Nusalim v North Sydney Council

The site and its context

1. The site is located on the northern side of Billong Street between Shellcove Road and Kurraba Road, with a steep fall of around 9m from the rear of the site, to the street frontage.
2. Relevantly, there is a prominent sandstone rock outcrop occupying the rear half of the site. The existing dwelling is located forward of this outcrop on the site, and so is visible from Billong Street, as is a series of sandstone block walls retaining garden beds in the road reserve, and to the front of the site itself.
3. The site is legally described as Lot 15 in DP 8068, having a total site area of 696.6m2.
4. The topography on the site, and in the immediate vicinity is distinctive for the steep and sudden changes in level between properties and the street, and between the adjoining properties on Billong Street.
5. The site is located within the R2 Low Density Residential zone according to the North Sydney Local Environmental Plan 2013 (NSLEP), in which dwelling house development is permitted with consent, where consistent with the objectives for development in the R2 zone.
6. The objectives of the R2 zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage development of sites for low density housing, including dual occupancies, if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area. • To ensure that a high level of residential amenity is achieved and maintained.
7. The site is also located within the Kurraba Point HCA, being identified as an item that makes a 'neutral' contribution to the character of the Kurraba Point HCA.
8. The site is also within the area identified in the North Sydney Development Control Plan 2013 (NSDCP) as the South Cremorne Planning Area, about which more will be said.

The contentions

1. The contentions in this matter include those set out in the Statement of Facts and Contentions, prepared by the First Respondent and filed on xx May 2022 (Exhibit R2).
2. The contentions pressed by the First Respondent at the commencement of the hearing may be summarised as follows: 1. Unacceptable Impact on Kurraba Point Conservation Area 2. Unacceptable Bulk and Scale and Uncharacteristic Design 3. Unacceptable view impacts 4. Unacceptable Privacy Impacts 5. Unacceptable Landscaping Outcome
3. It is also relevant to record here that an additional Statement of Facts and Contentions was filed with the Court on 2 June 2022, in accordance with Short Minutes of Order made by Justice Moore of this Court who granted an application for joinder to the owners of No 4 Billong Street (Second and Third Respondent), and the owners of No 7C Penshurst Avenue (Fourth and Fifth Respondent).
4. In granting joinder, His Honours orders included, at Order (2): The Second Respondent, Third Respondent, Fourth Respondent and Fifth Respondent are to file and serve a Statement of Facts and Contentions, limited to the following contentions by 2 June 2022: a. Building height - No written request to vary the maximum height of building development standard has been provided with the Development Application, in accordance with cl 4.6 of the North Sydney Local Environmental Plan 2013; and b. Topography (rock outcrop).
5. At order (3), His Honour granted leave to the Applicants on the Motion to rely upon the following documents: a. Town planning Report prepared by Scott Barwick, dated 17 May 2022 (Tab 21 to Exhibit AC-1); b. Supplementary Town Planning Report prepared by Scott Barwick (Tab 22 to Exhibit AC-1), dated 23 May 2022; and c. Photomontages and Supporting Reports prepared by Leonid Medvedskiy (Annexures A-P to the Affidavit of Ashleigh Cowper affirmed 31 May 2022).
6. In its consideration of the matters in dispute, the Court was assisted by the following experts: 1. In respect of built heritage; Mr Graham Brooks for the Applicant, and Ms Lucinda Varley for the First Respondent, who conferred in the preparation of a joint heritage expert report (Exhibit R4). 2. In respect of town planning; Mr Greg Boston for the Applicant, Mr Robert Tse for the First Respondent, and Mr Scott Barwick for the Second-Fifth Respondents, who conferred in the preparation of a joint town planning expert report (Exhibit R3).
7. The Applicant objected to pars 113-115 of Exhibit R3 dealing, in essence, with the rear setback resulting from the decision of the Applicant to build over the rock outcrop, on the basis that it was beyond the scope of the order at [20], and related to matters not expressly cited by His Honour.
8. I admitted Exhibit R3 in its entirety as order (2)(b), in my view, adopted the wording of the Contention as drafted by the Second-Fifth Respondent's and, by reference to Mr Barwick's Report, also absorbed Mr Barwick's assessment of the rock outcrop and the rear setback in the scope of in order (3)(a). I also granted the Applicant leave to adduce evidence from Mr Boston on the issue of rear setback.
9. In opening submissions, Mr To, counsel for the Applicant, advised the Court that amended architectural plans had been prepared, responsive to issues identified by the experts.
10. The Applicant was granted leave, unopposed, to rely upon amended plans, with a schedule of changes identifying amendments summarised as follows: 1. Material change to steel balustrade (previously glass), increasing portal frame thickness 2. Material change to front elevation - removing horizontal louvres and increasing glazing mullion thickness, recess glazing line to create 400mm overhang from roof 3. Correcting height breach over services adjacent to the lift overrun 4. Excavating a portion to the top of the rock to accommodate lowering of level 1 floor slab (reduce level 01 slab from RL44.80 to RL 43.49) 5. Reducing building width to bedroom pavilion by 1000mm. Increase boundary setback from 3860mm to 4860mm. 6. Reducing building height to upper pavilion by 1310mm (reduce roof slab from RL48.00 to RL46.69, and reduce Roof Parapet from RL48.15 to RL46.84)
11. The First Respondent, as the relevant consent authority, agreed pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application No 326/21 by reference to the amended architectural plans that were marked Exhibit C, and the Court directed the amended application be lodged on the NSW Planning Portal, confirmation of which was filed with the Court on 15 June 2022.
12. As a result of the amended architectural plans at Exhibit C, parties agree the proposal resolves the contention with respect to the height of the building, and the matters distilled, largely, into three areas of contention I summarise as follows: 1. Impact on the Kurraba Point Heritage Conservation Area 2. Bulk and Scale and Uncharacteristic Design 3. Amenity impacts

