Initial Action Pty Ltd v Woollahra Council

The site and surrounds

1. The site comprises two adjoining allotments each currently containing a dwelling house. The combined site is relatively flat with an area of 1381.2m². It is located on the northern side of William Street close to the Beach Street corner. It is adjoined to the front (south) by William Street, to the rear (north) by dwelling houses, to the west by an inter war RFB at 10 William Street, and to the east by a private laneway then another inter war RFB known as 20 William Street.
2. The private laneway loops around the site's rear, servicing the site and properties fronting the bay and William Street before exiting at a second access point to William Street adjoining the western boundary of 10 William Street.
3. The parties disagreed as to whether the adjoining inter war RFB at 10 William Street was 3 storeys with an attic (Council) or 4 storeys (the applicant). It was agreed that the inter war RFB at 20 William Street was 3 storeys.
4. Development in William Street in the vicinity of the site is primarily up to 3 storeys, with RFBs predominantly being of the inter war period although some are of contemporary design. To the rear of the site are substantial dwelling houses fronting Beach Street and the bay. Streets and gardens in the area are generally heavily planted.
5. Sydney Harbour (Double Bay) is in close proximity to the north with the Double Bay commercial centre to the south. The site is located at the base of a natural amphitheatre leading up to the ridges comprising Edgecliff, Darling Point and Bellevue Hill.

Statutory Controls

1. The site is subject to the provisions of the Woollahra Local Environmental Plan 2014 (the LEP). The site is zoned R3 Medium Density Residential under the LEP where RFBs are permissible with consent. The adjoining laneway and properties to the rear are zoned R2 Low Density Residential.
2. The aims of the LEP at cl 1.2 relevantly include: (l) to ensure development achieves the desired future character of the area. (m) to minimise excavation and manage impacts.
3. The objectives of the R3 zone 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. To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood
4. The maximum permissible height in the LEP is 10.5m and the FSR is 1:1. Properties to the rear in the R2 zone have a maximum permissible height of 9.5m.
5. The objectives of the height control under the LEP at cl 4.3 are as follows: (a) to establish building heights that are consistent with the desired future character of the neighbourhood, (b) to establish a transition in scale between zones to protect local amenity, (c) to minimise the loss of solar access to existing buildings and open space, (d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (e) to protect the amenity of the public domain by providing public views of the harbour and surrounding areas.
6. The objectives of the FSR control under the LEP for the R3 zone are as follows: (i) to ensure the bulk and scale of new development is compatible with the desired future character of the area, and (ii) to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain, and (iii) to ensure that development allows adequate provision on the land for deep soil planting and areas of private open space.
7. The application included a written request as required under clause 4.6 of the LEP for the height exceedence.
8. A cl 4.6 request was also provided to the Court for the FSR should the Court agree with the Council's calculation of the included floor space thus resulting in an FSR exceedence.
9. The relevant provisions at cl 4.6 are as follows: 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 (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence…
10. There was a disagreement amongst the experts on whether or not the development complied with the FSR control in terms of how the gross floor area, used to determine FSR, should be calculated, and therefore whether a written request under cl 4.6 of the LEP was required. Under the LEP: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.
11. The development is also subject to the provisions of the Woollahra Development Control Plan 2015 (the DCP). The site is located in the Double Bay Precinct (B1.3) under the DCP. Each precinct has a Precinct Character Statement and sets out the desired future character to establish the direction and outcomes required to be achieved through development in the precinct.
12. At B1.3.1, the Double Bay Precinct Character Statement relevantly includes the following: The precinct sits within a low lying basin, framing the Double Bay foreshore. The precinct is notable for both the density of its built form and its green landscape character. The tree canopy, formed by both street trees and private plantings, is a prominent element in the municipality's presentation from Sydney Harbour and should be maintained. The street pattern allows for long views to the harbour, and distant views to surrounding hillsides... The precinct contains dwelling houses, terraces (attached dwellings), residential flat buildings, including a number of Inter-War flat buildings that make a significant contribution to the precinct character. The quality of buildings within the precinct represents an evolution and mix of building styles that often maintain a consistent scale across both sides of the street.
13. At B1.3.2, being the desired future character, the DCP states as follows: There are a significant number of Inter-War flat buildings that contribute to the precinct character and are worthy of retention, especially around William Street, New South Head Road and Gladswood Gardens. Alterations and additions to the Inter-War flat buildings are to retain the character of the original building through appropriate use of materials, and should not significantly alter significant and traditional building elements visible from the street. New development on sites in the R2 Low Density Residential zones along Guilfoyle Street, Cooper Street and the southern side of William Street are to be well designed and address the street so that development make (sic) a positive contribution to the public domain. On sloping land, new development should step down the site to reinforce topography and minimise cut and fill. Attention must also be given to protecting views, particularly views from public spaces down Ocean Avenue, Bay and Beach Streets to the harbour, and views from New South Head Road to the harbour.
14. The DCP requires that development respects and enhances the existing elements of the neighbourhood character that contribute to the precinct including: (a) the rich mixture of architecture style from building forms; (b) … (c) well established gardens and trees including the avenue plantings in .., William Street…; (d) the established tree canopy; (e) the harbour views and view corridors from public places; (f) the character of Inter-War flat buildings; …
15. The relevant desired future character objectives are: 01 To respect and enhance the streetscape character and key elements of the precinct. 02 To reinforce a consistent building scale within streets. 03 To design and site buildings to respond to the topography and minimise cut and fill. 04 To maintain the evolution of residential building styles through the introduction of well-designed contemporary buildings, incorporating modulation and varied palette of materials. 05 To ensure that rooflines sit within the predominant street tree canopy. 07 To encourage the retention of Inter-War flat buildings, particularly significant and traditional building elements visible from the street. 08 To provide a transition between the higher density buildings of the Double Bay centre and the lower density buildings of the residential area. 09 To retain and reinforce the green setting of mature street trees, private trees and garden plantings. 010 To protect important iconic and harbour views from the public spaces.
16. The DCP also contains general development controls at Chapter B2 and building envelope controls at Chapter B3, part B3.1.3.
17. Streetscape controls are found at B3.5.1 and require that development recognises predominant streetscape qualities, such as building form to ensure cohesive streetscape character. Objectives include: 01 To ensure that the built form is compatible with the streetscape and the desired future character of the area. 02 To ensure the development is of high visual quality and enhances the street. 03 To maintain the evolution of residential building styles through the introduction of well-designed contemporary buildings 04 To ensure that roof forms are consistent with existing predominant roof forms in the street, and minimise impacts to neighbouring properties…
18. To achieve these objectives, DCP controls include buildings being consistent with the desired future character of the area (as per the precinct controls), the site develops and retains vegetation of landscape value, and the development follows the topography of the land and comprises external building materials and colours which do not to detract from the streetscape.
19. The DCP also has controls on excavation at Part B3.4 and on view sharing at Part B3.5.3. In terms of view sharing, the objectives include to protect and enhance existing views and vistas from the public domain and to encourage view sharing as a means of ensuring equitable access to views from private property. A number of controls are included within the DCP in order to meet these objectives.

