Land and Environment Court New South Wales

• Medium Neutral Citation: MV Developments Pty Ltd v Manly Council [2014] NSWLEC 1083
• Hearing dates: 5-7 February 2014
• Decision date: 14 April 2014
• Jurisdiction: Class 1
• Before: O'Neill C

Decision

1. The appeal is upheld.

2. Development Application No. 297/2012 for a five storey residential flat building at 102 Bower Street and 12-13 Marine Parade Manly is approved, subject to the conditions of consent attached in Annexure A.

3. The exhibits, other than exhibits 1, 7, 8 and F, are returned.

• Catchwords: DEVELOPMENT APPLICATION: demolition of existing buildings and construction of a residential flat building; resident objectors; impact on views; bulk and scale; impact on visual and acoustic privacy and sunlight access of neighbours; impact on the foreshore scenic protection area; impact on the streetscapes of Bower Street and Marine Parade; car parking and excavation; whether the proposal is consistent with the design principles of SEPP 65 and the aims of SEPP 71.
• Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979
• Cases Cited: Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142; Tenacity Consulting v Warringah [2004] NSWLEC 140
• Category: Principal judgment
• Parties: MV Developments Pty Ltd (Applicant); Manly Council (Respondent)
• Representation: Mr Adrian Galasso SC (Applicant); Ms Colleen Schofield, Solicitor (Respondent); McKees Legal Solutions (Applicant); Pikes & Verekers Lawyers (Respondent)
• File Number(s): 10540 of 2013

Judgment

1 COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 297/2012 to demolish existing buildings and construct a four storey residential flat building containing six apartments (the proposal), at 102 Bower Street and 12-13 Marine Parade, Manly (the site), by Manly Council (the Council).

2 The appeal was subject to mandatory conciliation on 25 September 2013, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached during the conciliation phase, the conciliation conference was terminated on 24 October, 2013, pursuant to s 34(4) of the LEC Act.

Issues

3 The Council's contentions in the matter can be summarised as:

• The proposal would result in an unreasonable loss of highly valuable views, including views of the water, the land/water interface, Shelly Beach and the former St Patrick's Seminary from both the public domain and from private residential properties at 97, 99, 101, 103, 104 and 109 Bower Street. The view losses are caused by numerous non-compliances with the relevant planning controls and a lack of skilful design in mitigating these impacts.
• The proposal would have an adverse impact on the Foreshore Scenic Protection Area (FSPA).
• The proposal is located within density sub-zone 3, which permits four apartments on the site and the proposal is for six apartments.
• The proposal significantly exceeds the permissible floor space ratio (FSR) for the site and the additional floor space would have an unreasonable and adverse impact on adjoining properties and the public domain. The additional floor space adds to the scale of the building, obscuring views and resulting in a development that is not consistent with the existing and desired character of the area. The additional floor space reduced the amount of private open space and solar access within the development.
• The proposal exceeds the development controls for wall height and number of storeys, which would result in unreasonable impacts on the amenity of adjoining and nearby residential properties and the FSPA.
• The proposal does not provide adequate open space and landscaping and this would have an adverse impact on the amenity of the future residents.
• The proposal includes more car parking than is required and this will result in excessive excavation. The proposed car parking and access requirements arrangements are unacceptable.
• The proposal results in unacceptable reduced solar access to adjoining properties.
• The proposal results in unacceptable adverse impacts on the visual and acoustic privacy of adjoining properties and the proposed apartments.
• The proposal would have an adverse impact on the streetscapes of Bower Street and Marine Parade.
• The proposal is not consistent with the design principles of State Environment Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65).
• The proposal does not meet the aims of State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71).

4 The Applicant tendered amended plans (exhibit F) (the amended proposal) following the site view and the evidence of the residents. In summary, the amendments to the proposal are as follows:

• The eastern corner of the top level, Level 4 (the dining room of apartment 6) is deleted and replaced with an external terrace without a roof over;
• The kitchen and dining areas of apartment 6 are relocated within the apartment footprint;
• the external terrace of apartment 6, to the north-east of the living room, is deleted and replaced with a non-trafficable flat roof;
• an internal stair is added to apartment 6 and two bedrooms are located on Level 3;
• three car spaces are deleted on Level 3.

The site and its context

5 The site consists of two lots, 102 Bower Street and 12-13 Marine Parade, Manly. The site has a frontage to Bower Street of 21.49m and a frontage to Marine Parade of 16.795m. The site area is 1,189.7sqm.

6 102 Bower Street contains a two and three storey residential flat building containing four units and four car spaces. 12-13 Marine Parade has a three storey residential flat building containing six units, with no on-site parking.

7 The site falls towards the north-east, from Bower Street to Marine Parade and the upper part of the site, 102 Bower Street, also falls towards the south-east. Marine Parade is a public, pedestrian footpath that runs along the foreshore between Manly Beach and Shelly Beach.

The amended proposal

8 It is proposed to demolish the existing two residential flat buildings which contain a total of 10 units. The amended proposal is for a new residential flat building that occupies the amalgamated two lots and is four storeys at the Marine Parade elevation and a single storey at the Bower Street elevation, being five levels in total. The amended proposal has a landscaped courtyard on the south-eastern side, in the centre of the site.

9 The amended proposal consists of the following:

• Ground Floor: two x 2 bedroom apartments (apartments 1 and 2) overlooking Marine Parade;
• Level 1: one x 4 bedroom apartment (apartment 3) wrapping around the courtyard and overlooking Marine Parade;
• Level 2: one x 4 bedroom apartment (apartment 4) wrapping around the courtyard below and overlooking Marine Parade and an 8 car basement below ground at the Bower Street end of the site, accessed via a car lift from Level 3;
• Level 3: one x 4 bedroom apartment (apartment 5) wrapping around the courtyard below and overlooking Marine Parade, two bedrooms and bathrooms of apartment 6 accessed internally from apartment 6 over and a 4 car basement level accessed from the Bower Street driveway;
• Level 4: one x 4 bedroom apartment (apartment 6), driveway entry on the south-eastern side to the basement on Level 3 and pedestrian entry to the communal foyer on the north-western side of the site.

10 The Council's planning expert agreed that the amended proposal, to delete the terrace of apartment 6 on the north-western side of Level 4 and replace it with a non-trafficable roof, addressed the issue of overlooking of the apartments in 104 Bower Street. The Council raised the issue that the amended location of the terrace of apartment 6, on the south-eastern side of Level 4, overlooks the windows in the north-western elevation of 98-100 Bower Street and any privacy screening along the north-western side of the terrace of apartment 6 would interfere with views from the properties on the high side of Bower Street.

Planning Framework

11 The proposal is subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) and the Residential Flat Design Code (RFDC).

12 The proposal is subject to the provisions of State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71). The relevant aims of SEPP 71 at cl 2(1) are as follows:

(a) to protect and manage the natural, cultural, recreational and economic attributes of the New South Wales coast, and

(b) to protect and improve existing public access to and along coastal foreshores to the extent that this is compatible with the natural attributes of the coastal foreshore, and

(e) to ensure that the visual amenity of the coast is protected, and

(k) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area

13 The relevant matters for consideration under SEPP 71 at cl 8 are as follows:

(a) the aims of this Policy set out in clause 2,

(d) the suitability of development given its type, location and design and its relationship with the surrounding area,

(e) any detrimental impact that development may have on the amenity of the coastal foreshore, including any significant overshadowing of the coastal foreshore and any significant loss of views from a public place to the coastal foreshore,

(g) measures to conserve animals (within the meaning of the Threatened Species Conservation Act 1995) and plants (within the meaning of that Act), and their habitats,

(i) existing wildlife corridors and the impact of development on these corridors

14 The site is with the No. 2 Residential Zone, pursuant to the Manly Local Environment Plan 1988 (LEP 1988). The amended proposal is permissible with consent. The relevant objectives of the zone include:

(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

(e) to improve the quality of the residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations

15 Clause 17 of LEP 1988 requires that Council not grant consent to a development unless it is satisfied that the development will not have a detrimental effect on the amenity of the FSPA.