Heritage

1. The subject site is not listed in Schedule 5 of the NSLEP for its heritage significance, but as it is located within the Kurraba Point HCA. Accordingly, cl 5.10 of the NSLEP applies.
2. Also relevant to the Court's consideration of the matter is Section B13.6 of the North Sydney Development Control Plan 2013 (NSDCP) that classifies buildings located within a heritage conservation area, but which are not themselves a heritage item, in one of three ways: as contributory, neutral or uncharacteristic.
3. The subject site is identified, along with around 124 other sites in the Kurraba Point HCA, as a neutral item, which is described in the following terms: Neutral items are not defining, but do not detract from the overall character of a conservation area. They often represent the original era of development and may display the predominant architectural style. The focus for neutral items is how the building appears in the street and public domain. The intention is to achieve a neutral or improved built outcome by removing previous unsympathetic alterations, or adding features that are characteristic of an area.
4. General Objectives for Heritage Conservation Areas is set out at Section 13.6.1 of the NSDCP in the following relevant terms: Objectives O1 Ensure that new development is designed to retain and complement the character and significance of the conservation area (refer to Part C of this DCP for a description of the significance of the heritage conservation area). … O3 Enable neutral items to be improved such that they contribute to the character of the heritage conservation area through the removal of unsympathetic and inappropriate elements, and reinstating missing details where appropriate. O4 Encourage change that will remove uncharacteristic items or reduce the extent of their intrusion.
5. The Area Character statement cited at Section 13.6.1, Objective O1 of the NSDCP is, in this case, the Kurraba Point Conservation Area is at Section C6.2 of the NSDCP.
6. The Area Character statement comprises the following components:

• 6.2.1 History
• 6.2.2 Description
• 6.2.3 Statement of Significance
• 6.2.4 Significant elements
• 6.2.5 Characteristic buildings
• 6.2.6 Uncharacteristic built elements
• 6.2.7 Uncharacteristic elements.

1. The chapeau to the Area Character Statement for the South Cremorne Planning Area, at Section C6 of the NSDCP, is as follows: "South Cremorne is a green, leafy area sympathetic to its harbourside setting. The design of new buildings is to be sympathetic to the landscape and character of buildings within the locality, complementing existing building forms in respect to massing, composition, materials, colours and maintaining the original subdivision pattern. Development within the Planning Area should result in: • no substantial change to residential densities • no significant change in intensity of development • a wide range of single household residential types being distributed in a number of distinctive built form/landscape areas • the conservation of features which contribute to the local identity."
2. The Statement of Significance for the Kurraba Point HCA, at Section C6.2.3 is in the following terms: The Kurraba Point Conservation Area is significant: (a) As an early harbourside suburb that has retained significant elements if its major 19th century development phase with good examples of later periods of development including some fine inter war flat buildings. (b) For the large number of architecturally distinguished homes some that have a strong relationship with the water and include the works of B. J. Waterhouse, Jefferson Jackson and Walter Liberty Vernon. (c) For its irregular subdivision pattern with irregular street pattern and widths that allied to the topography and plantings and mature trees add to a high quality luxuriant character.
3. The experts agree that the existing dwelling dates from the latter end of the core period of development in the Kurraba Point HCA (1860s-1930s) and that the existing sandstone block garage entry portal, and to some degree, the roof, "makes some contribution" to the heritage significance and character of the streetscape, but the glazed enclosure of the original front verandah and the projecting deck on the SE corner of the dwelling detract from the original dwelling.
4. The experts also agree the proposed rear addition is generally acceptable in heritage terms as it is not easily seen from the public domain.
5. In arriving at this opinion, Ms Varley also concedes that the provisions of Section B13.10.1, encouraging subservient development to the rear, are unachievable on the site as the four examples illustrated in provisions P2, re-produced below, do not account for the particular topography on this site:
6. However, Ms Varley's view is that the proposal relies on the almost total demolition of the existing 1924 cottage, with only minimal efforts made to retain the side walls at the ground floor. This is contrary to the thrust of the NSDCP which, unlike local government areas, places value on the role played by neutral items in a heritage conservation area such as this.
7. At pp21-22 of the joint report, Ms Varley provides a schedule of elements and features apparent in the existing building that are consistent with the characteristics of the area.

