Belling v North Sydney Council

History

1. Numbers 9 and 11 Commodore Street are situated on what was originally part of 5 John Street. John Street runs parallel to, and south of Commodore Street.
2. From the late 1980s through to the early 2000s, a series of development applications for 5 John Street was submitted to Council and rejected. In most cases, these decisions were appealed to the Land and Environment Court and the appeals were refused. (Council's bundle, Exhibit 4, tab 1, folio 5). In 2008, Development Application No. DA 50/08 was made, proposing the demolition of the existing (5 John Street) dwelling, erection of two dwellings to each of the street frontages and subdivision into two lots. This application was approved.
3. However, DA 50/08 was not acted upon and in 2009 a new development application DA 348/2009 was made for the demolition of the existing dwelling, subdivision into two lots, construction of one dwelling and one duplex with subsequent strata subdivision of the duplex. The new dwelling was to be on the southern lot, and the duplex on the northern lot. This application was approved in February 2010, subject to conditions. It will be necessary to refer to some of these conditions later in this judgment.
4. Development Application No. DA 348/2009 was acted upon. The new dwelling retains the address 5 John Street, the duplex became 9 and 11 Commodore Street.
5. The current appeal has as its core issue the height of the fence on the Commodore Street frontage. Given that access to the dwelling is obtained from Commodore Street, and the address is 9 Commodore Street, this fence is, for purposes of planning controls, a front fence. As Mr Tomasetti pointed out, if the subdivision had not occurred, the boundary along Commodore Street would have been the rear boundary of the original 5 John Street and the permissible fence height would have been 1.8 m, much higher than the existing and the proposed fences and with a considerable greater impact on views.
6. Subsequent to the completion of 9 Commodore Street, DA 374/2014 was approved on 28 October 2014 permitting the construction of an external freestanding staircase to the garden. In October 2017, approval was granted to DA 133/2017 for the construction of an awning frame, with retractable fabric awning, over the deck west of the dining area. The approval was for a substantially shorter frame (2500mm) than that originally applied for (3750mm). This frame has been installed and was observed during the site inspection. Many of the photographs in evidence were taken before the installation of the frame and awning and this has to be taken into account in evaluating the evidence. The more recent images do show the frame.
7. Development Application No. 311/17 was received by Council on 6 September 2017, and was notified for public comment. Two or three submissions by way of objection were received (there appears to be a discrepancy between Exhibit 4, tab 1, folio 6 and Exhibit 4, tab 3, folio 6 in regard to the number of objectors). The most extensively documented objection was made by the owners of 8 Commodore Street. The development was assessed, and the consideration reported in a Delegated Report to the General Manager (Exhibit 4, tab 1). The Delegated Report was prepared by a student planner, but was endorsed by the Team Leader (Assessment), Mr Hoy.
8. There is internal inconsistency in the Delegated Report. In regard to impact of views from the public domain, it is stated on folio 18 that the impact 'is generally considered acceptable', but in the recommendations (folio 19) the impact of the proposal on views from the public domain is 'considered to be significant and unreasonable…'
9. The conclusions to the Delegated Report recommended refusal on three grounds: 1. Height of the front fence is uncharacteristic and excessive; 2. Unreasonable view impact to private property; 3. Unreasonable view impact on the public domain.
10. These reasons were included in the Notice to Applicant of Determination of a Development Application (Exhibit 2, tab 4) and also form the basis of the contentions in the Statement of Facts and Contentions (SOFAC) (Exhibit 1).

Context

1. Commodore Street is a narrow street oriented east-west (it is not strictly due east-west but close to it, and it is convenient to refer to the northern and southern sides of the street). The street is accessed at its eastern end from Dumbarton Street and reaches a dead end at its western end. At this end of the street there is no turning head (Photograph 1). Photograph 1: Aerial view of the site and surrounding area. (Reproduced from Figure 1(b) in Exhibit 2).
2. To the west is a railway line. This is variously described as the Lavender Bay Rail Siding (in Delegated Report - Exhibit 4, tab 1) and the North Shore Line (MB Town Planning Report - Exhibit 4, tab 3, folio 28). It is probably best described as the spur line to the Lavender Bay Rail Siding, and it is an item of heritage (Exhibit 4, tab 3, folio 2 and Exhibit 4, tab 3, folio 51) and as discussed by Mr Doyle, under cross examination during evidence from the joint experts.) The railway is a prominent element in the views from several locations (see for example Photograph 2). Photograph 2: Railway line and paved outside terrace, viewed from Commodore Street. (Reproduced from Figure 5 in Exhibit 4, tab 3, folio 31)
3. This figure also shows the paved outside terrace of 9 Commodore Street. This terrace is below the railway embankment and is not on the Applicants' land. The land is leased from the rail authority, and on Ms Williams' evidence, the lease can be terminated on one month's notice.
4. The figure shows the current (galvanised), and previous (rusted iron) structures for supporting the power cables for the railway. These form intrusive elements in the views shown in many images in evidence. For operational, and perhaps heritage, reasons, these will be a permanent feature of any views across the railway. There are also trees associated with the railway corridor, which from some angles restrict views to the west, and which may, depending on their management, obstruct more of the views in the future.
5. The streetscape along Commodore Street is comprehensively shown in the images in Appendix H of Exhibit 2 (the joint report of the experts), which illustrate the frontage of every property on both sides of the street. These images clearly demonstrate that there is no consistency as to height or type of construction.
6. On the north side of the street, a substantial length is formed by the access to the properties at 47, 49 and 51 Union Street, in the form of garages and carports. 10 Commodore Street is a block of old-style units, with no fence on the street, but a collection of planters.
7. The frontage of 8 Commodore Street is made up partly of a garage, built to the property boundary, and an open section of fence with plantings, with a height of about 1.4 m. On the south side of Commodore Street, there is a mixture frontage types. Number 15 has a high solid fence (Photograph 3), number 13 has a high fence of mixed construction. Photograph 3: Front fence of 15 Commodore Street. (Reproduced from Exhibit 2, Annexure H, Photograph 5) Photograph 4: View from Commodore Street of part of No. 13 (left) and No. 11 (right) showing setback. The obscured slot view between Nos 11 and 13 is shown. (Reproduced from Exhibit 2, Annexure H, Photograph 8)
8. Photograph 8 also shows that the front of 11 Commodore Street (the other half of the duplex with No. 9) is set back behind the street frontage of No. 13. This is also very clearly seen in Photograph 1.
9. This greater setback arises as a consequence of Condition 6(d) of the approval for DA 348/2009 which requires: "a setback of 1.2 m along the entire frontage to Commodore Street to facilitate widening of the roadway at some future date. No structures other than the concrete footpath are permitted on the setback area. The path is to achieve a cross fall of 4% to the top of the roll kerb".
10. The 'some future date' has not yet arisen. There is no demarcation between the northern edge of the 1.2 m setback and the public footpath; an observer unaware of the history could easily interpret the setback as being part of the public domain. Indeed the MB Town Planning Report prepared for the Laurias appears to be of that assumption - Exhibit 4, tab 3, folio 32 - 'there is a public footway within the Commodore Street road reserve adjacent to that kerb'. What is referred to as 'that kerb' is the concrete footing of the wooden slat fence.

