Findings
104 Bower Street
71104 Bower Street is a two storey residential flat building with a partial lower ground floor at the rear of the building, as the land is sloping.
1/104 Bower Street
72The lower ground floor at the rear of the building at 104 Bower Street is apartment 1.
73The first step in the Tenacity planning principle is an assessment of the views to be affected. 1/104 Bower Street has district views from the side and rear windows, between the existing buildings on the site and a glimpse of Fairy Bower headland from one position at the rear when looking between the roofs of the residential flat buildings at 14 Marine Parade and 12-13 Marine Parade.
74The second step of the Tenacity planning principle is to consider from what part of the property the views are obtained and whether the view is from a standing or sitting position. The views are obtained across the side boundary. The glimpse of the headland is from a standing position.
75The third step in the Tenacity planning principle is to assess the extent of the impact for the whole of the property. The outlook from apartment 1 is of the side elevation of the existing building on 102 Bower Street, the driveway access to the residential apartment building below and the residential apartment buildings fronting Marine Parade, with the garden to the rear and to the rear of 102 Bower Street forming part of that outlook. While I appreciate that the views from 1/104 Bower Street are highly valued by the occupier, they consist of a district view and a glimpse of the headland, neither of which are iconic, or highly valued, when using the Tenacity planning principle criteria. I consider that the view impacts on 1/104 Bower Street can be characterised as minor to moderate, using the qualitative view loss description of the Tenacity planning principle, as the third step requires an assessment of the extent of the impact for the whole of the property, not just the view that is affected. I disagree with Mr Layman that obscuring the glimpse of the Fairy Bower headland from a single, standing position can be described as devastating, because this does not assess the extent of the impact for the whole of the property, it assesses the extent of the impact on that glimpse of the headland.
76The district views to the south-east from 1/104 Bower Street will be obscured by the amended proposal because it amalgamates the two sites between Bower Street and Marine Parade and locates part of the development across what is currently the back yard of 102 Bower Street, between the two existing buildings on the site. I note that the residential flat building, currently under construction and approved by Council at 110 Bower Street (exhibit 10), also amalgamated two lots between Bower Street and Marine Parade for a single development, which steps down the site and fully occupies the centre of the site from top to bottom. It is the process of amalgamating two sites and constructing a single development, with new bulk in the centre of the site, that results in the loss of district views across the side boundary from 1/104 Bower Street. Any development in the centre of the site would obscure views to the south-east from 1/104 Bower Street, as the location of apartment 1 on the lower ground floor, well below the level of Bower Street, makes it vulnerable to loosing its outlook over a side boundary and which is acknowledged by the Tenacity planning principle as being more difficult to protect. The only way to preserve the district views from apartment 1 would be to preserve the open space in the centre of the site and this would, in my view, impose an unreasonable constraint on the development potential of the site.
77The flat roof of the proposal, fronting Marine Parade, is lower than the ridge height of the existing residential flat building at 12-13 Marine Parade, however the flat roof will extend further towards the side boundary than the angled roof of the existing residential flat building and it will obscure the triangular glimpse of the Fairy Bower headland from apartment 1. For reasons set out later in the judgment, I am satisfied that the form and height of the portion of the amended proposal fronting Marine Parade is of an appropriate height, bulk and scale, within its context and meets the objectives of the controls. I am also satisfied that the proposal is a reasonably skilful design. Therefore, balancing the reasonableness of the proposal with the vulnerability of the glimpse from a single standing position in apartment 1, I am satisfied that the amended proposal is an appropriate response to the constraints of the site and that it is not sufficiently detrimental to the whole of the outlook from apartment 1 that the amended proposal should be further amended or refused.
2 and 3/104 Bower Street
78Apartments 2 and 3 share an entry walkway on the south-eastern side of the residential flat building at 104 Bower Street, from which there are views of Shelly Beach and the Fairy Bower headland at various locations along the walkway.
79Apartment 2 has district views from the side windows, which includes a partial view of the former St Patrick's Seminary on the hill, to the south. The two rooms of apartment 2, at the rear of the building, have views of the harbour, Shelly Beach and the Fairy Bower headland over the top of the roof of 12-13 Marine Parade.
80I accept and agree with Mr Minto's evidence that the amended proposal will have at most, a negligible impact on apartment 2, as there is no loss of any iconic elements of the views from within the apartment.
