Balestriere v Council of the City of Ryde

Land and Environment Court (NSW)|2021-10-01

Judgment

COMMISSIONER: This is an appeal brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Ryde Local Planning Panel on behalf of the Council of the City of Ryde (Council) of Development Application No. LDA2020/0327 (DA). The DA is seeking development consent for partial demolition, alterations and additions to the existing dwelling at Lot 102 DP 866280, also known as 64 Pellisier Road, Putney (site).

Proceedings

Proceedings were conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy (April 2021) using, principally, the Microsoft Teams platform. As the appeal related to a detached single dwelling, the proceedings were subject to the provisions at s 34AA of the Land and Environment Court Act 1979 (LEC Act) and, as such, commenced with mandatory conciliation. During this conciliation stage, objections were heard from two neighbours using Microsoft Teams.
The parties were unable to reach agreement, as a consequence, and in accordance with s 34AA(2)(b) of the LEC Act, the conciliation conference was terminated and a hearing was held forthwith. The parties consented to objector evidence, and other material forthcoming during the conciliation phase, forming part of the evidence in the proceedings.
View loss is the central issue in this matter and on Day 2 of the proceedings, I took the opportunity to undertake a site inspection, subject to COVID-related restrictions (the legal counsel of the parties, only, accompanied me). The inspection included taking a view from the properties of these two objectors (60 and 62 Pellisier Road), and from one other property (62A Pellisier Road) the owners of which had lodged a written objection.

Site and setting

I mostly rely on Council's Statement of Facts and Contentions (Ex 2) for the factual material which follows in this and the following two sections.
The site is an irregular shaped battle-axe allotment, with an area of some 1016m2. It has waterway frontage to Morrisons Bay. The site accommodates a part single storey and part three storey cement rendered brick dwelling with flat metal deck roofing. An in-ground swimming pool, boat shed, timber deck and pergola are located between the dwelling and the waterway.
Vehicular access is provided from Pellisier Road via an access handle measuring about 3 m in width and 28 m in length. Landscaping within the site consists of small to medium sized shrubs. There is also bamboo and a native frangipani on the northern side of the dwelling.
The locality can be generally characterised as accommodating single residential, dual occupancy (attached) and multi dwelling housing development. Putney Park is located directly across Pellisier Road to the west of the site and the Morrisons Bay waterway and foreshore abuts the site to the east. More particulars on the immediate neighbours are introduced below in the consideration of the issues.

Proposed development

The DA seeks consent for a new storey above the existing dwelling structure. This new upper storey would include three bedrooms, a bathroom, a balcony on the eastern elevation and internal stair access from the ground floor.
Works are also proposed to the existing three levels of the dwelling house. These works only have indirect relevance to the real issues in dispute in this matter, and will be considered pertinently below.
It needs to be acknowledged that the Applicant proposed certain amendments to the application originally before the Court (as filed on 17 June 2021). Briefly here, the amendments reduced the balcony depth to the upper level bedrooms, provided for additional neighbour privacy treatments and provided further information in regard to the carport/garage.
Having regard to these amendments, I note the following: 1. That Council, as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agreed to the Applicant amending the DA 2. The amending documentation is as contained in the Applicant's bundle tendered into evidence in the proceedings (Ex A) and can be referenced as: 1. Architectural plans (behind Tab 1 to Ex A), including the plans referenced in Condition 1 to Annexure A to this judgment. 2. Photomontages and wireframe perspectives (Behind Tab 2 to Ex A).
The parties have subsequently advised the Court (email dated 5 October 2021) that the amending documentation has been uploaded onto the NSW Planning Portal. The application is formally amended and it is that which is before the Court in the proceedings.

Planning framework

The site and locality are zoned R2 Low Density Residential under Ryde Local Environmental Plan 2014 (RLEP). The proposal is permissible with consent. The objectives of the R2 zone are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a variety of housing types.
The proposal does not breach any development standards in RLEP. Arising in evidence was cl 5.10 concerned with heritage conservation, an issue in the proceedings. Certain jurisdictional matters are attended to later.
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Sydney Harbour SREP) also applies to the site and has relevance to the issues.
City of Ryde Development Control Plan 2014 (RDCP) also applies and comes into the considerations below.

