COMMISSIONER: This is an appeal against the refusal of Development Application No DA-20/2015 for the demolition of all existing improvements and the construction of a new dwelling house at 15 Gaerloch Avenue, Tamarama (the site).
The council maintains that the proposed development should be refused because of:
excessive floor space ratio (FSR),
excessive height,
excessive earthworks,
inadequate setbacks,
visual and acoustic privacy impacts,
loss of view, and
poor internal solar access.
The appeal was subject to mandatory conciliation on 14 and 15 July 2016 under s 34AA of the Land and Environment Court Act 1979 (the Court Act).
The town planning experts, Mr Lindsay Fletcher, for the applicant and Mr Stuart McDonald, for the council produced a joint report (the original joint report) on the contentions raised by the council. Following discussions on the council contentions on 14 July 2016, the applicant proposed a reduction in the height of the building by way of the deletion of the dome roof form and replacement with a flat roof and other measures. Following the amendments proposed by the applicant, Mr Fletcher and Mr McDonald wished to view the changes from the potentially affected residential properties, through the use of height poles that reflected the amended design. Mr Fletcher and Mr McDonald prepared another joint report (the further joint report) following the site inspection on 15 July 2016 at which time they were able to assess likely view impacts of the amended proposal from Units 2, 3 and 4, 32 Dellview Street. The report contained photographs taken at the site inspection to verify the dimensions of the height pole that has been erected consistent with the details on the amended plans. The further joint report also provided a View Impact Analysis from 32 Dellview Street that, in each case, identifies the windows from which the view is obtained and as well as computer-generated images of the existing view and the impact of the amended proposal on that view. The contentions relating to earthworks, some setbacks, visual and acoustic privacy issues and internal solar access were no longer pressed by the council. The contentions relating to rear setback, view loss, FSR and height remained in issue following the site inspection on 15 July 2016.
As a consequence of the amended plans, an amended cl 4.6 written request in relation to the variation of the FSR development standard under cl 4.4 and the height development standard under cl 4.3 were provided. This report identified some areas of agreement but not full agreement.
As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b), and the proceedings were to be dealt with forthwith pursuant to s 34AA(2) b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii). Mr Patterson, for the council, however indicated that the council sought to make oral submissions on the issue of view loss from the properties at the rear and that a further date would be required for this to occur given the need to brief counsel. Written submissions of the respondent were filed on 25 August 2016 and it was agreed that oral submissions were not required and the Court could rely on the written submissions.
[2]
The site and locality
The site is Lot 8 in DP 15588. It is a trapezium or fan-shaped lot with a southern (front) boundary of approximately 8.17m, a west (side) boundary of 24.70m, a north (rear) boundary of 27.55m and an east (side) boundary of 24.09m deep. The site has a total area of 397.4 sq m. The land rises steeply towards the rear from the front street boundary with a difference of approximately 8-9m. There is a small level section at part of the rear of the site. The site is currently occupied by a three storey dwelling with a low pitched mansard style tiled roof. There is a double garage fronting Gaerloch Avenue, which is excavated into the slope of the site.
Adjoining to the south (17 Gaerloch Avenue) is a three storey residential flat building over 3 single garages at street level and adjoining to the east (13 Gaerloch Avenue) is a two storey dual occupancy over 3 single garages at street level. To the north, adjoining at the rear is 32 Dellview Street that consists of a 2 - 3 storey residential flat building (which presents as 4 stories at the rear), and 30 Dellview Street is a 2 storey detached dwelling, both of which, are elevated over the site, due to the rising topography of the land at the rear.
Opposite the road to the south and east is Gaerloch Reserve, the coastal walk, expansive views of the Pacific Ocean and the headland of Mackenzies Bay.
The locality is characterised by a variety of residential forms, predominantly large single dwellings, interspersed with multi residential flat buildings comprising 2 to 4 levels.
