Der Sarkissian v Northern Beaches Council

Planning controls

1. The site and the nearby residential lands are zoned R2 Low Density Residential under Warringah Local Environmental Plan 2011 ('WLEP'). The proposed development is permissible with development consent in the R2 Low Density Residential zone. The zone objectives are, relevantly: • To provide for the housing needs of the community within a low density residential environment. • To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.
2. The proposal does not contravene any development standards in WLEP.
3. Warringah Development Control Plan 2011 ('WDCP') applies to the site and is a consideration in evidence.

Issues

1. The major issue in this matter is the potential for obstruction of existing ocean views enjoyed from nearby properties and the reasonableness of this, considering Council's building envelope controls and view sharing principles. A secondary issue is in regard to the building bulk in the streetscape, within which I include landscape considerations.
2. I have reviewed a number of written objections from neighbours. Having done so and considered oral submissions from two nearby property owners (see [16]), I remain satisfied that the issues listed above adequately cover the central issues in dispute here.

Proceedings

1. As the development proposal is for the purposes of a detached single dwelling, the proceedings were initially subject to mandatory conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 ('LEC Act').
2. Proceedings were conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy, issued 1 July 2020.
3. In this instance the opportunity was taken to conduct a restricted inspection of the site and context. There was limited attendance, and social distancing was employed. Inspection included viewing the site from 2 and 5 Gardere Avenue where the view obstruction implications were able to be observed with the aid of height poles erected on the site to outline the form of the proposed building.
4. As no agreement was reached, the conciliation conference was terminated and the proceedings moved into the Court hearing, conducted as a "virtual court room" with the assistance of the "Microsoft Teams" platform.
5. Leave was granted by the Court at the commencement of the hearing for the applicant to amend the application to rely on amended drawings (Ex E), intended to address view sharing concerns raised by Council. There was no request on the part of Council and no order as to costs thrown away in regard to the amending plans.
6. I will take the opportunity here to also introduce the experts providing evidence at the hearing. Issue For M Haynes Planning Applicant T Prosser Planning Council

Policy setting

1. Council says the proposal does not comply with a number of WDCP's policy provisions. Below I attempt to outline the controls which make direct reference to view sharing in their stated objectives, and the position of the application. I have selectively summarised from the Respondent's Outline of Submissions filed 11 January 2021 ('ROS'), Ex 1 and the Applicant's Outline of Submissions filed 21 December 2020 ('AOS')).

• Part B1 - Wall Heights: WDCP numerical control is 7.2m (noting the LEP maximum building height control is 8.5m). The numerical control is breached at the front of the dwelling where a maximum height of 7.850m is proposed.
• Part B7 - Front Boundary Setback: For corner sites, WDCP requires a 6.5m setback to the primary street frontage and 3.5m to the secondary - subject to certain considerations including predominant setbacks. The ground level setback to Carrington Parade is seen to accord with predominant setbacks, but the upper level (setback some 3.88m when the prevailing setback is some 5-5.7m (Ex 3, par 90)) is seen as inappropriate by Council.
• Further on the point of front setbacks, Council contends that the proposed setback to Gardere Avenue (forming an angled line from 0m to 3.185m at ground level and 5.465m at the upper level, near the site boundary with 2 Gardere Avenue) does not respond satisfactorily to a prevailing setback line for the properties to the west which orient towards Gardere Avenue.
• Part D7 - Views: WDCP requirement is the "reasonable sharing of views" and reference is made, by way of a note, to the Court's Planning Principle on the topic established in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 ('Tenacity').

Consideration

1. It was agreed by the experts that consideration of view loss from 2 Gardere Avenue (immediately adjacent to the west) and 5 Gardere Avenue (across Gardere Avenue from the site) were the most relevant properties to assess view loss (Ex 3, par 150). That is to say, if view sharing was acceptable to these properties then view sharing with other properties in the vicinity would also be acceptable.
2. In their evidence, the experts each considered view sharing mindful of the well know four step process outlined in Tenacity. I will, initially, reproduce the Tenacity steps here, emphasising (by underlining) the central point of each step [26]-[29]: 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. 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. 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. 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."
3. Notwithstanding the fact that there were amendments to the application made after the site inspection, there was a good capacity for the experts to provide quite clear evidence in regard to the first two steps of Tenacity. The visual analysis material prepared by the applicant appeared to be of a high standard and was also of some considerable assistance, including the mapping out of sight lines from various position within each of the studied properties (Ex F). Notably, I was able to personally view the two sites and gain an impression of view impacts, correlating to the documented visual analysis and the oral evidence of experts.
4. Below I work through each site, drawing in the expert evidence and my own observations.

