COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA2021/1734 for demolition of existing dwelling and construction of a dwelling house and associated landscaping works (the Proposed Development) at 21 Headland Road, North Curl Curl legally described as Lot 107 in DP6143 (the Site).
This case is about views and whether the Proposed Development will result in reasonable view sharing between the Site and the property at 20 Headland Road, North Curl Curl (the Property) in accordance with the planning principle set out in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity). It is agreed that the Proposed Development does not have any additional impact other than the impact on the views from the Property.
The Site and the Property are located opposite each other on Headland Road, North Curl Curl where the Site is located to the south and down hill from the Property. In the Statement of Environmental Effects filed with the Class 1 Application, at page 21, the Site is described as having "approx. 2m fall from front to rear".
The Property's southern boundary fronts onto Headland Road and currently enjoys a number of views, but the view that will be impacted by the Proposed Development is part of the panoramic southern view from the Property, namely, from its front or southern boundary looking south. The Proposed Development seeks to gain and share part of that view to the south over towards Freshwater Beach, Manly Beach, Shelly Beach, St Patrick's Estate in Manly and the CBD city skyline view.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was been held on 23 and 24 February 2023. I presided over the conciliation conference which commenced on site with an inspection of the view from the residence of the objector at the Property and from the Site itself. The objectors gave evidence as to their concerns regarding view sharing in response to the photomontage reproduced below (Ex 4) at Figure 1.
Figure 1: Photomontage, Ex 4
The Conciliation conference was terminated on the second day and the hearing commenced at midday on 24 February 2023 with the Applicant advising of the intention to amend the development application to the effect of lowering the height of building by 15 cm and changing the pitch of the roof to 15 degrees.
The Respondent agreed to the Applicant amending the Proposed Development pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 and the following amended documents were filed with the Court on 24 February 2023:
1. Architectural drawings Rev Z (Rev Z Plans) (Ex H)
2. BASIX (Ex J)
An updated photomontage was not able to be prepared during the allocated hearing time in order to assess whether the impacts on views was satisfactory. The hearing was adjourned part heard to 28 April 2023.
The new updated photomontage based on the Rev Z Plans was prepared and filed by the Applicant on 5 April 2023 reproduced at Figure 2. (Ex L).
Figure 2: Photomontage lowering the height by 15 cm and changing the pitch of the roof to 15 degrees (Ex L)
The Respondent contends that the Proposed Development should be refused because it would have an unreasonable impact on views available from the dwelling at 20 Headland Road North Curl Curl. The Respondent submits that the three contentions in the Statement of Facts and Contentions (SOFAC) filed 14 November 2022 (Ex 3), prepared in relation to Rev W plans, all relate back to the impact of the Proposed Development on the view from the objector's house across the road at 20 Headland Road Curl Curl. To clarify, the Respondent submit, in opening, that the contention referring to bulk and scale of the design (D9 of the Warringah Development Control Plan 2011 (WDCP)) is to be dealt with on the question of view sharing and that bulk and scale is not a matter the council would put to the Court as a reason for refusal of the Proposed Development.
The Respondent's case is that the Proposed Development will not obtain a view from the Site and, as such, the view sharing principles cannot be assessed as there is no evidence or information available to the Court as to what views will be available to the Site when the Proposed Development is completed. Put another way, the Respondent's case is that if no view is obtained by the Proposed Development then there is no sharing of views and the appeal should be dismissed.
The objectors gave evidence during the on site inspection and they agreed that the planning controls provide for view sharing and they acknowledge that they 'do not own the view'. The objectors provided written submissions, included in the Respondent's Bundle of Documents, Ex 1, and gave oral evidence as to what they value most about their existing views. St Patrick's Cathedral, part of an iconic view, was identified by the objectors to be a valuable part of their view, especially at night. (Transcript page 35). It is agreed that the view of St Patrick's Cathedral is retained by the Proposed Development (Transcript page 35 and marked-up night photograph in Tab 7 of Ex 8).
The Applicant's case is that this matter falls squarely in the area of view sharing between the Site and the Property, to be assessed in accordance with Tenacity. That this is not a matter of view preservation (Transcript of Applicant's closing submissions, from page 70). The Applicant submits that the Proposed Development is consistent with the objectives of clause D7 of WDCP 2011 in that the Proposed Development does allow for the reasonable sharing of views and it has engaged an innovative design to improve the urban environment, and specifically to improve the reasonable sharing of views (Transcript, page 71 at [10]).
