Inglis v Willoughby City Council

Mr Patrick Larkin SC (Respondent) Solicitors Wilshire Webb Staunton Beattie Lawyers (Applicant)

Mallesons Stephen Jaques (Respondent) File Number(s): 10258 of 2011

EXTEMPORE Judgment This determination was given extemporaneously and has been edited prior to publication. 1The applicant in these proceedings is seeking to construct a new dwelling house and demolish the existing dwelling on the property known as No 5 Minimbah Road Northbridge. 2By way of background, these proceedings commenced on-site as a case management on 13 May 2011. At that time, leave was granted for the applicant to submit amended plans and the applicant agreed to pay the respondent's costs. 3At the commencement of the s 34 conciliation phase on 14 July 2011, the Court carried out a further site inspection with the parties and also heard from resident objectors again. At this time survey pegs and height poles were erected on the site. 4When the matter resumed in Court that day the parties advised that no agreement could be reached and the conciliation conference was terminated and the formal hearing commenced. The parties agreed that what the Court saw onsite and the matters discussed during the s 34 conciliation conference, and at the case management, could be taken into consideration in the determination of the appeal. 5The resident objectors had the opportunity of addressing the Court on the first occasion at the case management when an extensive site inspection was carried out and the Court had the opportunity of visiting a number of the objectors' properties. This included hearing from the owners of No 15 Tycannah Avenue, Northbridge where concern was expressed about the impact of the proposed development on their views, in particular from their living areas. The Court also had the opportunity of inspecting other levels of the dwelling to understand the totality of views gained from their property, as it did for No 11A and No 11. 6The applicant has also provided photomontages with the proposal shown and photographs of the current existing views from adjoining properties to allow the parties to examine the issue of view loss. The Court also heard from the owner of No 3 Minimbah, the property immediately to the east of the subject site as well as hearing from the owners of Nos 7, 9, and 11 Minimbah Road. 7The objectors' concerns include: the bulk, scale and height of the proposed development and the impact on views and privacy to the adjoining waterfront properties and the reserve. Owners of properties opposite the site in Tycannah Avenue expressed concern about the view loss occasioned by the second storey element at the street level of the proposed development. 8The owner of No 7 Minimbah Road is concerned about the elevated swimming pool, the orientation of the pool and the impact of the swimming pool and the dwelling when viewed from, in particular, his picture window on the eastern elevation of his dwelling. He is also concerned about the impact of the proposed development on the Reserve that is between his property and the subject site. He generally expressed concern about the impact of the bulk and scale of the proposed development. 9The owner of No 3 Minimbah Road expressed concern about the impact of the development where it extends over the site towards the water in a northerly direction. The point was expressed at the case management phase of the proceedings, that the proposed dwelling house should be brought more towards the street alignment in a similar way to Nos 1, 3 and 5, where the dwellings sit relatively close to the street boundary to allow for the foreshore area to be retained in its current natural state. 10On the second occasion the Court visited the site I had the opportunity of hearing again from the owners of Nos 11 and 15 Tycannah Avenue in respect of the photomontages provided in exhibit D where concern was expressed once again about the view loss from the living areas, as opposed to the upper level bedroom areas. 11The character of the area is very steep topography and as such, there is the advantage of many people enjoying views as opposed to views being mainly available to the waterfront properties. The subject site has a significant fall in topography of some 37 m, and in the first 5 m there is an 8.5 m fall. The foreshore building line for the subject site on the eastern boundary is about 24 m from the foreshore and 18 m from the foreshore on the western boundary. This provides that portion of the lot clear of the foreshore area to measure about 39 m from the street to the foreshore building line on the eastern side and 42 m on the west. 12From council's plan, the foreshore building line is closer to the foreshore west of the reserve for Nos 7, 9, and 11 than for the properties at Nos 1, 3 and 5 Minimbah Road. 13The area has undergone significant redevelopment from the time of its initial subdivision and the properties along the waterfront, as well as many of the properties in Tycannah Avenue have been extensively redeveloped to large modern residences. 14The Court has the opportunity of hearing expert evidence on behalf of the applicant from: Ms Alison McCabe, a consultant town planner, Ms Narelle Sonter, a landscape expert. For the respondent council, Mr Harvey Sanders, a consultant planner gave evidence. 