Luke and Warnock v Lane Cove Council

Findings 60In my overall merits assessment of the development application under s 79C I have taken into consideration the planning regime, the evidence of the experts and residents, and the site inspection. The Court in its assessment recognizes that neighbours may not always embrace change, however, that is not the test and the role of the Court is to assess whether an application is satisfactory when assessed against council's planning regime and to determine whether impacts are reasonable or unreasonable in the circumstances of the case. 61In terms of the code the proposal complies with the 9.5 m height requirement, however it exceeds the 2 storey requirement of the code and 7 m to the uppermost part of the ceiling. To assist in my consideration, the parties referred me to judgments of this Court. The case of Stockland Development Pty Ltd v Manly Council [2004] NSW LEC 472, of McClellan CJ states: To my mind the matters which are relevant in determining the weight to be given to planning policy adopted by council are as follows: the extent if any of research and public consultation undertaken when creating the policy; the time during which the policy has been in force and the extent of any review of its effectiveness; the extent to which the policy has been departed from in prior decisions; the compatibility of the policy with the objectives and provisions of relevant environment planning instruments and development control plans; the compatibility of the policy with other policies adopted by council or by any other relevant government agency; and whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area. 62I accept that the code was adopted in 2002, however, from the site inspection it could be seen that the code has not been consistently applied or strictly adhered to in the granting of consent to other dwellings in the vicinity of the subject site in particular, the three-storey requirement. In assessing the application I have also had regard to a holistic consideration of the code, and while it is not a development control plan and therefore of less weight, I have made the code a fundamental element in my assessment. In saying this I am also guided by the authority of Zhang v Canterbury City Council [2001] NSWCA 167 wherein at paragraph 74 is stated " a development control plan is not an 'environmental planning instrument'...Furthermore, a proscription by s76B of any development prohibited by an environmental planning instrument does not extend to a prohibition in a DCP. Nor can such a plan contain a 'non-discretionary development standard' which if complied with would take away a consent authority's discretion under s79C(2)." I have considered the guidelines in the context of the planning regime and the individual circumstances of this case. 63In the judgment of Tenacity Consulting v Warringah Council [2004] NSW LEC 140, Roseth SC established a planning principle for assessing developments and its impact on views. In this case, cl 36 of the LEP states that development is to allow for the reasonable sharing of views, and in deciding whether or not view sharing is reasonable, he adopted a four step assessment as follows: 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. 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. 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 m 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. 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. 64In applying the above principles to the application before me, the view can be described as a filtered view of the water above the existing roof of the subject property to the western foreshore of Woodford Bay and from inside the ground level this is obtained mainly from a standing position and on the deck adjoining the dwelling and the swimming pool area. This water view is within a broader context of the foreground of the swimming pool of number 101, the mid-ground of the structure and roof of 99 through to the water view, over the subject land. From the upstairs level of number 101, there is a television room and adjoining deck, where views are obtained to Hunters Hill to the south and views over foreshore properties, including the subject property, from the northwest through to the southwest. From a sitting position in the downstairs living area of number 101, there is only a small view of the water over the existing roof of the subject property, the main feature being vegetation that is contributed to by many properties. The view of the water from a seated position is very limited compared to views from the upstairs and in the context of the overall views afforded to this property. Refer to Figures 2 and 3. 65The planning principle requires consideration of the views from the whole of the property, even though it is not contended that the impact on views from the first-floor living and balcony area is an issue. In my assessment from the site inspection it could be seen that the proposed development would have a minor effect on the water views having regard to the totality and extent of views from the whole of the dwelling. 66For the downstairs living area the impact of the proposed development on the view from a standing position in my assessment would be minor at the highest. In my assessment the land water interface will generally be maintained, although I recognise that there is a difference between high and low tide when viewed from number 101. From a sitting position downstairs the water view is currently very limited and to gain a greater appreciation of the view this will generally be maintained from the upper level of number 99. In my assessment the proposed development minimises the disruption from the view and I agree with Mr Perica that a roof design to the maximum height of 9.5 m, could have a severe impact on the views enjoyed from number 101 and having regard to the guidelines I am satisfied that the proposed design has regard to the view sharing principle and minimizes view impact. The test is not that there be no impact. 