Owen Haviland Architects Pty Limited v Manly Council

[1998] NSWLEC 126

Land and Environment Court

of New South Wales

CITATION:	Owen Haviland Architects Pty Limited v. Manly Council [1998] NSWLEC 126
PARTIES:	APPLICANT Owen Haviland Architects Pty Ltd RESPONDENT Manly Council
FILE NUMBER(S):	10140 of 1998
CORAM:	Cowdroy J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 1998 Manly Development Control Plan for the Residential Zone 1986 (Amendment 3)
CASES CITED:	North Sydney Council v Ligon 302 Pty Limited (1995) 87 LGERA 435 per Kirby ACJ at 439; North Sydney Council v Ligon 302 Pty Limited [No2] (1996) 93 LGERA 23 per Cole JA at 25)
DATES OF HEARING:	16/10/98, 19/10/98
DATE OF JUDGMENT:	10/29/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr D Wilson Storey & Gough RESPONDENT Mr J Cole Abbott Tout

JUDGMENT:

1. By application Class 1 Owen Haviland Architects Pty Limited ("the Applicant") appeals against the deemed refusal and subsequent refusal of Manly Council ("the Council") of a development application ("DA 479/97") made in respect of premises known as 78 Wanganella Street, Balgowlah being land contained in Lot A Deposited Plan 309348 ("the site"). The appeal comes before the Court pursuant to Section 97 of the Environmental Planning and Assessment Act 1979 ("the EPA Act"), and is determined in accordance with the provisions of the Act as it existed immediately before the amendments thereto which took effect on 1 July 1998.

2. The site contains an area of 1,054 m2 and erected thereon is a single storey two bedroom heritage classified Californian bungalow ("the bungalow") with two outbuildings. It is zoned No 2 Residential under the Manly Local Environmental Plan 1998 ("the LEP"). Pursuant to such plan, development within such area is controlled by the Development Control Plan for the Residential Zone 1986 (Amendment 3)(hereafter referred to as "the DCP").

3. The residential development proposed (hereafter referred to as "the proposal") is the renovation of the bungalow and construction of a three storey residential building containing three units behind the bungalow with a two storey wing reducing to a one storey located on the southern side of the site projecting in a westerly direction beside the bungalow containing two units ("the southern wing"). The site would then be made the subject of a strata title scheme. Parking is to be provided beneath the new building requiring excavation of a driveway, about 1.8 metres in depth, at a point beside the front verandah of the bungalow, and approximately 3 metres therefrom. An additional two spaces, one of which is under a carport, is proposed for the north western corner of the land at the street frontage. The proposed density of the development accords with Council's requirements.

4. Council considered and rejected the proposal for several reasons, including heritage consideration and non-compliance with the DCP. There have been numerous objections to the proposal from residents in the vicinity, including occupants of strata title units adjacent at No 76 Wanganella Street ("No 76"), No 3 Rickard Street ("No 3"), No 5 Rickard Street ("No 5") which are located directly behind the subject site, and the occupants of residences known as No 80 and 2/80 Wanganella Street. Residents opposite the site have also objected. The objections, in summary, relate to the need to preserve the heritage house and its surrounds, and loss of amenity resulting from the position and size of the proposed development including loss of privacy, loss of sunlight and inadequate parking.

5. This appeal raises three issues for consideration namely compliance with the requirements of the LEP and DCP, the impact of the development in relation to the bungalow as a heritage item and the assessment by this Court of the relevant matters for consideration under Section 90 of the EPA Act.

Manly Local Environmental Plan Requirements

6. The Manly LEP makes provisions for the preservation and development of heritage sites as follows:-

(i) Clause 7 of the LEP defines an "item of environmental heritage" as including "building, work, relic, place or tree, of historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance to the Manly Council area described in Schedule 4...".

Schedule 4 includes the bungalow at 78 Wanganella Street, Balgowlah in the list of items of environmental heritage as an architectural and archaeological item. The relevant environmental heritage map also nominates the subject address as the location of an item of environmental heritage.