Issues

A number of the contentions listed in Ex 2 were no longer pressed by Council following receipt of the amending plans referenced above. The key remaining issue related to view loss. There were two dimensions to the issue. One dimension was the general issue of view loss to certain neighbouring properties. The second dimension related to heritage conservation impacts associated with the view loss, given the fact of view loss from the listed heritage item at 60 Pellisier Road. I will note here that view loss was also a key concern raised in objecting submissions.
The experts in this matter were as follows: Expertise For A Betros Town planning Applicant D Pearson Town planning Council J Outram Heritage conservation Applicant C Kemp Heritage conservation Council

Policy

Council referred to Sydney Harbour SREP and, in particular, cl 26 which is reproduced below. It can be seen that, among other things, the clause draws together the issues of view loss and heritage: The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows - (a) development should maintain, protect and enhance views (including night views) to and from Sydney Harbour, (b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items, (c) the cumulative impact of development on views should be minimised.
RDCP makes direct reference to views with its clause 2.14.4 entitled "view sharing". The provision is brief and is reproduced in full below. "View sharing is where development is designed so as to retain the private views enjoyed from existing dwellings on neighbouring sites. However the equitable sharing of views is desired and existing dwellings will not always be able to retain existing views across neighbouring allotments. Objectives 1. To ensure new dwellings endeavour to respect important views from living areas within neighbouring dwellings. Controls a. The siting of development is to provide for view sharing."
In terms of heritage conservation, Council also drew attention to the objectives at cl 5.10(1) of RLEP which include the following, relevantly: (a) to conserve the environmental heritage of Ryde, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views …
The Applicant highlighted the operative provisions at cl 5.10(4) of RLEP which are as follows, again relevantly: The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned...
The Applicant drew attention to the fact that the site itself is not a listed heritage item and does not fall within a heritage conservation area. It was argued that as it was the adjoining property to the north which was the listed item, and no consent was sought here in respect to it, cl 5.10 was not activated in this instance.

Affected properties

There were three properties warranting attention in regard to view loss. The site is adjoined to the north by No. 60 Pellisier Road, which contains a single storey dwelling house with rear deck. The property is a hatchet-shaped allotment with a 22.5 m frontage to Pellisier Road and a "handle" with an approximate width of 7.7 m which accommodates a swimming pool, boat shed structure and provides access to the rear private open space area on the foreshore of Morrisons Bay. A Port Jackson Fig (Ficus rubiginosa) is located on this property and is listed on Council's Significant Tree Register. The dwelling house is a local heritage item listed in Sch 5 of RLEP. The heritage experts reference the dwelling house as "Hazelhurst" indicating it was built in around 1917 (Ex 4 p 8). It is noteworthy that while an aerial photograph from 1943 shows this property as running down to the waterfront and one would expect allowing for views over Morrisons Bay, today a large dwelling at 60A Pellisier Road (again in battleaxe format) sits significantly in the otherwise viewline of No. 60 Pellisier Road.
The site is adjoined to the west by two semi-detached dwellings at Nos. 62 and 62A Pellisier Road. The dwellings are two storeys in height and enjoy water views of Morrisons Bay and its interface with Tennyson Point in the distance. The views are obtained from the first floor of each dwelling where the main living areas, kitchen and dining rooms are orientated to the east in the direction of the waterway. That is to say, the site lies between these two properties and Morrisons Bay, thus with potential view affectation with any increase in building height, such as proposed in the application.

View loss assessment framework and evidence

The experts considered the four-step view impact assessment process as developed by then Senior Commissioner Roseth in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), and subsequently adopted as a planning principle by the Court.
There was reasonable clarity in regard to the first two steps. That is in relation to the assessment of the views to be affected and from what part of the neighbouring property the views are obtained. I will paraphrase uncontentious particulars from Ex 3 to set the scene: 1. 60 Pellisier Road - Land and water views to Tennyson Point and Morrisons Bay are obtained from the living room and deck to the rear of the dwelling. 2. 62 Pellisier Road - Land and water views from the kitchen, dining room and rear terrace on the first floor of the dwelling. 3. 62A Pellisier Road - Land and water views from the kitchen, dining room and rear terrace on the first floor of the dwelling.
The third Tenacity step is concerned with the extent of impact. There was considerable disagreement on this. Some background information is necessary here. The experts' assessment initially relied on photomontages from different viewing positions (Ex A Tab 2) which modelled the positioning of the proposed new upper storey. The experts indicated that these photomontages were sufficiently accurate, for impact evaluation and for the Court's purposes generally. I will also note that during the Court's site inspection, the Applicant's representative took additional contextual photographs (with the consent of the land owners) which were tendered into evidence. While Mr Pearson did not change his opinion with this additional evidence, Mr Betros did have cause to do so. In general, I put this down to the fact that unlike Mr Pearson, and notwithstanding approaches to landowners, Mr Betros had not been able to attend the adjoining properties to personally experience the individual viewing positions prior to the hearing.
Mr Pearson adjudged the view loss impact as:

"severe" from 60 Pellisier Road, while noting the fact that the impaired views were across side boundaries, the fact that views were from the heritage item was significant. I will turn to this later;
"severe" from 62 Pellisier Road, especially given views are obtained directly over the rear boundary of the property; and
"moderate" from 62A Pellisier Road, noting a wider view corridor would still be available directly over the rear boundary of 62A Pellisier Road, over the roof of No. 64A.