2 Gardere Avenue

1. There was general agreement on the first two Tenacity steps (although different points of emphasis were put by the experts). Full oceans views are prominent and available to the east over the existing dwelling then in an arc towards the north-east. The "arc" was picked up in some of the tendered material (including at p20 behind Tab C in Ex 3) (later I find the variation in the quality of the view along the arc as significant). The open views are affected to an extent by power poles and aerial cabling in the foreground, as well as trees.
2. Views are available from the front deck in both standing and seated positions. There are also views from within the living room and further inside in the kitchen, through side windows, and through the sliding door over the deck. These views are predominantly over the subject land. There is a relatively small area on the most northern part of the deck where the ocean view is available without looking over the subject land.
3. In regard to the third Tenacity step, and the assessment of the extent of impact, there was disagreement between the experts. The disagreement was not on the extent of loss of view, this seemed to be agreed and was well documented in the view analysis material. The disagreement was in regard to impact.
4. Mr Haynes believed the view loss impact would be moderate, he noted that "significant coastal and ocean views" remained available from the front deck, which had the benefit or being "an extension of the internal living space of the dwelling". Mr Haynes said that this was "the location where the most extensive views can be accessed" (Ex 3, par 168). Mr Haynes referred to the loss of views from inside the dwelling from the kitchen and living rooms, but did not value those views so highly due to the fact that they are set back within the dwelling "up to 11.7m from the front of the terrace" (ibid, par 192(o)), the significance of which is explained as follows (ibid, par 183): "At 2 Gardere Ave existing views will be impacted from locations within the open plan kitchen living dining room where the majority of these views are gained across the side boundary of the property and where an LEP / DCP compliant building envelope would have a greater impact on ocean views and visual outlook."
5. Mr Prosett referred to the impact on views currently available from the living areas and northern deck. His conclusion was that the view loss impact would be severe (Ex 3, par 156): "The impact from the living area involves interrupting the majority of the existing water view from both standing and sitting position. The remaining water view from the living room would be a glimpse of water through pine trees to the north of the subject site. The deck area is north of … this living area and so the angle would maintain a water view through the subject site that is slightly more than a glimpse. The extent of water view lost across these two areas results in a qualitative assessment that the view impact across the whole property is in severe."
6. The experts, as would be expected, also disagreed on the fourth step of Tenacity. I will consider the experts' opinions in regard to this fourth step in my consideration, below.

Extent of impact

1. Having considered the evidence from experts and my own direct observation, I would conclude that the impact of view loss from 2 Gardere Avenue would certainly be severe were the proposal approved. From within the house there is a severe view loss, noting these areas as living areas which would be expected to be commonly used, and noting Tenacity's reference to kitchens ("views from kitchens are highly valued because people spend so much time in them", Tenacity at [28]). I can agree with Mr Haynes that these internal views are more at risk, but that is a separate question to the "extent of impact".
2. What is most noteworthy here for me is the extent of impact at the northern outdoor deck itself. I believe that the evidence indicates that the ocean view from the deck would be severely diminished by the proposal. It was clear from observation at the deck, then the later consideration of the amended plans with the visual analysis material provided (Ex F), that the arc of ocean view which would remain is affected in an adverse way by vegetation (mostly Norfolk Island Pines).
3. To explain, it is a particular aspect of the local setting that the quality of view from the northern deck to 2 Gardere Avenue is very high along a certain portion of the view arc from the northern deck area. This higher quality portion of the view arc is generally over the existing building, give or take a certain angle. But then the north-eastern portion of the view arc from the deck is of somewhat lower quality because of the filtering effect of ocean views by tall trees. This is the portion of the view arc that would remain, generally, from the deck were the proposal to be approved. This is illustrated (noting photographs have limitations in their representation of the visual experience) in Annexure E to Ex 3, including at Folio 117 where the left and right portion of the view from the deck is photographed.
4. I should emphasise, that here I am talking about views from the deck generally. It is the case that if one stands at the very northern edge of the deck, the high quality view to the ocean remains available. But the enjoyment of views from the more general use of the deck would be severely impacted by the proposal. The internal living areas would also be severely impacted.
5. A finding of severe impact is not of itself a finding of fault with the application and to paraphrase Tenacity at [25], "may in some circumstances, be quite reasonable". This takes me to the next step.

