Tricon Services Group Pty Limited v Manly Council (No 4)

[2012] NSWLEC 238

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tricon Services Group Pty Limited v Manly Council (No 4) [2012] NSWLEC 238

Hearing dates:

17 October 2012

Decision date:

24 October 2012

Jurisdiction:

Class 1

Before:

Lloyd AJ

Decision:

1. The appeal is dismissed.

2. The judgment and orders of the commissioner made on 1 June 2012 are confirmed.

3. The appellant must pay the respondent's costs.

Catchwords:

APPEAL - s 56A of the Land and Environment Court Act 1979 - question of law - development application - interpretation and application of height controls - whether commissioner failed to apply a development control plan - whether commissioner adopted erroneous construction of development control plan - whether commissioner failed to conduct a rehearing on remitter - appeal dismissed

Legislation Cited:

Development Control Plan For The Business Zone 1989 (Amendment 7)
Environmental Planning and Assessment Act 1979 s 4, s 79C
Manly Development Control Plan for the Residential Zone 2007 -
Amendment 2
Land and Environment Court Act 1979 s 56A

Cases Cited:

Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; 128 LGERA 339
Tricon Services Group Pty Limited v Manly Council [2011] NSWLEC 1271
Tricon Services Group Pty Limited v Manly Council (No 2) [2011] NSWLEC 253
Tricon Services Group Pty Limited v Manly Council (No 3) [2012] NSWLEC 1145
Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46, (2001) 130 LGERA 79
Zhang v Canterbury City Council [2001] NSWCA 167, 51 NSWLR 589, 115 LGERA 373

Category:

Principal judgment

Parties:

Tricon Services Group Pty Limited (appellant)
Manly Council (respondent)

Representation:

T F Robertson SC and J L Doyle (appellant)
C W McEwen SC and M A Staunton (respondent)
Hunter Lawyers (appellant)
HWL Ebsworth Lawyers (respondent)

File Number(s):

10621 of 2012

Judgment

1. Tricon Services Group Pty Limited proposes to erect a five-storey commercial and residential building at 46 - 48 North Steyne, Manly. Its development application was refused by the Council. Its subsequent appeal to the Court was dismissed by Acting Senior Commissioner Brown: Tricon Services Group Pty Limited v Manly Council [2011] NSWLEC 1271. Tricon then appealed against that decision under s 56A of the Land and Environment Court Act 1979, alleging errors of law. That appeal was heard by the Chief Judge who upheld the appeal and remitted the matter to the commissioner for determination: Tricon Services Group Pty Limited v Manly Council (No 2) [2011] NSWLEC 253. Following the remitted hearing the commissioner again dismissed the appeal and refused consent: Tricon Services Group Pty Limited v Manly Council (No 3) [2012] NSWLEC 1145. Tricon now appeals again on a question of law under s 56A of the Act against the commissioner's decision on the remitted hearing.

1. The principal issue is the correct interpretation and application of the relevant height controls. Tricon's land is in the Manly Town Centre, in which the Development Control Plan for the Business Zone applies. However, Tricon's development also includes residential apartments. Clause 4 of the Business Zone DCP states that regard must be had to the objectives and relevant controls of the Council's DCP for the Residential Zone for residential development within the Business Zone.

1. It follows that both the Business Zone DCP and the Residential Zone DCP apply. A development control plan is not an "environmental planning instrument" as defined in s 4 of the Environmental Planning and Assessment Act 1979. It is nevertheless something that must be taken into consideration in determining a development application: s 79C(1)(b)(iii). Moreover, it has to be considered as a "fundamental element" in or a "focal point" of the decision making process: Zhang v Canterbury City Council [2001] NSWCA 167, 51 NSWLR 589, 115 LGERA 373 at [74] - [75]. As noted above, the principal question is whether the commissioner correctly construed and applied the height controls of those provisions.

1. Clause 1.2 of the Business Zone DCP is headed "building heights". Subclause 1 relevantly states:

1. The maximum wall height of a building, shall not exceed

15 metres except where:

(i) a lesser or greater height is specified on the

height control map; or

(ii) a lesser or greater height provides a better

relationship to adjoining development in terms of

fulfilling the Council's townscape objectives; or

(iii) the Council agrees to the addition of plant rooms,

lift overruns, pitched roofs or the like.

1. The height control map referred to in subclause 1(i) above specifies a maximum building height for the subject land as 10m at the street frontage and 12m at the rear. Although the height control map refers to maximum "building" height, it follows that subclause 1 of cl 1.2, and the maximum wall height control of 15m, does not apply.

