Angolet Pty Ltd v Central Coast Council

Subject Site

1. The Site is identified as being Lots 19 and 20 DP7861, known as 5 and 7 (or 5-7) Church Street, Terrigal and is located within the Terrigal Village Centre on the Development Incentives Application Map under the LEP 2014.
2. The Site has a very slight grade falling from Church Street (RL 4.09m AHD) towards Hudson Lane (RL 2.72m AHD).
3. The Site is currently a construction site containing a partially completed shop top housing development.

The Locality

1. Church Street is located one street behind Terrigal Esplanade which has frontage to Terrigal Beach. Terrigal Beach and the foreshore are areas of high scenic value. As discussed later in this judgment views to the beach and foreshore are highly valued by residents and the potential impact of the modification application on those views is a key issue in the proceedings.
2. Development surrounding the Site consists mainly of commercial premises, shops and restaurants of varying heights. The Crown Plaza is located on the southern side of Kurrawyba Avenue.
3. A medical centre is located on the northern side of the Site, and a bank is situated on the southern side. Terrigal Police Station is located further to the north of the Site.
4. A 6-storey development (Development Consent No. DA49519/2016) has been approved on the corner of Kurrawyba Avenue and Church Street diagonally opposite the Site. This development has commenced construction.
5. To the west of Church Street and Pine Tree Lane the land slopes steeply to shape the landform known as the 'Terrigal bowl' an area which contains significant residential development overlooking Terrigal Town Centre.

Public submissions

1. The modification application was notified to neighbouring property owners and the public between 15 January and 15 February 2021. At the conclusion of the notification period a total of 62 public submissions were received.
2. Following the refusal of the modification application the Applicant requested a review of the determination pursuant to s 8.2 of the EPA Act. The request for review included minor amendments to the design of the upper floor unit including amended setbacks and roof design. The application for review of the determination was notified from 22 October 2021 to 19 November 2021. A total of 42 submissions were received.
3. During the assessment of the request for review the Applicant filed amended plans with the Council which were notified from 3 December 2021 to 24 January 2022. A total of 31 submissions were received.
4. Further, at the commencement of the hearing a number of members of the public addressed the Court onsite detailing their concerns with the modification application and providing access to their properties for the Court to view their stated concerns regarding view loss, overshadowing, privacy impacts and the relationship of the proposed building to existing residences.
5. The concerns raised in the submissions can be summarised as follows: 1. Concern about the excessive height of the development with the additional level sought in the modification application. 2. Concern that the application seeks to further vary the maximum height and FSR standards. 3. That the development that will result from the modification application is excessive in bulk and scale. 4. Approval of the modification will set a precedent for the remainder of Church Street, effectively setting a new maximum height level which will have devastating view impacts for residents. 5. The impact of the development on the Terrigal Town Centre. 6. Potential for the creation of wind tunnelling effects. 7. Lack of parking provision for the development and potential to exacerbate the existing parking deficit in the town centre. 8. Impacts on adjoining residents from the construction process, including traffic impacts from deliveries, noise, dust, the untidy visual appearance of the Site etc. 9. Concern that the repeated modification of the development application is delaying completion of the development and exacerbating the period of construction impacts for neighbours. 10. Loss of outlook and views from adjoining properties. These impacts are further detailed and particularised commencing at [32]. 11. Loss of property values as a result of view loss from the height and FSR exceedance gained by the development. 12. Loss of light and direct solar access from overshadowing. 13. That the development that will result from the modification application is inconsistent with the character of the locality. 14. Loss of privacy and increased overlooking to adjoining development from the upper level. 15. Inconsistent with the character of the local area. 16. Lack of consultation undertaken with the local community. 17. Lack of public benefit from the development. 18. Lack of open space provision.
6. In determining the development application, I have read and considered the submissions received by the public as required by s 4.55(2)(d) of the EPA Act.
7. I am satisfied that the modification application has been notified in accordance with the requirements of the Gosford Development Control Plan 2013 (DCP 2013, meeting the requirements of s 4.55(2)(c) of the EPA Act.

Jurisdictional prerequisites:

1. The modification application indicates that the type of modification proposed is a modification in accordance with s 4.55(2) of the EPA Act. That sub-section is as follows: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
2. Accordingly, s 4.55(2) of the EPA Act imposes 4 separate jurisdictional prerequisites which must be satisfied before the power to modify a development consent can be exercised. These are: 1. The Court must be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (s 4.55(2)(a)). This prerequisite is discussed below commencing at [23]. 2. The Consent authority must consult with the relevant Minister, public authority or approval body (within the meaning of Div 4.8 of the EPA Act) in respect of any condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body (s 4.55(2)(b)). This prerequisite is not relevant in this appeal as no such condition was imposed on the original consent. 3. The modification application must be publicly notified in accordance with the regulations, if the regulations so require, or a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent. This prerequisite has been satisfied as noted at [14-20]. 4. Lastly, the consent authority must consider any submissions made concerning the proposed modification following its public notification. In determining the modification application, I have considered each of the submissions received by the Council following the public notifications of the modification application in determining the application.

Is the development substantially the same?

