David and Maxine Pacanowski v Woollahra Council

BACKGROUND TO APPLICATION

1. This appeal is brought under section 97 (1) of the Environmental Planning and Assessment Act 1979 (the EPA Act), against the deemed refusal of the Woollahra Council (the Council) to grant consent to development application 208/2016 for the demolition of existing improvements and construction of a new dwelling upon land comprising Lot B DP391102, known as 1 Rawson Road, Rose Bay. In hearing the appeal the Court exercises the functions and discretions of the consent authority: s 39(2) of the Land and Environment Court Act 1979 (the Court Act).
2. The proposed works are outlined as follows. Built structure: demolition of the existing dwelling house and detached garage; erection of a new three-storey dwelling with basement contained mostly within the existing impervious area of the site; and construction of a single storey double garage with a maximum height of 3 m. Front and side setbacks: erection of low masonry wall/planter at the street frontage; landscape works including screen planting along front and side boundaries and paved pedestrian pathway and feature planting. Rear setback: construction of new pool and entertainment terrace [Statement of Facts and Contentions, Ex 4 at [1.4]].
3. The Development Application (DA) was lodged with the Council on 26 May 2016. At that time, following notification 10 submissions were received objecting to the proposal. The appeal was filed with the Court on 7 October 2016, with an application to amend plans granted by the Court on 24 October 2016. An amended DA was lodged with the Council on 9 November 2016, and appropriately notified. Two submissions were received following that notification: one in respect of Mr Levy's property, and one on behalf of the owner of 3 Rawson Road.
4. On-site mediation was ordered and took place on 21 December 2016. Following that mediation further refinements were made to the plans, reducing the number of matters in contention between the Applicants and the Council. These then became the plans placed before the Court for consideration.
5. A conciliation conference was held pursuant to s 34AA of the Land and Environment Court Act 1979 (the Court Act). During the course of that conciliation hearing, evidence was taken from two objectors on site. Mr Levy, the owner of 10 Churchill Road, Rose Bay was represented by Mr Moody . Evidence was also heard on behalf of the owners of 3 Rawson Road Rose Bay, the property immediately to the south of the Applicants. The Court visited these properties as well as undertaking a site inspection of the site at 1 Rawson Road, and its immediate environs.
6. At the conciliation conference, the Court was advised that agreement could not be reached as the authority to make any decision had not been delegated by the Council, making a hearing inevitable. The matter proceeded forthwith to a hearing, as required by s 34AA(2)(b)(i) of the Court Act. The parties agreed that the matters raised during the conciliation phase were to form part of the Court's consideration of the issues.

PLANNING/STATUTORY FRAMEWORK

1. The primary local planning documents which are relevant are the WLEP, the Woollahra Development Control Plan 2015 (WDCP), and the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.
2. The aims of the WLEP are set out at cl 1.2(2), with particular aims including the promotion of a high standard of design in the public and private domain (j); and to ensure development achieves the desired future character of the area (l).
3. Dwelling houses are permissible with consent within the zone, which is R2 - Low Density Residential. The objectives of the zone are:

• To provide for the housing needs of the community within a low density residential environment
• To enable other land uses that provide facilities or services to meet the day to day needs of residents
• To provide for development that is compatible with the character and amenity of the surrounding neighbourhood
• To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

1. The height requirements are set out at cl 4.3. The objectives of these requirements, important for the cl 4.6 application, are as follows: 1. to establish building heights that are consistent with the desired future character of the neighbourhood, 2. to establish a transition in scale between zones to protect local amenity, 3. to minimise the loss of solar access to existing buildings and open space, 4. to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, 5. to protect the amenity of the public domain by providing public views of the harbour and surrounding areas.
2. The relevant height control is 9.5 m.
3. The WDCP at part 3.5.3 provides the following with respect to private views: View sharing concerns the equitable distribution of views between properties. The view sharing controls in this DCP seek to strike a balance between accommodating new development while providing, where practical, reasonable access to views from surrounding properties. Development should be designed to reflect the view sharing principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140.
4. The WDCP provides that the objectives for public and private views are to protect and enhance existing views and vistas from the public domain, and to provide additional views and vistas from streets and other public spaces where opportunities arise.