Bulk and Scale and Uncharacteristic Design

1. Section B13.6.2 of the NSDCP deals with form, massing and scale of new development in a heritage conservation area, with objectives to ensure new development has a compatible and complementary building form and scale to that which characterises the conservation area (Objective O1), and to maintain and enhance streetscape character as identified within the Area Character Statements (Objective O2).
2. Provision 5, Section B13.6.2 is in the following terms: P5. Achieve a neutral outcome to neutral items or improved outcome to neutral items which were constructed in the core period of development by: (a) respecting original or characteristic building patterns in terms of bulk, form, scale and height; (b) minimising changes to original and characteristic features; (c) removing unsympathetic and uncharacteristic changes and/or; (d) reinstating characteristic details where there is physical or documentary evidence.
3. The planning experts are agreed that the sandstone base, vertical windows and front facing gable roof is consistent in material and detail to that evident in adjoining dwellings, and also agree that the bulk and scale of the development is generally acceptable when viewed from Billong Street, and in the visual catchment more broadly, subject to amendments now reflected in the Exhibit C plans.
4. Where the planning experts diverge is whether the bulk and scale of the rear portion of the proposal, founded on the rock outcrop, is acceptable.
5. Mr Boston and Mr Tse consider the positioning of the rear portion acceptable as the majority of the outcrop is retained, but agree further lowering could be achieved by more excavation of the outcrop.
6. Mr Barwick disagrees on the basis that the top of the rock outcrop is around 4.4m above the ground floor level of No 4 Billong Street, and the roof of the rear portion of the proposal is around 8.9m above the floor level of No 4 Billong Street, noting this is before the lowering at [26(6)].
7. Even taking the reduced height into account, Mr Barwick regards the objectives and provisions of the NSDCP in respect of Topography simply preclude development on top of the rock outcrop.
8. Section B1.3.1 of the NSDCP deals with Topography, with objectives in the following terms: Objective O1 To ensure that the natural topography and landform are maintained. O2 To retain existing vegetation and allow for new substantial vegetation and trees. O3 To minimise the adverse effects of excavation on the amenity of neighbouring properties. O4 To minimise excavation and site disturbance so as to retain natural landforms, natural rock faces, sandstone retaining walls and the like and to retain natural water runoff patterns and underground water table and flow patterns. O5 To ensure the structural integrity of adjoining properties. O6 To minimise adverse effects of adjoining transport infrastructure.
9. The relevant provisions are: P2 New development should not result in the removal or covering of rock outcrops, overhangs, boulders, sandstone platforms or sandstone retaining walls. … P10 Where practical, (a) a minimum of 50% of the un-excavated area should be located at the rear of the site. Sites with dual or rear lane frontages, this area may be relocated to allow buildings to address the secondary frontage. (b) a minimum of 30% of the unexcavated area should be located within the front setback. (c) a minimum 1.5m wide strip of landscaped area should be located along at least one side boundary. A minimum 1.5m wide strip should be provided along both boundaries where the site width permits
10. Furthermore, Mr Barwick considers disregard for the above objectives and provisions results in a rear setback that is uncharacteristic of the area, primarily because it fails to match those on adjoining properties, when the rear setbacks on adjoining properties are correctly understood.
11. Section B1.4.6 of the NSDCP deals with setbacks, with the following objectives: O1 To reinforce the characteristic pattern of setbacks and building orientation within the street. O2 To control the bulk and scale of buildings. O3 To provide separation between buildings. O4 To preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of shadowing, privacy, views, ventilation and solar access.
12. Provision P5 addresses the rear setback in the following terms: P5 Provide rear building setbacks that match those on adjoining properties, or, if adjoining properties are not characteristic, with setbacks identified in the relevant area character statement
13. According to Mr Boston, as the area character statement is silent on rear setbacks, the Applicant has matched those on adjoining properties, including No 8 Billong Street, which is extended by virtue of the habitable cottage built on an elevated area of the rock outcrop at the rear of that property said by the resident submitter at that address to have been excavated some time prior.
14. Likewise, the rear setback at No 7C Penshurst Avenue is around 1600mm, and that of No 4 Billong Street extends deep into the site and so also provides an extended rear setback that Mr Boston considers appropriate to match, consistent with the text of Provision P5.
15. The result in the proposed development is a rear setback of 8350mm providing for landscaping and, when the levels on adjoining properties are considered, reasonable privacy.
16. Mr Barwick's opinion is that the correct understanding of the rear setbacks to be matched on adjoining properties is shown in the aerial image contained in Exhibit RX-2, Tab 3 (Attachment 3), showing rear setbacks to Nos 4 and 8 Billong Street to be anomalous when the properties immediately beyond are also considered.
17. It is this bulk and scale that the experts agree imposes an impact on the view from No 7C Penshurst Avenue that is somewhere between severe and devastating in certain areas of the ground floor level.