16 Clause 19 of LEP 1988, 'Development in the vicinity of an item of the environmental heritage', requires that Council not grant development consent for a development in the vicinity of an item of environmental heritage unless it has made an assessment of the effect which the development will have on the significance of the item and its setting.

17 Manly Local Environment Plan 2013 (LEP 2013) is now in force. Clause 1.8A of LEP 2013 is a savings provision requiring development applications, made before the commencement of the plan and not finally determined, to be determined as if the plan had not commenced. Section 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (EPA Act) requires that any proposed instrument that is or has been the subject of public consultation be a mandatory, relevant consideration in evaluating the proposal (Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 par 29).

18 Under LEP 2013, the site is zoned E4 Environmental Living. The proposal is permissible with consent. The objectives of the E4 zone are:

· 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.

19 Clause 6.5 'Terrestrial biodiversity' of LEP 2013 includes the following relevant objectives:

(a) protecting native fauna and flora, and

(c) encouraging the conservation and recovery of native fauna and flora and their habitats.

20 The proposal is subject to the relevant objectives and controls of Manly Development Control Plan for the Residential Zone 2007 - Amendment 2 (DCP 2007).

21 The following relevant definitions and interpretations are included in the Dictionary of DCP 2007:

Gross floor area means the sum of the floor area of each storey of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor and includes:

a) the area of a mezzanine with the storey, and

b) the habitable rooms in a basement

but excludes:

a) any area for common vertical circulation, such as lifts and stairs, and

b) any basement

i) storage, and

ii) vehicular access, loading areas, garage and services, and

c) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

d) car parking to meet any requirements of the consent authority (including access to that car parking), and

e) any space used for the loading or unloading of goods (including access to it), and

f) terraces and balconies with outer walls less than 1.4m high, and

g) voids above a floor at the level of a storey or storey above.

Maximum wall height is the greatest vertical distance from the existing natural ground level to the underside of the eaves [of] the top most floor.

Open space means that part of a site which is designed or designated to be used for active or passive recreation, access ways or as a garden. It does not include the area of roof top terraces. Open within a development of more than one dwelling may comprise both communal and private open space. Land must have a minimum horizontal dimension of 3m in all directions and a minimum area of 12sqm to be considered open space. Open space provided above ground level must have a minimum horizontal dimension of 3m in all directions. Open space is classified as hard or soft.

Soft open space means that portion of open space that is grassed or planted or is retained as bushland, is not covered by paving or similar material and is capable of absorbing stormwater runoff. Soft open space includes fixed masonry planter boxes with a minimum soil depth of 1000mm and a minimum horizontal soil dimension of 600mm which forms part of open space and is required to be a 3m or greater width.

Residential density is the ratio of the number of dwellings to the site area.

22 The relevant objectives of DCP 2007 are as follows:

b) To ensure that residential development protects and conserves the natural and cultural environment of the Local Government Area (LGA);

d) To increase the availability and variety of dwellings to enable population growth without having adverse effects on the character, amenity and natural environment of the residential area;

e) To identify the characteristics of the residential zone and ensure protection and to develop standards that encourage that protection;

f) To protect the amenity of existing and future residents;

g) To encourage ecologically sustainable development, which for the purposes of this clause means, development that meets the needs of the present without compromising the future by integrating the protection of ecological processes and natural systems with the social and economic need of the community;

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;

j) To maximise the provision of open space for all residential development;

n) To ensure protection of environmentally sensitive localities;

o) To encourage a responsible development approach resulting in design of architectural merit that interprets and complements site characteristics, streetscape and the surrounding built and natural environment.

23 Subclause 2.4.8 of DCP 2007, under 'The site', includes the following:

The design of development shall respond to the slope of the site, with the aim of minimising loss of views and amenity from public and private spaces. The lower side of the site, whether to the foreshore or a street, needs to integrate the design of the building with the topography by minimising its height and bulk. Large under-croft spaces can be avoided by integrating the building into the slope.

24 Subclause 2.4.16 of DCP 2007, under 'Building form', requires an assessment of the apparent bulk and design of a development to be considered and assessed from surrounding public and private view points and that the development should not detract from the scenic amenity of the area.

25 Subclauses 2.4.21 and 22 of DCP 2007, under 'Fences and walls', state that the siting, height and form of boundary fences and walls should reflect those dominant in the locality and adjacent properties and should not be erected where they would be in conflict with the character of the locality.

26 Clause 2.5 of DCP 2007 'Excavation and Earthworks', includes the following relevant objectives:

To retain the existing landscape character and limit change to the topography and vegetation of the Manly LGA by:

a) Limiting excavation "cut and fill" and other earthworks;

d) Limiting the height of retaining walls and encouraging the planting of endemic plant species to soften their impact.

27 The relevant controls for excavation and earthworks, at subcl 2.5.2 include limiting excavation to 1000mm below natural ground level with the exception of basements, which are to be contained within the footprint of the building and swimming pools; and maintaining natural, undisturbed ground level within 900mm of side and rear boundaries.

28 In assessing development applications, Council is required to apply the controls in a consistent manner while balancing the interests of the applicant with the community as a whole and it is therefore expected that development proposals will by and large comply with the numeric controls. Any departures need to satisfy the DCP objectives and provide a more desirable environmental outcome (Assessment Considerations p 24 DCP 2007).

29 The site is within sub-zone 3, as defined by the density sub-zone map and density sub-zone has the following development standards, relevant to this proposal (table 1):

• residential density of 1 dwelling per 250sqm;
• FSR 0.6:1;
• 55% open space with a minimum 3m dimension;
• 35% open space as permeable area;
• front setback 6m; side 1/3 wall height and rear 8m.

30 The wall height development standard for sloping sites is given by the sliding scale in Figure 4 of DCP 2007, based on the slope of the site.

31 Subclause 3.2.1 of DCP 2007 includes the following relevant objectives for residential density:

a) To regulate the number of dwellings in specific areas;

b) To promote a variety of dwelling types and residential environments in the LGA;

c) To assist in maintaining the character of the locality;

d) To limit the impact of residential development on existing vegetation and topography; and

e) To maximise the use of existing infrastructure.

32 Clause 3.5 of DCP 2007 'Building Height' includes the following relevant objectives:

b) To assist in controlling the bulk of buildings;

d) To minimise disruption to views from adjacent and nearby residential development and from public spaces;

e) To allow sunlight to penetrate private open spaces within the development site; and

f) To allow adequate sunlight penetration to private open spaces and windows to the living spaces of adjacent residential development.

33 Subclause 3.4.1 of DCP 2007 'Floor Space Ratio' includes the following relevant objectives:

a) To assist in controlling the bulk of buildings;

c) To ensure the scale of development is consistent with the existing and desired character of the residential areas;

d) To minimise disruption to views and loss of privacy to adjacent and nearby development; and

e) To provide sunlight access to private open spaces within the development and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings.

34 Subclause 3.5.4 of DCP 2007, 'Number of storeys' states that buildings shall not exceed two storeys unless specific physical site constraints warrant voiding this requirement.

35 Clause 3.6 of DCP 2007, 'Setbacks' includes the following relevant objectives:

a) To maintain and enhance the existing streetscape;

b) To provide privacy;

c) To provide equitable access to light and sunshine;

f) To accommodate planting, including native vegetation and endemic trees;

g) To control the nature of development adjoining open space lands and national parks so as not to unduly detract from the nature of those lands and to satisfy the provisions of SEPP 19 - Urban Bushland;

h) To maintain adequate space between buildings to limit impacts on views and vistas from private and public spaces.

