Gooley & Anor v Canada Bay C

Land and Environment Court (NSW)|2006-04-05|Before: Mr P

CITATION : Gooley & Anor v Canada Bay C [2006] NSWLEC 162

APPLICANTS Dr Brett Gooley and PARTIES : Christinge Gooley

RESPONDENT Canada Bay Council

Environmental Planning and Assessment Act 1979 Drummoyne Local Environmental Plan 1986 LEGISLATION CITED: Drummoyne Comprehensive Development Control Plan 1999 Parramatta River Regional Environmental Plan No. 22 Development Control Plan for SREP 22

CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140

APPLICANT Mr G. Newport, barrister Instructed by Mr M. Marshaw of Maurice Marshaw Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Jackson, solicitor of Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10231 of 2005 and Dr Brett Gooley & Christine Gooley v 10543 of 2005 Canada Bay Council

JUDGMENT Background. 1 This appeal was lodged against Council's refusal of a development application for the construction of a floating pavilion roof over an existing outdoor recreational area, located on the roof slab on a large dwelling situated at No. 357 Victoria Place, Drummoyne. The application is also for the occasional use of this rooftop area as a lighted tennis court and other recreational activities until 10 p.m.

2 For the appeal, a number of issues were raised and these are summarised as follows: o height, bulk and scale of the proposal; o amenity impacts concerning noise, light intrusion and privacy; o view loss; o overshadowing; o public interest matters.

3 The parties agreed to Mr C. Young, being the Court-appointed expert (CAE) for planning, and he prepared a detailed assessment of the proposal.

The site. 4 The site is located at No. 357 Victoria Place, Drummoyne, and it has a site area of 1068 sq m. It is located on the south-western side of Victoria Place towards Five Dock Point. The site has water frontage to Parramatta River, and slopes from the north-eastern boundary to the water by approximately 5 m.

5 The allotment is of "battleaxe" configuration, and it is situated behind a block of units known as No. 359 Victoria Place, which fronts the street.

6 The large dwelling house containing 6 bedrooms over 2 levels was recently constructed on the lot. It also includes an indoor 25 m lap pool, gymnasium, home theatre room, sauna and steam room, and 4 car garage. There is also an external swimming pool and stone boat shed on the waterfront.

The Proposal. 7 This proposal is to enclose the existing roof slab of the dwelling by the construction of a "floating pavilion" roof. The proposed roof has two discrete components comprising: the main upper convex Colourbond roof with a maximum height of 7.4 m of the slab and the lower concave Colourbond roof to height of 6m above the slab. There this to be a 300 mm ventilation duct between the upper and lower roofs. The Colourbond is to be Aubergine to match other panels on the existing dwelling. 8 Side blinds are proposed along all elevations, except that to Parramatta River. These PVC blinds hang from the lower roof and are mechanically operated to roll down and connect to the existing concrete parapet. Movable aluminium frames are also to be installed on this outside walls. 9 The proposal is also for the use of this rooftop area for recreational use, including occasional tennis games, until 10 p.m.

Planning controls. Drummoyne Local Environmental Plan 1986. 10 Under this LEP, the site is zoned Residential 2(b) and the development is permissible with consent.

11 The LEP adopts cl 5(1) of the Environmental Planning and Assessment Model Provisions, 1980, which provides as follows: (1) The consent authority shall, in respect of an application under the Act for its consent or approval to the development of land within view of any waterway or adjacent to any main or arterial road, railway, public reserve or land zoned as open space, take into consideration the probable aesthetic appearance of the proposed building or work or that land when used for the proposed purpose and viewed from that waterway, main or arterial road, railway, public reserve or land zoned for open space.

Drummoyne Comprehensive Development Control Plan 1999. (CDCP) 12 This DCP contains complimentary design guidelines for development. The following items have been identified as relevant in this matter: o Cl 2.2 Site analysis; o Cl 6.1 Maximum height 2-storeys; o Minimum setbacks for 2-storey dwelling 1.5 m side setback; o Cl 6.4 Character Units Design Criteria - the site is located in the "Peninsular Area" Chacacter Unit 1 (CU 1); o Cl 6.5 Building envelope; o Cl 6.7 Views; o Cl 6.8 Privacy; o Cl 6.9 Solar access and overshadowing. Parramatta River Regional Environmental Plan No 22. Cl 20(a) requires the consent authority to take into consideration the appearance of the development from the waterways and foreshore. Cl 20(o) requires that the consent authority take into consideration the views of the Foreshores and Waterways Planning and Development Advisory Committee in deciding whether to approve the development. Development Control Plan for SREP 22.