I am satisfied that the evidence, set out at [23] below, supports the submission that the Site will gain a view resulting from the Proposed Development and that it is appropriate for the Court to undertake the Tenacity four-step assessment in order to determine whether the view sharing is reasonable.
The Court had the benefit of expert evidence from Expert Town Planners Natalie Richter for the Respondent and John O'Grady for the Applicant, who prepared a Joint Expert Report (Ex 2) and gave oral evidence in relation to the amended Proposed Development.
Draft/Proposed Conditions of Consent were filed by the Applicant on 5 April 2023 (Ex F) and these conditions are agreed other than condition 22, a landscape condition, which I will come back to.
The parties provided assistance to the Court by way of submissions as follows:
1. Written submissions prepared by the Applicant dated 17 February 2023;
2. Written submissions prepared by the Respondent dated 28 April 2023 and February 2023 and the Respondent notes that both documents were prepared before the oral evidence from the experts in cross examination on 28 April 2023 (Transcript page 79 at [8]);
3. Oral submissions by the Applicant and the Respondent as recorded on the Transcript on 28 April 2023.
I will first set out a brief summary of the relevant statutory provisions and will then consider the evidence and provide my findings and conclusions from the four-step assessment in order to decide whether or not view sharing is reasonable.
In relation to the relevant statutory provisions, firstly, the aims of Warringah Local Environmental Plan 2011 include "1.2(2)(d)(i) too protect and enhance the residential use and amenity of existing residential environment." Secondly, the overriding objective of the WDCP is "to create and maintain a high level of environmental quality throughout Warringah" and provides that "development should result in an increased level of local amenity" (Ex 1, Tab 3).
There are two relevant parts within the WDCP being D7 Views and D9 Building Bulk. The WDCP includes, at D7, a requirement for development to provide "the reasonable sharing of views" and encourages "innovative design solutions to improve the urban environment" and at D9 Building Bulk there is the objective that development should "minimise the view impact of development when viewed from adjoining properties".
The D9 controls requires development on sloping land to minimise the height of the development. The Respondent submits that in relation to D9 Building Bulk in the WDCP, "this has been raised in the SOFAC and will be dealt with on the question of view sharing, so if view sharing is resolved, it's not a matter the council would put to Court that this would be a reason for refusal" (Transcript 28 April 2023, page 5 at par 5).
There is no dispute that Tenacity is relevant as D7 expressly includes a note that:
"Assessment of applications will refer to the Planning Principle established by the Land and Environment Court in Tenacity Consulting v Waringah [2004] NSWLEC 140."
The notion of view sharing is invoked "when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment" (Tenacity, at [25]).
It is relevant to note the following evidence relating to views:
1. Firstly, the Property enjoys an existing, relatively wide panoramic view (Transcript page 5 at [24], page 34 at [45], and Planning Report, Tab 4 page 2, Respondent's Bundle of Documents, Ex 1);
2. Secondly, the Site does not currently enjoy any, or any significant view. The existing view from the rear of the Site is depicted in a photo at Tab 2, Ex 8. (Mr O'Grady, Transcript page 14 and 22, Ms Richter, Transcript page 26);
3. Thirdly, the Proposed Development will achieve a view for the Site (Mr O'Grady, Transcript page 14 at [33], Ms Richter, Transcript page 26 at [25]-[33]).
I find that the Proposed Development seeks to "share that view" and that the Proposed Development will take some of the view away from the Property.
The matter for determination for the Court is whether the Proposed Development "shares" the view in accordance with the Planning Principle in Tenacity. In order to assist in the assessment of the Planning Principle, I reproduce the relevant paragraphs [25]-[29] from Tenacity as follows:
"[25]. … To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.
[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.
[2]
[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."
I will now undertake the four-step assessment from Tenacity in the context of the evidence available to the Court, including the oral and written evidence of experts, in order to set out my reasons for reaching the conclusion that the Proposed Development reasonably shares the view with the Property 20 Headland Road, Curl Curl and that development consent should be granted.