Parking and the setback zone

1. Parking in Commodore Street is very limited. On the south side of the street, the only parking available is at the western end. More parking is available on the northern side, but the need to provide access to garages reduces the number of potential spaces.
2. The parking at the western end of the street is relevant, because of its potential to impact on views from the ground floor of 8 Commodore Street and because of its impacts on the privacy of 9 Commodore Street.
3. During the site view, the parking position on the south side of the western end of the street was occupied by a motor scooter, precluding utilisation by a larger vehicle, so direct observation of the effect on views of a vehicle parked in the position was not possible. However, there are numerous photographs in evidence which display vehicles in that position. Photograph 5 is instructive: Photograph 5: Car parked on south side of Commodore Street. (Reproduced from Exhibit 4, tab 3, folio 35, Figure 13)
4. The image above illustrates the impact of a parked vehicle on the south side of Commodore Street on the view from, according the caption, a standing position (my emphasis) from the front porch of 8 Commodore Street.
5. Photograph 5 also shows the two parking restriction notices defining the length of street in which parking is permitted. Parking is restricted to 2 hours during daytime Monday- Friday, except that residents in the local area parking scheme are permitted unlimited parking. Parking is unlimited overnight and at weekends.
6. The distance between the parking signs is more than one car length. A vehicle could park with its rear level with the eastern parking restriction pole and obstruct a greater part of the water view over the existing fence from the lower storey of 8 Commodore Street than that shown in Photograph 5.
7. There is no restriction on the type of vehicle which can park in the space. Some cars might have a lower profile than that in Photograph 5, but utilities and small vans might cause greater view obstruction.
8. There was no evidence available as to how often vehicles are present in either of the parking spaces (northern and southern) but a range of vehicles is shown in images in documents in evidence suggesting the vehicle presence is frequent.
9. A question arose as to who had installed the parking signs. Mr Doyle (planning expert for the Council) gave evidence during the concurrent evidence of experts that it was unknown whether installation had been by a Council contractor or the building developer's contractor, although it was agreed that the eastern sign was on the applicants' property. Ms Brew (Respondent's submission at par [15]) suggests that it is open to the Applicants and neighbours to pursue with Council the proper placement of the signs.
10. However, what is more relevant is the appropriateness of permitting parking. The rolled kerb is designed to facilitate parking on part of the footpath. This has the effect that pedestrians, or persons alighting from the southern side of vehicles, are likely to step onto the Applicants' property. This is a matter which the applicants have consistently raised with Council (Applicants' submissions at par [12]). It is my recollection of Mr Doyle's evidence that not knowing who installed the parking signs caused him to doubt whether the southern parking spot has been authorised, particularly as parking is not permitted at any other point on the southern side of the street. However, the sign is an 'official sign' and is obviously interpreted as such by the public and residents.
11. Ms Williams included within her Statement of Evidence (Exhibit C), as Attachment 4, a Google Earth image of the western end of Commodore Street in November 2009 prior to the construction of 9 Commodore Street. Photograph 6: Google Earth view of western end of Commodore Street in December 2007. (Reproduced from Attachment 4 in Exhibit C)
12. This image does not show any parked vehicles. At this time there was no concreted setback or formed pavement on the south side of the street, and what was then the northern boundary of 5 John Street comprised a mixture of shrubs and small trees. However, it is not possible from simple observation of the image to determine the height (above street level) of the vegetation and thus it is not possible to reach any conclusions as to the possible obstruction by vegetation of the ground floor views from 8 Commodore Street at this time.
13. Importantly parking restriction signs are shown in the image. The distance between the parking signs on the south side of the street appears to be shorter than the current zone where parking is permitted. The eastern restriction pole on the south side of the street is closer to the end of the street than the pole on the north side, in front of 8 Commodore Street, which is still in the same position. The eastern pole on the south side is now directly opposite that on the northern side. There is nothing in evidence which provides any information as to if or when the parking zone was extended. The parking restriction signs shown in the image were installed close to the edge of the road, not, as is now the case, at the southern edge of the 1.2 m setback.
14. In Ms Williams' Statement of Evidence (Exhibit C) (which was admitted into evidence without objection) there is a number of images showing a range of vehicles parked on the pavement on the south side of Commodore Street (Photographs 7 & 8). Photograph 7: Vehicle parked at western end of Commodore Street. (Reproduced from Photo 40, Exhibit C, tab 20) Photograph 8: Vehicle parked at western end of Commodore Street. (Reproduced from Photo 41, Exhibit C, tab 20)
15. Although the demarcation between the setback on the Applicants' property and the public footpath is not marked on the images it appears probable that both photos (and others in Ms Williams' statement, and in other photographs in evidence) show vehicles parked closer than 1.2 m from the inner edge of the setback.
16. It is clear that prior to the construction of 9 and 11 Commodore Street, there was an approved parking spot on the southern side of Commodore Street at the extreme western end of the street. The Development Consent No 348/09 (Council's bundle, Exhibit 4, behind tab 8) includes, at folio 121, a plan prepared by Revay & Unn which indicates a single car parking spot at the western end of the street.
17. There is nothing in evidence which provides an explanation of when (or even whether) approval to extend the parking zone further to the east was given.
18. The setback from the footpath was required under the conditions for Development Consent No 348/09: (see at [30])
19. The condition requires a concrete footpath but is silent as to the ownership of any path.
20. In addition: Condition I2 in Development Consent No. 348/09 provides that: "at no time shall works be undertaken or any other activity (i.e. including parking) occur within the 1.2 m setback to Commodore Street."
21. Given the position of the parking zone signs, the roll kerb which facilitates vehicles mounting the pavement, and the absence of any demarcation between setback and public pavement enforcement of this condition would be difficult. Mr Tomasetti pointed out that it is a condition which is clearly breached regularly.
22. The Applicants do not have any practical means to enforce the condition. No evidence was provided as to how frequently Council Rangers may be present in Commodore Street, or whether they would be aware of Condition I2.
23. The failure to provide demarcation between the setback zone, which on the uncontested evidence of the Applicants is on land owned by them, and the official public footpath is a contributory factor to the situation which the Application seeks to address.
24. It is not clear that the distinction between public footpath and the setback zone has always been fully appreciated by Council officers. The Respondent's SOFAC (Exhibit 1) includes, at par [4], a statement that: "the footpath of the street enters approximately 1.2 m into the site."
25. The Applicants in their SOFAC in Reply (Exhibit B) agree with the facts in the Council's SOFAC and did not object to the statement quoted above.
26. The Applicants' SOFAC in Reply (Exhibit B at 2c-g) refers to the setback zone as being part of the Footpath Area (the Footpath Area includes the setback zone and the contiguous public footpath) pointing out that the setback remains owned by them (2f) and that use of the Footpath Area by the public has not been authorised by them. The Applicants argue that the trespass onto the setback impacts on their use and enjoyment of their property and also exposes them to unwonted potential public liability claims (the public liability issue was not explored but it was clear both from Exhibit B and Ms Williams' evidence on-site that public liability is a concern to the Applicants).
27. Ms Williams in her Statement (Exhibit C) included, in Attachment 3, correspondence from the Team Leader Building Compliance about the presence, in May 2017, of two planter boxes in the setback area. 'Regarding the installation of the planter boxes along the footpath adjoining the boundary fence at the property, this is not permissible. The planter boxes have been placed on Council property and they pose a potential safety risk'. This demonstrates a misunderstanding by the Council officer as to the ownership status of the setback.

