Moorgate Mosman Pty Ltd v Mosman Municipal Council - [2023] NSWLEC 1188 - NSWLEC 2023 case summary — Zoe

NSWNSWLEC

Moorgate Mosman Pty Ltd v Mosman Municipal Council

[2023] NSWLEC 1188

Land and Environment Court (NSW)|2023-01-25

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2023-01-25

Catchwords

[2018] NSWLEC 118 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80
[2005] NSWLEC 191 SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 Tenacity Consulting v Warringah Council (2004) 134 LGERA 23
[2004] NSWLEC 140 Wehbe v Pittwater Council (2007) 156 LGERA 446

Source

Original judgment source is linked above.

Catchwords

[2018] NSWLEC 118 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80[2005] NSWLEC 191 SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 Tenacity Consulting v Warringah Council (2004) 134 LGERA 23[2004] NSWLEC 140 Wehbe v Pittwater Council (2007) 156 LGERA 446

Judgment (49 paragraphs)

[1]

Judgment

COMMISSIONER: The Applicant, Moorgate Mosman Pty Ltd is the owner of two adjoining lots known as 187-189 Spit Road, Mosman (Lots 11-12 in DP 580452) and proposes to redevelop the sites as a residential flat building containing six units over four storeys. The Applicant appeals, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act) the deemed refusal of their development applications by Mosman Municipal Council (the Respondent).
The development application seeks consent for:

Demolition of the existing dwelling houses and structures on the site,
Construction of a four storey residential flat building comprising six units,
Excavation and construction of basement carparking,
At grade access from Spit Road to a car lift via Level 2,
Associated landscaping, civil works and communal open space areas. (Exhibit 1)

The matter was listed for conciliation on 30 September 2022 pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was terminated on the same day. Subsequently the matter was listed for hearing.

[4]

Public submissions

The development application was notified by the Respondent from 5 May to 2 June 2022 in accordance with the public notification process specified in the Mosman Community Participation Plan 2020. The main issues raised in the submission can be summarised as:

That the development contravenes the objectives of the R3 Medium Density Residential zone,
That the departures from the planning controls should not be supported and are excessive.
That the written requests prepared by the Applicant in support of the variations sought to height, wall height and FSR are not adequate and should not be accepted by the Court.
The development application does not comply with the requirements of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65), the Apartment Design Guide (ADG) and does not represent good urban design
The development does not comply with the setback and landscaped area controls in DCP 2012.
The height, scale and bulk of the development considered in terms of the siting of the proposed built form and its surrounding context is uncharacteristic.
The development will detrimentally impact on public and private views.
The increased density will impact the availability of on street parking.
During construction, the development will detrimentally impact on neighbours with dust, noise and deliveries etc.
The design of the proposed development results in unacceptable view loss from 200, 202 and 204 Spit Road, a number of the units within 26 Parriwi Road and from the public domain.
The view loss is made more unreasonable as it results from a non-compliant building form.
That height poles should be erected by the Applicant to allow a better understanding of the likely impact to views from adjoining properties and the public domain.
That the proximity of the development to its southern boundary, and the height of the building, results in unacceptable overshadowing, privacy impacts and will be visually overbearing from the living and private open spaces of Unit 1, 3 and 5.
That the proposed development will result in increased stormwater runoff to downstream properties and fails to manage stormwater appropriately.
If the onsite provision of parking is insufficient, the unmet parking demand will result in impacts on the availability of parking in nearby streets including Central Avenue.
Any landscaping proposed in the front setback or as street trees should be limited to preserve existing views of residents of Spit Road.
The potential for building works to damage existing cliff face and rock outcrops on adjoining properties.
The potential for the car lift proposed to cause vehicles to queue on Spit Road.
That the height, bulk, and scale of the proposed development is incompatible with the character of existing buildings within proximity of the site and fails to maintain the desired dominance of landscape over built form.

At the commencement of the hearing a member of the public addressed the Court onsite detailing their concerns with the development application and providing access to their properties for the Court to view their stated concerns regarding view loss, overshadowing, privacy impacts, and the relationship of the proposed building to existing residences. In determining the development application, I have read and considered the submissions received by the public as required by s 4.15(1)(d) of the EPA Act.

[5]

Experts

The Court was assisted in the proceedings by town planning experts, Steve Layman for the Respondent and Andrew Cowan for the Applicant. The joint reports of these experts were tendered as Exhibit 3 in the proceedings. In addition to their joint report the experts were called for cross examination. The planning experts provide contrasting evidence in relation to:

The acceptability of the view loss impacts on neighbouring properties arising from the development.
Whether the cl 4.6 objections for height, wall height and FSR should be upheld by the Court.
Whether the provision of communal open space is acceptable.

Traffic experts Michael Palamara for the Respondent and Bernard Lo for the Applicant prepared a joint report which was tendered as Exhibit 4. Their joint report firstly, addressed concerns raised by the Respondent in relation to the proposed driveway location and the safety of traffic movements and secondly the proposed parking layout. They note their agreement that both contentions are resolved by the amended plans, subject to imposition of agreed conditions.
Further, the traffic experts addressed the contention of the Respondent that the proposed development provides excessive parking. They note their agreed assessment that: "It is accepted that: i. The specified parking rates for the developments within 200 metres of Spit Road within the MRDCP Section 1.5 Aim of this Plan are to "limit potential for additional traffic on the road system and to reduce car dependence by encouraging public transport, cycling and walking" ii. The redesign in conjunction with the overhead signal management systems improving vehicle manoeuvrability [sic] within the basement satisfies the intent of the: a. MRDCP O12.P27(i) the adequacy of the queuing area for vehicles (queuing must be managed without causing disruption to internal vehicle circulation paths or the external road system), and b. MRDCP O12.P27(ii) the adequacy of the dimensions of the facility to store a range of vehicles, (i.e. the facility is capable of storing the 100th percentile vehicle, e.g. small sports cars to large 4WDs) The parking supply has been reduced from 14 spaces to 11 spaces (9 for residents and 2 for visitors). This is 1 space more than that documented in the Particular. However, BL and MP agree that this departure is relatively minor and is acceptable. The surplus GFA will be required to be treated in accordance with the DCP controls." (Exhibit 4)
On the basis of their agreement, the traffic experts were excused from oral evidence.

[6]