1. As noted above, s 4.55(2)(a) of the EPA Act imposes an express statutory limitation on the consent authority's power to modify the original consent in that it can only be modified if the consent authority is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.
2. The Respondent contends that the jurisdictional test at s 4.55(2)(a) of the EPA Act is not met for the following reasons: 1. The proposed modifications that are the subject of the proposed modification application will result in a development that will not "essentially or materially have the same essence" (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 ("Vacik") at [8]) as that which was originally approved. 2. The proposed modifications to the original consent materially and adversely alter the physical form, envelope, and overall appearance of the approved building. The Respondent argues this occurs in three ways. Firstly, by further exceeding the development standards for height and FSR. Secondly, by further varying the storey and setback controls in DCP 2013 and finally on the basis that the variations contribute to height, bulk and scale that exceeds that envisaged by the planning controls. 3. The resultant increase in the overall height and floor space, as a matter of fact and degree, results in a radical transformation of the approved building form approved in the original consent in terms of its appearance and adverse visual impacts. 4. The bulk, scale and massing of the development is significantly altered by the proposed modification when compared with the development approved in the original consent, noting that the new full storey will be readily visible on all four elevations. In addition, the intensity of the use is substantially altered due to the proposed increased number of units which result in adverse amenity impacts for those in neighbouring developments. 5. The cumulative effect of the proposed changes results in a building with a different overall scale, bulk, form, appearance, intensity of use and visual impact on adjoining neighbours. Whilst the building remains a shop top housing development, its envelope, height, setbacks, impacts and the precedent it establishes is materially different. (Respondent's written submissions 14 April 2023)
3. The comparison required under s 4.55(2)(a) of the EPA Act involves a comparative assessment, qualitative as well as quantitative, of the development as originally approved, and the proposal to modify the development (Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [55], [56] and [58]). This question was the subject of expert evidence and broadly the position of the experts in the proceedings is summarised in the following.
4. Mr Sneddon relies on the findings of the Court in Vacik that firstly the term 'substantially' should be given the meaning of 'essentially or materially the same essence' and secondly that to 'modify' means to 'alter without radical transformation'. Applying this reasoning Mr Sneddon concludes that the development resulting from the modification application does not involve radical transformation from the development approved in the original consent for the following reasons:

Qualitative

• The original approved use of shop top housing is not changed by the modification application.
• The bulk/scale/massing of the development approved in the original consent is not significantly changed. Neither are the approved building footprint or the internal layout or the overall building setbacks.
• Pedestrian access, vehicular access and parking arrangements are unchanged.

Quantitative

• The number of business premises and carparking spaces is unchanged.
• An increase in residential units from 12 units to 13 units is minor.
• The increase of 312m² in gross floor area (GFA) is minor.
• The originally approved maximum height of the proposed building was RL 20.35 to the lift overrun, and 19.8 to the roof. The modification application would increase the height of the proposed building to RL 23.63 to the lift overrun, and 23.00 to the roof.

1. In contrast Mr O'Donnell argues that the test of substantially the same development is not met by the modification application. He submits that the proposed modifications significantly alter the bulk, scale and massing resulting in an altered appearance of the building. Further, he argues the intensity of use is increased along with increased impacts on amenity of neighbouring properties. His reasoning can be summarised as:

Qualitative

• The bulk, scale and massing of the upper level of the building is significantly altered and creates an obvious increase to the visual massing and appearance of the building when compared with the approved development. The additional storey is readily visible on all four of the building's elevations.
• The additional floor proposed by the modification application extends outside the approved building envelope and contributes unnecessarily to additional visual bulk and scale impacts.
• The increased height and floor space results in a radical transformation of the building form and its appearance in the streetscape.
• There are additional amenity impacts arising from the modification application, in particular view loss and visual impacts, that were not relevant to the development approved in the original consent.

Quantitative

• The building envelope is increased by an additional storey which occupies the vast proportion of the building footprint.
• There is an increase in the number of residential units from 12 to 13.
• The increased height and GFA is substantial when considered proportionally. The modification application proposes an increase of 16% to the approved height and proposes 17% more GFA.
• The modification application proposes an increase in the width of the approved terraces at Level 5, reducing the approved setbacks. The Church Street setback is reduced by 1.7m, Hudson Lane by 1.1m and the side setbacks each by 0.6m.