The planning framework

1. The applicable local environmental plan is North Sydney Local Environmental Plan 2013 (NSLEP). The aims of NSLEP are given in cl 1.2: 1.2 Aims of Plan (1) This Plan aims to make local environmental planning provisions for land in North Sydney in accordance with the relevant standard environmental planning instrument under section 33A of the Act. (2) The particular aims of this Plan are as follows: (a) to promote development that is appropriate to its context and enhances the amenity of the North Sydney community and environment, (b) in relation to the character of North Sydney's neighbourhoods: (i) to ensure that new development is compatible with the desired future character of an area in terms of bulk, scale and appearance, and (ii) to maintain a diversity of activities while protecting residential accommodation and local amenity, and (iii) to ensure that new development on foreshore land does not adversely affect the visual qualities of that foreshore land when viewed from Sydney Harbour and its tributaries, (c) in relation to residential development: (i) to ensure that new development does not adversely affect residential amenity in terms of visual and acoustic privacy, solar access and view sharing, and (ii) to maintain and provide for an increase in dwelling stock, where appropriate, (d) in relation to non-residential development: (i) to maintain a diversity of employment, services, cultural and recreational activities, and (ii) to ensure that non-residential development does not adversely affect the amenity of residential properties and public places, in terms of visual and acoustic privacy, solar access and view sharing, and (iii) to maintain waterfront activities and ensure that those activities do not adversely affect local amenity and environmental quality, (e) in relation to environmental quality: (i) to maintain and protect natural landscapes, topographic features and existing ground levels, and (ii) to minimise stormwater run-off and its adverse effects and improve the quality of local waterways, (f) to identify and protect the natural, archaeological and built heritage of North Sydney and ensure that development does not adversely affect its significance, (g) to provide for the growth of a permanent resident population and encourage the provision of a full range of housing, including affordable housing.
2. Commodore Street is included within Zone R3 Medium Density Residential. The objectives of the Zone are: Zone R3 Medium Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage the development of sites for medium density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area. • To provide for a suitable visual transition between high density residential areas and lower density residential areas. • To ensure that a high level of residential amenity is achieved and maintained. 2 Permitted without consent Environmental protection works 3 Permitted with consent Attached dwellings; Boarding houses; Centre-based child care facilities; Community facilities; Dual occupancies (attached); Dwelling houses; Group homes; Home-based child care; Hostels; Information and education facilities; Multi dwelling housing; Neighbourhood shops; Places of public worship; Recreation areas; Respite day care centres; Roads; Semi-detached dwellings; Seniors housing 4 Prohibited Any development not specified in item 2 or 3
3. Fences are not specifically mentioned as being permitted with consent but they would be ancillary to a number of permitted uses and thus would be permissible.
4. 62 ­The North Sydney Development Control Plan (NSDCP 2013) contains a number of provisions which apply to consideration of the issues in these proceedings. Part B of NSDCP 2013 subsection 1.3.6 sets objectives and makes provision for protection of views "1.3.6 Views Due to North Sydney's sloping topography and proximity to Sydney Harbour, views and vistas comprise special elements that contribute to its unique character and to the amenity of both private dwellings and the public domain. New development has the potential to adversely affect existing views. Accordingly, there is a need to strike a balance between facilitating new development while preserving, as far as practicable, access to views from surrounding properties. When considering impacts on views, Council will generally not refuse a development application on the grounds that the proposed development results in the loss of views, where that development strictly complies with the building envelope controls applying to the subject site. Objectives O1 To protect and enhance opportunities for vistas and views from streets and other public places. O2 To encourage view sharing as a means of ensuring equitable access to views from dwellings, whilst recognising development may take place in accordance with the other provisions of this DCP and the LEP. Provisions P1 Development should be designed such that views from streets and other public places, as identified in the relevant area character statement (refer to Part C of the DCP), are not unreasonably obstructed. P2 Development should be designed to maximise the sharing of views from surrounding properties and public places … P4 Where a proposal is likely to adversely affect views from either private or public land, Council will give consideration to the Land and Environment Court's Planning Principle for view sharing established in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. The Planning Principle is available to view on the Land and Environment Court's website (www.lawlink.nsw.gov.au/lec)."
5. The principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 (Tenacity) apply to viewing sharing from private land. The relevant principle relating to views from public land is that in Rose Bay Marina Pty Limited v Woollahra Municipal Council and anor [2013] NSWLEC 1046 (Rose Bay Marina).
6. Part C subsection 1.3.10 deals with visual privacy and has a single objective: "1.3.10 Visual privacy Objectives O1 To ensure that existing and future residents are provided with a reasonable level of visual privacy."
7. The provisions for achieving the objective are not relevant to the proposed fence or the circumstances of the case, although Objective O1 can be taken to be a general statement of principle which is relevant.
8. Section 1.4 deals with built form and Objective 1.4.1 requires that the proposal be assessed within its appropriate context: "1.4 QUALITY BUILT FORM In response to their local context, buildings need to be designed to respect the existing topography and relate to the rhythm and pattern of characteristic buildings in the prevailing streetscape. A comfortable and memorable street will be one where no one building or feature dominates. Kerb and guttering, footpaths, fences, front gardens and the street frontage of buildings all contribute to the appearance of a street and influence how people feel in them and about them. Streets where people feel comfortable will exhibit consistency in these elements and relationships between the scale of these elements. 1.4.1 Context Objectives O1 To ensure that the site layout and building design responds to the existing characteristics, opportunities and constraints of the site and within its wider context (adjoining land and the locality). Provisions P1 Proposed developments must be designed to respond to the issues identified in the site analysis and in the relevant area character statement (refer to Part C of the DCP)."
9. Subsection 1.4.14 applies to front fences and is reproduced below with the exception of P6(b), which is not applicable to Commodore Street. "1.4.14 Front fences This subsection of the DCP applies to fences which are located between the front property boundary and the street elevation of the building. Objectives O1 To ensure that front fences contribute to a characteristic pattern of fences. O2 To enable causal surveillance of the public domain, minimising the potential for criminal activities to occur. O3 To provide visual and acoustical privacy. O4 To minimise their dominance on the street and contribute to a garden setting. Provisions P1 Front fences and side fences located between the street frontage and its respective building line are not to exceed 1m in height. Where sites have a dual street frontage, consideration may be given to higher side fences to provide privacy. P2 Fences should be designed and constructed with materials similar to those identified in the relevant area character statement (refer to Part C of the DCP), if provided. P3 The design of the fence should not obscure views of the building and garden areas from the street. P4 Transparent fences (i.e. comprising no more than 50% solid construction - measured vertically across its entire length) must not exceed 1.5m in height, unless otherwise indicated in this DCP. P5 Solid fences (e.g. masonry, lapped and capped timber, brushwood) must not exceed 1m in height, unless otherwise indicated in this DCP. P6 Despite P4 and P5 above, Council may permit a higher fence in the following instances: Where the scale and or heritage value of the property are appropriate for a higher fence, Council may allow a fence up to 1.5m in height but only where that part of the fence over 1.2m is of open construction. P7 Fences should incorporate setbacks from the boundary of the site and be articulated to minimise their visual impact. P8 Must not reduce the significance of any heritage item or heritage conservation area. P9 Soften the appearance of solid fences by: (a) providing a continuous landscaped area of not less than 600mm wide on the street side of the fence or (b) the use of openings, variation in colour, texture or materials to create visual interest. P10 Match the height of transparent fences (such as metal grille) to the characteristic height in the street."
10. The proposal is to increase the height of a section of the existing fence by installing additional slats, comparable to those in the existing fence. The slat fence proposed is not, for purposes of P6(a), of open construction.