[3]
Relevant planning controls
The site is zoned R3 - Medium Density Residential under Waverley Local Environmental Plan 2012 (LEP 2012). Dwelling houses are permissible with consent in this zone as a form of residential accommodation. Clause 2.3(2) requires the Court must have regard to the zone objectives when determining a development application. The zone objectives are:
• To provide for the housing needs of the community within a medium density residential environment.
• To provide a variety of housing types within a medium density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
Clause 4.3 provides for a maximum height of 9.5 m whereas the original design had a maximum height of 11.2 m. The amended design has a maximum height of 10.02 m. A written request under cl 4.6 has been submitted to support the variation to the height development standard.
Clause 4.4A provides for a maximum FSR of 0.66:1 whereas the original design had a FSR of 1.25:1. The amended design also has an FSR of 1.25:1. A written request under cl 4.6 has been submitted to support the variation to the FSR development standard.
Waverley Development Control Plan 2012 - Amendment No. 4 (DCP 2012) applies. Part C1, cl 10 addresses Views and relevantly cl 10 states, in part:
Objectives
(a) To minimise the impact on existing views and vistas enjoyed from existing residential development and from the public domain.
(b) To encourage view sharing as a means of ensuring equitable access to views from private dwellings
(c)To maintain views from public places of landmark or iconic features.
Controls
(a) Existing views and vistas available from the public domain, including but not limited to ocean, harbour, beach, city and parks views are to be maintained where possible by the design of buildings.
(b) Existing views of landmark or iconic features from the public domain (such as Sydney Harbour, Opera House, Harbour Bridge, Bondi Beach) are to be maintained and where possible, enhanced. In some circumstances, complying with maximum development controls may not be achievable if an iconic view is impeded.
(c) Lower density residential accommodation is to be designed and sited so as to enable a sharing of views with surrounding dwellings particularly from habitable rooms and decks. Where views are enjoyed by a neighbouring property across a proposed terrace, balcony or deck, it may be appropriate to exclude a privacy screen to enable the view to be maintained.
[4]
Can the variation to the height standard be supported?
Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly states:
4.6 Exceptions to development standards
(1) The objectives of this clause are as follows:
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard.
(4) Development consent must not be granted for development that contravenes a development standard unless:
(a) the consent authority is satisfied that:
(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
The Dictionary to LEP 2012 provides the following relevant definitions:
building height (or height of building) means the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.
ground level (existing) means the existing level of a site at any point.
ground level (finished) means, for any point on a site, the ground surface after completion of any earthworks (excluding any excavation for a basement, footings or the like) for which consent has been granted or that is exempt development.
The breach of the height standard
The breach of the height standard was shown diagrammatically on plans in the further joint report (p3 of the written request) and represents an area to the south-east of the site which is represented at ground level by the existing basement carpark. The variation to the height standard is 552 mm being the difference between the height standard of 9.5 m and the maximum height of the building at 10.02 m. The extent of the breach is shown shaded on the plan of the building (shown below) near the Gaerloch Street frontage. The maximum breach is near the street frontage and tapering back to zero towards the centre of the dwelling.
Zone objectives
The R3 zone objectives are:
• To provide for the housing needs of the community within a medium density residential environment.
• To provide a variety of housing types within a medium density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
Height standard objectives
The objectives of the height standard are set out in cl 4.3(1) and state:
(a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties,
(b) to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth,
(c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land,
(d) to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space.
The written request
The written request addresses each of the height objectives in cl 4.3 and correctly accepts that objectives (b) and (c) are not relevant as they refer to Bondi Junction Centre.
