View loss
42All experts agree that the views available from the site and the three adjacent sites referred to in the council's contentions are iconic and include views of the Sydney CBD skyline, Opera House, Harbour Bridge, North Shore and panoramic harbour views. The extent of those views varies at each property and within individual rooms of those properties.
43The town planning experts have considered the impacts of the application on each adjacent property individually and agree that there is no unreasonable view loss from No 8.
44With regard to No 18 they agree that there is no unreasonable view loss from the ground floor, that the primary views, directly to the west, will be retained, that the view loss from No 18 is across one side boundary where the proposed development complies with the council's height control and that any consent granted should include a condition that limits the height of any landscaping within the access corridor of the site to a height that does not obstruct the primary views from No 18. Ms Francis considers that an alternate design may reduce the view loss experienced to No 18 and Mr Moody considers because of the areas of agreement, an alternate design is not necessary.
45There is agreement between the planners that there is no unreasonable view loss to the lower ground level of No 20 and that that dwelling currently enjoys panoramic views from 2 levels, being the ground and first floor levels. That view is enjoyed from a number of internal areas as well as balconies. They agree that the view loss from part of the ground floor level of No 20 is as a result of part of the proposed eastern and western wall of the family room projecting into the rear (northern) setback zone and the height of the family room extension however they also agree that strict compliance with that control is not necessary in the circumstance but disagree as to the extent of the required rear setback.
46Both planners acknowledge that there will be a gain of the Harbour Bridge, CBD skyline and water from part of the ground floor living room from a standing position. That is described as a "good outcome" by Ms Francis and "an excellent outcome" by Mr Moody. Both agreed that is was very unusual for a development proposal to result in an adjoining property gaining views of such iconic elements.
47Whilst there is view gain to parts of the ground floor, the town planners agree that CBD skyline and land/water interface including views of Clark Island would be lost from part of the first floor level living/sitting room. Both agree that the height of the building, which, as it addresses No 20, is considerably less than the height plane contemplated by the council's planning controls. Ms Francis says that the view issue is in relation to the setbacks from the rear boundary. Mr Moody considers the setbacks to be appropriate, particularly when considered in relation to the location of the existing building.
48Ms Francis says that it is not appropriate to consider the provision of a view of the Harbour Bridge from the ground floor living room in isolation and that it is important to consider the context of the view enjoyed from the property as a whole and carries out a comprehensive assessment of the impacts of the proposed dwelling on views available from No 20. She concludes that there may be alternate locations where the bulk, mass and height of the building could be located to mitigate view loss and where views can also be achieved for the site however defers to the urban design experts to assess whether a more skilful design would achieve an improved outcome in terms of view loss.
49Mr Moody conducted a similar assessment of the impacts of the application from individual rooms within No 20 and the outdoor spaces of that residence and concluded that the application represents a sensitive and skilful response to the principal of "reasonable sharing of views".
50The urban designers, in accordance with the Court's earlier directions, undertook an analysis of various design options to determine whether a more skilful design could provide the applicants with the same development potential and amenity and reduce the impact on views from neighbours.
51The series of drawings prepared by each expert together with the photomontages tendered in the proceedings provided the Court with a detailed understanding of the impacts of the application.
52The experts agree that there is no apparent alternative solution or superior design concept that can achieve for the applicants all of the access to views and design amenity they seek while at the same time protecting all existing views for the two affected adjoining properties, and correctly, they say, that such an outcome is not the purpose of the exercise they have been set.
53In considering the exercise, they identified two primary design strategies that could result in an amended design that achieves a more acceptable balance of view sharing and amenity outcomes for both the applicants and objectors however they do not agree as to the extent to which the principles should be applied or whether other strategies are also available or should be applied.
54The first and primary strategy involved reducing the height of the two-storey portion of the proposed development. Both experts agree that he ground floor of the dwelling could be reduced by 115mm. The second proposed shifting the entire building in a generally southerly direction to between 600mm and 900mm of the east/west boundary, i.e. the boundary adjoining the swimming pool area of No 18.
55Ms Morrish explored a series of options addressing both including the most significant proposal to reduce the building height by 575mm whilst also considering a number of interim measures. She says that the reduced height would reduce view loss to No 20 and have the side benefit of reducing the extent of built form that impact on the view from No 18. In relation to the shifting of the building to the south, she considers that this would maintain almost the entirety of the existing view enjoyed from the ground level of No 20 and still allows the same amenity to the site. This option however did not consider the impacts of such a proposal on the views of No 18.
56Mr Vickas considered three options, each of which involved a reduction in height of the two-storey component of the proposed dwelling. These ranged from 1.23m to 265mm. In addition, he considered a third strategy, which involved both the shifting of the building to the south and also increasing the setback of the single storey component. He says that this would ensure that the ground floor dining room and terrace of No20 would retain views of the Opera House and adjoining CBD, along with the sitting room that would retain views to the northwest without unduly impinging on the proposed development.
57The above considerations are the findings of the work undertaken by the urban design experts in accordance with the Court's direction to only address the 4 th test in Tenacity. When asked to consider the impacts of the proposal more holistically, Ms Morrish said that she considers the view impacts resulting from the plans before the Court are reasonable and that the changes recommended in the report are unnecessary. That is because the primary impact has been caused by that portion of the development that is compliant with the council's height control and she has considered the other development consent that applies to the site which is operative and, in her opinion, significantly affects the views.
58Mr Vickas takes the contrary view and says the impact on views is unreasonable however also said that a proposal that gave back views could be considered more equitable, particularly if those views were to the Opera House or Harbour Bridge. He also acknowledged that he had misinterpreted the location of a screen wall on the upper level and that allowing for its correct location, the impact on view loss would not be as severe however, he says that, as the application does not comply fully with the council's controls, the impacts on view loss could not be considered appropriate.