The Heritage Conservation Area

1. Commodore Street falls within the Union, Bank, Thomas Street Heritage Conservation Area and is proximity of a number of heritage listed items associated with the railway line (page 17 of the Statement of Environmental Effects prepared for the Applicants by Environet Consultancy Pty Ltd, included within the Application (Exhibit D)).
2. There was agreement that none of the buildings in Commodore Street are, of themselves, of heritage significance.
3. The area character statement applying to the Union, Bank, Thomas Street Conservation Area is in Part C subsection 9.10 of the NSDCP 2013.
4. Significant provisions of subsection 9.10.4 relevant to the matter are: "Views P8 Dumbarton Street lookout, Commodore Crescent lookout, Lord Street lookout. P9 Dumbarton Street, Commodore Street, John Street: views to Berry's Bay. P10 Slot views over and between buildings throughout area."
5. Commodore Crescent is situated to the west of the railway line and has no access (vehicular or pedestrian) directly to Commodore Street. Views to Berrys Bay from Commodore Street are identified as significant in P9. A slot view, offering tantalising glimpses of water, is available between 13 and 15 Commodore Street, as was observed during the site inspection. A slot view which may once have been available between 11 and 13 Commodore Street is now obscured. (See Photograph 4)

The Contentions

1. The Respondent's first contention is:

• the proposed increase height of the front fence presents uncharacteristic unreasonable height and bulk to Commodore Street and results in unreasonable view loss from Commodore Street.

1. This has two components: 1. the uncharacteristic unreasonable height and bulk of the fence and in consequence, 1. the view loss from the public domain in Commodore Street
2. The two components will be addressed separately.
3. The proposal involves an increase in height of the fence which is contrary to Provision P1 of Part B subsection 1.4.14 of NSDCP 2013.
4. As discussed earlier there is a considerable difference between the front fences on the northern and southern sides of Commodore Street.
5. The fences on the south side of the street, if constructed today, would not comply with the DCP. However, the existing characteristic pattern of fences on the south side of Commodore Street is high (1.8 m) and of solid construction. For North Sydney as a whole Objective 1 of DCP subsection 1.4.14 is: "O1 To ensure that front fences contribute to a characteristic pattern of fences."
6. If, at the local scale, the characteristic pattern of fences currently existing is different from that set in the NSDCP 2013, is strict adherence to the provisions of the NSDCP 2013 desirable if adherence would result in any new fences being dramatically different in appearance from the existing pattern of fences? The existing fence to 9 Commodore Street was constructed prior to the introduction of NSDCP 2013, but was constructed according to the conditions of consent imposed on the development. This resulted in a fence which in colour, construction and height differs from those of the other properties on the south side of the street. The proposal is for a heightened section of fence which in terms of material and construction would be comparable with the existing fence, but, taking the street as a whole, the fence at 9 Commodore Street if the proposal is approved would still not be comparable with the other fences on the same side of the street.
7. Objectives O2 and O3 of the NSDCP 2013 subsection 1.4.14 "O2 To enable causal surveillance of the public domain, minimising the potential for criminal activities to occur. O3 To provide visual and acoustical privacy" are potentially in conflict.
8. Objective O2 encourages looking out from dwellings for the purpose of surveillance to limit possible occurrence of crime. The existing streetscape does not promote this objective. It is not possible for the residents at 13 and 15 Commodore Street to engage in casual surveillance of the public domain - and conversely it is not possible for a casual observer from the street to see the front of 13 and 15 Commodore Street. It is important to point out that the dwellings at 13 and 15 (and 9) Commodore Street are situated below the level of the street, so that absent the high solid fences in front of 13 and 15 a casual observer in Commodore Street would be looking down into the dwellings.
9. In relation to O3, acoustic privacy was not subject to discussion, although noise of talking and use of phones was mentioned as a component of the privacy impacts, but visual privacy is at the centre of the case. Particularly in circumstances where the dwellings are set below the street level, achieving visual privacy for residents of the dwellings while at the same time promoting casual surveillance of the street by residents would be incompatible. The existing arrangement of fences in front of 13 and 15 Commodore Street is appropriate given the local topography.
10. Objective O4 is "[t]o minimise their dominance on the street and contribute to a garden setting."
11. The fence in front of 9 Commodore Street by virtue of its construction and height could be said to be less dominant than those at 13 and 15 but this is achieved by having a form of fence which is of an appearance which contrasts with, rather than being characteristic of, the other fences on the south side of Commodore Street.
12. In terms of contributing to a garden setting, Commodore Street has an absence of street trees, and it would appear that the Council is not sympathetic to the installation of planters in front of fences.
13. While Provision 9 promotes the provision of a continuous landscaped area of not less than 600 mm wide on the street side of the fence this is not practicable in this instance, and would in any case not be compatible with maintaining the 1.2m setback clear of obstructions.
14. In my opinion, notwithstanding the requirements of NSDCP 2013 subsection 1.4.14, strict application of the NSDCP 2013 requirements would be neither desirable nor practical in the particular circumstances of Commodore Street and as such the first part of the contention cannot be upheld. That part of the contention raising view loss from the public domain is an issue is dealt with below.