67The respondent argues that the impact of the non complying elements, that is in the southwest side of 1.22 m and on the northwest side of 0.92 m is unacceptable. However, in my assessment, a roof that achieves the maximum height in the centre would have a greater impact on views and possibly in the centre of the view line. A roof of such a design, while it may be compliant, would not minimise disruption to views. The question for the Court is whether the impact of the non complying portions of the building are unreasonable in the circumstances of this case. 68I am satisfied the design achieves reasonable view sharing in the context of the 9.5m overall height limit and the exceedence of the storeys limitation and the ceiling height would not warrant refusal of the application. The surveyors report states that "the uppermost ceiling is at RL 26.32 and has a maximum height above natural ground of 8.22m that part of the parapet wall which is below the ceiling line and which is higher that the 7m is about 7.7% of the faade of the parapet wall below the ceiling line. Refer to Figure 4. The elevations also show that 100% of the proposed residence will be below the 9.5m height limit to the highest point of the roof". 69In my assessment the exceedence on the southwestern side and the northwestern side overall has a minor impact on views. I must have regard to the overall impact of the proposal on the views from both levels of number 101, in the context of what a compliant development with a pitched roof of two storeys would have, and what part of the water view would be impacted, compared to the proposal, that is compliant with the overall height limit of 9.5 m, but not the number of storeys and ceiling height. 70In my merits assessment a relevant consideration is that the Council has not consistently applied the code, nonetheless I have assessed the proposal carefully against all of its provisions. In my overall assessment, I have determined that the proposal allows for appropriate view sharing and is not unreasonable. 71The proposed double garage has a pitched roof and falls within the 3.6 m height restriction of the code. Mr Shankar agreed that it is not a two storey structure and complies with council's controls. Although in his opinion the development has potential for use as a dual occupancy as there are not only two kitchens and the layout of the floor plans with independent access to the outside, but because of the proposed double garage with two existing car spaces to be retained. In my merits assessment the built form of the double garage and parking spaces are satisfactory for the single dwelling. It is also appropriate that the two blocks of land be consolidated prior to the occupation of the development and the overall floorspace ratio of the proposal is less than council's code and the LEP 2009. 72It is not unusual in a property of this size, for both a main kitchen and secondary kitchen to service the outdoor living area and ground floor and the double garage and additional parking spaces is consistent with the size of the dwelling and allows for convenient access. I am satisfied the provision of a second kitchen and the parking does not constitute two dwellings and the council has proposed a condition for the development to be used as a single dwelling, and the applicant does not objected to this. 73The contention that excessive excavation is required to accommodate the double garage, and that this would impact on the existing trees, has been considered with the benefit of the arborist's expertise. The 1 m cut and fill would appear to apply to dwelling houses, as opposed to outbuildings and garages. I am satisfied that because of the steepness of the land, excavation to 2.4 m is required to establish levels for access to the garage. In my assessment, the amount of excavation is not unreasonable to allow the provision of a garage for the residence given the slope of the land and whether the control applies to outbuildings or only to dwellings. The garage structure has a maximum height of 3.6m and is below the concourse of the pool at No.101 and will not lead to an obstruction of views from this dwelling. In my assessment, the important issue in the circumstances of this case is whether there will be an adverse impact on the Sydney Red Gum. That is Tree No. 7 as shown on Figure 5. 74The Australian Standard AS 4970 - 2009 at Appendix D refers to minor 'encroachment into the tree protection zone' and provides guidelines for reducing the impact of incursions where there is less than 10% encroachment into the TPZ and outside the structural root zone SRZ, with any loss compensated for elsewhere. The Sydney Red Gum it is agreed is a significant tree to be retained with a SULE of 40 plus years. This is located on the adjoining property as shown in Figure 5. 75On the basis of the evidence to the Court it is agreed that there will be no structural root damage and there would be no roots larger than 6 to 8 mm and the cutting of these roots is of no concern to Mr Maish. The radius of the tree is 10.2 m and the garage at a distance of 6 m is an incursion into the Tree Protection Zone of less than 10%, about 5.5% and Mr Castor's evidence is that this root growth area would be compensated under the driveway given tree roots are opportunistic. Mr Castor is also of the opinion that the excavation will not intercept the overland flow as it is downhill of the tree. I am persuaded by Mr Castor's evidence that with appropriate conditions and tree protection measures the excavation and construction of the garage will have a minimal impact on the Sydney Red Gum. The experts provided appropriate conditions for protection measures, including to ensure minimal disturbance of the ground in the vicinity of the Sydney Red Gum and these conditions are to be imposed . 76In my overall assessment of the development application having regard to the planning regime, the evidence of the experts and residents, and the site inspection I have determined that the application warrants approval.

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