Matthew Grant Architects v Manly Council
[2005] NSWLEC 748
•12/15/2005
Land and Environment Court
of New South Wales
CITATION: Matthew Grant Architects v Manly Council [2005] NSWLEC 748
PARTIES: APPLICANT:
Matthew Grant Architects
RESPONDENT:
Manly CouncilFILE NUMBER(S): 11132 of 2005
CORAM: Watts C at 1
KEY ISSUES: Development Application :- Balancing private benefit and public amenity/good
LEGISLATION CITED: Manly Local Environmental Plan 1988, (MLEP)
Environmental Planning and Assessment Act 1979, ss 79C and 97DATES OF HEARING: 15/12/2005 EX TEMPORE JUDGMENT DATE: 12/15/2005
LEGAL REPRESENTATIVES: APPLICANT:
RESPONDENT:
Mr Tony Sattler, solicitor
SOLICITORS:
Sattler & Associates
Ms C A Schofield, solicitor
SOLICITORS:
Pike Pike and Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
December 2005
11132 of 2005 - Matthew Grant Architects v Manly Council
JUDGMENT
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 an existing residential flat building at Lot 1, DP1067998, being No 1 Parkview Road, Fairlight.
2 I visited the land and the premises in company with the parties on the morning of the on-site hearing.
3 I have concluded that the application as amended during the hearing should succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979 for reasons disclosed in the body of this judgment.
The land
4 The land is situated on the western side of Parkview Road. It is rectangular in shape, with a street frontage to Parkview Road of 15.24m and frontage to Parkview Lane of 33.185m, giving an area of 504.68m2.
5 The land slopes gently down from the rear towards the southeastern corner. Erected on the land is a three-storey residential flat building.
6 Nearby are dwellings and other residential flat buildings and on the northern side of the land in Parkview Road is a three-storey residential flat building.
Relevant planning controls
Manly Local Environmental Plan 1988, (MLEP)
7 Under the provisions of the MLEP the land is zoned Residential No 2 and the proposal is permissible with consent.
8 The relevant clauses of the MLEP are:
· Clause 3(e), (i) and (j) (Aims & Objectives),
· Clause 4(a)(ii), (v) and (viii) (Policies & Strategies),
· Clause 10(d) and (e) (zoning).
· Clause 17 (Foreshore scenic protection area).
9 Other relevant planning instruments:
· Manly Development Control Plan for the Residential Zone 2001, Amendment 1, (MRDCP) Section A5, p (i) and (ii) and as referred to in the statement of issues.
· Manly Development Control Plan for Energy Efficient Buildings 1998.
10 Development application No 228/2005 was lodged with the respondent council on 21 April 2005, to alter and add to the existing residential flat building on the land, by providing new balconies and terraces, new car spaces and covered parking.
Notification
11 The application was notified to nearby owners and occupants between 20 June 2005 to 11 July 2005 and the council received two (2) objections from neighbours, [Note: Exhibit 6, p 36A].
· loss of views;
· detrimental impact on streetscape;
· loss of on-street car parking;
· addition of balconies will block public views from the lane to Manly and reduce the narrow view of the beach and ocean from the veranda of No 4 Crescent Street, Fairlight;
· visual appearance does not sit well with the building and adds mass;
· combined with the future development of No 112 Sydney Road, Fairlight, will create a dark wind tunnel in Parkview Lane;
· carport design is unsympathetic to the surrounding architecture;
· a bank of roller doors (now single door is) are visually unattractive;
· with five car spaces squeezed in, there will be noise accessing the roller door; and
· block of flats has no soft planting and could be rectified by planting around the perimeter and permeable surfaces.
12 The application was also referred to the Ivanhoe and Fairlight Precinct Committees and the responses are included in the bundle, [Note: Exhibit 6, pp 37-9, pp 40].
The council’s decision
13 By notice dated 5 September 2005 the council refused the application for reasons reflected in the issues.
The hearing
14 The appeal was filed on 28 September 2005.
15 At the on-site hearing the Court was assisted by comments on behalf of the respondent council from Mr P Christmas, town planner and Mr D Stray, Manager of Development Assessments, and Tony Goninon, Engineer of Manly Council.