36 The relevant controls for setbacks include the following:

3.6.2 Front setbacks shall relate to the front setbacks of neighbouring properties and the prevailing setbacks in the immediate vicinity. If there is not a consistent or established setback, a 6.0m setback applies.

3.6.4 Side setbacks shall provide sufficient access to the side of properties to allow for property maintenance, planting of vegetation and sufficient separation from neighbouring properties.

a) In all residential sub-zones, the setback between any part of a building and the side boundary must not be less than 1/3 height of the adjacent external wall of the proposed building.

37 Subclause 3.6.5(b) of DCP 2007 states the following in relation to walls on side boundaries:

Walls without windows may be constructed to one side boundary only and in accordance with Table 4, providing the objectives of this part can be met and the applicant can demonstrate no disadvantage to the adjacent allotment through increased overshadowing, or loss of view and no impediment to property maintenance.

38 Subclauses 3.6.7, 8, 9 and 10 of DCP 2007 state that rear setbacks must allow space for planting of vegetation, including trees, other landscape works and private and /or common open space and that the rear setback shall not be less than 8m. Development on any property with a frontage to the foreshore shall be setback a minimum of 15m from the mean high water mark. Development on any property with a common boundary with land zoned 'Proposed Open Space' (which includes Marine Parade), is to have a 6m setback or a rear setback of 8m.

39 Clause 3.7 of DCP 2007, 'Open Space and Landscaping' includes the following relevant objectives:

Open space and landscape design is a significant component in ensuring developments are environmentally sustainable. Proper planning and careful design can provide for the preservation of natural vegetation and wildlife habitat, the provision of recreation opportunities and contribute to stormwater management.

a) To provide open space for the recreational needs of the occupier and provide privacy and shade;

c) To encourage appropriate tree planting and maintenance of existing vegetation;

d) To enhance the amenity of the site, streetscape and surrounding area;

e) To retain and augment remnant populations of endemic native flora and fauna;

g) To maximise wildlife habitat and the potential for wildlife corridors;

h) To maximise water infiltration on-site and minimise stormwater runoff;

i) To maximise the landscape areas.

40 Controls for open space and landscape, at subclause 3.7.2 of DCP 2007, relevantly include the following:

c) If it can be demonstrated that there will be no loss of amenity to adjoining residents, up to 25% of open space can be provided above ground level by verandahs, balconies and terraces, providing these areas are not enclosed. The area of standalone roof top terraces cannot be included as open space.

d) For multi-dwelling developments, including residential flat buildings, this figure may be increased to 40%;

e) Open space provided above ground level must have a minimum horizontal dimension of 3m in all directions;

f) The use of locally occurring endemic plant species is preferred, as these assist:

i) in providing habitat for local fauna;

h) Soft open space is to be capable of supporting new endemic tree species that are typically expected to reach a height of 10m, with minimum tree numbers in accordance with Table 6.

41 Table 6 of DCP 2007 specifies that 3 endemic trees are to be provided on the site (based on the density sub-zone of the site and the site area).

42 Clause 4.3 of DCP 2007, 'Maintenance of Views', has the following relevant objectives:

a) To maintain continued access to existing views to the city, harbour, ocean, bushland, open space and recognised landmarks or buildings from both private property and public places (including roads and footpaths);

b) To minimise loss of views from adjoining or nearby properties and public places, whilst recognising development may take place in accordance with the other provisions of this Plan; and

c) To maintain and share views with existing and future Manly residents.

43 The relevant controls for the maintenance of views, at subcl 4.3.2, are as follows:

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 and variations to side boundary setbacks, including zero setback will not be considered if they contribute to loss of primary views from living areas.

44 DCP 2007 adopts the Land and Environment Court's planning principle for view assessment, at Figure 14 (Tenacity Consulting v Warringah [2004] NSWLEC 140 pars 26-29) (Tenacity planning principle). The Tenacity planning principle is as follows:

26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

45 Clause 5.6 of DCP 2007, 'Threatened Species and Critical Habitat' identifies the precinct that is the habitat for the Long-nosed Bandicoot, which includes the site. Any development proposal within this precinct is to be accompanied by a 'seven part test', pursuant to the provisions of s 5A of the EPA Act.

46 Clause 5.8 of DCP 2007, 'Development in the Foreshore Scenic Protection Area', requires that the affect of the proposal on views of the harbour or ocean from any road, park or land zoned for open space be considered and includes the following relevant requirements, at subcl 5.8.2:

a) Minimise the contrast between the built environment and the natural environment;

b) Maintain the visual dominance of the natural environment;

c) Maximise the retention of existing vegetation.

The evidence

47 The hearing commenced with a view of the site, a view of the site from Bower Street and Marine Parade and a view of the site from the following neighbouring residences:

• 1/104 Bower Street
• 2/104 Bower Street
• 3/104 Bower Street
• 109 Bower Street
• 1/103 Bower Street
• 2/103 Bower Street
• 1/101 Bower Street
• 2/101 Bower Street
• 3/101 Bower Street
• 1/99 Bower Street
• 2/99 Bower Street
• 97 Bower Street
• 3/98-100 Bower Street

48 Height poles were erected on the site to indicate the height of the proposal.

49 Nine resident objectors provided evidence at the commencement of the hearing. Their concerns can be summarised as:

• the impact of the proposal on their views of the harbour, Cabbage Tree Bay, Shelly Beach, the Fairy Bower/Shelly Beach headland and Long Reef headland;
• loss of light in addition to loss of district views at 1/104 Bower Street;
• lack of planting along the north-western boundary and presentation of the north-western elevation at the boundary when viewed from 104 Bower Street;
• the lack of open space on the site;
• the proposal exceeds the controls for the site in DCP 2007 and therefore it should not be granted consent;
• the proposal, if approved, will set a precedent for future development;
• the proposal will impact on the Long-nosed Bandicoot population.

Expert evidence

50 Expert evidence was provided on behalf of the applicant by Mr Andrew Minto (planning), Mr Steve Kennedy (architectural design and urban design) and Mr Mark Couston (ecology).

51 Expert evidence was provided on behalf of the Council by Mr Steven Layman (planning) and Mr Jacob Sife (ecology).

Ecology

52 The North Head population of the Long-nosed Bandicoot (Perameles nasuta) (the bandicoots) is listed in Schedule 1, Part 2 of the Threatened Species Conservation Act 1995 (NSW) (TSC Act) as an endangered population.

Evidence

53 The ecology experts agreed on the following in relation to the bandicoots:

• the Bower Street area is more important for foraging than the Marine Parade area and the experts agreed that it is unlikely that the bandicoots are able to ascend the stairs on the south-eastern side of 102 Bower Street;
• the private open space area between the two existing buildings on the site has an area of approximately 250sqm and exhibits evidence of low levels of foraging activity by the bandicoots;
• the low level of foraging activity on the site is due to a number of physical barriers on the site including gates, stairs and walls, which restrict the movement of the bandicoots through the site;
• based upon the assessment of significance carried out in accordance with Part 1, s 5A of the EPA Act, the proposed development will not have a significant impact on the bandicoot population.

54 According to Mr Sife, if the proposal were to set a precedent and the bandicoots are completely excluded the on the eastern hill between Bower Street and Marine Parade, this would result in a significant impact on the population. However, Mr Sife conceded in oral evidence that there does not seem to be movement across the whole of the site between Bower Street and Marine Parade.

55 Mr Sife said in oral evidence, in relation to the habitat of the bandicoots, that common areas of soft landscaping are preferable to private courtyards with soft landscaping, because an individual owner may consider that a bandicoot in their private courtyard is a pest and because common areas present less physical barriers and obstacles for the bandicoots.

Submissions

56 Counsel for the applicant submitted that the applicant would be willing to amend the proposal, rather than have the appeal dismissed, if in the opinion of the Court an amendment is warranted on the basis of the evidence.

