Mellor Gray Architects v Manly Council

[2004] NSWLEC 680

Land and Environment Court

of New South Wales

CITATION:	Mellor Gray Architects v Manly Council [2004] NSWLEC 680
PARTIES:	APPLICANT Mellor Gray Architects RESPONDENT Manly Council
FILE NUMBER(S):	11166 of 2004
CORAM:	Nott C
KEY ISSUES:	Development Application :- Proposed two-lot subdivision and erection of a new house on the rear lot and additions to the existing house on the front lot - access available from two streets - pattern of subdivision - residential amentity
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 97
CASES CITED:	Zhang v Canterbury Council [2001] NSWCA 167
DATES OF HEARING:	20/12/2004
EX TEMPORE JUDGMENT DATE :	12/20/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C McEwen, SC SOLICITORS Staunton Beattie RESPONDENT Mr S Griffiths, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Nott C

20 December 2004

11166 of 2004 Mellor Gray Architects v Manly Council

JUDGMENT

1 This is an appeal against the council's refusal of a development application relating to the property at 61 Golf Parade, Manly, being lot 7, section 2, DP 5756. The proposed development involves the following:

(1) the subdivision of the land into two lots in accordance with the plan, exhibit B,

(2) demolition of a four-car garage at the rear of the property facing Rolfe Street, and the partial demolition of the existing dwelling that faces north towards Golf Parade,

(3) alterations and additions to that existing dwelling, and

(4) the erection of a new dwelling on the rear proposed lot 102, with access from Rolfe Street, which is on the southern side of the property.

2 The application was recommended for approval subject to conditions by council officers, but was refused by the council. After the lodgement of the appeal, the parties agreed as to the appointment of a court-appointed expert, namely Mr G Goodyer.

3 At the hearing on the site, I heard evidence from local residents and from Mr Goodyer. I also inspected the subject site and surrounding development in Golf Parade and in Rolfe Street. For the reasons which I will elaborate on now I have come to the conclusion that it would be appropriate to grant development consent subject to conditions.

4 The statement of issues dated 8 November 2004 sets out the issues raised by the council by reference to the planning controls, mainly those in Manly Local Environmental Plan 1988 and in Manly Development Control Plan Residential Zone 2001. It seems that the main issues relate to the pattern of subdivision and to the impact of the proposed development on the streetscapes. The statement of issues also raises matters which are said to go to overdevelopment of the site.

5 In accordance with the practice direction, a statement of basic facts was filed. Generally I adopt what is set out in that statement, but it is to be noted that there have been some small amendments to the original plans, and the floor space ratio for each proposed dwelling is now approximately 0.6:1, so that there is a small reduction in the floor space ratios.

6 In accordance with the LEP, the proposed development must be consistent with the objectives of the zone. These objectives include: allowing for a variety of housing types while maintaining the existing character of residential areas; improving the quality of residential areas by encouraging landscaping and permitting greater flexibility of design in both new dwellings and renovations; and ensuring that alterations and additions and built form do not detract from the amenity of surrounding residents.

7 Having regard to all the evidence, I am of the opinion that the proposed development is consistent with these objectives, and this was also the opinion of the council officers and of the court-appointed expert.

8 In relation to the DCP, there are specific objects at page (ii). One of these objectives is to encourage innovative design and design of architectural merit that responds to the site and character of its surroundings. Page 8 of the DCP refers to variations of the DCP that may be allowed in certain circumstances.

9 In Zhang v Canterbury Council [2001] NSWCA 167, the Court of Appeal held that a DCP has to be a focal point for consideration. In relation to the subdivision pattern, pages 9 and 10 of the DCP are relevant. I am of the opinion that the proposed development will encourage a variety of housing types, insofar as there is not a predominance of dwelling houses facing Rolfe Street on the northern side of that street. There is not an absence, however, of such dwellings. The plan showing the subdivision pattern in the immediate locality (at page 45 of exhibit 1) indicates that there are small lots near Balgowlah Road that are about 6 m in width, which have their frontages facing Rolfe Street.