Jurisdictional prerequisites

Prior to considering the contentions raised by the Respondent in support of the refusal of the development application or undertaking an assessment of the merit of the development application, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v Parramatta City Council [2020] NSWLEC 135 at [16].
The development applications were lodged with the consent of the respective owners of the land as required by cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). Despite the commencement of Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021), the EPA Regulation continues to apply to the development application pursuant to s 3 of Sch 6 of the EPA Regulation 2021, as it was submitted prior to 1 March 2022.
Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) nominates matters in relation to remediation of land that must be considered before the development application is determined. The development application is accompanied by a preliminary Site Investigation Report which concludes that the site is suitable for the proposed development and residential use, subject to the recommendations of the report. Compliance with the report is a requirement of the draft conditions of consent. In determining the development, I have given consideration to whether the subject site is contaminated as required by s 4.6 of SEPP RH. The statement of environmental effects notes that the sites have been utilised historically for residential use and that the development application will maintain residential use of the site. I have considered whether the land is contaminated in accordance with s 4.6 SEPP RH, and I accept that the site will be suitable for the proposed development.
Where an application relates to residential apartment development, cl 50(1A) of the EPA Regulation requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c) of the SEPP 65. I rely on the statement completed by the architect Amit Julka (registration: 10002) to this effect.
Consistent with cl 28 of SEPP 65, I have taken into consideration the design quality of the development when evaluated against the Design Quality Principles at Sch 1 of SEPP 65, and the ADG as required by cl 28(2) of SEPP 65.
Further, cl 30(2) of SEPP 65 requires the consent authority, or the Court on appeal, to be satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles, and the objectives specified in the ADG for the relevant design criteria. On the basis of the architect's statement demonstrating how the objectives of Parts 3 and 4 of the ADG have been achieved, I am satisfied that adequate regard has been given to the design principles and the provisions of the ADG.
Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation, the development is BASIX affected development. The development application is accompanied by the required BASIX certificate.
State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the development as it has frontage to a classified road (Spit Road). No alternative access is available to the site. The development application is accompanied by a Traffic Impact Assessment and was referred to Transport for NSW who provided their concurrence pursuant to s 2.119 of SEPP TI. Further, the development application is accompanied by an Acoustic Assessment which details recommended acoustic treatments for the proposed residential development to ensure the nominated acoustic criteria are met. Pursuant to s 2.119 of SEPP TI I am satisfied on the evidence that: firstly, it is not practicable for the development to gain vehicular access other than by the classified road; secondly, that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the development; and the development includes measures to ameliorate potential traffic noise or vehicle emissions. I am satisfied that the precondition at s 2.119 of SEPP TI is met on the basis of the expert evidence, the concurrence of Transport for NSW and the Acoustic report.
The site is zoned R3 Medium Density under the provisions of the LEP 2012. Development for the purpose of a residential flat building is a use permitted with consent in the zone. The objectives of the 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 provide for housing that is compatible with the desired future character of the area in terms of bulk, height and scale. • To encourage residential development that has regard to local amenity and, in particular, public and private views.
In determining the development application, I have given consideration to the zone objectives, and in particular those directed to the compatibility of development with desired future character and the impact on public and private views. Consistent with the reasoning and findings detailed later in the judgment I find none warrant the refusal of the development application.
Clause 4.1 Minimum Subdivision Lot size requires a minimum lot size of 700m² which is met by the site area of the development application which is 1041.2m².
The development relies on a variation to the applicable Height of Building standard at cl 4.3 of LEP 2012. Applying cl 4.3 the maximum height limit applicable to the site is 8.5m. The development proposes a maximum height of 9.4m. The Applicant's request to vary the development standard is discussed commencing at [37].
Clause 4.3A of LEP 2012 applies to all residentially zoned land where the applicable maximum building height is 8.5m. It provides that a building on land where the clause applies must not have a wall height, at any point of the building (other than at a chimney, gable end or dormer window), that exceeds 7.2m. The development proposes a maximum wall height of 9.4m. The Applicant's request to vary the development standard is discussed commencing at [137].
For the purposes of cl 4.3A, wall height is defined as: wall height means the vertical distance from ground level (existing) to - (b) the underside of the eaves at the wall line, parapet or flat roof, whichever is highest, or (a) for a building with a mansard roof - 1.8m above the finished floor level of the roof space.
The site is subject to a maximum FSR of 0.7:1 pursuant to cl 4.4 of LEP 2012. The development proposes an FSR of 0.94:1. The Applicant's request to vary the development standard is discussed commencing at [162].
The site is identified on the LEP 2012 Scenic Protection Map. As such, cl 6.4 Scenic Protection applies. It states at (3): (3) Development consent must not be granted to any development on land to which this clause applies unless the consent authority is satisfied that - (a) measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour, and (b) the development will maintain the existing natural landscape and landform.
The satisfaction of cl 6.4(3) of LEP 2012 is not contended by the Respondent. Notwithstanding, I am satisfied that the location and design of the development, in particular its modulation of form and choice of materials, will minimise the visual impact of the development from any viewing location in Sydney Harbour. Further, I am satisfied the development does not seek to alter the landscape or landform.
Clause 6.6, Landscaped Areas states at subcl (3) that a consent authority may refuse consent where a specified minimum proportion of site area is not provided as landscaped area. The applicable standard is 40% for the subject site. This provision is discussed commencing at [201].
The development application proposes earthworks, as such in deciding to grant consent, the consent authority must consider the following matters at subcl (3) of cl 6.7 in LEP 2012: (3) In deciding whether to grant development consent for earthworks, the consent authority must consider the following matters - (a) the likely disruption of, and detrimental effect, if any, on - (i) existing drainage patterns and soil stability in the locality, and (ii) the natural features of, and vegetation on, the land and adjoining land, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of fill material and the destination of excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impact on, a watercourse, drinking water catchment or environmentally sensitive area, (h) appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
In determining the development application, I have given consideration to the matters at subcl (3) and I am not persuaded that any warrant refusal of the application.

[7]

Should the variation to the maximum height standard be upheld?

The proposed residential flat building breaches the maximum height limit by some 900mm, the extent of which is indicated in the architectural plans.
The Applicant's written request describes the genesis of the exceedance as follows: "In the circumstances of the case, it is noted the proposed departure is a direct urban design response to the significant cliff constraint from Spit Road. As detailed within the accompanying Geotechnical Assessment at Appendix 8, the Site has previously undergone deep excavation, where it appears the rock face within the site was significantly reprofiled. Additionally, by virtue the Site has only one (1) primary access from Spit Road." (Exhibit B)
It is well established that the state of satisfaction required by cl 4.6(4)(a) of LEP 2012 mandates that the Court, in exercising the functions of the consent authority, must in fact be satisfied of the matters in cl 4.6(3), and that the state of satisfaction must be reached by reference to the written request.
Clause 4.6(4)(a)(ii) of LEP 2012 requires consideration of the objectives of the zone and the objectives of the relevant development standards.
The objectives of the R3 High Density Residential zone are extracted at [25]. The consistency of the development with the zone objectives is addressed at [59] - [126].
The objectives of the height standard at cl 4.3 of LEP 2012 are: (1) The objectives of this clause are as follows - (a) for development on land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone C4 Environmental Living - (i) to share public and private views, and (ii) to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores, and (iii) to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form, and (iv) to minimise the adverse effects of bulk and scale of buildings, … (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
In the joint expert report (Exhibit 3), Mr Layman argues that the written request seeking to vary the height standard should not be upheld by the Court. His reasoning can be summarised as follows: 1. Firstly, that the written request does not establish that the development is consistent with the objectives of the height standard as the proposal does not reasonably share public and private views. I note his specific evidence on this matter is summarised later in the judgment. 2. Secondly, the written request does not establish that the development is consistent with the character compatibility objectives of the height standard in terms of FSR, maximum building height, number of storeys and wall height. I note his specific evidence on this matter is summarised at [112] - [113], [116].

[10]

Are the environmental planning grounds sufficient to justify the contravention.

Clause 4.6(3)(b) requires the consent authority to consider a written request from the Applicant that seeks to justify the variation by demonstrating there are sufficient environmental planning grounds.
The written request seeks to justify the contravention of the height development standard on grounds that it describes as environmental planning grounds. Those grounds can be summarised as follows.

That by virtue of the orientation of the site additional overshadowing will be negligible.
That the proposal is of a reduced impact on neighbours (overshadowing, privacy and view loss) when compared with a scheme that occupied a compliant built envelope. The request states: "Furthermore, given the proposal provides for an increased setback of 6 metres for Level 2 at the southern boundary, the impacts of overshadowing and visual impacts are improved to the sensitive northern boundary of 26 Parriwi Road. Additionally, it is noted that an improved view sharing outcome is achieved from 26 Parriwi Road, 200 Spit Road, 202 Spit Road and 204 Spit Road (in comparison to a compliant 8.5m height across the site)". (Exhibit B)
The landscape roof, recessed at a six metre setback to the adjoining property, firstly softens the visual impact of the development and secondly provides a view corridor for properties on the western side of Spit Road. The decision in the design of the building to provide a recessed section to the southern boundary results in an improved view sharing outcome and reduced visual impact for 26 Parriwi Road in comparison to a compliant 8.5m height across the site.
The proposed height provides greater consistency with the streetscape than would be achieved with a compliant scheme (on the same reasoning as detailed at [45]). Such an environmental planning ground is consistent with the reasoning of the Court in SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 ("SJD DB2") at [96].

[11]

Findings

In Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ("Initial Action") at [24], Preston CJ stated, that the "focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds". Further, he stated, "the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]".
On this basis the elements for consideration in determining whether I am satisfied that there are sufficient environmental planning grounds are:

firstly, whether the grounds advanced are environmental planning grounds,
secondly, whether the environmental planning grounds advanced in the written request focus on the aspect or element of the development that contravenes the standard, or in the alternative, promote the benefits that will be realised by the development as a whole,
thirdly, I must be satisfied that the environmental planning grounds are "sufficient" to justify, or inform, the aspect or element that contravenes the development standard.

I am satisfied that the two grounds advanced in the written request meet these requirements. The first ground advanced is that the exceedance of the height standard provides greater consistency with the streetscape. Secondly, that the relocation of building mass into the height of the building and away from the boundary to create a view corridor and reduce impacts to neighbouring properties, are environmental planning grounds.
In relation to the first, I accept that achieving consistency in the streetscape and fit with character is an environmental planning ground: SJD DB2 at [90]. In relation to the second, the avoidance of impacts is an environmental planning ground, as it promotes "good design and amenity of the built environment", one of the objectives of the EPA Act.
I am satisfied that both the first and second grounds advanced focus on the element of the development which contravenes the standard (its height) and are sufficient to justify the contravention. I am persuaded that the streetscape benefit and the reduced view impact arising from the variation to the height standard are both quantitatively and qualitatively sufficient to justify the contravention. I accept the reasoning of the request that a development that was compliant with the height standard would in this case firstly, result in a height that was incongruous with the streetscape and secondly, would result in greater loss of views from adjoining properties.
I find I can be satisfied that the Applicant's written request adequately demonstrates the matters in cll 4.6(3)(a) and 4.6(4)(a)(i) of LEP 2012.

[12]

Is the development consistent with the objectives of the zone?