Reasonableness of proposal

1. I would summarise the applicant's evidence and submissions in support of the fourth Tenacity step and the reasonableness of the proposal as follows: 1. The proposal has a good degree of compliance with numerical controls. 2. A "compliant" building envelope would have a worse ("devestating") effect on 2 Gardere Avenue views. 3. The application incorporates skilful design, including: angling of the building to optimise sharing of views, substantial decrease in side boundary envelope (to the west), a substantial setback to Gardere Avenue (up to 5.465m at the second level and of relevance to the view) near 2 Gardere Avenue, general height reduction of the building compared to that previously proposed, and a reduction in the roof height and access to lessen impact, again compared to a previous plan. 4. The Council's position seeks "preservation" of the existing view.
2. Council disagrees with regard to the proposal's compliance with the controls. It argues that non-compliance with both wall height and front setback controls are most significant in regard to view affectation for 2 Gardere Avenue. Council links the suggested non-compliances with Tenacity. Its submission is that the second limb of the fourth Tenacity step, in regard to "skilful design", only triggers for a "complying proposal" (see Tenacity at [29], reproduced at [22] above).
3. I agree with the applicant that the proposal complies with some significant numerical controls, including WLEP's height of buildings control (cl 4.3), and accept that it is an objective of this clause to: "minimise visual impact, disruption of views, loss of privacy and loss of solar access". I see this objective, and the relevant compliance with the height control, as a consideration, but not a reason to set aside the DCP controls relating to view loss. I also do not find the non-compliances with the wall height and building envelope controls as being of major significance in regard to view loss based on the visual analysis (Ex F).
4. However, I am not convinced of the applicant's essential position in regard to what a compliant development would comprise on the site. The key issue here is control B7 in the DCP, concerned with front boundary setbacks. There is an "exception" provision which affects the subject site as follows: "On corner allotments or sites with a double street frontage, where the minimum front building setback is 6.5 metres to both frontages, the front building setback may be reduced to a minimum of 3.5 metres for the secondary frontage, but secondary street variations must consider the character of the secondary street and the predominant setbacks existing to that street."
5. It is clear control B7 has an objective to achieve reasonable view sharing. In turn, it seems to me reasonable to give considerable attention to the character of Gardere Avenue, which enjoys very amenable views to the ocean. The building setbacks, existing to the southern side to that street, appear to give consideration to the sharing of views. Under control B7, it could be expected, all other things being equal, that development to the east of 2 Gardere Avenue would follow that pattern. Indeed, were there a wider block than that which exists on the site, that might be expected; even recognising that the site fronts Carrington Parade. With a mind to view sharing this might be seen to be especially the case given the quality of views available eastwards from Carrington Parade.
6. My point here is not that the proposal needs to achieve view retention at 2 Gardere Avenue, but that it is not reasonable to argue that a compliant building could be positioned at a 3.5m setback from Gardere Avenue near its western boundary, or indeed much closer than is now proposed (at the upper level). It seems to me that the correct reading of control B7, and indeed control D7, would not be normally be seen as allowing the "devestating effect" suggested by the applicant. Therefore, I am less convinced on the justification for the extent of weighting of the massing of the building to the north-east, as a swap for massing to the west (Architectural Design Statement, Ex 3, Annexure C, Fig 20, p 18).
7. It can be seen from the material before the Court that there has been a lot of work in view analysis by both sides. I can see the efforts of the applicant in angling the building to minimise view loss from 2 Gardere Avenue. I also acknowledge Council's point that skilful design comes up, in Tenacity at least, when there is compliance with policy controls, and the proposal does not do that.
8. A critical (and useful) drawing is DA SK00 (Ex F), which indicates various view corridors or lines from 2 Gardere Avenue. The drawing highlights an area in blue dots seen by Mr Prosser as an "acceptable building envelope (for level 1) based on view sharing corridors" (ibid). Mr Prosser's "acceptable envelope" in the drawing pertains to both 2 and 5 Gardere Avenue. Here I am only concerned with 2 Gardere Avenue.
9. While I believe that Mr Prosser's "acceptable envelope" does include some internal view loss out of side windows, there would be a considerable retention of the ocean view-related living area ambience or amenity. The view sharing question, in the circumstances, is the extent that the internal and external amenity might need to be traded to allow a reasonable development on the site, including to what extent the quite constrained site width might affect the calculation.
10. What is clear to me, mindful of reasonable development prospects for the site and the plans before me which in my view have scope for considerable further refinement, is that the extent of view loss at the northern deck at 2 Gardere Avenue does not involve adequate view sharing and is unreasonable. In this case, there would both be a loss of an open (ie wider angled) ocean view, and a loss of the best part of that open ocean view.