1. The Business Zone DCP also allows for some limited flexibility in the height controls. In the section dealing with "townscape" under the heading "Design Principles" the DCP allows the overall height of a building to be increased or decreased to match that of adjacent buildings.

1. The Residential Zone DCP states, amongst its objectives, that it is:

h) To minimise the impact of new development, including alterations and additions, on privacy, views, solar access and general amenity of adjoining and nearby residences;

i) To provide for view sharing for both existing and proposed development;

1. Clause 4.3.2 of the Residential Zone DCP relevantly states:

4.3.2. The following controls apply to the maintenance of views:

a) The design of any development is to minimise the loss of views from neighbouring and nearby dwellings and from public spaces.

b) Views between and over buildings are to be maximised ...

1. Tricon's proposed building infringes the maximum height controls shown on the height control map. It exceeds the maximum 10m building height at the front by up to 2.7m and it exceeds the maximum 12m building height at the rear by up to 3m. However, the building would equate with the height of the adjoining building to the south and would be lower than the height of the adjoining building to the north.

1. Tricon's proposed building would also infringe the Residential Zone DCP in that it would result in the loss of easterly views from residential apartments in the building at the rear.

1. The commissioner held at [20] that the wall height control in cl 1.2 did not apply. This is self-evident since the walls in the present case do not exceed the maximum height of 15m. The commissioner then held, correctly, that the maximum building heights of 10m and 12m continue to apply.

1. In considering the application of the townscape provisions in the Business Zone DCP, noted at [6] above, the commissioner accepted at [22] that the proposed building "will provide consistency with the adjoining buildings" and that its overall height "will not have any unacceptable impacts on the townscape", being findings made in his original judgment at [31]. The commissioner did not accept that a building of 10m and 12m in height would offend the townscape objectives: see [22]. The commissioner then considered the question of view loss:

29 On the question of view loss, I am also satisfied that no new evidence was provided at the remitted hearing or the re-opened hearing that would alter my findings in the original judgment. For completeness and clarity, these findings (at pars 29 and 30) state:

[29]..... Using the view assessment principles in Fig 14 of cl 4.3 of the Residential DCP, the first three steps in assessing view impact; being the assessment of views to be affected, what part of the property the views are obtained and the extent of view impacts are agreed by Mr Layman and Mr Winnacott based on Mr Jago's photomontages. The fourth step; being the reasonableness of the proposal that is causing the impact was the significant difference between Mr Layman and Mr Winnacott. Having found that there is no obligation in the DCP to maintain a similar height to adjoining buildings, the conclusions of Mr Layman are more appropriate in terms of view loss impact.

[30] I agree that the impact on views from Levels 4, 5 and 6 is unacceptable. From unit 407 all water views would be lost, but a 10 m and 12 m building would likely provide a view of the horizon. From units 506 and 507, at best, the horizon may be visible. However, with a 10 or 12 m building, a significant band of water would be retained. The loss of water views reduces with height and units 606 and 607 would likely lose the wave area near the beach while retaining the more distant water views to the horizon. The loss of views, in my opinion, could be described as severe for Levels 4 and 5 and moderate for Level 6.

1. The appellant relies upon the following submissions, as I understand them.

(i) In comparing the proposed building with "a building that complies with the 10m and 12m height controls" the commissioner erred in law in failing to consider the impact of the proposed building, and in particular, whether it would comply with the townscape design principles in the Business Zone DCP. The commissioner thus did not apply the DCP, in breach of s 79C of the Act.

(ii)   A consequence of the commissioner's conclusion that the proposed development breached the relevant controls, whilst a compliant building would not, was that he decided that the view loss was unacceptable.

(iii)   The commissioner erred in law in [29] by adopting the conclusions of Mr Layman, whose conclusions had been held by the Chief Judge to be founded on an erroneous construction of cl 1.2 of the Business Zone DCP.

(iv)   The commissioner erred in law in that he failed to conduct a rehearing, but instead mostly adopted the evidence and findings of fact in the original hearing.