Subclause (4) of cl 4.6 requires the consent authority to be satisfied of two matters. Firstly, that the applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3), and secondly that the proposed development will be in the public interest because it is consistent with the objectives of the standard (in this case the maximum height) and the objectives of the zone (in this case the R3 Medium Density Residential zone).
Based on my findings at [46] and [56] I can be satisfied that the Applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3) of cl 4.6 in LEP 2012.
In relation to the second test at subcl (4), the objectives of the R3 Medium Density Residential zone are extracted at [25]. The written request argues that the proposed development is consistent with these objectives as follows: To provide for the housing needs of the community within a medium density residential environment "The proposed development assists in meeting the housing targets of the Mosman Housing Strategy. Furthermore, the housing strategy found that R3 zones in Mosman have the capacity to accommodate 1,886 additional dwellings. The proposed RFB therefore assists in realising unused capacity with R3 zone. The Site in particular is well serviced by public transport, situated along a classified road and within proximity to local shops and facilities. Accordingly, it is found that the development is considered to meet the housing needs of the community within the medium density environment." (Exhibit B) To provide a variety of housing types within a medium density residential environment "The development provides for a RFB development within the medium density residential environment. As provided within the Mosman Housing Strategy, unused capacity of R3 Medium Density Residential Land is realised by Council. Accordingly, the proposed development provides a housing type which promotes the orderly and economic use of land." (Exhibit B) To enable land uses that provide facilities and services to meet the day to day needs of residents. "The proposed development does not relate to a non residential land use. Accordingly, this is a neutral objective that is not relevant to the proposal." (Exhibit B) To provide for housing that is compatible with the desired future character of the area in terms of bulk, height and scale. "The proposed development presents as one (1) storey and is consistent with the streetscape of Spit Road. The built form of the development is considered to be an appropriate design response given strict compliance with the control would result in a development which presents to Spit Road as less than one (1) storey and is out of character with adjoining properties. Accordingly, the built form of the development is considered to be in keeping with the surrounding context." (Exhibit B) To encourage residential development that has regard to local amenity and in particular, public and private views. "This variation request demonstrates that the development has minimised its impact to surrounding development including views from 200-204 Spit Road and 26 Parriwi Road. It [is] noted that a compliant building envelope results in an outcome of greater visual intrusion than the proposal (refer to the updated view analysis at Appendix 22). Consistent with the decision of SJD, in the circumstances of the case and as a result of the design responses explored it can be demonstrated that the development has sought to protect views in the first instance and has regard to local amenity and public interest." (Exhibit B)
Relevant to the compatibility of the proposed development with the zone objectives, the Respondent contends that the development has unacceptable adverse view impacts. It is therefore appropriate to summarise in this portion of the judgment the findings of the visual impact assessment prepared by the Applicant and contrasting expert evidence on the acceptability of the view impacts arising from the development.

[13]

The Visual Impact Assessment

The Applicant relies on a View Impact Analysis (VIA) prepared by Deneb Design (Exhibit 2). The VIA provides a comparative visual analysis of the existing views from surrounding properties and public locations to Dobroyd Head/Clontarf foreshore against firstly, the impact from a built form massing model of the planning controls; and secondly, the impact arising from the proposed development. The VIA was also the subject of expert evidence.
In considering the impact of the proposed development on views, the experts make reference to the planning principle established in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 ("Tenacity"), namely: "[25] 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. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) 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. [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."
DCP 2012 at Part 4.3 provides the following relevant objectives and controls in relation to View Sharing: "O1: To have opportunities for public vistas and public views from streets and public places protected. O2: To have the value of existing views from private dwellings recognised and encourage view sharing through building design, location and landscaping design, whilst not restricting the reasonable development potential of a site. P1: Public views and vistas, some of which are identified in townscape areas in Part 7 of this Plan, must be protected and maintained where possible. P2: Important public views and vistas should be enhanced by the form and treatment of buildings including roofscapes. P3: Where public views are available from the street, these should be preserved by the use of open style fencing and carports, and by avoiding inappropriate plantings and design elements P4: New development should be designed to minimise view loss to adjoining and adjacent properties while still providing opportunities for views from the development itself. P5: Development must not significantly obstruct views enjoyed from living and entertainment areas of neighbouring properties. Views available from other areas within residential buildings generally will not be protected particularly if views are available from living and entertainment areas in the building concerned. Views from private dwellings considered in development assessment are those available to an observer standing 1m from a window or balcony edge (less if the balcony is 1m or less in depth). … P8: Measures to be used to facilitate view sharing include building setbacks, gaps between buildings, minimal floor to ceiling heights, raked ceilings to upper floors, roof forms such as gables or hipped, splay corners and use of open materials for balustrades on balconies and decks. P9: Where there is potential for loss of a view, Council may require a maximum building height of less than the statutory height limit provided by LEP."
Further DCP 2012 espouses the following steps to be applied to the assessment of view impacts. "1. What views are to be affected? In this Plan, a reference to views is a reference to water views and views of significant landmarks (e.g. The Heads, Opera House and Harbour Bridge). Such views are more highly valued than district views or views without significant landmarks. District views and views of bushland will be considered in development assessment where they are the only views available. 2. How are the views obtained and assessed? Views from private dwellings considered in development assessment are those available horizontally to an observer standing 1m from a window or balcony edge (less if the balcony is 1m or less in depth). 3. Where is the view enjoyed from? Views enjoyed from living and entertainment areas are highly valued. Views available from other areas within residential buildings generally will not be protected particularly if views are available from living and entertainment areas in the building concerned. Public views are highly valued and will be assessed with the observer standing at an appropriate vantage point in a public place. 4. Is the proposal reasonable? A proposal that complies with all development standards (e.g. building height, floor space ratio) and planning controls (e.g. building setbacks, roof pitch) is more reasonable that one that breaches them."

[16]

204 Spit Road

The VIA examines the view impact from three locations within 204 Spit Road, firstly from the ground floor east facing windows, secondly the upstairs living area and finally from the rear elevated private open space.
Mr Layman describes the views as private dwelling water views and views of the distant Dobroyd Head/Clontarf foreshore as well as distant views of North Head. He reiterates his assessment that the acceptability of such an impact is affected by the fact that it is caused by a development which is non-compliant with a number of development standards (FSR, maximum height and wall height).
Mr Cowan describes the three views as being of the water and headland, noting they are available over the Spit Road carriageway. From the ground floor Mr Cowan notes that the proposed development will obscure the northern portion of the view, but allow views over the development on the southern portion of the building given its lower height. From the upstairs living area Mr Cowan argues the VIA demonstrates that the proposal will partially obstruct the foreground of the water view, however the primary view of the water and headland(s) will be maintained in full. Finally in relation to the private open space Mr Cowan concludes that the design of the proposed development will allow a view to be retained to the furthest headland and water in an easterly direction, when standing at the northern extent of this area.
As a collective impact on 204 Spit Road, Mr Cowan concludes: "On balance, the proposal is considered to achieve view sharing from the primary living areas of 204 Spit Road, and to an acceptable level of view sharing from the rear orientated open space area. Figures 5-10 show the resultant view sharing from the 2 levels within the building and rear open space area, when compared to the proposed development and LEP/DCP compliant scheme. The images demonstrate that the development on balance provides for acceptable view sharing from the various spaces within this private property. The proposed development therefore represents a superior outcome and satisfies the objective of the standard." (Exhibit 3)

[19]

Submissions

Mr Eastman's principal submission is that Mr Layman's evidence lacks analysis or articulated reasoning to support his conclusions in the joint report. Further, Mr Eastman notes that Mr Layman does not engage with the evidence of Mr Cowan or reference the VIA undertaken by the Applicant.
Mr Eastman took Mr Layman to these concerns in cross examination. Mr Layman argued that the "compliant building envelope" used in the VIA as a means to assess the impact of the proposed development is a maximum building envelope, not a building design. He emphasised that the "compliant building envelope" used in the VIA was an envelope in which a building can be accommodated and that such a design should distribute building mass in a matter that reduces the impact of the proposed development. Further, the "compliant building envelope" is not the appropriate comparator for assessing the acceptability of the impact of the proposed development.
In her submissions, Ms McCulloch emphasised that the Respondent's approach to the assessment of the view impacts arising from the development differs from that advanced by the Applicant. She submits that the Applicant places too much emphasis on the VIA, which in the Respondent's submission is only a tool in the assessment and it doesn't replace the value of observations made on site. Further, she notes that in the Respondents view, the appropriate comparison, which should inform an assessment of the acceptability of the impacts, is the existing views available presently and those that will remain after the development. This is distinct from the approach advanced by the Applicant which utilises a comparison between a 'compliant building envelope' and the proposed development.
Ms McCulloch submits that the Court, in assessing the cl 4.6 requests, and the merit of the application, should give weight to the extent of the height and wall height breach. She notes that the breach encompasses the whole of the upper floor and the entirety of the roof plane, both create the eastern edge of the development which generate the extent of the view impacts.
Further, Ms McCulloch emphasises that the provisions of DCP 2012, and control P4 of Part 4.3 specifically, require new development to be designed to minimise view loss to adjoining and adjacent development.

