Manolev v Manly Council

[2006] NSWLEC 252

Land and Environment Court

of New South Wales

CITATION:	Manolev v Manly Council [2006] NSWLEC 252
PARTIES:	APPLICANT Manolev Associates Pty Ltd RESPONDENT Manly Council
FILE NUMBER(S):	11451 of 2005
CORAM:	Brown C
KEY ISSUES:	Development Application :- alterations, additions to existing dual occupancy - floor space ratio - wall height - setback - loss of views and vistas - overshadowing - bulk
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 1988 Sydney Regional Environmental Plan - Sydney Harbour Catchment 2005 Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 Sydney Regional Environmental Plan 23 (Sydney and Middle Harbours) State Environmental Planning Policy 71 - Coastal Protection
DATES OF HEARING:	07/04/06
DATE OF JUDGMENT:	07/04/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr B Hones, solicitor SOLICITOR Hones Lawyers RESPONDENT Ms C Schofield, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

4 July 2006

11451 of 2006 Manolev Associates Pty Ltd v
Manly Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application No. 335/05 by Manly Council (the council) for alterations and additions to an existing dwelling at 51 Seaforth Crescent, Seaforth (the site).

The site

2 The site is legally described at Lot 31 in DP 4889. It has a street frontage to Seaforth Crescent of 18.29 m and is defined by the mean high water mark of Middle Harbour to the south giving an overall area of 1,201.3 sq m. It slopes steeply from the north of the site at the street frontage to the foreshore with a fall of about 40 m.

3 The northern portion of the site is constructed as an attached dual occupancy and the southern part of the site contains a series of landscaped terraces and a series of stairs leading to a jetty.

4 The general area is exclusively residential with many dwellings having expansive views over Middle Harbour. The age and style of dwellings varies with a number of new and renovated dwelling interspersed with older style dwellings.

5 The proposal involves alterations and additions to an existing dwelling, including a new swimming pool, modification to the level of existing car parking facilities, an open parking area and driveway. Specifically:

• Level 4 - a new galleria and lift at the entry foyer is proposed.
• Level 3 - the existing swimming pool is to be removed and the area incorporated into the existing deck. Additions are proposed to the lounge room and alterations to the toilet and wine cellar, walls are to be removed in the living areas.
• Level 2 - a gym is proposed in the area previously occupied by the underneath of the swimming pool, alterations are proposed to the stairwell windows and a new en suite and dressing room is proposed.
• Level 1 - internal alterations are proposed. The under croft area is proposed to be enclosed and a spa pool with new stair access to the proposed new above ground swimming pool and deck providing an outdoor recreation area.
  

6 A number of amendments to the proposed development were provided and are addressed in the judgment.

Relevant planning requirements

7 The site is within Zone No. 2 - Residential under the provisions of Manly Local Environmental Plan 1988 (the LEP). The proposed development is permissible with consent in this zone. Clause 10 provides that consent shall not be granted unless the proposal is consistent with the objectives of the zone.

8 The site is also shown on the LEP maps as being located within a Foreshore Scenic Protection area. Clause 17 provides that “consent shall not be granted unless the development will not have a detrimental effect on the amenity of the foreshore scenic protection area”.

9 Manly Development Control Plan for Residential Zones 2001 (the DCP) also applies. The site is located within DCP Sub-Zone 7 for density and floor space ratio (FSR). For height the site is within DCP Sub-Zone 1. The DCP provides further requirement for setbacks, open space, soft landscaping, car park excavation, overshadowing and height in relation to the crown of Seaforth Crescent.

10 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP 2005) applies, although the application falls within the saving provision of cl 11. The Court is to consider the application as if the plan had been exhibited. Clause 2 provides aims for the plan. The site falls within the Foreshores and Waterways Area. Clause 14 provides planning principles for this area with the relevant principle being (d) which states:

(d) development along the foreshore and waterways should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands and foreshores

11 Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (Sydney Harbour DCP) also applies. Part 5 provides design guidelines for land based developments, specifically Siting of Buildings and Structures at cl 5.3 and Built Form at cl 5.4.

