Mardini v Hurstville City Council

The planning documents 8 The site is zoned Residential 2 under the Hurstville Local Environmental Plan 1994. The original proposal and the modified proposal are both permissible, with consent, under that zoning. 9 Also relevant is Hurstville Development Control Plan No 11 - Dual Occupancy (DCP 11). The areas in DCP 11 considered in these proceedings are building design and views.

Scope of the appeal 10 The appeal concerns the refusal of the council to vary condition 6 as amended by Commissioner Brown by his decision in matter No 10041 of 2002. This amended condition relevantly reads:- Design changes required to reduce the environmental impact on the development proposal. The following design changes are required:-

The roofline to be amended to incorporate a skillion roof over the rear two storey section of the building with a 450 mm parapet on either side wall. The roof sheeting shall be non-reflective and of mid to dark colour range. Alternatively, a different roof form may be erected over this area providing it does not exceed 500 mm above the ceiling of this level or a height of RL 33.90.

The roof as constructed 11 The applicant, however, has proceeded to construct a pitched roof which does not satisfy this condition. 12 The roof as constructed is not identical with that to which Commissioner Brown declined to give consent. It is common ground between the parties that the ridge line of the roof as constructed is some 1.9m above RL 33.90. 13 The application to the council sought retrospective approval for the roof as constructed. The applicant has appealed to the Court against the council's refusal of this. 14 The Court has power pursuant to s96 to grant a variation to validate the works as constructed as a modification to an existing consent: see Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240.

The issues 15 In these proceedings, the council filed a formal Statement of Issues containing four issues. 16 The first of these alleged that the present appeal constituted an abuse of process in light of the original decision by Commissioner Brown. After proceedings concerning this issue were referred to a judge of the Court as they involved a point of law, this issue was abandoned by the council. 17 The remaining three issues comprised: o Whether or not the proposed variation would, if granted, result in a development which was substantially the same as the one approved by Commissioner Brown and thus was permissible pursuant to s96(2)(a); o The impact on views from 649 Forest Road; and o Whether the bulk and scale of the roof as constructed were acceptable. 18 During the course of the proceedings, it became clear that the third of these remaining issues was, as a matter of practicality, identical to the second of them relating to view loss. 19 It was not disputed that, when viewed from downhill in Tournay Street or the pedestrian laneway or from the rear from the cul-de-sac of Iraga Ave, the bulk and scale of the roof as constructed would not be materially different to that of a roof constructed within the RL 33.90 limit imposed by Commissioner Brown's modified condition 6. 20 In addition, Mr R Fleming, a consultant town planner for the applicant, gave evidence that the increased shadow impact on 3 Tournay Street was only a few hundred millimetres of additional horizontal shadow and that this was not significant. The council did not contest this proposition. 21 Thus, the issue of view loss was seen as the sole real issue on the merits.

Status of proceedings before and judgment of Commissioner Brown 22 At the commencement of the proceedings, I indicated to the representatives of the parties that, although I considered it appropriate to have regard to any findings of fact that were made by Commissioner Brown, my function in carrying out a merit assessment de novo meant that I should not have regard to any conclusion he drew from those findings of fact. 23 In addition, as the roof as constructed is lower than that proposed in the earlier proceedings, I indicated that I did not feel constrained by any concept of comity within the Court to be bound to come to a conclusion, on the facts, in conformity with the conclusions reached by Commissioner Brown.