81However, the views of Shelly Beach from the walkway entry to apartments 2 and 3 will be obscured by the amended proposal. Again, it is the process of amalgamating two sites and constructing a single development, with new bulk in the centre of the site, that results in the loss of views, across the side boundary, from the walkway. The Tenacity planning principle acknowledges it is more difficult to protect views across side boundaries. The only way to preserve the views from the walkway would be to preserve the open space in the centre of the site and this would, in my view, impose an unreasonable constraint on the development potential of the site.
82The impact of the amended proposal on the views from 104 Bower Street are confined to apartment 1 on the lower ground floor at the rear of the building and the walkway on the south-eastern side of the building. The amended proposal preserves the iconic views from apartment 2, at the rear of the building on the ground floor and from the apartments on the upper floor. I am satisfied that this represents a fair balance in terms of view sharing between the adjoining properties. To maintain the existing views from apartment 1 and the walkway to apartments 2 and 3, across the centre of the site would, in my view, unreasonably compromise the development potential of the amalgamated site.
109 Bower Street
83The experts agreed on site that the original proposal retained the views of Shelly Beach and the Fairy Bower headland from the front porch of 109 Bower Street and the amended proposal resulted in the retention of the majority of the view of the Marine Parade walkway, to the east.
84I accept the agreement of the experts and I am satisfied that the amended proposal would have, at most, a negligible impact on the existing view from 109 Bower Street and that there is no loss of any iconic elements of the view.
103 Bower Street
85103 Bower Street is a residential flat building with a basement garage at street level. Apartment 1 is located on the ground level, above the basement garage, with a large terrace on the north-eastern elevation, opening from the living areas and a bedroom on the south-eastern side. Apartment 2 is located over two levels, above apartment 1, with a terrace on the first floor on the south-eastern side, above the centre of the terrace of apartment 1. There are views from both terraces, across the front boundary and over the buildings on the low side of Bower Street.
1/103 Bower Street
86The views from the terrace of apartment 1 include Shelly Beach, the Fairy Bower headland and views of the water, including the surf break. The view is available from the entire width of the terrace and from the bedroom window.
87The experts disagreed on the extent of the impact for apartment 1. In Mr Minto's opinion, the impact of the amended proposal on apartment 1 is minor, as the iconic elements of the view are not affected and in Mr Layman's opinion, this impact is moderate.
88The changes to the view from the terrace of apartment 1 will be caused by the differences between the profile of the flat roof of the portion of the amended proposal fronting Marine Parade and the hipped roof of the existing residential flat building fronting Marine Parade at 12-13 Marine Parade. The flat roof of the amended proposal is lower than the ridge of the hipped roof of the existing residential flat building, however the flat roof will obscure a triangular portion of the water view, currently visible on either side of the hipped roof of the existing building, while a triangular section of the water view currently obscured by the apex of the ridge of the hipped roof will become visible from the terrace of apartment 1.
89The amended proposal has a greater setback from its south-eastern side boundary, shared with 98-100 Bower Street, than the existing residential flat building at 12-13 Marine Parade, which will increase the width of the narrow view between the two buildings fronting Marine Parade.
90For reasons set out later in the judgment, I am satisfied that the form and height of the portion of the amended proposal fronting Marine Parade is of an appropriate height, bulk and scale, within its context and meets the objectives of the controls. The amended proposal preserves the iconic views from apartment 1 and I am satisfied that this represents a fair balance, in terms of view sharing between the site and apartment 1, on the high side of the street opposite the site.
2/103 Bower Street
91The experts agreed that the amended proposal has a minor impact on the views from 2/103 Bower Street, caused by the difference between the profiles of the flat roof of the portion of the amended proposal fronting Marine Parade and the hipped roof of the existing residential flat building, as described in paragraph 89 above.
92I accept the agreement of the experts and I am satisfied that the amended proposal would have, at most, a minor impact on the existing view from 2/103 Bower Street and that there is no loss of any iconic elements of the view.
101 Bower Street
93101 Bower Street is a Federation era house which has been converted into a residential flat building, with a four storey addition on the north-eastern side, facing Bower Street. There is a basement carpark accessed from Bower Street, with an apartment on each level over. Each apartment has its living areas and a terrace within the addition, with an outlook across the front boundary, over the buildings on the low side of Bower Street.
94The views from the living rooms and terraces of the apartments at 101 Bower Street include Shelly Beach, the Fairy Bower headland and views of the water, including the surf break.
1/101 Bower Street
95The experts agreed on the extent of the impact for apartment 1, which was characterised as negligible by Mr Minto and minor by Mr Layman. The changes to the view from the terrace of apartment 1 will be caused by the difference between the profiles of the flat roof of the portion of the amended proposal fronting Marine Parade and the hipped roof of the existing residential flat building, as described in paragraph 89 above.
