Proactive Management Specialists Pty Ltd v Manly Council
[2008] NSWLEC 1426
•18 September 2008
Land and Environment Court
of New South Wales
CITATION: Proactive Management Specialists Pty Ltd v Manly Council [2008] NSWLEC 1426 PARTIES: APPLICANT
RESPONDENT
Proactive Management Specialists Pty Ltd
Manly CouncilFILE NUMBER(S): 10371 of 2008 CORAM: Murrell C KEY ISSUES: Development Application :- Residential apartments: impacts on heritage item and conservation area: overshadowing internal amenity: over development: FSR: setbacks. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Manly Local Environmental Plan 1988
Manly Development Control Plan
State Environmental Planning Policy No 65CASES CITED: Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Zhang v Canterbury City Council [2001] NSWCA 167DATES OF HEARING: 17/09/2008-18/09/2008 EX TEMPORE JUDGMENT DATE: 18 September 2008 LEGAL REPRESENTATIVES: APPLICANT
Mr C McEwan SC
Instructed by Anthony Whealy of Gadens LawyersRESPONDENT
Ms C Schofield of Pikes Lawyers
JUDGMENT:
- To allow a variety of housing types while maintaining the existing character of residential areas, to ensure that building form including alterations and additions does not degrade the amenity of surrounding residents or the existing quality of the environment:
- To improve the quality of the residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations;
- To ensure full and efficient use of existing social and physical infrastructure and future provisions of services and facilities to meet an increased demand;
- To encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment.
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Murrell C
10371 of 2008 Proactive Management Specialists Pty Ltd v Manly Council18 September 2008
and it has been edited prior to publication
JUDGMENT
1. The applicant in these proceedings is seeking consent to erect a residential flat building in two buildings containing some 27 units and parking provision for 45 cars. The development involves demolition of a number of buildings on the site with the exception of 6 Denison Street, where it is proposed to retain the southern and western facades of the existing building.
2. The site is on the northeastern corner of Denison and Whistler Streets in Manly, approximately one block set back from the beachfront of Manly, North Steyne. The address is 2A-6 Denison Street and the long frontage is to 54-58 Whistler Street. The subject site is to be amalgamated and all of the buildings on the site, apart from those walls of number 6, are to be demolished. The subject site is 1,500 square metres with a boundary to Whistler Street of 55 metres and Denison of 17.5 metres.
3. In terms of the context of the site it is seen from the aerial photograph that there is a 15 storey building that is interposed between the beachfront and the subject site approximately built in the 1960s-1970s. There is a residential flat building further to the north of eight to nine storeys built in the 60s and a more recent construction, large residential flat building, further to the north again.
4. The subject site is one that could be considered to be a transitional site because it has a relationship not only to the high rise developments of many decades ago but also to the heritage building of the St Mary’s primary school and church located on the south-eastern corner of Whistler and Denison. This heritage building was erected in the inter-war period. Opposite the subject site in Whistler Street there is a row of single storey terrace style buildings built in 1910 and this also is the beginning of the conservation area.
5. The site is not within a conservation area and none of the buildings are heritage buildings on the subject site. The building that has the facades to be retained on the southern and western sides was built in approximately the 1920s to 30s and clearly there have been alterations and additions to this building.
6. A summary of the proposal is that the overall height of the southern building is some 20 metres and the northern building is some 21 metres. The wall heights are between 13 and 17 metres and the FSR of the proposal is 2.25:1.
7. The council raised a number of contentions in the proceedings. Some of them were resolved but most of them remained for the course of the proceedings.
8. The contentions raised by the council can be summarised as:
- a) The overdevelopment of the site in terms of the exceedence of the FSR of 1.5;
b) The wall height exceedence of 12 metres;
c) Setbacks to various boundaries;
d) The design quality of the residential flat development in terms of SEPP 65 including the principles enunciated in that document;
e) The bulk, scale and streetscape;
f) Heritage in terms of the items and the conservation areas;
g) Overshadowing of surrounding residence;
h) View loss;
i) Privacy;
j) Excavation in that it is outside the footprint of the building itself;
k) Adaptable housing;
l) Contrary to zone objectives;
m) Public interest.
