Hugo Property Holdings Pty Ltd v Manly Council

Case •

[2011] NSWLEC 1259

•

23 August 2011

Land and Environment Court


New South Wales

Medium Neutral Citation: Hugo Property Holdings Pty Ltd v Manly Council [2011] NSWLEC 1259
Hearing dates:22, 23 August 2011
Decision date: 23 August 2011
Jurisdiction:Class 1
Before: Brown C
Decision:

1. The appeal is upheld.

2. Development Application No. 358/08 for the demolition of the existing improvements, the construction of 2 x 2 storey dwellings and the Torrens Title subdivision at 30 Kitchener Street Balgowlah is approved subject to the conditions in Annexure "A".

3. The exhibits are returned with the exception of exhibits 1, A and B.

Catchwords: DEVELOPMENT APPLICATION - demolition of all existing improvements, the erection of two dwellings and the Torrens Title subdivision of the new dwellings - suitability of the site for the proposed development - side setbacks - overlooking
Legislation Cited: Environmental Planning and Assessment Act 1979
Manly Local Environment Plan 1988
Category:Principal judgment
Parties:

Hugo Property Holdings Pty Ltd (Applicant)

Manly Council (Respondent)
Representation:

Counsel
Mr R O'Gorman-Hughes, barrister (Applicant)

Ms C Schofield, solicitor (Respondent)
Solicitors
MCW Lawyers (Applicant)

Pikes Lawyers (Respondent)
File Number(s):10268 of 2011

Judgment

  1. COMMISSIONER: This is an appeal against the refusal by Manly Council (the council) of Development Application No 358/2008 for the demolition of all existing improvements, the erection of two dwellings and the Torrens Title subdivision of the new dwellings at 30 Kitchener Street, Balgowlah (the site).

  1. The contentions raised by the council can be summarised as:

(1)   whether the site is suitable for the proposed development because of the natural features of the site and the lack of open space,

(2)   whether the proposal provides adequate side setbacks, and

(3)   whether the proposal creates unacceptable overlooking.

  1. The site is Lot 101 in DP 6208. It has a frontage of 12.19 m to Kitchener Street with side boundaries of 50.035 m and 52.425 m, giving a total site of around 642.8 sq m. A notable feature of the site is a significant rock outcrop towards the rear of the site that falls to a small area of land that adjoins a large pond, although most of the pond is located outside the site. The rock outcrop and small area between the pond and the rock outcrop on the site is not readily accessible from the area towards the street frontage where the proposed development is to be located.

  1. The locality is predominantly residential in nature consisting of single dwellings and multi-unit dwelling developments.

Relevant planning controls

  1. The site is within Zone 2 Residential zone under Manly Local Environmental Plan 1988 (LEP 1998). The proposed development is permissible with consent in this zone. Clause 3 provides aims and objectives for the plan and cl 10.3 provides that consent must not be granted unless the development is consistent with the zone objectives. The relevant zone objectives are (c), (d) and (e).

  1. Manly Development Control Plan for the Residential Zone (the DCP) applies. Clause 3.6 provides requirement for setbacks including objectives at cl 3.6.1 and relevantly requirements for side setbacks at cl 3.6.4 where it states:

The setback between any part of a building and the side boundary must not be less than one third the height of the adjacent external wall of the proposed building.

  1. Clause 3.7 provides requirement for open space and landscaping including objectives at cl 3.7.1 and controls at 3.7.2. As the site falls within density sub-zone 4, the minimum open space requirement is 55% of the site and 35% of the open space area must be soft open space. Clause 3.7.6 provides requirements for private open space. "Open space", "soft open space" and "private open space" are defined in the Dictionary to the DCP.