10 Most of the lots that stretch between Golf Parade and Rolfe Street are also about 6 m in width. The dwellings on these lots face Golf Parade and there is generally rear access to garages from Rolfe Street. It is unlikely that these 6 m wide lots will be subdivided, and the pattern of subdivision in respect of these lots is unlikely to change. This is because the DCP for the zone within which the subject land is located, sub-zone 3, requires a minimum area for a dwelling of 250 sq m. Unlike these narrower lots, the subject land is 12.19 m wide, and each of the applicant’s proposed lots has an area of approximately 273 sq m.

11 It appears that there is no established pattern of subdivision in respect of the wider lots that are about 12 m wide. In the immediate vicinity of the subject site, there are only three other 12 m wide lots: at 71 Golf Parade, there are flats; at No. 59, townhouses; and at No. 27, apparently a dwelling house. Number 27 is further removed from the subject land than the other two 12 m wide lots. It seems to me that in respect of these 12 m wide lots, there is no established pattern of subdivision.

12 Will the proposed subdivision, which will allow a dwelling house on the subject land to face Rolfe Street, affect the character of the locality in any inappropriate way? It seems to me that on the evidence that there will be no adverse impact. At the present time, four cars can access the garage on the subject site from Rolfe Street. With the proposed development, there will be a two-car parking area for the new dwelling house.

13 The residents have referred to the present amenity of Rolfe Street that is derived, it seems to me, mainly from the wide grass verges and the absence at the carriageway of gutters and kerbs. This situation will not change as result of the proposed development. In one sense, there is a detrimental impact on amenity in Rolfe Street from many of the poorly presented structures that are erected close to or at the Rolfe Street alignment. Those structures are mainly garages, although as I mentioned there are several dwelling houses facing Rolfe Street, and immediately opposite the subject site is a recently built dwelling.

14 The proposed dwelling will fit in comfortably with the built form in Rolfe Street and with the residential character. The proposed subdivision is an appropriate form of subdivision for a wider lot, where the lot stretches from Golf Parade to Rolfe Street. Such a form of subdivision will enable better amenity for each dwelling on the subject land, as each dwelling will have a wider northern elevation than would be the case if the subject land were divided in a north–south direction.

15 Having regard to the absence of kerbing and guttering in Rolfe Street, an important aspect of the proposed development is that drainage will be provided towards Golf Parade. It seems that there will be a reduction in stormwater flowing from the site, because of the provision of rainwater tanks for the proposed new house and for the existing house (as modified).

16 As regards the existing house, two hardstand areas will be provided at the front of the dwelling. The council officers had recommended that some change be made so that spaces could be further in on the site. This was considered by Mr Goodyer who recommended instead that a partial screening of the carparking areas should occur in a similar fashion to what has occurred on the opposite of side of Golf Parade. The fencing that is proposed in the amended plans for which consent is sought (exhibit A) embodies the suggestion of Mr Goodyer. I am of the opinion that there should be a further modification, so that there will be compliance with the DCP: insofar as the sliding timber battened gate will exceed 1 m, the additional 0.5 m at the top should have a transparency of 30 percent in accordance with cl. 3.9.2(ii)(a) of the DCP.

17 Having regard to the other developments on the southern side of Golf Parade where there are few vehicular crossings and generally the absence of garaging forward of the building line, it would be inappropriate, it seems to me, to have carports or garages forward of the existing house, and that is not proposed in this case. In a locality such as Manly it is generally desirable to have covered carparking accommodation but in this particular case such accommodation has not been provided. This may affect the marketing of the proposed and existing dwellings to a minor extent. In order to provide covered parking for the front dwelling significant changes would have been needed.

18 Taking into account the streetscape appearance, and considering the evidence of Mr Goodyer (which I find to be quite helpful), I am of the opinion that the proposed development in the streetscapes of Golf Parade and Rolfe Street will be acceptable.

19 I have looked at the proposal in relation to development on adjoining properties, and in particular I have considered a proposal to carry out alteration and additions at 63 Golf Parade. The proposed additions at No. 63 and the proposed development at the subject site should relate well to each other. There will be minimal additional overshadowing of No. 63 from the applicant’s proposed development; and in relation to overlooking and matters of privacy, the proposed development is a reasonable form of development. In my opinion the impact of the proposed development would be no greater overall than if there was a north–south subdivision on the subject land and the erection of two-storey terrace-type development on each of the narrower lots that would result.