The witnesses 24 Evidence for the council was provided by Mr G Murphy, the council's Manager - Development Control (and a qualified town planner). Evidence was also given, during the course of the view, by Mr R Jacobs, an owner of the property at 649 Forest Road, where the loss of views are considered by the council to be significant. 25 Evidence for the applicant was provided by Mr R Fleming, a consultant town planner, and Mr M Standley, a consultant architect. 26 Mr Standley considers that the view loss as a consequence of the constructed roof form is not unreasonable and does not constitute adequate grounds for requiring reconstruction of the roof to satisfy condition 6. He bases this conclusion on a number of factors, these being: o The view from the dwelling at 649 Forest Road is not confined to that portion which is obstructed by the roof line as presently constructed but is inclusive of other elements such as vegetation at the eastern end and views toward the horizon over the rear portion of the neighbouring western allotment; o The view from 649 Forest Road is not as significant as if it were a view of some iconic object (such as the Sydney Opera House) or scene (such as beach or water views); o The subject building, including the portion of the roof that obstructs views from 649 Forest Road, complies with all relevant numerical controls; and o The covered rear patio of 649 Forest Road should not be regarded as part of the principal living areas of these premises. 27 In response to a direct question, he conceded that construction of a roof which complied with the RL 33.90 limit imposed by Commissioner Brown was an engineering and construction feasibility.

The s96(2)(a) test 28 The provisions of s96(2)(a) of the EP&A Act require me, inter alia, to be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. 29 It was submitted on behalf of the council that, in conformity with the decision of Bignold J in Moto Projects (No 2) Pty Ltd V North Sydney Council 106 LGERA 298, I should undertake a comparison between the development as constructed and that which would comply with Commissioner Brown's decision. 30 It was submitted that such a comparison needed to be both qualitative as well as quantitative. 31 In this regard, I have considered the principle from Bignold J's decision in Moto that: Although it is well established that the comparative task required to be undertaken to satisfy the requirement of s 96(2)(a) involves a comparison of the whole of the developments being compared, that fact does not eclipse or cause to be eclipsed a particular feature of the development, particularly if that feature is found to be important, material or essential. 32 In the present instance, the nature of the totality of the construction on the site was able to be appreciated during the course of the view as, except for completion of the tiling of the contested roof section, the building is, to all material intents and purposes, completed. 33 Although the form of the relevant section of the roof is contested in these proceedings, I am satisfied that that section of the roof is not important, material or essential to the characterisation of the whole development. 34 Although I am required to assess the impact of this portion of the roof on the view from 649 Forest Road, the changes to the roof sought to be regularised by these proceedings do not change the consented development in any significant fashion which would take the proposed modification outside the scope of s96(2)(a). 35 I therefore declined to uphold this basis for refusal of the modification application. 36 As I had reached this conclusion as a consequence of what was observed during the course of the view, in order to expedite the proceedings I indicated this conclusion to the parties and informed them that I did not require evidence on this matter (although both legal representatives did address me on this point during closing submissions). These submissions have been taken into account in the above formalisation of the reasons behind my indication to the parties on this issue.

The views from 649 Forest Road 37 The internal layout of 649 Forest Road has an enclosed insect-meshed patio across approximately two-thirds of its southern side (the side facing the site). The floor of this patio is some 520mm lower than the main floor of the house. 38 Within the house, there are three rooms across the southern side. The eastern of these rooms is a children's bedroom; the middle of these rooms is presently the kitchen (and includes the access door for the patio) and the western of these rooms is presently part of the living area of the house. 39 The wall between the middle and western rooms has been partially demolished. 40 Mr Jacobs gave evidence that he was considering relocating the kitchen to the western end and turning the present kitchen area into a bedroom. He was not asked where the resultant access to the patio would be located but nothing in these proceedings turns on this. 41 Mr Jacobs also gave evidence that the family made extensive use of the patio, particularly during warmer periods of the year, for informal dining and for playing with the family's young children. 42 Mr Jacobs was not the owner of these premises at the time of the hearing before Commissioner Brown. In this context, it was also his evidence that the roof which is the subject of these proceedings had been in place to its present extent that the time he had purchased the property. However, he indicated that he did then consider that the subject roof obstructed his view but he had assumed, at the time of his purchase, that it had been constructed lawfully. I do not consider he should suffer any adverse inference for this as he did object at some time (the timing of making this not being the subject of evidence) after becoming aware of the correct legal position. 43 In the proceedings before Commissioner Brown, Commissioner Brown noted that Ms Ford, the then owner of 649 Forest Road, gave evidence centred around the negative impact the loss of the view would have on the lifestyle and enjoyment of her property. She indicated that the rear portion of the house, including the patio, was used regularly because of the impacts of heavy traffic associated with the Forest Road at the front of the house. 44 Although Mr Jacobs was not questioned on this, there was nothing in his evidence or from what was observed during the view which would cast doubt on the continuing validity of this position.