The evidence. 13 In addition to Mr Young's (CAE) assessment record (Ex 11), other expert reports were presented by: * Mr B. Krohn, Architect/town planner with council (Ex. 10); * Mr S. Layman, Consulting town planner (applicant) (Ex. B); * Mr J. McComb, Consulting engineer - heating, (Ex. G); * Mr F. Waldman, Consulting engineer - lighting, (Ex.K); * Mr G. Atkins, Acoustic consultant - (Ex. C,L); * Mr Mathews, Valuer (Ex. 20); * Mr Doncass, Valuer (Ex. H).

14 Both the oral and written evidence, as contained in Exhibit 4, of a number of objectors was also considered.

15 To assist the Court, conferencing was undertaken by the respective experts, resulting in the joint planner's report (Ex. 19), and the joint valuers report (Ex 21).

16 The principal contested issue concerns the height, bulk and scale of the proposal. In their assessments, the planners referred to the various design controls and guides in the CDCP, applicable to the Character Unit 1 Peninsula Area (CU 1). It describes the peninsular areas as being characterised by a relatively dense mix of 3 - 4-storey and 5 - 8-storey flats occasionally tempered by the 1 -2-storey dwellings. 17 The following controls were then identified as relevant in this matter to achieve the desired future character: o P2, Building form and design must allow for view sharing, where possible. When views are identified in the site analysis, the statement of environmental effects must demonstrate how the design has resolved the reasonable sharing of views between proposed and neighbouring dwellings; o P7, Building alterations and additions should be in character with the surrounding dwellings in terms of roof form, detailing and finishes.

18 Section 6.5 deals with the building envelope to ensure that the scale and bulk of future development is compatible with the character of the street and surrounding area and the privacy and solar access to existing dwellings is maintained… The relevant objectives are: - 02, To maintain a compatible scale with surrounding development; - 03, To maintain existing privacy and solar access of neighbouring properties;

19 For single dwellings, the relevant performance criteria includes: - P3, Side and rear setbacks enable adjoining dwellings to maintain privacy and sunlight access; - P6, Roof design should be well articulated and reflect the predominant roof design in the streetscape. 20 The application of these controls to the subject development has resulted in significantly different conclusions by the respective planners. This is partly due to the usual nature of this development, which involves the construction of an enclosed tennis court, elevated to a 3-storey level, substantially surrounded by residential flat units. By reference to the controls, the planners agreed that the proposal would have a 3-storey height presentation from the Parramatta River (western) aspect, which they consider the most critical. This is notwithstanding that there was some argument about the height of the building on the eastern elevation, due to excavation, which I consider is less critical, in terms of height and bulk presentation.

21 With regard to the height and bulk issue, Mr Layman, notes that there are no development standards for height or floor space ratio in either the LEP or Comprehensive DCP, only the height limit of 2-storeys for single dwellings and residential flat buildings in CU 1. He supports the proposal because: * On the basis that the site has been excavated, then the existing house is 1-storey on the eastern end and 2-storey at the western elevation (i.e. waterway); * Irrespective of the statutory provisions, the building context of the proposal is well-established. The immediate context is of older 4-storey scale (to the north), and 5-storey (to the south), residential flat buildings and the visual catchment of the subject site includes the foreshore, which displays residential flat buildings up to 9-storeys high. The 1 and 2-storey assist in development of the subject site is the exception to this general order of magnitude of 4 to 9-storeys; * In this context, the proposal is not out of scale of height, with adjoining development or the broader context of the Five Dock Bay foreshore. "Rather, it brings the existing development into a scale more consistent with the foreshore context and more evenly continues the scaling down of the development from the south to north along the foreshore …" * Other nearby residential flat developments in Victoria Place have more recently been approved, which do not comply with the 2-storey height limit. For consistency then, the same discretion is appropriate for the subject proposal in this precinct; * The proposal increases the overall height of what is an uncharacteristically low building compared to its context. In an urban design sense, the height of the proposal is in keeping with its context. The proposed height appropriately fills a gap in what is otherwise, an increasing progression of building heights from north to south along the Five Dock Bay foreshore; * The character of the roof form is typical of modern Australian lightweight metal roof design, which is acceptable in the highly mixed context and in view of the uniqueness of the single dwelling site in the immediate residential flat building context. Furthermore, the proposed roof form enhances the scene and setting.