In addressing objective (a), the written request acknowledges that there will be some view loss from Units 1-4 of 32 Dellview Street. Ultimately, full preservation of the view from units 1-4 of 32 Dellview Street is not reasonable for the following reasons:
the building has been designed so that the parts of the building which could potentially cause the greatest view loss impact are not only compliant with the height control, but are in fact significantly below this control,
the maximum wall height control (C1.1.2 of DCP 2012) for a flat roof is 7.5m and it can be demonstrated that a rear (western) wall of 7.5m with a compliant setback would cause a devastating view loss from Units 1 and 2,
the rear elevation of the building has been limited to a maximum height of between 3.3m and 6.3m in the particularly sensitive north-western corner of the building,
the part of the building which is non-compliant with the maximum height control causes minimal or no view loss from Units 1 & 2. The majority of the view loss is caused by those parts of the building, in particular the rear wall, which is wholly compliant and well below the 7.5m wall height control,
the non-compliance with the height control would not cause any privacy or overshadowing impact on neighbouring properties,
there may be a minor height non-compliance in the south-eastern corner however the north-eastern corner is 2m below the height standard, and
the part of the building which is below the height standard will preserve the views from units 1-4 more effectively than a fully compliant building. The lower parts of the building will allow for greater retention of views than a fully compliant building.
Overall, the quantum of view loss is far less than if the building were wholly compliant with council's controls. That demonstrates that the lowering of the building at the most crucial points to a level below the height control has reasonably preserved the environmental amenity of neighbouring properties and thereby produces a better environmental outcome.
This was not a conclusion accepted by Mr McDonald, the councils town planner, who with Mr Fletcher undertook and assessment of the view loss of the amended plans through the approach set out in Tenacity Consulting v Warringah [2004] NSWLEC 140 where the assessment of view loss is summarised in the following steps:
Step 1 - an assessment of the views to be affected;
Step 2 - the part of the property where views are achieved;
Step 3 - the extent of the impact; and
Step 4 - the reasonableness of the proposal that is causing the impact.
In relation to loss of views, Mr Fletcher and Mr McDonald agree that the view loss from the following properties is either negligible or at worst minimal and, in either event, is acceptable:
28 Dellview Street;
30 Dellview Street; and
34 Dellview Street.
The key disagreement between Mr Fletcher and Mr McDonald is the reasonableness or otherwise of the view loss to Units 1 and 2, 32 Dellview Street. While Mr Fletcher and Mr McDonald did not have the opportunity to undertake an inspection of Unit 1, 32 Dellview Street, they anticipate the impacts on views from that unit would be similar to the impact on Unit 2 based on computer modelling of the likely impacts.
For Step 1, and the view loss from 32 Dellview Street, the experts agree that the view is a high value view of a section of the Pacific Ocean including the horizon. The view is primarily over the roof of the existing dwelling on the site and also in the space between the building on the site and the building at 13 Gaerloch Avenue.
For Step 2, and the part of the property where views are achieved, Mr Fletcher and Mr McDonald agree that for Unit 1 and Unit 2, the view is across the rear boundary of the property and is obtainable from the east facing rooms that were either a sitting room off a bedroom or a dining room/living room of the respective unit. The view is obtainable from a standing and from a sitting position. Mr Fletcher and Mr McDonald agree the view from Units 1 and 2 is not a complete view as it does not include the land water interface in the foreground as that view is blocked by roof of the existing dwelling on the site. There are views downwards towards the rocks along the foreshore and the ocean, as well as the surf break. In the case of Units 3 and 4, their higher elevation means that the view is less confined by the buildings at 13 and 17 Gaerloch Avenue as they are able to see partly over the roof of those buildings. Similarly, they are able to see part of the land water interface over each side of the existing building on the site and the surf break.
For Step 3, and the extent of impact, Mr Fletcher and Mr McDonald had previously agreed that the view loss to Units 1 and 2 caused by the original plans was categorised as devastating. It involved the total loss of the current ocean view and horizon. With the benefit of the most recent site inspection and observations of the height pole reflecting the height of the amended proposal, Mr Fletcher and Mr McDonald agree that the impact on views from these units has been improved. Both units will retain their full horizon views and some of the ocean view that currently exists between the ridge of the existing dwelling on the site and the horizon.
