There is agreement between the parties that the building as existing does breach the numerical heights.
Council has accepted these heights in the approval granted (CC 100/01 of 19 April 2001), albeit for plant room and storage.
Amended plans show a reduced height for the bedrooms at the rear of the proposal and the additional areas proposed to be no greater in height than that approved, albeit over a larger area.
The DCP does permit increases in height to fulfil Councils Townscape objectives subject to 2 criteria set down in 1.2(2) of the DCP.
These are that the structure is designed as an integral part of the building in such a way as to appear an appropriate part of the overall townscape and not conflict with overall townscape objectives and secondly that any roof space is not designed or used as habitable space.
The proposal would fail the second of these requirements as the roof space is clearly designed for habitable use (as is the case in the adjoining building and others in the locale) but Council has approved the height of the building based on these criteria so it is assumed that the existing approved building envelope satisfies these criteria.
The matter to then be considered is whether the additional development beyond the approved envelope would satisfy the same test.
Clauses 3 & 4 then are also to be considered. These add to the consideration for height variation by assessment against adjoining building heights and the existing building envelope.
Further Section 1.5 of the DCP refers to maximum building height for heights of existing, non-complying buildings and refers back to Clause 2 (iv).
A photomontage and streetscape elevations have been supplied for the frontage to North Steyne to assess the impact regarding the height association with adjoining buildings and consistency of application of Councils DCP in the area between The Corso and Raglan Street on North Steyne.
Based on the information presently available it is my opinion that the proposal at the rear of the site is a positive improvement and meets the objectives of the Townscape other than the use as habitable space and is generally within a building envelope that Council has found previously satisfactory in regards to height.
Any increase in development at the rear of the site will not impact upon the streetscape from Henrietta Lane.
The impact on North Steyne is considered by site inspection, the North Steyne photomontage and the streetscape elevations in Appendix 8 to be acceptable townscape, of equivalent height to the adjoining building and lower than others in the immediate vicinity.
Issue 4; Loss of View and Privacy:
At the time of compiling this statement access to all the relevant objectors properties has not been available particularly units 506, 605 & 606 9-15 Central Avenue. Unit 505 has been visited and is the closest unit to the proposal.
In considering the concept of view loss, privacy and the matters of bulk and scale as per Issue 1, the impact on the existing amenity is to be addressed.
In the MLEP clause 4(a)(viii) which sets out the Policies and Strategies the consideration is to "not degrade the amenity of surrounding residences or the aesthetic quality of the Municipality."
Objective D6 of the aims and Objectives of the DCP appears to be the most relevant here seeking controls of building form "to achieve a consistent and coherent townscape appropriate to the locality."
Section 1.4 of the DCP again relates to position and townscape which is defined and proposes examination of an application from 3 perspectives;
(i) from a distance, outside the locality, and then along the routes and from the viewpoints leading towards the locality;
(ii) the spaces within the locality formed by the buildings and the elements;
(iii) the buildings themselves: their details and relationship to each other.
The photographs accompanying this statement as Appendix 2 seek to provide views from these locations to examine the proposal for Townscape.
In addition the photomontages presented by the applicant are considered to assist in this consideration.
Based on the photomontages and the photos in Appendix 2, the development to the rear of the site is considered to be a positive improvement to the amenity of the area from which it can be
seen, being the adjoining units and distant higher level views of the Whistler Street Carpark Level 12 for example.
The additional floor space in this area has no detrimental impact upon views. Indeed it is considered to be a positive impact. The reduced ceiling height in the amended plans and alteration to mechanical plant items assists to improve views.
The proposal is designed to safeguard privacy and appears to meet the building separation suggested standards of the Residential Flat Design Code to SEPP65 of 12m between habitable roomsibalconies between the apartments at 9-15 Central Avenue and the proposed upper level development.
The development to the North Steyne frontage is limited to generally the pergola area as existing and causes little if any loss of view. It is considered that any extension on this upper level should not reduce the view and if possible increase the views available from the adjoining apartment building at 9-15 Central Avenue. Amended proposals from the applicant seek to achieve such a view improvement.
The proposal is not visible from Henrietta Lane but the upper frontage areas are visible from North Steyne and the beach promenade.
In considering the proposal from the North Steyne frontage the photos of Appendix 2 show that with the sites pergola as a reference point, the proposal will be visible from soiree aspects but when viewed in association with the existing streetscape heights, bulk and scale, particularly to Raglan Street, will not be detrimental to the streetscape.
Principles of view sharing have been set down by the Court in the case Tenacity Consulting v Warringah [2004] NSWLEC 140. Senior Commissioner Roseth in paragraphs 25 - 29 of that judgement sets a 4-step assessment. As follows;
"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. "
Applying the steps based on the photomontages of the applicant;
o Firstly the assessment of the views to be affected
The photos of Appendix 2 and the photomontages show water views, headlands and in parts water/land interface. The photomontages show the views to be preserved and in some cases improved.
