Jun v Northern Beaches Council

[2020] NSWLEC 1483

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Jun v Northern Beaches Council [2020] NSWLEC 1483

Hearing dates:

2 June 2020

Date of orders:

12 October 2020

Decision date:

12 October 2020

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   Leave is granted to the applicant to rely upon the amended plans and supplementary documents referred to in Condition 1(a) of Annexure A.

(2)   The applicant’s written request under cl 4.6 of the Manly Local Environmental Plan 2013 (MLEP), prepared by Boston Blyth Fleming Town Planners dated 28 April 2020 seeking a variation of the development standard for height under cl 4.3 of the MLEP, is upheld.

(3)   The applicant’s written request under cl 4.6 of the Manly Local Environmental Plan 2013 (MLEP), prepared by Boston Blyth Fleming Town Planners dated 28 April 2020 seeking a variation of the development standard for floor space ratio under cl 4.4 of the MLEP, is upheld.

(4)   The appeal is upheld.

(5)   Development consent is granted to DA2017/1300 for the demolition of the existing structure and construction of a new dwelling house at 61 Cutler Road, Clontarf NSW 2093 subject to the conditions in Annexure A.

(6)   The exhibits are returned except for A, B and C (Tabs 1, 4-5 and 31-34).

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of a three-storey dwelling house – proposed development contravenes the height of buildings and floor space ratio development standards – consideration of applicant’s written requests made pursuant to clause 4.6 of the Manly Local Environmental Plan 2013

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Manly Local Environmental Plan 2013

State Environmental Planning Policy No 55 – Remediation of Land

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Manly Development Control Plan 2013

Category:

Principal judgment

Parties:

Jessica Hee Jin Jun (Applicant)
Northern Beaches Council (Respondent)

Representation:

J Hones (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2018/382398

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings arise following the applicant’s appeal against the Northern Beaches Council’s refusal of Development Application No. 2017/1300 (DA) pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The DA seeks approval for demolition and construction of a three-storey dwelling house with double garage and swimming pool (the proposal) at 61 Cutler Road, Clontarf (the site).

2. The background facts and statutory controls are detailed in the Council’s Statement of Facts and Contentions dated 18 April 2019. While the development is permissible within the R2 Low Density Residential zone under the Manly Local Environmental Plan 2013 (MLEP), the original design was assessed to be too big and bulky and the adjoining neighbours expressed concerns about view loss.

3. To address this the applicant has made amendments to the plans and reduced the floor space of the dwelling by 23.42m², and the overall height of the building by 530mm. The amendments have also lowered the architectural hood around the south-facing second bedroom windows/doors and reduced its depth to achieve a view sharing outcome with the surrounding properties including Nos 55 and 57 Cutler Road. The first-floor laundry and pantry have been removed from the proposal to achieve a 5.73m wide view corridor at this level along the eastern boundary of the property to improve the view from 59 Cutler Road.

4. The amended application (Exhibit A) has been assessed by the parties’ town planning experts, Mr Greg Boston (Applicant) and Mr Thomas Prosser (Council) and determined to be acceptable on its merits. Their joint report (Exhibit B) records their agreement that the breach of the maximum height control along the southern boundary, and exceedance of the maximum floor space ratio (FSR) control for the site are a consequence of the constraints of the site. In that regard, the report states that the site is constrained by its irregular geometry and topography, and the drainage easement running diagonally across the eastern portion of the site which make strict compliance with the rear boundary setback controls difficult to achieve whilst realising the orderly and economic use and development of the land.

5. The planners gave evidence that they have paid particular attention to the impact of the development on the objectors’ views over the site and are now satisfied that the amendments to design result in appropriate view sharing between the site and the neighbours. Their evidence is that the amended design offers view sharing for both existing and proposed development and existing and future Manly residents as it minimises view loss to adjoining properties. They also gave evidence that following an inspection of the relevant objectors’ properties, that the proposal is consistent with the objectives set out in clause 3.4.3 Maintenance of Views in the Manly Development Control Plan 2013 (MDCP).