In relation to the extent of impact on Units 3 and 4, Mr Fletcher states that the impact caused by the original plans would be categorised as moderate. Mr McDonald would categorise the impact to Units 3 and 4 as severe. Those units would have retained the majority of their ocean views but would have lost their partial view of the land water interface. Again, Mr Fletcher and Mr McDonald agree that the impact of the amended proposal will be to reduce the view impact albeit that views to the land water interface will be reduced and in the case of Unit 3 largely lost. However, Mr Fletcher and Mr McDonald anticipate that there will still be at least partial views of the rock shelf and some of the surf line.
[5]
Can the variation to the FSR standard be supported?
The breach of the FSR standard
The FSR standard in cl 4.4 of LEP 2012 is 0.6:1 based on the Floor Space Ratio Map. Clause 4.4A(c) provides for exceptions to FSR in Zone R3 (and other zones) and for a lot between 100 sq m and 550 sq m, the formula in the clause calculates the available FSR at 0.6683:1. The proposed dwelling has an FSR of 1.25:1.
The FSR objectives
The FSR objectives in cl 4.4(1) are:
(a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs,
(b) to provide an appropriate correlation between maximum building heights and density controls,
(c) to ensure that buildings are compatible with the bulk, scale, streetscape and existing character of the locality,
(d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality.
The written request
The written request addresses each of the FSR objectives in cl 4.4 and correctly accepts that objective (a) is not relevant as the objective refers to the Bondi Junction Centre.
In relation to objective (b), the written request states that this objective relates to an intention to have density controls (expressed as FSR controls) that are realistic and achievable having regard to the maximum building heights that are permitted on a site. In the case of the site, it is apparent that the FSR control significantly under-estimates the gross floor area that can be achieved by a building that is fully compliant, not only with the height standard, but with most building envelope controls.
Even though the proposal seeks a variation of the maximum FSR development standard, the proposed development is now fully compliant with the front and side boundary setback controls, as well as the minimum landscaped area requirements. Depending on the adopted interpretation of the definition of ground level (existing), the proposed development may also be compliant with the height control.
The alleged breach the rear building setback, particularly at the western corner of the building is disputed. In the alternative, requiring a 5.575m setback to the western corner of the proposed development serves no planning purpose in the circumstances of this case and will result in adverse visual and acoustic privacy impacts for residents of both the site and the adjoining units at 17 Gaerloch Avenue. The building has been carefully and deliberately designed so that this western rear corner acts as a visual privacy screen and an acoustic buffer between the rear private open space area of the development and the balcony and living areas of the adjoining apartments. Increasing the proposed setback would be an inferior and unfortunate design outcome.
Notwithstanding the FSR variation, the proposed development satisfies objective (b) of that development standard insofar as a variation to the .66:1 FSR control would achieve an appropriate correlation between the maximum building height control of 9.5m and the density controls. To apply the maximum FSR of .66:1 would result in a disparity between the height control and the density controls.
For objective (c), the written request states that the intent of this objective is to ensure that buildings are compatible with the bulk and scale of development within the locality. The FSR requirement of cl 4.4A applies to quite a large area and perhaps reflects the existing FSR of development in many of the street blocks within that area however the actual FSR in the subject street block is significantly less than the height, bulk and character of existing development in other parts of the wider area where cl 4.4A applies. Given the location of the site and the topography of the area, it is considered that the street block is the appropriate "locality" for the purposes of cl 4.4.
Whilst it has not been possible to obtain details on all properties within the street block, details on the height and FSR of most properties and particularly those that immediately adjoin the site have been obtained. Additionally, an inspection of the locality readily reveals a fairly consistent pattern of three or more storey development with FSRs well in excess of the 0.6:1 development standard. Indeed, the existing building on the site, and the dwelling house located to the north-west at 30 Dellview Street, appear to be the only properties in this street block that might satisfy the development standard. It is these two sites that appear to be the anomalies in the character of the locality as they are significantly smaller than all their neighbours. The assessment shows:
the adjoining 4 level residential flat building at 17 Gaerloch Avenue has an FSR of 1.72:1,
the approved alterations and additions to the building at 13 Gaerloch Avenue will have an FSR of 0.79:1,
the existing 4 level residential flat building adjoining to the rear at 32 Dellview Street has an FSR of 1.32:1,
the approved development at 28 Dellview Street has an FSR of 1.14:1, and
the approved development at 34 Dellview Street has an FSRs of 1.86:1.