Findings

57 I accept the agreement of the experts, that based upon the assessment of significance carried out in accordance with Part 1, s 5A of the EPA Act, the proposed development will not have a significant impact on the bandicoot population.

58 I accept the agreement of the experts that there are a number of physical barriers existing on the site which currently deter the bandicoots from using the site as a habitat corridor between Bower Street and Marine Parade, such as the stairs on the south-eastern side of 102 Bower Street, as the bandicoots are unable to ascend the long flight of stairs and the gates either side of the existing building at 12-13 Marine Parade. I also accept that there is some evidence of bandicoot foraging activity on the site.

59 While I accept Mr Sife's opinion that a corridor of soft landscaping through the site may be of benefit to the bandicoots because it would provide a habitat corridor between Bower Street and Marine Parade, it would be, in my view, almost impossible to achieve any development on the site without physical barriers because the site is long, relatively narrow and steep, with a fall of approximately 12.5m from top to bottom (exhibit C, p 7). As a soft landscaped corridor through the site is not feasible, the next best option, with regard to the bandicoots, is to maximise the area of accessible soft landscaping available for foraging.

60 I accept the agreed evidence of the experts that Bower Street is the more important area for bandicoot foraging. During the site view, the experts pointed out evidence of bandicoot foraging on the adjoining site, in the shallow soft landscaping of approximately 200mm of soil over the garages. From this evidence, I conclude that soft landscaping, even if it is over a concrete slab, still provides valuable habitat for the bandicoots.

61 The amended proposal (exhibit F) provides a garden bed at grade with the Bower Street footpath, with a horizontal garden bed behind, accessible to bandicoots at the north-western end. Between the garden beds fronting Bower Street and the Bower Street elevation, apartment 6 has a private courtyard, which consists partly of soft landscaping.

62 Apartment 6 has two private outdoors areas, a terrace on the eastern corner of the floor plan (6.5m x 5.5m), accessed from the living and dining rooms and a courtyard on the south-western, Bower Street, frontage (2.8m x 6m), accessed via sliding doors from bedrooms 1 and 2 and a sitting room and enclosed by a 1.4m high fence (Exhibit F, dwg A411 Rev C South-West Elevation). The openings onto the south-western courtyard are potentially a security risk, as the open doors are visible from the public domain and the only barrier between the open doors and the public domain is the 1.4m high fence. Furthermore, the main living areas of apartment 6 are at the north-eastern side of the apartment, without a direct line of sight to the openings onto the south-western courtyard. It is my view that all of the Bower Street front setback could be better utilised to provide replacement foraging area for the bandicoots, and on the basis of Mr Sife's evidence that common areas of soft landscaping are preferable and the experts agreement that Bower Street is the more important area for foraging, the front setback to Bower Street is to be common to the development, rather than the private courtyard of apartment 6.

63 The architectural and landscape drawings are to be amended to delete the 1.4m high fence in the Bower Street setback and replace the fence with an external screening device, such as louvres, set back in line with the roof over, to provide security and privacy to apartment 6 and to retain the sliding doors, if desired. The Bower Street front setback is to consist of soft landscaping, accessible to bandicoots and these areas are to be common to the development, without any unnecessary physical barriers. The upper garden bed is shown as RL14.77 (exhibit F, dwg A104), however the area over the setdown in the Level 3 basement roof slab is RL14.22 (exhibit F, dwg A411) and the garden bed over the slab setdown need only be the minimum depth suitable for the bandicoots, 200-300mm (or as nominated by the Council's ecology expert). An upper area of garden at RL14.77 is required where the slab below is not setdown and provision will need to be made in the profile of the slab for 200-300mm of soft landscaping on top. This will result in a tiered garden, with three different levels within the Bower Street setback. Where there are level changes, a generous access area should be incorporated to allow the bandicoots to travel from the footpath to a garden bed or from one garden bed to another. These amendments are to be shown on the revised architectural and landscape plans.

64 The amended proposal provides a 3m deep paved terrace opening from the living areas of apartments 1 and 2, with landscaping within a private courtyard, extending to the Marine Parade boundary and divided by a fence between the two courtyards. There are side access paths on either side of the site, with gates adjacent to the Marine Parade boundary, to provide common access to and from Marine Parade, for the residents of the development.

65 It is my view that the soft landscaped area of the Marine Parade setback could also be better utilised to provide replacement foraging area for the bandicoots, common to the development. The architectural and landscape drawings are to be amended to limit the depth of the private courtyards of apartments 1 and 2, to 3m deep. The side gates may be positioned at the site boundary, however they are to be raised 150mm off the ground to allow the bandicoots access to the landscaped area and side passages. The soft landscaping between the fence and Marine Parade is to be accessible to bandicoots, via openings in the fence. The water feature on the south-eastern side of apartment 2 is to be replaced with soft landscaping. These amendments are to be shown on the revised architectural and landscape plans.

66 The design of these amendments and the proposed plantings shown on the landscape plan are to be to the satisfaction of Council's ecology expert.

Planning and Urban Design

View loss

Evidence

67 Following the tender of the amended proposal (exhibit F), the planning experts agreed that the amended proposal is an improvement generally in terms of its impact on views of Cabbage Tree Bay and Shelly Beach from private properties on the high side of Bower Street.

68 The planning experts rated the view loss from each property, using the Tenacity planning principle qualitative descriptions of view loss, as follows:

	Mr Minto	Mr Layman
1/104 Bower Street	district views only, Tenacity planning principle not applicable	devastating impact on portion of Shelly Beach headland visible next to hipped roof of 12-13 Marine Pde
2/104 Bower Street	negligible, no loss of any iconic elements of the view, entry walkway is a secondary access to units 2 and 3	devastating impact on view of Shelly Beach from entry walkway
3/104 Bower Street	sitting area on entry walkway is currently obscured by tree on 102 Bower St	devastating impact on view of Shelly Beach from entry walkway
109 Bower Street	minor, retains view of Shelly Beach	Exh F improves retention of view of Marine Pde walkway
1/103 Bower Street	minor, not unreasonably impacted, view from bedroom and southern part of terrace retained	moderate
2/103 Bower Street	minor	minor
1/101 Bower Street	negligible	minor
2/101 Bower Street	negligible	minor, but impact reduces on higher levels
3/101 Bower Street	no impact
1/99 Bower Street	moderate, exh F provides a minor improvement, loose land/water interface	moderate, loose Long Reef headland view from kitchen and terrace, exh F marginal improvement, severe on landmark element
2/99 Bower Street	maintains the majority of Long Reef headland view	minor to moderate, exh F results in a marginal improvement
97 Bower Street	negligible, the Long Reef headland view from the bedroom terrace is preserved by exh F; no loss of iconic	minor, agree that the Long Reef headland view from the bedroom terrace is preserved by exh F

69 According to Mr Layman, in relation to the properties at 99, 101, 103 and 109, 'the impacts [of the proposal on existing views] vary but in the worst cases are moderate overall' (exhibit 4, p3).

70 In Mr Layman's opinion (exhibit 4, p4):

the parts of the proposal causing the greatest view loss do not comply with the wall height (and building height under draft MLEP 2013), number of storeys or side or rear setback controls... Having regard to the non-compliance of the proposal with the planning controls it is considered that even moderate impacts are not acceptable and the view sharing is not achieved.

Findings

104 Bower Street

71 104 Bower Street is a two storey residential flat building with a partial lower ground floor at the rear of the building, as the land is sloping.

1/104 Bower Street

72 The lower ground floor at the rear of the building at 104 Bower Street is apartment 1.

73 The first step in the Tenacity planning principle is an assessment of the views to be affected. 1/104 Bower Street has district views from the side and rear windows, between the existing buildings on the site and a glimpse of Fairy Bower headland from one position at the rear when looking between the roofs of the residential flat buildings at 14 Marine Parade and 12-13 Marine Parade.