The suitability of the site/open space

The evidence

  1. Mr Steve Layman provided expert town planning evidence for the council and Mr Lawrence Winnacott, for the applicant. Mr Layman states that the site consists essentially of two parts; the flatter area near the street frontage and the rear portion containing the rock outcrop. He maintains that around only 466 sq m of the site is usable and that the deficiency in the open space requirement indicates that the proposed development is an over development of the site. If the rear portion of the site is excluded from the open space calculations, Mr Layman calculates that the development provides only 20.4% of the site as open space and soft open space is only 6% of the site area. Also, cl 3.7.6 requires a minimum 18 sq m of private open space and Mr Layman calculates that only 14.4 sq m is provided on the rear terrace of each dwelling.

  1. Mr Winnacott considers that the site is adequate for the proposed development, and also in terms of open space. Mr Winnacott states that there are no planning requirements in LEP 1998 or the DCP that require the rear portion of the site to be excluded from any open space calculations. Based on the requirements for open space in the DCP and including the rear portion of the site, Mr Winnacott calculates that the requirements for soft open space and private open space are satisfied and that the total open space is deficient by only 6.4 %. In his opinion the proposed development provides adequate open space for both proposed dwellings.

Findings

  1. In balancing the competing evidence and with the benefit of the site inspection, I agree with Mr Winnacott for a number of reasons. First, there is no requirement in LEP 1998 or the DCP to exclude the rear part of the site, notwithstanding its physical detachment from the front part of the site. Second, I accept that the rear part of the site can contribute to the open space and landscaping for the site although the proposed landscaping plan should be amended to include the area above and below the sandstone outcrop. I understand there is an agreement by the applicant to the imposition of such a condition.

  1. Third, I am satisfied that the inclusion of the rear part of the site as open space satisfies the following objectives for open space and landscaping in cl 3.7.1 of the DCP:

(a) to provide open space for the recreational needs of the occupier and provide privacy and shade,
(b) to retain important landscape features and vegetation,
(c) to encourage appropriate tree planting and maintenance of existing vegetation,
.
(e) to retain and augment remnant populations of endemic native flora and fauna,
(g) to maximise wildlife habitat and the potential for wildlife corridors,
(h) to maximise water infiltration on site and minimise storm water run off,
.
(i) to maximise soft landscaped areas.

  1. I do not accept that it is necessary to satisfy all objectives however some objectives are more relevant than others and some objectives are satisfied to a greater extent than others. In considering the objectives collectively, I have little trouble in concluding that the rear part of the site should be included as open space for the purposes of assessing the requirements in the DCP.

  1. I did not understand Mr Layman to disagree with Mr Winnacott's calculations for soft open space or total open space. The variation to the total open space is minor, in my view, and as the open space and landscaping objectives are satisfied, I agree with Mr Winnacott that a 6.4% variation would not support the refusal of the application.

  1. Similarly, I accept that the variation to the private open space requirement is minor and would not support the refusal of the application. I am also mindful that additional private open space is available, beyond the rear terrace, by way of stairs to a grassed area at ground level. The combined area would clearly satisfy the 18 sq m requirements in cl 3.6.7 notwithstanding the requirement that the private open space be in one area. In practical terms, I accept that cl 3.7.6 is satisfied.

Side setbacks

  1. There was agreement that the proposed development did not satisfy the requirement for side setbacks. Mr Layman and Mr Winnacott helpfully indicated the extent of the noncompliance in plan and elevational form on the development plans. Mr Layman was of the view that the departures highlighted the inadequate lot width for such a development whereas Mr Winnacott stated that the departures were minor and created no amenity impacts on adjoining properties.

  1. On this matter I also agree with Mr Winnacott. The departures from the requirements in cl 3.6.4 are minor at best. The relevant objectives in cl 3.6.1 for setbacks are:

.
(b) to provide privacy,
(c) to provide equitable access to light and sunshine,
(f) accommodate planting, including native vegetation and endemic trees,
.
(h) to maintain adequate space between buildings to limit impacts on views and vistas from private and public spaces.