21. The unit where the Court visited at 69-74 North Steyne it is noted that the view impacted is back to the Harbour from a bedroom and a balcony, a secondary use room, and whilst people may value is view, at the same time I must have regard to the fact this unit obtains magnificent views from its front balcony and living room area over Manly Beach and in the circumstances having regard to the totality of views available to this property the view loss is not one that would warrant refusal of the application.9. It can be fair to say that the adaptable housing issue has been resolved by the addition of conditions for the development application.
10. The Court had the opportunity of hearing evidence from a number of expert witnesses including: Mr Brian McDonald, a heritage architect consultant for the council; Mr Kerry Nash also on behalf of the council, a consultant planner; and on behalf of St Mary’s Primary School Mr Tony Tuxworth, consultant planner. For the applicant evidence was given to the Court by Mr Ross Fleming, a consultant planner; Mr Graeme Brooks, a heritage consultant; Ms Gabrielle Morrish, a consultant urban designer architect.
11. The Court met on site the first morning of the proceedings and heard from a number of resident objectors, some 20 to 30 people met on site. The Court also had the opportunity of inspecting a number of properties to understand the concerns of the residents.
12. The application has been advertised and it has recently been re-advertised to satisfy council’s requirements for advertised development.
13. I have considered all the concerns of the objectors, and this includes the written objections that also came to the Court, and as of yesterday there was a further bundle of resident objectors. Many of these were pro forma letters and their concerns include: the proposed development does not contribute to the special character of Manly; it is not in accordance with the development control plan adopted by the council in terms of a number of non-compliances; the views from the beach and the impact on the amenity of the area generally would be impacted; the heritage of the area; view loss from properties; the visibility of the subject development when viewed from near and afar; and the concern for solar access.
14. I will take the last issue first which is one of solar access, and this goes to amenity. In this regard the Court had the opportunity, as I stated, of also receiving shadow diagrams to indicate to the court whether in fact a reduction in the height of the southern building, where the facades are to be retained, whether in fact a reduction in the height would result in a reduced impact on the school yard. Evidence was given by Mr Tuxworth that the luncheon period is from 12.50 to 1.40pm. When I look at the shadow diagrams with the deletion of the top element, which forms the second storey of Unit 26 there would be a noticeably reduced impact on the playground area of the school. It was submitted that there are no standards for overshadowing of school or indeed public open space areas and that the Court could adopt the standards as for private open space.
15. The Court in its assessment has considered the evidence of the experts and also considered the use of the school yard, and other impacts on solar access that has compromised the school grounds because of existing development within the area. And on a merits assessment it is my view that the solar access of the playground area would be significantly improved by the deletion of the top element of the southern building on the corner of Denison and Whistler Streets. As to the solar impacts on other properties there is expert evidence from the planners to say that the proposed development of the site would impact on 8 Denison Street, however I accept Mr Fleming’s evidence that the 9am shadow impacts indicate additional shadowing at 9am but this shadow progressively moves off the site and I am also satisfied that as agreed between the parties that a compliant development would also impact in terms of overshadowing.
16. The experts also considered at length the impacts on adjoining residential flat buildings, that is the high rise buildings. At the end of the day it was agreed between the experts that the solar access requirements of council’s development control plan are complied with.
17. The subject site is somewhat constrained because of the shadow impacts of the existing high rise buildings in the vicinity of the site. In this regard an analysis has been undertaken in terms of SEPP 65 which sets out benchmarks or thumb rules for the amount of solar access that should be gained to future dwellings.
18. At the end of the day it is clear that there is a reasonably large proportion of the dwellings that will not receive three hours of sunlight. At this point Mr McDonald considers that twelve units would receive two hours or more sunlight but then if one adds other units to the configuration, that is 9, 15 and 21, three hours of sunlight is received to bedroom areas. This does not qualify in terms of the solar access to living areas under SEPP 65 but nonetheless is a relevant matter that should be considered in the circumstances of this case. Similarly, units 11 and 17 would receive approximately one and a half hours sunlight and once again whilst this does not comply with the standard as such in my overall analysis I am persuaded by the submission of the applicant. That is given the location and the desire to live in such an area, and the opportunities provided by the closer proximity to the beachfront and other parklands that the reduced solar access and the constraints of the site by the overshadowing of the adjoining high rise buildings would not warrant refusal of the application. Ms Morrish states that some 55% of the units receive adequate solar access in terms SEPP 65 requirements. However, if one then looks at other areas, other bedrooms, I am satisfied that the development will provide good amenity because of its unique location in this beachfront area and this is a relevant matter to can be taken into consideration in my assessment.