74 The second step of the Tenacity planning principle is to consider from what part of the property the views are obtained and whether the view is from a standing or sitting position. The views are obtained across the side boundary. The glimpse of the headland is from a standing position.

75 The third step in the Tenacity planning principle is to assess the extent of the impact for the whole of the property. The outlook from apartment 1 is of the side elevation of the existing building on 102 Bower Street, the driveway access to the residential apartment building below and the residential apartment buildings fronting Marine Parade, with the garden to the rear and to the rear of 102 Bower Street forming part of that outlook. While I appreciate that the views from 1/104 Bower Street are highly valued by the occupier, they consist of a district view and a glimpse of the headland, neither of which are iconic, or highly valued, when using the Tenacity planning principle criteria. I consider that the view impacts on 1/104 Bower Street can be characterised as minor to moderate, using the qualitative view loss description of the Tenacity planning principle, as the third step requires an assessment of the extent of the impact for the whole of the property, not just the view that is affected. I disagree with Mr Layman that obscuring the glimpse of the Fairy Bower headland from a single, standing position can be described as devastating, because this does not assess the extent of the impact for the whole of the property, it assesses the extent of the impact on that glimpse of the headland.

76 The district views to the south-east from 1/104 Bower Street will be obscured by the amended proposal because it amalgamates the two sites between Bower Street and Marine Parade and locates part of the development across what is currently the back yard of 102 Bower Street, between the two existing buildings on the site. I note that the residential flat building, currently under construction and approved by Council at 110 Bower Street (exhibit 10), also amalgamated two lots between Bower Street and Marine Parade for a single development, which steps down the site and fully occupies the centre of the site from top to bottom. It is the process of amalgamating two sites and constructing a single development, with new bulk in the centre of the site, that results in the loss of district views across the side boundary from 1/104 Bower Street. Any development in the centre of the site would obscure views to the south-east from 1/104 Bower Street, as the location of apartment 1 on the lower ground floor, well below the level of Bower Street, makes it vulnerable to loosing its outlook over a side boundary and which is acknowledged by the Tenacity planning principle as being more difficult to protect. The only way to preserve the district views from apartment 1 would be to preserve the open space in the centre of the site and this would, in my view, impose an unreasonable constraint on the development potential of the site.

77 The flat roof of the proposal, fronting Marine Parade, is lower than the ridge height of the existing residential flat building at 12-13 Marine Parade, however the flat roof will extend further towards the side boundary than the angled roof of the existing residential flat building and it will obscure the triangular glimpse of the Fairy Bower headland from apartment 1. For reasons set out later in the judgment, I am satisfied that the form and height of the portion of the amended proposal fronting Marine Parade is of an appropriate height, bulk and scale, within its context and meets the objectives of the controls. I am also satisfied that the proposal is a reasonably skilful design. Therefore, balancing the reasonableness of the proposal with the vulnerability of the glimpse from a single standing position in apartment 1, I am satisfied that the amended proposal is an appropriate response to the constraints of the site and that it is not sufficiently detrimental to the whole of the outlook from apartment 1 that the amended proposal should be further amended or refused.

2 and 3/104 Bower Street

78 Apartments 2 and 3 share an entry walkway on the south-eastern side of the residential flat building at 104 Bower Street, from which there are views of Shelly Beach and the Fairy Bower headland at various locations along the walkway.

79 Apartment 2 has district views from the side windows, which includes a partial view of the former St Patrick's Seminary on the hill, to the south. The two rooms of apartment 2, at the rear of the building, have views of the harbour, Shelly Beach and the Fairy Bower headland over the top of the roof of 12-13 Marine Parade.

80 I accept and agree with Mr Minto's evidence that the amended proposal will have at most, a negligible impact on apartment 2, as there is no loss of any iconic elements of the views from within the apartment.

81 However, the views of Shelly Beach from the walkway entry to apartments 2 and 3 will be obscured by the amended proposal. Again, it is the process of amalgamating two sites and constructing a single development, with new bulk in the centre of the site, that results in the loss of views, across the side boundary, from the walkway. The Tenacity planning principle acknowledges it is more difficult to protect views across side boundaries. The only way to preserve the views from the walkway would be to preserve the open space in the centre of the site and this would, in my view, impose an unreasonable constraint on the development potential of the site.

82 The impact of the amended proposal on the views from 104 Bower Street are confined to apartment 1 on the lower ground floor at the rear of the building and the walkway on the south-eastern side of the building. The amended proposal preserves the iconic views from apartment 2, at the rear of the building on the ground floor and from the apartments on the upper floor. I am satisfied that this represents a fair balance in terms of view sharing between the adjoining properties. To maintain the existing views from apartment 1 and the walkway to apartments 2 and 3, across the centre of the site would, in my view, unreasonably compromise the development potential of the amalgamated site.

109 Bower Street

83 The experts agreed on site that the original proposal retained the views of Shelly Beach and the Fairy Bower headland from the front porch of 109 Bower Street and the amended proposal resulted in the retention of the majority of the view of the Marine Parade walkway, to the east.

84 I accept the agreement of the experts and I am satisfied that the amended proposal would have, at most, a negligible impact on the existing view from 109 Bower Street and that there is no loss of any iconic elements of the view.

103 Bower Street

85 103 Bower Street is a residential flat building with a basement garage at street level. Apartment 1 is located on the ground level, above the basement garage, with a large terrace on the north-eastern elevation, opening from the living areas and a bedroom on the south-eastern side. Apartment 2 is located over two levels, above apartment 1, with a terrace on the first floor on the south-eastern side, above the centre of the terrace of apartment 1. There are views from both terraces, across the front boundary and over the buildings on the low side of Bower Street.

1/103 Bower Street

86 The views from the terrace of apartment 1 include Shelly Beach, the Fairy Bower headland and views of the water, including the surf break. The view is available from the entire width of the terrace and from the bedroom window.

87 The experts disagreed on the extent of the impact for apartment 1. In Mr Minto's opinion, the impact of the amended proposal on apartment 1 is minor, as the iconic elements of the view are not affected and in Mr Layman's opinion, this impact is moderate.

88 The changes to the view from the terrace of apartment 1 will be caused by the differences between the profile of the flat roof of the portion of the amended proposal fronting Marine Parade and the hipped roof of the existing residential flat building fronting Marine Parade at 12-13 Marine Parade. The flat roof of the amended proposal is lower than the ridge of the hipped roof of the existing residential flat building, however the flat roof will obscure a triangular portion of the water view, currently visible on either side of the hipped roof of the existing building, while a triangular section of the water view currently obscured by the apex of the ridge of the hipped roof will become visible from the terrace of apartment 1.

89 The amended proposal has a greater setback from its south-eastern side boundary, shared with 98-100 Bower Street, than the existing residential flat building at 12-13 Marine Parade, which will increase the width of the narrow view between the two buildings fronting Marine Parade.

90 For reasons set out later in the judgment, I am satisfied that the form and height of the portion of the amended proposal fronting Marine Parade is of an appropriate height, bulk and scale, within its context and meets the objectives of the controls. The amended proposal preserves the iconic views from apartment 1 and I am satisfied that this represents a fair balance, in terms of view sharing between the site and apartment 1, on the high side of the street opposite the site.

2/103 Bower Street

91 The experts agreed that the amended proposal has a minor impact on the views from 2/103 Bower Street, caused by the difference between the profiles of the flat roof of the portion of the amended proposal fronting Marine Parade and the hipped roof of the existing residential flat building, as described in paragraph 89 above.

92 I accept the agreement of the experts and I am satisfied that the amended proposal would have, at most, a minor impact on the existing view from 2/103 Bower Street and that there is no loss of any iconic elements of the view.

101 Bower Street

93 101 Bower Street is a Federation era house which has been converted into a residential flat building, with a four storey addition on the north-eastern side, facing Bower Street. There is a basement carpark accessed from Bower Street, with an apartment on each level over. Each apartment has its living areas and a terrace within the addition, with an outlook across the front boundary, over the buildings on the low side of Bower Street.