6. At the hearing, the Council informed me that after a consideration of the objectors’ concerns and the expert evidence, it accepts the experts’ assessment and considers the contraventions to the height and FSR development standards in the MLEP can be varied pursuant to cl 4.6 given the adequacy of the cl 4.6 written requests lodged by the applicant, and the fact that there are no other non-compliances with the development standards in the MLEP or any applicable environmental planning instrument. As the amended plans are accompanied by a BASIX certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000, and the site does not require remediation (cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land), the Council invites me to uphold the applicant’s written requests to overcome the numerical non-compliances with the height and FSR controls and grant conditional consent to the DA.

Jurisdiction

7. The applicant relies on the two written requests made pursuant to cl 4.6 of the MLEP dated 28 April 2020 prepared by Boston Fleming Town Planning to address the breach of the height and FSR standards under the MLEP.

Height

8. Clause 4.3 of the MLEP provides as follows:

4.3 Height of buildings

(1) The objectives of this clause are as follows—

(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,

(e) to ensure the height and bulk of any proposed building or structure in a recreation or environmental protection zone has regard to existing vegetation and topography and any other aspect that might conflict with bushland and surrounding land uses.

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

9. ‘Building height’ is defined as follows:

building height (or height of building) means—

(a) in relation to the height of a building in metres—the vertical distance from ground level (existing) to the highest point of the building, or

(b) in relation to the RL of a building—the vertical distance from the Australian Height Datum to the highest point of the building,

including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.

10. ‘Ground level’ is defined as follows:

ground level (existing) means the existing level of a site at any point.

11. The request records that the proposal has a maximum height of 10.25m measured to the south-eastern corner of the second-floor roof form with the building compliant with the 8.5m height standard along its western edge where it joins Cutler Road. The exceedance of the maximum building height under cl 4.3 of the MLEP is therefore in the order of 1.75m or 20.5%.

12. Despite the breach, the request states that the development is consistent with the objectives of the standard for the reasons set out at pp 9-20.

4.3 Height of buildings

(1) The objectives of this clause are as follows—

(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,

(e) to ensure the height and bulk of any proposed building or structure in a recreation or environmental protection zone has regard to existing vegetation and topography and any other aspect that might conflict with bushland and surrounding land uses.

13. Based on the reasoning in the request supported by the photographs (Figures 1-8) and my observations at the earlier site inspection, I am satisfied that the written request has demonstrated that the contravention of the standard is unreasonable and unnecessary in the circumstances of the case because the objectives of the standard are achieved by the redesign in accordance with cl 4.6(3)(a).

14. In forming this view, I accept that the development is consistent with objective (a) because:

1. the building presents as a compliant 1 and 2 storey building height to Cutler Road before stepping down into a third level and is clearly consistent with the topographic landscape – similar to other development on sloping sites nearby – (as demonstrated by Figures 1 and 2 which show the adjoining dwelling house to the south east);

2. the proposed building height and low-pitched roof form is characteristic of the established area, and the desired future character of the area as demonstrated by the more recent development proximate to the site;

3. the portion of the development that exceeds the height standard is consistent with the prevailing building heights, with nearby development also exceeding the height standard – and consistent with the desired future streetscape character given the non-compliant building is screened, to a large extent, by the compliant portion of building adjoining Cutler Road.