Findings

1. The test is that stated in the statutory provision, see [21], that the modified development "is substantially the same development" as the originally approved development (Arrage v Inner West Council [2019] NSWLEC 85 [18]-[19]).
2. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified, pursuant to s 4.55(2)(a) of the EPA Act, for the following reasons: 1. In applying the statutory test, it is necessary to compare the development that would result from the modification application against that which was approved under the original consent. The original consent comprised 2 shops, 12 residential units and carparking. The original consent relied on variations to the height of building standard and the maximum FSR, cll 4.3 and 4.4 of LEP 2014 respectively. 2. Since the grant of the original consent it has been modified as follows: 1. Modification Application DA/52083/2017/A sought to modify the original consent by converting the approved first floor car parking to residential units and relocating that car parking to the basement. This application was withdrawn. 2. Modification Application DA/52083/2017/B (Modification B) modified the original consent as follows: 1. Changing the use of the ground floor premises from 'shop' to 'business premises'; 2. Revised internal layout on Levels 1, 2, 3 and 4 to accommodate structural and service requirements; 3. Amend car parking layout on Levels 1 and 2 to increase car parking spaces from 23 to 36 spaces; 4. Reduction of GFA of ground floor business premises from 315m2 to 258m2 and provision of 92m2 storage for the ground floor business premises; 5. Revision of ground floor entry foyer; 6. Changes to floor levels to achieve 3.2m floor to floor for residential levels; 7. Revised internal layout of units 2 and 6 on Level 3; 8. Revised internal layout to unit 7 on Level 4 to reduce from 3 to 2 bedrooms and amended planter box depth and privacy screens to suit; 9. Revised layout of unit 11 on Level 5 and location of privacy screens; 10. Revised building elevations to reflect internal changes; 11. Minor increase in height of the lift overrun from RL 20.35m AHD to RL 20.43m AHD, an increase of 80mm. (Exhibit 1) 1. On 4 September 2020 Modification B was approved by the Council. 2. The modification application before the Court principally proposes the addition of one additional unit, and alteration of terraces on Level 5, within an already approved shop top housing development. The modification does not propose a change in the use for which the consent was granted, nor does it extend that use to an extent that changes it from being development of substantially the same character. 3. I am not persuaded by the evidence of Mr O'Donnell that the increase in the scale and form of the building that would result from the modification application is sufficient to fall outside the test of it being substantially the same when compared to the development resulting from the original consent. Nor am I satisfied that the modification would result in a radical transformation of the building form and its appearance in the streetscape. 4. In my view, comparing the development that would result from the approval of the modification application to the original consent, supports a conclusion that the development is quantitatively or qualitatively substantially the same development.
3. As required by s 4.55(2) of the EPA Act I have formed the positive opinion of satisfaction that the development as proposed to be modified is substantially the same development as the development for which consent was originally granted.
4. Finally, consistent with the decision Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) LGERA 114; [2022] NSWCA 227 at [64 - 77] there are no discernible reasons given by the consent authority in the grant of the original consent.

Are the view loss impacts from the modification application acceptable?

1. The Respondent contends that the increase in built form proposed in the modification application, through the construction of an additional storey, and reduced side setbacks, will create unacceptable direct impacts on private views. In particular the Respondent identifies the following affected properties:

• Units 11, 12, Level 4, No. 15 Kurrawyba Avenue
• Units 15 and 16, Level 5, No. 15 Kurrawyba Avenue
• Units 5, 6 and 7 in 10 Church Street
• Unit 8, 9, 10 and 11 in 9-11 Cadell Street

Relevant Planning Controls

1. The subject site is zoned B2 Local Centre, the proposed development (commercial premises and shop top housing) is permitted with consent. The objectives of the zone, which are required to be considered in determining the application are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To provide for residential uses, but only as part of a mixed use development. • To ensure that development is compatible with the desired future character of the zone. • To promote ecologically, socially and economically sustainable development. • To ensure that the town centres of Erina and Woy Woy are recognised as providing a higher level, and greater diversity, of services and facilities to serve a wide population catchment from numerous localities and as key public transport nodes, secondary to Gosford City Centre. • To ensure that village centres such as Avoca, East Gosford, Ettalong Beach, Kincumber, Lisarow, Niagara Park, Terrigal, Umina Beach, West Gosford and Wyoming are recognised as providing a broad range of services and facilities to serve the population of the locality. • To ensure that villages are recognised as providing local level services and facilities and are developed at a scale that reflects their population catchment and as a focus for public transport routes. • To ensure that the different roles of villages are recognised with some villages being key tourist destinations with boutique activities in addition to serving the needs of local residents, while other villages are purpose-built centres to serve the needs of the local population. • To encourage the residential population of villages and town centres to contribute to the vitality of those locations.
2. The maximum height standard applicable to the subject site is 18.5 AHD: cl 4.3 of LEP 2014. The modification application seeks a maximum roof height of RL 20.35 (noting the lift has a proposed maximum height of RL 23.63m AHD). The development proposed in the modification application has an overall exceedance of the height standard at the lift some 5.1m. The overall height of the proposed development the subject of the modification application, in comparison to the maximum height standard, can be seen in the following extract of the architectural plans: Section 1 extracted from Exhibit A
3. The objectives of the height standard are: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to establish maximum height limits for buildings, (b) to permit building heights that encourage high quality urban form, (c) to ensure that buildings and public areas continue to receive satisfactory exposure to sky and sunlight, (d) to nominate heights that will provide an appropriate transition in built form and land use intensity, (e) to ensure that taller buildings are located appropriately in relation to view corridors and view impacts and in a manner that is complementary to the natural topography of the area, (f) to protect public open space from excessive overshadowing and to allow views to identify natural topographical features.
4. The maximum FSR standard applicable to the subject site is 1.8:1. The proposed development seeks an FSR of 2.24:1.
5. Consistent with the line of decisions from North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163, a written request pursuant to cl 4.6 of LEP 2014 to vary the height or FSR standards is not required for a modification application, however the provisions remain a matter for consideration on merit under s 4.15 of the EPA Act.
6. Gosford Development Control Plan 2013 (DCP 2013) contains the following relevant controls:

• 4.3.6 Height form and scale of building

Objectives "a. Establish the primary controls to encourage financially-viable redevelopment that addresses scenic quality, character and residential amenity b. Limit both the visual impact of multistorey buildings upon the scenic quality of this coastal setting, and the potential for obstruction of significant coastal and ocean views that are available from surrounding residential hillsides c. Vary the maximum building height for each development in proportion to the size and frontage of the development site. d. Maintain the established pedestrian friendly scale of two storey facades facing all streets e. Promote a sunlit outdoor environment as the setting for a vibrant village centre, maintaining existing levels of sunlight along footpaths during the middle of the day f. Ensure that village centre dwellings will receive satisfactory levels of midwinter sunlight g. Encourage variations in building form that create a varied silhouette or profile, and that contribute to a regionally-distinctive architecture"

Controls "a. New buildings and alterations or additions to existing buildings shall not exceed the maximum building height specified in Clause 4.3 and 4.3A of Gosford LEP 2014. b. Where the maximum building height specified in the LEP is indicated in Table 1 the additional provisions specified in the corresponding row in Table 1 apply: (…)"

• 4.3.6.3 Building Envelope "a. Except as provided by Sections 4.3.6.3b + c, exterior walls and balconies should not extent beyond a building envelope that is projected from each street or laneway frontage as detailed in the Precinct Controls section of this chapter (…) iii Maintain the pedestrian-friendly scale of existing low-rise buildings facing each street or laneway by a building envelope that is projected at 45 degrees from the façade at a point not higher than 7m above "street level", or from the second storey floor, whichever is the lesser. (…)"
• 4.3.6.4 Buildings exceeding 4 storeys "(…) c. Floor space in any fifth storey or greater should be distributed to disguise the scale and bulk of the multi storey buildings, as well as to minimise obstruction of significant coastal and ocean views that are available from surrounding residential hillsides: i. The maximum width of enclosed floorspace should not exceed 50% of the primary street frontage to any site, and ii Enclosed floor space should be distributed in separate pavilion structures that are not wider than 15 metres each, and are separated by not less than 10 metres from a neighbouring pavilion upon the same site. (…)"
• 4.3.10.3 Views "a. Buildings must need exceed the maxima specified by Gosford LEP 2014. b. The top storey of each building should be shaped to minimise obstruction of significant coastal and ocean views that are enjoyed from dwellings on the surrounding hillsides: i. Significant views include the ocean horizon, landmarks such as Crackneck, The Skillion and Wamberal dunes, inshore waters such as The Haven and the Wamberal beachfront. ii Upper-storey roofs should have gentle pitches that generally are not steeper than 10 to 15 degrees in order to minimise obstruction of existing views. iii on sites larger than 2000m² or wider than 20 metres, the top storey should be divided into pavilion structures separated by 'view corridors' that are wide enough to allow filtered views from hillside properties. (…)"

1. The parties agree, and I accept, that the new Central Coast Local Environmental Plan 2022 (LEP 2022) does not apply to the subject modification application given the effect of cl 1.8A of the instrument. However, it is a matter for consideration under s 4.15(1)(a)(ii) of the EPA Act. I have given consideration to LEP 2022 in determining the development application. I note that the principal development standards remain unchanged. The nomenclature of the B2 Local Centre zoning has changed to E2 Commercial centre, which relevantly retains shop top housing as a permissible use. The zone objectives for the E2 Commercial centre include the following relevant objectives: … • To provide for residential uses, but only as part of mixed use development. • To protect and enhance scenic quality and to provide for the creation and retention of view corridors in commercial centres.

Expert Evidence

1. The Court was assisted in the proceedings by evidence from Urban design, Planning and view loss assessment experts as follows:

• Town Planning: Mr Doug Sneddon (on behalf of the Applicant) and Mr Matthew O'Donnell (on behalf of the Respondent).
• Urban Design: Mr Rohan Dickson (on behalf of the Applicant) and Mr Phillip Pollard (on behalf of the Respondent).
• Visual Impact: Mr John Aspinall (on behalf of Applicant) and Mr Phillip Pollard (on behalf of the Respondent).

1. The experts prepared a joint report and were called for cross examination.
2. The experts considered the following view loss assessments: 1. The Urbaine Group view loss assessment prepared on behalf of the Applicant. (the Applicant's VIA) 2. The Cambium Group view loss assessment prepared on behalf of the property owners at 15 Kurrawyba Avenue. (the Cambium VIA) 3. Dr Pollard's assessment at Appendix N of the Joint Report, also prepared by Cambium (Pollard VIA) 4. Photomontage utilising site poles (Urbaine Ex H)
3. Neither of the view impact assessments (VIA) undertaken by the Applicant comply with the Photomontage Policy of the NSW Land and Environment Court. For example, they are not accompanied by an opinion of a registered surveyor as to their accuracy.
4. At the Site inspection the Applicant arranged 'site poles' as an aid for the Court to visualise the likely impact on views that would arise from the modification application. The level of the top of the 'site poles' was surveyed at RL 23.00 AHD. I accept the submission of Mr Tomasetti that they are an aid to assist the Court in assessing the impacts of the proposed development. I have not assumed them to replicate the form of the final building, for example the final roof form has a minor pitch and a ridge and the 'height poles' do not include the further height of the proposed lift extension.
5. Both the view impact experts in the proceedings include commentary in the joint report, and were questioned in cross examination, as to the relative accuracy of the various VIA undertaken. I have considered this evidence in determining the reasonableness of the view impacts likely to arise from the modification application, however given the magnitude of impact arising from the development on the existing view the arguments between the experts are not, in my view, material to the determination of acceptability of those impacts. Plainly stated the significance and extent of the impacts is such that any minor inaccuracy would not be determinative in an assessment of acceptability.
6. In considering the impact of the proposed development on views, the experts make reference to the planning principle established in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 ("Tenacity"), namely: "[25] The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment. [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."
7. The evidence of the experts in relation to the view loss is summarised in the following.

