Susan Rothwell Architects v Manly Council

[2006] NSWLEC 373

Land and Environment Court

of New South Wales

CITATION:	Susan Rothwell Architects v Manly Council [2006] NSWLEC 373 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Susan Rothwell Architects RESPONDENT: Manly Council
FILE NUMBER(S):	10254 of 2006
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Wall height and FSR
LEGISLATION CITED:	Manly Local Environmental Plan 1988, (MLEP) Manly Development Control Plan for the Residential Zone 2001, Amendment 1, (Amendment1) Manly Development Control Plan for Energy Efficient Buildings 1998, (DCPEE) State Environmental Planning Policy No 65 -Design Quality of Residential Flat Development, (SEPP65) Environmental Planning and Assement Act 1979, ss79C and 97
DATES OF HEARING:	19/06/2006
EX TEMPORE JUDGMENT DATE:	06/19/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr A Kempster, architect and agent Susan Rothwell Architects of Manly SOLICITORS: N/A RESPONDENT: Ms C Brachs, solicitor with Mr R K Graham, solicitor SOLICITORS: Abbott Tout, Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

19 June 2006

10254 of 2006 - Susan Rothwell Architects v Manly Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Manly Council (the council) of a development application to add a basement strata apartment and associated works to an approved apartment building at Lots 40 and 41, DP4682, being Nos 85 - 87 Lauderdale Avenue, Fairlight.

2 I visited the land in company with the parties on the morning of the hearing.

3 I have concluded that the application should fail, as it would present to the foreshore reserve and the waters of Sydney Harbour as a three-storey building of large bulk and inappropriate in the context.

The land

4 The land is situated on the southern side of Lauderdale Avenue between Willyama and Rosedale Avenues to the west of Bolingbroke Parade.

5 The land is rectangular in shape with some irregularity at the rear southern boundary where it abuts Esplanade Park. The land has a frontage to Lauderdale Avenue of 30.490m and a depth or around 51m and an area of 1,513m2.

6 The land slopes moderately from the rear towards the street with a fall of about 3.5 metres.

7 Esplanade Park is listed for its landscape heritage significance. No 89 Lauderdale Avenue, abutting to the west, is an apartment building with front [foreshore] garden landscaping satisfactory to the council apparently designed to preserve views of the Harbour from its lowest level.

Relevant planning controls

Manly Local Environmental Plan 1988, (MLEP)

8 Under the provisions of the MLEP the land is zoned Residential 2 and the proposal is permissible with consent.

9 The land is located within the foreshore scenic protection area, (FSPA), and under cl 17 of the MLEP, the council of the Court on appeal, is required to consider the appearance of the development from the water.

10 The relevant clauses are:

· Clause 3, (Aims & objectives),

· Clause 4, (Policies & strategies),

· Clause 10, (zoning); and

· Clause 17, (Foreshore scenic protection area),

· Clause 19, (landscape heritage significance of foreshore reserve Esplanade Park).

Manly Development Control Plan for the Residential Zone 2001, Amendment 1, (RDCP)

11 Section 3 of the RDCP sets out the development requirements for various forms of residential development.

12 Under the provisions of the RDCP the land falls within Density Sub-Zone 4, which provides for a density of one dwelling per 300m2 of site area and a maximum floor space ratio of 0.5:1.

13 In cl 3.1.1 of the RDCP the objectives for Residential Density and Subdivision are;

(a) To control the number of dwellings by specifying the minimum site area required for each.
(b) To encourage the provision of a variety of dwelling types and residential environments.
(c) To respond to the character of the locality through appropriate subdivision patterns.
(d) To require frontage for all lots to a public road.
(e) To protect existing vegetation and topography through appropriate configuration of lots and siting of dwellings.
(f) To take advantage of existing services and facilities.
(g) To ensure development in sub-zones 2 and 3 has direct street frontage and access.

14 Maximum wall height under cl B4 of the RDCP is defined as, “…the greatest vertical distance from the existing ground level to the top most part of the external wall of the building.”

Manly Development Control Plan for Energy Efficient Buildings 1998, (DCPEE)

15 The DCPEEB applies to the land and seeks to minimise the use of energy used in maintaining comfortable conditions inside a building.

State Environmental Planning Policy No 65 -Design Quality of Residential Flat Development, (SEPP65)

16 SEPP65 sets out ten principles that need be considered for residential development of three or more storeys in height. The applicant and Ms E Middleton, of Manly Council addressed each.

Principle 1 - Context
Good design responds and contributes to its context... key natural and built features of an area. Respond to desirable elements of the current or future character and contribute to the quality and identity of the area.

Principle 2 - Scale:
Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings... a considered response to the scale of existing development or the scale identified for the desired future character of the area.

Principle 3 - Built Form
Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. ... defines the public domain, contributes to the character of streetscapes and parks including their views and vistas and provides internal amenity and outlook.

