Impact on nearby properties
46 The properties on which the proposal has impact are:
· 32 Fishing Point Road
· 33 Fishing Point Road
· 4 Burnage Place
· 8 Burnage Place,
· 38 Fishing Point Road
· 2 Sunlight Parade,
· 71 Harborne Avenue and
· 73 Harborne Avenue.
47 Mr W Thorburn, who lives at 32 Fishing Point Road (and has also given evidence in his capacity as the President of the Rathmines Progress Association), said that his main concern was being overlooked from the balcony of Unit 1 and the bedrooms 1 of units 5, 6 and 7. Along the common boundary, No 32 has several outbuildings, including a viewing platform from which views of several rear yards in the locality can be obtained. Mr Byrnes and Mr Vickas agreed that the outbuildings would protect the privacy of No 32. Mr Thorburn gave evidence again at Newcastle, to the effect that he opposed the amended drawings, but that they were preferable to the earlier version.
48 Mr L Peacock, who lives at 33 Fishing Point Road, opposite the site, (and who had a spokesperson/carer speaking for him), was concerned about more people parking in front of the driveway of his house making it difficult for ambulances to enter. In addition he feared the loss of his privacy as a result of the second-storey balconies looking towards Fishing Point Road. I cannot take the concern about parking into account, since the proposal complies with the parking requirements of DCP 1. Regarding Mr Peacock's concern about losing his privacy, this has been overcome by the deletion of the third storey on Units 2 and 4.
49 The owner and/or resident of 4 Burnage Place did not object. Mr Byrnes and Mr Vickas agreed that the absence of an objection did not justify ignoring the proposal's impact on this property. In Mr Vickas' opinion, the impact was so bad that it alone justified refusal. Mr Byrnes agreed that the terraces of Units 8 and 9 could overlook No 4. He suggested lowering the terraces by 750mm. The sightline diagram submitted by the applicant indicates that with this amendment No 4 could not be overlooked from the ground floor of the proposal. There would still be overlooking from the upstairs bedrooms. Mr Vickas considered this unacceptable, while Mr Byrnes reasoned that overlooking from upper storeys is an unavoidable characteristic of all residential areas where there are two-storey buildings. I accept Mr Byrnes' evidence. As regards overlooking from the roof terrace, Mr Vickas suggested a condition that, in his opinion, would overcome the problem. The condition is imposed.
50 Mr G Berwick, who lives at 8 Burnage Place, said that he was concerned about overlooking and the overshadowing of his vegetable garden. Mr Byrnes and Mr Vickas agreed that there would be little overlooking of this property. The vegetable garden, being in the northern side setback, would be overshadowed during mid-winter. This is a highly vulnerable location for it and to keep it in sunshine all year would require a severe curtailing of the development potential of the subject site. I note that most, if not all, of the rear yard of No 8 will be free of shadow, though, of course, that is not where the vegetable patch is. Because of the difficulty of keeping a northern side setback in sunlight, on balance, I do not think that this issue warrants a change in the proposal.
51 The owner or resident of 38 Fishing Point Road did not object. In Mr Vickas' opinion, the proposal would overlook No 38 to an unacceptable extent. Mr Byrnes said that he was more concerned about No 38 overlooking the site, than the other way. He pointed out that the proposal was 7m to 9m from its boundary, which was much greater than the distance of the three-storey house on No 38 from its boundary. He added that the barbecue on No 38 was under cover and therefore protected from overlooking. In my opinion, the impact on No 38 is minor and would occur with any reasonable development on the subject site.
52 The owners of the three remaining properties were all concerned with loss of water view. Mr T Goodwin, who lives at 2 Sunlight Parade, Ms L Polglase, who lives at 71 Harborne Avenue, and Ms C Doyle, who lives at 73 Harborne Avenue, said that they objected to the proposal's impact on their view. Mr P Polglase gave evidence at Newcastle, objecting to noise from the development and to the likely drop in the value of his house. Ms Doyle gave evidence on her property and in Newcastle, to the effect that the amended drawings were an improvement, but that the proposal would still take away the majority of her water views.
53 In Tenacity Consulting v Warringah [2004] NSWLEC 140, I established principles against which view impact may be assessed. The first principle was to assess the views to be affected. In this case the view to the water is pleasant and highly valued. Mr Byrnes and Mr Vickas agreed that the proposal would cut out a major section of water view from these properties. In the case of 2 Sunlight Parade, the impact had to be considered against the panoramic view that the living room obtains to the south, so the experts did not think that, on balance, the impact was major. However, for 71 and 73 Harborne Avenue the view loss would be significant and it would be a loss of the major view.
54 The second step is to consider from what part of the property the views are obtained. In this case the view is obtained from the rear, which has more chance of being retained than more vulnerable views across the side boundary. The third step is to assess the extent of the impact. In this case the impact will take much of the central water view away, though it will leave views of the water from the sides as well as most of the land views. I would assess the view loss as moderate to severe.
55 The fourth principle is to assess the reasonableness of the proposal that is causing the impact. A development that complies with planning controls would be considered more reasonable than one that breaches them. In this case, the development is below the height limit. With the removal of the third storey element, it is 2m below the height limit. It covers about 45% of the site, where the controls in DCP 1 permit 70%. Despite the above compliances, the question should still be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on views.
56 The experts agreed that lowering the height of the proposal to two storeys would restore some land view but would not affect the loss of water view. In order tor these two properties to retain significant water views, the development would have to create a view corridor. In my opinion, such a view corridor would have to extend from the front to the rear of the site and would have to be wide. Even with the creation of a view corridor, the impact may remain almost the same, since the view corridor can be effective only if the property is directly behind, which is not the case for 71 and 73 Harborne Avenue. In order to significantly reduce the view impact, it would be necessary to deprive the subject site of almost all development potential. I conclude therefore that the proposal's impact on views is reasonable. I understand, of course, that this finding does not make it any less disappointing for the residents whose views will be impacted.