Level 5, No. 15 Kurrawyba Avenue

1. Mr Aspinall's evidence focusses on the impact to the 2 apartments on Level 5 of 15 Kurrawyba Avenue. He concludes the impacts arising from the modification application are acceptable on two bases. Firstly, he relies on Clause 2.3.6.1 Residential Amenity in Central Coast Development Control Plan 2022 (DCP 2022) which has the following objectives. He argues that view sharing balanced with the reasonable development potential of the Site is achieved. "'To facilitate view sharing whilst not restricting the reasonable development potential of a site' and 'To protect views by permitting development which minimises obstruction of such views where enjoyed from internal and external living areas'"
2. Secondly, Mr Aspinall relies on the precedent of 15 Kurrawyba Avenue in assessing the reasonableness of the impacts. Relying on the VIA he argues that the impact arising from the modification application is predominately confined to views of the ocean water and that the two interfaces (ocean/sky and sand/ocean) are retained. Mr Aspinall does not provide a conclusion as to the extent of the impact, but by inference he adopts the extents determined in the VIA in Exhibit H and 5. In determining the reasonableness of the view impact, he gives weight to the expansive nature of the views currently enjoyed by those properties. He concludes that the modification application seeks to share views with the neighbouring properties whilst maintaining views to key, high value elements such as the ocean/sky and sand/ocean interface.
3. In contrast, Mr Pollard argues that the impacts to the apartments on Level 5 are threefold. Firstly, the development the subject of the modification application will act to interrupt the current panoramic views of the ocean/sky and sand/ocean interfaces as well as the sweeping ocean views framed by Norfolk Pines. Thus, he argues the impact is a change in the character of the view. Secondly, that the retention of the horizon view (ocean/sky interface) is probably from a standing position with the exception of the interruption of the lift overrun but would not be retained from a seated position. Thirdly, that the land/sea interface towards Wamberal Beach would also be obscured from a seated position. He nominates the impact as significant and unacceptable.
4. Further, Mr Pollard argues that the Applicant's reliance on the minor side setback (and the adjoining properties) to provide view retention/sharing is not appropriate as the actual view corridor created by the side setback of the upper two floors is too narrow and the adjoining property has unrealised development potential.
5. Mr O'Donnell agrees with Mr Pollard and argues that the additional storey sought by the modification application will result in the loss of valuable water views from the Level 5 Kurrawyba Avenue.

Level 4, 15 Kurrawyba Avenue

1. I note Mr Aspinall makes no assessment of the units with the same orientation as Units 11 and 12 on Level 4 of No. 15 Kurrawyba Avenue.
2. These impacts were addressed in the objection received from these property owners (which included the Cambium VIA) and the onsite submissions of Mr Leavy. I have considered these submissions and the Cambium VIA as part of the determination of the likely impacts of the development.
3. In his evidence Mr Pollard concludes that the units on Level 4 of 15 Kurrawyba are currently adversely impacted by the development approved in the original consent. He concludes those impacts will be exacerbated by the modification application. He nominates the impact arising from the modification application as being to sky views and views of the Norfolk Pines on the esplanade. He concludes that in his opinion these apartments do not benefit from appropriate view sharing.

10 Church Street

1. Mr Pollard argues that Units 5, 6 and 7 in 10 Church Street will have further view impacts arising from the proposed modification application. He argues these impacts arise from both the reductions to the side setbacks at Level 5 and the addition of the floor at Level 6 on the subject site. In particular he notes that the reduction in the side setbacks reduces any potential for view sharing through the Site to the interface of ocean/sky and sand/ocean.

Unit 8, 9, 10 and 11 in 9-11 Cadell Street

1. In his evidence Mr Pollard notes that the siting of 9-11 Cadell Street is at a higher ground level to that of 10 Church Street and the subject site. Relying on the Cambium and Pollard VIA he concludes: "The four dwellings will be impacted by the proposed modification, with a loss of views to the Norfolk Pines along the beachfront at Terrigal Esplanade, and a loss of sky views above the horizon. As per the townhouses at 10 Church Street, if similar development continues along Church Street to the west in the future, the dwellings will be deprived of their current attractive views and aspect, with no functional view sharing afforded die to minimal setbacks and excessive bulk and scale." (Exhibit 5)