12 Sydney Regional Environmental Plan 23 (Sydney and Middle Harbours) (SREP 23) also applies. Relevantly, the provisions of cl 18 and the objectives in cl 2 require consideration to be given to the visual impact a development may have on Middle Harbour.

13 State Environmental Planning Policy 71 - Coastal Protection (SEPP 71) also applies.

The issues

14 The council filed a Statement of Issues containing seven issues relating to breaches of the FSR requirement, wall height and setback. Cumulatively, the impact of these breaches creates unacceptable impacts on views and vistas from public spaces, specifically Seaforth Crescent and Middle Harbour. The overshadowing and bulk impacts on the property at 53 Seaforth Crescent were also raised by the council.

The evidence

15 The parties agreed to the appointment of Mr Lawrence Winnacott as the court appointed town planning expert. Mr Ian Glendinning, a town planner, provided further evidence for the applicant. The owner of the property at 53 Seaforth Crescent, Ms Nettleton, also provided evidence on site.

Visual impact

16 In considering the interrelated issues, the Court had the benefit of a comprehensive site view where the different changes to each of the levels of the existing dwelling were explained. The Court also had the benefit of a view of the dwelling from various locations on Middle Harbour.

17 As I understand, Mr Winnacott did not require strict compliance with the controls in DCP 2001 but rather maintained a position that certain components of the proposed alterations and additions added unacceptably to the bulk and scale of the building when viewed from Seaforth Crescent and Middle Harbour. The council had a similar position, although they maintained further components, beyond those suggested by Mr Winnacott should be deleted.

18 The applicant pressed the full extent of the alterations and additions, although conceded that it would reluctantly accept the modifications suggested by Mr Winnacott.

19 The alterations and additions not considered acceptable to Mr Winnacott are on levels 3 and 4. In his report he states, in relation to level 3:

“The amended plans show deletion of the curved wall below the front entry steps at this level. This wall has been replaced by a planter 800 millimetre deep below the elevated steps above. The original plans show two proposed new walls adjacent to the family room and the terrace off the family room. I recommend a deletion of these walls due to their contribution to excessive building bulk. One of the walls has been removed, however the proposed wall on the western side of the terrace has been retained. I consider that this should be removed and a low level balustrade retained on this side. The amended plans continue to incorporate increased floor area for the lounge/dining room and kitchen on this level. This will, in conjunction with other additional elements of the built form, contribute to the overall bulk of the building. I do not raise objection to the enlargement of the kitchen to the north as this will not be readily visible from outside the site. However I consider the proposed enlargement of the lounge/dining room and the eastern expansion of the kitchen should be deleted”.

20 In relation to level 4, Mr Winnacott states:

The recommendations in my statement of evidence for deletion of the void over the family room galleria and solid balustrades for the front entry steps have been adopted in the amended plans, however it is now proposed to increase the ceiling height for the family room and this will contribute to the additional bulk of the building when viewed from both Middle Harbour and Seaforth Crescent. I consider this component of the development should be deleted and there should be no increase in the ceiling height of the family room. As indicated in my statement of evidence I consider that the additional floor space proposed at level 4 foyer should be deleted as it will contribute to building bulk when viewed from Seaforth Crescent.

21 He concludes by stating:

The existing building on the subject property is larger than that allowed by council’s Development Control Plan for Residential Zone Amendment 1 in relation to floor space ratio and wall height. The development application seeks to further enlarge the building by the provision of additional floor space and increased wall height. The amended plans have incorporated many of the recommendations which I made for redesign in my statement of evidence. However there are still elements of the built form which I consider contributed in an unsatisfactory manner to the visual bulk of the development when viewed from Middle Harbour and Seaforth Crescent and surrounding properties. I regard these elements as being unsatisfactory and when considered together result in the development being excessive in scale and visual impact and not warranting the grant of consent.