(ii) Clause 18 of the LEP provides:-

"Items of the environmental heritage

(1) A person shall not, in respect of a building, work, relic or place that is an item of the environmental heritage-

(a) demolish, renovate or extend any such building or work;

(b) damage or despoil any such relic or any part of any such relic;

(c) Excavate any land for the purpose of exposing or removing any such relic;

(d) erect a building on the land on which that building, work or relic is situated or the land which comprises that place; or

(e) subdivide the land on which the building, work or relic is situated or the land which comprises that place,

except with the consent of the Council.

(2) The Council shall not grant consent to a development application made in pursuance of subclause (1) unless it has made an assessment of-

(a) the significance of the item as an item of the environmental heritage of the Manly Council area;

(b) the extent to which the carrying out of the development in accordance with the consent would affect the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the item and its site;

(c) whether the setting of the item, and in particular, whether any stylistic, horticultural or archaeological features of the setting should be retained; and

(d) whether the item constitutes a danger to the users of occupiers of that item or to the public."

(iii) Clause 19 of the LEP provides:-

"Development in the vicinity of an item of the environmental heritage

The council shall not grant consent to a development application to carry out development in the vicinity of an item of the environmental heritage unless it has made an assessment of the effect which the carrying out of that development will have on the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the item of the environmental heritage and its setting."

(iv) Clause 25(2) of the LEP provides:-

"The council, when considering an application for consent to erect a building on land upon which there is a building which is an item of environmental heritage, may at its discretion exclude from its calculation of the floor space of the building erected on the land the floor space of the item of the environmental heritage-

(a) for the purposes of determining the floor space ratio; and

(b) for the purposes of determining the number of parking spaces to be provided on the site.

but only if the council is satisfied that the conservation of the item depends upon the council granting consent in pursuance of this Clause."

Manly Development Control Plan Requirements

7. Manly DCP applies to land zoned Residential under the Manly LEP. Part 1 of such Plan is stated to consist of "design guidelines which illustrate the way to achieve good design using the D.C.P. Standards". Part 2 of the Plan consists of the actual D.C.P. Standards which consist of specific controls covering sunlight, privacy, and views; floor space ratio density; height; setbacks; open space; landscaping; parking; rehabilitation. The introduction to the DCP continues:-

"The D.C.P. is structured so that each criteria has a set of objectives and standards. It is intended that the standards are either maximum or minimum requirements and provide one method of achieving the objectives. In some instances the provisions of this plan may be varied on the basis of physical site constraints, or where the applicant can demonstrate that the objectives of the clause are being achieved without conforming to the standards."

The proposal does not comply with the requirements of the DCP in certain respects, as detailed hereunder.

(a) Rear Setback

8. Clause 5 of the DCP makes provision for minimum setbacks. In respect of the rear setback it is provided that "the distance between any part of the building and the rear boundary shall be 8 metres" (Clause 5.4). The proposal would result in the eastern wall being erected 3 metres from the rear boundary. However, Clause 5.5 of the DCP gives discretion to the Council to permit a building to be erected within the specific boundary setback area "provided it can be demonstrated that the objectives of this provision are met". The objectives are stated to be the preservation and enhancement of the existing streetscape, the provision of privacy, equitable access to light and sunshine, the promotion of flexibility in the siting of buildings, and minimisation of adverse impact on adjacent and adjoining properties.

The Applicant relies upon the provision contained in Clause 5.5.4 which allows dispensation:-

"Where it can be demonstrated that the objectives of the setback controls, particularly privacy and sunshine can be achieved without strict adherence to the standards"

The clause is however, subject to the following provision:-

"However, in considering such encroachments, the applicant must demonstrate to Council that the adjoining properties will not be adversely affected."

9. The rear of No 5 which abuts directly onto the rear of the subject premises comprises an apartment building with no fenestration to the west, that is facing the rear boundary of the subject lands. The premises at No 3, again an apartment building, is slightly to the south of No 5. Objectors who reside in each of such properties and have signed petitions to the adverse impact upon adjacent properties, and in particular, the shadow which would be cast from the proposed building which would affect each property at some stage of the year, and on each day in winter. In relation to No 3 and No 5, the shadow diagram prepared for the 21 June at 3.00 pm shows that a substantial area of rear yards of No 3 and 5 will be in shadow under the proposal. The shadow diagram for 22 March and 22 September at 3.00 pm records a lesser effect to No 3 but the open space of No 5 is still substantially affected.