Impact on views from the public domain

1. Council contends that the proposal will have significant and unreasonable impacts on views identified within the Union, Bank, Thomas Street Conservation Area. The views which may be relevant are those identified in Part C, subsection 9.10.4, Provisions 9 and 10 of NSDCP 2013. There are no lookouts formally identified as such in Commodore Street so Provision 8 is not applicable. The slot view available in Commodore Street is between 13 - 15 Commodore Street, to the east of 9 Commodore Street, and is in no way impacted by the proposal. The relevant question is thus whether there are likely to be impacts on views to Berrys Bay from Commodore Street, which could be attributed to the proposed increase in height of the fence.
2. The planning principles in Rose Bay Marina at [39] - [59] are applicable to the assessment of impacts on views from the public domain "39 Tenacity Consulting v Warringah [2004] NSWLEC 140; (2004) 134 LGERA 23, sets out the planning principle for considering the acceptability of the impact of a proposed development on the views enjoyed from private property in the vicinity of the development. This planning principle was adopted through the collegiate process that has been described on the Court's website for the derivation of such principles. 40 In these proceedings, we discerned the potential for developing a planning principle setting out a process for assessing the acceptability of the impact of private developments on views from the public domain in the vicinity of the development. 41 To this end, we identified the potential for such a planning principle to the advocates for the parties and sought submissions from them about such matters of general principle. These submissions were in addition to their submissions on the specific matters subject of the present proceedings. As we have developed such a planning principle through the broad collegiate basis earlier noted, we express our appreciation for the assistance we received from all three parties on this point. The planning principle set out below, of course, is that of the Court rather than that of any or all of those parties. 42 The framework for a planning principle concerning impacts on views enjoyed from the public domain is broadly consistent with (but not identical to) the matters raised for consideration in Tenacity. The process must account for reasonable development expectations as well as the enjoyment of members of the public of outlooks from public places. 43 The steps for determining the acceptability of the impact on views from the public domain are in two stages - the first factual followed by a second, analytical process. Identification stage 44 The first step of this stage is to identify the nature and scope of the existing views from the public domain. This identification should encompass (but is not limited to): • the nature and extent of any existing obstruction of the view; • relevant compositional elements of the view (such as is it static or dynamic and, if dynamic, the nature and frequency of changes to the view); • what might not be in the view - such as the absence of human structures in the outlook across a natural area (such as the view from Kanangra Walls); • is the change permanent or temporary; or • what might be the curtilages of important elements within the view. 45 The second step is to identify the locations in the public domain from which the potentially interrupted view is enjoyed. 46 The third step is to identify the extent of the obstruction at each relevant location. • Unlike Tenacity (which adopts the proposition that sitting views are more difficult to protect than standing views), the impact on appreciation of a public domain view should not be subject to any eye height constraint. A public domain view is one that is for the enjoyment of the whole population, old or young and whether able-bodied or less mobile. It is not appropriate to adopt some statistically derived normative eye height for the assessment of such views (such as the conventionally adopted 1.6m eye height for the assessment of overlooking privacy impacts). Indeed, some views (such as that from Mrs Macquarie's Chair toward the Opera House and Harbour Bridge) may well be ones likely to be enjoyed frequently from a seated position. 47 The fourth step is to identify the intensity of public use of those locations where that enjoyment will be obscured, in whole or in part, by the proposed private development. 48 The final step to be identified is whether or not there is any document that identifies the importance of the view to be assessed. • This will encompass specific acknowledgment of the importance of a view (for example, by international, national, state or local heritage recognition) or where the relevant planning regime promotes or specifically requires the retention or protection of public domain views. 49 However, the absence of such provisions does not exclude a broad public interest consideration of impacts on public domain views. Analysis of impacts 50 First, we observe that the analytic stage we propose does not mandate derivation of any formal assessment matrix. Consistency of evaluation of the acceptability of impacts on a public domain view is not a process of mathematical precision requiring an inevitable conclusion based on some fit in a matrix. However, some may find their preparation of a graduated matrix of assistance to them in undertaking an impact analysis. 51 The analysis required of a particular development proposal's public domain view impact is both quantitative as well as qualitative. 52 If there is a planning document with an objective/aim for the maintenance, protection and/or enhancement of public domain views, such an objective/aim would appear to create a presumption against the approval of a development with an adverse impact on a public domain view. However, merely adopting and applying such a presumption would be entirely inappropriate. 53 The relevant weight to be given to such an objective/aim will depend on the status of the document containing it and the terms in which it is expressed. An objective/aim proposing "preservation" of views may be accorded a differing weight to one that proposes "minimisation of impacts" on such a view. 54 A quantitative evaluation of a view requires an assessment of the extent of the present view, the compositional elements within it and the extent to which the view will be obstructed by or have new elements inserted into it by the proposed development. 55 In the absence of any planning document objective/aim, the fundamental quantitative question is whether the view that will remain after the development (if permitted) is still sufficient to understand and appreciate the nature of and attractive or significant elements within the presently unobstructed or partially obstructed view. If the view remaining (if the development were to be approved) will be sufficient to understand and appreciate the nature of the existing view, the fundamental quantitative question is likely to be satisfied. The greater the existing obstruction to a view, the more valuable that which remains may be (the desirability of preserving a partially obstructed view, however, will emerge from the qualitative evaluation process discussed below - it may be that preservation of a significantly obstructed view would be mere tokenism). 56 On the other hand, the qualitative aspect of a public domain view assessment is much more nuanced. Such a qualitative evaluation requires an assessment of the aesthetic and other elements of the view. The outcome of a qualitative assessment will necessarily be subjective. However, although beauty is inevitably in the eye of the beholder, the framework for how an assessment is undertaken must be clearly articulated. Any qualitative assessment must set out the factors taken into account and the weight attached to them. Whilst minds may differ on outcomes of such an assessment, there should not be issues arising concerning the rigour of the process. 57 As with Tenacity, a high value is to be placed on what may be regarded as iconic views (major landmarks such as the Opera House or the Three Sisters, for example, or physical features such as land/water interfaces). However, a view that is entirely unobstructed is also valuable. 58 Other factors to be considered in undertaking a qualitative assessment of a public domain view impact include (but are not limited to): • Is any significance attached to the view likely to be altered? • If so, who or what organisation has attributed that significance and why have they done so? • Is the present view regarded as desirable and would the change make it less so (and why)? • Should any change to whether the view is a static or dynamic one be regarded as positive or negative and why? • If the present view attracts the public to specific locations, why and how will that attraction be impacted? • Is any present obstruction of the view so extensive as to render preservation of the existing view merely tokenistic? • However, on the other hand, if the present obstruction of the view is extensive, does that which remains nonetheless warrant preservation (it may retain all or part of an iconic feature, for example)? • If the change to the view is its alteration by the insertion of some new element(s), how does that alter the nature of the present view? 59 A sufficiently adverse conclusion on the impact on views from the public domain may be determinative of an application. However, it may also be merely one of a number of factors in the broader assessment process for the proposal."
3. The operation of the principle has two stages - the identification of the nature and scope of the existing views from the public domain (Rose Bay Marina at [44] - [49]) and the analysis of impacts (Rose Bay Marina at [50] - [59]).
4. In the circumstances of the case it is appropriate to commence with Rose Bay Marina at [45] and identify the public domain involved. NSDCP 2013 draws particular attention to views of, or including, Berrys Bay. The relevant public domain I take to be the roadway and the public pedestrian foot paths west of the eastern most of the parking zone signs. I do not consider the 1.2 m setback, even though it is contiguous with the public footpath, is formally part of the public domain despite it being clearly regarded as such by at least some members of the public.
5. Berrys Bay is a major component of potential views from the relevant public domain; the views worthy of consideration also include other elements, including Balls Head, Goat Island and parts of the Anzac Bridge.
6. Rose Bay Marina at [44] indicates factors which could be included in the identification of the nature and scope of the existing views.
7. The existing views are partly obstructed to the south by rail infrastructure although I acknowledge that to railway or heritage enthusiasts these features may be regarded, not as intrusions, but objects of value.
8. The view contains dynamic features particularly in the form of boats on swing moorings in Berrys Bay, with the orientation of boats varying with state of the tide and wind direction. More distantly there is moving boat traffic in the main harbour channel. Views across Berry's Bay capture bushland on Balls Head and the land/water interface, so that the views include both natural and built features.
9. The fourth step in identification (Rose Bay Marina at [47]) is assessment of public use of locations where enjoyment of use might be obscured in whole or part. No quantitative data on use were presented, but there was agreement between the parties that, as the viewpoints are from the end of a dead-end street without any identified formal lookout, the number of visitors is likely to be small.
10. Rose Bay Marina at [48] requires the identification of any document acknowledging the importance of the view. NSDCP 2013 has an objective in Part A subsection 1.3.6 to protect and enhance opportunities for visitors and to encourage view sharing. In Part C subsection 9.10.4 identifies (P9) that views of Berrys Bay from Commodore Street are significant elements in the Heritage Conservation Area.
11. Rose Bay Marina at [46] discusses identification of view obstructions at relevant locations within the public domain and emphasises that the impact should not be subject to any height constraints as the public domain views should be enjoyed by the whole population. This should be applied in the conduct of the analysis of impacts which is the second part of the application of the Rose Bay Marina planning principle.
12. Mr Tomasetti observed that the analysis of impact process described in Rose Bay Marina was at a high level of generality. Given the diversity of situations in which the principle might be applied, a broad approach is appropriate and must be essentially qualitative and nuanced (Rose Bay Marina at [56]), and a quantitative approach is generally not recommended. It was also stressed (Rose Bay Marina at [59]) that even if there is a conclusion of adverse impacts this may not be determinative and may be only one factor in the broader assessment process.
13. The public domain, from which views including Berrys Bay can be observed from Commodore Street, is very limited. The proposed fence additions will have no impact on views west from the end of Commodore Street or from the pavement west of the end of the proposed higher fence. These unaffected views constitute a large proportion of the total potential views from the Commodore Street public domain.
14. Photograph 9 shows the view, looking south, from the end of Commodore Street next to the end of the proposed raised fence. Photograph 9: The view from the end of Commodore Street looking south. The orange tape is at the height of the proposed fence. The view is from adjacent to the fence. (Reproduced from Photograph 10, Exhibit 2, Appendix H)