15It is not unusual for amendments to be made to applications during the course of proceedings in the Court. Such amendments are often where the applicant responds to concerns expressed, as has occurred on this occasion. The respondent does not object to the amended plans subject to the applicant paying costs. In my final assessment and determination I must focus on the latest set of plans before the Court and this includes the further amendments made and received today which are encapsulated in exhibit J. The changes today include the reduction in height of the parapets for the street level elevations. Previous amendments are shown in exhibit A. For the purpose of my determination the relevant plans are exhibit A as amended by exhibit J. 16The Court must assess the development application in the context of a holistic reading of the council's planning regime /development controls. As I stated, I will briefly say what the controls are, to allow an understanding of the context in which I have considered the development application. 17The Willoughby Local Environmental Plan 1995 is the instrument that zones the subject site 2(a2) Residential and I must have regard to the objectives of the zone in my assessment of the application. The relevant objectives for the low density 2(a2) Zone include: (b) To maintain the scale, character and streetscape of individual localities. (c) To retain and enhance residential amenity including views, solar access, aural and visual privacy and landscape quality. 18The Court, in its assessment, must also have regard to cl 14C for the residential A2 Scenic Protection Zone this states: To accommodate housing such that the scenic qualities and ecological values of environmentally sensitive natural areas including foreshores and bushland areas are maintained by protecting the land in the zone from overdevelopment or visually intrusive development, by minimising the impact of hard surfaces on the ecological characteristics of the locality, including nearby and adjoining bushland, and by ensuring that new development does not dominate the natural scenic qualities of the locality. and with development consent dwelling houses are permissible in the zone. 19Clause 17 for the scenic protection area requires that council not consent to the carrying out of development unless it has considered the appearance and impact of that development on: (a)The amenity of surrounding properties, loss of views to and of the foreshore, bushland and any waterways and (b)The scenic qualities of the foreshore including whether man-made structures visually dominate the natural landscape through excessive height and bulk and whether buildings... are aesthetically and sympathetically integrated with the form and features of the local topography and ... (c)achieving the objectives of any development control plan to those areas. 20The height control standard is in cl 18 and a person " must not erect a building of more than two storeys within Zone 2(a) or 2(a2) ." Given this twostorey limitation within the LEP a State Environmental Planning Policy No 1 objection to vary the standard is required and one was submitted in this regard. 21The other relevant clause which must be considered is cl 13D on amenity: Before granting consent for development the council must consider the proposed development is likely to have an adverse impact on the adjoining and nearby property by causing loss of views, loss of privacy or a reduction of sunlight to the living areas or principle open space recreation areas and whether: (a) there are no other design alternatives that would mitigate the impacts, or (b) there are special circumstances applying to the site or its context. 22As such, the respondent urged on the Court that this is a high threshold clause and requires special consideration. I accept that this provision is also central to my consideration of the development application. 23It is agreed between the parties the draft Willoughby LEP is ' imminent and certain ' and therefore a relevant matter for my consideration under s 79C of the Act. The aim for environmental protection is: " to identify, protect and enhance environmentally sensitive areas ." For urban design the aims include: + to ensure development embraces the principles of quality urban design, and encourages innovative, high quality architectural design with long term durability and environmental sustainability + to promote buildings that are designed and constructed to strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes and to contribute to the desired future character of the locality (p) to ensure development design recognises the public domain and the extent to which that design will facilitate improvements to the public domain, and to encourage development that responds to the natural landform of the site and retains or enhances the natural environment, and to preserve, enhance or reinforce specific areas of high visual quality... 24For amenity the objective is to " maintain and enhance the existing amenity and quality of life for the local community and to prevent adverse impacts on adjoining or nearby residential property ." 25In terms of housing of particular relevance is " to ensure that residential development conforms with the scale and character of the individual residential localities of the city ." 26The zone objectives must be considered in determining a development application in accordance with clause 2.3. The proposed zone in the draft LEP is zone E4 - 'environmental living' and the objectives include: + to provide for low impact residential development in areas with special ecological, scientific or aesthetic values + to ensure residential development does not have an adverse effect on those values + to ensure development does not impact on bushland... + to ensure new development does not dominate the natural scenic qualities of the locality + to maintain the scale, character and streetscape of individual localities and + to retain, enhance residential amenity. Including views, solar access, aural and visual privacy and landscape quality. For the height of buildings in the LEP there are a number of objectives including: to use maximum height limits to assist in responding to the current and desired future character of the local context. 