Amenity Impacts

1. The built form proposed on the rock outcrop obstructs views of Sydney Harbour, Clark Island, and the land/water interface currently enjoyed by the owners of No 7C Penshurst Avenue, to the rear, and views from No 4 Billong Street to Cremorne Point, and to parts of Shell Cove.
2. Privacy and overshadowing impacts are also said to arise, primarily to the dwelling at No 4 Billong Street, but also to No 7C Penshurst Avenue.
3. Solar access to the ground floor kitchen and informal dining area to the north east corner of No 4 Billong Street was noted at the onsite view, with the line of sun and shadow cast on to the north eastern façade of the property identified by the solicitor for the Respondent at the onsite view, being conducted around 2 weeks before the winter solstice.

View Impacts

1. Section B1.3.6 of the NSDCP deals with Views. The chapeau states: "Due to North Sydney's sloping topography and proximity to Sydney Harbour, views and vistas comprise special elements that contribute to its unique character and to the amenity of both private dwellings and the public domain New development has the potential to adversely affect existing views. Accordingly, there is a need to strike a balance between facilitating new development while preserving, as far as practicable, access to views from surrounding properties. When considering impacts on views, Council will generally not refuse a development application on the grounds that the proposed development results in the loss of views, where that development strictly complies with the building envelope controls applying to the subject site."
2. In the circumstances of this case, the relevant objective is: … O2 To encourage view sharing as a means of ensuring equitable access to views from dwellings, whilst recognising development may take place in accordance with the other provisions of this DCP and the LEP.
3. The Class 1 application is supported by a Visual Impact Assessment Report prepared by Urbaine, dated October 2021 (Exhibit A, Tab 8).
4. However, in the planning joint expert report, the experts engage to a greater extent with the degree of impact informed by height poles erected on the site, with images provided by the owners of No 7C Penshurst Avenue, images taken by Mr Boston, and with photomontages prepared by Digital Line for the Second to Fifth Respondents (Digital Line Images) from seven viewpoints (Exhibit RX-2, Tab 5).
5. As the Digital Line Images depict the proposal prior to the lowering of the rear portion, and inset of the side setback, in Exhibit C plans, the experts were directed to confer and, if possible, agree on the revised extent of the envelope likely to result at those viewpoints from which the Digital Line images were developed.
6. The experts marked agreed lines indicating the revised extent of the rear portion of the proposed development as contained in the Exhibit C plans for Viewpoints 4-7 that were marked Exhibit RX-3. The experts were unable to agree on the same for Viewpoints 1-3.
7. The experts agree that the lowering of the rear portion by 1,310mm results in a reduction of the view obstruction at Viewpoint 4 that equates to around half the height when the existing ridgeline of the cottage is used as a reference point. The consequence of the reduction from this Viewpoint, taken from a position inside the ground floor living and casual dining rooms of No 7C Penshurst Avenue, is that some boats moored in Shell Cove would be visible from a standing position.
8. Viewpoint 5 is taken forward of Viewpoint 4, although with a different focal length, from the French doors leading on to the south facing terrace. The view is similar to, but taken slightly to the west of, that depicted at Figure 20 of the joint report.
9. Viewpoints 6 and 7 are taken from the kitchen and family room that currently enjoy views south to the harbour, south-west to the Opera House, Sydney CBD, Harbour Bridge and the North Sydney CBD.
10. In the joint report, Mr Boston regards the impact of the proposal from Viewpoints 6 and 7 to be severe, while the impact on Viewpoints 4 and 5 is moderate, partly due to a sightline to Clark Island being retained from a location in the casual dining room, and partly to acknowledge the totality of the views, which include those views to the south-west and west enjoyed from the kitchen and family rooms.
11. In contrast, Mr Barwick believes understanding the totality of views must also recognise those views to the south-west and west are fundamentally different to the drama and interest of the views enjoyed by No 7C Penshurst Avenue of the Harbour. The impact on views is therefore more appropriate to rate as severe to devastating.
12. On the basis of the image at Figure 20, which includes a marker at the level of the parapet now depicted in the Exhibit C plans, Mr Boston and Ms Tse agree the view to the harbour would be improved by the additional 1m setback now incorporated in the Exhibit C plans, and that a view of Clark Island would be retained.
13. Given the limited size and print resolution of Figure 20 in the joint report, the Court was assisted by the image, agreed by the experts as the base photograph used in formulating Figure 20, being projected onto the large AVL screens in Court. The image was marked Exhibit D, and resulted in the agreement of the experts that Clark Island would be visible from the casual dining room, notwithstanding the 'flared' geometry of the pitched roof that connects the rear and front portions of the proposal.
14. In his oral evidence, Mr Tse accepts that his view on the lowering of the rear portion by 1,310mm was not made by reference to photomontages, but so as to match the ridge height of the front portion of the proposal, at RL46.84, which he regards as an appropriate benchmark of a more skilful design, given the proposal otherwise complies with the controls applicable to the site.
15. It is commonly held by Mr Boston and Mr Tse that the proposal provides equitable access to views and should be considered 'complying' within the meaning the fourth step in the planning principle set out in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 (Tenacity) due to the rear portion sitting between 4-5m below the prescribed maximum building height, and being in conformity with setback controls.
16. As for the view impact on No 4 Billong Street, Mr Barwick considers the views from the first floor study to Mosman Bay and Shell Cove to be affected by the proposal, and I note the written objection prepared by Mr David Liddy on behalf of the owners of No 4 Billong Street dated 3 December 2021 (Exhibit R6, Tab 17) mentions the loss of extensive views to the east (folio 211), and the likely loss of existing privacy, due to the extent of large areas of glazing addressing the boundary with No 4 Billong Street.