10. In relation to privacy, although no windows from No3 nor No 5 open directly onto the rear yard, it is obvious that the open space at the rear of each building will lose any privacy in consequence of the windows in the proposed development which would overlook those areas. Such areas are, upon the evidence, sometimes used for recreation of the inhabitants of those buildings.

(b) Southern Side Setback

11. Minimum setback required on the southern side is required to be between 1.73 to 2.6 metres (increasing with the height of the building). The proposal allows between 1 metre and 3.29 metres along the southern boundary, thereby locating the bulk of the proposed building in closer proximity to No 76 than prescribed. Shadow diagrams confirm that at least one unit in the building known as No 3 owned by Ms Trotter, will be deprived of all morning sun in the living room, and partial sunlight only in a bedroom until 9.00 am and thereafter will only achieve total sunlight at some point prior to noon as at 21 June. As regards amenity, the current outlook of such unit to the north will be eliminated in consequence of the brick wall which comprises the southern side of the wing. The view from the unit above will be impaired.

(c) Parking

12. Clause 8 of the DCP stipulates carparking requirements. Assuming that the heritage cottage is treated as a dwelling house, eleven car spaces are required. The Applicant prefers to treat the bungalow as part of a lot in a proposed strata plan which would cover the entire site and if treated in such way, 1.5 spaces would be required rather than two spaces in respect of that structure. The proposal provides for nine spaces, of which seven are provided in the basement in the proposed flat building and two are located on the street frontage in the north west corner of the site. Although the interpretation of the parking requirement may lead to debate, it is apparent that the proposal is deficient in respect of at least one space subject to the matter hereunder.

13. To overcome the deficiency in the number of car spaces, the Applicant relies upon Clause 9.2 of the DCP which provides:-

"General Requirements

Council may relax or waive certain development standards in order to conserve a building, structure, work or landscape which is an item of the environmental heritage or of particular cultural significance. Council may permit alterations and additions to an existing building provided they are executed in a manner compatible with the style of the original building and provided the cultural significance of the item is not destroyed by the rehabilitation or adaptation to suit new functions."

It should be noted that the relaxation of standards suggests that the same may be made in order "to conserve a building..." rather than the approval of a new structure.

14. As to the dimensions of each car parking space the DCP requires that each should be at least 5.5 metres x 2.5 metres clear of any structures with end bays wider than the minimum. At the hearing, Council challenged the adequacy of car parking arrangements, and submitted that, pursuant to Australian Standards 2890.1-1993, it was necessary to provide an additional metre at each of the end car spaces in the basement car park. The accuracy of this submissions was contested by the Applicant, which adduced evidence from its expert town planner, Mr Andy Ludvik. He testified that, by implication, such allowance is not required by the standard where the aisle width is increased and that there was a relationship between the need to provide such allowance and aisle width. No evidence was adduced by Council in reply.

(d) Landscaping

15. Clause 7 of the DCP makes provision for landscaping. Whilst there is some debate between the parties resulting from a difference of opinion concerning dimensions of the landscaped areas, the Council maintains that the landscaping proposal is inadequate. Whilst 50.4% of the site area is available for open space, and complies with the numerical standards of the DCP, it asserts that the objective is to ensure that such space will enhance the residential amenity of the area and that the landscaped areas are fragmented and do not achieve this purpose. Council also considered that there was inadequate provision of private recreational areas for units and that the overlooking of landscaped areas was also unsatisfactory.

Status of the DCP Requirements

16. The EPA Act contains no definition of "development control plan". It contains a definition of "development standards" in Section 4 as follows:-

"provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:..."

Section 72 of the EPA Act provides, relevantly:

"72(1) If a Council considers it necessary or desirable to provide more detailed provisions than are contained in a local environmental plan...in respect of a part or parts of the land to which that plan...applies, it may prepare or cause to be prepared a development control plan."

The Environmental Planning and Assessment Regulation 1994, Part 3 makes provision for the preparation of a development control plans by Council.