Objector evidence

1. Written objections to the original application included from planners and a traffic engineer engaged by local residents. Objections were based on the impacts: from additional vehicles using 'the narrow private driveway' and on parking, from overlooking of properties to the north (rear), from use of the roof terraces, on visual impact, from overshadowing, from the loss of and reliance on trees, and from the basement/excavation (including on groundwater and flooding). The majority of concern however, was with the proposed height at 4 storeys, and the impact this would have on the area's character and on views.
2. A number of residents addressed the Court at the conciliation conference and reiterated their submissions focussing on the excess height, bulk and scale, inappropriate streetscape presentation, and impact on adjoining properties.
3. One submission claimed that, of the 50 properties in the area, only one (being 10 William Street) was over 3 storeys and noted that the proposal exceeded the permitted maximum height by over 30% and close to 40%. Some submissions outlined why the objectors considered the proposed height did not meet the relevant LEP objectives and raised concern with the precedence that approval would set.
4. In this regard, an objection by a planner, Mr Daintry, stated that there was insufficient environmental planning justification for exceeding the height limit and the cl 4.6 written request for this exceedence did not demonstrate that the LEP objectives could be met.
5. In particular, Mr Daintry considered that the development was not of a height and scale that achieved the desired future character of the neighbourhood as required by the zone objectives. He also claimed that the height would not meet the objectives of the height standard as it would not be consistent with established heights or the desired future character [cl 4.3(a)] as the building was one storey too high and therefore out of character. Furthermore, the proposed building would not provide an appropriate transition from taller buildings in the Double Bay centre to two storey buildings on the harbour foreshore [cl 4.3(b)] and would occasion loss of views and visual intrusion [cl 4.3(d)] including views further south [cl 4.3(e)].
6. Mr Daintry stated that the numeric non-compliance percentage variation to the height was so excessive as to be a variation to a development standard that should only be contemplated under Part 3 of the Act and it was a misuse of cl 4.6 to seek additional storeys where they were not contextually justified.
7. Another planner engaged by a local resident submitted that there were no distinguishing circumstances in terms of public benefit or environmental assessment that justified such a significant height breach.
8. Written objections were received from the Owners Corporation of 31-33 William Street (opposite the site) and also from the occupiers of 15 apartments, and the Owners Corporation, of 45-51 Cross Street referenced by the parties as 'the Georges Building'. This is a 6 storey mixed use development south of the site in the Double Bay centre which has four upper levels of apartments overlooking the site to the harbour.
9. The primary grounds of this objection related to view loss from the height proposed as well as tree removal. The submission claimed view loss would be experienced from the upper three levels of this property affecting nine apartments and approval could set a precedent for other taller buildings on this side of the street, further potentially impacting views. A photo was attached showing the existing view from Level 6 (also referred to as Level 4 given two levels of commercial below).
10. A written submission was lodged by the Double Bay Residents' Association (the Association). The Association strongly opposed the development on the basis of excessive height and breach of cl 4.3 of the LEP. Their submission argued that the development was totally out of character with other properties in its block (being William Street, Bay Street, the beach and Beach Street) where there was a mixture of private homes, townhouses and villas almost entirely limited to 2 storeys with just one inter war RFB at 20 William Street and one at 10 William Street (which was also owned by the applicant). The submission claimed the development was similarly entirely out of character with housing opposite in William Street which was all 2 storeys and even with peripheral RFBs further away which were only 3 storeys.
11. The Association claimed the excessive height would cause loss of harbour views from buildings in the Double Bay centre and from properties located on the slopes of the amphitheatre that looked out north and north-east, particularly given the site was located so close to Double Bay beach.
12. The submission claimed that the LEP and DCP height objectives were not met in terms of reinforcing a consistent building scale across both sides of the street and ensuring that rooflines sat within the predominant street tree canopy. In this regard, the Association argued that 4 storeys was totally inconsistent with the building scale on both sides of William Street and where the predominant tree canopy was at most two and half storeys high with the proposed building failing to sit within that street canopy by a wide margin.
13. Further, the development would not establish a transition in scale between zones to protect local amenity with the whole point of the provision being that buildings in the R3 zone between the centre and the bay should transition down from the predominant 4 storey height limit set for the centre.
14. The Association claimed that the development did not minimise loss of solar access to existing buildings and open space and, in midwinter, the shadows would stretch across the street to include the southern footpath. There must therefore be overshadowing impacts on the western and eastern neighbours.
15. In summary, the Association argued that the development would not minimise the impacts of new development on adjoining and nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion. It would at least impact on views from the Georges Building and the bulk would intrude onto the outlook of its neighbours. The Association also raised concerns with overlooking from the rooftop terraces and excessive excavation into a high water table and acid sulphate soils. They were concerned at the loss of mature trees and landscaping on the site which would not be replaced.
16. At the commencement of the hearing, the Court heard from the Vice President of the Association, Mr Young, who reiterated the Association's concerns even though he had seen the modified plans. He advised that members strongly opposed the fourth storey and the breach of the LEP controls. He noted the adjoining RFBs were inter war buildings. Much of the concern was the impact on views currently obtained across the site to the harbour from development on the amphitheatre slope. He believed there would be view loss from the Georges Building and even partially from his own property which was some distance away. He was also concerned about the impact on residents on the southern (opposite) side of William Street.