Solar access

1. The written submission at [84] also expresses concern at overshadowing likely "from dawn until past midday".
2. The experts, at par 71 of the joint report, are satisfied that compliant levels of solar access will be maintained to surrounding development between 9am-3pm on the winter solstice.
3. The Applicant relies on sun eye diagrams at Drawing A0490 to show the extent of solar access to No 4 Billong Street, noting openings to the kitchen and casual dining area to the north west of the ground floor were not included in the 3 dimensional model used to formulate the sun eye diagrams, as the precise location is not discernible from the survey (Exhibit A, Tab 3).
4. On the basis of the sun eye diagrams, and notwithstanding the omission of three openings on the 3 dimensional model, I accept the conclusion of the experts that sufficient solar access is permitted in to the eastern and northern elevations of No 4 Billong Street. The height of the openings omitted from the 3 dimensional model can be extrapolated from other openings on the model, and the location of those openings can be reasonably determined from the survey.

Privacy

1. The Statement of Facts and Contentions (Exhibit R1) identifies privacy impacts on adjoining properties arising from the deck extending to the north from the Rumpus room in the rear portion of the proposed development.
2. According to Mr Barwick, the impact only arises as the proposal fails to conform to Section B1.3.1, Provision P2 precluding the removal or covering of rock outcrops.
3. Mr Boston and Mr Tse regard the separation distance, proposed landscape treatment and angle of sightline between No 7C Penshurst Avenue and the subject site to be acceptable, but agree privacy between the properties would be aided by the addition of a planter to the edge of the rear deck.

Conclusion

1. On the face of it, a strict application of the objectives and provisions of the NSDCP would appear to preclude development on this site by way of demolition (Section 13.8, Provision P5), in front of the existing dwelling, or an additional storey above the existing dwelling (Section B13.10.1, Provision P2) or, by virtue of the large rock outcrop, development to the rear of the dwelling (Section 1.3.1, Provision P2).
2. It may be observed then that development on this site is literally a case of being positioned between a rock and a hard place.
3. The upshot of the constraints described at [92] is that some form of demolition is, in my view, inevitable for the orderly and economic use development on this site.
4. Demolition is not wholly precluded by Provision 5 of Section B13.8 of the NSDCP, where the subject building is a neutral item in the Kurraba Point HCA, as is the case here.
5. I accept Mr Brooks' evidence that the constraints at [92] so limit options for development that the existing dwelling is not capable of adaptation or modification, and that the proposal improves the contribution of the site to the area's character in terms of form, setbacks, bulk, scale, materials and style because, when the architectural plans at Exhibit C are properly understood, the proposal is consistent with the following characteristic built elements identified at Section C6.2.6 of the NSDCP:

• the proposal is generally located centrally on lots with front and rear garden (Provision 1).
• comprises both a single and two storey detached dwelling house with a gabled roof (Provision P2)
• But for the imposition of the rock outcrop, the proposal reduces in height and scale to the rear (Provision P3)
• Perspective 01 (Exhibit C, Drawing A 0000), re-produced below, depicts a strong skyline of simple, pitched roofs visible from the street, stepped along the slope of Billong Street (Provision P5), of between 30-45 degrees in pitch (Provision P7), utilising slate as a material (Provision P11).
• Materials that dominate the street are rendered brick and sandstone block, predominantly at the base (Provision 10).