Objector Evidence

1. Objector evidence was given by Mr Levy (of 10 Churchill Road) and on behalf of the owners of 3 Rawson Road.
2. In his submission [Ex 6], Mr Levy made it clear that he did not oppose the development per se; rather, he requested that amendments be made to it to protect his view.
3. Mr Levy enjoys spectacular views from his home and has enjoyed them for 22 years. The views are dynamic and changing from different viewpoints within his property.
4. Mr Levy contended that in the opinion of his advisers (including a planning expert) "the proposed development can be lowered by 400 - 500 mm which is likely to ensure that the views of Shark Island and part of the waters below will likely be retained from the primary ground floor open space on our property". His main concern is that he will lose part of the Shark Island and water interface below, depending on where he stands on his primary ground floor living rooms and private open space, and lose it entirely when sitting in any of these areas: Ex 6. According to Mr Levy, the property contains a rooftop viewing platform which also enjoys panoramic views, including Shark Island, "but this viewing platform is not covered or flowing on to our entertainment and living areas and therefore is not the space which we occupy for great periods of time".
5. The importance of Shark Island was emphasised by Mr Levy, with reliance placed upon the decision of Biscoe J in Addenbrooke Pty Ltd v Woollahra Council [2008] NSWLEC 190, in which his Honour stated that "for the people of the Sydney region, Shark Island is an integral part of Sydney Harbour and continues to be a popular destination for public recreation": at [121]. Moreover, it is a heritage item in the Sydney Regional Environmental Plan No 23 - Sydney and Middle Harbour.
6. Mr Levy also provided the Court with copies of photographs of people celebrating and enjoying the fireworks in Rawson Road and Churchill Avenue, as the spot is used as a gathering point for festivities at key events such as Australia Day and New Year's Eve: Ex 5.
7. Mr Levy urged the employ of a more skilful design (adopting the language of Tenacity Consulting v Warringah Council [2004] NSWLEC 140, discussed further below). At the site inspection, and also in his written submission, Mr Levy requested that the development be reduced in height by 400 - 500 mm in order to protect his view of Shark Island. Two possible suggestions were made on behalf of Mr Levy to achieve a reduction in height of the proposed development: reduce the height of the roof cavity; and reduce the height of the ceiling on the lower ground floor from 3 m to 2.7 m. There was also discussion regarding reduction in the thickness of the slabs between the three levels of the house.
8. The main written objections made by the owners of 3 Rawson Road related to the building's height, setbacks, articulation, view across to Kincoppal School and wall height and gross floor area. However, at the site inspection, the matter of greatest concern pertained to the solar impact of the proposed development, particularly to the first floor of the property which abuts the southern end of the development. This first floor contains kitchen and living spaces, and an upstairs office space. The impact of the proposed development on solar access to the ground floor was not pressed to any degree.

Expert Evidence

1. Expert evidence was provided by Mr Mead for the Applicants, and Mr D'Alessio for the Council. They authored a joint expert report and gave evidence at the hearing. In addition, the Applicants' architect, Ms Griffiths, gave evidence at the hearing.
2. View loss from private properties is not a contention between the parties: Ex 1 at [1.6]. "The experts agree that the view impacts of the revised proposal are acceptable in terms of view sharing from private properties and are consistent with what could be expected by the applicable planning controls". The experts spent some time setting out their reasons for this.

Private Views

1. As far as Mr Levy's view is concerned, Mr Mead conceded that it is "exceptional". It takes in several icons, not simply one. Indeed, says Mr Mead, had the view across to Shark Island been Mr Levy's only view, the impact assessment would have been different. Mr Mead points out that if the development proceeds, Mr Levy's view - of Shark Island as an island - would not be lost altogether, but the eastern foreshore view will be impacted.
2. However, taken in totality, the view loss (says Mr Mead) is not significant. The view is still available from some parts of Mr Levy's dwelling, such as the rooftop viewing platform. The main loss of view will be from Mr Levy's primary outside dining area. From the northern part of the yard, the view is improved because of the side setback opening.
3. Mr D'Alessio also conceded that the view from Mr Levy's main private open space would be adversely impacted by the proposal. He also accepted that the view towards Shark Island is iconic and has heritage significance. However, the view that Mr Levy enjoys from his property is not a whole, uninterrupted panoramic view, due to the blocking effect of the property at 3 Rawson Road. To the extent that whole views are more valued than partial views (Tenacity), the view is already impacted by the presence of the dwelling at 3 Rawson Road. The whole view is available from Mr Levy's property, from the middle of the main lawn and from his roof terrace. The view of Shark Island is retained when standing, albeit that the interface between the island and the water is negligible post-development.
4. On this point, significantly Mr D'Alessio's opinion was that from a seated position, if the building were dropped by 500 mm (and thereby became fully compliant with the height standard) it would not necessarily reduce the view impact in the manner anticipated by Mr Levy. Put simply, it may not remove the objector's concerns.

