Tricon Services Group Pty Ltd v Manly Council (No.3)

[2012] NSWLEC 1145

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tricon Services Group Pty Ltd v Manly Council (No.3) [2012] NSWLEC 1145

Hearing dates:

11 March 2012, re-opened hearing 25 May 2012

Decision date:

01 June 2012

Jurisdiction:

Class 1

Before:

Brown ASC

Decision:

1.The appeal is dismissed.

2.DA13/2010 for the demolition of all existing improvements and the construction of a mixed commercial/residential development at 46, 47 and 48 North Steyne, Manly is refused.

3.The exhibits are returned with the exception of exhibit 1.

Catchwords:

REMITTED PROCEEDINGS: s 56A appeal - interpretation of height controls - mixed commercial/residential development

Legislation Cited:

Environmental Planning and Assessment Act 1979

Cases Cited:

Barecall Pty Ltd v Manly C [2006] NSWLEC 67
Tenacity Consulting Pty Ltd v Warringah Council [2004] 134 LGERA 23
Tricon Services Group Pty Ltd v Manly Council [2011] NSWLEC 1271
Tricon Services Group Pty Ltd v Manly Council [2011] NSWLEC 253

Category:

Principal judgment

Parties:

Tricon Services Group Pty Ltd (Applicant)
Manly Council (Respondent)

Representation:

Counsel
Mr J Doyle, barrister (Applicant)
Mr M Staunton, barrister (Respondent)
Solicitors
Hunter Lawyers (Applicant)
HWL Ebsworth (Respondent

File Number(s):

10584 of 2010

Judgment

1. ACTING SENIOR COMMISSIONER: These are remitted proceedings following the decision of the Chief Judge on 16 December 2012 (Tricon Services Group Pty Ltd v Manly Council [2011] NSWLEC 253) (the appeal judgment) to allow three grounds (Grounds 1, 3 and pt 4) of an appeal under s 56A of the Land and Environment Court Act 1979. The appeal was in response to the Courts refusal of Development Application DA13/2010 for the demolition of all existing improvements and the construction of a mixed commercial/residential development at 46, 47 and 48 North Steyne, Manly (Tricon Services Group Pty Ltd v Manly Council [2011] NSWLEC 1271) (the original judgment).

1. Order 3 of the appeal judgment states:

3. The matter is remitted to the Commissioner for determination by the Commissioner in accordance with decision of the Court.

1. After the remitted hearing on 11 March 2012 and prior to the judgment being handed down, the applicant filed a Notice of Motion to re-open the hearing. The Notice of Motion was heard on 25 May 2012 where leave was granted to re-open the hearing for submissions on:

• the decision of Hussey C in Barecall Pty Ltd v Manly C [2006] NSWLEC 67 for the development at 42 North Steyne, Manly,
• the plans, orders and conditions of approval in Barecall, and
• photographs of the building approved in Barecall.

The appeal judgment

1. The successful grounds of appeal relate to the interpretation of the height control provisions in s1.2 of the Manly Development Control Plan for the Business Zone 1989 (Amendment 7) (the Business DCP) which state:

1.2 Building Heights

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;

(iii) the Council agrees to the addition of plant rooms, lift overruns, pitched roofs or the like.

2. The Council will only agree to increases in building height as detailed in 1(iii) above where it is satisfied that:

(i) the structures are designed as an integral part of the building in such a way as to appear an appropriate part of the overall townscape and not conflict with overall townscape objectives;

(ii) any roof space is not designed or used as habitable space.

3. In relation to item 1(ii) above the Council is seeking in its townscape objectives to ensure that the height of new buildings equate with both the overall height and the height of particular architectural details (e.g. floor levels, parapet details) of adjoining buildings and the important end-buildings in the particular street block. This will often require greater floor to ceiling heights than the minimum permitted in current building regulations. The use of internal mezzanine levels should be considered in order to achieve the desired height levels where necessary.

4. The Council will consider allowing new development to be constructed to the same building envelope as existing buildings on a site in order to maintain interest and variety provided the other objectives and requirements (including floor space ratios) of this plan are achieved.

1. There was agreement that for the site, the height control map provided for a height of 10 m at the front of the site and 12 at the rear of the site.