22 The council generally accepted the conclusions of Mr Winnacott although submitted that the lift level at the existing garage level should also be deleted to allow for greater view corridors from Seaforth Crescent to Middle Harbour.

23 Mr Glendinning states that the matters that have not been amended following Mr Winnacott’s initial assessment are considered acceptable, as they do not have any detrimental visual impact when viewed from Seaforth Crescent or Middle Harbour. However, the further works suggested by beyond those suggested by Mr Winnacott are necessary to make the proposal liveable in terms of both accessibility and internal space requirements.

24 In considering the different positions put by Mr Winnacott, Mr Glendinning and the council, I accept the conclusions of Mr Winnacott for a number of reasons.

25 The DCP 2001 FSR requirement is 0.4: 1. The existing dwelling has an FSR of 0.43: 1 while the proposal will have an FSR of 0.52: 1. The objectives of the FSR standard in the DCP relate to controlling bulk, scale, consistency with the existing desired character and protecting the amenity of nearby residential development.

26 In my view, Mr Winnacott and the council have adopted a sensible and practical approach in their assessment. Put simply, they have accepted an increase in the FSR standard is appropriate (even though the dwelling already exceeds the FSR requirement) where the objectives are not offended. Where there is an increase in bulk and scale, and notwithstanding the increase may be relatively small, those components that add to the bulk and scale should be deleted. Considering the not insubstantial breach of the FSR requirement, this is a sound planning approach to this issue.

27 If the Court adopted the approach of Mr Glendinning, i.e., that the test should be limited to whether there was a significant added visual impact from the alterations and additions, then the FSR requirement would have no purpose. This clearly cannot be the case.

28 Mr Winnacott and the council disagreed on whether the lift should be deleted from the entry foyer. I accept Mr Winnacott’s evidence that it should be retained. In my view, it would be unreasonable to provide a lift that does not service all levels of the building, particularly when the area in question does not overly impact on the view corridor to Middle Harbour.

Overshadowing

29 The issue of overshadowing was not addressed by Mr Winnacott because of the inadequacy of the documentation. However, with the amendments proposed, the impact of any additional overshadowing on Mrs Nettleton’s property is minimal at best. The only additional structure that would cast any shadow is restricted to the proposed ramp to the rooftop car park. Because of the relative height of this structure and the orientation of the lots, the existing level of sunlight to Mrs Nettleton’s property is unlikely to be affected by the proposed development.

Amended plans and conditions

30 As the alterations and additions substantially form part of the existing building form, I find that the proposal is acceptable in relation to the relevant requirements in the LEP, the DCP, SREP 2005, Sydney Harbour DCP 2005, SREP 23 and SEPP 71.

31 The parties were advised of the findings on 8 May 2006 and as the amendments cannot be appropriately addressed through conditions of consent, I directed that amended plans be filed and served based on the findings and the judgment and also addressing those other matters such as the appropriate fencing in the road reserve and the specific details of the balustrade and safety issues for cars using the new car parking deck by 18 April 2006. The council was to file and serve amended draft conditions reflecting the findings in the judgment by 18 April 2006.

32 If there was any dispute over the plans or conditions, the parties had leave to restore the matter on 24 hours notice and if no disagreement, final orders were to be made in chambers.

33 The Court was advised on 15 May 2006 that agreement had been reached on the plans and the conditions. The conditions were filed on 26 June 2006 although one of the conditions remained in dispute.

34 The condition in dispute (condition 31) relates to whether temporary screening barriers should be erected during construction to protect the adjoining dwelling. The applicant proposes an abridged condition that requires “adequate care” during construction but without the barriers. I accept the applicant’s condition, as it is an unnecessary burden on the applicant to provide barriers when it could be assumed that reasonable care would be taken during construction.

35 The Orders of the Court are:

1) The appeal is upheld.

2) Development Application No. 335/05 for alterations and additions to an existing dwelling at 51 Seaforth Crescent, Seaforth is approved subject to the conditions in Annexure A.

3) The exhibits are returned.

___________________

G T Brown
Commissioner of the Court