22 Against this, Mr Krohn says that: * Having regard to the height, style, character, scale and visual impact of the proposed roof form in the particular context, when viewed from the Parramatta River waterway, the proposal does not meet the requirement or intent of the provisions contained in the SREP 22 or the LEP; * The proposed roof structure represents the equivalent of a 2-storey building on top of the existing 2-storey dwelling, covering an area of 640 sq m and irrespective of whether or not it may be considered a storey. It is totally out of character with the intent of the 2-storey height limit imposed by the CDCP; * The proposal is overtly bulky, it is out of scale with the existing 2-storey host building and would be intimidating and have a severe and detrimental affectation on many of the surrounding dwellings by reason of its height, scale, bulk and position on the site.

23 From his assessment of the proposal, Mr Young does not support the proposal because: * It has a bulk and scale relationship with the neighbouring dwellings and existing house that dominates those dwellings, which does not comply with performance criteria P 10; * The proposed enclosure of the recreation space will change the character not only of the existing dwelling, but also its relationship with the adjoining development and visual impact from the public domain. This character will change from a 2-storey complying development set into the slope of the site sharing views with its neighbours, to a building bulk of higher roof height, bulk and scale to its size, surroundings, including the adjoining high-density 3 - 5-storey residential flat buildings; 24 It is obvious from these assessments that the respective planners have applied different priority weighting to elements of the controls. Mr Layman acknowledges that the existing building is "uncharacteristically low" and that a satisfactory planning outcome is achieved by allowing increased height, so that there is compatibility with the height of the surrounding residential flat development. 25 However, both Mr Krohn and Mr Young say that determining weight should be given to the prescriptive control, which imposes a 2-storey limit in this area and as the proposal does not comply, this is a ground for refusal.

26 It is apparent to me from the evidence, that most of the 4 - 8-storey, residential flat development surrounding the subject site predates the controls in CDCP. Presumably then, when the CDCP controls were adopted in September 1999, they took into account the existing development constraints. Mr Krohn confirmed that "the 2-storey height limit and other controls were clearly imposed because the outcomes generated by the then existing controls were not acceptable." Accordingly, development opportunities were limited to the prescribed controls.

27 These controls specifically limit the height of new dwellings and residential flat buildings to 2-storeys. It seems to me that this a base control, from which discretion can then be exercised to achieve design compatibility with neighbouring development, whilst maintaining this lower height level. This approach is consistent with that adopted by Mr Krohn and Mr Young. Interestingly this control applies to both the development of new dwellings and residential flat buildings.

28 Notwithstanding this, I see some merit in Mr Layman's approach to this particular site, because it is the only single dwelling site and is surrounded by the older, higher residential flat buildings within reasonably framed viewing corridors, as depicted in the photomontage Exhibit N. This indicates that the higher residential flat buildings tend to transition to the lower 1 - 2-storey dwellings, further to the south of the site.

29 In reconciling these opposing philosophical approaches to development in this immediate area, I also note Mr Krohns evidence that when the existing 2-storey dwelling was approved, it was on the basis of the CDCP controls and discretion was allowed for its 2-storey elevation to be forward of the prominent building line of the adjoining higher buildings. Consequently, he says that as the proposal would be equivalent of an additional 2-storeys on top of that merit approval, it would lead to an excessive prominence and impact on the waterway and on the adjoining buildings by way of its height bulk and scale.

30 As I have already noted, Mr Young does not support the proposal for number of reasons. In part he questions the necessity to enclose the recreation area that was allowed in the 2-storey approval, because it unreasonably increases resultant bulk and height impacts on adjoining residents and is inappropriate in this area.

31 In summary then, I am inclined to give more weight to the approach and opinions of Mr Krohn and Mr Young on this issue, that they represent a more current interpretation of the CDCP. However, as there are other merit matters that require consideration under the complimentary controls, I defer final determination of this issue until the cumulative effect is assessed. Nevertheless, my assessment is that the non-complying height and bulk of this dwelling house is a negative feature of the proposal.

32 The next issue concerns the adequacy of side and rear setbacks to neighbouring properties. For the proposal, I consider the western elevation to the Parramatta River waterway is the main frontage and the common boundary with No. 359, the rear boundary of the property. As such, the CDCP prescribes minimum setbacks for single dwellings of 6 m (rear) and 1.5 m (side/2-storey) to neighbouring properties. However the existing dwelling has zero setback on this rear boundary and it is proposed to project the enclosing tennis court fence structure on this alignment.

33 The western elevation of No 359 is setback approximately 4.5 m from the common boundary and it contains a number of bedroom (living room) windows.