Principle 4 - Density
Good design has a density appropriate for a site and its context, in terms of floor space yields (or unit numbers or residents). Appropriate densities are sustainable and consistent with the existing or stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality.

Principle 5 - Resource, energy and water efficiency:
Good design makes efficient use of natural resources, energy and water throughout its full life cycle, including construction. Sustainability is integral to the design process including demolition, recycling of materials, appropriate materials selection, sustainable materials, adaptability and reuse of buildings, layouts and built form, passive solar design principles, efficient appliances and mechanical services, soil zones for vegetation and reuse of water.

Principle 6 - Landscape
Good design recognizes that landscape and buildings operate as an integrated and sustainable system, resulting in greater aesthetic quality and amenity for both occupants and the adjoining public domain. Landscape design builds on the site's natural and cultural features, enhances natural environmental performance by coordinating water and soil management, solar access, microclimate, tree canopy and habitat values. It contributes to the positive image and contextual fit of development through respect for streetscape and neighbourhood character or desired future character. Should optimize usability, privacy and social opportunity, equitable access and respect for neighbour's amenity, and provide for practical establishment and long-term management.

Principle 7 - Amenity
Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility.

Principle 8 - Safety & Security
Good design optimizes safety and security, both internal to the development and for the public domain. This is achieved by maximising overlooking of public and communal spaces while maintaining internal privacy, avoiding dark and non-visible areas, maximizing activity on streets, providing clear, safe access points, providing quality public spaces that cater for desired recreational uses, providing lighting appropriate to the location and desired activities, and clear definition between public and private spaces.

Principle 9 - Social Dimensions
Good design responds to the social context and needs of the local community in terms of lifestyles, affordability and access to social facilities. New developments should optimise the provision of housing to suit the social mix and needs in the neighbourhood or, in the case of precincts undergoing transition, provide for the desired future community.

Principle 10 - Aesthetics
Quality aesthetics require the appropriate composition of building elements, textures, materials and colours and reflect the use, internal design and structure of the development. Aesthetics should respond to the environment and context, particularly to desirable elements of the existing streetscape or ... contribute to the desired future character of the area.

17 Development application No 403/05 was lodged with the respondent council on 5 September 2005 to alter and add to an approved four unit residential building on the land.

18 The proposal is to add an additional unit of 261.1m2 in excavation and foundation area. The proposed unit has a living dining kitchen area at 17.5m AHD and a terrace to the south under what is the eastern section of the building. There are steps down to the bedroom level at 15.5m AHD, which has three bedrooms, 3 en-suites a laundry and a cellar.

19 Other proposed associated works would include amendment to the car park, whereby an additional two parking spaces are to be provided in excavation into the site towards the Lauderdale Avenue frontage. This would result in car parking spaces number five and six having a stacked parking arrangement. The car park has also been extended out closer to the eastern boundary and is excavated to within 310 mm of this boundary.

20 The plans have been amended to include internal planning changes to the car park lift lobby and amended north entry gate and stair. As well as this each car parking space now has a garage door.

21 On the 21 May 2005 the council approved Development Application No 386/04 to demolish the existing buildings and construct a two-storey residential flat building containing four strata units with basement car parking for eight (8) resident spaces, plus two (2) visitor spaces.

22 The following is a summary of Council's assessment of the proposal's compliance with the numerical standards of the DCP:

Permitted/	Proposed	Complies
Required
Yes/No
Density Sub Zone 4	1/300	1/302.6	Yes
Floor space ratio	0.5:1	0.71:1	No
Floor space ratio - approval	0 5:1	0.5:1	Yes
Wall height east side	7 2	5.8-7.5	No
west side	7.8	7.0-9.2	No
Roof height	3.0	2.0	Yes
Fence height	1.5 max 1 0 solid	1.8	No
Setback Front	6.0	8.2 m 2.0m to excavated car park	Yes No
Setback Rear	8.0	11 m to unit 7.7m to terrace	Yes
East setback side	2.5, 2.1, 1.9	3.0, 4.9, 2.0	Yes
West setback side	3.06	3.59	Yes
Setback to Reserve	6.0	7.7	Yes
Open space - total	55%	60.1%	Yes
Open space -total	832	910	Yes
Open space - soft	35%	86°/	Yes
Private Open Space	12m2 /unit	14m2 plus/unit	Yes
Car Parking - Residents	8	10	Yes
Car Parking - Visitors	2	Yes

Notification

23 The application was notified from 5 October 2005 to 2 November 2005 and the council received one (1) objection. The concern relates to considerations made during the assessment process of the original development proposal where conditions were imposed to control the height of the development and minimise impact on views from nearby properties.