94 The views from the living rooms and terraces of the apartments at 101 Bower Street include Shelly Beach, the Fairy Bower headland and views of the water, including the surf break.

1/101 Bower Street

95 The experts agreed on the extent of the impact for apartment 1, which was characterised as negligible by Mr Minto and minor by Mr Layman. The changes to the view from the terrace of apartment 1 will be caused by the difference between the profiles of the flat roof of the portion of the amended proposal fronting Marine Parade and the hipped roof of the existing residential flat building, as described in paragraph 89 above.

96 For reasons set out later in the judgment, I am satisfied that the form and height of the portion of the amended proposal fronting Marine Parade is of an appropriate height, bulk and scale, within its context and meets the objectives of the controls. The amended proposal preserves the iconic elements of the views from 101 Bower Street and I am satisfied that this represents a fair balance, in terms of view sharing between the site and apartment 1.

2 and 3/101 Bower Street

97 The experts agreed that the impact of the amended proposal on views from apartments 2 and 3 reduced when compared to apartment 1, as their terraces are on higher levels.

98 I accept the agreement of the experts and I am satisfied that the amended proposal would have, at most, a minor impact on the existing views from apartments 2 and 3 and that there is no loss of any iconic elements of the views.

99 Bower Street

99 99 Bower Street is a residential flat building which has been converted from a semi-detached dwelling and shares a party wall with 97 Bower Street. 99 Bower Street has a garage at the Bower Street level and a terrace to apartment 1, over the garage. Apartment 2 has a balcony on the south-eastern elevation, over the terrace of apartment 1. There are views from both the terrace and the balcony, across the front boundary and over the buildings on the low side of Bower Street, to the Long Reef headland in the distance.

100 The experts agreed that the extent of the impact of the amended proposal for apartment 1 is moderate. The experts agreed that the amended proposal results in an improvement in the retention of the view from the terrace over the garage, however the Long Reef headland view will be lost.

101 The experts agreed that the extent of the impact for apartment 2 on the upper level is minor, Mr Layman characterising it as minor to moderate. I accept the agreement of the experts.

102 For reasons set out later in the judgment, I am satisfied that the form and height of the portion of the amended proposal fronting Marine Parade is of an appropriate height, bulk and scale, within its context and meets the objectives of the controls. The impact of the amended proposal on the views from 99 Bower Street are confined to apartment 1 on the ground floor, as the amended proposal preserves the views from apartment 2, on the upper floor. Being on the ground level, above the garage, the views from apartment 1 are more vulnerable to being obscured by development on the lower side of Bower Street. The view of Long Reef headland, from the terrace over the garage at 99 Bower Street, is to the north and across the site at an angle. Bower Street falls to the south-east, so that the properties to the south of the proposal, on the lower levels, are particularly vulnerable to loosing part of their views to the north, over the site, than the properties further up Bower Street. It is also the process of amalgamating two lots and constructing a single development on the site, with new bulk in the centre of the site, that results in the loss of views across the centre of the site. It would impose an unreasonable constraint on the development potential of the site to have to retain the open space in the centre of the site. I am therefore satisfied that the amended proposal results in a fair balance in terms of view sharing between the site and 99 Bower Street.

97 Bower Street

103 97 Bower Street is a contemporary semi-detached dwelling, which shares a party wall with 99 Bower Street. 97 Bower Street has a double garage at the Bower Street level, a terrace on the ground level over the garage, opening from the bedroom and study, a terrace on the first floor opening from the living areas and a terrace of the roof with a swimming pool. There are views from all the terraces, across the front boundary and over the buildings on the low side of Bower Street.

104 The experts agreed that the amended proposal retained the view of the Long Reef headland from the terrace on the first floor, however the view of Long Reef, from the ground floor terrace off the bedroom and study, would be obscured by the amended proposal.

105 The experts disagreed on the extent of the impact for 97 Bower Street. In Mr Minto's opinion, this impact is negligible, as the view is not impacted on terrace on the first floor, opening from the living areas, nor the roof terrace. In Mr Layman's opinion, this impact is moderate.

106 The extent of the impact must be assessed for the whole of the property and not just for the view that is affected (Tenacity planning principle par 28). In my opinion, the overall the impact is minor, because the existing views from the living room, the living room terrace and the roof terrace are preserved and there is an impact on one iconic element, the Long Reef headland, from the bedroom terrace on the ground floor. For reasons set out later in the judgment, I am satisfied that the form and height of the amended proposal is appropriate within its context and meets the objectives of the controls, while not complying with all the numeric controls. The view of Long Reef headland, from the bedroom terrace over at 97 Bower Street, is to the north and at an angle across the site. Bower Street falls to the south-east, so that the properties to the south of the proposal, are particularly vulnerable on the lower levels to loosing part of their views to the north, across the site, than the properties further up Bower Street. In considering these circumstances and taking in consideration the impact of the proposal on the whole of the property and not just the view that is affected, I am satisfied that the amended proposal represents a fair balance in terms of view sharing between the site and 97 Bower Street.

Residential density

Evidence

107 The experts agreed on the following (exhibit 7, p 8):

• the density controls of DCP 2007 permit 4.75 dwellings on the site which means 5 dwellings would comply with the density control;
• there are 10 dwellings existing on the site with a total of 20 bedrooms; and
• the proposal results in a reduction in residential density on the site (agreed in oral evidence).

108 The experts disagreed whether or not the density of the proposal is appropriate.

109 Mr Layman considers that it is not appropriate to compare the density of the proposal to the existing density and justify the 6 apartments on the basis that it is an overall reduction in the number of apartments on the site compared to the existing 10 apartments. Furthermore, the proposal replaces 10 small dwellings with 6 large dwellings (exhibit 7, p 9).

110 Mr Kennedy considers that if the two apartments on the ground level were amalgamated into one large apartment, the proposal would comply with the density control for the site and yet this would have no impact on the overall footprint, bulk or scale of the proposal. In his opinion, the site can accommodate 6 dwellings because it is steep and the dwellings are stacked on top of each other and the proposal is similar in scale and character to its context (exhibit C, p 7).

Findings

111 The experts agreed that 5 dwellings on the site would comply with the density control in DCP 2007 and so the question before the Court is whether or not an additional dwelling is acceptable and achieves the objectives of the density control.

112 I am satisfied that the sixth dwelling is acceptable and meets the objectives of the density control and that some flexibility is warranted, for the following reasons:

• I accept Mr Kennedy's evidence that the two apartments on the ground level could be amalgamated to form one large apartment, in a similar configuration to the apartments on the upper levels and in that case the development, whilst being for 5 apartments and complying with the density control, would occupy the same envelope as the proposal. The two smaller apartments on the ground level are preferable to one large apartment, as it is desirable to provide some variety of dwelling types within the development.
• I accept Mr Kennedy's evidence that the proposal can offer an increased number of dwellings on the site as a function of the steep slope, which allows a series of dwellings to be stacked on top of each other.
• The proposal will result in an overall reduction in the total number of dwellings on the site.
• I am satisfied that the proposed density is appropriate for the site and context.

Floor space ratio (FSR)

Evidence

113 Mr Layman estimated the FSR of the proposal to be 1.19:1 (exhibit 7, par 2.4.3.1 and oral evidence) and Mr Minto estimated the FSR of the proposal to be 1.04:1 (exhibit B, p 16). The difference between them was whether or not some lobby and storage areas should be included in the floor space calculation on the basis of the definitions (exhibit 7, pars 2.4.3.1-3).