5 Gardere Avenue

1. Again, partly as a consequence of the quality of the analytical material provided with the application and in Ex 3 itself, there was quite good clarity in regard to the first and second Tenacity steps for 5 Gardere Avenue. The experts agree, and it is apparent from the evidence, that there are ocean views from the front of the residence, from the internal living area (kitchen and living room) and a south-facing deck (Ex 3 Tab D). The best views are eastwards, but the openness of the view extends to the south-east over the existing building, until taller existing buildings further south interrupt it. From eastern parts of the residence this view includes north-head in the distance.
2. In regard to Tenacity step 3, Mr Prosser believes (Ex 3, par 157): "The proposal would have an impact on views from a living and kitchen area toward the front of 5 Gardere Avenue. The impact from this area involves interrupting water views and view of North Head from both standing and sitting position. Depending on the view angle and window viewed from, there is a range of view impact from almost obliteration of the water views and North Head to reasonable of retention of the water view (kitchen section). Overall, the impact on the whole of the property is moderate-severe."
3. Mr Prosser believes that as a "moderate-severe" impact arises as a result of non-compliance with the front setback and wall height controls then the view sharing outcome is unreasonable (ibid).
4. I am not convinced of Mr Prosser's arguments with respect to 5 Gardere Avenue and prefer the arguments and submissions of the applicant.
5. In a kind of counterpoint to the 2 Gardere Avenue situation, the highest quality views (down Gardere Road to the east) would not be affected by the proposal. It is the "lesser quality part of the view" currently obtained across the roadway, then over the site, that would be affected (AOS, par 45).
6. The design does have some comparatively positive features with respect to view loss to 5 Gardere Avenue, including: (1) the building setback non-compliance to Gardere Avenue is not of particular significance of itself to views from 5 Gardere Avenue; (2) the wall height non-compliance is also not of great significance; (3) some of the blocking of the view by the existing building would be reduced (it is notable that it would be reduced even further if the building were setback from Gardere Avenue in accordance with what I suggest is needed in regard to reasonable view sharing for 2 Gardere Avenue).
7. The non-compliance with the front setback control to Carrington Parade at the upper storey does have significance in regard to view availability. But, while it is a negative aspect of the proposal in regard to view loss, given the quality of the remaining views from both inside and outside, I would not see the upper storey setback non-compliance as determinative on view loss grounds on view sharing principles.

Streetscape presentation and building bulk

1. Council is concerned with the proposal's presentation to both Carrington Parade and Gardere Avenue. The concerns are in regard to visual impact and, in particular, visual dominance. They relate to both the positioning of the building (street setbacks) and overall presentation.
2. Mr Prosser believes the building footprint, including non-compliant setbacks, provides an unreasonable visual impact on adjoining properties and the street. The architectural form, providing for "continuous walls" along Carrington Parade and then along Gardere Avenue frontages, provides inadequate articulation and response to the site topography. There is insufficient landscaping to reduce perceived building massing.
3. Mr Haynes analysed the local visual context, noting the mixed character of building forms in the streetscape. He indicated that the proposal would sit at a lower height and be narrower than its immediate neighbours to the south in Carrington Parade. In regard to Gardere Avenue, Mr Haynes observed the extent to which the proposal would be under the maximum building height control in WLEP and that a complying envelope would result in a much higher building with more bulk when viewed from surrounding land. He indicated his opinion that continuous wall planes are offset by the angularity employed as the building wall alignment turns the corner and adjusts its setback to Gardere Avenue. Mr Haynes saw the proposal as a visual interesting building with appropriate architectural and design techniques in regard to bulk and scale. He indicated support for the proposed landscape areas and planting which would "blend in" (Ex 3, par 63).

