Lynne Redan and Phillip Redan v Manly Council

[2006] NSWLEC 384

Land and Environment Court

of New South Wales

CITATION:	Lynne Redan and Phillip Redan v Manly Council [2006] NSWLEC 384
PARTIES:	APPLICANT: Lynne Redan and Phillip Redan RESPONDENT: Manly Council
FILE NUMBER(S):	10270 of 2006
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Heritage - Open space - Urban design and streetscape
LEGISLATION CITED:	Manly Local Environmental Plan 1988, (MLEP) Manly Development Control Plan for the Residential Zone 2001, Amendment 1, (RDCP) The Manly Town Centre Urban Design Guidelines 2002, (Guidelines) Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, (SREPSH) Manly Development Control Plan for Energy Efficient Buildings 1998, (DCPEEB) Environmental Planning and Assessment Act 1979, 79C and 97
DATES OF HEARING:	27/06/2006
EX TEMPORE JUDGMENT DATE:	06/27/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr M McMahon, solicitor SOLICITORS: M E McMahon & Associates RESPONDENT: Mr S N Griffiths, solicitor SOLICITORS: Pike Pike & Fenwick Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

27 June 2006

10270 of 2006 - Lynne Redan and Phillip Redan v Manly Council

Introduction

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Manly Council (the council) to refuse a development application to alter and add to a terraced dwelling to provide a hardstand car parking area and the associated demolition works at Lot C, DP913617, being No 21 East Esplanade, Manly.

2 I visited the land in company with the parties on the morning of the on-site hearing.

3 I have concluded that the application should fail as it would decrease the extent of open space on the land and would be contrary to the intention of the Foreshore Scenic Protection Area.

The land

4 The land is situated on the eastern side of East Esplanade between Ashburner Street and Victoria Avenue, Manly. It has a skewed frontage to East Esplanade of 5.690m, a rear boundary of 5.620m, an average depth of 29.39m and an area of some 165.2m2.

5 The land is flat and erected upon it is a two-storey terraced house, part of a row of four terraces known as the ‘Strand’ at Nos 20-23 East Esplanade. East Esplanade is in the tradition of the grand waterfront boulevard and any development applications involving changes to building façades must be carefully considered by the consent authority.

6 The land is serviced and has views over Manly Cove part of Sydney Harbour.

7 In February 1980 the council approved alterations to No 23 East Esplanade, and included a roof studio, internal laundry, parking bay and street front dormers.

Relevant planning controls

Manly Local Environmental Plan 1988, (MLEP)

8 Clause 3(1)(i) of the MLEP the aim and objective of the plan is:

to preserve and enhance the amenity of defined environmentally sensitive areas, public places and areas visible from public places or from navigable waters around the Municipality.

9 Under the provisions of the MLEP the land is zoned Zone No 2 (Residential) and the ‘Tourist Area’ and the proposal is permissible with consent. Of importance to this case is Objective (d) of the Residential Zone No 2:

…to ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment,

10 Under the provisions of the MLEP the relevant clauses are: cl 3 (Aims & Objectives), cl 4 (Policies & Strategies), cl 10 (zoning), and cl 19 (development within the vicinity of an item of environmental heritage).

11 East Esplanade opposite the subject is a landscape item of environmental heritage listed in Schedule 4 of the MLEP. The subject premises is not listed as an item of environmental heritage or is it within a conservation area.

Manly Development Control Plan for the Residential Zone 2001, Amendment 1, (RDCP)
12 Of importance is the aims and objectives of the RDCP and in particular A5(d) and (f), [Note: Exhibit 6, p (i))
(d) To increase the availability and variety of dwellings to enable population growth without having adverse effects on the character, amenity and natural environment of the residential areas,
(e) …
(f) To protect the amenity of existing and future residents.

13 Under cl 3.2 open space and landscape design provisions of the RDCP the required minimum open space within Density Subzone 2 is 50% of the site area, [Note: Exhibit 6, p15]. The proposal would decrease open space from 38% to 27% of the site area due to the area of the land taken up with car parking.
14 Under cl 3.9 of the RDCP the objectives for streetscapes, fences and walls are, [Note: Exhibit 6, p 40]:
(a) To ensure that all development contributes positively to the street and locality identified in the locality analysis.
(b) To minimise the impact of wall and fences on the street frontage.
(c) To ensure all fences and walls contribute positively to the identified streetscape.
(d) In some circumstances front fences and walls may not be appropriate and soft landscaping should be considered.

