Findings
65 Clause 17 of NSLEP provides:
17. Building heights
(1) Building height objectives
The specific objectives of the building height controls are to:
(a) limit the height of buildings in residential zones to:
(i) one storey, at the street façade, where that is the characteristic building height, or
(ii) subject to subparagraph (i), heights which are the same as or similar to the characteristic building heights, or
(iii) if neither subparagraph (i) nor (ii) applies, two storeys, or
……
(c) promote the retention of and, if appropriate, sharing of existing views, and
……
(f) prevent the excavation of sites for building works, other than for garages and carparking.
……..
(3) Building height controls
Except as otherwise provided in this clause, a building must not be erected, in a residential zone, in excess of 8.5 metres in height.
66 Height is defined in NSLEP to mean:
"height" in relation to a building, means the greatest distance measured vertically from any point on the building to the existing ground level, or the level of the lowest habitable floor, immediately below that point, whichever is the lower, excluding chimneys.
67 Mr Tomasetti, submits that cl 17(3) does not establish the maximum height as cl 17(1)(a)(ii) provides otherwise. A height exceeding 8.5m is anticipated, as the characteristic height in the area is three storeys. Even if cl 17(3) applies to the proposal, in Mr Tomasetti's submission, the objectives of the standard are met.
68 Mr Hemmings submits that both council and the applicant have based the assessment of the development application and the s96 application on the height limit of 8.5m. The development application was reduced in height to comply with this height limit and to negate the need for a SEPP 1 objection. In Mr Hemmings submission, the objectives in cl 17(1) do not override the other requirements of the clause but are what compliance with the clause seeks to achieve. Clause 17(1)(a)(i) and (ii) do not apply and therefore the two storey height specified in cl 17(1)(a)(iii) is relevant and is subject to the 8.5m height limit. In his submission the proposal does not meet these objectives.
69 I accept Mr Hemmings submission that cl 17(3) is the applicable maximum height limit and that the matters in cl 17(1) are objectives.
70 Mr Tomasetti also submits that condition E1 of the development consent permits a roof height of RL17.1m and that the increase is therefore only 300mm. This submission was postulated for the first time in Mr Tomasetti's submissions in reply and is contrary to the evidence of both planners that the height of the roof had increased by 1m (based on the approved plans). I do not need to adjudicate on this submission, as I have found an increase of 1m to be acceptable therefore an increase of 300mm would also be acceptable. However, I note that the consent would need to be read as a whole and that while the condition provides a theoretical maximum roof height of RL17.1 this is inconsistent with the roof height shown on the approved plans of RL16.4 and no plans that give effect to a maximum height of RL 17.1 have been approved.
71 The planners disagree on the increase in the roof height. The principle concern being the impact on views. For the reasons discussed above, loss of views to and from Keynsham principally relates to impacts on its heritage significance and are acceptable. The loss of views from 31A Shellcove Road resulting from the additional roof height are mainly of sky and are also acceptable. However, this needs to also be considered together with the view impact resulting from the BHP, which is discussed below.
72 The planners agree that the increase in excavation cannot reasonably be reversed, although Mr Mossemenear raised concerns about the resultant increased height of the house and its appearance from the public domain. He is seeking an amendment to the treatment of the eastern façade at the lower level to increase the proportion of masonry to provide a 'base' to the building with two storeys above. I accept that this treatment would be characteristic of other houses in the area, both new and old, and would reduce the impact of the increased height. However, as suggested by the applicant during the hearing, a similar effect can be achieved by increasing the height of the garden retaining wall to a minimum height of RL7.5. This would screen the areas of glazing on the lower level, provide a masonry element to the base of the building and satisfy the Building Code of Australia requirements. The wall is to be clad in sandstone and together with the proposed landscaping would reduce the impact of the increased height to an acceptable level when viewed from the water and Cremorne Point walk.