[3]
Assessment of the views from the Property to be affected
The first step in Tenacity at par [26] is the assessment of the views to be affected. The cross examination of the experts is recorded in the Transcript from pages 27 to 37. I summarise the evidence as to the existing views enjoyed by the Property as follows:
1. There are multiple views being to the north, south and east.
2. The southern view from the southern or front boundary of the Property is described as panoramic including water, land and water interface of Manly Beach, Freshwater Beach and Shelly Beach, iconic views of St Patrick's Estate, and iconic views of the CBD or iconic city skyline views and views of what is described as hinterland. (Transcript page 5 at [24], page 34 at [45], and Planning Report, Tab 4 page 2, Respondent's Bundle of Documents, Ex 1);
3. The north-eastern view from the Property is depicted in Ex M which includes water views and the iconic view towards Long Reef Headland and further as far as Booti National Park (Transcript page 37);
4. The Proposed Development will affect a part of the southern views. The photomontage (Ex L) captures the relevant part of that southern view.
[4]
From what part of the Property are the views obtained?
The second step in Tenacity at par [27] requires the Court to consider from what part of the Property the views are obtained.
The cross examination of the experts is recorded in the Transcript pages 37 to 41. I summarise the evidence as follows:
1. A small living area leads out to the relatively small southern balcony at the front of the Property. This southern view can be seen from a sitting and standing position (Transcript page 38). The objectors gave evidence that they spend a lot of time at and enjoy the view from this part of the Property. Some of the southern view can be seen from a standing position in the kitchen area but not from the kitchen itself, that is to say that a person standing outside of the kitchen but in the kitchen area if they were to look south through the smaller living room will see out the glazing towards the southern view (Transcript page 39).
2. The Property has a larger, formal dining and living area with a large outdoor eating deck area to the rear of the property which is oriented towards the north. The panoramic southern view is not achieved from this part of the Property.
3. The north-eastern view towards Long Reef (Ex M) is achieved from the same southern balcony at the front of the Property.
[5]
What is the extent of the impact of the Proposed Development on the view from the Property?
The third step in Tenacity at par [28] is to consider the extent of the impact of the Proposed Development on the view from the Property. The cross examination of the experts is recorded in the Transcript commencing at page 41. This is where there is less agreement between the parties.
I have considered the View Loss Assessment filed with the Class 1 Application at Tab 6 (Ex A) and the Respondent's "Comparison of Existing and Proposed Water Views" prepared by Victoria Allis dated 29 March 2023 at Tab 11 of the Respondent's Supplementary Bundle (Ex 8).
The Applicant submits that the Property which already has magnificent views from more than one perspective is losing a small amount of one of those views (Transcript 28 April 2023, page 77 at 5) or put another way, "the amount that will be lost is really quite small compared to the entire views that are available to 20 Headland Road, including as part of southern view, but also we take into account the northern view" (Transcript 28 April 2023, page 77 at 1).
The Respondent addresses this third step, the assessment of the extent of impact from the whole of the property, in written submissions handed up to the court on 28 April 2023 from page 6 and orally as recorded in the transcript from page 83. The Respondent relies on the document prepared by Victoria Ellis to support the submission that, quantitively, the Proposed Development will result in the loss of 73% of the water view to the south from the Property and that qualitatively the view loss is severe.
The Respondent provides the Court with a number of decisions of Commissioners to support the submission that Manly Beach is iconic and that the loss of the view of Manly Beach is severe. Although it may be trite to state, I acknowledge that these decisions may be illustrative but they are not binding on me. I also note that the tests applied by the Commissioners in those decisions were applied in the context of the statutory provisions of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) which requires an assessment of balancing the severity and nature of the obstruction of a view from a dwelling being such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order (s 14E(2), Trees Act). These decisions involved the application of various jurisdictional tests and assessments pursuant to the Trees Act and to that extent, the view sharing assessment is not strictly the same as set out in Tenacity.
For completeness, the decisions referred to by the Respondent are as follows:
1. Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107 ("Ridley"), a decision of Fakes C where he found that two of the trees were causing a "severe obstruction of a view from a dwelling" (at [37]), and was then required to consider a number of specific matters pursuant to s 14F of the Trees Act At [39], Fakes C makes the only mention of Tenacity as follows:
"[39] I consider that trees 1 and 3 do severely obstruct a view that is iconic, in that it is a view of an iconic feature of Sydney. Whilst the applicant has what would be considered to be expansive views of the harbour and the city, the loss of the view of the bridge from the three viewing points in the living area, is, in the circumstances, a severe loss of those views. In this matter I consider the majority of the principles discussed in Tenacity to be relevant."