[20]

Findings: View Loss

The impact of the proposed development on views arises for the consideration of the Court in four ways: 1. Firstly, in the context of the request to vary the height, wall height and FSR standard, determining whether the development is compatible with the objective of the R3 Medium Density Residential zone. In particular the objective to "encourage residential development that has regard to local amenity and in particular public and private views". 2. Secondly, in the context of the request to vary the height standard, determining whether the development is compatible with an objective of the height standard to "share public and private views". 3. Thirdly, in the context of the request to vary the wall height, determining whether the development is compatible with an objective of the wall height standard to "provide for view sharing". 4. Finally, determining on merit whether the Respondent's contention that the proposed development results in unacceptable loss of private and public views and whether the development application warrants refusal on this basis.
Each of these considerations are detailed in the following.
I am persuaded by the submission of Mr Eastman that the evidence of Mr Layman is affected by a lack of overt analysis or articulated reasoning which underpin his conclusion that the impact of the proposed development on views is unacceptable. In my view this affects the weight I should give his evidence in relation to the extent of impact experienced by these properties and supports a conclusion that the assessment of Mr Cowan is preferred. Further, I am persuaded to prefer Mr Cowan's evidence on the basis that he applies a stepped approach to his assessment characterised by firstly describing the view, secondly nominating the impact at each location on the relevant property and finally reaching a qualitative conclusion. Such an approach is concordant with that detailed in DCP 2012.
Where views are available in a number of living rooms or spaces within a property, both DCP 2012, and the principle in Tenacity undertake an assessment of any impact on views at a cumulative level, rather than on a single view within a room of a specific property.
I note that neither of the experts asserted a conclusion as to where on the Tenacity spectrum of negligible, minor, moderate, severe or devasting impacts the view loss impact arising from the development on any of the nominated properties falls.

[21]

200, 202 and 204 Spit Road.

Relying on the VIA, the views from 202 and 204 Spit Road include iconic views of North Head. These views are maintained by the proposed development.
The existing views enjoyed from living areas in 200, 202 and 204 Spit Road are obtained over the road reserve and across the subject site. Consistent with the reasoning of Tenacity, in my view the expectation of retaining these views in circumstances where public infrastructure and private properties are intervening elements between the viewing point and the view, affects the weight the Court should give to these impacts. That is not to say that the impacts are not to be given weight, but that in the second step of the assessment outlined in Tenacity, and the approach outlined in DCP 2012, it weighs against the level of protection afforded to those views.
In relation to 200 Spit Road, in my assessment the view impact arising from the proposed development will be moderate. This conclusion is arrived at as follows:

I accept the description of the existing view enunciated by Mr Cowan, summarised at [67].
The quantitative impact from the proposed development represents approximately half of the existing view of the water and water/land interface from the existing ground floor living room.
The overall view impact in my assessment is moderate, balancing the extent of impact against the limited scope and character of the existing view.

In relation to 202 Spit Road, I have reviewed the VIA as well as Exhibit G. in my assessment the view impact arising from the proposed development will be minor. This conclusion is arrived at as follows:

I accept the description of the existing view enunciated by Mr Cowan, summarised at [70]-[71].
The view is available from the living area on the ground floor.
In my assessment, the development will obscure a portion of the land/water interface to the northern portion of the panoramic view. However, I am satisfied that the proposed development in providing an increased setback to the southern boundary, does assist in facilitating the maintenance of a view corridor for this property.
The proposed development will not impact on the nominated view of North Head.
The overall view impact in my assessment is minor, balancing the extent of the impact against the broad scope of the existing view and the lack of impact arising from the proposed development on the view of North Head or the horizon line.

In relation to 204 Spit Road, in my assessment the view impact arising from the proposed development will be moderate. This conclusion is arrived at as follows:

I accept the description of the existing view enunciated by Mr Cowan, summarised at [74].
The property attains views from the ground and first floor living areas and the rear private open space.
In relation to the ground floor, the proposed development will obscure approximately half of the foreground view of water in the bay but retains the totality of the view of the headland, the midground water view, the horizon and North Head.
At the first floor the impact is less, with a minor obstruction of foreground water views.
Finally, the private open space at the rear of 204 Spit Road enjoys views over its side boundary. At this location, the proposed development will entirely obscure views to the foreground view of water in the bay but retains views of the headland, the midground water view, the horizon and North Head.
I note that applying the controls in DCP 2012, no weight is given to views from the private open space of this property.
Cumulatively, in my assessment, the view impact to the property is moderate.

[23]

Public views

I accept the evidence of both experts that the character of the public views is of the distant headland, North Head and glimpses of the bay itself.
I note that the experts agree that the open style fencing proposed will assist in view sharing. Further, I accept the evidence of Mr Cowan that the development further demonstrates view sharing for the reasons he advances at [81].
I am satisfied the impact on public views is negligible and the Applicant has sought to minimise these impacts.
In relation to the first consideration, consistency with the height standard objectives, I am satisfied that the proposed development has had regard to both public and private views. So much is clear from the provision of an increased southern setback, and the reduction in building height to the southern portion of the building to allow the maintenance of the water/horizon interface from the public domain and the preservation of views from private properties on Spit Road.
Further, I am satisfied that the development is compatible with the objective of the R3 Medium Density Residential zone to "encourage residential development that has regard to local amenity and in particular public and private views". On the same basis I find that I can be satisfied that the development is compatible with an objective of the height standard in cl 4.3(1)(a)(i) "to share public and private views", satisfying cl 4.6(4)(a)(ii) of LEP 2012.
On the same reasoning as the preceding, I find I can be satisfied that the proposed development is compatible with the wall height standard objective to "provide for view sharing".
In assessing the overall impact, the VIA provides a tool which assists in assessing whether the proposal causing the impacts is reasonable. Further, the development controls at P4, P5, and P8 in Part 4.3 of DCP 2012 are relevant in assessing the reasonableness of the impacts. I am satisfied that the development does not significantly obstruct views from the living and entertaining areas of neighbouring properties, meeting the requirements of P5. Further, I am satisfied that the development controls at P4 and P9 are met by the design of the proposed development which in its form and setback allows for reasonable view sharing through the site to be maintained. I accept Mr Cowan's evidence in this regard.
In determining the merit of the development application, I have given weight to the view loss impacts that will arise from the proposed development, and the concerns raised by the public submissions. However, I am not persuaded that those impacts are sufficient to warrant the refusal of the development application. My reasoning is contained in the preceding.
By reference to the matters at [87] I am satisfied that the proposed development is compatible with the relevant objectives listed. Further, in my view the preceding analysis supports a conclusion that the view loss experienced is reasonable and does not support a determination that the development application should be refused on merit on this ground.

[24]

Compatibility with desired future character

The compatibility of the proposed development with character arises for the consideration of the Court in four ways: 1. Firstly, the objectives of the R3 Medium Density Residential zone include an objective "to provide for housing that is compatible with the desired future character of the area in terms of bulk, height and scale". 2. Secondly, the objectives of the height standard include an objective "to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form". 3. Thirdly, the objectives of the wall height standard include and objective "to encourage 2-storey buildings consistent with the desired future character of the area". 4. Fourthly, the FSR standard includes an objective to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale.
Each of these considerations are detailed in the following.
The compatibility of the development with the desired future character of the locality was the subject of expert evidence. The different views of the experts can be summarised following.
Mr Layman principally argues that the desired future character is reflected in the key development standards in LEP 2012, namely those for height, wall height and FSR. He concludes that given the development is non-compliant with each of these standards, taken holistically the exceedances are indicative of development that is not consistent with the desired future character. In determining the desired future character, he argues that a maximum height standard of 8.5m with a wall height standard of 7.2m infers a two-storey development with a pitched roof, whilst also allowing for some sloping topography. In his view the desired future character is for two-storey development with some roof elements up to 8.5m.
Mr Layman concludes that the proposed development, a three-storey boxy form, is in contrast and not compatible with this character. He argues the increase in visual impact, bulk and scale occurs in a manner that is not consistent with the desired future character of the locality. Mr Layman contends that the proposal exceeds reasonable expectations for development of the subject site having regard to the relevant development standards and objectives.
Further, in response to Mr Cowan's evidence Mr Layman asserts "presentation to the street is not the single test of acceptability of bulk and scale. The topography of the east side of Spit Road is such that the built form will be perceived principally from the north, south and west." (Exhibit 3) I note that despite this statement, Mr Layman does not identify any indicia of incompatibility from these views.
In his evidence Mr Cowan notes that DCP 2012 includes the following definition of streetscape: "Streetscape: refers to the collection of visible elements in a street, including the form and treatment of buildings, setbacks, fences and walls, landscaping and trees, driveways, street layout and surfaces, utility services, and street furniture such as lighting, signs, barriers and bus shelters."
In the alternative to Mr Layman, Mr Cowan's evidence is that the proposed development "sits comfortably within its immediate and wider context in terms of building height, noting the RL's of adjoining northern and southern properties" (Exhibit 3). To support this conclusion Mr Cowan analyses and describes the existing context as generally characterised by bulky residential developments of various forms, an assertion which is supported by the submission by the Applicant of surveyed gross floor area calculations undertaken for the adjoining properties. He describes the existing character of the locality as consisting of a mix of flat buildings and large-scale dwellings, some of which are contemporary and others which are older.
Further, Mr Cowan describes the desired future character as contemplating residential flat buildings, specifically as proposed on the site, with compliant setbacks, adequate car parking and suitable architectural treatment, and of a height that is consistent with the streetscape of Spit Road.
Against this desired future character, he concludes: "The proposal represents a modest contemporary development that would present as single level from Spit Road, with a flat roof to optimise amenity outcomes in terms of solar access, views and streetscape presentation. From other areas (east, north and south) within the public domain the development also presents as a compatible form having regard to the scale of adjoining and adjacent development. Any roof form other than one that is flat would create undesirable amenity impacts for the occupants of the development, fail to provide sufficient street activation and negatively impact view corridors otherwise afforded." (Exhibit 3)
Mr Cowan includes the following images as part of his evidence to demonstrate his conclusion of compatibility:

[25]

Findings

Despite the variations to both the maximum height standard and wall height standards I am satisfied the unique characteristics of the subject site result in a development that remains compatible with the existing and desired future character. As detailed in Mr Cowan's evidence, the unique characteristic of the subject site is the fact of significant existing excavation. The extent of excavation and its interplay with the levels of Spit Road is best demonstrated by the following extract of the joint report of the planning experts:
In my assessment Mr Layman places too much weight on the role of the development standards in LEP 2012 in defining the desired future character. The adjoining properties, many strata titled and exceeding the applicable development controls, are likely to persist as part of the relevant character for the foreseeable future. Further, the development standards are of necessity broadscale controls which need to inform and contribute to, but not always determine, desired future character. Site specific characteristics, the realisation in the built environment of previous Council determinations and incentives in planning controls are some of the facts that influence the weight applied to the development standards in determining desired future character: SJD DB2 at [62-63]; Big Property Group Pty Ltd v Randwick City Council [2021] NSWLEC 1161 at [42]-[44].
I accept and prefer the evidence of Mr Cowan that the survey data relied on establishes the height and bulk of the adjoining developments and demonstrate the compatibility of the proposal with these forms. The images extracted at [119] are demonstrative of the compatibility of the form and scale of the proposed development in the context of these existing developments. Further, I am satisfied that the storey height presentation of the proposed development to Spit Road is in harmony with both the existing and desired future character of the locality given its setbacks, height, landscaping, transparent fencing and the public view through the site linking the site to the view to North Head and the bay.
Applying the planning principle for assessing compatibility with character in the built environment, Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 at [24], I am satisfied that firstly, the proposal's physical impacts on surrounding development are acceptable and secondly, that the proposal's appearance is in harmony with the buildings around it and the character of the street.
It follows that I find that the proposed development is compatible with:

Firstly, the objective of the R3 Medium Density Residential zone "to provide for housing that is compatible with the desired future character of the area in terms of bulk, height and scale".
Secondly, the objective of the height standard "to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form".
Thirdly, the objective of the wall height standard "to encourage 2-storey buildings consistent with the desired future character of the area".
Fourthly, the FSR standard includes an objective "to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale".

In my view the preceding analysis supports a conclusion that the Respondents contention that the development application is excessive in bulk and scale and incompatible with character is not made out. I am not persuaded that the development should be refused on this ground.
I accept the arguments advanced in the written request, summarised at [59]. It follows that for the purposes of cl 4.6(4)(ii) of LEP 2012 that I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the zone.

[26]

Is the development consistent with the objectives of the height standard?

The second state of satisfaction required at cl 4.6(4)(ii) is that the development is in the public interest because it is consistent with the objectives of the standard.
The objectives of the height standard at cl 4.3 of LEP 2012 are as follows: (a) for development on land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone C4 Environmental Living - (i) to share public and private views, and (ii) to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores, and (iii) to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form, and (iv) to minimise the adverse effects of bulk and scale of buildings,
The written request argues the proposed development is consistent with the objectives of the height standard at cl 4.3 of LEP 2012 on the following grounds:

(i) to share public and private views: "As provided in Section 3.3 above and noting the assessment carried out against the planning principle of view loss it is considered, on balance, that the development does seek to share public and private views currently enjoyed by surrounding residents. Overall, it is considered the proposal allows for an improved outcome in comparison to a compliant 8.5m maximum height of building."
(ii) to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores: "Any future development of the Site will result in some view loss to 200-204 Spit Road and 26 Parriwi Road. Accordingly, the development considered how it is able to be consistent with SJD [SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112], including a visual corridor along the western boundary and ensuring protection of views with significant land to water interface. Given the proposal's consistency with density and height within the precinct and distance from harbour and foreshore areas it is considered visual impacts from public spaces including the harbour and foreshore areas will be negligible."
(iii) to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form. "The development is considered an appropriate response to the cliff face site constraint and ensures a development which will present as one (1) storey to the prevailing streetscape, The development is contemporary in nature and consistent with various built form outcomes along Spit Road including 26 Parriwi Road."
(iv) to minimise the adverse effects of bulk and scale of buildings. "The written request demonstrates alternative design options were explored to ensure surrounding amenity is protected in the first instance. It is noted that the proposed development for RFB development would provide some sort of visual intrusion to surrounding development in any case. However, it should be noted that overall a compliant building envelope results in an outcome of greater visual intrusion that the Proposal. (refer to the updated View Analysis at Appendix 22). Noting the relevant design options which have been explored it is noted within the accompanying appendices that the development was indeed designed to minimise the affects of its bulk and scale to adjoining development. Accordingly, the objective is considered to be met, in that visual intrusion has been minimised through the creation of a visual corridor to ensure land and water interface is maintained within existing views from the west." (Exhibit B)

To satisfy cl 4.6(4)(a)(ii) the Court must be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard.
On the basis of the preceding findings on the view impacts of the proposed development, I find that the proposed development achieves the objective to share public and private views. Further, I find, on the reasoning detailed earlier in the judgment, that I can be satisfied that the proposed development is consistent with the objective to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form. I accept and adopt the grounds advanced in the written request, summarised at [129] and find that the development is consistent with the objective to minimise adverse effects of bulk and scale of buildings.
It follows that I am satisfied that the development is consistent with an objective to minimise the visual impact of the development due to the findings of compatibility and if minimisation of adverse impacts arising from bulk or scale. I accept and adopt the reasoning advanced in the written request, summarised at [129] in this regard.
Clause 4.6(4)(b) of the LEP 2012 also requires that the concurrence of the Planning Secretary be obtained for development consent to be granted to development that contravenes a development standard. Section 39(6) of the Land and Environment Court Act 1979 (LEC Act) gives the Court the power to grant development consent without obtaining the concurrence of the Secretary, although the Secretary's concurrence can be assumed as a result of the written notice dated 21 February 2018 attached to the Planning Circular PS 20-002 issued 5 May 2020.
The Council has not raised any of the matters in cl 4.6(5) as a basis upon which the power in cl 4.6(4) of the LEP 2012 ought not be exercised. As set out above, I am satisfied of the matters in cl 4.6(4) such that there is power to grant consent pursuant to cl 4.6(4) despite the contravention of the three development standards.
For the above reasons, I find I can be satisfied of the requirements of cll 4.6(3) and 4.6(4) of LEP 2012 despite the contravention of the height development standard.
The cl 4.6 written request to vary the height standard is upheld.

[27]

Should the written request to vary the wall height standard be upheld?