15. In forming this view, I accept that the development is consistent with objective (b) because:

1. the request explains that the design has been prepared having regard to the view sharing principles discussed in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140, and clearly sets out in detail at pp 12-19 the reasons why the amendments to design achieve a reduction in the bulk and scale of the building which minimises disruption of views from neighbouring sites owned by the objectors as demonstrated by the view sharing outcome achieved;

2. the reasoning demonstrates that the proposal is skillfully designed and responds to the constraints of the site by distributing bulk – floor space, building massing and building height across the site in a manner which provides for appropriate streetscape, and residential amenity and view sharing – while realising the reasonable development potential of the land;

3. in terms of the totality of available views from 57 Cutler Road, the view impact is constrained to a small area of existing filtered view, with the majority of views including the highly valued land water interface, unaffected. I consider the view impact to be appropriately described as negligible to minor;

4. the revision F plans provide a 5.730m first floor setback to the eastern boundary to enhance the existing view corridor available down this boundary of the property which allows for the view corridor for the property behind at 59 Cutler Road to be enhanced. The view impact is constrained to a small area of existing filtered water view, with the majority of views including the highly valued land water interface, unaffected. I consider the view impact to be appropriately described as negligible to minor;

5. while a small portion of the foreground water view is affected by the proposal (as depicted in Figure 9 from the balcony and living room of 66 Cutler Road), I accept that the view impact is constrained to a small area of close water view, with the vast majority of views, including the highly valued land water interface, unaffected. I consider the view impact to be appropriately described as negligible to minor;

6. I consider the building form and height has been appropriately distributed across the site to minimise disruption of views between public spaces with a compliant building height achieved where the development adjoins Cutler Road.

16. In forming this view, I accept that the development is consistent with objective (d) because:

1. The request refers to the accompanying shadow diagrams (Attachment 1) which demonstrate that the building height breaching portion of the development will not give rise to any unacceptable shadowing impact to the west-facing living room of 6 Castle Rock Crescent with 3 hours of direct solar access maintained between 12 noon and 3pm on 21 June. Existing and adequate levels of solar access to the adjacent west-facing terrace between 12 noon and 3pm on 21 June notwithstanding the shadowing impact from the non-compliant building height elements. Moreover, the extent of overshadowing generated by the non-compliant element of the development will not prevent the orderly and economic use and development of any adjacent and nearby properties with skillful design ensuring compliant levels of solar access are achieved in the event of redevelopment of surrounding properties – notwithstanding that the primary living and private open space areas are likely to be oriented to the south to capture the available water views.

Consistency with zone objectives

17. The R2 Low Density Residential zone objectives 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.

18. The request explains that the development reinstates a dwelling house on the site which will provide for the housing needs of the community within a low-density residential environment and I accept that this outcome is consistent with the relevant zone objectives in which the development is proposed.

Sufficient environmental planning grounds

19. Clause 4.6(3)(b) requires me to be satisfied that there are sufficient environmental planning grounds to justify contravening the standard noting that the focus is on the aspect of the development that contravenes the standard.

20. Furthermore, cl 4.6(4)(a)(i) requires that the written request has adequately addressed the matters in subcl (3).

21. With respect to the sufficiency of environmental planning grounds advanced in the written request, I am satisfied that the design constraints imposed due to the site undersized area; irregular geometry and topography; the drainage easement and available view lines from surrounding properties and the built form characteristics of the northern and southern adjoining properties which are constrained on minimal setbacks to common boundaries sufficiently justify the breach on environmental planning grounds in this case. The development through skillful design achieves the objects in s 1.3 of the EPA Act including the promotion of the orderly and economic use of the land (s 1.3 (c)); development is good design (s 1.3(g)).

22. I am also satisfied as required by cl 4.6(4)(a)(i) that these environmental planning grounds have been adequately addressed in the written request.

23. Lastly, I am satisfied as required by cl 4.6(4)(a)(ii) that the development, despite the variation of the standard, is in the public interest because for the reasons outlined, I consider it to be consistent with the objectives of the development standard and the R2 Low Density Residential zone under the MLEP in which the development is proposed: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [27] (Preston CJ).

FSR

24. Clause 4.4 of the MLEP provides as follows:

4.4 Floor space ratio

(1) The objectives of this clause are as follows—

(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,

(e) to provide for the viability of business zones and encourage the development, expansion and diversity of business activities that will contribute to economic growth, the retention of local services and employment opportunities in local centres.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

(2A) Despite subclause (2), the floor space ratio for a building on land in Zone B2 Local Centre may exceed the maximum floor space ratio allowed under that subclause by up to 0.5:1 if the consent authority is satisfied that at least 50% of the gross floor area of the building will be used for the purpose of commercial premises.