34 It seems to me that the lack of setback, even the minimal 1.5 m side setback, is a negative feature of the proposal, considering the type of activities and times proposed for use. In this regard, I rely on Mr Krohn's opinion that a structure of the size, bulk and height proposed, so close to the rear boundary, is inappropriate in such circumstances and will cause severe loss of amenity to the adjoining dwellings.

35 Unfortunately, Mr Layman does not appear to have assessed the impacts on No 359 and I give little weight to the fact that this property is currently owned by the applicant. It is a separate residential property with individual title and the amenity impacts are an appropriate consideration.

36 The next set of issues concern amenity impacts on the adjoining properties. The planners have provided detailed assessments of the impact on views from the neighbouring units, and this includes detailed photographic evidence. They have also referred to the planning principles contained in Tenacity Consulting v Warringah [2004] NSWLEC 140, together with the controls in s 6.7 of the CDCP.

37 From his assessment, Mr Layman says that there is adequate view sharing and even though some of the views from the neighbouring units are restricted, nevertheless attractive, alternative views are available. Furthermore, he says this view sharing is reasonable because the proposal has been designed with the convex roof shape, together with the concave perimeter treatment, which assists in optimising view retention along the side of the subject proposal. 38 By reference to the CAE evidence and the Tenacity principles, my assessment is:

Step 1 ; Involves an assessment of the views affected . In this case, water views of the Parramatta River, foreshore parkland and treed ridge-lines are available in varying degrees from 9 of the effected neighbouring units. Step 2; Requires consideration from what part of the property the views are obtained, recognising that protection of views across side boundaries is more difficult than protection of views from front and rear boundaries . The respective photographic evidence indicates the degree of view intrusion by the proposed restructure, in various living and bedrooms, along the side boundaries. From my observations on the view, I am inclined to accept Mr Layman's evidence that in most cases where view loss occurs from living rooms, acceptable alternative views are available from within the unit. Step 3 ; Requires an assessment on the extent of the impact, in terms of the whole of the property, not just for the view that is affected. In my assessment, the identified 9 units affected represent a significant number, considering they are relatively small units, within a medium density area, where outlook to part water views or landscape areas, adds to their amenity. Step 4; 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 moderate impact may be considered unreasonable. With the 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 the view of the neighbours… In my assessment this is the most critical test in this matter. The proposed tennis court structure results in a relatively high 3-storey structure, that exceeds the 2-storey design control. 39 In summary then, I am satisfied that the proposed roof structure does impact on the views currently enjoyed by 9 of the adjoining residential units and No 359. While the intrusion into the views of the waterway and foreshore parklands from the individual units varies, nevertheless I am satisfied it can be classified as a moderate impact, which results in a negative impact rather than any enhancement of views. Taking into account that the intrusion is caused by the elevated tennis court roof of non-complying height, which enables this area to be used for occasional recreation by the property owner, I do not consider there is a reasonable balance that results in Test 4 being satisfied in this context. 40 The issue of overshadowing was also raised and addressed by the planning experts. From the shadow diagrams, they agree that all neighbouring units, except Unit 2, comply with the shadowing provisions in section 6.9 of the CDCP. This requires that: M1 Windows to north-facing living areas are to receive at least three hours of sun (on at least a part of the surface) between 9 a.m. and 5 p.m. on 21 June . 41 Because of its lower-level position, the north-facing windows in Unit 2 will only receive approximately two hours of sun at the designated time. In these circumstances, I rely on Mr Young's opinion that this degree of overshadowing is not sufficient to warrant the rejection of the application. 42 The next issue concerns the impact of illumination/light spill from the tennis court lighting, when used until 10 p.m., on some nights. This issue was addressed by Mr Waldman, based on the provisions of Australian Standard As4282, which deals with limits to obtrusive outdoor lighting. 43 From this standard, he made the following assumptions for room reflectance's of the covered pavilion; ceiling - 20%, walls - 50% and floor - 20% and also an allowance of 10% light loss transmission through the blinds. Consequently he concluded that the installation would not be obtrusive. 44 However in cross examination, he was unsure of the actual specification for the PVC blinds and availability. Consequently, he was unable to assist the Court as to whether the recreational activities, or silhouettes would be observable through the blinds during recreational use, particularly night time. Whilst I note the applicant's submissions in this regard, that further submission of specified material, or conditions of consent could cover this, my impression is that this a deficiency in this sensitive application. 45 Another amenity issue concerns noise impacts. This was assessed by Mr Atkins by way of noise measurements conducted on the roof of the subject site. For normal tennis activities, he says that maximum noise levels generated range between 53 and 70dB(A) measured at 5 m from the sideline of the court. In terms of the noise measured over a 15 minute period in accordance with DEC (EPA), normal levels range between L A10 50 and L A10 55dba at 5 m from the sideline of the court and L A10 47 to L A10 52 dba at 10 m. Therefore he considers that a reasonable assessment goal is 48dB(A). 46 From previous investigations and assessments for noise mitigation effects of roof insulation and the plastic curtains, he says that a noise reduction of between 8 - 10dB(A) can be achieved, with the curtains closed. Taking into account the additional mitigating effect of the existing roof top concrete upturn, which is in the order of 3 - 10 dB(A),then the assessment goal would be achieved with the curtains rolled down. 47 But in cross examination, Mr Atkins admitted that he did not undertake any noise assessment for the rooms in No 359, which is the closest building, because it is owned by the applicant. Nevertheless, he estimated that at the existing 4.5 m separation distance, the noise level would be in the order of 49dB(A), thereby marginally exceeding the assessment goal. 48 From this evidence, it seems to me that the potential noise disamenity from the enhanced recreational use of this roof top area is likely to increase and the mitigation measures are at best borderline. There are likely to be circumstances where the assessment goal will be exceeded, particularly when tennis is played at the back line, adjacent to No. 359. Therefore, extraordinary management procedures seem necessary to ensure that the blinds are always closed, when most recreational activities are being undertaken to avoid unreasonable disamenity. From a practical viewpoint, I consider this borderline situation is a further negative aspect of the proposal, allowing for the assumptions made in estimating the assessment goal. 49 An associated issue concerns the heat control of the enclosed tennis court, considering it must be enclosed to minimise noise and the light disamenity. This was assessed by Mr McComb on the basis that the three surrounding curtain walls remained closed during activity, with the western elevation open. This opening, together with the roof ventilation duct between the barrel vault and the reverse wave/upturn section, allows air replacement and circulation in accordance with a "stack" effect. 50 The resulting heat load for the structure based on a summer day temperature of 30.5oC, with lights on and 10 people occupying, can apparently be accommodated by this stack effect. Therefore Mr McComb is satisfied that the enclosed structure can be adequately ventilated naturally. 51 The issue of impact on property values was raised after the appeal proceedings commenced. Mr Doncass undertook valuation of the aforementioned 9 residential units, to estimate their current market value.