27Subclause 2 states that " the height of a building on any land is not to exceed the maximum height shown on the map " and for this particular area 1 the height limit is 3.5 m at the street frontage up to a maximum of 10 m. During the proceedings there was discussion as to the interpretation or construction of this clause. 28Another important clause is 4.6 " exceptions to development standards." This replaces the need for a SEPP 1 objection. Nonetheless, it provides within the LEP itself steps that must be satisfied for a variation to the development standard. This requires a written request that 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. I have considered this provision as well as the requirements of SEPP 1 in my assessment. 29As this is an extempore judgment I will not quote the Willoughby Development Control Plan but suffice to say this has provided a fundamental focus and has been central to my consideration in the assessment of the development application. The general aim of the plan is to encourage development which is compatible with the urban scale and character and takes into account environmental constraints and ensure new development satisfies a high standard of urban design to create a unified streetscape which contributes positively to the streetscape, reinforces the importance of pedestrian areas and provides an attractive environment. 30Other relevant provisions in the DCP are at cll 9, 10, 11 and 14. There are also guidelines in the DCP for sustainability. In terms of landscaping the DCP provides natural soft landscaping at the street frontage should not be less than seventy per cent. However, it was agreed that the landscaping at the front of the subject property satisfies the objective of the need for landscaping in the front curtilage area. 31For the Northbridge locality the DCP includes the desired future character and this is "to retain and enhance the qualities and characteristics of Northbridge, comprising both inland and peninsula residential areas. In particular (a) 3 states: ensuring new building forms are compatible with the scale, building site amassing, and use of external materials of the existing streetscape comprising predominantly single or two storey darker toned brick faced or rendered buildings et cetera. 32In my merits assessment I have considered the application having regard to a holistic reading of the Development Control Plan, the current LEP and also the draft Local Environmental Plan . 33As this is an extempore judgment I will say at this point that having considered all the evidence to the Court, that of the experts, that of the objectors, the site inspection and the relevant controls of the council, I have determined that the development application should be approved and my reasons are as follows. 34Given that it is necessary to look at the State Environmental Planning Policy No 1 objection, as a threshold question I must consider this first in the light of the evidence to the Court. 35In many respects, the SEPP 1 assessment also overlaps with the merits assessment, but I am conscious of the fact that I must also carry out a proper merits assessment in terms of s 79C of the Act. In my assessment under SEPP1 the objection to vary the storeys standard should be allowed and on a merits assessment I have concluded that the development warrants approval. 36In terms of the SEPP 1 objection, the Court must look at not only the objectives or the underlying objectives of the standard. In this case the objectives of the standard are not overtly articulated and as such one then moves to what the underlying purpose or underlying objectives of the standard are. This can be informed by the LEP and the zone objectives, and this is the approach that M/s McCabe has taken in her objection for the variation of the standard. 37I note, and the respondent submitted to the Court, that the extent of the noncompliance is enormous and in numeric terms it is a large noncompliance. However, the percentage of compliance or non-compliance is not the test in my assessment, the test is whether the objectives of the underlying purpose have been satisfied in the circumstances of the case. 38In terms of the relevant definition the proposed dwelling represents a seven-storey building. The council's definition for storey includes sub-floor areas. It is noted there are five habitable levels in the subject dwelling and the standard is for a two-storey limitation. 39I am guided in my assessment of the SEPP 1 by the authorities in this Court of Justice Lloyd in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 and the Chief Judge of this Court in Wehbe v Pittwater Council [2007] NSWLEC 827. 40Ms McCabe's SEPP 1 objection looks at the principles contained in Winten , and there is no dispute that the two-storey standard is amenable to a SEPP 1 variation. I am also conscious of the fact that compliance with the development standard is consistent with the aims of the policy and in particular does the compliance tend to hinder the attainment of the objects of the Act. 41In terms of the LEP, the zone objectives and the general objectives as I cited earlier, this informs the purpose of the two storey height limit. And this is to maintain the scale and character and streetscape of individual localities, and retain and enhance residential amenity, views, solar access, privacy, and landscape quality as contained in the general objectives of the LEP. The other objectives that must be looked at are the zone objectives, which I cited earlier and once again this goes to maintaining the scale of development and bulk of development within an area, and ensuring that consistency of character is maintained for the future. 