Mr Betros adjudged the view loss impact as:

"minor" from 60 Pellisier Road, "as minimal water views are available";
"minor to moderate" from 62 Pellisier Road, given the extent of view retention; and
"minor to moderate" from 62A Pellisier Road, noting a wider view corridor would still be available directly over the rear boundary of 62A Pellisier Road, over the roof of No. 64A.

I had the opportunity to personally view the impacts during the site inspection and later draw my own conclusions, albeit and certainly with the assistance of the experts' opinions.
The fourth step under Tenacity is concerned with the reasonableness of the impact: "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." (at [29])
So there are three different points to the fourth Tenacity step, concerned with assessing the reasonableness of the impact, which I summarise as follows:

Point 1 - Compliance, or otherwise, with planning controls.
Point 2 - If there is a non-compliance, then even a moderate impact may be considered unreasonable.
Point 3 - For complying proposals: (a) "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 to bring about impact", and (b) "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".

In regard to Point 1, there was no dispute that the proposal complied with all planning controls of pertinence to the view loss question. Mr Betros emphasised that the proposal was comfortably within both floor space ratio and building height controls under RLEP, and the 3m side boundary setback to the northern boundary, for the proposed new upper storey, when the DCP provision allowed 1.5m. The contest between the parties then went to Point 3 and some detailed analysis of the question of "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 to bring about impact". I consider this below.
I will also note here that this was a concern of the objectors. That is, neighbours had some difficulty understanding why these additional bedrooms needed to go above the existing built form (and as such commanding quality water views from within the bedrooms), while consequently impacting on valued water views from living areas of neighbours; when to these neighbours there seemed to be many other design alternatives.

Heritage conservation impacts

Council contended that the new upper storey would "largely eliminate remaining views from the heritage item to the east towards Morrison Bay, adversely impacting on the heritage significance of the heritage item", with the only remaining water view directly east through an existing Ficus tree canopy (Ex 3 par 4.2).
The heritage experts agreed that Hazelhurst had been built to face both the road and the water. The statement of significance for the item refers to Hazelhurst as being "in a prominent waterfront location". However, Mr Oultram and Ms Kemp agreed that it was no longer the case that the building had prominence from the water and view impact from the water was no longer contended as a reason for refusal of the application.
Ms Kemp was concerned about the further loss of the original historical connection between Hazelhurst and the water (Ex 4 p 7): "The historical connection of the house to the waterfront (demonstrated by historical evidence for an earlier verandah facing the waterfront, a tennis court and river pool on the waterfront) would be largely lost. The loss of views to the waterfront from the rear of the house resulting from the proposal impacts adversely on the heritage significance of the house as it is an adverse impact on the wider setting of the house (being water and sky views from the rear of the house)."
Mr Oultram believed the most significant impact on view loss had already occurred with "the construction of the modern dwelling (60A Pellisier Road) in the garden of the heritage item that removed views to the east and northeast" (Ex 4 p 8).
There was some consideration of whether there was likely to be an historical aspect to the view which would be lost as a consequence of the proposal. That is the view to the south-east across the site (and including the new upper storey). Mr Oultram believed the lean-to and verandah on the eastern side of Hazelhurst were likely part of the services area of the house. Ms Kemp believed it was more likely this was part of the living area with obvious associations with the old tennis court, swimming area (at the water edge) and the available views.