19. While I am referring to SEPP 65, it does provides good guidelines for development and it is clear that the development has been assessed in terms of the residential flat design code under SEPP 65. I am also satisfied that on amenity the development is one that meets the requirements of cross-ventilation and other design elements required.
20. The Court heard evidence of people’s concerns about their views and view loss. View loss is something that is always a contention in this court and there have been principles established over the years on of view loss. In particular, Tenacity Consulting v Warringah Council [2004] NSWLEC 140 sets out a number of principles for view loss. In this regard it is noted that the experts agree that the view loss from other units is ‘minor’.
22. Similarly, there was concern expressed from a unit at 35 Whistler Street, which is a view across the subject site from the third floor mainly from the study and bedroom, and also an oblique view from the lounge room. The outlook available is a result of the height and scale of the current improvements on the site and this was agreed to by the experts. In my assessment the expectation given the zoning and the DCP standards for the site is that these views would not be retained with the redevelopment of the site. There was discussion about setbacks and whether in fact a view would be retained if there were an 8 metre setback from the northern boundary if that was considered then to be the rear boundary. The configuration of the site in terms of setbacks is one that this is a corner site and the Court must have regard in its assessment to the siting of the building and the placement of the building mass and form on the subject site such that it is consistent with the streetscape.
23. I am satisfied that a relaxation of the setbacks is appropriate in the circumstances of this case having regard to the relationship of this site with the adjoining high rise buildings to the east and having regard to the presentation of the built form to Whistler Street. The proposal presents as two distinct elements breaking the building form which is appropriate in the circumstances of this case to provide for a continued rhythm in the street in particular as we see further down Whistler Street for the newer developments.
24. That leads me to the issue of the retention of the southern and western wall of 6 Denison Street, or using that as a cue in terms of the built form. In this regard Mr Nash is of the opinion, as is Mr McDonald, that a compliant development with the DCP would be one that would be a more appropriate built form and that the retention of those walls or the use and placement of those walls is inappropriate for a new development.
25. The subject corner building has been on the site - Camelot - has been on the site since the 1920s-30s and it is part of the landscape, part of the built form of the area. In my assessment it provides an unacceptable relationship with the heritage building, that is the school, and the conservation area, the single storey dwellings to the west of the subject site. I am satisfied that it provides an appropriate placement for the built form of the proposed development and in this regard I agree with Ms Morrish’s evidence that
- “it responds to the façade length and proportions seeing other new apartment buildings along the street, it provides opportunities for view glimpses to the east from the site, it provides a greater overall area of façade to enable the provision of corner and through apartments to improve amenity, solar access and cross-ventilation, it allows the original building façade to be read in its original configuration rather than as a minor massing relative to a much longer extension retaining its place as a major corner streetscape element, it allows for more private communal open space between the buildings than would occur elsewhere on the site given the scale of adjoining buildings and their propensity to overlook the site and it allows landscaping between the buildings to contribute to the streetscape and it is responsive to the street rhythm”.
27. The principles articulated in SEPP 65 are ones that must be taken into consideration and these include scale, context, built form, density and amenity. I have considered these principles and I am satisfied that generally, subject to amendments that I will discuss later, the proposed development is one that satisfies the requirements of SEPP 65.
28. The Court in its assessment and as required must have regard to the Local Environmental Plan for Manly of 1988 and the aims and objectives, and of particular relevance to this development application include:
- a) To increase the availability and variety of dwellings to enable population growth without having adverse effects on the character and amenity of the municipality;
b) To ensure that new development does not detract from the very special visual quality of the municipality .
- “The council shall not grant consent unless it is satisfied the development will not have a detrimental effect on the amenity of the foreshore scenic protection area.”