Public views

1. The experts agreed that the approach to massing of the dwelling (to the rear of the site) keeps the streetscape appearance of a low profile, and also allows for direct slot views from both sides of the proposal towards Rose Bay. Currently, no slot views exist. Thus, say, the experts, "any minor point specific locations in the public domain that are affected by the minor increase in maximum height of the building compared with the existing dwelling are very limited in area, are offset by additional view corridors provided. Accordingly the proposal does not reduce the number of vantage points": Ex 1 at [2.1.3]. Moreover, had the development been built to permissible height limits, more of the bulk would have been sited closer to street level, resulting in a potentially considerably greater view loss.
2. Having regard to the planning principle for "impact on public domain views" as established in the decision of Rose Bay Marina Pty Limited v Woollahra Municipal Council and Anor [2013] 1046 at [39] - [49] the experts agreed as follows: depending on where you stand, due to widely varied topography across a small area, iconic views of Sydney CBD City Skyline encompassing Sydney Harbour Bridge and Sydney Opera House and North Sydney, Sydney harbour including Fort Denison and Shark Island and Point Piper peninsular are available; the public domain from which views are enjoyed are footpaths and roadways of Churchill Road, Rawson Road and Chamberlain Avenue including a large grass embankment in the road reserve at the south-eastern intersection of Churchill Road and Rawson Road; the extent of obstruction varies with the proximity to the site and the topography of the public domain, ranging from negligible to moderate; the general intensity of public use of those locations is low, noting that the locations are used for special events when access to other more desirable public domain locations becomes exhausted. Concluding this consideration, the experts agree that the impact on the visibility of the Harbour and various icons is insufficient to warrant further amendment or refusal.
3. With respect to the general controls contained in the WDCP in Chapter B3, these are satisfied, say the experts, as significant views and vistas along Churchill Street are preserved. The building is sensitively located and obstruction of public views is mitigated by additional opportunities afforded for new public views, associated with lower scaled fencing, sensitively-sited on-site parking and entry structures and reduction in built form at side setbacks.
4. The two other controls in the WDCP with respect to public and private views are met through the design and siting of the development on the low side of the street, and the design of a roof form (a parapet roof) which allows public views and adds interest to the scenic outlook.

Building amendments

1. Evidence was given with respect to the possibility of achieving a reduction in the building's proposed height. The building has been designed around site-specific constraints, including a 7 m fall to the rear western boundary, and the existing degree of excavation below the natural land line. The proposed building is, says Mr Mead, a sensible massing and represents a skilful design.
2. Mr Mead expressed the opinion that as between the height of the floor to ceiling, the slabs and the roof, there was no "fat" in these elements to be reduced (in order to reduce the height).
3. Mr D'Alessio says that within Woollahra, 3 m high ceilings are not uncommon. The minimum height permitted is 2.7 m. A reduction to a 2.7 m ceiling height in the living room would result in a perception of a low height as one's eye moved to the western edge. This would be an undesirable impact for a room of this size.
4. In order to consider the design suggestions put forward by Mr Levy, the Court asked that evidence be given by the Applicants' architect, who was present in Court.
5. When asked directly about the possibility of the production of a "more skilful design" resulting in a better outcome, Ms Griffiths gave evidence that she had met with Mr Levy's draftsman several times to consider amendments to the design, to seek to address Mr Levy's concerns about height.
6. Ms Griffiths provided evidence in the following terms, in direct response to Mr Levy's suggestions:

• The roof has already been reduced in height following design changes made in late 2016. There is little if any scope to reduce it further, as allowance must be made for the roof spans, the fall of the roof and the box gutters.
• With respect to the depth of the slab, the slabs (between the top and middle floor; and middle and ground floor) have already been reduced from 500 mm to 450 mm. The slab thickness of a standard apartment building is 400 mm. The reduction from 500 to 450 mm took considerable design work, given the 8 m span of the floor from north to south. The slabs are 450 mm thick to contain services. The slabs are deeper as there is no support provided by the ground.
• Turning to the question of whether the ceiling height can be dropped, the two bedroom floors already have the minimum floor to ceiling height of 2.7 m, while the ground floor where the living room is located has a proposed height of 3 m. It would be technically feasible to lower the ceiling height of the lowest floor but this would be inappropriate and out of proportion for the scale of the space. The visual perception would narrow the view, which would read as low and compressed over the span of the floor.