1. This is supported, in large part, by the evidence of the planning experts who agree the use of sandstone base and vertical windows, and gable roof to the front façade is consistent in detailing and materiality to adjoining dwellings.
2. Ms Varley considers the proposal to be at odds with the characteristic buildings in the Kurraba Point HCA. However, I understand the terms 'Federation', 'Edwardian' and 'inter war' to be, first, references to an era, and to a style second. That is, it is well established that certain eras resulted in styles named after the era, thanks to developments in materials technology, economics, social make up and, to some extent, fashion of the day.
3. Accordingly, characteristic buildings defined at Section C6.2.5 of the NSDCP are likely to, firstly, refer to an era or time, and secondarily to style.
4. References therefore at Section C6.2.5 must be to buildings from a certain era, displaying characteristics of that era. The description of characteristic buildings in the Kurraba Point HCA, at [45], is not a description of preferred features, traits, materials or elements. Rather, characteristic buildings are described by reference to certain periods and styles that new development can never achieve, and so with which a new development will always be at odds.
5. I accept Mr Brooks' evidence that the proposal does not imitate a style described at Section C6.2.5 of the NSDCP, but instead adopts certain features and elements that are reflective of characteristic buildings in the Kurraba Point HCA, such as the gabled roof form finished in slate that is agreed to be common in the Kurraba Point HCA, recessed pediment fronting Billong Street, inset by around 400mm, louvred detail that connotes the horizontal patterning of the shingles evident on Nos 4, 8 and 10 Billong Street, and sandstone walling including moulded top dress course evident at the junction with the first floor.
6. As for the elements considered by Ms Varley to be uncharacteristic, evident in the modern façade and areas of extensive glazing, for the reasons described at [96]-[101], I accept the Applicant's submission that the proposal has a compatible and complementary building form and scale to that which characterises the conservation area, and maintains and enhances the streetscape character as identified within the relevant Area Character Statement, consistent with the objectives of Section B13.6.2, and so I accept the provisions of the C6.2.7 of the NSDCP should be applied flexibly, pursuant to s 4.15(3A)(b) of the EPA Act.
7. In reaching this conclusion, I have also had regard to the aims of the NSLEP that relevantly seek to ensure that new development is compatible with the desired future character of an area in terms of bulk, scale and appearance.
8. The provisions of cl 5.10 of the NSLEP apply, and relevantly provide: (1) Objectives The objectives of this clause are as follows - (a) to conserve the environmental heritage of North Sydney, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, … (2) Requirement for consent Development consent is required for any of the following - (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance) - … (iii) a building, work, relic or tree within a heritage conservation area, … (e) erecting a building on land - (i) on which a heritage item is located or that is within a heritage conservation area, or … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). (5) Heritage assessment The consent authority may, before granting consent to any development - (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.
9. The Second-Fifth Respondent submits that a Conservation Management Plan should be required, consistent with cl 5.10(5)(c) of the NSLEP.
10. Mr Brooks counsels that while the term 'significant fabric' may appear cognate with the assessment of 'significance' to be undertaken in respect of the HCA, the terms are distinct.
11. 'Significant fabric' invokes a descriptor of physical materials with particular historic import, whereas the term 'heritage significance' is a term of art inviting qualitative assessment of character against certain identified values.
12. I accept Mr Brooks' description of the terms and do not understand that a building or place, this is not identified to have heritage significance beyond being a 'neutral item', comprises 'significant fabric' as the term is understood in heritage practice.
13. The Statement of Heritage Impact, prepared by GBA Heritage (Exhibit A, Tab 10), confirms the following approach to existing fabric (p 11): Retention of as much of the external walls, including: Exterior wall and window openings of western elevation and part of the northern elevation. Majority of eastern external wall Salvage the southern house stonework for reassembly Façade and eastern wall of the garage
14. On the above basis, I find sufficient consideration has been given to the conservation of existing fabric, being the retention of built elements in situ, or of material for reuse. However I note the parties have agreed the terms of a Schedule of Conservation Works at Condition 26.