16 On behalf of the applicant Mr C Blyth, consultant town planner, commented.
The issues
17 On 14 December 2005, the council filed an amended statement of issues that superseded the issues filed in October 2005:
1. OPEN SPACE AND LANDSCAPE DESIGN
(a) The loss of open space and soft landscape area as a result of
· the proposed additional car space at the side of the dwelling;
· the extent of proposed structures at the rear of the property; and
· the proposed change in finished ground level of the courtyard at the side of the dwelling.
- are not considered to preserve important landscape features, enhance the amenity of the site or maximise water infiltration onsite and reduce stormwater runoff.
Particulars
Non-compliance with Clauses 3.2 of the Manly Development Control Plan for the Residential Zone 2001, Amendment 1.
- Particulars
Non-compliance with Clause 3.5 of the Manly Development Control Plan for the Residential Zone 2001, Amendment 1.
- Particulars
Non-compliance with Clauses 3.3 of the Manly Development Control Plan for the Residential Zone 2001, Amendment 1 Note: Proposed carports constitute gross floor area under the DCP. The maximum FSR permitted is 0.75:1; the existing FSR is 1.34:1; and the proposed development adds some 95sqm of gross floor area.
- Particulars
Non-compliance with Clauses 3.8 and 3.10 of the Manly Development Control Plan for the Residential Zone 2001, Amendment 1.
- Particulars
Non-compliance with Clauses 3.9.1 and 3.9.2 of the Manly Development Control Plan for the Residential Zone 2001, Amendment 1.
- The new driveway for the car space will result in the removal of heritage significant sandstone kerb in Parkview Road.
Particulars
Non-compliance with Clauses 3.11.1 and 3.11.2 (d) and (e) of the Manly Development Control Plan for the Residential Zone 2001, Amendment 1.
- The new driveway for the car space will result in the loss of public kerbside parking in Parkview Road.
Particulars
Non-compliance with Clause 3.12 of the Manly Development Control Plan for the Residential Zone 2001, Amendment 1.
- Concerns raised by adjoining residents included loss of view /outlook, lack of soft landscaped areas and detrimental impact on streetscape including unsympathetic carport design.
Particulars
Letters of Objection received by Council.
- The proposal does not meet the objectives of the Manly LEP 1998 and the Manly Development Control Plan for the Residential Zone 2001, Amendment 1.
Particulars
(a) Contravenes the general aims in Clause 3(1) (e), (i), and (j) of Manly LEP1998.
(b) Contravenes Policies and strategies in Clause 4 (a) (ii), (v), (viii) of Manly LEP 1998.
(c) Contravenes the objectives of the Residential 2 Zone in Clause 10 of the Manly LEP 1998.
(d) Contravenes the General Aims b, d, and f, and Specific Objectives a, c, e, and j in Clause A5 of the Manly Development Control Plan for the Residential Zone 2001 Amendment 1.
- The proposed car parking at the rear does not comply with AS 2890.1 in that the length of the four angled car spaces should be 5.4m.
18 The principal-contested issue involved a balancing of the private benefit that would flow from the proposed alterations and additions, and the public good as explained in the aims and objectives of the MLEP and MRDCP.
The evidence and findings
19 The balancing of the private benefit and public good is exemplified in the following issues:
Open space and soft landscaping
20 With the removal of the proposed car parking space on the Parkview Road frontage and the repositioning of the garbage store under the building in Parkview Road the representatives of the respondent council agreed that the issue of open space and soft landscaping would be addressed and would meet the objectives of the MRDCP. Thus there is no longer any issue in that respect. Despite the 28 December 2005 amended architectural plans now showing the garbage area remaining in its existing position at the northeastern corner of the land, council officers were satisfied that this is the preferred location for the garbage area, [Note: Letter of 28 December 2005 from Sattler & Associates].
Setbacks
21 The setbacks of the proposed balconies were discussed at length. The council sought to achieve a greater setback at the balconies than proposed and suggested that all balconies be reduced in width at the face of the curve to 900mm. This would mean that the eastern balcony on Parkview Road would be setback around 900mm rather than as proposed, touching the alignment at the furthest extent of the curve. After discussion, it was agreed between the parties that the balcony at the front would be setback 380mm. With that setback there remained no issue between the parties in respect of the front eastern balcony and there remained no issue as to the width of the balconies at the side on Parkview Lane.