Impact on other views

1. The experts disagree as to the extent the development proposed by the modification application will affect views for properties in the surrounding hillside to the southwest of the site (known as the "Terrigal Bowl').
2. Mr Aspinall argues that any view loss that is arising from the modification application experienced by residents of the 'Terrigal bowl' will be minor on the basis the building at 15 Kurrawyba Avenue sits between the properties in the Terrigal bowl and the subject site. In other words in his view almost the entirety of any view loss experienced by these properties is already created by the bulk of 15 Kurrawyba Avenue.
3. Mr O'Donnell argues that the assessment of view impacts to properties in the Terrigal Bowl and further west of 15 Kurrawyba Avenue, and the reliance of the Applicant on the precedent of 15 Kurrawyba Avenue, need to be considered in the specific context. He argues: "In relation to 13 Ash Street and 6 Pine Tree Lane, these properties, and the properties to the south (to their rear) had no existing views of the water as a result of the relatively flat topography, and the fact the Crown Plaza building blocks a significant portion of water views. (…) This is a very different scenario in relation to the subject site and its relationship with properties to the south that are located on more sloping topography that increases up the kill and allows existing views to the water. The topography of 15 Kurrawyba Avenue is different to the relative flat ground of the Site. That development is set into the hillside at its southern side, and has a very large fig tree on its southern side, both of which have the effect of reducing the perceived scale of the development in the "Terrigal Bowl'." (Exhibit 5)
4. In contrast Mr Sneddon argues that the additional floor proposed in the modification application is compatible with the scale and impacts arising from previously approved developments within proximity of the Site. Specifically, he notes that the maximum RL sought in the modification application is lower than other shop top housing developments approved. He supports Mr Aspinall's conclusion that the modification application will not unreasonably impact coastal views obtained from properties in the Terrigal Bowl, or the development at 15 Kurrawyba Avenue, particularly when the most valuable view (the coastal beach/ foreshore setting) is considered.

Findings

1. Relevant to the consideration of the merits of the application, LEP 2014 applies a maximum height control of 18.5 AHD to the subject site: cl 4.3 of LEP 2014. The development proposed as part of the modification application is non-compliant with this control, proposing a maximum height of RL 23.63 AHD. The objectives of the height control are extracted at [35].
2. Further, as detailed at paragraph [38], DCP 2013 contains development controls relevant to consideration of the acceptability of the likely impacts arising from the proposed development on views. In particular the modification application seeks to vary controls: Clauses 4.3.6(a), 4.3.6.3(a)(iii), 4.3.6.4(c)(i) and (ii), and on the Respondent's case Clause 4.3.10.3(b) of DCP 2013.
3. The relevant consideration in determining the merits of these variations, and whether the relevant DCP objectives in relation to view sharing have been achieved, is how the section of the views over which the Applicant has control is impacted. In my view, it is necessary to focus on this portion of the view for each of the affected properties in determining the reasonableness of the view impact overall.

Units 11, 12, Level 4, No. 15 Kurrawyba Avenue

1. In considering the impacts to 15 Kurrawyba Avenue I note that in his submissions Mr Tomasetti argued that I should give reduced weight in my determination of the merit of the modification application to these impacts for three reasons. Firstly, he argues that the development at 15 Kurrawyba Avenue was itself approved with a height breach, thus the views obtained from these units should be discounted as they are obtained from locations that are non-compliant with the development standards in LEP 2014. Secondly, given that the development from which the view is obtained breaches the height standard the owners should have a reasonable expectation that other development in the vicinity will also breach the height standard. Thirdly, that the views are difficult to protect, or share, in the urban context of the Terrigal town centre in particular given its flat topography.
2. In the alternative Ms Irish argues that this submission should not be accepted by the Court. She argues that both the subject site, and 15 Kurrawyba Avenue, enjoy approvals that resulted from the exercise of discretion by the consent authority utilising cl 4.6 of LEP 2014. She argues that both are lawfully approved, and that the amenity of these approved developments is not discounted by their status of being non compliant. Further, she submits that the exercise for the Court in determining the modification application is not a comparative one between 5-7 Church Street and 15 Kurrawyba Avenue.
3. I accept and prefer the submission of Ms Irish. Once a development is approved, constructed and lawfully occupied there is no provision or legal principal that would suggest a need to discount or offset the amenity of the resulting development on the basis it was given a dispensation as part of the grant of consent. Clause 4.6, and the flexibility it affords, is part of the local environmental plan and does no more than seek to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
4. I note that the Applicant's VIA did not assess the impact from these two units at Level 4 of 15 Kurrawyba Avenue, instead focussing on Level 5. However, in their June 2021 submission the owners of 15 Kurrawyba Avenue included the following images seeking to demonstrate the potential impact: Unit 11, balcony: Unit 12 balcony: Extract of Exhibit 3
5. Further, as part of the onsite view the Court was taken to these partly constructed units. I made the following observations, the panoramic nature of the ocean/horizon view obtained from these units is currently obstructed by the development approved in the original consent, in effect creating a break in the expanse of the view. The setbacks of the development approved in the original consent provide a narrow view corridor over the subject site. The effect of the modification application would be to reduce this view corridor over the two side boundaries (by the reduction of setbacks to Level 5) and further reduce the view of the sky and Norfolk Pines (from the further level and increased height of the lift). I note that units retain oblique views (over other properties or the roadway) of the ocean water and the two interfaces (ocean/sky and sand/ocean) with the northern apartment retaining views to Wamberal Beach and the southern apartment to Terrigal Point.
6. Following the Site view the Applicant prepared an updated photomontage, Urbaine Ex H, utilising the Site poles for Units 15, 16 (Level 5) and Unit 12 (Level 4). I have considered this exhibit as part of my assessment of the view impacts arising from the modification application. The effect of Exhibit J and G, the survey of the location of the height poles and the affidavit as to their dimension is to confirm that the top of the poles is equivalent to RL 23.00, approximating the roof of the modification application.
7. In relation to Level 4 of No. 15 Kurrawyba Avenue, in my assessment the view impact arising from the proposed development will be moderate, predominately on the basis of the effect of the modification application on changing the character of the view. This conclusion is arrived at as follows:

• Views from this level would likely be impacted by a development compliant with the maximum building height.
• The development approved by the original consent impacted views from this level.
• The development proposed in the modification application has the effect of further changing the nature of the views experienced. In my assessment it will have the effect of changing those views from panoramic "complete" views to views that are truncated or separated by built form. In particular the modification application will detrimentally impact on views of the Norfolk Pine and the horizon/ocean interface.
• The development proposed under the modification application is non-compliant with a number of controls both in LEP 2014 and DCP 2013 which tends away from a conclusion of reasonableness of the adverse view impacts.
• The views are obtained from living areas and external balconies from both standing and sitting positions. Their retention is a reasonable expectation when it is a significant breach of the maximum height standard which generates the impact. These are not impacts that are foreseeable by the application of the relevant planning controls.
• Further, applying the intent of the planning controls in LEP 2014 and DCP 2013 the development proposed by the modification application fails to locate the additional height or the reduced side setbacks in an appropriate manner in relation to view corridors. For example, it does not provide a greater view corridor over both the modified levels to displace the impact from the additional bulk at Level 6. I am satisfied that the development proposed within the extent of view enjoyed by Level 4, over which the Applicant has control, is not designed in a manner to limit obstruction of significant ocean views.
• In circumstances where the modification application seeks to occupy a new upper-level floor plate as well as increase the floor plate of the existing top most floor, with no dispensation to offset the obvious impact by a reduction in impact to amenity elsewhere I am not persuaded the view is 'shared'.
• I accept the evidence of Mr Pollard that these apartments will not benefit from appropriate view sharing.

Units 15 and 16, Level 5, No. 15 Kurrawyba Avenue

1. The views from these two units were the subject of a number of assessments including the Applicant's VIA and the Cambium VIA. I note my comments at [43, 45] about the disputed accuracy of the VIA's and their compliance with the Courts Photomontage policy are of particular relevance to these apartments.
2. I note in his evidence Mr Aspinall relies on and cites the development controls from DCP 2022. These controls do not apply to the subject modification application given the effect of cl 1.14 Savings Provision of DCP 2022. DCP 2013 applies.
3. The Applicant's VIA depicts the impact of the modification application as follows: Unit 16: Unit 15:
4. The Cambium VIA depicts the impact of the Modification Application as follows: Unit 16: Unit 15:
5. In a manner similar to the units at Level 4 of this development, the views from the apartments at Level 5 are expansive and panoramic. In my view they are iconic in part due to the fact that they allow the appreciation of the extent of the ocean from Terrigal Point north through to Wamberal Beach. The views include the icons of Wamberal Beachfront and the headland, both specifically nominated in DCP 2013 at Clause 4.3.10.3 (b)(i).
6. At the conclusion of the evidence Mr Dickson accepted that the development the subject of the modification application affords the retention of a sliver of view of the ocean horizon but will remove the sand/surf interface for the width of the proposed upper level. Given the lack of surveyor certification of the VIA's, and the narrow extent of view forecast to be retained, there is some uncertainty that this view will eventuate as depicted. Given this uncertainty, in my view it is appropriate to accept that the extent of that view which is affected by the modification application will include the ocean/sand interface at Wamberal (for Unit 15) as well as the headland of Spoon Bay (for Unit 16). The narrow margin argued to be retained is insufficient, in my view, to offset the uncertainty as to accuracy in any of the VIA's.
7. In a similar manner to my reasoning at [71], the view impact of the modification application is of a different character to the impact that arose from the development approved by the original consent. The existing approved development maintained the panoramic nature of the ocean/horizon view and interrupted the closer sand/ocean views of the esplanade. The modification application in contrast will in effect create a break in the expanse of the view from the horizon to the sand/ocean interface, creating a complete interruption to the panorama.
8. Despite the development sought in the modification application entirely breaching the Maximum Building Height standard, there is no evidence in the architectural design of the intention of the Applicant to ameliorate this impact, for example, by facilitating a view corridor, or a section through which the total view of the sand to the horizon is retained by residents to the west and or southwest of the Site. In contrast the modification application seeks to further reduce the approved side setbacks.
9. In relation to Level 5 of No. 15 Kurrawyba Avenue, in my assessment the view impact arising from the proposed development will be severe. This conclusion is arrived at as follows:

