
The objectives of the FSR control in cl 4.4 of LEP 2013 relevantly include:
(a) to ensure the bulk and scale of development is consistent with the existing and desired streetscape character,
(b) to control building density and bulk in relation to a site area to ensure that development does not obscure important landscape and townscape features,
(c) to maintain an appropriate visual relationship between new development and the existing character and landscape of the area,
(d) to minimise adverse environmental impacts on the use or enjoyment of adjoining land and the public domain,
I am satisfied that the changes proposed in the Application meet the height and FSR objectives despite the numerical non compliance. The main concern raised by Mr Stray related to the height and bulk of the building in the north east corner which, in his opinion, would have an adverse visual impact on 6 West Street. The comparison diagram in Exhibit C illustrates that there will not be a material increase in the height and bulk of the building on its northern elevation that would warrant refusal of the application. The increased height and bulk is predominantly between gridlines D and E and would not be easily perceived from 6 West Street, given the relative floor levels, the separation distance and the extent of landscaping. The changes will maintain "an appropriate visual relationship between new development and the existing character and landscape of the area."
The proposal responds to the steeply sloping topography of the site, is consistent with the prevailing building height of adjoining buildings and from the streetscape will appear as a two storey development. The experts raised no issues with the building's presentation in the context of either the existing or the future streetscape character. They agree the proposed changes will not result in unacceptable amenity impacts such as loss of views, overshadowing or privacy.
The objectives of the density control in s 4.1.1 of the DCP are:
Objective 1) To promote a variety of dwelling types and residential environments in Manly.
Objective 2) To limit the impact of residential development on existing vegetation, waterways, riparian land and the topography.
Objective 3) To promote a variety of allotment sizes, residential environments and housing diversity.
Objective 4) To maintain the character of the locality and streetscape.
Objective 5) To maximise the use of existing infrastructure.
The experts generally agreed that the objectives, other than Objective 4, are met. They acknowledge that the proposal provides a variety of dwelling types and housing diversity and that the amendments would not have an adverse impact on vegetation or the topography of the land or infrastructure etc. Mr Stray's key concern was that the built form of a residential flat building was not consistent with the character sought for the area. As previously discussed, the residential flat building is approved. The additional unit is largely contained within the envelope approved under the Development Consent and the additional height and bulk has no material impact. Furthermore there are no identified impacts from increased traffic, noise, overlooking or privacy resulting from the additional unit and increased density. The density is consistent with the density of the residential flat buildings and town houses in the immediate area and would not be a reason to refuse the application.
In Aleksandar, I stated at [at 45] that:
A greater number of dwellings could be provided on the site based on the minimum dwelling size in SEPP ARH. Further, under the existing LEP and DCP as well as the draft LEP and DCP, the site could be subdivided into three lots each with a dwelling and that opportunities to provide a "secondary" dwelling, dual occupancy development or multi unit development also exist. The proposal is therefore not incompatible with the desired future character of the area sought by the planning controls.
The proposed amendments, when considered against the current planning controls, do not alter this opinion.
For the above reasons, the Application is consistent with the aims of the plan, the objectives of the zone, the height and FSR controls in LEP 2013 and the residential controls in the DCP and may be approved.
Orders
(1) The appeal is upheld.
(2) The application under s 96(8) of the Environmental Planning and Assessment Act 1979 to modify, under s 96(2), the development consent DA 126/2011 for the construction of a residential flat building at 4 West Street, Balgowlah, is determined by approving the modifications subject to the changes to the conditions of development consent;
(3) As a consequence of order (2), Development Consent No DA 126/2011 is now subject to the consolidated, modified conditions of development consent set out in Annexure A; and
(4) The exhibits, other than Exhibits 1, A and B, are returned.
Annelise Tuor
Commissioner of the Court
Decision last updated: 23 May 2014
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