Accordingly, the design of the proposal demonstrates that the irregular shaped site is capable of accommodating a residential building of the height, bulk and scale proposed without being, in any way, inconsistent with the existing streetscape or existing character of the locality. A development which would be compliant with the maximum FSR control would not be compatible with the bulk, scale, streetscape and existing character of the locality. The proposal therefore satisfies objective (c) of cl 4.4.
In relation to objective (d), the written request states (for similar reasons to that stated for height objective (b)) that with any new development, the distribution of FSR would reasonably include the currently undeveloped north-western corner of the property as part of any redevelopment of the site. The proposal distributes the FSR in such a way that a large part of the site is excavated so as to keep the northwestern part of the building as low as possible and retain views from Units 1 and 2 as far as reasonably possible.
Specifically:
it is demonstrated that the part of the building which could potentially cause devastating view loss from Units 1 & 2, being the northern part of the wall on the rear elevation, is not only fully compliant but is significantly below the wall height control,
a fully compliant development with the General Housing Code under SEPP (Exempt and Complying Development Codes) 2008 would also result in devastating view loss from units 1 & 2 Dellview Street,
both the site and 32 Dellview Avenue are zoned R3 Medium Density Residential where an objective is to provide for the housing needs of the community within a medium density environment. A medium density development is assumed to be greater than a single storey dwelling house,
objective (d) requires the "reasonable" preservation of amenity to neighbouring properties. When viewed as a whole, the proposed development results in minimal or no view loss to 8 out of 10 units at 32 Dellview Street. For the above reasons, preserving all existing view to Units 1 and 2 is not "reasonable" and therefore preservation of views to 8 out of 10 units would achieve "reasonable" preservation of views to 32 Dellview Street as a whole, and
the "reasonable" preservation of amenity should involve a balancing exercise between beneficial and detrimental impacts. There are beneficial aural and visual privacy impacts for residents of 13 and 17 Gaerloch Avenue and 32 Dellview Street. Previously, there had been a visual privacy issue between each of those properties.
Despite the non-compliance with the FSR standard, the proposed development is consistent with objective (d) in that the proposed development is fully compliant with other building envelope controls such as front and side setbacks and minimum landscaped area requirements, largely compliant with the height control and fully compliant for the part of the building which causes view loss. On one interpretation the proposal technically breaches the rear building setback in the western corner of the building but requiring strict compliance with that requirement will result in adverse visual and acoustic privacy impacts for residents of both the site and the adjoining units at 17 Gaerloch Avenue and such compliance would not deliver any overall benefit to any person. This and other design measures have been carefully designed to avoid visual and acoustic privacy impacts on neighbouring properties. Accordingly, the proposal preserves or enhances the environmental amenity of neighbouring properties and minimises adverse impacts on the amenity of the locality.
The zone objectives and height standard objectives - findings
The zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the FSR standard is appropriate. Given the lack of applicability of the zone objectives to the variation to the FSR standard, I am satisfied that the proposed development will be consistent with the objectives of the zone pursuant to cl 4.6(4)(a)(ii)).
In relation to objective (b), I accept that the objective relates to the height standard in cl 4.4 and the FSR standard in cl 4.3. It could be argued that the establishment of the two standards in LEP 2012 satisfies the objective, in that the two are deemed to be "an appropriate correlation". It may also be argued that, consistent with the written request, that there is no correlation between the two standards because of the particular characteristics of the site and application. Specifically, the FSR control significantly under-estimates the gross floor area that can be achieved by a building that is fully compliant.
