Stone v Manly Council

[2004] NSWLEC 668

Land and Environment Court

of New South Wales

CITATION:	Stone v Manly Council [2004] NSWLEC 668
PARTIES:	APPLICANT Paul Raymond Stone RESPONDENT Manly Council
FILE NUMBER(S):	10506 of 2004
CORAM:	Hussey C
KEY ISSUES:	Development Application :- House demolition - new dwelling - lap pool - FSR noise - privacy
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Manly LEP
CASES CITED:
DATES OF HEARING:	17/11/2004
EX TEMPORE JUDGMENT DATE :	11/17/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C Leggatt, barrister Clinch Neville Long RESPONDENT Mr R Graham, solicitor Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

17 November 2004

10506 of 2004 Paul Raymond Stone v Manly Council

JUDGMENT

1 This appeal was lodged against council’s refusal of a development application proposing the demolition of an existing dwelling and construction of a two storey residence and lap pool at 12 Tutus Street, Balgowlah Heights.

2 In refusing the application the council identified a number of issues which include:

• Non compliance with the FSR control in the DCP
• Unsatisfactory position and height of the lap pool
• Loss of privacy and loss of views

3 For the appeal, the parties agreed to Ms Laidlaw being appointed the Court Appointed Expert in planning. She undertook a detailed assessment of the proposal against the relevant development controls in the DCP and found it unacceptable in its current form.

4 Consequently the applicant has undertaken further amendments to address these unacceptable aspects and also to address some of the concerns expressed by the neighbours in their objections. These amendments deal with non-compliance with the controls and the unsuitability of the lap pool.

5 At today’s Onsite Hearing, the residents have had the opportunity to express their concerns further about the amended proposal. I have the benefit of Ms Laidlaw’s review of the amendments and also the opinions of Mr Ooi who is the council’s town planner and the applicant’s town planner Mr Juradowitch and also Mr Lark, the project architect.

6 In my assessment of the evidence and submissions, I am satisfied initially that the proposal to demolish the existing house and construct a new two storey house in this residential 2 zone is permissible with consent. The main hurdle identified for the house component is the exceedance of the FSR Control of 0.4:1 contained in the DCP. But according to Ms Laidlaw’s assessment, she looked at the way the area is distributed, saying that the extent of FSR is to control bulk. Accordingly she says

“That taking a concessionary approach in accounting of the proposed ‘design features’, and allowing for the stairwell at one level not to be counted, the significance of the variation is minor. Although I would not consider this issue on its own to warrant refusal of the application, I would suggest that a minor amendment could usefully be made on the southern elevation to provide some additional articulation to break down the length of the building, in the vicinity of the sitting room at first floor and guest room at ground floor (ie by recessing these walls by one metre, for example).”

7 These amendments have been made together with some amendments to the entry off the street, which now are satisfactory as I understand from Ms Laidlaw. On this basis, I am satisfied that the building component is acceptable subject to the normal conditions.

8 The main issue of concern is the position and the levels of the lap pool, which is located adjacent to the northern boundary, with a 1.5 m setback and initially proposed to be 1.9 m above the natural ground at the rear end. I have considered this in the context of the amendments. Those amendments principally are that along the northern boundary and the eastern boundary, that the pool wall is to be non trafficable and the water levels and the wall lowered to below the fence height. Also it will be behind a 4 m screen which I am told can be a suitably vegetated and planted in the natural ground which facilitates its growth and maintenance.

9 I accept that there can be an non trafficable surface around the pool coping and it seems to me that there are a number of design options to achieve this, one being the slope at which it is constructed. In that event it seems that the objections are reasonably satisfied as there will be no overlooking practically along the side wall or the rear wall, no overlooking or no visual impact because the neighbours won’t be able to see the pool. I note that even though council’s preference is that it be lowered further to natural ground level, this it doesn’t make any material difference to the overlooking aspect and I think that there would be marginal, if any improvement in noise containment from the pool. Therefore, I consider that the proposed levels of the lap pool are generally satisfactory and these amendments respond to the initial unsatisfactory elements identified by Ms Laidlaw.

10 Another aspect I take into consideration is the separation distances from the main living parts of the adjoining properties, particularly the rear house (No. 10A). There is a reasonable separation distance and I think there is also a mitigating factor with the driveway along the common boundary that any noise will be somewhat mitigated by the separation distance provided by the driveway.

11 The associated privacy concern then is with Mr Terry’s property along the eastern boundary and a number of options have been discussed today as to how a reasonable level of privacy can be achieved. It seems now that allowing the lap pool be constructed at that proposed levels, there is a pool separation distance in the order of about 20 m. In my opinion, the option to allow the existing Murraya hedge to grow a little higher, in the context of the existing those separation differences, represent a reasonable level of privacy in this neighbourhood. Therefore, the option to vary the Covenant, I consider is a reasonable one. There has been some discussion as to what the appropriate RL for the hedge should be and looking at the demonstration on site, it seems to me that if it was about RL 40, I think it presents a reasonable level of privacy which is consistent with what the planners.

12 The other outstanding matter is that of the intrusion of the new house into Mrs Roberts harbour view corridor. I am satisfied that this has been considered reasonably, because the proposal as been explained, has a flat styled roof with a couple of protruding elements. But when I look at the neighbouring style of roofs from the opposite side of the road, the roof profile’s are generally consistent, but this proposed roof is lower than the adjoining roofs. It is also flatter than the predominate pitched roofs which the Development Control Plan allows.

13 Therefore I think there is reasonable consideration to minimise view impact there. I also note that one of the critical aspects of the view in this case is the view of the Manly ferry. This view of the Manly ferry is one that has been enjoyed for a long time by Mrs Roberts and I am assured that the levels as proposed will not interfere with this. Whilst there is a small foreshore loss of view, I nevertheless accept that the proposal complies generally within s 3.8 of the DCP and Ms Laidlaw has confirmed that she considers the view sharing represents a reasonable balance, even though it results in some loss.

14 Overall I am satisfied that this amended proposal merits conditional consent based on the expert reports, including the fact that Ms Laidlaw has dealt with all the relevant aspects of the planning controls in the LEP and DCP.

15 The orders of the Court then are:

1. The appeal is upheld.

2. Development consent is granted to DA 249/04 for the demolition of an existing dwelling and construction of a new dwelling and lap pool at 12 Tutus Street, Balgowlah Heights, subject to the conditions in Annexure ‘A’.

3. The exhibits may be returned except of Exhibits 4, 5 and 7.

________________________

R Hussey

Commissioner of the Court

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