1. The main points of the appeal judgment are:

• clause 1.2.1 imposes a prohibition on the maximum wall height of a proposed building exceeding 15 m. The prohibition in cl 1.2.1 applies "except where" any the circumstances in sub pars (i) - (iii) exist (par 43),
• the circumstances in sub pars (i) - (iii) are not sources of alternative maximum wall heights to the 15 m height standard in cl 1.2.1 (par 43),
• the circumstances in sub pars (i) - (iii) refer to building height not wall height and as such cannot be substituted as a new maximum wall height for the 15 m specified in cl 1 (par 47),
• the existence of one of the circumstances in sub pars (i) - (iii) means that the building height will be regulated by that circumstance (par 48),
• in the event that one of the circumstances in sub pars (i) - (iii) apply, cl 1.2.1 does not provide that the maximum wall height shall be the height resulting from that particular circumstance (par 51),
• the application of sub par (i) has the effect of causing the prohibition on the maximum wall height of the building exceeding 15 m to not apply (par 54),
• the clause does not provide for a staged approach for firstly, substituting the maximum wall height of 15 m with the height specified in the height control map and secondly, evaluating whether an opportunity should be afforded to the proposed building to increase or reduce that height to satisfy the council's townscape objectives (par 55),
• the application of sub par (ii) is to be determined firstly, by its terms, secondly, cl 3 which expressly relates to sub par (ii) and thirdly, the townscape objectives in the Business DCP (par 56),
• the terms of sub par (ii) and cl 3 of section 1.2 for the Manly Town Centre locality stand in contrast to the building height control provisions for other localities, which in turn requires consideration of other planning considerations, including loss of views, in determining whether to permit a variation to the maximum height. (par 57,)
• in the application of sub par (ii), where a lesser or greater height might provide a better relationship to adjoining development in fulfilling the townscape objectives; this does not displace the 15 m height as the maximum wall height for the purposes of cl 1.2.1 (par 62),
• if sub par (ii) is engaged, the resulting height does not displace the height specified on the height control map, which applies by way of sub par (i). This results in the prohibition on the maximum of the proposed building exceeding 15 m not applying (par 63), and
• the effect of sub par (ii) and cl 3 of section 1.2 for the Manly Town Centre does not impose an obligation to match the wall height of the proposed development to adjoining development (par 67).

The applicants submissions

1. Mr Doyle submits that there are two determinative issues remaining to be considered in the remitted hearing and the re-opened hearing, in accordance with the appeal judgment; being height and view loss. The Court first determine whether the height of the proposed is reasonable having regard to the relevant controls before considering whether the resulting view loss is acceptable because the reasonableness of the proposal is the principal matter to be taken into account when assessing view loss. Importantly, Mr Doyle submits that neither the planning principle in Tenacity Consulting Pty Ltd v Warringah Council [2004] 134 LGERA 23 that addresses view loss or the Business DCP dictates that a development which exceeds a numerical control in the Business DCP must be refused. A breach of a numerical control does not necessarily mean that a development is unreasonable.

1. The matters that must be taken into consideration in addressing height and view loss are;

• the context of the surrounding built heights in the locality
• analogous prior determinations of the council, and the consequent consistency of decision-making,
• the policy objectives of the controls within the Business DCP,
• the numerical height controls in the height control map for the Manly Town Centre, and
• expert evidence on view loss.

1. Mr Doyle submits that an analysis of surrounding buildings to the south, north, west and along South Steyne reveal an inconsistency in the council's approach to the assessment height. The applicant has mimicked, as closely as possible, the approved overall relative levels for the adjoining site at 43-45 North Steyne to achieve equivalence in height between the two buildings. In approving this application, the council accepted that duplication of the height of the building with adjoining 42 North Steyne was appropriate. Similarly, the building at 49-53 North Steyne, in all material respects, marks the northern corner height of the block between the Corso and Raglan Street. To the west, the building at 1 Raglan Street has a 33.4 m roof height plus lift overrun and the Wave building is some 25.4 m high.

1. Elsewhere in the Manly Town Centre there are a number of building extending over a height between 12 m and 16 m, with a number at the higher end of the range. This needs to be compared to the Business DCP that provides that the front area of the buildings are to be only 10 m high. Mr Doyle submits that it is hard to see why the carefully considered sentiments adopted by the council in the past for the assessment of height, are not applied to the current development. The precedent of a 15 m building height has now been established by not one but two buildings in the block, notwithstanding the same planning controls that apply to the proposed development.