17. Decisions of the New South Wales Court of Appeal have consistently treated a development control plan as a planning instrument (see North Sydney Council v Ligon 302 Pty Limited (1995) 87 LGERA 435 per Kirby ACJ at 439; North Sydney Council v Ligon 302 Pty Limited [No2] (1996) 93 LGERA 23 per Cole JA at 25) but not an "environmental planning instrument". In the latter decision, Cole JA, having referred to Section 72 of the EPA Act, treated such plan as one which contains greater detail or "the more detailed provisions" than are contained in a local environmental plan (Ligon [No 2] supra at p 30).

18. In determining a development application a consent authority, pursuant to Section 90(1) of the EPA Act is required to "take into consideration" such matters as are of relevance to the development the subject of a development application as therein enumerated. One such matter is the provisions of any development control plan (see Section 90(1)(a)(iv)). The definition of an "environmental planning instrument" contained in Section 4 of the Act does not include a development control plan. Accordingly the standards provided in such a plan are not "development standards", since, by the definition contained in Section 4, such standards must be contained in an "environmental planning instrument". A consent authority (in the instant case, the Court) discharges the duty imposed upon it by Section 90(1) of the Act provided it considers the provisions of the DCP, but there is no statutory obligation upon the consent authority to necessarily adhere to such provisions.

The Bungalow

19. The constraints imposed upon the site by virtue of the classification of the bungalow as a heritage item gives rise to one of the principal objections to the proposal, and to a diversity of expert opinions concerning the impact thereof upon such item. For the Council, expert evidence has been adduced from its heritage expert, namely Mrs Glen Cowell. Mrs Cowell explained that the heritage item was a specie of Californian bungalow which was rare in Australia. Whereas the most common form of Californian bungalow is often found in suburban streets, with houses on either side, this is an example of Californian bungalow of the "high craftsman style", typified by the extent of timber joinery and of its surroundings of lawns and trees. It is of considerable historical significance having been designed and constructed in timber in one of the earlier subdivisions and having remained largely intact from the date of its construction both externally and internally. She said that such cottages were traditionally found

in a more expansive setting surrounded by lawns and specimen trees. As such, it represents a rare occurrence, and its significance to Manly was described by Mrs Cowell as being on of the finest detailed buildings of the period. Although only the house has been classified as a heritage item the curtilage which surrounds the house is considered by her to be of importance to the integrity of the heritage building.

20. Architectural experts generally agreed with Mrs Cowell's assessment of the bungalow. Mr Michael Neustein, architect and environmental and conservation planner prepared an initial plan for development of the site for the Applicant. In a letter to Council, he referred to the bungalow as "...a rare and beautifully detailed Californian bungalow, which must be seen in order for it to have meaning to the community." Mr Robert Staas, architect and heritage consultant also retained by the Applicant quoted the following description of the bungalow:-

"The residence is primarily significant as an exceptionally intact, richly detailed and unusual example of a timber cottage of the 1920's. It is also significant for its contribution to the streetscape as a landmark feature. It has secondary significance for its interpretive value both to the life of the builder and living styles of the time due to its intactness."

This evidence clearly establishes that the bungalow is a structure is of significance.

21. Mrs Cowell testified that the proposal would adversely affect the heritage value of the bungalow. Further, the removal of the curtilage would further detract from it. At present, the front and southern side of the bungalow is visible from the street. Sight lines from the street to the bungalow were an essential part of its value. Under the proposal, a terrace and pergola of the westward projecting southern wing would be constructed virtually level with the front verandah of the bungalow thereby closing off the view of this side of the house from the street.

22. There were further matters which Mrs Cowell considered were inimical to the preservation of the heritage item. She regarded the excavation proposed for the new driveway, the pathways and landscaping associated therewith and the erection of a carport on the north west corner of the land as being inconsistent with the retention of the character of the heritage item. She said that the landscaping plan was totally out of context with the setting. In her opinion the proposed foliage, designed to shield the development, would hide the bungalow to its detriment as a heritage item. Lastly, she said that the proposal, because of its height, mass and scale which wrapped around two sides of the bungalow, had a negative impact upon it. In her opinion any new construction "should be restricted to the rear section of the site and be in a style and scale which allows the existing building to retian (sic) its dominance of the site".