• I accept and adopt the evidence of Mr Pollard that the Applicant's assessment places too great an emphasis on firstly, the minor side setback to provide view retention/sharing in circumstances when the actual corridor proposed on the subject site is too narrow and secondly on retention of views over the adjoining properties where the adjoining property has unrealised development potential and is not the subject of the modification application.
• The development proposed under the modification application is non-compliant with a number of controls both in LEP 2014 and DCP 2013 which tends away from a conclusion of reasonableness of impact.
• The views are obtained from living areas and external balconies from both standing and sitting positions. Their retention is a reasonable expectation. In a manner similar to the reasoning in reference to the units at Level 4, it is the development which breaches the height limit which generates the impact.
• Further, applying the intent of the planning controls in LEP 2014 and DCP 2013 the development proposed by the modification application fails to locate the additional height or the reduced side setbacks in an appropriate manner in relation to view corridors. For example, it does not provide a greater view corridor over both the modified levels to displace the impact from the additional bulk at Level 6. The development proposed within the extent of view enjoyed by Level 5, over which the Applicant has control, is not designed in a manner to limit obstruction of significant ocean views.
• In circumstances where the modification application seeks to occupy a new upper-level floor plate as well as increase the floor plate of the existing top most floor, with no dispensation to offset the obvious impact by a reduction in impact to amenity elsewhere I am not persuaded the view is 'shared'.
• The development proposed in the modification application has the effect of changing the nature of the views experienced from panoramic complete views to views that are truncated. Further, in the view corridor over the subject site, both interfaces (ocean/sky and sand/ocean) are obstructed. The change in character is relevant along with the quantitative impact.
• I accept the evidence of Mr Pollard that these apartments will not benefit from appropriate view sharing.

1. When the impact of the proposed modification application is considered for the whole of the property at No. 15 Kurrawyba Avenue, and those impacts are balanced with consideration of the reasonableness and skill of the development proposed by the modification application, in my assessment the impacts on views are unreasonable and warrant refusal of the application.
2. The likely view impacts arising from the development on the property at No. 15 Kurrawyba Avenue warrant the refusal of the application: s 4.15(1)(b) of the EPA Act.

Units 5, 6 and 7 in 10 Church Street

1. The impact to Unit 5 is depicted in the Pollard VIA. As part of the onsite the Court also attended each of the affected units in 10 Church Street.
2. Overall, the views from the lower units will be affected by the modification application by a reduction in sky view and views to the Norfolk Island Pines. The living rooms and balconies of the upper levels will be further impacted by the proposed reduction in sky view and views to the Norfolk Island Pines and the horizon by a reduction in side setbacks.
3. The overall view impact to 10 Church Street from the modification application in my assessment is minor, the majority of the impact arising from the approved development.
4. My previous comments about the reasonableness apply equally, and the minor impacts are cumulatively supportive of the refusal of the application on merit.

Units 8, 9, 10 and 11 in 9-11 Cadell Street

1. The impacts to units 8, 9, 10 and 11 in 9-11 Cadell Street are depicted in the Pollard VIA. The most affected unit is number 10 which will be impacted by a loss of sky and a portion of the Norfolk Pines which line the Terrigal Esplanade.
2. The overall view impact in my assessment from the modification application is minor, the majority of the impact arising from the approved development.
3. My previous comments about the reasonableness apply equally, and the minor impacts are cumulatively supportive of the refusal of the application on merit.

Conclusion

1. The modification application seeks to realise additional development yield for the Applicant, in this case one unit. The planning principle in BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 ('BGP Properties') emphasises the balance between the reliance by members of the public on the planning system to inform them of the likely form and intensity of development expected in a locality and the expectation of approval of permissible development where impacts are reasonable. At pars 117 and 118 the judgment states: "117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. 118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts."
2. Concurrently determining whether it is appropriate to apply flexibility to these development standards, in this case the height standard in LEP 2014 and the development controls in DCP 2013 listed at [38], is influenced by an assessment of the reasonableness of adverse impacts that arise for others from that variation, and whether the alternative solution proposed by the application meets the objectives of those standards which are sought to be varied. Each of the relevant development standards in LEP 2014 and controls in DCP 2013 each contain an objective directed to views. For example, at cl 4.3 Height of Buildings of LEP 2014 at subcl (e), Clause 4.3.6 Views of DCP 2013 at subclause (b). In the case of this modification application, I am not persuaded it is appropriate to exercise the discretion to vary those standards and controls as the objectives to share views, retain views or facilitate view corridors through design are not met by the modification application.
3. Whilst compliance with the maximum height and FSR standards are not a precondition to consent in the context of the modification application, it is my view that these controls warrant significant weight in considering the merit of the modification application. Giving these controls significant weight assists in the predictability of the planning framework as relied on by the community and is of particular relevance in this locality where the surrounding hillside landform and the location of the Terrigal Esplanade create a viewing corridor over the subject site (and its adjoining Church Street properties) that is relied on by numerous proximate properties for amenity arising from ocean views and breezes. When these controls are given appropriate weight, accumulatively with the identified detrimental impacts on views, and the issues raised in the submissions received by the public support they support the determination of the modification application by way of refusal. Pursuant to s 4.55(3) of the EPA Act in determining the development application I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application. In doing so I have determined that the likely impacts of the development, in particular the detrimental impact on views, when considered in the context of the relevant planning controls, are such that those impacts support the determination that the modification application should be refused.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. Modification application DA/52083/2017/4 seeking consent for alterations and additions to the approved development at 5-7 Church Street, Terrigal (Lots 19 and 20 in DP 7861) principally by the addition of a new level (sixth storey), containing a single penthouse apartment and alterations to the approved terraces on Level 5 is determined by the way of refusal. 3. Exhibits are returned with the exception of exhibits 2, A, C, D. I certify that this and the preceding 37 pages are a true copy of my reasons for judgment.

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