Impact on 3 Rawson Road

1. Turning to the impact of the development on 3 Rawson Road, the opinion of the experts is that the overshadowing impacts of the proposal are acceptable and the non-compliance does not result in additional shadow. Access to sunlight controls to adjoining open space and upper level habitable rooms of adjacent properties (in this case, 3 Rawson Road) are satisfied.
2. Updated three-dimensional shadow diagrams [Ex B] demonstrate that the design complies with solar access requirements, and is a substantial improvement on the amount of solar access that would be available with a complying development. It was acknowledged that there would be limited solar access to the ground floor, but that was not pressed by the objectors as it would be almost impossible to achieve solar access given the location of the buildings in relation to one another.

CLAUSE 4.6 APPLICATION

1. As the development the subject of the appeal breaches a development standard, consent cannot be granted unless an application for variation is approved pursuant to cl 4.6. The Applicants submitted a cl 4.6 application which had been prepared in support of the plans as they stood in November 2016. However, since that date, amendments have been made to the design (in an attempt to reduce the impact of the development). Accordingly, the cl 4.6 application required minor changes to the text (changing the reference "700 mm" to "500 mm" throughout the document), as well as updating the reference to the plans the subject of the appeal.
2. Notwithstanding these minor changes, the Council submitted in the hearing that in its current form, the application would likely be found wanting, unless regard was paid by the Court to further evidence to be provided by the Applicants' town planner, insofar as that evidence related to the environmental impact of the proposal. In the event, this potential issue as to adequacy of the application was sought to be overcome through the Applicants' submission of a supplementary cl 4.6 application, following the granting of leave by the Court for it to do so. It is to this further updated cl 4.6 application that I now turn.
3. It is important to note that the extent of non-compliance with the height objective is at the south-eastern corner of the principal building form: 1% non-compliance (0.1m); south-western corner of the roof awning located above the level 1 main bedroom terrace - 3.5% non-compliance (0.33m); north-western corner of the principal building form: 3.7% non-compliance (0.35m) and south-western corner of the principal building form: 5.3% non-compliance (0.5m): Ex 1 at [2.2.6].

Consistency with Height Objectives

1. The Applicants says that the proposed development responds to these objectives [set out at [15] in this judgment], notwithstanding the height non-compliance, as the additional height of the proposal arises from the need to facilitate the design of a three storey dwelling, a built form not inconsistent with the character of the area. The development is well below that property's height requirements at street level, and maintains significant public and private views. Steps have been taken to maximise solar access (albeit for the proponent), while there are adequate safeguards to protect the amenity of neighbouring residential uses in terms of visual intrusion, loss of privacy and maintenance of views. While there will be minor impacts on 3 Rawson Road, the impact on that property's pool will occur in mid-winter, and the proposal does not affect solar access as the upper floor will have more than three hours of solar access. Protection of ground floor of dwellings on east-west allotments is difficult where a 9.5 m building height is permitted.
2. With respect to the public domain, views of the city and harbour can be seen looking down Churchill Road over the site and will be maintained, and a new view from Rawson Road, between 1 and 3 Rawson Road, will be opened up.

Consistency with zone objectives

1. In terms of consistency with the objectives of the low density zone, the Applicants says that the development provides housing consistent with a low density neighbourhood; the majority of the precinct is zoned low and medium density development, with use of the site being consistent with both zoning and land use; and Rawson Road is populated by single family dwellings on sloping sites with vistas of the harbour, city and surrounding Rose Bay precinct. Moreover, the proposed dwelling is well below the permitted building height at street level.