Expert evidence

1. At the hearing, contentions associated with stormwater disposal fell away on the basis of information provided and/or the conferral of experts. However, the Council remained concerned at the adverse impacts associated with an additional storey beyond what the height control permitted and with an FSR at or slightly exceeding what was permissible.
2. Expert evidence from the Council on all issues was confined to the evidence of Mr Dimitri Lukas, the assessing officer for the application and author of the Council report (Exhibit 6). Mr Lukas advised he was not a qualified planner, architect or engineer but he was a building surveyor and a long term assessment officer at the Council. Therefore he considered that he had the necessary experience to provide evidence on the issues raised by the Council.
3. Expert evidence for the applicant was provided by Ms Jennie Askin (planner), Mr Michael Harrison (architect) and Dr Richard Lamb (on view loss). A joint expert report prepared by these 3 experts and Mr Lukas was provided to the Court (Exhibit 3). In terms of issues still contended by the Council at the hearing, the expert report addressed building height (including view loss), FSR, amenity issues, excavation, the front fence, private open space, and the public interest.

Height

1. The application as amended proposed a maximum height of 14.25m relative to a maximum permissible height under the LEP of 10.5m. The exceedence arose from a partial fourth storey to accommodate a penthouse, a rooftop terrace for sole use by penthouse occupants (and not required to satisfy open space requirements), and the lift overruns.
2. The exceedences therefore occurred in three areas: the height of the penthouse, the lift overruns and the rooftop terrace balustrade.
3. In responding to questions from the Court, the applicant's experts also agreed that the western terrace from the penthouse living area, as distinct from its rooftop terrace, would also have non-complying height elements. Further, these experts agreed that the height to the penthouse roof, even without the rooftop terrace, exceeded the height of the adjoining inter war RFB at 10 William Street. Adding the rooftop terrace, the height also exceeded the height of the taller inter war RFB adjoining to the east of the lane, being 20 William Street.
4. The applicant's experts also advised that, even with the penthouse and its roof terrace deleted, the development would still exceed the height but only in terms of the lift overruns. The remainder of the building would be at a height in the order of 10.15m, within the maximum permissible height 10.5m.
5. Mr Lukas indicated that, if the penthouse was deleted, the Council would support the minor remaining height breaches.
6. A cl 4.6 written request was submitted with the application seeking to justify the variation to the height standard. In order to establish if strict compliance with the development standard was unreasonable or unnecessary, the request assessed the proposal against the steps set out by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827.
7. The request claimed that there were sufficient environmental planning grounds to justify contravening the development standard, the applicant's written request adequately addressed the matters required to be demonstrated by cl 4.6, and the proposed development would be in the public interest because it met the zone and standard objectives.
8. In this regard, the request argued that the proposed height exceedence met the objectives of both the standard and the zone as follows: 1. When viewed from most of the public domain, the building is below the statutory height control with the non-compliant elements recessed. This would minimise the visual impact on the existing streetscape with the main bulk of the building visible from the street being compliant. With the existing private driveway to the rear, these non-compliant elements were also well setback from the R2 zoned properties to the rear allowing for adequate transition in height between the R2 and R3 zones. 2. The development complied with the FSR control (although this was disputed by the Council) and therefore was of a bulk and scale acceptable for the locality notwithstanding the non-compliance. 3. The development had been designed to complement the visual amenity of the locality and existing surrounding developments and context. In particular, the proposed building would fit contextually beside the existing RFB developments on either side being consistent with the bulk and scale of these RFBs. 4. The lift overruns represent only 3.5% of the building footprint and the balustrades would be glass reducing their visibility. 5. Strict compliance with the control would not comply with the control's underlying purpose as a building with the same FSR but a fully compliant height would result in a greater footprint at the levels below increasing the bulk of these levels with reduced articulation. 6. The site is constrained with the finished floor levels at ground level having to meet minimum flood requirements which was 550mm above footpath level to the front of the site thus increasing the building's height. 7. There were no adverse solar access or privacy impacts to neighbours and view impacts would be negligible. 8. The development would achieve the desired future character objective in the DCP of introducing a well-designed contemporary building into the streetscape. 9. The development would meet the housing needs of the community within a medium density residential environment by providing 1, 2 and 3 bedroom dwellings with a high level of amenity within walking distance of public transport, shops and other services 10. No matters of State or regional significance arose from the breach.
9. The environmental planning grounds to contravene the standard were therefore, in essence, said to be a well-designed contemporary building compliant with the FSR control, with limited view of the penthouse and other non-compliant elements from the street and adjoining properties to the rear, and consistent with the existing streetscape and context. Further, there were no adverse impacts to neighbours and view impacts would be negligible.
10. The cl 4.6 request claimed that there would be no public benefit in maintaining the standard as compliance with the height standard would not significantly alter the appearance of the development from the streetscape with non-compliant elements largely hidden from view.
11. The request concluded that strict compliance would result in an inflexible application of policy serving no other purpose and would outweigh the positive outcomes of the development and therefore a better planning outcome overall. In this regard, it was argued that the site has the capacity to provide new high standard residential accommodation in an appropriate location and this, along with the lack of adverse environmental impacts arising from the additional height, supported the variation.