Views

1. Section B1.3.6 of the NSDCP deals with Views, and the chapeau to which states: Due to North Sydney's sloping topography and proximity to Sydney Harbour, views and vistas comprise special elements that contribute to its unique character and to the amenity of both private dwellings and the public domain New development has the potential to adversely affect existing views. Accordingly, there is a need to strike a balance between facilitating new development while preserving, as far as practicable, access to views from surrounding properties. When considering impacts on views, Council will generally not refuse a development application on the grounds that the proposed development results in the loss of views, where that development strictly complies with the building envelope controls applying to the subject site.
2. In the circumstances of this case, the relevant objective is: … O2 To encourage view sharing as a means of ensuring equitable access to views from dwellings, whilst recognising development may take place in accordance with the other provisions of this DCP and the LEP
3. The living, dining and kitchen areas within No 7C Penshurst Avenue enjoy iconic views from a number of vantage points in the dwelling. Without question, a portion of the view to the Harbour will be lost if consent is granted to the proposal.
4. The Applicant submits that as the view loss from No 7C Penshurst Avenue is not total, and is caused by a single storey built form that is modest and well within the building envelope controls applying to the site, the proposal is the epitome of view sharing, as understood in the planning principle at [25]-[29] of Tenacity, cited in Section B1.3.6 of the NSDCP.
5. The planning principle in Tenacity considers a development that complies with all planning controls to be more reasonable than one that breaches them, stating: … 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. …
6. The experts agree that the proposal complies with the planning controls, but for Mr Barwick's concern at the rear portion of the development covering the rock outcrop, and encroaching on what he considers a complying rear setback.
7. While a numerical value was not sought from the experts or the parties, architectural drawing A0105 (Exhibit C) indicates, in my assessment, around 25-30% of the top-most portion of the rock outcrop is proposed to be built upon. In plan, the extent of the rear portion of the development approximates, appropriately in my view, the rear setback of its neighbouring properties, including the setback at No 8 Billong Street that is demarcated by the rear dwelling, also founded on excavated rock outcrop.
8. The result is that the substantial majority of the natural topography and landform, in this case the rock outcrop, is maintained consistent with Objective 1, Section B1.3.1 of the NSDCP, and excavation and site disturbance are minimised so as to retain natural land forms (Objective 4). Additionally, given the modest extent of excavation at the top of the rock outcrop, shown at its greatest in section 2 on architectural drawing A0300 (Exhibit C) re-produced below, I consider the adverse effects of excavation on the amenity of neighbouring properties to be minimised (Objective 3).
9. In considering whether a more skilful design could provide the Applicant with the same development potential and amenity, while reducing the impact on the views of the neighbouring properties, I note the heritage experts agree two alternatives that may be potentially acceptable in heritage terms, described in the joint report firstly, as a two-storey pavilion style dwelling at the rear that would, in my assessment, wholly obliterate views south to the Harbour, or secondly, to replace the proposed first floor with a basement that, in my view, would involve such extensive excavation as to require the total demolition of the existing dwelling that is said to be the purpose of the alterative in the first place, while providing limited amenity on the subject site given a level would be subterranean.
10. As to other alternative solutions, I accept Mr Brooks' assertion in the joint report that even the most minimal of addition of new floor area to the existing dwelling, such as rooms in the roof with dormer windows, would require alteration of the roof given firstly, its lower pitch and secondly, the short ridge length that is constrained by hips to the side setbacks.
11. This would likely require the raising of the ridgeline, as is proposed in this development application, resulting in some view loss to No 7C Penshurst Avenue, but would not provide the Applicant with the same development potential and amenity.
12. Instead, as is evident in the image at [118], the Applicant proposes a flat roof form over the rear portion that does not rise above the height of the ridgeline at the front of the proposal, partly as it is founded on a portion of excavated rock outcrop, and the experts agree that the north eastern setback and 'flared' roof form are designed in a manner that maintains a view of Sydney Harbour and Clark Island from the casual dining area and a portion of the outdoor terrace at No 7C Penshurst Avenue.
13. While a portion of the iconic view of Sydney Harbour will be lost from certain viewpoints on the ground floor of No 7C Penshurst Avenue, I conclude that, within those constraints set out at [92], and following amendments contained in the plans at Exhibit C, the proposal is a skilful design with a wholly compliant envelope, generous setback to the north eastern boundary, and a contiguous roof form designed to maintain a sufficient view corridor to Sydney Harbour from No 7C Penshurst Avenue to achieve equitable access to views from dwellings, whilst recognising development may take place in accordance with the other provisions of this DCP and the LEP (Objective 2, Section B1.3.6).
14. In reaching this conclusion, I have had regard to the relevant aims of the NSLEP that seek to ensure new development does not adversely affect residential amenity in terms of visual and acoustic privacy, solar access and view sharing, and maintain and protect natural landscapes, topographic features and existing ground levels.
15. The proposal has a reduced impact on foreground views of Shell Cove from the upper level of No 7C Penshurst Avenue from the original proposal the subject of the written objections lodged by the owners of the property (Exhibit R6, Tabs 16 and 18), while distant views to Clark Island, and Point Piper beyond are unaffected.
16. I also record here that I consider the view loss to No 4 Billong Street to be limited, likewise arising from a development that complies, and that has taken steps to minimise its impact. On the basis of the reduction in height in the Exhibit C plans, eastern views to Cremorne Point will be retained from the upper level of No 4 Billong Street, including the study, which enjoys views over a side boundary.
17. Finally, I have considered the concerns expressed by the owner of No 8 Billong Street. On the basis of the orientation of the sites with respect to north, and the sun eye diagrams at drawing A0490 (Exhibit C), I note no overshadowing will occur at winter solstice, when shadows are at their peak, between 9am and 3pm.
18. With respect to concerns over privacy and overlooking, I consider the steeply stepped topography between Nos 4, 6 and 8 Billong Street to heighten the likelihood of this as properties are elevated over downslope neighbours by the dramatic rock formations that create a form of benching in the immediate area. In other words, some overlooking is inevitable given the topography.
19. That said, I consider the setback of the proposal on the subject site to the north eastern boundary and the louvred screening proposed to areas addressing the boundary of the site with No 8 Billong Street to provide sufficient privacy. The external terrace addressing the same boundary, while at a level higher than the ridgeline of the roof at No 8 Billong Street, provides a sightline that is largely limited to the roof form of No 8 Billong Street, as illustrated in the Streetscape analysis drawings, A0460 (Exhibit C), re-produced in part below:
20. However, I accept the concern expressed at [84] by the submission on behalf of the owners of No 4 Billong that the extent of glazing shown on the west elevation, A 0211 (Exhibit C) would result in a loss of privacy, due to the proximity of such large areas of glazing to the boundary. I consider it appropriate to condition the obscuring of the glazing to the Lift Foyer, Entry, Powder Room and Pantry.