23. Mrs Cowell was extensively cross-examined, especially in relation to a tentative view which had been expressed in relation to an earlier proposal which also involved the construction of a wing in substantially the same position as the proposal, and in respect of which she made no adverse comment.

24. The Applicant adduced evidence from another director of the same firm as that of which Mrs Cowell was engaged, namely Graham Brooks & Associates Pty Limited. Significantly, the report made a series of suggestions concerning preservation of the heritage item and recommended that Council should have no hesitation in approving the development application on heritage grounds. However, such recommendations were made subject to conditions, including conditions that "no construction" be permitted further forward than halfway along the side of the bungalow; that any new construction be set back from the existing house by 3 metres along the side and 6 m at the rear; that new works should complement the bungalow by use of similar roof forms and pitches. Although the southern wing of the proposal exceeded the recommended western projection, it was considered acceptable, on the basis that it "should have little visual impact".

25. Mr Staas testified that the impact of the proposed development upon the bungalow as "acceptable in the context of the surrounding development and in order to ensure that the building is retained and conserved as an unusual example of its type". As to the location, site, bulk, scale, shape size and height and density of the proposed development, he said:-

"I consider that the building is an acceptable form of development in the context of its surroundings. Council's heritage adviser has agreed that the block to the east of the bungalow is acceptable and generally confines her objection to the southern wing".

He continued:-

"I consider that there will be minimal impact upon the existing streetscape created by this development that any effect will not be detrimental to the existing character."

Mr Staas made other observations and concluded made other observations and concluded that the proposal "is acceptable in heritage terms".

Other Considerations

(a) The Streetscape

26. The bungalow was built in or about 1922. It is located on a parcel of land which might be described as a large suburban block. Over the years residential development has taken place on either side of Wanganella Street and in the surrounding areas in the form of brick cottages. It appears that in more recent times, but before the Manly LEP came into existence, numerous houses in the street have been demolished and replaced with three storey flat buildings. In consequence, the substantial home unit buildings have been constructed close to the street frontage.

27. A View has been held which confirms that the site is a unique feature of Wanganella Street. A view from the driveway reveals the front and south side of the house. It is presently surrounded with shrubs and trees which add to the ambience of the bungalow and of the streetscape and provides a stark relief to the otherwise built-up area. Mrs Cowell said:-

"The building including its setting makes a strong contribution to the existing character of Wanganella Street and for this reason the general retention of the curtilage to the front and side of the house were considered to be important contributory elements in retaining the significance of the building overall."

(b) Resident Objections

28. The premises which immediately adjoin the subject site to the north, namely No 80 and 2/80 Wanganella Street comprise two residences, one built behind the other. The rearward dwelling has obviously been erected in more recent times upon the rear yard of No 80. The owners of each of these premises object to the development upon the ground of loss of privacy. Mr Mark Hetherington gave evidence that, at the time of the purchase of his dwelling with his wife in 1992 (No 80), he investigated the heritage status of the bungalow at Manly Council and was informed that, since the whole of the block was marked in colour on Council's heritage plan, the entire site was a heritage item. Accordingly he and his wife decided to proceed with the purchase on this basis. The proposed development would cause a loss of privacy on the bedrooms of an attic extension which has been built during the current ownership of No 80, as well as a loss of privacy to the only open space located at the rear of the premises.

29. In addition to Mr Hetherington's letter of objection, the Council received fifteen other objections and a petition which was signed by numerous residents, including those who occupy or own units in the buildings herein identified as No 76, No 3 and No 5. The premises most detrimentally affected by the development are units on the southern side, especially that owned by Ms Trotter. Its amenity would be effectively severely affected by construction of the southern wing. At present its main living area and one bedroom thereof has sunlight and views to the north which would be built out by such wing, the southern walls of which will rise to a height well above the windows of Ms Trotter's unit and will be separated by a distance of only one metre from the boundary. Another unit in the block will also lose part of its amenity. Further, the open space at the rear of No 76 which is used for the purpose of clothes drying and carparking, as well as open space, will be very detrimentally affected, at least in winter

months, by the effect of the overshadowing of the three storey development, as will Unit 3. The rear open space of No 3 and No 5 will be affected by overshadowing and there will be a loss of privacy to those areas.