42The fact that there are other developments of similar bulk and scale is only a matter in terms of the circumstances of the case as to how this now is perceived as the character of the area. As I stated, the controls for previous approvals may have changed and indeed they have, but the role of the Court is to assess the development application before it in the context of the current controls. This includes the existing character of the area and while previous approvals; whilst I do not consider them as precedents they form part of the character of the area. The Court, in its assessment, must also have regard to the proper management and conservation of natural areas in terms of the objects of the Act, and also promotion and co-ordination of orderly and economic use and development of land in its assessment under SEPP 1. 43The proposed development is in contravention of the two-storey height limitation. However, in my assessment under SEPP 1, I am satisfied that the underlying purpose of the objective, that is, to provide for guidance in terms of a standard to provide for appropriate outcomes in terms of bulk, scale and height of development, is achieved by the proposed development having regard to the relevant LEP objectives and zone objectives. 44I accept Ms McCabe's analysis that the SEPP 1 objection should be upheld and is well founded and the proposal provides for a development that will sit comfortably within the context of the area and it will maintain the character of the area. In my assessment I must also have regard to impact on views, which is one of the specific general objectives, to retain and enhance views, must also be considered in the context of the SEPP 1 objection. 45In assessing the SEPP 1 objection and as I said, this does overlap with the merits assessment, it is important to have regard to the totality of the view, and I am satisfied that the proposed development has a minor impact, and the minor impact is acceptable in circumstances of this case as required in terms of my assessment under SEPP 1, as the holistic reading of all the provisions must be taken into consideration. It is clear that a two storey control would provide for a development that cascades down the steep embankments of the subject site and this would create adverse impacts in terms of the natural environment. One of the primary purposes of the controls is also to ensure that the natural environment, in particular the foreshores, is conserved. 46The standard of the two storeys control in the circumstances of this case, in my assessment would not lead to a development that is appropriate for the subject site in its context or the objects of the Act. The proposal allows for the scale of the development to more appropriately address the constraints of the subject site, which is extremely steep, and to manage the adverse environmental impacts of development by maintaining a very large setback from the foreshore, which is also envisaged within the council's controls. The proposed development will also conform with the scale and character of this residential area, in particular the area is one that, as I said, has undergone redevelopments or refurbishments, and the large homes generally sit comfortably within the large sites with landscaping. The proposed development will not be out of character or an anomaly in terms of the character of the subject area. 47For the SEPP 1 objection, I must also have regard to the aims of the State policy, and the policy does provide for flexibility in the application of controls where strict compliance would be unreasonable or necessary or tend to hinder the attainment of the objects of the Act, which I have already addressed. 48In terms of the provisions of the SEPP 1, I must also have regard to whether there would be any matters of State or regional significance, and I am satisfied the proposed development with the variation to the two storey standard should be allowed, and is consistent with the provisions of the Policy itself, and the underlying purpose of the standard and the objects of the Act. As such, the SEPP 1 should be allowed and I now move to a merits assessment of the application. 49There was a great deal of discussion about the view affectation of the proposal, that is, the second storey element. I note that from the RL of the road the proposal is some 7 m above the road, and a two storey development is not excessive and it is envisaged by the overall holistic reading of the plan that one would have two storey development for the street frontage. Clearly also the existing character of the area demonstrates two storey construction when viewed from the roadway. This particular characteristic of the area changes once one goes west along Minimbah Road, for example, No 7 and the other properties to the west. These properties cascade down the site and as such by cascading down the site, the footprint of the development is somewhat double what the proposed development footprint is. The footprint of the proposal at No 5 is approximately 18 m with 3 m decks as such. No 7 has a footprint excluding retaining areas of some 40 m, and No 3 has a slightly increased footprint to the proposal at No 5. That is 19 m where the dwelling house is and some 26 m if one includes the decks to the lower levels. 