View sharing - findings
13Clause 7.6 - Views of DCP 15 relevantly states:
7.6.1 Objectives
To provide opportunities for view sharing by both the existing and future residents of the Municipality.
To ensure that the maximum number of residents enjoy a view by avoiding the monopolising of a view by existing dwellings and undue obstruction of views by new dwellings or additions.
7.6.2 General Requirements
New development should be designed to minimise view loss to adjoining or adjacent properties while still providing views from the development itself. This practice is called view sharing...
14In terms of the assessment framework , Tenacity and the objectives and general requirements in DCP 15 adopt the principle of view sharing. View sharing is succinctly described in Tenacity. For approval to be granted, the proposed development should not monopolise or unduly obstruct existing views and should minimise view loss to adjoining properties ( cl 7.6 of DCP 15) . As the proposed development is a complying development , Tenacity asks whether a more skilful design will achieve the same development potential as the proposed development and at the same time provide less impact on adjoining properties (Test 4 in Tenacity ).
15As part of the conciliation phase of the hearing, the parties discussed a number of changes to the proposed development and while there was some agreement, the extent of changes did not fully address the concerns of Mr Adamson. The changes addressed part of the roof form on the north western corner of the building that contains the study and the stair to the first floor level. The effect of the changes was to create a roof form more consistent with the pitched roof character in the area and with the consequent benefit of improving the view through the proposed deck from
the east facing living room doors at 5 Elgin Street. The applicant tendered conditions (and also plans that showed the effect of the proposed conditions) to reflect this change. In addition, other minor changes that reduced the bulk of the roof by changing it from a Dutch gable roof with gablets to a simpler pyramid roof form and reducing its overall height were proposed by the council and accepted by the applicant.
16With the benefit of the site inspection, the presence of the height poles, observations of the existing views from the three viewing locations at 5 Elgin Street; a clear understanding was gained of the impact on the existing views by the proposed development. I am satisfied that the proposed development, with some minor changes, is acceptable when tested against the principles in Tenacity and the objectives and general requirements in DCP 15 for number of reasons.
17The existing views from 5 Elgin Street from the three viewing locations are unconstrained at the present time, largely because of the single storey dwelling on the site. In my view, the retention of all views in their current form is an unreasonable expectation particularly given that the views are across a side boundary. The protection of views across side boundaries creates additional problems, in terms of view sharing and is a matter raised in Tenacity. The protection of the existing views becomes even more difficult when the proposed development is a complying development.
18As I understand, Mr Cole, the council's solicitor, submits that notwithstanding the agreed position that the proposed development is a complying development, a more skilful design is available that will allow the applicants to achieve a reasonable development of the site and at the same time reduce the impacts on 5 Elgin Street. This more skilful design generally provides for the relocation of the proposed deck from the northern elevation to the eastern elevation so that views from the deck viewing area at 5 Elgin Street are less restricted and greater privacy between the two dwellings will be achieved. While I accept that this may address the concerns of 5 Elgin Street in the short term, I did not accept that it could be regarded as a more skilful design as it potentially creates a similar problem with view sharing for the proposed development as the property directly to the east of the site contains only a single storey garage with a dwelling further to the south. Any redevelopment would more than likely result in a two-storey form that would likely block views from the east facing deck, suggested by the council. It would seem that this was not an approach previously considered acceptable by the council given the evidence of the owner of 5 Elgin Street who stated that an east facing deck was rejected by the council in favour of the deck that encroaches significantly to the setback to Elgin Street but provides for the retention of the significant views in an easterly direction.
19On the question of whether the proposed development monopolises or unduly obstructs existing views and does not minimise view loss to adjoining properties, I can comfortably conclude that the answer should be answered in the negative.
20I accept the evidence of Mr Minto that the effect on views should be considered collectively from the three viewing locations at 5 Elgin Street. Even though the most significant impact is on the living room and that there was agreement that this location was the most significant of the three viewing locations in the dwelling, it must also be remembered that this location is also the most susceptible to any development of the site because of its location directly opposite the area on the site where any redevelopment is likely to take place. This needs to be compared to the deck viewing area where views are retained to the east by the different street setbacks of the decks and the balcony viewing area where views are largely retained because of the elevation of this area and ability to view over a large area of the proposed development. These views were also enhanced with the amendments to the roof form of the proposed development.
21I am also satisfied that the applicant has made reasonable attempts to maximise views from the living room area through the proposed deck to the east, including restrictions on the type of improvements allowed on the deck. While this is clearly not as desirable as the existing unencumbered views, it is nonetheless a reasonable compromise given the views available from the other two locations in the dwelling and the reasonable assumption that a dwelling could be constructed on the site that conform to the councils planning requirements.
22Using the qualitative terms used in Tenacity, I would describe the view loss from the deck, living area and balcony as moderate, severe and minor, respectively. Collectively, I am satisfied that the view loss created by the proposed development does not monopolise or unduly obstruct existing views and minimises view loss to adjoining properties.