24 The application was referred to Council's Building Surveyor, Engineer and Landscape Officer.

25 The application was also referred to the Fairlight Precinct Committee and at its meeting of 13 October 2005 the following motion passed unanimously:

Precinct recommends rejection of this application. It substantially exceeds the floor space ratio and provides inadequate car parking in one area where on-street parking is minimal. Frankly, we were amazed that such a major change could be suggested.

26 By notice dated 11 April 2006 the council refused the application for seven reasons that are reflected in the issues.

Environmental Planning and Assessment Act 1979.

Environmental Planning and Assessment Act 1979.

Environmental Planning and Assessment Act 1979.

Environmental Planning and Assessment Act 1979.

Environmental Planning and Assessment Act 1979.

Environmental Planning and Assessment Act 1979.

The hearing
27 The appeal was filed on 30 March 2006.
28 At the hearing the court heard evidence on behalf of the respondent council from:
· Mr H Watson, town planner, Manly Council; and
· Ms E Middleton, architect, Manly Council.

29 On behalf of the applicant evidence was given by:

· Ms C Bratorva, architect from Susan Rothwell; and

· Mr G Boston, consultant town planner of The Turnbull Group Pty Limited.

The issues

30 On 30 May 2006 the council filed a statement of issues.

1. HEADS OF CONSIDERATION UNDER SECTION 79(C)
1.1 The proposal does not satisfy the heads of consideration under section 79C of the EPA Act 1979.

Particulars
Section 79 (b):
“…the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality”
(i) It is considered that the proposal will have an adverse effect on the built environment by creating too much building bulk by adding an additional storey, which will be visible from the reserve and the water and which will lead to the restriction of proposed landscaping, which will detract from the natural environment and the landscaped setting of these developments.
Section 79C(c):
“…the suitability of the site for the development”

(ii) The proposal is for additional floor area over a previous approval for a residential flat building, which now increases the floor space ratio well beyond that considered appropriate for the neighbourhood. The additional unit also increases the apparent bulk and presentation of the building towards the heritage listed scenic walkway. The building increases form a two-storey development with landscaping in front to a three-storey development where the landscaping would be limited because of its impact on views. This is considered to be inappropriate for this sensitive neighbourhood given its location in the Foreshore Scenic Protection Area and adjacent to heritage listed reserve.

2. MANLY LOCAL ENVIRONMENTAL PLAN 1988

“(b) to delineate, by means of development control in the supporting material, the nature and intended future of the residential areas within the Municipality.”
While the development complies with the density applicable the floor space ratio is proposed to be increased from the permissible 0.5:1 to 0.78:1, which represents an over development of the site. The proposal does not meet this objective.
“(c) to allow a variety of housing types while maintaining the existing character of residential areas throughout the Manly Council area.”
The proposed additional dwelling underneath the building is a large floor space in comparison with the other units approved and would amount to a variety of unit types. However, the concern raised is the impact on the character as viewed from the heritage-listed reserve with its scenic walkway. There is also the concern with the view of the development as seen from the water with the proposal to add an additional storey as seen from this perspective. The proposal does not meet this objective.
“(d) to ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment.”
The additional dwelling underneath the approved building will have additional impact on the adjacent properties with increased vehicle and pedestrian movements associated with the additional residents. It is considered that the increased excavation for an additional storey and change to the landscape plan will create a greater massing of building when viewed from the scenic walkway on the heritage listed reserve and that this increased massing will be detrimental in the foreshore scenic protection area and have an adverse impact when seen from the water. It is considered the development would degrade the existing quality of the environment and not meet this objective.
“(e) to improve the quality of the residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations.”
It is considered that the provision of an additional unit underneath the approved building, would lead to limitations on the landscaping that was previously approved in order to provide for the views of this additional unit, and would therefore lead to less screening of the development as seen from the water and reserve. The proposal does not meet this objective.
“(h) to encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment.”
It is considered that this proposal now goes beyond what is considered suitable redevelopment for this locality. The development does not meet this objective.

This aspect must be given additional consideration in terms of the size and form of the development in its surroundings. While it is agreed that the overall height and configuration of the development remains unchanged it is the presentation of the development towards the water and reserve that raises concern given that this reserve is heritage listed in the Manly LEP and is also part of the scenic walkway. 3. MANLY DEVELOPMENT CONTROL PLAN FOR THE RESIDENTIAL ZONE 2001

4. SYDNEY REGIONAL ENVIRONMENTAL PLAN, SYDNEY HARBOUR CATCHMENT.

5. STATE ENVIRONMENTAL PLANNING POLICY NO 65

6. FLOOR SPACE RATIO

Particulars

7. BULK AND SCALE

Particulars
(i) Non-compliance with Clauses 3.4 of the Manly Development Control Plan for the Residential Zone 2001, Amendment 1 and Section 79C(1)(a)(iii) & (c) of the Environmental Planning and Assessment Act 1979. In particular the maximum height provision is exceeded for both the east and western sidewalls where the proposed maximum heights are 7.2m and 7.8m respectively.