30. Several of the units at No 76 have balconies which face to the east and to the north. The current proposal which incorporates the use of balconies on three sides, namely the north, the west and the south will result in a loss of privacy to the existing balconies and to the living areas, as well as a loss of privacy to the bedroom area of No 80. To a minor extent, there will be some loss of privacy to the rear yard of No 80 and 2/80 Wanganella Street.

(c) Parking

31. In consequence of the intensification of residential development in Wanganella Street in the vicinity of the development, kerb-space parking has been eroded by the number of vehicular crossings resulting from the conversion of existing residences into dual occupancies. The current proposal would create another vehicular crossing which would result in loss of one and possibly two kerb side spaces.

(d) Landscaping

32. A detailed landscaping plan has been produced by Narelle Sonter, a landscape architect. She has concluded that the proposal incorporates a landscaped plan which respects the significance of the site and which utilises species and planting patterns common in gardens of the 1920s and 1930s. Such plan addresses the need to create an appropriate landscape setting for the proposed residential development, enhancing the amenity of the adjoining properties. In her opinion, the upper canopy species, characteristic of the local landscape, provide a distinct entry feature for the site and will make a positive contribution to the streetscape and quality of the locality.

33. Upon the evidence, there is arguably non-compliance with the DCP objectives concerning provision of landscaping for the reasons set out previously. Irrespective of such discrepancy, the landscaping proposal is designed to shield much of the proposed development from the street by the use of trees and shrubs. The existing driveway curve will be maintained although the land form will change substantially in view of the need to excavate the driveway to the underground car park to a depth of approximately 2 metres and having a separation of 3 metres from the southern side of the bungalow and by the excision of land in the north west corner of the site for the creation of two parking spaces. Such changes will have a substantial effect upon the present visual aspect of the bungalow from the street. Instead of the visual impression of a timbered cottage set amongst lawns and trees, there will be the intrusion of the driveway excavation, as well as the reduction in the front garden by virtue of the proposed carpo

rt. If viewed directly, the size and bulk of the building behind will dominate the land and the projection of the southern wing with terrace will produce an entirely different character to the site.

The Findings

Non-Compliance with the DCP

34. The Applicant seeks several substantial concessions from the Council because of the acknowledged non-compliance with various aspects of the DCP having the following consequences:-

(a) rear setback: this would be reduced by substantial proportions, namely 8 metres to 3 metres. This concession would, if permitted, would cause a deleterious effect upon the open space of premises No 3 and No 5.

(b) side setback: this would result in the walls of the proposed building being placed in close proximity to the living quarters of the units at the rear of No 76. The size and bulk of the building, combined with its proximity to this boundary causes substantial detriment to such units.

(c) parking: the concession sought is a material one. The bungalow is, for all practical purposes, a separate dwelling. The absence of up to two carspaces for residents, leaving aside the issue of additional traffic that may be generated for those visiting the proposed complex has the potential to increase the concentration of parking in the street which will be compounded by the proposal to add an additional kerb crossing.

(d) vehicular access to parking area: Council submitted that the entrance to the parking are was inadequate, as was the dimensions of two car spaces in the car park. Although the provision of a passing bay may not strictly comply with the requirements of the DCP in relation to the movement of vehicles into the parking area, I regard this matter as one of little consequence. Similarly, the alleged inadequacy of the two spaces is not, on the evidence, established.

35. The most significant departure from the DCP requirements relate to setback, especially on the southern side of the proposal. The proposed construction would effectively wall in unit No 3 on the adjoining property (No 76). This results partly from the scale of the southern wing and partly because of the position of the southern wall in contravention of the side setback requirements of the DCP. The evidence of the architect, namely Mr Douglas Sewell retained by the owner of such unit, confirms that such residence would lose most of its sunlight for significant portions of the year and the overshadowing would have a dramatic affect upon the single north facing window upon which the unit relies for all of its northerly light. Shadows cast by the development would also affect the two east facing windows of the unit. I accept the observations of Mr Sewell that the proposal would have "an extremely detrimental affect on the amenity of the unit. The living areas would become dark and cold, particularly during the

winter period when northerly light is essential for comfort". As to loss of outlook, Mr Sewell said:-

"The height of the proposed southern wall and their close proximity to the southern boundary will result in the total obliteration of the only outlook which unit 3/76 Wanganella Street currently enjoys."