25. The written request identifies that pursuant to cl 4.4 of the MLEP, the maximum FSR for the site is 0.4:1 representing a gross floor area (GFA) of 184.64m².

26. The amended proposal has a total GFA of 290.14m². This represents an FSR of 0.62:1 and therefore a non-compliance with the FSR standard by 105.5m² or 57%.

27. The request also records that clause 4.1.3 of the MDCP contains FSR exemption provisions applicable to land where the site area is less than the minimum lot size required on the MLEP Lot Size Map provided the relevant MLEP objectives and the provisions of the MDCP are achieved.

28. The Lot Size Map identifies the site as being in sub-zone “T” in which a minimum lot area of 950m² is required. The site with an area of 461.6m² is well below the minimum lot size under the control. It is less than half the size and therefore the request seeks to justify the breach of the standard on the basis that clause 4.1.3 of the MDCP variation provisions apply.

29. Clause 4.1.3.1 states that the extent of any exception to the LEP FSR development standard pursuant to cl 4.6 of the MLEP is to be no greater than the achievable GFA for the Lot indicated in Figure 30 of the MDCP. Pursuant to Figure 30, the calculation of FSR is to be based on a site area of 750m² with an achievable GFA of 300m².

30. When this is applied, the 290.14m² GFA proposed, representing an FSR of 0.38:1 (based on 750m²), is below the maximum prescribed GFA of 300m² and as such complies with the MDCP variation provision.

25. The provision also contains the following note:

“Note: FSR is a development standard contained in the LEP and LEP objectives at cl 4.4(1) apply.

In particular, the objectives in this plan support the purposes of the LEP in relation to maintaining appropriate visual relationships between new development and the existing character and landscape area as follows:

Objective 1) To ensure the scale of development does not obscure important landscape features.

Objective 2) To minimize disruption to views to adjacent and nearby development

Objective 3) To allow adequate sunlight to penetrate both the private open spaces within the development site and private open spaces and windows to the living spaces of adjacent residential development.”

32. The request states that because the GFA/FSR complies with clause 4.1.3.1 of the MDCP numerical provision, it is also “deemed to comply” with the associated objectives as outlined which, if complied with, demonstrate the maintenance of an appropriate visual relationship between the new development and the existing character and landscaped area.

33. In any event, the request addresses the matters raised by cl 4.6(3) starting with the objectives of the standard in cl 4.4 at pp 34-47. The request submits that compliance with the standard is unreasonable or unnecessary as the objective of the standard is still achieved in this case. The objectives of cl 4.4 of the MLEP include the following:

(a) to ensure the bulk and scale of development is consistent with the existing and desired streetscape character…

34. In addressing objective (a) of cl 4.4, the request reiterates the grounds submitted for the breach of the height limit discussed above. I am satisfied for those reasons that the development ensures the bulk and scale of the 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…

35. Having regard to clause 4.1.3.1 of the MDCP FSR provisions, which inform the 290.14m² of GFA, representing an FSR of 0.38:1 based on the 750m²), is below the maximum prescribed GFA of 300m² and as such complies with the MDCP variation provision applicable to undersized allotments. I note that Objective 1 of the MDCP which relates to establishing building density and bulk, as reflected by FSR, in relation to site area (undersized allotments) is similar to the MLEP objective:

“Objective 1) To ensure the scale of development does not obscure important landscape features”

36. As the proposed FSR complies with the MDCP numerical FSR applicableto undersized allotments, the request submits that the development is deemed to comply with this objective. That said, neither the MLEP or the MDCP identify any important landscape to townscape features on or within the area of the site. Accordingly, for that reason I am satisfied that the proposal achieves Objective 1 of clause 4.1.3.1 of the MDCP, with the development not obscuring any important landscape and townscape features.