1. Mr Doyle further submits that approval of the proposed development is consistent with the aims and objectives of the Business DCP which, in part, requires applicants "to design a development having regard to how it will appear when viewed from and in conjunction with surrounding buildings..." and " to introduce building heights, setback, and other controls relating to the building form and height in order to achieve a consistent and coherent townscape appropriate to the locality".

1. The emphasis provided by the Business DCP on "townscape" further supports the approval of the proposed development where there is a constant approach of seeking to ensure that new buildings equate with the height of adjoining buildings. Without a sense of obligation to achieve the township objectives, there is no opportunity to ensure that new buildings equate with the height of adjoining buildings.

1. Mr Doyle provides an analysis of building heights within the Manly Town Centre and a comparison with the numerical height controls in the height control map. He submits that any new buildings, which complied with the height control map would produce absurd results and be at odds with the objectives of maintaining consistent heights in the Manly Town Centre.

1. The decision in Barecall for 42 North Steyne. provides further support for the councils approach of not consistently applying the 10 m and 12 m height requirements as the height of the building is around 15.2 m. The decision, which was supported by the council, allows for alterations and additions to the approved development by allowing 2 additional units on part of the upper level to replace the existing plant area and increase the floor area although without an increase in overall height.

1. In terms of view loss, Mr Doyle submits that compliance with the height requirement would require the removal of a complete floor from the proposed development and the social and public benefit of providing the additional units is a relevant consideration, particularly considering the housing targets for the Manly the local government area.

1. It must also be remembered that the affected views from the Waves building, at the rear, are obtainable from a building which is 10 m higher than the proposed building and which itself blocked the views from the building further to the west when it was constructed. This is material to the assessment of what is "reasonable" in terms of view loss in accordance with Tenacity.

The council submissions

1. Mr Staunton submits that the 15 m wall height requirement in cl 1.2.1(i) does not apply. Similarly, the requirements in cl 1.2.1(ii) that a lesser or greater height provides a better relationship to adjoining development in terms of fulfilling the council's townscape objectives are not engaged because the Court, in the original judgment, found that a development that satisfied the 10 m and 12 m height requirements will not have an unacceptable impact on the townscape (par 31). Having determined that the proposed development exceeds the permitted building height of 10 m at the front by 2.7 m and the 12 m requirement at the rear by 3 m, Mr Staunton submits that there is no justification for allowing an increase in the height.

1. Mr Staunton further submits that as His Honour, in the appeal judgment, accepted that even though the Manly Development Control Plan the Residential Zone 2007 - Amendment 1 (the Residential DCP) does not directly apply to the site, cl 4 in Sec C of the Business DCP incorporates by reference, certain provisions of the Residential DCP, including provisions for the maintenance of views in cl 4.3. This clause incorporates, by reference the planning principles in Tenacity. In this case, the portion of the building that breaches the maximum height limit causes the impact on view loss. The impact was assessed in the original judgement and found to be unreasonable based on the principles in Tenacity. Mr Staunton further submits that the proposed development contravenes objectives 4.3.1(a), 4.3.1(a). 4.3.1(b), 4.3.1(c), 4.3.2(a) and 4.3.2(a) of the Residential DCP.

1. For these reasons, the appeal should be dismissed and development consent refused.

Findings

1. The effect of the appeal judgment is that there are two relevant height controls, being the wall height control in cl 1.2 and the maximum building height in the "Maximum Building Height" section of the Business DCP. Clause 1.2 prohibits wall heights exceeding 15 m unless the exceptions in cl 1.2.1(i) and (ii) apply. In this case, the exception in (i) applies as heights of 10 m and 12 m are specified on the height control map for the site. This means that the 15 m prohibition on wall height does not apply however the maximum building height of 10 m and 12 m continue to apply.

1. The parties dispute whether sub par (ii) is engaged. Mr Staunton submits that sub par (ii) is not engaged because the Court, in the original judgment, found that a development that satisfied the 10 m and 12 m height requirements will not have an unacceptable impact on the townscape (par 31). Mr Doyle, on the other hand, submits that that sub par (ii) is engaged because the proposed development (with the breaches of the 10 m and 12 m height requirements) "provides a better relationship to adjoining development in terms of fulfilling the Council's townscape objectives". To support this contention, Mr Doyle relies on the inconsistent application by the council of the height requirement.