Environmental Planning Grounds

1. Relying upon the approach taken by Pain J in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90, the Applicants says that in considering the environmental planning grounds for the variation, it has identified grounds particular to the circumstances of the proposed development. These include:

• the siting of the built form to the western (rear) boundary resulting in the street view presenting as a low, single storey profile to the street (6.5 m below the maximum height at the east, and 3.5 m below the height limit at the rear of the garage);
• the building mass being pushed deeper into the site to enable a large amount of floor space below the relative street level;
• the location of the building with the objective of minimising view impacts to properties on the opposite side of Rawson Road, mainly 10 Churchill Avenue, as well as to the public domain. The massing of development has also introduced "new" corridors of view along the northern and southern sides of the site through the removal of the existing garage and front fence and replacement with an entry lobby at 2.5 m from the southern boundary and the garage being set in 2.026 m from the northern boundary;
• With respect to impact on solar access, the proposal complies with the solar access provisions contained in the WDCP, meaning the height variation does not contribute to unreasonable overshadowing impact, particularly on 3 Rawson Road;
• View impacts are less than would be experienced from a height-compliant scheme. The site-specific response has the fundamental aim of promoting view sharing. The Applicants further says that to achieve strict compliance would in effect require moving the upper level of the proposal into the part of the site closer to the street;
• As for the 3 m height of the ceiling on the lowest floor level, this height level is consistent with what could be expected to provide reasonable amenity to a deep and wide space of over 20 m and 11 m in width. The structural design of slabs and roof have been informed by a structural engineer and are designed at minimum tolerances for the type of structure which has large single spans throughout to avoid internal columns.

1. The Applicants further say that compliance with the standard is unreasonable or unnecessary, as the objectives of the height standard and the R2 zone are able to be achieved as there is insignificant impact on the existing qualities of the site and surrounding land uses in terms of view loss and privacy. As to whether or not compliance is unreasonable, the development is well below the required height from street level, and nearly all views over the site are preserved, as well as side slot views being opened up.
2. The Applicants sum up their position as follows: the circumstances of the case are a rare combination of neighbours' view corridors, solar access, slope and existing conditions. For these reasons, application of the height standard would be both unreasonable and unnecessary [3.4.6]; and the public interest is served by permitting the proposal to exceed, by a small degree, the height limit imposed by the WLEP 2014 in the pursuit of a better environmental outcome and achievement of the objectives for the zone and for the height standard. Moving the proposal downslope of Rawson Avenue, away from the street, reduces the apparent height when seen from houses in the locality and thus reduces the impact of the non-compliance: [7.3].
3. I accept the Applicants' submission with respect to their exemption application, which in my view is well-founded. I find that the Applicants' written request (reading both parts together) has adequately addressed the matters required to be demonstrated, namely that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case, and there are sufficient environmental planning grounds to justify contravention of the height standard. I also find that the proposed development is in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the zone. The contravention does not raise any matter of State or Regional significance.