114 In Mr Layman's opinion, the car parking is partly above ground and this increases the overall bulk of the proposal and he considers that 'it would be preferable to excavate further into the subject site and reduce the visual bulk of the building' (exhibit 4, par 39). According to Mr Layman (exhibit 4, par 20):

[the proposal] 'includes an excessive level of gross floor area and the resulting bulk is unreasonable having regard to view loss, visual bulk impacts on neighbours and the FSPA location. The magnitude of floor area proposed, along with design of the car parking levels generally above ground, directly results in excessive visual bulk and associated environmental impacts such as view loss and overshadowing.'

115 According to Mr Kennedy, there is a significant fall across the site and this allows the site to accommodate a series of dwellings stacked on top of each other. While the car parking basement is technically above ground level, the abrupt drop in the landform means that the basement is located in an area that is below the Bower Street level and under the single storey section of the proposal fronting Bower Street (exhibit C, p 8). In Mr Kennedy's opinion, the proposal provides an acceptable fit for its site and context for the following reasons (exhibit C, p 8):

• the proposal is similar in scale to, if not smaller than, that of its neighbours;
• the proposal maintains the current roof profile of the existing development on the site;
• the proposal substantially retains existing view lines across the site;
• the proposal maintains the existing street character of buildings 'stepping down' towards Bower Lane; and
• the proposal meets the objectives of the FSR control.

116 According to Mr Minto, the proposal locates the additional floor area in the centre of the combined site, which will not result in any unacceptable impacts (exhibit B, p 16).

Findings

117 The permitted FSR for the site, in Density Subzone 3, is 0.6:1 and this is retained in LEP 2013 and the LEP 2013 definition for calculating FSR is the same as DCP 2007. I accept Mr Layman's evidence that the FSR of the proposal is of 1.19:1, which means that the amended proposal is likely to be somewhere in the vicinity of 1.19:1.

118 The amended proposal incorporates Mr Layman's suggestion of reducing the car parking by 3 spaces so as to only provide the number of car spaces that are required and no more and part of apartment 6 has been relocated to the area previously occupied by the 3 car parking spaces on Level 3 (exhibit F, dwg A103 Rev J). This reduces the overall bulk of the amended proposal by deleting the northern corner of apartment 6.

119 I agree with Mr Minto's evidence that the amended proposal locates the majority of the floor area in the centre of the combined site, which is currently the backyard of 102 Bower Street. This is a function of amalgamating the two lots to form the site. I also agree with Mr Kennedy's evidence that the form and bulk of the proposal provides an acceptable fit for its site and context for the following reasons:

• The amended proposal is a single storey at the Bower Street elevation, compared to 104 Bower Street which is two storeys and 108 Bower Street adjacent to 104 Bower Street, which is over four storeys high.
• The four storey presentation of the amended proposal along the Marine Parade elevation is a similar height and scale to the existing row of buildings in this lower section of Marine Parade.
• The amended proposal roughly maintains the current profiles of the existing buildings on the site, while 'filling in' the open space between the two existing buildings.
• The amended proposal substantially retains existing view lines over the site from the dwellings on the high side of Bower Street.
• The amended proposal maintains sunlight access to private open spaces within the development and maintains adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings. 104 Bower Street has a large set back from the shared side boundary to allow for the driveway to the building in front at 14 Marine Parade and the planning experts agreed that there is no midwinter overshadowing of 104 Bower Street between 9am and 3pm (exhibit 7, par 2.9.1.1). The planning experts agreed that the amended proposal achieves if not exceeds a minimum of 3 hours of solar access in midwinter to 98-100 Bower Street (exhibit 7, par 2.9.1.3).

120 For these reasons, I am satisfied that the amended proposal meets the objectives of the FSR control and that some flexibility of the control for FSR is warranted.

Building height and number of storeys

Evidence

121 The proposal is four storeys at the Marine Parade end of the site and Mr Layman accepts there is a contextual justification for more than two storeys at this end of the site (exhibit 7, par 2.5.1.1).

122 The experts agreed that wall height is defined in the DCP as the greatest vertical distance from the existing natural ground level to the underside of the eaves of the topmost floor (exhibit 7, par 2.5.1.4). In Mr Layman's opinion, the maximum wall height control is 7.9m for the north-west elevation and the maximum wall height of that elevation is 10.6m, which represents a non-compliance of one storey (exhibit 7, par 2.5.3.2). In Mr Minto's opinion, the maximum wall height control is 8m for the north-western elevation and 7.8m for the south-eastern elevation (exhibit 7, par 2.5.3.3).

123 Mr Minto notes that the proposal has a flat roof without a parapet and without a hipped or gabled roof, both of which would have made the building higher, so including the additional parapet height of 600mm in the maximum height control is reasonable (exhibit 7, par 2.5.3.4). In his opinion, the departures in relation to wall height are attributable to the sloping nature of the site and because the amended proposal maintains the existing height of the row of buildings fronting Marine Parade (exhibit 7, par 2.5.3.5). According to Mr Minto, the amended proposal will not result in any unreasonable impacts on the amenity of the adjoining properties or upon the character of the foreshore (exhibit B, par 5.6). He notes that it was a conscious decision to make the portion of the proposal fronting Bower Street lower than what would be permissible in order to ensure that the proposal did not unreasonably impact upon views from the high side of Bower Street and to locate the four storeys fronting Marine Parade as this height is comparable to the adjoining properties (exhibit B, par 5.6.3).

124 Mr Kennedy considers that the four storey height of the proposal fronting Marine Parade is appropriate because it reflects the existing context and has a similar overall bulk and built form to the existing buildings along Marine Parade and because it has been achieved without unreasonable impacts on the streetscape or the amenity of adjoining properties (exhibit C, p9).

Findings

125 I accept and prefer Mr Kennedy and Mr Minto's evidence regarding the justification for the four storeys at the Marine Parade end of the site, which is the portion of the amended proposal that exceeds the building height control and the storeys control. The Marine Parade elevation will present as a four storey building. The section of Marine Parade that includes the site is relatively flat and consists of a row of buildings that create a distinctive street wall along Marine Parade. Where the topography and the pathway start to rise outside 17 Marine Parade to the north-west, up to the promontory at the southern end of Manly Beach, the buildings fronting Marine Parade start to step up the hill as well as step back from Marine Parade. In contrast, the 'street wall' fronting the flat section of Marine Parade (including the site) is a consistent height, with buildings of three and four storeys. For this reason, the amended proposal is an appropriate response to its immediate context. A building that stepped back on the upper levels, as the new development at 110 Bower Street does further up the hill, would create a break in the established street wall along the flat section of Marine Parade.

126 The amended proposal is a similar height to both adjoining neighbours at Marine Parade, 98-100 Bower Street to the south-east and 14 Marine Parade to the north-west. The amended proposal provides suitable side setbacks on the upper floors, Levels 1 to 3, at the Marine Parade end of the site, which allows for a narrow view between the buildings from Bower Street towards the harbour and achieves a sense of separation between the amended proposal and the adjoining buildings fronting Marine Parade.

127 For these reasons and the reasons provided at paragraph 119 of the judgment, I am satisfied that the proposal meets the objectives of the wall height control.

Setbacks

Evidence

128 The experts agreed that the Bower Street setback of the building is compliant. In Mr Layman's opinion, the setback of the basement structure at the Bower Street frontage is not compliant (exhibit 7, par 2.6.1.1). The basement structure projects above ground at the southern corner and 1.5m on the north-western, side boundary (shown on exhibit A, dwg A203).

129 The experts disagreed whether the setback of the amended proposal from Marine Parade is acceptable. According to Mr Layman, the proposal does not comply with the 15m minimum setback from the mean high water mark, however he notes that neither do the adjoining buildings (exhibit 7, par 2.6.3.2). According to Mr Minto, the Marine Parade setback is approximately 2.5m greater than the setback of the existing building and it is consistent with the prevailing setback of the adjoining properties (exhibit 7, par 2.6.3.5).