1. Bowden & anor v Grayson & anor [2013] NSWLEC 1161 ("Bowden"), a decision of Galway AC also in relation to the Trees Act and does not mention Tenacity other than obliquely by referring to Ridley at [37] states as follows:
"[37] I accept that the Harbour Bridge is an iconic view, and that views of it and of the harbour are of high value. Following on from Ridley, I accept that such an iconic view can be considered separately from the remainder of the view. Considering the applicants' submissions along with my own observations, I am satisfied that the obstruction of views from the applicants' dwelling is possibly severe, meeting the jurisdictional test at s 14E(2)(a). However, consideration of the matters at s 14F is required before I can be satisfied of the further jurisdictional test at s 14E(2)(b)."
1. Galway AC also noted in Bowden that the view of the Harbour Bridge was not an existing view and that the removal or pruning of trees was being sought to gain that view. Ultimately, the application was dismissed by Galway AC.
2. White v Baird [2014] NSWLEC 1189, Galway AC deals with views to Sydney Harbour and undertook an assessment.
The Applicant submits that both Ridley and Bowden relate to an obstruction of a view of the Harbour Bridge and that
"a specific building of an iconic view is not necessarily comparable to a location as a view, but in any event, each case revolves on the merits and circumstances of the particular case … in this particular case you would not have that incredibly narrow focus on just one element of the view, you'd have the focus on the entirety of the panoramic view. There might be other circumstances in which it is more appropriate to do that, but in my submission it is not appropriate in this circumstance, and the fact that another merit case with a completely different set of circumstances doesn't negate that submission in any way." (Transcript 28 April 2023 page 87 at 40)
I accept that the loss of view is severe for that portion of the otherwise panoramic view to the south from the Property as depicted in the photomontage (Ex L), however, the decisions summarised above at [36] do not assist me in the assessment of reasonable view sharing by the Proposed Development. In that regard, the evidence does not support the submission by the Respondent that Manly Beach in and of itself is an iconic view which can or should be considered separately from the remainder of the otherwise panoramic view enjoyed by the Property. Part of my reasoning is that the comparative iconic building in this matter could be considered to be St Patrick's Estate, which was expressly referenced by the objectors and the view to which is being retained by the Proposed Development. The other part of my reasoning goes back to the language used in Tenacity in relation to the third step which 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". In that regard the Property will continue to enjoy significant views.
[6]
Is the Proposal causing the impact reasonable?
The fourth and final step in Tenacity at par [29] is to then assess the reasonableness of the proposal that is causing the impact. The parties disagree as to whether the proposal is reasonable.
The Proposed Development is a numerically compliant development with a slight exceedance of the DCP building envelope as depicted in Drawing 20189-25 dated 21 February 2023 Rev Z, Sheet 5 Front/North Elevation (Ex H). Ms Richter's evidence is that this building envelope exceedance does not of itself impact on the view loss (Transcript page 67).
The Applicant submits that the Proposed Development is than more reasonable than a non-compliant proposal. The Respondent does not make any submission to contradict the Applicant's submission that there were significant efforts to address view sharing (Transcript page 73). I am satisfied that this minor non-compliance does not have any impact on the views from the Property and that of itself is not sufficient to render the Proposed Development to be unreasonable for the purposes of the Tenacity view sharing assessment.
The next question to be answered is whether a more skilful design could provide the Applicant with the same development potential and amenity and reduce the impact on the view of the Property.
The Applicant submits, and I accept that the design of the Proposed Development is skilful because design steps have been taken to minimise the view impact on the Property. These steps, taken by the Applicant during the development application process and during the proceedings, are summarised in the Transcript at pages 7 and 8.
1. Firstly, a flat roof was originally proposed and the roof form was changed to an 18 degree pitched roof with a raked ceiling and the floor to ceiling height reduced to 2.6m (Ex C, Tab 5).
2. Secondly, the floor plan was 'flipped' in order to allow an increased setback to the eastern side boundary which was also in order to preserve a portion of the southern view from the Property (Ex C, Tab 6). This change led to the building envelope non-compliance described at [40]. I have referred to the letter from Watermark dated 15 June 2022 (Ex C, Tab 6) which also describes a change to the roof pitch from 18 degrees to 15 degrees and concludes that together with the previous reduction in floor to ceiling heights "the design now achieves a height of 8.06m, well below the 8.5m height limit."
3. Thirdly, and lastly, is the change referred to at the beginning of this judgment, namely the lowering of the roof by 150mm and a change of the roof ridge angle to 15 degrees resulting in the Rev Z Plans (Ex H).
Ms Richter agrees that retention of amenity is relevant to skilful design and that the ability to maintain reasonable floor to ceiling heights and services such as air conditioning are amenity.