12. In evidence, Ms Askin agreed that there was a public interest in generally maintaining the 10.5m height control but argued that this development would not undermine that control given the design and the circumstances of this site. On transitioning to lower density properties to the rear, she argued that, with the lane, a setback of 16m could be provided to dwellings in the R2 zone which was substantial and unique, and would provide that transition. She re-iterated the contextual height fit with the adjoining RFBs with these RFBs and the proposed RFB all reading as 3 storeys from William Street. Furthermore, the public would struggle to see the fourth storey penthouse elements.
13. Ms Askin advised the Court that she had prepared a height compliant scheme to support the cl 4.6 claim of a more detrimental outcome. However, this was not provided in evidence.
14. The Council argued the variation to the height control was not justified as the resultant development would have an unacceptable impact on the streetscape and on views and would set an undesirable precedent. The development did not meet the LEP aim of ensuring development achieved the desired future character of the area nor the similar R3 zone objective of ensuring that development is of a height and scale that achieved the desired future character of the neighbourhood.
15. In this regard, the Council contended that development in the R3 zone was required to be of a height which transitioned from higher development in the commercial zone to the south to lower heights in development in the R2 zone to the north, being the zoning immediately adjacent to two boundaries of the site (given the laneway to the north and east of the site were also zoned R2).
16. Mr Rigg, counsel for the Council, argued that the development would adversely impact William Street including in terms of overshadowing, and would impact on views. He submitted it was unreasonable for the height exceedence to be further exacerbated by two lift overruns when only one lift should be required given the size of the development. Ms Askin argued that the second lift was a backup lift and its additional height impact would be imperceptible.
17. Mr Hemmings, senior counsel for the applicant, noted that, unlike other precincts in the municipality, there were no controls in terms of number of storeys, therefore the Council should not oppose this development simply because it had a partial fourth storey. He also contended that nearby RFBs (albeit inter war RFBs) of a similar height were supported for retention as part of the existing character.
18. Mr Rigg however, emphasised the desired future character objectives seek to respect and enhance the streetscape character and key elements of the precinct, reinforce a consistent building scale within streets, rooflines sitting within the predominant street tree canopies, provision of a transition between the higher density buildings of the Double Bay centre and the lower density buildings of the residential area, and retention and reinforcement of the green setting. He argued the development, with the height proposed, achieved none of these objectives.
19. In terms of the impact of the height of the development on the streetscape, Mr Hemmings referenced DCP B3.5.1 and the precinct controls noting that these encourage retention of the two adjacent inter war RFBs which will provide an appropriate height and streetscape context for the proposed development, which was only required to be compatible with, not the same as, other buildings in the street.
20. Mr Hemmings specifically referenced the DCP objective of maintaining the evolution of residential building styles through the introduction of well-designed contemporary buildings (such as the proposed development).
21. Mr Lukas argued however, that the proposed height was inconsistent with the precinct's desired future character as it did not respect or enhance the streetscape character and key precinct elements which is predominantly to a maximum of 3 storeys. He did not believe that the development needed to be higher than adjoining buildings arguing this would not reinforce a consistent building scale within the street. Mr Lukas's evidence was that, in the R3 zone in the area, there was only one 4 storey RFB out of 27 RFBs.
22. Mr Lukas also contended that, as the site was flat, the topography did not necessitate breaching the height control therefore the development should be height compliant and provide a height transition between the higher density buildings of the Double Bay centre and the lower density residential buildings adjoining the site to the north.
23. In contrast, Ms Askin argued that the development respected and enhanced the streetscape character and key precinct elements having a 3 storey street frontage set within a landscaped garden setting. The penthouse would be setback and therefore of reduced visibility from the public domain. She argued the buildings complied with the FSR (disputed by the Council) and the design allowed the site to be developed to its potential. Further, there were minimum required flood levels to be met which impacted on height.
24. Ms Askin considered that the building responded to its position in terms of being between the high density buildings of the Double Bay centre and the lower density buildings of the R2 low density residential area to the rear.
25. Mr Harrison also argued that the development respected the precinct and streetscape character as the character of the street block each side of the site and on both sides of this part of William Street was diverse with mixed key elements. There was a variety of building form such as pitched and flat roofs, terraced and regular RFBs, and 2-4 storey buildings. Consistent key elements were masonry buildings within garden setting and some modulated building forms. He argued that the development accorded well with these characteristics. In particular, existing large scale buildings in the area were on larger lots with wide frontages. The proposal was on one such large lot with one of the widest frontages and was therefore reasonable to be part 4 storeys.
26. Mr Harrison also believed that, at 3-4 storeys, the proposal was consistent with the transition of heights between the Double Bay centre and the residential areas around the bay. He believed the context of street and laneway trees and garden vegetation would limit views of the fourth storey to the point of being negligible.
27. Mr Harrison argued that, in terms of desired future character, it was important new development was of a high design quality and added to the attractiveness of the area and streetscape. In this regard, he considered that the development had been skilfully designed with a central setback entry area breaking down the scale of the building and presenting as two built forms at the street front. Furthermore, the external materials were of high quality.