20 I am of the opinion that the proposed development is not an overdevelopment of the site, that it is an appropriate response to the residential development in the immediate locality, and that otherwise the proposal is acceptable for the reasons given by Mr Goodyer.

21 The conditions of consent that were put forward by the council in the event that the Court was minded to grant approval are acceptable to the applicant with the deletion of conditions 46 and 47. In the order that I propose to make, there will be new conditions 46 and 47, and some further minor changes.

22 Accordingly, the orders of the Court are:

1. The appeal be allowed.

2. Development consent is granted for:
(1) the subdivision of lot 7, section 2, DP 5756 at 61 Golf Parade, Manly into two lots,
(2) the demolition of the exiting four-car garage and the partial demolition of the existing dwelling,
(3) alterations and additions to the existing dwelling, and
(4) the erection of a new dwelling on proposed lot 102,
subject to the conditions in Annexure A hereto.

3. No order as to costs.

4. The exhibits, other than exhibits A, B, C, D, 1, 2, 3 and 4, may be returned.

_________
A J Nott
Commissioner of the Court

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Annexure A – Conditions of Consent

Manly Council ats Mellor Gray Architects

61 Golf Parade, Manly

1. The development shall be implemented, subject to the conditions of this consent, in accordance with the details set out in the following:

Schedule of Plans and Details

Drawing No.Drawing DatePrepared By

1272-DA-01B6 December 2004Mellor Gray Architects Interiors

1272-DA-02-B6 December 2004Mellor Gray Architects Interiors

1272-DA-03A20 April 2004Mellor Gray Architects Interiors

1272-DA-04B6 December 2004Mellor Gray Architects Interiors

1272-DA-05B6 December 2004Mellor Gray Architects Interiors

1272-DA-06A20 April 2004Mellor Gray Architects Interiors

1272-DA-07D6 December 2004Mellor Gray Architects Interiors

1272-DA-08B6 December 2004Mellor Gray Architects Interiors

1A. The subdivision shall be in accordance with the plan prepared by CMS Surveyors Pty Limited dated 30 April 2004, revision A.

1B. Landscaping shall take place in accordance with landscape plan drawing no. 30447-01 dated May 2004 except that the front fences and paths shall be in accordance with the architectural plans approved in condition 1.

2. Pursuant to Section 97 of the Local Government Act 1993, Council requires payment of a Trust Fund Deposit of $7,500 prior to issue of the Construction Certificate, or commencement of any excavation and demolition works. The Deposit is required as security of compliance with Conditions of Consent and as security against damage to Council property during works on the site.

Note: Should Council property adjoining the site be defective eg, cracked footpath, broken curb etc., this shall be reported in writing to Council at least 7 days prior to the commencement of any work on site.

3. The applicant is to notify Council at least 48 hours before commencement of works on any Council road so as to enable Council to supervise the carrying out of the works.

4. Any adjustment to the public utility service is to be carried out in compliance with their standards and the cost is to be borne by the applicant.

5. Details of the builder’s name and license number contracted to undertake the works shall be provided to Council prior to issue of the Construction Certificate.

6. Insurance must be undertaken with the contracted builder in accordance with the Home Building Act 1997. Evidence of Insurance together with the contracted builder’s name and license number must be submitted to Council prior to issue of the Construction Certificate.

7. Toilet facilities are to be provided at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site, by effecting either a permanent or temporary connection to the Sydney Water’s sewerage system or by approved closets.

8. Retaining walls being constructed in conjunction with excavations with such work being in accordance with structural engineer’s details. Certification of compliance with the structural detail during construction shall be submitted to the Principal Certifying Authority.

9. A sign must be erected on the subject site in a prominent position stating that unauthorised entry is prohibited and giving details of the name of the builder or the person responsible for the site and 24 hour contact details. The sign is to have dimensions of approximately 500mm x 400mm.

Note : The sign is not required if the building on the site is to remain occupied during the course of the building works.

10. All construction works shall be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans with certification being submitted to the Principal Certifying Authority during construction from a registered surveyor certifying ground and finished ridge levels.

11. Consent given to build in close proximity to the allotment boundary is in no way to be construed as permission to build on or encroach over the allotment boundary. Your attention is directed to the provisions of the Dividing Fences Act which gives certain rights to adjoining owners, including use of the common boundary. In the absence of the structure standing well clear of the common boundary, it is recommended that you make yourself aware of your legal position which may involve a survey to identify the allotment boundary.