50Each development application must be carefully and individually assessed in terms of its own context as well as in the context of the area, and for the subject site the proposal is appropriate and represents a better planning outcome in my assessment, than one that would comply with a two storey height limitation cascading down to the foreshore. Also having regard to the foreshore building line, there is an extensive foreshore building line of 18 to 24 m from the foreshore for the subject site and therefore the controls contemplate that the built form be on the southern part of the subject site closer to the road. 51I do not agree with Mr Sanders that the top floor should be deleted and that floor space inserted into the under-croft areas or the recessed parts of the dwelling towards the cliff as such. This would not provide for appropriate amenity for the occupants and in assessing the development application there is a balance to be struck as to what would provide for appropriate amenity, and one would have an expectation that a site such as this can provide for a dwelling house that does provide appropriate amenity. As such, the removal of the second storey element or the top floor from the street elevation is not necessary in the circumstances of this case and it would be unreasonable in my assessment. 52In terms of the view sharing, for the benefit of those that are affected, I understand people do not always embrace change, but the role of the Court is to understand whether that change is acceptable and also have regard to principles that have been established. In particular, the respondent referred to the judgment of Tenacity Consulting v Warringah Council [2004] NSWLEC 140 on view sharing. It is important when referring to planning principles that one has regard to the whole of the principle and does not select specific parts. The question also must be first assessed in the context of the local planning controls and whether in fact the view impact is reasonable or unreasonable from non-compliant parts of the development. In my assessment, the view impact is minor and I say that having regard to the whole of the views enjoyed from all of those properties that the Court had the opportunity of comprehensively inspecting, and the photomontages, in my opinion show that the proposed development is reasonable in terms of the impact on views that, in my assessment, is minor. 53Whilst views are generally regarded as more important from living areas, one must have regard to the total view enjoyed from the affected properties which the Court had the opportunity of inspecting. Many affected dwellings also enjoy even more expansive views from their upper bedroom levels, and this cannot be disregarded in an overall assessment of view impact. I am satisfied that the proposal as amended and now before the Court provides for the view sharing. The amendment allows for the interface of the water and the foreshore of the land in the northwest for certain properties. 54I have examined the photographs in terms of the current views and the views that are provided with the development as amended. As I said, one must not just focus on one portion of the view but the total expanse of the view. The street topography of this area is such that it affords many properties wonderful views. 55I do note that the reserve opposite many of the subject sites, that is, Nos 11, 11A and 15 where many of the objectors live has natural vegetation, which is part of the environment in which these properties are located, and some of the views at times during different periods may be filtered by vegetation. This is part of living in an environment that provides for both water and bushland views and extensive ones at that. 56Also, I have had regard to the fact that the view over the subject property are not directly over the subject property, but oblique views. Furthermore the views are from the opposite side of the road and over other waterfront properties and one should not expect to fully maintain the same views. 57Indeed, there should be a balance having regard to expectations for the development of properties and it goes without saying that waterfront properties have a greater guarantee of views, although once again in this particular location, there is vegetation that will grow and filter the water views from these waterfront properties. 58I am satisfied that the properties in Tycannah Avenue have an appropriate level of view sharing and whilst there will be a change in terms of, in particular, the northwest portion of the view from certain premises, at the same time taken in context of the totality of views, this is not unreasonable view loss and in my assessment, is minor at the highest and negligible for other properties. 59The sharing of views should be assessed in context and not be inferred to mean a full retention of views but what would be a reasonable expectation. The Court understands that people like to fully retain views, but that is not the purpose of the provision of sharing of views as such. It should not be interpreted as no impact. 60And, I must also read all the controls together and all of the controls together. For example, there is a front setback provision and landscaping required in the front setback area, there is the foreshore building line and one must have regard to the appearance of the subject property from the public domain, that is the road, and the presentation of the proposal now shown in the amended plan is one that does step with the topography. Therefore, it responds to the appropriate clauses in the DCP and the LEP and it provides for an appropriate transition due to the slope of the road in this portion of Minimbah. 