31. The subject site is relatively close to a foreshore area but is separated from the foreshore by 15 and 9 storey buildings. In my assessment it will not adversely impact on the foreshore and will have minimal or no overshadowing impacts, which was a concern raised by some residents.
32. Clause 19 is also relevant to my assessment, development in the vicinity of an item of the environmental heritage;
- “The council shall not grant consent to development in the vicinity of an item of environmental heritage unless it has made an assessment.”
33. In this regard I have assessed the application subject to amendments as one that will not have adverse environmental heritage impacts. Similarly, in terms of the conservation area I am satisfied that the relationship of the proposed development is satisfactory in the context of the adjoining conservation area, in particular the relationship with the single storey attached dwellings on the corner.
34. At this point I will state, and give my reason the amendments that I have concluded would be necessary. The Court had the benefit of the architect of the project to provide assistance to the proceedings in terms of the built form and how changes to the design could relate to the integrity of the architecture with the deletion of the upper lever of the northern and the southern buildings. The southern building not only from the point of view of its visibility from the street, that is at ground, but also in particular because the deletion of the upper level would alleviate the solar access impact of the school grounds.
35. I have also considered the removal of the upper levels in the context of the streetscape and in the context of council’s controls. I have not articulated the councils framework at this point I can say that I have considered all of council’s controls including the FSR, the setbacks, of the building height, the wall height and the additional fifth floor in the roof and the controls for the anticipated or contemplated development under the DCP . In this regard the proposed development in my assessment would on a holistic reading of the DCP and having regard to its context and its relationship with the development on the other side of Whistler Street and it is clear that the fine grain of the buildings on the opposite side of Whistler Street and the size of the buildings should be respected in terms of development of this site.
36. This is a transitional zone and it is clear that it has the tall flat buildings to the water at the rear. However as a transition in terms of the streetscape and fit I am not satisfied that the two levels above the four main levels is appropriate. With the deletion of the upper floor the RLs as provided by the architect in exhibit N provides an RL for the northern building of 22.5 and for the southern building of 23. The architects sketch plan with a level deleted also indicates a more simplified design resolution that in my assessment is more appropriate in the context of the streetscape.
37. In terms of the relationship of the buildings to each other and in terms of the streetscape and the conservation area with the single storey dwellings and the three storey older residential flat buildings and the scale of existing development the deletion of the upper storey element in my assessment provides for a more appropriate transition. This will still be a development that is in excess of many of council’s development control plan guidelines but I must consider the development in its context, which includes the high-rise buildings. As submitted on behalf of the applicant in reference to the 9 and 15 storey buildings “those buildings are not going to disappear” and whilst the DCP might express council’s contemplated desire for development at the same time one must have regard to the context and the fact that these buildings will be there into the future. I note that the council officer’s report recommended the deletion of the top storey.
38. At the same time the development control plan provides guidelines, it is discretionary as stated in the judgment of Zhang v Canterbury City Council [2001] NSWCA 167 . Whilst I must give it central focus and give it real genuine and proper consideration, at the same time these are not development standards and I must consider the merits of the application and I am satisfied that on a merits assessment with the deletion of the upper floors and a roof which is more passive, as discussed by the architect during the proceedings, I am satisfied the proposed development will sit most comfortably in this streetscape. Whilst it will still exceed the FSR and other non-compliances of setbacks at the same time it will read as a four storey building with a fifth storey in the roof element as such and it is an appropriate presentation and transition.
39. Evidence of recent developments along Whistler Street show that the four storeys plus a level in the roof is the preferred option in terms of council’s desired future character for the area. It is true to say that with sight lines from the street that the upper level may not be seen of the northern building but it will be visible from many locations within the municipality and due to the topography of the area looking down upon the building will also provide for a better fit reading the buildings together as an integrated development which is what they will be with the central driveway and common open space area.
40. Excavation was raised as an issue by the council in that the excavation is to a greater extent than the footprint of the building with the deletion of upper levels the car park and reduction in unit this will allow for the car parking to be pulled back under the building footprint on the north-western corner and this should provide for some additional deep soil planting commensurate with the scale of building. I accept that a leafy environment is not prevailing in the area but at the same time it is appropriate to have vegetation to punctuate the size of buildings and this is a desire in terms of council’s controls.