15 Under cl 3.9.2(1)(b) of the RDCP, [Note: Exhibit 6, p 40]:

Buildings and fences should be designed to complement and/or improve existing streetscapes through innovative design solutions.

16 Under cl 3.9.2(ii)(c) of the RDCP, [Note: Exhibit 6, pp 40-1]:

Fencing and wall materials shall be compatible with the overall landscape character and the general appearance of the building and streetscape. Materials should be in keeping with the period of the dwelling are preferred. Fences and/or walls should consider the incorporation of appropriate shrubs and climbers to soften the impact of hard surfaces.

17 Under cl 3.11.2(c) of the RDCP that deals with the protection of heritage items and conservations areas requires, [Note: Exhibit 6, p 46]:

DAs (development applications) for works adjacent, or near heritage items, or heritage conservation areas must address the impact of the proposed development on the heritage significance of the heritage item or area. In such circumstances Council may request the preparation of a Heritage Impact Statement prepared by a qualified heritage consultant.

18 Under cl 3.12 parking and access provisions of the RDCP it states, [Note: Exhibit 6, p 52]:

The allowable maximum width allowable for a garage or carport forward of the front setback, is 6.2m or 50% of the frontage width, whichever, is the lesser.

19 The Guidelines that apply to the land were updated March 2003.

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, (SREPSH)

20 Under the SREPSH, one of the aims is, [Note: Exhibit 9, p 5] :

(a) to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained:
(i) as an outstanding natural asset, and
(ii) as a public asset of national and heritage significance for existing and future generations.

21 In respect of the Sydney Harbour Catchment, and foreshores and waterways area, cll 13(f) and 14(d) of the SREPSH states, [Note: Exhibit 9, pp 10-11]:

…development that is visible from the waterways or foreshores is to maintain, protect and enhance the unique visual qualities of Sydney Harbour,
…development along the foreshore and waterways should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands and foreshores.

22 Under cl 15(a) (c) (d) and (e) of the SREPSH states, [Note: Exhibit 9, p 12]:

(a) Sydney Harbour and its islands and foreshores should be recognised and protected as places of exceptional heritage significance,
(b) …
(c) an appreciation of the role of Sydney Harbour in the history of Aboriginal and European settlement should be encouraged,
(d) the natural, scenic environmental and cultural qualities of the foreshores and waterway areas should be protected,
(e) significant fabric, settings, relics and views associated with the heritage significance of the heritage item should be conserved,
(f) …

23 The DCPEEB applies to the land and seeks to minimise the use of energy used in maintaining comfortable conditions inside a building.

The proposal and its history

24 Development application No 478/05 was lodged with the respondent council on 1 November 2005 to alter and add to a terraced dwelling to provide a hardstand car parking area and the associated demolition works at the land.

25 Originally the application had been more extensive and had involved the provision of an attic. The application has now been reduced to the hardstand area.

Notification

26 The application was notified from 14 November 2005 until 28 November 2005 to nearby owners and occupants and the council received one submission from the owner of property No 20 East Esplanade, Manly who raised no objection within time and:

Requests due care during construction and that a photographic record is taken to ensure that there is no dispute with respect to damage to adjoining walls etc.

27 The application was referred to the council's building surveyor, engineer, heritage officer and landscape officer. The application was also referred to the Precinct Committee.

28 There were a number of support letters, [Note: Exhibit 2, Tab 12].

The council’s decision

29 By notice dated 1 March 2006 the council refused the application for nine reasons that are reflected in the issues.

The hearing

30 The appeal was filed on 5 April 2006.

31 At the hearing the court heard evidence on behalf of the respondent council from:

· Ms D Smith, heritage advisor to Manly Council; and

· Ms A Pedersen, town planner of Manly Council.