61The subject development has a maximum RL of 44.82, which is some 1.89 m below the property at No 3. Both present as two-storey dwellings and the subject site is at a lower topography and there is an expectation that it would also be of a lower RL. The second parapet has also been reduced in height is lower than the main parapet of the subject house. In fact, 0.34 lower. That is, the two parapets on the subject house being 44.82 and 44.48 respectively. 62The provisions that the Court must also consider include the draft plan and I am satisfied that the proposed development is not antipathetic. In fact, it is consistent with the provisions in the draft LEP and the development, in my assessment, will sit comfortably within the streetscape and more particularly, within the area as a whole of Northbridge. Furthermore the architectural design will make a positive contribution and be in character with the area. 63In terms of the provision about the height not to exceed 3.5 at the street frontage with a maximum of 10 m, the proposal in the circumstances of this case is one that is satisfactory, having regard to the objectives of the clause. That is, to ensure development in harmony with the bulk and scale of surrounding buildings and the streetscape. Also, in terms of environmental protection, the setback from the foreshore satisfies the general aims of the policy. 64The other clause that the Court must have regard to is the provision of cl 13 D because of its importance in terms of the focus that the respondent urged me to focus on for amenity and " before granting consent for development the council must consider whether the proposed development is likely to have an adverse impact upon adjoining properties, loss of view, privacy and whether there are no other design alternatives whether that would mitigate the impacts or there are special circumstances applying to the site or its context ." 65In terms of having regard to both A and B, in my assessment there are not other design alternatives that would mitigate the impacts and that would be appropriate for the subject site, having regard to a holistic reading of the LEP itself and I am also satisfied in the context of design alternatives, that the special circumstances of this case are such that the proposal is well resolved in terms of the design and I am satisfied that impacts are mitigated. 66In this regard, there were further amendments to the plans in terms of the concerns of No 3, with sandblasted privacy screens provided, and the consultant architect for Nos 3 and 7, Mr Mayo, provided evidence on the second occasion of the site inspection to say that in terms of privacy, the sandblasted screens provided an appropriate resolution of the concerns for No 3. 67It is also noted that since the Court first met on site, the proposed development has been pulled back into the site to the south and the extent of the northern verandahs and the extent of the building has been reduced to the point that, in my overall assessment, the amended plans are respectful of the building line of the adjoining property at No 3, having regard to the curve in the street and having regard to the footprint of the proposed development in terms of respecting the dwelling at No 3. 68The respondent submitted that for the impacts on No 3 Mr Sanders considered that the family room should be deleted from the plans to provide for a stepping back in that portion of the subject dwelling where it adjoins No 3. This has the effect of deleting the family room to a large extent. I do note that the balcony on the amended plans before the Court is not forward of the family room providing a larger setback from the side boundary then to the balcony, off the dining room and kitchen. In my assessment, this provides the maintenance of amenity for the property at No 3 and I do not consider it necessary to reduce the family room. 69The property at No 3 does enjoy, as the subject site does, wonderful expansive views over Sailors Bay to Middle Harbour and I am satisfied that the focus of ones outlook is towards the north, where the feature of the water is most appealing and desirable, as opposed to turning directly to the dwelling house to the west. For the dwelling house at No 3 the proposal will represent change, but once again, the role of the Court is to assess whether that change is reasonable or unreasonable. 70Similarly, in terms of No 7, the concern about looking up at the swimming pool from the side window of the property at the lower level and at the mid-level of No 7, I am satisfied that once again, the focal point of ones view is towards the water. No 7 is significantly lower, in terms of the RL, and the Court is also satisfied that in terms of retaining the natural vegetation on the subject site, which is to be supplemented with further plantings and having regard to the intervening reserve, that the impacts of the proposal are not unreasonable for No 7. 71The views afforded to No 7 are also spectacular and generally one would not be looking back up the steep site. Furthermore, there is a large reserve between No 7 and No 5, which is greater in width than the building block and the separation of distances the experts agreed are significant and would not cause privacy concerns. 