12. A Certificate of Adequacy signed by a practicing Structural Engineer is to be submitted to the Principal Certifying Authority in respect of the load carrying capabilities of the existing structure to support the proposed additions prior to the issue of the Construction Certificate.

13. Four (4) certified copies of the Structural Engineer’s details in respect of all reinforced concrete, structural steel support construction and any proposed retaining walls shall be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.

14. A suitable sub-surface drainage system being provided adjacent to all excavated areas and such drains being connected to an approved disposal system.

15. The implementation of adequate care during demolition/excavation /building/construction to ensure that no damage is caused to any adjoining properties.

16. An adequate security fence is to be erected around the perimeter of the site prior to commencement of any excavation or construction works, and this fence is to be maintained in a state of good repair and condition until completion of the building project.

17. Four (4) Architectural/Services Specifications are to be submitted with the Construction Certificate application prior to the issue of the Construction Certificate.

18. A system of onsite stormwater detention shall be provided within the property in accordance with Council’s specification. Details shall be submitted with the Construction Certificate Application and be approved prior to the issue of the Construction Certificate.

19. All demolition is to be carried out in accordance with AS2601-1991.

20. Asbestos cement sheeting must be removed in accordance with the requirements of the WorkCover Authority.

21. All building work must be carried out in accordance with the provisions of the Building Code of Australia.

22. An automatic fire detection and alarm system shall be installed in the proposed dwelling in accordance with the requirements of Part 3.7.2 of the Building Code of Australia 1996 - Housing Provisions.

23. All engineering works are to be completed prior to the issue of the Subdivision Certificate to the satisfaction of the Principal Certifying Authority.

on the land including demolition and site preparation, provision of silt control fences shall be provided. A Sediment/Erosion Control detail shall be submitted to the Certifying Authority prior to the issue of the Construction Certificate.

25. Prior to the sale, transfer, assignment or other disposal of or leasing or parting with provision of any part of the land subject to this approval, a copy of the approval shall be given to the purchaser, transferee, assignee, leasee, occupier or other person of that part of the land.

26. A Construction Certificate Application is required to be submitted to and issued by the Principal Certifying Authority prior to any building works being carried out on site.

27. The works require the following inspection/certification during the course of construction:

· Silt control fences
· Footing inspection - trench and steel
· Reinforced concrete slab
· Framework inspection x2
· Wet area moisture barrier x2
· Drainage inspection x3
· Driveway crossing/kerb layback x3
· Landscaping inspection x2
· Final inspection x2

The cost of these inspections by Council is $1276 (being $70.00 per inspection and $113.00 for Final inspection inclusive of GST). Should you require Council to undertake the inspection/certification, then payment is required prior to the first inspection. Inspection appointments can be made by contacting the Development Assessment Unit on 9976 1573 or 9976 1587.

At least 24 hours notice should be given for a request for an inspection and submission of the relevant inspection card. Any additional inspection required as a result of incomplete works will incur a fee of $80.00.

28. An Occupation Certificate is to be issued by the Principal Certifying Authority prior to occupation of the development.

29. All excavated material should be removed from the site in an approved manner and be disposed of lawfully to a tip or other authorised disposal area.

30. In the event that de-watering of the site becomes necessary, the discharge of waters to Council’s Stormwater System is to be to the satisfaction of the Principal Certifying Authority and the Environmental Protection Authority and shall be in accordance with the Protection of the Environment Operations Act 1997.

31. Detailed plans of roof trusses indicating type and position of trusses, design wind classification, manufacturer’s name, stress grade of timber used, and method of bracing and fixing trusses are to be submitted to the Principal Certifying Authority prior to the commencement of roof framework.

32. Roof and framing including provision for tie downs, bracing and fixings are to be designed by a practicing Structural Engineer. The Engineer is to specify an appropriate wind category relating to the site terrain, house design and height of the structure, with details being submitted to the Principal Certifying Authority prior to the commencement of framework.

33. The capacity and effectiveness of erosion and sediment control devices must be maintained to Council’s satisfaction at all times.

34. Building operations such as brickcutting, washing tools or paint brushes, and mixing mortar not be performed on the roadway or public footway or any other locations which could lead to the discharge of materials into the stormwater drainage system.

