Magnan v Manly Council
[2006] NSWLEC 623
•20/09/2006
Land and Environment Court
of New South Wales
CITATION: Magnan v Manly Council [2006] NSWLEC 623 PARTIES: APPLICANT
RESPONDENT
Goerges Magnan and Anna Magnan
Manly CouncilFILE NUMBER(S): 10392 of 2006 CORAM: Murrell C KEY ISSUES: Appeal :- Development application for second storey addition, impacts on adjoining properties, solar access, height and bulk, setback, floor space ratio LEGISLATION CITED: Environmental Planning and Assessment Act
Manly Residential Zone 2001 DCPDATES OF HEARING: 20/09/2006 EX TEMPORE JUDGMENT DATE: 09/20/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr A Hudson, solicitor
SOLICITORS
Wilshire WebbRESPONDENT
Mr R Graham, solicitor
SOLICITORS
Abbott Tout
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Murrell C
20 September 2006
JUDGMENT10392 of 2006 Goerges Magnan and Anna Magnan v
Manly Council
This determination was given extemporaneously
and it has been edited prior to publication
1 This is an ex tempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Manly Council’s refusal of a development application for the property known as 9 Smith Street, Manly.
2 The subject site gains access via an unmade laneway at the rear of Smith Street. The site adjoins Kangaroo Park, and there is vehicle access to a number of properties with access only from the rear of Smith Street. The subject site is in a conservation area, however conservation issues are not raised as an issue.
3 Currently on the subject site there is a single storey small dwelling and the land area is some 94.5 sq m. Currently the dwelling on the subject site has at a floor space ratio of 0.62 to 1. It is a 59 sq m dwelling and the proposed development is for an upstairs level, first floor extension which would provide for a floor space area of 90.8 sq m, which is translated into 0.96:1 floor space ratio.
4 The subject site is from an old subdivision and it, together with the adjoining properties to the west, can be seen to be very small properties. There is a range in terms of the residential subdivision size within the area. However, these three properties are significantly smaller than the other properties in the area.
5 The area is characterised by smaller dwellings because of the smaller allotments, many semi-detached dwellings and some single cottages and hostel/shared accommodation within the area. It is an old, established area and it has a fine grain to the urban fabric with also a pleasantness to it.
6 There were a number of issues that the Council raised in its statement relating to the floor space ratio, wall heights and setbacks, overshadowing and the amenity of neighbouring dwellings, and the resident objections.
7 The Court heard evidence from objectors of two adjoining properties on the view this morning. Mr and Mrs Stevens, who own 13 Smith Street, which is a semi-detached house, are concerned about the bulk of the building and the impact on sunlight and privacy to their rear yard. On behalf of the owner of No. 15, Mrs Raoul, Mr Geoff Hughes provided evidence to the Court and the Court also had the opportunity of viewing this property and the rear garden area. He is concerned about the overshadowing and the bulk of the proposed development on No. 15. The Court also had the opportunity of going into the yard of No. 7, which is used for a boarding house shared accommodation.
8 The Court heard expert evidence on behalf of the applicant from Mr Steven King in terms of solar access, and Mr Milligan, a consultant town planner, gave evidence and provided a statement to the Court. Mr Ooi on behalf of the Council provided a statement, and I heard joint concurrent evidence from the town planners in Court this afternoon.
9 The issues that the Council raised have been considered. The development control plan that applies to the subject site is the Manly Residential Zone 2001 DCP. And it is noted in the DCP that there are performance criteria in terms of the floor space ratio and the objectives are:
- to control the bulk of buildings …
- to be consistent with the existing and desired character of residential areas;
- to minimise disruption to views, loss of privacy, loss of sunlight to existing residential development as well as the proposed development;
- to provide sunlight access to private open spaces within the development; and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings.
10 It is noted in the performance criteria that the subject site falls within the 0.6:1 FSR, that is density sub-zone 3 and it is contemplated by the DCP for redevelopments that there be one dwelling per 250 sq m, which provides an indicator in terms of density. In terms of the performance criteria, subcl (b), states: on sites which are substantially less, 20 per cent more than the minimum site area is required, Council may consider a variation to the floor space ratio provided the applicant can demonstrate the objectives of the DCP can be achieved.