15. Depending on the height of the observer the photograph shows that even with a heightened fence views of Berrys Bay and of the land/water interface with Balls Head and beyond to Anzac Bridge could be obtained by an observer standing adjacent to the fence. Such an observer would be standing within the 1.2 m setback, and not on the pavement which is within the public domain. Nevertheless, given the lack of any demarcation between the footpath and the setback it is likely that some people might avail themselves of the view shown in the photograph. Photograph 10: The view from Commodore Street roadway (Note that this photograph also shows the frame of the realty installed awning) (Reproduced from Photograph 11, Exhibit 2, Appendix H)
16. Photograph 10 shows the view from the Commodore Street roadway, which is within the public domain (While protection of views is promoted, this probably does not signify encouragement to stand in the middle of road ways to enjoy views). Unfortunately, this photograph was taken before the installation of the height tape indicator shown in Photograph 9. However, it is likely the top of the heightened fence would be approximately at the level of the person's right hand. The height of the photographer is not reported but Photograph 10 suggests that even at its present approved height the fence has some impact on the view from the public domain to Berrys Bay including obstruction of views of the land/water interface and that the proposed increase height would increase the impact slightly.
17. Although the Respondent contends that the obstruction of views from the public domain is significant, and this is strongly supported in the submissions of the Laurias, this position is more by way of assertion than by a detailed analysis of the Rose Bay Marina principles and of the actual impact that could be caused by the increased height of the fence.
18. The proposal would have little impact on the totality of views available to an observer in the public domain at the western end of Commodore Street. There will be an impact on the view from the public domain looking towards a section of the fence proposed to be increased in height, but the extent of this is unclear in regard to the loss of valued components of the view - being the swing moorings in Berrys Bay and the Berrys Bay/Balls Head land/water interface. An observer in the position implied by Photograph 9 could obtain the same, or very similar, view by moving a few metres further west. The significance of the impacts will need to be considered in an assessment which addresses both the losses of view, and the benefits to the Applicants of the height increase.
19. The Respondents second contention is: "2. The proposed increased height of the front fence results in unreasonable view loss to 8 Commodore Street".
20. The well-known judgment of Roseth SC, Tenacity, established the Tenacity planning principles for addressing view sharing: "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."
21. The expert witnesses (Joint Report, Exhibit 2 and in conjoint oral evidence) and the parties' legal representatives discussed the Tenacity principles at length. The Council's Contention 2, that the proposed increased height of front fence results in unreasonable view loss to 8 Commodore Street, is based on Council's interpretation and application of the Tenacity principles.
22. Notwithstanding the way the case unfolded there is merit in Mr Tomasetti's argument in the Applicants' submissions in reply at [27] that: "This Application is not about the Applicants' views either at all or at the expense of the objectors or the general public, as seemed to have been the case in point in Wenli Wang. It is not a contest between the Applicants and the Objectors about who has the best views. It is about striking a balance between the reasonable need the privacy of the applicants and the balance with any interference with public and private view sharing".
23. The Applicants' view will not be impacted by increasing the height of the fence, the views enjoyed today will still be enjoyed in the future. The question is not one of determining sharing between the Applicants and the Objectors but of what loss of view it is reasonable to impose on the Objectors in order to ameliorate the Applicants' privacy concerns. This is not the question which the Tenacity principles were established to address (see Tenacity at [25]). Nevertheless, the Tenacity principles do help in addressing the issues in this case, although Tenacity does not provide an exhaustive list of considerations of matters relevant to determining reasonableness.
24. The first step in Tenacity at [26] is an assessment of views to be affected. It is asserted that water views are valued more highly than land views. The views of Berrys Bay and the harbour beyond are water views. Iconic views are more highly valued than views without icons. There is no official list, in Tenacity or elsewhere, of iconic views. Tenacity nominates three iconic views - the Opera House, the Harbour Bridge and North Head, none of which is a feature of the view of Berrys Bay from the public or private domain in Commodore Street.
25. Is the view of Berrys Bay, Balls Head, Goat Island and Anzac Bridge iconic? Individual observers will have different ideas about what is iconic, and public appreciations of particular features may change over time. I was not taken to any official statement that afforded iconic status to the features of the relevant views. I note that Ms Williams in her Statement (Exhibit C) did not consider that any iconic view would be affected. She acknowledged that some might regards views of the Anzac Bridge, Sydney Harbour and Goat Island as iconic, but views of these features would still be available even if the proposal were approved. I accept that the views are valued, both by the Applicants and the Objectors, and that weight should be given to this. The land/water interface of Balls Head included some of the views would be regarded as more valuable than views not showing the interface (Tenacity at [26]).
26. The second step (Tenacity at [27]) enquires as to the location of the viewpoint, and states that sitting views are more difficult to protect standing views. Some of the views which the Laurias are most anxious to have protected from obstruction are sitting views from the ground floor of 8 Commodore Street.
27. The third step (Tenacity at [28]) is assessment 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 (including kitchens) is regarded as more significant than on those from bedrooms.
28. 8 Commodore Street has the potential for views from both ground and first floors. The experts were in agreement that the proposal would have no, or at its highest, negligible impact on views from the first floor. Arguably the views from the first floor are 'better' than those from the ground floor. Photograph 11: The view from inside the first floor living room of 8 Commodore Street from a standing position. (Reproduced from Photograph 1, Exhibit 2, Appendix D)
29. The submissions made in response to the Development Application by the Laurias (Exhibit 2, tab 3), and the evidence given on site by Ms Lauria argued that little weight should be given to the availability of views from the first floor on two grounds: 1. the first floor is not a main living area; 2. the first floor is only used after sunset when the view is not available.
30. The first of these points was the subject of exchanges between the experts and Ms Brew and Mr Tomasetti in conjoint evidence, but no agreement was reached. The Applicants' experts pointed out that some cooking facilities were present on the first floor, and these were seen on the site inspection, and while the first floor was not a main living area, in that currently the main kitchen/dining area was on the ground floor, the first floor was a living area, use of which had the potential to be increased.
31. The claim that views were unavailable after sunset was not discussed or challenged so nothing was said about whether boats moving on the harbour at night could be seen or whether, at appropriate times of the month, there might be moonlight on the water.
32. The views from a sitting position on the ground floor are affected by the existing fence (Photograph 12) and the proposed height increase would reduce the available view from a standing position (Photographs 13 and 14). However, all three of these photographs, and numerous others in evidence, show that the extent of available views from the ground floor of Commodore Street, both from sitting and standing positions, is reduced by vehicles parked on Commodore Street. The extent of reduction will not be constant, and there may be times when no vehicles are present, and taller vehicles will cause greater obstruction of views than small cars but the large number of photographs, tendered into evidence by both parties, showing vehicles of some sort in front of 8 Commodore Street shows that obstruction of views by vehicles is not uncommon. In assessing the severity of view loss likely to be caused by raising the height of the fence the obstructions caused by parked vehicles need to be taken into account.
33. The fourth step (Tenacity at [29]) is to assess the reasonableness of the proposal. This stage also requires that the assessor asked questions as to whether a 'more skilful design' would provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. There is no definition of 'more skilful' provided, a matter to which I will return. This case is not about a proposal to construct a new building - the development potential of the site was realised with the approval and subsequent construction of the duplex which includes 9 Commodore Street. The issue is whether the amenity of the constructed development can be improved by raising a section of fence, and if so, whether raising the fence would be a reasonable solution for which the benefits to the Applicants outweigh impacts of the view loss for the Objectors. Photograph 12: Existing view from a seated position at dining table on ground floor of 8 Commodore Street. Note the tape showing the proposed fence and the frame for awning. (Reproduced from Photograph 9, Exhibit 2, Appendix D) Photograph 13: View from ground floor, standing, of 8 Commodore Street, 1m inside glass. (Reproduced from Photograph 7, Exhibit 2, Appendix D) Photograph 14: View from ground floor patio, standing, of 8 Commodore Street. (Reproduced from Photograph 8, Exhibit 2, Appendix D)
34. The key elements of Tenacity in this case are steps 3 and 4. The parties disagree as to the severity of the view loss which will be experienced from the ground floor of 8 Commodore Street. The experts in their joint report (Exhibit 2), and after extensive cross-examination, remained resolute in their opinions. Mr Doyle for the Respondent was adamant that the view loss would be severe. Mr Nash and Dr Lamb held to their opinion that the impact would be low. Ms Brew in submissions (at 9) urged that, on the basis of the evidence and what was observed during the site inspection, the Court should find the view impact at least moderate if not severe.
35. A major reason for the difference of opinion was in the application of step 3 in Tenacity at [28]. The Applicants' assessment was based on the whole of the property not just on the view that is affected. The Respondent, and the Objectors, argued that the ground floor was the principal area of usage and gave little weight to the availability of views from the first floor. In my opinion the Applicants' approach is correctly responsive to Tenacity at [28] and their assessment properly considered the whole property. The relative weight given to impacts on views from the ground floor as against those from the first floor may be a factor to be considered in assessing the reasonableness of the impacts, but the starting point must consider the totality of views available.
36. Even if only the views from the ground floor are considered I would favour the analysis of Mr Nash and Dr Lamb. There is no indication in Tenacity that the qualitative scale of loss advocated in step 4 at [28] (negligible, minor, moderate, severe or devastating) is conceptually linear, or of what is necessary to transition from one category to another, so there is scope for various interpretations in the application of the scale. While there might be general agreement as to what constitutes negligible impact, and what is a devastating impact (complete loss of view) it is probable that different observers might reach varying conclusions about the other categories. While I would agree that from a sitting position the impact on views from the ground floor, taken in isolation would be in the upper part of minor to low in the moderate range, the second step in Tenacity at [27] advises that the expectation to retain side views and sitting views is often unrealistic. The impacts on standing views, although affecting components of the total view regarded in the first step of Tenacity at [26] as more valued, are less than those from a sitting position and I would agree with Mr Nash and Dr Lamb's overall evaluation of minor, taking the totality of available views into account.
37. I also take into account that the ground floor views, whether sitting or standing, will at times be impacted by parked vehicles (on one or both sides of Commodore Street), which depending on vehicle size and position may obscure both raised fence and the views beyond. Parked vehicles, when present, constitute part of the view and the Applicants are not responsible for parking of vehicles.
38. While I would evaluate that, overall, the impacts on views attributable to the fence would be minor, if I be wrong and the Respondent's submitted assessment of 'moderate' is the preferable position, such a view loss may nevertheless be reasonable when assessed against the Applicants' objective of achieving a better privacy outcome.

