Rowe v Northern Beaches Council

[2020] NSWLEC 1430

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rowe v Northern Beaches Council [2020] NSWLEC 1430

Hearing dates:

Conciliation conference 3-4 September 2020

Date of orders:

16 September 2020

Decision date:

16 September 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1)   The Applicant is granted leave to amend the development application to rely upon the amended architectural plans and landscape plans referred to in condition 1 of Annexure A.

(2)   The clause 4.6 written request to vary the floor space ratio development standard set out in clause 4.4 of Manly Local Environmental Plan 2013 prepared by Greg Boston dated 3 September 2020 is upheld.

(3)   The Appeal is upheld.

(4) Development Application No. DA2018/1930 for alterations and additions and change of use to dual occupancy at 118 Bower Street, Manly is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to dwelling house – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Manly Local Environmental Plan 2013

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy (Infrastructure) 2007

Cases Cited:

Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Land and Environment Court of New South Wales ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)

Manly Development Control Plan 2013 Amendment 11

Category:

Principal judgment

Parties:

Jake Rowe (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
F Berglund (Respondent)

Solicitors:
Sattler & Associates (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2019/404219

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal by the Northern Beaches Local Planning Panel on behalf of the Northern Beaches Council (the Respondent) of Development Application No. DA2018/1930 (the application) for alterations and additions to the existing dwelling house building and a change of use to attached dual occupancy, including new top floor addition, alterations and additions to the existing ground and lower ground floors and demolition of two existing single garages and the construction of two double garages and site landscaping works at 118 Bower Street, Manly otherwise known as Lot 29 in Deposited Plan 3806 (the site).

2. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34AA of the Land Environment Court Act 1979 (‘LEC Act’) on 3 September 2020, which commenced with an onsite view under s 34(1) of the LEC Act between the parties and in accordance with the Court’s COVID-19 Pandemic Arrangements Policy. I was the presiding Commissioner at the conciliation conference.

3. During the onsite view, the Court, in the company of the legal representatives only, entered Unit 3/114 Bower Street in order to hear the submission from the owner of the property and to understand the view from the Unit.

4. At the conclusion of the onsite view, the conciliation conference commenced via MS Teams, during which the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 4 September 2020.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites contained in the provisions of the Manly Local Environmental Plan 2013 (MLEP).

8. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [20]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The site is located within the E4 Environmental Living zone as identified by the MLEP, which permits development for the purpose of a Dual occupancies (attached) house with consent.

2. The objectives of the E4 zone are in the following terms:

•  To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

•  To ensure that residential development does not have an adverse effect on those values.

•  To protect tree canopies and ensure that new development does not dominate the natural scenic qualities of the foreshore.

•  To ensure that development does not negatively impact on nearby foreshores, significant geological features and bushland, including loss of natural vegetation.

•  To encourage revegetation and rehabilitation of the immediate foreshore, where appropriate, and minimise the impact of hard surfaces and associated pollutants in stormwater runoff on the ecological characteristics of the locality, including water quality.

•  To ensure that the height and bulk of any proposed buildings or structures have regard to existing vegetation, topography and surrounding land uses

3. The application exceeds the applicable floor space ratio (FSR) of 0.6:1 at cl 4.4 of the MLEP and relies upon a written request prepared by Mr Greg Boston in accordance with cl 4.6 of the MLEP dated 3 September 2020.

4. The objectives of the FSR development standard at subcl 4.4(1) of the MLEP are in the following terms:

(a)  to ensure the bulk and scale of development is consistent with the existing and desired streetscape character,

(b)  to control building density and bulk in relation to a site area to ensure that development does not obscure important landscape and townscape features,

(c)  to maintain an appropriate visual relationship between new development and the existing character and landscape of the area,

(d)  to minimise adverse environmental impacts on the use or enjoyment of adjoining land and the public domain,

(e)  to provide for the viability of business zones and encourage the development, expansion and diversity of business activities that will contribute to economic growth, the retention of local services and employment opportunities in local centres.

5. I am satisfied that the written request adequately addresses those matters required to be demonstrated by subcl 4.6(3)(a) for the reasons that follow:

• Firstly, I am satisfied that compliance with the FSR standard is unreasonable or unnecessary as the application presents a complying form of 1- and 2- storeys to Bower Street within the allowable height control while a third lower level, which already exists, sits below the level of Bower Street. As such it does not contribute to bulk or scale when viewed in context, and is consistent with the built form of adjacent development.

• Secondly, the written request considers the landscape and townscape features from various points in the area, and considers the landscape features viewed from the adjoining properties at Unit 3/114 Bower Street and the yet-to-be-constructed 120 Bower Street.