+ Secondly to consider which part of the property the views are obtained. The views are across the site from the rear of the apartment building however Council height controls are established to promote a concept of lower buildings along the beachfront. The site inspection from unit 505 show that views from living areas, kitchen etc will not be impacted upon to any significant degree. Photos in Appendix 2 show views from other areas of the outdoor living area where tables and chairs are located will be affected to a negligible degree. Appendix 9 shows the view impact from unit 505 from the balcony and living area location.
+ Thirdly to assess the extent of the impact.
Based on the Senior Commissioner's suggested scale I consider the impact to be negligible on the apartments of 9-15 Central Avenue which have been able to be visited.
+ Fourthly the assessment of the reasonableness of the proposal causing the impact.
While the proposal does not meet the development standards it is within generally the building envelope as existing or where beyond that envelope, does not adversely impact upon the views. It is considered the impact upon the views in reasonable.
Notwithstanding the above comments. A principle that should be considered in this application is whether the existing view impediments can be reduced and the views improved by better design and location of elements.
The lift overrun is a point in question and the possibility of lowering the roof of the present building and relocation or rearrangement of ducting etc on the rooftop. The applicant has advised that a number of changes including lowering of the rear roof level and changes to mechanical plant elements will be proposed (See Appendix 10).
Based on the information available, it is my opinion that the severity of the view loss in the current design is negligible and satisfies the objectives of view sharing of Councils DCP.
It is also my opinion that the separation of habitable rooms is satisfactory for this form of development in a town centre situation and superior to existing privacy and habitable room separation existing in the immediate vicinity.
On the issue of Privacy, the units of 9-15 Central Avenue do little to safeguard their privacy and are exposed for viewing from many locations. The adjoining site to the north on North Steyne has the possibility to be overlooked across the northern boundary (see photo 26 Appendix 2). This could be minimised by a privacy device and condition if approved.
Issue 5; Carparking:
The officers report on the matter states that there exist on site seven carparking spaces, a loading dock and a visitor parking space.
That report states that the amount of carparking required under the DCP for the current use of the building is sixteen (16) spaces.
The applicant in the submitted SEE to the application states that the proposal will comprise a total of 8 units creating a demand under the DCP of 4 spaces plus 1.25 visitor spaces.
Based on the previous approvals provided (DA 215/98), Council in the consideration of the conversion of the former cinema which included 4 units, Council accepted no spaces for the commercial component, but considered parking for the residential to be essential and also that a visitor space was not required.
Council in May 2001 approved a s96 Application which increased the number of units to six (6) with the comment in the report that seven (7) carparking spaces as well as one (1) visitor space exist on site which meets the car parking requirements for the residential component of the DCP. No condition related to car parking was proposed.
Based on these approvals, it is considered that carparking is required for the residential component only of the building in accordance with the DCP.
The residential component of the proposal including the existing residential units is 6 x 1 bedroom units and 2 x 2 bedroom units.
Based on the DCP requirements, this is 4 spaces for the 1 bedroom units at the rate of 2 spaces per 3 dwellings and 2 spaces for the 2 bedroom units at the rate of 1 per unit. A total of 6 spaces are required for the building.
Visitor spaces are required at the rate of 1 per 6 units. This would add 1.25 spaces rounded to 2 spaces to the total.
Council accepts there exists on site seven (7) spaces plus one (1) visitor space being a total of 8 spaces. This is the number required to comply with the residential component on the building for the DCP.
Councils view is that if a surplus of spaces exists on site above the minimum required for residential then those spaces are for the commercial activity on site and should be preserved, requiring either additional spaces on site for the increased development or a s94 contribution if commercial spaces are lost.
The applicant does not consider this view reasonable.
I do not consider this a reasonable approach considering previous Council consideration.
The proposal complies with the DCP and Councils previous decision on commercial component car parking and meets the Zone objective and objectives of the DCP.
It is my opinion a carparking issue does not exist.
Issue 6: Foreshore Scenic Protection Area:
No guidance is available to consider this specific impact on the Foreshore Scenic Protection Area other than detrimental impact as setout in previous issues.
If the impact of the proposal is assessed from the North Steyne frontage to be neutral or positive, i.e. not detrimental, than the consent authority can be satisfied and grant consent.
Based on the site inspection, North Steyne photomontage and streetscape elevations, it is my opinion that the proposal does not have a detrimental impact upon the Foreshore Scenic Protection Area, is of similar height and scale to adjoining development and is compatible with surrounding development under the Project Venture Test.
Conclusions.
15 Having considered the evidence and undertaken a view, I am satisfied that Mr Young has adequately addressed the outstanding issues and in the absence of any substantive challenge to his conclusions, I am satisfied to rely on them in granting conditional consent.