I am more inclined to accept that the objective is satisfied by the height standard in cl 4.4 and the FSR standard in cl 4.3 because the objective seeks to allow the standards to operate together. It cannot be read to require strict compliance with both standards given the flexibility provided by cl 4.6. Clearly, there will be locations within the R3 zone where the height standard and FSR standard will operate more cohesively and locations where there will less cohesiveness; such as the site and the current application. Whether the lack of cohesiveness is acceptable will depend on the characteristics of the site and application. In this case, I accept that it does.
Objective (c) relates to compatibility of the building with the "bulk, scale, streetscape and existing character of the locality". I agree with the comments in the written request that the "locality" should be the area immediately around the site and that the analysis of the FSR of buildings in this area supports the conclusion that the proposed dwelling is "compatible with the bulk, scale, streetscape and existing character of the locality".
[6]
Orders
Conditions reflecting the amended plans were filed on 7 November 2016 so final orders can now be made. The orders of the Court are:
1. The appeal is upheld.
2. Development Application No DA-20/2015 for the demolition of all existing improvements and the construction of a new dwelling house at 15 Gaerloch Avenue, Tamarama is approved subject to the conditions in Annexure A.
G Brown
Commissioner of the Court
154252.16 - Annexure A (176 KB, pdf)
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: 09 November 2016
Mr Fletcher and Mr McDonald disagree in relation to Step 4 of Tenacity and whether the view impacts on Units 1 and 2, 32 Dellview Street arising from the proposed development are reasonable. The fundamental difference being that Mr McDonald's interpretation of ground level (existing) is based on the height being measured from the existing level associated with the double garage fronting Gaerloch Avenue, which is excavated into the slope of the site. On this assessment, there is a breach of the height development standard.
Mr Fletcher accepts that the definition of ground level (existing) has been the subject of differing interpretations. In Bettar v The City of Sydney [2014] NSWLEC 1070, the Court considered two different interpretations, the first focusing entirely on the existing built form on the site, the second taking the highest and lowest points on the site and interpolating the existing ground level in between. In Bettar, the second approach was preferred. The judgment stated that to rely entirely upon the existing form of the land for ground level (existing) "results in an absurd height plane with a large and distinct full storey dip in it as it moves across the site and crosses the basement of the existing building, which relates only to a building that is to be demolished and has no relationship to the context of the site". In the present circumstances, part of the site has been excavated for an existing basement garage, consistent with the situation in Bettar. Mr Fletcher notes that if the Court's second approach is adopted, the proposed building will be fully compliant with the maximum height standard.
On the basis of the interpretation in Bettar, Mr Fletcher considered that the view loss of the original proposal was reasonable because it is not reasonable to expect to retain ocean views from the lowest floor level of 32 Dellview Street, being Units 1 and 2. The amended proposal however has dramatically reduced the impact. Both units will retain their full horizon views and approximately half of the ocean view that currently exists between the ridge of the existing dwelling on the site and the horizon. For these reasons, the view loss now proposed must be regarded as reasonable and acceptable in the circumstances.
Mr McDonald considers that that the view loss impact to Units 1 and 2 arising from the amendment is severe. In relation to Unit 3, from a seated position in the bedroom, the majority of the water view is retained except that the land/water interface is lost. From a standing position in the bedroom, the impact is very similar although some of the rock coastline to the north may be retained. From a standing position in the front sitting room the majority of the water view is retained and some of the surf break is retained. Mr McDonald states that all the land/water interface is lost with the possible exception of some of the rocky section on the southern side. The view impact, while improved, remains severe. In relation to Unit 4, from a seated position the impact is negligible. From a standing position the impact is moderate.
Mr McDonald considers that while the proposal is a significant improvement in terms of reducing views impacts to Units 1- 4 of 32 Dellview Street; the proposal still does have demonstrable impacts and these impacts arise from breaches of both the height development standard and the FSR development standard as detailed in the original joint report. Mr McDonald notes that the applicant is still relying on cl 4.6 variations to both development standards. Mr McDonald also maintains the concern raised in the original joint report regarding the non-compliant rear setback and the resultant bulk and scale impacts to the east facing units at 32 Dellview Street in particular, are still relevant.