52 A similar exercise was undertaken by Mr Matthews on behalf of the neighbouring unit owners. His valuation tabulates before (current) and after valuations, making allowance for variations due to a number of amenity matters, he considers arise from the proposal. These allowances include overshadowing effects, higher level of illumination, loss of acoustic and visual privacy and impact of active sports. Applying these allowances to the various units, he says there will be a total negative variation of $495,000 for the 9 affected units, which translates to a range of $35,000 - $75,000 for individual units.

53 Insofar as the valuers presented consistent current market values, they were unable to agree on the effect of the proposal to these property values. Mr Doncass does not agree with the foregoing allowances and considers there will be no significant change to the property values. Mr Matthews was cross examined on the basis for his after sales, and in the absence of direct comparables, explained how he made his allowances on the basis of his extensive local experience.

54 From this cross examination, I accept there is some difficulty in estimating impacts of the proposal and translating them to property value adjustments and in this regard Mr Matthews conceded that a variation of 10% could be reasonable. As this issue goes to the s 79C economic impacts of the proposal, I am satisfied to rely on Mr Matthews general conclusion that the proposal will have a negative effect on the values of a number of the neighbouring properties, rather than Mr Doncass's opinion that there will be no effect. Accordingly, I consider this a negative aspect of the proposal.

55 Some other issues were discussed during the appeal, however I consider them of less importance in the overall determination of this matter and do deal with them in any detail. Conclusion. 56 Having considered the evidence, the submissions and undertaken a view, I do not consider this proposal merits consent because of its excessive height and bulk which creates unreasonable impacts on adjoining residential properties and consequently does not demonstrate adequate compliance with the Comprehensive Development Control Plan. 57 The planners have agreed that the most critical presentation for the building is the western elevation frontage to the Parramatta River waterway, considering the subject lands waterfrontage. At this frontage, the proposal clearly presents as a 3-storey building (albeit the 3rd storey being higher than normal), which does not comply with the provisions of the CDCP maximum height control of 2-storeys.