32 On behalf of the applicant evidence was given by:

· Mr D Jones, town planner; and

· Mr P Redan, applicant and owner of No 21 East Esplanade.

The issues

33 On 18 May 2006 the council filed a statement of issues.

STREETSCAPE

Particulars
A The proposal is inconsistent with Manly Local Environmental Plan 1988 ("Manly LEP 1998") clauses 3(1)(i) as it is not considered to have sufficient regard for the architectural significance of the symmetrical nature of the building and the main roof form which is one of the key determinants of the overall form of the building and has a major effect on the appearance of the building.
B The proposed development would not serve to maintain, protect or enhance the unique visual quality of the Manly foreshore and therefore does not comply with Clause 17 of Manly LEP 1998. The subject property is within the Foreshore Scenic Protection Area.
C The proposal is inconsistent with clauses of 3.9.1 a) 3.9.1 c), 3.9.2(i)b (ii)c of Manly Development Control Plan for the Residential Zone 2001 Amendment 1; ("Manly RDCP 2001"), as it does not contribute positively to the street and locality.
D The proposal contravenes the objectives (b) and (d) of the Residential 2 Zone in Clause 10 of the Manly LEP 1998.
E The proposal does not achieve meet the objectives of the State Regional Environmental Policy (Sydney Harbour Catchment) 2005 clause 14.
F The proposal does not achieve General objectives A5 d) and f) of the Manly RDCP 2000.
G The proposed car stand and dormer window detract from the symmetrical architecture of ‘The Strand’ building.

HERITAGE + HERITAGE STREETSCPE

Particulars
A The demolition of the existing plinth and fencing will impact on the architectural character of the building and a detrimental impact on the historical context of the park and contravenes clause 3.11.1 (b) of the manly RDCP 2001.
B The proposed southern dormer and the proposed carparking will erode the significance of the collection of buildings and will have an adverse impact on the streetscape.
C The proposed car stand at the front of the property involves the demolition of original plinth, front porch and palisade fencing and will have a negative effect on the integrity and character of the building and erode the setting of the heritage item.

FLOOR SPACE RATIO

Particulars
A Permitted FSR 0.75:1 and proposed development has an FSR of 1:1.46.

BUILDING HEIGHT and DORMER WINDOW

Particulars
A The habitable room created has an impact when the building is viewed from the water and contravenes clause 3.4.2. (iv) a) of Manly RDCP 2001.
B The dormer window does not reflect the overall massing and character of the building and contravenes clause 3.4.2 (v) a) of the Manly RDCP 2001.

OPEN SPACE STANDARDS

TRAFFIC AND PARKING

Particulars
A Two (2) car parking spaces are generally considered necessary to service a dwelling with five (5) bedrooms. Given that no additional carparking spaces can be provided on-site, this further suggests that the proposal is an overdevelopment of the site.
B The proposal has a negative impact on the amenity of the adjoining properties in contravention of clause 3.2.2 of the DCP.

PUBLIC INTEREST AND SUBMISSIONS RECEIVED
A Effect of demolition and construction works on neighbouring property, (a condition requiring a dilapidation report is recommended).
B Precedent for overdevelopment of other dwellings of "The Strand"
C Effect on the heritage setting of the Esplanade.

34 Those sections of the issues dealing with the dormer window and attic were not pressed and the following that relate only to the hardstand area emerged as the salient issues:

· Heritage;

· Open space;

· Urban design and streetscape

The evidence and findings

Heritage

35 Opposite the subject land is East Esplanade a landscape item of environmental heritage listed in Schedule 4 of the MLEP.

36 Ms Smith pointed to the need to need for the consent authority, in this case the Court, to address the impact of the proposed development on the heritage significance of the heritage item. She was critical of the applicant for not preparing a Heritage Impact Statement, however, Mr Redan explained that none was requested and he would have been willing to have one prepared had he been aware.

37 Ms Smith stated, [Note: Exhibit 4, p 5]:

The proposed car stand that results in the demolition of important streetscape elements such as: the demolition of the front porch; the removal of the plinth and the palisade fence, as well as permitting the visual obstruction of the building will have a detrimental impact on the setting of East Esplanade as well as the contribution that ‘The Strand’ makes to the significance of East Esplanade.