11 The general aims of the DCP include:
- to ensure residential development protects and conserves the natural and cultural environment of the area;
- 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;
- to identify the characteristics of the residential zone that require protection, and develop standards to encourage protection; and
- to protect the amenity of existing and future residents.
12 Mr Hudson submitted that the issue in this appeal is a qualitative analysis, in terms of the impact of the bulk of the proposal on the adjoining properties to the east, and in that regard that is a balancing exercise that the Court must have consideration to in terms of the controls of the DCP, giving real proper and genuine consideration to its provisions.
13 The council officer’s report provides a table of non-compliances. While I agree with Mr Hudson that in terms of the numerics, clearly the subject site being at 94.5 sq m is a most unusual situation and most unique.
14 The balancing exercise for the Court, which has been submitted to me by both parties, is whether in fact the impacts of the proposed development are unreasonable on adjoining properties. This is not just a case of whether the extension in terms of the size of the dwelling is unreasonable, and there is no dispute that it is a small dwelling house now and it would continue to remain a relatively small dwelling.
15 The issue is the expectation of the owners of the subject property and the expectations of the adjoining properties, in particular Nos. 13 and 15, in terms of the reasonableness of the development and the impact on the amenity of the rear yards of those properties. The rear yards of the properties at 13 and 15 are approximately 6 m x 6 m, one being 6 m x 6.5 m at No. 15. They provide the primary private open space for those dwellings and that could be seen clearly on the view.
16 The Court has come to the conclusion, based on the evidence and with the assistance of the view, that on balance the proposed development would create unreasonable impacts on the amenity of the open space areas for Nos. 13 and 15. I appreciate that the site is very small and it contains a small dwelling. On the other hand, one could question whether it is a reasonable expectation to have a three-bedroom dwelling on the site the size of the subject property.
17 The floor space, whilst it will not be large by the extension at the same time, the impact on the amenity of the open space areas of 13 and 15 in terms of the bulk of the wall on the boundary, that is raising the wall some 1.5 m, which is to the current ridge line of the existing roof and then a less steeply sloping roof, I consider is not appropriate on the boundary of the open space areas for Nos. 13 and 15. The proposal in terms of No. 7 would have less of an impact on its rear yard. However, the application fails because reasonable amenity for Nos. 13 and 15 is not maintained by the proposal.
18 I also note that whilst solar access and overshadowing was raised initially as an issue, at the end of the day the planners have come to a conclusion that the solar access is reasonably maintained in terms of affording three hours of sunlight, although it is noted that the impacts on 7 and 13 do not comply with council’s development control plan in terms of the 3pm shadow line.
19 It is not for the reason of solar access that I consider the proposal does not warrant approval, but on the basis of the sole issue of the impact of the wall on the boundary being an unreasonable impact on the amenity in the rear yards of 13 and 15. As Mr Hudson said, this is a balancing exercise and it could be said that it has been a finely balanced matter for the Court to consider. But at the end of the day it is the reasonableness of the expectation of what could be achieved on the subject site.
20 One must also have regard to the provisions of the development control plan, and whilst the DCP anticipates the development of smaller sites, at the same time it must meet the objectives of the development control plan, and in that regard the objective A5F “to protect the amenity of existing and future residents” and the impacts on the adjacent properties is the reason as to why the Court does not consider the development warrants approval.
21 I understand that the owners of the subject property are desirous of providing additional accommodation. However I think it is an unreasonable expectation to accommodate a three-bedroom dwelling on the subject site. And as I stated, the reason why the application fails is because of the unreasonable amenity impacts on 13 and 15.
22 Therefore on the basis of my assessment, the formal orders of the Court are:
1. The appeal in respect of the property known as 9 Smith Street, Manly is dismissed.
2. The development application submitted to Manly Council and as amended is determined by refusal.
3. The exhibits with the exception of A and 4 are returned to the parties.
___________________
J S Murrell
Commissioner of the Court
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