(c) to maintain an appropriate visual relationship between new development and the existing character and landscape of the area…

37. The request records that this objective is the same as the primary purpose/objective outlined in clause 4.1.3 of the MDCP as confirmed by the note. Accepting that the proposal achieves objective (a) of cl 4.4 of the MLEP, I am also satisfied for those reasons that the development notwithstanding the breach, maintains 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…

38. In addressing this objective, the request reiterates at pp 36-44 the submissions made in relation to the breach of the height standard discussed earlier. Notwithstanding the breach of the FSR, the skillful design, it is submitted has maintained the scenic views from Cutler Road and has minimized adverse environmental impacts in terms of both public and private views.

39. The subject matter of this objective is like that dealing with the height controls under the MLEP, and I accept that the reasoning outlined for that objective can equally be applied to satisfy me that the development is consistent with this FSR objective.

40. Having regard to clause 4.1.3.1 of the MDCP FSR provisions, the request notes the privacy objectives at clause 3.4.2 – Objective 1 (at pp 44-45) and notes again as the FSR complies with the MDCP FSR, it is deemed to comply with the privacy objectives to the extent that it can be demonstrated that the development minimises loss of privacy to adjacent and nearby development. (With respect to solar access, the Attachment 1 shadow diagrams are relied upon again and for the reason outlined earlier in relation to the height breach satisfy me in relation to Objective 3 of the MDCP which also addresses objective (d) of cl 4.4 of the MLEP in relation to the FSR).

41. The request reiterates the submissions made for the height breach in respect of zone objectives and the public interests and I am satisfied for the reasons already stated that the relevant provisions in cl 4.6 have been adequately addressed to justify the breach of the FSR.

Clause 4.6(5)

42. In the absence of the concurrence of the Secretary of the Department of Planning having considered the matters in cl 4.6(5)(a), (b) and (c), I have power under s 39(6) of the Land and Environment Court Act 1979 to assume the concurrence of the Secretary and grant development consent for the DA that contravenes the height and FSR standards of the MLEP.

Conclusion

43. For the reasons outlined, I am satisfied that the development in the amended form addresses the concerns of the objectors who addressed the Court and made written submissions to the Council. For the reasons outlined by the planners in their joint report and in their concurrent evidence, I am satisfied that the amended proposal minimises adverse environmental impacts on the use and enjoyment of adjoining properties in that the proposal does not result in unacceptable amenity impacts in terms of bulk and scale, visual privacy and view loss.

44. The expert evidence supports an approval of the amended proposal and having decided to uphold the cl 4.6 written requests for a variation of the FSR and height standards in this instance, I believe the development is acceptable on its merits and should be approved subject to the Council’s conditions which are agreed.

45. The Court orders that:

1. Leave is granted to the applicant to rely upon the amended plans and supplementary documents referred to in Condition 1(a) of Annexure A.

2. The applicant’s written request under cl 4.6 of the Manly Local Environmental Plan 2013 (MLEP), prepared by Boston Blyth Fleming Town Planners dated 28 April 2020 seeking a variation of the development standard for height under cl 4.3 of the MLEP, is upheld.

3. The applicant’s written request under cl 4.6 of the Manly Local Environmental Plan 2013 (MLEP), prepared by Boston Blyth Fleming Town Planners dated 28 April 2020 seeking a variation of the development standard for floor space ratio under cl 4.4 of the MLEP, is upheld.

4. The appeal is upheld.

5. Development consent is granted to DA2017/1300 for the demolition of the existing structure and construction of a new dwelling house at 61 Cutler Road, Clontarf NSW 2093 subject to the conditions in Annexure A.

6. The exhibits are returned except for A, B and C (Tabs 1, 4-5 and 31-34).

…………………………

S Dixon

Senior Commissioner of the Court

Annexure A (187004, pdf)

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Amendments

13 October 2020 - Correction to typographical error at [43].

Decision last updated: 13 October 2020