The development application seeks to vary the development standard at cl 4.3A of LEP 2012 directed to the maximum wall height. As noted at [29], the application seeks to vary the 7.2m standard by seeking a maximum wall height of 9.4m.
Further, the development seeks approval for two storeys above ground level (existing), relevant to cl 4.3A(2) as follows: (2) The consent authority may refuse development consent for the erection of a building on land to which this clause applies if the building has more than two storeys above ground level (existing).
The Applicant has prepared and filed a written request to vary the wall height standard. Applicant's written request describes the genesis of the exceedance as follows: "In the circumstances of the case, it is noted the proposed departure is a direct urban design response to the significant cliff constraint from Spit Road. As detailed within the accompanying Geotechnical Assessment at Appendix 8, the Site has previously undergone deep excavation, where it appears the rock face within the face within the site was significantly reprofiled. Additionally, by virtue, the Site has only one (1) primary access from Spit Road." (Exhibit D)
Clause 4.6(4)(a)(ii) of LEP 2012 requires consideration of the objectives of the zone and the objectives of the relevant development standards.
Clause 4.3A Height of Building (additional provisions) of LEP 2012 states: (1A) The objectives of this clause are as follows - (a) to provide for view sharing, (b) to minimise the adverse effects of the bulk and scale of buildings, (c) to encourage 2-storey buildings consistent with the desired future character of the area. (1) This clause applies to all land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone C4 Environmental Living to which a maximum building height of 8.5 metres applies as shown on the Height of Buildings Map. (2) The consent authority may refuse development consent for the erection of a building on land to which this clause applies if the building has more than two storeys above ground level (existing). (3) However, the consent authority may grant development consent for an additional storey in the foundation space of an existing building on land to which this clause applies if the consent authority is satisfied that the building height and bulk is of an appropriate form and scale. (4) A building on land to which this clause applies must not have a wall height, at any point of the building (other than at a chimney, gable end or dormer window), that exceeds 7.2 metres. (5) In this clause - dormer window means a window in the roof plane that measures no more than 25% of the width of the roof in that plane. mansard roof means a roof that has - (a) a pitch of more than 45°, and (b) 2 slopes on each side, with the lower slope significantly steeper than the higher slope. wall height means the vertical distance from ground level (existing) to - (b) the underside of the eaves at the wall line, parapet or flat roof, whichever is highest, or (a) for a building with a mansard roof - 1.8m above the finished floor level of the roof space.

[28]

Is compliance with the wall height standard unreasonable or unnecessary?

The legal test is summarised at [44].
The written request provides the following reasons to establish why strict compliance with the wall height development standard is unreasonable or unnecessary in the circumstances of the case: 1. The existing site conditions (the previous excavation) provides a significant cliff face fall from Spit Road. If the development was to strictly comply with the maximum height control, it would result in a single storey built form fronting Spit Road. Such a single storey built form would be inconsistent with the prevailing streetscape character. Accordingly the additional storey is considered necessary in the circumstances of the case to ensure the development will be in keeping with the Spit Road Streetscape. 2. Compliance with cl 4.3A of LEP 2012 is not achievable on the site and is unnecessary in the circumstances of the case given the cliff face drop is approximately 6-7m. This is a site-specific circumstance that precludes compliance. 3. The proposed departure from the standard is not considered out of character for development along Spit Road as demonstrated by the streetscape elevations extracted in the request. 4. That any future development of the land (other than a dwelling house) would rely on a car lift to provide vehicular access to the subject site. Such a car lift, even within a scheme where the primary built form is compliant, would necessarily exceed the height limit. 5. Strict compliance with the standard would result in a two-storey typology which would not interface well with the streetscape of the established residential setting. 6. The proposed height allows for passive surveillance to Spit Road, increasing safety and security for the locality. 7. As detailed in the geological report, the site has previously been heavily excavated resulting in a 6-7m cliff face from Spit Road to the site. As such the site has a topography which is inconsistent with adjoining properties fronting Spit Road. 8. That if the site had not been previously excavated, and a ground line approximating a contour line of 68-69m, a compliant height limit of 8.5m would result in a maximum building of between RL 76.5 - 77.5 AHD. This compares well against the maximum overall height of the building proposed at RL 73.6m, which is 2.9-3.9m below where the maximum permitted height would have been prior to the extensive excavation of the site.
The written request concludes that strict compliance with the development standard at cl 4.3A of LEP 2012 would: "render the application not supportable and therefore prevent a development typology within the R3 zone which is specifically envisaged. This would be contrary to the objects of the EPA Act, specifically section 1.3(c) in the promotion of orderly and economic use of land." (Exhibit D)

[30]

Are the environmental planning grounds sufficient to justify the contravention.

The legal test is summarised at [49].
The written request seeks to justify the contravention of the height development standard on grounds that it describes as environmental planning grounds. Those grounds can be summarised as follows:

Strict compliance with the maximum wall height control would provide a development with less than one-storey appearance or would be obscured from the streetscape of Spit Road.
That by virtue of the orientation of the site additional overshadowing will be negligible.
That the proposal is of a reduced impact on neighbours (overshadowing, privacy and view loss) when compared with a scheme that occupied a compliant built envelope. The request states: "Furthermore, given the proposal provides for an increased setback of 6 metres for Level 2 at the southern boundary, the impacts of overshadowing and visual impacts are improved to the sensitive northern boundary of 26 Parriwi Road. Additionally, it is noted that an improved view sharing outcome is achieved from 26 Parriwi Road, 200 Spit Road, 202 Spit Road and 204 Spit Road (in comparison to a compliant 8.5m height across the site)." (Exhibit D)
The landscape roof, recessed at a six metre setback to the adjoining property, firstly softens the visual impact of the development and secondly provides a view corridor for properties on the western side of Spit Road. The decision in the design of the building to provide a recessed section to the southern boundary results in an improved view sharing outcome and reduced visual impact for 26 Parriwi Road in comparison to a compliant 8.5m height across the site.
The proposed height provides greater consistency with the streetscape than would be achieved with a compliant scheme (on the same reasoning as detailed in the last dot point at [50]. Such an environmental planning ground is consistent with the reasoning of the Court in SJD DB2 at [96].
Strict compliance with the development standard would result in an under development of the site and an inconsistent streetscape which is inconsistent with the achievement of the object of the EPA Act to promote good design and amenity of the built environment.
The proposed development is consistent with the objective of the standard. (Exhibit D)

[33]

Is the development consistent with the objectives of the standard?

The objectives of cl 4.3A of LEP 2012 are as follows: (1A) The objectives of this clause are as follows - (a) to provide for view sharing, (b) to minimise the adverse effects of the bulk and scale of buildings, (c) to encourage 2-storey buildings consistent with the desired future character of the area.
The written request argues that the development is consistent with these objectives for the following reasons:

To provide for view sharing "As provided in Section 3.3 above and noting the assessment carried out against the planning principle of view loss it is considered, on balance, that the development does seek to share public and private views currently enjoyed by surrounding residents. Any future development of the site will result in some view loss to 200-204 Spit Road and 26 Parriwi Road. Accordingly, the development considers how it is able to minimise its impact consistent with SJD [SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112], including a visual corridor along the western boundary and ensuring protection of views with significant land to water interface. Given the proposal's consistency with density and height within the precinct and distance from harbour and foreshore areas it is considered visual impacts from public spaces including the harbour and foreshore areas will be negligible. Overall, it is considered the proposal allows for an improved view sharing outcome in comparison to a compliant 8.5m maximum height of building and compliance with maximum wall height provisions." (Exhibit D)
To minimise the adverse effects of the bulk and scale of buildings. "The written request demonstrates alternative design options were explored to ensure surrounding amenity is protected in the first instance. It is noted that the proposed development for an RFB development would provide some sort of visual intrusion to surrounding development in any case. However, it should be noted that overall a compliant building envelope results in an outcome of greater visual intrusion that the proposal (refer to the updated View Analysis at Appendix 22). Noting the relevant design options which have been explored as noted within the accompanying appendices, the development was indeed designed to minimise the affects of its bulk and scale to adjoining development. Accordingly, the objective is considered to be met, in that visual intrusion has been minimised through the creation of a visual corridor to ensure land and water interface is maintained within existing views from the west." (Exhibit D)
To encourage 2-storey buildings consistent with the desired future character of the area. "The development is considered an appropriate response to the cliff face site constraint and ensures a development which will present as one (1) storey to the prevailing streetscape. Furthermore, from the perspective of the western elevation, the proposal sits lower than neighbouring development and is considered consistent with the prevailing built form. The development is contemporary in nature and consistent with various built form outcomes along Spit Road, including 26 Parriwi Road." (Exhibit D)

[35]

Should the requested variation to the FSR standard be upheld?

The proposed residential flat building breaches the maximum FSR standard of 0.7:1 by seeking consent for a development with an FSR of 0.91:1.
Clause 4.4 Floor Space Ratio in LEP 2012 states: 4.4 Floor space ratio (1) The objectives of this clause are as follows - (a) for development on land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone C4 Environmental Living - (i) to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale, and (ii) to provide a suitable balance between landscaping and built form, and (iii) to minimise the adverse effects of bulk and scale of buildings, (iv) to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off, (b) for development on land in Zone B1 Neighbourhood Centre, Zone B2 Local Centre or Zone B6 Enterprise Corridor, to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale, (c) for development on land in Zone B2 Local Centre or Zone B6 Enterprise Corridor, to provide opportunities for buildings of a greater scale than existing development in suitable locations to achieve the Council's residential strategy and provide opportunities for economic growth. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.
The Applicant's written request notes that the proposed FSR includes parking spaces located in the basement which are provided in exceedance of the Council's parking requirements. This quantum of gross floor area represents 13m2, or a single parking space.
Consistent with the following definition of gross floor area (GFA) in LEP 2012, only car parking provided that meets the parking requirements of the Consent Authority are excluded from GFA. 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.