1. In considering the competing submissions, I agree with Mr Staunton. No new evidence was provided at the remitted hearing and the re-opened hearing that would alter my findings in the original judgment. For completeness and clarity, these findings (at par 31) state:

.......With the benefit of the site inspection, I accept that a building that satisfies the 10 m and 12 m height requirement would have only a minimal impact, if any, on the townscape. The views from different parts of North Steyne and the beach will be dominated by the street faade and upper levels. 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. While Mr Doyle raised the issue of inconsistency of the councils assessment of height in the Manly Town Centre, I am not satisfied that the evidence supports this for two main reasons. First, and of the large number of properties identified by Mr Doyle, only the council reports for the two properties to the south were provided to allow some understanding of the councils approach to the assessment of height. For the building at 43 - 45 North Steyne, that adjoins the site to the south, the council officers report (Exhibit F) states in the Development Control Plan Numerical Assessment that the proposed development complies with the 10 m and 12 m height requirement in the Business DCP. The report also addresses the approach, at the time, where additional height was allowed at the road frontage based on a 35° roof pitch and 3 m roof allowance, as it was consistent with approvals in the Business Zone at Balgowlah. As I understand, this approach to additional height no longer applies to the Manly Town Centre.

1. For the building at 42 North Steyne, one building removed from the site to the south, the council officers report (Exhibit 8) states in the Development Control Plan Numerical Assessment that the proposed development complies with the 10 m height requirement but was non-compliant with the 12 m requirement in the Business DCP, having a height of 12.5 m. The breach was addressed through condition 3 of the development consent that provides the "height of the roof deck is not to exceed 12 m, with the building plans notated accordingly". The officers report addresses the height above 12 m by stating:

.... The 14.69 m wall height to the rear of the roof deck is required to enclose the plant and storage facilitates located on the roof of the building. This is considered desirable in regards to the aesthetics of the development and meets the objectives of the Development Control Plan for rooftop structures. As this is to the rear of the development, it will not be visible from street level and is considered acceptable for this proposal

1. The building at 42 North Steyne was also the subject to the Barecall appeal after an application to modify the approval was refused by the council. In the original assessment report, the council officers report clearly distinguishes between the Business DCP height requirements of 10 m and 12 m wall height requirements and rooftop plant and storage facilitates. The Barecall appeal was allowed, with support from the council, on the basis that the impacts of the additional floor area (with no increase in overall height) created no additional unacceptable impacts in terms of townscape, bulk and view loss from adjoining properties, including the Waves building.

1. The interpretation of height, that excludes the rooftop plant and storage facilitates, is an interpretation that is reasonably open to the council, as is the use of this area for residential use on the basis that there are no additional unacceptable impacts. It could not be said that the 10 m and 12 m height requirements in the Business DCP were not considered in the assessment of the original application and the appeal.

1. Second, the terms of the height requirements in the Business DCP are clearly problematic given that the interpretation adopted by the Court, the interpretation adopted by the applicant and the interpretation adopted by the council in the original appeal were all rejected in the appeal judgment where His Honour adopted a different interpretation. In this context, it is difficult to reasonably support the argument that the council has inconsistently applied the height requirements in the Business DCP when the proper interpretation has only just been settled by the appeal judgment. I note the Business DCP has been operational since 1989, although with some amendments.

1. In summary, I am satisfied that a building that complies with the 10 m and 12 m height controls will satisfy the townscape objectives (par 3, p 3), the definition of townscape (p 5), F Design principles (p 6) and particularly objective 6 in the Business DCP (p 3) that states:

5. To introduce building heights, set back and other controls relating to building form and height in order to achieve a consistent and coherent townscape appropriate to the locality;

1. 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. I also accept the submission of Mr Staunton that the proposed development contravenes objectives 4.3.1(a), 4.3.1(a). 4.3.1(b), 4.3.1(c), 4.3.2(a) and 4.3.2(a) of the Residential DCP.

1. I have given no weight to Mr Doyles submissions that the proposed development would provide a positive social and public benefit by the additional units on the upper level above the 10 m and 12 m height requirements. While social impacts and the public interest are relevant considerations in the assessment of a development application, they are not matters of such significance, in this case, that they should dilute the importance of the height and view loss issues.

Orders

1. The orders of the Court are:

1.The appeal is dismissed.

2. DA13/2010 for the demolition of all existing improvements and the construction of a mixed commercial/residential development at 46, 47 and 48 North Steyne, Manly is refused.

3. The exhibits are returned with the exception of exhibit 1.

G T Brown

Acting Senior Commissioner

Decision last updated: 01 June 2012