72In terms of the impact of the swimming pool, and its support structures being further out of the ground than provided for by the control and the undercroft of the dwelling, I am satisfied these elements will not be visible from the foreshore - the public domain. In terms of No 7, it will also not be overwhelming if one occasioned to see a support of the swimming pool at the level proposed. I do not consider it is necessary that the swimming pool be changed in terms of its orientation or in terms of its relative level and the impacts are acceptable and it will serve for the amenity of the dwelling, while not impacting on adjoining properties or the foreshore. 73It was submitted on behalf of the respondent, the contentions are: the unacceptable impacts of the height, bulk and scale, in particular the top floor of the proposal and I have addressed that both in my SEPP 1 and merits assessment of the application and the proposal is satisfactory in my assessment. Also, having regard to the articulation of the building and the materials, finishes and colours proposed are consistent with the Council's controls. 74The second contention the respondent raised, was the unacceptable impacts of the pool level, its surrounds and the plant room. Once again, this will not be highly visible from the public domain, whether standing in the reserve or standing on the foreshore and the impacts are integrated for No 7 by the intervening reserve and vegetation. 75In terms of the unacceptable impacts of the proposal on the adjoining property at 3 Minimbah Road, the Court has assessed that most carefully. The amendments respond to a number of concerns. The privacy, both aural and visual privacy, I am satisfied is maintained by the proposal, by the elements of privacy screens and the appropriate setbacks and it is noted that the dwelling itself at the point of the boundaries is not forward of No 3 and this was a major concern of No 3 when the Court met on site on the first occasion. 76In terms of the height of the dwelling, I now am also satisfied that the lowering of the height respects the topography and the fall in the street at this point. 77As I stated, the architectural design and detail together with the materials and finishes in my assessment the proposal will sit comfortably within this landscape setting and will not be highly visible from the foreshore. In this regard, the Sydney Harbour REP must be considered, that is the viewing of development from the waterways and I am satisfied that the proposed development is satisfactory and that the design with the footprint being on the southern portion of the site, as opposed to extending down the site, is appropriate when viewed from the foreshore. 78In considering the SEPP 1 objection, I also had regard to the relevant authorities as I stated and in particular, the authority of Preston, CJ in terms of standards not being ends in themselves but means to achieving same. And in this regard in my SEPP 1 assessment, I had regard to the environmental and planning objectives contained within the Council's controls. As Preston, CJ stated: However, if the proposed development proffers an alternative means of achieving the objectives then strict compliance with the standard would be unnecessary as it is achieved anyway and unreasonable. No purpose would be served. 79The respondent council did refer me to cases that I also have read before providing judgment in this matter, as did the applicant and I have also had the opportunity of reading those. In terms of the issues raised by the council, turning to exhibit 1 the Facts and Contentions, as I said at the end of the day, they were neatly crystallised as the issues that were raised in Mr Larkin's final submission and none of these contentions in my assessment would warrant refusal of the application and the proposal is satisfactory, having regard to all the planning controls and the evidence to the Court. 80In terms of a built outcome, this is an important matter for the Court in its assessment and the proposed development represents a design that conserves the integrity of the bushland, which clearly must be an important part of the character of this area, that is distinctively highly desirable in terms of the topography, in terms of the dense native vegetation that occurs and the extent of the waterways and the water views in the area. I am satisfied the proposed development will provide for an outcome that is appropriate for its setting and that is appropriate having regard to the overall reading of the council's planning regime. 81A further condition is to be imposed to ensure certainty in the process and the final built form for a maximum RL of the roof and that no structures are approved for the roof top. 82As for a SEPP 1 assessment, strict compliance with the planning controls and in particular, when taken out of the context of the other controls, would not necessarily produce the most appropriate planning outcome. And in the circumstances of this case the design is one that warrants approval and the variations are justified in my assessment. 83Accordingly, the formal orders of the Court are: (1)The applicant is granted leave to rely on the amended plans and is to pay the respondent's costs. (2)The appeal in respect of the property known as 5 Minimbah Road, Northbridge is upheld. (3)The development application submitted to Willoughby City Council, and as amended and shown in exhibits A and J, is approved, subject to the conditions in annexure A. (4)The exhibits are returned with the exception of 14, A, B, and J. J S Murrell Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2011