58 Considering the previously discussed philosophical approaches to the application of the controls, I am satisfied to rely on the opinion of the Court appointed expert, Mr Young that greater weight be given to this prescriptive 2-storey height control, rather than the performance controls preferred by Mr Layman concerning the compatibility of the proposal with the adjoining residential flat buildings. In support of this conclusion, I note Mr Krohns evidence that this height control was adopted in 1999 to avoid the outcomes like the adjoining residential flat buildings, to which Mr Layman advocates compatibility.

59 Accordingly, the retention of the existing approved and constructed 2-storey dwelling, adjacent to the existing 4 - 5-storey residential flats seems to satisfy the character statement providing for the relatively dense mix of flats occasionally with tempered by 1 - 2-storey dwellings. It does not appear to encourage infill development like the proposal to increase its height and bulk to match that of the adjoining residential flats, as proposed by the applicant, even though this could be an alternative urban design solution. 60 The bulk of the building is an associated consideration with its height. In this regard I note Mr Krohn's evidence that the existing dwelling is relatively large and incorporates many additional features. This was partly achieved by allowing the front building line to the Parramatta River to be reduced and a zero rear building setback to No 359. As the elevated tennis court roof is to be erected on this footprint, it adds considerably to the bulk and scale of the proposal, which I consider is unreasonable in the context of the CDCP. 61 The CDCP also requires specific consideration to the proposed roof form, so that it does not unduly increase the bulk of the building and should be a collection of small roof forms rather than a single bulky roof. It seems to me that this roof will present as excessively bulky for a 2-storey dwelling. In this regard I am satisfied to rely on Mr Krohn's architectural/planning expertise, who describes the roof as overtly bulky and out of scale with existing 2-storey host building. This then results in such unsatisfactory visual impacts of the proposal of the waterway 62 As a consequence of this increased bulk and height of the proposal, I am satisfied that proposal is likely to exert unreasonable impacts on neighbouring properties. From my understanding of the evidence and observations at the site inspection, there will be a reduction in the views currently enjoyed by occupants of the adjoining units. Even when I classify them as a moderate loss, I do not consider proposal satisfies Test 4 of the Tenacity Principles, in terms of the reasonableness of the proposal.

63 Undoubtedly, other noise and lighting impacts will be experienced by the adjoining properties with the likely increase in recreational uses for this rooftop area. In so far as the respective consultants have addressed these impacts, it seems to me that their solutions are based on a number of assumptions that then requires extreme care in the management of the rooftop area, to ensure that the blinds are secured for practically all activities, to minimise disamenity to the neighbours. The proposed management plan (Ex. F) is of very basic nature and in my opinion provides little, if any comfort in this regard.

64 As part of his assessment of the impacts of proposal, Mr Young also referred to the planning principles in Padfurn, which outlined five themes for consideration. The first theme is that changing impact may be as important as the magnitude of the impact. In the current proposal, the construction of the overall 7.4 m tennis court enclosure and its use, represents a significant change in character of that of the existing open recreational deck.

65 Following this, the second theme is that one should balance the magnitude of the impact on the necessity and reasonableness of the proposal that creates it. In my assessment, the extraordinary height of this elevated roof- structure, located within its developed medium density area context, is unreasonable and its necessity was not adequately established.

66 With regard to the submissions made about recent Council approval to other nonconforming height developments in CU 1, I give this little weight, in the absence of the prevailing circumstances being established, to show some relationship with the subject proposal. 67 In summary then, my assessment of the evidence shows that the proposal is non-complying in terms of the 2-storey height control in CDCP and its resultant bulk and scale creates a number of amenity impacts on several neighbouring residential units, which have a negative effect. The cumulative effect of these is that the proposal should be refused. Consequently, I consider it will present unsatisfactory visual impacts to waterway and am satisfied to rely on the Court appointed expert, Mr Young's opinion that the merits of the bulk and scale, compatibility and reasonableness of the proposal is unacceptable and it should be refused. 68 The associated appeal No. 10543 of 2005, deals with council's deemed refusal of a Building Certificate and should now be referred to the Registrar for completion arrangements. Court Orders.

1 The appeal is dismissed. 2 Development application DA 34/2005, for the construction of a rooftop tennis enclosure and use of this area for recreational purposes, at No. 357 Victoria Place, Drummoyne, is refused. 3 The exhibits may be returned except for Exhibits 1, 2, 10, 11, 12, 13, 19 , 21, A, B, F and N.

      R Hussey
      Commissioner of the Court
      Ljr/rjs

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