View Impacts

1. In terms of view impacts, specific reference was made in the Council report (Exhibit 6) to the Georges Building. Four photos in that report taken by Mr Lukas showed views across the site from apartment living areas or balconies of the lowest two residential levels in the building.
2. The Council report undertakes an assessment using the principles for view loss established in Tenacity Consulting v Warringah Council [2004] NSWLEC140. This is a four step process as outlined at [26-29]: 26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. 27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. 28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. 29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.
3. The Council report claims that there are loss of water views of Sydney Harbour, the Lower North Shore and distant views of Manly. The comment is made that the photos were taken in summer which is critical in the view loss assessment as there are deciduous trees on the site impacting views to the harbour (some of which are proposed to be removed).
4. Mr Lukas acknowledged that the existing views of the harbour from these apartments are currently partially compromised by the existing trees but claimed that it was difficult for the photographs to depict the existing filtered water views nevertheless available year round.
5. Mr Lukas considered that the view impact from the lowest level of apartments in the Georges Building (Level 3) would be severe with the loss of some 50% of water views as well as distant views of Manly. From Level 4, he considered the view impact would be moderate interrupting the continuity of the land/water interface of the Lower North Shore and Sydney Harbour. His report claims that the non-compliance with height and envelope controls (ie setbacks) causes unnecessary impact on these views which is unreasonable in the circumstances.
6. The four photos in the Council report, and this report itself, were the only documentation provided to the Court by the Council on the view loss issue. This was notwithstanding that the development had subsequently been amended and view loss was an issue raised in most of the objections to the development. Furthermore, the Council advised the applicant that the only view loss impacts required to be assessed for the hearing were those from the Georges Building apartments.
7. In oral evidence, Mr Lukas elaborated on his concern with view impacts claiming the excessive height as well as the potential for additional elements on the roof terrace did not minimise view impacts from the primary living areas and north facing private open spaces of the units on Levels 3 and 4 of the Georges Building.
8. The applicants argued that trees removed as part of the application would improve some views albeit accepting only in summer. Mr Hemmings also argued that the only DCP controls in terms of private views, encouraged view sharing and equitable access with siting and design of development to share views. Furthermore, the figures referenced only show design responses having regard to views from properties across the street.
9. Specifically, Mr Hemmings noted that, in terms of respecting the existing character, the controls in the DCP only require that developments have regard to 'view corridors' (which were being retained), referenced only those view corridors from public places not private property, and the Council had not raised a contention with view impacts from public places.
10. On the basis of the Council's view impact concerns focusing only on three apartments in Levels 3 and 4 of the Georges Building, Dr Lamb assessed only the view impacts from these apartments.
11. He concluded that the effect on views from two of the apartments (12 and 14) would be negligible. The view that is affected would now not even be perceivable because some trees were leafless at the time of the inspection when photographs were taken. As there was in effect no view loss to these two apartments, he argued that Tenacity had no work to do with respect to their views.
12. Dr Lamb did however, conclude that there would be a loss of views of some water in one of the views from the third apartment, being unit 13. Accordingly, Dr Lamb agreed it was valid to proceed through the four Tenacity steps.
13. In terms of Tenacity Step 1, Dr Lamb stated that, whilst the view loss is water, it is a partial not a whole view, the iconic view is not lost and the land/water interfaces are also not lost. For the majority of the year there is no view of the 'sliver of water affected' given the trees. Dr Lamb argued that the value of the view that remains unaffected is high and the view lost makes minimal contribution. He considered there was no justification to proceed beyond Step 1 as the threshold for proceeding to Step 2 was not met.
14. However, if the Court formed the view that the threshold was met, Dr Lamb had proceeded through the remaining Tenacity steps arguing as follows: 1. The view affected is from the front of Unit 13 in a location from which views could reasonably be expected to be protected. The view affected was from a standing position. 2. The impact was minor therefore not requiring consideration of Step 4 as to whether the proposal is reasonable. 3. There was no justification for giving extra weight to the minimal impact merely because it resulted from a non-compliance with the height control. 4. Irrespective, the design had skilfully addressed the minor view loss impacts caused by an earlier design by the reconfiguration of the upper level and the location of the penthouse and its minimal visibility as well as the removal of trees. 5. The benefit to the views of unit 13 arising from tree removal outweighed the minor view loss caused. 6. The view impacts to unit 13 were largely confined to views of the western side of the balustrade of the roof terrace which is clear glass further minimising impacts. 7. Total retention of existing view was not reasonable to require and is not the objective of the height standard. 8. The photos Mr Lukas took which were included in his Council officer's report were of an earlier scheme which had a greater impact.
15. Mr Harrison noted that the views from the Georges Building towards the harbour included a characteristic mixed built form and tree canopy. He argued it was very likely that such general characteristic panoramic views would always be maintained given the planning controls require maintenance of such character and the general community attitudes favouring tree retention.