In view of these unchallenged observations it is impossible to find that the Applicant has demonstrated that the adjoining properties have not been adversely affected. Accordingly there is no justification for granting the concession provided for in the DCP so far as side setback is concerned.

36. At the rear of the site the proposal would cast a substantial shadow at certain times of the day across the rear of No 3 and No 5. Although no windows of those buildings are affected, the open space is detrimentally affected. This is a further reason for rejecting the proposal.

37. As to heritage matters, I accept the assessment of Mrs Glen Cowell. I consider that her analysis of the significance of the bungalow, and of its curtilage, to be sound. The proposal, in so far as it involves development along virtually the whole of its southern side would severely impact upon the value of the heritage item. The positioning of the southern wing separated from the heritage item by approximately 3 metres, the construction of a driveway and necessary excavation commencing in front of the bungalow, and of the carport on the north western corner would detrimentally alter the character of the bungalow and of the existing streetscape. The projection of the southern wing beside most of the southern wall of the bungalow, and the excavation for the retaining wall adjacent to the front of the bungalow would reduce to a mere token its present and potential heritage value. If the southern wing had been confined to half way along the southern wall of the bungalow, and no construction was proposed beyond

this point, the heritage value of the bungalow could, on the evidence, have been preserved.

Environmental Considerations

38. The Statement of Issues before the Court raise several issues relating to Section 90 of the Environmental Planning and Assessment Act 1979 for determination. As to the impact of the development upon the environment, I consider that it is adverse. In addition to the impact on the heritage item the proximity of the three storey building to the boundaries on the southern and eastern sides causing consequent overshadowing, especially in relation to the southern wing, are matters which warrant its rejection. As already considered, the amenity of Ms Trotter's unit is virtually destroyed by the position of the southern wing. As to the buildings at the east, the fact that No 5 has no fenestration to the west does not result in the conclusion that the open space is never used. The loss of amenity to the open space areas of such residential buildings is a matter to be considered, irrespective of whether the actual residences themselves are detrimentally affected.

39. Although there may be loss of privacy on the balconies and windows to No 76, this would not by itself be a reason to justify rejection of the proposal. Although the balconies proposed would have a clear view of balconies on No 76 and also those on the western side would have sight lines into No 80 Wanganella Street, such consequence could result from an acceptable development upon the site. The windows on the eastern elevation of the proposed building would lead to a loss of privacy of the yards of No 3 and 5. Such loss would not, of itself, be of significance.

40. The lack of compliance with the DCP in relation to parking requirements has the potential to create adverse amenity for residents of Wanganella Street. The generation of traffic, without adequate parking, is clearly discouraged under the provisions of Clause 8 of the DCP. The proposal is clearly deficient in relation to parking which will lead to adverse environmental impact.

41. As regards landscaping, the proposed development would result in a new landscape, and streetscape. Whereas the bungalow is presently clearly seen from the driveway, the proposed landscaping would hide most of the heritage item. Further, the provision of open space for residents of the site will be minimal, and the intrusion of the car spaces in the north west corner of the site would further reduce the amenity of the streetscape.

Conclusion

42. The development proposal has been designed to maximise the use of the site. The proposal clearly results in an excessive building on the site. The land could be developed in a manner which would not detract to any significant extent from the adjoining premises whilst maintaining the heritage value of the bungalow. If a proposal were forthcoming which addressed these critical issues, especially the problems created by the southern wing, the difficulties presently facing the Applicant could be overcome. The infringement of the DCP requirements concerning rear setback and side setback may not prove to be an obstacle to development provided that the design of the proposed structure is more sympathetic to the principal problems identified, namely loss of amenity to Unit 3 at No 76, the extent of overshadowing to No 76, No 3 and No 5, and the preservation of the heritage value bungalow.

43. In all of the circumstances the Court finds that development approval should not be granted and that the Council's refusal was justified.

Orders

44. The Court orders that :

(1) The appeal be dismissed.

(2) Development Application No 279/97 for a residential flat building at No 78 Wanganella Street, Balgowlah be determined by the refusal of consent.

(3) No order as to costs.

(4) The exhibits be returned.