  1. In my view, it would be difficult, if not impossible, to reasonably argue that the minor departures from the DCP requirements would not allow the objectives to be satisfied on the reasonable presumption that strict compliance with the side setbacks would satisfy the objectives in cl 3.6.1.

  1. While cl 3.6.5(a) does not strictly apply to the proposed development, the averaging of side setbacks is contemplated by the DCP. The unchallenged evidence of Mr Winnacott was that if the proposal was assessed on an averaging basis, then the proposal would comply. While I do not rely on cl 3.6.5(a), it nonetheless supports the conclusions of Mr Winnacott.

Overlooking

  1. As I understand the issue of overlooking was limited to the views from the elevated rear decks into the adjoining rear yards as any direct overlooking into adjoining dwellings was satisfactorily addressed through conditions agreed by the experts.

  1. Given the steep topography of the site, I do not agree that the decks are excessively elevated. With the benefit of the site view, the proposed height of the decks is consistent with similar residential developments nearby and when combined with the distance to the adjoining rear yards and existing levels of overlooking, I am satisfied that overlooking towards the rear yards of adjoining properties is not unreasonable. I note that cl 4.3 of the DCP does not require total privacy.

Conditions

  1. A number of conditions remain in dispute between the parties. Condition 8 applies if a sewer connection is required to the sewer main at the rear of the site. The council seeks to have any sewer to be encased in sandstone. The applicant proposes the additional words "or artificial rock" to be included. In the absence of any details of what constitutes "artificial rock" and given the high quality of the landscaped feature, the condition should remain as proposed by the council.

  1. Condition 46 and condition 60 relate to existing trees. The applicant proposes the deletion of the conditions as they restate the provisions of council's Tree Preservation Order. I accept this submission and these conditions can be deleted.

Resident concerns

  1. Three adjoining residents provided evidence on the site inspection. The issues raised by the residents and not previously addressed in the judgment relate to:

  • bulk and height above natural ground level,
  • overlooking and loss of privacy,
  • overshadowing,
  • inadequate car parking,
  • street tree removal,
  • impact on sewer connection,
  • provision of unsuitable landscaping,
  • dominant garage door and
  • waste bin location.

  1. I am satisfied that none of these matters could support the refusal of the application, however, the following comments are relevant. The site, as are adjoining sites, is relatively steep and falls from the street frontage to the rear. As I understand, the wall height and roof height requirements are satisfied and I do not accept that the minor departure in the side setback requirements creates any meaningful impacts that could be associated with bulk that was not contemplated by the council's planning controls. Similarly, I do not accept that given the steep topography of the site, the floor level above the natural ground level is unacceptable. I also note that compliance is achieved by the development in regard to other important design requirements, such as number of storeys, floor space ratio and front setback.

  1. Car parking on site satisfies the council's requirements and could not reasonably be a basis for refusal. Clause 3.9.6(a) provides that garages must not occupy more than 50% of the site frontage and while it would appear that this requirement may marginally be exceeded, it is not a matter that I consider would warrant the refusal of the application.

  1. The issue of the amenity including loss of privacy, overlooking and overshadowing was addressed thoroughly by the expert town planners where it was found that the majority of the impacts could be addressed by conditions. I concur with this conclusion.

  1. Also, satisfactory conditions have been imposed to address other matters such as the likelihood of the sewer needing to be connected to the main at the rear of the site, unsuitable landscaping, tree loss and waste bin location.

  1. In accordance with cl 10.3 I, am satisfied that the proposed development is consistent with the relevant zone objectives.

Orders

  1. The orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Application No. 358/08 for the demolition of the existing improvements, the construction of 2 x 2 storey dwellings and the Torrens Title subdivision at 30 Kitchener Street Balgowlah is approved subject to the conditions in Annexure "A".

(3)   The exhibits are returned with the exception of exhibits 1, A and B.

G T Brown

Commissioner of the Court

Decision last updated: 06 September 2011

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