FSR

1. Mr Lukas claimed the proposed FSR was non-compliant based on his calculation of gross floor area (GFA) and, as there had been no cl 4.6 written request lodged to support this exceedence, the development could not be approved.
2. The applicant subsequently lodged such a request in the event that the Court determined the Council's calculations of GFA were correct and also agreed, as part of the expert conferral, to reduce the extent of the basement to further reduce any FSR exceedence.
3. The applicant's cl 4.6 written request in support of the FSR was similar to the arguments in support of the height exceedence albeit the level of any FSR non-compliance would be minor unlike the exceedence to the height control. The request also referenced qualitative aspects of the design including materials and a visually interesting vertical foyer which presented limited bulk to the street. Reducing the GFA could result in a loss of this feature with no discernible improvement in terms of bulk. The request also referenced the landscaped setting of the development having regard to the specific objectives of the FSR standard.
4. During the hearing, there was much debate and discussion between the experts about which parts of the development should be included in GFA in terms of corridors, foyers, voids, wall thicknesses and the basement. Ultimately in oral evidence, the applicant's experts agreed a minor FSR breach likely existed.
5. The floor area of the penthouse was in the order of 200m². At the hearing, the offer was made by the applicant to amend the application to comply with the maximum FSR by modifications to the foyer and other levels, if the cl 4.6 request was not accepted by the Court, rather than by deleting the penthouse.

Other Contentions

1. The experts disagreed as to whether the building minimised negative impacts on the amenity of adjoining and neighbouring residents with respect to bulk, scale and privacy.
2. Notwithstanding modifications undertaken to the application to address these concerns, Mr Lukas remained concerned about privacy impacts to the western neighbours from the roof terrace. In response, the applicant offered to accept a condition to reduce the trafficable area of the terrace by setting back the balustrade an additional 1m from the western boundary and to provide privacy screens.
3. In oral evidence, Mr Lukas accepted that the setbacks proposed to all boundaries reflected in the amended application were a reasonable compromise. The Council therefore did not press the contention in terms of setback compliance, building separation or privacy concerns noting the applicant agreed to additional privacy screens at all levels.
4. In terms of traffic and parking, no expert evidence was provided to support the Council's remaining contentions following amendments to the application other than by Mr Lukas in terms of the resultant required excavation (which exceeded DCP controls). In this regard, the Council argued that the development did not meet the LEP and DCP aims of ensuring development minimised excavation and managed impacts.
5. Specifically, Mr Lukas considered that the non-compliant volume of excavation proposed correlated to having to provide extra parking for the penthouse and non-compliant building envelope. He considered the basement to be poorly designed with large plant rooms and ancillary voids. He sought a level of parking to be deleted as the parking proposed was the maximum permitted.
6. Mr Lukas believed the volume of excavation proposed could result in detrimental impacts on the environment in terms of water flows, vegetation and acid sulphate soils as well as potential structural risks to adjoining buildings. However, he accepted that he was not an expert in any of these matters and no other expert from the Council was provided to address these concerns. He maintained however, that the proposed excavation did not minimise impacts on the amenity of adjacent properties in terms of noise, vibration, dust, and truck movements.
7. Ms Askin argued that the excavation extent was necessary to accommodate the required basement design for parking, storage and a plant room. In this regard, the DCP allowed a variation to the permissible volume of excavation if it was needed to accommodate parking to comply with the maximum rates, reasonable access and required storage areas. With the reduction of storage she had recommended to the applicant, which had been agreed to, the basement was the minimum required for these uses. Further, the 65m² associated with the two parking spaces for the penthouse would have a negligible effect on the volume of excavation and the plant room could not be reduced simply by deleting the penthouse.
8. Ms Askin also argued that deletion of one basement level would result in a significant shortfall of parking which would impact the locality in terms of on-street parking. She noted that the Council's Development Engineer raised no objection in terms of potential structural damage and the development's compliance with the required deep soil landscaping control resulted in environmental benefits. Notwithstanding the debate about the total amount of GFA, the FSR proposed was at least generally within the FSR envisaged by the controls for the site and the basement was an important component of the development.
9. Finally, in terms of fencing, Mr Lukas initially raised concerns with the height and lack of transparency of the front, side and rear fences exceeding the maximum permissible DCP height and not being 50% transparent at the front.
10. Conflicting evidence was provided by the experts on the nature and character of fencing within the street and the acceptability of the proposed fence in that context. The Council's concern with the front fence could be resolved through amended plans or conditions restricting the maximum height to 1.5m and 50% transparency. Whilst the applicant maintained that a 1.8m high sandstone clad fence was more in keeping with the streetscape, a condition was agreed to which would meet the Council's requirements.