35. All disturbed areas shall be stabilised against erosion to Council’s satisfaction within 14 days of completion, and prior to removal of sediment controls.

36. The applicant and/or builder must prior to the commencement of work, install at the periphery of the site, measures to control sedimentation and the possible erosion of the land. The measures must include:

(i) siltation fencing;
(ii) protection of the public stormwater system; and
(iii) site entry construction to prevent vehicles that enter and leave the site from tracking loose material onto the adjoining public place.

37. Building or construction work must be confined to the hours between 7.OOam to 6:00pm, Monday to Friday and 7:00am to 1:OOpm, Saturday, with a total exclusion of such work on Public Holidays and Sundays. Non-offensive works where power operated plant is not used and including setting out, surveying, plumbing, electrical installation, tiling, internal timber or fibrous plaster fixing, glazing, cleaning down brickwork, painting, building or site cleaning by hand shovel and site landscaping, is permitted between the hours of 1:00pm to 4:OOpm Saturdays.

Note : That the Protection of the Environment Operations Act 1997 may preclude the operation of some equipment on site during these permitted working hours.

38. Details of the method of termite protection which will provide whole of building protection, inclusive of structural and non-structural elements, shall be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate. Attention is drawn to the provisions of Australian Standard 3660.1 “Protection of Buildings from Subterranean Termites - New Buildings” and to Council’s Code for the “Protection of Buildings Against Termite Attack”.

a durable termite protection notice shall be permanently fixed to the building in a prominent location detailing the form of termite protection which has been used in accordance with Council’s Code for the “Protection of Buildings Against Termite Attack”.

40. In accordance with the Roads Act 1993, written consent from Council shall be obtained and shall be in hand prior to any track-equipped plant being taken in or onto any roadway, kerb and gutter, footway, nature strip, or other property under Council’s control.

41. The public footways and roadways adjacent to the site shall be maintained at all times during the course of the work in a safe condition.

42. A detailed stormwater management plan shall be prepared to fully comply with Council’s “Specification for on-site Stormwater management 2003” and shall be submitted with the Construction Certificate application. The stormwater management plan shall be prepared by an experienced Chartered Civil Engineer. The Principal Certifying Authority shall ensure that the design complies with the above said specification prior to the issue of the Construction Certificate.

43. On completion of the drainage works the applicant is required to submit work as executed drawings of the on site stormwater detention system. The work as executed drawings shall be certified by a Chartered professional Engineer and submitted to Council prior to the issue of the Occupation Certificate.

44. A positive covenant and the restriction on the use of land shall be imposed over the area of land affected by on site stormwater absorption/detention system. The standard wording of the positive covenant shall be obtained from Council’s “Specification for on-site Stormwater management 2003” (Appendix A8). The positive covenant shall be imposed prior to the release of the Trust Fund Deposit.

45. The construction of a vehicular footpath crossing and curb layback is required in Golf Parade. The design and construction shall be in accordance with council’s “Specification for Construction of Vehicular Crossing”. The work shall be done with plain concrete. It is the responsibility of the owner, developer and builder that they understand the above specification and strictly comply with the specification. The work shall be inspected and approved by council officers. All works shall be carried out prior to the issue of the Occupation Certificate.

46. Subject to compliance with condition 42 of these conditions, stormwater disposal shall generally be in accordance with plan Hydraulic Services Ground Level Stormwater Drainage SW-01, revision A, exhibit D except that the finished floor level of the proposal dwelling on proposed Lot 102 is to be raised to RL3.2.

47. The proposed fence on the Golf Parade frontage is to be no higher than 1.5 meters and have a 30% transparency above 1 meter in accordance with clause 3.9.2(ii)(a) of Manly Development Control Plan for the Residential Zone 2001, Amendment 1.

48. This approval shall expire if the development hereby permitted is not commenced within 2 years of the date hereof or any extension of such period which Council may allow in writing on an application made before such an expiry.

49. Payment of $6,884.45 for the additional dwelling in respect of the contribution for the provision of the public amenities and public services shall be in accordance with Section 94 of the Environmental Planning and Assessment Act, 1979. Arrangements for such payment are to be made in accordance with Council’s policy prior to issue of the Construction Certificate.

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