In relation to objective (d), the written request states that the intent of this objective is to ensure that buildings are compatible with the bulk and scale of development within the locality. The site is located in the R3 Medium Density Residential zone. The 9.5m maximum height control applies to a large locality and perhaps reflects the existing height of development in many of the street blocks within that locality. However, the nominated maximum height in the street block where the site is located is generally less than the height, bulk and character of existing development in that particular locality. Given the location of the site and the topography of the area, it is considered that the street block is the appropriate "locality" for the purposes of cl 4.3.
Details on the height of most properties that immediately adjoin the site are available and an inspection of the locality reveals a fairly consistent pattern of three or more storey development with height of buildings somewhat in excess of the 9.5m development standard. There are a number of buildings in the locality, as well as the immediate neighbour at 17 Gaerloch Avenue, which are in non-compliance with the height control.
The assessment framework
Clause 4.6 of LEP 2012 imposes three preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition contains two parts where the first part requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The second part requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).
In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion (at [27]):
27. The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.
A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.
The zone objectives and height standard objectives - findings
The zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the height standard is appropriate. Given the lack of applicability of the zone objectives to the variation to the height standard, I am satisfied that the proposed development will be consistent with the objectives of the zone pursuant to cl 4.6(4)(a)(ii)).
In terms of height objective (a), the question to be answered is whether the proposed development preserves the environmental amenity of neighbouring properties. Based on the expert evidence any potential environmental impact on the amenity of neighbouring properties was limited to the view loss from Units 1 and 2 although this was not accepted by other residents in nearby properties as they also maintained a concern over view loss. With the benefit of a view of the proposed development from different properties and the view analysis prepared by Mr Fletcher and Mr McDonald, I agree with their conclusions that Units 1 and 2 are the only properties where an assessment of whether the view loss is reasonable, or not, is required.
On the question of whether the development is consistent with the objective to preserve the environmental amenity of neighbouring properties; the answer is not so simple as to conclude that as views are to be lost then the environmental amenity is not preserved. It would be unreasonable, in my view, to read the word "preserve" so literally that it would stop the construction of a complying (or more than complying) development on an adjoining property. The answer lies in the need to consider at least the flexibility available in cl 4.6, the particular circumstances of the site, the characteristics of the proposed dwelling, the relevant planning controls and its relationship with surrounding properties. The principles relating to view sharing in Tenacity are also relevant in assessing whether the view loss is reasonable.
If these matters are considered collectively and on the question of whether the proposed development preserves the environmental amenity of neighbouring properties, I agree with Mr Fletcher for a number of reasons.
First, the retention of all existing views from Units 1 and 2 is not reasonable because Units 1 and 2 are on the lowest level of the building at 32 Dellview Street and the views from these units to the ocean occur over the site and the existing dwelling. Similarly, the views of the land/water interface and the rocks occur over the site and through the gap that is available because of the size and positioning of the existing dwelling towards the southern boundary.
Second, the existing dwelling on the site is close to the end of its useful life, and redevelopment is likely, given its prominent position with spectacular views, its poor condition, its low site coverage and the R3 zoning of the site. Redevelopment would be expected and would be subject to the planning controls at the time the development is proposed. To replace the existing building with a new building of similar size and positioning would be unreasonable given the panoramic views of the ocean, the zoning of the site and the applicable development standards.
Third, I am satisfied that the proposed development has made genuine attempts to minimise the loss of views from 32 Dellview Street. The amended proposal removes the domed-roof and reduces the overall height of the proposed building. Views of the ocean were partially re-instated with the amended plans for Units 1 and 2. I agree that the building has been designed so that the parts of the building which could potentially cause the greatest view loss impact are not only compliant with the height control but are significantly below this control. For example, a compliant rear wall height of 7.5m would remove any ocean views from Units 1 & 2. Similarly, there is a small non-compliance with the maximum height in the south-eastern corner when the definition of ground level (existing) is strictly applied however the north-eastern corner of the same elevation is some 2m below the height control. The difference in compliance or non-compliance for the same elevation of the building is a direct result of the strict application of the definition that would include that part of the elevation which has been excavated and that part of the elevation that had not been excavated. The fact that part of the site has been excavated is a valid reason to support a variation to the height development standard.