Findings

1. Whilst there was extremely limited expert evidence provided by the Council to support its contentions, a matter of concern to the Court, no doubt to the residents, and also raised by the applicant, there was nevertheless ultimately, in my view, insufficient basis to support the development in terms of the height breach proposed.
2. This was despite the modifications undertaken by the applicant in order to respond to a number of the contentions raised by the Council or the quality of the building's design. The height exceedence remained substantial and the development does not reflect the height or scale envisaged by the planning controls for new development in the precinct or for this site.
3. This height breach is the result of an additional floor or (partial) storey being sought, being the penthouse, which is an additional storey to that which the controls anticipate or the height limit facilitates. It is not a case of minor breaches to accommodate a storey which would otherwise be primarily accommodated or which is located in response to site factors.
4. The height breach caused by the penthouse is further exacerbated by adding a rooftop terrace to this additional storey only to service that penthouse despite it already having balconies and terraces. Further height is added by two lift overruns serving a relatively small development where generally only one lift overrun could be anticipated, and with other elements to support the penthouse namely the balustrading to its western terrace.
5. There was little, if any, justification provided for the rooftop terrace which exacerbates the height control breach and is only proposed as an amenity benefit for the penthouse rather than providing any greater benefit to the occupants of the development overall. This is despite the penthouse already having a number of open terraces and benefiting from views to the harbour.
6. The applicant did not offer to remove the rooftop terrace, amend the penthouse's western terrace or delete the second lift to minimise the height non-compliance already caused by the penthouse.
7. Even deleting the penthouse and its rooftop terrace, the evidence was that the development would still breach the height control with the lift overruns, with the building being close to the maximum height of 10.5m at around 10.15m.
8. Although the applicant advised the Court that an analysis had been undertaken of a development which complied with the height and FSR controls which demonstrated that there would be a worse outcome in terms of the distribution of floor space across the site, a compliant scheme was not provided to the Court to demonstrate that this in fact was the case.
9. Whilst I accept such a redistribution of floor space would result in reduced setbacks to adjoining boundaries, the amenity impacts on adjoining neighbours was not the primary concern of adjoining residents. Their concern was with the excess height, the impact this would have on surrounding properties and the streetscape, and the precedent it would cause for development in the zone.
10. I do not accept that the development provides an appropriate transition from the high density R3 zone to the lower density R2 zone immediately adjoining the site to the north and east. The development does not even comply with the height limit of the R3 zone and definitely does not provide a lower height adjoining the R2 zone as would be expected in any transitional development. Simply put, it is difficult to accept that a development exceeding 14m in the R3 zone, where a maximum height limit of 10.5m applies, and which directly adjoins an R2 zone, where a lower height limit of 9.5m applies, is transitional as the controls require.
11. I agree with the Council that any argument for height exceedence could apply where a site adjoined the commercial centre, where buildings are higher, not a lower density zone where dwellings are lower.
12. The applicant's expert agreed that the proposed height breach caused by the penthouse would have an adverse impact on views from at least one apartment at 45 Cross Street.
13. As the Council did not require the applicant to address the view impacts from any property other than three apartments at 45 Cross Street, no evidence of potential additional view impacts to other properties in the broader locality, or from the public domain (such as William Street), was provided to the Court.
14. However, I consider it unlikely that there would not be additional view impacts to other properties located within the R3 zone further to the south or in development in the Double Bay centre as contended by residents and the Residents' Association. This is due to the topography of the area and the height of existing development in the Double Bay centre which overlooks the site with distant views to the harbour.
15. I also do not accept the fourth step of Tenacity is not relevant given the applicant agreed that there would be some view loss from the proposal and that this was caused from the non-compliant height.
16. Even if view impacts were worse from a development compliant in height with the maximum FSR, say from properties on the opposite side of William Street, such a development would still have to meet the view sharing principles in Tenacity and the objectives of the LEP and DCP. In any event, as I have indicated, there was no evidence from the Court as to what impact a compliant development would have.
17. I agree with the applicant that the Council's expert evidence was wholly inadequate, not due to the quality of Mr Lukas's evidence but the lack of any additional supporting material or assessment on view impacts or in terms of contentions outside Mr Lukas's expertise. However, the site is close to the harbour and views to that harbour, even glimpses from public streets or private property, are highly valued and important to the streetscape and precinct. This was evident from resident objections raising this concern.
18. Even with evidence confined to views from only two levels of one development in the vicinity of the site, there were agreed adverse view impacts. Even if they are minor, they are unnecessarily caused by the height non-compliance.
19. I accept that the proposed tree removal would improve some views from the same apartments, however tree removal would be expected from any redevelopment of the site irrespective of its height.