38 Mr Jones considered the proposal would not result in “…significant adverse heritage impacts” and stated, [Note: Exhibit D, p 9]:

The potential visual impact arises primarily from the parked vehicle itself. In this respect it is my opinion that the parked vehicle will have a negligible visual impact from the foreshore area and water given that front setback car parking is part of the established streetscape character and the existing circumstances of the group of terraces; the existing traffic movements in East Esplanade; and existing parking in East Esplanade immediately adjacent and adjoining the foreshore park.

39 The existing dwelling is a fine backdrop to the East Esplanade Park and I am satisfied that to remove part of the front of the dwelling would be to down grade its environmental heritage significance and its visual aesthetic. The proposal to park a car in the front garden is exemplified by that parking in from of No 23 East Esplanade, approved in 1980, demonstrates the paucity of the result.

Open space

40 The council considered the proposal would not comply with the open space requirements of the RDCP.

41 The proposal would decrease open space from 38% to 27% of the site area as a result of the land taken up with car parking. This proposal is in an area where the required open space component is 50% of the site area.

42 Ms Pedersen who identified non-compliances with the open space objectives of the RDCP stated, [Note: Exhibit 5, p 5]:

The permanent hardstand car parking area fronting the dwelling would result in further non-compliance with the objectives and performance criteria of the open space and landscaping requirements of the RDCP. It would also be of detriment to the existing and desired landscaped character of the East Esplanade streetscape as outline in the Guidelines.

43 I am satisfied that to decrease the open space further would down grade the amenity of the dwelling. Even if the existing residents are prepared to live without the elevated verandah, and the paved front courtyard, future residents should not be equally deprived. The council and the Court on appeal, is required to take into account the existing and future amenity of the dwelling.

44 I refuse the application for reason of a reduction in the extent of open space on the land.

Urban design and streetscape

45 The council was of the opinion that the proposed …car hardstand and associated demolition works have a negative impact on the streetscape and character of the area.

46 Under cl 3(1)(i) of the MLEP it is necessary to preserve and enhance the amenity of public places such as East Esplanade Park and areas visible from public places or from navigable waters such as Manly Cove.

47 The council considered that the designer did not have sufficient regard for “…the unique visual quality of the Manly foreshore and therefore does not comply with Clause 17 of Manly LEP 1998.” The council was of the opinion that the proposal would not “…maintain, protect or enhance the foreshore” which is “…within the Foreshore Scenic Protection Area.”

48 Ms Pedersen who was of the opinion that the front setback of the dwelling is not capable of supporting a hardstand area without adverse environmental impacts, stated, [Note: Exhibit 5, p 7]:

Impacts [of the proposal] relating to non-compliances in open space, landscaping provisions; heritage impacts, and urban design requirements …are not acceptable.

49 Mr Jones considered the visual impact arises as a result of the parked vehicle and stated, [Note: Exhibit D, p 10]:

The proposed development is relatively minor and in my opinion is acceptable having regard to streetscape and heritage impacts. It is my recommendation that the development application be approved.

50 Contrary to the evidence of Mr Jones, I am satisfied that the proposal would not contribute positively to the street and locality; the alteration to the verandah plinth and front wall would be adverse and would not contribute positively, complement and/or improve to the streetscape. I am satisfied that the proposal would be inconsistent with cll 3.9.1(a) 3.9.1(c), 3.9.2(i)(b), 3.9.2(ii)(c) of the RDCP, and would not contribute positively to the street and locality in the foreshore scenic protection area. As a result the application fails.

51 Soft landscaping including shrubs and climbers to soften the visual impact of the hard surfaces of the building should be considered in the front garden.

52 For the above reasons, the appeal is dismissed.

Orders
53 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 478/05 lodged with the respondent council on 1 November 2005, to alter and add to a terraced dwelling to provide a hardstand car parking area and the associated demolition works at Lot C, DP 913617, being No 21 East Esplanade, Manly, is refused development consent.

3. The exhibits except for Exhibits A, B, 1 and 2 are returned.

S J Watts

Commissioner of the Court

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