41. The minor issue of the garbage, the conditions that council required are for the smaller garbage area to be enlarged such that the residents of the units are closer to their garbage disposal facilities. I do not consider that to be unreasonable and an appropriate amendment is required to the plan.
42. The issue of condition 28A I accept the applicant’s submission that the condition be punctuated. That is the façade of 6 Denison Street shown on the approved plans, that is to be retained and supported. It is clear that this development consent is on the basis of an assessment of the retention of those walls.
43. I have not quoted the provisions of the development control plan but clearly I must have regard to the objectives and in terms of the building height it is to regulate the buildings in terms of specifying wall heights. I am satisfied the proposed development, whilst it exceeds the wall heights, will not be out of character with the area and will fit comfortably in its context. I am satisfied the objectives of the building height are satisfied with an amended development to be as required above.
44. Similarly, in terms of the setbacks there are objectives that one has regard to rather than a strict compliance with the numerics and they include: “to maintain and enhance the existing streetscape; to provide privacy; equitable access to light and sunshine; flexibility in the siting of buildings and to accommodate landscaping“. I am satisfied that the non-compliance with the setbacks in the circumstances of this case is appropriate.
45. The DCP which has recently been amended and adopted - Amendment 1 Residential Zone 2007 , 1 August 2008 - I have considered and the provisions are not dissimilar to what the applicant has addressed in its experts’ reports.
46. In summary the other issues raised by council include overdevelopment of the site. I do not consider that the proposal with the deletion of the upper storeys is an overdevelopment of the site in its context. For design quality of the residential flat development, I am satisfied in my assessment with the benefit of the report submitted with the application, that is the original urban design report and the supplementary report, that the proposed development warrants approval in terms of SEPP 65 and the residential flat design code.
47. The bulk, scale and streetscape, in this regard I consider that the bulk and scale is appropriate in the streetscape and that the reduced boundary setbacks, in particular for the corner building on Denison and Whistler, is appropriate. It is an accepted part of the urban fabric today and the proposed development will not read as a significantly larger bulk than what is there today and it is appropriate that the design of the other building takes its cue with the deletion of upper levels.
48. The heritage I have already addressed the heritage in terms of the council’s LEP , it will not adversely impact on the heritage item or the conservation area and the issue of overshadowing is one that I have also addressed.
49. In terms of view loss I have had particular regard because I understand people value their views, but this is a building that will not result in unreasonable view loss given the context and circumstances.
50. The excavation is a matter that I have addressed and increased deep soil planting in the front corner can be achieved with an amendment.
51. The adaptable housing is an issue that has been resolved by conditions.
52. In terms of the zone objectives I am satisfied the proposed development does increases the availability and variety of housing without having adverse effects and it does not detract from the very special visual quality of the municipality. In this regard a building with a greater site coverage and lower in height than the adjoining high rise buildings is appropriate for the subject site, it provides a good transition to the lower density fine grain of the conservation area.
53. The public interest. As I said I have considered the concerns and the objections of the public, including that the DCP be complied with. As I said the DCP is not mandatory. I must undertake a merits assessment and the circumstances of this case warrant approval of the development application with the deletion of the upper storey element. The proposal will sit comfortably in the streetscape and it will be of a design that provides a good relationship to both the high rise and the adjoining low rise development and heritage item.
54. The zoning of the subject site is in the highest density area with highest FSR within the municipality and there must be an expectation that development of this site is not going to reflect the conservation area. The proposal will clearly provide for an appropriate transition and form between the two distinctly different built forms and it is worthy of approval.
55. Accordingly based on my assessment above, the formal orders of the court are:
- (1) The appeal in respect of the property known as 2A-6 Denison Street and 54-59 Whistler Street, Manly, is upheld;
(2) The development application submitted to Manly Council and as amended is granted a deferred commencement consent and is subject to the conditions in Annexure ‘A’;
(3) The exhibits may be returned to the parties with the exception of B, N and 21.
J S Murrell
Commissioner of the Court
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