Privacy

1. The parties agree that the Court is required to assess the relative weight to be given to the privacy concerns of the Applicants as against established planning and view sharing principles.
2. Although the privacy concerns were expressed by the Applicants, any development consent will run with the title. Any consent would be for the benefit of current and all future owners and occupiers of the property - in deciding what is the reasonable expectation of privacy by occupants the expectation is that of a theoretical broader population and is not limited to consideration of any special desired requirements unique to the applicant. The question to be addressed is whether the privacy expectations of the Applicants are those which most potential occupiers would share. If they are they might be considered reasonable. (In making these observations I am not suggesting that the case advanced by the Applicants had any features which could be unique to them, rather that the Applicants are to be considered as part of a larger (and at this stage largely hypothetical) group who might stand to benefit if consent were granted).
3. Privacy is mentioned in the number of times in the NSLEP and DCP, and the expression which is also used 'residential amenity' by implication includes privacy. However, there is little explanation as to what might reasonably constitute privacy and how it might be obtained. Amongst the planning principles listed on the Land and Environment Court website are two which pertain to privacy, and are included in Super Studio v Waverley Council [2004] NSWLEC 91 (Super Studio) and Meriton v Sydney City Council [2004] NSWLEC 313 (Meriton).
4. Neither is directly applicable to the circumstances of the present case, but Roseth SC provided, among a series of dot points listed in Meriton three principles that do have relevance: (at [46]): "The use of a space determines the importance of its privacy. Within a dwelling, the privacy of living areas, including kitchens, is more important than that of bedrooms. Conversely, overlooking from a living area is more objectionable than overlooking from a bedroom where people tend to spend less waking time. … Where the whole or most of a private open space cannot be protected from overlooking, the part adjoining the living area of a dwelling should be given the highest level of protection. … Landscaping should not be relied on as the sole protection against overlooking. While existing dense vegetation within a development is valuable, planting proposed in a landscaping plan should be given little weight."
5. The last of these, cautioning against reliance on landscaping. had been earlier stated in a longer form in Super Studio (at [6]).
6. One ground in the Respondent's arguments against granting consent is that the proposal does not provide for absolute privacy, and, at least implicitly, that since a perfect solution is not sought then there is no point in adopting a second-class option. However, Mr Nash, the Applicants' planning expert in both the joint report of Experts (Exhibit 2) and when under cross-examination explained that what the Applicants were seeking was amelioration of the present situation. The Applicants' case is that they are mindful of the view sharing principles and that the requested increased height of the fence is a compromise between the desire for privacy and the provision of opportunities for views of Berrys Bay and adjacent areas both from the public domain and from 8 Commodore Street. The Applicants' proposal needs to be evaluated as a compromise, and not be rejected because it does not achieve absolute privacy.
7. The Respondent also argued that the open space adjacent to the kitchen/dining area was not the principal private open space of 9 Commodore Street.
8. I was not taken to a formal definition of principal private open space, so must interpret the expression based on everyday use of the component words. Principle implies that is the most used available space. Private implies that the space enjoys an appropriate degree of privacy. The Respondent's case against treating the space as the principal private open space appears to be at least partly based on an argument that the space cannot be private because any measures to increase privacy would have unacceptable consequences.
9. One use of private open space is for entertaining, the value of open space for that purpose is increased by proximity and ease of access to the kitchen area. Accepting the value attached to protection of privacy of kitchens advanced by Roseth SC in Meriton (at [46]), then a similar high-value would logically also apply to the privacy in areas linked to a kitchen and used for entertaining.
10. The Respondent argues that there are other options for outdoor entertainment areas, which if used, could be the principal private open space. For those nominated spaces on the ground and second floor the practicality is questionable, given that the kitchen is on the third floor, and that was no suggestion from the Respondent that the kitchen should be relocated. In addition, the second-floor balcony, one of the suggested private open spaces, is a utility area which houses a number of services.
11. The Respondent's planning expert, Mr Doyle, advanced two alternative skilful designs (adopting the terminology applied by Roseth SC in step four of the Tenacity principles). One of these was hedge plantings in the setback zone, a surprising suggestion given the Respondent's conditions requiring the setback zone to be maintained as open pavement. Use of landscaping was also not regarded as a good solution to privacy issues by Roseth SC in Super Studio and Meriton. The other proposal was for an increase in the size of the current very small balcony on the southern side of the kitchen, with concomitant reduction in size of the kitchen. This would require structural alteration to the building, and although the Respondent offered no cost estimates, this would probably be expensive. The reduction in size of the kitchen, including reducing the size of the island bench, is likely to have consequences for the functionality of the kitchen, change the flow of movement within the room and change the proportions of the room.
12. I can appreciate that there could be occasions when a council can produce an alternative suggestion to a development proposal which could offer a better solution and reduce potential adverse consequences. However, the term 'alternative skilful design' suggests to me that the alternative design is advanced by a person appropriately qualified to do so. Mr Doyle's CV is included in Exhibit 2, which shows him to be a qualified town planner, but not an architect or structural engineer.
13. It is clearly not the role of a council to commission an architect or engineer to produce detailed alternative proposals, but it seems to me that to be taken seriously as an alternative proposal it should be more than just an idea expressed in a few sentences unsupported by any opinion from an appropriate expert as to its practicality or desirability.
14. I do not consider that the proposed alternative skilful design of the kitchen warrants any great consideration by either the Court or the Applicants, given its speculative and poorly defined nature.
15. The Respondent also suggested that as a solution to privacy issues in the kitchen/living room area, there be greater use of the blinds on the west facing sliding doors, and less use of the blinds facing the street.
16. On the site inspection, the effect of closing and opening the blinds was demonstrated.
17. To live permanently in seclusion behind closed blinds would be at a cost to the amenity of the internal rooms. Closing the blinds behind the sliding doors to the outside space would impair movement between indoors and outdoors and would prevent use of the inside space and outdoor space as a single unit for entertaining.
18. Ms Williams pointed out that completely raising the blinds on the street side potentially exposed the living room/kitchen to overlooking from the first floor of 8 Commodore Street, and that the blinds have been installed at least partly as a privacy measure.
19. The blinds are unlikely to be either permanently closed or permanently open; but the Applicants (or any future occupants) should have the ability to choose when to open the blinds and not to be obliged to rely on the blinds as the major means of obtaining privacy.
20. I agree with Mr Nash that the proposed increase heights of the fence will not provide perfect privacy. 9 Commodore Street will not enjoy the privacy from overlooking from the street that is enjoyed by the occupants of 13 and 15 Commodore Street but nevertheless what is proposed will have advantages over the present situation. The increased height of the fence will not impede totally overlooking by tall people, but may discourage overlooking. The section of the fence west of the extension will remain at its present height and would be more easily overlooked. As demonstrated on the site inspection the most likely viewing angle towards the sliding doors from the western end of the fence did limit the view into the house somewhat compared with overlooking the existing fence closer to the house.
21. The experts agree that although there were no counts of the number of people walking along the western end of Commodore Street, the number was likely to be small. Little was gained from the site inspection, conducted on a weekday morning during school term when the weather was showery - conditions unlikely to be conducive to casual visitation. However, although visitation is low, it is not so low as to be characterised as once in a blue moon. The frequency of parked cars in the photographs in evidence shows that potential overlooking must occur on a daily basis. Equally, potential overlooking is not continuous, but will occur intermittently.
22. Ms Williams referred to one person who stood at the end of the street at night, smoking and conducting conversations on a mobile phone. Mrs Lauria, in her oral evidence given on site, agreed that there had been such a person, and that he had been a resident in the neighbouring apartment building, but had moved elsewhere. While that particular source of annoyance to the Applicants is no longer present, there is at least potential for something similar to occur in the future.
23. I consider the likely frequency of possible overlookers adjacent to 9 Commodore Street, while low, is sufficient to reduce an occupant's sense of privacy, such that the opportunity for residents to enjoy a reasonable level of residential amenity is impaired. I further consider that while the Laurias feel that the effect on views from the ground floor of their residence will be severe, application of the Tenacity principles does not support that interpretation. The Applicants' proposal is an appropriate compromise, and consent should be granted.