Consideration

While I am not bound by the Tenacity principles, they are well used by the Court and I do turn to them here again. Key here is the fourth step under Tenacity, the reasonableness of the development which is causing the impact. I do see the proposal as "comfortably" complying with the RDCP controls. While not much turns on it given the attention to Tenacity on the part of both parties, RDCP's direct provisions in regard to view sharing do appear more modest than some, with the objective's attention to "(endeavouring) to respect important views from living areas within neighbouring dwellings". In regard to cl 26 of SREP, I need to take into consideration that development should "minimise any adverse effects on views and vistas … from heritage items" and in this case Hazelhurst. On this matter, the Applicant referred me to Quarantine Investments Co Pty Ltd v Manly Council [2013] NSWLEC 1222, where at [34] O'Neill C noted that cl 26 is a "matter required to be taken into consideration" and should not be seen as "a form of mandatory prohibition".
I need to move to what I have described as Point 3 to the fourth step in Tenacity, and whether design alternatives were available which provided for "the same development potential and amenity" as proposed, while reducing view impact. There was considerable examination of the experts on this question. At the end of it, there was little to convince me that there were in fact design alternatives available which met the particulars of Point 3. That is to say, while there was the option of adding to the floor space at the existing lower levels (including through excavation, or relocation of the existing swimming pool), I was not convinced there could be a way that additional bedrooms of similar size could retain the same (view-related) amenity as was currently proposed without sacrificing the amenity enjoyed in existing living areas (again view-related). The option of placing additional floor space closer to the waterway (ie in the rear garden area) was considered, but was itself problematic given the loss of deep soil area and green space and the fact that there would need to be considerable encroachment into a tree protection zone for an existing significant tree. While I accept Mr Pearson's point that the balancing out of development potential and amenity could reasonably go wider than view loss and include such matters as improved winter sun or natural ventilation, I did struggle to see how such design solutions might be (practically and cost-effectively) available given the sloping site and existing excavation levels which tended to suggest constraints on sun access and air flow.
I will turn to the view loss experienced by neighbours of itself, and the consideration of heritage conservation impact. I generally agree with Mr Betros that the proposal is within the bounds of reasonable development, notwithstanding the impacts proposed. This finding is partly associated with the fact of the proposal's compliance with relevant controls, but also the extent of view loss. It seemed to me that Hazelhurst was a significant item of local heritage significance, including in regard to the recent (quite sensitive) renovations. However, when I consider the effect of the proposed development on the heritage significance of the item, I do not see the loss of, what is a relatively narrow and filtered view of the water from the rear deck, as being unreasonable in the circumstances. There was clearly once a strong association with the water on the property, evident from the historical use of the garden and water's edge to the east (tennis and bayside swimming areas), but the subdivision off of this garden area and its development (60A Pellisier Road) has meant the effective loss of this association. The narrow and filtered view across the site, I described above, is not sufficient cause to reject the proposal on heritage grounds. It follows that this view loss is insufficient cause to reject the proposal on amenity grounds insofar as 60 Pellisier Road is concerned, with the presence of Morrisons Bay still quite evident with the filtered water views remaining.
The most significant view loss is of course to 62 Pellisier Road. I think the impact will be quite severe. There will still be good water views available either side of the proposal but I acknowledge here that a whole or unbroken view is available now from the upper living area and deck. Nonetheless, the proposal is more than compliant with regard to the aspects of it which affect this view (well over 1 m, and up to about 1.6 m below the height control depending on interpretation), and in that sense the proposal brings only an impact reasonably expected in the circumstances.
The view loss from 62A Pellisier Road will be much less severe with the best views still available, albeit with a northern segment of the wide bay view now lost.
In the circumstances, the proposal satisfies reasonable view sharing requirements under the planning controls and mindful of Tenacity principles.

Other issues

Objections were also raised in regard to privacy and site landscaping. The amending plans addressed the privacy question to the satisfaction of the planning experts, and I am also satisfied that a reasonable screening configuration is proposed, also noting the setback of the proposed upper storey and the prevalence of neighbour overlooking in water side settings such as this. A condition of consent (Condition 44) requires pruning of bamboo and a native frangipani which should bring about some protection of views for neighbours.
In consideration of certain jurisdictional matters raised in RLEP and otherwise, I rely on the Ryde Local Planning Panel assessment report (Ex A Tab 10.2) noting the following:

With respect to cl 6.1 and acid sulfate soils - the site is affected by Class 5 acid sulfate soils and while it is within 500m of Class 2 land, the proposal does not include any significant excavation and it would be unlikely to lower the water table below 1m AHD;
With respect to cl 6.2 and earthworks - I have given consideration to the cl 6.2(3) matters and noting the proposal brings only minor earthworks, I accept Council advice that these matters are satisfactorily attended to with the proposal;
With respect to cl 6.4 and stormwater - I am satisfied in regard to the matters at cl 6.4(3) matters based on Council's engineering conclusions, I accept Council advice that these matters are satisfactorily attended to with the proposal; and
With respect to State Environmental Planning Policy No 55 - Remediation of Land, and in particular cl 7(1), I note and accept the advice that the site has been used for residential purposes for an extended timeframe and is not considered to be at risk of contamination. No further consideration is required in this instance.

Conclusion

Based on the above evaluation, the proposal warrants conditional approval.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to LDA2020/0327 seeking development consent for partial demolition, alterations and additions to the existing dwelling at 64 Pellisier Road, Putney subject to conditions of consent at Annexure 'A'. 3. The exhibits are returned with the exception of 2, A and B.

Commissioner of the Court Annexure A (220036, pdf) Plans (6209563, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2021

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Cases Cited (3)