96For reasons set out later in the judgment, I am satisfied that the form and height of the portion of the amended proposal fronting Marine Parade is of an appropriate height, bulk and scale, within its context and meets the objectives of the controls. The amended proposal preserves the iconic elements of the views from 101 Bower Street and I am satisfied that this represents a fair balance, in terms of view sharing between the site and apartment 1.
2 and 3/101 Bower Street
97The experts agreed that the impact of the amended proposal on views from apartments 2 and 3 reduced when compared to apartment 1, as their terraces are on higher levels.
98I accept the agreement of the experts and I am satisfied that the amended proposal would have, at most, a minor impact on the existing views from apartments 2 and 3 and that there is no loss of any iconic elements of the views.
99 Bower Street
9999 Bower Street is a residential flat building which has been converted from a semi-detached dwelling and shares a party wall with 97 Bower Street. 99 Bower Street has a garage at the Bower Street level and a terrace to apartment 1, over the garage. Apartment 2 has a balcony on the south-eastern elevation, over the terrace of apartment 1. There are views from both the terrace and the balcony, across the front boundary and over the buildings on the low side of Bower Street, to the Long Reef headland in the distance.
100The experts agreed that the extent of the impact of the amended proposal for apartment 1 is moderate. The experts agreed that the amended proposal results in an improvement in the retention of the view from the terrace over the garage, however the Long Reef headland view will be lost.
101The experts agreed that the extent of the impact for apartment 2 on the upper level is minor, Mr Layman characterising it as minor to moderate. I accept the agreement of the experts.
102For reasons set out later in the judgment, I am satisfied that the form and height of the portion of the amended proposal fronting Marine Parade is of an appropriate height, bulk and scale, within its context and meets the objectives of the controls. The impact of the amended proposal on the views from 99 Bower Street are confined to apartment 1 on the ground floor, as the amended proposal preserves the views from apartment 2, on the upper floor. Being on the ground level, above the garage, the views from apartment 1 are more vulnerable to being obscured by development on the lower side of Bower Street. The view of Long Reef headland, from the terrace over the garage at 99 Bower Street, is to the north and across the site at an angle. Bower Street falls to the south-east, so that the properties to the south of the proposal, on the lower levels, are particularly vulnerable to loosing part of their views to the north, over the site, than the properties further up Bower Street. It is also the process of amalgamating two lots and constructing a single development on the site, with new bulk in the centre of the site, that results in the loss of views across the centre of the site. It would impose an unreasonable constraint on the development potential of the site to have to retain the open space in the centre of the site. I am therefore satisfied that the amended proposal results in a fair balance in terms of view sharing between the site and 99 Bower Street.
97 Bower Street
10397 Bower Street is a contemporary semi-detached dwelling, which shares a party wall with 99 Bower Street. 97 Bower Street has a double garage at the Bower Street level, a terrace on the ground level over the garage, opening from the bedroom and study, a terrace on the first floor opening from the living areas and a terrace of the roof with a swimming pool. There are views from all the terraces, across the front boundary and over the buildings on the low side of Bower Street.
104The experts agreed that the amended proposal retained the view of the Long Reef headland from the terrace on the first floor, however the view of Long Reef, from the ground floor terrace off the bedroom and study, would be obscured by the amended proposal.
105The experts disagreed on the extent of the impact for 97 Bower Street. In Mr Minto's opinion, this impact is negligible, as the view is not impacted on terrace on the first floor, opening from the living areas, nor the roof terrace. In Mr Layman's opinion, this impact is moderate.
106The extent of the impact must be assessed for the whole of the property and not just for the view that is affected (Tenacity planning principle par 28). In my opinion, the overall the impact is minor, because the existing views from the living room, the living room terrace and the roof terrace are preserved and there is an impact on one iconic element, the Long Reef headland, from the bedroom terrace on the ground floor. For reasons set out later in the judgment, I am satisfied that the form and height of the amended proposal is appropriate within its context and meets the objectives of the controls, while not complying with all the numeric controls. The view of Long Reef headland, from the bedroom terrace over at 97 Bower Street, is to the north and at an angle across the site. Bower Street falls to the south-east, so that the properties to the south of the proposal, are particularly vulnerable on the lower levels to loosing part of their views to the north, across the site, than the properties further up Bower Street. In considering these circumstances and taking in consideration the impact of the proposal on the whole of the property and not just the view that is affected, I am satisfied that the amended proposal represents a fair balance in terms of view sharing between the site and 97 Bower Street.