Fourth, I am satisfied that assessment of view loss using the approach in Tenacity supports the position that the view loss is reasonable in the circumstances. I note that Part C1, cl 10 of DCP 2012 specifically adopts the approach set out on Tenacity.
Fifth, I am satisfied that there is no conflict with the Objectives and Controls in Part C1, cl 10 of DCP 2012 in that consideration of the retention of views is not guaranteed and that building design should be used to minimise view loss. Importantly, the clause also states that:
It is generally accepted that views do not 'belong' to anyone or any property, nor is a view the exclusive right to any one property or to certain individuals. 'View sharing' is an important principle to consider when developing a property.
Pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the objective (a) of the height standard.
Objective (d) seeks to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space. I did not understand that there was any serious concern raised by the council or residents over the compatibility of the proposed development with the existing character of the locality. The proposed dwelling, while located in an R3 zoned area, sits comfortably in its immediate context that is made up of a range of buildings of different styles and age. I agree that immediate locality reveals a fairly consistent pattern of around 3 storeys in height and I have little trouble in concluding that the proposed development will be compatible with the character of the locality in terms of height, bulk and scale based on the details in the written request and my inspection of the locality.
Pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the objective (d) of the height standard.
Is compliance with the development standard is unreasonable or unnecessary?
The written request states that the variation to the height standard is reasonable and necessary as the site is unique in that it is steeply sloping from rear to front and trapezium shaped with a front boundary of 8.17m and a rear boundary of 27.55m. By excavating the rear of the site and applying a skillful architectural design with curved walls and innovative privacy measures, the proposed development will achieve a high level of amenity for surrounding residents, minimise view loss impacts where reasonable and achieve and iconic built form on a site with unique characteristics. It is considered that the current proposal will ensure that the site is developed to a scale that is consistent and compatible with adjoining development in the area and the locality.
The part of the building which is in non-compliance with the height control is a direct result of existing excavation for a basement garage if strict compliance with the definition of ground level(existing) and the height standard are applied. Also, given that the height of the proposed building is similar to or less than that of its immediate neighbours and other recent approvals in this locality, it is considered that there are sufficient environmental planning grounds to justify a contravention of the development standard in the circumstances of this case.
I agree with the comments in the written request where it is considered that the current proposal will ensure that the site is developed to a scale that is consistent and compatible with adjoining development in the area and the locality.
For all of the above reasons, the proposed development is consistent with cl 4.6(4)(a)(ii) and consequently will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.
Are there sufficient environmental planning grounds to justify contravening the development standard?
For the reasons in the preceding paragraphs, I am satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the height development standard.
Objective (d) seeks to "establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality". The matter of "the environmental amenity of neighbouring properties" was addressed as part of the cl 4.6 written request on the variation to the height standard where it was agreed that any impacts were limited to Units 1 and 2 32 Dellview Street. After consideration, it was found that the impacts were reasonable in the particular circumstances of the case.
For all of the above reasons, the proposed development is consistent with cl 4.6(4)(a)(ii) and consequently will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.
Are there sufficient environmental planning grounds to justify contravening the development standard?
For the reasons in the preceding paragraphs, I am satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the FSR development standard.
Amended plans and conditions
The parties were advised on 26 October 2016 that I am satisfied that the amendments to the original design have addressed the concerns over the view loss from 32 Dellview Street. While some properties will suffer a loss of view from what they experience at present, the amended proposal achieves a reasonable balance between view loss and the redevelopment of the site. I am also satisfied that the variation to the FSR and rear setback have been justified.
The judgment relies on amended plans developed through the conciliation stage of the s 34AA process and new conditions will need to be produced that reflect the amended plans. On the filing of agreed amended plans and conditions, final orders will be made in chambers.