[36]

Is compliance with the FSR standard unreasonable or unnecessary?

The legal test is summarised at [44].
The written request provides the following reasons to establish why strict compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case:

The proposed departure is a direct urban design response to the significant cliff constraint adjacent Spit Road.
Further, the proposal provides the specified quantum of FSR to ensure that the built form will be consistent with existing development along Spit Road. It argues that a compliant FSR, or strict compliance, would result in an unreasonable urban design outcome of a single storey built form to Spit Road.
The site is only provided with vehicular access from Spit Road and relies on car lift access, irrespective of built form.
Strict compliance with the FSR standard would result in a development not consistent with the adjoining properties and the desired future character.

The written request argues the preceding reasoning is supported by the following analysis of the surveyed estimates of the FSR of the adjoining properties:

26 Parriwi Road (total site): 0.94:1
26 Parriwi Road (western portion fronting Spit Road): 1.06:1
191 Spit Road: 0.9:1

Further, the written request seeks to establish that compliance is unreasonable or unnecessary on the basis that the objectives of the standard are achieved notwithstanding the variation.
The objectives of cl 4.4 of LEP 2012 are as follows: (a) for development on land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone C4 Environmental Living - (i) to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale, and (ii) to provide a suitable balance between landscaping and built form, and (iii) to minimise the adverse effects of bulk and scale of buildings, (iv) to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off,
The written request argues that the development is consistent with the objectives for the following reasons:

(i) to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale "The bulk and scale of the development is considered to be in keeping with the desired character of the area. Strict compliance with both the maximum FSR and height of building development standard would result in a development with poor urban design outcome as demonstrated within this written request and accompanying appendices." (Exhibit D)
(ii) to provide a suitable balance between landscaping and built form "Adequate provision of landscaping is provided throughout the site including a landscaped roof element within the recessed area along the western boundary. The stepped design and landscape roof softens the visual impact from the street and to adjoining properties at 26 Parriwi Road." (Exhibit D)
(iii) to minimise the adverse effects of bulk and scale of buildings "This written request demonstrates alternative design options were explored to ensure surrounding amenity is protected in the first instance. It is noted that the proposed development for RFB development would provide some source of visual intrusion to surrounding development in any case. Noting the relevant design options which have been explored as noted within the accompanying appendices the development was indeed designed to minimise the effects of its bulk and scale to adjoining development. Accordingly the objective is considered to be met, in that the visual intrusion has been minimised through creation of a visual corridor to ensure land and water interface is maintained within existing views from the west." (Exhibit D)
(iv) to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off "A basement carpark is proposed. Accordingly, the application was accompanied by a Geotechnical Report which demonstrates the level of excavation proposed is within acceptable limits." (Exhibit D)

The written request concludes that strict compliance with the development standard at cl 4.4 of LEP 2012 would: "render the application not supportable and therefore prevent a development typology within the R3 zone which is specifically envisaged. This would be contrary to the objects of the EPA Act, specifically section 1.3(c) in the promotion of orderly and economic use of land." (Exhibit D)

[37]

Findings

I accept the written request establishes sufficient justification that compliance with the FSR standard in unreasonable or unnecessary in the circumstances on the two grounds it advances.
Firstly, I am persuaded that the circumstance of the significant cliff constraint, which artificially lowers the site level in relationship to Spit Road, makes strict compliance with the FSR standard unreasonable in circumstances where the architectural design seeks to both positively address the Spit Road frontage and create a view corridor through the site. These objectives, when realised on the subject site, both make the building design less efficient in terms of floor area.
Secondly, I am persuaded that, consistent with the first of the ways described in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, the request describes how the proposed development achieves the objectives of the FSR development standard notwithstanding the contravention. My reasoning is:

On the basis of my earlier findings, I am satisfied that the proposed building will be compatible with the desired future character,
I accept and adopt the reasoning advanced in the written request and summarised at [171] that the proposed development is compatible with an objective to minimise the adverse effects of bulk and scale. Such a finding is consistent with findings that the view loss impacts are acceptable, and that the development will contribute positively to the streetscape,
The development is compliant with the standard for landscaped area at cl 6.6 of LEP 2012 which is indicative of compatibility with an objective to provide a suitable balance between landscaping and built form,
The Applicant's geotechnical report demonstrates that the proposed level of excavation is acceptable.

For these reasons, I am satisfied that the written request adequately addresses that compliance with the development standard is unreasonable and unnecessary as required by cl 4.6(3)(a) of LEP 2012.

[39]

Findings

As noted at [53]-[54], I accept the evidence of Mr Cowan that achieving consistency in the streetscape and fit with character is an environmental planning ground: SJD DB2 at [90]. However, the environmental planning ground advanced must focus on the element of the development which contravenes the development standard: Initial Action at [24]. With the exception of the first and second ground listed in [158] in this judgment, the written request contains general statements concerning the design of the development, its benefits and its compatibility with the streetscape and local character.
Exploring the first ground advanced, the written request identifies the quantum of floor space variation as being some 29% (or 216m²), with approximately 2% of that variation existing in the additional basement car parking space.
The ground advanced in the first and second dot point is in essence that the additional FSR provides for a development that will be consistent with the prevailing streetscape or desired future character, is, in my view, directed the additional floor space contained in the upper floor, Level 2. This level has an area of 271m², which contains the extent of the variation to the development standard. It is clear that it is this additional area that provides sufficient bulk and scale for the development to contribute to and be consistent with the streetscape of Spit Road. I am persuaded this environmental planning ground is sufficient to justify the totality of the variation sought.
On the preceding basis I am satisfied that the request establishes that there are sufficient environmental planning grounds to justify the variation by establishing the breach results from the additional storey which ensures that the proposed development is compatible with the existing and desired future character of the locality in the context of the unique attributes of the subject site.
I find I can be satisfied that there are sufficient environmental planning grounds and that the Applicant's written request adequately addresses the matters at subcl (3) of cl 4.6.

[42]

Communal Open Space

The Respondent argues that the proposed development provides inadequate communal open space in both quantum and in terms of the acceptability of the amenity of the space proposed.
The relevant provision of the ADG is extracted at [191]. The Respondent argues that the proposed development is non-compliant with the provision as the development application provides only 6% of site area as communal open space, less than the design criteria requirement of 25%. Further, the Respondent argues that the space is of poor amenity due to lack of solar amenity as it is overborn by the elevated walkway and adjacent the exposed cliff. The Respondent relies on the evidence of Mr Layman in this regard.
In the alternative, the Applicant argues that the development is compliant design criteria of the ADG as, consistent with the design guidance, the development provides generous balconies and ground floor terraces for all apartments in exceedance of the requirements for private open space, and the site is in close proximity to public open space and facilities. Mr Cowan summarises those additional areas of open space as follows: (Exhibit 3)
Mr Layman's concerns in relation to the amenity of the communal open space centre are firstly, the quantum of area provided, and secondly, its location on the site in proximity to the rock wall adjacent Spit Road. In his evidence he proposes that additional areas of the site be allocated as communal open space through the imposition of the following condition on any approval: "Amended Plans 2. To ensure the development provides adequate communal open space (including access to that space), the Construction Certificate Plans shall incorporate the following amendments: (i) the communal open space area depicted at the front of the site shall be increased in size to include the landscape areas (including lawn) situated to the east, south, and west of Unit G02 on the ground floor level; (ii) access to communal open space shall be provided via a double sided lift (front and rear doors) and access corridors to the front and rear of the site. A new access corridor shall be provided between Unit Nos. G01 and G02 to facilitate access from the lift to the communal open space located at the rear of the site. Unit G02 and its rear balcony shall be reduced in width to accommodate the new access corridor. Details are to be submitted to the satisfaction of the Accredited Certifier" (Exhibit 7)
Such a condition is resisted by the Applicant on two bases. Firstly, that it is not necessary as the development addresses the design criteria of the ADG to provide open space by embracing the design guidance, demonstrating proximity to public open space and providing generous private open space areas. In this way the Applicant submits the requirements of the ADG at 3D-1 are met. Secondly, to do so would have adverse amenity impacts on the ground floor apartments. Specifically: "a. The location of COS [communal open space] immediately adjoining unit G02 materially impacts the amenity, privacy, use and enjoyment of the unit; b. Views from the ground floor are limited and views are primarily enjoyed from levels 1 and 2; c. The units benefiting from having COS at ground level have far superior views from their balconies at levels 1 and 2 which would be a disincentive for utilisation of the COS. d. As set out above, the generous size of the POS for the upper units (ranging from 220-330% of the min ADG POS) diminishes the need for increasing and relocating the COS; e. The [internal ground floor] access proposed by condition 2 would require a 1600 wide access corridor which would adversely impact the design and amenity of units G01 and G02; f. As is also set out above, the site is 390m from the public reserves providing significant public open space." (Applicant's written submissions, 25 January 2023)
In the alternative, Ms McCulloch argues that the development application provides inadequate communal open space and that the Applicant's assertion that the additional provision of private open space and the sites proximity to public reserves is an alternative should not be accepted. She notes that the quantum of space allocated on the site for communal open space is only 6%, where the control seeks 25% and that the area allocated is in the location on the site with the least amenity. Further, she argues that the public open space which is asserted to be in proximity to the site would require car access for future residents. On these bases she argues that the Court would not accept that the objectives of the control have been met.