I conclude that the Applicant has taken design changes in order to achieve a skilful design to minimise the view impact on the Property while providing the same development potential and amenity. Accordingly, I find that the view impact is considered acceptable and the view sharing reasonable.
As a result of my findings set out above, I conclude that development consent can be granted for the Proposed Development.
[7]
Conditions of consent
I now return to the Draft/Proposed Conditions of Consent (Ex F) and the contested condition 22. The Respondent seeks additional wording which I have included the Respondent wording in italics whereas it appears in red struck out text in Ex F:
"22. Landscape Completion
Landscaping is to be implemented in accordance with the approved Landscape Plan., and inclusive of the following conditions:
i) one (1) native small tree capable of attaining at least 6 metres in height at maturity shall be planted within the front setback, selected from Northern Beaches Council's Native Plant Species Guide - Curl Curl Ward, or Council's Tree Guide,
ii) all tree planting shall be a minimum planting size of 75 litres, and shall meet the requirements of Natspec - Specifying Trees,
iii) all trees shall be planted into a prepared planting hole 1m x 1m x 600mm depth, backfilled with a sandy loam mix or approved similar, mulched to 75mm depth minimum and maintained, and watered until established, and shall be located at least 5.0 metres from buildings, 2.0 metres from structures including walling and paths, and at least 1.5 metres from common boundaries,
iv) mass shrub planting shall be installed across the front boundary capable of attaining at least 1 metre height, planted at no more than a 900mm interval, of a minimum 200mm container size at planting, and shall be in a garden bed prepared with a suitable free draining soil mix and minimum 50mm depth of mulch.
Prior to the issue of an Occupation Certificate, details shall be submitted to the Certifying Authority, certifying that the landscape works have been completed in accordance with any conditions of consent.
Reason: Environmental amenity.
Note: Please consider registering your new tree through the link below to be counted as part of the NSW State Governments 5 Million trees initiative. https://5milliontrees.nsw.gov.au/"
The Landscape Plan referred to in condition 22 is specified in the table in condition 1 as "20189-22 Sheet 9 10 June 2022 Icon Homes". I note that the landscape plan dated 10 June 2022 is the Issue W landscape plan filed with the Class 1 Application at Tab 3 (Ex A) whereas the landscape plan relied on by the Applicant is the Issue Z drawing dated 21 February 2023 (Ex H) which I reproduce: below at Figure 3.. There are no apparent changes to the landscape pan between Issue W and Issue Z.
Figure 3: Landscape Plan Drawing number 20189-25 21 February 2023 Icon Homes (Ex H)
The Respondent explains that "the only issue between the parties is that council wants the red deleted to be in, and the applicant wants it out." (Transcript 28 April 2023, page 1 at par 30). The Respondent's written submissions handed up to the court on 28 April 2023 are silent in relation to condition 22 and apart from the statement from the Respondent quoted above, neither party made any further submission regarding condition 22.
The Court has not heard any landscape or arboricultural evidence and the SOFAC (Ex 3) does not raise any contention regarding landscaping.
In order to assist me in determining the final wording of condition 22 I have had regard to the Statement of Environmental Effects (SEE) prepared by Watermark Planning dated August 2021 and filed with the Class 1 Application under Tab 11 (Ex A). At page 20 of the SEE under the heading "Landscaped open space and bushland setting" appears the following text which is supported in the Numerical Control Table at page 24 of the SEE:
"The DCP requires 40% landscaped area on the site. The development proposes a compliant landscape area or 182.88m2 or 40.05%".
In the absence of any reason or contention for the additional wording sought by the Respondent in condition 22 and in the context of the Proposed Development otherwise complying with the numerical landscaping controls as set out in the SEE, I conclude that the Applicant's wording is appropriate. In addition, the approved Landscape Plan in the table in condition 1 will be updated in the Conditions of Consent at Annexure A to reflect the Rev Z drawing and will read as follows:
"20189-25 Sheet 9, Issue Z 21 February 2023 Icon Homes"
Finally, the year in the date of the Architectural Plans in the Draft/Proposed Conditions of Consent appears to be a typographical error and will be corrected from 21 February 2022 to 21 February 2023.
[8]
Orders:
The Court orders:
1. The appeal is upheld.
2. Development application No DA2021/1734 for demolition of existing dwelling and construction of a dwelling house and associated landscaping works at 21 Headland Road, Curl Curl legally described as Lot 107 in DP6143 is determined by granting consent to the application subject to the conditions in Annexure A.
3. The exhibits are retained.
[9]
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: 27 July 2023