36 The applicant submits that clauses 25 and 26 of the SREP are relevant considerations, and not matters about which a consent authority must be satisfied. In applying the LEP, the applicant submits that in the absence of a provision in the LEP which makes the aims and objectives in cl2 relevant considerations, such as by requiring the consent authority to be satisfied that a proposal is consistent with one or more of the objectives, the only role for the aims and objectives is limited to construction of provisions of the LEP. Clause 18A simply requires the consent authority to make an assessment of appearance from the waterway and impact on views. The applicant submits that the objectives of the Foreshore Scenic Protection Area as set out in 5.1 and 5.2 of the DCP are objectives against which the design parameters can be interpreted, and the DCP does not require compliance with those objectives. In considering the design parameters in 5.3, the applicant submits that the proposal strengthens the landscape character of the setting, and in particular the use of acrylic is a common pool fence as observed on the site inspection.
37 The Council submits that the SREP, the LEP and the DCP, both general objectives and specific controls, all clearly identify both the importance of public views towards the harbour and the requirement for them to be preserved and the minimisation of visual impact of structures near and visible from the waterway or the harbour foreshores. The Council submits that the proposal is not consistent with the principles adopted in cl2 of the SREP or cll 22, 25 and 26; the aims and objectives in cl2 of the LEP, in particular cl2(a), (b3) and (c), and the assessment required by cl18A(b); the objectives of part 5.3 of the DCP, and the specific provisions in part 7.6, 9.7.3 and 9.9 of the DCP.
Findings
38 Both experts agreed that the proposal will have some level of impact on views of the waterway, while disagreeing on the extent and acceptability of that impact. Based on the site inspection the brushwood fence obscures views of the Lane Cove River which would otherwise be available through the palisade fence. In considering whether this impact is acceptable, it is appropriate to start with the provisions of the SREP, in particular cll 25 and 26. As noted by Biscoe J in Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134 at [40], the SREP "places an extraordinary emphasis on the environment of Sydney Harbour and the priority of the public good over the private good". Clause 20 of the SREP requires that the matters referred to in Div 2 of the SREP are to be taken into consideration before granting development consent; those matters include clauses 25 (maintenance, protection and enhancement of the scenic quality of foreshores and waterways) and 26 (maintenance, protection and enhancement of views). As noted by Biscoe J (at [53]) there is a tension between the cl26(a) and (b) considerations, and the considerations under cll 25 and 27; what is required is "a balanced consideration of all the matters that are prescribed for consideration". That includes as relevant to this proposal, the need to "maintain, protect and enhance the unique visual qualities" of the foreshore and waterway (cl25(b)), and the consideration of minimising "adverse impacts on views and vistas to and from public places" (cl26(b)). This consideration takes place in the broader context of the SREP as a whole, one aim of which is "to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained: (i) as an outstanding natural asset, and (ii) as a public asset of national and heritage significance, for existing and future generations" (cl 2(1)(a)).
39 The central provision of the LEP is cl18A, which requires an assessment of the appearance and visual quality of the proposed development when viewed from the waterway, and of the impact of the proposed development on the view towards the waterway. The LEP does not include a provision requiring consistency with any of the aims or objectives of the LEP as a whole or those of the relevant zone; that does not mean, however, that the aims and objectives as stated in cl2 of the LEP have no role to play. I agree with the Council that these aims and objectives are relevant in undertaking the assessment required by cl18A. The consideration of the appearance and visual quality and impact on views of a proposed development, as directed by cl18A, takes place in a context. That context is the LEP, the aim and objective of which is to "conserve the identity" of the Municipality, in particular by "conserving the environmental heritage significance, the foreshore and the riverscape…through regulation of the use and development of land, buildings and structures" (cl2(a)).
40 The provisions of the DCP are to be considered as a fundamental element in, or focal point to, the decision-making process (Zhang v Canterbury City Council (2001) 115 LGERA 373), while not being determinative. The provisions relating to the Foreshore Scenic Protection Area, in particular the objective in 5.2(b) of minimising the visual impact of development when viewed from adjacent land, public reserves and waterways, are consistent with the overarching principles provided by the SREP and LEP.
41 The applicant's case is that the proposal that the brushwood fence be of a maximum height of 1.5m, and reduced in length from that as originally constructed, creates an appropriate balance and minimises adverse impacts. In part the applicant relies on the ability of a person travelling down Angelo Street to see part of the river above the brushwood screen (in a similar fashion to the depiction at 7.6.2 in the DCP), so that views up river are available despite the screen and existing landscaping and street trees. Mr Furlong's evidence was that the screen will not be obvious when viewed from the waterway and will appear as a boundary fence in a less bold manner than other solid timber or masonry fence elements that predominate in the area. I agree that there are other solid fences in the vicinity, including the paling fence along the other side of Angelo Street. However, in the context of the unusual configuration of the site, with the narrow spit of land running along Angelo Street to the north and adjoining the Council reserve at the end of Angelo Street, and with the fall of the land away from Angelo Street to the west, the impact on views to Lane Cove River and to the west represented by the brushwood screen is significant. It is ameliorated somewhat by the reduction in height of the brushwood, which allows a view of part of the river over the top. However, when considered against the planning controls which place significant weight on the priority of the public good over the private good, including the SREP and parts 5.2(b) and 7.6.2 of the DCP, the proposal does not minimise visual impacts, and provides an unacceptable impact on views from the public domain of the waterway.
42 Considering the proposed acrylic screen, the evidence as to the technical specifications is that contained in the product description tendered by the applicant (Ex F). This description makes the claim that the screen proposed "will show no visible yellowing for 30 years", and "will retain a high level of light transmission for 30 years". This latter claim is quantified by the statement that "depending on material grade and region", it will retain "up to 90% light transmission after 30 years of service life". I agree with the Council that even accepting these claims there is still the potential for the acrylic screen to yellow and become more opaque over time. To that extent it will, as put in evidence by Mr Adamson, present an additional element above that created by the open palisade fence. I accept, based on the site view, that clear screens are not unknown in Hunters Hill, for example as pool fencing. However, the screen as proposed in this context will provide minimal privacy screening, and would be of limited assistance in meeting the applicant's stated concerns about rubbish which could still, as Mr Furlong accepted, be thrown over the fence, or accumulate by tidal action. In balancing the considerations as required by cll 25 and 26 of the SREP, in the context of the assessment required by cl18A of the LEP and the DCP, the proposed acrylic screen does not protect or enhance the visual quality of the waterway or minimise impacts on the views of the waterway, and should not be approved.
43 The conclusion that the proposal is unacceptable when considered against the applicable planning controls means that it is unnecessary to consider the remaining two contentions in dispute, namely whether development consent can be granted retrospectively for the approximately 18m of brushwood fence that has already been constructed, and whether owner's consent is required or should be given for the construction of the fence on Council land.
Orders
44 The orders of the Court are:
1. The appeal is dismissed.
2. Development application DA09/11008 for the use of an existing brush screen fence and installation of an acrylic screen on part of a palisade fence at Lot 102 DP 1067610, 1 Angelo Street Woolwich, is refused.
3. The exhibits, other than Exhibit C, are returned.