The applicability of DCP 11 45 DCP 11 provides several relevant controls in relation to the loss of views. Clause 2.2 Building Design sets out number of design principles. Design principle (d) requires that Building design responds to ……. views. 46 In the controls, 2.2.5 specifically deals with views and requires, inter alia, that "new dual occupancy dwellings should be designed to minimise view loss to adjoining or adjacent properties". 47 In his reasons for decision, Commissioner Brown said: In this case, 649 Forest Road is not adjoining or adjacent to the subject site but separated by the property at 1A Tournay Street. Notwithstanding the relationship between 649 Forest Road and the subject site the potential loss of view is a real one and the considerations under DCP 11 are valid. 48 He also noted that: There was no dispute that the views from the rear of 649 Forest Road were views that required consideration under DCP 11. 49 The present proceedings were undertaken on the assumption by the parties that these DCP 11 provisions were relevant and appropriate. 50 However, I have concluded (as I indicated to the parties during the course of proceedings) that a strict interpretation of the words adjoining or adjacent properties means that the provisions of DCP 11 are not relevant - with this arising from consideration of the express terms of this element of the document itself. 51 However, I do consider that the concept of minimising the loss of views (as expressed by DCP 11) is merely a restating of an appropriate general tenet of sound architectural design and good town planning principle. I have determined the appeal on this basis.

The nature of the views 52 Commissioner Brown's factual findings concerning views are of relevance as the nonconforming roof has already been constructed and these views have been lost to the maximum extent envisaged by this application. 53 Commissioner Brown found that: They were long distance views to the Sutherland area as well as more local or district views. There was also no dispute that the impact on views resulted solely from the roof form above the second and third bedrooms of each dwelling.

The extent of the view loss 54 For the purposes of the present proceedings, I have also had the benefit of a photograph (Exhibit 4 - attached to this judgment) which enables an appreciation of the extent of view loss. As tendered, this Exhibit had a number of words crossed out and, for the purposes of this judgment, those words have been whited out by me. 55 It was agreed by the expert witnesses that the top of the pole marked with the arrow toward the centre of this photograph marked approximately the upper height of the ridgeline when viewed from the rear patio of 649 Forest Road. 56 The ridgeline as constructed extends to approximately the location of the front of the head of the man standing at the left of the photograph from whence it slopes toward the rear section of the building. The district and more distant views to the west of this man are entirely removed by the roof and those remaining to his east are diminished by its sloping section. The portion of the views which would be regained if the roof conformed with the restrictions imposed by a limit of RL33.90 would be those observable on the Exhibit from a little above the line of the southern brickwork depicted in the photograph. Although not able to be precisely delineated, nonetheless, an extensive portion of the obliterated views would be reinstated by a compliant roof line. 57 The impact on this portion of the views from an observer standing in the present kitchen of 649 Forest Road was broadly similar.