Consideration

1. I have already indicated that the building, as setback to Gardere Avenue, is inappropriate on view loss grounds. This in part aligns with Council's "visual dominance" concerns in regard to the proposed two story building massing at the road reserve boundary for a portion of the proposal.
2. Setting that aside, it seems to me that the building as proposed would indeed stand out in the streetscape on this corner site, but this cannot always be seen as a bad thing. While the built form is unusual, I agree with Mr Haynes that the architectural treatment, including the angular treatment of wall planes on the corner site, is visually interesting. Having reviewed the architectural design statement (Ex 3, Tab C, eg p 6) it can be understood how the proposal could present as a positive feature in Gardere Avenue and on the corner.
3. The proposal's non-compliance with the Carrington Parade setback control, at the upper level, warrants direct attention here. The DCP would provide for a 6.5m setback, but Mr Prosser believes a setback in the region of 5m - 5.7m would be reasonable in the circumstances. The plans indicate a primary setback to Carrington Parade of 2.33m with the glass line set in a further 0.525m apparently. There is landscaping proposed within the setback area to Carrington Parade and around the corner into a little into an angled setback area to Gardere Avenue.
4. A combination of factors draw me to the conclusion that, with the exception of required rearrangements consequential to required changes to the setback to Gardere Avenue (which could provide for enhanced opportunity for street-side landscaping of a reasonable height), the building's streetscape presentation and building bulk would otherwise be able to be satisfactory. These factors are: the positive features of the proposal in architectural terms, the fact of the curvilinear nature of Carrington Parade road reserve boundary near the roundabout and the fact that the existing building is setback even closer to Carrington Parade than is now proposed. There is a further factor concerned with balance in providing for reasonable development prospects for the subject site, which I will return to in my conclusions.

Other matters

1. In regard to the question of non-compliance with side building envelope controls to the south, and the prospects of this having an unreasonable effect on 70 Carrington Parade, I generally agree with the evidence of Mr Haynes and the submissions of the applicant that strict compliance is not necessary in the circumstances and to require it would be inconsistent with s 4.15(3A) of the EPA Act.

Conclusion

1. It is necessary to have regard to WDCP controls as a focal point of the decision making process (Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 at [75]), this mindful of the need for flexibility under s 4.15(3A) of the EPA Act. I generally agree with the applicant that in this case, due to the narrowness of the site and its position on a corner allotment, there needs to be a kind of critical openness to variations from Council's numerical building envelope controls.
2. However, the determinative issue in this case is view loss to 2 Gardere Avenue. In considering this question of the impact on a neighbouring property, I am mindful of the applicant's reference to the court's planning principle in Davies v Penrith City Council [2013] NSWLEC 1141 at [121]. Overall, I am of the opinion that the proposal would significantly change the amenity enjoyed from 2 Gardere Avenue for the worse. While there is some vulnerability to this view loss impact, both policy controls and view sharing principles suggest the proposal goes too far. I note the impact on 5 Gardere Avenue would be significantly less. While the proposal enjoys considerable architectural design qualities, in this instance it attempts to achieves too much on a constrained site.
3. A reasonable development at the upper level in regard to view sharing and setback policy, would widen the view available from a central position in the northern deck of 2 Gardere Avenue, extending the view arc further to the south. This would mean some of the better views would be retained more widely in this property This finding means that view sharing principles would require something other than minor reduction of floor area at level 1 of the proposal. With good design, there is scope for this to occur while also providing for reasonable floor space on this level.
4. Here I recognise that there are variations in the value returned, really in regard to both the neighbour impact/benefit and design opportunity for the subject site, as adjustments to view/building lines are considered, and that further examination would be needed. However, should it happen to assist, my tentative conclusion would suggest, considering the photographic and other evidence but using drawing DA SK00 as a reference; reasonable view sharing would retain a sightline from the centre of deck at 2 Gardere Avenue to a point between the arrowed view lines marked as "7' and "8" as shown in that drawing (DA SK00).
5. The Court orders that: 1. The appeal is dismissed. 2. Development application No. DA2019/0380 for a dwelling house at 72 Carrington Parade, Curl Curl is refused. 3. The exhibits are returned with the exception of Exhibits 1, B, C and E.

Commissioner of the Court ******** 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: 25 January 2021