[44]

Landscaped area

In his evidence Mr Layman raised concern in relation to the calculation of the quantum of landscaped area provided by the development application. I note that in the amended statement of facts and contentions dated 2 December 2022 the Respondent notes, as part of the facts, that the landscaped area of the development application is 52%, a quantum that is compliant with the relevant development standard at cl 6.6 of LEP 2012 of 40%.
The provision states: 6.6 Landscaped areas (1) The objectives of this clause are as follows - (a) to have the landscape and townscape area character of Mosman's residential areas maintained and enhanced by requiring landscaping of sites in conjunction with other development, (b) to have a general visual dominance of landscape over buildings maintained, particularly on harbour foreshores, while recognising the difficulty of achieving this on small lots where there are existing buildings such as semi-detached dwellings, (c) to have adequate and usable ground level open space for recreation, landscaping and containing urban run-off. (2) This clause applies to land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone C4 Environmental Living. (3) The consent authority may refuse to grant development consent to development involving the erection of a building unless at least the following minimum landscaped area of a site (as a percentage of the site area) is provided for the development - … (b) for development resulting in more than one dwelling per lot - (i) 50%, for land identified on the Floor Space Ratio Map as having a maximum floor space ratio of 0.6:1 or less, (ii) 40%, for land identified on the Floor Space Ratio Map as having a maximum floor space ratio greater than 0.6:1.
In his evidence Mr Layman seeks to exclude from the calculation of landscaped area, an area of the site which will exist below the driveway bridge. In doing so he relies on his interpretation of the definition of landscaped area in LEP 2012 to exclude this area on the basis it is 'built upon'. Applying the same reasoning, Mr Layman further seeks to exclude areas where landscaping is provided in planter beds, such as on Level 2 of the development. On this approach he argues that the development provides 335.2 m² of landscaped area, a shortfall of 81.28 m² (32.19% provided, 7.81% deficient).
The definition of landscaped area in LEP 2012 is: landscaped area means a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area.
I am not persuaded by the evidence of Mr Layman that the application of the definition of landscaped area requires the exclusion of the area of the proposed communal open space area which will be located well below the proposed overhead driveway bridge. This area of the site, by reference to the landscape plan, is clearly a part of the site proposed to be used for the growing of plants, grasses and trees. The finished level of the communal open space is noted as RL 64, in contrast to the finished level of the driveway bridge of approximately RL 70, a substantial level difference. I am not persuaded that the bridge is a structure (in fact it is a suspended element) that would impede the ability for the communal open space to fall within the definition of landscape area applicable to cl 6.6 of LEP 2012.
Further, I am not persuaded that the correct interpretation of the definition excludes areas of the site where landscaping is proposed over for example basement carpark. There is, in my view, nothing in the wording of the definition that supports this exclusion. The definition is prospective. Such areas of the site are shown on the landscape plan as proposed to be used for growing plants, grasses and trees and are neither building, structure nor hard paved area. On this basis I accept the calculation of the Applicant that the development application meets the do not refuse standard at cl 6.6 of LEP 2012.

[45]

Conditions

The final issue in dispute between the parties is the following condition sought to be imposed by the Respondent: "Easements, Covenants and Restrictions on Title 23. A restriction on the use of land for the property shall be created under the Conveyancing Act 1919 prohibiting the owner from removing or modifying any retaining wall or other structure which gives structural support to the road unless an alternate method of support has been approved by Council. Mosman Municipal Council shall be identified as the authority able to modify, vary or release the restriction. Evidence that the restriction on the use of land has been registered with NSW Land and Property Information is to be provided to Council. A fee applies for the checking, approval and execution of the restriction on the use of land by Council and must accompany the restriction on the use of land when lodged with Council. For details refer to Council's current Fees and Charges Schedule at the time of lodgement."
Ms McCulloch's principal submission on the need to impose the condition is twofold. Firstly, that the consent should ensure that nothing related to the development application has effect of impacting the ongoing support of Spit Road and secondly, that the intention behind the requirement for the covenant is to bring the fact of the wall and its relationship to Spit Road to the attention of future landowners. On this reasoning she presses that the condition be imposed.
Further, Ms McCulloch argues that it is appropriate to impose a bond on the consent to the value of $20,000 to provide for the protection of the retaining/western rock wall that supports the embankment adjacent to Council's footpath and road. Her reasoning is that:

The plans lack detail as to how the proposed driveway will join/meet the wall at the boundary.
Construction works/activities may result in damage to the wall.
Post-construction work verification is required to ensure that the wall, if altered, will provide adequate structural support for Council's property. She submits that the condition is proposed for public safety and to protect Council's assets.

The proposed Condition 28 states: "A Security Deposit A cash deposit or bank guarantee to the value of $20,000 in favour of Council shall be provided for the protection of the retaining/western rock wall that supports the embankment adjacent to Council's footpath and road. A request for a refund of unused deposit or guarantee funds may be made prior to Occupation Certificate following the submission of a Structural Engineer's certificate which certifies the wall has not been damaged during construction and that the wall will provide adequate structural support for Council's property."
I note that the condition includes a provision for the request for a refund of any unused deposit or guarantee funds, which can be made following the submission of a Structural Engineer's certificate prior to Occupation Certificate. The certificate is required to certify thatthe western rock wall has not been damaged during construction and that the wall will provide adequate structural support for Council's property. The Applicant makes no specific submissions in relation to Condition 28.
However, the Applicant submits that proposed Condition 23 is more onerous than is necessary for three reasons: "a. First, there is no evidence that the wall is in fact a retaining wall as opposed to a rock formation and it ought be on the Council to prove that in order to impose a restrictive covenant of the type proposed to burden the Applicant; b. Secondly, if the Applicant complies with the consent, as it must, then there is no concern that there will be any adverse effect on the wall; c. Thirdly, in terms of support, the law with respect to supporting adjoining land is (now) simple. A person has a duty of care not to do anything on or in relation to supporting land that removes the support provided by the supporting land to any other land. There is an express statutory provision to that effect, in s 177 of the Conveyancing Act 1919. … The Council is entirely protected as a consequence of the conditions of consent and s 177 of the Conveyancing Act." (Applicant's written submissions, 25 January 2023)

[46]

Findings

The consent authority has power to impose conditions pursuant to s 4.17 of the EPA Act. The relevant section of the provision states: 4.17 Imposition of conditions (cf previous s 80A) (1) Conditions - generally A condition of development consent may be imposed if - (a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or (b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or (c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or (d) it limits the period during which development may be carried out in accordance with the consent so granted, or (e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or (g) it modifies details of the development the subject of the development application, or (h) it is authorised to be imposed under section 4.16(3) or (5), subsections (5)-(9) of this section or section 7.11, 7.12, 7.24 or 7.32.
The consideration and determination of a development application seeking consent to carry out development turns on the development the subject to the application. In these proceedings the development application does not seek to undertake any works to the rock face, or on the common boundary with Spit Road. My review of the survey indicates that the face of the rock is wholly within the subject site. In considering the matters at s 4.15(1) of the EPA Act I am not persuaded that there is a basis for the imposition of Condition 23 as worded arising from a planning instrument, a likely impact of the development or the other matters listed.
However, I am persuaded that it is appropriate to impose a condition clarifying that the consent granted does not authorise any works to the rock face, or the removal or modification of any retaining wall or other structure which gives structural support to Spit Road. As such Condition 29 (previously 28) is modified as follows: "Rock Face 23. Nothing in this consent authorises works or development to the rock face/ ledge adjacent Spit Road noted on the survey plan prepared by Burton & Field for Lot 11 & 12 DP 580452 dated 22.6.2021. Any proposed support structure for the driveway bridge is to be clear and proud of the face of the rock and be structurally independent of it. This condition acts to modify drawing PLA-LEC 101 Rev A in this regard. This condition is to be read in conjunction with condition 17. Plans submitted with the Construction Certificate are to incorporate these requirements."
I accept Ms McCulloch's submissions in relation to the prudence of imposing a bond on the consent to protect the public infrastructure during construction. Accordingly, I have imposed Condition 29.

Moorgate Mosman Pty Ltd v Mosman Municipal Council

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (49 paragraphs)

Parties

Cases Cited (12)