Pre-conditions to the grant of consent

1. There are certain pre-conditions to the grant of consent that the Court must consider.
2. I have considered the Preliminary Geotechnical Investigation report prepared by Aargus, dated 22 January 2020 (Ex A, Tab 9), the Stormwater Drainage Plans prepared by Partridge (Tab 4), the Landscape Plans prepared by Wyer & Co (Tab 5), and the proposed conditions of consent, and I conclude, pursuant to cl 6.10 of the NSLEP, that the proposed development will not have a detrimental impact on the environmental functions and processes, neighbouring uses, cultural or heritage items or feature of the surrounding land.
3. Consistent with the terms of cl 7 of State Environmental Planning Policy No 55 - Remediation of Land, the requirements of which were transferred to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazard SEPP) on 1 March 2022, I have given consideration to the potential contamination of the site. Given the extensive area of impervious rock, and the chronology of the site contained in the Statement of Heritage Impact, prepared by GBA Heritage, Exhibit A, Tab 10, I am satisfied the site is suitable for the purpose for which the development is proposed to be carried out, in accordance with cl 4.6 of the Resilience and Hazard SEPP.
4. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Cert No. A420152_03, dated 11 October 2021) prepared by Efficient Living Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.
5. For the reasons set out in this decision, I have formed the view that the proposed development warrants the grant of consent pursuant to s 4.15 of the EPA Act, subject to conditions of consent that are disputed.

Conditions of consent are disputed

1. The written objection at [125] expresses concern at the impact of the rear portion of the proposal on visual and acoustic privacy to No 7C Penshurst Avenue. The setback of the proposal from the rear boundary is 8350mm, while the setback of No 7C Penshurst Avenue is in the order of 1600mm, and the terrace closest to the boundary is elevated, with a downward sightline to the proposed rumpus room at the rear of the proposal.
2. The parties dispute whether a privacy screen should be imposed by condition of consent, should the Court be so minded.
3. Furthermore, the Second-Fifth Respondent proposes a condition of consent limiting the mature height of planting to the rear of the subject site so as not to obscure retained views to Sydney Harbour.
4. While the bulk and scale of the proposal, and its setback from site boundaries is acceptable, I also accept that there may be an inherent conflict between the use of the south facing terrace of No 7C Penshurst Avenue, and the large north-facing full height opening to the Rumpus Room, and external deck at the rear of the proposed development.
5. This conflict may be greatest when standing on the terrace at No 7C Penshurst Avenue, where the sightline is in a downward incline to the rear deck and opening to the rumpus room. In simple terms, the levels are such that No 7C Penshurst Avenue overlooks the rear of the subject site, and not the other way around as held by the Second-Fifth Respondents. I do not consider a fixed screen to be a fair solution given the limits it would place on the amount of northern sunlight able to be enjoyed on the rear deck or rumpus room on the subject site. I note a density, opacity or other metric has not been proposed for such a screen, nor a material, precise location or extent.
6. Instead, I consider it appropriate to impose a condition requiring an operable louvred screen to the rumpus room opening. This, in combination with the condition proposed to limit the mature height of landscape planting to the rear of the subject site, at Condition C28, will perform a role in limiting a sightline between the properties from a seated position at No 7C Penshurst Avenue.
7. Likewise, the condition agreed by the experts at [91] will alleviate the downward view from No 4 Billong Street to the rear deck.
8. For the reasons stated at [45], the Respondent seeks design changes to the proposal fronting Billing Street. The parties agree that new glazing to the front façade should be timber framed, with a painted finish.
9. The parties dispute further changes sought that would limit the extent of glazing in the gable, and full height glazing below, to four panels, with the outer most panels to be in solid construction.
10. For the reasons set out at [101]-[102], I do not accept the grounds on which the change is sought, and so adopt the Applicant's preferred form of the condition at Condition C1.
11. Furthermore, as the changes sought by the Respondent at Condition C1(c) has already been incorporated into the architecture drawings at Exhibit C, I adopt the Applicant's submission and strike this condition.
12. Finally, the parties agree to the placement of a stormwater drain in the north western corner of the site to address a concern at water ingress and overland flow raised in public submission by the owner of No 126 Kurraba Road. This condition is adopted, but for the words "within the building footprint".

Orders

1. The Court orders that: 1. The Appeal is upheld. 2. Development Application No 326/2021 for construction of a two storey detached dwelling with retention of existing building fabric including a single storey rear addition on an existing rock outcrop and an underfloor double garage, at 6 Billong Street, Kurraba Point is determined by the grant of consent, subject to conditions of consent at Annexure A. 3. All exhibits are returned, except for Exhibit A. ………………….. T Horton Commissioner of the Court Annexure A.pdf

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2022