Findings

130 Following the changes made to the Bower Street setback by the amended proposal and the changes nominated in paragraph 65 above, I am satisfied that the projection above ground of the basement roof slab, at the southern corner, within the Bower Street setback (approximately 1.2m above the lower garden bed adjacent to the footpath) is acceptable, as it is to be covered in soft landscaping and it will appear as a terraced garden, because of the setdown in the slab over basement Level 3. The basement structure is below the existing ground level on the western corner of the site.

131 As noted by Mr Layman, the top of the roof slab of basement Level 3, at RL14.77 is approximately 1.5m above ground at the north-eastern end on the boundary (exhibit A, dwg A203), where it steps back from the shared boundary and a garden bed is provided adjacent to the driveway to 14 Marine Parade. I note that the setdown in the slab which forms the roof slab over basement Level 3, at RL14.22 on top of the slab, is shown on the amended proposal drawing set (exhibit F, dwg A411 Rev C, South-west elevation, A103 Rev J and A412 Rev A), but not shown on the earlier drawing set (exhibit A, dwg A210). The setdown in the slab should continue along the north-western boundary for a depth of approximately 500mm internally, where the basement structure extends to the side boundary, so that the top of the roof slab of basement Level 3 is a maximum of 1200mm above existing ground level at the north-eastern end, instead of 1500mm, on the side boundary. This would result in an internal floor to ceiling height in basement 3 of 2.2m for a narrow section adjacent to the north-western boundary. On Level 4, the entry path is 1.6m wide between the north-western elevation at the lobby and the garden bed along the side boundary. This pathway is to extend to the entry gate and the garden shown outside bedroom 2 of apartment 6 is to be deleted and landscaping provided over the setdown in the slab and adjacent to the north-western boundary, so that the narrow garden bed extends from the gate to the lobby on Level 4 along the shared side boundary (exhibit F, dwg A104 Rev I). A fence in a lightweight material is to be provided at the edge of the path. Following these amendments, the basement structure will not have a detrimental impact on the amenity of the neighbours or the public domain.

132 I am satisfied that the setback of the amended proposal to Marine Parade is appropriate and meets the objectives of the setback controls, for the following reasons:

• The amended proposal is further setback from Marine Parade than the existing building at 12-13 Marine Parade. This will improve the oblique views from the balconies/terraces of adjoining residential flat buildings;
• The setback of the amended proposal from Marine Parade matches the setbacks of adjoining buildings;
• For the reasons set out in par 126 above, the amended proposal is an appropriate contextual fit in the row of buildings along this section of Marine Parade;
• The changes to be made to the Marine Parade setback (described in par 65) will provide a semi-private, communal garden space which will contribute amenity and privacy to apartments 1 and 2 and will enhance the public domain on Marine Parade.

Open space and landscaping

Evidence

133 The experts agreed that the proposal provides approximately 36% of the site area as open space (exhibit 7, par 2.7.1.3).

134 According to Mr Kennedy, each unit is provided with substantial private open space and planting is focused on providing privacy (exhibit C, p 11).

135 The experts agreed that the proximity of the amended proposal to the beaches and coastal walks is of some relevance in considering the amended proposal's non-compliance with the open space control (exhibit 7, par 2.7.1.1).

Findings

136 Every apartment has a large terrace opening directly from the living room and so I accept Mr Kennedy's evidence that the proposal provides a generous area of private open space for each apartment. I also accept the agreement of the experts that the proximity of the proposal to the beaches and coastal walks provides significant amenity for future occupants, both in terms of outlook from every apartment within the amended proposal and in terms of opportunities for active and passive recreation. For these reasons, it is not necessary to provide communal open space for recreation on the site.

137 I am satisfied that following the changes to be made to the Bower Street and Marine Parade setbacks (pars 63 and 65), that the bandicoots will have access to areas on the site for foraging.

Visual privacy

138 The Council raised the issue that the amended location of the terrace of apartment 6 (exhibit F, dwg A104), on the south-eastern side of Level 4, overlooks the north-western windows of the apartments in 98-100 Bower Street and any privacy screening along the north-western side of the terrace of apartment 6 would interfere with views from the properties on the high side of Bower Street.

Findings

139 The floor level of the terrace of apartment 6 is likely to be 100mm below the floor level of apartment 6, which is RL14.77. The terrace of apartment 6 aligns with the western corner of 98-100 Bower Street and the two buildings are separated by approximately 7.3m. There are bedroom windows on the north-western facade of 98-100 Bower Street. The flat roof of 98-100 Bower Street is RL 15.12 at the western corner (exhibit F, dwg A104).

140 The terrace of apartment 6 is 450mm below the level of the flat roof of 98-100 Bower Street. Anyone standing on the terrace will look out over the roof of 98-100 Bower Street. The view of the ocean, Shelly Beach and the Fairy Bower headland is to the north-east and east. Many of the terraces, balconies and windows of dwellings and apartment buildings in the immediate area overlook each other, as each vie for a share of the views. As the terrace of apartment 6 is not directly opposite and at the same level as a window at 98-100 Bower Street, I am satisfied that the 7.3m horizontal separation, coupled with the vertical separation and a translucent balustrade, is sufficient to ensure a reasonable level of privacy within the bedrooms along the north-western facade of the upper level of 98-100 Bower Street and that no additional screening should be required above the balustrade. Any additional screening above the standard height of a balustrade may interfere with some of the views from the properties on the high side of Bower Street and negate the gain of the amendment to delete the eastern corner of apartment 6 (exhibit F).

141 As the balustrade around the terrace of apartment 6 is shown as glass on the architectural drawing (exhibit F, dwg A104), the south-eastern section of the balustrade is to be translucent (and not transparent) glass, to ensure that it is not possible to look down through the balustrade towards the windows of 98-100 Bower Street, from a position further back or sitting on the terrace or in the living or dining rooms of apartment 6. This is to be noted on the amended architectural drawing.

Conclusion

142 For the reasons set out in the judgment, I am satisfied in regard to the following:

• The amended proposal will not have a significant impact on the North Head Long-nosed Bandicoot population and that by maximising the communal areas of accessible soft landscaping as described in pars 63 and 65, the new foraging areas will replace the existing foraging areas on the site.
• The proposal represents a fair balance between realising the development potential of the site and preserving the iconic views from the properties on the high side of Bower Street and 104 Bower Street.
• The proposed density of the amended proposal is appropriate for the site and context.
• The form, bulk, height, massing and appearance of the proposal provides an acceptable fit for the site and context.
• The amended proposal provides sufficient private open space and communal landscaped areas and the proximity of the site to beaches and coastal walks provides significant amenity, including a magnificent outlook from all the apartments and opportunities for active and passive recreation in close proximity to the site.
• The development will not have a detrimental effect on the amenity of the FSPA and the proposal is consistent with the design principles of SEPP 65 and the aims of SEPP 71.

143 I am satisfied that in balancing the interests of the applicant with those of the community as a whole, the proposal satisfies DCP objectives and achieves a desirable environmental outcome.

Directions - amended plans

144 Directions were handed down on 5 March, 2014, requiring the following:

• The applicant was to file and serve architectural plans, which incorporated the amendments shown in exhibit F.
• The architectural and landscape plans were to be amended in accordance with this decision (at pars 63, 65, 131 and 141) and the amended landscape plan was to be to the satisfaction of the Council's ecology expert.
• The parties were to file agreed conditions, which reflected this decision and include updated plan numbers, revision numbers and dates.

145 Amended architectural and landscape plans and conditions of consent, in accordance with the directions, were filed with the Court on 11 April 2014.

Orders

146 The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 297/2012 for a five storey residential flat building at 102 Bower Street and 12-13 Marine Parade Manly is approved, subject to the conditions of consent attached in Annexure A.

3. The exhibits, other than exhibits 1, 7, 8 and F, are returned.

Susan O'Neill

Commissioner of the Court

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Decision last updated: 13 May 2014