Conditions

1. As I have decided to uphold the appeal, it is necessary to determine what conditions should apply to the approval.
2. The Respondent filed proposed/draft conditions of consent (Exhibit 3). The Applicants also filed their proposed conditions of consent (Exhibit E). The Applicants' conditions contained a number of what might be categorised as editorial corrections which were accepted by the Respondent. There was one substantive difference between the two parties' proposed conditions. This was that the Applicants sought the deletion of the Respondent's proposed condition G2 which was in the following terms: "Covenant for Restriction of Vegetation G2. An Instrument pursuant to Section 88E of the Conveyancing Act 1919 and one copy must be submitted to Council in registrable form, providing for: a) a covenant and restriction as to user in favour of North Sydney Council burdening 9 Commodore Street requiring maintenance of any vegetation to no higher than the approved adjacent front fence; and b) North Sydney Council being nominated in the Instrument as the only party authorised to release, vary or modify the Instrument; Upon Council being satisfied as to the terms of the Instrument, North Sydney Council's official seal will be affixed to these documents, prior to lodgement at the Land & Property Information Office for registration The Instrument creating the covenant under s88E required by this condition of consent must be registered on the Title of the development site prior to the issue of an Occupation Certificate or commencement of use of the site, whichever is earlier. . All costs associated with the preparation, approval and registration of the Instrument required by this condition of consent must be borne by the person acting on this consent including the reasonable costs of Council in obtaining advice, negotiating the terms or otherwise facilitating the execution and registration of the required Instrument. Evidence of the registration of the instrument referred to in this condition is to be provided to Council prior to the issue of an Occupation Certificate. (Reason: To ensure owners, or intending owners of the subject property are aware of the limitation of the height of vegetation adjacent to the front fence for the purposes of maintaining openness to the street and reducing neighbouring and public view affectation)"
3. Mr Doyle, the Respondent's planning expert, was subjected to cross-examination about this proposed condition. Mr Doyle agreed that he was the author of the condition. When questioned by Mr Tomasetti he admitted that he was unaware of the line of case law which shows that "The Court has not, in the past, been favourably disposed towards conditions requiring registered restrictions as to user" (MacDonald v Mosman Municipal Council [1999] NSWLEC 215 (MacDonald) at [14]) when the same end could be achieved by conditions without the need for requiring the registering of an Instrument under the Conveyancing Act 1919. Lloyd J in MacDonald summarised a number of prior unreported cases in this Court which had taken the position that he adopted in MacDonald. Mr Tomasetti provided to the Court details of a number of more recent judgments which have followed MacDonald. There will be circumstances where a s88 instrument is an appropriate and necessary requirement in conditions, but where possible, the Court will favour application of planning law over property law.
4. Registering a restrictive covenant on title means that any future purchaser will be aware of the covenant and its provisions, and this was a reason advanced by Mr Doyle for imposing Condition G2. Mr Tomasetti argued that any prudent potential purchaser of the property should conduct searches which would reveal the conditions of a development consent imposed ongoing commitments on the owner of the property. From the Applicants' perspective, a requirement to have prepared and to have registered a restriction on title would involve extra expense, and the existence of a covenant on title in favour of Council might affect the ability of a prospective future purchaser to obtain finance. The same end that Council seeks is achieved by Condition H1 in the consent, which requires that any hedge not exceed the height of the fence.
5. I accept the Applicants' arguments and therefore adopt the Applicants' proposed conditions, and decline to impose the condition G2 advanced by the Respondent. The conditions form Annexure "A" to this judgment.

Orders

1. The orders of the Court are: 1. The appeal is upheld; 2. Development application D311/17 to increase the height of the existing front fence by 350mm for a length of 5760mm is determined by granting consent to the application subject to the conditions in Annexure "A"; 3. Exhibits may be returned except for Exhibits 1 and D.

Acting Commissioner of the Court Annexure A (60.9 KB, pdf)

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