1. I am not persuaded by the appellant's submissions.

1. As to (i) the commissioner did in fact consider the impact of the proposed building and he did so in the context of the townscape design principle in the Business Zone DCP. At [22] the commissioner noted that no new evidence was provided at the remitted hearing that would alter his findings in the original judgment, which he then set out. I have already referred to this at [12] above, and set out the relevant passage from the commissioner's judgment:

The proposal will provide consistency with adjoining buildings, even accepting that the streetscape of North Steyne represents only a part of the broader concept of townscape. While the upper levels of the building will be visible from some locations in the Manly Town Centre, I generally accept that the differences in overall height with adjoining properties will not have any unacceptable impacts on the townscape. I do not accept that a building of 10 m and 12 m in height will offend the townscape objectives.

1. Neither do I accept the appellant's suggestion that it was either irrelevant or inappropriate to compare Tricon's proposed building with a building that would comply with the height controls. This has long been an accepted way of testing whether a departure from a development standard is unreasonable or unnecessary in a particular case: Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46, (2001) 130 LGERA 79 per Lloyd J at [26]. The facts do not support the appellant's submission that the commissioner failed to consider the proposal against the townscape principles in the Business Zone DCP, nor the submission that the commissioner failed to apply the DCP.

1. As to (ii), a fair reading of the commissioner's reasons shows that the breach of the height controls was not the reason why the commissioner decided that the view loss was unacceptable. The commissioner was required to take into consideration the separate set of controls in the Residential Zone DCP, which he did, as appears from the extract of the commissioner's reasons at [12] above. It is clear that Tricon's proposed building infringed these controls. This ground does not disclose any error of law. Moreover, as noted at [16] above, there was no error of law in comparing the proposed building with a compliant building.

1. As to (iii), it is correct to say that the conclusions of Mr Layman were based upon a misunderstanding of the height controls, as found by the Chief Judge in Tricon (No 2). At [29] in Tricon (No 2) the Chief Judge said:

The Council's construction at the hearing was put by the Council's expert planning witness, Mr Layman. The Council's construction was that if the circumstance in para (i) exists, that is to say, a lesser or greater height for the site is specified on the height control map, then, first, that lesser or greater height becomes the maximum wall height for the proposed building instead of the 15 m specified in cl 1; and secondly, the opportunity in para (ii) for a lesser or greater height that provides a better relationship to adjoining development in terms of fulfilling the Council's townscape objectives, does not arise because the height is fixed by para (i) (see Mr Layman's statement of evidence dated 21 July 2011 (Exhibit 3), pp 3-4, and Joint Planning Report, pp 9-10, as summarised in para 25 of the Commissioner's reasons).

1. This construction of paragraph (i) of cl 1.2 of the Business Zone DCP was found by the Chief Judge to be erroneous. The Chief Judge then said, at [59]:

The Commissioner's acceptance of the evidence of Mr Layman which was founded on an erroneous construction of clause 1 also involved error.

1. The reference to the conclusions of Mr Layman in [29] of the commissioner's reasons are in the context of view loss. In the same paragraph the commissioner made a finding: "that there is no obligation in the DCP to maintain a similar height to adjoining buildings". I accept the Council's submission that this was a finding which was open to the commissioner, a finding which was consistent with the position adopted by Mr Layman who assessed view loss by comparing a compliant building with Tricon's proposal. No error of law was made in the adoption of those conclusions which were a qualitative assessment of view loss.

1. Moreover, the commissioner came to his own assessment of view loss. The transcript shows that this is what the commissioner indicated to the parties what he would do when, in the course of hearing submissions on the question of view loss, the commissioner said: "but I'll ultimately make up my own mind based on by own observations". The commissioner then found that the view loss was unacceptable and in contravention of the Residential Zone DCP.

1. As to (iv), there is no error of law if a matter that is remitted for re-hearing proceeds on the evidence that was admitted in the original hearing as recorded in the transcript together with the exhibits and with such additional evidence as the parties may choose to adduce. I thus accept the Council's submission, which is self-evident, that no legal error is made when the facts earlier found are subsequently applied in a remitted hearing to the law as declared on an appeal from the decision which gave rise to those original findings of fact: Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; 126 LGERA 339 at [23] per Tobias JA (Handley and Ipp JJA concurring). The parties had expressly agreed to proceed upon the evidence adduced in the original hearing, supplemented by further written material.

1. The commissioner's judgment does not exhibit any error of law and it follows that this appeal must be dismissed.

Orders

1. The Court makes the following orders:

(1)   The appeal is dismissed.

(2)   The judgment and orders of the commissioner made on 1 June 2012 are confirmed.

(3)   The appellant must pay the respondent's costs.

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Decision last updated: 24 October 2012