Process of assessment of the views 58 There are a number of general propositions concerning views which are relevant in these proceedings. 59 The first of these is that views from living areas and private open spaces off living areas are more valuable than from kitchens, and from kitchens more valuable than from bedrooms. 60 In present context, I note the evidence of Mr Jacobs concerning the possible relocation of the kitchen to the western end of the building. Although he expressed some uncertainty as to whether this would occur, I have undertaken my assessment in this appeal on the assumption that it would, in fact, so occur. I have reached my conclusions concerning view loss on this basis. 61 I accept Mr Jacobs' evidence that the screen enclosed rear patio is an important living area for his family. 62 In context of the location of the house on a busy main road with the addition of the more attractive (although southerly) aspect from the patio, it is not unreasonable to expect that this area would be used, significantly, for family activities consistent with his evidence. 63 Whilst the present configuration of the patio might not be amenable to year round use, there is no reason not to accept Mr Jacobs evidence as to the intensity of its use during the warmer months. 64 The view from the children's bedroom is a view which is filtered or obstructed by vegetation. These are less valuable than clear unobstructed views. 65 The view which would have been enjoyed from the present kitchen (future bedroom) would have been similar to that from the patio but, as a consequence of the higher perspective, including more of the district foreground. 66 However, because this view is assumed to be from a room which will be a bedroom, at some time in the near future, the impact on it has a lesser significance. 67 The assumed relocation of the kitchen to the western end of the building will leave that room with a view to the east filtered or obstructed by vegetation or the roof which is the subject of this application. 68 However, the kitchen will also enjoy some skyline views across the rear yard of the adjacent allotment fronting Forest Road and across the roof lines of the houses on the other side of Tournay Street. Although the extent of this view might be reduced by some future redevelopment of this adjacent site, this view could not be lost entirely. Similarly, because of the slope in Tournay Street, redevelopment of the houses to the west of that street, in the foreground of this view, would be unlikely to remove this aspect entirely.

Conclusions concerning view loss 69 Given these factual conclusions concerning the views from the four elements of the dwelling at 649 Forest Road, at its rear, two questions arise to be determined. 70 The first of these is whether or not the impact on any or all of these views is sufficient to warrant an assumption that minimisation of that loss would be an appropriate requirement under general environmental and planning considerations pursuant to s79C(b) and (d) of the EP&A Act? 71 If the answer to this question is "yes" with respect to any of the four view elements discussed above, the second question which arises is whether the desired development outcome, being a proposal which is within applicable numerical controls, can be achieved in a way that has less impact on views? 72 For the reasons which I have outlined above concerning each of the four built elements across the southern side of the dwelling at 649 Forest Road, I am satisfied that the view loss occasioned by the roof form which is the subject of this application is not unreasonable for the children's bedroom; for the bedroom which is proposed to be located in the present kitchen and for the kitchen when it is relocated to the western end of this side of the building. 73 However, in light of Mr Jacobs evidence concerning the use of the patio reinforced by the earlier evidence by the former owner concerning its use because of traffic noise, I am satisfied that the patio is, at least during the warmer months, a significant primary living area for the premises at 649 Forest Road. 74 I am also satisfied that the qualitative impact on this view is significant. A simple comparison between Exhibit 4 and the roof as constructed makes this conclusion compelling notwithstanding the opinion of Mr Standley that this view should be seen as part of a broader range of views which encompasses other elements such as the proximate vegetation to the east. Although these might well be pleasant, the expansive district and horizon perspective was undoubtably the single element which gave character and depth to the view from this patio. 75 I am therefore satisfied that the answer to the first question which I have posed above is "yes". 76 Having reached this conclusion, I turn to consider the issue of whether a complying development, if constructed in some other fashion, could have been achieved in a way which would have less impact on this view. 77 As noted earlier in these reasons, it was the uncontradicted evidence of Mr Standley that compliance with Commissioner Brown's condition 6 raised no issues of construction or engineering impossibility. I am, therefore, satisfied that the applicant in these proceedings could have constructed the roof in accordance with Commissioner Brown's condition 6. 78 Given the obvious and significant impact on the view from the rear patio of 649 Forest Road that the additional 1.9m of constructed roof height above RL33.90 has had, I am also satisfied that it is reasonable for the protection of the views from 649 Forest Road that the applicant should be required to reconstruct the roof in compliance with Commissioner Brown's condition 6.

Orders 79 For the reasons set out above, the orders of the Court are: 1. The appeal is dismissed; 2. Development application No 20010492 (AD 48/03) to modify the conditions of consent for the approved dual occupancy development at 1 Tournay Street, Peakhurst, is refused; and 3. The exhibits, with the exception of Exhibits 4 and A, may be returned.

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