8. ACCESS AND CARPARKING

9. RESIDENT OBJECTION AND PUBLIC INTEREST

9.1 Pursuant to Section 79C(1)(e) of the Environmental Planning and Assessment Act, 1979, the proposal is not considered to be in the public interest.
9.2 It is considered that it would not be in the public interest to allow the additional unit underneath the building thereby creating a three-storey effect towards the reserve as this would have an increased impact on the public domain. The proposal does not meet this objective.

31 The wall height and floor space ratio emerged as the salient issues.

The evidence and findings

32 The application was refused for reason of the overall height in combination with the increase in the visual height and FSR. The visual impact of the proposal comes about due to the excess FSR and the inappropriate height on the southern side.

Wall height

33 The author of the SEPP65 Report, by Susan Rothwell Architects dated 13 March 2006, stated: [Note: Exhibit D, p1]:

At the south elevation where due to the slope there is a greater potential for appearance of bulk, the building has been stepped, breaking it into distinct east and west forms while the visual mass has been further reduced with the use of deep terraces and landscaping.

34 Ms Middleton, for Manly Council stated, [Note: Exhibit 3, p 2]:

This [statement by the author of the SEPP65 report] applied to the original proposal, however the additional apartment has increased the visual mass (when viewed from the Esplanade Park) and reduced the scale of the approved landscaping.

35 In respect of the proposed building height, Ms Middleton commented,

The increased excavation for the additional proposed apartment results in an increased wall height. Thus the building height would be increased. Whilst not affecting the buildings to the rear, it would have a strong visual impact on the adjacent Esplanade Park and the Manly Scenic Walkway. The desired scale and character of the Park would be detrimentally affected by the proposal.

36 In respect of the floor space ratio, Ms Middleton stated,

The proposal increases the FSR from 0.5:1 (allowed) to 0.71:1, which is a gross overdevelopment of the site. The result is a considerable increase in the bulk and scale of the proposal.

37 During the course of the hearing the parties defined the existing ground level line from the survey information and wall height on the southern elevation in blue ink in Exhibit H. That part of the wall exceeding the maximum wall height was highlighted in yellow.

38 The proposal for an additional dwelling at the proposed lower floor level would require excavation below the existing natural ground level at the line of the southern elevation. Thus, the lower floor level would be visible from some viewpoints to the south and the waters of Sydney Harbour. In the original approved design the proposed ground floor level, one above the proposed new lower floor level, would have over-sailed the rock shelves located on the land, however the present proposal would require the natural ground surface to be excavated. Instead of the building apparently ‘touching the ground lightly’, as originally approved by the council, it would present as a new wall below the lowest approved level. The shelving rock out-crops would be cut into. As a result the maximum wall height of the development would increase by around 50% and would the proposal present to viewpoints to the south, as a full three-storey building in lieu of the originally approved two-storey building. The landscaping as shown on the plan in Exhibit F would do little to provide a screen of this lower level. I am satisfied that the proposal would visually dominate the Manly Scenic Walkway of the Esplanade Park and would not be in the public interest.

39 I accept the thrust of Ms Middleton’s evidence and I am satisfied that because of this increase in wall height that the application should be refused.

Floor space ratio

40 The SEPP65 Report, by Susan Rothwell Architects dated 13 March 2006 the author stated, [Note: Exhibit D, p1]:

The proposed development consisting of 5 apartments is in keeping with the general trend of controlled increase of residential development. It offers better use of existing infrastructure while it's stepped form and considered landscaping preserves the amenity and character established in the area.

41 Ms Middleton, for Manly Council stated, [Note: Exhibit 3, p 2]:

The original approved proposal of four apartments was determined to be in keeping and appropriate with the amenity and character of the area. The increase in residential density proposed (42% increase above allowable Floor Space Ratio) is excessive and a gross overdevelopment of the site in a sensitive harbour foreshore area. The bulk would be increased, the benefit of the stepped form would be lost and the landscaping to the Esplanade Boundary is hastily considered and incomplete.

42 I consider the bulk of the proposal to be excessive and not in keeping with the context and contrary to the council’s policies for development in this area. I refuse the application for this reason.

43 For the above reasons, the appeal is dismissed.

Orders
44 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 403/05, lodged with the respondent council on 5 September 2005 to alter and add to an approved four unit residential building on the land at Lots 40 and 41, DP4682, being Nos 85 - 87 Lauderdale Avenue, Fairlight, is refused development consent.

3. The exhibits except for Exhibits A, E, F, G, H and 4 are returned.

S J Watts

Commissioner of the Court

sw

14/07/2006 - The judgment and orders originally referred to a modification application No 386/04 and should have referred to a new development application No 403/05 - Paragraph(s) 17, 23 and order