20. The applicant agreed that, even removing the penthouse and its rooftop terrace, the development would still not be compliant with the height control in terms of the lift overrun/s however the Council would accept that minor non-compliance. and there would be no dispute on FSR compliance. As I have indicated, the evidence was that deleting the penthouse and rooftop terrace would still result in a development having a height in the order of 10.15m, which is not significantly less than the 10.5m maximum height permissible on the site.
21. Deleting the penthouse would also improve the amount of excavation required on the site (albeit it would still likely not meet the maximum amount of excavation sought by the DCP) as a result of removing at least two parking spaces and storage associated with the penthouse currently proposed within the basement. With the loss of the penthouse, there would also be less traffic and, whilst this may be a minimal beneficial impact, it further confirms that the proposed development is not demonstrated to be a better planning outcome than a compliant development.
22. I also do not accept that a building distributed over four levels sits well within its context and is in accordance with the desired future character of the area as is required by the height objectives of the LEP. The only examples of development greater than three storeys or the existing height control were given as the two RFBs in the vicinity including one adjoining. However, the applicant conceded that the proposed height of the development exceeded even the highest point of the pitched rooves of both of the adjoining RFBs. These are also both inter war RFBs and retention of inter war RFBs is an objective of the DCP in terms of future desired character of the precinct. New buildings of the same scale and height are not.
23. Whilst I accept one planning ground for the height breach may be the context of the site given it is adjoined by two RFBs, this constitutes insufficient grounds to breach the height control particularly as the existing RFBs are of an era and style supported by the planning controls. Furthermore, the development seeks to exceed even their height.
24. The applicant also accepted that the balustrading for the balconies to the penthouse exceeded the height control but did not address the impact of this specific element of non-compliance in the cl 4.6 variation request. Whilst I accept that these may be glass balustrades, it is likely that the terraces will contain planting and furniture which would also be within the height breach area. The same is likely for the rooftop terrace.
25. It may also be the case, as the applicant contended, that at least 550mm of the height breach is caused by the flood planning levels on the site but this is not unique to this site or to the locality. In any event even accommodating allowance for thisEven if it were a basis to support a height breach, the breach proposed is well in excess of 550mm.
26. The lack of adverse amenity impacts on adjoining properties is also not sufficient grounds to support the breach. In any event, and although there was no expert evidence provided by either party on this issue, the residents raised concern about the impact on their outlook towards the development from their properties associated with an additional fourth level element.
27. Whilst there is clear benefit to the applicant to allow the additional height to, in effect, facilitate an additional storey (even if only partial) to accommodate a penthouse with its own rooftop terrace, there was no evidence of any discernible benefit to the neighbouring properties relative to a lower, height compliant development with one less dwelling. The additional impacts this additional level of development may be minimal and/or minimised but impacts still arise and result in a development not as envisaged by the controls.
28. For the reasons I have given, I have determined that the development does not reflect the intended desired future character for the street or the precinct It is of a height and scale that does not reflect the desired future character of the neighbourhood as is required by the LEP zone objectives. It is therefore not in the public interest as it does comply with all of the objectives for the zone in which it is located, or for the height standard, as is required under LEP cl 4.6.
29. If the Council had intended contemporary developments to be of the height proposed, given there is a stated objective to retain the interwar RFBs at the current height and scale, then a greater height control would be in the LEP.
30. I see no reason why a development which is similarly well designed and of a contemporary nature as anticipated by the DCP can't be developed in accordance with both the FSR and height controls for the site and therefore achieve the objectives of both the LEP and the DCP in terms of the desired future character of the area.
31. With regard to the adequacy of the cl 4.6 written request, I do not consider that it established that there are sufficient environmental planning grounds to warrant the height exceeded sought. Nor was there sufficient evidence that it would be a better environmental planning outcome for the site relative to a compliant development and it was agreed there would be view impacts to at least one property, and up to three properties, as a direct result of the breach, even if the impacts to two of those properties were considered by the applicant's expert to be insignificant.
32. A non-compliant development should have no view loss or an improved view loss relative to a compliant development not merely seek minimal or minimised impacts. As I have indicated, I had no evidence that this was the case.
33. I therefore do not find that compliance with the controls is either unreasonable or unnecessary in the circumstances.
34. As I have found that the breach to the height is not justified under cl 4.6 of the LEP, a precondition to approval of this development, the application is refused. It is therefore not necessary for me to deal with the other contentions raised by the Council or the residents.

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA2016/367/1 for a residential flat building at 12-16 William Street, Double Bay is refused. 3. The exhibits, except Exhibits A and 4, are returned.

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Jenny Smithson Commissioner of the Court

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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: 21 December 2017