Discussion and Findings

1. I adopt the language of Biscoe J in Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 when His Honour described Sydney Harbour as "one of the most beautiful harbours in the world. It provides pleasure not only to local residents and mariners but to many visitors from Australia and abroad": [5].
2. In his reasons for judgment (in which consent was refused to extend the Rose Bay Marina), Biscoe J has this to say about the views of Shark Island: "While Shark Island is one element in the view it is not the only item to be considered…. The views of greatest significance are those where the full expanse of Rose Bay is viewed from the public domain. This full expanse includes the foreshore, the water, the land/water interface, the land mass of Point Piper and Lyne Park and the extensive views of the harbour to the bush reserves on the north side, including landmarks such as Shark Island" [68] and [69]. His Honour also found that "the proposal will impact on significant views of Shark Island but I do not accept that the degree of impact or the loss of significance is such that, of itself, would warrant refusal of the application": [123].
3. In this matter, I find that while the view of the interface of Shark Island is an important feature of Mr Levy's magnificent views, it is not such as to found the basis of a refusal of consent in these circumstances.
4. In reaching my decision I also rely upon the four principles enunciated in Tenacity. The relevant section of that judgment is reproduced below: "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 Applicants 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."
5. In Tenacity, it was found that the proposed development would "obliterate" views from the lower three of four levels of an adjacent apartment building from sitting and standing positions. The impact of the applied-for development would be severe. Further, the proposed development breached one of only two development standards (the requirement not to exceed two storeys). In the circumstances of that case (which also included concerns about privacy) the proposal significantly and unreasonably reduced the amenity enjoyed by the occupants of the adjoining residential land, and was consequently refused.
6. Applying the Tenacity principles here, Mr Levy will continue to be able to see iconic views (the Sydney Harbour Bridge, the Opera House, the Harbour itself, the city skyline, Shark Island) from his property, but not all views from all parts of it. Shark Island, while heritage listed, is not regarded as the most important element in the view: Addenbrooke. It is plain that the water interface visible to Mr Levy (between the harbour and Shark Island) is more valuable than a view without that interface. Mr Levy enjoys partial views, as the iconic images are partially obscured by other buildings. However, a whole view will remain available to him from the upstairs terrace and the lawn after the development.
7. The view is currently enjoyed both from a sitting and a standing position, and from many vantage points throughout the property. The Tenacity principles recognise that it is more difficult to protect a view from the sitting position, which is the case here. As was evident from the site inspection, Mr Levy enjoys a series of dynamic views, including slot views, from different points on his property. I concur with the Applicants' submission that the extent of impact of the proposal is not qualitatively significant.
8. Turning to the fourth limb of the Tenacity assessment, the decision invites consideration of the reasonableness of the proposal through the lens of compliance, or not, with planning controls. The planning regime, through the cl 4.6 scheme, makes provision for some deviation from development standards. There is case law which sets out the circumstances in which a variation will be permitted. Applying this law to the circumstances of this case, for the reasons set out above I find that this is a case where such variation should be permitted.
9. Further, the proposal complies with almost all the planning controls; it is deliberately sited to locate the bulk away from the street, noting that a compliant building would have more impact than in this case with the relatively small non-compliance.
10. I am satisfied, based on the evidence, that the proposed development represents a skilful design, and that efforts have been made by the Applicants to reduce the height of the building and that consideration has been given to minimise the impact of the development on others. The uncontested evidence is that the changes proffered by Mr Levy are either unable to be achieved (in the case of the roof height and the slab thickness, on the evidence) or else will have an unacceptable amenity impact (in the case of lowering ceiling height on the lower ground floor).
11. In this case, evidence was given that even if the overall height of the development were reduced by 500 mm, as requested by Mr Levy, that would not necessarily restore Mr Levy's access to the view he is seeking to protect, the land/water interface of Shark Island. There is little efficacy in requiring that height reduction when there is no guarantee it will achieve that which is sought.
12. While the parties may not be in disagreement with respect to the impact of the proposed development on public views, it is in my opinion worthy of further discussion in this judgment. As noted by Mr Levy, people congregate at intersection between Churchill and Rawson Roads as an overflow space on evenings of celebration.
13. The views of the city and Harbour will be partially lost from certain vantage points in proximity to the proposed development. Notwithstanding this, I accept the submissions of the parties that the objectives and controls of the WDCP are met by the proposal. While there will be some impact from the proposal, there will be enhancements afforded through the opening of views alongside boundaries. New views will be available between 1 and 3 Rawson Road, and 1 and 883 New South Head Road. No views are currently available from a vehicle or pedestrian perspective on the western side of Rawson Road. The Applicants have through their design made more views available through their use of setbacks to the side of the development.
14. Moreover, the proposed dwelling has a maximum building height of about 3.5 m as perceived from the street, 3.5 m less than the permitted height at a nominal 6 m setback. A compliant development would be (and read as) higher at street level, and would defeat the amenity objectives sought under the LEP. The siting of development at rear of the block reduces the impact.
15. Finally, with respect to overshadowing (the complaint raised by the owners of 3 Rawson Road) the amount of solar access available to that property is better with the proposed development than would be achieved through a complying scheme, as demonstrated by the shadow diagrams. The location of the bulk of the building further down the site results in a better result for the owners of 3 Rawson Road. Solar access requirements are satisfied. On the basis of the evidence submitted regarding the impact of the development on that neighbouring property, there is no basis on which I would refuse development consent.

Orders

1. The Court orders are: 1. The cl 4.6 application is upheld. 2. Development Application no. 208/2016 is granted for the demolition of existing improvements and construction of a new dwelling upon land comprising Lot B DP 391102 known as 1 Rawson Road, Rose Bay, subject to conditions of consent attached and marked "A". 3. The Exhibits, other than Exhibits 1 and 4, are returned.

R Martin Senior Commissioner of the Court 299433.16 Martin (C) (607 KB, pdf)

Amendments 05 June 2017 - Typographical Errors DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2017