• Thirdly, the application demonstrates that existing setbacks to Bower Street will be adopted, and deep soil to the front and rear setbacks will maintain appropriate visual relationships with adjoining development. Relatedly, due to the fall in topography, the removal of the non-complying aspect of the application would result in an uncharacteristic height, bulk and scale when considered alongside that which predominates.

• Fourthly, the written request assesses the likely view loss from Unit 3/114 Bower Street in accordance with the planning principle Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140, and is assisted by a wireframe and view analysis plans with the conclusion that the sweeping views of Fairy Bower, distant views to the Pacific Ocean and North Curl Curl headland will be retained in a standing position.

• Fifthly, I am satisfied that sufficient steps are taken to minimise adverse environmental impacts in respect of privacy, solar access and visual amenity. In particular, the planter box to the western edge of the first-floor balcony and a condition in respect of the allowable height of planting balances screening and views.

6. Next I am satisfied there are sufficient environmental planning grounds to justify the contravention of the standard as the topography of the site means that even if the non-complying portion of the FSR was removed, the resulting building would be inconsistent with the bulk, height and scale evident in the streetscape. Furthermore, the retention and adaptation of the existing building in preference to its demolition is consistent with the Manly Development Control Plan 2013 Amendment 11.

7. I am also satisfied that the application is in the public interest because it is consistent with the objectives of the FSR standard, for the reasons set out at [8(5)], and with the E4 zone objectives which are set out at [8(2)]. In arriving at this state of satisfaction, I note the application does not require the removal of any significant trees, does not proposed significant excavation and does not result in adverse impacts on the bandicoot habitat or on the adjacent foreshore.

8. Finally, while I am satisfied in respect of subccl 4.6(4)(a)(ii) of the MSLEP, I note that the concurrence of the Secretary has not been obtained in this matter. Nonetheless, the Court has the power to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in subcl 4.6(5) of the MLEP.

9. I also have considered the matters in subcl 4.6(5)(a), (b) and (c) including whether any matter of significance for State or regional environmental planning is raised, and the public benefit of maintaining the standard and have decided that in the circumstances of this case for the reasons outlined above that the standard can be contravened as there is no apparent public benefit maintaining strict compliance with the standard in the circumstances of this case.

10. For the reasons set out above, I am satisfied that the written request prepared in accordance with cl 4.6 of the MLEP is well founded and should be upheld.

9. State Environmental Planning Policy (Infrastructure) 2007 applies to the site. The application was referred to Ausgrid and no response was received.

10. State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP) also applies to the site as portions are located within the Coastal Use Area and Coastal Environment Area. I am satisfied that the application is consistent with those matters at subcl 13(2), subcl 14(1) and cl 15 of the Coastal Management SEPP.

11. The site is nominated Class 5 on the Acid Sulfate soils map at cl 6.1 of the MLEP however there are no works proposed that would lower the water table.

12. Similarly, as the application is for alterations and additions to an existing dwelling, no significant earthworks are proposed pursuant to cl 6.2 of the MLEP. However I note the preliminary geotechnical assessment prepared by White Geotechnical Group dated 3 September 2020 that includes a risk analysis summary of geotechnical hazards, with the resultant finding being the risk is acceptable.

13. On the advice of the parties and relevant conditions of consent, I am satisfied that the provisions at cl 6.4 of the MLEP in respect of stormwater management are addressed.

14. On the basis of the Terrestrial Biodiversity Report prepared by ACS Environmental dated November 2018, and the conditions of consent, I am satisfied that the provisions of subcl 6.5(4) are met.

15. The site is within the Foreshore Scenic Protection Area pursuant to cl 6.9 of the MLEP and I am satisfied, on the basis of the plans and other documents that the impacts, measures and suitability of development is acceptable within the terms of the provision.

16. In respect of the essential services available to the site, I am satisfied that those services listed at cl 6.12 of the MLEP are available and sufficient.

17. Finally, I am satisfied that the application is accompanied by a BASIX certificate, prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

18. As the jurisdictional prerequisites to the grant of consent have been addressed, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

19. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

20. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant is granted leave to amend the development application to rely upon the amended architectural plans and landscape plans referred to in condition 1 of Annexure A.

2. The clause 4.6 written request to vary the floor space ratio development standard set out in clause 4.4 of Manly Local Environmental Plan 2013 prepared by Greg Boston dated 3 September 2020 is upheld.

3. The Appeal is upheld.

4. Development Application No. DA2018/1930 for alterations and additions and change of use to dual occupancy at 118 Bower Street, Manly is approved subject to the conditions in Annexure A.

……………………

T Horton

Commissioner of the Court

Annexure A (235559, pdf)

Plans (1743624, pdf)

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Decision last updated: 17 September 2020