22 I am satisfied, for an existing building, that the proposed amended setbacks would be acceptable and the design would largely address the aims and objectives of the MRDCP in this respect. I would not refuse the application for this reason.
Loss of views
23 The applicant agreed to reduce the diameter of the balcony supporting columns to 150mm from the proposed of 300mm. This would mean a change in the material used for the columns from reinforced concrete to steel protected with fire retardant paint.
24 With the reduction in the diameter of the columns the respondent council withdrew objection to the loss of public views to the east along Parkview Lane. This removed the issue of loss of views and I am satisfied that this issue is resolved and would not be a reason for refusal.
Visual bulk/ streetscape
25 With the reduction in the width of the balcony, and the increase in the setback to 380mm of the balcony to Parkview Road, and the reduction in diameter of the columns, the issue of the visual bulk and streetscape impact of the central balconies on the Parkview Road frontage was largely resolved. The only issue that remained and left to the Commissioner to resolve was whether this central balcony should be roofed at the upper level as proposed. I was satisfied that the proposed roof, set back 600mm from the alignment, would be in keeping with the architecture of the building, and would have a reduced impact in the streetscape such that it would be satisfactory. I am also satisfied that it would be of an acceptable visual bulk and generally in accord with the aims and objectives of the planning controls. In particular, I have had regard for cl 17 of the MLEP that deals with the foreshore scenic protection area. Also I have had regard to the fact that it is a roof to be added to an existing residential flat building. I would not refuse the application for this reason.
Privacy of the side deck and courtyard
26 Having had clarified the height and extent of the proposed side terraces on the northern elevation, the respondent council did not press this issue. I am satisfied that the relationship with the building to the north would be satisfactory if additional screening were provided on the top of the fence and around the terraces. The architect is to show the extent of screening in amendments to the plans.
Car parking and car port at rear
27 The applicant is content to reduce the number of car parking spaces to five by removing the space on Parkview Road. All spaces would be provided at the rear. The applicant proposed improvements to the turning area by eliminating the planter bed along the western face of the building. Also the applicant is willing also to provide deep soil planting beds along the western boundary in the triangles not occupied by car parking and in the corner of the car parking area. The roof of the carport would be similarly cut back to allow vegetation to grow. I would not refuse the application for this reason.
Amended plans
28 The applicant agreed to prepare detailed plans by close of business on 23 December 2005. Changes to be shown on the architectural plans include:
· carport roof with openings for landscaping with a maximum height along the western boundary of 2.2m to underside of the structure;
· open horizontal metal spear fence to the car port at a height of 1,800mm at the southwestern corner, with gate to match;
· garbage store in northeastern corner of the land in existing location;
· 150mm maximum diameter of columns supporting the balconies;
· the Parkview Road balcony setback 380mm from the alignment;
· the roof of the Parkview Road balcony on the top level setback 600mm from the alignment; and
· other amendments to the architectural plans agreed at the on-site hearing.
29 The landscaping plan is to be amended reflect the changes to the architectural plans and lodged with the application for the construction certificate.
Objectives of the MLEP and MRDCP
30 I am satisfied that the parties have adequately resolved the issues that were in dispute, and that the amended proposal would largely meet the aims and objectives of the MLEP and the MRDCP.
31 For the above reasons, the appeal is upheld.
Conditions
32 The conditions are those in Exhibit 5 as amended during the hearing.
Costs
33 As there were no submissions made in respect of costs, I note the agreement that each party should pay its own costs.
Orders
34 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 228/2005 lodged with the respondent council on 21 April 2005 to alter and add to the existing residential flat building at Lot 1, DP1067998, being No 1 Parkview Road, Fairlight, is approved subject to Conditions 1 to 37 in Annexure A.
3. The amended plans are to be provided by close of business on 23 December 2005.
4. Liberty to restore in respect of the amended plans with 48 hours notice of either party.
5. The exhibits are returned with the exception of Exhibits A, B, C, D, 3, 4 and 5.
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site atS J Watts
Commissioner of the Court
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